R v 'Anitema [2022] TOSC 11; CR 68 of 2021 (30 March 2022)

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

CR 68 of 2021

REX
-v-
JOSHUA HALAFIHI ‘ANITEMA

REASONS FOR VERDICT

BEFORE: LORD CHIEF JUSTICE WHITTEN QC
Appearances: Ms T. Kafa-Vainikolo for the Prosecution
Mr Clive Edwards SC for the Accused
Trial: 18, 19 and 20 October 2021, 10 and 11 March 2022
Verdict: 30 March 2022

CONTENTS

THE CHARGES
DELAYS IN DETERMINATION OF THE PROCEEDING
THE EVIDENCE
	PROSECUTION
		Complainant Marian Kupu Constable Sione Kavafono’atu Father of the Complainant Constable Hepisipa Tahavalu Constable Moses Vaikona Tutone Taiana Koloamatangi Constable Suliasi Takafua ‘Aionia Tukuafu Constable Primrose Kolo Constable Vahafolau Taufa
	ACCUSED
		Cross-examination
SUBMISSIONS
	ACCUSED PROSECUTION
CONSIDERATION
	ACCUSED’S EVIDENCE PROSECUTION EVIDENCE
Result

The charges

1. Upon his arraignment on 27 April 2021, the Accused pleaded not guilty to one count of rape, contrary to section 118 of the Criminal Offences Act, and one count of serious indecent assault, contrary to section 124 of the said Act.

Delays in determination of the proceeding

2. Determination of the proceeding was delayed for three reasons:
   • (a) at the conclusion of the three-day trial allocation, the evidence of the Accused had not been completed;
   • (b) during the course of the Accused’s evidence, it became apparent that there had been significant non-observances of the rule in Browne v Dunn.^[1] As a result, directions were required for the recalling of relevant Prosecution witnesses following the completion of the Accused’s evidence; and
   • (c) disruptions caused by the Hunga-Tonga-Hunga-Ha’apai volcanic eruption and tsunami on 15 January 2022 with resulting widespread loss of telephone and internet connectivity, and the detection, on 1 February 2022, of the Covid-19 coronavirus within the community.

The evidence

3. The Prosecution called 11 witnesses and tendered a number of documentary exhibits, namely, a sketch map of the Nukunuku police station, a booklet of 83 photographs, excerpts from the Nukunuku police station diary and charge (or cell) book and excerpts from the Central Police Station cell book and station diary.
4. The Accused gave evidence and tendered certain phone records.

Prosecution

Complainant

5. In aid of the order made pursuant to s 119 of the Criminal Offences Act at the conclusion of these reasons, the identity of the Complainant is not revealed in these reasons. She is therefore simply referred to as the Complainant.
6. At the commencement of the trial, the Prosecution sought leave to install a screen between the witness box and the gallery to avoid the Complainant having to see the Accused. Mr Edwards initially objected but then later withdrew his objection. Accordingly, the Complainant entered the court and gave her evidence with the screen in place.
7. The Complainant gave the following evidence.
8. In September 2020, the Complainant was 18 years of age, and the eldest of five children. On Thursday, 24 September 2020, while she was attending school, she decided to go off with some friends. One of those friends was Taiana Koloamatangi. The Complainant went to Taiana’s house. The Complainant said she wanted to drink alcohol but there was none there. She ended up staying the night there.
9. The next day, Friday, 25 September 2020, other people came to the house. The Complainant did not know them. They stayed until the afternoon. One of the men came with some Woodstock. The Complainant consumed one can. Taiana told the Complainant that the police were looking for her. The man with the alcohol told them to leave which they did around 10 or 11 pm that night. They went to Taiana's cousin’s place. There were other people there whom the Complainant did not know. At one stage, she inhaled "one puff" of a white powder she described as "sweet puff" and was told that it was “tutu”, which I understood was methamphetamine. Even though she at first felt dizzy, she still remembered everything. She stayed at the night that house.
10. The next day, Saturday 26 September 2020, the Complainant and Taiana went back to the house they stayed in on the Thursday night. She was told that the police had been searching for her but had not found anything. The Complainant then messaged her mother and told her that she was okay, not to worry, that she would come home when she was ready and that her mother had to stop getting people to search for her because she could take care of her own mistakes. That afternoon, Taiana went to get food and came back with milk and crackers. Two other males then came to the house. They all went for a drink around 5 or 6 pm. The Complainant only had one drink, but she wasn't sure what it was. She became scared when she saw one of the men try to hit Taiana. The two girls then took a taxi back to the house at which Taiana was staying and slept there that night.
11. On Sunday, 27 September 2020, the Complainant and Taiana walked to Longolongo for food. Upon their return to Nukunuku, they saw the Complainant's father approaching them. He told the Complainant to get in his vehicle which she did. He took her back to their family home where her father lectured her about her behaviour. The Complainant argued with her father telling him that she no longer wanted him to tell her what to do and that she could decide things for herself. Her father then left. Between 9 and 10 a.m., he returned with a police officer who had been instructed by the father to take the Complainant to the Nukunuku police station and ‘lock her up’ so that she would not go out again. The father asked the Complainant’s uncle to accompany her and the police officer to the station and for the police to drop Taiana off at her house.
12. At the police station, the Complainant was questioned about why her father had wanted her brought in. Between 10 and 11 a.m., Taiana was also brought into the station, and both were placed in a holding cell. The Complainant went to sleep. Around 1 p.m., a female police officer called them out to eat. The Complainant's mother had dropped off some food. After they finished their meal, the police took Taiana back to her house while the Complainant was returned to her cell where she went back to sleep.
13. That afternoon, a different female police officer brought the Complainant some clothing which her mother had dropped off. She then had a shower and changed into the fresh clothes, which comprised long tights, a long-sleeved top, a black and grey bra and pink underwear. She then went back to sleep.
14. That night, a male police officer, whom the Complainant later identified as the Accused, told the Complainant to come and have some tea. She described the Accused as wearing a long shirt with black and white stripes, and a black or dark blue tupenu. She also described him as ‘chubby’, a little taller than the Prosecutor, with dark skin and a very short haircut, but ‘not bald’. She went with him to the tearoom. There were other officers nearby. She was told that her father had dropped off food for her. The Accused asked her questions. He showed her how to open a tin of corned beef with a spoon. He asked why she was there and whether she wanted to call anyone. The Complainant said no. The Accused then asked the Complainant for her phone number. She said she didn't have one. Over the next 10 minutes, they consumed tea, bread and coffee. The Complainant then told the Accused that she wanted to sleep. He took her back to her cell. When he left, the Complainant said that the door was closed but not locked. She could hear the difference from previous times that day when the female police officers had always locked the door to her cell. The Complainant fell asleep.
15. Sometime later, the Complainant awoke suddenly when she felt someone outside her cell. She saw the same police officer, the Accused, although he was wearing a black or navy T-shirt. She could see his face by the light from the hallway and she recognized his voice. The Complainant had a bottle of drink with her. The Accused told her that the ‘others were asleep’. He then asked the Complainant if her drink was okay. She said that it was and that her mother had brought it in. He asked if he could have some because his throat was dry from drinking coffee. She said okay. The Accused then opened the cell door, went inside and took a long drink. He sat on the bed where the Complainant was sitting. She felt nervous although she thought police officers must have been allowed to come into cells. The Accused then asked her if she knew him. She said she didn't. He said he noticed her when her father had called the police in 2019 and that he was one of the officers who picked her up from the church and took her to the police station. The Complainant did not recognise him from that occasion. He then told her that she looked pretty and was ‘skinnier now’. He asked if she knew his sister. He asked if she had a boyfriend. He asked if she had slept with anyone. The Complainant said that she didn’t know. She felt strange. He asked her if she wanted to call anyone. She asked whether that was allowed. He said it wasn't but that he could help her. She said she wanted to call Taiana. The Accused then asked her whether she had had a relationship with a policeman. She said no. He asked her if it was okay for him to ‘court her’. She said yes although she didn't think anything would happen and didn't take it seriously because he didn't sound serious.
16. The Accused then told the Complainant to go to the toilet to use the phone. According to the tendered sketch map (exhibit P1), the first cubicle of the toilets was some 7 to 8 metres from her cell.
17. As they went through the cell doorway, the Accused turned around, kissed the Complainant and then touched her breast and slid his hand down to her vagina outside her clothing. She slapped his hand away. Neither said anything. The Complainant was surprised. The Accused then turned off the lights in the hallway and went around behind the Complainant. She turned left and started walking slowly towards the toilet block, where the lights were also off. When the Complainant was asked why she continued going with the Accused after he had touched her, she said she did not think he would do anything more and that she just wanted to use the phone.
18. Once at the toilet block, the Complainant went inside the first cubicle while the Accused stood outside facing the hallway. He asked her for the phone number. She said she was going to call Taiana who had a Digicel number. The Accused said that he was with U-Call (TCC). He then came close towards the Complainant and started touching her breast and vagina outside her clothes again. It happened quickly. She was shocked and scared. She just stood there, not knowing what to do. She was not sure whether he might do something more like punch her or even kill her. The Accused then tried to take off the front of his tupenu or pull it to one side. He then told the Complainant to "suck his dick". She complied. She went down slowly and touched his penis. She noticed that he was wearing white tights which extended to his knees. He pulled them down a little and pulled his penis out. Again, he told her to suck it. She did so for about a second or two. She did so because she was scared about what the Accused might do to her. She then stood up. He then told her to go back to the cell so that "he could eat her like an animal". She walked behind him.
19. Once in the cell, the Complainant sat on the bed. She did not see anybody else around. She was very nervous and scared. The Accused came into the cell. He leaned forward, laid her down and pulled her tights down to underneath her knees. He then inserted his finger inside her vagina three times. She tried to hold his hand, but he did not stop. He then bent down and she felt his tongue on her vagina. Then he inserted his penis inside her vagina. After three or four thrusts, the Accused ejaculated on the outside of the Complainant’s vagina. She didn’t do anything; she just froze. She was terrified and scared throughout and again did not know what the Accused might do if she resisted or complained given he was a police officer and much older than her. The whole encounter took more than an hour.
20. The Accused then told her that he was going to check the other phone in the domestic or interview room towards the front of the police station building. He then left the cell. She pulled up her tights. He then came back and told her to go to the domestic room. There was no one around and the lights were off. Once in the room, the Accused sat in front of the Complainant with a phone on the table in front of her. She noticed the Accused looking at the door to the tea area. He looked nervous and worried.
21. The Complainant then called Taiana. The first time she tried there was no answer. On the second attempt, Taiana answered. The Complainant estimated that this occurred between midnight and 1 AM because there was a wall clock in the room and she also heard a rooster crowing outside. She asked Taiana about who had dropped her off. Taiana said it was the Complainant's Mum. The Complainant then told Taiana that she would be out soon. Taiana said okay and to call her when she was out.
22. Throughout the conversation, the Accused was sitting in front of the Complainant staring at her. During the call, the Complainant recognised a female police officer, the one who had earlier brought the clothes, walk past quickly. She was wearing a green dress. She didn't say anything to the Complainant.
23. After the call ended, the Accused told the Complainant to return to her cell. When they came out of the interview room, the Complainant did not see the female officer again. She did not think to call out to anyone because the Accused was right behind her. When they got to her cell, she went in and the Accused closed the door. He said he would not give her his phone number because she might throw it away or leave it somewhere. He told her not to tell anyone and then left. Again, he sounded worried and nervous.
24. The Complainant felt that she couldn't sleep because she was scared the Accused might return. Eventually, however, she fell asleep.
25. When she awoke the next morning, Monday, 28 September 2020, a different male police officer called the Complainant to have breakfast. She did not tell any of the other police officers at the station what had happened because she was scared and felt she could not trust anyone. She did not see the Accused again that day.
26. An officer by the name of Talamai told her to come and talk with him. He just talked about his own daughter and told the Complainant that what she was doing (staying away from home) was not right. Even though he told her that they were related, the Complainant felt she could not tell him what happened because she didn't know him that well.
27. A female officer then told the Complainant to come for a drive with a number of other officers. They all drove to Longolongo police station and then to Central police station before "going for a spin" (as she put it) and then returning to Nukunuku station. Again, the Complainant did not tell any of those officers what happened because she did not know them.
28. When they returned, she said that she wanted to take a shower. A female officer took her to the bathroom. The bottom of her tights was still wet and stained. After her shower, she changed and put her tights back in her bag. She then went to sleep.
29. The Complainant was then awoken by an officer telling her that she had a visitor. Marian Kupu was the Complainant's mother's best friend and Marian's daughter was the Complainant's best friend. She knew and trusted Marian. By this time, it was dark. The Complainant and Marian were taken to a meeting room. Marian asked the Complainant how she was, how she could do better and that she would help the Complainant get a job. The Complainant went quiet. When she couldn't hold it in any longer, she told Marian that "something happened last night. One of the police did something to me in the cell last night. He raped me". She was not sure whether she said anything about the earlier touching or sucking. She began to cry. The Complainant told Marian that it was okay to tell her parents what had happened.
30. Marian then called the Complainant's mother. But the mother was busy with someone and said she would come later. While they were waiting, Marian asked the Complainant how she felt. The Complainant said that she was scared that the Accused might show up again. Marian said that she was worried too. About an hour or two passed and the Complainant's mother had not arrived. It was almost curfew time. The Complainant told Marian that it was okay for her to leave. They hugged. Marian started to cry and then left the station. The Complainant was returned to her cell where she sat crying, feeling scared and terrified. She lay down facing the cell door until she fell asleep.
31. The next morning, Tuesday, 29 September 2020, the Complainant was awoken by a male officer she referred to as ‘Kava’. He knew her father. He was also one of the five officers who took her for a drive the day before. He told her to come out of the cell because he wanted to talk to her. They went to the interview room. He asked the Complainant how she felt and why her father had brought her to the station. He mentioned that it was his day off, but he wanted to check on her because he noticed something odd about her during the drive, in particular, the way she replied to a joke that was made. He heard her say that she wanted to jump into the sea because she was so embarrassed. A different officer then came in and asked the Complainant whether she had used the phone the night before. She said that she had. They asked her who let her out. She said she didn't know his name. Officer ‘Kava’ then asked her if something had happened that night. The Complainant said that a police officer had raped her inside her cell. She continued to tell them what had happened. Officer Tahavalu recorded the Complainant’s statement.
32. Later that afternoon, the Complainant was taken to a meeting room where her father was waiting together with Officer Talamai and another officer. She couldn't look at her father. He tried to hug her, but she was angry with him. She then told her father that a police officer had raped her. She could not stop crying. Her mother was called, and she arrived sometime later on. The Complainant was released and left the police station with her mother.
33. Later that day, while the Complainant was driving with her mother, the two began arguing which resulted in the Complainant's mother beating her and causing her injuries. Subsequently, the Complainant's father called the police again to stop the Complainant from leaving home. At some point thereafter, the Complainant was taken by police to Central police station where she was placed in custody. Later that day, the police brought Taiana into the Complainant’s cell. The Complainant told police that she knew Taiana. They did not then speak to each other. Taiana was later taken away. The Complainant was released from Central police station the next morning. She was never told why she had been held overnight.
34. After the Complainant had lodged her complaint about this matter and the investigation commenced, she identified the Accused from three montages of photographs comprising seven males each (photographs 73 to 75 of exhibit P2). During her evidence, the Complainant confirmed her identification of the Accused from the photographs.
35. During cross-examination, Mr Edwards suggested to the Complainant that her father called the police on the Sunday morning because she was drunk. The Complainant denied that. She reiterated that her father was afraid she might leave home again. She wanted to talk to her father calmly about the issue, but he would not let her finish talking; he just got the police involved.
36. When asked why she did not tell the Accused to stop the sexual assault, the Complainant repeated that she was afraid at the time that the Accused might do something to hurt or even kill her because he was a police officer. Of her entire encounter with the accused, which she earlier described as taking about an hour, what happened in the cell, that is, the rape, took about five or six minutes. She repeated that she did not trust the police after what had happened. She only made her statement because a female officer told her to. When she went for a drive with the other officers, and they were laughing and joking, she didn't. She only trusted her family to tell what happened. When asked what had happened for her to trust the police on the Tuesday when she made her first complaint, the Complainant explained that when the officer asked her about using the phone the night before, she felt that Officer Kava sensed that something was wrong.
37. In denying Mr Edwards’ suggestion that her entire account of the sexual assault and rape was untrue, the Complainant said:

