Rex v Koloamatangi [2015] TOSC 40; CR85.14 (16 September 2015)

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

CR 85 of 2014

BETWEEN:

R E X
- Prosecution

AND:

MA'AFULELE KOLOAMATANGI
Defendant

BEFORE THE HON. JUSTICE CATO

Counsel: Mr Lutui for the Prosecution
Mrs. Fa'anunu for the Defendant

VERDICT AND REASONS

[1] The Accused, Ma'afulele Kolamatangi, was indicted on the following counts;

(a) Rape contrary to section 118(a) of the Criminal Offences Act.

Particulars of which were that on or about 14th September, 2013 at Kolomotu'a he did rape A when he inserted his penis into her vagina without her consent.

(b) Serious indecent assault contrary to sections 124(1) and (3) (a) of the Criminal Offences Act.

Particulars of which were that he did on or about September 2013 at Kolomotu'a indecently assault A when he touched her breast without her consent.

(c) Incest by a male person contrary to section 132(1) of the Criminal offences Act.

Particulars of which were that on or about September 2013 at Kolomotu'a he did have carnal knowledge of A with the knowledge that she was his sister.

(d) Domestic violence contrary to sections 4 and 28 of the Family Protection Act 2013.

Particulars of which were that between November 2013 and April 2014, at Kolomotu'a, whilst living together in the same household, and beyond the reasonable expectations and acceptances of family and domestic life did sexually abuse A

[2] A further charge of carnal knowledge of a young person contrary to section 121(2) of the Criminal offences Act was not proceeded with by the Crown and the accused is acquitted on that count.

The Evidence

[3] A, at the time of the alleged offending, was aged 14. She was born on the 9th November, 1998. Her father was Ita Koloamatangi and her mother was Pepetua Taufa. The birth certificate evidences that she was born legitimate but having heard evidence from both her father and mother, I am satisfied beyond any doubt that she is the illegitimate daughter of Ita and Pepetua, even though Ita registered the child's birth as legitimate according to the birth certificate produced in evidence.

[4] A gave evidence that at the time of the hearing in September, 2015 she was 16. At the time the offending occurred, she said she had been living with her father Ita, her half-sister Lose, and the accused who came to live with them in September, 2013. There was a younger child, a boy, aged about 7, Viliami, who also lived with them. Her mother, Pepetua, was separated from her father and had entered another relationship and lived elsewhere.

[5] She said in August, 2013, she saw the accused arrive in a vehicle and her father introduced him as his son from his first marriage. He had come to visit that day which was a Sunday. She was at a neighbour's house across the road when she saw the car arrive and went home.

[6] She saw him again the following week on a Saturday. He was visiting again and she spoke to him, in the evening. She saw him again on a Saturday in August when he visited. She can recall him visiting also in the second week of September and they went to town. There was a conversation in which he had said he liked A and her sister. Later, when they went home, she said the problem arose on a Saturday evening in the third week in September. She said she and her sister were lying down in the living room. She was closest to the wall, the accused, who she referred to as her brother, was in the middle and her elder sister Lose was against the wall. She said, when Lose was asleep, the accused touched her hands and then her breasts. She felt scared. He told her to get up and take off her pants. She said she did not want to get up and do this. She said she did not want anything like this done to her. The room was about 10 meters by 7. Her father was sleeping in her bedroom. It was about 10 pm.

[7] She said the house had a kitchen, two bedrooms, a toilet and a bathroom. Nobody occupied the second bedroom, which she later said, stored her father's tools.

[8] She said the accused threatened her that he would kill her if she did not do what he wanted. She said she got up, talks off her pants, lay down and he inserted his penis into her. She tried to get him off her. She pushed him away. She said she lay down for a while after the accused had got off her and went for a shower. She said she knew she had lost her virginity. She had seen blood stains. She saw blood on her pants. She then put her clothes on and went back to the bedroom and slept. Lose was still sleep. She said that she told Lose the next day she had lost her virginity but she did not say to whom because it was shameful.

