Rex v Toetu'u [2015] TOSC 39; CR113.2014 (8 September 2015)

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

CR 113 of 2014

BETWEEN:

REX
Prosecution

AND:

ALIPATE TOETU'U
Defendant

BEFORE THE HON. JUSTICE CATO

Counsel: Mr Lutui for the Prosecution
Mr Piukala for the Defendant

VERDICT AND REASONS

[1] The accused, 'Alipate Toetu'u, was charged with one count of rape contrary section 118 (1) of the Criminal Offences Act. The particulars were that, on 13th June 2014, at Longolongo he did have carnal knowledge of A by using his penis into her vagina without her consent.

[2] The complainant A was aged 21. She gave evidence that, on the 13th June 2014, she had gone from her home with her mother in the one way Road in Nuku'alofa to the Time out bar some after 10pm. She was there for about 2 hours. Her mother, she said, became quite drunk but she said she had only three beers. Nothing untoward seems to have arisen in the bar. She saw some friends and the accused. She and her mother returned to their home, but her mother commenced talking with some other men and the complainant parted company with her on the street. She went to her home and then came out. There was no sign of her mother. She saw some youths who appear to harass her. She ran away from them in the vicinity of the Catholic Basilica. She said she was upset.

[3] She met her friend Simaima who later gave evidence. She said she was upset, it would seem, although this was not pursued regarding domestic matters involving her family. Simaima offered to take her home. She said she could not go home because of the boys.

[4] She said she wanted to go to her aunt's home at Touliki. Simaima told her she would get a taxi. They went into town and stopped at an intersection near the "Coffee Post" café. According to her, she asked Simaima when a car pulled up whether that was a taxi and she said yes. She told her to get in. She said she did not want to go alone and asked Simaima to go with her but she said she had to work. She said she told the driver she wanted to go to Houmakelikao to her aunts (also known as Touliki). The drove past the police station and then on the Vuna Road towards Ma'ufanga. She was upset and was not looking where the car was going. When the driver talked to her, she realised they were at Longolongo. She realized then that the driver was the accused. She told him she had enough to drink and wanted to go home. She said he said they were going to his housed, and that they were just going to do something.

[5] She said the car was parked in Longolongo, at the accused residence, and he would not let her out. He was holding her and they were arguing. A man came out and talked to the accused and then left. There was a struggle. The accused grabbed her and took her into the back seat. He was on top of her and she tried to push him off. He started kissing her on her face and neck. She was struggling and he started to take her pants off. It happened so fast, she said. She told him to stop and he raped her. She said it was forced sex. He put his penis into her vagina. She felt pain. She felt wet and she knew he had ejaculated inside her.

[6] She said she was told to put her pants back on. She was afraid because she knew she could get pregnant. She was still in the back seat when they drove into town. He told her to get out near the palace but she said she did not want that, so he dropped her at a taxi stand in Wellington Road. When she got out, she said she asked him why he had done that and if he thought it was funny. He told her to stop acting like a child. She told him she would get someone and went to the police station to make a complaint. She said she had her rights. Later she was taken to the hospital.

[7] Clothes were shown to her which she identified as wearing that night. She identified her panties as being ripped by the accused that night. She was able to identify a photograph of the car in exhibit 3 as the one that had picked her up. She said to Mr Lutui, she was still crying and holding her head in her hands when she got into the car and had not appreciated it was Alipate until later. She had tried to call out later to the man who had approached the car in Longolongo. He did not pay attention. She said the accused was wearing a blue Adidas sports t-shirt that evening and confirmed that a blue Adidas shirt produced in evidence which had been located at the accused's residence by police was the same shirt.

[8] She said she had been at the premises in Longolongo before when his ex-wife had asked her to go there. She gave evidence of a rock throwing incident that had occurred there with the accused.

[9] She also said she had been held by the mouth during the incident because she was being too loud.

[10] Under cross-examination, she confirmed her birthday was 14th December 1993. She said she did not know there was a kava party in the house or the man who had come out. She said she had tried to escape from the car. She confirmed her evidence that she had been raped in the backseat of the car.

