Rex v Talanoa [2006] TOSC 14; CR 389 2003 (13 April 2006)

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

NO. CR.389/2003

REX

-V-

PITA TALANOA

BEFORE THE HON. ACTING CHIEF JUSTICE FORD

Counsel: Ms Mele Tupou for the Crown and Mr Veikoso for the accused

Dates of hearing: 27, 28, 29, 30, 31 March, 3 and 7 April 2006
Date of judgment: 13 April 2006

JUDGMENT

The charge

[1] The accused is charged with one count of rape and, in the alternative, one count of abetment to rape. A co-accused, Tu'amelie Mahe, was charged with rape and indecent assault and another co-accused, Tahaafe Moala, was charged with one count of rape and two counts of indecent assault. All the charges relate to the same incident and the same complainant.

[2] Moala pleaded guilty to the rape count and the Crown withdrew the indecent assault charges. He is awaiting sentence. Mahe absconded while on bail and is now believed to be in Samoa.

The Crown case

[3] The incident in question occurred during the night of Wednesday 20 August 2003. The 37-year-old complainant, originally from Lapaha, at that time was residing with her mother's relatives at Mataika so as to be close to her workplace. She worked as a housekeeper at Popua. She describes herself as a divorced woman with three children. Her former husband lives in New Zealand.

[4] The complainant had been invited by the Lapaha Youth Group to attend a function at the Phoenix Nightclub, Kolofo'ou. She had been to the nightclub before. On this particular night she went with two males - a relative and a neighbour. They arrived at approximately 9 p.m. She said that when the dancing was about to finish, the accused came over and introduced himself to her as 'Sifa' (in this judgment I will refer to him either as 'the accused' or 'Pita'). She said that he asked her for a dance and joined her at her table. She said that they had two or three dances. He asked her what she was going to do after the dancing. She told him that she was going to continue on to the Billfish (another bar and restaurant) and dance there. Her 17-year-old daughter was also at the nightclub but she had travelled from Lapaha in a different vehicle.

[5] The complainant told the court that after the dancing finished she went to the car and said goodbye to her relatives and her daughter. She was then going to walk to the Billfish. She said she was thinking of going to the Billfish with the two boys she had come with but she did not notice them. She said she then noticed Pita standing beside a white car. He asked her if he could take her to the Billfish. The complainant said that she was afraid because she did not know the two boys sitting in the front seat of the white car. Pita told her not to be afraid because the driver was his brother. That remark reassured the complainant. She said, 'I was not afraid anymore because I thought nothing would happen to me because it was his brother.' As it turned out, the driver of the white car was the co-accused -- Tahaafe Moala.

[6] The complainant sat in the backseat with Pita. She noticed that the vehicle started travelling in another direction from the Billfish and she asked Pita where they were going. He told her that they were going to get something from a house at Pahu and then they would go back to the Billfish. The vehicle duly stopped at a house in Pahu and the complainant noticed Pita get out and fetch something which he put in the boot of the car. She did not see what it was but it turned out to be a tyre which the three were planning to exchange for a bottle of liquor. The vehicle then travelled onto a taxi base at Ngele'ia where the exchange was made before returning to Pahu.

[7] By this time, the complainant said, she was becoming increasingly afraid. She asked the accused where they were going. He reassured her that there was nothing to worry about. He told her, 'after this, we are going to the Billfish.' On the way from the taxi base back to Pahu the complainant noticed that Moala and Mahe were drinking from the liquor bottle that they had picked up at the taxi base.

[8] Two houses at Pahu figured prominently in the evidence. First, there was an empty house owned by Samu Fifita who, at the time, was living overseas. The other house, two doors away, apparently belongs to the accused. It is actually a combination of two huts that at some stage had been joined together. Some witnesses referred to it as Pita's hut. For ease of reference, I shall refer to the two houses in question as 'Fifita's house' and 'Pita's hut' respectively.

[10] What happened when the vehicle then arrived back at Fifita's house is important. I set out the relevant passage from the complainant's evidence in chief:

'The two passengers got out of this car and went into the house. This house was very dark. All I noticed was that this house was too dark. There were no lights in it. The two passengers they got out of the car and went into the house. They were drunk and the liquor bottle taken from the taxi base - they drank it while we were on our way to the house. (Pita) joined them drinking this liquor bottle. I was too afraid to get out of the car and Pita got out of the car and went to the other two passengers who were inside the house and when he came back I asked him when are we going to the Billfish and then he told me to wait until the other two passengers have a drink and then we had to go.