"Why would I be here (in court) taking the risk of damaging my reputation, stopping going to school, affecting my relationships at home and scarring me for life?"

38. Mr Edwards put to the Complainant that the Nukunuku station diary (exhibit P3) recorded that a female police officer by the name of Kolo had taken the Complainant to tea at 11 PM. The Complainant denied that and was adamant that it was the Accused who took her to tea and then back to her cell afterwards. She said she did not know what Officer Kolo looked like.
39. In fact, the relevant excerpts from the station diary are difficult to follow because the time sequence is attributed to two days, namely the 27 and 29 September 2020. The entry numbers in the first column are also out of sequence with the serial numbers that appear in the next column to the right. Assuming the references to the 29th were typographical errors, and that all the events occurred on the 27th, then, relevantly, they recorded:
    • (a) serial number 53 - 8:40 PM: the Complainant's father arrived with food;
    • (b) serial number 54 - 8:47 PM: WPC Kolo left to the prison to feed one person in custody [the Complainant] ...with the food brought in by her father; and
    • (c) serial number 52 - 9 PM: WPC Kolo returned from prison after feeding [the Complainant].

There were no entries recording any events relevant to the Complainant at or about 11 PM.

40. The Complainant also sought to differentiate between the first occasion in which a female police officer took her for food and a separate occasion when the Accused took her for tea and returned her to her cell. None of that was recorded in the station diary.
41. The Complainant was cross-examined about the alleged rape and was asked why she didn't try to stop the Accused. She explained that she had tried to hold onto her tights and underpants which was why they didn't come right off but only down to her knees. Mr Edwards then asked how the Accused could have gotten ‘between her legs’. The Complainant explained that the Accused held her legs up.
42. She was asked why in her statement to police she said that it was approximately between 10 and 11 PM when a male person woke her up to go and have tea. The Complainant explained that it was dark outside at the time, but it was after her mother had dropped off clothes for her and she otherwise worked backwards from when she saw the clock in the interview room which said almost 12 midnight.
43. The Complainant confirmed that she was able to see the Accused’s face, and thus identify him, because of the light outside her cell. She was also asked about another part of her statement to police where she had stated that after the alleged rape, the Accused asked for a towel ‘to wipe the cum off her’. There was sufficient light for the Accused to see the orange coloured towel amongst the belongings brought in by the Complainant’s mother. She felt the Accused wiping her with the towel. He left it on the bench. After she made her complaint, the towel and all her belongings were given to police. None of those items were presented during the trial nor was their absence explained.
44. The Complainant was questioned about having been medically examined a few days later. She said that the examining doctor stated that if the Complainant had been brought in straight after the complaint, there might have been a possibility of detecting any semen. However, because she had been brought in too late, there was nothing detected.

Marian Kupu

45. Just as the Complainant had described her, Marian Kupu described herself as a friend of the Complainant's mother. She has known the Complainant since 2019. Marian gave the following evidence.
46. She heard from the Complainant's mother that the Complainant was at Nukunuku police station. After work on the Monday (28 September 2020) evening, Marian asked the Complainant's mother for permission to go and visit the Complainant. It was given. When she arrived at the police station, Marian was taken into a conference room. A female police officer then brought the Complainant into the room. They hugged and Marian asked the Complainant how she was. The Complainant said that she was okay. However, Marian noticed that the Complainant looked worried and scared, as though she had been crying. They then engaged in what Marian described as a "bit of mother daughter talk” and about the Complainant's decisions in life. Marian could tell that something was bothering the Complainant. The Complainant asked Marian to contact her mother. Marian tried but could not get through. The Complainant then told Marian what to tell her mother. She asked Marian not to be mad at her. She explained that a male police officer had gone inside her cell. The Complainant then started sobbing. Marian asked whether the officer touched her. The Complainant said yes. Marian then asked ‘did he fuck you?’. The Complainant said ‘yes’. Marian asked the Complainant whether she knew his name. The Complainant said ‘no’ but that she knew his face and that she had not told anyone. Marian considered that there was nothing she could do right then and there but told the Complainant that she would contact her parents and let them know what was happening.
47. When Marian left the station, she called the Complainant's mother and told her that the Complainant had been physically abused by a police officer. Marian didn't tell the police what happened because she didn't trust them as the incident described by the Complainant had happened in a police station and at the hands of a police officer.
48. When asked how well she knew the Complainant, Marian said that she knew her well and that the Complainant had ‘never told a lie (before) to this extent’. She was not further examined on that answer.
49. During cross-examination, Mr Edwards asked Marian why she did not trust the police sufficiently to report the situation at that time. Marian said that her father was a police officer and she trusted him although she knew that ‘not all officers abided by the law’.

Constable Sione Kavafono’atu

50. Constable Kavafono’atu has been a member of the police force for 19 years and is currently a member of the crime investigation unit at Nukunuku police station. He gave the following evidence.
51. The Complainant is the daughter of his wife's cousin. He has known her for nine years. They are well acquainted.
52. On the Tuesday of the week in question, he arrived at work and noticed the Complainant at the station. It was the first time he had seen her there. She was making tea. He asked what she was doing there. Another officer by the name of Aholelei then walked in and asked the Complainant why she was using the phone the previous night. The Complainant appeared surprised but did not answer. Constable Kavafono’atu saw that the Complainant was having a difficult time saying what she wanted to say. He asked her why she had been arrested but she did not answer. The Complainant then asked him ‘if there was ever a person who was abused and raped while in custody, what would happen to that person?’. She said she did not feel safe anymore at the police station and that she did not trust police officers anymore. He asked her what happened.
53. The Complainant told him that she had been sexually abused and raped inside her prison cell. She then gave Constable Kavafono’atu the following account. On the previous Sunday night, while she was inside her cell, she was surprised when a male officer called out to her if she was sleeping. She answered "mmm”. The officer asked her if she had a sweet drink in her bottle. She said yes. He asked if he could have a drink. She said yes. The officer then opened her cell door and entered. He had a drink from her bottle, sat down the bench and started talking to the Complainant. He asked her if she wanted to use the phone. She said yes. The Complainant asked if she could go to the bathroom. The officer let the Complainant out of the cell to use the bathroom. The officer followed her with his phone and gave it to her to use. The Complainant told him that the number she wanted to call was a Digicel number. The officer said that his phone was with U-Call and so the Complainant returned the phone to him. She then walked into a bathroom. As she was exiting, the officer came up to her and grabbed her and started to kiss her and told her to go back into the prison cell. The Complainant was scared and nervous and didn't know what else to do. They both went back into the cell. She couldn't do anything and couldn't scream, and it all felt very strange. She then said she was sexually abused and raped. Afterwards, the male officer asked her if she wanted to use the phone. He then took her to a room where domestic cases are dealt with to use a landline there. He told her to keep quiet and never speak of anything that had happened.
54. Constable Kavafono’atu then called the officer in charge, Sargent Taufa, and conveyed what the Complainant had told him.
55. Constable Kavafono’atu was asked about the procedure for remanding females. He explained that there should always be a female officer present to check on female detainees and that a female officer must be in attendance at all times. He added that only a female officer may accompany a female detainee to the bathroom or other activity such as getting food and drink or using the phone. The only exception is where a male officer has to conduct certain work on the particular matter but even then, a female officer must always be present.
56. Constable Kavafono’atu also explained that the station diary was intended to be a record of every movement of a person in custody, all their needs, as well as a record of any complaints from the community, work procedures carried out and whatever else happens in the police station.
57. During cross-examination, Constable Kavafono’atu explained that he had not recorded his conversation with the Complainant in the station diary because he passed the information directly to the officer in charge for him to continue the work. Mr Edwards asked why his account was so detailed given the events had occurred more than a year before. Constable Kavafono’atu said that he had made a statement at the time. At the end of the cross examination, the Accused was seen giving Mr Edwards further instructions. However, Mr Edwards did not ask or put anything further to Constable Kavafono’atu.
58. In re-examination, Constable Kavafono’atu said that he had provided his statement on the Tuesday evening after the Complainant had given her account to him. He added that he had not refreshed his memory from his statement before giving evidence at trial.
59. The Prosecutor sought leave to adduce further evidence in chief. Leave was granted. She asked Constable Kavafono’atu about the episode described by the Complainant where she went for a drive with five other officers around town. Constable Kavafono’atu was one of them. However, he said the drive occurred on the Tuesday, after she had told him what happened. When asked why they had gone for the drive, he explained that he felt he had to take the Complainant away from the station and put her in a safe house. After having made several calls, the officers had not been able to place her in a safe house. They then took her back to Nukunuku station. He described the Complainant during the trip as looking dissatisfied and upset.
60. Mr Edwards was then permitted to ask Constable Kavafono’atu further questions about his statement. It bore the date 1 October 2020. He was asked why he had earlier said it had been made on 29 September 2020. Constable Kavafono’atu simply said that that was the day he recalled.

Father of the Complainant

61. The Complainant's father gave the following evidence.
62. By Sunday, 27 September 2020, he was very worried about the Complainant as she had run away from home since the previous Thursday. He said he had been unable to sleep. That morning, he was out on Hihifo Road looking for her when he found her with Taiana walking along the road talking and laughing. He asked the Complainant to return home with him. She did so. They talked 'as usual'. She wanted freedom to go out with her friends. He wanted to keep her at home because she was only just 18 years of age. She was also the eldest of the children and was therefore expected to be a role model for her other siblings. He decided that the only safe place to keep her for a while was at the police station. He confirmed that there was no other reason he asked the police to become involved. He contacted the police and asked if he could bring his daughter in ‘for the day’. The relevant entry in the Nukunuku station diary (serial number 26) recorded that the Complainant's father:

"... approached the police seeking help in relation to his daughter. She was very drunk to which he requested to keep her in the jail cell until she is clearheaded as he feared the chance that something might happen".

63. During his evidence, the father denied ever telling the police that the Complainant was drunk.
64. His brother-in-law took the Complainant to the police station while he and his wife followed. No police officers came to the house. Serial number 27 in the station diary, recorded that at 11:53 AM:

"WPC Tahavalu departed together with [the Complainant's father] to escort in his daughter [the Complainant].”

65. Once the Complainant was at the police station, the father said he expected that she should be kept overnight and that he simply left it to "normal process". He recounted a previous occasion earlier that year when a similar situation had occurred. When he went to the Complainant’s school to collect her, she was not there. When she was found, he had her placed in custody at Central police station for the same reason.
66. The father said that Taiana was allowed to go home. He reiterated that there had been no crime committed but that ‘it was just for [the Complainant's] protection and safety’. He was concerned she might run away again. The officer in charge told him to come back the next day.
67. On the Monday, the father visited the Complainant at the police station at between 4 and 5 PM. He visited her again on the Tuesday around 4 PM. That, he said, was when he heard what happened. The Complainant was crying. She blamed him for bringing her there. He tried to explain to her that he thought it was the only place where she would be kept safe. The Complainant kept blaming er father for having her brought to the police station. The Complainant did not tell him any of the details of what had happened. However, he ‘understood’ that something of a sexual nature had happened to her. He was frustrated and upset. He asked police for more details. After he spoke with the Complainant, he went home with his wife to try and calm down. Later, the Complainant and his wife returned home.
68. On the Wednesday morning, the father was approached by the Accused. He had been informed by his staff at work that the Accused was there to talk with him. He said that he was busy. Early the next morning (Thursday) the Accused came to his house with another police officer at around 7 AM. The Accused called the father from the road. The father went out. The Accused told him he had put in his statement with his superiors at Nukunuku but that he had already heard there was a direction from Longolongo about him. The Accused told the father that he knew the Complainant but that he ‘never had sex with her’ and that he hoped the police would do a medical check straight after what happened. His wife then came out and asked the officers to go back to the station and that she would go there and talk with them.

