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Supreme Court of Tonga |
IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY
CR Case 69 of 2011
THE CROWN
V
TEVITA FAIOSO VAKE
BEFORE THE HON MR. JUSTICE SHUSTER
MISS E PETI FOR THE CROWN
MR FA'OTUSIA FOR THE ACCUSED
HEARING DATES: 24th 25th 28th NOVEMBER 2011
SUBMISSIONS BY: 12th DECEMBER 2011 @12.00
JUDGMENT: 18th JANUARY 2012 @14.00
JUDGMENT
[1] TEVITA FAIOSO VAKE - is the 48 year old accused in this case. The accused works as a canteen operator in a business he operates with his wife. They have five children of their marriage. Up to the date of the allegation of indecent assault, the family had the care of an adopted daughter the second complainant, in this case. As a result of a complaint made to the police on 11th August 2010 by the accused's eldest brother, the accused was charged with one count of incest, alleged against his natural daughter and one count of indecent assault alleged against his adopted daughter. These offences are contrary to sections 132[1] & 124[1] of the COA. In reply to the charges the accused stated, "I do not believe what I have been accused of, and it is not true." The accused claims he is innocent, and puts the prosecution to strict proof, as is his legal right.
[2] The complainant in count one, is the accused's biological daughter Hala'unga Vake who was born on 17/10/1987 hereafter known as the first complainant. The complainant in count two is the accused's adopted daughter Luce Vake, hereafter known as the second complainant.
[3] The particulars shown in the indictment in relation to the first count of incest, allege that on or about the month of June 2008, at Tofoa, the accused had unlawful carnal knowledge with the first complainant who to his knowledge was his biological daughter, and, at the time of the commission of this alleged offence, the first complainant was aged 21. This count in itself is a very serious allegation, if, it is proved
[4] The particulars alleged in the second count in the indictment in relation to the charge of indecent assault - allege that on or about the month of June 2008 at Tofoa, the accused indecently assaulted the second complainant who at that time was the accused's adopted daughter, by kissing her lips and her neck, without her consent. At the time of the commission of the alleged offence of indecent assault, the second complainant was then aged19.
HISTORY
[5] The accused and his wife have five children of their union. Prior to the alleged incidents the family lived together at Ha'ateiho. The court was told the first complainant was born on 17th October 1987 – she is now 24 years of age, married with children. In her youth the first complainant attended Atele si'i primary school; she went on and studied at Beulah College. The second complainant is the accused's adopted daughter. The accused accepts the second complainant is his adopted daughter via his evidence in court, and in answers contained in his police ROI recorded by the police in August 2010.
[6] The accused claimed in his evidence that he faced different problems with the first complainant, their biological daughter. The accused claimed in court more than once that "she is a liar." However the court must say, that it heard no independent evidence to substantiate the accused's assertion that the first complainant was "a liar" and more particularly that she was a liar, in relation to the two specific allegations contained in the indictment. The court has had no sight of any adverse school report, police incident report, and more particularly the court takes note that this assertion made by the accused, that his daughter was a "liar" was never put to the first complainant in cross examination by defence counsel. Any suggestion that the first complainant was "a liar" has thus been unsubstantiated in the courts considered view.
[7] The court heard evidence from the accused how before these allegations of sexual abuse surfaced, the accused had travelled to New Zealand to find employment. The court heard how the accused worked in New Zealand for approximately one year before he returned to Tonga on 23rd January 2008, when he had been informed of an injury to his son Frederic Vake an injury which left his son seriously disabled. According to the accused when he returned to Tonga from New Zealand, he first started having problems with the first complainant. The accused told the court how the first complainant was often in trouble at school; she purportedly drank alcohol, smoked cigarettes and made contact with boys, in the accused's own words "even kissing them." The accused told the court how he was asked to visit the school principal on several different occasions over complaints made about his daughter's behaviour at school, and he told us how he tried to resolve those problems at her school.
DELAY IN REPORTING THESE ALLEGED CRIMES
[8] Of concern to this court will be the apparent long delay before the two allegations of sexual abuse were reported to the police authority. The two offences were alleged to have been committed on 08th June 2008, yet the allegations were not reported to the police until after 23rd April 2010 when the court was told the first complainant confided in her uncle Viliami Vake and the matter was reported by him to the police and after then a police investigation commenced. After the reported case of re-MM a court of its own volition, must consider and address any issue of significant delay in reporting these types of allegations of "sexual abuse crimes." The court will do so later in its judgment, even though the issue of the significant delay in reporting the case was not fully addressed by learned defence counsel.
