R v 'Otutoa [2018] TOSC 5; Criminal Case 75 of 2013 (26 January 2018)

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

CR 75 of 2013

BETWEEN: R E X - Prosecution

AND: SIONE ‘OTUTOA - Defendant

BEFORE THE HON. JUSTICE CATO

Mr Finau for the Prosecution
The Accused is unrepresented

V E R D I C T

1. The accused, Sione ‘Otutoa, was charged with two counts of rape contrary to section 118(1)(a) of the Criminal Offences Act. The prosecution had charged in an amended indictment a second count of rape shortly before the trial commenced, arising out of the same incident, and I gave my consent to this. Particulars of the rapes (carnal knowledge without consent) were that they occurred in relation to complainant A at Kolofo’ou on or about the 27th February, 2013.
   
2. The reason for the delay in trial was that the accused did not answer his bail and a warrant was issued on the 30th July 2013 after he did not appear on what would have been his first appearance in this Court after committal. He was brought before this Court after his arrest on warrant and remanded in custody on the 21st June 2017. The Crown chose not to make anything of the fact that the accused did not answer his bail for reasons which I consider appropriate. As a result, however, of the delay I heard from the prosecution that relevant witnesses, who had made statements, were no longer available to give evidence. Consequently, the complainant, who was 19 at the time of the alleged offending was the only witness to give evidence for the prosecution.
   
3. The complainant’s evidence was to the effect that, on the 27th February 2013, she had attended a “drink up” with a friend from about midnight to 2am. She said she had about 5 cups of alcohol but she was not drunk. Later, she said she had missed her boyfriend who was not present and had wanted someone to take her to her boyfriend’s place.
   

4. The group had gathered at a residence in Kolofo’ou and she had sat next to the accused. She said that she had known him for some time and had met him on about five occasions. She knew him as Sione Uli, who in his record of interview he admitted he was also known as, and he confirmed also that he knew the complainant. After hearing her evidence and the accused in evidence, I am left in no doubt that the complainant well knew the accused prior to the incident and the accused did not dispute this.

5. The accused had offered to take her home saying he wanted to buy some cigarettes, after she had asked somebody else to do this. She went with him and at a point marked on an exhibited map reasonably near the area where the ‘drinkup” was she said that he asked her for sex which she declined. She then said that she was taken into a dark area and forced to the ground she recalled on a concrete slab, where the accused violently raped her. He held his hand across her face to stop her screaming out, punched her in the ribs area and had non-consensual intercourse with her. He ejaculated. He then told her he wanted to have sexual intercourse a second time and proceeded to have non-consensual intercourse with her again. He told her not to tell anyone or the police and had at one point threatened to beat her to death if she did not comply with his wishes. He told her to go back to the “drinkup”. She said she did. She then asked the person with whom she had come to the “drinkup”, who was a friend of her boyfriend to take her to her boyfriend, and they left. She said that she had told that person what had happened and later her boyfriend. I was advised, however, that these witnesses were no longer available to give evidence.

6. The complainant said that she was too scared to make a complaint immediately and had no experience of these kinds of situation. She did, however, make a complaint to police after about a week. The accused was spoken to by the police and, in a short record of interview on the 11th March 2013, said that the allegation was a lie and that he would only answer in court and not ask any more questions. He had admitted however, that he knew the complainant and that he was known as Sione Uli which was the name the complainant had used in reference to him. He said that he lived in Kolofo’ou.
   
7. Under cross-examination, he suggested to the complainant that the money used to buy the alcohol they had consumed had come from her, and that this had been derived from her having intercourse with a Chinese who had a store in the area. I had granted leave for him to cross - examine the complainant on the basis that the answers she gave might be relevant to an issue the accused, who was unrepresented, might raise. She appeared to admit some association of this kind which I took to be prostitution, but said this had occurred on an earlier occasion and was quite independent of this evening. She denied that the alcohol for the “drink-up” had been purchased from moneys derived from this activity, on the evening of the incident before the Court. She also denied, earlier that evening being involved with the accused in a plan with others to rob the Chinese man, a plan which the accused said had involved in her opening the door of the Chinese man’s shop so the robbers could enter. Under quite extensive cross-examination, she consistently said that she was raped, that violence had occurred and that she had been threatened with serious violence if she went to the Police or resisted the accused.
   
8. The accused gave evidence. He said that he had not been with the complainant as she alleged and denied raping her. His account was quite different. He said that the accused and the person with whom she had come to the “drink up” with and another had earlier formed an intention to rob the occupants of the Chinese store. He said that the complainant had an arrangement to have sexual relations with the occupants and that, during the course of this encounter, she would leave the door open whereupon he and others would enter and rob. He said they had waited near the store and he had seen the complainant come to the downstairs area and use the bathroom on two occasions. He was, however, unable to contact her by text as she did not answer. Later, when she left, he forcibly took the money from her and used it to buy alcohol. Whilst he had asked her about deriving the money from prostitution for the acquisition of the alcohol which she denied, he did not put to her that he had taken the money off her by force later and used it to buy alcohol. She denied any intention to become involved in a robbery and had said her encounter with the Chinese was earlier and independent of these events, as I have mentioned. The accused, under cross-examination maintained his defence and denied that there had been any involvement in walking her from the “drinkup” or in raping her. He said that she had left the “drink up” on her own accord with her boyfriend.
   

