R v Maamaloa [2019] TOSC 56; CR 113 & 114 of 2019 (14 December 2019)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NEIAFU REGISTRY

CR 113 & 114 of 2019

R E X -V- SOSAIA LATU MAAMALOA (CR113/2019)

REX -V- FINE MAAMALOA (CR114/2019)

RULING

BEFORE: HON. JUSTICE NIU

Counsel: Ms. L. Macomber for the Prosecution
Mrs. L. Pahulu for Defence
Trial: 14 – 18 October 2019
Venue: Neiafu, Vava’u
Submissions: For defence on 29 October 2019
For prosecution on 4 December 2019
Date of Ruling: 14 December 2019, Neiafu, Vava’u

The charges

[1] At the commencement of this trial, the prosecution asked for an order prohibiting the publication of the name and identity of the complainant. The defence had no objection and I made that order. I refer to her as the complainant.

[2] The accused persons are husband and wife and I will refer to them in this ruling as such. The husband is charged with 8 offences:

(a) two counts of rape,

(b) one count of sodomy,

(c) four counts of serious indecent assault, and

(d) one count of abetting serious indecent assault,

of the complaint.

[3] The wife is charged with 5 offences:

(a) three counts of serious indecent assault,

(b) one count of abetting rape, and

(c) one count of abetting serious indecent assault,

of the complaint.
The defences

[4] The defences of both accused are that the complainant was a willing participant and that she consented to the acts she has complained of and that there was no sodomy committed at all.

The witnesses

[5] The prosecution called 5 witnesses in addition to the complainant. Only the two accused gave evidence. They called no witness.

The issue, consent of the complainant

[6] The issue to be decided in this case is simply whether or not the complainant consented to the acts in respect of which the two accused are being charged.

Credibility

[7] As no witness was present at the scene at the time except the complainant and the two accused, the determination of the issue in this case will solely be on the credibility of the evidence of these three people.

[8] The two accused do not have to prove that the complainant consented. It is the prosecution who must prove that the complainant did not consent and it must prove that to a very high standard, such that I am satisfied beyond reasonable doubt that the complainant did not consent
The evidence

[9] In the evening of Friday, 10 January 2019, the complainant, and a male friend driving, drove around Neiafu whilst the complainant was drinking 6 cans of woodstock liquor and eating a packet of bongo. The male friend, ‘Ipeni, was taking sips from a bottle of Jim Beam. The woodstock had 7% alcohol. By 10:00pm the complainant had drunk all the woodstock and she began drinking from the Jim Beam bottle as well. The Jim Beam bottle was a 1.5 litre bottle. She was to have been taken home by 10:00pm, but she wanted to continue drinking. At about 11:00pm, they went to where ‘Ipeni and other workers were staying at Talau, a part of Neiafu. There was only one worker there, Sione, and they had the Jim Beam mixed with water and they were all drinking it. The complainant was by then very drunk and she spewed.

[10] By 1:00 am they were still drinking, when another worker, Siuola, and his wife, Hina, who were both staying there too arrived with the husband and wife (the two accused). They had also been drinking themselves and they brought with them drinks as well. Neither ‘Ipeni nor the complainant had met the husband and wife before, but Hina was related to the wife and so the drinking continued. The complainant spewed again and was taken by Hina and showered to sober up. At about 5:00am they broke up because ‘Ipeni and the workers had to start work and the husband and wife, together with Hina, went in their vehicle to take the complainant home. ‘Ipeni could not go because he had to stay and attend to the preparation of tar seal for the tar seal work which was to be done that Saturday morning. Hina and the complainant got in the back seats and the husband and wife got in the front seats and they drove away. Hina was not called as witness and ‘Ipeni said that within half an hour after they left, he saw Hina back at the house again but did not speak with her.