Q. So what did you do?

A. While I was sitting in the car he came back and asked me or insisted me to come with him and wait in the house for the other two passengers to finish their drink.

Q. So what did you do?

A. At that time I did not think that the accused was thinking of doing something bad to me and I recognised him whispering to the other passenger, not the driver, who was sitting in front of the car. The accused was whispering to him. The other person who Pita whispered to was in the house and all I noticed was Pita whispered to this person and telling me to come.

Q. So what happened?

A. As I recall the passenger that Pita whispered to (Mahe) immediately gone and I kept noticing the flash of a light -- the streetlight. I could see him coming with a mattress.

Q. So this person brought the mattress into the house?

A. It was Pita. At that time Pita was standing by the door of the house and he insisted me to come in and so I got out and stood by the car. The car was parked near the house.

Q. So what happened?

A. I was too afraid and I asked Pita to take me to the Billfish if these two guys are having a drink and I asked him to take me to the Billfish.

Q. So what did Pita do?

A. When Pita was about to answer the question the other two boys were shouting from inside the house telling us to go and have sex now.

Q. And what happened?

A. At this time I was confused and then Pita grabbed hold of my hand and pulled me inside the house.

Q. So what did you do when Pita got hold of your hand and pulled you inside the house?

A. I struggled when Pita got hold of my hand and I shouted at him and when we came into the room the other two boys laughed and locked the door from the outside.

Q. So why did you struggle and shout?

A. Because I never consented to what Pita was thinking about. I didn't agree with that.

Q. According to your knowledge at the time, what was Pita thinking of doing?

A. According to my knowledge at the time Pita was thinking of doing something bad to me from the time that I told him I wanted to go to the Billfish.

Q. Explain what you mean?

A. When we got into the room he started kissing me and he started kissing my breasts.

Q. So what did he do at that time?

A. At that time we were struggling and I just couldn't stop him he was too strong and I had no place to go at that time. I could not run anywhere. In this room there was no light. The louvres to the front in this room - was light shed from the streetlight. At that time I was struggling and I had no place to run to because the room only had one door and the two other guys were sitting in the living room shouting at us to go on and have sex fast so that they can come.

Court: Was that door locked from the outside?

A. Yes.

Q. Explain what Pita did to you at that time?

A. At that time Pita took off his clothes and he forced my clothes off. I shouted for help on the mattress on which I was lying.

Q. So why didn't you stand up on the mattress?

A. At that time I was so confused I didn't know what to do. I had no hope at all because I was thinking if I run through the door the other two guys would get me.

Q. So what happened?

A. While I was so confused Pita forced my clothes off.

Q. So what were you wearing at that time?

A. I wore a shirt and a T-shirt and short pants.

Q. How did he take off your clothes?

A. The first thing he did, he took off my T-shirt.

Q. How did he take it off?

A. He pulled my T-shirt. When he took off my T-shirt I didn't know where it went. I was lying on my back then. He took off my short pants as well. I was struggling and trying to get away but I couldn't. When he finished taking my clothes off the accused landed on top of me.'

[11] The complainant then described how Pita lay on top of her and, using his hands, he inserted his penis into her vagina and commenced having sex. She said that she continued shouting for help but the other two boys in the living-room shouted at them 'to go fast'.

[12] While they were still having sex, the door to the room opened and the complainant said that Moala (who she referred to simply as 'the driver') was standing there already naked. He told the accused to get up because it was his turn. The complainant said that the accused then got off her and walked out of the room. She called after him to help but he did not respond or return. She said that as he left the room he locked the door from the outside. She then described how Moala assaulted her and had sex with her. At one point she noticed the accused peeping through the door but then he left.

[13] The complainant told the court that while Moala was having sex with her, Mahe inserted his penis into her mouth and later they changed positions with Mahe having sex and Moala inserting his penis into her mouth. While all this was happening, the complainant said that she continued to struggle. At one point Moala coupled his hands over her mouth and nearly suffocated her. He also bit her on the breast and threatened to stab her with a knife but because of the darkness she was unable to tell if he had a knife in his possession.

