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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:
  3. It was common ground that the last element, consent or the lack of it, was the sole issue in dispute.

Applicable principles

  1. 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.
  2. 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.
  3. 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.
  4. 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

  1. 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

  1. The Complainant gave evidence that:
  2. 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

  1. 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

  1. 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.
  2. More specific and notable parts of his evidence included:
  3. 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.
  4. 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.
  5. 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.
  6. 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

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. 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.
  9. 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]
  10. 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:
  11. 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]
  12. 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.
  13. 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

  1. 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.
  2. 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):
  3. The benefit of those reasonable doubts must be given to the Accused.
  4. Accordingly, on the single count of rape, I find the Accused not guilty.
  5. 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


[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].


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