The Complainant evidence

[11] The complainant said that she was very drunk and that the last thing that she remembers was that a woman took her and showered her at the house at Talau. She said that the next thing she knew was waking up and found it was already daylight and the sun was shining and that she was lying naked on a mattress on the floor of a room (lounge) and that the husband and the wife who were also naked were having sexual intercourse on the mattress beside her and the husband was touching her on her breast and on her vagina. She said that she tried to push his hand away but she was very weak and the husband just continued doing it and the wife kissed her on the mouth and neck and told her that it was alright because they were the only ones there.

[12] She said that the husband moved up and told the complainant to suck his penis and held her mouth to his penis by holding her hair while the wife was holding her back up from behind to enable her to suck the husband’s penis. She said she did not want to do it and kept her mouth closed, but the husband told her to open her mouth and that because she was afraid and she was sore from the pulling of her hair, she opened her mouth and he put his penis into her mouth. She said that after a while she pulled her head back and let his penis out of her mouth and he then put his penis into her vagina and copulated with it in her. She said that he then laid beside her, with the wife on her other side, and after a while, he said that they all go to another room.

[13] She said that she was so weak that she could not stand and the husband and the wife each stood her up by each arm and walked her to another room and laid her on a bed there and they both laid on either side of her. She said that the husband again touched her on her breast and then her vagina. She said he then stood on the floor and pulled the complainant’s head to his penis and told her to suck his penis. She said that although she did not want to, she opened her mouth and sucked his penis. She said that the husband was at the same time touching her breast and then her vagina. She said she then took her mouth off his penis and she tried to push his hand away from her vagina. The husband then got on top of her and put his penis into her vagina and copulated with it in her again. She said that she tried to push him off but she could not and the wife was trying to calm her by saying to her, “It’s alright. It’s only us”. At the same time, she said the wife was fondling her breasts and also her vagina whilst the husband was copulating on top of her with his penis inside her vagina.

[14] She said that when he finished, he got off her and told her to lick the wife’s vagina. The wife was then lying back spreading her legs for the complainant to lick her vagina. She said that although she did not want to, she licked the wife’s vagina. She said that while she was bending over doing that, the husband then pushed his penis into her anus from behind and it hurt her so much that she yelled that it was sore and that she wanted to go home. She said that he then pulled out his penis from her anus and all three of them were then just lying on the bed with both of them on either side of her.

[15] She said that the wife then told the husband to go and get beef, mutton and chicken and the husband left. As the husband was leaving, the wife told him to lock the door. She said the wife just laid and used her phone. She said she asked her if there was anyone else in the house and she said no. She said she also asked if she had any children and she said they had 3. She said that she looked around (from where she was lying) for her clothes but she could not see them. She said that after a while, the husband returned and he undressed and got on the bed again with them.

[16] She said that the wife then asked for a cigarette and the husband lit her one. She said that by that time she was thinking that they might do something to her and that she might lose her life. She said that she became very afraid and that she wanted to escape from there. She said she decided to pretend that she was not afraid and that she wanted to be there so as not to alert them. She said that she then got up and lit and smoked a cigarette herself. She said that she was trying to show them that she was doing what they were doing. She said that when she finished her cigarette, she told them that she wanted to go to the toilet. She said that the wife then said yes but that the husband said no.

[17] She said that they both looked at each other and then the wife nodded to her. She said that she went and opened the door of the room and started to walk out and she looked back and saw the husband looking at her. She continued walking into the room in which they had been (which was the lounge) and then looked back and saw that he was not looking at her. She then ran to the door and opened it and ran into the verandah of the house. She said that the husband called out to her to come back but she continued running. She said that the verandah had a door at the end of it (with railing about 4 feet high with security mesh above it along that end of the verandah) but that the lock hanging on the bolt of that door was locked. She then turned and ran to the other end of the verandah but found that there was no door there and there was a sheer drop from the railing at that end to the ground below of some 30 feet or more.

