Rex v Mafi [2006] TOSC 30; CR 88-2004 (8 August 2006)

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

NO. CR.88/2004

REX

-V-

VEA MAFI

BEFORE THE HON. JUSTICE FORD

Counsel: Mr Kefu for the Crown and Mr Tu'utafaiva for the accused

Dates of hearing: 21, 22 and 26 June 2006
Dates or written submissions: 13, 18 and 25 July 2006
Date of judgment: 8 August 2006

JUDGMENT

Background

[1] The 46-year-old accused is charged with one count of attempted rape contrary to section 120 of the Criminal Offences Act (Cap 18). It is alleged that on Saturday 13 March 2004 he attempted to carnally know the complainant against her will. The complainant at the time was 15 years of age, having been born on 14 March 1988.

[2] The incident giving rise to the charge allegedly happened at the house of Vaikaloa Preston at Longolongo. 57-year-old Vaikaloa and the complainant's parents had been family friends for a number of years. The complainant, with her parent's permission, would often go and carry out washing, cooking and other household chores for Vaikaloa. She would not be paid for her work. It was all part of the close friendship between Vaikaloa and the complainant's parents. Sometimes, however, Vaikaloa would give her some money. Vaikaloa explained to the court that she trusted the young complainant completely and treated her as she would her own daughter.

[3] In January 2004 Vaikaloa's husband passed away and following his death she invited the accused to come and live in a small house on her allotment at Longolongo so that he could help her out. The accused is Vaikaloa's first cousin. Their mothers are sisters. Vaikaloa said that she and the accused grew up together in Vava'u. The accused is a married man with six children but at the time of the incident he was separated from his wife and was living with his de facto partner in the small house on Vaikaloa's allotment at Longolongo.

[4] The small house which the accused and his partner lived in was formerly Vaikaloa's kitchen. Vaikaloa had built an extension onto her own home, however, which served as her new kitchen leaving the small house for the accused and his partner.

[5] Vaikaloa has five children of her own including a 28-year-old daughter, Luseane, and a younger son, Viliami, both of whom figured in the case. At the time of the incident, Viliami lived at home with his mother and Luseane, who normally lived at home, was house-minding a property at Fatai.

[6] On Tuesday 9 March 2004, Vaikaloa suffered a second tragedy for the year. Her father passed away. His body was kept at the mortuary at Vaiola Hospital but over the following days family members and other mourners assembled at Vaikaloa' s brother's house at Tofoa (the "funeral house") to pay their last respects. The accused claimed that Vaikaloa's father was buried on Saturday 13th March but both Vaikaloa and Luseane said that the burial service was held on Wednesday 17 March.

The Crown case

[7] On the morning of Saturday 13th March 2004 the complainant was helping out with the washing at Vaikaloa's place while Vaikaloa had gone over to the funeral house to mix with mourners. After the complainant finished the washing, she went inside the living room to do some study for an upcoming school examination. While she was carrying out her study work, the accused approached her in the house and asked her for sex. She refused. He then offered her $20 and again she refused. He ended up taking her into the main bedroom where he forced her to take off her clothes and lie down on a mattress. He then attempted to penetrate her vagina with his penis. She cried and struggled and the accused then withdrew.

[8] Vaikaloa telephoned from Tofoa and the complainant complained to her about what the accused had done. The complainant was told to go by taxi to the funeral house at Tofoa. She did so and she stayed overnight with Vaikaloa's daughter, Luseane, at Fatai. The next morning, which was a Sunday, Luseane took the complainant back to the funeral house and they both went with Vaikaloa to her home at Longolongo. Vaikaloa then arranged to tell the complainant's mother what had happened the day before. The mother was very upset and she took the complainant to hospital for a medical examination. Following the visit to the hospital, the matter was reported to the police.

