Rex v Latuselu [2010] TOSC 1; CR 121-2009 (24 February 2010)

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

NO. CR. 121 of 2009

REX

V

TONGA LATUSELU

BEFORE THE HON. CHIEF JUSTICE FORD

Counsel: Ms Finau and Ms Puloka for the Crown and Mr Fifita for the accused

Dates of hearing: 20, 22, 25 and 26 January 2010.
Date of written submissions: 5 and 12 February 2010.
Date of Judgment: 24 February 2010.

JUDGMENT

The charges

[1] The 20-year-old accused is charged with one count of rape and one count of indecent assault contrary to sections 118(1) (a) and 124(1) respectively of the Criminal Offences Act (Cap 18). The rape count alleges that on or about 5 May 2009 at Havelu the accused carnally knew the complainant against her will. The indecent assault count alleges that at the same time and place he committed an indecent assault on the complainant by fondling her breasts.

[2] Although there is no onus on an accused person to give or call evidence or to prove anything, the accused in this case did give evidence and called a witness on his behalf. Whilst there was a sharp conflict of evidence between the complainant and the accused on certain important matters, the basic facts were not in dispute. The accused admitted having sexual intercourse with the complainant on the night and at the place alleged but he contended that it was entirely consensual. Consensual sexual intercourse does not, of course, amount to rape.

The Crown case

[3] The 23-year-old complainant told the court that she is unmarried and lives at Puke. Back in May 2009 she was staying at her mother's sister's home at Havelu. The house is a double storey building. It is situated down a pathway leading off a side road which runs past the northern entrance to Vaiola Hospital. On the corner of the side road and the pathway, directly across the road from the hospital, there is a Chinese store. The pathway itself is a pedestrian walkway leading eventually to the main entrance to Tailulu College. At one point it narrows to a width estimated to be only 3 - 6 feet. On the eastern side of the pathway at that point is the entrance gate to the aunt's double storey house. On the western side of the pathway at that same point is the South East corner of a stone fence which constitutes the boundary fence for the Tailulu College rugby field.

[4] It emerged in evidence that at the relevant time the double storey house was occupied by the complainant, her aunt, the aunt's husband and some (probably three) children although I am bound to say that the evidence relating to the occupants of the house and their movements on the night in question was disappointingly vague. The children were said to be the aunt's daughter and her husband's nephews. Another occupant of the house was 23-year-old Polini To'a who was the complainant's cousin. It is not clear from the evidence exactly why the complainant and Polini were staying at their aunt's home in Havelu. Polini had been living in the house since February 2009. She has a young son but it appears that normally she resides with her parents at Houma. The double storey house is described in the police diagram as Polini To'a's residence but for ease of reference and the sake of accuracy I shall on most occasions simply refer to it in this judgment as the "aunt's house".

[5] The complainant told the court that on the evening of Tuesday 5 May 2009 she walked along the pathway to the Chinese store to purchase a phonecard. When she came out of the shop she saw the accused who whistled at her and told her to wait for him. She waited and asked him what he wanted. He asked her to go with him and he pointed to the corner of the Tailulu College stone fence. He then walked over and grabbed her hand and told her to go with him. The complainant said that she asked the accused where they were going but she could not understand his answer. She asked him to let her go because she did not consent to his holding her by the hand and the accused then released her. The accused then climbed over the fence and the complainant followed. She said that while she was sitting on top of the fence the accused grabbed her by the collar. She went on to explain how once she was inside the Tailulu College grounds the accused grabbed her around the shoulder and told her to walk with him and they walked across the rugby field to the band house which was adjacent to the main college building. A diagram, drawn up by a police officer, which was produced in evidence showed the distance from the corner where they had climbed over the stone fence to the band house at 400 feet.