[18] She said she turned and ran back to where the security mesh above the railing ended and saw that the drop from the railing there to the ground below was only about 12 feet. She said she climbed the railing and jumped down onto a footpath on the ground and fell over on her side. She said she got up and ran upwards along that footpath to the front of the house where there was a stone wall about 4 feet high. She said she ran and climbed the wall and jumped onto the road on the other side of the wall and ran down the road – in broad daylight, without any clothes on her.

[19] There was no neighbouring house along there and there was only a cemetery, and then bush on both sides of the road. She said she kept running along the road but it descended downwards markedly that one has to walk or would fall forward. She said that she saw a house on the left with children’s voices coming from it and with washing hanging on a clothes line in the rear verandah of the house. She said she climbed a horizontally laid corrugated iron fence of the property where the house was and went and took off a dress from the line and put it on. She stayed in the house with the occupants of that house until her cousin came and took her from there later in the day.

The wife evidence

[20] In her evidence, the wife said that they went with Hina to take the complainant and that the complainant said to take her to Port Wine Guest House. When they got there she said that the complainant said that she wanted to go to the Church of Tonga place and when they got there, the complainant did not want to get off at all. She said that they tried to persuade the complainant but without success. She said that Hina then said she wanted to go back to her husband, and so they took Hina and dropped her back at the house at Talau. She said that the complainant then said to drop her at Port Wine again and so they went there. She said that when they got there, the complainant again did not want to get off and again wanted to go to the Church of Tonga place again, and so they went there again. She said when they got there, again the complainant did not want to get off. She said that the complainant asked them that she go and sleep in their house. She said that she told her they could not take her there because they had their children there but that they could take her to another house which they look after for a friend. She said that the complainant agreed to that and so they went there.

[21] She said that as they were travelling, the complainant wanted some more to drink and so they stopped at a liquor place and got 2 packs of woodstock drinks, that is, 8 cans of woodstock. She said they then drank and played music and talked on the way to the house, which is on the outskirt of the village of Toula, by the seaside.

[22] She said that when they got into the house, she and the complainant sat on a sofa and the husband sat on a wooden chair opposite them, with a coffee table in between. She said they played music and drank and that the complainant danced, and that she danced with her as well. She said after she sat down herself, the complainant started caressing the husbant’s shoulders and she was angry at her and told her to leave, but the husband told her not to and the complainant came and apologised to her and so she stayed.

[23] She said that she then felt no fun anymore and so she got up and went to bed and fell asleep, dead drunk. She said she woke up again because something hit her and she found the husband and the complainant both naked in a 69 position beside her on the bed with the husband licking the complainant’s vagina and the complainant sucking the husband’s penis. She said she was so angry she kicked them both off the bed and she got up and went for them and the husband was facing her and fending her off while the complainant was hiding behind him. She said that she scratched the husband on his forehead, his right cheek and his right arm and that the scratches bled and showed up.

[24] She said that the husband backed off with complainant into the hallway and that he pushed the complainant away from him and he came back into the room and closed the door behind him. She said he came and apologised to her and then began to take off her underpants and was telling her that he was sorry. She said that he then forced her legs apart and went down and licked her vagina. She said that while he was licking her, she saw the complainant come in and she said she told the husband to stop and look because the arsehole, referring to the complainant, was coming in but the husband did not stop but kept on licking her vagina. She said that the complainant then came up and pushed the husband to the side and that she then began licking her vagina herself instead.

[25] She said that she then kicked them both away with her feet and got up. She said the husband then got up and pulled the complainant to the lounge. She then wrapped a towel around herself and came out into the lounge and saw the complainant still holding onto the husband. She said that she then swore at the husband that he could go with the complainant while she would go home to their children. The husband then shook off the complainant from him and came and held her and apologised to her and that while she and the husband were arguing, the complainant went out the door to the verandah, naked. She said that the husband went and put on his clothes and said he would go home and see to the kids and he went. She said that she came out to the verandah and she called out a swear word at the husband as he drove past. She said the complainant was then standing behind her and that she was touching her shoulders. She said she swore at her to keep away from her or she would beat her until she died and smelled (maafi mama’o na’aku taa’i koe ke ke ‘elo) and she went back and put on her clothes and sat on the bed and cried.