Constable Hepisipa Tahavalu

69. Constable Tahavalu has been a member of the police force for three years and nine months. She worked at the Nukunuku station from February 2020. She gave the following evidence.
70. Constable Tahavalu was the officer who responded to the request by the Complainant's father to place her in custody. He asked for help because the Complainant was drunk. The father told the officer to keep his daughter in custody until she sobered up. The officer told him that they did not do that at Nukunuku but that she would talk to the officer in charge. The officer in charge told Tahavalu to go with the father. They went in the father's vehicle to his house. The Complainant was called and Tahavalu asked her if she would come to the police station. The Complainant complied. When the Complainant walked over and got into the vehicle, another man from the veranda nearby came with them.
71. In answer to a question from the Bench as to how the Complainant appeared when her father reported her as being drunk, the officer said that the Complainant looked fine, that she was not swaying when walking and was ‘not out of control’ although the Complainant had a red face and smelt ‘a little bit’ of alcohol on her breath when in the police vehicle.
72. The Complainant was quiet during the journey. However, by the time they arrived at the station, she was crying. The other man (the Complainant's uncle) asked for a room at the station where they could talk. Then, the Complainant's father and another girl (Taiana) arrived at the station. Tahavalu asked Taiana why she had come to the station. Taiana said that she had been drinking with the Complainant, so the Complainant's father asked her to come. The officer in charge and another officer then arrived. Both girls were placed in a cell ‘so that they could sober up’. Tahavalu observed that Taiana did not appear intoxicated either. Later that day, the Complainant's mother visited. The constable brought both girls out of their cell to see the mother.

Constable Moses Vaikona Tutone

73. Constable Tutone has been a police officer for 13 years. He currently works in the complaints office for the Western District at Nukunuku police station. He gave the following evidence.
74. On Sunday, 27 September 2020, he commenced work at 4 PM. His shift ended at 8 AM. He was the supervisor for the shift. The other officers working during that shift were Takafua, Tukuafu, Kolo and the Accused. He learned that the Complainant had been brought into the station from looking at the station diary. Usually, one officer was always tasked with entering records into the station diary. He didn't task any one in particular that day but said it was usually recorded by the female officers. On that day, the two female officers working were Kolo and Tukuafu.
75. He did not see the Complainant during that shift. Around midnight, he and the other male officers, including the Accused, went on patrol around the Western districts in case there were any complaints. They returned to the station at around 3 AM. When asked why there was no record of the patrol in the station diary, Tutone said that ‘the person may have forgotten to record it’. He went to the CIU room, laid down and looked at Facebook on his phone. Takafua was also there on his phone. The Accused then came in and lay down on the table. After a while, the Accused went out again. Tutone fell asleep.
76. He was awoken by Officer Tukuafu to go and pick up Officer Fa’oa for training. He initially thought that was about 5 AM. However, he later confirmed the times recorded in the station diary (serial numbers 2 and 3 for 28 September 2020) as having departed at 4:23 AM. As he walked to the vehicle, he noticed the Accused standing at the door of, and facing into, cell 1. He thought the Accused had gone to the bathroom and was on his way back when he stopped to talk to the person inside the cell. He spoke with the Accused and told him that he was going to pick up Officer Fa’oa. The Accused just said "yes" and Tutone then left. He was recorded in the station diary as returning at 4:50 AM.
77. Constable Tutone saw the Accused later during the shift after having picked up Officer Fa’oa. The Accused was wearing a white shirt with light blue ‘shades’ and a blue or black tupenu. When he saw the Accused earlier standing outside the cell, he was wearing the same clothes. The lighting in that area was bright although there were no actual lights in the hallway but there were lights on in a nearby office. By reference to photograph 53 (in exhibit P2), which depicted the Complainant standing outside the cell door pointing to a fluorescent light on the ceiling in the hallway, Tutone then clarified his earlier evidence to effect that when he saw the Accused standing outside the cell earlier that morning, the light was on.
78. Constable Tutone was asked to provide a statement on the Tuesday. At that time, he knew nothing of any complaint by the Complainant. On the Wednesday, he was asked to attend a meeting with the Professional Standards Unit which occurred before his shift commenced that day. He was asked about his relationship with the Accused. He said he was ‘not acquainted’ with the Accused although their relationship was ‘friendly’. At that time, he had only worked with the Accused for about a month.
79. On the Wednesday, Tutone and the Accused started their shift together at 4 PM. They did not speak about the Complainant. Tutone received a phone call from Officer Tahavalu who told him about the complaint. He asked the Accused about it. The Accused said that ‘nothing like that happened’.
80. On Thursday, 1 October 2020, the Accused asked Tutone to go with him to talk to the Complainant’s parents. When he asked the Accused why, the Accused said that it was because the complaint was not true and that it was ‘a lie’. When they arrived at the Complainant’s family home, Tutone was on his phone whilst the Accused spoke with the parents. At one point, Tutone overheard the mother telling the Accused that she and her husband would contact the station.
81. During cross-examination, Tutone recounted that after he, the Accused and the other officers returned from their patrol, he did not notice whether the Accused changed his clothing. He recalled that when he saw the Accused outside the cell door, he was wearing the same clothes he’d had on earlier that night.
82. In answer to a question from the Bench, Tutone said that the period between when he saw the Accused get up off the table he was lying on to go outside, and when he saw the Accused outside the cells, was approximately an hour and a half. He was lying down and fell asleep during that time and did not see the Accused.

Taiana Koloamatangi

83. Taiana Koloamatangi is 27 years of age. She has known the Complainant for four years. They attend the same church and, according to Taiana, they are ‘well acquainted’. Taiana gave the following evidence.
84. She recounted the same events as the Complainant leading up to both of them being taken to the Nukunuku police station. Taiana confirmed that on the Sunday morning, the Complainant was sober and in ‘a good state of mind’.
85. At the station, a female officer told her that they were being placed in custody to ‘sober up’. Taiana confirmed that neither she nor the Complainant were drunk.
86. Taiana was released around lunchtime that day. She did not know why the Complainant was not also then released.
87. On the Sunday night, around 2 AM (being the Monday morning), the Complainant telephoned Taiana from the police station. Even though the Complainant was whispering and ‘not speaking freely’, she asked Taiana to contact the Complainant's parents because ‘something happened to her’ and that ‘a police officer forced her’.
88. Taiana contacted the Complainant’s mother the next morning. The mother told Taiana that police had just left their residence and that the Accused had told the mother that Taiana was advising the Complainant and ‘putting things in her head so that she could be released early’. When Taiana told the Complainant's mother what had happened, the mother told Taiana to mind her own business and to let them solve their issues on their own. As a result, Taiana later asked her own mother to contact the Complainant's parents.
89. Although they were ‘not that well acquainted’, Taiana knew the Accused from school. The Accused saw her during the week following the alleged offending. Later on the Monday, at One Way Road, the Accused called out to her. They talked and the Accused asked Taiana for her phone number. He said he wanted to talk to her because he was the one ‘working on the Complainant’s case’. He added that he wanted to help the Complainant but that the officers at the Nukunuku station were ‘jealous of him, so they might do something that might get him in trouble’. He said he wanted to help the Complainant because ‘he could get her released’. He asked Taiana if she and the Complainant were unlawfully remanded and whether they were drunk at the time. Taiana told him that she and the Complainant were not drunk. The Accused then told Taiana that he felt sorry for the Complainant because he had asked her questions and ‘she had shared her personal life with him’.
90. The Accused continued to call Taiana during that week wanting to meet up with her to talk about the Complainant.
91. On the Monday evening, he told her to wait until he started his shift and that he would call her again to come to the police station to talk to the Complainant because Taiana was the only one who could talk to the Complainant as they were very close. The Accused told Taiana not to tell anyone that he had contacted her.
92. The Accused called Taiana again on the Tuesday morning. She didn't answer because of what the Complainant's mother had said to her. She knew it was the Accused calling because she had saved his name and number in her phone from their call on the Monday.
93. The Accused call Taiana again on the Wednesday. He asked her if she knew whether the Complainant was still in custody. Taiana said ‘no’. The Accused told Taiana that she could visit the Complainant and talk to her. Taiana said she would try to do so.
94. On the Thursday, the Accused rang Taiana again around 3 or 4 PM. He told her that the Complainant had been released and then asked her whether she knew that the Complainant's parents had beaten the Complainant and taken her to hospital. Taiana said she did not know about that. The Accused said that the Complainant's parents had brought her back to Nukunuku police station to be placed in custody again but that the police would not allow it, so they had her placed in custody in town (meaning Central Police Station). Taiana said she would go and visit the Complainant there.
95. Taiana then gave evidence about a conversation she had with her own mother at the time. As the mother was not called to give evidence, the conversation recounted was inadmissible hearsay. However, no objection was taken. I record it for completeness. Taiana said that her mother had also been contacted by the Accused who asked the mother to get Taiana to talk to the Complainant to ‘change her mind’.
96. After midnight on the Thursday (being the early hours of the Friday morning), the Accused called Taiana again. He told her that the Complainant was in great difficulty and that she wanted to talk to Taiana. She asked the Accused where the Complainant was, to which he responded ’Central police station’. Taiana asked the Accused about how she could talk to the Complainant because it was then after curfew. The Accused asked where she was, so that he could come and get her. She gave him directions to the house at which she was staying in Nukunuku. The next thing she knew, the Accused arrived at her house in a police vehicle. She got into the vehicle and went with the Accused into town. The Accused told Taiana that when they got to Central, he could release the Complainant so that Taiana could talk to her.
97. When they arrived at Central, the Accused followed Taiana down a hallway towards the prison section. He then called out to another officer to lock Taiana up because she had breached curfew. Taiana turned around and asked the Accused about what they have been discussing. The Accused then left the station, got back in his vehicle and drove off. An officer from the counter asked Taiana if she had any items on her. She told the officer to wait because she had not broken curfew and that the Accused had picked up from her house in Nukunuku. She then overheard the officer telephoning the Accused. She heard the Accused tell the officer that he had found Taiana in the Puke and Hofoa area. Taiana denied that and told the officer again that the Accused had picked her up from her residence in Nukunuku. The officer did not believe her. As she was being taken into custody, she tried to call the Accused. When she was being led into a cell, she noticed a female police officer from the Nukunuku station lying on the bed close to the door. That officer then called out to another to come to the cell. Taiana then saw the Complainant on the bed below. The female officer then got off the bed and told Taiana to wait outside. The Complainant was then brought out of the cell and Taiana was taken in.
98. Taiana and the Complainant were then called to be interviewed. When she got to the room, the Complainant was already there. They spoke.
99. During her cross-examination, Taiana clarified her earlier evidence about what the Complainant had told her on the phone during the call on the previous Sunday night/Monday morning. She explained that during the phone call, the Complainant only told Taiana to tell her parents that ‘something had happened’.^[2]
100. It was during their conversation on the Friday at Central police station that the Complainant then gave Taiana the following account. The Complainant told Taiana that while she was lying in her cell at Nukunuku police station, she wanted to use the bathroom. She called out to the officers, but no one responded. She then saw one officer, a male, walking towards her. He then unlocked the cell and let her go to the bathroom. As she entered the bathroom, she thought the officer was standing outside but was surprised when she turned around to close the door as the officer pushed her in and attacked her and ‘did what he did’. When asked what that meant, Taiana explained that they were her words but that the Complainant had told her that the police officer had ‘forced himself’ on her. Taiana then told the Complainant that after their phone call earlier that week, she had contacted the Complainant’s parents but that they did not believe her.

Constable Suliasi Takafua

101. Constable Takafua is 24 years of age and has been a member of the police force for less than two years. He gave the following evidence.
102. On 27 September 2020, he was working the night shift at Nukunuku police station where the Accused was also one of the other officers on duty. He had known the Accused for about nine months.
103. Over that night, he recalled seeing the Accused with the Complainant. It sometime after 3 AM. He and Officer Tutone were in the CIU office on their phones. Officer Tukuafu asked him for a lighter to give to a disabled person who had walked into the station. He didn't have a lighter, so he went to see the administration officer in the charge room where he found another officer using her computer.
104. It was then that he saw the Complainant and the Accused in the ‘domestic room’, which was about 8 metres from where he was. They were using the phone. He did not say anything to the Accused. He recalled that the Accused had been wearing a long-sleeved white shirt and a black tupenu but did not notice what the Accused was wearing during the phone call. He only saw the Complainant for less than five seconds. She had the phone to her ear. He did not notice anything about her expression that caused him any concern.
105. On the Tuesday evening, Takafua gave his statement about what happened during the Sunday night shift.