[9] During the course of this three day trial, the court heard sworn evidence from five prosecution witnesses. The accused also gave sworn evidence and he called various members of his immediate family as witnesses in his defence. The accused strongly denied both charges. He said, and he maintained during the trial, that neither incident happened. The accused claims the complainants have both made up the allegations, as an excuse for them leaving home and for gaining their "freedom." The accused also claimed there was "bad blood" in his relationship with his elder brother, who was the person who eventually reported the allegations to the police on behalf of the first and second complainants, after the complainants had confided in him in April 2010.
[10] The background to this case is not all that straightforward, ostensively because the evidence reveals the alleged offences were not investigated by the police until late August 2010. That apparent inordinate delay clearly puts both the accused and also the prosecution at a disadvantage. The court was told, and the court accepts the evidence that the first complainant first spoke to the accused's elder brother VV on 23rd April 2010 concerning these specific allegations. It has been accepted by the parties that VV is the accused's elder brother and he is the first complainant's uncle.
[11] The first complainant told the court how she confided in VV on 23rd April 2010 when he visited Tonga to register the family allotment. VV told the court how when he first heard about the allegations that he was concerned, and that is why he reported the allegations to the police because - in his words, "He wanted them to stop." On the other hand, the defence claims that there was bad blood between the two brothers. The defence asked the witness VV an important question – he was asked why not discuss the allegations with the accused when the allegations were reported to him? Why go to the police? VV reply was. "I had no time to talk to my brother."
[12] Police records confirm the accused was not formally interviewed until 11th August 2010 – that is some 26 months after the alleged incidents were said to have occurred. Further it is important for the court to take note, that because of the delay in reporting these allegations, there was no medical or scientific evidence gathered or adduced, concerning the allegations on file, more particularly this relates to the allegation surrounding the crime of incest as alleged by the first complainant. The court recognises medical evidence is not necessary to prove UCK or incest, so in the absence of any medical or scientific evidence this case turns upon – who does the court believe?
THE LAW
[13] To establish a charge of incest, under section 132 [1] of the Criminal Offences Act, the Crown must prove beyond any reasonable doubt, the following elements of the offence.
[14] To establish a charge of indecent assault on a female under section 124 of the Criminal Offences Act, the Crown must prove beyond reasonable doubt the following elements.
LAW ON CORROBORATION
[15] There is no requirement in the law in Tonga for corroboration of a complainant's evidence in criminal proceedings for sexual abuse offences, involving incest or indecent assault, the common law applies and it is invariably the practice of judges to warn against the danger of acting on a complainant's uncorroborated evidence, particularly, if the issue is consent or, no consent. I remind myself that a judge sitting alone must also heed and adhere to that warning, and, I certify that I have done so. Although corroboration may not be an essential element of the offence, whenever there is no independent corroboration it would be wise to be - less than certain.
STANDARDS OF BEHAVIOUR
[16] In circumstances such as can, or, might be found in this case, it is not surprising the courts must invariably have recourse to the personal standards of behaviour and demeanour, or, to perceived standards of behaviour and demeanour by victims of sexual abuse in Tonga, when attempting to resolve conflict in the evidence. The court must ask itself, is there an image of stereotypical behaviour and demeanour by a victim, or, by the alleged perpetrator of a non-consensual offence, such as incest or indecent assault, held by members of the public, that can be misleading and, can be capable of leading to injustice.
[17] In particular a court should ask itself and also consider - does the delay in the trying of this type of case; alter the demeanour of the witness, or the accused. Does delay in fact; tend to "cloud" the evidence? Were the complainants entirely credible witnesses when testifying some three and a half years after the alleged events took place? Is – was - their evidence consistent, or not? The court should also ask itself, considering the evidence it heard, the following question - should or would, a responsible father domiciled in Tonga, deliberately supply a further quantity of alcohol to his two young daughters who were already drunk – and allow his daughters to pass out, after the first complainant's natural mother [the accused's wife] had – protested to him purchasing more alcohol? Did alcohol cloud their judgment? Could the second complainant give her informed consent to receiving a kiss if she was drunk or passed out, if not, then case law says those circumstances would indeed amount to an indecent assault?
[18] A further question to be asked and considered by the court is this, should parents who receive or hear about allegations of sexual abuse 'cuff" or ignore the allegations surrounding these types of sexual abuse crimes – should parents in fact keep the circumstances surrounding these types of allegations "within the family," or, are they, or, should they be duty bound to report any allegations concerning sexual offences such as have been made here, to the competent police or other authorities, for proper investigation?
