R v Kupu [2020] TOSC 44; CR 202 & 203 of 2019 (30 June 2020)

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

CR 202 & 203 of 2019

BETWEEN:

R E X

-Prosecution

AND:
VILI VUNI KUPU
ANGAHIKI LAVELUA
-Accused

VERDICTS

BEFORE: JUSTICE CATO

Counsel: Mr. J. Lutui and Ms. ‘A. ‘Aholelei for the Prosecution
Accused appeared in person

Date of Verdict: 30 June 2020

1. The trial of these prosecutions took place before me between the 22^nd and 26^th of June 2020. I reserved my verdict until today.
   
2. The first accused, Vili Vuni Kupu, stood indicted on five counts;
   
   1. Indecent assault on a child contrary to section 125(1) of the Criminal Offences Act, particulars of which were that, on or about the year 2017 at Lomaiviti Tongatapu, he indecently assaulted Simaima Makafilia who was under the age of 12, when he fondled and licked her vagina.
      
   2. Indecent assault on a child contrary to section 125(1) of the Criminal Offences Act, particulars of which were that, on or about the year 2017 at Sopu, Tongatapu, he indecently assaulted Simaima Makafilia who was under the age of 12, when he held her head and he inserted his penis into her mouth.
      
   3. Indecent assault on a child contrary to section 125(1) of the Criminal Offences Act, particulars of which were that, on or about the year 2017 at Lomaiviti Tongatapu, he did indecently assaulted Simaima Makafilia who was under the age of 12, when he copulated outside her buttocks.
      
   4. Rape contrary to section 118 (1) (a) of the Criminal Offences Act, particulars of which were that, on or about the month of February 2019 at Lomaiviti, Tongatapu he did carnally know Simaima Makafilia against her will.
      
   5. Domestic violence, contrary to sections 34(a), (b), (i) and 28(1) (a) of the Family Protection Act particulars of which were that on the month of February 2019 at Lomaiviti, Tongatapu, whilst he was in a domestic relationship with Simaima Makafilia and beyond the reasonable expectation and acceptances of family and domestic life, he did cause domestic violence when he sexually abused Simaima Makafilia.
      
3. Against the second accused, Angahiki Lavelua, the Crown presented a single count of indecent assault of a child contrary to section 125(1) of the Criminal Offences Act, particulars of which were that, on or about the year 2016 at Longolongo, he did indecently assault Simaima Makafilia who was under the age of 12, when he inserted his penis into her mouth.
   

The Case Against the First Accused, Vili Vuni Kupu.

4. The complainant, Simaima, born on the 28^th June 2006, appeared as a quietly spoken but composed teenager of 14 years without guile. She was in the witness box and under cross-examination for over a day. I closely considered her evidence. I saw no basis whatsoever for contemplating that she was making her evidence up, that she had any axe to grind in relation to the accused, or that she was unreliable in the evidence she gave. I approached her evidence with care taking into consideration that the accused, in his record of interview, had essentially denied any impropriety.
   
5. The accused was her grandmother’s second husband, and Simaima’s step grandfather. At the time of the trial, Simaima was in middle school, form 2. She said that, in 2017, Vili came and showed her his “thing”. She referred to his thing as private parts. This was at Longolongo. She said that it happened in the daytime. She said that nothing else happened that day. At Longolongo, there were two houses on the allotment, and in one, she and her parents lived. On this occasion, the accused and her grandmother had visited.
   

Second Accused Angahiki Lavelua

6. She said that, in 2017, the second accused, who was related to her grandmother, came into her room, a smaller house on the allotment when she was in Longolongo. He was visiting. She said she had gone there to find some clothes to take a shower outside. The accused came into the room, and the second accused placed his “thing” in her mouth held her head and copulated. He did not say anything. She did not know why she said nothing. Her parents were outside at the time. The accused, she said that he went and talked to her parents. She went and had a shower and changed. Later, she said that it was in 2016 the second accused put his private parts into her mouth.
   

Third Accused Fe’ao Lavelua

7. She said that in 2018 she was living in Sopu at an allotment with four houses which were occupied by a number of relatives including her grandmother and the third accused, Fe’ao Lavelua, She said that on one occasion, the third accused came into the shower and put his mouth on her private part. According to her that was all that happened. This accused had been charged with rape contrary to section 118(1) (a) of the Criminal Offences Act, with particulars that in 2018 at Sopu he did carnally know Simaima against her will. The Crown acknowledged that this charge had not been made out, at the conclusion of Simaima’s evidence, and offered no further evidence. The third accused was acquitted and discharged from the indictment.
   

The case continued against the First Defendant, Vili Kopu.

