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R v Sa'ili [2020] TOSC 48; CR 18 of 2020 (15 July 2020)

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

CR 18 of 2020

REX
-v-
PESAMINO SA'ILI

VERDICT


BEFORE:
LORD CHIEF JUSTICE WHITTEN
Counsel:
Ms Kafa with Ms Eliesa for the Crown
Mr Tu'utafaiva for the Accused
Date of trial:

Date of closing submissions:

Date of verdict:
18 to 21 May 2020

Defence, 12 June 2020; Prosecution, 22 June 2020; Defence Reply, 9 July 2020.

15 July 2020

CONTENTS


CHARGES

  1. The Accused has pleaded not guilty to two counts of rape contrary to s.118(1)(a) of the Criminal Offences Act (“the Act”). The indictment alleges that the first count occurred on or about 22 December 2018, and the second, on or about 18 May 2019.
  2. The Complainant was 13 years of age at the time of the alleged offences.
  3. To protect the Complainant’s identity, she will simply be referred to herein as the Complainant, and the other witnesses solely by their first names.
  4. At the commencement of the trial, I ordered, pursuant to s.141 of the Act, that the trial be conducted in camera with the exception of the Complainant’s Aunt (not called) during the Complainant’s evidence.

EVIDENCE

  1. The Crown called the Complainant and two other witnesses. The Accused elected to give evidence and called his wife.

Complainant

  1. The Complainant gave the following evidence.
  2. She was born on 30 June 2005. She is the Accused’s niece. She grew up with her three younger siblings in Ha’apai. Their parents have been separated for some time. The children have lived with various family members over time.
  3. In or about October 2018, she and two of her brothers moved to Tongatapu and began living with the Accused and his wife, with the intention of attending school here at the commencement of 2019.

Count 1

  1. In relation to the first count, the Complainant did not recall the precise date other than it was a Saturday, towards the end of 2018 and after school had ended for the year. While doing her laundry that day, she saw the Accused and his brother, Siupeli, leave. When they returned, she was still doing her laundry. They had a box of ‘Woodstock’ (bourbon and cola) with them. They started drinking with two others, Taioni (the Accused’s stepdaughter) and Poli (the Accused’s nephew).
  2. The Complainant finished her laundry. At one point in her evidence, she said that when she finished, it was evening. On another occasion, she said it was sometime between 3 and 4pm. She showered, went to her room and fell asleep. When she woke, it was dark. She was not sure of the time. Others in the house were eating. They called her, but as she was still full, she said ‘no’ and went back to sleep. She heard some of the others leaving.
  3. That evening, the Accused’s wife, Luhia, the Complainant’s grandmother and the Complainant’s two younger brothers were home. The grandmother and the boys were sleeping in the living room, approximately 3 to 4 metres from the verandah of the house.
  4. Later in the evening, the Complainant heard a knock on her bedroom door. She opened the door and saw that is was the Accused. All the house lights were off and it was dark except for a small light on top of a table in her room. The Accused said nothing. The Complainant closed the door. She thought the Accused was just coming to check on her. She then went back to sleep.
  5. About a minute later, the Complainant saw the Accused inside the room, walking towards her. She was surprised. He picked her up with both his hands under her and carried her from the bed. She was facing towards him. She asked why he was carrying her. The Accused did not respond.
  6. He walked out of the room with the Complainant in his arms and into the living area where her grandmother and brothers were asleep. The Complainant said that she was ‘shaking to get off’ but couldn’t. As she was about to scream her grandmother’s name, the Accused put his hand over her mouth. The Complainant demonstrated how he did that by curling his left arm under her body to place his hand over her mouth.
  7. The Accused kept walking to the verandah of the house. He then laid the Complainant on a blanket and pillow on the floor while using his hand to continue covering her mouth. He then used his knee to hold her legs down while facing her. She saw the Accused trying to reach for something with one hand while still holding her mouth with his other.
  8. The Complainant then felt something like a piece of cloth or paper being put inside her mouth and then the Accused took a piece of cloth near the pillow and tied it around her mouth. The Accused then tried to gather both her hands. Her left hand was on the frame of nearby louvres. She used her right hand to try to get away from the Accused. However, he tied both her hands with a rope. She did not see where the rope came from.
  9. The Accused then took off the Complainant’s pants and shirt. She was wearing green long pants with a zip and long-sleeved t-shirt with black and brown stripes. The Accused also took off the Complainant’s underwear, which she described as having green and white stripes. The Accused then took off his pants.
  10. The Complainant then said that the Accused raped her by putting his penis (which she described as his ‘private part’) inside her ‘private part’. The Accused used both his hands to hold her hands above her head. He continued to have sexual intercourse with her for about five minutes.
  11. After he stopped, the Accused got up. The Complainant said that she was facing to the left when she saw ‘some kind of liquid’ coming out of the Accused’s private part.
  12. Accused then put his trousers back on, untied the Complainant’s hands and mouth and told her not to tell anyone because she knew what would happen if she did. She understood that to mean he would beat or kill her.
  13. The Accused then went to the door to the living room and left. The Complainant sat up, put her clothes back on and cried. A few moments later, she heard a rooster crow. It was still dark. She then stood up and tried to go to the toilet. When she reached the toilet, she sat there again. She felt pain in her private part. After a short time, she went back to her room where she sat on her bed and cried again. After a while, she fell back to sleep. She awoke the next morning to the sound of her grandmother calling her.
  14. The Complainant did not tell anyone what the Accused had done at that time because she was “just afraid” of him. She recounted that on a few previous occasions when the Accused had been drinking, he had disagreements with his wife, during which, he swore at her and sometimes beat her. Further, the Complainant said there were times when the Accused had gotten angry with her and swore at her.
  15. Around February 2019, on a Friday after school, the Complainant was waiting for Luhia to pick her up. She then heard someone calling her. It was the wife of the Accused’s older brother, Sa’ili. The Complainant asked ‘what about Luhia?’. She was told to get in the vehicle because they were going to get her and her brothers belongings from the Accused’s house in Sopu and move to Sa’ili’s home at Havelu. When the Complainant asked why they were moving, she was told that Luhia had complained to the Accused that she could not control or manage the Complainant and her brothers anymore.
  16. Neither the Accused or his wife ever told the Complainant why she and her brothers had to move. The Complainant said that the Accused was in Australia fruit picking at the time, and that ‘he went over just before Christmas 2018’.
  17. While living with Sa’ili and his wife, the Complainant did not tell anyone about the rape because she was afraid.
  18. After about three months, the Complainant and her brothers were again moved, this time, to their father’s house. The reason for that move, she said, was an argument she had with Sa’ili’s daughter about the Complainant beating her two brothers for no reason. The Complainant agreed that she “beat them when they say something to me...usually by punching their backs”. She said she started hitting her brothers after the first alleged rape.