‘Aionia Tukuafu

106. Ms Tukuafu was a former female Constable. She gave the following evidence.
107. She was another of the officers who worked with the Accused during the night shift at Nukunuku police station on 27 September 2020. At that time, she had been working with the Accused for about a month.
108. Sometime after she commenced work, the Complainant's mother came to the station with clothes and a towel for the Complainant. The station diary recorded that as occurring at 6:45 PM. Tukuafu took them to the Complainant and then took her for a shower. The station diary recorded that at 7 PM. Tukuafu said that when she first spoke with the Complainant, she appeared to be upset and sad. She asked the Complainant what was wrong. The Complainant just shook her head. Tukuafu was asked whether the Complainant appeared to be drunk to which she responded ‘no’. She recalled that the Complainant had tea that night.
109. Sometime between midnight and 5 AM, Tukuafu was in the CIU room, watching a movie. The other female officer on duty that night, Constable Kolo, was in the conference room or meeting room. Tukuafu noticed the Accused walking around the office. He spoke to her on three or four occasions about how she had been awake for a long time. She just laughed. Only she and the Accused were in that part of the station. She saw the Accused go into the domestic office. She continued to watch her movie. She could hear the Accused talking but did not know to whom. About 10 minutes after the Accused had spoken to her for the second time, Tukuafu heard the slide bolt on a cell door being opened. She continued to watch her movie. She thought the Accused was the only other person awake at that time and that the Complainant was the only detainee.
110. About 5 to 7 minutes after hearing the door open, she got up to check. As she was walking towards the cell, she saw the Accused and the Complainant in the domestic office. The Complainant was using the phone. She could not hear what the Complainant was saying because she was whispering. The Accused was sitting with his body facing Tukuafu but his head was facing the main road. She looked at them for 2 to 3 minutes and then walk to the bathroom. Although she recognised the Complainant, she couldn't recall what the Complainant was wearing. Even though she earlier described the Complainant as being upset and sad all night, Tukuafu said that when she saw the Complainant on the phone, she appeared ‘not strange’ or ‘normal’. Similarly, the Accused did not appear to be doing anything strange.
111. She then went to the first toilet stall and flushed it before checking the cells to confirm that it was the Complainant in the domestic room. The lights in the hallway and bathroom areas were on. The Accused told Tukuafu that he was going to rest.
112. Tukuafu recalled that the Accused was wearing a shirt that night but not one which was part of his police uniform. She was not sure of the colour. However, when she saw the Accused in the domestic room, he was wearing a navy coloured T-shirt which was different to the shirt he had been wearing earlier in the shift.
113. Tukuafu also gave her statement on the Tuesday. She was not then aware of the complaint.

Constable Primrose Kolo

114. As noted above, Constable Kolo was another of the five police officers on duty at Nukunuku police station on the night in question. She too had then known the Accused for about a month. She gave the following evidence.
115. When she started work that night, Constable Kolo was aware that the Complainant had been brought in. She checked to see if the Complainant was in the cells. The Complainant appeared to be ‘ok’. At around 5 PM, she escorted the Complainant to the bathroom. At about 8:45 PM, she took the Complainant out of her cell for tea. There was no one else in the tearoom at that time. The Accused was walking around outside the tearoom near the counter area. She saw the Accused talking with the Complainant during tea. At one point, she heard him say to the Complainant: “No, that’s prohibited...not allowed”. She did not hear the Accused tell the Complainant that she was beautiful or ask for her number. After the Complainant had finished her tea, Kolo returned her to her cell. According to the station diary, that was at 9 PM.
116. In the early hours of the next morning, Constable Kolo was in the conference room. Officer Tukuafu informed her that the Accused had released the Complainant to use the phone. Around 4 to 5 AM, Kolo went to check on the Complainant in her cell. The Accused was at the counter working on a document. Kolo stood at the cell door. The lighting was bright. The Complainant was awake. She asked the Complainant if she was ok. The Complainant said she was fine. She did not appear to be upset and nothing about the Complainant’s voice caused the officer any concern. The Complainant was wearing a t-shirt and trousers. Kolo saw the clothing and blankets that had been brought to the Complainant earlier but did not see a towel. On her return to the conference room, she spoke with the Accused who said he was working on his task book. Kolo did not see the Complainant again before she finished her shift at 8 AM.
117. Those last events were not recorded in the station diary. Constable Kolo could not explain why but agreed that they should have been recorded.
118. In answer to a question from the Bench about the police procedures at that time, Constable Kolo said that a male officer releasing a female detainee to use the phone was normal, but that male officers could not, for example, take a female detainee to the bathroom.
119. Constable Kolo described the Accused as wearing a light-coloured, button up, long sleeved shirt and black tupenu. She did not see him in any different clothing that night including when she saw him around 5 AM on the Monday morning.

Constable Vahafolau Taufa

120. Constable Taufa has been a police officer for 19 years. He was the officer in charge at Nukunuku, where he had been stationed for the past 15 years. He gave the following evidence.
121. On the morning of Tuesday, 29 September 2020, he was working. He learned that the Complainant was remanded at the station. Constable Kavafono’atu told him that the Complainant wanted to complain about something that had happened - that she had been abused - but she did not say by whom. At the same time, Officer Talamai told Taufa the same thing. He recorded when the Complainant was released that day. The cell book showed it as 5:08 PM.
122. Constable Taufa got home about 6 PM. One of his children told him that there was a man in a car outside. Taufa went out and saw the Accused in his small, dark blue car. The Accused asked Taufa if he knew why the officers at the station have been required to provide statements about the Sunday night shift. Taufa said that there may have been a complaint but he had no knowledge of it. The Accused then talked about the Complainant, that he knew her and that he was one of the officers who had picked her up previously for being drunk around Nuku’alofa. The Accused then said that ‘it was better to be fired for being drunk than for rape’ and then laughed. The Accused then left.
123. At that time, Taufa did not know that the Complainant’s complaint was directed at the Accused or that it involved rape. In fact, he did not learn the details of the complaint, or that it involved the Accused, until he was informed by officers from the Police Investigation Unit when they came to work on the matter later that week.

Accused

124. The Accused gave the following evidence.
125. He is 30 years of age, married, with two young children. Since this complaint, he remains suspended from duty.
126. On Sunday, 27 September 2020, he worked the night shift from 4 PM to 8 AM at Nukunuku police station with Officers Tutone (supervisor), Takafua, Kolo and Tukuafu. He learned that there was a detainee at the station when the day shift officers conducted their hand over and it was also recorded in the station diary.
127. The first time he saw the Complainant was between 8 and 9 PM. Officer Kolo brought the Complainant out for tea. He denied that he brought her out. The Accused spoke to the Complainant. He realized he knew her. He asked her why she was there. The Complainant said that her father had brought her in. The Accused asked why; what had she done? The Complainant said it was for ‘nothing’. The Accused then asked the Complainant whether she remembered being arrested from her church the year before because her father made a complaint. The Complainant said she remembered. The Accused said that she looked familiar and that he was trying to figure out where he knew her from.
128. The Accused denied telling the Complainant that she was beautiful or that the last time he saw her, she was skinnier.
129. The Accused then described how he had gone out on patrol with other officers two or three times that night. After tea, they went out to pick up an Officer Berger. When they returned, Officer Kolo had already taken the Complainant back to her cell.
130. Shortly after that, the Accused went out on another patrol, and returned between 11:30 PM and midnight. He later went out on a third patrol of the Western districts and returned around 3 AM. Not all those patrols were recorded in the station diary.
131. Before the last patrol, the Accused saw the Complainant around 1 AM. She asked him if she could use the phone. He told her to wait while he checked the cell book as to why she was in custody. When he looked at the cell book, he saw that the reason recorded for the Complainant being in custody was that she was “drunk (PSO)”. That usually meant keeping the person in custody overnight so that they could sober up. The Accused also checked whether the Supervisor had recorded any restrictions for the Complainant. There were none. He understood that the Complainant had a right to use the phone and that she would be released the next morning. He then spoke with Officer Tukuafu, who was watching her computer with earphones in. He told her he was going to bring the Complainant out to use the phone. Tukuafu agreed.
132. The Accused then opened the cell door to allow the Complainant to come out and use the land line. When he brought the Complainant to use the phone in the domestic room, Tukuafu and Takafua walked past. After she finished using the phone, he took her back to her cell. He did not take her out of the cell again that night.
133. Around 5 AM, the Accused was at the counter working on task books and dockets. The distance between the Western end of the counter and the first cell where the Complainant was being kept was between 5 and 6 metres. He saw the Complainant appearing to be pushing the cell door. He went to the cell door. The Complainant was standing at the door inside. He asked her why she was not asleep. She said that she’d had enough sleep. The Accused then told the Complainant that it was alright, that it was nearly daylight, and that then she would be able to go home.
134. While he was standing outside the Complainant’s cell door, Officer Tutone called out to the Accused from the vehicle area that he was going to pick up Officers Fa’oa and Kolovai to take them to Central Police Station for training later that day. The Accused walked over to go with Tutone but Tutone said that it was fine and that he would go on his own. The Accused then went back into the station and continued work on his task book and dockets. He did not talk to the Complainant again.
135. In relation to his clothing, the Accused said that he wore a black tupenu and a white long-sleeved shirt with light stripes. He denied changing his shirt that night.
136. The Accused expressly denied:
     • (a) the Complainant’s evidence about them drinking coffee, because, he said, he is of the Mormon faith and therefore never drinks coffee;
     • (b) ever telling the Complainant that she could use his mobile phone;
     • (c) asking her about the number she wanted to call or that his phone account was with TCC;
     • (d) taking her to the bathroom (which a male officer was not allowed to do);
     • (e) kissing her;
     • (f) ‘attacking’ her; or
     • (g) raping her.
137. The Accused stated that he did not know when the assaults described by the Complainant could have happened. He added that officers did not turn off the lights in the hall area right out to the bathrooms, even if there were detainees in the cells.
138. When asked why he went to speak with the Complainant’s parents on the Thursday morning that week, the Accused explained that he wanted to tell them that ‘nothing had happened’ and that he would be ‘put out of his job’. The Complainant’s mother said that wouldn’t be fair. She told him he should have made a statement, for him to go to the station and that she would go there so they could talk with Officer Kolovai.
139. The Accused said he was ‘surprised’ at Constable Taufa’s evidence of the Accused going to Taufa’s house on the Tuesday evening. He denied that account and said that ‘nothing like that happened’. Instead, he said that on that day, he spoke with Taufa on the phone.
140. At the end of his evidence in chief, the Accused delivered a rather indignant expatiation denying all the allegations against him and describing them as ‘very dangerous’ and ‘brutal’ and that they reflected an ‘ugly attitude or personality’ (meaning of the Complainant). He said he was ‘appalled by the allegations’ which had ‘ruined his reputation’ and he concluded by referring to the fact that he ‘had a wife’.