[6] The complainant said that when they reached the band house they sat down on the open deck in front of the building and the accused spread out on the wooden deck a sarong he had been wearing. At the same time he held onto the complainant with his other hand to prevent her running away. He then carried the complainant from where she had been sitting and lay her down on the sarong and proceeded to take off her pants. The complainant explained that she struggled and tried to make him let her go because by then she knew what he was thinking. While she was lying down, the accused knelt in front of her and removed her pants from one leg only. He then used both his legs to spread her legs apart and lay down upon her inserting his penis into her vagina. He had earlier removed his own clothing. The complainant said that the accused copulated in her vagina "many times" over a period of approximately half an hour.

[7] Crown counsel asked the complainant whether the accused had inserted anything else into her vagina apart from his penis. The question was relevant because of an observation made by the doctor in his medical report which I will refer to shortly. The complainant said that she did not know because she was fatigued but she did make the comment that the accused "was rough when he was copulating." The complainant said that she was crying and the accused asked her why she was crying but she did not reply. She told the court that she cried, "because I was in pain because of what he had done to me." She said that the accused had taken away her virginity. The complainant said that when she tried to sit up afterwards she fell back again but then she was able to steady herself by grabbing hold of a pole which supported part of the roof over the deck of the band house and she was able to replace her clothing.

[8] The complainant then proceeded to walk over to the main entrance to Tailulu College. She said that the accused walked in front of her and at the college gate they parted and she did not see him again. She then walked along the pathway adjacent to the stone fence which ran along the boundary of the rugby field eventually arriving back at the the corner of the stone fence opposite the aunt's house where it all began. On the way the complainant met the accused's brother and his friends but she did not say anything to them. When she arrived at the corner of the stone fence opposite her aunt's house she took her mobile phone from the pocket of her pants and telephoned her father so that he could come and take her to the hospital. She said she asked her father to take her to hospital because she was encountering some problems. When her father arrived on the scene the complainant was lying down on the ground by the corner of the Tailulu College stone fence. She said that she was weak and bleeding. Her father carried her to his vehicle and took her to hospital where she was placed in the emergency unit. She said that her father had bought diapers to try and contain the bleeding and that the hospital nurses and doctors attended her but she continued to bleed heavily. The complainant told the court that she remained in hospital for 1 1/2 weeks and she explained the treatment she received during that period which included stitches in the vaginal area and blood transfusions.

[9] Apart from challenging the complainant's evidence that she had not consented to having sexual intercourse with the accused, Mr Fifita cross-examined her on two particular issues which proved to be of some significance. First, counsel put it to the complainant that at the point in time when the accused first asked her if she would go with him, she had told him to wait while she dropped off her phonecard and after dropping her phonecard at her aunt's house she came back outside to speak with the accused. The complainant denied that proposition. Secondly, Mr Fifita put it to the complainant that after the incident the accused walked her back to her aunt's house and when they reached the door a woman called out to the complainant from the upstairs verandah hurry up and get inside asking her where she had been. Again, the complainant denied that proposition. She was asked why she did not complain to Polini. She replied that Polini was already asleep and she had tried unsuccessfully to wake the occupants up by calling out from the front gate. She said that she was standing by the front gate but the gate was locked.

[10] One other point that counsel put to the complainant in cross-examination was that the accused had not forced her to climb over the stone fence into the Tailulu College grounds because he had climbed over the fence first and at that point she had the opportunity to run away had she so desired (estimates as to the height of the fence varied between 3 -- 4 feet). Initially, the complainant said that he had grabbed her by the throat and took her but when the point was pressed by the court she admitted that she could have run back to her aunt's house at that stage if she had wanted to. In her evidence in chief, the complainant gave no indication as to the time of night when the various events she described took place but in cross-examination it was put to her that she had been confronted by the accused at 10 pm on the evening in question and the complainant agreed with that proposition. The complainant also agreed in cross-examination that when they initially arrived at the stone fence the accused had attempted to put his arm around her arm and his arm brushed against her breast. She told him to stop and he stopped. That incident formed the basis for the indecent assault charge.

