R v Ta'ufo'ou [2022] TOSC 21; CR 138 of 2021 (8 April 2022)

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

CR 138 of 2021

REX

-v-
Pita Tonga TA’UFO’OU

JUDGMENT

BEFORE: THE HONOURABLE COOPER J
Counsel: Ms. ‘E. Lui for the Prosecution
Defendant in person
Date of Judgment: 8 April 2022

1. An order under section 119 has been made; that no detail may be published that could lead to the identification of the complainant in this case.
2. The trial commenced on 4th April 2022. The defendant was unrepresented.
3. He faced an indictment alleging, count 1 attempted rape contrary to section 120 Criminal Offences Act and two counts of serious indecent assault contrary to section 124 (1), (2) and (3) Criminal Offences Act.
4. The case was opened in Tongan and the Court followed the English language opening note that had been provided.
5. Before the first witness gave evidence I went through the defendant’s record of interview to understand his case clearly so all necessary cross-examination could be put.

Janice Tovo

6. She is now 21 years old and on the evening of 2^nd March 2021 she went for a girl’s night out at Billfish bar. Her aunt dropped her at the bar. She was dressed in short top and mini skirt. She then got in touch with her friend ’Otilia and went to her home with the plan to go back to the bar later.
7. Later, at approximately 2100 hrs, they went to the car park opposite Billfish. They met other friends, former students and all went to the liquor outlet and bought spirits and beers. They wanted to drink before going into the bar.
8. When they did go into Billfish bar, Miss Tovo was already feeling drunk.
9. During the course of her night she reckoned to have had two cans of Woodstock, five cups of punch and three bottles of beer.
10. At the bar she remembers dancing and drinking beers.
11. She said that a friend’s mother was working there that night and explained that because of this, she felt safe drinking more than she might otherwise.
12. By the time the bar was closing she felt very drunk. She described her memories as being fractured and she was not able to properly register what was happening around her.
13. The lady, the friend’s mother working behind the bar would be dropping them all at their homes. That was the plan until she found out Miss Tovo lived in Hofoa and the curfew, that ran from midnight, meant she did not have the time to get there, and get back, to her own home again.
14. She suggested that Miss Tovo stay at ’Otilia’s home, in Ma’ufanga, ’Otilia was agreeable at first. But, then changed her mind and said her parents would not allow it.
15. Miss Tovo was very upset. She started to walk and as she did, telephoned her boyfriend in the hope he could pick her up.
16. But he also said the curfew would mean he could not help and suggested she called the police.
17. She had stopped walking and had been sitting on the rock wall of the cemetery near the Billfish bar, making this call, when a man she did not know approached her. She immediately felt scared. He asked her what she was doing there and her reaction was to start walking.
18. She walked West from the direction of Billfish bar along the Vuna road. It was late and this man started to follow her. He called after her, asking if she wouldn’t mind his walking with her. She pretended not hear and carried on. By now she had got close to the Tanoa hotel. As she did a shuttle bus drove towards her. She ran to it thinking it might be the police. There were two men inside but when she asked for help to get away from this man, and a lift home, they treated it as a joke.
19. They asked her about the person following her. She turned and saw he had started on his way back where he had come from.
20. She persisted until the driver told her to get in. She thought it was a police vehicle she was getting in to.
21. She was still feeling very drunk and even as she got in felt so tired she fell asleep straight away.
22. The next thing she recalled was lying on the back seat of the defendant’s car. She did not know if she had walked or been carried. It was parked outside the PTH store and she could see the shuttle bus driving off. She thought she was going to be dropped off home later.
23. As she lay there the car door opened. A man got on top of her and started to kiss her face. She pretended to sleep. He rubbed her vagina. She felt very scared and so did not say anything. He took her underwear off.
24. She kept her eyes shut too scared to look up and see this person’s face. She pushed his head away. She then felt him try to put his penis inside her vagina. She felt helpless to stop this.
25. When she could, she seized an opportunity to run away. He had got off her and leant forwards, towards the front of the vehicle reaching for something. She opened the door and ran.
26. This was about 0100 hrs or 0130 hrs she thought. She was only wearing her mini skirt and her bra. She ran past the Lopaukamea property and to the Red Cross premises. She had her mobile phone in her bra and called her boyfriend who gave her the number for the police whom she then telephoned.
27. She went to the Queen Salote memorial hall and waited for the police. They arrived, took her to the police station and they took her statement.
28. She confirmed that the man never said anything to her nor did she say anything to him at any time. Inside the car it was dark but was illuminated from a street light and some light from the PTH building.
29. She had been in the defendant’s car for about 10 minutes before he got on top of her, she thought.
30. During that time she was concerned and afraid about where she was and did not trust being left in this vehicle.
31. She recounted that earlier, when on the Vuna road as she was being followed, she put on a pretence of not being concerned about it. That was because one of her girl friends, she said, had got into a similar situation and it had ended with her being killed. So, she wanted to act positively.
32. In the defendant’s car, she pretended to not register what was happening to her, so the man on her would not know she knew what was happening. The truth was she was scared.