[9] She said the same thing followed in following weeks. She said she was no longer at school and the first offending in September 2013, had arisen when she was 14. She said she did not tell her father what had happened because she was scared he might hit her. She said she was shamed having intercourse with her brother. She spoke of a further occasion occurring at night time in September 2013 after the accused had moved from Longolongo where he had been staying. She was on a mattress as she had been before and intercourse took place. She said she was more ashamed this time than before. She said she got up and took off her pants after her sister had gone to sleep as she was told by the accused. She was concerned people would talk about it. She said she did not tell Lose because she might spread things to others. She did not tell her father, either. She said the accused was living at Tofoa when the first incident occurred and at Longolongo when the second incident occurred. The first and second incidents occurred about two weeks apart.

[10] She spoke of a further incident in October that occurred during the daytime. Ita was at a church programme and Lose had gone to a neighbour's. The accused was on call but had not gone to work. She said again she was scared and complied with the accused's wishes to have sex. She gave evidence she was scared because of his threats. He had told her also to keep the relationship a secret. He had said this on the second occasion. Other acts of intercourse took place during the month of October. She said further it had occurred each month from October to April 2014, when she had returned to live with her mother. She said the accused had moved into live with them in 2013. She said that after she had returned to her mother she learned the accused had moved out. She confirmed she had not reported his offending to her sister or her father during this period. She said she was unhappy and wanted to return to live with her mother. She said she had been scared that if she returned to her mother earlier, that the accused might harm her. Her mother had told her she had known of the problem and she wanted her to return in or about April. She had collected her.

[11] She said she had made two statements to the police on the 18th and 21st of April, 2014. She said she had been taken for a medical examination. A medical certificate confirmed penetration had taken place.

[12] Under cross-examination, she maintained she had only met the accused in August and not February, 2013, as the accused had told the police. She maintained that during the first act of touching she knew it was the accused. She saw the shadow of a man. She said she had not told anybody because she felt ashamed. She said her father would not believe her. She said he valued his son more than her. She admitted the accused provided money for the family after he moved in. Her father was not working. She said the accused was drunk and only sometimes was good to her. She said she had trusted him. She said when the accused's wife came to Tonga, in November 2013, the accused was with her only sometimes. She admitted she had told the police she had intercourse with him about 22 times in the period of November. She said she was not counting but said that was an approximation. She said the allegations were all true and they occurred. She confirmed, in re-examination, that nothing had occurred on a Friday as she had initially told police and that the first incident took place on the Saturday. She admitted to be mistaken.

[13] Her older sister Lose gave evidence. She said she was 23. She lived with A and her father in Kolomotu'a in 2013. She had the same mother as A but they had different fathers. Ita had raised her, however, since she was one. She said she no longer lived with her father because of the problem that occurred. She said she had noticed that the accused commenced to give his board money not to her as before but to A and they went out together on occasions. She thought something was going on. She said the board money about $180.00 was spent by her sister on herself, rather than the family. She said she was 21 and A 15 at the time and that he accused also did want A to go anywhere with her. She said she had been responsible for keeping the house. She said her suspicions had been confirmed when she saw an act of intercourse in November, 2013. It was at night time. She was sleeping in the living room. She said she was sleeping on the single bed in the room and there was a mattress. She had left her bedroom because it was too hot to sleep in the living room. They were lying a meter from her bed. The street light covered the area. She said she always slept on the bed when she was in the living room. She said there was an incident of oral intercourse which took place, also in November, which she saw. She said she left the room. She said on both occasions they were aware that she had seen what they were doing. She said she felt disgusted. They paid no respect to her. She was afraid to tell because the accused had said he would also kill her. He told her this after the accused had a meeting with her and A at a nearby school ground. The accused had told them to meet there. The accused had told her he had the same need as her sisters. He had also asked her if anybody else knew of the fact, he was having sexual intercourse with his sister. She said she was frightened about the threat. She said, however, she had told a neighbour about it. Her name was Kulukona Puniani, and she later gave evidence. She told one other persona and also her mother. She told her mother who asked to see Kulokona. The witness says she moved to another area to live in January 2014 because she was afraid of the accused, and that he would find out she had told others.

