R v Hu'akau [2018] TOSC 49; Criminal Case 107-108 of 2017 (19 September 2018)

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

CR 107 - 108 of 2017

BETWEEN: R E X - Prosecution

AND: SULIASI HU’AKAU
‘OFA HU’AKAU - Defendants

BEFORE THE HON. JUSTICE CATO

Counsel: Ms L. Fakatou and Ms ‘A. ‘Aholelei for the Prosecution

Mr V. Mo’ale for the Defendants

VERDICTS AND REASONS

1. The male accused stood trial between the 3rd September 2018 and the 14^th September 2018 together with his wife on various serious criminal charges.
   

He was charged with;

Two counts of indecent exposure (counts 1 and 2) contrary to section 3 (1) of the Order and Public Places Act;

Count 3: Serious Indecent Assault contrary to section 124(1) and (2) of the Criminal Offences Act;

Count 4: Domestic Violence contrary to section 4(a) and (b) (ii) of the Family Protection Act;

Count 5: Serious Indecent Assault contrary to section 124(1) and 2 of the Criminal Offences Act;

Count 6: Serious Indecent Assault contrary to section 124(1) and (2) of the Criminal Offences Act;

Count 7: Domestic Violence contrary to section 4(a) and (b) (ii) of the Family Protection Act;

Count 8: Serious Indecent Assault contrary to section 124(1) and (2) of the Criminal offences Act;

Count 9: Domestic Violence contrary to section 4(a) and (b) (ii) of the Family Protection Act;

Count 10: Indecent Exposure contrary to section 3 (1) of the Order and Public Places Act;

Count 11: Serious Indecent Assault contrary to sections 124(1) and (2) of the Criminal Offences Act;

Count 12: Rape contrary to section 118(1) and (a) of the Criminal Offences Act;

Count 13: Domestic Violence contrary to sections 4(a) and (b) (ii) of the Family Protection Act;

Count 14: Serious Indecent Assault contrary to section 124(1) and 2 of the Criminal Offences Act;

Count 15: Domestic Violence contrary to section 4(a) and (b) (ii) of the Family Protection Act.

2. His wife was charged with several counts of abetment to several of her husband’s alleged offences;
   

Count 1: abetment of Serious Indecent Assault contrary to sections 8(a) and 124(1) and (2) of the Criminal Offences Act relating to Count 3 of her husband’s indictment;

Count 2: abetment of Serious Indecent Assault contrary to sections 8 (a) and 124(1) and (2) of the Criminal Offences Act relating to Count 5 of her husband’s indictment;

Count 3: abetment of Serious Indecent Assault contrary to sections 8 (a) and 124(1) and (2) of the Criminal Offences Act relating to Count 6 of her husband’s indictment;

Count 4: abetment of Serious Indecent Assault contrary to sections 8 (a) and 124(1) and (2) of the Criminal Offences Act relating to Count 8 of her husband’s indictment;

Count 5: abetment of Serious Indecent Assault contrary to sections 8 (a) and 124(1) and (2) of the Criminal Offences Act relating to Count 11 of her husband’s indictment;

Count 6: abetment of Rape contrary to sections 8 (a) and 118(1) (a) of the Criminal Offences Act relating to Count 12 of her husband’s indictment,

Count 7: abetment of Serious Indecent Assault contrary to sections 8(a) and 124(1(2) of the Criminal Offences Act relating to Count 14 of her husband’s indictment;

Count 8: Common Assault contrary to section 112(a) of the Criminal Offences Act;

Count 9: Domestic Violence contrary to sections 4(a) and (b) (i) of the Family Protection Act

3. The two complainants, who will be referred to as A and B were daughters of the female accused, and step daughters of the male accused. At the time of the alleged offending against her, A was aged 16 and at secondary school. B was aged 14 and was not attending school. The male accused was 56 and his wife, the female accused, was 42. The female accused had 10 children by her first marriage. A was her third child and B her fifth child. After her divorce with her ex-husband, the children had lived with their grandparents. It was in the last week of December 2016 that A moved and stayed with the accused at a residence in Ha’ateiho.
   
4. At that address, there were three residences, one in which A stayed with the accused, and one that was occupied by the male accused’s daughters. Later, another building was occupied on the site by the accused and B when she came later to reside with the accused in February 2017. By the time she had arrived at the premises, A had left to reside with others to attend school.
   
5. In relation to the first count in the indictment in relation to the male accused, A gave evidence that, on a Sunday in February 2017, they had gone to Sopu to a beach and she was on the shore about 8 to 9 meters from where the accused were swimming and kissing. She said that the male accused pulled down his trousers and showed his buttocks to her and his penis. She saw this clearly. She called out to the female accused and said what he had done but the female accused said he was just joking. Later, they went to a nearby property where the male accused rinsed and they came across her and the male accused naked. The female accused said it was OK; her husband was just playing a joke.
   
6. In relation to the second count of indecent exposure, A said that, on a Saturday in January in late afternoon, she was at home straightening the female accused’s hair while the male accused was in bed. The male accused woke up and told her to fondle his penis. The female accused told him to go back to sleep and stop fooling around. A said that she saw him pulling down his trousers, fondling his penis under the blanket and masturbating.
   
7. In relation to the third count, A said that arose at a tax allotment in February 2017, in the afternoon. When she arrived in a vehicle with the accused, both came to the rear where she was sitting and opened the doors. The female accused pulled both her hands above her head and held tight. She was lying in the back seat. The male accused then squeezed her breasts with both his hands. The accused laughed and went outside. A got out of the car picked up a hoe and tried to stab him with it aiming at his penis. The female accused said to stop being an idiot who could not take a joke.
   