Cross-examination

33. She did not ask the defendant permission to get in his car.
34. She denied the door was already open when she fled and stated she opened it herself.
35. She had not merely walked from his car, she was scared and had walked very fast, hiding at one point when she had not immediately seen a vehicle that she could get help from.
36. She was asked if she had shown rejection when she was kissed. She stated she was too afraid to and thought he would do something really dangerous to her.
37. Asked if she showed rejection when he licked her vagina, she said she had not consented.
38. As for when he rubbed his penis against her vagina, she explained she was too afraid to react that way but she had in no way consented to this.
39. She thought she was in his car for approximately 45 minutes.
40. That she was there so long was not because she consented. She described that inside she was struggling during this time. She repeated that she had not consented. All the time she was there she felt both uncomfortable and scared.
41. It was a lie to suggest she had told him what he was doing felt good.
42. She could not run away when he was on top of her.
43. There had not been an occasion when, after being in the car for about 15 minutes the defendant got off her, went out the car and wound up a front window against the rain coming into the car. There had only been one chance to escape and she had taken it.
44. She had not stayed in the car because she enjoyed what was happening.

Re-examination

45. There was none.

Sione Havea

46. He is 37 years old and last year worked for Praeside Security Company. On the night in question he was on patrol in a shuttle van, on his way to the British High Commission.
47. The shuttle van has the company name and number printed on the side but is also covered with reflective strips that shine back light in yellow and blue.
48. As he was parking a girl walked over and asked him for help.
49. She asked if she could get in their vehicle and said a man was following her. He told her company policy would not permit this, but she insisted and so he let her.
50. He did not notice anything strange in her speech or demeanour. With her in the shuttle van they drove first to the Total filling station, then to Small Industries where their company have an office.
51. The female colleague there declined to allow her to stay in the office with her.
52. All the while Miss Tovo was asleep on the back seat.
53. They then drove to the PTH building where the defendant was on duty as security. They asked Mr. Ta’ufo’ou to let her stay in his car until the morning. She got out the shuttle van and walked to his car.

Cross-examination

54. He said that she had not behaved as if effected by alcohol save that she fell asleep immediately and the whole vehicle had filled with the fumes of alcohol from her.
55. He did not know if she was very drunk, if so it wasn’t detectable from the way she spoke.

Re-examination

56. There was none.
57. The remaining prosecution evidence was adduced by agreement; it being the record of interview and the charge sheet and the voluntary statement. That bundle became exhibit 1.

