R v V [2018] TOSC 59; CR 118 of 2018 (29 October 2018)

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

CR 118 of 2018

BETWEEN: REX

Prosecution

AND : V

Accused

BEFORE LORD CHIEF JUSTICE PAULSEN

Hearing : 15-17 October 2018
Date of Verdict : 29 October 2018

Counsel : Mr. ‘A. Kefu SC and Mrs L Fakatou Aonima for the Prosecution

Mr. S. Vaipulu for the Accused

VERDICT

The charges and prohibition on publication

[1] The offences with which the accused (Mr. V) is charged are alleged to have occurred in 1991 and 1993. Mr. V is charged with two counts of rape, contrary to s. 118(1)(a) of the Criminal Offences Act, Cap. 18, Vol 1, 1988 Revised Laws, and two counts of indecent assault, contrary to ss. 124(1) and (2) of the Criminal Offences Act, Cap 18, Volume 1, 1988 Revised Laws.

[2] Pursuant to s. 119 of the Criminal Offences Act there is an order prohibiting the publication of any details which might identify the complainants and such details shall not be published in the Kingdom in any publication available to the public or be broadcast in the Kingdom.

[3] The relevant provisions of the Criminal Offences Act (which in so far as they have been amended continue to apply by operation of s. 15(b) of the Interpretation Act) read as follows:

Section 118(1)(a) of the Criminal Offences Act, Cap. 18, Vol 1, 1988 Revised Laws:

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

(a) against her will

.....

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

Sections 124(1) and (2) of the Criminal Offences Act, Cap 18, Volume 1, 1988 Revised Laws:

(1) Any person who shall commit an indecent assault on any female shall be liable on conviction thereof to imprisonment for any term not exceeding 2 years.

(2) 2A girl under the age of 16 years cannot in law give any consent which would prevent an act being an indecent assault for the purposes of this section.

The elements and cautions

[4] The complainants are Mr. V’s former sisters-in-law, S and ‘A. Mr. V was married to their eldest sister, ST. Mr. V and ST are now divorced but were married when the offences are said to have occurred.

[5] In counts 1 and 2 of the indictment, Mr. V is accused of raping S at Houma in 1991 and again in 1993 (when she was 13 and 15 years old respectively).

[6] In counts 3 and 4 of the indictment, Mr. V is accused of having indecently assaulted ‘A at Houma on two occasions in 1993 (when she was 13 years old).

Rape

[7] The essential elements that the Prosecution must prove beyond a reasonable doubt in order to establish a charge of rape under s. 118(1)(a) are:

(a) That Mr. V had carnal knowledge of S (that is, that there was intentional penetration of the vagina of S by the penis of Mr. V); and

(b) That it was against S’s will; and

(c) That Mr. V knew that S did not consent to sexual intercourse or he was reckless as to whether she consented to it.

Indecent assault

[8] The essential elements that the Prosecution must prove beyond a reasonable doubt in order to establish a charge of indecent assault under s. 124(1) are:

(a) That Mr. V assaulted ‘A in circumstances;

(b) That were indecent.

[9] To establish an assault it must be proven that Mr. V intentionally touched or otherwise made deliberate physical contact with ‘A without her consent.

[10] To be an indecent assault the contact must be such that right minded persons would consider it offensive to contemporary standards of modesty and privacy as to be indecent.

Cautions

[11] I have reminded myself of a number of important matters. The first is that the burden of proof lies on the Prosecution 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 Mr. V to prove anything, nor was there any obligation for him to call evidence or give evidence himself. The fact that he did give and call evidence does not in anyway alter the burden or standard of proof upon the Prosecution. The onus and the standard are unchanging and rest on the Prosecution throughout.

[12] I remind myself also that I must judge the case only on the admissible evidence which I have heard in this Court. On the basis of the onus and standard I have already mentioned, the Prosecution stands and falls on the evidence which the Prosecution and Mr. V chose to call before me (R v Fa’aoso (Unreported, Supreme Court, CR 520/95, 13 February 1996, Hampton CJ).

[13] Next, whilst there is no legal requirement that I give myself a corroboration warning in a case such as this (Teisina v R [1999] Tonga LR 145 (CA)), out of an abundance of caution I do note that care is to be taken when acting on the uncorroborated evidence of a complainant, accepting of course that I may do so if I am satisfied beyond reasonable doubt that the complainant is telling the truth.