[11] The Crown then called the complainant's 46 year-old father, Sione. He told the court that he worked for Digicel but he had been working for some 20 years as an informant for the Tongan police. When asked by the court to clarify his status with the police, the witness explained that he had received some training from the FBI when he lived in the United States and when he returned to Tonga he tried unsuccessfully to obtain a private licence. He then decided to work as a police informer on a voluntary basis and he had done so for the last 20 years. Sione said that the complainant was his daughter by his first marriage. He and his second wife were at home at Veitongo on the evening of 5 May 2009 and he received a call from the complainant telling him that something had happened to her. In cross-examination the witness said that he had received the phone call between 9 p.m. and 9:15 p.m. He estimated that it took 15 minutes for he and his wife to drive to the aunt's house where he found his daughter lying by the corner of the stone fence at Tailulu College. He asked her what had happened but he said that before she could respond he could tell what had happened just by looking at her. His wife asked for money to buy some diapers and after his wife had applied the diapers to stem the flow of blood he placed his daughter in his car and took her across the road to Vaiola Hospital.

[12] The complainant's father then telephoned Sergeant Vi at the police station and reported to him what had happened according to what his daughter had by then told him. He asked the police officer if they would go and search for the accused because his daughter had given him the accused's name. He told the court that the officer said that it was very late at night and they could not arrest the accused until 5 a.m. and so the witness carried out his own inquiries. Eventually, at around 2 a.m., he found the accused sleeping on the deck at his parent's home. He told the court that at that point, in his anger, he was going to do something to the accused but then he looked in the living room and he saw the accused's mother and two sisters asleep and, as a witness put it, "suddenly all my anger melted away and I went back to the hospital." The accused was eventually arrested at approximately 5 a.m. that same day. The accused's father then went and checked out the band house where the incident happened and found blood on the wooden deck. He also noted that at the spot where his daughter had been lying on the ground waiting for him by the stone fence there was a patch of wetness and blood.

[13] In his examination in chief, the complainant's father was asked to describe what his daughter had told him about the incident. He replied that she had told him that she had gone to the store to buy a phonecard and on her way back from the store she was surprised to see the accused standing by the stone fence. The accused asked her for some money and she told him that she did not have any. The accused then held her by the throat with his right hand and with his left hand he took her to the band house at Tailulu College. The accused told her not to say anything or he would kill her or break her leg. The father asked her why she had not called anyone and the complainant said that she had been so afraid of the accused and he was stronger than she was. She said that at the band house the accused "forced her" and then he walked off into the dark and disappeared. She got up on her own and went to the spot where her father found her by the stone fence opposite the aunt's house. The witness said he asked his daughter if she had called out for anyone in the aunt's house. She responded that she had called out but no one woke up.

[14] In cross-examination, the witness estimated that the aunt's house was only six or seven meters away from the stone fence where he picked up his daughter after the incident. He said there was a light on in the kitchen but they knocked on the door and there was no one home and so he took his daughter straight to the hospital. Counsel put it to the witness that the complainant had made no mention in her evidence of the accused having asked for money but the witness stood by his evidence on that point.

[15] The Crown then called evidence from the doctor who examined the complainant at Vaiola Hospital. He produced a medical report he had written up on 6 May 2009 in which he confirmed his findings that sexual intercourse had taken place resulting in what he described as a "major vaginal tear near the cervix" which he noted was "probably due to a hard object (not erected penis)". In his examination in chief, however, the doctor explained that he had previously come across cases involving injuries of the type suffered by the complainant which had resulted from consensual sexual intercourse and he made specific reference to one such case where a bride had been brought into hospital after intercourse on her wedding night suffering from very similar injuries with consequent loss of blood. The doctor was not challenged on this evidence.