Police Interview

58. The police interview was conducted on 5^th March 2021 at 1110 hrs.
59. Mr. Ta’ufo’ou was born 30.3.1953 and was 68 years old.
60. He declined to have legal representation. His rights were explained.
61. He confirmed that on the night in question he was working as security at the PTH store.
62. Asked where he met the complainant, he replied that she had been dropped off by one of the firm’s security patrol vehicles sometime between midnight and 0100 hrs.
63. He described how his colleagues asked whether the young lady could stay in his car the night and she simply got in and sat in the back seat.
64. He described what she wore and then explained what had happened between them.
65. After the check-in call on his personal radio was received after about 5 minutes of her arrival, he went to her, told her to lie down and got a pillow.
66. He described without any further word from himself and without her ever having said a word to him he started to kiss her face. She did not react, is what he stated.
67. He sucked her mouth; she did not react.
68. Then “I asked her whether I could lick her vagina, but she did not say a word to me, I licked around her neck and she did not even utter a word to me.”
69. He then described licking her body before licking her vagina. After some time he said she moaned and told him it felt good.
70. He said he wanted to have sex with her and tried, but was not erect.
71. He stopped to get his sweat towel and while the door was open he heard a door slam and she had left. She had made off without taking all her clothes which he retrieved and threw away.
72. When asked about his account he agreed that she was drunk and smelt strongly of alcohol and the strong smell of those fumes made it clear she had drunk a lot.
73. He accepted [question 34] that the amount the young lady had drunk rendered her incapable to resist or even say anything.
74. He agreed that getting rid of her clothes was because he foresaw she was going to make a complaint about him.
75. He accepted [question 44] that had she been consenting she would not have left his car without her clothing.
76. He then stated [question 45] “Yes, in the beginning she did not consent but her conduct was likely (sic) that she enjoyed it and consented towards the end. But the truth of the matter was that she did not consent to all these from the beginning.”
77. He was then charged with the offences of attempted rape and serious indecent assault.
78. After the latter charge he made the voluntary reply “Yes, true.” which he signed on 5.3.2021 at 1345 hrs. At 1350 hrs he made the voluntary statement :
79. “I feel remorseful and guilty in my heart for what happened and I feel sorry for the little girl.”
80. That concluded the prosecution evidence.

Close of prosecution case

Defence case

Pita Ta’ufo’ou

81. He recounted how he had been at work at the PTH building as security officer.
82. He had been waiting for his check-up call when Mr. Havea arrived and he agreed to the request for the young lady in his colleague’s car stay in his.
83. He then gave an account consistent with his police interview; that he had gone to her, arranged the pillow for her head and lifted her head so he could put it under her.
84. He kissed her face and then asked to lick her vagina. She did not reply.
85. Kissed her mouth and asked to kiss her vagina, she still did not reply.
86. He then described licking her body and thighs removing under wear and licking her vagina and her saying it felt good.
87. He tried to have sex with her and forced his un-erect penis into her vagina using his fingers to do so.
88. He stopped, grabbed his sweat towel from the front of the car but he noticed that she had walked off. He called after her that he could take her home later, but she did not reply.
89. He added that when he had undressed her, she lifted her body to allow him to do so.
90. He also stated that after he had licked her vagina for 5 minutes the rain started to fall and he had got out and rolled up a front window and she had not left the vehicle and he continued what he had been doing.

Cross-examination

91. He agreed the first time he ever saw her was that night.
92. He could not see if her eyes were open when he went to kiss her.
93. She did not say anything to him. He could smell alcohol on her and what he did, he did knowing she was drunk.
94. He pointed out that she had never said anything to indicate she was scared and he did not believe she had been afraid.
95. He then stated “For us men when we are close to women in our nature to be sexually aroused.”
96. He stated he was not sexually aroused as he had not been able to have intercourse with her.
97. He explained his answer to question 34 was to make clear she was drunk.
98. He was asked about his answer to question 36 and complained that he was not being cross-examined in line with the indictment he faced.
99. There being nothing objectionable about the question I allowed it to be put.
100. He was asked to comment on why he had accepted, in answer to the officer’s question, that he had discarded her clothing as he feared a complainant was imminent ?
101. He replied that it was only his wife finding out he was afraid of and that was why he had thrown the clothing away.
102. It was pointed out that the detail about her lifting her body to allow him to remove her clothing was the first time he had mentioned this and as such was a recent fabrication. He stated it was true.
103. Mr. Ta’ufo’ou’s evidence concluded.
104. He was asked whether he wished to call any witnesses ? He stated he did not.^[1]
105. The defence evidence concluded.

