R v Tu'ifua [2018] TOSC 58; CR 79 of 2018 (29 October 2018)

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

CR 79 of 2018

BETWEEN: REX

Prosecution

AND : FILIPO ‘AMANAKI LELEI TU’IFUA

Accused

BEFORE LORD CHIEF JUSTICE PAULSEN

Hearing : 10-11 October 2018
Date of Ruling : 29 October 2018

Counsel : Ms L. Macomber for the Prosecution

Mr S. H. Taione for the Accused

VERDICT

The charge and preliminary matters

[1] The accused is charged with one count of rape contrary to s. 118(1)(b) of the Criminal Offences Act. That section reads:

(1) Any person committing rape that is to say any person who carnally knows any female —

.....

(b) being aware that she is in a state of insensibility (whether due to sleep, intoxication or any other cause);

.....

shall be liable to imprisonment for any term not exceeding 15 years.

[2] I have made an order under s.119 of the Criminal Offences Act prohibiting the publication of any details which might identify the alleged victim. Such details shall not be published in the Kingdom in any publication available to the public or be broadcast in the Kingdom.

[3] Prior to the commencement of the trial I dealt with a challenge by the accused to the admission into evidence of statements that he had made to the Police following his arrest. I heard evidence and submissions in relation to that application on 8-9 October 2018 and made my ruling on 10 October 2018 excluding the evidence. I need say no more about that except to note that in arriving at my verdict no regard has been had to the accused’s statements or the evidence heard in relation to them.

[4] On 10 October 2018, the trial proper commenced and I heard evidence from two witnesses for the Prosecution. The accused chose not to give or call any evidence as is his right. Closing submissions were presented on 11 October 2018.

[5] I reserved my decision until 29 October 2018 because Mr. Taione had to travel urgently to New Zealand. I considered it preferable that the accused be represented by him when the verdict was delivered.

The elements and cautions

[6] There is no dispute as to the elements of the offence. The elements that the Prosecution must prove in order to establish the charge of rape under s. 118(1)(b) are:

(a) That the accused had carnal knowledge of the alleged victim (that is that there was intentional penetration of the vagina of the alleged victim by the penis of the accused); and

(b) That the accused was aware at the time of penetration that the alleged victim was in a state of insensibility (whether due to sleep, intoxication or any other cause).

[7] At this point I have reminded myself of a number of important matters which I find were very ably summarised by Hampton CJ in R v Fa’aoso (Unreported, Supreme Court, CR 520/95, 13 February 1996) as follows:

As this is a judge alone trial I remind myself of several fundamental matters. The most important of which is, of course, the fact the onus of proof lies on the Crown at all times and it is to the standard of proof beyond reasonable doubt in relation to the charges and every constituent element of the charges. There is no obligation on the accused to prove anything, nor is there any obligation of any sort for him to call evidence or give evidence himself. Here he chose not to give evidence but there is no significance in relation to that. The onus and the standard are unchanging and rest on the Crown throughout. I remind myself that I must judge the matter only on the evidence which I have heard in this Court; if the Crown chooses not to call all its potential witnesses then so be it. On the basis of the onus and standard I have already mentioned, they stand or fall on the evidence which they choose to call before me.

The evidence

The evidence of L

[8] The first witness was the alleged victim, L. She is a 26 year old single woman from Tatakamotonga and lives with her parents. On the evening of Saturday, 11 November 2017, L went drinking with her boyfriend, T, her cousin LL and the accused. She knows the accused and he is from the same village.

[9] The drinking session continued into the morning of Sunday, 12 November 2017 at various locations, including some that were a distance from Tatakamotonga. The group travelled in the accused’s car. They were joined for a time by another man but both he and LL, who was ill and had vomited from drinking, were dropped off. This left the accused, L and T. They drove to T’s hut at Tatakamotonga.

[10] The three continued drinking in the hut. L cannot recall anyone else being there. Over the course of the night a large quantity of alcohol was consumed by them all. L remembers leaning against the door of the hut and passing out. She did not wake until Sunday night at her own home where she had been taken by her mother.

[11] At the beginning of the evening L was wearing black shorts, a blue T-shirt and a red hoodie. She gave the hoodie to LL to vomit in and had swapped her T-shirt for T’s soldier’s vest because it was hot.

