Rex v Malupo [2015] TOSC 50; CR 98 of 2014 (26 August 2015)

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

CR 98 of 2014

BETWEEN:

REX
Prosecution

AND:

KUONGA MALUPO
Defendant

BEFORE THE HON. JUSTICE CATO

Counsel: Mrs. Langi for the Prosecution
Accused unrepresented

VERDICT AND REASONS

[1] The accused was indicted on originally four counts; attempted rape contrary to section 120 of the Criminal Offences Act, serious indecent assault contrary to sections 124 (1) and 93) (a) of the Criminal Offences Act; housebreaking contrary to sections 173(1) and (5) of the Criminal Offences Act and unlawful entry into a building by night contrary to sections 174(1) and (3) of the Criminal Offences Act. Later, I gave leave to the Crown to add an alternative count to count one being a further count of serious indecent assault.

[2] The evidence was in a fairly narrow compass. The complainant A, who did not give evidence until a later stage in the trial due to her having to travel from Vava'u, said that on the 20th April 2013 she had been a student at Beulah College, and she was aged 16. It was the day reports were to be received and was the last day of the school term. She came to town with two friends Kalolaine Nisa, and Litia Tangimana. Only Kalolaine was called to give evidence.

[3] She said that they had gone to Teufaiva Stadium to watch sports it being a schools sports day, and they had got off school early. They went there on the bus. During the course of watching the sports she said she received a telephone call that she was to return to the school and pick up her report. She said she left on her own and picked up a bus and went back and picked up her report and then went home to the residence where she was living-the Tei residence, in Pili near Ma'ufanga. The complainant, it should be said although related to the Tei family, does not bear the surname Tei, and lived there when she was not boarding at school.

[4] She shared a room in an upstairs room of the house which could only be accessed by outside stairs. There as a door which had to be opened from the stairway area into the upper part of the house.

[5] She said she had been dressed in her school uniform at the sports event. She said she had a telephone with her but she had not met anybody else at the event. Later that evening, whilst Katalaine and Katrina Tei went out, she remained at home. She said she studied for some time and then fell asleep in one of the rooms upstairs. She said she was awakened by somebody behind her back. She thought the girls had returned but found that it was a young man who had covered his face and who smelt of the alcohol.

[6] She said, he said to her, "when I entered this room, I saw you lying there alone; my purpose was none other than to rape you". She said she felt very afraid. She thought about screaming but he said, if she screamed, he would kill her. He took off her clothes, her singlet and top, then her tights and shorts. He placed his penis against her vagina. Prior to that, he had licked and sucked her neck and then her breast. He then commenced to place his penis into her vagina and she felt pain.

[7] She said she struggled and got loose. As he started again, she heard a vehicle drive in. It was the girls coming back. She said he jumped up from the bed and she got up and put a towel around her. She said she ran out into the hallway as Katalaine walked in. She told Katalaine she was very afraid. She said her heart was beating out of all proportion. The young man, she said was in other room. The accused left the house and was apprehended by some youths away from the residence after the girls had shouted out for assistance.

[8] She said that she had never met the accused before. She did not know him. She said the door to the outside had been left unlocked for the girls to return. She said he would know my name because Katalaine had called it out. She said that he had walked up after he was caught and saw him in a torch light. She said the light in the bedroom had been off with some light from the street.

[9] Under cross-examination from the accused, who I observed was restrained and unintimidating, being placed, at my request, some distance away from her at the bar table, she denied ever meeting him at Teufaiva stadium or speaking to him that day. Shedenied giving him her telephone number. She admitted her number was 7762489 but she said she never gave it to him. She said under cross-examintaion "I do not know you". She said he had not texted her and she had not texted him to come over to her residence or told him where she lived. She denied any contact with him by phone that evening. She denied ever unlocking the door for him to come in. She denied inviting him into the bedroom. She denied any consensual sexual activity or that she had gone into another room when Katalaine had returned, as he had suggested. She denied, when it was put to her by the accused that they had consensually met up at her request at the house. She denied also that she had falsely implicated him in unlawful sexual activity because she was covering up her fear of her finding out about what she had done. She said she had read her statement the day before giving evidence.

