Rex v Fainu [2018] TOSC 15; Criminal Case 111 of 2017 (23 April 2018)

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

CR 111 of 2017

BETWEEN: R E X - Prosecution

AND: TALANOA FAINU
- Defendant

BEFORE THE HON. JUSTICE CATO

Mr Kefu and Ms. Fakatou for the Prosecution
The accused appear in person

V E R D I C T

1. The accused, Talanoa Fainu, was charged with two counts of rape contrary to section 118 of the Criminal Offences Act. Particulars of his offending were that, on or about the 15^th May 2017 at Houma, he had carnal knowledge of A without her consent.
   

The Evidence

2. A, who was aged 20 at the time of the alleged offending, gave evidence that she had met the accused who was aged about 40 through a girlfriend with whom he was having a relationship. The accused was a married man who had fathered nine children. The accused made contact with the complainant by way of a text message a few days after meeting her and a series of text messages between the two followed. During this series of text messages, the two agreed to meet for certain consensual sexual activities, involving kissing, sucking breasts, oral sex, and the complainant also consented to have the accused rub his penis outside her vaginal area. A for her part had asked the accused whether it was all right for her to suck his penis. She said she had told him that she did not consent for him to have sexual intercourse and that he had agreed to this. She admitted to Mr Kefu that she was starting to like the accused.
   
3. She said that she had established that the relationship with her girlfriend had ended after he had said he wanted her to be his girlfriend. She said that she had been thinking of playing around, meaning she said that she was thinking of using him to give her offerings and gifts and stuff. On one occasion, she had asked him to bring her lunch at work and on another she had requested a lift home after she was unable to catch a bus.
   
   4. On a Sunday evening, around the 15^th May 2017, the accused and A agreed to meet. The accused travelled in his car to an area in the town where the complainant lived late in the evening. He was told to stay away from her home because her father had not returned from drinking kava. Later, she contacted the accused and told him to drive to an area near their home where she lived with her siblings and parents and he did so arriving after A’s father had returned home and the family were asleep. They had various forms of consensual sexual activity that included kissing, the sucking of breasts, her vagina being licked, her sucking the accused’s penis, he rubbing his penis outside her vagina, in the back seat of the accused’s car. Evidence was given by A that she was a virgin and wanted to remain that way until she was 21. She had been asked to wear clothing which facilitated easy sexual contact and she wore a singlet down to her knees, no brassiere and panties when she went to the car. She told the prosecutor she had had certain sexual experience with another man but that this did not involve intercourse.
      
   5. Her father came to the realisation that she was not at home late in the evening or the early hours of the morning and he and his wife began a search and located her in the vehicle nearby. They could not see much inside the vehicle because the windows were tinted. At A’s request, the accused drove off. The evidence established that A was very scared of her father who she said had disciplined her on a previous occasion with a stick for being disobedient and going on dates. She admitted that she had become aroused in the car before they were discovered and drove off. She said, however, that later she had second thoughts and told the accused she wanted to go home and started to regret what she did. She told him to go back but he did not take her home. He drove fast and she said she started to cry. The accused drove to a bush area where, in the rear seat of the vehicle, sexual intercourse took place on two occasions. A alleged that this was not consensual. The accused gave evidence that it was. Later, the accused drove off first in the area of A’s aunt’s home but she did not want to get off there, so he drove to his workplace in town. It was getting close to the time he had to attend work, so he took A back to his workplace where she was placed in a room. She went to sleep on a cushion provided from the accused’s car. The accused went back to his home and prepared for work, and when he returned, A said she was cold. She had texted him to bring a blanket or clothes but he had not brought any back to his workplace. They had consensual intercourse on this occasion, before the accused went back to working in another part of the building. She said that she did this because she was cold after the accused had suggested intercourse to make her warm. A said that she felt warm after this.
      
   6. Later that morning, A’s mother and father located her at the accused’s workplace after A had contacted by phone a younger sister and apparently told her where she was. Her sister told her that she would not be beaten; her parents just want her back. The parents took her from the building after having difficulty locating A and later encountered the accused who they had been informed was “Noa”, nearby. The mother, shortly after, intervened to prevent her husband assaulting the accused. Both the accused and the father were taken back to the police station at Central and A and her mother also attended. A complaint of rape was made to the police at Central relating to the incidents that had arisen in the bush area. The next day, A made a statement at the Nukunuku police station and the accused was also interviewed by Detective Fono’atu. His record of interview was signed together with other statements which I found to be material in this case. These documents are discussed below.
      
