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R v Fa'uvao [2018] TOSC 66; CR 38 of 218 (7 November 2018)

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


CR 38 of 2018


R E X

-v-


MANASE FA’UVAO


BEFORE THE HON. JUSTICE NIU


Counsel : Ms. ‘E. ‘Akau’ola for prosecution
Mr. V. Mo’ale for defence


Trial dates : 28 & 29 August 2018
Submissions : by defence on 21 September 2018 by the prosecution on
26 September 2018


Judgment date: 7 November 2018


JUDGEMENT


  1. The accused (Manase) is charged under s.118 (1)(a) of the Criminal Offences Act with rape in that on or about the 19th October 2017 at Tokomololo he had carnal knowledge of the complainant (Leavai) without her consent.
  2. S.118 (1)(a) provides as follows:

“118 (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”.


3. S.118. (3) and s.118(4) further provide as follows:

“118. (3) For purposes of sub-section(1) a man commits rape if at the time of sexual intercourse with a woman he knows that she does not consent to the intercourse or he is reckless as to whether she consents to it.”


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


Ingredients of the offence


  1. The ingredients or elements of the offence, which the prosecution must prove, are:

(a) that the accused had sexual intercourse with the complainant;
(b) that the complainant did not consent to that sexual intercourse; and
(c) that the accused knew that the complainant did not consent, or the accused was reckless as to whether she consented to it or not.

Sexual intercourse is penetration of the vagina with the penis, no matter how far in or for how long.


Burden and required standard of proof

  1. The burden of proving those 3 ingredients is upon the prosecution and the standard to which proof is required is proof beyond reasonable doubt. The prosecution must prove to me, so that I am sure, that:

Sexual intercourse admitted


  1. The accused Manase, does not dispute that he had sexual intercourse with Leavai. He says that he did have sexual intercourse with Leavai but that it was with her consent and that he knew that she consented to it.
  2. The complainant, Leavai, says that she did not consent to that sexual intercourse and that Manase knew that she did not consent, or alternatively, he was reckless as to whether she consented to it or not.

Complainant’s evidence in chief


  1. Leavai is 27 years old. She says she was married and had 2 children and her and her husband became separated in 2011 and their marriage was only dissolved this year. At the time of this incident she was living at Houma and was working as security watchperson for Fasi Security at the Retirement Fund building by the Tonga Power Office on Mateialona Road, Nuku’alofa.
  2. She finished her shift at 12 midnight of the night of 18 October 2017 and she telephoned for a taxi to take her home to Houma. Hufanga Taxi sent a taxi to take her. The driver was Manase but she had not known him. The taxi was a four door Honda Fitz light blue car. She got into the front left (passenger) seat with the driver on her right. She told Manase to take her to Houma, and they then drove southwards along Taufa’ahau Road to go to Tokomololo and then on to Houma.
  3. She says that as they started off, Manase then started telling her that she was “a lolly”, “a sugar”, “a beauty” to which she replied to him “and so are you, “you are a beauty too”. He then said “I wish to be your friend, I have now finally found my friend”. He asked her to kiss him and she said no. She then felt cold and asked him to wind up the window on her side. When it was wound up, she could smell alcohol on his breath. She asked him if he was drunk and he said yes and that he had been drinking since daylight up to when she rang for the taxi. She said that she then told him to stop but he just carried on driving. She said that he then asked her if she would sleep with him and she said no. She said he kept asking her but she kept saying no.
  4. She says that when they got to Tokomololo she told Manase to turn right into the road going to Liahona but he just drove straight through on the road to ‘Utulau, and when they left the village (Tokomololo), he turned down a bush road to the right for some distance before turning into and stopping in a bush allotment with no light to be seen anywhere.
  5. She says that he told her he just wanted to talk because he felt sexy and wanted to have sex with her. She told him no and he kept asking her 4 times and she kept saying no each time that she did not want to. He then climbed over and sat astride her on her seat. She tried to open her door but he had locked it. He then tried to tear her clothes off. She had bras and panties on, and a T-shirt and shorts and then skirt and short on top of that. She also had socks and shoes on.
  6. She says that he tried to take her top off but she stopped him, and he tried to take her shorts off but she stopped him. He then got his finger inside her vagina and told her to take her clothes off but she said no. She said his finger was hurting her vagina and she was crying loudly but he did not stop and kept trying to take her top off and finally got her top off.
  7. She told him to stop but he said to her it did not matter if she did not consent. He then went to take off her shorts and she tried to stop him but he carried on and took her shorts off, and then her underpants, and shirt, so that she only had her socks on on her feet.
  8. He then took off his trousers and told her to go with him to the back seat but she just cried and said no. He then put his finger in her vagina and it hurt her. Then he climbed to the back seat and told her to come over there but she said no. She kept crying. He said to her, “Are you coming over or I will have to drag you over?” She did not go over and he then pulled her and told her that if she did not come, he would kill her. As he said that he then pulled her by the leg, lifting her leg so that both her legs were to the back and her head and body were to the front. He then lifted one leg up and held one leg down and then stuck his finger into her vagina and then pulled it out as he put his penis into her vagina.
  9. She says that he then copulated with his penis in her vagina while she just cried. He pulled his penis out and he then pulled and lifted up her hips and started licking her vagina. She says she just kept on crying.
  10. She says that he kept on licking her vagina until she came in a climax and that when she finished her climax he then put his penis into her vagina and they both copulated but she was still crying. She said that he copulated for about half an hour before he finally ejaculated inside her vagina. She said she kept crying because it was painful. After he ejaculated he stopped and then put on his clothes and told her to put on her clothes and she did.
  11. She says that they then left and continued to Houma by way of ‘Utulau and just before they got to Houma, she said that Manase told her that they stop and have more sex and she told him no but that he could come to her at work the next day. He asked if she loved him and she told him to just take her home. He asked where she lived but she told him to just drop her on the road in Houma because she lived at the back.
  12. When she got off the taxi, she gave him $10.00 but he gave it back to her and said it was alright. After he left, she then went home. When she got into her house, her 2 children and the one looking after them were not there. They were sleeping elsewhere. She then put her phone on the charger and had a bath. She then rang the Nukunuku police and complained to them of what Manase did to her. She tried to explain where she lived but they could not find it and so they came to the Houma police station which then directed them to her house.
  13. She says that the police told her to get the clothes that she had worn and she got them, and they then took her to the Central Police Station at Nuku’alofa and handed her over to the Police there, as it was a crime within their area. The Nuku’alofa police asked whether she had had a bath and she told them yes and they said that in that case there was no point in taking her to be examined by a doctor.
  14. Leavai says that she did not consent to having sexual intercourse with Manase and that she had not encouraged him to. She says she told her family of what happened to her last year.