[26] She said that the complainant then came into the room and sat and smoked, naked, and that may be one hour later the husband returned and took the complainant out of the room and he shut and locked the door. She said that the husband then came and apologised to her and that they then had sexual intercourse. She said that after they finished, they heard the front door slammed as it closed. She said that the husband got up and went out the room and after while he came back and said that the complainant had disappeared. She said that they then got dressed and went and looked for her everywhere but she had gone. She said that they went in the vehicle and came to the first house on the left (with the horizontally laid corrugated iron fence) and a man there, Matiu, told them that the complainant was inside his house, and so they left and went home to their children at Makave.
The husband evidence

[27] The husband’s evidence was not much different from the wife’s but whereas the wife said that she woke up to find the husband and complainant naked beside her on the bed in a 69 position, the husband said that they were having sexual intercourse with each other instead. Also whereas the wife did not mention any such thing, the husband said that as the wife was scratching him, the complainant was behind him and was holding his penis from behind. Also whereas the wife did not mention any such thing, he said that as he drove past he saw the wife call out to him to take the complainant with him, and that he saw the complainant touching and sucking the wife’s breasts while they were standing at the verandah front door.

[28] He also said that whereas the wife had said that they only went down in the vehicle once to look for the complainant, he said that they went down first and went into the village of Toula and on driving back to the house, they stopped and asked the witness Leula at Matiu’s house for the complainant and was told that they had not seen her. He said that they then went back up to the house and then on the way down again to look for her, they saw and spoke to Matiu who told them that the complainant was inside his house.

The defence submissions

[29] Mrs Pahulu, counsel for both accused, has made very thorough submissions for the defence in which she submits as follows:

(1) Jumping from the verandah. She says that the claim by the complainant that she jumped down from the verandah railing some 3.3 meters to the concrete footpath on the ground below was not true because at such a height, especially if she landed on her left side, as she said she did, she would have suffered severe injury to herself and not be able to get up, let alone run, as she claims she did;

(2) Climbing the rock wall. She says that the claim by the complainant that she climbed over the 4 foot high rock wall is unreliable because if she had actually climbed over that wall, as she claimed she did, she would have sustained injuries during the climb but she did not suffer any injury therefrom and so that claim was not true either.

(3) Climbing the corrugated iron fence. She says that the claim by the complainant that she had climbed over the corrugated iron fence to get to Matiu’s house is not true either because it was impossible for her to have climbed over it because of the many pandana trees (with the prickly leaves) beside the fence.

(4) The witness did not see her climb the fence. She says that the witness Manu Moala, who had seen the complainant walking down the road naked, thought that the complainant had turned off the road onto Matiu’s house where the corrugated iron fence (and the pandana trees) ended, and so that supported the fact that the complainant was lying when she said that she climbed over that fence onto Matiu’s property.

(5) Girl witness was not in the verandah. She says that no girl at Matiu’s house was in the verandah of Matiu’s house, but the complainant said in her evidence that there was, because according to the evidence of the two girls they were not in the verandah when the complainant came to the house.

(6) Complainant said she was invited by the husband and the wife. She says that the witness Halafatai Fifita said that the complainant told her that the man and the woman (the husband and the wife) had invited her to the house (of their friend). She says that that proves that the complainant was aware of what was happening and that she was lying when she said in her evidence that the last thing she remembered was spewing and being showered by a woman at the house at Talau.

(7) The husband only attempted to rape the complainant. She says that when the complainant was telling Halafatai what happened, she told her that the man tried to rape her and that he kissed her and touched her neck. She did not tell her that she was raped or that she was touched in her vagina or that the man had put his penis in her mouth. Halafatai was asked why she had not taken the complainant to the doctor and she replied that there was no reason to because the complainant had not said that she had been raped.