[19] In the reported case of MM there was some criticism in that case. There was criticism of the delay of some years - by the defendant's step-children, who were aged between 8 and 13, before they made complaints of rape and indecent assault, against the accused [in that case] to the police. The defence claimed at the trial, that the charges were "a fabrication." The Court of Appeal pointed out the fact the trial judge gave an appropriate warning to the jury, about the difficulties faced by an accused in such a case in responding to an obviously stale complaint. The Appeal Court said the judge had said to the jury in his summing up:
[20] The prosecution said however in MM that - it was not just as simple as that. When children / family members are abused, they are often confused, about what is happening to them, and, also – confused as to why it is happening to them. They are children, and that is something which the courts should always have at the forefront of its mind - when considering these types of "domestic sexual abuse" allegations. Sometimes children blame themselves, when there is obviously no need for them to do so. A child can, and might be inhibited for a variety of reasons from – "speaking out." They might be fearful that they may not be believed, a child's word against a mature adult, what value would that entail or, they might be scared of the consequences, or they might be fearful of the effect on the relationships, which they have come to know, and also to trust.
[21] In MM - the trial judge had made it clear to the jury that he offered these matters - not by way of any direction in law, but as things which in common sense, and, with knowledge of the world, a court must consider when assessing whether it finds that there was a reason for the delay in reporting these types of allegations to the competent authority. In that case the judge said - delay, particularly a significant delay, might also affect the honesty and, or the truthfulness of the young female complainants. The Appeal Court emphasised the trial judge had also said to the jury.
"There are sometimes in our lives, sometimes earlier, and sometimes later, when there is a trigger, or the need arises, to disclose, and or to speak out. This is not an easy thing to do and, it takes great courage to do so."
[22] In MM the trial judge had also said, these difficulties were compounded in the family situation where they involved a family member for whom the feelings of the child may be ambivalent. The child may not like the abuse, but there may be aspects of the abuser - that causes the child to view them with some degree of affection. The court said fallout from disclosure can be unpredictable and sometimes calamitous for the whole family. So, if a child, or young person's is / are abused, they are often subject to mixed emotions, and that can be the case particularly, where there is an imposing adult in the household, of whom they are afraid, and who has perhaps overborne them, or who has power over them, and who has warned them, that if they tell anyone anything about the allegation, then they are invariably beaten. The Court of Appeal said, these are all concerns for any court trying these types of allegations.
EVIDENCE
[23] The prosecution's case is this - at the Viola hospital car park in June 2008, the accused had carnal knowledge of his daughter the first complainant, who at the time he had committed the act was "under the influence of alcohol." The prosecution says that unlawful sexual act, towards his biological daughter constitutes the crime of incest. The prosecution says in June 2008 the accused and the first and second complainant, drove to the Viola hospital to visit the accused's son Frederic Vake who had been injured in an accident in January 2008 and who was an inpatient at the hospital. When they arrived at the hospital and had parked, the prosecution claims the accused asked the second complainant to go upstairs in the hospital and check on Frederic his son.
[24] When the second complainant left the accused's vehicle, the prosecution claims the accused left the driver's seat and entered the back of the vehicle where the first complainant was sitting. The prosecution say the accused well knew, the first complainant had been drinking, and she was most probably drunk, because the accused had supplied the first complainant with more alcohol, after he had picked the first and second complainants up from the airport – and they were drunk. The court finds as a fact from the evidence it has heard and which evidence it accepts, that both the first complainant and second complainants were in fact drunk when they were picked up from the airport by the complainant and the court accepts the evidence that the accused then fed both complainants a further quantity of hard alcohol -against their mothers protestations further compounding their problems.
[25] The prosecution claims the accused told the first complainant - what he was about to do to her - stating, "She was the most beautiful of all his children and he did not want to let her go." The prosecution claims the accused tried to fondle and kiss the first complainant, while in the vehicle. The court was told the first complainant struggled. The court was told the accused was far heavier than the first complainant and the accused managed to overpower her, and take her pants and her undergarments off. The prosecution says the accused then proceeded to have unlawful carnal knowledge - with his daughter. In her testimony the first complainant stated that she felt the accused's penis go inside her vagina. That evidence the court accepts. The complainant said in her evidence that the accused also told her, "That she will never love another man." The prosecution claims that the accused had carnal knowledge with his daughter, whilst she was drunk and under the influence of alcohol. The prosecution claims the accused knew she was in fact drunk and that carnal knowledge constitutes incest. The court found as a fact that the first complainant was in fact a credible witness and the court accepts her evidence in its totality. More importantly, the first complainant maintained her version of the evidence under cross examination.
[26] In relation to the second count in the indictment alleging the crime of indecent assault, alleged against the accused by his adopted daughter the second complainant Luce Vake; the prosecution say the accused also well knew the second complainant had been drinking, and that she was most probably drunk after picking both complainants up from the airport and, because the accused had also supplied the second complainant with alcohol, hard liquor and he had encouraged her to get drunk over her adopted mother's protestations. The court finds as a fact the second complainant was also drunk on the date in question. The brief facts as found are that the prosecution claimed that after committing incest with the first complainant, the accused drove home with both the first and second complainants in his vehicle. When he arrived at the family home, the accused left the first complainant lying asleep inside his vehicle. The accused then physically carried the second complainant into their house, because she had passed out. Once inside the family home the accused laid the second complainant on the floor, then he locked the door to the house. They were alone.