The evidence

[9] The complainant told the court that on March 2005 she was in the fifth form at Tupou High School and she was one of the top five students in her class. She explained how, on the day in question, Vaikaloa had invited her over to do the washing and sweeping and to look after the place generally while she went to Tofoa to prepare for her father's funeral. The complainant said in evidence that after completing the washing she went inside the house and began watching television. Vaikaloa's son, Viliami and his friend Sione arrived and came into the living room. The complainant said that Sione was drunk and there was obviously some interplay between them. The complainant said that Sione jokingly asked her to be his girlfriend and at one stage, while she was still sitting in her chair, he reached over the small table in front of her and took hold of her hands. The complainant shouted out to him to let go and she then told the boys to leave. They did so and she began studying.

[10] The complainant then told the court how, a short time after the boys had left, the accused entered the house taking off his shoes in the hallway. She said that he asked her why Viliami and his friend had been there and she told him for no reason. The accused then asked her had she ever been taken by a boy before and she answered, "no". The accused told her that she was lying and again she replied, "no". She said at that stage, while she was still sitting in her chair in the living room, the accused suddenly grabbed her hands and asked her what about going to the bedroom and having sex. He then started to pull her towards the main bedroom and she said, "I won't be able to do that." The witness was asked in evidence in chief what she meant by that remark and she explained that she was then into the second day of her monthly period. The complainant said that the accused then gave her a 20 pa'anga note and told her not to tell anyone. She initially refused to accept the money but when he gave it back to her she took the note and put it in her pocket. She was asked why she had taken the money and she replied, "because I was thinking that if anything happened that would be evidence."

[11] The complainant then described to the court how the accused pulled her into the bedroom. She said that she did not agree to go with him and she told him that she did not want to go with him but she did not attempt to run away because she was afraid that he might hurt her. At that point, the accused had a towel wrapped around him. It was not clear from the complainant's evidence in chief when the accused had removed his trousers but in cross examination it was put to her that at the preliminary inquiry in the Magistrates' Court she had said that when he had entered the hallway and taken off his shoes, he also took off his pants and grabbed a towel and wrapped it around him. The complainant agreed that that evidence had been correct.

[12] The complainant said that once they were inside the bedroom, the accused grabbed a mattress that was standing upright by some cases and laid it on the floor. He then told her to lie down on the mattress and take off her pants. She said that she refused but he insisted. When she lay down she again told the accused that she was having her monthly period and he asked her to remove her menstrual pad. She said that she removed the pad herself because she thought that otherwise he would forcibly remove it.

[13] The complainant proceeded to explain to the court how the accused then removed her trousers and pants and all she had on at that stage was a T-shirt. She said that by then the accused had removed the towel from around his waist and he lay on top of her naked. He asked her to spread her legs apart but she refused to open her legs. The complainant said that she kept objecting to what the accused was doing and at one stage he used his mouth to cover her mouth. She told how at another point the accused was holding onto his penis trying to insert it but, "maybe his penis would not reach my vagina." She said that he kept asking her to spread her legs and she refused. All the time she continued to struggle. She then looked up and saw the accused taking saliva from his mouth and he tried to rub it onto her vagina. She said that at that point she jumped and sat up and at the same time he stood up and covered himself again with the towel and left.

[14] After the accused left the house, the complainant said she replaced her pad and put her pants and trousers back on. She then went to the outside toilet and she noticed the accused sitting outside the door of his own house. He was wearing a T-shirt and trousers. The complainant said that when she was returning from the toilet, the accused said to her that he was still "horny" and he asked her to go back to the bathroom and clean herself up so that he could continue on. She told him that she was not able to do that.

[15] A short time later the complainant noticed that the accused's partner had returned and he was inside his house with her. The complainant was asked in evidence in chief why she did not go over and complain to the accused's partner about what had happened. She replied that it was because she was ashamed and shy.

[16] The complainant said that she then went to sweep up the leaves on the allotment by the road (a common sight in Tonga on a Saturday afternoon). As she was doing the sweeping she noticed the accused's partner leave the house to go somewhere else. She said that as soon as she saw the accused's partner leave the premises, she threw down the broom and ran back to get her shoes intending to go back to her home as quickly as possible. As she was reaching out towards her shoes, she heard the telephone ring. It was Vaikaloa. She did not say anything to Vaikaloa at first and Vaikaloa asked her what was going on. She then told Vaikaloa that the accused had been at the house and he had forced her. Vaikaloa was upset and told her to go home and get changed and then get a taxi over to the funeral house at Tofoa. The complainant did that.