(8) The complainant did not immediately complain to the police. She says that the complainant did not want to go to the police as soon as she could and that she only did so after 4 days.

(9) No fresh complaint and no voluntary complaint. She says that the opportunity was there for the complainant to make her complaint voluntarily when she was in Matiu’s house. Not only did she fail to tell what she claims the husband and wife did to her but she had to be asked 4 times by Halafatai before she only said that the man had tried to rape her, and touched her neck and kissed her. She says that that is not corroboration for the purpose of S.11 of the Evidence Act.

(10) Accused version more consistent with truth. Accordingly, she says that although there were some inconsistencies between the evidence of the wife and that of the husband, in general their evidence is the more plausible and was in fact what had happened.

[30] She accordingly submitted that the prosecution has failed to prove its case against both accused beyond a reasonable doubt and that the charges against them be dismissed.

The prosecution submissions

[31] Ms Macomber for the prosecution responded to the submissions of the accused and submitted that:

(1) the two accused had intended to take advantage of the drunken state of the complainant and they did take advantage of it;

(2) corroboration is not required under Tongan law to corroborate the evidence of a victim of a sexual offence;

(3) the jump from the verandah railing and the climbing over the stone wall and over the corrugated iron fence may seem impossible especially to a female such as the complainant, but it can be done, and it was done, by the complainant, because of the extreme state of fear for her life in which she was in;

(4) the fact that neither Luella nor Halafatai (the two girl witnesses at Matiu’s house) say that one of the three girls in the house was in the rear verandah of their house, such as the complainant had stated in her evidence, may be due to lapse of some 9 months after the incident and in any event it does not prove that the complainant was lying;

(5) the fact that the complainant did not tell either Luella or Halafatai what she has told the Court that the husband and the wife had done to her does not mean that she subsequently made it up, because she was in a state of distraught and distress and was more concerned with her safety, as was shown by her agitated state of looking out the window and not sitting still, and the fact that these girls were complete strangers to her;

(6) the fact that the complainant did not go to the police or to a doctor as soon as she could was not fatal to her evidence that the husband and the wife did what she said that they did to her, and refers to the statement by the Court of Appeal in Teisina v R [1999] Tonga LR. 28 to that effect.

[32] She also submitted that the evidence of the wife that she was angry with the husband and the complainant at the house did not add up or make any sense because she was left in the house with the complainant for more than an hour and yet she did nothing to the complainant, especially when she said that she had just seen her husband having sexual intercourse with the complainant, just inches away from her, and that she had wanted to beat her up for that.

[33] She also questioned the evidence of both accused that they had feared that the complainant may have fallen into the sea and drowned because neither of them gave evidence that they went down the steps to the sea and that they looked for her there.

[34] She further submitted that the evidence of the complainant was that she did not consent to the acts which were done by the two accused to her or to do the acts which she herself did because she was forced to do them against her will. She says that that is supported by the fact that the two accused were both bigger than her.

[35] Finally, she submitted that the evidence of both the husband and the wife left many questions unanswered: Why did they go and look for the complainant if the complainant had left on her own free will? Was her leaving the house at Toula consistent with what the two accused said had happened? Would a reasonable person have so left the house? If the complainant had consented to these sexual acts, such as the husband and the wife say in their evidence, why did the complainant leave the house, naked, jump such a life threatening height and run down the road to a house 100 meters away? Why would a person who was only angry, according to the husband’s evidence, walk out casually and go and hide in a house 100 meters down the road? And many more questions she posed.

[36] I understand her to say that those questions are unanswered if the evidence of the two accused are to be accepted. If the evidence of the complainant is accepted instead, then no such questions arise.