[27] Once inside the family home the accused was alone with the second complainant, because the court heard the accused's wife was at the hospital visiting their son. The prosecution claims the accused lay face down on top of the second complainant, and he started kissing the second complainant on her mouth and on her neck, NB- whilst the second complainant was passed out drunk. The prosecution claims the accused also tried to pull the second complainant's pants off. The second complainant told the court in her evidence how she struggled and she tried to push the accused off her body. She described to the court how the accused was lying on top of her, face to face. The court hear that at about the same time as this was happening, the first complainant woke up, from where she was sleeping, in the accused's vehicle, she got out of the accused's vehicle and knocked at the family homes locked door, which the first complainant testified was usually kept "unlocked."
[28] The court heard how the accused got up from lying on top of the second complainant when he heard the knock at the door, and how he unlocked the door and he let the first complainant inside. The first complainant described to the court in evidence how she saw the second complainant "rolling about on the floor." The evidence that the second complainant was seen "rolling about on the floor," does tend to corroborate the second complainants allegation of the alleged indecent assault on her, when considered alongside the second complainant's evidence said on oath. The second complainant was also unshaken in cross examination. The court accepts the second complainant's evidence in whole; she appeared to the court to be a truthful witness.
[29] The court heard, at a point in time that a phone call was received by the second complainant, from her supervisor at work asking the second complainant when she was coming in to work. The court heard from the accused how he spoke to the caller and the court heard how after an argument the accused seized the phone from the second complainant and kept it locked in his vehicle. The court notes it was the accused who volunteered this information in his evidence in chief.
[30] The court was told shortly after the alleged indecent assault took place the accused told both complainants he was leaving to collect his wife from the hospital, but before he left to collect his wife, the accused told the complainants that he would come back and he would punish them when he returned. The accused described in detail the circumstances surrounding an argument he had with the complainants whether the complainants would or should go to work that day, or, whether they would stay at home, as he wanted as they were in the accused's own words -drunk.
[31] According to the accused his evidence was that the second complainant was angry when the accused took her mobile phone off her. The court was told how the second complainant wanted to keep hold of her mobile phone. The accused told the court, that he did not want the second complainant to go to work - with the very people who gave her alcohol, and, who had initially allowed them both to get drunk after work. Why then did the accused provide further quantities of hard liquor to get the complainants further drunk; because by his own admission, the accused bought the complainants a bottle of hard liqueur against the protest of his wife, he actively encouraged them both to drink more alcohol. The accused admitted in evidence the second complainant was drunk and he told the court how he kept hold of the second complainant's mobile phone – by locking her mobile phone inside his vehicle - against her protests. Was this done to prevent the second complainant from telephoning the police or, contacting their employer, to go to work or what? Well will never know.
LEAVING HOME
[32] According to the evidence when the accused left home to collect his wife from the hospital, both complainants told the court how they made definite plans together to leave the family home and – to run away; but, before leaving home the first complainant told the court how she wrote a letter, which she addressed to her natural mother. The court was told how the first complainant gave the letter to her friend - the witness UNITA FATANI to deliver with the caveat - to deliver the letter "only into her mother's hands" The first complainant told the court how she folded the letter, it was not placed inside an envelope just folded and the witness told us she did not read the contents of that letter. Then, according to the evidence both complainants left the family home and they visited a work acquaintance before going on to the second complainants mothers residence According to the evidence the first complainant's letter was delivered to her natural mother. The receipt of that letter is not in dispute but the letter itself is not available to the court, ostensively because of the delay in reporting the matters.
[33] The court was told when the complainants left their work acquaintance - they went on and visited the second complainant's natural mother where the court was told both of the complainants made a complaint about the accused's inappropriate behaviour towards them, to the second complainant's natural mother. According to the evidence which this court also accepts, the second complainant's mother, said she would not allow her natural daughter, the second complainant, go back to live with the accused, "under any circumstances". The court then heard how the second complainant's mother arranged somewhere for both complainants to stay that night. However, it is also important to note, that no formal complaint was lodged at that time with any competent authority, by the second complainant's mother, when with hindsight that should have been done immediately, by any caring competent compassionate parent.