Count 2

  1. Initially, after moving to her father’s house, where he lived with his partner, Soana, and her two children, the Complainant did not tell any of them about the first rape either, because she said she was still afraid of the Accused.
  2. In May 2019, on a Saturday, the Complainant was doing laundry with Soana. After she finished, around 1 to 2 pm, the Complainant showered and went to sleep. She was woken by knocking on her door, and one of the children calling her name and to open the door. The Complainant got up. She was angry because of the noise. Another child told the Complainant that the Accused (who had since returned from Australia) wanted her to go with him to pick up clothes from Sopu for her brothers which the Accused had brought with him from fruit picking overseas. One of the Complainant’s brothers, Tevita, told her the same thing. The Complainant told them to tell the Accused to go away because she did not want to go.
  3. After a while, the brothers came again and told the Complainant that the Accused wanted her to come to him. She told the brothers to tell the Accused to wait. One of the other children called out that the Accused was about to come in through the door.
  4. The Complainant then walked out to the Accused, who was just outside the front door, and asked him what he wanted. He told her to come with him to get clothes for her two brothers. She told him to wait while she asked Soana. Soana said it was ok to go if it was her mother’s brother.
  5. The Complainant went out to the Accused who was by then sitting inside his blue, small car. She got in the car and called out to her two brothers to come too, because they were going to get clothes for them. The younger one ran to the car and got in the car. Tevita was taking his time. However, the Accused told the boy to get out because there was no reason for him to get in the car. He got out. Both boys asked the Accused if he could also get them some slippers and toys from the store. The Accused told them to go and wait and that he would come back with those things. The Complainant and the Accused then left. The Accused told her they were going to Sopu. She recalled that the Accused smelt of alcohol and seemed drunk.
  6. The Complainant said that, at that time, she had ‘no feeling’, suspicions or thoughts about what might happen if she went with the Accused. She ‘did not think about what he first did to her’. She ‘did not remember it’.
  7. When they came to a roundabout at Longolongo, the Accused started ‘talking dirty’ to the Complainant about Taioni and her boyfriend. She asked him why he was talking to her that way. He did not respond.
  8. She then realized they had passed a store, so she pointed it out to the Accused and asked ‘where else are we going?’. The Accused said they were going to get ‘something from somewhere’ and then they would come back. She thought they were going to get the clothes first and then come by the store. They then drove to the Accused’s house at Sopu.
  9. When she got out of the car, the Complainant noticed the house was still locked, as the lock was still hanging from the front door. She asked the Accused ‘what’s happening?’. He did not answer. She then followed the Accused to the house. When she entered the house, she could see that the bedrooms were all locked with padlocks on each of the doors. As she turned to go outside, she saw the Accused bolting the inside of the front door closed with a slide bolt.
  10. She then turned to go the kitchen door to check whether Luhia and Taioni were outside but was surprised when the Accused grabbed her right wrist and pulled her. She tried to get away, but the Accused grabbed her by the hair. He then wrapped both arms around her from behind. The Accused then ‘laid her down’ on a bed like chair in the living room in a forceful or strong movement. She shouted out for Luhia. The Accused then held her mouth with his right hand. He then laid on top of her, holding her down with his chest on her mouth. He then took off her trousers and underwear. She was also wearing a white t-shirt.
  11. The Complainant continued to ‘shake’ to try and get away from the Accused. She used her left hand to push herself off the couch and her right hand to push the Accused away with her, but his hold on her was too strong. He used his left hand to hold her hands over her head. He then used his right hand to remove his trousers. She did not call out because Luhia and Taioni were not there and she knew the neighbours usually only returned home late to sleep.
  12. She then said that the Accused ‘put his private part inside (her) private part’ and that it ‘went on for about five minutes’. The Accused then got up and put on his trousers. The Complainant continued to cry and faced away because she did not want to see him.
  13. The Accused went to the front door and sat on a chair on the front verandah and just looked at the Complainant. She then got up and put on her trousers. She went to the kitchen door to see if it was open, but it was locked. So she went to the hallway between the kitchen and the bathroom where she saw two louvres missing at the bottom of the window frame. She then went back to see where the Accused was. He was still sitting on the verandah. She returned to the hallway and removed another louvre at the bottom of the frame and then jumped outside (demonstrating the height as approximately two feet).
  14. She then went around the outside of the house to the road and started walking. She intended to walk home. It was getting dark by that time. She saw the Accused. He got into his car and drove to her. He told her to get in the car because it was already dark. She told him to leave and that she would walk home. He kept insisting that she get in the car because it was already dark. She kept walking. After one to two minutes, as she approached the peak of the road near Centenary Church, the Accused shouted to her to get in the car because it was already late and that he would take her home. She then decided to get in the car because there were a lot of drunk people around.
  15. After she got in the car, the Accused drove along Vuna Road and past the bus station. The Complainant eventually noticed they were going along a bush road. She did not know the area. She asked the Accused where they were. He said ‘Ma’afunga’.
  16. Later, the Complainant again asked the Accused where they were. He told her it was a bush road in the Vaololoa area. She did not know that area either. They passed a white house with a verandah at the front and parked in a bush area nearby. The Accused then again started talking about Taioni and her boyfriend, and that Taione was ‘a slut’. The Complainant asked him why he was talking about Taioni that way. He kept talking. She got out of the car. She went to the white house. An elderly man on the front verandah asked her what she wanted. She asked if she could use his phone so that she could call Soana. The old man said that his phone was with his wife and children in town. The Accused then sounded the car horn. He shouted to the Complainant to get in the car so he could take her home because it was already dark. The old man asked her who was the Accused. She told him it was her uncle. The old man told her that if it was her uncle, she should get in the car because it was getting dark. She then got into the car.
  17. When asked, the Complainant said she did not tell the old man what the Accused had done to her because she was ‘shy’ and ‘not well acquainted’ with him.
  18. After she got into the car, they drove on the road near the Tupou High School football field. The Accused continued talking about Taioni being a slut. The Complainant got out of the car and started walking, again intending to walk home. The Accused drove to her again and told her to get back in the car. She told him it was ‘ok’ and that she could just walk home.
  19. When she approached the roundabout at Longolongo, she noticed a lot of drunk people walking towards her. She then took a turn toward Fanga and walked to a market. The Accused was still following her. There were a lot of students near the market area whom she knew. They were drinking. They invited her to go out with them. She said ‘no’, that it was ‘ok’ and that she was going home.
  20. The Accused was parked a short distance away. He again told her to get in as it was late and there were a lot of drunk people around. She got in the car because there were too many drunk people. They then drove to her father’s home at Longolongo.
  21. When they arrived at the gate, the Complainant told the Accused to stop there, but he kept driving to the front of the Salvation Army residence. The car was moving slowly at that point when the Complainant opened the car door and told the Accused to stop or she would jump out of the vehicle to kill herself. The Accused stopped the vehicle next to the Complainant’s father’s home.
  22. She got out of the car, closed the door and walked back to the house. She was still crying. Soana and her children and the Complainant’s two brothers were home. Soana asked the Complainant why she was crying. The Complainant kept crying and shaking her head saying nothing happened. Soana told the other children to go to their rooms and go to sleep. After they left, Soana then asked the Complainant what happened. They were in the living room. The Complainant cried and told Soana that she had been raped by the Accused. Soana told her that it would be ok and that she would contact the Complainant’s father and mother. Soana then rang the Complainant’s parents. Her father was still fruit picking in Australia. He left the week of Father’s Day. Her mother was at Ha’apai. The Complainant heard the calls because the phone was on speaker. She spoke to her father. He asked her whether what had happened was true. She said yes. Soana asked the father what to do next. He said he wanted to press charges. After that call, Soana called the Complainant’s mother. The mother also asked the Complainant whether what had happened was true. She said yes.
  23. Later that night, the Accused’s older brother, Sa’ili, rang and asked the Complainant what had happened. She told him she’d been raped. Sa’ili and his family then came to the house to talk about what had happened. They decided to wait until they could all have a family meeting.
  24. Before the family meeting, Soana asked the Complainant whether something of this nature had happened before. The Complainant then told Soana about the first incident.
  25. A family meeting was convened the following Tuesday evening after the Complainant’s mother arrived in Tongatapu. The meeting was held at the Accused’s residence at Sopu. Those present included Soana, the Complainant’s mother, her brothers, the Accused and his wife (Luhia), Taioni, another younger sister of the Accused and her husband, Sa’ili and his wife and the Complainant’s grandmother. The Complainant, Soana and the Complainant’s mother were initially outside the Accused’s house. He then shouted at the Complainant to come into the house and ‘stop pretending’. They entered and sat beside her grandmother. The meeting then commenced.
  26. According to the Complainant, Sa’ili said the purpose of the meeting was because ‘something has happened’. He then questioned the Complainant and asked her whether what had happened was true. She said ‘yes’. Sa’ili put the rape allegation to the Accused. The Accused responded that no such thing had happened and that he had never picked the Complainant up at Longolongo. Soana said that on the evening she saw a blue car and that the driver had long hair. The Complainant was then asked about the first incident. Sa’ili also put that to the Accused and he denied it. Sa’ili asked the Complainant’s younger brother, Tevita, who confirmed that he had met the Accused that Saturday afternoon and that the Accused had told him to call the Complainant, which he did. Arguments erupted. Sa’ili told everyone to stop arguing and that the ‘man above’ will judge the matter. Sa’ili was not called to give evidence.
  27. The next day, a complaint was lodged with the police.