[10] Katalaine Tei testified that A was the grandchild of her mother's older sister and had been staying with them for two to three years. A was in form 6 and 15 to 16 years. She explained the layout of the house as two level house with all four bedrooms upstairs. A would ordinarily sleep with one of her sisters. No access was available to the upstairs other than by an outside stair case on to a verandah with two entrance doors. Her parents occupied one of the bedrooms. She said that, when the accused had been apprehended, she asked A, who also was known as Katrina (abbreviated Trina), whether she knew this person and she shook her head. The accused, she said, told A to speak and make things short. Katalaine said A had told her that the accused had held her neck, threatened her if she screamed, and said he was trying to have sexual intercourse with her.

[11] She said before she had left that evening, her parents, two younger brothers, her grandparents and A was at home. Under cross-examination, she said that Katrina had opened the door for her. She said she saw her trembling. She said someone was in the room. She said she had asked the complainant whether she knew this young man and her answer was no. She said she had spoken to A in another bedroom, whilst the accused was elsewhere, before he had walked out saying he was leaving.

[12] Mr Simione Tei, the owner of the house, gave evidence that he was sleeping downstairs when he head the screaming. He chased after the accused. He said his wife was downstairs with him. His wife's mother was also downstairs.

[13] Katrina Tei, who had also gone out for the evening with Katalaine, gave evidence that the accused asked her to keep the door open so he could leave. He had no top on and his top was, she thought, hanging at his side.

[14] Kalolaine Nisa gave evidence that she was a student at Beulah College and had been boarding at the school with A. The had been discharged from boarding school and it was report day. They went to Teufaiva to watch sports and she recalled A receiving a call from her auntie to collect her report. It was about midday that they went to the stadium. About an hour later, A received the call to go and get her report. She said they walked around at Teufaiva with another girl who did not give evidence. They did not talk with any other boys. She said they were in school uniform. She said she knew it was A's auntie that called because she heard the conversation.

[15] PC Siale gave evidence that at about 9am on the 22nd October, 2013, the accused participated in a record of interview which was produced in evidence. He also confirmed that the accused had been in custody since being arrested. In it, the accused said that he had met A at Teufaiva stadium during the day. He said that later a girl from the house text him whom he knew as Trina and instructed him to go her house. She had given him her phone number which he said he did not remember anymore. He said he had texted her before going over. He said she had said she was alone. He said he had not been to the house before. He said he went over by foot. He said the door downstairs was already open. He walked into a room upstairs where they walked and then her family arrived and apprehended him.

[16] When asked did he do anything to A, he said we just talked. He denied a specific allegation that A had told police that, by the time she had looked up, he had strangled her by the neck and told her that, if she shouted out, he would kill her because he had come to rape her. He said that was a lie. When it was put to him that A had said that he had taken off her clothes, sucked her breasts and had inserted his penis into her vagina and thrust inside her, he said that is not true, either. He said the only truth is I was kissing with her. He said she was lying when she said he had not texted her or knew him. He said she told him she was at Queen Salote College. She was not wearing her uniform at Teufaiva. He said he thought he had a right to go into the house. The accused also said he had his phone taken by police and some money neither of which was returned.

[17] At the conclusion of his evidence, I asked PC Siale whether he had secured the phone of either the accused or A and he replied that he had not. He accepted that it would have been helpful had he done so. He was later recalled to attempt to explain how the accused had information A had been at the sports day prior to the record of interview but he was unable to shed any light on this. He had, he said, lost his notebook which had gone missing after a theft from home.