Close defence case.

Submissions

106. Mr. Ta’ufo’ou made submissions about his case. Those were that he was completely certain about his defence and sure she had consented.
107. He pointed out that during the incident she never showed any resistance. He stated she had not pushed him away nor jumped out the car to avoid him.
108. Those were the defence submissions.
109. Having considered the position carefully^[2], it being a short trial, the defendant unrepresented and his having called no evidence I considered that it would not be fair for the prosecution to have a closing speech, the issues being clear. They were given overnight to make any representations on this, but made none.

Discussion

110. The defence case is that Miss Tovo consented and that this is evident because she did not resist.
111. Plainly though, not resisting and consenting are two very different matters.

Consent

112. I take the defendant’s argument to be that the lack of resistance, coupled with how long he indulged in sexual activity with the complainant, when taken together, one can infer consent from this.
113. Dealing with count 1. The evidence of the complainant was that she felt him try to penetrate her vagina with his penis.
114. The allegation is attempted rape.
115. Were his actions more than merely preparatory^[3] ? Plainly they were as he was forcing himself upon her and he does not deny that fact.
116. In fact, in his evidence he stated that he used his fingers and did penetrate her vagina with his penis, although not erect.
117. Regarding the question of consent across all three counts.
118. Miss Tovo’s evidence is that she was drunk that night. Very drunk when she left the bar and still very drunk when she got into the shuttle bus. That she was having difficulties thinking clearly and with her recollection.
119. For example she had confused that vehicle with a police vehicle.
120. It is right that Mr. Havea’s evidence was that he did not notice how drunk she was from the way she spoke, but the fumes of alcohol from her, filled his vehicle and she immediately fell asleep when inside.
121. Mr. Ta’ufo’ou agreed that she was drunk and just how drunk was clear from the smell of alcohol on her. She also went into his vehicle and again fell asleep straight away.
122. It is note worthy that on Mr. Ta’ufo’ou’s evidence she never once answered yes to his requests. She did not reply at all.
123. Intoxicated, silent and unresponsive is how she was.
124. Her evidence was, essentially420, that as well as being drunk she threw up a shield of silence and unresponsiveness. That she was extremely scared and feared Mr. Ta’ufo’ou might do something really dangerous to her. She had already in mind, from earlier, how a friend had been killed and was feeling vulnerable and scared in the defendant’s car.
125. Her evidence is that the first chance she could she ran away, even leaving clothes in the defendant’s car, which is common ground.
126. Taking these matters together I reject the evidence of Mr. Ta’ufo’ou that she told him she was enjoying what he was doing to her.
127. This is contrary to everything that he accepts she did, in not giving him an answer to his requests for sexual activity, not reacting to his advances and making off leaving her clothes behind.
128. As soon as she had she called her boy friend and then the police.
129. Even in his police interview Mr. Ta’ufo’ou had to accept that her leaving his car without all her clothes was consistent with her having not consented
130. The evidence of both Mr. Havea and Mr. Ta’ufo’ou; her keeping on falling asleep and smelling so strongly of alcohol I conclude, so I am sure, that she was in fact passing out through intoxication.
131. I have no doubt that she did not properly know what going on because she was so drunk, this was clear if not from her speech from her passing out, and as such, she would have been incapable of consenting.
132. That Mr. Ta’ufo’ou stated in police interview that she was not consenting at first, his claim that she later did, is premised on his suggestion that she moaned and told him that felt good.
133. There are three matters in stark contrast to this claim that lead me to reject it: (i) on his word she never reciprocated any of advances, (ii) she ran away, and (iii) she left her clothing behind.
134. Consequently I accept her evidence that she did push his head away at one stage.
135. The defendant had never met this young lady before. She had been brought by a colleague to be in his care so as to sleep. She was plainly drunk. He did not share any conversation at all with her, nor even did he know her name.
136. She was lying asleep on the rear seat of his car and he made his move and kissed her, licked her vagina and had sexual intercourse with her.
137. On his word she never said a single word, let alone anything to say she wanted to do these things with him which is in sharp contrast to his protests that she consented.
138. That he later disposed of the clothes she had left behind, agreeing with the police officer in interview that was because he knew a complaint was going to be made by her shows, in my view, he realised what he had done was quite wrong.
139. He accepted in interview that she did not resist because of how drunk she was.
140. Taking all these features together; and that it is inherently unlikely in the circumstances of that night that a 21 year old girl would gratify a 68 year old man by both letting him indulge himself freely, yet not reacting at all, I form the view, so I am sure, she plainly was too drunk to consent and that this was quite clear Mr. Ta’ufo’ou. His part admissions to the police and expressions of guilt are the consequence of his being aware what he did was wrong and grappling with that.
141. First he told the police “Yes, true.” When charged, then “I feel remorseful and guilty in my heart...sorry for the little girl.”
142. Drawing all these strands together I come to the certain view that the sexual activity that Mr. Ta’ufo’ou indulged in was not with Miss Tovo’s consent.
143. None of the acts complained of in the three counts before the court are denied.
144. In relation to count 1, the attempted rape, he admits he put his penis in her vagina and the issue is consent.
145. In relation to count 2, the allegation is that kissing her face was indecent. The defendant admits that he kissed her face. After the question of consent, the next issue is whether that was an indecent act ?

