R v 'Anitoni [2020] TOSC 52; CR 77 of 2020 (20 July 2020)

IN THE SUPREME COURT OF TONGA CRIMINAL JURISDICTION NUKU’ALOFA REGISTRY CR 77 of 2020
REX -v- ‘EPALAHAME ‘ANITONI

VERDICT

BEFORE:	LORD CHIEF JUSTICE WHITTEN
Counsel:	Ms L. Macomber for the Prosecution Mr S. Tu'utafaiva for the Defence
Date of trial:	14, 15, 16 July 2020
Date of verdict:	16 July 2020

Charge

1. The Accused, ‘Epalahame ‘Anitoni, stands charged of one count of rape contrary to s.118(1)(a) of the Criminal Offences Act in that in or about the month of October 2019, at Makapaeo, he raped the Complainant when he had carnal knowledge of her against her will. The Accused pleaded not guilty to the charge.
2. The elements of the offence are that:
   • (a) the Accused;
   • (b) had sexual intercourse (constituted by penetration of his penis into the Complainant’s vagina);
   • (c) with the Complainant; and
   • (d) against her will (that is, without her consent).
3. It was common ground that the last element, consent or the lack of it, was the sole issue in dispute.

Applicable principles

4. Section 118 (2) and (3) of the Criminal Offences Act addresses the issue of consent. Subsection 2 provides that, for the purposes of subsection 1, which creates the offence of rape, a man commits rape if at the time of sexual intercourse with a woman he knows she does not consent to the intercourse or he is reckless as to whether she consents to it. Subsection 3 declares that if at a trial for a rape offence the court has to consider whether a man believed that a woman was consenting to sexual intercourse, the presence or absence of reasonable grounds for such a belief is a matter to which the court is to have regard in conjunction with any other relevant matters in considering whether he so believes.
5. As with all criminal trials, the Accused here enjoys the benefit of the presumption of innocence, meaning that he is presumed innocent of the offence of which he is charged unless and until all the elements of the charge are proven beyond reasonable doubt.
6. To that end, the legal and evidential onus is on the Crown to prove each element of the offence beyond reasonable doubt. There is no obligation on the Accused to prove or disprove anything, nor is there any obligation on him to give or call evidence. The fact that in this case the Accused elected to give evidence does not in any way alter the burden or standard of proof.
7. The court, sitting as a judge alone, must determine the case having regard to all the admissible evidence received during the trial. In this case, the state of the evidence was a product of, amongst other things, the police investigation, decisions made by the Prosecution in relation to the conduct of its case and the extent of examination of each of the Complainant and the Accused during the trial. The Prosecution opened its case on the basis that it would call five witnesses. Ultimately, only the Complainant and her aunt Lavinia were called. Photographs were tendered by consent so there was no need to call the police officer who took the photographs. The investigating police officer was not called, which was not explained. The Complainant’s sister, Linda, was not called because the prosecutor said during the trial that she had spoken to Linda who was now living with the Accused’s family and that her evidence had been “tainted”. How or in what respect Linda’s evidence was tainted was not explained.

Summary of the evidence

8. To the extent that this trial concerns the single issue of consent, a summary of each of the witness’s evidence can be stated succinctly.