[11] When the trial commenced, in his opening, Mr Lutui on the basis of the accused's answers given to the Officer in charge of the case, PC 'One'one said that it was anticipated that the accused would deny being present. It became plain, however, from the nature of the cross-examination of A that the defence no longer maintained this position. Mr Piukala, when asked by me whether the accused now admitted he was with the complainant, said that was the defence's position. As a consequence, Mr Lutui did not require certain witnesses on the issue of clothing to give evidence.

[12] A said to Mr Piukala she was not "happy with the Union". She did not cry out. She said she had asked him to let her go and take her home, lots of time. She denied she had ripped her underwear during the walk to the police station.

[13] PC 'One'one gave evidence of interviewing the accused under caution on the 15th June 2014, at about 1400 hours. For the purposes of this verdict, I record that the substance of the interview was a denial of sexual intercourse with A. Indeed, the accused stated that he had after visiting 'Oholei beach for dinner with friends, dropped them off at Puke and then went home to Longolongo. He said he had not gone to any other place other than his house on his return from Puke.

[14] He said, when he returned from Puke, a kava session was running and he sat there and after a while he went and slept. He said the evidence of Simaima Vea that he had picked up Malia was a lie. Similarly, he described her allegation of non-sensual sexual intercourse with him as a lie.

[15] He admitted, earlier in the record of interview, being in town at the Time out bar, having returned from 'Oholei and seeing Malea there. That was before taking them to Puke. When asked about this clothing worn on the night, he said he was wearing a t-shirt Lavengamalie colour that had Samoan patterns.

[16] Simaima Vea gave evidence. She was 18 and she recalled meeting A who was crying and angry with her mother. She described the complainant as really drunk. A wanted to file a police complaint. She said a person called out A's name. A male person opened the door of the car. She declined to go with A. She identified the car as the accused's vehicle. She said in re-examination, the reason she thought she was drunk was because she was mumbling.

[17] The accused gave evidence. He confirmed picking up A and said that she had rung him to pick her up. He also said she had asked him to go and have a drink, rather than take her home as he intended to. He said they went to Longolongo where there was a kava party and there was a civil conversation about his ex-wife. Somebody texted her not to bother with him and to go with the accused. They then, he said, continued their conversation and agreed to have consensual sex. He agreed it was in the back seat. He said it was consensual and she was moaning. He said she had told him to drop her off at the Wellington taxi base so she could get a taxi. He said she was angry at somebody else. He denied forcing her to have sexual intercourse.

[18] He confirmed to his counsel that all his answers in the record of interview were correct. He confirmed that all of his evidence was truthful.

[19] Under cross-examination, by Mr Lutui, he said that it was after he went to sleep at home that A had rung him to pick her up. That was after it had been suggested to him that answers he had given about being at home and asleep dropping his friend off in Puke were lies.

[20] Pressed by Mr Lutui on his answers, he said what he told the police were partial facts but what he was saying in his evidence was true. When further pressed about why he had not told the police the truth as requested by the interviewing officer he said he told him he would get a lawyer and he thought he would tell the lawyer the rest of the information.

[21] He admitted that he had worn the blue Adidas shirt and not the one he had told police he was wearing. He said the police forced him to say it. He later said it was a mistake. He said she had wanted to be dropped off; not taken to Houmakelikao, after the incident. He said she was texted her earlier near the palace that he or she would be in that area. He said she took off her clothes and he had not ripped the panties.

[22] He admitted that he had made a mistake in his answer to question 29 that he had not picked A up in his car as Simaima Vea had said. He later admitted that he had lied to the police when he had said after question 29 that he had returned from Puke, a kava drinking session and sat there for a while and had gone to sleep. He said he lied because he was confused with the answers. He admitted, however, that that he had told a half truth and it was a deliberate suppression because he did not want to give them other information. He wanted to tell his lawyer the rest.

[23] It should noted that he had been given the opportunity to engage a lawyer before the record of interview commenced. The accused said he wanted to complete the work and then I will find me a lawyer.