[17] Later, in cross examination, the complainant was asked who was at her home when she called back to change her T-shirt before catching the taxi to Tofoa. She explained that both her mother and father were home but she did not speak to either of them about what the accused had done to her because she was afraid. She said that her father was outside the house and she was afraid to say anything because he was not happy with her going over to help at Vaikaloa's house at that time. She was asked by counsel why her father disagreed with her going to Vaikaloa's place and she explained that it was because he knew that there were boys or men in that area.

[18] The complainant said that after she went home to change her T-shirt, she caught a taxi over to the funeral house. Vaikaloa then asked her if she wanted to have a bath and she declined. Vaikaloa called her daughter, Luseane, and asked her to come over and take her back to the house that Luseane was minding at Fatai for the night. The complainant told the court how the following morning she went with Luseane and Vaikaloa back to Vaikaloa's house at Longolongo and how her mother then came over to Vaikaloa's house and was told what had happened the previous day. The complainant said that her mother took her home and later she was taken to hospital for a medical examination before the matter was reported to the police. She confirmed that she understood from what the doctor had said to her that she was still a virgin.

[19] The complainant was cross-examined at considerable length. She was closely questioned by Mr Tu'utafaiva over apparent inconsistencies between her evidence and what she had said shortly after the incident in an unsworn statement to the police. Counsel reminded her that she had apparently (the police statement was not produced in evidence) said to the police that the accused inserted his penis into her vagina and copulated inside. The following exchange then took place:

"What I stated was, the first time he was inserting his penis in I knew it didn't reach my vagina and then when I looked up at him he took some saliva and he rubbed it on my vagina and when he started to copulate that's the point when I jumped and sat up.

Q. Didn't you just say that Vea did insert his penis into your vagina?
A. Yes.

Q. Right through inside?
A. No.

Q. What happened?
A. When he inserted his penis in I knew it did not go through because I was struggling and that's the point when I looked up and he was getting saliva and rubbing.

Q. And so when you say Vea did insert his penis into your vagina was it clear to you that Vea was trying to have sex on you?
A. Yes.

Q. I put it to you if Vea was trying to insert his penis into your vagina you can see that he is a big man and you are a skinny girl and there is nothing else to stop him continuing on and having sex on you?
A. Yes.

Q. So I put it to you nothing like this happened. Vea did not come into your house and he was sleeping in his house?
A. I am making my statement. It is true. This thing did happen."

[20] The complainant was also questioned in cross examination as to why she did not tell her parents what had happened when she went home to change her T-shirt. She replied that she wanted to tell them but she was worried about what her father would say and do and so she did not speak to them. She simply changed her top and T-shirt and caught a taxi to Tofoa.

[21] Vaikaloa was called as the second witness for the Crown. She told the court that on the day in question, the complainant arrived at her home between 10 a.m. and 10:30 a.m. and she explained to her that she was to look after the house for the day and do the washing and later the sweeping. She said she told the complainant that if she (Vaikaloa) was not back from Tofoa by the evening then she was to return home. Vaikaloa said that she then travelled to Tofoa with the accused in his vehicle along with two other people. When they arrived at the funeral house they were starting to prepare an umu for the mourners.

[22] Vaikaloa then related how, at approximately 12 to 12:30 p.m., she telephoned the complainant on the landline and the complainant told her that she had finished her work and she was studying for her first examination. Vaikaloa telephoned again at approximately 3 p.m.. In cross examination the witness was asked whether she had telephoned at 3 p.m. because she was suspicious of the accused. She explained that the reason she telephoned at 3 p.m. was because she had been looking around for the accused at Tofoa for him to do a job for her in his vehicle and she could not find him. She then learned that the accused had gone back to Longolongo with some of his friends to have a drink there. She knew that the complainant was in her house at Longolongo on her own and she was intending to talk to the accused and tell him to leave. She told the court that she did not want him and his friends drinking at her place.