Complainant

9. The Complainant gave evidence that:
   • (a) On the night in question in October 2019, she and her sister were with the Accused in one of two structures or houses at the property (referred to as the little house) there were two beds, one referred to as a red bed or larger bed and the other a smaller or blue bed. She was lying on the red bed, Linda was sitting on the corner of it, and the Accused was lying on the blue bed.
   • (b) At one stage, Linda went to get a pillow from the other house and the Complainant was lying on the right side of the red bed facing the outer wall of the little house. The Complainant dozed off to sleep but was woken by feeling a hand inside her singlet and bra touching her left breast. She took the hand out and saw that it belonged to the Accused. In her evidence in chief, the Complainant said that was when the Accused told Linda to get a pillow from the other house. Later, she said the Accused jumped on to the red bed and touched her thigh, she felt goosebumps, and that was when Linda came back;
   • (c) The Accused returned to the blue bed and was lying on his back. The Complainant fell asleep again. Normally, she and Linda slept in the other house, but on this occasion, she said that Linda forgot to wake her to go to the other house.
   • (d) The Complainant again felt someone touching her breast inside her singlet. She again took the hand out and did not say anything. The Accused then said to her that he would ‘climb on top of her’. She did not consent to him climbing on top of her although she did not say anything to him and she did not actually understand what he meant. The Accused kept insisting and kept telling her that he would climb on top of her three times. She did not reply. When asked about that, she said “I just didn’t say anything to him”.
   • (e) The Accused then took off his clothes and pushed the Complainant ‘very hardly’ while she was still lying on her right side. He used both his hands and turned her ‘in a strong way’ so that she was facing up. He then took his clothes off and ‘abused her’. She explained that he pushed her downwards and took off her clothes, held both her shoulders and used his right hand and elbow to push her neck down, and then he took off her shorts and underwear.
   • (f) The Accused the ‘copulated twice’. She confirmed that to mean sexual intercourse by the Accused inserting his penis into her vagina. When asked how the Accused was positioned, the Complainant said that he was on his knees, one on either side of her, when he inserted her penis. When asked what the Complainant meant by the Accused having ‘copulated twice’, she said that he was ‘shaking twice’.
   • (g) While he was on top of her, she was pushing him in a forceful way but she could not get away from him. She was in pain. His hand was still on her chest or neck. The Accused did not say anything to her. She told him three times to get up because she did not like what he was doing, while she was trying to push him away.
   • (h) After he ‘copulated’, the Accused said ‘that would be enough’. He then got up and put on his trousers and t-shirt. The Complainant also got up and put her clothes on.
   • (i) When asked why she didn’t shout out for help, the Complainant said she was afraid of the Accused because he had previously assaulted her. She recounted two occasions. The first was when she did not apologize to her father and the Accused slapped her. The second was because she did not apologize to her sister Linda after some argument, and because of that, the Accused got a broom and smacked her behind three times.
   • (j) They were lying on a white sheet on the red bed. The Complainant said she saw blood on the sheet. The Accused saw it also. He took the sheets to the bush and burned them.
   • (k) After she put on her clothes the Accused told the Complainant that if she told her family or his family, he would take her somewhere and kill her. She was afraid. She then went back to the bed because she was feeling weak.
   • (l) Early the next morning around daybreak, it was raining, so the Complainant took a rain bath. She remembered that Linda was there. Linda told the Complainant she was in the other house nearby that night. The Complainant did not tell Linda what happened because she was afraid of the Accused.
   • (m) That next day, the Complainant, Linda and the Accused were at the house as well as her father and the Accused’s grandfather who had returned sometime after the Complainant took a rain bath. She described hugging the grandfather and she went back to bed because she was still feeling weak. She didn’t tell the grandfather what had happened because she was afraid of the Accused’s threats.
   • (n) The Complainant was adamant that it was a Sunday in November when she reported the matter to her aunt, Lavinia, after her uncle had eventually brought her and Linda to meet up. She was crying when recounting the incident to Lavinia. The Complainant said that she told Lavinia that when the Accused asked if he could get on top of her, she told him ‘no’ three times and kept refusing. She did not tell Lavinia about the Accused’s threats.
10. I will refer to the cross-examination of the Complainant further below. Suffice to say that Mr. Tu’utafaiva diligently put numerous propositions to the Complainant, undoubtedly based on his instructions from the Accused, which the Complainant almost universally denied.

Lavinia Mafi

11. Lavinia is the Complainant’s aunt. In her evidence, she recounted when she met up with the Complainant and Linda. During their conversation concerning whether the girls were intending to go back to their father’s place at Makapaeo, they repeatedly said that they were not going back. That eventually elicited from the Complainant her report about the Accused had done to her.