   7. A said she had started to cry and had told the accused to take her home. He had driven fast and past Houma and driven into a bush area. She was still crying when she forced himself on her on the back seat. She said she tried to push him away. He used his weight to force her down. She cried and begged him to stop because she was aware he wanted intercourse. He continued to hold her down. He said he loved her. She said she told him he does not love me because if he did he would stop. He continued to penetration and ejaculated. She said she could not do anything more to stop him. She said after this he had intercourse with her again. He had thrown her back on the seat when she tried to resist ,had pulled her hair and she had hit her head against the window. She had felt dizzy. She said she could not walk. She said he offered to take her home but, after having had intercourse, she was afraid. He told her it was all right to go home and then she said I am not going back home I am going to go and die. She had said she had tried to resist him by pushing him away; tried to keep her legs closed and had tried to push his penis away. She said she had a pain in her legs and could not walk from the car.
      
   8. Prior to going back to the police station and outside the accused’s workplace, A said that she had been spoken to by her father and he had asked her whether she had consented and she had said no. This was a conversation in which she said she had had first been asked whether intercourse was forced and she had said no. She elaborated on this shortly after and said that the question had been whether she had had been forced or whether she had consented, and she responded No. She also said the accused who was nearby had said she consented and she had said No. I did not find this evidence entirely clear but I am satisfied that A had attempted to communicate to her father that sexual intercourse which the parents had learned had taken place before arriving at the accused’s workplace was not consensual.
      
   9. There was a further text message from the accused, about two days after the complaint had been made, in which he had said he loved her and to forgive him. He had suggested marriage and she had said it is up to you. He indicated he would divorce his wife but A had said to look after her and not to worry about her. A said that she had strong affection for the accused. She admitted that if he had not have been married she would have been quite happy to have gone further in a relationship with him. She said in answer to a question put by Mr Kefu in response to this that the reason she felt like this was because he was the first person she had intercourse with but she had no feelings now. She denied she had manufactured the complaint because she was scared of her father.
      
   10. The accused, in cross-examination, put to A that when they were lying down in the back of the vehicle he had held her hands whilst kissing her and sucking her breast and he had said to her to make way with her legs. She had said wait and from there they had changed positions. She laid down and that’s when she parted her legs and they had intercourse. A said that she did not agree with that. She admitted that she did not get off at her aunt’s home because her parents would come there. She admitted back at the workplace the accused had asked her to text him if he needed anything and she had done so telling him that she was cold.
       
   11. A’s mother gave evidence of seeing the vehicle leave her home and of locating her after she had received a message from A’s sister saying the accused had had intercourse with A. She said her daughter was in difficulty physically when she saw her. She and her husband embraced A. She said that, when she spoke out to the accused outside the workplace, he apologized for what he had done to A but said to ask her. The accused in a question he had put to A said I told your father everything that we did and I then said go ask your daughter because she consented to everything that we did. A said she did not believe that. When he gave evidence her father could not recall the conversation he had. The mother said her husband had been angry at A that evening for getting into the car and because of her disobedience. She also spoke of the accused coming about two weeks later with his wife and child to apologise with his pastor. The pastor apologized for the accused’s stupidity and the father said not to worry they would withdraw the complaint. They attempted to withdraw the complaint but the officer, who had interviewed the accused, Detective Fono’atu said that could not be done because the offence was serious and the government or the Ministry or the force has an interest to pursue offences like these.
       
   12. The father gave evidence but he did not advance matters. He said when he saw A he asked whether she had consented to this and she said no. He could not recall a discussion with the accused.
       
   13. The accused was interviewed and signed the record of interview and associated documentation. Certain passages of the record of interview are material and they are recorded below.
       

He was asked what his purpose for going over there (Q.19) and replied;

“Because we already texted for me to go over so we can kiss, suck her breasts, lick her vagina and she told me that she will suck my penis and I asked for me to rub my penis on her vagina and she said yes.’

Then what happened when you reached her place? Q. 22.