Police evidence

[16] Apart from the police photographer, Constable Manu, the Crown called evidence from Sergeant Vi who produced a written record of interview taken from the accused, a statement of charges form and a voluntary statement. The admissibility of these documents was challenged by Mr Fifita on the voir dire as having been obtained by inducement, threat or promise contrary to section 21 of the Evidence Act (Cap 15). After hearing evidence I ruled that the documentation in question was not excluded by virtue of section 21 but what the accused was really complaining about was that he had not given the answers recorded against some of the officer's questions. The officer denied that that was the case but the procedure he used for recording his interview with the accused was far from satisfactory. He told the court that he had given the accused the option of writing down his own answers to the questions he was going to be asked or the officer could write the answers that the accused would give. The accused chose the latter option. The record of interview consisted of 54 questions and answers. The evidence was that the officer wrote down all 54 questions and answers making an asterisk sign at the end of each answer. Then at the end of the interview the complete record of interview was handed to the accused and he was asked to sign each spot that had been marked with an asterisk. The officer said that he had asked the accused to read the questions and answers before he signed but the accused denied that allegation and said that the officer had simply told him to hurry up and sign where he had marked because he was in a hurry as he had other work to do.

[17] Sergeant Vi was asked whether he had ever been instructed as to how to conduct a record an interview with an accused person and whether any such instructions included the practice of marking an asterisk at the various points the accused was required to sign. The officer said that he had received instructions but it was his own idea to insert the asterisks. The officer quite frankly conceded that such a practice will invariably expose him to the criticism that the accused was not being invited to read the question and answer before he signed but all he was required to do was sign at each point the officer had marked with an asterisk. On the other hand, if the accused had been handed the record of interview and simply told to read it through and sign after each of his answers, that would be a reasonable indication that the accused had, in fact, read what he was signing for. Ideally, of course, in this day and age police interviews should be conducted with the assistance of a video camera or some other similar visual recording device. Video equipment is relatively cheap and, in any event, expenditure on such devices would be amply justified by reason of the saving in time in avoiding constant voir dire arguments in criminal cases coming before the court.

[18] Against that background, I have decided that the justice of the case requires me, pursuant to the proviso to section 22 of the Evidence Act, to exclude all the answers prejudicial to the accused's defence. I am not satisfied beyond reasonable doubt that the accused did, in fact, give the answers recorded against those questions. Having also heard all of the evidence relating to the accused's written answers in the statement of charges form and voluntary statement, I have decided in the exercise of my discretion under the proviso to section 22 to refuse to admit that documentary evidence as well. Even though those very brief statements were written by the accused himself, I accept his evidence that the officer had told him to write down some apologetic statements. While there was no element of force or coercion involved, and the officer no doubt thought that he was being helpful, I have concluded that it is unsafe to rely on either document. In conclusion on this point, I strongly urge police investigating officers to discontinue the practice of using asterisks in the manner described above in written police interviews.

[19] In cross-examination Sergeant Vi did concede to Mr Fifita that he had also taken a statement from the complainant and she had told him that when the accused had initially stopped her when she was walking back from the shop and asked if they could talk, she had told him that she first had to go home and drop off her phonecard.

The defence case

[20] Mr Fifita subpoenaed the complainant's cousin, Polini To'a, to give evidence on behalf for the defence. She appeared to be a somewhat reluctant witness. Polini confirmed that she had been living in the aunt's house at Havelu along with the complainant and the others. She told the court that on the night of 5 May 2009 she had gone out at 7 p.m. to visit her parents at Houma returning at about 11 p.m.. Her aunt had gone to choir practice. It appeared from other evidence that the husband was out drinking kava and the complainant had been left looking after the children. The witness said that when she (Polini) returned to the aunt's house from Houma the complainant was inside the house but she did not say anything. Polini said that she then went to bed and when she did so the complainant was still awake. Then around midnight Polini was woken by her young son who was crying and she took him over the road to Vaiola Hospital. It turned out that the boy had a fever. She returned from the hospital at approximately 12:30 a.m.