[14] Under cross-examination, she confirmed that her brother, Viliami had a different father from her and A. She said the accused did not look after her family; he looked after her younger sister. She said she was told by her father to leave the house because she was arguing with A about the relationship. She admitted to telling a person by the name of Joe that she knew the person her father was having an affair with but admitted that was a lie because she was ashamed to tell Joe the truth that the accused and her sister were having an affair. She said these things because when she had texted him he asked her what was the reason for her still being awake, late at night. He had texted her first. She maintained that she had seen the acts of penile and oral intercourse and was not making her evidence up. In re-examination, he said she had told the police that she was shocked when she spoke to Joe, and agreed this was her reason for saying what she did. She said that she did stay with her father and the accused at another address after making her statement to the police because her father knew about the allegations, as did the police and she was no longer scared of the accused, as a consequence.

[15] Kulokona Puniani was a neighbour. She gave evidence Ita and his family were poor and her family would contribute to their needs. She confirmed that Lose had told her what she had seen at beginning of 2014. She said the accused's daughter from the USA had never had a bath at her place as the accused claimed, but had used the toilet.

[16] Pepetua Taufa, the mother of A and Lose, gave evidence that she had seven children, and that A was the product of her relationship with Ita Koloamatangi. She said it was an illegitimate birth. Lose was the product of a union with a man by the name of Taufa. She confirmed she had been told by Lose what she had seen in January 2014. She wanted to bring her home. She said that she had tried to get her back earlier but A was very afraid of the complainant. She came to live with her in April, 2014. Under cross-examination, she agreed that she had been married only once and her husband had passed away in 1993. She confirmed that Viliami was her son and that he was not Ita's son.

[17] She said she had suspicious earlier than when Lose had told her about what she had seen in January 2014, but did not take action until A was under her care. She denied that the accused had ever got Ita to chase her out when she visited in Kolomotu'a. She denied she was making up her evidence because she had resentment against the accused. She admitted she made the complaint after Ita had made a complaint to the police against her of taking A away. She confirmed she had lived with Ita between 1996-2010 when they separated. The only child she had with Ita was A.

[18] Ita Koloamatangi said he was aged 77. He confirmed he was the father of the accused and also A. He confirmed A was illegitimate. He said he told Pepetua to leave his house because she was with another man. He confirmed the accused and Pepetua did not get along and that the accused did not approve of her being at the residence because she had another relationship. He confirmed he had told her to leave for good.

[19] Senior Constable Penisoni gave evidence of a record of interview she had conducted with the accused. In it he had denied any allegations of sexual misconduct with A, who he admitted he knew was his sister. He had been living in America with his mother who had divorced. He went to America in 1984 and returned to Tonga in 2013. He said he had been deported for drunk driving. He had stayed with his father Ita in Kolomotu'a. he said Viliami and Masalina also lived there. Lose also stayed with them. He said only he took care of them. He slept he said at Ita's and aslo went and visited his mother's family. He admitted he and Lose and A slept in the living room. He said he slept on the little bed and others on the floor. He denied being present in September. He only went there to live permanently in November. He went there on weekends in September. He said there were no problems. He said his wife came to Tonga in late November. She stayed in Havelu. He said he was there. He said he drank alcohol. He said whilst at Kolomotu'a he drank alcohol on weekends. Sometimes he had drunk with Lose. He admitted he had gone shopping with A and Lose into town. He denied he had said anything to them about there being something between the two of them. He admitted talking with A and Lose at the school but said it was because he had told them not to talk back to their father. He denied all sexual misconduct, as well as any threats to kill. He thought that A was may be 16 years old. He admitted both A and lose were in their right state of mind. He admitted he knew very well A and he were sister and brother.

[20] The Accused gave evidence, also. He was aged 52. He was married with one 23 year old daughter. His wife and daughter resided in the USA. He did not live with them because he had been deported for drunk driving, in March 2013. He worked full time. He said he arrived back in about February, 2013. He had lived at Tofoa, then at Longolongo with a cousin. He said he moved to Kolomotu'a in November, 2013. He said Ita was living there together with A, Viliami, and Lose. He said he first had visited his father in April, 2013. He said that, when he a staying in Longolongo, he would visit his father, every Saturday. He would stay one or two hours and then return. It was on only one occasion. He admitted he did sleep over, but could not recall when and he admitted being introduced to A and knowing that he was her brother. He said he also met Pepetua when he first arrived and that she would stay for short periods. He said he had instructed her to leave because she was living with another man. That was in about August 2013. That was before he went to live with his father at Kolomotu'a.