Complainant’s evidence in cross-examination


  1. Upon cross-examination by Mr. Mo’ale for the accused, the complainant stated that she got in in the front seat when the taxi came and that she had done that with other taxis – she sometimes got in the front seat and she sometimes got in the back seat. She says that she asked for the window to be put up because she felt cold, not because the glass of the window was tinted. She said that she told the driver that she only had $10 and that she would pay the other $10 the next day and that the driver said it was alright. She denied that she had pulled her skirt back to show off her thighs to the driver. She said that it was when they were going past the hospital that the window was wound up and she could smell alcohol on the driver’s breath.
  2. She said that the driver asked her if she was married and that she replied no, but that at the bush she had told him that she was married.
  3. She said that she did not tell him that she was afraid because she did not want him to know that she was afraid. She said that she started being afraid when they were going past Lords Mobile (at intersection of Taufa’ahau Road and By-Pass Road at Fanga) because it was then that the driver was starting to talk funny. But then she said that it was when the windows were up and she smelt alcohol on his breath that she started to be afraid and that that was also the time that he started to talk funny, that is, for them to have sex. She said that she then felt put out. She agreed that they had laughed when he had said that she was a lolly, a sugar and a beauty and that she had said the same about him. She said that he did not ask or say that they go somewhere and talk.
  4. She said that she had wanted them to turn right at the intersection at Tokomololo so that they would go through Liahona but she did not tell him to because she was afraid and besides she said she knew that the way that the driver was taking would take them through Ha’akame to Houma as well. But then she said that she did ask the driver why are we coming on this dark (unlit) road, and that he said it was because he was used to coming along that road. She said that she then said, why not go along the Liahona Road where there are lights, but at that time, the vehicle had stopped.
  5. She said that she did not take off her own clothes and that it was the driver who ripped off her bra and slip. It was then that she showed the Court a slight tear of the lace work on the top of right cup of the bra she had worn. (Refer Photo no. 6 in Exhibit 11) She also showed the Court a partial tear of the right strap of the slip that she had had on.
  6. She then, said that she did tear the driver’s T-shirt whilst they were struggling. She said that the tear was in the arm-pit of the driver’s T-shirt. She said that she thought that she did tear it when he was trying to take her clothes off.
  7. At this point, I was concerned that she had not mentioned this before, and I asked her whether she had told the police of the tear of the driver’s T-shirt and she said yes, and she said that the police had shown her the T-shirt and that she had pointed out the tear in it to them. She said that the police had shown her the T-shirt on the same day that she had complained to them. She said that at that time, the driver was not there and that the T-shirt was being shown to her at the police station.
  8. Mr. Mo’ale then showed her her statement to the police and the part that said, “We then struggled and finally he put his leg over the seat I was in and held me down while he put the back of the seat down and he pulled my clothes down and took them off and he stuck his finger into my vagina and scoured it with his finger, I cried and begged him to stop because it was sore and he fingered it and licked it and then came up and sucked my breasts while he put his penis into my vagina and copulated until he ejaculated inside my vagina.” She said that it was when they struggled that she had torn his T-shirt.
  9. Mr. Mo’ale put to her that she just made this up and she replied that she did not and that the T-shirt was shown to her by the Police and that she had told them that it was Manase’s T-shirt, and that she had caused the tear in it when she was trying to push him off her.
  10. Mr. Mo’ale also put to her that she could have telephoned the police on her phone if she had wanted to. She replied that she tried to but Manase took her phone off her and went to snap it in half but she cried out not to and he put it on the side. Mr. Mo’ale put to her that she could have telephoned the police when they came past Lords Mobile when she became afraid and she replied that she did not think to ring the police then.
  11. Mr. Mo’ale put to her that she had made up all she had stated in her evidence in chief because she had not told it to the police, and that all she told the police of what Manase did to her was what was written written down (and I have quoted in paragraph 29 above) in her statement to the police. She replied that she had told the police everything as she has stated in her evidence in chief but the police did not write it down. She said that she had read what they had written down and she just signed it. She said she did not tell them what to write down.
  12. Mr. Mo’ale asked her if she was crying when they were copulating in their sexual intercourse and she said yes. She was asked how long it took for their copulating, ie. sexual intercourse, and she said she estimated that it was half an hour, and that she was continually crying in all that time. It was put to her that she had agreed to the intercourse and she replied that she did not agree but that Manase had told her that it did not matter that she did not agree.

Complainants evidence in re-examination


  1. When she was re-examined, the complainant stated that she did tell the driver to go up to the Mormon Church at the intersection at Tokomololo and talk there where there were lights but the driver did not go there.
  2. As to attempting to ring the police, she said that she had two phones – one Digicel and one U-Call – one was dead and the other was already low in power. She said that she told Manase she would ring the police and she took out the phone to ring but Manase grabbed it off her and went to snap it when she cried out and stopped him.

Complainant crying in Court


  1. I have to note that the complainant was crying as she was giving her evidence from about the time she said that the accused was trying to take off her top (paragraph 13 above) until she got to the end of the part where the accused told her to put on her clothes (paragraph 17). Some of what she was saying could not be heard properly because of her crying and also because her voice was lower whilst she was crying.

Accused’s evidence in chief


  1. In his evidence in chief, the accused said that the complainant got in and sat in the front passenger seat and as they drove off, she asked him if she would only pay $10 then and then pay him $10 on Friday and he replied it was alright. As they travelled along, she said to wind up the window and he did. As they continued, he noticed a strange behaviour of the complainant, namely, she had her elbows on her knees and her hands under her chin and she was looking and smiling at him. At the same time, her skirt was slipping back showing her thighs. He said he asked her if she was alright and she said she was alright. And then she asked him if he was married and he said no. He said he then asked her if she was married and she said no. He said that he then said to her, “Then you are the number,” (meaning that the complainant was the one for him) and she replied, “yes, it is” (meaning that she was the one for him).
  2. He said that when they got to the intersection at Tokomololo, he said to her that they turn off and talk and then continue but she shook her head. He said “Please, it will only be quick and we continue and take you”. She then said yes and he turned off the main road into the bush road and she asked, “where are we going?” and he replied, “we are just going to talk.” He said that after they turned and stopped in the bush allotment, he then said to her that he liked her very much and that if she loved him he would take her to his home and that as he was saying this, she had put her hand on his thigh and he bent over and kissed her on her cheek but she turned her face away. He then said to her, “Never mind, I’ll take you home now, seeing you do not love me.” She then turned her cheek back to him and he kissed it. He said he then touched her hair and kissed her (on the lips). He said that while they were kissing, he caressed her breasts and told her to pull up her bras so that he would suck her breasts. He said that she then pulled her bras up above her breasts and he sucked on her breasts.
  3. He said that as he was doing that, he felt aroused and wanted to have sex with her and he touched her on her vagina but she grabbed his hand and put it to the side and told him no. He said he then stopped and told her, “Well, I will take you now seeing you do not want me to touch your vagina”. He also said to her that he loved her and that he like her very much and that he wanted to have sex with her. He said that in response, the complainant then took off her shorts and underpants, and he took off his trousers, climbed over on top of her and as they went to have sex, he said that his penis became limp, and he fondled it and put it inside her vagina but it still did not harden up and he pulled it out and put his testicles onto her vagina and rubbed them against it but it did not help.
  4. He said that he then told her to let him eat (lick) her vagina and she agreed and moved her body upwards and backwards towards the back seat and he then got between her legs and sucked and licked her vagina. He said that she enjoyed it and she was caressing his face, hair and head as he was doing it, and that she was moaning and finally she climaxed. He said that as she climaxed, she grabbed and held his head and face to her crotch tightly and that she also had her feet pressed hard on his back as well.
  5. He said that after she finished her orgasm, he just laid his head there between her legs and she then said to him, “come up so we can fuck and go before daylight comes”. He said that he then went up and they had sexual intercourse for about half an hour before he finally climaxed and ejaculated inside her.
  6. He said that when they finished, the complainant asked him if he had any water in the car and he told her no. She then looked in her hand bag and took out a small bottle of water and opened it and offered it for him to drink and he drank and gave it back and she drank. When she finished she then said for them to go.
  7. He said he asked her where they were going to go and she said to go to her house. He then said to her that they go to his place and she said no, and told him to take her to her home so she could change and would come to him the next day. He said he told her she was lying and that she would not be coming to see him again, but she replied that she was telling him the truth. He said he asked her if she loved him and she said yes and he told her that he loved her more and started the car. As he was starting it, she said to him, “what about my change of clothing for me? Ok, take me to my place and when you are at work tomorrow ring me and come and get me”. He said that he agreed and then they left and took her to Houma.
  8. He said that when they got there she gave him the $10 but he told her no, he would pay for the trip himself. He said that she agreed and told him to hurry and leave before anyone found out about them. He then left.
  9. He said that he had not speeded up at any time whilst they travelled. He said he had seen the complainant put her cell phone into her bag when she got in to the car and that she did not take it out of there at any time. He said that he never said to her at any time that he would kill her and that he did not tear her clothes at all.
  10. When put to him that the complainant had said that she had torn his T-shirt (in the armpit, whilst they struggled) the accused said that his T-shirt was not torn at all and that it was still at his home.
  11. He said that he did not force the complainant and he believed that she consented to having sexual intercourse with him and was surprised that she charged him with raping her.