[14] Fourthly, I note that the alleged offences are said to have occurred up to 27 years ago and that over time memories of events may fade or decay and may be affected by subsequent experience or suggestion (D v R [2015] NZCA 171). I have therefore taken special care in my assessment of the evidence, reminding myself of the possibility that stale evidence may be unreliable and that I should exercise caution in deciding whether to accept or reject such evidence and in my assessment of the weight to be given to the evidence.

[15] Fifthly, in reliance upon s. 11 of the Evidence Act, Mr. Vaipulu submitted that the complaints of S and ‘A could not be considered because they were not made shortly after the alleged offences were said to have occurred. This submission misunderstands the effect of s 11 which provides that in cases of rape or other sexual offences, evidence of a voluntary complaint made by the victim shortly after the alleged offence was committed is admissible by way of corroboration that the victim’s conduct was consistent with his/her evidence at trial.

The evidence

S’s evidence

[16] S was born on 14 May 1978 and is now 40 years old. She is married with five children. She is the second daughter of Simote (deceased) and H. She was one of four girls in the family. In order of descending ages, the girls were ST, S, ‘A and N. There were also five boys of the family.

[17] Mr. V and ST married in 1990. They went to Niuafo’ou immediately after the wedding. When they returned to Tongatapu (about which more will follow) they lived in the family home at Houma. There were two bedrooms in the house. One bedroom was used by Mr. V and ST. One bedroom was used by S, ‘A and N. Simote and H slept in the living room. The boys slept in a small hut.

[18] In 1991, S was in Form 1 at Apifo’ou College. On a date that she cannot now recall, ST, Simote and H had taken ST’s and Mr. V’s child to a traditional healer. At around 6pm, S was sleeping on the sofa in the living room. She does not know where her other sisters were. She was awoken by Mr. V kissing her. He took off her clothes and sucked her breasts before having sexual intercourse with her. S said that she felt pain and told Mr. V to stop but he said it was okay. When he finished there was blood on the sofa.

[19] When her parents came home S did not tell them what had occurred. She told them that she was feeling sick and was sent to her room. She did not tell her parents because Mr V had told her not to say anything. She did not know who tidied up the bloodstains. She did not consent to what had happened. It was not until this year that S told ST what had happened.

[20] One evening in 1993, when she was in Form 3, S was again sleeping in the living room and Mr. V did the same thing to her. There was no one else in the house at the time. She became pregnant and stayed away from school from around the middle of the year. This was not the second time Mr. V had sex with her. He had done it several times. She gave birth to her son, SP, in March 1994. She again did not tell her parents as Mr. V told her he would do something to her and ST. S told her parents that the father of the child was a boy called Kelepi. She was not in a relationship with Kelepi.

[21] S recounted an incident in 1993 when her parents had told her and ‘A to stay home and prepare food while they went to the market and ‘A had suddenly gone. When her parents arrived home, ‘A was fetched from another house in Houma and scolded for not doing her work. ‘A had cried and said that Mr. V had gone into her room and did something to her. According to S, ‘A explained ‘what was done to her and I listened and that’s how I know about it’. Simote and H told ST and Mr. V to leave the house and they went to stay at another house in Houma but they would visit.

[22] SP told S that at Christmas 2017 Mr. V told him that he was his father. Later, on the way to town one day, ST had asked S whether SP was Mr. V’s son. She had admitted that he was. S made her complaint to the Police against Mr. V after learning about rumours in New Zealand that Mr. V was spreading.

[23] S said that Mr. V was in Tongatapu during 1991 when the first rape occurred and that it was later in 1991 that he and ST had travelled to Niuafo’ou. She was not already pregnant when she had sexual intercourse with him in 1993.

[24] Under cross-examination, S acknowledged that in statements to the Police she had said that the first rape occurred in 1990. She maintained that she was raped in 1991. She was unaware of a statement of one ‘Eseta ‘Utumoengalu that Mr. V and ST had not moved from the house until 1996. She had no knowledge of a relationship between ‘A and a Police Officer called NT. She had told SP that Kelepi was his father. Mr. V and ST had travelled to Niuafo’ou following their marriage in the company of Mr. V’s mother, Susana, and H.

[25] In a major departure from her evidence in chief, S said that the first rape had occurred in the bedroom not the living room and that the blood was not on the sofa but on the bed. She said that she was raped by Mr. V on the sofa on other occasions but that she only bled the first time he raped her and this was in the bedroom. She said this was her first time in Court and she was nervous. She also said that the first time that Mr. V had raped her was ‘the only occasion I remembered’ and that she could not recall the other occasions.