[14] By this time, the complainant said, she had lost all sense of time but her ordeal continued until the accused suddenly reappeared on the scene again. She said, 'he had a look at us and then he told the other two guys, that's enough, we have to go.' The others then stopped what they were doing and the complainant began looking for her clothing. She said that she was dishevelled and hurt and when she found her items of clothing she thought of going to the police station. Pita suggested that she should come to his hut because there was a girl and boy there. She did that. She saw a boy and girl at Pita's hut who she took to be girlfriend/boyfriend. She said that at that stage she was still crying from her ordeal.

[15] The complainant described briefly what then happened at Pita's hut. She recalled giving her purse to Pita. She also recalled Mahe coming in and grabbing her head. She shouted out at them that she was going to the police. She eventually left the house and started walking to the police station. By that time it had started to rain. She met a man who asked her where she was going and she told him to the police station to make a complaint about some boys who had abused her. She asked if she could borrow his umbrella. He replied that it was not his umbrella but he agreed to walk with her and during the journey she described the boys to him.

[16] The complainant arrived at the Nuku'alofa Police Station at approximately 5 a.m.. She first spoke to a Corporal Lavaki who arranged for her to be interviewed by a female officer, Constable Cocker. She then returned to the scene with the police and they apprehended Mahe and the accused. The complainant immediately recognised the accused again when she saw him. He was standing near his hut holding her purse. Moala was apprehended some time later. Later in the day the complainant was examined at Vaiola Hospital. In his report, the doctor concluded:

'Successful sexual intercourse did occur and the skin marks noted on right chest and breast are consistent with love bites.'

[17] The Crown called evidence from the man with the umbrella. He confirmed that on the night in question the complainant had asked him to take her to the police station with his umbrella and while they walked she had explained that some 'boys or men' had abused her. He recalled that she was wearing white short pants and a blue or light green T-shirt. In cross-examination, the witness was asked whether the complainant had given him the names of the men involved. The witness replied that she had only given him one name. She told him that it was 'her boyfriend, Pita.'

[18] Another witness for the Crown was 30-year-old 'Iunesi who knew the accused. She had also been to the Phoenix nightclub and had noticed the accused dancing with the complainant. After the dancing had finished she began walking home with her boyfriend, Elevisi. The court was not told precisely where she lived but they had gone into Pita's hut to shelter from the rain. She recalled Mahe coming in and asking for a mattress and blanket 'because he had a girlfriend.'

[19] 'Iunesi estimated that between half an hour and one hour later Pita came into his hut and told her and Elevisi that the two other boys were forcing a woman in the boys' house (Fifita's house) and he asked her to come. She asked who the woman was and Pita replied it was the woman who was in the other house and the two boys were forcing her. She told him that she was not going to go because she was afraid of Mahe. The witness said that when she looked at Pita she could tell that he was drunk and he looked like he was wanting to go to sleep. 'Iunesi said that Pita asked her more than once to go and get the woman but she said that she would not go. She kept insisting, however, that Pita should go and fetch her and so eventually he got up and went to the other house and brought the woman back with him.

[20] 'Iunesi said that the woman's hair was in a mess, her watch was broken and it looked as though she was crying. As they entered the hut she was holding her purse and holding Pita's hand, 'like boyfriend and girlfriend'. She said that they went and sat on the bed and the woman gave her purse to Pita, lay her head on Pita's chest and closed her eyes.

[21] A short time later, Mahe entered the hut. 'Iunesi said that he took the purse from Pita, took a tube of lipstick from the purse and put the lipstick on his lips. He then started kissing the forehead of the woman. The woman asked Pita to take Mahe away. Pita wanted her to stay the night but she then stood up and walked out the door. When she reached the road she shouted out that she was going to lodge a complaint.