Accused evidence in cross-examination


  1. In cross-examination by Ms. ‘Akau’ola for the prosecution, the accused said he was 34, married and had 5 children. He said that he had drunk alcohol from 9 in the morning until 1 in the afternoon when he ate lunch and went to sleep and then went to work at 7 in the evening. He said the complainant told him she had only $10 and would pay him the other $10 on Friday. He said he knew the fare to Houma was $20 and he told her it was alright. He said he lied to her that he was not married because she was smiling at him and teasing him by her behaviour towards him. He said he had not said to her any of the words “a lolly”, “a sugar” or “a beauty”. He said he did not lie to her to make her attracted to him by saying he was not married.
  2. Counsel put to the accused that the reason he took the complainant to the dark isolated place in the bush was because he wanted to have sex with her. The accused said that he just wanted to talk to her because although he had only met her that night, he felt for her. He said that the reason why she let him kiss her was because he told her that he would take her to her home then. He said that when he kissed her she let him touch her breasts. He said he felt randy and touched her vagina but he put his hand aside, but that when his penis went limp she did not object to him touching her vagina. He said that when he touched her vagina she did not hurt at all. He said that she took her own pants off herself and that he took off his himself.
  3. He said that they were doing this in the front seat itself and that it was not too cramped. He said that the complainant did tell him to fuck her and he said he fucked her because he was drunk. He said she did not cry at all. It was true that she did not tell him to take her clothes off or for him to kiss her, but that he did ask her for him to suck her breasts and she agreed and he did. He said that she did tell him to fuck her after he had licked her vagina to her climax and he was resting his head between her thighs. He said that he was drunk but he could still remember what happened. He said that they did not tear each other’s clothes off such as the complainant had stated.
  4. Ms. ‘Akau’ola put to the accused that he had taken the complainant to the bush in order that he would have sex with her but the accused said no and said that he only thought of that after they were there. It was put to him that the complainant cried but he said no and that the complainant did not cry. Ms. ‘Akau’ola then asked how he would know that as it was dark. The accused then said that there was the light on the ceiling of the car. He said that when they had stopped and turned off the engine and the headlights of the car, he then turned on the interior light of the car so they would talk and that he only turned it off when he went up to and had sex with her. He said he did not hear the complainant cry at all. The only sound that she made was when she moaned. He was asked and he answered that the reason he did not take the $10 she offered was because he felt sorry that she had no other money for herself, and not because he had already had his money’s worth in the sex he had had with her.