[21] Polini said that she was not aware at that point that anything had happened to the complainant but later in the morning "just before daylight" the complainant's father came and woke them up and told them what had happened and explained that the complainant was still at the hospital. Polini was asked by Mr Fifita whether she had noticed anything strange going on in the house and she replied, "yes, there was blood in the bathroom." She was asked when she first noticed the blood and she said that she noticed it after she returned from the hospital. She was asked if she had noticed blood anywhere else in the house and she replied, "yes, in the living room." The witness agreed in cross-examination that the blood could have come from any occupant in the house but on re-examination she confirmed that no other occupant had suffered any type of injury. The witness confirmed that there was a considerable amount of blood and she cleaned it up. She also said that she had not noticed the blood prior to taking her son to the hospital.

[22] The accused then gave evidence. He said that he first met the complainant on the evening in question about 9 p.m.. He had asked her for some money but she told him she did not have any. He asked her if they could talk and as they approached the corner of the Tailulu College stone fence she told him to wait there while she took her phonecard into the aunt's house. When she came back outside the accused asked her if they could go to the band house at Tailulu to talk and she said, "yes". The accused said that he then jumped over the stone fence and the complainant followed him. At that point he put his arm around her shoulders but she told him to remove it which he did. They walked over to the band house and sat down on the verandah. He said that he took off the sarong he had been wearing and laid it out on the wooden deck. He then removed the complainant's pants (one leg only) and underwear and lay her down on the sarong and took off his own pants. He said that he asked her if she consented to them having sex and she replied, "yes". He said he copulated only once and he estimated that they spent about seven minutes having intercourse. He said that they both then put their clothes back on and he walked her to the gate of the aunt's house. He noted that there was a kitchen light on in the house and as he turned to leave to go to his two friends who were standing around he heard a woman from the aunt's house yell out to the complainant to hurry up and come inside. The voice was coming from upstairs. The accused said that at no stage did the complainant resist what was taking place and he reaffirmed in cross-examination that he had specifically asked her if she consented to having intercourse and the complainant had responded, "yes".

[23] In cross-examination, the accused admitted that before he met up with the complainant on the evening in question he had been sniffing what he described as "a small amount" of glue. He had made the same admission to the police interviewing officer. He was asked by the officer where he had acquired the ADOS he had been sniffing and he replied, "I was walking after work and there were some youths who were sniffing ADOS by the roadside at Fanga by a mango tree at the house opposite Nova's store and I took one can home with me." It was put to the accused that he was "on a high" but he denied that he was on a high when he met up with the complainant. The accused said that he was unaware that the complainant had been bleeding until after his arrest when he noticed blood on his own clothing at the police station. The prosecutor put it to the accused that the complainant had been crying during intercourse and he agreed. The prosecutor continued:

Q. "Why?

A. I thought she was crying because she loved me.

Q. Why?

A. Because I knew (first name of complainant) liked me.

Q. I put it to you that she was crying because she was not consenting?

A. If she was not consenting she would have sworn at me or reacted in some way but she never.

The indecent assault count

[24] I turn now to consider the indecent assault charge. The elements which the Crown must prove in order to establish a charge of indecent assault were summarised in R v Mafua [2003] Tonga LR 61, 63. First, there must be an assault on the complainant, which is any intentional application of force. Secondly, the assault must be indecent according to commonly accepted community standards. Finally, the Crown must establish that the complainant did not consent to what occurred and that the accused did not honestly believe that the complainant consented. The onus lies on the Crown to prove all these elements of the charge beyond reasonable doubt.

[25] There is an important additional element which is applicable in cases where the actions that are alleged to have made up the indecent assault are equivocal. That situation was referred to in R v Filise [2001] Tonga LR 312, 315 where I pointed out that in most indecent assault cases the factual circumstances of the alleged assault are inherently indecent but that is not always the case and in situations where there is ambiguity it is necessary to then go on to consider the accused's motive or intent. The Crown must be able to establish that the accused knew that the action complained of was indecent and that he intended to do it. The assault is an indecent assault only if the offender has an indecent purpose and in the absence of such a purpose the only offence that has been committed is a common assault.