Voir dire hearing

[22] The accused made a statement to the police but its admissibility was challenged by Mr Veikoso. After a lengthy voir dire hearing, I agreed to admit only those parts of the statement which the accused accepted were in his words. The so-called record of interview was unsatisfactory. It consisted of a series of leading questions which the interviewing officer put to the accused taken from the statement the complainant had given to the police, which the officer had in front of him. The leading questions simply called for a 'yes' or 'no' answer. As I indicated in my ruling, that type of leading question format is not what is envisaged by section 21 of the Evidence Act (Cap.15). A voluntary confession in terms of section 21 should, as a general rule, consist of answers or admissions in the accused's own words. The leading question format is easily manipulated, as happened in the present case when pressure was applied by the officer to have the accused give the 'yes' or 'no' answer that best fitted in with the complainant's statement.

[23] The additional problem for the prosecution in the present case was that the credibility of the police officer who conducted the interview was exposed rather dramatically by important contradictory evidence given by the police countersigning officer. The interviewing officer had said in evidence that at the interview the countersigning officer was seated at the same table in the chair to his immediate right. When he gave evidence, however, the countersigning officer confirmed that during the interview, he was seated at another desk two tables away interviewing a suspect of his own. That evidence was consistent with the accused's own description of the interview.

The defence

[24] The accused elected to give evidence and to call evidence on his behalf. He freely admitted having sexual intercourse with the complainant on the night in question but he claimed that it was completely consensual and that she played far more than a passive role in the events leading up to the sexual act.

[25] The accused works as an electrician and assistant panel beater at BMG Auto Services. He told the court that at the time of the incident he was 21 years of age. He recalled going to the dance at the Phoenix nightclub with the two co-accused. Beforehand, they had been drinking at Fifita's house at Pahu. The two other boys remained in the car while the accused went inside the nightclub. He said that he started dancing by himself when the complainant, who he had not noticed approaching, suddenly grabbed his hand and asked him to dance with her. He said that they played another song and he continued on dancing with the complainant. He asked her if she would be his girlfriend and she told him not to mistreat her. She invited him to come over to her table and have a talk and he did so. He said she pointed out two girls -- her daughter and a friend and she said that that was why she was at a dance. Then two boys came and danced with the two girls and so he continued sitting at the table with the complainant. Pita said that he then asked the complainant for a chance to sleep with her to see if they were attracted to each other. She told him that she was concerned about her daughter and her friend and she suggested that they wait until they go. Pita told her that he was with his friends and they would continue on cruising in their car.

[26] Pita said that when he later went outside the nightclub and was about to reach his car he heard the complainant calling out to him. He asked if she could join them. She then gave Pita her purse to hold while she went to say goodbye to her daughter. After a short while she returned and she asked if the other boys were going as well and he said, 'yes'. Pita said that the complainant sat in the back seat alongside of him and they drove straight to his hut at Pahu where they picked up a tyre and took it to the taxi base at Ngele'ia to exchange for some liquor. They then cruised around in the car and picked up some water from Mahe's cousin at Kolofo'ou (presumably to mix with the liquor). Pita said that outside Mahe's cousin home, the complainant put her head on his chest and he asked her if they could kiss. She answered 'u'mm' and they kissed for a short period but they stopped when the other two boys came back to the car and the complainant then 'sat up straight.'

[27] Pita told the court that they then returned to Fifita's house where the incident occurred. At that point in his evidence, Mr Veikoso asked Pita for his response to the complainant's allegation in court that she had kept asking him to take her to the Billfish. Pita responded to Mr Veikoso: 'that is what she said in court but she never told me something like that.' Again, in cross-examination, Pita firmly denied that the complainant had at any stage mentioned going to the Billfish that night and he ridiculed the suggestion that he had agreed to walk with her to the Billfish pointing out that the Billfish was approximately 2 miles away from the Phoenix nightclub.

[28] Pita said that when the vehicle stopped outside Fifita's house, he was going to take the complainant over to his hut but Mahe and Moala entered Fifita's house and lit a candle and continued drinking. Moala asked Pita to join them but the complainant said that he (Pita) had had enough and they stayed in the car. Mahe then came back out and told Pita and the complainant that he was going to get a mattress and he walked off towards Pita's hut. Pita and the complainant then entered the living room of Fifita's house. A short while later Mahe returned with a mattress. Pita said that when Mahe entered the livingroom he told the complainant to stand up so he could give her the mattress to sit on but she told him it was okay and she asked him to put the mattress in the bedroom. Pita described how they were seated in the living room. He said that Mahe poured the drinks but the complainant did not have any. After a while she stood up and said that she was going to lay on the mattress and then she called out to Pita telling him to come into the room after he finished his cup.

