Rex v Tu'ifua [2006] TOSC 11; CR 23.2005 (30 March 2006)

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

CR 23/05

REX

-v-

UOTA TU’IFUA

In this case after trial the Defendant was found not guilty on charges of rape and indecent assault. The trial was heard in camera under section 141 of the Criminal Offences Act; and in terms of section 119(1) of that Act, I made an order directing that the identity of the complainant and her evidence taken in the proceedings shall not be published in the Kingdom in a written publication available to the public, or be broadcast in the Kingdom.

While giving my reasons for the verdict I considered it appropriate to make the following general comments arising from the case:

1. When a criminal case is going to trial, it is the duty of the prosecution to provide the defence counsel with all the material the prosecution has available, eg R v Ward [1993] 2 All ER 577 (CA). In particular that means the full witness statements, including statements from potential witnesses not called. The brief of evidence is not sufficient. I believe that would also extend to the Police diary of investigation. Exhibits and photos should also be produced or referred to, not lost or forgotten. This is to ensure that the trial is conducted against the background of all the prosecution cards on the table and nothing hidden – so that there can be a fair trial.
   
2. I have now been sitting in the Courts in Tonga for 5 years and it is regrettably not uncommon in Tonga in allegations of sexual offences for a complainant to make the allegation, when discovered in a compromising situation, so as to protect her own reputation – although in fact what occurred was probably done with her full consent. My conclusion on the evidence was that that was likely to be the position in this case – thought it is not the first or the worst of its kind I have heard.
   

Such cases therefore take up the time of the hard-pressed Supreme Court unnecessarily and I believe it is incumbent on the prosecution in allegations of sexual offences to review the evidence carefully before proceeding to trial to assess not only that the evidence which the witnesses will give will cover all the essential elements of the offence but that, viewed in the whole context, it is likely to be credible evidence. In addition I believe that the prosecution should be satisfied that what is being presented to the Court is the whole story, not just the parts of the story which the prosecution or the complainant wish to disclose or feel will secure a conviction.

3. I say all this because I must make it clear that the duty of a public prosecutor includes not only the duty to bring prosecutions to enforce the criminal law in the public interest, but also a discretion to be exercised to ensure that prosecutions should only be brought where there is a reasonable prospect of conviction – ie it seems more likely that there will be a conviction than an acquittal.
   

In other words, just because a complainant states a complaint of an alleged offence, the process does not have to grind on inexorably until the Supreme Court reaches a decision – the process should be halted at an earlier stage if, in the light of the potential quality of the evidence, there is not a reasonable prospect of conviction. The prosecution should not shrink from doing so.

R M Webster
Chief Justice

30 March 2006