8. She said that, in February 2017, she left and returned to live with other people so she could go to school. She was in form 5. The residence she stayed at was about 20 minutes walking from the residence with the accused. She said that, in late February, she discovered that B was living with the accused having been living previously with her grandparents. She told B to go to the back of the house and told her to go home, before something bad happened to her. She had seen her on an earlier visit in the back seat of the accuseds’ car and had been concerned. B had said she could not return to her grandparents because she had been kicked out. When she returned and spoke to B outside, the male accused had asked her why she was talking to B at the back outside the house and what lies was she telling? The female accused had called B to come to her. A told her to go and then warned B to leave. I pause here to say that I accept what A had to say about this because being an older sister who I find for reasons I will give shortly had been subject to sexual abuse it would be natural to show concern for a younger sister exposed to such an environment. This evidence was unchallenged. A returned on a public holiday on Wednesday and said she saw B hit with a stick on her knees and face by the female accused. She described these as very big hits.
   
9. She said she told the female accused not to hit her and there was an argument between she and the female accused and A was told to leave. She left and then came back to the residence where she saw a daughter of the accused and told her about his indecent dealing with her at Sopu. She told them what had happened when the male accused had been swimming. B came and they left together. They met up with a couple at a plantation as they walked along the road, and B informed them what had happened to her. They took them to the police station where statements were taken, A said independently of one another. They then were taken to the Woman’s Crisis Centre. A lived there for 2 or three months. Her sister lived there for longer after A had left. A has since married.
   
10. A said that she asked the police to allow her to see her mother who was in prison and she told her to tell the truth. She asked her mother how she could have allowed this to happen to her own daughter. Her mother denied anything had happened and told her to leave and never refer to her as Mom.
    
11. It was put to A by Mr Moala that she had met her mother later by chance at the market on the 3^rd August 2018 and had told her, they having hugged and kissed that she and her sister had made up these stories because they were angry at the beating of B, and also because they hated the male accused he being an ex-convict. She denied both allegations. She denied in any case that she had met her mother as alleged at the market.
    
12. Under cross-examination, it was suggested to her that both accused at Sopu swam a long way from the shore because the beach close to the shore was muddy; and about 50 meters away. It was put to A that the male accused did not do those things she complained of and she said he did. She also maintained that she had called out to the female accused. She also maintained that the male accused had been naked in front of them.
    
13. In relation to the incident at the plantation, it was put to her that the accused did nothing to her and she said she was telling the truth. She said the hoe was at the plantation. She said the hoe was standing where she had got off the vehicle.
    

B’s Evidence

14. B gave evidence that she had moved to stay with the accused in January – February of 2017. At the time of giving evidence, she was 15. She was not at school.
    
15. B gave evidence in relation to count 5 of the male accused’s indictment that she went to a beach in Ha’ateiho in February 2017 on a Sunday with the accused and a girl aged about 8, the grandchild of the male accused. She said the female accused told her to stay with the male at the shore. The male accused kissed her mouth, pulled up her T shirt and sucked her breasts. She told the female accused what he had done when she came back from swimming. The female accused said it was OK. She also said that the male accused had told her to watch as he shook his penis and ejaculated. The female accused said for her to keep watching because it was OK.
    
16. In relation to count 6 of the male accused’s indictment, after they had dropped off the child at relatives of the male accused, B said they drove to Navutoka beach so the male accused could go diving. It was already dark. There, the male accused told the female accused that he was hungry and wanted to eat B’s vagina. His wife held her hands to B’s chest from the front of the vehicle whilst the male accused took off his underwear and trousers and came around to the back seat. The male accused proceeded to lick her on the vagina. After doing this, she said that he said now he was full. He then went diving. A said she later went to sleep when she woke up to find the male accused sucking her breasts when the female was watching in the front seat. The female accused told her it was all right.
    
17. Count 8 of the same indictment involved the accused taking B with them to a school in Vaini the next day which was a Monday where the accused cleaned. There, B said she was locked in the storage room for their cleaning equipment. The female accused locked the door. B was seated on a chair and the male accused kissed her mouth and fondled her vagina outside her clothes. The female accused told her it was all right. She said it happened up the children had left close to evening hours. She said it was her mother that had unlocked the door.
    
18. It seems that counts 10 and 11 are in reverse sequence as far as the events B gave evidence concerning. The oral sex by the female accused on her husband, B said this took place after her mother had returned from her bath.
    
19. Count 11 took place, B said, on the evening of the 28^th February 2017, as the family were preparing to go to the Queen Mother’s virgil later that evening. B said that, after she had taken her bath in an outside building and was wearing a towel, she returned into the residence whilst the female accused had her bath. The female accused had told her she would get her some clothes. During this time when she was sitting on a chair, the male accused came and kissed her and sucked on her breasts. She said he had unzipped his trousers and taken his penis out which he rubbed on her vagina outside her underpants which she said she was wearing.
    
20. Count 10 arose, B said, when he and the male accused took out his penis and showed it to her. He asked her to suck on his penis. B said no it was disgusting. The female accused had returned by then and when she did not do so, the female accused then sucked on his penis. After that the female accused got B some clothes and they all went to the virgil.
    