[29] Continuing in his evidence in chief, Pita said that when he entered the bedroom the complainant was naked except for her bra and she told him to come and lay with her. He did so and she then told him to stand up and take off her bra but, as he put it in evidence, 'I told her that I did not know how to take off a bra and then she took it off herself.' Pita said that he then lay on top of her on the mattress but he was not aroused. She told him that that was okay because she could arouse him and she proceeded to do so with her hands. He said that they then had sex. He described how during intercourse, the complainant used her hands to pull up her legs and after she let go of her legs she caressed his back.

[30] At one point Mahe pushed the door open and told them to have sex fast so he could have sex. Pita said that he could see what was going to happen and so after he finished having sex he told the complainant to put her clothes on and he suggested that he could take out the louvres to the bedroom window (which was not high off the ground) and she could escape over to his hut. He said that when he made that suggestion the complainant responded, 'it's okay, I'm going to lay here. If you want to join the other two boys drinking you can.' When Pita left the room the complainant was lying on the bed naked with a blanket over her. Pita was asked about the complainant's statement that the bedroom door had been locked from the outside but he told the court that there was no lock on the outside of the door.

[31] Pita said that after he entered the livingroom, Moala stood up and went inside the bedroom. Pita said at that point he was afraid of the other two boys and so he walked over to his hut and that was when he asked 'Iunesi, who is a cousin of Mahe's, to go and get the woman out of the house. She told him that she would not because she was afraid that Mahe might hit her.

[32] Pita then described how when he later went back to Fifita's house he helped the complainant find her clothing and then he led her back to his hut. He told her to stay the night with him and he would take her back to her home in the morning. He described how he held her during the walk back to his hut and how they had gone and sat on his bed and she had closed her eyes and rested her head on his chest. She then gave Pita her purse asking him to hold it. Pita then told how Mahe had come into the hut, taken the purse off him, put lipstick on his lips and then started 'repeatedly kissing the complainant's face.' Mahe then said to the complainant, 'when I say we are going to have sex we are going to have sex and we are about to have our second turn.' According to Pita, he also said that he was going to 'beat the shit out of her'. Pita said he told Mahe not to do anything like that and he went outside to get a wet cloth to wipe the lipstick from the complainant's face. He described how he then saw Mahe punch the complainant's leg and that was when she ran outside saying that she was going to lodge a complaint.

[33] The defence also called evidence from Pita's 49-year-old mother, Mele. She gave evidence of a visit she made to the police station after Pita had been apprehended and, as she walked along the pavement outside the police station after her visit, the complainant approached her and asked her if she was Pita's mother. Mele said that when she told her that she was, the complainant said, 'that she's all right with Pita because she consented but she's sad of the other two boys because of what they did to her.'

The law

[34] The essential elements the Crown needs to prove in order to establish a charge of rape were not in dispute. Section 118 of the Criminal Offences Act (Cap. 18) provides that a person commits rape when he carnally knows any female against her will. First, therefore, there must be carnal knowledge of the woman which means full or partial sexual intercourse. In other words, there must be an intentional penetration of the vagina of a woman by the penis of a man. The slightest degree of penetration will suffice. If there is any penetration at all, no matter how slight or for how short a time, that will be sufficient. There does not have to be an ejaculation by the male. Rape is complete upon penetration. Secondly, the penetration must be without the woman's freely given consent and, thirdly, the penetration must have occurred without a belief on the part of the man, based on reasonable grounds, that the woman did consent.

[35] It is the second and third elements which are keenly disputed in the present case. Mr Veikoso submits that the Crown has failed to prove that the complainant did not consent or that the accused had reasonable grounds for believing that she did consent. The question whether the complainant consented or whether the accused had reasonable grounds for believing that she was consenting to sexual intercourse is a question of fact.