[26] Mr. Vaipulu put it to S that in 1993 she had talked and been playful with Mr. V and that the sexual intercourse was consensual. She denied that it was consensual.

[27] S also denied that she was aware that ST had lodged a complaint against Mr. V under the Family Protection Act or that she had been encouraged by ST to lodge her complaint. When asked who went with her to lodge her complaint she said ‘myself’.

‘A’s evidence

[28] ‘A is 38 years old and is married with five children. In 1993 she was in Form 2 at Apifo’ou College and living with her parents at Houma. Mr. V and ST were living in the same house. On a Friday night, they had prepared food for the market. Simote and H left early for the market the next morning. ‘A slept in the girls’ bedroom. She awoke when Mr. V put his fingers into her vagina. He was the only other person in the room. She did not cry out but chased him from the room. Later, she was woken again by Mr. V licking her vagina. She started to cry and left the house. Mr. V told her to stay but she did not. She saw a lady sweeping but did not really know her and did not tell her what had happened. She went to the house of her friend, Lavinia Kioa, and her aunt Koleti. She told them what Mr. V had done. Lavinia now lives in New Zealand and Koleti has died. Koleti told ‘A to stay. She did not go home until around 6pm when her parents sent for her. Simote, H and an aunt were at home. Her parents were angry with her for not tidying up the house. She told them that she had left because Mr. V had entered her bedroom and had tried to do things to her. They told her to go and prepare food. She later learned that H had told Mr. V and ST to leave the house but they continued to live there for some time. After they left they would visit. There was no talk about what had happened. ‘A did not think of complaining to the Police as she was living under her parents.

[29] ‘A said she made her complaint because of stories she had heard that Mr. V was telling people that he had sex with all of the sisters of ST. She was aware that S had made a complaint as she had gone with S to the Police.

[30] Under cross-examination, ‘A admitted that she had a relationship with NT but said that was not until she was in Form 5. She denied that Mr. V had ever caught her and NT together. She denied also that Mr. V had pointed out a love bite on her neck. She had not told her parents that Mr. V had put his fingers into, and had licked, her vagina.

[31] In re-examination, ‘A said that she was in Form 5 in 1997 when she had a relationship with NT and that in 1993 she had no boyfriend.

SP’s evidence

[32] SP is 24 years old and is S’s eldest child. In 2017 he was fruit picking in New Zealand. He was invited to ST’s house to celebrate Christmas with Mr. V and his children. ST was in Tonga. In the course of the evening of the 24^th or 25^th of December they were drinking beer and he had talked to Mr. V about his father and how he wished his father was with him. Mr. V then told him that he was his father. Mr. V also told him to contact him if he needed help and gave SP his phone number. Mr. V’s eldest son and eldest daughter heard this conversation and the daughter cried and hugged him and Mr. V. SP did not tell ST what Mr. V had told him. He had not contacted Mr. V again as he did not need any help. Mr. V’s daughter had spoken to him about getting a blood test but he could not get time off work to do it.

[33] Under cross-examination, SP said when he was younger he had asked S who his father was and she had told him it was a waste of time asking. She had told him on one occasion that his father was Kelepi but he did not believe that. He denied that he had asked Mr. V whether he was his father.

ST’s evidence

[34] ST is 45 years old and was married to Mr. V in 1990. They separated around 2012 and were divorced around 2015. She lives in New Zealand. She has recently remarried.

[35] In 1993, ST and Mr. V were living with her parents and siblings at Houma. On a Friday night they were making food for the market. On Saturday she went to the market and returned home around 2-3 pm. She found that the ‘market things’ were not tidied up. She asked Mr. V why ‘A had not tidied up and was told that ‘A had slept and then gone to a friend’s house. She sent one of her brothers to collect ‘A but he came back and said that she would return later. Her parents arrived home around 6pm and she ‘badmouthed’ ‘A to them about her failure to tidy up. Simote sent the brother to get ‘A. ‘A returned and was threatened with a beating. ‘A cried and said that she was going to tidy up but Mr. V had entered her bedroom and tried to take off her clothes. Her parents were no longer angry with ‘A. ST remained outside with Mr. V and he told her that ‘A was telling the truth. ST forgave Mr. V and she apologised to her parents. Because of this they had to find another place to live. About a month later they moved to another place at Houma. There was no talk of the Police being informed because her apology was accepted.