21. Count 12 involved the allegation of rape. B said that, after they had come back from the virgil in the late evening, she went to go to sleep on the double bed which was the only bed in the house that consisted of one room when the male accused held her hands down to the side and said he would make her feel good. The female accused was present. B had said she and both accused had gone into the house together. The male accused told the female accused to put his penis in B. The female accused then removed B’s clothes and the male accused took off his trousers. The female accused tried to put the male accused’s penis inside B’s vagina but she was told to hold B’s hands and the male accused would penetrate her himself. The female accused asked if it felt good. He was moving up and down and his penis went inside her. She said it was painful but her mother said it will become good. She said she felt there was fluid coming out. B said she felt a lot of pain and said that it hurt. It went on a long time. After that B got off the bed. She felt a liquid discharge from her vagina but did not see what it was. The female accused told her to wipe it with a black cloth and throw the cloth in the rubbish heap outside the house. She did this. They then went to sleep.
    
22. Count 13 was a further count of serious indecent assault. B said when she woke up the male accused was licking her vagina and the female was frying pancake. The female accused saw what he was doing. This was on the 1^st March 2017.
    
23. In so far as count 8 of the indictment in relation to the female accused was concerned, B said that she had been hit with a stick on the back, leg and arms. A, who had returned to the property on the 1^st March 2017, confirmed that this assault had occurred. There was evidence that others heard or were present at the beating. One of those was a daughter of the accused who lived at the address in other premises. B gave evidence that she asked the female accused if what A had said was true and the female accused said it is true and for her to go and ask her father. He said the male accused became angry and threw stones at A. The female accused became mad and told her if she went with A she would become homeless. A had told B she would not leave without her. She said she met up with a couple at a plantation and told them she had been violated and A told the couple what had happened to her. They took them to central police station. Their statements were taken in separate rooms. She had been taken to see her mother at the Nukunuku police station and spoke to her about what happened in the presence of a PC Vaitai, and others. B said her mother had said what is all this that you are explaining.
    
24. Under cross-examination, Mr Moala put to her a written witness statement taken at about 9pm by PC Vaitai in which she had said that the rape took place on the Wednesday morning after the male accused had returned from feeding the pigs, and not as she said in evidence after they had returned home from the vigil. She also mentioned, in her statement, that after the rape they had gone to the bush but did not maintain this in her evidence. She continued to maintain that the rape took place at night. The female complainant had a small torch during the rape.
    
25. As to the counts of indecent exposure at Ha’ateiho beach, B said that it had arisen after they had gone first to church and then to the beach. It was suggested that it was all made up about going to Navutoka and she said it was not. It was about 9pm and the male accused went diving and got two fish from spear fishing.
    
26. As to the offending at the school in Vaini, she said that, although the incident was not mentioned in her statement, she had told a police officer but not PC Vaitai about it. The Crown prosecutor confirmed that she had only learned about the incident about two weeks before. She said she was about to tell Vaitai when the police indicated it was time for them to go home. Vitae later confirmed she had told her about this incident but did not record it.
    
27. Mr Moala also sought to put to the witness a second statement dated 4^th November 2017said to be a clarification taken by PC Moimoi, who was the officer in charge of this prosecution but overseas at the time of the trial. The point made by Mr Moala was that there was no variation in that statement indicating that the rape had taken place shortly after returning from the virgil. She could not explain the difference and said this to me;
    

“Sir, the only thing I know is that I was raped at night time on Tuesday night and the eating of my vagina took place on the Wednesday morning.”

28. She was cross-examined at length about her two statements and said she had been a virgin before the rape and had told police this in one of her statements. She again said repeatedly in answer to questions about the timing of the rape that it took place at night after they had returned from the virgil and that she was telling the truth about this.
    
29. PC Vaitai gave evidence that, at the time of interviewing B, she was a probationary police officer, and it seems still was. She said that night police were short staffed as a consequence of the Queen Mother’s funeral, when A and B appeared at the counter with the couple who brought them to the station. She observed that B looked very scared. She took the statement from B at about 9pm after B had told her she had been penetrated. She said that there was concern in her mind about the appearance of B and her current nature at that time but there was a serious need for her statement to be recorded. She said she was very tired and changing from one topic to another. She said that all the answers and information had come from B. She had not read out the statement but simply asked her to sign it. She agreed that it was her impression from what she had been told that the rape occurred in the morning. She said B’s answers were not consistent. She had struggled to understand her information. She regarded her state of mind as unstable. She admitted that she did not ask about the incident at the school which she said had been raised by B because she had been told to concern herself with only the events of that day. She also said that she had taken a record of interview from the female accused in which she had admitted being involved in an assault on B.
    
30. She was also present as a corroborating officer or counter signatory to an interview conducted by PC Moimoi on the 24^th March 2018. That interview was very important because in it the female accused admitted being present at the rape of B by the male defendant and was recorded as saying that it took place in the evening at the accused’s residence after the vigil when they had arrived home. She said that she felt anger in her. She could not say anything but stayed quiet because it was really hard for her to talk as she was scared to say anything before the male accused got angry with her. Further, she was recorded as admitting involvement in assisting the male accused to commit a sexual indecency on A (touching her breasts) at a plantation they had gone to, and the record revealed that she had told police where this was.
    