Cross-examination

  1. Under cross-examination, the Complainant gave the following evidence, relevantly and in summary:
  2. Mr Tu'utafaiva put that the Complainant and her brothers arrived in Tongatapu in the third week of December 2018. The Complainant did not recall.
  3. She could not explain why she was able to specify the day and month of the alleged first rape in two of her three statements to police (22 May 2019, 24 May 2019 and 3 May 2020) but that in her evidence in chief, she could not recall that date. She confirmed that she had told the police that it happened in December 2018, but that now she was not sure. She did say later in answer to a question from the Bench that the first incident occurred two to three weeks before the Accused went fruit picking in Australia.
  4. She was adamant that at the time of the first incident, the Accused and Siupeli had brought alcohol to the house. She added that Siupeli had just returned from fruit picking.
  5. She agreed that usually there was no drinking of alcohol allowed in the Accused’s home because her grandmother did not like it, but she maintained that the Accused and the others were drinking on the day of the first rape.
  6. She did not tell anyone until after the second incident in May 2019 because she was:
  7. She omitted details about the first rape in her first statement to police, such as the Accused putting something in her mouth or that he had tied her hands, because her first statement was mostly about the second rape and she was afraid at the time of her own family because they excluded her once she lodged the complaint. She made the later statements when contacted by police to ‘ensure consistency’.
  8. After the first rape, she did not wake her grandmother, nor did she tell her the next day when they went to church, because she was just too afraid after what the Accused had done to her and his threats to further harm her if she told anyone.
  9. She agreed that prior to moving out of the Accused’s house to Sa’ili’s, Luhia had complained about the Complainant smoking at school (which she said later in her evidence she started a month or two after school started in 2019), using her phone to the point of it interfering with her schoolwork and wearing makeup.
  10. During the three months she lived with Sa’ili and his family, she did not tell any of them about the first incident because he was the Accused’s older brother, she was afraid of her mother’s family, and she felt embarrassed for the Accused’s wife.
  11. She intended lodging a complaint with police about the first incident once she moved to live with her father whose house was close to the Longolongo police station.
  12. In relation to the second incident, she denied Mr Tu'utafaiva’s suggestion that the Accused had told her and her brothers to come to his place for the weekend so they could pick up their grandmother for Mother’s Day.
  13. She also denied the suggestion that when the Accused came to her father’s house, she told him she would stay at her father’s house for the weekend or that the Accused just then left.
  14. She agreed that she had makeup and lipstick on when she got into the Accused’s car, because she had already put it on expecting to go shopping with Soana after doing the laundry.
  15. By the time the Accused came to her father’s house on Saturday, 18 May 2019, she had ‘forgotten about’ the first incident because there had been no contact with her mother’s family. When she heard the Accused calling for her, she described her reaction as feeling ‘unexcited’ and unafraid.
  16. She did not want to go with the Accused, but he kept insisting. She did not think about whether the Accused might rape her again. Also, she told Soana she didn’t want to go, but Soana told her that if the Accused was her mother’s brother, she should go.
  17. She denied Mr Tu'utafaiva’s suggestion that she actually intended to go out with others and added that since living with her father, she never went anywhere with anyone except with Soana to town.
  18. She explained that she was unable to tell the police precisely where the elderly man in the white house lived because she was unfamiliar with that area and the bush roads and could not remember the location.
  19. When challenged about not telling the police about other details after the second incident, the Complainant explained that she gave her statements ‘in large portions, not detailed information’.
  20. When also challenged about discrepancies between her statements and her evidence in court as to the events of the family meeting, such as who was there and what was said, the Complainant said that at the meeting:
  21. Mr Tu'utafaiva did not challenge the Complainant’s additional details as to what occurred at the family meeting. Nor did he seek to tender any part of the Complainant’s statements to police as prior inconsistent statements. Apart from Soana, Tevita and Luhia, no other attendee at the family meeting was called.
  22. Otherwise, the Complainant confirmed her core evidence in chief in every respect.

Soana

  1. Soana is the de facto partner of the Complainant’s father.
  2. Soana gave evidence that on a Saturday in May 2019, the Accused came to their house at Longolongo and took the Complainant. She recalled that earlier, she told Tevita to go to the store to get laundry detergent. Around 6 pm, she was sitting on the verandah at the back of the house. She saw Tevita sitting in a vehicle turning into the residence. She drew a sketch of the layout of the property (exhibit P1) to show that her line of sight was such that no one could see her, but she could see who was coming onto the property.
  3. Tevita got out of the car and came and told Soana it was their uncle. She asked Tevita why his uncle was there. Tevita said he was coming for the Complainant. She told Tevita to go and wake up the Complainant. She could hear the children trying to wake the Complainant. After a short while, she heard the boys tell the Accused that the Complainant was still not awake. The Accused repeatedly told the children to go and wake the Complainant. She could see them though a sliding glass door each time the children tried to wake the Complainant. According to Soana, this went on for about an hour. That was the first time Soana had seen the Accused. He did not speak to her during that time.
  4. When the Complainant woke, Soana described her as being angry because she thought the children were just playing. Tevita told the Complainant that the Accused was there asking for her. Soana was surprised because it was the first time she had seen the Accused. She saw that he had gotten out of the car and was standing at the front door of the house.
  5. Soana saw the Complainant walk over to the Accused. She could not hear what they spoke about. The Complainant then came to Soana and asked for her permission to go with the Accused to get something for them from the store. She described the Complainant’s face as appearing angry but assumed it was from being woken by the children. She asked the Complainant who the Accused was to her. The Complainant said that he was her uncle. Soana told the Complainant that she trusted her to go with him if he was her uncle.
  6. The Complainant then turned and walked away into the house. Soana heard her say that the Accused should have just come and got the boys and left her sleeping. The Complainant then went through the house and went off with the Accused in his car. Soana was not clear about the precise time they left or how long the Accused was at the house. She gave evidence that the Accused came to the house around 6pm and that he left with the Complainant about 15 minutes later. That was compared to her earlier evidence that it took about an hour to wake the Complainant. She later said it may have been about an hour and 15 minutes all up. She admitted she ‘did not keep track of the time’. She was sure, however, that it took a ‘long time’ for the children to wake the Complainant, and that it was still daylight when she and the Accused left.
  7. Later, when it was almost dark, and more than an hour after the Complainant left, Soana had finished the laundry and was sitting in the living room with the children playing when she heard a vehicle pull up. She heard someone getting out of the car and the car door closing. She then saw the Complainant appear to be going around the back of the house. The Complainant then saw Soana sitting in the living room, so she turned back and came in the front door.
  8. The Complainant sat on the floor near a sliding door facing the road. She did not have any shopping. She was crying and her hair was a mess compared to how it was ‘in a proper way’ before she left. As the Complainant sat crying, she pulled at her hair and kept saying the Accused’s name.
  9. Soana asked the Complainant why she was crying. She did not answer. Soana asked her again repeatedly. Then, the Complainant said ‘It was Pesamino’. Soana asked ‘What about Pesamino?’. The Complainant kept crying. Soana was wondering whether the Accused had hit the Complainant because he was angry about he and her brothers living with her. Soana asked ‘What did Pesamino do to you?’. The Complainant said that Accused had ‘forced her’. With that, Soana realized that the Accused had done something indecent. She sent the children to their room. She then called the Complainant to sit beside her on the chair and asked her again what the Accused had done to her.
  10. Soana recalled the Complainant saying something about running on the road and the Accused talking inappropriately about his wife’s daughter, and drinking a can of Woodstock or Fosters, how they kept passing through stores and stopping at Sopu. Soana asked whether they stopped at any store. The Complainant said ‘no’. The Complainant continued explaining how they kept driving and she knew they were going to the Accused’s house at Sopu. Soana asked why they were going to Accused’s house when the Complainant asked permission to just go to the store. The Complainant explained that when they got to the Accused’s house, she opened the car door and was happy thinking that the Accused’s wife and daughter would be home. She said that when they went to the house, the door was open, not locked. The Complainant called out to the Accused’s wife and her daughter. When she realized they weren’t there, she turned to walk back out but the Accused was already standing at the door. Soana asked whether the Accused closed the door or left it open. The Complainant said the Accused closed the door while he was standing inside the house. She said the Accused then pushed her onto a chair like a bed and took off her clothes. Soana asked whether they did anything. The Complainant said ‘yes’. Soana asked the Complainant to explain clearly what had happened. The Complainant said that the Accused had sexual intercourse with her. Soana asked the Complainant whether she had shouted or screamed. The Complainant replied that the louvres were closed so no one could hear her.
  11. Soana felt sad because had she known this might happen, she would never have let the Complainant go. The Complainant kept crying. Soana asked whether that was the first time the Accused had done this. The Complainant said it was the second time. Soana asked whether that meant twice at the same time or a previous incident. The Complainant explained that ‘the problem occurred when they moved back from Ha’apai and it was around December when the Accused did something to her and threatened her’.
  12. Soana then called the Complainant’s mother and explained what had happened. Soana held the Complainant and gave her ‘motherly advice’, ‘not to worry about what had happened and to try to keep her thoughts open’. The Complainant kept crying. Shortly after, the Complainant’s mother called, crying, and said that Sa’ili and his wife would come over that night. Soana told the Complainant that no matter what happened, she would press charges. The Complainant agreed.
  13. Soana then described how Sa’ili and his family came over and asked the Complainant about what had happened just as the Complainant had recounted in her evidence.
  14. Soana gave evidence about the family meeting the following Tuesday evening at the Accused’s house. Her account was much the same as the Complainant’s, although Soana did say that when the Accused responded to the allegations, he challenged the Complainant by asking her ‘when did I come and pick you?’ and he kept telling her to ‘stop pretending and lying’. She also said that the Accused kept saying that he did not see Soana on the Saturday afternoon. She described his same long hair and his blue car which she noted was outside his house during the meeting.
  15. The next day, Soana took the Complainant to the hospital. She said that the doctors at the hospital told them to go to the police first and give statements and then return to the hospital. They then went to the police and had their statements recorded.
  16. No medical evidence was adduced.