[23] Vaikaloa said that when she telephoned the complainant on that second occasion, the complainant did not speak to her and Vaikaloa could tell that she was upset and crying on the other end of the phone. She asked why she was crying and the complainant answered that the accused had come over and forced her. Vaikaloa said that the only thing that came into her mind at that stage was that she had to get the complainant over to Tofoa. She explained that she needed time to sort out what she was going to tell the complainant's parents. She said that she felt responsible for everything that had happened to the girl because the complainant was not simply visiting her house but she (Vaikaloa) had invited her over.

[24] Vaikaloa explained how difficult it had been for her on the Sunday morning to have to tell the complainant's mother what had happened. She said that before she began her explanation she apologised to the mother for what had happened because the incident had occurred at her house and it was her "brother" as she put it, who had done the thing to her (in Tongan culture it is common to refer to first cousins as "brothers" or "sisters" as the case may be). Later on the Sunday morning, the witness said, she confronted the accused at Tofoa and asked him what had happened and she reminded him that the reason she had invited him to live at her place at Longolongo was to help her. She said that the accused simply responded that the little girl was lying.

[25] The Crown also called evidence from Vaikaloa's daughter, Luseane, the complainant's mother, Salote, Dr 'Aivi Puloka and the Police Investigating Officer. Luseane said that when her mother called her over to the house at Tofoa to pick up the complainant on the Saturday afternoon she entered the room where the complainant was lying on a bed crying and asked her what happened. The witness said that the complainant told her the accused had forced her at Vaikaloa's home. She said that when he entered the house he asked her if he could have intercourse and he took hold of her. The complainant was not able to run and the accused took her to Vaikaloa's bedroom and asked her to take off her clothes and he took off his and while they were struggling with each other the telephone rang and then the accused stood up and walked away and the complainant went to answer the telephone. The telephone call was from Vaikaloa.

[26] Luseane told the court that she took the complainant to the house she was minding at Fatai to spend the night. She said that she tried to question the complainant about the details of what had happened but she was visibly upset, not talking back and crying most of the time. Luseane said that about four hours later she could see that the complainant was not able to sleep and so she asked her if she wanted anything. She said that the complainant then gave her a 20 pa'anga note and said that the accused had given it to her to keep quiet. She then took the girl to have a shower and after that she slept.

[27] Luseane also gave her account of what happened on the Sunday morning when the complainant's mother was informed. She said that when the mother arrived at Vaikaloa's house, the complainant was crying all the time and was unable to speak. Luseane said that she (Luseane) then started to tell the complainant's mother what had happened but Vaikaloa intervened and explained the situation. Luseane said that they then all cried and the complainant and her mother left.

[28] In cross examination Luseane was asked why she had not taken the complainant back to her parents on the Saturday night or to the police and it was put to her that she had been doing what was best for her mother, Vaikaloa, rather than the little girl. Luseane did not appear to totally disagree with that proposition. She explained to the court the difficult position her mother had been placed in. Vaikaloa had asked the complainant over to mind her house. Vaikaloa was suffering over her father's death and what had happened to the complainant and so she (Luseane) thought that she would do whatever her mother wanted. She said she never thought of going to the police because the accused was her uncle. Luseane said that she was, however, trying to do her best for the complainant who she regarded as a sister.

[29] The complainant's mother, 58-year-old Salote, told the court how she was called over to Vaikaloa's place on the Sunday morning and she recounted what then took place. She said that her daughter was sitting in a chair and crying. She confirmed taking her daughter to hospital for a medical examination and she said that afterwards the doctor told her that her daughter, "was okay." In cross examination, Salote was asked whether she recalled her daughter coming home to change some of her clothing on the Saturday afternoon. The witness replied that she did see her daughter but she did not speak to her. In re-examination she elaborated on why she had not spoken to her daughter. She told the court that she had heard her daughter open the door but her grandchild was crying at the time and when she went to see her daughter after attending to her grandchild, her daughter had already changed and left the house again.

[30] Dr 'Aivi Puloka gave evidence about her examination of the complainant on the Sunday. In her report she noted that the complainant, "was looking distressed and ashamed." The doctor's conclusion was that no sexual penetration had occurred. The complainant was still a virgin.