31. I admitted the record of interview of the female accused after a short voir dire because she had objected that her answers had not been voluntarily given and that an inducement had been made to her. I rejected both objections. Nor as was suggested had she been denied a lawyer. She had also denied that the information given had been provided by her but was made up by the interviewing police officer. I deal with this allegation, later
    
32. Under cross-examination of PC Vaitai, it was suggested to her that incriminating answers given to the interviewing officer Moimoi had not been provided by the female accused. After I had ruled the record of interview admissible, Mr Moala indicated during his cross-examination of Vaitai that he wanted officer PC Moimoi called. I ruled that was not possible because she was overseas and that, if he had wanted her present, then he should have made application earlier before the trial had commenced. The corroborating officer Vaitai was present to formally admit the document. She had been present sitting close to Moimoi she said and the accused when Moimoi had typed up the accused’s answers. She could see her type but not read what she had typed. She had said that she had printed out the document and brought it to the accused to sign. She showed her where to sign. She did not read the answers over to her. She said that Moimoi asked the questions and typed the answers given by the female accused. She did say that she heard the answers given by the accused to the question posed in particular to question 23, and 24 of the Record of interview. She maintained the answers she had heard given and that nothing was made up. There was, she said, no conspiracy as was suggested to her between she and Moimoi to prepare a false document. She also said that she recalled the answers given by the accused in relation to the offending involving A.
    
33. Vika Hui gave evidence that she was at her plantation with her husband when the girls arrived. B had told them it seems through a conversation with her sister in the back seat she was no longer a virgin. She thought the girls looked sad and took them to the police.
    
34. Lusia Kolo was the daughter of the male accused who resided in one of the buildings near the accused with her sister. She was able to confirm that she had from inside her kitchen heard A calling out to her mother to stop. She told the Court that A had then told her and her sister what her father had done mentioning only that she had said he had taken down his trousers. That was all.
    
35. Her sister, Sesilia, admitted going to the vigil. She said she recalled taking baths before the vigil. She said B went and had a bath first and left the accused in the house where they were residing. She said the female accused came out of the house after B had gone back in. She went to bath also. She never saw the male accused come out. The female accused’s bath took a while but not too long. She thought it was about 11 pm they had come back from the vigil. She, the next day, heard A yelling to the female accused not to keep beating B. She said that A had asked to share something with her and her sister and told the Court that A had said her father had indecently assaulted her. She burst into tears when she gave this evidence. She later said the female accused whether it was true and she had said yes but it was up to her and her father. She said the pigs were normally fed about 5pm.
    
36. Hulita Ulufonua was a doctor experienced in gynecology who gave evidence that she had examined B on the 2^nd March 2018. She said that she had a small laceration at 8 o’clock in the vagina. She said the hymen had already been interrupted. She said the laceration was consistent with forced intercourse. She said that she could not say that the hymen had been disrupted during this intercourse. She agreed that would suggest intercourse on an earlier occasion. Had she been a virgin, she would have expected some sign of bleeding. She said that a small percentage of women had a thin hymen. She also said the loss of a hyman can occur without sexual contact. She said she would not expect to see a laceration to the area unless it had occurred during forced intercourse.
    

Defence case

Both accused gave evidence. Both denied all the sexual allegations.

37. The male accused did not make any statement. The male accused admitted that B had moved in with them on the 24^th February. He said he usually slept in the living room. They used sheets for partitions. His wife and B used to sleep on the bed.
    
38. He said on, Sunday the 26^th February 2017, he being an elder in the Mormon church woke up and fed the pigs before 7. They went to church. He said he had been married to his wife for 7 years. After church and a meal, he took B, his wife and his granddaughter aged 10 to the beach. He said that his wife and the children went for a swim but he did not. He went to sleep on the ground beside the van. They came back and woke him up and they went home. No sexual activity took place
    
39. He said they went to the school at Vaini where he and his wife cleaned the next day. They had wanted B to return to school. He intended to see the headmaster about this. It was a Mormon school. He said he went and saw the Principal about B’s admission and worked all day doing general cleaning. He confirmed chemicals and cleaning agents were kept in a storeroom. He had a key for the lock. He said that no offending took place.
    
40. He said that B met the principal the next day, after feeding the pigs. That night they prepared for the vigil and after his wife bathed she told him to have a bath. He then went and bathed and came back and put his clothes on. They left about 8pm returning about 11 or 12. He said he remained outside in the van all night and had some leftover food from the vigil brought to him. He said his daughters knew about this. They had gone to the vigil. No offending had taken place
    
41. He said on Wednesday the 1^st March 2017, he was woken up by his wife and went to feed the pigs. He was in the van. After that, they went to the plantation to collect coconuts with B and others. Later that day, he heard his wife repeatedly calling B and threatening to beat her up. No offending took place.
    
42. In relation to A’s complaints, he said when they went swimming he and his wife were about 100 meters out. He was not aware that A was at the foreshore area. He said he went and washed at the house where he worked as security from an outside tap and he was naked when his wife and A arrived. He said he walked across to get his towel. Nothing happened in the sea.
    
43. He admitted that, on one occasion, he had woken up before and his wife had told him he was scratching himself when sleeping. He denied masturbating in front of A under a sheet.
    
44. H denied that anything had occurred at the plantation when he had been there with his wife and A. He had gone there for taro leaves. He said that A had not wanted to help. She got into an argument with her mother about this and he walked off to get the taro leaves. He was away about an hour and came back about 10 am. They went to Ha’ateiho. He denied any incident had taken place at the plantation. He denied she had ever got out of the car and tried to stab him. He admitted a hoe was at the plantation hidden in the crops. It was hidden in manioke crops about 5 meters from the car.
    
45. He confirmed that A was living with them in January 2017. She did not live with them in February. He said that she had lived with them on previous occasion. His said that his wife had told him A did not like him. She did not listen to or obey her mother and he said they had to arrange for her to stay with another couple.
    
46. When asked if he knew of any reason why the girls would be making sexual allegations against him, he said he did not know anything in relation to the matter; the only thing he knew is that they never liked him. He said that they wanted to get rid of him.
    