No re-examination


  1. Mr. Mo’ale did not re-examine the accused.

Other Witnesses for prosecution


  1. Before the accused had given his above stated evidence, the prosecution had called 3 witnesses after the complainant had finished her evidence. They were:
  2. Officer Tu’itavuki drew 2 sketch plans (Exhibit 10) of the road from the Retirement Fund building in Nuku’alofa to the bush allotment at Tokomololo. He also took, and he produced a book of 15 photographs (Exhibit 11) – 8 of which were of the complainant’s clothing, 2 of the outside of the taxi car, and 5 of the area in the bush allotment where the incident took place. In respect of the tears in the bra and slip, Mr. Tu’itavuki could not say, in answer to Mr. Mo’ale, as to when or how the tears came to be on them. He said that he had had no training or experience to be able to answer such questions.
  3. Officer Penisoni has been in the police force for 18 years and for the last 10 years she has been in the criminal investigation division. She said that she wrote down the statement of Manase on 19 October 2017 (Exhibit 12) in the presence of constable Sione Mesui but whose name was neither written nor signed on the statement. She said that Manase was already in custody in the police cell, and she brought him to the CID office and wrote his statement. At this point, Mr. Mo’ale informed me that this was one of the documents that he had indicated at the commencement of the trial that he objected to their admission. I then told him that we proceed and see what it contained and that as I was not a jury I could decide to admit or exclude it. Ms. Penisoni then proceeded and said that she and the accused talked and she told him that if he agreed she would write down what he wanted to say and he agreed. She said he then talked and she wrote down 5 pages of what he said and they then signed them. She said that the accused wanted to add page 6 and she wrote it and they signed it too. She said she did not force him and that he just cried and told her that he was repentant of what he had done. She said that he did not want any lawyer. She said that she and Manase had been neighbours at Fanga for 2 to 3 years in about 2015. She said that he told her that he wanted to see his wife as he was sorry for what he had done. She said that at that time, his wife was already at the police station but that she did not want to see him then.
  4. At this point, I asked Mr. Mo’ale what or why it was that he objected to the statement and he said that there were certain things stated in the statement which Manase said he had not stated at all.
  5. Officer Penisoni then proceeded to read the statement, after which she then read the record of interview (Exhibit 13) which she said she took on 22 October 2017, and the charges form (Exhibit 14) and the further statement of the accused (Exhibit 15) both of same day, 22 October 2017. She said that during the record of interview, she asked him question 22, namely, “What then happened when you went with the passenger?” and he then said, “What about if I just use my first statement that you had written, because what the victim has said is all true”.
  6. She said that she then invited Manase to come to the scene at the bush allotment at Tokomololo and he agreed.
  7. When Mr. Mo’ale cross-examined her, he put it to her that constable Mesui was busy with other work himself and was not sitting at the table at which she and Manase were sitting. She replied that Mesui was sitting at the table too. She said that she told Manase that he was being charged with raping Leavai and that it was up to him to say what he wanted to say. She said that he then cried and told her what happened. She said that he said that he was drunk and that he asked Leavai but that she did not agree and that he forced her. She said that as he was saying it she was writing it down on a piece of paper. When she said this, I asked her if it was the same paper as she has produced as Exhibit 12 (the statement of 19 October 2017) and she said it was a different piece of paper. I then asked her where that paper was and she said that she had put it in the rubbish. I asked her why and she gave no answer. I then asked her what was the point of writing down what the accused said if she had to throw it in the rubbish? She gave no answer at all for quite some time and Mr. Mo’ale then continued with his cross-examination.
  8. He put to her that the accused did not say, at the top of page 2 of Exhibit 12, “We continued drinking until half past 6. And it was 2 bottles that we drank”, that she had simply written that on the statement herself, but she stated that the accused did tell her that. He put to her that the accused had said to her that they had started drinking at 9am and finished at 12 noon and that they had drunk only one bottle, but she stated that she had written only what he had said to her. He also put to her that she had told the accused to say that he was drunk because Leavai had said that he was drunk, but she denied that she told him that.
  9. He also put to her that the accused did not say, in the second to last paragraph in page 3 of Exhibit 12, that “I repeatedly asked that we have sex and each time she said no. I then tried to take her tight pants off forcefully because I very much wanted to have sex with her. The girl still told me to stop and I stopped”, but Officer Penisoni stated that Manase did say it.
  10. He also put to her that all the statement on page 6 of Exhibit 12 was not stated by the accused at all, but she stated that he did.
  11. At the end of Mr. Mo’ale’s cross-examination, Ms. ‘Akau’ola had no re-examination. I then asked Officer Penisoni if she had cautioned the accused before she took his statement Exhibit 12, and she said that she did not because she thought Officer ‘Olie who had arrested the accused had cautioned him.
  12. I then asked her what, if any, work was done about the clothes that the accused wore at the time of the incident, and she stated that she had told the accused to bring them but he did not bring them. She said that she never saw any of the clothes he wore. I asked her if she thought that it was important that those clothes be produced and she said yes.
  13. I also asked her who was the police officer who first saw the complainant Leavai, and she stated that it was constable Sione ‘Uvea. But that witness was not called by the prosecution in this trial.
  14. Constable Sione Mesui, the last witness for the prosecution, stated that he has only been in the force for 2 years and that he was the counter-signatory to the record of interview of the accused. He said that he had sat and listened to the interview. He said that he had been present during the taking of the statement of 19 October 2017 and of the documents on 22 October 2017. He said that although his name and his signature were not on Exhibit 12 (statement of 19 October 2017), he was present, and that Officer Penisoni cautioned the accused before she took that statement. He stated that the caution given was that the accused was not obliged to say anything but that whatever he would say would be written down and given as evidence. He said that that was the caution that was written at the top of page 1 of the statement.
  15. That of course is not what is written at the top of page 1 of the statement. What is written is: “The statement I will make is true and correct in my knowledge and belief; if my statement is used as evidence I may be charged with an offence if I say anything in it which I believe is false or untrue.” Furthermore, Officer Penisoni had already told me that she had not cautioned the accused at all before she took his statement Exhibit 12, because she had thought Officer ‘Olie had already cautioned him when she had arrested him. So, Constable Mesui appeared to me, and I find, that he has only made it up that the accused was cautioned when he in fact was not.
  16. Constable Mesui then proceeded to confirm that he was present and that he in fact did sign as counter-signatory the Exhibits 13, 14 and 15.
  17. When cross-examined by Mr. Mo’ale, he stated that the reason that he was present was to ensure that no force was exerted on the accused to say anything and that he was ordered by Officer Penisoni to be present for that purpose. But when asked why he did not sign the statement as witness, he said that he was not told to. I found that odd and hard to believe – that the officer who had wanted him to be there to ensure that no force was used, did not require him to sign to prove that he was present at all! I did ask him why he had signed Exhibit 13 and not Exhibit 12 but he just said that he was not given Exhibit 12 to sign.
  18. Ms. ‘Akau’ola did not re-examine Constable Mesui and she then closed the case for the prosecution.
  19. Mr. Mo’ale then called the accused and he gave his evidence as I have already outlined in paragraphs 37 to 52 above, and then closed the case for the defence.
  20. I then directed and written submissions were filed by Mr. Mo’ale for the accused on 21 September 2018 and by Ms. ‘Akau’ola for the prosecution on 26 September 2018.

Further evidence


  1. On 3 October 2018, I issued a direction notice to both counsel as follows:

“1. Reading through my notes of the evidence of the complainant, Leavai Finau, I noted that she stated that after the police took her to the central police station in Nuku’alofa the police wanted her examined by the doctor and they asked her if she had had a bath and she said yes. She then said that the police then told her that there was no point in having her examined anymore because she had washed off any evidence on her body, or words to that effect.


  1. That point was not explored anymore in chief examination or cross-examination or by myself during the trial. But in going through the diary of action of the police, which was not produced or referred to in evidence, I find the entries no. 11 to 15 recording the following:

“20/10/17

0900hrs 11. Victim came to this office and further talk was done with her about what happened and her statement is the same with no change made. Informed her that she is required to be taken to hospital to be medically examined as to what happened.


1000hrs 12. D/Penisoni go with victim to hospital to have her examined. Talk with Dr. Folauhola Kitekei’aho was done for this examination request. And it has been explained to the doctor that this incident happened yesterday and it is only now being brought and the doctor agreed to do it.


1040hrs 13. Leavai (fm) the victim asked Dr. Folauhola that she does not wish to be examined and that everything that happened had been given to the police. And that she no longer wish to be examined.


1050hrs 14. Understanding reached with the doctor that the examination did not need to be carried out because the victim has refused to have it done to her.


1100hrs 15. D/Penisoni talk with victim again and explained to her that she and the accused were one for one, each say different things and if there will not be satisfactory result, it would be due to her not being examined and she agreed.”