SUBMISSIONS

[24] Mr Piukala for the accused reminded me of the burden and standard of proof. He submitted that, although the accused had admitted he had told the police only part of the story, he urged me to accept that in evidence he had told the truth. He pointed out to me that, contrary to what A said about her state of sobriety, her friend had suggested she was drunk. He submitted that I should prefer the evidence of the accused that the complainant had consented to intercourse and no rape had occurred.

[25] Mr Lutui submitted that the Crown case was plainly made out on the evidence of A who should be believed. He contended that her friend's evidence of her being drunk was based only on the fact A was moaning. He submitted that the accused's evidence was a manufactured account, inconsistent with his account to the police and he had made up his evidence as he went along. Aspects of the evidence such as the complainant texting him or her receiving texts from third parties had not been put in cross-examination to the complainant because they had been manufactured. He had told deliberate lies to the police about not picking up A in town, having intercourse with her, later and remaining home asleep after Paku so as to deliberately distance himself from the truth. This was corroboration or, in any event, evidence strongly supportive of his guilt.

FINDINGS

[26] I found the complainant a credible witness. She gave her evidence in a quite and measured way. It is possible she may have had more to drink than she admits and was clearly upset about other matters. However, I do not think that detracted from her credibility. The accused never suggested she was intoxicated, during his evidence. Nor was she cross-examined on the point.

[27] She consistently maintained her account that she had been raped by the accused. There is no evidence before the court of any pre-existing familiarity between A and the accused such as she would invite the accused to go drinking with her, as the accused claimed. She was plainly upset that night and the accused I find took advantage of the situation. Having had non-consensual intercourse with her, he then left in town to find her way home. The fact she went straight away to the police station to make a complaint is consistent with her account that she was raped.

[28] Conversely, I did not find the accused a credible witness. Despite his protestations, that he made mistakes in answers to some of the questions on material aspects of his whereabouts on the evening and his association with A, I find he plainly lied to the police to conceal his meeting with A late that evening. The only reason that he would have done this is to deliberately distance himself from the opportunity to have had unlawful sexual intercourse with her. Had he engaged in consensual sexual intercourse, as he now claims, I would have expected him to have informed the police officer when asked to state what the truth was. He did not do that. On his own admission, he said that he deliberately told the police part of the story only. I did not find this answer at all convincing. It was, in my view, plainly contrived as were his responses to questions put to him by Mr Lutui, concerning his whereabouts that evening which were inconsistent with the evidence he gave concerning his activities and association with A, at trial.

[29] I find also his answers volunteered only in his evidence, and not put to the complainant in cross-examination that she had rung him to pick her up (after he had gone to sleep), that there were third party texts to her, (which he had apparently seen), that suggested she should go with him and not with the sender, contrived. I did not believe his account of consensual intercourse. I consider that he took advantage of the complainant and, was so determined to have intercourse with her, that he ripped her underwear as she claimed. Had this been a case of consensual intercourse, I find it strange also that he did not drive her home in the early hours of the morning to her aunt at Houmakelikao which is not very far from the Palace past Ma'ufanga and along the Vuna Road. I reject his explanation that she wanted to get off in the area because the sender of the text was there. The accused who is a soldier presented as a physically powerfully built young man.

[30] Accordingly, I find there is corroboration, that is (if corroboration is still required in Tonga in sexual offences which is unclear) n his deliberate and material lies told in his police interview as explained above. I cannot find any reason for such obvious lies and no satisfactory explanation was advanced for them consistent with innocence such as panic or embarrassment either. In any event, I found A's evidence so persuasive and his so unconvincing that I have no hesitation in finding the charge of rape, namely non-sensual sexual intercourse, (penetration of the vagina by the penis) proven beyond a reasonable doubt.

VERDICT

[31] I convict the accused of rape and remand him in custody for sentence.

[32] I also wish to record that, whilst I have been critical of aspects of investigations and Tonga police practice in some recent judgments, I am pleased to say here that PC 'One'one had with him in evidence his notebook to assist his recollection and the record of interview and later follow up, with a search under warrant, demonstrated good police work. The record of interview and the evidence produced proved to be very important in the resolution of this case.

C. B. Cato
J U D G E

NUKU'ALOFA: 8 SEPTEMBER 2015