[36] ST received a call in January 2018 from her daughter about Mr. V being SP’s father. She asked S about it. S told her that she had had a defacto relationship with Mr. V and had not said anything because he threatened her. ST told S that she should not be ashamed to lodge a complaint.

[37] After they married on Friday, 19 January 1990 ST and Mr. V left for Niuafo’ou the next day with Susana and H to return Susana home. In April or May 1990, Mr. V was hospitalised in Vava’u before returning to Tongatapu. Their first child was born in September 1990 and Mr. V was in Tongatapu for the birth and did not return to Niuafo’ou until 1991. She came back to Tongatapu before the birth of her second child in March 1992. Mr. V came with her and they never returned to Niuafo’ou. They lived at Houma during all of 1993.

[38] In cross-examination, a good deal of time was spent questioning ST about her relationship with Mr. V and recent conflicts that she has had with him here in Tonga and in New Zealand. These included an occasion when ST claims that Mr. V cut her off on the road; a dispute at the funeral of Mr. V’s sister; an occasion when they argued outside the house at Houma; and the issue of a protection order in favour of ST under the Family Protection Act, which had prevented Mr. V from returning to New Zealand.

[39] ‘A had said that Mr. V had entered her room and tried to take off her clothes and touch her vagina and that they could not have sex because she had escaped. It was put to ST that her evidence was a lie and she said that all that she knew was that Mr. V had cried and apologised to her for what he did.

[40] ST said that her first child was born on 27 September 1990 and was christened and that it was another 3-4 months before Mr. V returned to Niuafo’ou and she followed. She then conceived her second child and flew back to Tongatapu before that child was born on 27 March 1992.

[41] In re-examination, ST said that they had first returned from Niuafo’ou in April or May 1990. She said that Mr. V was in Tongatapu until March or April 1991 and that they returned to Tongatapu towards the end of 1991 and did not return to Niuafo’ou again. They were living in Tongatapu for all of 1992 and 1993.

H’s evidence

[42] H is the mother of ST, S and ‘A. She is 66 years old and was married to Simote until his death. ‘A made an accusation against Mr. V. It was a Saturday and they had sold goods at the market. S, ‘A and N had helped prepare the food but not ST. She told ‘A to tidy up the market things because of flies. She left early as she needed to get to the market by 6am to get a stall. The market closes at 5pm. When she returned home the market things were not tidied. ST said that ‘A had left so she asked one of her sons to fetch ‘A. She was at Koleti’s house. Koleti had a niece called Lavinia. When ‘A came home, H said she would beat her. ‘A cried and said that while she was asleep Mr. V had pulled at her leg. H told ST immediately that she must move out of the house. Her sister was there and she was embarrassed so did not ask any more questions of ‘A about what had happened. She asked later but ‘A just cried. She thought about making a complaint to the Police but did not do so as ST was Simote’s favourite child and he said they should pity ST.

[43] In cross-examination, H said that ST had been at the market but had gone there to do shopping and that ST was at the house when she arrived home. When she left the house in the morning S, ‘A and N were there but when she returned home N was there but she did not see S and ‘A was at Koleti’s house. Mr. Vaipulu asked H whether all ‘A told her was that Mr. V had pulled her leg. She said that ‘A had told her that Mr. V had licked something but ‘A did not say where as she was embarrassed.

The accused (Mr. V)

[44] Mr. V is 51 years old and lives in New Zealand. He married ST on 20 January 1990 and the following Monday they caught a ferry to Niuafo’ou where they lived until July 1990. He then got ill and was hospitalised in Vava’u for two weeks before traveling to Tongatapu. He soon returned to Niuafo’ou but ST remained in Tongatapu for the birth of their first child. She returned in October or November 1990 and they lived in Niuafo’ou. ST returned to Tongatapu in December 1991 but he remained in Niuafo’ou until January 1992 to spend one last Christmas with his family and to work the copra. He denied raping S in 1991 and said that he was in Niuafo’ou that year.

[45] Mr. V acknowledged having sexual intercourse with S in 1993 but said it occurred only once and was consensual. He was at home sick on the sofa in the living room and S was being playful and after telling her to go away he grabbed her hand and she bent down and kissed him and they went into the bedroom and had intercourse. S had already dropped out of school because she was pregnant. He then said that he did not know if she was pregnant to him or to Kelepi.