Accused

12. The Accused gave evidence generally that he and the Complainant had sexual intercourse twice on the night in question, that it was consensual throughout, and that the Complainant had in fact instigated at least the initial touching and foreplay before sex.
13. More specific and notable parts of his evidence included:
    • (a) he first met the Complainant earlier in 2019 at a mango tree near the Vaiola hospital
    • (b) the Complainant attended ‘drink-ups’ with him and some of his other male friends;
    • (c) after the Complainant and Linda moved to their father’s property at Makapaeo with the Accused, his mother (who was in a de facto relationship with the Complainant’s father) and his grandparents, the Accused and the Complainant used to fool or joke around with each other including by touching each other on their private parts outside the clothing;
    • (d) their consensual sex included the Complainant ‘unbuttoning her own shirt’ so that the Accused could reach in to touch her breast and that Linda was there when that happened;
    • (e) Linda tried to wake up the Complainant so that they could both go to the other house to sleep but the Complainant told Linda to leave and that she would come afterwards;
    • (f) the Accused and the Complainant took off their own clothes;
    • (g) before they had sex, he asked her whether she wanted to have sex and she agreed;
    • (h) he first licked her vagina before they had sex;
    • (i) the Complainant did not say anything throughout and ‘just laid there’;
    • (j) he denied any blood on the sheets or that he burned them;
    • (k) he was adamant that they had sex twice, first on the red bed and then on the blue;
    • (l) that after the first sex, he had a rest for about forty minutes during which he dozed off. When he woke, he rolled and smoked a cigarette and then the Complainant came down from the red bed and they had sex again on the blue bed.
14. Of the various propositions Mr. Tu’utafaiva put to the Complainant, which I have already noted the Complainant almost universally denied, one striking proposition was that after the night in question the Accused and the Complainant had regular sex near an avocado tree behind the houses on the property and that they behaved as a de facto or married couple. During his evidence in chief, the Accused not only did not say that but in fact said there was no sex between them after the night in question. I will return shortly to those sorts of discrepancies in the Accused’s evidence.
15. Under cross-examination, the Accused gave evidence that contrary to what he initially said in chief about the Complainant ‘imprisoning him’ whilst they were living together by stopping him from going to drink kava, it was in fact his grandparents who told him not to go out drinking kava. He agreed in cross-examination that there was never a time when the Complainant had actually stopped him from doing that.
16. Nonetheless like other aspects of his evidence where he appeared to concede a certain point, the Accused went on to try and qualify the concession in this regard by saying that the Complainant nonetheless tried to control him ‘in a way that his family could see it’. He spoke about trying to stop the Complainant from wearing only singlets and shorts because it was bad for his little sister to see that. And so a picture emerged whereby, in his evidence in chief, the Accused portrayed a relationship whereby the two liked each other to the point of touching each other which led to consensual sex, but in cross-examination, when the prosecutor put to the Accused that he was lying about aspects of his evidence, the Accused said that he didn’t like the Complainant and certainly not after they had sex because of her behavior trying to control him.
17. It is unnecessary to continue through with the litany of inconsistencies and contradictions in the Accused’s evidence for reasons to which I now turn.