[12] L had been to the hut drinking on prior occasions and is familiar with it. It is just one room connected to a falekai. The room is small, almost square with dimensions of approximately 2 ½ by 3 metres. There is only one door into the room and you enter from the outside. There is a window next to the door but it is covered. There is another window consisting of two sets of glass louvres on the left wall as you enter the room. There is wire over the louvers. There are also curtains. L said that when the sun is shining a lot of light comes into the room.

[13] There are two beds in the room. One bed is on the wall directly in front as you enter the room. The other bed is on the left side of the room, next to the window.

[14] L said that her mother told her that she was raped by the accused and that she lodged a complaint with the Police about it. She believed her mother. She had not gone to the hospital

[15] L was asked by Mr. Taione if she had attempted to withdraw the charge and she said that the accused’s mother and father had asked that the charge be withdrawn but she would not consent to it.

The evidence of M

[16] L’s mother is M. She is 42 years old, married with 6 children. L is her eldest child. M gave L permission to go drinking on the Saturday night with LL.

[17] L had not returned home by 6am on Sunday morning. M went to her sister’s house (the mother of LL). LL arrived home at around 7am. M was told that LL had been dropped off in the accused’s car. M then went to Church.

[18] Church finished around 11am and upon returning home M found that L was still not there. M went to look for the accused’s car. She knows the accused and his car. She drove to T’s hut and saw the accused’s car. T was passed out drunk in the passenger seat. She went to look if L was in the hut.

[19] M walked to the window of the hut. Some of the wire had curled up and she was able to reach in with her hand and push aside the curtain. She could see directly onto the bed. It was afternoon and the room was bright. She saw that L was lying on the bed on her back with her head towards the door. L’s shirt and bra were pushed up above her breasts. Her shorts and under-clothes had been pulled down and were hanging off her right leg. L’s legs were spread about a metre apart. The accused was on top of L and M said that she could see that he was copulating and that his penis was inside L’s vagina. She could not remember what clothes the accused was wearing.

[20] M called out to the accused to open the door. She called him by name. M went to the door and waited for the accused to open the door. She knocked and called out to the accused about three times. She said that she thought it was about 30 minutes before he opened the door. When the accused opened the door he was fully dressed.

[21] M went into the room. There was no one other than L in the room. M beat L but she did not wake up. M dressed L and tried to carry her to her car but she could not. The accused helped her and she thanked him.

[22] M said that she was angry when she saw what was happening in the room but that she was not mistaken that she saw the accused inserting his penis into L’s vagina.

[23] When she took L home, M left her in the car and did not immediately tell her husband (who was himself passed out drunk) what she had seen, nor did she tell L’s grandfather. L woke later that night. M told her on Monday what had happened and that it was shameful. She went to the Police station that day and made a complaint.

[24] In cross-examination, M said that the wires over the louvers had gaps about 2 inches apart. She was asked how much of the wire had curled up and she said about half a foot of it. The louvres were similar to those in the No. 1 Supreme Court and the louvre blades were open. She acknowledged that there were curtains but did not think they covered the entire window.

[25] Mr. Taione put it to M that she could not have seen the accused’s penis enter L’s vagina if the accused was on top of her. She said that is what she saw.

[26] M initially said that she was observing the accused and L for about 10 minutes but when Mr. Taione asked her to estimate that period by reference to the clock in the courtroom it was one minute. Mr. Taione put it to M that it was unlikely she would have watched for that long as the accused would have ejaculated and that no mother would watch such a thing. M responded that she could not accurately say how long she was watching but she believed that the accused had sex with L as she ‘caught him red handed doing stuff to my daughter’.

[27] When asked about her evidence that she waited 30 minutes for the accused to open the door, M said she could not recall whether she had in fact waited for 30 minutes.

[28] M was asked about the height of the window and the position of the bed. She said that the bottom of the window was at the height of her chest (she indicated around the top of her breast) and that the bed was located next to but was lower than the window.

[29] Mr. Taione put it to M that she had not immediately filed a complaint with the Police, she had not told her husband or the grandfather about what she saw and she had not told L that she was raped until the Monday. M said that she had explained to L what had happened on the Monday and that she had told her husband and would not hide it from him. She also said that she had gone to lodge a complaint with the Police on the Monday morning but was told to return with L, who was at the market. They had returned together and lodged the complaint later that same day.