[46] It was SP who at Christmas time asked him if he knew who his father was. He told SP to ‘make it as if you are my son’. His son and daughter had heard and asked why they were not told about this and he said to them that he did not know who S was pregnant to because it was said she was pregnant to Kelepi.

[47] When ‘A was in Form 2 or 3 he had gone to the outdoor toilet at around 2-3 am and had seen ‘A and NT in a dirt area where the pigs slept. The next day, he saw a love bite on ‘A’s neck and pointed it out to her. ‘A put on another shirt but it did not cover the love bite and he put his finger on her neck and told her the bite still showed. ‘A then went out. Later he heard H was angry. ‘A had complained about him because she was afraid that he would tell her parents about what she had done with her boyfriend. He had apologised to ST, the parents and ‘A even though he did not know what he had done wrong. There were no problems and they continued to live in the same house. It was a long time later that they moved out because he wanted to better provide for his wife and children.

[48] All the allegations against him have been made because of his separation from ST. He spoke at length of the conflicts between him and ST to which I have earlier referred.

[49] In cross-examination, Mr. V said that he was 23 years old and ST was 16 years old when they married and she was 15 years old and still at school when they started their relationship.

[50] Mr. V did not accept that he remained in Tongatapu for 3-4 months after the birth of his son or that he had finally returned to Tongatapu in December 1991.

[51] Mr. V accepted that it was shameful that he had sexual intercourse with S but said he had had no intentions towards her and it was what she had wanted.

[52] He did not tell ‘A’s parents about the love bite because he did not think like that. Contrary to his earlier evidence, he said the reason he and ST left the house was because he had touched ‘A’s neck.

[53] In re-examination, Mr. V said that he and ST had stayed in the house until 1995-96 then moved out. He also said that he did not know what complaint ‘A had made about him but thought she had complained about him touching her neck.

Sione T

[54] Sione T is 66 years old and Mr. V’s brother. He gave evidence that after their wedding in January 1990 Mr. V and ST, along with H and Susana, went to Niuafo’ou from Tongatapu and that Mr. V and ST had gone back to Tongatapu in July 1990 when Mr. V was ill. Mr. V returned to Niuafo’ou in August 1990 and remained there until January 1992. ST had stayed in Tongatapu to have her first child and then returned to Niuafo’ou.

LF

[55] LF is 38 years old and Sione T’s daughter. She was adopted by Sione T’s parents. She grew up in Niuafo’ou. She was 9 years old in 1990 and recalls that Mr. V, ST and H had come from Tongatapu and they all lived in the same house. Mr. V was ill in the middle of 1990 and he and ST left to Tongatapu. Mr. V returned to Niuafo’ou a short while later. ST returned later with her first baby. Mr. V did not go back to Tongatapu again until 1992.

[56] In cross examination LF said that Mr. V returned to Niuafo’ou in October 1990.

The defences

[57] In relation to the first count of the indictment, Mr. V’s defence is that he did not have sexual intercourse with S in 1991. He has put forward an alibi defence that he was living in Niuafo’ou during the whole of 1991.

[58] In relation to the second count of the indictment, Mr. V admits that he had sexual intercourse with S in 1993 but says that it was consensual.

[59] In relation to the third and fourth counts of the indictment, Mr. V says that he did not indecently assault ‘A in 1993.

The submissions

The defence

[60] Mr. Vaipulu submitted that the Prosecution had failed to prove any of the charges beyond reasonable doubt. He argued that S and ‘A were malicious and were encouraged to make their allegations by ST. He noted the lack of ‘independent’ witnesses. He submitted that S’s and ‘A’s evidence had been discredited because of differences between it and statements they made to the Police. He noted that S had given different accounts in her evidence as to where she was raped in 1991. He argued also that it was established that in 1991 Mr. V was in Niuafo’ou and could not have raped S. Mr. Vaipulu also submitted that ‘A had not explained to her parents exactly what had happened in the bedroom and that it was significant that Mr. V and ST remained in the house for some time and then visited. Mr. Vaipulu urged the Court to disregard SP’s evidence as irrelevant.

The Prosecution

[61] Mr. Kefu submitted that the Prosecution had proved its case because S and ‘A were both truthful witnesses. He argued that there is no merit in Mr. V’s assertion that the allegations were malicious as there was no good reason for S or ‘A to make false allegations and Mr. V had offered nothing but absurd explanations in response to them. He submitted that Mr. V is a sexual predator who preyed on young girls and whose offending was exposed because he had revealed to SP that he was his father leading to rumours about the sisters.