[31] The final witness for the Crown was the Police Investigating Officer who produced the "Record of Interview" and other documentation. In his unsworn statement to the police dated 20 March 2004, the accused denied all the allegations the complainant had made against him. He said that he had been at Tofoa on the Saturday morning and then Vaikaloa had told him to take a tin of food scraps back to her house at Longolongo to feed the pigs. He said that back at Longolongo he went into Vaikaloa's house to get some water to drink and he noted Viliami and Sione were drinking liquor and Sione was pulling the complainant around. He said that the two boys asked him if there was cooked food at Tofoa and when he replied, "yes", they then disappeared and he went back to his own house. The police officer asked the accused at that point whether the boys returned home again. He replied, "yes, they came back and entered the house. I did not know what happened inside the house but I heard (the complainant) saying release me." The accused said that he then went to sleep in his house.

[32] The accused elected to give evidence. He denied Vaikaloa's claim that he had slept at his own house on her allotment on the Friday night and had then driven her and others over to Tofoa on the Saturday morning. He said that he had been at the funeral house at Tofoa since Vaikaloa's father had died on the Tuesday and the only reason he went back to Longolongo on the Saturday was because Vaikaloa had asked him to take the food scraps back for the pigs. The accused told the court that when he entered Vaikaloa's house on the Saturday he saw Viliami, Sione and the complainant sitting in the living room. He noticed a liquor bottle and the asked the boys if they were drinking. He then went back to his house, took off all his clothes apart from his T-shirt and after putting a towel around him he lay down to sleep.

[33] The accused was asked in evidence in chief whether he knew what was going on in the main house. He said that the entrance door to his own home opened straight on to Vaikaloa's house and he could see down the hallway to the livingroom. He said:

"I saw Sione. He was pulling (the complainant) towards a bedroom. When I saw this I did not care because to me, and this is the truth, the girl joined the drinks and therefore I didn't care. I go to sleep."

He was then asked whether there was any time that Sione and Viliami left Vaikaloa's house and he replied:

"Yes, when I was lying down I was going to sleep. I hadn't slept at that time. I heard them saying goodbye, they were leaving. Approximately after five or 10 minutes later they returned back and they entered the house.

Q. And was there any time they said goodbye to you after they left this time?
A. No.

Q. So what happened after they returned after they left the first time?
A. When they returned, Viliami asked me whether they had some food at Tofoa and I said, "yes, we just prepared the umu" and he wanted to go and get some food from there and after that I went to sleep.

Q. Could you explain to the court whether you heard (the complainant) say something or Sione or Viliami say something while they were inside the house?
A. Yes, while I was in my little house lying down I heard (the complainant) telling Sione to let go of her hand.

Q. You know if Sione and Viliami left the house after you told them that you had food at Tofoa?
A. After Viliami asked me about the food in my house I then went to sleep and when they went out of my house I went to sleep and I didn't know the time that they left."

[34] The accused carried on and told the court that the next thing he knew was that his partner and his sister woke him up and asked him what was a reason for him sleeping like that. He responded that it was because he was tired. He then took a shower and he slept at his own home on the Saturday night. In other words, as I understand the sequence of events he described, the accused claims to have been asleep in his own house at the time the alleged offence was committed.

[35] Referring to the following morning, the accused said:

"I woke up on Sunday morning, put on my clothes and then I went to Tofoa to the funeral

Q. What happened when you arrived at Tofoa?
A. When I arrived at Tofoa, I was collecting rocks for the umu and when Vaikaloa came over that was the first time for me to know about this. She asked me what I had done to (the complainant).

Q. What did Vaikaloa ask you?
A. The reason why I raped (the complainant).

Q. What was your answer?
A. I was surprised as that was the first time I learned about it. I said the girl is lying. I didn't do something like that to her."

The law

[36] It is a crime to attempt to commit a crime even if, for whatever reason, the attempt is unsuccessful. To prove the crime of attempted rape the Crown must establish, to the criminal standard of proof which is beyond reasonable doubt, two essential elements. First, that the accused formed an intention to commit the crime of rape. Secondly, that the accused did some act for the purpose of actually carrying that intention into effect. Both factors are, of course, important but it is the second element that always requires particular careful consideration. Acts that are part of just thinking about committing rape or preparation for making the attempt to commit rape are not sufficient.

