Rex v Filihia [2003] TOSC 53; CR 051 2000 (12 December 2003)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY

NO. CR.51/2000.

BETWEEN:

REX
Prosecution

AND:

SIONE FILIHIA
Accused

BEFORE THE HON CHIEF JUSTICE WARD

Counsel: Mr Pouono for prosecution
Mr Fifita for accused

Date of Hearing: 11 December 2003
Date of Judgment: 12 December 2003

JUDGMENT

The accused is charged with rape and indecent assault both arising out of the same incident in the night of Friday, 7 January 2000.

I have made an order under section 119 of the Criminal Offences Act that the identity of the complainant and her evidence in the proceedings shall not be published or broadcast in the Kingdom.

The complainant is victim of polio contracted many years ago. It has clearly resulted in severe wasting of her lower limbs and almost as severe wasting of her upper limbs. She is confined to a wheelchair and the court heard that she is unable to dress or bathe herself. She needs constant care and has the strength in her hands only to move the wheel chair within the room and is unable to move it further. She is, and has been, a resident of the Alonga Centre and it was there that the offence is alleged to have occurred. There is no dispute that she would not have the strength to resist any assault.

The accused lived at that time close to the Alonga Centre and used to visit her. She said he was her friend during 1999. Apparently when he visited her he would sit with her in the television room and would kiss her. She told him not to do it because the others were watching. It also appears that the teachers, or one teacher in particular, did not like his attentions and tried to discourage her from seeing him. Despite this she used to telephone him and had to do so from her sister’s house so the teacher did not know.

She told the court that she was asleep in a bedroom she was sharing at that time with one other girl when she was woken by the accused at, she thought, about midnight. He was lying alongside her and she was able to see by the light from outside that he had removed all his clothes. He told her that the teachers and students did not like him coming to the Centre to see her and that if he did not have sex with her, he would kill her.

He removed her clothing and had sexual intercourse with her. He then carried her through to another room and had sexual intercourse again. The complainant did not consent and told the court that she told him not to do it and that it was hurting her and she felt she would die.

After that he carried her back to her bedroom and dressed her. He stayed a short time during which he kissed her and said he would marry her. He then left.

The next day she was very upset and went home by taxi. She returned to the Alonga Centre on the Sunday afternoon and told one of the teachers, Fungani ‘Oliveti, on the Monday afternoon about what had happened. It appears there was blood on the sheet and she told Fungani that it was from the accused’s visit the previous Friday.

The only issue in the case is the question of consent. The accused gave evidence and said that he had received a call from the complainant either the day before or earlier that same Friday. He was working and said he could not go at that time. She then told him where the room was in which she slept and that she would leave the door open. He said he went in and woke her. He was not naked and lay on the bed and kissed her. He said he removed his clothes and she asked him to remove hers. He denied she ever said it hurt or that she might die. He said he asked her if they could have sex and she said that it was up to him but he would have to marry her afterwards. He denied he had ever mentioned the question of marriage. It had come from her only. At the end, after he had dressed her, she again asked if he would marry her and he said ‘Yes’.

He was interviewed under caution by the police on 11 January 2000. He told how they were friends and used to speak on the telephone but that he had not spoken to her for about two months prior to the 6 or 7 January 2000. She rang him then and asked him to come and see her. He said he entered through the door and gave an account consistent with the account he gave to the court.

Corroboration is not required in such a case but the court should look for evidence which may help to confirm the account of the two conflicting witnesses. Recent complaint is such evidence in that it may help to show that the complainant gave an account consistent with her later allegation. In this case, the eventual complaint to Fungani was not recent but the defence did not object to it being lead. It was, as I have stated, made on the Monday evening. Fungani asked why she had not reported it before and the complainant said that she only wanted to take her life and speak to her mother to tell her what happened. She had gone home on Saturday afternoon and returned on Sunday evening. However, she did not have chance to speak to the teacher until the Monday evening.

She told that she had woken to seethe accused standing by her bed with no clothes on. He had said he wanted to have sex and put his hand on her mouth and said that if she didn’t have sex he would kill her. It should be stated that, when the complainant first described the beginning of these events in her evidence, she had said she woke to see the accused standing by her bed naked but changed that to saying that he was lying on her bed beside her when she woke.

The complainant denied telephoning the accused that day or the day before. The defence called a witness from the house where the accused was living at that time and he gave evidence that she did telephone at the time and also just after the incident and before the police arrested the accused. I found him a credible witness and I accept there were such telephone calls.

As in all criminal trials, the burden is on the prosecution to prove the allegation beyond reasonable doubt. In this case it must prove to that standard that the complainant did not consent and also that the accused did not believe that she was consenting. In order to determine that question, there must be reasonable grounds for such a belief and the accused must have believed it.

As has been stated, there is no doubt that the complainant did not have the strength in her limbs to resist the accused in any physical way. She gave her evidence in a strong voice and very confidently but she also told the court that she cannot speak any louder so she could not shout. She explained that the other girl in the room could not be easily woken and, in any event, would not understand. However, the teacher Fungani lives in a separate building on the premises and told the court she was only about 10 –15 metres away. It would seem that even a relatively weak shout would be likely to rouse the teacher. The prosecution did not elicit any evidence about the ventilation of the rooms and whether or not there is air conditioning. If there were not, the windows would have been open in January.

I find the complainant a credible witness and, whilst I am not satisfied to the required standard that it has been proved she was unwilling at the first approaches, I believe that she did not consent to sexual intercourse. However, I must also be satisfied before I can convict that the accused did not believe that she was consenting and that there were no had reasonable grounds for such a belief.

There is no doubt in my mind that the complainant was friendly with him and clearly their friendship was very warm. Her objection to being kissed in the television room was solely that the others could see. There was no suggestion in her evidence that she objected on any other grounds. She clearly often spoke to him on the telephone and I accept that it was she who telephoned him after the break in their contacts to ask him to come and see her. I am not sure of the truth of his statement that she asked him to come to her sleeping room but I accept that she told him to come later when he told her that he was working at the time. The accused agreed with the complainant that he had never been to her room previously but Fungani told the court that visitors were allowed in some circumstances to visit residents in their rooms so it would not necessarily have been wrong for the complainant to have suggested it

It was against the background of that relationship that he arrived at the centre that night. It is agreed that he first kissed her and then asked her for sex. I am not satisfied that he threatened her. What he found was a person who did not shout or cause a disturbance. She could not, as he knew, have put up any physical resistance but even the statement that it hurt and that she felt she might die, which I am satisfied was made, could be interpreted as not showing dissent.

I am satisfied that the complainant did not consent but, against the background of the friendship between these two, I must acquit if I believe the evidence shows that the accused may have believed she was consenting.

On the evidence as a whole I am satisfied that the accused did believe she was a willing partner at the outset and had grounds for such a belief but, as the time passed, her protests about the pain must have warned the accused, in light of her extreme physical disability, that she may not be willing or may not still be willing. I am satisfied beyond reasonable doubt that, at that point, the accused continued with a reckless disregard of whether she consented or not. In those circumstances he is convicted of rape.

I see no additional factors to justify an additional conviction of indecent assault so I treat it as an alternative verdict and give no verdict on that count.

NUKU’ALOFA: 12 December 2003

CHIEF JUSTICE