Corroboration

[36] As was stated by the Court of Appeal in Teisina v R [1999] Tonga LR 145, 149, there is no requirement that the evidence of the complainant in a rape case must be corroborated. Section 11 of the Evidence Act (Cap.15) provides only that in criminal proceedings for sexual offences, evidence of complaint made by the victim shortly after the commission of the crime, may be given, not as corroboration, but as showing that the victim's conduct is consistent with his or her evidence at trial. As the Court of Appeal noted, the common law applies and 'though corroboration of the evidence of the complainant is not essential in law, it is the practice to warn the jury against the danger of acting on his or her uncorroborated evidence, particularly where the issue is consent or no consent.'

[37] The question of consent or no consent is, of course, precisely the issue at stake in the present case. Corroborative evidence means admissible evidence from an independent source which tends to confirm and support the victim's evidence that not only was the crime committed but that the accused committed it. When more than one accused is involved then there is a need to look for corroborating evidence implicating each accused separately in the commission of the offence.

[38] As noted in Blackstone's Criminal Practice (1993) para F.5.18:

'The justification for the rule (requiring a warning in the absence of corroboration) is the inherent danger arising from the fact that sexual allegations are simple and often tempting to make, but difficult to refute, and from the characteristic possibility of hysterical or malicious invention, or simply the instinct for preservation of the complainant's reputation or material interests.'

[39] The learned authors of Criminal Laws -- Materials and Commentary on Criminal Law and Process in New South Wales (1996) make the following observations in relation to the requirement for the rule:

'These doctrines were built on highly questionable assumptions concerning the ease with which sexual assault allegations could be made, the unreliability and hysteria of complainants, and the difficulties of disproving such an allegation. As the suspect nature of these assumptions and their highly gendered construction was revealed by feminist campaigners and writers, so legislatures moved to abolish or restrict the operation of these doctrines.'

[40] Be that as it may, as noted above, in Tonga the common law requirements as to the need for a judicial warning in the absence of corroborative evidence still prevails. In the present case given, in particular, the involvement of the two co-accused, there is no evidence capable of amounting to corroborative evidence implicating the accused. I do not understand Crown counsel to contend otherwise. As a judge sitting alone, therefore, I must adhere to the common law principle in question and, in the absence of corroborative evidence, there is a need for me to scrutinise the Crown case with particular care and to proceed with considerable caution before entering a conviction against the accused.

Credibility

[41] Both counsel conceded that this case falls to be decided on the issue of credibility. There is no way that the stories told by the complainant and the accused can be reconciled. There is, in fact, such a gulf between the evidence given by each that at times an independent observer could have been forgiven for wondering whether they were talking about the same case.

[42] On the face of it, with exceptions I will refer to shortly, both the complainant and the accused appeared to be credible witnesses. There is, however, evidence which, upon analysis, directly affects the intrinsic credibility of their respective stories in such a way that almost inexorably the court is driven to the one inevitable conclusion as to where the truth of the matter lies. I now propose to consider, seriatim, those particular aspects of the evidence:

(a) The purse

In her evidence in chief, the complainant had said nothing about having given her purse to the accused to hold outside the Phoenix nightclub when she went and said farewell to her daughter. She did not deny the proposition, however, when it was put to her in cross-examination by Mr Veikoso, although she offered no explanation for having done so. The evidence of the accused on the topic was that when he walked out to his car after the dance and was about to go cruising, the complainant followed him and called out asking where he was going. She asked if she could join them and she gave the accused her purse to hold while she went and said goodbye to her daughter. Mr Veikoso submitted that her actions in this regard supported the accused's evidence that it was the complainant who was taking the initiatives to have a relationship with the accused.

Leave was granted for the Crown to recall the complainant at the end of the case so as to put to her, for her reaction, certain matters that had arisen out of the accused's evidence which had not been covered in her cross-examination. During that session, Crown counsel tried to ascertain from the complainant exactly why she had given her purse to the accused to hold outside the nightclub. The following exchange took place:

'Q. Why did you give Pita your purse while you went to say goodbye to your relatives?

A. When I came out of the nightclub the accused asked me where I was going. I told him, I'm going to the Billfish. He told me, he wanted to join me. I said it's okay you can join me but I'm walking to the Billfish. Then the accused asked me if it's okay for him to hold onto my purse and I told him yes, it's okay, he could hold onto my purse, I'm going to say goodbye to my daughter and relatives.