47. Under cross-examination, he denied any of the incidents involving B. He said that B had gone swimming with the others and had not been left with him. There were no sexual incidents. He said that they did not go to Navutoka. He said he never went diving on Sundays only swimming. He denied all three had gone into the storage room at the school in Vaini. He was the only one that went inside. He denied any impropriety there or that his wife had been involved.
    
48. He confirmed they had gone to the school again early on the 28^th February, 2017 the day of the vigil which they all later attended for the Queen mother. He said the principal had wanted to see B about her going to that school. After that they went home. He said that his wife had bathed first. He had gone to feed the pigs. He said he had not come back into the house after being at the school. He had been feeding the pigs when his wife had bathed. He never saw anyone having baths. He had a bath after feeding pigs shortly before they went to the vigil at about 8pm. He was never in the house alone with B. He denied anything sexual went on in the house before they went to the vigil. He said after they returned he did not go into the house but slept in the van. It was very hot, he said. He told them to leave his food outside. He denied being involved in any sexual activity with B. He denied any impropriety with B the next morning. He said later that day he heard his wife calling out she would hit B. That is after he said they had been swimming. He also, under cross-examination, denied any sexual activity with A.
    
49. The female accused had made two statements under caution to the police. She had admitted in one the beating but said she believed she was justified in doing so to discipline. In the other, she admitted that a rape had taken place and that she had been present although not involved with it. She said she did not express any dissent essentially because she feared her husband would get angry. She repeated that, in relation to the second record of interview, she had not made admissions concerning the rape but attributed them to false statements typed up by the PC Moimoi, and that she had only signed the answers because she had been told to. I found this assertion false, convenient and disingenuous for reasons mentioned later. She confirmed that her husband had slept outside and had not entered the house. She denied any sexual activity had taken place between B and her husband. She confirmed that his was the first time B had stayed with them. She had been staying with grandparents. She said B came to stay because she had been disciplined by her grandparents. She had stayed between the Friday and the Wednesday before she went to the police.
    
50. She confirmed that they had all gone swimming at Ha’ateiho for about an hour and B had swum also. They had not gone to Navutoka. She denied any impropriety at the school. They went back to the school the next day before going to the Vigil. She confirmed B had bathed first. Her husband was feeding the pigs. After that she got clothes for B and she went outside to have her bath. Her husband took a bath after they had got ready for the vigil. About 8pm they went to the vigil.
    
51. They came back about 11 or 12 and she said her husband never came inside and was sitting in the van smoking and food was taken outside to him. She denied any sexual offending took place. She said that she believed that his was something made up by her B with A and that all her children hated her husband. She said that they resented her marrying her husband and she seemed to suggest also the children did not like being left with grandparents.
    
52. She gave evidence of meeting A by chance at the market near the hospital and she apologizing to her. She had hugged and kissed her. She had said it was made up because they hated her husband and they were angry at her for beating up B.
    
53. She admitted that here had been a meeting between she and the girls with police present in which A had told her to tell the truth and she had denied involvement prior to the interview. Moimoi had told her at that meeting that she would be charged with abetting a crime of rape. She said, at that meeting, B had said nothing had happened.
    
54. She said that during the course of the interview Moimoi had not shown her any statements from the complainants. She also denied giving any answers in relation to involvement with offending with B. She admitted that the plantation they went to with A was located opposite Keleti beach but she said that she could not recall giving such an answer. She denied any sexual offending had taken place next day. She confirmed her husband was sleeping in the van, and went to feed the pigs. Later, they went to the plantation to pick coconuts. She had not made pancakes but warmed left over food.
    

Reasons for Verdict

55. This was a long trial with a substantial amount of conflicted evidence being adduced over a period of nearly two weeks. I had the opportunity of seeing both complainants A and B giving their evidence and being tested in cross examination and sometimes, as with the younger complainant B, I asked questions. At the conclusion of all the evidence and reflecting upon what they said, I concluded that they were both reliable witnesses to what were very serious allegations that not only involved serious sexual misconduct by the male accused but also involved unusually knowing assistance in some instances by their mother. I had the opportunity of regarding them very closely when they were giving their evidence and I was impressed with their evidence, both giving testimony in very difficult circumstances. I did not detect that either were evasive in their answers.
    
56. I do not accept that either had motives for collaborating to give false accounts. Both came to live with their mother for short periods and gave account of very unusual circumstances occurring within a short period involving not only the male accused but their mother also. The fact that the sexual offending in some cases involved the mother was, in my view, so unusual that I should have regard to the evidence of the complaints as mutually strengthening the credibility of each other. I drew both counsel’s attention to DPP v P [1991] 2 AC 447 and in particular the reasoning of Lord Mackay at page 462. Having observed the witnesses being cross-examined on alleged reasons for manufacturing their account namely being angry at the female accused for the assault (beating) on B, and a resentment of her for marrying the male accused whom they allegedly hated, I reject the suggestion that this motivated any false account. Nor do I accept the evidence of the female accused that she, in the month, it seems before trial met the older girl A in the markets by chance and that she hugged and kissed her, and apologized to her giving her reasons for making false complaints as alleged. A, who was aged 17, at the trial denied this meeting took place and I accept this denial. I consider rather that this was a deliberate lie told by the female accused to extricate herself and the male accused from their predicament. Nor do I believe the allegation raised by the female accused also that in a conversation before she made admissions relating to sexual offending with police present B said that nothing had happened. That would almost certainly have concerned the police had she said this.
    