[34] It is also important to note in his defence that the accused told the court in his evidence how the first complainant's family went out searching for both of the complainants. The court heard how the complainants were eventually traced the following Monday, some two/three days after the complainants left home and according to the evidence it was then - that the first complainant returned to her family home but they did not report the girls missing to the police
[35] There is also evidence before the court, and which evidence the court accepts, which reveals the accused's family spoke about the allegations made against the accused when the first complainant was located three days later, and when the first complainant arrived back at her family home. The first complainant told the court how she spoke to her mother about her complaint of carnal knowledge against her father. The court heard how the first complainant maintained the truthfulness of the complaint against the accused – to both the second complainant's mother, and then the first complainant's mother. The first complainant told the court, how her natural mother's solution to this problem, as regards the truthfulness of the complainant's allegation was to "reach for" and make the first complainant swear "on the bible." The first complainants natural mother's solution, was not to report the matter to the police authorities, church authorities or to anyone else, as any reasonable parent might wish to do, looking towards an independent investigation into this type of serious allegations made against a person in authority – like a child's father.{re MM}
[36] The prosecution in effect states, the first complainant's mother was the person who carried out - the investigation into the determination of serious allegations, in other words the first complainants natural mother was the investigator, the judge and the jury: and according to the evidence of the first complainant and her mother, which evidence this court does accept – all the questioning and the investigation was carried out in the presence of the accused the complainants father. As the trial judge said in re MM - that type of investigation might have been frightening for any child or young person, who had made serious allegations of sexual impropriety against a parent or against a person in authority such as her father who had previously beaten the complainant to 'near death."
[38] Further the court notes by this process of a family investigation, the first complainant was not afforded proper access to a medical examination, treatment or, to counselling. If this was to be the complainant's mother's way of dealing with her biological young daughter, when she had made very serious allegations alleging sexual abuse - against her natural father, then the court must asks itself - was this, or, is this a proper course of action for any parent to take? The answer must be - NO - this was not and cannot be a proper investigative procedure or process at all. In the courts respectful view the complainant's mother abrogated her duties and also her responsibilities as a mother on that occasion by not reporting the matter alleged to the proper and competent authorities. She did not protect her natural daughter as she should have done by any true Christian standards. She should have reported the matter for investigation by a competent authority.
AN ANALYSIS OF THE MOTHERS INVESTIGATION
[39] The court heard the details about how the first complainant was questioned by her natural mother, and of the first complainant being asked to swear an oath that she was in fact telling the truth, in that she was attacked as she had described, by the accused her father. The court heard how the accused heard the line of questioning taken by the first complainants mother towards her daughter because the accused was present. The court was told how the accused also asked his wife to allow him to swear on the bible, stating that he was also telling the truth to his wife, and, interestingly how the accused's wife agreed to the accused's demand. The word she used was demand. The court was also told the accused completely denied what had been alleged against him and according to the evidence both the first complainant and her father swore on the bible - that their versions of events were true.
[37] It must be obvious to the court that the accused's wife took her husband's side. According to the evidence of the first complainant, after swearing on the bible, the accused said to her, "Hey just leave it." The first complainant said that her mother said, "She just wanted the truth." The first complainant told the court in her evidence that, "That she did not want to make the family look bad." The parties then started to argue; the court was told how the accused got angry at the first complainant who said in her evidence he appeared to get angry:-
"Like he was going to beat her up when she yelled that she was going to lodge a complaint.
[38] The court heard when the first complainant said she was going to lodge a complaint, the first complainant claimed the accused - slapped her on the mouth. The first complainant told the court she said to her mother, "If you still do not believe me, I am not going to stay here because something might happen." According to the first complainant – then her natural mother told her to leave their house. The court was told the first complainant was hit in the mouth by the accused and that was when she said she was going to make a complaint. The court accepts that part of the first complainant's evidence. The court accepts the evidence that the first complainant spoke out about abuse, she complained and nothing was done but she was then further assaulted in the manner described.
[39] According to the evidence both parties accept that certain efforts were applied - to try to keep the allegations "Secret and within the family unit for fear of shaming the family name or, everyone in the community would get to know. The parties also accept that the matter was not reported to the police until 2010 when a police investigation was commenced after the visit of Viliame Vake.
VILIAME VAKE - COMPLAINT APRIL 2010
[40] The court heard that in April 2010 the accused's elder brother, Viliame Vake visited Tonga from NZ to register the families' allotment. According to the Crown during his visit on 23rd April 2010 the witness spoke to the first and the second complainants. At that time the complainants made allegations against the accused concerning the events said to have taken place in June 2008. VV told the court - "I wanted to come and report this to the police, because it is bad and, I want to put an end to it." In answer to the question by the prosecution - how did you feel at the time Hala'unga told you what her father had done to her? The witness replied, "Your Honour - I had Goosebumps."