Cross-examination

  1. During cross-examination, Soana confirmed her evidence in chief and gave the following further evidence:

Tevita

  1. Tevita is the elder of the Complainant’s two younger brothers. At the time of giving evidence, he was 12 years of age. In accordance with s.116 of the Evidence Act, I spoke with Tevita to gauge his understanding of telling the truth and the nature of an oath. From that, I was satisfied that he could give evidence on oath and a basic oath was administered. Both counsel agreed to that course.
  2. Tevita gave evidence that on the Saturday before Father’s Day in May 2019, around 6pm when it was nearly dark, Soana told him to go to the store to get laundry detergent. On his way back, he saw the Accused, his uncle, parked in a car nearby. The Accused told him to get in the car and asked for directions to the Complainant. The Accused smelt like ‘a can of Woodstock’ and his eyes were red. He knew what that smelt like because he grew up seeing the Accused with alcohol and smelling it on him. He described the Accused as then having long hair which was braided ‘like a schoolgirl and tied at the top’. They did not speak further in the car other than Tevita giving directions to the house at Longolongo.
  3. When they arrived at the house, Tevita got out of the car and went to Soana at the back verandah and gave her the detergent from the store. He told her that Pesamino was there and that he had told Tevita to wake the Accused so they could go and get something from the store and come back. Soana told him to wake up the Complainant.
  4. Tevita knocked at the door to the room in which the Complainant was sleeping. He couldn’t wake her. He said that the Accused then tried to come into the living room to get the Complainant. When the Accused tried to come in, Soana’s daughter put her hand up and told him to wait while she went and woke up the Complainant. She then went to the room and kicked on the door. The Complainant came out. She was angry. She went to the Accused. Tevita did not hear what they said. The Complainant then went to Soana. Tevita heard the Complainant ask Soana for permission to go shopping with the Accused. Soana said yes. The Complainant then walked to the Accused and they left. Tevita and his younger brother followed the Complainant out and asked the Accused if they could all go. The Accused told the boys to stay and that he would go with the Complainant and be back.
  5. Tevita said that when the Complainant returned, it was almost dark. He was sitting with Soana in the living room. He could see the same blue car that the Accused and Complainant left in, with its lights on. However, he could not see the person driving.
  6. When the Complainant came into the house, Tevita said she was crying, and that she sat on the carpet and was pulling her hair. He recounted Soana asking the Complainant what had happened. The Complainant said that the Accused did something to her. Soana then sent the children out while she continued talking with the Complainant.
  7. Tevita noted that the Complainant did not come back with any shopping.

Cross-examination

  1. When cross-examined, Tevita said:

Accused

  1. The Accused is 29 years of age. He was married to Luhia in January 2018. They do not have any children. Luhia has two - Tahli (18) and, Taioni (17) who, at the relevant time, lived with them. He works in construction.
  2. After their marriage, the Accused said he did not follow the practice in his family when growing up of beating wives. He has never beaten Luhia. They have arguments, but only verbal.
  3. He said that prior to October 2019, he used to drink alcohol, but had gradually given it up because when he was drinking he felt distant from his wife and their relationship. His wife also used to tell him not to spend all his money on alcohol. Her first husband came from a drinking family. She told the Accused that if he did not change, their relationship would not continue.
  4. In December 2018, the Complainant and her brothers were living with him and Luhia and her daughters and their grandmother. He described the sleeping arrangements in the house and denied the Complainant’s evidence that he used to sometimes sleep on the verandah.
  5. At that time, Siupeli was in New Zealand fruit picking. He left on 4 July 2018 and returned in January 2019.
  6. The Accused denied the Complainant’s evidence about the Accused and others drinking a box of Woodstock. He said he only drank at home when he was with Luhia, when he was tired and stressed from construction work. After the children and their grandmother moved in, he said he never drank because if he did, his mother ‘would have chased’ him from the home.
  7. He denied the Complainant’s allegations of the first rape. He went to Australia on 2 February 2019 on a fruit picking job. He said that up to then, the Complainant did not say or do anything that might have implicated that he raped her.
  8. When he was away, Siupeli and another male, Poli, were also living at the house. Siupeli moved in after returning from fruit picking. Poli moved in a week after Siupeli. During that time, he had contact with Luhia and Siupeli. Between February and March 2019, they contacted him about the Complainant’s behaviour. Luhia told him that the Complainant was smoking, wearing makeup and plucking her eyebrows, and not concentrating at school because she was on her phone. He arranged for Sa’ili to take the children to his house in Vahelu because the Complainant was not obeying Luhia.
  9. The Accused returned from Australia on 3 May 2019. He believed that the Complainant and her brothers were living at Havelu with Sa’ili.
  10. On Saturday, 18 May 2019, the Accused said he was at home with his wife and Taioni. Siupeli and Poli had moved to Havelu.
  11. He said that between 8 and 9am, he started drinking and during that morning he consumed half a 1.5 litre bottle of vodka by himself. He then ate, and around 2pm, he went to sleep. He woke up around 3pm. Luhia and Taione were at home. When he woke, he wanted to visit the children. He said he thought of going to the Complainant because, the day before, his mother told him to get the children and bring them back to his house and that when she returned from Australia, she would take them with her back to Ha’apai. He agreed. He washed his face and then left ‘to go to the Complainant’. His mother had told him that the Complainant and her brothers were living at their father’s house near the Longolongo police station. He told his wife he was going to get the children and she agreed. He did not think to first ask the children’s father whether he could take them.
  12. The Accused agreed with Tevita’s account of seeing him near the store and following his directions to the house at Longolongo. He said that when they arrived he told Tevita to wake up the Complainant and their younger brother so he could take them all to his home for the weekend and to pick up their grandmother when she returned the following Monday.
  13. When they arrived at the house, the car was parked half inside the residence. His only plan was to get the children and leave. He saw Tevita and the other children playing outside. He stayed inside his car. He thought he should talk to Soana as the children were living with her but did not do so because ‘the children (including the Complainant) all said they did not want to go’, so that was the end of it. He was still inside the car.
  14. The Accused said that the period from when Tevita got out of his car and took his shopping to Soana, to when the Complainant woke up and came and spoke to the Accused, was only about 3 to 5 minutes. He was adamant that he never got out of his car and that the evidence of Soana and Tevita, to the contrary, was untrue.
  15. When the Complainant came to the car, the Accused said she did not look like she had just woken up because she had makeup on as if she was ready to go somewhere. He asked her if all of them could go to his house for the weekend and then pick up their grandmother on the Monday. The Complainant said ‘no’. He then asked Tevita and the younger brother the same question. They also said ‘no’ but added that ‘Soana will be angry’.
  16. At that point, the Accused said that he ‘just went home’. He denied the evidence of the Complainant, Soana and Tevita that the Complainant got into his car and that they left together.
  17. He also denied the Complainant’s substantive evidence in relation to the alleged second rape.
  18. The Accused said that he returned home at 4:40 pm. He knew the time because his wife said ‘what took you so long which led you to coming at this time’. He parked the car in the shade and went to sleep. When he woke up in his car, it was nighttime. He estimated the time as between 7 and 8pm. Luhia was inside the house. They went and bought a watermelon from Fanga, then returned home and did not go anywhere else that night.
  19. The Accused denied being intoxicated that day. In answer to a question from the Bench, he said he was “completely sober when he woke up earlier that afternoon after 3pm”.
  20. On the Sunday night, Sa’ili called the Accused and told him that the Complainant had made accusations against him. He said he gave Sa’ili ‘yes or no’ answers to questions about what he was doing and where he was that day. Sa’ili did not ask the Accused whether he raped the Complainant. After the call, the Accused told Luhia about what Sa’ili had asked him. He and Luhia then watched movies and went to sleep.
  21. On the Monday, after the grandmother had arrived, the Accused said he had a conference call with Sa’ili, his wife and the grandmother. That’s when the allegation of rape was raised. The Accused denied it. That resulted in calling the family meeting so that the Complainant could be questioned about what had happened.
  22. The Accused’s account of the discussions at the family meeting the following Wednesday evening largely accorded with the evidence of the Complainant and Soana, including Luhia saying that she and Taioni were at home the previous Saturday. In relation to the louvres through which the Complainant said she escaped, the Accused said that during the meeting, the Complainant pointed to where the alleged missing louvres were, but none were broken. He said that Sa’ili’s wife told Soana that when they contacted her about the matter, they asked whether she saw the Accused and the blue car and that Soana said ‘no’. Like Sa’ili, his wife was not called to give evidence.
  23. According to the Accused, the Complainant’s mother, who was also not called, then said that she would be cutting her family ties with the Accused and that ‘everything should be left to God’. The Accused said that if she believed her daughter, they should go to the hospital and make a complaint, because a doctor could tell them the truth.