[21] He denied having intercourse with her, in September 2013. He said he had never committed any indecent act because he knew she was his sister. He said she was lying. He was asked why he would say A was lying, if she were, as he had said to the police, mentally stable. He said that he had no doubt the allegations were the product of a discussion between the two girls. He said many times they would argue as a result from when he was scolding them for swearing at his father. Another reason was because he had often told them to leave and go away to where there mother was and leave me to look after my father. He spoke also of other incidents, involving lost property and the disappearance of his property. He referred to money, phones, and clothes. He said his father had instructed Lose to leave.

[22] He said he looked after A very well. He said Lose was telling a big lie about seeing him have intercourse in November, 2013. He said he managed his finances and contributed to the household along with overseas relatives. He gave money to Lose and A for their needs; about 10 paanga. They asked for money often.

[23] He said the living arrangements were that sometimes the girls slept in the spare bedroom and sometimes in the living room with him. He admitted it was not in accordance with Tongan custom for the girls to sleep on the bed and they were on the mattress. He said his father sometimes told them to sleep in the bedroom. He said he slept in the living room because, when he came to the house, they were sleeping in the bedroom. He said he told his father when they would not go to the bedroom. There was a bed in the small room and a mattress.

[24] He said his wife had come and lived at Havelu for two weeks in November 2013, and he had lived with her there. He denied threatening A. He admitted to drinking only on the weekends. He said he drank with Lose. He described Lose as a woman who wants things and also lies and steals. He said, after he came home from work, he would take a bath, eat dinner, and because he often finished late at midnight, he would go to sleep. Sometimes, he said he came home at 6-7pm. He said after work, he would spend time with a person by the name of Toko talking at his residence. He denied giving any money to Lose for household expenses.

[25] Under cross-examination, he said it was in November 2015 that he moved from Longolong because his mother's family had grown unhappy with him. He had become closer to his father. He said he was not close friends with Lose or A when he had come over before moving in. He admitted, however, developing a friendship between he and Lose before he moved in to stay. He denied, when it was put to him by Mr Lutui, that the first of the main reasons he gave for the women lying, namely scolding them for remarks to their father, was not a strong reason to fabricate. He seemed to also state the second reason, namely telling the girls to leave the house and live with their mother was a strong reason also, and not trivial, as Mr Lutui had said. Likewise, allegations about property were not trivial either. He accused both women of being used to lying. He said the reason he had gone to Kolomotu'a was to look after his father. He said his wife had left in the first week of December and confirmed he had not moved to his father's to live until November, 2015. He later said his wife came in the first week, and not as had been suggested to him by Mr Lutui towards the last weekend of November. He said he did not want to sleep in the bedroom because it was torn, dirty and yucky. He admitted his clothes were kept in the bedroom. He said Lose and A would give his clothes away. He accused them of stealing. He later admitted he had never actually seen them steal. He said it was all right for the girls to go and sleep in a room that was disgusting with all his clothes in it. H said he did not leave because he loved his father. In re-examination he said he was upset at how the young women had treated his father.

[26] A neighbor, Mr Lome, known as Toko, was called to give evidence. He confirmed he knew the accused well as a friend. He would take with him after work. They would talk after dinner from 8 to midnight. He had known him a year and he was shocked about the allegations. On one occasion, he recalled the accused saying thank god for Lose looking after his father. He said the same about Lina. He agreed that it was about November, 2013 the accused moved into the residence at Kolomotu'a.