[62] In respect of Mr. V’s alibi, Mr. Kefu accepted that the onus is upon the Prosecution to rebut the defence. He urged the Court not to accept the evidence of Sione T or LF who were, he argued, giving scripted evidence and Mr. V was lying to remove himself from the scene. Mr. Kefu argued that if ST was mistaken, and the first alleged rape occurred in 1990, then Mr. V could have committed it between August and December of that year. If the rape occurred in 1991, then it could have been in January or in December.

Discussion

S and the rape charges

[63] To convict Mr. V on the rape charges I must accept S’s evidence as to what occurred. Only S and Mr. V were said to be present and no one else knew anything of what occurred between them until very recently.

[64] In relation to the 1991 allegation, it was established that when she first made her complaint to the Police, S had said that she was raped in 1990 and only in a later statement, and then in her evidence, said that she was raped in 1991. It is understandable after such a long time that S would have difficulty being precise about the date that the rape occurred and this matter does not, to my mind, undermine her credibility.

[65] However, when she first gave evidence S said that she was raped in the living room and had bled on the sofa. She did not know who tidied up the bloodstains. Her evidence was detailed and believable because of the confident manner in which she delivered it. In cross-examination, she substantially changed her evidence and said that she had been raped in the bedroom and that the blood was on the bed. Her explanation was that this was the first time she had given evidence and she was nervous but she did not give that impression and that does not adequately explain, such a fundamental change in her evidence. This is particularly so as S also said that this was the first occasion that Mr. V had raped her and that it was the ‘only occasion I remembered, the most other occasions I can’t recall’.

[66] S’s evidence in relation to the second rape in 1993 was curt with almost none of the detail that she gave in relation to the first rape. She did not say, until under cross-examination, that she had not consented to having sexual intercourse with Mr. V on that occasion. Consistent with her evidence as to her lack of recall of the occasions she was raped, I was most concerned that S did not in a fact have a good recollection of the events in 1993.

[67] In addition, I consider that S gave evidence that was incorrect or embellished in important respects. She said that she heard ‘A explain what Mr. V had done to her when the other witnesses, notably ‘A and H (whose evidence I prefer), said that ‘A had not done so. S said that she had gone by ‘myself’ to the Police to make her complaint but ‘A’s evidence was that she had gone with her. S was firm in her evidence that both Mr. V and ST were in Tongatapu in 1991 yet she said she could not recall Mr. V returning to Tongatapu in 1990 due to illness. I cannot see why she would be so clear on one matter and have no knowledge at all of the other. In addition, she was quick to deny knowledge of matters that I consider she would likely have been aware, such as A’s relationship with NT and that ST had obtained a protection order against Mr. V.

[68] I found S’s conduct in naming Kelepi as the father of P perplexing. It seems very odd that would be accepted if, as she says, she had no relationship with Kelepi and he denied being the father.

[69] In relation to Mr. V’s alibi defence, whilst I have reservations about the evidence of Sione T and LF, I do not consider that the Prosecution discharged its onus to rebut the defence. Even assuming that Mr. Kefu is correct in his submission that Mr. V would have remained in Tongatapu for the birth of his first child in September 1990, I consider it quite possible that he may have returned to Niuafo’ou during late 1990 and remained there until 1992. His evidence that he stayed in Niuafo’ou in 1991 to have one last Christmas with his family and to work copra seems entirely feasible.

[70] Mr. Kefu attacked Mr. V’s evidence that S had consented to sexual intercourse in 1993 as absurd. In some respects Mr. V’s evidence was absurd, but in relation to this allegation none of the factors Mr. Kefu advances in relation to S’s age or the circumstances under which the encounter occurred are so compelling as to satisfy me that she did not consent to sexual intercourse on that occasion.

[71] The length of time that has passed since the events S described, my misgivings as to S’s credibility and the failure of the Prosecution to rebut the alibi defence mean that I am left with reasonable doubt as to whether Mr. V had sexual intercourse with S in 1991 and as to whether S consented to the sexual intercourse that occurred in 1993. It follows that these charges must be dismissed.

[72] I wish to make clear that I am not making any finding that S was not raped. My decision to dismiss the allegations S has made against Mr. V is made because I am not satisfied that they allegations were proven to the standard required in criminal cases.