Cross-examination

141. At the commencement of his cross-examination, the Prosecutor put to the Accused that the reason he appeared to remember his evidence in chief so clearly was because he made it up for court. The Accused denied that and said that he remembered the events so clearly because it was the last day he worked as a police officer and that he could never forget it. He added that after he was arrested, he recorded everything so that he would not forget it. The Prosecutor then reminded the Accused that he continued to work to the Wednesday of the week in question and therefore the Sunday was not his last day of work. The Accused confirmed that he was arrested on the Thursday and declined to be interviewed. He said he had not then received legal advice.
142. Thereafter, during his cross-examination, the Accused gave evidence on numerous occasions which had not been heard before in the trial. It is convenient to summarise the more significant passages of the Accused's various elaborations on his earlier denials and additional and different evidence he gave as follows:
     • (a) The Complainant's evidence that the Accused had opened a can of corn beef with a spoon was wrong.
     • (b) The Complainant's evidence that the Accused had brought her out of the cell to have tea was wrong.
     • (c) The Accused denied that he did not tell Officer Tukuafu that he was going to take the Complainant out of her cell to use the phone. He said he told her so that she could enter it in the station diary.
     • (d) He confirmed that he had a U-call (TCC) mobile phone number and agreed that the landline telephone in the domestic room could call any number.
     • (e) The evidence of Officers Tutone and Takafua about the time when the Accused took the Complainant to use the phone was wrong and that it occurred after he returned from the third patrol, around 3 AM.
     • (f) The evidence that during tea on the Sunday, when the Accused was heard saying to the Complainant words to the effect ‘not allowed’ was in respect of her request to be taken to one, Latu Selu,^[3] to ‘get something’.
     • (g) He denied Officer Takafua’s evidence of seeing the Accused in the early hours of the Monday morning and suggested that that evidence had been ‘given to her by another officer’.
     • (h) The evidence of the Complainant and Officer Tukuafu that the Accused had changed his shirt on the night in question was untrue. It was also inconsistent with the evidence of other officers who said that the Accused did not change his clothing that night. The Accused denied owning a ‘black t-shirt’ or any similar shirt he could have changed into during the shift.
     • (i) Further to the Accused’s denial of going to Officer Taufa’s on the Tuesday evening, the Accused said that when he spoke with Taufa by phone, Taufa asked the Accused a number of questions. In answer to those questions, the Accused told Taufa that he had not gone into the Complainant’s cell on the Sunday night; that he had not taken her out of her cell to use the phone; and that nothing else had occurred with the Complainant that night. He then said that Taufa had mentioned that the Complainant had made a complaint in relation to ‘abuse’, but that the word ‘rape’ had not been mentioned. That, the Accused said, was the first time he had heard about any allegations by the Complainant of abuse, but he did not know that the complaints were directed at him. The Accused said that Taufa told him that ‘it was fine’ and that if there ever came a time when other officers wanted to speak to him, he would say that he had already spoken with the Accused about the matter. When he was asked why Taufa telephoned him (as he contended), the Accused said that Taufa wanted the Accused to say that he had gone inside the Complainant’s cell. When, in light of his previous evidence about this, the Accused was asked to clarify his last answer, he then said that the reason Taufa called him was because Taufa "was nosey to know if the Accused had gone into the cell".
     • (j) The Accused initially denied all of Taiana’s evidence about her discussions and meetings with the Accused during that week, labelling it as ‘false’ and ‘lies’. For instance, on the Monday, he said he had just returned home after a 16-hour shift to go to sleep and that he had no energy to do anything else. He also said that he had telephone records which showed that he never contacted Taiana that week. In relation to Taiana's evidence about the Accused taking her to Central police station on the Friday morning on the pretense of speaking with the Complainant but then having her locked up for breach of curfew, the Accused said that Taiana had ‘made it all up’ and that the cell book at Central, which would have required his signature, together with video surveillance footage, would support him.
     • (k) The Prosecutor asked the Accused why he considered the Complainant would ‘make all this up’. The relevance of that line of questioning and the Accused’s answers will be examined further below. However, for present purposes, the Accused posited the following explanations:
       • (i) the Complainant made up her story to be released from custody;
       • (ii) the Complainant was sick of being arrested and her father having her placed in custody;
       • (iii) by her complaint, the Complainant's father will now never be able to bring her back to a police station;
       • (iv) when the Complainant was arrested, no time was set for her release because her father had ‘made arrangements’ with the police supervisors;
       • (v) when the Complainant was not released after 24 hours in custody, without any court order to extend the date of her remand, the (‘Minister of’) Police had broken the law;
       • (vi) further, there was no policy within the police force which permitted the ‘joyride’ when a number of officers took the Complainant ‘cruising’ with them;
       • (vii) the seriousness of this issue would have fallen on the supervisor, but because the Accused was just a probationary officer who was still learning, ‘they were putting the blame on him’;
       • (viii) when asked whether the Complainant had made any complaint of unlawful detention, the Accused said ‘not yet’. The Prosecutor then asked the Accused whether he knew of any other officers encouraging the Complainant to make a complaint about unlawful detention to which the Accused said that ‘some officer is lying’.
143. When the trial resumed on 10 March 2022, the Accused was asked again about whether he took the Complainant to use the phone. He said that he had and gave the following account. At approximately 11 PM on the Sunday night, he came out from the CIU room to the counter because a handicapped woman was ‘making noises’ about wanting a lighter. Takafua was looking for a lighter but couldn't find one. The woman was becoming frustrated. The Accused then noticed the Complainant standing at her cell door. The Complainant then called out asking whether the handicapped person was female because she, the Complainant, also wanted a cigarette. When no cigarette lighter could be found, the Complainant then asked if she could use the phone. As the Accused walked towards the Complainant’s cell, he asked her who she wanted to call. The Complainant said her cousin. The Accused then told her to wait while he checked the cell book to see what charges she was on and any orders or restrictions on her. He saw the charge was "PSO drunkenness". Otherwise, everything was clear. He assumed the Complainant would be released in the morning. That is why he allowed her to use the phone. He then called out to Takafua who was watching a movie with headphones on in one ear.
144. When challenged by the Prosecutor as to why he made no mention of a handicapped person during his evidence last year, the Accused said that Takafua and a number of the statements of the Prosecution police witnesses had mentioned the handicapped person and that he was only explaining as he had because the judge had asked him to and that he was giving evidence according to what he was being asked.
145. The Accused continued by explaining again what happened in the domestic room. He said the Complainant called Taiana who she had said was her cousin. Even though the Complainant was whispering, he could hear that they arranged to meet the next day. The Accused was in the room the whole time which was about seven minutes. They are only four or five feet apart. Only one call was made. He could hear the Complainant asking Taiana where she was taken when she was released. The Complainant then told Taiana that she would be released the next day and they would meet up.
146. When asked about Taiana's evidence of the phone call including the Complainant telling her that something had happened to her, the Accused said that Taiana's evidence was a lie and that the Complainant and Taiana had ‘conspired to make up the lies’. He said he knew Taiana was lying because of differences between her evidence at trial and the statement she gave to police.
147. The Prosecutor then asked the Accused about his earlier evidence of being a member of the Mormon church. When asked about the types of undergarments worn by members of that faith, the Accused agreed that he wore white knee length tights and a singlet.
148. The cross examination then returned to Taiana's evidence of her contact with the Accused during the relevant week. Again, the Accused denied that evidence including that he ever called her. He said that he ‘traced the number’ and there were only two numbers he called on the Monday morning. Again, he referred to having documentary proof of those phone numbers. He spoke with Taiana once on the Tuesday. He said he noticed a missed call from a Digicel number. He called it and a woman answered. He asked her if anyone had called his number. The woman told him that a girl by the name of Taiana had called him and gave him Taiana’s number. He called Taiana. She told him that she had gotten his number from his half-sister. Taiana asked him what time he was working because she wanted to know when the Complainant would be released. He said that the Complainant should already have been released. Taiana said that she and the Complainant were supposed to meet up on the Monday and that she would go and check.
149. On the Tuesday evening, the Accused noticed that Taiana had rung his phone again. He called her back. Taiana asked him whether he was working because she wanted to hitch a ride to Nukunuku. He said he wasn't working. The Accused denied calling Taiana on any day after that.
150. When the Prosecutor put to the Accused that during his evidence last year, he had said that he had no phone contact with Taiana at all, the Accused said that he had since recalled that her evidence of receiving a missed call from him was ‘a lie’ because he called her and spoke to her.
151. The Prosecutor then returned to Taiana's evidence of the Accused taking her to Central police station on the Friday morning and the Accused’s denials of that evidence.
152. The Prosecutor then produced the Central police station cell book and opened it at the page for 1 October 2020 (exhibit P5). On it, were two entries of relevance. Entry number 2998/20 showed that on that date, at 12:50 AM, the Complainant had been arrested for "PSO" and detained in cell number two. Further down the page, at entry 3002/20, the same officer (PC Ofanoa) recorded that at 5:20 AM, the Accused had arrested and brought in a person described as "Mele Ongosia (Diana Koloamatangi) (fm) 27 yrs, DOB 13.02.93” for breach of curfew. She too was placed into cell two.
153. The Accused's explanation for that somewhat surprising evidence was as follows. Firstly, he said that when Taiana went into Central police station, she might've told PC Ofanoa that it was the Accused who arrested her. Secondly, he said that on that morning, 1 October 2020, PC Ofanoa had telephoned him on the landline at Nukunuku police station where he was working. The Accused referred again to having telephone records which showed that the call occurred at 5:16 AM. On that basis, he regarded the cell book entry of the arrest of 5:20 AM as being wrong. During the call, Ofanoa asked the Accused if he knew Mele Ongosia and whether the Accused had arrested a person by that name for breaking curfew. The Accused thought that Ofanoa was joking because he was used to other police officers playing pranks on each other. Ofanoa told him that Mele said that the Accused was the officer who had arrested her with another officer who was not wearing a uniform. The Accused said he did not know Mele. Ofanoa then hung up. About five minutes later, the Accused rang Ofanoa back. Again, the Accused referred to having phone records which he said he had provided to Mr Edwards prior to the trial. Ofanoa told him the same thing and that he was busy, and he would call back. At 5:23 AM, the Accused called Ofanoa back again and asked what was happening and whether Ofanoa wanted to call the Nukunuku landline to speak to someone. That was the end of that call. When he was asked why he kept calling Ofanoa back, the Accused explained that he just wanted to know what was going on and that if Ofanoa had told him that the person concerned was Taiana, he would have told Ofanoa that he knew Taiana and that she knew the Complainant. When asked again why he called when he had already said that he didn't know a ‘Mele’ and that he had not arrested anyone by that name, the Accused said, somewhat quizzically, that the only officer who was not in uniform that morning was Officer Tutone, so that it might have been him and Tutone. He added that at that time, he already knew he was being investigated or charged and that there was ‘a lot of stuff going on in his mind’. He then suggest edthat the officers at Central police station had given statements about this and had had conversations to which he was not privy before they separated the Complainant and Taiana. The Accused then demanded that Ofanoa be brought to Court, and his statement tendered.
154. The Accused then sought to demonstrate that Ofanoa’s entry in the cell book naming the Accused as Taiana's arresting officer was wrong because he said if it was true, his signature would have appeared below his name. The Accused was then invited to leaf through the numerous pages in the thick large cell book to see whether there were any other entries where the signatures of named arresting officers appeared. He was unable to identify any. The Accused’s explanation for that was that all the officers named in the cell book had not been following the correct procedure by failing to apply their signatures below their names. It was pointed out to the Accused that the printed form of the cell book did not contain any provision for signatures of arresting officers.
155. The Accused then said that his signature should also have been placed on ‘the curfew form’ because even though he had not then been in the force for a year, that was what they had been taught in school. It was put to him that there was no curfew form because Taiana had not breached curfew and that the Accused wanted a curfew form to be produced because he knew he did not fill one out. The Accused remonstrated by repeating he did not arrest Taiana and he did not go to Central.
156. In a similar vein, the Prosecutor suggested to the Accused that during his evidence last year he referred to security surveillance footage which would have shown whether or not he had entered Central police station on the Friday morning, because he knew that it was police procedure to only keep such recordings for six months before rewriting over the hard drives. The Accused denied any knowledge of that.
157. The Prosecutor then put to the Accused that the reason he brought Taiana to Central police station was to get her to talk to the Complainant about changing her mind in relation to her complaint against the Accused. Again, the Accused denied that he ever arrested Taiana or picked her up on that Friday morning.
158. The Prosecutor then produced photocopies of what was said to be a page from the Central station diary for 1 October 2020. She explained that she had been instructed that the original diary had been lost. The copy contained the following entries attributed to PC Ofanoa (from the English translation):

05:20 hours: PC ‘Anitema arrest Mele Ongosia (fm) 27 yrs CDOB 130393 Kolofo’ou for breaching curfew at 0430 hrs. Belongings removed and I OC ‘Ofanoa placed her in prison.

05:50 hours: PC ‘Ofanoa displays here that the suspect ‘Anitema had arrested is lying and she has something to do with the prisoner brought from Nukunuku to be placed in entry 09 the victim of sexual assault by police (name not known) but trying to contact [the Complainant]. Shown here by PC ‘Ofanoa that PC ‘Anitema repeatedly contacted before 0450 hours or around then and then the suspect was arrested and brought and placed in custody at 0520 hours.

05:55 hours: PC ‘Ofanoa completed informing OIC IP Lavemai about the status of the person in custody and the grounds that suspect in entry 21 is in prison, and separating [the Complainant] from prison with WPC Tausinga and they went to talk with the OIC about what happened, but suspect Mele Ongosia (false name) is placed in the prison [the Complainant] has identified Mele as Diana Koloamatangi.

159. Each of the entries was signed.
160. The Prosecutor explained that PC Ofanoa had resigned from the police force in 2021 and now resided overseas. Attempts to contact him had been unsuccessful. She then indicated that the Prosecution intended to call rebuttal evidence to prove that the copies were of the station diary and the circumstances in which the original diary had been lost. She otherwise relied on s 67 of the Evidence Act (business records) as a basis for the tender of the otherwise hearsay copy. I indicated that I would reserve any decision about admissibility of the document until verdict. The copy of the Central police station diary for 1 October 2020 was marked as exhibit P6 for identification and received subject to any ruling on admissibility.
161. When the above entries were shown to the Accused, and it was noted that there was no entry recording the telephone call he said he had with PC Ofanoa or of the Accused denying that he knew or had arrested Mele Ongosia, the Accused said that "Ofanoa should have written the truth".
162. During re-examination, Mr Edwards asked the Accused whether he was in town when Taiana was brought in on the Friday morning, 1 October 2020. The Accused said that he was not there when that happened. However, he went on to say, again for the first time, that on that morning, he drove with Officer Tutone to drop another officer at Central police station. They had to be there by 6 AM. They arrived at Central police station at 5:50 AM. The Accused suggested that it could take about an hour to drive from Nukunuku police station to Central and that therefore he could not have brought Taiana in at 5:20 AM, then drive back out to Nukunuku police station and then back into Central within that time.
163. When it was brought to Mr Edwards’ attention that that evidence had not been given previously, he sought to withdraw it.
164. Mr Edwards asked the Accused about the Central police station diary saying that the Accused had arrested Taiana and asked him what was the ‘correct position’. The Accused responded that he did not trust the station records and that is why he wanted the original produced because the allegations were very serious. He said the station diary entries were not true.
165. Mr Edwards then asked the Accused what benefit there was to him by arresting Taiana and remanding her at Central. The Accused said that it didn't make sense and that there was no good reason to bring Taiana to the Complainant so they could talk, because he did not trust Taiana.
166. In relation to when the Accused knew about the charges to be laid against him, he said that on the Thursday night (30 September 2020) he was told by the Principal of the police training college that allegations have been made against him and that his suspension letter had been prepared. Therefore, by the Friday morning, he knew he was going to be suspended.
167. It was only at the end of the re-examination that Mr Edwards sought leave for the Accused to retrieve the phone records he had been referring to earlier in his evidence. Mr Edwards said that he did not know where his own copy of those records was. The copies of the TCC records spanned 27 September 2020 to 1 October 2020. However, no particular phone numbers were identified or attributed to any of the witnesses in this case and there was no indication of any evidence being called from a representative of TCC to confirm the validity of the copies and their contents. The Prosecutor objected to their tender and added that there had been no evidence during the trial from any of the witnesses as to what telephone numbers they were using at the relevant time so that any numbers could be identified in the Accused’s records. In other words, they could not assist the Court. Notwithstanding that the records were clearly inadmissible as hearsay (which Mr Edwards did not seek to contradict or identify any exemption to the exclusionary rule in the Evidence Act), I agreed to receive those documents into evidence subject to a determination of the weight, if any, to be attached to them when considering my verdict. The TCC phone records therefore became exhibit D1.
168. After the close of the defence case, the Prosecutor sought to call rebuttal evidence from a Sergeant Siale from the Central police station. However, just as the officer entered the witness box, Mr Edwards withdrew all objections previously raised in relation to the cell book and station diary entries. On that basis, exhibit P6 was tendered absolutely.