[41] The witness was cross examined about why he came to visit Tonga - he said he came to register his mother's allotment. He was further questioned as to why he did not discuss the allegations with his brother before he reported the matter to the police. He said, "I had no time to talk to my brother." VV agreed that there was bad blood between the brothers. The court found his evidence credible, and that he was a truthful witness.
[42] After VV reported the matter to the police, a police investigation commenced. Police records show the accused was interviewed by police and formally charged in August 2010 approximately four months after VV reported the matter. The police ROI commenced at 07.35 on 11th August 2010 it consisted of 38 questions and answers with a break for one hour. The accused was charged at 11.30 hours he replied. "I do not believe what I have been accused of, and it is not true. His confession statement was recorded at 11.40 he states, "I do not believe the accusations towards me because it is not true, this is caused by the hatred from my brother towards me whereby caused this complaint."
DEFENCE CASE
[43] The defence case is that both complainants made up the allegations against the accused. The defence claim the first complainant lied - because her adopted sister was not with them at the time of the alleged incident. The defence also claims the second complainant lied because her evidence in relation to the timing of the offence was wrong, and, because the length of time the accused is said to have been lying on top of the second complainant - was implausible or, it was grossly exaggerated. The court rejects those defence assertions because the court finds that the first and second complainants were in fact credible witnesses as in MM the need to report the crimes had triggered for the reasons stated by the first complainant that she did not want to make the family look bad.
[44] The court makes the comment the defence do not seem to have taken issue with the inordinate delay in reporting the alleged crimes. Both complainants gave evidence on oath, to the effect that they were sexually assaulted as they described in detail in court. They were not shaken in cross examination by defence counsel and further both complainants maintained their allegations of sexual assault by the accused towards them. Both complainants gave their evidence in strong confident voices, though it was obvious that they were embarrassed and nervous - that is perhaps understandable in the circumstances. Since these incidents took place, both of the complainant's have now moved on. The first complainant is married and has children. So why should she lie? Other evidence was given by the witnesses who tend to support the complainant's assertions that they were in fact sexually assaulted in June 2008 – they are as follows.
[45] On the other hand there were strong denials made by the accused in answer to the police questioning in August 2010. The accused maintained his innocence and his not guilty pleas during the course of the trial. The accused called family members to give evidence in his defence. They were however in the court's view confused as to the evidence particularly whether the second complainant went to the hospital, at the time of the allegation of incest on 0th June. The court believe that the second complainant did go to the hospital just before the accused's attack on the first complainant, further the accused said he asked the second complainant to visit his son and the accused confirmed that on oath, that he sent his adopted daughter the second complainant upstairs to see his son Fredric. The defence witnesses appeared quite confused and there were some periods of silence.
[46] The defence witness admitted in evidence that they had spoken together about the case. The issue for the court is to determine the credibility of all the witnesses, from both the prosecution and defence. I certify I have reminded myself, that as this is a trial by a judge sitting alone, of the "burden and the standard of proof" in a criminal trial - in that the prosecution brings this case and they must prove the case beyond any reasonable doubt so that I am sure that the defendant committed the offences with which he is charged.
[47] Trials of complaints of non-consensual / prohibited sexual offences, such as crimes of indecent assault and incest may, and often do, present the court with conflicting versions of events. These are invariably events which usually take place in private, and between two people. There may or may not be evidence of a complaint made shortly after the event, and or evidence that the complainant was distressed or, was injured. In the absence of evidence of relevant injury, to the complainant, or protests heard by others, a court is often faced with the difficult task of resolving the questions of whether they are sure that:-
(a) The complainant did not in fact consent, to the alleged act and
(b) The defendant had no reasonable grounds for believing that she did consent, and
(c) The court invariably has only the evidence of the participants upon which to make its final decision.
[48] In this case the complainants, and the accused - are known to one another in a social family setting, as father and daughter, and as the special relationship that exists in an adopted father/daughter relationship. There might previously be evidence of consensual acts of familiarity, perhaps familiarity in relation to the odd kiss, between the complainants and the accused, as a father might give an adopted daughter; upon which an accused might have sought to rely; as the foundation for a claim that the complainant would consent or might have consented to a kiss, or, that the accused reasonably believed the second complainant was consenting to a kiss. However, in this case the allegation goes further – it involves an allegation of a kiss to the mouth and also the neck - without the victims consent. There is the further evidence that the accused lay on top of his adopted daughter. The law is quite clear if the second complainant was in fact drunk then it is obvious AND case law says - that she could not give her - informed / implied consent and I have previously found as a fact that the second complainant was drunk at the time of the alleged offence so she could not give her consent.
[49] Further in this case, there are the complete denials made by the accused that either offences as alleged by the prosecution were committed by the accused AT ALL. The accused said on oath and also in his police ROI on 11th August 2010 these offences did not occur - at all. The accused stated on oath the allegations were completely false. In relation to the accused's confession statement the accused states that these are allegations brought by the accused's elder brother VV and that the brothers did not get on and there was bad blood between them.