[26] The striking feature about the alleged indecent assault in the present case is that it rated barely a mention in the complainant's examination in chief. In her initial evidence about the events leading up to the alleged rape she told how the complainant, at various stages, held her by the hand and by the collar but in relation to the incident where, in the words of the indictment, he allegedly "fondled her breasts" all she said was: " I came off the fence onto the ground and then he grabbed me by the collar. He grabbed me around the shoulder. He told me to walk with him to the band house. I walked with him." She said nothing at all in that passage about the accused having fondled her breasts. Then, towards the end of her examination in chief, just after she had produced an exhibit, this exchange took place:

"When the accused took me he touched me on the breast.

Q. How was he able to do that?

A. When I was sitting on the fence his hand touched my breast. I told him to remove his hand and he did remove his hand.

Q. Did you consent?

A. No."

[27] In cross-examination it was put to the complainant that the accused would say in evidence that when they were at the fence he put his arm around her and his arm brushed her breast. She then told him to stop and he stopped. The complainant agreed that that is what happened.

[28] It is significant that at no stage did the complainant allege that the accused had "fondled her breasts" as alleged in the indictment and, on the evidence I am not satisfied that the accused had an indecent purpose in relation to what had happened at that point in time. Although I have jurisdiction to reduce the charge to the lesser offence of common assault, for reasons which will become apparent, I am not prepared to take that option.

The count of rape

[29] Turning to the main charge of rape, there are a number of inconsistencies in the complainant's version of events which, in themselves, give rise to some disquiet but when taken collectively, lead inexorably to only one inevitable conclusion. I will deal with each in turn. First, however, I should record that there is one conclusive piece of evidence relevant to the timing of the various events which, in the absence of any other such evidence, can safely be used as a reliable starting point in determining the sequence of events. The evidence I refer to is that the records show, and it is accepted by both counsel, that the complainant was admitted to Vaiola Hospital at 11 p.m. on the night in question.

Dropping off the phonecard

[30] The accused told the court that when they were by the Tailulu College stone fence and he asked the complainant if they could talk, she said that she first wanted to take her phonecard home, which she did, and then when she returned about five minutes later they proceeded to talk alongside the stone fence. When that proposition was put to the complainant in cross-examination, she denied having dropped the phonecard off at the aunt's house but Sergeant Vi confirmed that when he took the initial complaint from the complainant she had, indeed, told him that she had gone home and dropped off her phonecard. The accused was not challenged in relation to his evidence regarding the dropping off of the phonecard. I conclude that the complainant was not being truthful in relation to this part of her evidence.

The aftermath

[31] The complainant said in evidence that after the rape the accused went off into the night and she walked home alone to the aunt's house. She could not get in through the front gate because it was locked. She called out and no one answered. She said that all the lights were out. She also told the court that Polini was asleep. The accused, on the other hand, said in his evidence that he walked all the way back to the aunt's house with the complainant and he noticed a light on in the kitchen. When they arrived at the gate to the house, he turned and walked back to his friends and as he was leaving he heard a woman's voice calling out to the complainant to hurry up and get inside. He said that the complainant "was fine" when he took her home.

[32] In cross-examination the accused was asked who the lady was who called out and where was she standing. He told the court that he did not know who the woman was but she was standing on the verandah of the upper floor of the aunt's house. The evidence the accused gave on this point had quite properly been put to the complainant in cross-examination by Mr Fifita and it was consistent with what the accused had told the police. The Crown, in other words, had ample opportunity to call evidence in rebuttal from the aunt, who was the only other woman in the house apart from Polini, but no such evidence was called.

[33] The complainant's father in cross-examination said that when he arrived at the scene at approximately 9:15 p.m. a light was on in the kitchen of the aunt's house and when he "knocked on the door" there was no one home. The father's evidence that there was a light on in the kitchen confirms the accused's evidence on this point and contradicts that given by the complainant who said that there were no lights on. The father's evidence that he was able to knock on the door of the house is also inconsistent with that given by the complainant, namely, that the gate was locked and she was unable to get into the aunt's house. Another question arising from the complainant's evidence is how could she say that Polini was asleep, which she did state, if she had been unable to get inside the house.