SUBMISSIONS

[27] Mrs Fa'anunu submitted that matters involving credibility were difficult and I agree. She submitted the accused had chosen to give sworn evidence and he had no obligation to do so. She was critical of A's assertion that she had intercourse 22 times in November 2013. She submits how he could have done this so often with his wife and daughter present. Both young women A and Lose lacked credibility, she submitted, as did Pepetua who she criticized for not making a more timely complaint if it were true that she had suspicions and had been told by Lose in January 2014 of their having sexual relations. There was no independent evidence, aside from the young women, of sexual activity taking place. She submitted that the evidence was unsatisfactory that A was the sister of the accused even though he admitted this. The mother had children to various different men. She argued that it was incongruous for the accused to be on the one hand looking after the family and at the same time involved in doing these things to A. He had consistently denied since his arrest these charges both in his record of interview with police and at trial. She submitted that none of the charges had been proven beyond a reasonable doubt.

[28] Mr Lutui submitted essentially that I should accept the credibility of the complainant and there was no good reason to discount them on the basis of any of the reasons advanced by the accused. He submitted that the accused had the opportunity to commit the offences, admitting that he would stay over weekends in September 2013 before he moved, as the accused had said, permanently in November. He submitted that the wife did not come to Tonga until later in November, 2013 and there was plenty of opportunity for the accused to have sexual intercourse with the complainant during that period. He diminished the submission of the accused that the complainant had said 22 times as adversely affecting her credit, by this being explained by her to be an approximation, only. He complained that the reasons advanced by the accused for suggesting the complainant and Lose were making up false allegations were not put to any of the relevant witnesses, and were of recent manufacture. The offending was over a long period, and it was understandable that there would be some conflicts in the evidence. I should consider, he submitted, all the evidence in its entirety. He submitted that, in the face of the statements of the defence witness Toko, that the accused had said that he was content or grateful to both young women for looking after his father, that it did not ring true that now he should be so critical of them. He submitted also that the medical report tendered in of them. He submitted also that the medical report tendered in evidence which showed that intercourse had taken place was some support for A's assertion that she had been a virgin, when the accused first had intercourse with her. He said she was young, only 14 at the time when intercourse first occurred, and most likely to have consented to intercourse with a much older man known to be her brother. Overall, he submitted the Crown had established a case beyond reasonable doubt in relation to all the charges with the exception of the count of carnal knowledge of a girl under the age of 15.

REASONS

[29] I have considered the evidence of the complainant and Lose, and I accept their evidence as credible beyond any reasonable doubt. I did not find that the complainant A now aged 16 who gave her evidence with care manifested any unusual antipathy towards the accused who was her brother. Likewise with Lose, who also gave her evidence carefully. It is true that on the question of how many times A had intercourse in November when she said to police about 22 times, I accept her evidence that was an approximation only. I accept her evidence beyond any reasonable doubt that there was a touching of her breasts on a Saturday night in September, 2013 prior to the accused sexually penetrating her without her consent, namely raping her in the living room. I accept he threatened her as he did Lose when he found out she had observed him later in 2013, and that she was scared. This fear I consider continued on through to April, 2014 when she left Kolomotu'a to stay with her mother.

[30] The accused was a mature man in his early fifties and had only arrived in Tonga in 2013. Both parties knew they were related as brother and sister. It was accepted that it was very much against custom and law in Tonga for incestuous relations to occur, and also against custom for brother and sister to sleep in the same room. It would in my view be a monstrous lie for the complainant to falsely assert her brother had raped her. It would also as she said be an allegation that would bring shame on her. I can see no good reason why this young woman of only 14 at the time should falsely claim rape by her brother. The reasons given by the accused, even if true, would be most unlikely to provide a foundation for false complaints of this serious kind to be made or a conspiracy to take place. I agree with Mr Lutui, if the accused genuinely believed that his conduct towards the women of scolding and telling them to leave had been sufficient to have led to these false allegations, I would have expected them to have been advanced in cross-examination of the various witness known as Toko's assertion that the accused had confided in him that he was pleased with A and Lose's treatment of their father. I add that I have considered this evidence independently also of any failure to abide by the rule in Browne v Dunn and I agree with Mr Lutui's submission, supported by his cross-examination of the accused, that the reasons he gave were not in my view sufficiently strong to have sensibly led to false allegations of the kind that were made. The accused bears no onus to provide a reason, but the absence of a sufficient basis for a conspiracy strengthens the integrity and reliability of the women's evidence.