57. These were very serious allegations. Neither of the complainants came across to me as exciting suspicion that, although they may have disliked the male accused and been angry at the mother for beating B, they would stoop to manufacturing false allegations which they, as older girls, would know would have very serious consequences. It made no sense to me that, if A had told these things to her mother at the market, she would have given evidence on oath denying the meeting and proceeding to implicate both accused in serious offending. There was very little suggestion made of B that she was conspiring with her sister to manufacture a false account.
    
58. The count of rape of B, in my view, was plainly central to the involvement of both accused. I accept B’s evidence beyond a reasonable doubt that this occurred. I accept the doctor’s evidence that there was evidence of a laceration in relation to the labial area which the doctor opined was consistent with forced intercourse. B gave evidence it was painful as the male accused attempted to penetrate her. I do not consider it relevant in this case that the medical evidence was to the effect that her hymen was not intact and that this was not associated with this sexual occasion, as affecting the assertion by the accused to the police that she had been a virgin. The doctor expressed the view that a hymen can be interrupted by causes other than penile penetration although not commonly and some women had thin hymens. In any event, there had been no suggestion to B that her assertion that she was a virgin was untrue nor application made to have her recalled on this point after the evidence of the doctor. She was 14 years of age and I see no reason for her to have deliberately told a lie about her virginity so as to falsely implicate the accused. Nor did the fact that semen was not located by the doctor at a result of her examination about 24 hours after the alleged event. The doctor said had the accused ejaculated, there may have been some detected during the examination. B was not asked if she had washed prior to leaving the property. It was the presence of the laceration and the unusual nature of the sexual offending involving her mother and the accused that was in my view strongly supportive of the truth of the complainant’s evidence that painful intercourse had occurred at the hands of the accused with the assistance of her mother.
    
59. In relation to the male accused, I also found it very concerning that it was never put to B that the male accused had not entered the house after returning from the virgil but had spent the night outside in the van and had food taken to him there. Nor was it put to either of his daughters who had attended the virgil and it had been suggested by him in his evidence that they knew also that he had slept outside. The only person who supported this was his wife. I do not find either of them reliable witnesses on this aspect or in relation to any of their denials of being involved in sexual activity with either of the complainants. The fact that such an important aspect as where he slept was not put to B or other witnesses who returned after the virgil leads me to infer that this a recent invention to place himself out of the house and thus incapable of having had intercourse or later the next morning, oral sex with the complainant. Had this not been a recent invention, I have no doubt Mr Moala who had cross-examined B closely would have raised this important matter with her had he known about it.
    
60. Mr Moala concentrated upon the fact that the account given by the accused in her initial statement to the police taken by PC Vaitai had said that the rape took place in the morning after the virgil after the male accused had fed the pigs. I took this inconsistency seriously. However, having listened to the complainant’s repeated assertion that it had taken place at night after they had returned from the virgil and not the next morning, and that she was telling the truth, and seeing no obvious advantage to her in maintaining this was the case had it not occurred at night, I did not accede to the submission she was unreliable. On either timing, she had implicated both accused and his wife in very serious offending. I was also assisted by the evidence of PC Vaitai who indicated that she was concerned about the complainant when she interviewed her describing her as scared and switching from topic to topic. She thought unstable. I formed the view that at 9pm at night after what must have been a very unpleasant and frightening experience she would have been suffering the effects of trauma and should not have been interviewed, still less by a probationary and inexperienced police officer until she was clearly calm and had sleep. I determined that her evidence on the issue of rape and both accused’s involvement was reliable.
    
61. In so far as the female accused was concerned, additionally I had before me her record of interview in which she had admitted that the virgil took place and the rape when they got home. She admitted being present although giving no active support. She, however, I note told her daughter the pain would subside giving at least some support for the view that she was present actively encouraging the accused in his endeavours in her record of interview. I do not accept that the police made her statements up. I regard this, like her assertion that A had apologized to her in the market, or her support for her husband’s evidence that he was in the van outside and had no opportunity to commit the rape, as another convenient lie to attempt to extricate herself from her very prejudicial answers, not only in relation to the rape of B, but the serious indecent assault of A at the plantation. The information she gave in her answers from Question 16 of the record of interview could only have been provided by her, and, similarly, with the information concerning the serious indecency where I observe she gave information as to where the plantation was located and she confirmed the location in her evidence.
    
62. Had the police wanted to manufacture a false account they would have manufactured one consistent with B’s statement that the rape occurred in the early morning as B had said in her statement of the 1^st March 2017 and not after the vigil as the answers given by the female accused stated. That was the first information the Police had received that the rape had taken place at night when the family had returned home after the vigil. She had signed most of the answers given, and although she was not asked to read the answers over, I have no doubt she had the capacity to do so admitting being able to read in Tongan. Vaitai gave evidence that she had heard the answers given and I have no doubt the accused provided the answers she gave. She did not give me the impression she would meekly accede to signing answers that did not record what she had told police and some of the answers given were quite short and easily read. As I have said I found her denial of making the admissions disingenuous. As against the female accused, her answers in the record of interview strengthen the case against her. I reject the assertion that she played only a minimal role in the offending if, at all, as suggested in her record of interview and prefer the account of her offending as given by B. Accordingly, I find that as charged in the indictments, Count 6 (female ) and 12 (male) respectively both accused guilty beyond reasonable of abetment to rape and rape, the male accused having carnal knowledge of B plainly without her consent. As I have said, the female accused was not a mere spectator but fully participated in giving assistance to the male accused to have his way sexually with B, her daughter.
    