He answered, “We kissed, sucked breasts, then I took off her underwear and licked her vagina, then I stood up and took my trousers, then held my penis to her vagina and rubbed it outside her vagina.”

He was asked what happened while you were at the bush in Houma? (Q.29) and replied;

“She cried and I kissed her, sucked her breasts inside the van and I inserted my penis inside her vagina and had copulated on her.”

The question was next asked, “It is said that you forced her and she told you not to have sex with her but you held both your hands and pressed it on the car seat and you tried to separate her legs and you succeeded and forcefully inserted your penis inside her vagina.” (Q. 30) to which he replied;

“I held her hands to the front and she pushed me and told me wait to not have intercourse with her but at that point my penis started to sink into her vagina.”

The next question (Q.31) was; “What did you do at that time?” and his answer was;

“I pressed my penis and it fully entered her vagina and I copulated in her vagina. I ejaculated insider her vagina. We had sex for about half and a hour when we finished she said that it is painful.”

He was asked when you tried to insert your penis inside her vagina what did you feel (Q 32) and he replied;

“It was hard to insert my penis inside her vagina so I pressed or forcefully penetrated it and I felt that my penis was inside her vagina in the van.“

Later he was asked (Q. 36)”Why didn’t you stop inserting your penis inside her vagina when she told you to wait and pushed you away on your chest?”

His response was;

“Because I was horny and I wanted to have sex already so I inserted my penis inside her vagina then I copulated on her.”

The next question (Q 37) put by the interviewing officer was “I put it to you that were the time that the [complainant] did not consent to have sex with you but you inserted but you inserted your penis anyway. What do you have to say about that?”

His answer was; “Yes, she pushed my chest and told me to wait and I told her to lift up her legs and she lifted up her own legs so I had sex with her when I inserted my penis inside her vagina.”

He was charged with rape after that.

14. After being charged with rape and indecency, he was cautioned and invited to comment.

He responded;

“My answer to the charges stating that [the complainant did not consent to me putting my tongue inside her vagina, it was consensual. The complainant consented to it just like when consenting to my penis inside her vagina. We had both consented to it before I inserted my penis inside the complainant’s vagina.”

15. Shortly after this he, in his voluntary statement, again given under caution said ;
    

“What had happened. I would not have gone there if [the complainant] had not allowed me to go over to her place. Everything that we did was consensual before we did it. Like me licking her vagina and she sucked my penis and inserting my penis into her vagain, she consented to it but my overall statement is that she allowed me to have access to her body and then they charge me with these offences.”

16. The accused gave evidence. He spoke of the commencement of the relationship and of the texts in which the complainant had admitted to various sexual acts being performed upon her. He said these had happened in the car and she had been aroused before they were interrupted. He went on to speak about the period after they had left the house and arrived in the bush area. He said the complainant was crying. He said he asked her why she was crying and she said she wanted to die. He said we kissed. He grabbed hold of both her hands with his hands and they were kissing. He came down to her breast. He told her to part her legs at that time we were doing this action we were leaning back on the seat which I had put down. That was the back seat. And up to that point when I asked her to raise her legs she said for him to wait. He said he stood up where we laid down properly on the seat and we had intercourse. After that he went outside and came back in and they had intercourse. He said he offered to take her home. She said she was not going home and said she wanted to die. There was discussion about going to her aunt’s place and told her to get out. She would not and he said he had to go to work. He told of taking her to his workplace. He was in a hurry and had not brought a blanket back. He spoke of being at work when she text to say she was cold and he went to see her. He said he would make her warm and she told him to come. He kissed her and they had intercourse. He said that he had told the father to ask of the complainant what they had done.
    