[31] I consider there was sufficient opportunity even if the accused had, as he said, only moved into the family's residence in Kolomotu'a in November for the allegation of touching of breasts as a preliminary to sexual intercourse to have taken place in September. On his own admission he had stayed over on earlier occasions at night, prior to moving in permanently in November. I did not hear much in the way of confirmatory evidence that in fact he moved permanently in November, but in any event on his own admission he did from time to time spend evenings over earlier than November, 2013.

[32] I accept also in all the circumstances, the fact that A did not make complaint earlier was unsurprising. It would be very difficult for a young woman to make a complaint to her father of his son's activities and shameful for her, also. Lose I am satisfied did make a complaint of her concerns to her neighbor whose evidence I accepted and to Pepetua. I also accept Pepetua's reasons for not taking actions earlier as advanced by her at trial. This was a family matter and one of serious embarrassment for all concerned. I accept it was when complaint was made to the police by Ita that she had taken A from his care, that she and her daughter made the complaint against the accused, even though this was some months after Lose had confirmed her suspicions in January 2014. I heard and saw Ita, the father, an elderly man, who had a rather formidable presence, and I can well understand how Pepetua and, indeed the complainant and Lose might well not have pressed this delicate family matter, involving his son before him earlier. I accepted all their evidence and I reject the accused's evidence and I do so beyond any reasonable doubt. I consider that the accused, who was in his early fifties, took advantage of A whom he knew to be his sister, and forced her to have sexual relations with him. I find entirely unconvincing his criticism of she or Lose and his suggestion they should have been sleeping and, not he, in the spare bedroom even though it was, as he said untidy, if not unkempt and dirty, and had his clothes in it. I accept what Lose said there was a meeting at the school when he threatened she and A and he told her he had sexual urges as did A.

[33] There may not be a need for corroboration in Tonga. Of this, the law is unclear. However, even if there is no corroboration of the rape incident, I accept beyond any reasonable doubt the evidence of the complainant; and I do not consider it dangerous to do so. I accept that Lose did see sexual activity, penile and oral intercourse taking place in November 2013, and whilst this may not be strictly corroborative of the count or rape in a Baskerville sense, it is certainly strongly confirmation of a sexual activity occurring, contrary to the accused's denial. Accordingly, I find the accused guilty of rape in that beyond any reasonable doubt he did have unlawful penile intercourse with the accused without her consent, in September, 2013. I also find proven beyond a reasonable doubt that he deliberately touched her on the breasts without her consent as she alleged in September 2013, and that he is guilty of an indecent assault preliminary to the intercourse. I accept that there was regular incestuous sexual intercourse over a long period from September 2013 (being the second incident of intercourse alleged in September as Mr Lutui said and the basis for this charge at trial). I accept also that intercourse occurred regularly through to her leaving the house in or about April 2014, as she testified. To the knowledge of the accused this was incestuous because she was his sister as he acknowledged knowing, and I find beyond any reasonable doubt, this charge proven also. Finally, I find, over the period from November to April 2013 as pleaded, the accused sexually abused A, conduct which was plainly beyond the reasonable expectations of family and domestic life, whilst living together in the same household in Kolomotu'a. For reasons, I have mentioned, he is acquitted of carnal knowledge of a girl under the age of 15, on the basis the Crown elected at trial not to proceed with this charge but to allege the second incident in September 2013 of sexual intercourse constituted the crime of incest.

VERDICTS

[34] I find the accused guilty of rape contrary to section 118(a) of the Criminal Offences Act; serious indecent assault contrary to sections 124(1) and (3) of the Criminal Offences Act; incest by a male person contrary to sections 132 (1) and 3(a) of the Criminal Offences Act, and domestic violence contrary to sections 4 and 28 of the Family Protection Act, 2013.

[35] He is acquitted of carnal knowledge of a young person under section 121 (2) of the Criminal Offences Act.

C. B. Cato
J U D G E

NUKU'ALOFA: 16 SEPTEMBER 2015