[34] Undoubtedly, the key witness for the defence was Polini To'a. Although, as previously noted, she was called by the defence and appeared to be a somewhat reluctant witness, her evidence, except as to the timing, seemed to be both credible and reliable. There were two significant features to her evidence. First, she said that when she arrived back at the aunt's house at about 11 p.m. after the visit to her parents at Houma, the complainant was inside the house and she said nothing at all about an alleged rape or about meeting up with the accused earlier in the evening. The time estimate of 11 p.m. is clearly incorrect because the complainant was admitted to hospital at 11 p.m. but, even if the time had been closer to 9:30 p.m. or 10 p.m., the obvious question calling for an answer is what was the complainant doing inside the house when her evidence to the court was that after the incident she was unable to get inside the aunt's house because the front gate was locked and so she had sat down on the ground by the corner of the stone fence to Tailulu College and waited for her father to arrive? The only answer Crown counsel could proffer, in her usual comprehensive and thorough submissions, was that, "it could not have been the complainant who was at the witness's home at 11 p.m." That submission is undoubtedly correct but, putting to one side the incorrect time of 11 p.m., it belies the real issue, namely, that Polini could not conceivably have mistaken the complainant for someone else. In other words, contrary to what she had told the court, the complainant had been able to enter the aunt's house after the alleged rape.

[35] Then there is the most telling evidence of all, namely, the significant quantities of blood found by Polini in the bathroom and the lounge of the aunt's house. I have no doubt at all that that blood came from the complainant and it would have been similar in nature to the blood later observed by the father and the police on the ground by the corner of the Tailulu College stone fence. Even Crown counsel in her comprehensive submissions was unable to offer any explanation for the quantities of blood found inside the house. To my mind, there can only be one explanation. The complainant lied in telling the court that she was unable to get back into the aunt's house after the incident.

[36] With clear evidence that the complainant had lied to the court about something that happened before the alleged rape, i.e. dropping the phonecard off at her home and then lied about something that happened after the alleged rape, i.e. not being able to get back into the aunt's house, there must be more than a reasonable doubt as to whether the plaintiff told the truth about the alleged rape itself.

Conclusions

[37] Although it is not up to the court to piece together exactly what happened, it appears the most likely scenario is that the complainant agreed to have, and did have, consensual sex with the accused in the band house in the manner described by the accused. She then went back to the aunt's house and was still inside the house when Polini arrived home from Houma. She made no complaint to Polini about any alleged rape. Polini went to bed and sometime after that the complainant started bleeding from the vaginal area and quantities of blood spilled onto the bathroom and lounge room floors. The complainant, at that point, no doubt feared that if she were to go to hospital her father, within a short time, would find out the cause of the bleeding and she would then have to go through the ordeal of explaining to him how she had lost her virginity. The father, with his unusual police involvement over a period of many years, appeared to be a rather dominating personality and something of a disciplinarian. In desperation, therefore, the complainant decided to make up the rape story and went back outside the house where she stage managed the end bit which resulted in the arrival of her father on the scene and her immediate admission to Vaiola Hospital.

[38] The time estimates given by the father of 9:00 p.m. -- 9:15 p.m. for his receiving the call from the complainant's cellphone are clearly wrong because it would have taken only a very short time for him to arrive on the scene and then take the complainant across the road to Vaiola. Likewise, the time estimate of 11:00 p.m. given by Polini must also be incorrect. As indicated above, Polini probably arrived home between 9:30 p.m. and 10 p.m. and the father would have arrived on the scene at approximately 10:45 p.m.

[39] Even if that scenario is not entirely accurate, I have been left in no doubt at all that there was no rape and that what happened at the band house on the night in question was consensual sexual intercourse. The accused is acquitted and discharged accordingly on both counts.

NUKU'ALOFA: 24 FEBRUARY 2010.

CHIEF JUSTICE