8. Simaima went on to say that that in 2019, at a bush allotment in ‘Utulau, which the evidence established was situated near the Lomaiviti Road, and on which there were two houses, there was a big house where Maima and Vili lived, and another house which her father used. She said that Vili came into the bathroom after she had been told by her grandmother to take a shower, took off his pants, clinked her to the wall, and put his private part against her. She said that he put his private part into her private part. She said she did not know the name of her private part. She said that she was in pain. She said that she was standing with her back to the wall. This happened during the day. She said that it happened about 5pm. The grandmother was under a mango tree. She gave conflicting answers on whether from that position, her grandmother could see into the shower. She said she had said nothing to the accused, nor had she reported the incident. She said that, after the incident, the accused had gone back to his wife. She said that she told her auntie Hina, about these things, later.
   
9. She said her auntie Hina at Vaini (Loluhamaika Kolamatangi) with whom she had gone to live had asked her after church if anybody did anything to her. Later, her grandmother and the accused came over to Hina’s residence. At that meeting, her aunt asked her to say what had happened. Her grandmother asked whether it was true and she said that it was.
   
10. She later was asked by Mr Lutui whether there was anything else that happened to her. She said that, in 2017 when she was in class 5, she visited Sopu with a relative and went into the bathroom. That is when Vili came inside the bathroom and pulled his pants down and put his private parts in her mouth.
    
11. She also said, when she was in class 5 in 2017, she went to the toilet and Vili came and took off his pants and used his private part and brushed it around her behind.
    
12. She also gave evidence of another incident that was uncharged occurring at the bush allotment at ‘Utulau where she was sleeping outside in a tent when Vili came and kissed her around the mouth and started sucking on her breast. He touched her private parts and she kicked him away. That happened she said when she was ten years old.
    
13. At the conclusion of the Crown case, the prosecution indicated count one in relation to Vili, had not been made out and later in the trial withdrew count one and an acquittal was entered.
    
14. Semaima was cross-examined by Vili, at some length. He raised the issue of what was later described by witnesses as she and a younger boy having simulated sex at ‘Utulau with their clothes on. It was as a consequence of this incident that she was taken by her father to live with Hina or Loluhama at Vaini. There was some questioning of her by Vili about him swearing on the Bible. The accused was told at the conclusion of his cross-examination that he must put in issue her allegations concerning sexual relations with him which he had not done. He then did this by putting the allegations in the various counts of the indictment, suggesting they were untrue. She maintained that they were.
    
15. The second accused simply put the sexual allegation to her and she suggested it was untrue.
    
16. The Crown indicated that it was not going to proceed with the charge in relation to the third accused. He was acquitted and discharged.
    
17. Hina or Loluhama Koloamatangi gave evidence. She was 41 and married with four children. She was Semaima’s paternal aunt. She said that Semaima had been living with her since February 2019. She had lived with her grandmother since she had been born. She had been taken by her father from Hina’s to stay the night with him. During this time, the incident occurred between the complainant’s and the father’s girlfriend’s son who was aged 9. She was returned to live with Hina.
    
18. Hina had asked Semaima to be brought home immediately. She was concerned about what had happened. She admitted to slapping Simaima and then said, ‘I thought to myself these young kids would not have done what they have done unless they had seen someone doing it or someone had done something to them.” She told her to tell the whole truth. She asked her had someone winked at her or anything like that. Semaima said Vili. She then asked what had Vili had done to her. Various incidents were recounted including rubbing his penis against her, pushing her against the wall followed by intercourse (both at Lomaiviti), and oral sex at Sopu. She gave evidence of Vili coming over, and swearing on the Bible and denying everything. Simaima also maintained the truth of what she had said. Later, Simaima was taken by Hina to the police where she was interviewed, and was then taken to a doctor for examination. Under cross-examination, she admitted slapping Simaima because of what she had done with the boy, and that she had been concerned because she had been sexually abused.
    
19. Dr Make Tupou confirmed that Simaima had an interrupted hymen. His opinion was that she had sexual intercourse but could not say when that had taken place.
    
20. In a lengthy record of interview, the accused denied having sexual relations with the accused.
    
21. Neither accused gave evidence. The first accused called his wife who gave evidence. She suggested that Hina at the meeting had said that Simaima did not know anything about sexual involvement with Vili, and a son of Hina George had said Simaima had told Hina different stuff.
    
22. During the trial, Mr Lutui advanced three items of evidence and somewhat hesitantly sought a ruling and guidelines on what used to be known as similar fact evidence, but more commonly is known today as propensity evidence. He asked me, in the light of the paucity of cases on propensity evidence in Tonga to rule on the matters. The three items of evidence did not, in my view, reach the high bar for admissibility that is set out in the seminal cases of the House of Lords R v Boardman [1975] AC 43; [1974] 3All ER 887, as explained in DPP v P [1991] 2 AC 447. Although the House of Lords in P qualified Boardman by rejecting what had become a problematic development in English law, namely a requirement for the evidence of propensity to be “strikingly similar”, an examination of the facts of P indicate that for propensity evidence to be admissible there requires nevertheless thatthere be a high level of cogency. In Boardman, Lord Cross had observed;
    

“The question must always be whether the similar fact evidence taken together with other evidence would do not more than raise or strengthen a suspicion that the accused committed the offence of which he is charged or would point so strongly to his guilt that only an ultra-cautious jury, if they accepted it as true, would acquit in the face of it. In the end - although the admissibility of such evidence is a question of law, not of discretion – the question as I see it is one of degree.”

