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R v S.H. (a pseudonym) [2022] TOSC 23; CR 135 of 2021 (22 April 2022)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NUKU'ALOFA REGISTRY


CR 135 of 2021

REX

-v-

S.H.

(a pseudonym)


REASONS FOR VERDICT


BEFORE: LORD CHIEF JUSTICE WHITTEN QC (by AVL in court 1)

Appearances: Mrs T. Kafa-Vainikolo for the Prosecution (by AVL)

Mr P. Tatafu for the Accused (in Vava'u)

Trial: 11, 12, 13 April 2022

Submissions: 20 April 2022 (in Vava'u)

Verdict: 22 April 2022 (in Vava'u)


CONTENTS


THE CHARGES
NON-PUBLICATION ORDER
PROSECUTION EVIDENCE

COMPLAINANT

COMPLAINANT’S MOTHER - ‘ROBYN’

DR FALAHOLA FUKA

COMPLAINANT’S FRIEND – ‘JULIA’
DEFENCE EVIDENCE

ACCUSED

ACCUSED’S NIECE – ‘HINGA’
SUBMISSIONS

PROSECUTION

DEFENCE
CONSIDERATION
RESULT

THE CHARGES

  1. On 4 October 2021, the accused pleaded not guilty to 3 counts of serious indecent assault, contrary to s 124 of the Criminal Offences Act (“the Act”) and one count of rape, contrary to s 118 of the Act.
  2. At the commencement of the trial, the Prosecutor sought leave to amend the indictment in respect of the particulars to counts 2 and 3. A further correction to the year stated in count 2 was raised during closing submissions. That correction was due to oversight and was consistent with the Prosecutor’s written opening remarks. It also aligned with the complainant’s evidence during the trial. Mr Tatafu did not object to any of the amendments and leave was granted accordingly.
  3. The particulars of the charges, as amended, are as follows:

Non-publication order

  1. At the time of the alleged offending, the complainant was between 12 and 13 years of age. The accused is her father.
  2. Therefore, pursuant to s 119 of the Act, I directed that the identity of the complainant and her evidence taken in the proceedings shall not be published in the Kingdom in a written publication available to the public or be broadcast in the Kingdom.
  3. To ensure the anonymity of the complainant, in this version of the reasons for verdict, the accused is referred to in the title by a pseudonym, as are other witnesses related to or connected with the complainant as referred to below. The complainant is referred to simply as the complainant.

PROSECUTION EVIDENCE

  1. During her opening, the Prosecutor tendered, by consent, photographs and sketch maps of the two houses in which the offences are alleged to have occurred. A medical report by Dr Falahola Fuka was tendered during her evidence, without objection.
  2. After speaking to her written opening, the Prosecutor called the complainant and three other witnesses.