Consideration

[37] I have listened to and have considered carefully the evidence of the complainant and of the husband and of the wife, as well as the evidence of all the witnesses called by the prosecution, and I have also considered the submissions of both counsel and I have to say that I have found it very difficult to believe either or both of the evidence of the husband and of the wife.

The state of the complainant

[38] Hina did not give evidence and I do not know why. She could have supported the complainant’s evidence that she could not remember anything after she had been showered, or she could have supported the two accused’s evidence that she was fully conscious, wide awake and wanted to go with them.

[39] But I accept that she had drunk so much Woodstock and Jim Beam that she spewed and that she continued to drink and that she again spewed and she had to be showered by Hina, no doubt because she wouldn’t or couldn’t shower herself. But she again continued to drink thereafter until the drinking broke up at about 5:00am.

[40] She claims she did not know anymore after she was showered and the two accused say she did know everything, and that she consented to everything thereafter.

[41] I consider, and I accept, and I find it, as a fact, that the complainant did not know any more after she was showered in the house at Talau like she has said, and that the first thing she knew thereafter was waking up and finding herself naked on the mattress on the floor of the lounge in the house at Toula.

Running naked in public

[42] I have come to that conclusion and that finding because, in addition to the submissions and points raised by Ms Macomber for the prosecution, it was proved as a fact that the complainant ran naked in broad daylight in public. The complainant said so herself. She told the girls in Matiu’s house she did. She was wearing a dress from Matiu’s clothes line because she was naked. The girls did not dispute that. They accepted that she had run to their house naked. The witness, Manu Moala, the town officer of Toula, said he saw the complainant walking along the road naked by Matiu’s place. There is no doubt that the complainant did run naked in public in broad daylight.

Why?

[43] Why did she do that? Was she mad or was she suffering from a mental disorder? There was no suggestion at all by the two accused or their counsel that she was. Was she drunk? so drunk, or drugged, that she did so? The husband said, when cross-examined, that the complainant must have been so drunk to have run naked like that. But I have to say there is no substance to that answer because a person in such a situation would have to be so drunk, or so drugged, that he or she would not know or be conscious that he or she was naked, whereas the complainant in the present case was fully aware of her nakedness because as soon as she was able to, in safety, grabbed a dress off the clothes line in Matiu’s rear verandah and put it on to cover her nakedness.

[44] That is the one aspect of the claims of both the husband and of the wife, namely, that the complainant was a willing and consenting participant in the sexual acts they described, which they could not and cannot explain. And the reason that they couldn’t, was because they cannot, and they knew that. I find that that was why they had to find her and to stop her or persuade her not to complain about what they had done to her. That is consistent with what the wife said to Hina and ‘Ipeni when Hina said to her that the complainant had said that she, the wife, and the husband had done something to her, “That’s a rotten stinking lie” (Ko e loi ‘elo ia). The wife did not ask what it was that the complainant had said that they had done to her, as an innocent person would. She instead said, instantaneously, that it was a lie, and I find that it was because she already knew what the complainant would have told ‘Ipeni and Hina and so did not need to ask what it was. Mrs Pahulu for the two accused straight away objected to that answer given by ‘Ipeni being admitted as evidence and I ruled that it was admissible because it was a statement made by the accused (the wife) in the presence of ‘Ipeni. I also find it significant that the wife, in giving her evidence, did not deny that she had said so to Hina in the presence of ‘Ipeni.

[45] I accept and I find that the complainant had run naked in public in broad daylight because she was scared that she might lose her life, as she said she was. Whether or not she had reasonable grounds to hold such belief does not matter. The fact that she ran in public naked at daytime is proof that she held that belief. She did not know who the man and the woman were, yet they were having sexual intercourse naked beside her and the man was touching her on her breasts and vagina – she herself being naked as well – without any recollection of how she got there and what had happened to her that she was naked. She had to be scared of them because it must have been them who had had her clothes removed and laid her naked on the mattress. What could they have done to her while she was unconscious? It would frighten any woman.