17. Under cross-examination, he confirmed that in the texts A had never agreed that sexual intercourse could take place. He agreed he had seen the complainant crying before he had sexual intercourse. He denied that A had asked him to take her home. He said, when she answered she wanted to die, he did not know whether she was upset or scared. He said he did not know that she was unwilling to go further in sexual matters. He could not read her thoughts. He said he had not asked her why she had wanted to die. Mr Kefu put to him that he should have asked her why she wanted to die and he said no. He denied that she had tried to push him away. He said he did not know whether she said not to have sex with her. Question 30 was put to him by Mr Kefu and he was asked whether he had said that and he said yes. He declined to answer whether this was the truth and said he had wanted to add something else but the officer had not allowed him to do so. Mr Kefu pointed out he had not raised this with the officer nor had he mentioned this in his later voluntary statement that he had something to add. He said he had wanted to say he had stood up. Mr Kefu asked whether she was still crying when in Question 37 he had said she lifted up her legs and he said she was not crying when they had intercourse. He put it to the accused he was reckless whether she was consenting, when she knew she had been crying, had said she wanted to die, pushed against his chest, told him to wait and not have sexual intercourse with her and the accused replied some things he did not accept. He was asked whether she was crying when these acts were done on her body and he yes. He said she was not crying, however, when they had intercourse. The accused said in answer to a question from Mr Kefu relating to the fact that A had never in a text consented to sexual intercourse that he had interpreted her comment that he could rub his penis on her vagina as giving consent. He did not accept that the agreement to rub his penis meant only on the outside of her vagina. He denied that the complainant had asked her not to do these things. He admitted that the truth was that he had decided to himself that he would have this woman and have his way with her because he had gone as far with her as he had. He denied however that he was reckless and would have had sex whether she had said yes or no.
    
18. I asked him in conclusion what the basis for him was for him to conclude that she had given him consent to have intercourse and he said his belief was that they had both consented through their text exchanges for them to have intercourse and that she had consented to his placing his penis on her vagina. He confirmed that was the only basis. He admitted he had not told this to Detective Fono’atu.
    

Submissions

19. Mr Kefu submitted that the accused knew that A did not consent or was reckless whether she consented or not. The accused made only one submission and relied on the evidence of A in the conversation with her father when she had said that sexual intercourse was not forced. However, from his evidence it is plain that his defence was that A did consent to have sexual intercourse with him and that he honestly believed this was the case. He also denied being reckless as to whether she had consented.
    

VERDICT

20. For the purpose of this prosecution the relevant provisions of section 118 are ;
    

Section 118(1) “any person [commits] rape that is to say any person who carnally knows any female (a) against her will.”

Section 118(2) which reads; “For purposes of subsection(1) a man commits rape if at the time of sexual intercourse with a woman he knows that she does not consent to the intercourse or he is reckless as to whether she consents to it.”

Section 118(3) which reads;” it is hereby declared that if at a trial for a rape offence the Court has to consider whether a man believed that a woman was consenting to sexual intercourse, the presence or absence of reasonable grounds for such a belief is a matter for which the Court is to have regard in conjunction with any other relevant matters in considering whether he so believes.”

21. A gave evidence for a considerable period of time and I formed the view that she was giving her account honestly. She quite candidly said that she had given her consent to acts of a sexual kind occurring including her inquiring whether the accused would allow her to suck his penis. She candidly admitted having some earlier experience falling short of intercourse. I accept her evidence that she was a virgin and wanted to remain so until she was 21, and that the experience was painful. She also admitted that a third act of intercourse which occurred later at the accused’s workplace when she was cold and the accused had suggested to have sexual intercourse to warm her up was consensual. She admitted that she had been frightened of her father who had beaten her in the past for disobeying him and going on dates in the past. She admitted that she had told the accused to drive away from the house. She admitting having affections for him at the time. She was, however, adamant in her evidence that she had not agreed to have intercourse with the accused and, indeed, had told him this when they had agreed on other sexual acts being performed.
    
22. I did have some concern about the possibility that she had lied on the issue of whether the sexual intercourse or carnal knowledge that took place in the bush was non-consensual because she was very frightened of her father and may have falsely made a complaint of rape to placate her father. If that were the case and she had made a false complaint to the police then her evidence could have been tailored to advance the false complaint. For this reason, I considered the evidence of the parents closely as well. Whilst I accept the father was very angry at what had happened, I do not consider that he had pressured his daughter into making a false complaint. Rather he had embraced her when he found her at the accused’s workplace with his wife who impressed me as an honest and caring person. I accept A’s evidence that she did tell her father that intercourse was nonconsensual and that is supported by her complaint being promptly made to the police. The parents did not appear to me to be vindictive people; indeed they accepted the accused’s apology given with the pastor present and had inquired of the police officer who had interviewed the accused, Detective Fono’atu whether they could withdraw the charge. He had declined to allow them to do so, telling them that on a serious matter such as this the state had an interest in prosecuting. I observe that, although the advice given was substantially correct, the officer should have referred the family to the Director of Prosecutions whose duty it is to decide whether prosecutions should proceed if a complainant has indicated a desire to withdraw a complaint. There is no evidence that any pressure was placed on the complainant by her parents to proceed with the complaint. I accept her denial that her account of rape was not a contrived or a manufactured account to placate her father or assuage his hostility and prevent her being beaten up.
    