  1. It may be relevant and it is desirable that these entries are put to both the complainant and to the witness, Paea Penisoni for their comments.
  2. I direct that this matter is called again in Court at 2:00pm on Friday, 5 October 2018, and that the complainant, Leavai Finau, and the witness, Paea Penisoni, are recalled to give evidence about them, and for any submission by either counsel thereon or any other point on those 5 entries.
  3. I also direct Mr. Mo’ale to inform the accused, Manase Fa’uvao to be present at this further hearing.”
  4. The hearing was not held on 5 October 2018 because Mr. Mo’ale did not receive the notice, but it was held on 9 October 2018 and the complainant Leavai stated, after being re-sworn, that entry no. 11 was true but that the other entries – no. 12 to no. 15 were not true at all because she had not gone with Officer Penisoni at all to the hospital. She said that all that happened was no. 11 and she left.
  5. When questioned by Ms. ‘Akau’ola, she said Officer Penisoni had asked her if she been taken to hospital and she told her no. She said Penisoni asked her why not and she told her that she had told Officer ‘Olie that she had already had a bath and asked whether she was still required to be examined and that Officer ‘Olie had told her no.
  6. When questioned by Mr. Mo’ale, Leavai agreed that what Officer Penisoni had written in no. 12 to 15 were lies and fabrications.
  7. Officer Penisoni was engaged elsewhere that day, and was only able to attend and gave evidence on 11 October 2018. She stated that as to:

no. 12 - she did go with Leavai to hospital and spoke with Dr. Folauhola Kitekei’aho and that the doctor agreed to do the examination.


13 - Leavai herself told the doctor that she did not want to be examined because she was too shy (embarrassed) to be examined.


14 - she wrote that entry to confirm that Leavai refused to be examined.


15 - what she meant by “one for one” (tautau tokotaha) was that the victim and accused were each saying the opposite, and that the medical examination would reveal that force was used (fakamalohi), and Leavai understood it but she still did not want to be examined.


  1. I asked Officer Penisoni why it took some 40 minutes for entry no. 13 to be done, and she stated that that was how long it took for the doctor to question Leavai. She said that the reason it took so long was because Leavai was giving differing explanations and answers and was changing her answers each time.
  2. When questioned by Ms. ‘Akau’ola, she stated that it sometimes happen that a rape victim does not wish to be medically examined because of embarrassment.
  3. Mr. Mo’ale put to Officer Penisoni that Leavai had told her that Officer ‘Olie had told her, Leavai, that she did not need to be medically examined because she had already had a bath. Officer Penisoni replied that ‘Olie had not told her such thing and that Leavai had not said any such thing to her either, and that she, Leavai, was lying to have said that she had told her such thing.

Further submissions on absence of medical examination


  1. After those further evidence were heard, I invited counsel, if they wished, to make any oral submissions on the matters covered by the further evidence. Mr. Mo’ale submitted that all the evidence were “one for one”, that is, that of the complainant against that of the accused, and that it was a question of credibility. He submitted that the complainant’s evidence was unreliable. It conflicted with that of Penisoni and that there was a reasonable doubt. He submitted that as the prosecution evidence was contradictory to each other, they both discredited each other.
  2. Ms. ‘Akau’ola accepted that the prosecution had the burden to prove its case beyond a reasonable doubt and that the issue in this case was one of credibility, which she said was a matter for the Court to decide.

Accused statement to police (Exhibit 12)


  1. I have to decide whether or not the accused said the things that he said that Officer Penisoni had written in his statement (Exhibit 12) but which he had not said to her at all. I also have to decide whether or not to admit the statement into evidence (if I decide that the accused did in fact say those things) in view of the provisions of s.22(e) of the Evidence Act which provides:

“22. It shall be no objection to the admissibility in evidence of a confession that is made –


...

(e) without any warning having been given to the person making it that he was not bound to make such a confession and that evidence of it might be given against him:


Provided always that where a confession is alleged to have been made to a police officer by the accused person while in custody and in answer to questions put by such police officer, the Court may in its discretion refuse to admit evidence of the confession".


  1. I consider that I have to consider s.22 because, despite the oral evidence of Officer Penisoni and of Constable Mesui that Constable Mesui was present and that he sat and listened right through the taking of the statement Exhibit 12, I believe that the written evidence of the Diary of Action does not support it. In fact I consider that it contradicts it. Entry no. 9, of 19/10/17, was written by Officer Penisoni as follows:

“2010 hrs 09 D/Penisoni talk with Manase Fa’uvao in the C.I.U office and to take his statement.”


Entry no. 16 was on the other hand written as follows:


“22/10/17

1820 hrs 16 D/Penisoni begin lawful work to Manase Fa’uvao (m) he is well. Present is Pc. Mesui.”


That is the entry of the taking of Exhibits 13, 14 and 15, which exhibits contain the name and signature of Constable Mesui.


  1. When Officer Penisoni gave evidence about entries no. 11 to 15, I asked her to explain why she had failed to write in entry no. 9 that Constable Mesui was present, as she had written in entry no. 16. She said that she just overlooked to write it. I asked her and she said that she wrote the entry after she had done the work described in the entry. Looking at the times of each entry from entry no. 1 to entry no. 29, none of the times written ends with anything other the minute “0” or the minute “5”. It is therefore clear that the times she wrote was only an estimation by her of the time at which the work she had carried out commenced. So that it is clear that she had only written the entry after the work was completed. And she had written in entry 16 that PC Mesui was present during that work because Pc. Mesui was in fact present because he signed the documents. It is therefore inevitable to conclude, and I conclude, that Pc. Mesui did not sign Exhibit 12 and his name is not written in entry no. 9 because he was not present at all during the taking of Exhibit 12.
  2. I had also listened to Pc. Mesui’s evidence in Court and I found that he did not really know about what had been written in the statement Exhibit 12 at all. When asked by Ms. ‘Akau’ola what he recalled the accused had said, all he could recall was that the accused cried and apologised and repented of what he had done and told them that he did not know what to do. When asked again to say what the accused had said, he repeated that the accused cried because he repented what he did and he did not know what to do. I also considered the fact which I have found, as I have stated in paragraphs 66 and 67 above, that he has made up that Officer Penisoni had cautioned the accused before taking the statement Exhibit 12 when in fact Officer Penisoni had not. I found his evidence unreliable altogether and I disregard it.