Q. So why did you give him your purse when he asked for it?

A. When I told him I was about to go to the Billfish, he asked if it was okay if he came with me. I said yes, it's okay. I turned to walk away. He asked me again to give him my purse to hold onto and I gave him my purse so I went and said goodbye to my daughter.

Q. Could you give me only one reason, the reason why you would give someone you had just met your purse?

A. I didn't give him my purse because we were about to go to the Billfish. The reason I gave him the purse was for him to hold onto while I -- because I was in a hurry to go and say goodbye to my relatives.'

Crown counsel's exasperation in trying to extract a simple answer from the complainant was all too evident. In the same passage of evidence, the complainant said that the reason she gave the accused her purse to mind again later on after the incident was because she was in a hurry to go to the police station. I say at once that I did not find the complainant's answers on this topic at all convincing.

(b) The Billfish

The complainant said repeatedly throughout her evidence that her intention after leaving the Phoenix was to go to the Billfish and she kept asking the accused to take her to the Billfish. For his part, the accused denied that she ever once referred to the Billfish. The complainant said that she was going to walk to the Billfish and the accused had asked her if he could join her in walking to the Billfish. When that proposition was put to the accused, he said that it was a lie.

The obvious question that arises from the complainant's evidence is, why would the accused have agreed to walk with her to the Billfish when he had a car available to drive them both anywhere they wished to go. The accused estimated the distance to the Billfish as approximately 2 miles. That estimate may be an overstatement but, even allowing for the distance to be half that estimate, the complainant's proposition defies credibility and commonsense.

(c) The door

In the passage quoted earlier from her evidence in chief, the complainant stated on two occasions (once in response to a specific question from the court) that the door to the bedroom where the incident occurred was locked from the outside. She repeated the same statement later on in evidence for a third time. The accused denied that the bedroom door had a lock on the outside.

The court decided to take a view of the premises in question. Unfortunately, Crown counsel had a prior commitment in Fiji and could not be present but the accused pointed out the bedroom in question. The door had no lock on the outside. When the complainant was later recalled to the witness stand, Crown counsel showed her a photograph of Fifita's house and asked her to identify the location of the bedroom where the incident occurred. The complainant pointed to another room at the very front of the house. When it was pointed out to her by the court that, upon inspection, the room she had identified did not appear to even have a door, the complainant maintained her stance and indicated that the front room was where the incident occurred.

A second inspection of the premises confirmed that the room which the complainant had identified did not have a door and appears not to have had a door within the foreseeable past. The complainant's admission that the room she was in may not have had a door is directly contrary, of course, to her earlier sworn testimony that the bedroom, not only had a door, but it was a door that was able to be locked from the outside.

(d) The clothing

The complainant said more than once that in the bedroom the accused forcibly removed her clothing. When she was asked in cross-examination why none of her clothing was torn she replied that her shorts and T-shirt were brand new and they were made of a strong fabric.

That may well be so, but each item of clothing the complainant was wearing on the night in question was produced as an exhibit and there is no evidence that any of her more fragile undergarments were torn or damaged in any way. The complainant's bra, for example, which figured fairly prominently in the evidence, had a fastener comprised of three small hooks and eyes. Not only were the hooks and eyes small in size but they were delicate and even the smallest application of force would inevitably have resulted in some type of damage.

There was no evidence that any force had been applied to the three small hooks and eyes on the bra. These observations obviously support the accused's evidence that the complainant, in fact, undid her own bra.

(e) Boyfriend/girlfriend

The complainant told the court that sometime after the preliminary inquiry had been held into this case in the Magistrates' Court, she had heard that the accused's mother had been spreading rumours that she had been the accused's girlfriend. She said that she was very upset over this rumour and she confronted the mother pointing out that it was not true and that it was the accused who had asked her to be his girlfriend. That proposition had not been put to the accused's mother when she was giving evidence and so the court does not know whether she accepts that the conversation took place or not. The matter, however, was canvassed by Mr Veikoso in cross-examination.

Mr Veikoso first put it to the accused that 'Iunesi had described observing Pita and the complainant walking into Pita's hut after the incident holding hands like 'boyfriend and girlfriend'. The complainant denied that allegation. Counsel then put it to the complainant that the man with the umbrella she had talked to on the way to the police station had given evidence that she had referred to Pita as her boyfriend. The complainant responded that the witness was lying.