Cross-examination

  1. During cross-examination, the Accused denied the material allegations in respect of each count and said further, in summary:

Luhia

  1. The final witness was the Accused’s wife.
  2. She said that she married the Accused in January 2017 (not 2018). She works as a teacher.
  3. She and the Accused have had disagreements, but he has ‘never laid a hand on her’.
  4. While she only drinks alcohol occasionally, for example, at functions, alcohol was available in their house for the Accused and his brothers. However, when the Accused’s mother visited, there was no consumption because she is scared of drunk people.
  5. The Accused’s mother came to stay at their house with the Complainant and her two brothers in the second week of December 2018. At that time, Siupeli was still in New Zealand. He returned in the first or second week of January 2019.
  6. The Accused left for Australia on 5 February 2019. The Complainant and her brothers moved to their Uncle Sa’ili’s house at the end of February or first week of March 2019 because the Complainant was smoking, wearing shorts, plucking her eyebrows, and going places without her. Sa’ili decided to take the children to his place in Vahelu so that he could discipline them.
  7. The Accused returned from Australia at the end of April or first week of May 2019. At that time, only he and Luhia were living at their home in Sopu.
  8. On the Friday before Father’s Day in May 2019, the Accused went to Havelu for a haircut by one of his nephews. He returned to the house with his brother, Siupeli. They spent Friday night at the house with Luhia. The men drank 10 to 15 cans of beer during the night while she had two cans of Woodstock. They drank all night and finished around 10 am Saturday morning.
  9. Siupeli asked Luhia to take him to his home at Havelu. The Accused who was then sleeping, woke up and didn’t want her to take Siupeli. Nonetheless, she agreed and she and Siupeli left between 10 and 11 am in her and the Accused’s blue car. When she left, the Accused was sleeping again.
  10. After dropping Siupeli off at his house, Luhia then went to her brother’s house at Puke where she stayed until 4 pm. She then returned home. She found the Accused there sitting on the verandah with her phone. She asked him if he was hungry. He did not respond because she said he was angry that she was away too long.
  11. The Accused then told her that he was going to Havelu to get the kids so they could sleep over and then he could take them to the airport on the Monday to get their grandmother. The car keys were still in it. Luhia told the Accused he couldn’t take the car because he was drunk. She could smell alcohol on him and his speech was still not normal. Despite that, the Accused went straight to the car with both their phones and drove off. She said he left ‘around 4:30 pm something’.
  12. Luhia gave evidence that the Accused returned at ‘5:36 or 5:37 pm’. She found him sleeping in the car. She grabbed both phones and the car keys. She noticed the time when she looked at the phones. She didn’t speak to the Accused or bother waking him up. She went back into the house and cleaned.
  13. Sometime after 7 pm, the Accused came into the house and asked for watermelon. She then drove them both to the fruit market at Fanga where they bought watermelon. They then returned home. After the Accused finished the watermelon, he fell asleep in the living room. She hid the car keys so that he couldn’t go out again.
  14. On Sunday morning, while making breakfast, Luhia asked the Accused about where he went the afternoon before. He told her he went to Havelu to get the three children but that they did not want to come so he just left.
  15. They then received a telephone call from Sa’ili which they put on speaker. He asked the Accused about his whereabouts the day before. She and the Accused were shocked. The Accused asked what happened. Sa’ili asked the Accused whether he took the Complainant on the Saturday. The Accused said that the children did not want to go with him. Sa’ili accused him of taking the Complainant. Sa’ili explained how the Complainant’s mother had called and asked him to go to Soana’s house because something had happened to the Complainant on the Saturday night and that Soana said that the Accused took the Complainant, raped her and returned her back home after 8 pm. The Accused told Sa’ili that he was home at that time.
  16. Luhia wanted to talk, but the Accused told her not to. She said it was painful to hear the allegation because the Complainant had lived with her. According to Luhia, Sa’ili said that Soana had told him that she did not see who picked the Complainant up or who dropped her off, but that the Complainant said it was her uncle. Sa’ili said they would have a family meeting.
  17. Luhia’s account of the family meeting (which she said was convened on the Tuesday evening) was much the same as the previous witnesses. By all accounts, allegations were made, and heated arguments ensued. Sa’ili tried to keep everyone calm. She described the Complainant as crying and staring at the floor, not looking at anyone and being held by her mother.
  18. The police did not contact Luhia to give a statement, nor did they attend the house.

Cross-examination

  1. During cross-examination, Luhia said, in summary:

SUBMISSIONS

  1. At the close of the evidence, and in accordance with counsels' request for time to consider the evidence and prepare written submissions, directions were given for the filing of closing submissions. Those directions included a request for submissions on possible alternative verdicts in the event the court was not satisfied as to the element of consent.

Defence

  1. Mr Tu'utafaiva submitted that by reason of discrepancies in the evidence of the prosecution witnesses and conflicts between their evidence and that of the Accused and his wife, as well as other deficiencies in the Crown's case, the Prosecution had failed to prove the allegations beyond reasonable doubt and that the Accused should therefore be acquitted. Those submitted discrepancies and deficiencies included the following.
  2. In relation to Count 1:
  3. In relation to Count 2:
  4. Mr Tu'utafaiva also submitted that the Accused’s denial of the Complainant's evidence about going off in the car with him, which was corroborated by both Soana and Tevita, "could be explained by the fact that he was intoxicated on that day according to the evidence by his wife Luhia”.
  5. Mr Tu'utafaiva’s submissions did not address:

Prosecution

  1. The Prosecution submissions sought to provide explanations for each of the discrepancies or inconsistencies raised by the defence.
  2. In relation to Count 1, the Prosecution submitted, in summary:
  3. In relation to Count 2:
  4. The Prosecution further submitted that the following aspects of the Accused's evidence, and the manner in which he gave it, made his evidence unreliable:
  5. The Prosecution submits that the Accused’s evidence about quitting alcohol, if it is to be believed, was not by accident because it was the trigger which caused him to rape the Complainant on both occasions.
  6. Further, in relation to the Complainant's evidence that she did not think about the alleged first rape when the Accused came to get her in May 2019, the Prosecution submitted that the Complainant had blocked the "bad memory" from her mind and “wanted to move on with her life” which was supported by a number of factors including that:
  7. The Prosecution notes that, in any event, 'voluntarily going with the Defendant is completely different to voluntarily having sexual intercourse with the Defendant'.
  8. Finally, the Prosecution submits that the Complainant has no motive for, and nothing to gain from, lying about these charges. In fact, all she has gained thus far is strained relationships between herself and her mother's family. On the other hand, the motive for the Accused and his wife to lie is obvious.
  9. In the event that the Court may not be satisfied about the element of consent:

Defence reply

  1. As a result of the Prosecution’s submissions concerning the date specified in the particulars for count 1, I directed that Mr Tu'utafaiva file submissions in reply on that issue.
  2. Mr Tu'utafaiva opposes the two courses suggested by the Prosecution for dealing with this issue because, in summary, he submitted that:

CONSIDERATION

Elements of the charges

  1. It was common ground that the elements to be proven by the Prosecution on each count are that:

Relevant principles

Legal and evidentiary onus

  1. The Prosecution must prove each of the said elements beyond reasonable doubt. The Prosecution bears the burden of proof at all times. There is no obligation on the Accused to prove or disprove anything, nor was there any obligation on him to give or call evidence. The fact that he elected to do so does not in any way alter the burden or standard of proof.
  2. The Court, sitting as a judge alone, must determine the case having regard to all the admissible evidence heard during the trial.