Section 149(1) of the Tonga Police Act 2010


  1. On 15 October 2018, I had occasion to read the ruling of the Lord Chief Justice Paulsen which he had given on 10 October 2018 in the criminal case no. CR79/2018, Rex v Filipo Tu’ifua, in which he ruled that a confession made by the accused to questions by a police officer, after he had been charged, was excluded and not admitted in evidence because it was made without the police having “informed that person that he may telephone or speak to a relative, friend or law practitioner,” as was required by s.149 (1) of the Tonga Police Act 2010.
  2. I considered that as the accused, Manase, had been arrested and was in custody and had already been charged with the offence of rape before he was interviewed by officer Penisoni, without having informed him that he could telephone and speak to a relative, friend or law practitioner, it appeared that s.149 (1) of the Tonga Police Act also applied to the statement Exhibit 12, and to Exhibits 13, 14 and 15 as well. But it was it was only with Exhibit 12 that the accused was in objection to.
  3. On same day, 15 October 2018, I wrote a direction notice to both counsel attaching a copy of His Honour’s ruling, and invited their further submissions, if they wished to do so, as to whether I should or I should not exercise my discretion to exclude the statement or even argue that I had no discretion but to exclude the statement such as Justice Cato had ruled in the Vailea case referred to by the Lord Chief Justice.
  4. On 19 October 2018, Mr. Mo’ale filed his submissions and submitted that Officer Penisoni failed to observe s.149 because the accused had already been charged with the rape of the complainant at 1400 hours before she took the accused’s statement at 2010 hours without having informed the accused that he could telephone or speak to a friend, relative or lawyer. He submitted that the statement of the accused be excluded because the breach was substantial and it prejudiced the accused. He submitted that the Court had the discretion to exclude the statement and that it be exercised to exclude it.
  5. On 22 October 2018, Ms. ‘Akau’ola filed her submissions. She submitted that although it was clear that there was a breach of s.149 and that there may have been a breach of s.148 as well, the defence did not challenge the admissibility of the statement or of the record of interview. Because no such challenge was made, except as to certain parts of the statement, no voir dire hearing was held, and the statement and the record of interview were admitted into evidence. She submitted that the Lord Chief Justice was correct in holding in the Filipo Tu’ifua Case that the Court has a discretion to exclude or include a statement made in breach of s.149, quoting the reference of His Honour to the absence of any provision in the Tonga Police Act that any statement made in breach was to be excluded and to the discretion granted by s.22 of the Evidence Act. She submitted that the accused was not prejudiced because his defence was that the complainant consented and because the evidence of the statement and record of interview have already been admitted it was unfair that they be now excluded. She argued that the victim, ie. the complainant and the prosecution had not been given a chance to challenge the admissibility of the evidence. She argued that the defence cannot now argue the admissibility of the statement. It can only argue that certain parts of the statement (alleged to be been invented by Officer Penisoni) were not spoken by the accused to Officer Penisoni. She submitted that I had correctly allowed the documents to be produced into evidence.
  6. It would appear that Ms. ‘Akau’ola misunderstood what I had stated when Mr. Mo’ale raised his objection to the statement (which was later marked “Exhibit 12”). I stated to Mr. Mo’ale that as there was no jury, I could decide later, after hearing the evidence, why the statement should or should not be admitted. Mr. Mo’ale agreed and Officer Penisoni continued giving evidence. At that time, she had not read the statement as yet. I could not have already by then decided that the statement be admitted into evidence because I had not heard, as yet, the grounds of the challenge of the statement by the accused.
  7. After Officer Penisoni outlined the background and was about to read the statement aloud to the Court, I stopped her and asked Mr. Mo’ale to indicate, for the benefit of the Officer and the prosecution, what it was the accused objected to with regard to the statement. Mr. Mo’ale then stated that there were certain parts of the statement which the accused said he had not stated to Officer Penisoni but which the officer wrote that he had stated. I then told the prosecution to continue with the evidence of the Officer.
  8. Again, after Mr. Mo’ale stated the ground of objection, I did not direct that the statement be admitted as evidence because I had not even known which parts of the statement were being objected to. The fact that the statement was given an exhibit no. 12 was not an admission of the statement as evidence in this trial because the challenge to it by the defence had not begun. It was simply for purpose of identification of the statement for ease of reference. Accordingly, Ms. ‘Akau’ola is wrong to say that the statement had already been admitted as evidence.
  9. As to her submission that having held no voir dire hearing to determine the admissibility of the statement before the trial commenced or before the statement was read to the Court, and that it is now too late to exclude the statement, again Ms. ‘Akau’ola is mistaken. A voir dire is only required to be held when there is a jury trial, in order that the Court decides, in the absence of the jury, after hearing the statement and the evidence of the ground to exclude it, whether or not to admit it as evidence for the jury to hear. As this is not a jury trial, no voir dire hearing was required, as I indicated to Mr. Mo’ale when he raised his objection during the evidence of Officer Penisoni. That was why no voir dire hearing was held.
  10. It is true that the defence did not raise any objection that ss.148 and 149 of the Tonga Police Act had been breached and that the statement be excluded for that reason, and I admit that I had not been aware of the effect of these 2 sections until I came to read the judgement in the Filipo Tu’ifua Case on 15 October 2018. But after I became aware of them, and in particular of their mandatory requirement, I am bound to consider and to apply them if I find that they are applicable. They both provide as follows:

“s.148 Cautioning a person of his right to remain silent

(1) A police officer shall caution the person about his right to remain silent if:

(2) If questioning is suspended or delayed, the police officer shall ensure that the person is aware that he still has the right to remain silent and, again caution the person when questioning recommences.

(3) This section shall not apply if another enactment requires the person to answer questions put by, or do things required by, a police officer.

“s.149 Right to communicate with relative, friend or law practitioner


(1) Unless subsection (20 applies, before a police officer starts to question a person who has been charged with an offence, the police officer shall inform that person that he may telephone or speak to a relative, friend or law practitioner.

(2) The police officer may refuse to allow a person who has been charged to speak with any of the following persons:

97. In the present case, it is established that


(a) the complainant complained and signed a written complaint that described how the driver of the taxi had raped her, at 0425 hours on 19 October 2017, shortly after the alleged rape had occurred;

(b) the accused was the taxi driver and he was arrested at about 1200 noon same day (entry no. 06 of diary of action);

(c) the accused was charged before the Magistrate’s Court at 2:00pm same day with the offence of rape of the complainant, and was remanded in custody until 23 October 2017 (entry no. 08). In refusing bail, the Magistrate must be assumed to have considered “the strength of the evidence of his having committed the offence”. (as required by s.4(2)(d) of the Bail Act);
(d) Officer Penisoni had read the written statement of complaint of the complainant at 1150 hours (entry no. 05) of same day. She was aware that there was sufficient evidence to charge the accused with rape because she was aware that the accused had been charged with it and been remanded in custody because of it;

(e) when officer Penisoni questioned and took the statement of the accused (Exhibit 12) at 2100 hours of same day she did not –
  1. Neither counsel argued that the Court had no discretion but to exclude the statement for the clear breach of s.148 or s.149. In fact, they both argued that the Court had a discretion to exclude or not to exclude the statement, but differ in the exercise of that discretion, the prosecution argued that the statement be admitted in evidence and the defence argued that it be excluded.

Statement excluded


  1. I have considered the submissions of both counsel and also the judgements of Cato J in the Vailea Case and of Lord Chief Justice Paulsen in the Filipo Tu’ifua Case and I am of the view that the Court has no discretion but to exclude the statement, for the following reasons:

s.148 “Cautioning a person of his right to remain silent.”


s.149 “Right to communicate with relative, friend or law practitioner.”


Until the enactment of these two provisions, no law had ever stated that the accused had any such rights. And although the actual provisions of both sections do not state that these are rights of the accused, the use in each section of the word “shall”, that is,


- “A police officer shall caution the person ...”
- “... the police officer shall inform that person”

makes it mandatory that the officer must do those acts, which acts are stated in the heading of each section as a right of the accused. Those headings only apply to the provisions following them, namely, only the provisions of s.148 and of s.149, and to no other provision of the Act. They must be applied as part of those sections because they do not apply to any other section, unlike headings of parts or divisions of an Act which cannot be applied as part of a section of the Act.