Submissions

169. Both counsel provided helpful written closing submissions and spoke to them.

Accused

170. Mr Edwards submitted that the Complainant’s evidence should not be accepted, and that the charges should be dismissed, for the following reasons, in summary:
     • (a) her evidence of having ‘obediently’ sucked the Accused’s penis was inconsistent with her evidence of having earlier pushed his hand away when he kissed her and touched her vagina outside her clothing;
     • (b) she stated that it was dark when the Accused came into her cell, sat down on the bed and took off her tights, but when asked, she said: “as I lay, he slowly took off my tights ...” verifying the inconsistencies in her statements;
     • (c) not once did she resist or object to the Accused from forcing himself on her, as she alleges;
     • (d) she still went with him to the interview room to use the phone after the alleged incident;
     • (e) her evidence as to the time of the alleged incident was inconsistent;
     • (f) her evidence that the Accused changed his shirt was inconsistent with that of Officer Kolo;
     • (g) there was nothing in her behaviour on the Monday morning to suggest that she was scared;
     • (h) her evidence that she did not trust the Police to cry out during, or make a complaint immediately after, the alleged incident, was inconsistent with her going with five officers (one of whom, Talamai, was related to her father) later on the Monday ‘to town for a cruise’;
     • (i) her complaint to police was not made at the earliest opportunity even though a female officer (Kolo) checked in on the Complainant on the Monday morning when the Complainant said that she was okay;
     • (j) ‘the Complainant is estopped or should not be believed now after having voluntarily confirmed that nothing happened to her between 4 and 5 AM, some 3 hours after the alleged incident’;
     • (k) ‘the evidence of the Complainant is like a fairy tale’;
     • (l) there were no injuries, scratches or marks to indicate that rape or serious indecent assault had taken place; and
     • (m) a medical report on 5 October 2020 did not confirm or support that she was raped.
171. For those reasons, Mr Edwards submitted that there was ‘considerable doubt’ in the Complainant’s evidence, of which the Accused is entitled to the benefit.

Prosecution

172. During closing submissions, the Prosecution sought leave to amend the particulars of the serious indecent assault charge by replacing the word ‘fondling’ with ‘touched’. No objection was taken, and leave was granted.
173. While Mrs Kafa-Vainokolo conceded what she described as some ‘weaknesses or inconsistencies’ in the Prosecution’s case, she submitted that they did not go ‘to the heart’ of the Complainant’s evidence, and that therefore, the Prosecution had proven its case beyond reasonable doubt for the following reasons, in summary:
     • (a) the Accused gave evidence, on numerous occasions, which was never put to relevant Prosecution’s witnesses, nor were they challenged on it, thereby breaching the rule in Browne v Dunn (discussed further below), including his evidence that:
       • (i) he told Tukuafu that he would take the Complainant to use the phone, and that Tukuafu responded by saying ‘yes’;
       • (ii) he never approached Tukuafu (as stated by Tukuafu) saying to her that the night was different as she was awake for much longer.
       • (iii) Tukuafu’s account of the clothes the Accused was wearing at the time. In fact, Mr. Edwards did not cross examine Tukuafu at all;
       • (iv) the Complainant asked him if she could be taken to see Latu Selu during their teatime (nor was that put to Officer Kolo or that the Accused told the Complainant’s father about her request on the Thursday);
       • (v) the Complainant was the one who asked him to use the phone;
       • (vi) around 5 AM on the Monday, the Complainant tried to open her cell door, that he approached the cell door and asked her why she was not asleep, that she told him she had slept enough or that he then told her that it was nearly daylight so that she could soon go home;
       • (vii) the Accused phoned Taufa on the Tuesday morning during which, according to the Accused, Taufa asked him whether he went to the Complainant’s cell, whether he took her to use the phone, and told the Accused that the Complainant had made a complaint about abuse.
         Taufa was never challenged concerning his account of the Accused visiting him that Tuesday evening and the conversation that took place where he jokingly said that it would be ‘better to be fired for being drunk than for rape’;
       • (viii) Taiana never contacted or met with him during that week, and her evidence of the Accused taking her to Central Police Station on the Friday morning was never challenged;
       • (ix) that the Accused said ‘yes’ to Tutone when he told the Accused he was going to go pick up PC Fa’aoa, nor was it put to Tutone that the Accused walked to follow him and that Tutone told the Accused to stay;
     • (b) despite the Accused making a number of references to what he considered to be inconsistencies between the evidence given by the Prosecution witnesses during the trial and their earlier statements to police, Mr Edwards never challenged those witnesses on their earlier statements, nor did he produce any of those statements or seek to tender them as prior inconsistent statements;
     • (c) by reason of the above, more weight should be given to the evidence of the Prosecution witnesses and the Accused’s contrary evidence should be disregarded;
     • (d) the Accused’s evidence in the second half of the trial was inconsistent with his evidence in the first, in particular, when he contradicted his earlier denial that he ever met or contacted Taiana during the week in question, and the written record of him arresting her purportedly for breaking curfew in the Central police station cell book;
     • (e) the Complainant’s evidence should be believed over that of the Accused because:
       • (i) she was only 18 years old, just of age;
       • (ii) she was in Police custody at the time;
       • (iii) she had been told by the Accused that the others were all asleep;
       • (iv) the assaults took place in the early morning hours. In that regard, even though the Complainant had estimated the events occurred (working backwards) between 11pm and midnight on the Sunday, the evidence of Officers Tutone and PC Takafua suggested they more likely occurred later in the morning, closer to 4:23 AM when Tutone went to pick up other officers and he saw the Accused standing outside the Complainant’s cell;
       • (v) she could not hear anyone at the station, so she honestly thought there was no one around;
       • (vi) she did not notice anyone around as she walked back from the toilet area to her cell;
       • (vii) the Accused was a Police Officer in a position of authority;
       • (viii) the Accused was much older than her;
       • (ix) she did not know the Accused;
       • (x) as a result, she was terrified when he was assaulting her and afraid of what he might do to her if she resisted any more than she did or call out;
       • (xi) her reaction to the Accused’s sexual advances and demands were reasonable as it was what she at the time thought would keep her from the possibility of further harm or even being killed;
       • (xii) her behaviour after the incident of not being able to sleep, whispering to Taiana on the phone that something had happened to her, becoming upset when she made her first complaints to Marian Kupu and Officer Kavafono’atu, and being angry when she saw her father, was all consistent with a young woman having been sexually assaulted and raped;
       • (xiii) there was evidence of fresh complaint from Marian (the Monday evening), Officer Kavafono’atu (the Tuesday morning) and the Complainant’s father (the Tuesday afternoon);
       • (xiv) her explanation for not complaining to any of the other officers on the shift that night because she did not trust any of them, was reasonable, and she told the first reliable person she trusted which was Marian;
       • (xv) the Complainant’s evidence that the Accused was wearing white tights under his tupenu was consistent with the Accused’s admission that as a member of the Mormon church he wore such undergarments, and could not have been known by her unless her account was true; and
       • (xvi) she had no demonstrated motive for fabricating such serious complaints;
     • (f) the Accused’s behaviour in the domestic room, and after the Accused returned the Complainant to her cell, when according to the Complainant, he looked and sounded worried and nervous, was suspicious;
     • (g) any discrepancies between what those witnesses said the Complainant told them and what she gave in evidence may be explained by the fact that at the time, the Complainant was ‘obviously distraught’ so that she may not have completely remembered what she told others about had happened at the time;
     • (h) it was ‘odd’ that the Accused spoke with Taufa on the Tuesday evening about the Complainant and jokingly referred to rape before any of the police officers knew that the complaint in relation to their shift involved the Complainant or rape;
     • (i) similarly, Taiana said that on the Monday night the Accused told her that ‘the officers at the Nukunuku station are jealous of him and they might try to do something that would make him get in trouble’;
     • (j) those two aspects of the evidence, upon which the Prosecution witnesses were never challenged, supports an inference that on the Monday evening the Accused knew something about the Complainant’s intended complaint and that by the Tuesday, it involved rape, which he could not have known about unless he did it;
     • (k) any discrepancy in the Prosecution evidence about the Accused’s clothing on the night may be resolved in favour of that given by the Complainant and Officer Tukuafu because they saw the Accused more often and for longer around the time of the alleged offending than Officers Tutone and Kolo, and Officer Takafua could not confirm what the Accused was wearing in the few seconds he saw him in the domestic office with the Complainant;
     • (l) in relation to Taiana’s evidence that the Complainant told her on the phone on the Sunday night to tell her parents that something had happened to her, compared to the Complainant’s evidence which did not include that passage, in her written submissions, it was possible that the Complainant (in the condition she would have been in) forgot that she asked Taiana to tell her parents that something had happened to her, and therefore, Taiana’s evidence on that point should be preferred;
     • (m) no adverse inference be drawn against the Complainant by reason of the Prosecution not questioning her about the conversation she had with Taiana at Central police station;
     • (n) the Complainant had no reason to fabricate a story that she was raped when it would not benefit her in any way;
     • (o) that was to be compared with the Accused’s evidence, which appeared to be ‘very calculated’, so that it was all ‘in line’ with the evidence given by the other Prosecution witnesses; and
     • (p) accordingly, the Accused’s evidence was unreliable and should not be accepted.

Consideration

174. The Prosecution bears the onus of proving each element of the charges beyond reasonable doubt. The Accused is not required to prove his innocence or that he is not guilty of the offences.
175. The elements of the serious indecent assault charge are that the Accused; intentionally assaulted the Complainant (by touching her vagina outside her clothing); without her consent; and that the assault was indecent. The elements of the rape charge are that the Accused; had sexual intercourse with the Complainant (meaning carnal knowledge or penetration of the Complainant's vagina with the Accused’s penis); without her consent.
176. This was not a case in which matters such as consent (to otherwise admitted sexual intercourse) or identity were in issue. In this case, the accounts of the main protagonists – the Complainant and the Accused – could not have been more diametrically opposed. According to the Complainant, the Accused took advantage of her and sexually assaulted her. According to the Accused, his only contact with the Complainant on the night in question was, in effect, kind and accommodating. Accordingly, the central issue in the case is: who do I believe?
177. That enquiry calls for consideration of credit and reliability. That in turn directs attention to whether their respective evidence was internally consistent and whether other evidence either corroborated or contradicted their accounts.
178. There was no independent physical evidence directly corroborating the Complainant’s evidence such as medical evidence of injury or other forensic evidence such as DNA on the Complainant, her clothing or the towel attributable to the Accused (the testing for which is not yet available in Tonga but is much needed). Even though corroboration of a Complainant's evidence is not required for a conviction on sexual offences, nor is any warning required in relation to any absence of corroboration,^[4] out of an abundance of caution, I acknowledge that it ‘can be dangerous’ to act on the uncorroborated evidence of a Complainant. However, I also proceed on the basis that it is possible to do so if the evidence satisfies me beyond reasonable doubt that the Complainant is telling the truth.^[5]

Accused’s evidence

179. For reasons which will soon become apparent, I commence this analysis with an evaluation of the Accused’s evidence, for if I accept his evidence, or any part of it leaves with me a reasonable doubt about any element of the offences, then he must be acquitted.
180. When he commenced his evidence in chief, the Accused struck me as quite confident in his clarity and apparent recall of the relevant events as he recounted them. So much so that towards the end of his evidence in chief, he appeared almost too confident, as demonstrated by his strident speech described in paragraph 140 above.
181. However, that all changed when during his cross-examination, the Accused was presented with the Central police station cell book entry describing him as the officer who arrested Taiana on the Friday morning purportedly for breach of curfew. From then on, the Accused’s confidence waned markedly, he was overtly unsettled and appeared very anxious. His evidence also then began to unravel.
182. I make the following observations and findings in relation to the Accused’s evidence.
183. Firstly, and perhaps most strikingly, the accounts of the evidence of the Prosecution witnesses summarized above will be seen to be notable by the lack of reference to much, if any, cross examination or of any responses by those witnesses to any contrary assertions put to them. That was because Mr Edwards did not cross examine on, or put to those opposite Prosecution witnesses, much if any of the evidence the Accused went on to give.
184. The rule in Browne v Dunn is a general rule of practice by which a cross-examiner should put to an opponent’s witness matters that are inconsistent with what that witness says and which are intended to be asserted in due course.^[6] The central object of the rule is to secure fairness.^[7]
185. In Australia and New Zealand Banking Group Limited v Lasike [2016] TOCA 7, the Court of Appeal explained further the nature, importance and consequences of non-observance of the rule:^[8]

“[71] The failure to cross examine a witness on a particular topic has legal consequences. In Browne v Dunn, a decision of the House of Lords reported only in (1894) 6 The Reports 67, 70 Lord Herschell LC said that it was:

‘... absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth ... to direct his attention to the fact by some questions put in cross examination showing that the imputation is intended to be made ... If you intend to impeach a witness you are bound, whilst he is in the box to give him an opportunity of making any explanation which is open to him.’

[72] In the same case Lord Halsbury said at 76-7:

‘To my mind nothing would be more absolutely unjust than not to cross examine a witness ... and ... to ask the Jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts they have deposed to ... [He considered the facts of that case and continued at 78] Under those circumstances what question of fact remains? What is there now for the Jury after that? If [counsel] admits before the Jury ... by the absence of cross examination ... that these statements are true, what is there for the Jury. It is impossible ... to dispute ... that that absolutely concluded the question.’

[73] In other words, in a proper case, such as the present, the failure to challenge the evidence of a witness by appropriate cross examination involves the acceptance of his evidence if it is otherwise credible. Browne v Dunn has been followed in Australia and New Zealand.”