Corroboration

  1. Section 11(1) of the Evidence Act permits evidence of fresh or recent complaint as corroboration in sexual offence cases, not in the sense that it is independent evidence, but that it may show that the Complainant’s conduct is consistent with her evidence at trial.
  2. Recently, s.11 was amended by s.2 of the Evidence (Amendment) Act 2016 to reflect the common law and statutory developments elsewhere in the Commonwealth by expressly providing that corroboration of a Complainant's evidence in sexual offence cases is no longer required for a conviction and no warning is required. The amendment was passed by the Legislative Assembly on 22 February 2016. Royal assent was granted on 26 March 2020. However, the amendment did not come into operation until it was published in the Gazette on 16 June 2020,[1] a date after the evidence in this trial was concluded but during the period over which closing submissions were filed.
  3. In any event, it is well established that whilst there is no legal requirement that I give myself a corroboration warning in a case such as this,[2] out of an abundance of caution I record that care is to be taken, and it is dangerous to convict, on the uncorroborated evidence of a Complainant. However, the Court may do so, of course, if satisfied beyond reasonable doubt that the Complainant is telling the truth.[3]
  4. It follows that even if the Court were not to accept the Accused’s evidence, the presumption of innocence demands that the Accused cannot be convicted unless the Court is satisfied of the truthfulness and reliability of the Complainant’s account, beyond any reasonable doubt.

Rape allegations

  1. In R v Manning and Henry (1968) 53 Crim App Rpt 150 at 153, at a time when corroboration warning to juries were required, Salmond LJ described convictions on the uncorroborated testimony of a complainant as dangerous because:
“... human experience has shown that in these Courts girls and woman do sometimes tell an entirely false story which is very easy to fabricate, but extremely difficult to refute. Such stories are fabricated for all sorts of reasons, ... and sometimes for no reason at all.”
  1. However, some 30 years later, in R v H [1997] 1 NZLR 673, Thomas J observed that:
“... the belief or suspicion that women, apparently because they are women, have an inherent propensity to make false allegations of rape has been one of the most enduring and pernicious of the ‘myths’ which has surrounded rape. This distrust reflects an essentially masculine anxiety about the female accuser. ...
There is ... no evidential basis for the view that complaints of rape carry a special danger of fabrication which needs to be specifically guarded against in the criminal law. Statistics indicate that the rate of false complaints for sexual abuse is no higher than for any other offence.”[4]
  1. His Honour also sought to debunk any truth in the assertion that charges of rape are easily made. Empirical evidence referred to therein demonstrated that rape is not a charge easily to be made, that a complaint to the police is usually made at considerable personal cost to the Complainant and an examination of police files did not disclose any evidence to justify the conclusion that there were significant numbers of false complaints motivated by jealousy, spite or fantasy. Those complaints which did appear to be false were often made by third persons and were usually perceived very quickly by the police to be unfounded.
  2. Thomas J also observed that there are many sound reasons why an innocent victim of rape may delay making a complaint including:
  3. The reasons may be subtle and difficult to comprehend forming part of the rape trauma syndrome suffered by many woman in the aftermath of rape. Contrary to the traditional perception that rapists are overwhelmingly brutal and violent strangers, from which the depiction of the outraged woman raising the hue and cry in the streets, showing her injuries and her ripped clothing, is often formed, the growing awareness of the preponderance of intra-familial sexual abuse, marital rape, rape in the workplace and acquaintance rape belies that perception. The victim in such circumstances is much less likely to make a complaint, if she complains at all.

The witnesses generally

  1. The Complainant impressed me as an honest and credible witness. Despite her young age, the ordeal of the experiences of which she gave evidence (if her evidence was truthful) and that of having to recount them in a court of law under cross-examination, her evidence was clear and consistent throughout. Her demeanour also struck me as consistent with her account. While different people process and express the effects of traumatic events differently, the Complainant maintained her composure for most of the time she gave evidence which spanned two days. I particularly noticed her wringing her hands together at times which indicated to me she was doing her best to remain calm and focused during difficult parts of her examination.
  2. At other times, the complainant's demeanour, with her arms folded and head down, but still clear and consistent in her answers to every question, conveyed the impression that she was determined to see this matter through to its end, no matter the result, and despite whatever rejections she may have experienced from certain family members to date. In my view, that determination, in the absence of any plausible evidence of a malevolent motivation, fortified the veracity of her evidence.
  3. Subject to the discrete issues addressed further below in respect of each count, I agree with the Prosecution’s characterization of the majority of discrepancies between the evidence of the Complainant and that of the other Prosecution witnesses, as being ‘minor’. With the passage of time and given the Complainant's young age both at the time of the alleged offending, and at trial, it is unsurprising that some minor, peripheral details may be left out, added or be inconsistent with similar details given by other witnesses. Memories of events may fade or decay and may be affected by subsequent experience or suggestion: D v R [2015] NZCA 171.
  4. While, in many cases, inconsistencies may fuel successful challenges on a witness's credit or reliability, here, none of those details altered or detracted from the overall consistency of the Complainant's evidence of the events which constitute the elements of the two counts. Even under cross-examination from a senior criminal lawyer, the Complainant's core evidence was unshaken.
  5. Overall, and again subject to the discrete issues discussed further below, at no time during her evidence, did I detect any basis for disbelieving the Complainant's evidence.
  6. Further, none of the theories advanced by the Accused or his wife as to why the Complainant (or the other Prosecution witnesses) might have lied were compelling or supported by any evidence. Indeed, some were far-fetched and nonsensical. After considering the evidence as a whole, I have found no factual basis for the Complainant to have made up these allegations. On the contrary, the evidence demonstrates that by bringing these matters before the court, the Complainant has nothing to gain but much to lose. She has already suffered significant loss in terms of family division and being ostracised by members of her mother's family. I do not consider that the risk of her being vindicated, or not, by the Court in her complaints could in any way justify or explain why she might have fabricated, and now maintain a fabrication of, these allegations.
  7. Whatever issues might be seen to attend certain aspects of the Complainant's evidence (as discussed below), there were no issues concerning the evidence of Soana and Tevita. Even though they were not truly independent witnesses, I found their evidence to be credible and reliable. I was particularly impressed by the calm, clear and firm manner in which Tevita gave his evidence. Statements attributed to Soana at the family meeting (which Soana did not confirm in her own evidence) by persons not called to give evidence were impermissible hearsay, and I have disregarded them. More importantly, the essential aspects of both Soana’s and Tevita’s evidence in relation to count 2, namely, that the Complainant left with the Accused on 18 May 2019 and that she returned later that evening in a distraught condition, were unchallenged and uncontradicted. I accept their evidence.
  8. By way of contrast, I have grave misgivings about the veracity of the Accused's evidence. He was an unimpressive witness almost from the outset, whose demeanour throughout the trial was guarded. For instance, when giving each answer through most of his evidence, he displayed a tendency to look up in the air rather than at the person addressing him. At times, he appeared aloof and expressed a somewhat aggressive or dismissive attitude to some questions asked of him.
  9. It was only when parts of the Accused’s evidence, when examined more closely, gave the appearance of not adding up, that he then appeared nervous and unsure. One example was his evidence about the time periods on 18 May 2019 from when he left his home to his return. His reluctance to agree to a simple matter of the addition of the individual estimates he had given, amounting to no more than 15 to 20 minutes, was an uneasy prelude to how his evidence went on to become unraveled by his wife's (examined in detail below). His explanation for his reluctance when questioned by his own counsel in re-examination, that he did not want his answers to agree with the Prosecution, only made matters worse. That, and other aspects of his evidence such as his denial to being intoxicated on the Saturday of count 2, led me to the conclusion that the Accused was prepared only to say what he perceived would assist his cause, no matter how demonstrably illogical or inconsistent, rather than the unalloyed truth.
  10. Further, the Accused gave certain evidence that was never put to the relevant Prosecution witnesses (identifiable from the summaries of evidence above). For example, in his evidence that the children told him they did not want to go with him, he added that they said that ‘Soana would be angry’. That was never put to any of the Prosecution witnesses. When asked about other evidence not put, the Accused remonstrated that he had given Mr Tu'utafaiva all the information and that it was up to his counsel as to what questions he asked. In light of Mr Tu'utafaiva’s painstaking effort to properly put various propositions to the Prosecution witnesses, I have difficulty in accepting the Accused’s explanation, or that Mr Tu'utafaiva overlooked putting matters which were the subject of his instructions. That then points to an alternative explanation, namely, recent invention.
  11. I agree with the Prosecution that the Accused’s wife, Luhia, appeared as an impressive witness. Her evidence was clear and firm. She did not waiver under cross-examination. I also accept that she, too, is not an independent witness and that her marriage to the Accused, and her natural desire to protect it, evokes caution when considering her evidence. It will be recalled that Luhia said in evidence that she had made it clear to her husband that if he had done anything wrong to the Complainant, she would not lie for him and that he would have to face the consequences. That laudable pledge will be examined further below when comparing Luhia’s evidence with that of the Accused and the Complainant.
  12. Against the background of that general assessment of the witnesses, and having carefully considered the evidence and submissions as recited above, I turn now to consider specific aspects of the evidence relevant to each count and what I consider to be the main issues in determining whether the Prosecution has proven the elements of each offence beyond reasonable doubt.