‘A - the indecent assault charges

[73] In relation to the charges that Mr. V indecently assaulted ‘A, I find that A was a credible and truthful witness. She impressed me as a witness. She was considered and plausible and gave her evidence in a measured convincing manner. Her evidence was not undermined in cross-examination.

[74] I accept beyond reasonable doubt that during 1993 Mr. V entered her bedroom while she was sleeping and indecently assaulted her by, on the first occasion, putting his fingers into her vagina and, on the second occasion, licking her vagina. I am in no doubt that these acts were both intentional and indecent.

[75] I am also satisfied beyond reasonable doubt that it was due to these assaults that ‘A fled the house to find refuge with Lavinia and Koleti and that she remained with them until around 6pm that day when her parents required her to return home. That ‘A had left the house without doing her chores causing her parents to be angry with her and that she had made a distressed allegation against Mr. V is supported by the evidence of S, ST, H and Mr. V himself, although he said he thought it was about touching ‘A’s neck.

[76] I am also satisfied beyond reasonable doubt that it was as a result of ‘A’s allegation that ST and Mr. V were told to find a new place to live and that they later moved to another house in Houma. I am also satisfied that ‘A did not make a complaint to the Police because she was just 13. That decision rested with her parents and her father was against laying a complaint due to pity he felt for his favourite child, ST.

[77] Mr. Vaipulu advanced a number of reasons why ‘A’s evidence should not be accepted. He argued that the complaint was malicious and that ‘A had acknowledged that she had made the complaint because of the rumours. The immediate difficulty with this submission is that ‘A’s complaint was not a new one. She made a complaint against Mr. V on the day that the assaults occurred and the decision not to report it was made by her parents. It is not surprising, nor can it be considered malicious, that as an adult and upon hearing that Mr. V had raped her sister and was spreading rumours that she would report the assaults to the Police.

[78] Mr. Vaipulu argued that ‘A’s evidence was that she was in Form 2 at the time but the summary of facts said she was in Class 6. The summary of facts was not read nor produced into evidence. It is not a statement of ‘A. I can take nothing from this.

[79] Mr. Vaipulu argued that it was significant that ‘A did not explain to her parents what happened in the room. ‘A said, and I accept, that she told her parents that Mr. V had tried to do things to her and her parents sent her away. This was confirmed by H who said that ‘A was crying and told her that Mr. V had touched her leg and ‘I no longer asked questions’. H was embarrassed because her sister was there and ‘we all know the Tongan way’. It was therefore proven that ‘A did made a complaint against Mr. V, that she was distressed and that the complaint was regarded as serious but rather than explore what exactly had happened her parents sent her away.

[80] Mr Vaipulu argued that H’s evidence that Mr. V and ST were told to move out of the house is contradicted by the evidence of S, ‘A and ST that they did not leave that day and when they did leave they visited often. Mr. Vaipulu failed to put this to H. I accept that Mr. V and ST did not move out immediately but I am also satisfied that they were told to move out because of ‘A’s complaint. In so far as H may have been mistaken as to exactly when they moved out, that does not make me doubt ‘A’s evidence in any respect.

[81] Mr. Vaipulu also relied upon Mr. V’s evidence that he had caught ‘A with NT and she had a love bite. I accept ‘A’s evidence that she did not have a relationship with NT at the time. If it was the case that ‘A was having a romantic liaison with NT it was hardly likely to have taken place in the dirt amongst the pigs. I cannot see any reason at all why ‘A would make a false complaint against Mr. V or tell her parents that he had touched her neck and thereby draw attention to the very matter that Mr. V claims she was trying to hide. I also do not believe that Mr. V would apologise to ST, her parents and to ‘A (as he said he did), for only touching ‘A’s neck and no other witness had any knowledge of a love bite. I consider Mr. V’s evidence is untrue and I reject it.

[82] Counts 3 and 4 of the indictment that Mr V indecently assaulted ‘A have been proven beyond reasonable doubt.

Verdict

[83] On counts 1 and 2 of the indictment, I find that the charges of rape have not been proven and they are dismissed.

[84] On counts 3 and 4 of the indictment, I find that the charges of indecent assault have been proven beyond reasonable doubt and I convict Mr. V accordingly on those charges.

O.G. Paulsen

NUKU’ALOFA: 29 OCTOBER 2018. LORD CHIEF JUSTICE