One of the witnesses called by the Crown was Corporal Lavaki, an officer in the Criminal Investigation Division with 21 years experience in the police force. It was he who the complainant first spoke to when she arrived at the police station to make her complaint. In cross-examination Corporal Lavaki admitted overhearing the complainant say in the course of her interview by Constable Cocker that she liked Pita but she did not like the other two boys because their actions were abusive.

I accept all that evidence and I find it to be consistent with the evidence given by the accused's mother that the complainant had admitted to her outside the police station that she had consented to having sex with Pita.

The Crown's response

[43] At the end of her helpful submissions, I invited Crown counsel to highlight what she perceived to be the strongest evidence, in the absence of corroborative evidence, in support of the Crown's case. In response, counsel referred to some of the matters I have already dealt with plus the following further points.

[44] First, counsel highlighted an inconsistency in the accused's evidence and in his statement to the police. In one of the questions in his interview the accused had been asked: 'What happened after you finished your sexual intercourse?' He answered, 'Tahaafe (Mahe) came in and pushed (the complainant) and she fell onto the mattress then I went outside.' Crown counsel noted that in his evidence, the accused had said that he had finished having sex and had gone out of the bedroom before Moala had entered the room.

[45] The problem is that the accused was never cross-examined on this particular answer recorded in his record of interview and, in any event, I have already expressed reservations about the reliability of the police statements.

[46] Secondly, Crown counsel submitted that Corporal Lavaki's evidence that, during the course of the police interview, he, 'overheard the complainant say that she consented to Pita but not the others' was unreliable because the officer was only 'eavesdropping' and the admission was not recorded in writing. She submitted that the officer had 'heard wrong'. Crown counsel had actually asked Corporal Lavaki in re-examination if the remark had been recorded and he replied, 'I don't know if it was recorded but I heard it.'

[47] The prosecutor is bound by that answer given by her own witness. It is not open to her to impeach his credibility. I have no reason to doubt Corporal Lavaki's evidence on the subject.

[48] Thirdly, Crown counsel sought to rely on the accused's admission that the name 'Sifa' which he had given to the complainant at the dance was a false name and, as I understand the submission, his deception in this regard showed a propensity for the accused to lie and it deceived the complainant into getting into his car.

[49] I accept that there are situations where lying can be capable of amounting to corroboration but the lying must be deliberate; it must relate to a material issue; the motive for the lying must have been a realisation of guilt and a fear of the truth and, unless admitted, the statement must clearly be shown to be a lie from an independent source.

[50] I do not see how the giving of a false first name to the complainant at the dance can advance the Crown's case. Not only do I fail to see how the name the accused gave to the complainant could have made any difference as to whether or not she got into the car but, quite simply, the giving of the false first name was not a lie relating to a material issue in the establishment of the offence.

[51] The final, perhaps rather unusual, submission advanced by Crown counsel was that in this day and age of safe sex, 'if the accused wanted to have proper sexual intercourse with the complainant' then he would have used some form of protection. I do not see how any weight can be given to that submission. There is no evidence on the matter and, even if the issue was of some relevance, there is certainly nothing to indicate what the attitude of the accused and the complainant might have been on the subject. It may not be without significance, for example, that on the final day of the hearing when she was recalled to give evidence in rebuttal, the complainant had with her in the witness box her 12 month old baby. She said that the father of the child was Manu's son and that Manu (her surname was not disclosed) lived next door to the accused. The complainant said that she no longer lived with Manu's son.

Conclusions

[52] Having thus analysed the evidence, I have come to the very clear conclusion that it is the accused who has been telling the court the truth. With one or two inconsequential exceptions, wherever there is a conflict in the evidence given by the complainant and the accused, I prefer the evidence of the latter. In general, I found the accused to be a refreshingly honest witness and on the crucial question of whether or not there was consent, I am satisfied that the complainant fully consented to having sex with the accused on the night in question.

[53] There is no evidence to substantiate the second count and, quite properly, Crown counsel did not make any submissions to the contrary. The accused is, accordingly, acquitted on both counts.

NUKU'ALOFA: 13 APRIL 2006

ACTING CHIEF JUSTICE