Count 1

  1. The Complainant’s evidence in relation to the first count is wholly uncorroborated. There is no evidence from any other independent witness as to the events she recounted as the alleged first rape. There is no medical evidence consistent with rape, or at all. There is no evidence of fresh or recent complaint. When the complaint was raised, not all the details she gave in evidence were initially given to the police. Notwithstanding that corroboration is not a prerequisite for conviction, the traditional and natural cautions in a case with such features necessitates a very careful examination of the evidence.
  2. The Complainant’s substantive evidence about the alleged rape was strikingly detailed. Experience suggests that fictions rarely survive scrutiny when the details are exposed and tested. Here, the Complainant’s evidence of what the Accused allegedly did to her remained consistent throughout and was wholly intact after cross-examination. However, notwithstanding my general acceptance of the Complainant’s evidence over, here, the Accused’s bare denial, I have come to the view that this count cannot be determined solely on the basis of whether I believe the Complainant’s account of the alleged rape itself. There are two issues arising from the evidence, upon which the defence focused, which must be resolved before the question of guilt or innocence can be determined.

Date of the alleged offending

  1. The first issue is the date of the alleged offending. It is quite clear from the surrounding evidence given by the Accused and Luhia, and which was confirmed to a certain extent by the Complainant and Tevita, that if the offence occurred, it did not occur on 22 December 2018. That conclusion is reached by the evidence as to when the Complainant, her brothers and their grandmother came to Tongatapu, when Siupeli went overseas fruit picking and when he returned in early January 2019 and when the Accused left to do the same on 2 February 2019. The Complainant’s evidence as to who was at the Accused’s house on the day of the alleged rape and who was drinking can only be accepted without reasonable doubt if it also be accepted that the day in question was one on which Siupeli, at least, had returned to Tongatapu and was staying with the Accused and his wife. That presents a window between the first or second week of January and 2 February 2019. Critically, and notwithstanding her difficulty in remembering dates, the Complainant was clear when she said that the alleged rape occurred two to three weeks before the Accused left for overseas. That places the relevant events within the said window and coincides with when Siupeli returned.
  2. I do not accept the Prosecution’s submission that the words in the particulars to the indictment “on or about 22 December 2018” can be construed to extend to an unknown day in the first or second week of January 2019. To do so would be to elongate the temporal meaning of the words “or about” beyond their natural limits. In my view, “on or about” a specific date usually connotes a ‘leeway’ in terms of days, not weeks. That may be compared with say “in or about January” which could unobjectionably include one or two weeks either side of that month.
  3. On the Prosecution’s alternative submission for amendment of the indictment, the relevant principles were recently discussed in Police v Faletau [2020] TOSC 23 at [13] and [14]. At any stage of a trial (including before verdict), the court may make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case, unless, having regard to the merits of the case, the required amendments cannot be made without injustice. Therefore, it is essential to consider with great care whether the Accused will be prejudiced by allowing the amendment.
  4. Insofar as Mr Tu'utafaiva based his client’s opposition to the proposed amendment on the contents of the Complainant’s statements to police, as noted above, he did not seek to tender any of them or any part of them during the trial. They are therefore not part of the evidence before me.
  5. I do not accept the Defence submission that the state of the evidence should mean that the Crown is not able to prove ‘this element’ of the case beyond reasonable doubt. Strictly speaking, the date of the offence is not an element of the offence created by s.118 of the Criminal Offences Act. It is a particular which is required as a matter of fairness to any accused. It may be regarded as part of the ‘grounds for the charge’ required by clause 11 of the Constitution. The correct question is whether the Prosecution has proved the true elements of the offence beyond reasonable doubt. Further, were the submission to have merit, one would have expected Mr Tu'utafaiva to have made a ‘no case’ submission on count 1 at the end of the Crown case. He elected not to do so.
  6. The real issue then is whether the proposed amendment will unjustly prejudice the Accused in the manner in which he has conducted his case.
  7. In my view, and for the reasons which follow, it will not.
  8. Firstly, it must be assumed that the Accused prepared his case on the basis of the evidence to be led according to the Prosecution witness statements provided at committal. Mr Tu'utafaiva did not complain that that material failed to make any reference to the grandmother, Siupeli, Taioni and/or Poli also being at the Accused’s residence on the day in question. Although he was under no legal obligation, it was open to the Accused to call evidence from those persons in relation to whatever the Complainant said about them to police.
  9. Further, the Accused knew that Siupeli was not in Tonga on 22 December 2018 and that he returned in the first or second week of January 2019. It was open to the Accused to therefore prepare his case on the basis that Siupeli was in Tonga at that time. The Accused also denied the rape allegation even on the basis of that later period. To do so, the Accused must have prepared his case cognizant of the relevant events in that later period.
  10. Secondly, the Complainant did not only give evidence about October, November or December 2018. She also gave evidence during cross-examination that the alleged first rape occurred two to three weeks prior to the Accused leaving for Australia. Times of events which are recalled by reference to other objectively proven events are often more reliable than attempted recollections of calendar dates. Here, the Accused referred to his passport entry as proving that he left on 2 February 2019. According to the Accused and Luhia, that was also two to three weeks after Siupeli returned from Australia.
  11. Thirdly, the Complainant’s evidence referred to immediately above, in respect of which no objection was taken, clearly made January 2019 relevant. It was therefore open to the Defence to cross-examine the Complainant further about that time when both the Accused and Siupeli were here.
  12. Fourthly, it follows that by reason of the forensic decision not to cross-examine the Complainant in relation to January 2019, any amendment to the indictment would not necessitate the Complainant having to be recalled for further cross-examination.
  13. Fifthly, the amendment would not, of itself, necessitate having to call the grandmother, Siupeli, Taioni or Poli to give evidence. As noted above, that was open from the outset based on the Complainant’s information to police about the presence of those people on the day in question. In any event, I do not consider that the absence of evidence from any of those persons justifies any negative inference nor does it give rise to any reasonable doubts on this count. As explained above, there is sufficient evidence from both sides to be certain about when the events complained of occurred. Further, as the Complainant admitted to not telling anyone about the alleged rape until some months later, and there was no other evidence of anyone else being awake in the house during the night when the Complainant alleged the rape occurred, it is unlikely that evidence from other persons such as the grandmother would have been of any probative value.
  14. I should add that in light of the Accused’s hapless evidence concerning his alcohol consumption in relation to count 2 (discussed further below), I accept the Complainant’s evidence that the Accused and others were drinking on the day in question. I do not accept the evidence of the Accused or Luhia that there was no drinking whatsoever whenever the grandmother was staying with them.

Lack of recent complaint

  1. I have carefully considered the fact that the Complainant did not report the first incident to anyone for around four months after it occurred. It is important to note that, consistent with the abandonment of the earlier rules requiring corroboration for convictions on sexual offences, s.11(1) of the Evidence Act does not operate in the negative or inverse to mean that lack of recent complaint necessarily impugns the veracity of a sexual offence complaint.
  2. As Thomas J observed in R v H, research and experience has revealed a myriad of reasons for a genuine complainant to delay in reporting an offence. Here, the centrality of the Complainant’s evidence was fear of the Accused further harming her if she told anyone, fear of other family members and her embarrassment in relation to Luhia being married to the Accused. Given her age and relative immaturity, her fractured family upbringing resulting in repeated changes of home and school environments and friction between her and some members of her mother’s family, I accept her evidence in this regard. Just as she appeared during her evidence at trial, those circumstances have likely forced the Complainant to prematurely develop a certain emotional and psychological resilience, strength and self-reliance.
  3. While this count must be assessed according to the evidence relevant to it, ultimately, it will be seen that whether the Complainant’s specific evidence in relation to count 1 should be accepted to the requisite standard is inextricably linked to the assessment of the evidence in relation to count 2. For if upon an assessment of all the evidence on that count, I am not satisfied beyond reasonable doubt that the Complainant’s evidence should be accepted, the lack of corroboration in relation to count 1 may well give rise to reasonable doubts about count 1.