Submissions

9. The accused had submitted to me that the allegations were untrue. He submitted that there had been a delay of 7 days in her making a complaint and that I could not reliably act on this. He submitted that he had met the accused with her boyfriend in that time over a burglary involving her boyfriend’s residence and she seemed to recall that meeting. She did not say anything about rape then. He submitted that there was no evidence of any concrete slab being in the area where she had been raped. He submitted there had been no evidence of bruising given or medical report. He complained that there were no witnesses other than the complainant.
   

10. Mr Finau, for the prosecution, submitted it was understandable that she did not make a complaint immediately because she had been exposed to violence and had been threatened. She also had said she was inexperienced in such matters and had said the police did not question her about whether there was bruising; nor did she know to get a doctor’s examination. He submitted that the photo produced in evidence of the alleged scene of the rapes is not one which shows the totality of the area and the complainant had said it was dark.

Ruling

11. I had the opportunity of hearing the complainant’s evidence both in chief and under cross-examination for quite a lengthy period. Although nearly five years had passed she gave a lucid and careful account of events of that evening, and I detected no deception in her answers to anything put to her in cross-examination by the accused. A screen was in place. Her account was that the accused had raped her twice after she had asked to be taken home. I am satisfied beyond any reasonable doubt that it was the accused who was involved with her that evening as I have said and not any other person. She knew him as Sione Uli and he admitted to going under this name and also that he knew her, at the time, as I have mentioned. I am satisfied that prior to the incident she knew the accused and that it was no other who was the rapist.
    
12. I accept her evidence that any sexual relations she had with a Chinese person in the area occurred at an earlier time, and not as the accused suggested earlier that evening, as a precursor to a robbery. The fact that she may have engaged in prostitution on an earlier occasion which she appeared to accept had occurred does not affect my judgement that she was telling the truth about the rape. I had no reason to disbelieve her. It was not suggested by the accused that she had any motive to make up false allegations of rape against him. Nor was this a case involving the issue of excess alcohol and consent or mistaken belief in consent. The accused simply denied he had been involved in raping her.
    
10. The period of time that has elapsed since the arrest and trial was largely contributed to by the accused and it is neither the fault of the complainant nor the prosecution that witnesses to the events of that night are not now available. However, I take into consideration the accused’s complaint that there was no forensic evidence to link him with the offending or physical evidence such as photographs of bruising. That said, I also direct myself that, this being the only evidence before I can convict, I must take care and be satisfied beyond any reasonable doubt that the complainant is telling the truth, that intercourse with the accused did take place on or about the 27th February, 2013, that it was non-consensual as she alleges and that it occurred on two occasions. At the time of the offending, a corroboration direction was required, but in recent times the necessity for this has been abolished. However, I direct myself also that it is dangerous to convict on the uncorroborated evidence of the complainant and here there is no corroboration. I also direct myself that, even though I do not accept the accused’s account of the events of that night and found him an unconvincing witness, before I can convict of rape, the presumption of innocence demands that I must be satisfied of the truthfulness and reliability of the complainant’s account, beyond any reasonable doubt. Taking into account all these warnings and other complaints, I am satisfied that the incidents occurred beyond any reasonable doubt and that she was raped on two occasions by the accused, as she alleges.
    
11. I am so satisfied that non-consensual sexual intercourse or carnal knowledge occurred on two occasions as alleged and further that there was no basis for the accused to have believed her to be consenting. I consider that it is understandable in the light of the threats and violence she had been exposed to as a nineteen year old that she should be uncertain of what to do and whether to report the incident and delayed in doing about seven days, and may have even met up with the accused during that period with her boyfriend. I consider her reporting of the incidents in any event timely given the circumstances of the offending and her age and as she said inexperience of such matters. I accept she had told her friend and boyfriend what had happened that evening, although they were not available to give evidence. I have observed that there is no apparent reason disclosed in the evidence or suggested by the accused for her to have made any false complaint against him, or to have exposed herself to the ordeal of trial based on a non-existent or fictitious account of rape: nor, as the accused at one point seemed to suggest of her, having intercourse with her boyfriend and not he; she having said and I accept her evidence that her boyfriend had not been present. As I have said, I am satisfied beyond any reasonable doubt that she knew the accused well enough before this incident to identify him as her attacker and rapist, and she had not confused him with some other.
    
12. Verdict – on both counts of rape; guilty.
    

He is convicted on both counts to await sentence.

C. B. Cato
DATED: 26 JANUARY 2018 J U D G E