[50] On the other hand, from evidence received in court and which evidence this court accepts and the facts revealed - early complaints of sexual misconduct were in fact, made to persons [other than police officers] shortly after the alleged assaults were said to have taken place. Evidence was adduced by the prosecution that when they left home, the first complainant had written a letter and she had left that letter addressed to the first complainant's mother with a non family member - the witness UNITA FATANI, her evidence is accepted by this court as a fact, and as true. The witness told how she saw both girls in a distressed state and they left home, this court accepts the witness's evidence as credible and also as truthful.
[51] The court was told and the court also accepts the evidence that no other such letter had ever been written before, by the first complainant - like the letter the first complainant addressed to her natural mother before running away. The court also accepts her evidence that the first complainant told the court that she had never run away from home before and, that she had never sought to run away from home before, even when she had been punished by the accused, and by all accounts, even after having been punished most severely by her father. The actual words used by the accused were these - that, "he beat her [first complainant] near to death" these were the actual words the accused used by the accused in his evidence in my court.
[52] There is also the undisputed evidence that both of the complainants had visited the second complainant's natural mother, when they ran away from home, and they also both made complaints then and there about the accused conduct -to Luce Vake's natural mother. Then there is the undisputed fact, that Luce's natural mother - kept her daughter the second complainant with her, stating that her daughter could not go back to live at the accused's home, because of what both complainants had alleged. Luce's mother told this court she accepted the offences occurred because the second complainant was crying. Then there is also the evidence of the independent witness UNITA FATANI, who described how on the morning of the alleged offences when she first entered the accused's home - she told the court how she saw both complainants crying. She described in detail how both complainants were sitting in the room when, she first entered the accused's home and she confirmed that both girls were crying. The witness also confirmed the fact she was given a letter by the first complainant and she was asked to deliver the first complainants letter to her natural mother and - "to her hands alone". As said before these were all truthful and credible witnesses.
[53] According to the evidence, the first complainant's mother did not believe the allegations of sexual abuse, whereas the second complainant's mother told the court that she did believe those same allegations. Of concern to the Court, is the fact the first complainant's letter explaining the circumstances surrounding both complainants leaving home, had been delivered to the first complainant's mother by the witness UNITA FATANI – AND YET the complainant's mother did absolutely nothing about the letter, she did not call the police report to report the girls missing, she did nothing other than to ask the first complainant to swear on the bible that what she said - was true which the first complainant did when she came home some 3 days later after running away. Clearly the first complainant's mother has a duty of care – towards both her biological daughter and also towards her adopted daughter - to prevent them from any harm and the evidence reveals she did nothing - other than to "try to keep it [the allegations] in the family."
[54] It must be of great concern to this court when considering this particular case, when considering matters in relation to traditional Tongan values and traditions, of these types of serious sexual abuse allegations, and also the accused's own admissions, which have surfaced during the course of this trial. Essentially this court has the following concerns – [a] that the complainant's were obviously drunk, when the accused first picked them up at the airport, on the night in question. [b] The court has concerns that on the journey home, the complainants asked the accused for more hard liqueur alcohol – to party, and the court has concerns that both complainants were in fact supplied with more alcohol, by the accused despite the complainants mothers admitted protestations. That is and must be a distinct worry and concern for this court and it provokes the further question – [c] did the accused take, and, or plan to take advantage of these two complainants at the outset – the answer is - we shall never know. The evidence clearly showed the complainants had both passed out, they were very drunk, yet they were transported about in the accused's vehicle, during the night by the accused. The accused was essentially driving around alone, with two young women unchaperoned - getting them drunk. Why did he do that? Why not take them straight home? This is and was contrary to Tongan traditions and values.
[55] Should the correct action not have been for the accused to have immediately taken both complainants home from the airport and sent them to bed – just taking care of them? There are also allegations made by the complainants and the admission by the accused, that the complainants would both be beaten, by the accused when he brought his wife back home. This type of conduct just cannot be acceptable or tolerated in today's society. These allegations are all considered by this court as being very serious allegations and in the court's view they are also allegations which DO tend to support the two complainant's serious allegations of sexual abuse against their father the accused. They clearly show the girls were afraid of the father a person in authority - re MM
[56] Shortly after the second alleged incident, the prosecution claims the accused left his family home to collect his wife from the hospital. The prosecution says the accused stated before he left home that he would come back and he would punish the girls. Whilst the accused was away from home, the girls planned together to leave their family home. Hala'unga wrote a letter addressed to her mother, she gave the letter to the witness UNITA FATANI to deliver in her words – "only into her mother's hands" and that letter was subsequently delivered to her natural mother. That letter is important - why would they run away from home if they had not been sexually abused? The evidence reveals the first complainant had previously been beaten – to near death and that is in the accused's own words. Why would they run away for a hiding? The truth is their version of events is correct they were sexually abused in the manner described.