[37] The learned authors of Blackstone's Criminal Practice (2006) state (83.12):

"The mental element in attempted rape is the same as that required for the full offence, namely an intent to have sexual intercourse and the absence of reasonable belief in consent. It is not necessary to prove that the accused had gone so far as to attempt physical penetration of the vagina."

Submissions

[38] In his written submissions, Mr Tu'utafaiva examined all the evidence in his usual thorough and detailed manner. His principal submissions were accurately summarised by Mr Kefu in his response in these terms:

"(a) The complainant's evidence was not credible based on certain inconsistencies; and

(b) The Crown had failed to prove beyond reasonable doubt that the series of acts had not been broken by a determination by the defendant not to proceed with the offence he allegedly attempted to commit.

[39] Perhaps the most significant apparent inconsistency in the complainant's evidence highlighted by Mr Tu'utafaiva related to her description of what happened in the bedroom. As earlier noted, the complainant's statement to the police was not produced in evidence but she was closely cross-examined on that part of her unsworn statement in which she apparently said that the accused inserted his penis into her vagina and copulated three times and it was painful. Mr Tu'utafaiva placed considerable stress on the difference between that statement and her sworn evidence in court which appears at paragraphs [13] and [19]. Defence counsel also highlighted the doctor's evidence that there was no evidence of any penetration of the vagina.

[40] Mr Tu'utafaiva also stressed the fact that, according to Luseane, the complainant told her that while they were still struggling, the telephone rang and Vea stood up and walked away but in her sworn testimony the complainant said that when Vaikaloa telephoned on the second occasion the incident was over and she was outside in the act of putting on her shoes before running home.

[41] Mr Tu'utafaiva's other principal submission related to the failure of the complainant to attempt to escape from the alleged attempted rape or to run away after the incident. He also stressed the failure of the complainant to complain at the first opportunity either to the accused's partner when she returned home or to one of the neighbours or to her own parents when she later went home to change her T-shirt.

[42] In response Mr Kefu highlighted the complainant's young age and the fact that she would have been confused and emotionally upset after very nearly being raped. The prosecutor submitted:

"It is unlikely the complainant appreciated the elements of rape. It is likely that at the time of the incident the complainant would equate being forced down half-naked on a mattress by a semi-naked man and rubbing his penis on her genitalia as rape.

Moreover, the pain that she felt at the time of the incident would be the erect penis being put against her sensitive genitalia area that was in its first day of menstruation.

What is important is her sworn evidence that is before the court. She clearly stated that the accused told her to tear her legs apart, but she did not do so, and they were struggling. He put his mouth over hers and he was trying to insert his penis in her vagina. It did not go in. He told her to spread her legs more. She said no. She looked up and Vea put saliva on his penis and also on her vagina. When he laid down she got up and sat up -- then the accused got up and went out with a towel."

[43] In relation to the failure of the complainant to run away or complain earlier, Mr Kefu referred to the complainant 's evidence that she had locked the second door in the living room before she sat down to study and he submitted that after the incident the accused was no longer a threat because he had returned to his own home and his de facto partner had also returned. The prosecutor made the additional submission that, on the evidence, Vaikaloa was clearly a second mother to the complainant and it was understandable in all the circumstances that she was the only person that the complainant wanted to talk to about what had happened.

Conclusions

[44] I say at once that I did not find the accused a credible witness and I reject his version of the events on the day of the incident. I accept that he took Vaikaloa to Tofoa on the Saturday morning in his vehicle and then around lunchtime he returned back to Vaikaloa' house at Longolongo in the knowledge that the complainant would have been home alone. I accept the complainant's sworn evidence about the events that then followed. I found her to be a careful, thoughtful witness who was doing her best to recount for the court the events as they had happened. As already noted, she was subjected to a painstaking, very lengthy cross-examination but her evidence on oath remained unshaken. I have no doubt that having to relive the sordid experience over again in a public setting and having to be cross-examined on the most intimate details of her attempted rape would have been a traumatic ordeal for the young complainant in every sense of the term. Against a skilled cross examiner, she handled herself with distinction.