186. The question here then is whether this is a proper case in which the Court should accept the evidence of the Prosecution witnesses, if that evidence is otherwise credible, by reason of the fact that they were not challenged on such evidence nor was the Accused’s evidence put to them so that they had an opportunity to respond to it?
187. The list of such breaches submitted by the Prosecutor was not exhaustive. There were many others (including those referred to in paragraph 142 above). So many, in fact, that during the course of the Accused’s cross-examination on the third day of trial, I was sufficiently concerned about the possibility of a miscarriage of justice that I considered it necessary to take the unusual step of directing that, upon the resumption of the trial this year, and after the completion of the Accused’s evidence, the relevant Prosecution witnesses were to be recalled to enable Mr Edwards to put his client’s case to them. I also directed that the transcript of the trial to that point be provided to both counsel.
188. The purpose of the direction was two-fold. Not only was it designed to provide those Prosecution witnesses an opportunity to respond to the Accused’s evidence and thereby ensure that the Court had all available evidence before it,^[9] but I was also concerned to protect the Accused from any adverse inference if the breaches were in fact due to oversight by his counsel.
189. Any decision to impose the consequences of a breach of the rule as referred to above must be approached with caution. In the recent decision of Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA 36, Kiefel CJ, Keane and Gleeson JJ warned:

“[29] The difficulty respecting the rule in criminal proceedings arises not so much from adherence to it as from the proper course to be followed when it is not observed. Criminal proceedings are not only adversarial. In our system of criminal justice, they are also accusatorial in nature, which requires that the Crown prove its case and cannot require an accused to assist in doing so [X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92 at [101], [159]; [2013] HCA 29; 87 ALJR 858; Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 251 CLR 196 at [20], [125], [159]; 87 ALJR 1082]. The position of an accused person, who bears no onus of proof, cannot be equated with that of a defendant in civil proceedings [MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329 at [41]]. Moreover, fairness in the conduct of a criminal trial may have a different practical content [R v Birks (1990) 19 NSWLR 677 at 688] and require more restraint on the part of a prosecutor.
...
[34] Where there remains a number of possible explanations as to why a matter was not put to a witness, there is no proper basis for a line of questioning directed to impugning the credit of an accused. Except in the clearest of cases, where there are clear indications of recent invention, an accused person should not be subjected to this kind of questioning. The potential for prejudice to an accused is obvious.”

190. In the instant case, only two possible explanations emerged as to why relevant aspects of the Accused’s evidence were not put to the Prosecution witnesses to which that evidence related.
191. During his evidence, the Accused repeatedly volunteered the first, that is, that he had given all his instructions to Mr Edwards, in writing, well before the trial. On other occasions, the Accused said that he had given Mr Edwards notes during the evidence of witnesses such as Officer Tukuafu, but that Mr Edwards ‘sometimes took them and sometimes he didn’t’ and that it was up to Mr Edwards, whose decision the Accused ‘respected’. Implicit in those explanations was that Mr Edwards had failed to put those matters due to oversight; or had forensically or strategically decided that they should not be put. In the face of those assertions by the Accused, Mr Edwards remained mute.
192. At that point, it was open to the Accused (although he was not obliged) to waive legal professional privilege,^[10] and for Mr Edwards to produce any such written instructions. Even after the unavoidable adjournment of more than four months, when one would reasonably have expected counsel of Mr Edwards’ seniority and experience to have advised his client on this issue, no written instructions were ever produced nor did Mr Edwards ever confirm that they had been given.
193. The second explanation was that the Accused had not given instructions to Mr Edwards in the form of the evidence the Accused went on to give, thereby indicating recent invention.
194. At the resumption of the trial on day 4 (10 March 2022), I reminded counsel of the earlier direction for relevant Prosecution witnesses to be recalled to address the rule in Browne v Dunn. Again, at the conclusion of the Accused’s evidence, I raised the matter. Mr Edwards then stated that he did not need to recall any of those witnesses because the matters to be put to those witnesses were ‘not directly relevant to the charges’. I then asked Mr Edwards whether he had considered whether that evidence might also go to matters of credit. He responded that he had advised his client who understood the consequences of breaches of the rule. The Prosecutor’s position, quite correctly, was that it was a matter for Mr Edwards and the Accused. Accordingly, none of the Prosecution witnesses were recalled.
195. Not surprisingly, the Prosecutor devoted a significant portion of her closing submissions to his issue. When Mr Edwards was invited to make any submissions in reply on this point, he declined saying that he had ‘nothing useful to say’.
196. On that basis, I am satisfied that this is a proper case in which to apply the consequences of breaches of the rule in Browne v Dunn. Therefore, where the Accused gave evidence about the events on the night in question and of other matters which were directly intended to impugn the credit of the Prosecution witnesses, and on which those witnesses were not challenged and/or the Accused’s version was not put to those witnesses, I am satisfied that if I find that the relevant Prosecution evidence was otherwise credible (considered further below), then I should accept the evidence of those Prosecution witnesses.
197. Further, by reason of the matters referred to in paragraphs 190 to 195 above, I am not satisfied that, where his evidence was relevantly inconsistent with that of the Prosecution witnesses, the Accused had instructed Mr Edwards as to that evidence, which was a clear indication of recent invention.
198. Secondly, and allied to the above, despite repeated assertions by the Accused that evidence of the Prosecution witnesses was inconsistent with their earlier statements to police, Mr Edwards never cross-examined any of those witnesses on the content of their statements, nor did he seek to tender any of those statements or parts thereof as prior inconsistent statements. From that, I infer that the contents of the statements:
     • (a) were likely consistent with the evidence the relevant Prosecution witnesses gave at trial; or
     • (b) were not relevant to the Accused’s case as Mr Edwards understood it; and/or
     • (c) would not have assisted the Accused’s case had it been tendered.
199. Thirdly, the aforementioned change in the Accused’s demeanour intensified when he was asked by the Prosecution why he believed the Complainant had fabricated the complaints against him. His evidence on what he perceived to be the Complainant’s motives for bringing false complaints against him was irrelevant. However, this was another part of the evidence to which Mr Edwards did not object.
200. In Hargraves v The Queen; Stoten v The Queen [2011] HCA 44, the plurality of the High Court observed: ^[11]

“In Palmer v The Queen^[12], the plurality held that to ask a person accused of sexual offences, in cross-examination, whether that person could offer any reason or motive for the Complainant to lie diminished the standard of proof by strengthening the Complainant's credibility. As the plurality in Palmer pointed out, absence of proof of a motive for the Complainant to lie about the incident in issue ‘is entirely neutral’^[13] and, as a result, the fact that the Accused can point to no reason for the Complainant to lie is ‘generally irrelevant’^[14]. To introduce an inquiry into why would the Complainant lie would focus the jury's attention on irrelevancies by inviting the jury to accept the Complainant's evidence unless there were some demonstrated motive to lie. That would deny that the trial is an accusatorial process in which the Prosecution bears the onus of proving the offence beyond reasonable doubt.
.... It is for the Prosecution to prove its case, not for the Accused to establish any contrary proposition. The instructions which a trial judge gives to a jury must not, whether by way of legal direction or judicial comment on the facts, deflect the jury from its fundamental task of deciding whether the Prosecution has proved the elements of the charged offence beyond reasonable doubt.”

201. I therefore disregard the Accused’s evidence about why he considered the Complainant was lying.
202. However, he did not stop there. As noted above, Taiana gave evidence that on the Monday night, the Accused told her that other officers at the Nukunuku police station might have been trying to get him into trouble. He later averred to his beliefs that other officers at the Nukunuku station were trying to lay the blame on him for what he considered to be their breaches of the law by detaining the Complainant for more than 24 hours (even though there was no evidence of any complaints by her in that regard) and for breaches of police procedure by taking the Complainant for a ‘joy ride’, and that ‘some officer was lying’. He also sought to challenge the accuracy of the records by PC Ofanoa in the Central police station cell book and station diary of the Accused having arrested Taiana on the Friday morning, thereby insinuating that what Ofanoa recorded was not the truth.
203. The Accused did not seek to adduce any objective evidence to support any of his beliefs (although he was not obliged to). His assertions and suppositions were unfounded and unsubstantiated. They reflected poorly on his credibility and reliability as a witness of truth.
204. Fourthly, those statements by the Accused in fact betrayed a spiralling sense of conspiracy, paranoia and desperation which was consistent with his actions during the week in question. Specifically:
     • (a) according to Taiana, when she contacted the Complainant’s parents on the Monday morning, as requested by the Complainant, the Complainant’s mother told Taiana that the police had just left their residence and that the Accused had told the mother that Taiana was advising the Complainant and ‘putting things in her head so that she could be released early’;
     • (b) the Accused told Taiana on the Monday that he was the one ‘working on the Complainant’s case’ and that he wanted to help the Complainant but that the officers at the Nukunuku station were ‘jealous of him, so they might do something that might get him in trouble’;
     • (c) the Accused told Taiana on the Monday not to tell anyone that he had spoken with her;
     • (d) the Accused repeatedly asked Taiana to talk to the Complainant about her complaint; and
     • (e) according to Officer Taufa, when the Accused approached him on the Tuesday evening, he referred to the Complainant and said that it was ‘better to be fired from the force for being drunk than for rape’.
205. The telling feature of those aspects of the evidence is that the Accused contacted the various people referred to before any details of the complaint had been made known to him or the other Nukunuku officers including that it was directed at him or that it involved rape. Further, the Accused’s approach to the Complainant’s parents (on the Wednesday or Thursday) with Tutone to tell them that that he never had sex with the Complainant and that he hoped the police would do a medical check, was unusual to say the least, for an innocent person who had nothing to fear. It was also consistent, however, with his other strained attempts to persuade others such as Taiana and Taufa that the complaint had nothing to do with him.
206. Such retrospectant evidence may often illuminate events in the past, so long as it is a reasonable inference to argue back from the later events to a particular earlier event.^[15] Here, it may be inferred that the Accused’s behavior was consistent with him having his own prior first-hand knowledge that the complaint was against him and that it involved rape. In other words, because he did it and he knew he had.
207. Fifthly, the Accused’s initial blanket denials of contact with Taiana during the relevant week were eventually undermined by his own evidence. Each time he was taken to this issue, the Accused gave more and more details about his actual contact with her, which increasingly approached parity with Taiana’s evidence.
208. The telephone records tendered by the Accused, which were intended to support his evidence (although which version was unclear), were of no assistance for the simple fact that they bore dates, times and phone numbers but no names. As none of the Prosecution witnesses were cross-examined on what phone numbers they used at the relevant time, there was no evidence to link any particular call recorded in the TCC print out with any witness in the case.
209. During the trial, Mr Edwards objected to the evidence concerning Taiana’s arrest by the Accused on the Friday on the ground that it was irrelevant to the actual charges. As I stated at the time, and as alluded to in paragraph 177 above, this case was always destined to turn on issues of credit and reliability. The evidence of Taiana’s arrest on the Friday was relevant to credit, not just of Taiana, but also of the Accused. The connection to the Complainant throughout that week was the Accused’s repeated contact with Taiana for the purpose of trying to get her to talk to the Complainant about her complaint.
210. When the Prosecutor revisited the events of the Friday and produced the Central police station cell book and station diary, the Accused’s credibility on this issue was severely damaged. His earlier emphatic denials devolved into impeaching PC Ofanoa’s entries as being untruthful. There was nothing in the evidence concerning those entries by PC Ofanoa that gave me any reason to doubt their veracity. Mr Edwards did not submit otherwise. Ironically, not only did the records diminish the Accused’s credibility, they also corroborated Taiana’s evidence on this point and bolstered her credibility.
211. Finally, during re-examination, and once again for the first time, the Accused revealed that he had in fact driven to Central police station early that morning around the time that Taiana was recorded as having been arrested. Yet, the Accused still sought to distance himself from Taiana’s arrest by saying that he went to Central with Officer Tutone to take another officer there; something which was never put to Tutone. If the Accused’s evidence (at its highest) were to be accepted, it would necessarily follow that Taiana must have walked into Central police station, told PC Ofanoa that the Accused had arrested her for breaching curfew, Ofanoa acted on that statement without any arresting officer present, and that Taiana submitted herself to being placed in custody. In my view, such propositions border on the absurd and I do not accept them.
212. By the Thursday evening before, the Accused admittedly knew that the complaint was against him and was for rape, and that he was about to be charged and suspended the next day. As a result, it may be inferred that he arranged to take Taiana to Central police station on the (false) premise of getting her to talk to the Complainant, in a last desperate attempt to have the complaint against him withdrawn. If that was his intention, it was a very strange way of going about it. The other conceivable explanation was that he wanted to scare Taiana by demonstrating that he could have her locked up without cause. As those matters were not canvassed with the Accused during his cross-examination, I shall not dwell on them further.
213. For those reasons, I find that the Accused lied about this issue and that he did arrest Taiana on the Friday morning in accordance with her evidence on this matter as corroborated by the Central police station cell book and station diary entries. In that regard, I am satisfied, on the evidence, that there was no innocent reason for the lie such as fear or panic, to avoid an unjust accusation, to protect another person, to avoid a consequence extraneous to the offence or out of forgetfulness: Rex v Hala'ufia [2014] TOSC 23 at [33]. If there was any reasonable explanation, Mr Edwards was at liberty to re-examine the Accused about it. He did not do so. And, the evidence the Accused did give during re-examination only compounded the lie.
214. That finding and the Accused’s repeated attempts to deny or distort what was clear from the cell book and station diary entries also reflected negatively, and more broadly, on his reliability in relation to the events of the Sunday night in question.
215. Sixthly, when viewed in combination, the above observations and assessments lead safely to the view that the Accused’s conduct and evidence were consistent with a consciousness of guilt, the effect of which, was to strengthen the Prosecution’s case: Edwards v The Queen (1993) 178 CLR 193, 208.^[16]
216. For those reasons, I find that the Accused was not a credible witness and his evidence was unreliable.