Count 2

  1. The assessment of the evidence in relation to count 2 commences with my acceptance of the evidence of Soana and Tevita. Their evidence corroborated the Complainant’s account in respect of her leaving with the Accused on the afternoon or early evening of Saturday 18 May 2019. Her report to Soana of the alleged rape later that day immediately upon her return home was consistent with her evidence in relation to this count.
  2. In the face of the Accused’s repeated denials during his evidence, the defence submission postulating that if he did take the Complainant with him that day, he could not remember it because he was intoxicated, was as necessary as it was extraordinary. It was also a damning revelation on the credibility of the Accused and the reliability of his evidence.
  3. Even without that defence submission, my rejection of the Accused’s evidence on this count, in fact, unexpectedly resulted from the conflicts between his evidence and that of Luhia on material facts. The Prosecution submissions identified a number of those conflicts. They are further illustrated by the following comparative analysis:
Accused
Luhia
The Friday night before, he went out drinking kava. About 11pm, after drinking more than 15 cups, he went home, ate and went to bed.
The Accused went to Havelu for a haircut and he returned to the house with his brother, Siupeli. They spent Friday night at the house with Luhia. The men started drinking around 9 pm and drank 10 to 15 cans of beer during the night while she had two cans of Woodstock. They drank all night and finished around 10 am Saturday morning.
The men also had a 1.5 litre bottle of clear alcohol like Gin. The next morning, there was about a quarter of the bottle left, which Siupeli took with him when she dropped him off.
On Saturday, 18 May 2019, he was at home with his wife and Taioni.
Between 10 and 11 am, she left to take Siupeli to his house. She then visited her brother until returning to the house around 4:30 pm.
Also, Taioni was at a friend’s house that week.
After he woke on the Saturday morning and showered, he drank half a 1.5 litre bottle of vodka from between 8 and 9 am to close to 2 pm when he then had a sleep.
Just before she left to take Siupeli home, the Accused woke up and didn’t want her to take Siupeli. The Accused was sleeping again when she left.
When he woke around 3 pm, he felt completely sober and Luhia and Taioni were at home.
Luhia was at her brother’s place. Taioni was at a friend’s place that week.
When Luhia did see the Accused later that afternoon, he was intoxicated.
When he woke, he wanted to visit the children at their father’s house in Longolongo.
He told Luhia he was going to get the children from Hevalu.
He washed his face and left closer to 3pm than 4pm.
He left around 4:30 pm.
He returned home that afternoon at 4:40 p.m. because Luhia asked him: ‘what took you so long which led you to coming at this time’; and in cross-examination, he said she asked: “what took you so long, it’s now 20 minutes to 5”.
However, from the time estimates for the return trip and the 3 to 5 minutes he said he was at the Longolongo house, he was gone all up between 15 and 20 minutes.
No such evidence.
Luhia said the Accused returned at ‘5:36 or 5:37 pm’. She found him sleeping in the car. She didn’t speak to him or bother waking him up. She went back into the house and did cleaning.
On the Sunday night, Sa’ili called the Accused about the Complainant and his movements the day before.
On Sunday morning, Sa’ili called which they put on speaker.
After the call, the Accused told Luhia about what Sa’ili had asked him. He and Luhia then watched movies and went to sleep.
After the call, she questioned the Accused and told him that his account of the timing and number of hours was wrong. She asked him again about where he went. She was not satisfied about his explanation given the time he was away. He said he took too long because he was drunk and was therefore driving very slowly and that when the children said they didn’t want to come, he went around the block because he knew she was still angry with him.
During the family meeting, Luhia told the group that she and Taioni were at home the whole of Saturday.
Luhia was out for most of the day on Saturday.
When the Accused returned from overseas, only he and Luhia were living at their house.
Taioni was at a friend’s house all that week.
He gradually quit drinking alcohol as at October 2019.
He gradually reduced his drinking over the last year and quit ‘a month ago’ i.e. April 2020.
  1. Accordingly, I find that the Accused’s evidence on this count was unreliable and I do not accept his version of what occurred on the day in question.
  2. However, that is not the end of the matter. I must still be satisfied beyond reasonable doubt on the basis of the Prosecution evidence of the elements of this charge. In that regard, the Complainant’s evidence raised two issues which require further consideration.

Why did the Complainant get into the car with the Accused approximately four months after the first alleged rape?

  1. This issue is related to the determination of whether the first alleged rape occurred. For if it did, then the fact that the Complainant got into the Accused’s car on 18 May 2019 because she had forgotten about the first incident, is logically difficult to understand, if not bewildering. Conversely, the Complainant’s behaviour on the day in question can be more readily understood if the first alleged rape did not occur. In that event, the prospect of reasonable doubt in relation to the second count will be greater.
  2. I have had cause to give this issue and the competing submissions anguished consideration. One of the difficulties has been the lack of psychological insight into the reasoning processes of a 13 year old girl in the circumstances of the Complainant. Another is that there are limits to how far any logical or objective conduct analysis can be applied to matters of human behavior steeped in complex emotions and idiosyncratic psychology. Just as there may be many reasons for delayed, or not, reporting a truthful complaint of rape, there are many ways in which any victim of serious trauma deals with the experience and endeavours to manage and carry on with his or her life, including how the effects may or may not be expressed.
  3. However, having regard to the Complainant’s age and family circumstances, my close observations of her during her evidence, the detailed and consistent nature of her evidence in relation to this count, the corroboration of significant aspects of her evidence by Soana and Tevita, and the lack of any demonstrated motive for lying, I have concluded that the Prosecution’s submissions that the Complainant ‘blocked out’ the alleged first rape as her means of coping with it, and the surrounding circumstances advanced in the submission, should be accepted.

Luhia’s evidence that she was home when the rape is alleged to have occurred

  1. Assuming all other aspects of her account are accepted, the Complainant’s evidence that the alleged second rape occurred in the Accused’s house ends up colliding with Luhia’s evidence that she was at home on the day and, it would seem, during the period when the Complainant testified that she and the Accused were in the house alone.
  2. As much as Luhia presented as a credible witness, the conflicts between her evidence and that of the Accused mean that either he was lying, or she was, or that they both were. One other possibility is that Luhia was in fact describing a different day. I am also uneasy about Luhia’s evidence that she remembered the time the Accused returned to the house because she looked at both phones. I find it very difficult to believe that if she looked at the phones, she would commit to memory the times shown if she had no reason for concern about where the Accused had been or what he had done. That disquiet is also consistent with Luhia’s evidence that on the Sunday she questioned the Accused about where he had been because his account of the timing and hours was wrong.
  3. Ultimately, I have decided that the difficulties in accepting Luhia’s evidence on this issue, not as a matter of veracity but reliability, may be resolved by the evidence about whether Taioni was also at home on the day in question. The Accused’s evidence that Taioni was home and that Luhia told the family meeting that she and Taioni were home that day was never refuted by Luhia during her evidence. However, her own evidence at trial was initially that only she and the Accused were living at their house in Sopu after he returned from fruit picking earlier in early May 2019, and later she said that Taioni was not at the house on the Saturday because she was staying at a friend’s place that week.
  4. Accordingly, I do not accept that Luhia was at the house at the time of the alleged rape.
  5. By reason of that finding, combined with my rejection of the Accused’s evidence and acceptance of the evidence of the Complainant, Soana and Tevita, the Prosecution has proven the elements of count 2. It follows that any potential basis for doubt in relation to count 1 falls away.

RESULT

  1. The Prosecution is granted leave to amend count 1 on the indictment to replace the words “on or about December 2018” with “in or about January 2019”.
  2. For the reasons stated, I am satisfied beyond reasonable doubt that in January 2019 and on 18 May 2019, the Accused had sexual intercourse with the Complainant without her consent and against her will.
  3. As no issue of consent therefore arises, there is no need to consider any alternative verdicts.
  4. Accordingly, on each of count 1 (as amended) and 2, I find the Accused guilty of rape.
  5. The Accused will be remanded on bail on the existing conditions for sentencing on 14 August 2020.
  6. Submissions on sentence and a presentence report are to be filed by 7 August 2020.
  7. The Defendant is to attend the probation office within 48 hours to make arrangements for the preparation of his presentence report.
  8. Pursuant to s.119 of the Act, I direct that the identity of the Complainant and her evidence taken in the proceedings shall not be published in the Kingdom in a written publication available to the public or be broadcast in the Kingdom.
NUKU’ALOFA
M.H. Whitten QC
15 July 2020
LORD CHIEF JUSTICE

[1] Section 3(1) of the Interpretation Act.
[2] Teisina v R [1999] Tonga LR 145 (CA)
[3] R v V [2018] TOSC 59; R v 'Otutoa [2018] TOSC 5
[4] Referring to McDonald, “An(other) Explanation: The Exclusion of Women's Stories in Sexual Offence Trials”, NZLS Seminar, “Challenging Law and Legal Processes”, August 1993, at ft 32, p 47; Temkin, Rape and the Legal Process (Sweet and Maxwell - 1987) at p 4, and Young, Vol 1, Rape Study, supra, at pp 139-140.

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