Consideration

18. Overall, having considered the Accused’s evidence, I regarded him as a highly unreliable witness. I cannot say that his evidence was entirely uncreditworthy because from the outset, including the time the police investigated this matter, he admitted to the sex. Some of the photographs within exhibit P1 depict the Accused pointing out the beds in question in the little house.
19. Nonetheless, on the relevant issue of consent, I find his evidence highly unreliable. In particular, his evidence in cross-examination was inconsistent with his evidence in chief. I have given some examples already. There were other matters not put to the Complainant which came out in his evidence which could only be regarded as recent invention.
20. Further, the Accused did not give evidence about some matters which were put to the Complainant. For example, Mr Tu'utafaiva put to the Complainant that in September 2019, she had exposed her breasts to the Accused. She denied it. However, the Accused never gave that evidence. That was but one example.
21. Moreover, the Accused’s evidence actually contradicted certain matters which were put to the Complainant. For example, that he had sex with the Complainant again after the night in question, to which I have already referred. On another occasion, he admitted to lying under cross-examination in relation to his first meeting the Complainant at the mango tree near the hospital but then went on to seek to qualify that concession in a way which sought to salvage something of what he had said previously.
22. My observations of the Accused’s demeanor, particularly during cross-examination, were not consistent with a person doing their best to give truthful and consistent evidence.
23. Finally, cross-examination forced the Accused into a position where, perhaps as the last resort, he pretended to not know what rape meant. Questions from the bench revealed that he in fact did know what rape meant even at a rudimentary level.
24. However, notwithstanding my grave reservations about the reliability of the Accused’s evidence, the burden remains on the Crown to satisfy the court beyond reasonable doubt of the elements of the charge, here: consent.
25. Turning to the Complainant’s evidence on the issue of consent, there was no evidence corroborating the Complainant’s evidence that she did not consent to the sexual intercourse with the Accused. As Ms. Macomber correctly pointed out, s.11 of the Evidence Act has recently been amended. For completeness, I start with subsection 1 which, in terms, 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 the Complainant’s conduct as being consistent with her evidence at trial. The recent amendments to s.11 by section 2 of the Evidence Amendment Act 2016 reflect the common law and statutory development elsewhere in the Commonwealth by expressly providing that corroboration of a Complainant’s evidence in sexual offence cases is no longer acquired for a conviction and that no warning is required. The amendment come into operation when it was published in the Gazette on 16 June 2020.
26. While there is no legal requirement for a corroboration warning, in a case such as this, and 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 the Complainant. However, the court may do so if satisfied beyond reasonable doubt that the Complainant is telling the truth. It follows therefore 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.^[1]
27. After careful consideration of the Complainant’s evidence in chief, cross-examination and by reference, or compared, to the evidence of Lavinia and the Accused, I am left with the following questions:
    • (a) Why was the Complainant on the red bed in the little house with the Accused in the first place when she normally slept in the big house?
    • (b) When she dozed off and felt a hand on her breast, which she said she pushed away, why did she then just go back to sleep rather than get out of the little house or tell Linda, or otherwise yell out? In cross-examination, she said that Linda was in fact sitting on the bed when she first felt the Accused touch her breast.
    • (c) When Linda returned with the pillow, the Complainant did not complain. When asked why she did not do something then, the Complainant said she was afraid of the Accused because he had a ‘scary face’.
    • (d) In her evidence in chief, the complaint said that throughout the ordeal, from the initial touching, she said nothing to the Accused. Later in her evidence she said, firstly, that during sexual intercourse, she told him three times to get up off her because she ‘did not like what she was doing’; and on another occasion, when she was telling Lavinia what happened, she said that when the Accused asked her if he could get on top of her (that is before having sex), she said ‘no’ three times.
    • (e) A comparison of Lavinia’s account of what the Complainant said to her revealed that:
      • (i) the Complainant said the Accused touched her thighs first, there was no reference to touching her breasts at the outset;
      • (ii) the Complainant said that she ‘slapped’ the Accused’s hand and ‘chased him to go’;
      • (iii) Linda was trying to wake her up so they could go to the other house but she felt sleepy, so she just continued sleeping (which was more consistent with the Accused’s version);
      • (iv) Lavinia’s account did not include any reference to having sex or (to use the Complainant’s term) ‘copulating’ twice;
      • (v) the Complainant said that she did not tell Lavinia about the Accused’s threats. Lavinia said the Complainant told her that the Accused woke her and told her not to say a word or he would kill her (compare that to the Complainant’s evidence that no threat was made until after the sex);
      • (vi) when Lavinia asked the Complainant why she had not told anyone sooner, the Complainant said that the Accused told her that if she told anyone he would kill her and that he had a friend who had already killed someone before and that they would both kill her. That last part about the friend was never referred to by the Complainant in her evidence.
    • (f) Why did the Complainant not leave or call out when the Accused took off his own clothes; that is, on her version, before he had an opportunity to hold her down?
    • (g) The description of how the Accused took off her shorts, underwear, singlet and bra while holding her down is difficult to envision; that is, physically how that could be done? That was not explored during examination in chief or cross-examination.
    • (h) Why didn’t the Complainant call out or say anything to the Accused when he started touching her? She said she was afraid of him because he had assaulted her twice before. One of those occasions involved her father, the other involved Linda. Neither of them was called. More importantly, the Prosecutor did not put those allegations to the Accused in cross-examination. He was therefore not given an opportunity to answer them. The rule in Browne v Dunn^[2] required those allegations to be put. That, in my view, is an important feature of this case and particular on the issue of consent. It is often accepted in cases of this kind that where a Complainant has been threatened prior to or during the course of the sexual assault, she then either could not or was too fearful of calling out or in some other way trying to raise the alarm. Here, however, the only explanation given by the Complainant was her fear based on the two previous assaults. Those matters should have been made out by calling Prosecution witnesses if that evidence was available.
    • (i) In relation to the Prosecution’s submission that the Accused’s evidence of the two having sex on two occasions ‘raised an inference of the Accused’s consciousness of guilt’ by trying to demonstrate that the sex was consensual, if the Complainant’s evidence that the Accused “copulated twice” which she later explained as him “shaking twice” meant that he ejaculated twice, then that would be consistent with the Accused’s version. It is also likely to mean that the two sessions occurred over some period of time with a break in between as the Accused testified. The question then would be why did the Complainant stay between those sessions of sexual intercourse or otherwise failed to raise the alarm after the first?
    • (j) To the Complainant’s evidence of how the Accused was on top of her with his knees either side of her, one may ask how the act of sexual intercourse was possible in that position? Again, that was not explained during the course of examination or cross-examination, nor how the Accused actually positioned himself between the Complainant’s legs or otherwise.
    • (k) The Complainant said she did not know where Linda was at the time, although earlier in her evidence in chief, she said that Linda had forgotten to wake her before Linda went to the other house to sleep. I have already made observations about the evidence as to Linda’s presence in the little house at the commencement of the Accused touching the Complainant.
    • (l) Why did the Complainant go back to the bed after the sex was over, and go to sleep there, if she was afraid of the Accused? Why didn’t she instead go to the other house where Linda was or certainly get away from the Accused? That and her evidence that she had a rain bath the next morning is all the more quizzical.
    • (m) The Complainant said she did not tell Linda the next morning about the alleged rape because she was afraid of the Accused, but there was no explanation given in evidence for why she stayed at the property that next morning with the Accused and, as it turned out, her father and the Accused’s grandfather who returned there some point that day. It is difficult to understand why the Complainant would not have told either of her own father or the Accused’s grandfather because they have a natural ascendency over the Accused.
    • (n) The reference to the Accused being the Complainant’s ‘boyfriend’ or ‘de facto partner’ in the Complainant’s statements to the police raised some questions. The content of that text in her statements, although not tendered into evidence, is relevant to whether there was any sort of relationship before the Accused and the Complainant and therefore also relevant to the issue of consent. The Complainant’s evidence that she did not understand what the term ‘boyfriend’ meant was difficult to accept. She confirmed to Mr. Tu’utafaiva that she had completed her Form 4 education. I note that her denial about using that term, when being interviewed, was supported by Lavinia, at least, for the first statement. However, it is very difficult to understand why a police officer would record such relational terminology if it had not come from the Complainant. The only way that discrepancy could have been resolved was by calling the investigating police officer. The Prosecution decided not to do so and without explanation.
28. The rule in Jones v Dunkel^[3] establishes that two consequences can flow from the unexplained failure of a party to call a witness whom that party would be expected to call. The first is that the trier of fact may infer that the evidence of the absent witness would not assist the case of that party. The second is that the trier of fact may draw an inference unfavorable to that party with greater confidence. Importantly, however, the rule does not enable a trier of fact to infer that the evidence of the absent witness would have been positively averse to that party. The rule has been applied on a number of occasions in Tonga as recently referred to in the decision of Jurangpathy v Tonga Communications Corporation.^[4] It’s application in criminal cases has been confirmed by the Australian High Court albeit it that it would not be deployed where an Accused elects not to give evidence or to call evidence.^[5]
29. I am therefore satisfied that the Prosecution’s failure to call Linda and the investigating police officer supports an inference that their evidence would not have assisted the Prosecution case in relation to the issue of consent.
30. Finally, Mr. Tu’utafaiva’s submission that a potential motive for the Complainant either lying or not telling a fully accurate or truthful account of what occurred on the night of question could be gleaned from her conversation with Lavinia on 7 December 2019 (according to Lavinia) which resulted in the Complainant and her sister Linda being able to stay with Lavinia and not return to their father’s house. Whether or not that was the case is, so far as the court is concerned, speculation because, importantly, it was never put to, or explored with, the Complainant. I add here that even if it had been put, questions of an Accused as to a Complainant’s motive for lying may be regarded as irrelevant.^[6]