63. I do not accept Mr Moala’s submission either that he was at all prejudiced by Constable Moimoi’s unavailability. The countersigning officer was available and I am satisfied that she was an honest officer and that there was no potential for the record of interview to be manufactured. Mr Moala knew before the trial, in any event, that Moimoi was not available to give evidence and should have made application for her to be made available had he depended on her evidence and should not have left his such an application until well into the trial and after the record had been ruled admissible. In my view, this application was opportunistic.
    
64. For reasons I have given, I do not accept the reliability of the testimony of either accused as it relates to their innocence of any of the other offending, and where their evidence conflicts with the complainants on the offending, I prefer and act upon the evidence of the complainants beyond any reasonable doubt.
    
65. I accept beyond reasonable doubt A’s assertion in Count 1 that in the month of January 2017 the male accused wilfully exposed his buttocks and penis to A at Sopu. I do not consider she made this up.
    
66. I do not accept that he indecently exposed himself as charged by exposing his penis and masturbating before A in January at Ha’ateiho. I consider that the offence is not made out because A said that what he did was done under a blanket and in my view this did not amount to exposure. He is acquitted of count 2.
    
67. I further accept that he seriously indecently assaulted A at Ha’ateiho when he touched her breasts without consent in January 2017 in the motor vehicle. This was at the plantation. Further, I find beyond reasonable doubt that the female accused is guilty under count one of her indictment of aiding him to commit this offence by holding her arms or hands. In her case, as I have said there is an admission made to this offending in the record of interview which is evidence only in her case. I accept also on this occasion that A reacted by getting out of the car and trying to stab him with a hoe. There was evidence given by the male accused that a hoe had been left in the vicinity. I also find beyond reasonable doubt that this conduct satisfied count 4 domestic violence, against the male accused as charged in that it violated the expectations and acceptances of family and domestic life.
    
68. That represented the end of offending against A. She left the premises and it was in late February 2017 that B came to the residence. As I have said, I am satisfied that A did later try to warn her sister to leave plainly fearful for her safety. I consider that in relation to A that the actions of the accused amounted to grooming and it was B who was to bear the full brunt of her step father’s licentiousness aided in some instances by her mother when she came to live with them for a few days in late February 2017.
    
69. In relation to count 5 of the indictment against the male accused I find beyond reasonable doubt that, in February 2017 at Ha’ateiho, the male accused seriously indecently assaulted B by kissing her on the mouth and sucking her breasts. The female accused was charged with abetting this offending but I am not satisfied that she knew about it before it had occurred. She is acquitted of this charge.
    
70. In relation to count 6 of the indictment against the male accused, I find this established beyond a reasonable doubt namely that, at Navutoka, the accused committed serious indecent assault by licking her vagina and sucking her breasts. I find also beyond reasonable doubt that the female accused aided this offending by holding her hands to allow oral sex to happen, and then later watching the male accused as he sucked her breast and is guilty as charged. The accused denied that they went to the beach that night but I prefer the detailed account given by B including recalling the accused’s remark after licking B’s vagina as now he was full, before he went diving-spear fishing at night, and getting two fish. Navutoka is a long drive from Ha’ateiho and I do not consider that this 14 year old would be making up this occasion.
    
71. I find count 7 of domestic violence established beyond a reasonable doubt against the accused. Plainly the offending at Navutoka went beyond the expectations of family and domestic life.
    
72. I find also that at the school in Vaini the male accused committed a serious indecent assault ( count 8 ) on B when he and his wife locked her in the storage room and there the male accused kissed her mouth and fondled her vagina outside her clothes whist sitting on a chair. The female accused was present and plainly not as a spectator. She is guilty also of abetment under count 4 of her indictment. Again, I find the recall of B as to this event so precise and unusual that I have no difficulty in believing B’s account.
    
73. I find count 9 of the indictment domestic violence established beyond a reasonable doubt against the male accused. Plainly, the events of count 8 are beyond the expectations of family and domestic life.
    
74. I find count 10 of the indictment, indecent exposure established that on the 28^th February 2017 at Ha’ateiho he wilfully exposed his penis to B and asked her to suck his penis. She said when she declined to co-operate her mother on her return from having a both did so. Again, I find this kind of behaviour would lead an indelible impression upon a 14 year old and is not the sort of evidence I would expect to be contrived involving a mother.
    
75. I find established beyond reasonable doubt in count 11 that the male accused did suck B’s breasts and he is guilty of serious indecent assault. The further particular of licking her vagina was not made out. I do not find established that the female accused aided this offence. I find she was outside having a bath. She is acquitted of count 5 of her indictment
    
76. As I have said, I find beyond reasonable doubt that the male accused is guilty of count 12 of his indictment that is the serious offence of rape. Beyond reasonable doubt I accept the complainant that he had carnal knowledge of her against her will. He is convicted of count 12 of his indictment. The female accused is also guilty of aiding this rape beyond any reasonable doubt and is guilty of count 6 of her indictment.
    
77. The male accused is also beyond reasonable doubt guilty of domestic violence in count 13. Plainly, rape of B was beyond the expectations of family and domestic life.
    
78. I find the male accused also guilty on the 1^st March 2017 at Ha’ateiho beyond reasonable doubt in that he did lick the vagina of B after she had woken up. He is guilty of count 14 of the indictment namely serious indecent assault. I accept B’s evidence that his wife was watching him do that as she was making pan cakes. In my view, she was more than a mere spectator. Standing by without showing dissent in these circumstances amount to encouragement to her husband. I find her guilty of aiding serious indecent assault.
    