Indecency

146. In R v Court [1988] 2 All ER 221 (HL) their Lordships considered the question to what could amount to indecency.
147. They ruled that where the allegation was founded on facts that were capable of being given an innocent as well an indecent interpretation it was necessary for the prosecution to prove the accused not only assaulted the victim, but in doing so intended to commit an assault that right-minded persons would consider indecent. Evidence of his motive tending to explain the cause of his conduct was admissible to establish whether he intended to commit not just an assault but an indecent assault.
148. The first question then is whether a kiss, of itself, is capable of being an assault ? The United Kingdom legislation defined an assault as any touching. There is no such definition in Tongan legislation.
149. I do not think that a kiss falls under any of the categories in section 112 of Criminal Offences Act so in itself to be an assault. Nor do I think it is capable, in this case, on the evidence, of leading the complaint to apprehend immediate physical violence.
150. Yet, there can be no doubt that the approach of these courts has always been to find that the starting point is physical contact, rather than an assault, in the sense of violence. Otherwise, for example, the unwanted stroking of a woman’s breast, could be argued to fall outside the definition. And, that would be a nonsense.
151. Likewise, a stranger to kiss a very young child on the mouth, whilst not necessarily an assault in the sense of apprehending immediate physical harm, nonetheless could be capable of being an indecent assault.
152. Though not a binding authority this was also the approach of Webster CJ in R v Lasike [2006] TLR 191. He stated that the assault element of an indecent assault was “deliberate physical contact.”
153. For the reasons I set out above I conclude the proper starting point is whether there was deliberate physical contact.
154. Here, clearly there was.
155. The next question was whether it was indecent; whether there was an indecent motive ?
156. In his evidence Mr. Ta’ufo’ou stated that he kissed her check and asked if he could lick her vagina, then kissed her mouth and again asked to lick her vagina.
157. The example considered in R v Court (ibid) was the ripping of a woman’s clothes. That it could be indecent in circumstances of an indecent motive, not where it was accidental.
158. From this I extrapolate that an indecent motive could encompass sufficiently proximate future events, as long as the indecent motive existed at the time of the assault.
159. The facts in this case are that there was touching by the defendant by kissing the complaint and at the time he wanted to lick her vagina.
160. Was that capable of being an indecent motive ?
161. It is capable of being considered indecent if, objectively, right minded-persons would consider it offensive by contemporary standards, following both R v Court (ibid) and R v George (1956) Crim LR 52.
162. I conclude so I am sure that his intention to lick the vagina of a young lady he had never met before nor spoken to, lying asleep in his car, in the circumstances of this case, is capable of amounting to an indecent motive.
163. That is to say when he deliberately touched her by kissing her, it was tainted by all his motives at the time.