[46] And when the man got off the wife and came up and put his penis to her (the complainant’s) mouth to suck and then pull her hair to hold her mouth to his penis, with the wife pushing her back from behind so that she would suck the husband’s penis, she had to be really scared of them and had to open her mouth and suck the penis.

[47] And when she tired and pulled her head away, the man then put his penis in her vagina (without even asking) and copulated with him on top of her, she had to be really scared to say anything or do anything. He was much bigger than she was. And the woman was much bigger than her as well, and the wife was prompting her to accept what the man was doing to her. She had to be really scared of both of them.

[48] And she had to be so scared because she was so weak that they had to stand her up and walk her to another room, for what reason in that room she did not know. And she had to be really scared when more abuse was done to her there, by subjecting her to again suck the man’s penis and have him put his penis into her vagina again and copulated with him on top of her again, and then forcing her lick the woman’s vagina while the woman was spreading her legs. She had to be so scared of them that she had to do that. She however could not stand the pain of the penis of the man when it was pushed into her anus that she had to yell out to stop it and the man pulled his penis out.

[49] As she said in her evidence, it was after the wife had told the husband to lock the door, on his way out to go and get the beef, mutton and chicken, that she began to fear that she might lose her life. It would be clear to her that the two people were not going to let her go because the door was being locked, and the woman alone on her own with her was enough to prevent her from trying to escape. It was clear they did not want her to leave or escape from there. What else was the complainant to think but that they did not want her to leave? She had to be scared that she might lose her life.

How did she escape?

[50] She escaped, as she said she did, by pretending she was going to the toilet and then dashing out the door and, finding no way down from the verandah, jumping from the railing to the footpath below – a fall of about 12 feet, not an impossible feat, especially for one in fear for her life. How else had she escaped? Naked? Scared? Running for her life? That was how she did it. I find it so.

The wall? The corrugated iron fence?

[51] The same applied to the four foot high rock wall she had to climb. She did not even stop to look for the gate in that wall. The same as for the corrugated iron fence and the prickly pandana trees beside it. She climbed it because there was clothing on the clothes line in the rear verandah of the house inside the fence. She was so scared she had to hide from the man and the woman because she had heard the man call out to her, as she was dashing for the door of the house to the verandah, to come back. She knew they would come after her, and she was right. They did come after her – twice. I find that they did look for her twice and would have continued to look for her but for Matiu telling them that she was inside his house. I find that they stopped looking because they knew they were too late to stop her telling others what they had done to her.

Corroboration

[52] I agree with Ms Macomber that corroboration is not required in any of the offences with which the two accused are charged. But even so, the fact of the nakedness of the complainant in public in broad daylight is corroboration of the terror and horror she had suffered in the hands of the two accused because of the things that she has said they did to her.

No police or doctor immediately

[53] I accept the complainant’s reasons for not complaining to the police or to a doctor as soon as she was able to do so. She just wanted to find her phone and to go home and rest. That does not make her story false or unreliable. She had already proved her story by escaping as she did. No law requires that the complainant of a sexual offence must report it as soon as possible to the police or to a doctor, or to any other authority. The law (S.11 of the Evidence Act) simply provides that if a complaint is so made, it is not additional or independent evidence (such that it corroborates the complaint) but it is only consistent with the complaint made. The fact there is no fresh or early complaint does not disprove the truth of the complaint made.

Conclusion

[54] Because the issue to be decided is whether or not the complainant consented, and I have found as a fact, well beyond any reasonable doubt, that the complainant did not consent, I find both the two accused, the husband and the wife, guilty of the charges with which they are each charged and I convict them of those charges accordingly.

[55] I repeat the order that I made at the commencement of this trial:

No person shall publish or cause to be published in any media the name or identity of the complainant or anything by which her name or identity can be revealed.

Niu J
Neiafu: 14 December 2019 J U D G E