Rex v Tafuna [2007] TOSC 34; CR 215-6 of 2005 (21 September 2007)

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

NO. CR.215-6 of 2005

REX

-V-

1. SIONE ‘ATA TAFUNA
2. VILIAMI TAFUNA
   

BEFORE THE HON. JUSTICE ANDREW

Counsel:
Mr Sisifa for the Crown and
Mr Tu’utafaiva for the Accused.

Dates of Hearing: 13 & 14 September 2007.
Date of judgment: 21 September 2007.

JUDGMENT

Both accused are charged with the offence of rape contrary to s.118(1) of the Criminal Offences Act. Those two charges on different days, involve the one complainant.

In the case of the 1st accused SIONE ‘ATA TAFUNA the particulars alleged are as follows:

"on an unknown date in the month of March 2005, at NIUTOUA, you carnally knew LATU VEHIKITE, being aware that she is feeble minded as to be incapable of giving consent or refusing consent."

The complainant said that she knew the accused Sione and she knew both of his parents whom she named. She says that on a Friday night he came to her home at NIUTOUA where he entered by climbing through a window and he said to her to come to the room and have sex. She says she told him to leave as her brother might come. She said, he undressed, lay on top of her and had sex. She said he had lifted up her dress. She was unable to describe what she meant by having sex, but said that it involved her ‘mouse’ indicating the lower part of her body and she said that it hurt. She again told him to leave as her brother might come and he did so she does not appear to have complained at this time.

She said the accused Viliami came to her home in the day time and entered through the open back door. She says she told him that if her brother came he was to jump over the fence. Then she said that in fact her brother had come and he ran away leaving his shoes and his bicycle at the house. She said that before that he had taken her to a room. She said he had taken off his clothes and had shown her ‘his mouse’. She said he had had sex with her, removing her clothes. When asked to describe what she meant by having sex she said that he had photo-copied on top of her. She said he had finished having sex when the van of her brother came and he ran away.

She said she had lodged a complaint against both accused as they had entered her home. She did at one stage describe rape as abuse and said that they had done it to her although she then reverted to the description of sex as being "photo copying".

In cross examination the complainant could not give her age but was well aware of who her family was and of all their names. She described how she knew what were good and bad things. She denied having told SIONE to have sex with her. She said she knew what a penis was i.e it was a mouse.

She agreed that the accused’s Sione’s penis did not go into her vagina. She said also that after she told him to stop, he did so. She also agreed that Viliami had not penetrated her and he also had stopped what he was doing when she told him to.

"S.118(1)(c) makes it an offence for anyone to carnally know any female when being aware that she is feeble minded, insane or is an idiot or imbecile as to be incapable of giving or refusing comment."

There is no psychiatric or medical evidence on this case. Firstly there is no medical evidence in relation to any act of sexual intercourse and there is no medical or psychiatric evidence as to the mental state of the complainant.

There is evidence from FINE MATEAKI MAFI who has been a teacher for 31 years, teaching amongst others, mentally disabled people at ‘OFA TUI ‘AMANAKI. She is acquainted with the complainant and taught her between 1978 – 1981.

She described the complainant as a very delightful going lady (which she is obviously is) and referred to her "developmental delay". Mrs Mafi has received practical training and has qualification in the education of disabled people.

Mrs LAVINIA SATINI has similar qualifications as Mrs Mafi and she runs the PETESAITA & ALONGA ADULT DISABLED CENTRE and has done so for many years. She is very experienced in the training care and education of persons with mental disabilities. She also has taught the complainant in the past. She describes the complainant in her report as ‘mentally disabled’. In her evidence she said "feeble minded" relates to "mentally disabled" and she referred to the complainant as being slow minded. She said she was feeble minded. She said she was feeble minded or slow minded in relation to the work which they have trained her to do.

All of this is practical evidence that the complainant may be "feeble minded" as used in S.118 although it is not qualified psychiatric evidence. There is however no evidence either practical, medical or psychiatric that the complainant would be incapable of giving consent or refusing consent. It did appear in evidence that she had some understanding of sexual matters and I think that she exhibited some understanding of the issues of choice in relation to sexual intercourse. But ultimately I think that that would require some expert psychiatric evidence before a conclusion could be reached beyond reasonable doubt as to whether the complaint could be said to be incapable of giving consent or refusing consent. That leaves me in doubt as to whether that element of the offence has been established.

I should also say that both accused were very young at the time of these alleged offences. The accused SIONE was 14 and VILIAMI was 13. In a written statement of charges form they were both asked if they had inserted their penis in the vagina of the complainant and also at the same time a charge of housebreaking was put to them. They both answered ‘It is true’ but it is not clear to which charge they were replying to. In a Record of Interview they replied to a question of why they there and replied it was because of rape and when asked whom they had raped they both said the complainant but said it was by consent. When asked how did they rape the complainant they said by having sex with her. Given the ages of the accused I am not convinced that they had a clear understanding of what sexual intercourse entailed and their answers that they ‘had sex’ does not satisfy me beyond reasonable doubt that that necessarily included penile penetration. There is no medical evidence. Little can be taken from the complainant as accurate. She said or described how it had hurt and also said that sexual intercourse had not taken place. Once she said that both accused had laid on top of her but that neither had penetrated her. She described sexual intercourse as an act of photo-copying which is some indication of her mental ability. Without there being medical evidence of sexual intercourse and given that the complainant cannot shine sufficient light on what really transpired I am not prepared to act on admissions which are duplicitous and open to doubt.

For all of there reasons I am not satisfied beyond reasonable doubt that the accused are guilty of the offence of rape and accordingly they are both found Not Guilty and discharged.

NUKU'ALOFA: 21 September 2007.

JUDGE