[44] I have considered the apparent inconsistencies in the complainant's evidence referred to by defence counsel in his submissions but they relate to the issue of penetration and penetration is not an essential element in the crime of attempted rape. In the end, I was left in no doubt at all that the accused had attempted to rape the complainant in the manner alleged. I accept Crown counsel's submissions about the complainant's likely understanding of the concept of rape at the time of the offence. At one point during her cross-examination when defence counsel was criticising her because she had told Vaikaloa that she had been raped, the court asked the complainant about her understanding of the word "rape" at the time of the incident. She replied, "what I meant by that, I was referring to what he did to me."

[45] Precisely why the accused did not complete the act of rape is not clear from the record. Mr Tu'utafaiva highlighted the fact more than once that his client is a big well built man whereas the complainant is a slim teenager and if the accused had intended to rape her then he would easily have done so. Mr Kefu seemed to accept that there was some force in that proposition. He observed that why the accused did not complete the act is something only the accused can answer. The prosecutor's comment is, of course, correct. I suspect that the accused may have been put off completing the act by the complainant's continuing struggle and her ongoing emotional reaction to her ordeal. The fact that he eventually desisted from trying to insert his penis into the complainant's vagina, however, does not diminish in any way the crucial element in the offence of attempted rape, namely, that the accused intended to have sexual intercourse with the complainant in the knowledge that she did not consent and he did all the acts necessary for the purpose of carrying that intention into effect apart from physically penetrating her vagina.

[46] I do not accept that the attempted rape was disrupted by the phone call from Vaikaloa as Luseane claimed the complainant had told her. I accept the complainant's sworn evidence about the second phone call from Vaikaloa. I can only conclude that Luseane misunderstood what the complainant was trying to explain to her about the exact sequence of events.

[47] Finally, I do not find it surprising that the complainant did not attempt to escape or to complain any earlier than she did. As Mr Tu'utafaiva correctly observed, the accused is indeed a big, well built man. The complainant would have easily been subdued and most likely injured had she tried to escape his clutches while he was pulling her into the bedroom. In relation to the failure of the complainant to later complain to the accused's de facto partner or a neighbour or even to her own parents, again, I do not find her decision to wait for Vaikaloa at all suprising. I accept Crown Counsel's description of Vaikaloa as a second mother to the complainant. It was apparent from the evidence that the complainant would have been emotionally upset and totally bewildered over the horrific experience she had just endured and Vaikaloa was the only person she was prepared to complain to. Even then, as the evidence showed, the complainant had difficulty speaking to Vaikaloa about her ordeal.

[48] Although it is true that the complainant carried on sweeping the leaves outside Vaikaloa's home after the incident, she was aware at that stage that the accused's de facto partner had returned and was in the house with him. As soon as the accused's partner left the house again, the complainant ran to put on her shoes intending to run to her home. It was at that precise point in time that Vaikaloa made her second telephone call.

[49] I accept the reason the complainant gave in court for her reluctance to tell her parents about what had happened when she went home to change her T-shirt. Quite simply, she feared her father's reaction and, in the circumstances, her fear was understandable.

[50] There is one other aspect of the case I should comment on in relation to defence counsel's criticism of the complainant's failure to complain to anyone other than Vaikaloa. It is a point referred to, albeit briefly, by the Chief Justice in the recent unreported decision of R v Lasike CR 99/06 (judgment dated 28 July 2006) where his Honour spoke of the need to take "into account Tongan sensibilities in talking about rape." I fully endorse that observation. I do not underestimate for a moment the embarrassment and humiliation the complainant would have experienced in having to describe to anyone the things that the accused did to her.

Order

[51] For the foregoing reasons which, regretfully, have taken longer to explain than I would otherwise have liked, I find that the Crown has proved beyond reasonable doubt all the essential elements of the charge of attempted rape and the accused is convicted accordingly.

NUKU'ALOFA: 8 August 2006

JUDGE