The submissions and the issue

[30] Mr. Taione conceded that the sole issue is whether the accused had sexual intercourse with L. He argued that the Prosecution had failed to prove beyond reasonable doubt that sexual intercourse had occurred because M was not a credible witness. There were broadly three strands to the argument. First, that M could not have observed the accused having sexual intercourse with L. Secondly, that M’s conduct was not consistent with her having seen the accused having intercourse with L. Thirdly, that M’s recall of events was poor.

[31] In respect of the first strand, Mr. Taione referred to the fact that the window was covered in wire, that there were curtains, that M had to put her hand through the wire and draw back the curtains to see and that the bed was located under the window. There was also a point made by Mr. Taione in cross-examination that if the accused was on top of L his body would have obscured M’s view.

[32] In respect of the second strand, Mr. Taione relied upon M’s evidence that she had watched the accused on her daughter for one minute and that she thanked the accused for helping her to take L to the car. He submitted that no mother would have acted in that manner. He also submitted that if M had thought L was being raped she would have called for help rather than knocking on the door and patiently waiting for what she said may have been 30 minutes for the accused to let her in. He also submitted that M had not reported what she had seen when she got home to her husband or the grandfather, had not told L promptly that she had been raped, did not take her to a hospital and did not promptly lay a complaint with the Police.

[33] In relation to M’s recall, Mr. Taione emphasised that M could not say what the accused was wearing and at some points of her evidence said that he was naked. He referred to the estimates of time that M gave of events which were not realistic and to the fact that on occasion M said that she only ‘believed’ the accused was doing ‘something’ or ‘stuff’ to her daughter.

[34] Ms Macomber submitted that M was a very credible witness who had said a number of times that she saw penetration occur. She argued that given M’s firm and repeated evidence as to that fact it would be wrong to infer any uncertainty on her behalf because she had said that she ‘believed’ that the accused was doing ‘something’ or ‘stuff’ to her daughter. Ms Macomber argued that the use of this phraseology was a reflection of Tongan sensitivity to the formality of the proceedings and a natural reluctance to speak of such matters. She referred me to R v Mafi [2006] Tonga LR 225 where the Court has recognised this last matter.

[35] Ms. Macomber also submitted that M was not angry with the accused and she had acted in a measured way when she had waited to take her daughter home and there was no inconsistencies in her evidence that could lead the Court to doubt her that she had actually seen the accused penetrate her daughter.

Discussion

[36] I agree that the issue in this case is whether the Prosecution has proved that the accused intentionally penetrated L’s vagina with his penis. There is no doubt, and Mr. Taione has never suggested otherwise, that at all material times L was rendered insensible by reason of intoxication and that the accused must have been aware of this.

[37] Before turning to the issue and by way of context, I consider that the following matters were proved beyond any reasonable doubt. The accused, L and T had been drinking for many hours before they returned to the hut where they continued drinking. L passed out as a result of her intoxication. When M went to the hut she was able to put her hand through the wire and glass louvres and draw back the curtains sufficient to observe the accused and L on the bed. The accused was on top of L and they appeared to be having intercourse. The accused and L were only a few feet from M and the room was well lit. M recognised that it was the accused on top of her daughter. She knew the accused and she called out to him by name to open the door. Importantly, M could not have known that L had passed out due to intoxication nor how it came to be that the accused, who was not L’s boyfriend, was (apparently) having sexual intercourse with her. M then went to the front door and knocked and asked the accused to open the door three times. The accused did not immediately open the door. When he did open the door he was dressed. M entered the room. M was angry but her anger was directed at L, who she beat. L was lying on the bed unconscious. She did not awake despite being beaten. Her shirt and bra had been pulled up above her breasts. Her shorts and underwear had been pulled down and were hanging from her right leg. She was otherwise naked. There was no one else in the room other than the accused and L.