Prosecution evidence

217. The above assessment of the Accused and his evidence is not the end of the matter.
218. I now turn to consider the Prosecution evidence, for even if the Accused’s evidence is put to one side, the onus remains at all times on the Prosecution to prove the charges beyond reasonable doubt. Ultimately, for any conviction, I must be satisfied on all the evidence, and to that standard, that throughout her evidence, the Complainant told the truth.
219. Generally, I found the evidence of the other police officers to be credible and reliable. It must be acknowledged, however, that with the exception of Officer Kavafono’atu, the evidence of the other officers was, at best, peripheral to the events constituting the charges. Put simply, none of them saw anything directly between the Complainant and the Accused apart from him standing outside her cell and the later telephone call in the domestic room.
220. Mr Edwards contended, and Mrs Kafa-Vainikolo conceded, that there were weaknesses or inconsistencies in the Prosecution evidence. I will address each in turn.
221. Any discrepancies in the Prosecution evidence about the times of events on the Sunday evening in question are, in my view, of little moment because:
     • (a) there was no evidence that the Complainant (or any other officer) was wearing a watch or had any time keeping device such as a phone. No doubt all such belongings were removed from the Complainant when she was placed in custody;
     • (b) the Complainant’s only reference point for time was the clock on the wall of the domestic room (and there was no evidence as to whether it was working or telling the correct time) when she telephoned Taiana and hearing a rooster crow;
     • (c) the Complainant fell asleep on a number of occasions during the night;
     • (d) the station diary was admitted to being an imperfect record which had not captured all movements and events, or their times; and
     • (e) the recollections of secondary witnesses of events recounted days after they occurred, with no known reason at the time to commit them to memory, are notoriously inaccurate.
222. The thrust of any criticism about the Prosecution evidence on time was clearly aimed at opportunity. The Accused himself posed a rhetorical question to the effect as to when could the alleged assaults possibly have taken place without being detected by one or other officers on the shift that night?
223. It was common ground that from late on the Sunday night, various officers came and went from the station on patrols, others were asleep, at least one other was watching movies with earphones and others were engaged in various tasks in different rooms. The only constant in the evidence was that during the early hours of the Monday morning, the Accused was seen outside the Complainant’s cell and that he brought her into the domestic room to make a phone call. In my view, and in those circumstances, there was ample opportunity for the initial serious indecent assault, which according to the Complainant, took seconds, and the subsequent rape, which according to the Complainant, only took five or six minutes, to occur and without any other officer being aware of it.
224. Similarly, any discrepancies in the evidence as to who took the Complainant out of her cell for tea earlier in the evening must be viewed in light of the fact that the evidence was consistent about which officers were there, or around the tearoom at the time, and that the Accused spoke with the Complainant.
225. Next, the differences between the officers who said that they saw the Accused in a different shirt later in the shift (as described by the Complainant) compared to those who said they did not see him in any different shirt (and the one who could not recall), may be satisfactorily explained by the fact that the different officers saw the Accused at different times and for different periods of time during that night.
226. The evidence in relation to the lighting outside the Complainant’s cell, and whether the lights were on or off at various times during the night, did not progress the only issue to which that evidence was directly relevant, namely, the Complainant’s identification of the Accused. Her evidence that there was sufficient light for her to see the Accused’s face and that she recognized his voice when he came to her cell, was never seriously challenged. She subsequently identified the Accused consistently from three sets of line up photographs. If any questioning on the point was directed to credit, it attracted little weight because, as mentioned, different officers came and went in that area at different times during the night.
227. The discrepancy between the Complainant’s account and Taiana’s about their phone conversation on the Sunday night is of more significance. Taiana said that the Complainant told her to tell the Complainant’s parents that something had happened to her. The Complainant did not mention that in her account. The Prosecution, sensibly in my view, did not seek to rely on this aspect of Taiana’s evidence as some form of fresh complaint (albeit second hand and equivocal). After observing both the Complainant and Taiana during their evidence, I accept the Prosecution’s submission that, assuming the complaint to be true, it would be reasonable for the distraught, scared and much younger Complainant not to have recalled every word she said to Taiana on that occasion, which allegedly occurred a short time after the sexual assaults. That, by all accounts, the Complainant was whispering during the call, is also consistent with that state of mind. Of the two, Taiana could reasonably be expected to have the better recollection. To that may be added the again unchallenged evidence of Taiana that the next morning, she did in fact contact the Complainant’s parents about ‘what had happened’ but was told by the Complainant’s mother to mind her own business.
228. However, any initial reservations about the reliability of Taiana’s evidence, given the Complainant’s different evidence about what was said (or not said) during their phone call on the Sunday night, were dispelled by the subsequent revelation in the Central police station cell book and station diary confirming her evidence that the Accused had arrested her on the Friday morning. That evidence strengthened my impression of Taiana as an honest witness and whose evidence was reliable.
229. Overall, I consider that any discrepancies or inconsistencies in the evidence of the other Prosecution witnesses were tangential to the central issue of whether the Accused assaulted the Complainant in the manner alleged. Further, those aspects of the evidence were not deployed by the Accused or Mr Edwards to directly impugn the Complainant’s credit, nor did they successfully contradict her account of the alleged assaults. Viewed in context, they went to matters of a minor nature and did not, of themselves, leave me with any reasonable doubts about the Complainant’s evidence.
230. I now turn, finally, to an examination of the Complainant herself and her evidence.
231. I found the Complainant to be a frank and forthright witness. She presented as a young, comparatively petite woman, polite and demure in manner, and, unsurprisingly for her age, somewhat naïve and relatively inexperienced. She was clear and consistent throughout her detailed evidence, none of which was damaged during cross-examination.
232. As the Complainant herself explained during her evidence, she had much to lose and very little to gain by appearing in Court on this very serious matter. In that regard, I gained the very clear impression from observing the Complainant during her evidence that between the betrayal she felt at the hands of her father taking her to be placed in police custody over a disagreement about the level of independence she, then as an 18 year old, ought to have been allowed; and the fundamental breach of trust consequent upon her allegations of having been sexually assaulted and raped by a police officer, the Complainant’s faith in society had been seriously damaged. Notwithstanding, throughout her evidence, the Complainant demonstrated a certain level of perhaps hard-earned maturity.
233. In his submissions, Mr Edwards placed emphasis on what he described as the Complainant’s failure to have significantly resisted the alleged rape (to the point of resulting in physical injury), or to call out to the other officers when it was happening or to complain the next morning. He also suggested incredulity at the fact that she went driving with officers the next day without complaint. The submissions appeared to suggest that the Complainant consented to the sexual interaction. If so, the premise of the submissions was incongruous with the Accused’s evidence that he never touched the Complainant. Consent was never in issue and therefore, considerations on any issue of consent, such as those provided by ss 118(2) and (3) of the Criminal Offences Act, did not arise.
234. In any event, I accept the Complainant’s evidence that when the Accused first kissed her and touched her breast and vagina, she slapped his hand away. That was the first instance of her not consenting to the Accused’s sexual advances.
235. The Complainant’s ‘obedience’, as Mr Edwards called it, to the Accused telling her to suck his penis, must also be viewed in its proper context. She had already rejected his first advance. But the Accused’s escalation of his sexual intentions, as depicted by the Complainant in her evidence, must have signalled to the Complainant that he was not going to take no for an answer. More importantly, in relation to context, the Accused was male, a police officer, much older than the Complainant and much larger in physical stature. He had also told the Complainant that the other officers were asleep, something of which she could not have had any independent knowledge. In those circumstances, I accept the Complainant’s evidence that she was terrified of the Accused, of what was happening and of what he might do to her if she did not ‘comply’. That apprehension could only have been exacerbated when the Accused told her to return to the cell so that he could ‘eat her like an animal’. Once back in the cell, the Complainant attempted to resist the Accused taking down her tights and underwear as best she could as evidenced by her description of her grabbing his hand resulting in him only being able to pull her lower garments down to her knees. That, in my view, was a further instance of the Complainant demonstrably not consenting to the Accused having his way with her.
236. If one assumes for the sake of analysis that the Complainant’s account of what the Accused police officer did to her while in police custody was true, then it is entirely reasonable to accept that she felt she could also not trust the other officers there that night, whom she also did not know.
237. In relation to the Complainant going driving with the other officers, there was no evidence that she had any choice in the matter. Constable Kavafono’atu said the drive occurred on the Tuesday, after the Complainant had made her complaint to him. He described the Complainant as looking dissatisfied and upset during the drive. She gave evidence that, at one stage during the drive, she responded to a joke by saying that she wanted to jump into the sea because she was so embarrassed. That demeanour and language reflected a state of mind which was consistent with her complaint. Her disclosure of what happened to, and therefore trust in, Constable Kavafono’atu, was consistent with her evidence that she only felt she could trust family members and that he was related to her father.
238. Otherwise, as I apprehended them, Mr Edwards’ submissions on these matters were an attempt to straddle the conceptual divide between accepting the Complainant’s evidence that the sexual activity between her and the Accused occurred, on the one hand, while at the same time seeking to raise questions about consent; and his own client’s counterfactual case, that there was no sexual contact between them at all, on the other. The attempt was misguided. Alternatively, if those submissions were an attempt to discredit the Complainant and her evidence more generally, a real world, common sense, examination of the surrounding circumstances, informed by reasonable expectations as to how an unwilling teenage girl in police custody being set upon by a male officer in the middle of the night might behave, rendered the attempt unsuccessful.
239. Finally, there were three particular aspects of the evidence which, in my view, further corroborated or supported the Complainant and her account.
240. Firstly, her admission to having had a ‘puff’ of methamphetamines when out with friends was against interest and therefore enhanced her veracity.
241. Secondly, her complaints to Marian Kupu on the Monday evening, to Constable Kavafono’atu on the Tuesday morning and to her father that afternoon all constituted fresh complaint as contemplated by s 11(1) of the Evidence Act. Accordingly, that evidence showed that the Complainant’s conduct at the time was consistent with her evidence at trial.
242. The third and final piece of evidence to which I now refer turned out to be, in my view, one of the most compelling in the case. It was rightly adverted to by the Prosecutor in submissions, although I consider it attracts far more weight.
243. In recounting the events leading to the Accused telling her to suck his penis, the Complainant described the Accused as wearing white knee length tights under his tupenu. In denying the Complainant’s evidence that earlier on the Sunday evening, during tea, he had consumed coffee (although she also mentioned tea), the Accused said that he did not drink coffee because it was against his Mormon religion. However, the Accused later agreed with the Prosecutor that it was also part of his religious observances to wear specific types of undergarments, including white knee length tights. If the Complainant fabricated her evidence, how then could she have known that the Accused wore white knee length tights? Mr Edwards did not address the subject nor was coincidence suggested. I agree with the Prosecution that the Complainant knew about the Accused’s tights only because she saw them and that, on the evidence, the only way she could have seen them was in the circumstances of the assaults as she testified to them.
244. For those reasons, I believe the Complainant told the truth. By the acceptance of her evidence, I am satisfied that the Prosecution has proven the elements of each charge beyond reasonable doubt.

Result

245. For the reasons stated, I find the Defendant guilty on both counts.
246. Before concluding, I wish to comment on the events which initiated this tragic case. The statutory powers of Tonga Police are for the prevention and detection of crime. An 18-year-old (male or female) staying with friends for a few days is, to the best of my knowledge, not a crime in Tonga. The coercive powers of Police to arrest and detain those charged with a criminal offence are not to be used as proxy parenting tools. The artifice in this case of the Complainant being drunk (the fact of which was not supported by any of the evidence) as the basis for placing her in custody, when in truth, the relevant officers were acceding to a request by the Complainant’s father to lock her up to prevent the possibility of her leaving the family home again, was, with all due respect to those officers who deserve it, a reprehensible abuse of police power and violation of the Complainant’s Constitutional rights. It represents a very sad day for Tonga Police, surpassed only by the inestimably more despicable acts and breaches of trust inflicted by the Defendant on the Complainant. The Court commends those officers who remain loyal to their oaths, who maintain their integrity no matter the temptation and who call out such behaviour. It has no place within Tonga Police nor, for that matter, in Tonga.
247. Pursuant to section 119 of the Criminal Offences Act, it is ordered that the identity of the Complainant and her evidence taken in these 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
30 March 2022	LORD CHIEF JUSTICE

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^[1] (1894) 6 The Reports 67

^[2] Transcript, day 2, pages 34, 35.

^[3] In R v Selu [2021] TOSC 17 (CR 252 of 2020), Latu Selu was tried by Langi AJ on charges of possession of methamphetamines and interfering with evidence and was acquitted.

^[4] Subsections 11(2) and (3) of the Evidence Act as amended by s.2 of the Evidence (Amendment) Act 2016; R v Sa'ili [2020] TOSC 48; Polutele v Rex [2004] TOCA 11 at [5]; Uhi v Crown [2013] TOCA 5 at [5].

^[5] Rex v RVL [2015] TOSC 20 at [17].

^[6] R v JAE [2021] QCA 287 at [45] citing R v Foley [2000] 1 Qd R 290 at 290-291; (1998) 105 A Crim R 1.

^[7] R v Birks (1990) 19 NSWLR 677; (1990) A Crim R 385.

^[8] The rule in Browne v Dunn has been referred to in recent times in R v Kolomatangi [2015] TOSC 40 and R v Manu [2019] TOSC 30 and applied even more recently in R v Anatoni [2020] TOSC 52 and R v Langi [2021] TOSC 148 at [84].

^[9] Supreme Court Act, s 5.

^[10] Leone v Rex [2014] TOCA 12 at [3].

^[11] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, commencing at [44] ff.

^[12] [1998] HCA 2; (1998) 193 CLR 1 at 9 [9]; [1998] HCA 2.

^[13] [1998] HCA 2; (1998) 193 CLR 1 at 9 [9].

^[14] [1998] HCA 2; (1998) 193 CLR 1 at 7 [7].

^[15] FGT Custodians Pty Ltd (formerly Feingold Partners Pty Ltd) v Fagenblat [2003] VSCA 33.

^[16] Cited in R v Soane [2021] TOSC 24 at [61]; Xi Yun Qian v Kingdom of Tonga [2020] TOSC 16.