79. I find beyond reasonable doubt domestic violence established against the male accused. Plainly, his actions in count 14 are beyond the expectations and acceptance of family and domestic life.
    
80. I find beyond reasonable doubt the female accused guilty of common assault. She plainly beat, meaning intentionally inflicted force on B without B’s consent and without any lawful justification. The beating in my view went beyond any concept of ordinary parental discipline of children and the force used was plainly excessive because it caused A to try to intervene. I also consider that this constituted domestic violence contrary to count 9. A beating of this sort which I accept was harsh goes beyond the reasonable expectations and acceptances of family life.
    

Verdicts

81. I summarise the Verdicts as follows. As against the male accused, he is found guilty and convicted on;
    

Count 1, indecent exposure;

Count 3, serious indecent assault;

Count 4, domestic violence;

Count 5, serious indecent assault;

Count 6, serious indecent assault;

Count 7, domestic violence;

Count 8, serious indecent assault;

Count 9, domestic violence;

Count 10, indecent exposure;

Count 11, serious indecent assault;

Count 12, rape;

Count 13, domestic violence;

Count 14, serious indecent assault;

count 15 domestic violence.

He is acquitted of count 2, indecent exposure.

82. The female accused found guilty and convicted on;
    

count 1, abetment of serious indecent assault;

count 3 , abetment of serious indecent assault;

count 4, abetment of serious indecent assault;

count 6, abetment to rape;

count 7, abetment of serious indecent assault;

count 8, common assault ;

count, 9 domestic violence

She is acquitted of;

count 2, abetment of serious indecent assault;

count 5 abetment of serious indecent assault;

83. Finally, there are certain observations I wish to make. Cases involving sexual offending on young people are taken very seriously by the Courts and are of the utmost importance. They are often difficult and sad cases to try. In my view, cases of this kind should be tried by prosecutors who are experienced. In this case, the prosecutor had limited experience but despite her limitations made a good effort in prosecuting the case. I was concerned, however, that far too much responsibility was placed upon her for a case of this importance and difficulty.
    
84. I was also concerned that a statement was taken from complainant B when she was plainly considered to be in no good state of mind by Police constable Vaitai herself a probationary constable with no previous experience of this kind of offending. B, in my view, should not have been formally interviewed at 9 o’clock at night when the officer herself had difficulty in it seems understanding B and she was plainly upset. I have no doubt this child had been traumatised by this experience at the hands of her mother and the accused over the past few days when it is obvious to my mind that grooming took place before the events after the virgil, when penetration took place. It is important to ensure young complainants are calm and settled enough to give a satisfactory account of their experience and the offending before they are interviewed by an experienced police officer preferably one experienced in child sexual offending, and in the presence of some adult who they trust. This requires experience, understanding and tolerance by an interviewing officer. Although probably a Tonga resource prevents this, it should be noted that interviews of children in sexual cases today in New Zealand are conducted by specialist interviewers and videotaped. At the very least, those conducting interviews should be experienced officers in this kind of offending and the children should be made to feel safe and secure before interviewing is attempted.
    
85. I ascertained in this case, that the prosecutor herself because no police were available in the case (Moimoi being on leave and PC Vaitai unavailable to do so due to personal difficulties) interviewed B herself in the presence of a support person, shortly before trial to find that her account differed materially from her initial police statement that became an issue at trial. The officer in charge of the case, PC Moimoi, who had interviewed the female accused on the 24^th March 2017, must have been aware that there was an inconsistency between the female accused’s statement as to the timing of the rape and that given to Vaitae earlier on the 1^st March, 2017. Moimoi, as officer in charge of the case, should have attended to this inconsistency by re-interviewing B soon after the inconsistency became known, and advised the Director of Prosecutions of this.
    
86. The Crown prosecutor did not have a brief taken from B as to the time of events being after the return from the virgil. I was informed candidly by her that Mr Moala was not aware of this change until trial when she gave him before the trial commenced a copy of her written opening. That concerned me. When this happens, during the briefing stage (and this is not uncommon) the witness should be re-interviewed by police and a supplementary brief prepared and signed by the witness. If the Crown prosecutor is not in a position to have a brief of evidence taken by a police officer, as I was informed here was the case, then he or she should ensure there is a witness available and an informal brief prepared within the prosecuting office. That information and brief should be made available to the defence as soon as possible. The defence is entitled to be informed of significant changes before trial and the safest way to do this is to ensure a signed record of the change is available. As events turned out, there, in my view, was no prejudice to the accused. Mr Moala did not seek any further time for preparation and the trial proceeded with the inconsistency firmly before the Court.
    
87. I was concerned that, despite my insistence some years ago that witnesses be subpoenaed as soon as trials are set down, this was not done in this case. I was informed by the prosecutor; however, that PC Moimoi in January 2018 was told of the dates verbally and made no comment about going on leave. Without informing the prosecutor, however, PC Moimoi went on long leave overseas before the stand by date for trial in June and was unavailable for the firm fixture for trial in September being still overseas. She had the carriage and was officer in charge of a very serious case and I am very disappointed she did not exhibit more responsibility. It is fortunate that PC Vaitai was available as countersigning officer or the Crown would have lost the female accused’s record of interview and would have been without her important admissions.
    
88. Finally, I see no point in an indictment already lengthy, for numerous counts of domestic violence which are simply surplus to existing counts to be added to the indictment. One count on an appropriately serious charge should be enough. Adding more may give an exaggerated sense statistically of the amount of domestic violence in the community.
    

C. B. Cato
DATED: 19 SEPTEMBER 2018 J U D G E