[38] I am therefore satisfied beyond reasonable doubt that the accused was engaged in sexual activity with L while she was insensible but I must also be satisfied to the same standard that sexual intercourse actually occurred. Much depends on M’s credibility about which I am satisfied. M impressed me as a credible witness. I believe her to have been a truthful witness. I accept her evidence in all its important respects. She was measured in her evidence and in her behaviour. She acknowledged that she had been angry when she observed the accused on top of L but I did not detect that she holds any animosity towards him at all. She did not embellish her evidence nor did she downplay aspects of her evidence that did not put her in a good light, such as the fact that on entering the room she beat her daughter. She said quite firmly and convincingly that she saw the accused penetrate her daughter. She never resiled from that at any stage of her evidence and I believe her. Nothing at all in the matters that Mr Taione advanced leads me to doubt M’s evidence that she saw the accused have intercourse with L.

[39] As far as M’s ability to observe what was happening is concerned, I cannot see how the wires and curtains, or indeed anything else, would have impeded her view of L and the accused. The evidence was that the wire strands were about 2 inches apart, the louvres were glass and open. M pushed the curtain aside and although she was not sure whether the curtains covered the whole window she said that the room was bright. M was standing just a few feet away from the accused and L. She would have been able to clearly and closely observe them on the bed. The contention that the accused’s body would have obscured M’s view overlooks the fact that according to M the accused was copulating (that is, there was movement) and M was looking down on the couple from the side.

[40] I do not accept Mr. Taione’s submission that M’s conduct was not consistent with her having seen the accused do anything to her daughter. His arguments lack context and I can see nothing surprising in M’s conduct. When she first observed the accused on top of her daughter she did not know the circumstances. She could not have known L had passed out due to intoxication. Contrary to Mr. Taione’s submission, the accused was not ‘a stranger’ but someone both she and her daughter knew. She believed that what she observed was shameful and she was angry at her daughter. Relevant to this I note this exchange in the evidence:

Macomber Did you tell L at any time what you have seen?

M I told her later about it on Monday

Macomber What did you tell her?

M I told her that what she did was shameful

Macomber And then?

M And then L asked what did she do? And then I told her about what I had seen at the hut.

Macomber And then?

M L said that she didn’t remember anything.

Macomber And then what happened?

M We went to the Police station.

[41] That completely explains to my mind why M did not involve other people and call for help, and was patient waiting for the door to open and then thanked the accused for helping her take L to the car. She did not understand that her daughter had not been a willing participant and had no knowledge of what had occurred until she spoke to her about it. For the same reason, it is not at all surprising that M did not take L to the hospital. Upon hearing from L that she had no memory of what had happened M went to the Police that day to lay the complaint. She acted promptly in this regard. M denied that she kept anything from her husband and I believe her.

[42] In relation to the criticisms of M’s recall, the strongest argument advanced was that M was wrong in her estimates of the time she spent watching the accused and L from the window and waiting at the door. I do not think it likely that M spent a full minute at the window or anything like 30 minutes at the door. She is clearly a person who finds difficulty assessing the passage of time but that does not make me doubt her as to what she observed. It is true also that M could not say what the accused was wearing or if he was naked but again, in the circumstances, I do not consider that she would have had any reason to be concerned with the accused’s clothing. She was forthright that she could not remember what the accused was wearing. What she was quite clear about, and did not resile from, was that she saw the accused having sexual intercourse with her daughter.

[43] Ms. Macomber is correct that M was uncomfortable speaking of what she had seen. I consider she was more comfortable saying that the accused did ‘stuff’ or ‘something’ to her daughter than that they had sexual intercourse. This is understandable in a cultural context. Notwithstanding that, she did say on nine occasions in her evidence that she saw the accused’s have intercourse with her daughter.

[44] I am satisfied that the accused intentionally had sexual intercourse with L knowing that she was in a state of insensibility and that the elements of the offence with which he is charged have all been proven beyond any reasonable doubt.

[45] I should note that Counsel addressed me on the application of cl. 13(a) of the Constitution and s. 6 of the Criminal Offences Act in the event that I found there was reasonable doubt as to whether sexual intercourse had occurred. It is only necessary to say that had I considered reasonable doubt existed I would have had no hesitation in convicting the accused of attempted rape.

Result

[46] I find the accused guilty of the charge of rape and he is convicted accordingly

O.G. Paulsen

NUKU’ALOFA: 29 OCTOBER 2018. LORD CHIEF JUSTICE