(b) Until the enactment of these two provisions, no law had stated that it was mandatory to caution the accused or to inform the accused of his right to communicate with a relative, friend or lawyer. S.22 of the Evidence Act had only given the Court a discretion to exclude a confession where it was made to a police officer while the accused was in custody in answer to questions put by the officer without the officer having cautioned the accused. It does not require and no other law requires the police officer to caution the accused or to inform him that he may communicate with a relative, friend or lawyer, before he proceeds to question the accused.

In fact, it appears that because of the clear and mandatory requirement of s.148 to caution the accused, the provisions of s.22 (e) may no longer be applicable. It may have been impliedly repealed by s.148. That appears to be case because whereas s.22 does not require the accused to be cautioned, s.148 does. So that if such mandatory caution is not given, it necessarily follows that the discretion granted under s.22 (where the caution is not mandatory) does not apply and cannot be exercised under s.148 because there is no discretion granted under s.148 to exclude or include a confession made in breach of it, such as Cato J has held in the Vailea Case.


(c) The same consideration must be given to s.149 because it is also a mandatory requirement that the accused be informed of his right to “telephone or speak with a relative, friend or lawyer”. There is no provision in s.22 or in any other law that such right be given to an accused except under this s.149 of the Tonga Police Act 2010. There is no provision therein that the Court has a discretion to exclude or not to exclude a statement or confession made in breach of such right of the accused, such as is provided in s.22 of the Evidence Act (but where no such right is given to the accused).

(d) If the Court interprets these 2 sections as giving to the Court a discretion, such as in s.22 of the Evidence Act, to exclude or to admit a statement as it deems just in the circumstances of each case, I am of the view that the words “shall” and “right” in both sections would thereby be rendered meaningless, and pointless, because the police would then be at liberty to breach these 2 sections because the statements would still be admitted in the circumstances of each particular case.

(e) The provisions of ss.148 and 149 were enacted for the protection and safeguard of these two rights of the individuals. They are human rights of every individual, consistent with modern day values and appreciation for human rights. They should not be removed or undermined by discretionary considerations except in pursuance of clear legislation enacted by the Legislature, such as was done in s.22 of the Evidence Act.
  1. Accordingly, I rule that the statement, Exhibit 12, is in breach of s.149, and also of s.148, and that it is excluded in its entirety.
  2. If I am wrong about that, and the Court does have a discretion under ss.148 and 149 to admit or to exclude a statement made in breach of them, I consider that I would and I do exclude the statement, Exhibit 12, in the exercise of my discretion. This is because I consider that it is an unreliable record of what the accused is supposed to have stated, for the following reasons:

Corroboration


  1. Only 4 instances under the Criminal Offence are required to be corroborated:

(a) s.116 – the evidence of a child of tender years;

(b) s.124 – perjury;

(c) s.125 – breach of promise to marry;

(d) s.126 – the evidence of an accomplice.


No corroboration is required in respect of rape, but the common law of England required that the jury, or the judge sitting alone, be cautioned that it was dangerous to convict the accused if the complainant’s evidence was not corroborated by other additional or independent evidence.


  1. Because of that common law, and in order that that warning did not have to be given (in a certain situation) to a jury, or by a judge to himself sitting without a jury, Tonga enacted s.11 of the Evidence Act as follows:

“11. In all criminal proceedings for rape or other sexual offences in order to corroborate the testimony of the person injured by the commission of the crime which forms the subject of the charge, evidence that such person at or shortly after the crime was committed voluntarily made a statement relating to its commission may be given. Such statement shall not in anywise be considered as constituting additional or independent evidence of the crime but only as showing that the person’s conduct is consistent with his evidence at the trial.”


That enactment enabled evidence which was not corroboration to be corroboration, only for the purpose that the above stated common law did not apply, so that the warning did not need to be given, if the complainant voluntarily complained at or shortly after the alleged offence took place.


  1. By its Criminal Justice and Public Order Act 1994 (section 32), England abolished that common law: Archbold (2003 Edition, 4-404d, p.477). Accordingly, Tonga cannot apply that common law anymore. S.3 of the Civil Law Act (Cap. 25) requires the Court, including this Court, to apply the common of England “in force in England”. As the said common law has been abolished in England, it is no longer a common law, and even if it is still in force in some other country, it is not in force in England and therefore cannot be applied in Tonga under s.3.
  2. The position therefore in Tonga now is the same as it is in England, that corroboration is not required in respect of rape, and that matters such as:

are admissible but the judge will have to direct the jury how to approach such evidence. Juries should be warned that little weight should be attached to such evidence, especially where it is part and parcel of the complaint, and that it is of more significance if it manifests itself in circumstances in which the complainant has no reason to suppose he or she is being observed: R v Knight 50 Cr. App. R.122 CA. General evidence of the demeanour of the victim of an alleged offence after the occasion of the alleged offence is inadmissible for the purpose of supporting the veracity of his or her account of the offence: R v Keast [1998] Crim. L.R. 748 CA.


Consideration of the evidence

  1. I have to consider the evidence and to decide whether the prosecution has proved the charge beyond a reasonable doubt. The evidence it has produced is the oral evidence of the complainant before me and the clothing she had worn, as well as her statement to the police which was put to her in cross-examination (refer paragraph 29 above), although it was not produced as an exhibit.
  2. Getting into the front seat of the taxi

When the taxi arrived, the complainant, on her own volition and freedom of choice, got into the front seat. Mr. Mo’ale made a point of that in his submissions, in addition to the facts that the complainant had been separated from her husband for many years, that she decided to go by taxi after midnight with a young taxi driver, and all alone, and that she pulled her skirt back to show off her legs. He submitted that in those circumstances it manifested a willingness on her part to sleep with the taxi driver. Ms. ‘Akau’ola submitted that those facts did not show consent and that I should disregard them. She argued that as a passenger, it was up to the complainant to sit where she wanted to sit and she could sit how she wanted to sit, and she should not be judged for that. The accused was asked in cross-examination why she got in the front seat of the taxi rather than the back seat, and she replied that in the past she would sometimes get in the front seat and she would sometimes get in the back seat.


  1. Sitting as the jury to consider this question of fact, I have to consider why it was that the accused decided to get into the taxi in the front seat, and not in the back seat, where women, travelling alone in a taxi late at night, or at any time, normally get in. She did not know this taxi. She had used taxis from another taxi business before. She did not know the taxi driver either. Yet she decided to get into the front seat with him. To me, the fact that she chose to get into the seat, rather than the back seat, to sit beside a total stranger at the front, manifested a willingness on her part to engage in a friendlier relationship with the driver than a mere passenger. That is consistent with the other facts.
  2. Joking with the driver.

The complainant did joke with the driver because she said that he had said to her that she was a lolly, a sugar and a beauty and that she told him that he was a beauty too. She also said that the driver asked her if she was married and that she told him no and which she knew was not true because she was already married. The accused (the driver) said (in his evidence) that she asked him if he was married and that he told her no, and that he then said to her that she was his number, and that she replied yes, meaning that she was the one for him. I accept that evidence of the accused. Such joking and bantering is consistent with the reason why the complainant had wanted to get into the front seat of the taxi.