[18] The accused gave evidence. He essentially confirmed what he had said in his record of interview. After drinking with a friend, he had texted her and received the invitation to go over, she being alone and he did so. He admitted some consensual kissing but nothing more. Mrs Langi, for the Crown, cross-examination him about his recollection of A's telephone number. He said he did know the residence as one belonging to the Tei brothers, but he did not know she was living there, until she told him. He was cross-examined about his assertion that the door downstairs was unlocked by A for him to enter when there was no downstairs access to the upstairs area. It was suggested he did not know A's name but learned it only through the fact that her abbreviated name Trina had been used by Katalaine Tei on the evening of his arrest.

SUBMISSIONS

[19] The accused made submissions in accordance with his evidence that he had only gone to the house because he had been invited to do so and that only consensual activity had taken place. He denied any of his actions had been unlawful. Mrs Langi essentially urged me to accept the evidence of A and Kalolaine Nisa, being schoolgirls aged about 16, that A had been in uniform at Teufaiva and no meeting between A and any man had taken place. She submitted that it was no more than coincidence that the accused had said he met A there and he was lying about what followed. She said he gave unconvincing answers about whether the door was downstairs or upstairs that he had said had been opened for him. She submitted he was embellishing his evidence when he said he could not recall her number when he could not do so to the police.

FINDINGS

[20] Aspects of this prosecution I have found very unsatisfactory and rather perplexing. The accused also told PC Siale and said in evidence that he met A at Teufaiva and that she had given him her number. Later, he had texted her and received an invitation to come over since she was alone. Although she was not alone in the house, she was in fact at the time alone in the upper part of the house when the accused entered. A was a relative of the Tei family. She was a boarder at school but resided with the Tei's when not at school.

[21] The coincidence referred to by Mrs Langi lies not just in the alleged meeting between A and the accused at Teufaiva but also extends to his being able to locate the residence where A was living with the Tei's, in Pili. He had been in custody after the incident and before participating in the record of interview early on the 22nd April, 2013. PC Siale who was recalled, with my leave, was unable to shed any light as to how the accused may have learned of A's presence at Teufaiva and used this knowledge falsely to his advantage in the record of interview. He did, however, say that he did not discuss anything with the accused before the record of interview.

[22] Officer Siale had access to the complaint's phone and according to the accused, his phone also. In my view, it was a serious oversight not to have examined the phones or obtained records to ascertain whether any relevant calls or texts had been sent or received from those phones. As the evidence stands, there is a conflict about the alleged meeting between A and the accused at Teufaiva and whether his presence at the Tei residence had been solicited by A, or not.

[23] Mrs Langi mentioned to me certain conflicts in the accused's evidence such as recall of A's phone number, the opening of a downstairs door, but none of them are so serious as to in my mind individually or collectively undermine the accused's assertions to the police that he had met the complainant and had been invited home by her. As I said to Mrs Langi, I found the absence of evidence concerning the phones and text messages troubling. I found also the failure by the police officer, who said his notebook was in a bag at his home which had been stolen, concerning. Note books should be kept securely. There is no evidence before me to explain how the accused acquired information that the complainant had been at Teufaiva earlier on the day of the incident. The suggestion was made by A in her evidence that perhaps the accused had been shown her statement, a suggestion, she said, had been prompted by a discussion with Mrs Langi earlier. However, there was no evidence to support this; and nor were any phone records produced by the Crown despite a late endeavour to produce them.

[24] I am not prepared to reject the accused's explanation simply on the word of the complainant and her friend, Kalolaine Nisa. If it were all an invention by the accused, as Mrs Langi submits, then phone records evidencing there was no telephone contact with A during the relevant evening would have shown his account of texting between the two and A's invitation to be a material and very significant lie. I am left, as matters stand, in a state of reasonable doubt as to where the truth lies in this case and for this reason I acquit the accused on all counts. He is discharged.

[25] I also found it strange that when PC Siale asserts, in the record of interview of the complainant, that A had made an allegation of strangulation and, indeed, that penetration had taken place, (which she asserted to be the case also at trial) there was no medical examination, to support whether there were marks consistent with strangulation on the complainant or, indeed, evidence of penetration.

C. B. Cato
JUDGE

DATED: 26 AUGUST 2015