23. I have looked very closely at the accused’s evidence and his record of interview which I have found materially supports the complainant’s account that she was raped. I do not believe the accused when he said, in his answers to the charge or in his voluntary statement, that intercourse was consensual or that he could have reasonably believed that she was consenting it would seem when she allegedly brought her legs up in question 37 and he penetrated her. I accept her evidence confirmed by him that she was crying and had said she wanted to die when they entered the bush area although the accused said she was not crying when they had intercourse. I accept that she had second thoughts and had asked him to take her home which the accused denied even though she was plainly terrified of her father, and it appears later had second thoughts about getting off at her aunt’s for fear of meeting her parents. The accused said in answer 30 of the record of interview that he held her hands to the front and she had pushed him and told him wait to do not have intercourse with her. He said, at that point, my penis started to sink into her vagina. An answer which in my view is also instructive of his true attitude to intercourse with A is found in question and answer 36;
    

“why didn’t you stop inserting your penis inside her vagina when she told you to wait and pushed you away on your chest?

His answer was; “Because I was horny and I wanted to have sex already so I inserted my penis inside her vagina then I copulated in her.”

24. I do not consider that the accused honestly believed that the complainant was consenting to either act of intercourse in the bush area and reject his evidence that this was so. I consider that he was determined to have sexual intercourse with her reflecting his expression of entitlement expressed in his voluntary statement that she had allowed him to have access to her body. I consider that his evidence that she was crying when she entered the bush area and had told him to wait and not to have intercourse with her supports strongly the complainant’s denial that intercourse was nonconsensual, although other sexual activity engaged in prior to the rapes was.
    
25. The accused, in evidence under cross-examination, said I thought disingenuously that when she had said he could rub his penis on her vagina she was consenting to intercourse. That, also he said was the basis for his belief that she was consenting to intercourse. I do not believe, however, that this was an honestly held belief. The accused was aged about 40 and struck me as not unintelligent. I also observe that, in answer 22, he said that in the area near the house he had held his penis to her vagina and rubbed it outside her vagina for which she admitted she had given her consent.
    
26. I have taken into account other concerning aspects of the case; namely that she had a later act of consensual sexual intercourse with the accused at this workplace, had admitted to strong affection for the accused even after these events had taken place, and that, in examination in chief, had said she had told her father intercourse was not forced but shortly after said it was not consensual. As I have indicated, I took her to be trying to communicate to her father that sexual intercourse was not consensual and that is what she had told her father. I consider that she was a twenty year old who had been willing to experiment in sexual matters (short of having intercourse) and was it seems attracted to the accused who was much older than she was and whom she did not know was married. I consider she probably had some confusion and difficulty later in coming to grips with the reality of what had happened to her, and being physically sore also from the sexual experience. I have taken all these matters into account. I am satisfied, however, on all the evidence I have heard that beyond any reasonable doubt A did not consent to intercourse on the two occasions alleged and that the accused must have known this. I am satisfied that she communicated this to the accused before the first act of intercourse and he took her also against her will on the second occasion. I consider, however, there is also merit in Mr Kefu’s submission in any event, on both counts, that at the very least when he saw her crying, saying she had wanted to die and had told him to wait and not to have intercourse with her, as a mature and experienced man, he should not have proceeded to have intercourse without inquiring of her whether she consented. I consider beyond any reasonable that he must have appreciated that on both occasions there was a real risk that she did not want intercourse which he deliberately chose to disregard, and was reckless. On this basis also, I would find him guilty of rape on both occasions.
    
27. He is convicted of rape on the two occasions charged in the indictment and is remanded in custody for sentence. A probation report is ordered.
    

C. B. Cato
DATED: 23 APRIL 2018 J U D G E