  1. Knowing that the driver had been drinking.

Sitting at such close proximity to the driver in the front seat would be such that the complainant could not help but smell the liquor on the breath of the driver during those joking and bantering. I do not believe that she could only smell it after the window was wound up. And I do not believe that she then became afraid or that she told him to stop. She had already known before the window was would up that he had been drinking and there was no evidence by her that the driving of the driver or the speed of the taxi was anything but normal to indicate that his driving or action was affected in any way by the liquor he had drunk.


  1. Turning into the bush to talk.

It is therefore consistent with that joking and friendly behavior of the complainant to the driver, that I believe, and I believe, that the driver did ask and the complainant did agree that they turn off into the bush past Tokomololo to talk. And I also accept the evidence of the driver, which I accept he only remembered when cross-examined, that when they stopped to talk, he turned off the engine and headlights of the car and turned on the ceiling light inside the car while they talked.


  1. The sexual intercourse.

And I believe that as a result of that talking, in which the driver conveyed to the complainant his feeling for her, the complainant agreed and consented and they then kissed, and that the driver sucked on her breasts and that she took off her clothes herself to have sexual intercourse with him and that he took off his clothes to have sex with her but then his penis went limp. He then asked and she agreed and she moved up and back on to the rear seat of the car and he licked her vagina until she climaxed. She then told him to come up and fuck her. He said that by then his penis had hardened up and he then went up and had sexual intercourse with her until he ejaculated inside her. According to the complainant, the licking of her vagina took about half an hour, and the sexual intercourse they had after that was about another half an hour. That is consistent with the evidence of the driver, and is inconsistent with the evidence of the complainant.


  1. Drink of water.

The complainant said nothing in her evidence about having any drink of water after the sexual intercourse but the accused (driver) did and I believe him. It is consistent with what he described happened. The complainant herself asked for the water and got the water bottle herself from her denim bag.


  1. Having a bath.

I find it odd that the complainant thought to have a bath when she got home, when I assume she had already thought to complain to the police that she had just been raped, because that was what she did after she had her bath. She knew that she would need to be examined by the doctor, especially for any semen of the accused inside her vagina. I believe that she intentionally did that to avoid having the doctor examine her.


  1. Refusing to be examined by the doctor.

That is consistent with, and I accept, the evidence of Officer Penisoni that she went with the complainant on 20 October 2017 for her to be examined by the doctor and that the complainant refused to be examined by the doctor. The complainant has lied that she did not go with Officer Penisoni to the doctor, and I accept she did go with Officer Penisoni to the hospital and that she refused to be examined by the doctor.


  1. Tears in the bra and slip of the complainant.

I just do not believe that the tears on the bra and on the slip that the complainant wore were caused by the accused. If there were such forceful pulling upon said garments such as the complainant described in her evidence, the tears ought to have been much more substantial. The tears appear to be no more than tears in the normal “wear and tear” of use of those garments.


  1. Tear in the T-shirt of the accused.

I believe that the complainant has lied that there was a tear in the arm pit of the accused’s T-shirt which resulted from her pushing him to try and get him off her in the car, and that the police had shown her that T-shirt at the police station. If that was true, the police would have produced that T-shirt in evidence but they did not. The accused denied that the police took his T-shirt. He said that he still had it at his home. Officer Penisoni said that she had instructed that the accused clothes be brought from him but she did not know if the police brought them or not.


  1. 40 minutes of questioning by the doctor.

I accept the evidence of Officer Penisoni that it took some 40 minutes or so for the doctor, Dr. Folauhola Kitekei’aho, to question the complainant about her story that she had been raped. Officer Penisoni stated that it took that long because the complainant was always changing her story.


  1. Incomplete statement to police.

What the complainant told the police of the rape is only what is stated in quotation in paragraph 29 above. She did not say in it what she has told the Court in paragraphs 12, 13, 14, 15, 16 and 17. In particular she did not tell the police that the accused had told her if she did not come to the back seat he would kill her, or that he had lifted both of her legs so that they were to the back and her head and body were to the front, or that he had lifted one leg up and held one leg down and then stuck his finger in her vagina, and especially she did not tell them that she had climaxed from her vagina being licked by the accused. I believe she just made up the story that she told the police in her statement. She denied that in cross-examination by Mr. Mo’ale and stated that she had told the police everything she has told in Court and that she read what the police had written but said that she had no control over what the police wrote down and what they chose not to write down. I do not believe her. She should not have signed it if it was not what she had told them. I believe that she signed it because it was all she had told them.


  1. Bruise marks from force applied.

I would have expected that there would be bruise marks on the complainant resulting from the force applied by the accused upon her when they struggled to remove her clothing as she has stated in her evidence, and when the accused, as she stated, forced his finger into her vagina, and his penis into her vagina, and to her legs when he pulled and lifted her legs from the front to the back of the car and one leg up and one leg down. I would expect that the doctor would have identified them as bruise marks consistent with force being applied in a struggle if they were on the complainant’s body. But no such bruise marks were said to be present on the body of the complainant. The complainant did not give any evidence of any such bruise marks and no one else gave evidence of such bruise marks. And the doctor could not be called to give evidence of such bruise marks because the complainant refused to be examined by the doctor. I can only conclude from her refusal to be examined that the complainant did not want the doctor to find out and to say in Court that he found no bruise marks at all on the complainant because such evidence would contradict or discredit her story that she had been raped by force by the accused.


  1. Distress of the complainant.

It may be of little weight that the complainant was in a distressed state as a result of the alleged rape, but it is still of some weight, if she was in such a state and there was some evidence of it. And it may be of greater weight if there was apparent evidence, like red and/or puffy eyes, to indicate that she had been crying for some considerable period of time, like an hour, as she has stated in her evidence. But there was no such evidence or any evidence of any sign of distress.


122. Early complaint of the complainant.

It is true that the complainant made an early complaint to the police like she said she did because the police came and took her to, and took her statement at, the police station at Nuku’alofa at 0405 hours of that same night. S.11 of the Evidence Act provides that “such statement shall not in anywise be considered to be as constituting additional or independent evidence of the crime but only as showing that the person’s conduct is consistent with [her] evidence at the trial”. As I have already found, that statement by the complainant is not consistent with her evidence at the trial. It is no help to her that her statement to the police is inconsistent with her evidence in Court, as I have found. In fact, it has undermined and discredited her evidence in Court instead.


Conclusion

  1. Having come to the views I have taken in respect of those matters of the evidence (the facts), I cannot help but find that I cannot rely upon the evidence of the complainant that she was raped by the accused, as the prosecution has alleged against the accused. No other evidence supports her evidence. I therefore have a reasonable doubt that she was raped by the accused, that is, that he had sexual intercourse with her without her consent or that he was reckless as to whether she consented to it or not.

Order

  1. Accordingly, I find and I order that the accused is not guilty of the charge of rape of the complainant in this trial and he is forthwith discharged thereof.

L.M. Niu
NUKU’ALOFA: 7 November 2018. J U D G E

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