DEFENCE CASE
[57] The defence case is that both complainants were making up the allegations against the accused. The defence claims the first complainant lied - because her adopted sister Luce Vake was not with them at the time of the incident. They also claimed Luce was lying because her evidence in relation to the timing of the offence was wrong, and because the length of time the accused was said to have been lying on top of the second complainant - is implausible or exaggerated.
[58] The defence claims by looking at the defendant's evidence, together with his record of interview, the two complainants are making their allegations up, because:-
[a] The defendant's brother VV made the initial complaint to the police authorities because he hates the defendant.
[b] Both complainants have lied because they were afraid of being punished for their drinking the previous night.
[c] Both complainants have lied because they wanted to leave the family home and have their freedom
This court rejects ALL those claims.
FALSE COMPLAINTS
[59] The defence allege these are in fact false complaints. Case law suggests a person who has made a false complaint may also have difficulty being consistent. These inconsistencies may expose the possibility that the details do not represent a true recall of events but are part of a manufactured account which is difficult to remember consistently. Inconsistent accounts may, therefore, be an indicator that the account as a whole is untrue. In this case however the court can find no evidence of inconsistencies in either of the two complainant's evidence and the court prefers the evidence of the two complainants to the accused, and his witnesses, who were - inconsistent and who had admitted talking together about their evidence before they came into court.
CONCLUSION
[60] It is now trite law that a person can consent, to indecent assault only if she agrees to it by choice, and at the relevant time she has the freedom and also the capacity to make that choice. To prove that the complainant did not consent, the prosecution must make the court sure on all the evidence that the complainant did not give her consent by her exercise of free choice. Submission of her free choice to a demand expressed physically or in words is not the same thing as consent. On the other hand, an exercise of free choice can lead to reluctant agreement and that is not the same as submission. The court needs to consider the evidence with care before it can decide whether the prosecution has proved that the second complainant did not consent to the alleged indecent assault on her. Secondly, the prosecution does not have to prove the complainant communicated her lack of consent by resisting the defendant physically or by shouting at him. It is not the experience of the courts that victims of indecent always have injuries to show for it. There is no classic reaction to a demand for unwanted sexual activity. Some people with physical self-confidence will protest loud and long, some will fight, and others will freeze as the realisation dawns that they are in a situation which they cannot control. The complainant is entitled to exercise a free choice how far she would go and how far she would not. Id she was drunk she cannot give informed consent to indecent assault.
[61] In respect of the charge of indecent assault the court must first, consider the complainant. What were the circumstances in which indecent assault occurred? Did a point come beyond which the complainant was not prepared to go? Was the complainant freely consenting to activity or did she freeze, and was she in fear, submitting to a demand she felt unable to resist? If the court concludes that the complainant may have given her free consent then the court must find the defendant not guilty. If, on other hand, the court is sure the complainant was not freely consenting or she was drunk, then the court next have to consider the defendant's state of mind. Did the defendant believe that the complainant was freely consenting? Belief in consent is not the same thing as a hope or expectation that the complainant was consenting; nor is indifference whether the complainant was consenting or not. If the court is sure the defendant did not believe the complainant was consenting the accused is guilty of Indecent assault. It is trite law that a kiss constitutes indecent assault if the kiss is unwarranted. If a person is drunk then she cannot give her implied consent.
[62] The court finds that there was a valid reason for the delay in reporting these types of allegations to a competent authority by the victims in this case. They told the court they were scared of the accused and that is why they both ran away from home. Further they did not think they would be believed and they were not believed by the first complainant's mother, a person who has a clear duty of care to both her daughter and her adopted daughter and in this courts view she clearly abrogated her duty of care by not reporting the allegation at once, to the proper competent authorities. As in the case of re- MM, I find as a fact that the first complainant and second complainants did speak out, to the second complainants mother in June 2008 and then to the first complainants uncle VV in April 2010. This was not an easy thing for them to do as they said and, it probably took great courage to do so." In this courts view the delay in reporting the matter to the police, did not affect the truthfulness of these two young female complainants as the evidence given in court reveals they maintained their version of the evidence - from day one and they are and they were believable and credible witnesses
[62] For all the reasons stated, in this my judgment, the court finds that the prosecution has proved beyond all reasonable doubt that the accused is guilty of the crimes of incest and indecent assault with which he has been charged on this indictment. Accordingly the accused is convicted on both counts in the indictment.
Date 18th January 2012
JUDGE
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