Lord Cross earlier had said in his judgment said that;

“Circumstances ... may arise in which such evidence is so very relevant that to exclude it would be an affront to common sense.”

In P, Lord Mackay when delivering the principal judgement said that, whilst rejecting ‘strikingly similar’ as the sole test for the admission of evidence of propensity, emphasised that;

“Whether the evidence has sufficient probative value to outweigh its prejudicial effect must in each case be a question of degree.”

Whilst, in some quarters, there is a call for relaxing the high standard for admissibility, illustrated by these cases, particularly in the area of sexual offending, the risk of a less exacting approach is that the jury, despite judicial direction, will close their minds to a considered, dispassionate evaluation of the evidence relating to the circumstances of the case, and instead or rather focus on the propensity evidence which could lead to a miscarriage of justice.

Where the prosecution wish to admit propensity evidence notice should be given well in advance of trial so that the defence is put squarely on notice, before trial, that this kind of evidence will be part of the prosecution case. Here, even had I thought that the evidence met the cogency test, I would have been inclined to exclude it because of the lateness with which the prosecution had sought its admission.

Verdict the First accused, Vili Kupu.

23. As I have said, I have no reason to disbelieve the complainant. As one would expect of a child of her age at times she seemed to be confused about dates but essentially as to the sexual allegations, her evidence was in my view credible. The incidents must have been startling for a child of her age, oral sex, and particularly the effect of intercourse would have been marked, in her mind. The fact there was medical evidence that she had intercourse whilst not corroborative in any technical Baskerville sense, is confirmatory in my view of intercourse having taken place. Nor do I find anything objectionable about the way in which the complaint evidence emerged. Although Hina had disciplined Simaima about her actions with the boy and caused her to cry, I do not find anything objectionable in the questions she asked later of Simaima so that I should disregard the evidence of complaint. The complaint was reasonably opportune, and I do not consider that it can be said to have been improperly induced. I consider the combination of the fact that I found the complainant a reliable witness, the fact of her having intercourse was medically established, her evidence was consistent with the complaint, and there was no obvious or even suggested reason for her to falsely implicate Vili means that, beyond reasonable doubt, I accept Semaima’s account of what happened to her at Vili’s hands on counts 2, 4 and 5. On count 3, I note that had the Crown sought no amendment to count 3 to allege rubbing his penis against her backside. I might have been inclined to allow an amendment, but no amendment was sought and the complainant did not give evidence that the accused had copulated outside her buttocks as particularised. She had given evidence of copulation occurring in the sexual incident alleged with the second accused. On the issue of rape, there is nothing in the evidence that suggests the act of intercourse was consensual, and I find beyond reasonable doubt that it was not. On the issue of any conflict between the evidence of Hina and the accused’s wife on the integrity of the complainant’s account to Hina I prefer the evidence of Hina, Simaima’s aunt who I considered a straight forward and credible witness with no obvious motive to falsely implicate Vili.
    
24. As to count 2, I find established beyond a reasonable doubt that or about the year 2017 at Sopu, the first accused did indecently assault Simaima Makafilia who was under the age of 12 at the time when he held her head and inserted his penis in her mouth. I convict him of this count.
    
25. As to count 3, I do not find established the particulars as to copulation proven and with some diffidence I acquit the accused on this count.
    
26. As to count 4, I find established beyond reasonable doubt the accused carnally knew, that is penetrated the complainant with his penis against her will, and committed rape in 2019. He is convicted.
    
27. I find the count of domestic violence established beyond reasonable doubt. Vili was in a domestic relationship with his step granddaughter at the material time and raping her was plainly beyond the reasonable expectation and acceptance of family and domestic life, and he is convicted.
    
28. As to the second accused, I accept the evidence of Simaima that the second accused, Angahiki Lavelua committed oral sex with her on or about the year 2016 at Longolongo. Although she initially said it was 2017 later in her evidence she said that it was 2016. I found her a reliable witness and the allegation for a child of that age about 10 must have been one that was startling and unforgettable. Although she made no complaint about this matter to Hina, and I have considered the matter with particular care, I am satisfied beyond reasonable doubt that these allegations are proven and the accused is guilty beyond any reasonable doubt. He is convicted of the count of indecent assault under section 125(1) of the Criminal Offences Act.
    
29. Both accused are remanded in custody for probation reports and sentence.
    

C. B. Cato
NUKU’ALOFA: 30 June 2020 J U D G E