Elements of the offences

164. Elements of the charges the prosecution must prove beyond a reasonable doubt:
165. Count 1 Attempt rape :
     1. The defendant,
     2. On or about 2^nd March 2021,
     3. Attempted
     4. To insert his penis into the vagina of Miss Tovo.
     5. Without her consent.
166. Counts 2 and 3 :
     1. The defendant,
     2. On or about 2^nd March 2021
     3. Touched Miss Tovo , by kissing her (count 2) by licking her vagina (count 3), and
     4. Without her consent, and
     5. That touching was indecent.

Verdict

Count 1:

167. I come to the view that the act complained of, the attempt rape, was in fact carried out. I accept what Mr. Ta’ufo’ou said he did; that he forced his penis into the complainant’s vagina. I see no reason for his making that up. I am quite sure that is what happened.
168. For the reasons above I have come to the clear view Miss Tovo did not consent.
169. Section 7 Criminal Offences Act states that if the choate offence took place it is not a defence to a charge the inchoate offence was committed.
170. Accordingly, being sure he committed the act, and sure that Miss Tovo did not consent, I find Mr. Mr. Ta’ufo’ou guilty of count 1.

Count 2:

171. I find, so I am sure, he kissed her and it being deliberate physical contact and was accompanied by an indecent motive, so he committed a serious indecent assault upon her and I find him guilty of that offence.

Count 3:

172. I find so that I am sure he licked her vagina and objectively, right minded-persons would consider it offensive by contemporary standards, in the circumstances of this case, as I have set out above. Therefore I find him guilty of count 3.
173. I find Mr. Ta’ufo’ou guilty of all three counts and so I adjourn the case for sentence.

Further orders

174. Mr. Ta’ufo’ou to make contact with probation and provide them with his telephone number so an interview can be arranged.
175. Victim impact statement no later that 1600 hrs 20^th April 2022.
176. PSR to be completed, please, no later than 1600 hrs 26^th April 2022. PSR to please include defendant’s reaction to the victim impact statement. Sentencing submissions 1600 hrs 27^th April 1600 hrs.
177. Sentence Friday 29^th April 0900 hrs. Bail extended. Defendant to report to Central police station every day between noon and 1300 hrs. Any failure to report is to be immediately conveyed to the Registrar Supreme Court and bail will be reviewed.
     

NUKU’ALOFA N. J. Cooper

8 April 2022 J U D G E

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^[1] A Judge must ask an unrepresented defendant whether he wishes to call any witness evidence; Carter (1960) 44 Cr. App. R. 225, CCA.
^[2] The trial judge, faced with an unrepresented accused, must assess all the circumstances of the case and decide whether or not it would be fair to allow prosecuting counsel to make a speech; where the defendant had been represented throughout the majority of the case, and had chosen to dispense with the services of lawyers when it suited him, it was appropriate for prosecution counsel to make a closing speech: Cojan [2014] EWCA Crim 2512; [2015] 2 Cr. App. R. 20 (approaching the issue as one of balance and fairness, and approving the obiter suggestion in Stovell [2006] EWCA Crim 27; [2006] Crim.L.R. 760, that procedural and evidential changes might have altered the strict position set out in Mondon, (1968) 52 Cr. App. R. 695, CA (rules restricting prosecuting counsel’s right to make a closing speech ought to be carefully observed)). Archbold 4 -424a. Also See Mondon (1968) 52 Cr. App. R. 695, CA, Pink [1971] 1 Q.B. 508; (1971) 55 Cr. App. R. 16, CA, Stovell ( 7-87), Williams (James) [2011] EWCA Crim 1739; [2012] R.T.R. 18 (prosecution improperly making second speech where defendant unrepresented will not necessarily result in quashing of conviction, but it may do so, especially if combined with other irregularities) Archbold 7-92.
^[3] R. v. Geddes[1996] Crim.L.R. 894, CA.