RESULT

31. Even though I reached the firm view that the Accused’s evidence was unreliable, the above questions in relation to the Complainant's evidence, which were left unanswered through the course of her examination, compels me to the conclusion that the Prosecution has failed to prove the relevant element of the offence, namely consent, beyond reasonable doubt.
32. I must emphasise that this analysis does not mean that I disbelieve the Complainant, merely that the evidence available on the Prosecution case, even after taking into account the serious shortcomings in the Accused’s evidence, has left reasonable doubts about (in the language of s.118):
    • (a) whether the Accused knew that the Complainant did not consent to the intercourse;
    • (b) whether the Accused was reckless as to whether the Complainant consented or not; and
    • (c) the presence or absence of reasonable grounds for the Accused’s professed belief that the Complainant consented.
33. The benefit of those reasonable doubts must be given to the Accused.
34. Accordingly, on the single count of rape, I find the Accused not guilty.
35. Pursuant to s.119 of the Criminal Offences 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
20 July 2020	LORD CHIEF JUSTICE

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^[1] R v V [2018] TOSC 59; R v 'Otutoa [2018] TOSC 5.

^[2] (1894) 6 The Reports 67, 70, cited with approval in Australia and New Zealand Banking Group Ltd v Lasike [2016] TOCA 7.

^[3] [1959] HCA 8; (1959) 101 CLR 298

^[4] [2019] TOSC 50

^[5] E.g. Hargraves v The Queen; Stoten v The Queen [2011] HCA 44

^[6] Hargraves, supra, at [44] referring to Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1 at 9 [9].