Complainant

  1. The following is a summary of the complainant’s evidence, which she gave in English.
  2. She was 14 years of age at the time of giving her evidence. She is the eldest of the children in her family. She was born in November 2007, in Fiji. Her mother is Fijian and her father, the accused, is Tongan. While they were together, the family lived in Fiji, then moved to New Zealand for seven years. The complainant described her relationship with her father during those early years as ‘distant living’ as he was usually busy with work, leaving early in the mornings and returning home late at night. The complainant, her mother and siblings then moved to Tonga while the accused remained in New Zealand for work, through which he financially supported his then wife and children.
  3. In October 2019, the complainant, her mother and siblings moved from Tongatapu to Vava'u and the accused left New Zealand and joined them. On 2 December 2019, the family moved to Vaipua.
  4. The complainant described the relationship between her parents as ‘constant fighting’, ‘day and night’. She recounted instances of the accused physically abusing her mother and that when he tried to fight with her, the complainant and her siblings tried to protect their mother. She even said the accused ‘tried to kill her mother’. She gave further examples such as while they were sleeping, the accused would drag the mother out of the bedroom and lock her in the kitchen. The accused constantly verbally and physically abused the mother to make her give in to him. On one occasion, he locked the mother out on the second storey of their house and showed her a rope, by which, according to the complainant, the accused was intimating to the mother that she should jump. At night, he would take her mother’s clothes off and the mother would try to fight him. The accused would call the mother a ‘bitch’ and tell her to ‘shut up’. Whenever the complainant tried to talk to her Mum, the accused would come and listen and try to stop them talking. Even when she went to school, she couldn’t contact her Mum, as the accused ‘was everywhere’.
  5. As a result of the constant abuse, the complainant said that her mother ‘got tired’. So, in July 2020, the mother left the family home and moved back to Tongatapu. She told the accused that she was going for a break. She told the complainant and her next youngest sister that she was going to get help for them. The complainant said that they were ‘still waiting’. She explained that her mother was unable to find help because the accused was constantly ‘surveilling’ them. And so, her mother had to leave.
  6. The complainant then described her relationship with her father during more recent years. While he was in New Zealand, she said he ‘hardly came by’. When he did return in 2019, after some four years apart, she said their relationship was still distant and that her father ‘felt like a stranger’ to her. She called him either Dad or by his first name. He used to call her by her middle name or an abbreviation of her first name. But after the mother left, the accused started calling the complainant ‘babe’ and ‘hun’ (short for honey), which made her uncomfortable.
  7. In relation to count one, in January 2020, when the family were still living at Vaipua, between 7 and 8 pm, the complainant was taking a shower. She heard the accused banging on the door to open it, saying that he needed to use the toilet. He used to walk in on her mother when she was in the bathroom too, but he had not previously done so when the complainant was in the bathroom. The complainant tried to hurry up. She heard the door open. She grabbed her towel but was only able to partly cover herself. The accused blocked her from leaving the bathroom. She felt uncomfortable. She was standing next to a bucket of dirty clothes. He reached for the bucket. As he did, the accused ran his hand down her left side to her buttocks and thigh. She described the speed of his touch as ‘neither fast or slow’. She denied any suggestion that it might have been accidental because the accused used his right hand, whereas she was on his left, so he could have just grabbed the bucket with his left hand if that’s what he wanted.
  8. When the accused grabbed the bucket, the complainant pushed past and screamed for her Mum repeatedly and was crying. She ran into the adjacent bedroom where her two sisters were on a bed. She asked her sisters where their mother was. They said she was in the kitchen. About five minutes later, the accused came out of the bathroom. The complainant did not hear the toilet flush. The door was open, no one was using it. The accused walked past with the bucket of clothes and went outside. The complainant quickly dressed before anything else happened. Her mother asked her what happened. The complainant told her that the accused came into the shower area while she was naked but that she was able to cover her front. She did not explain any more to her mother because she knew that if she had, her mother would have confronted the accused and then they’d fight. She was also conscious of the accused often telling her that their mother would leave because of her and that her mother would then suffer. Her mother was also under a lot of stress and abuse at the hands of the accused.
  9. However, the mother found out about what happened in the bathroom through the complainant’s next youngest sister. The mother questioned the accused and shouted at him, asking him why he was in the bathroom. She told him that the complainant was a growing teenager, that he should not have gone in the bathroom and that it had made the complainant feel uncomfortable.
  10. The complainant then said that there were three to five other occasions, while her mother was still living with them, on which the accused touched the complainant’s thigh, ‘butt’ and breasts. She did not tell her mother about those times because it would cause the parents to fight, and the accused had often scared the complainant by telling her she was the blame for everything wrong in their family. After her mother left, the accused constantly touched the complainant’s thigh and butt area, at both Vaipua and ‘Utulangivaka. She was unable to estimate the number of occasions other than to say ‘it was a lot’.
  11. In relation to count 2, in late October 2020, the accused and the children moved to ‘Utulangivaka. The complainant gave the following example of the other touching incidents. In or about January or February 2021, one night around 10 pm, she asked to use the accused’s phone. She asked him whether there was any credit in his account so that she could top up the data. The accused was lying on a bed.[1] He called the complainant, who was in the kitchen walking toward the living room, to come to him so he could check the phone. The accused did not want the complainant communicating with her mother.
  12. The accused told the complainant to sit on the bed where he was lying on his right side. She sat with her back facing the accused’s stomach. He told her to lie down with him, saying “come baby, sleep with daddy tonight” and to let her younger siblings sleep in the living room. The complainant feigned that her back was aching as she was scared to lie down next to him because of the past incidents in Vaipua, referred to above. She felt she had to act like it was ok because her mother wasn’t there, but inside she was ‘shaking and crumbling’ and did not want to go near him. The accused then moved closer. The complainant felt his penis pushing hard against her lower back just above her buttocks. She was shocked. She was about to stand up to go to sleep in the living room when the accused grabbed her and told her to sit down on the bed. She sat down. She was scared. The accused kept telling her to lie down. She kept saying that her back hurt. When he then tried to push her, he touched her left shoulder and breast.
  13. The complainant was able to play games on the accused’s phone until he fell asleep. He was holding her with his left hand. Once he fell asleep, she said she was going to the toilet, stood up and went to the living room and fell asleep. By then, it was about 2 am.
  14. In relation to count 3, the complainant gave evidence that one weekend night during the school break between December 2020 and January 2021, she was sleeping in the living room on a bed by herself.[2] Her siblings were sleeping on another bed together. At around 10 pm, she awoke. It was completely dark, which was not normal because as there were bushes around that part of the house, the accused usually left lights on the adjacent verandah area turned on as well as those in the kitchen (although not all had bulbs).
  15. She was lying on her back, with her hands by her side. She felt her pants and underwear halfway down her legs. She felt that her legs were apart and there was weight on the lower part of her body, like someone was on top of her. She then felt what she described as a ‘penis poking inside her vagina’. She said she ‘knew’ it was a penis because it was ‘bigger than fingers’ and from the size and shape of it. She could only see a large shadow in front of her. She did not recall feeling any hands on any part of her body. She tried to move her body to stop what was being done to her, but she felt numb, as if she was paralysed. After she felt the penis ‘poke’ inside her a few times, she felt a ‘black cloud come over her’ and she ‘blacked out’.
  16. The complainant was asked further about the identity of the black shadowy figure. She described the figure as a ‘big male’. When asked who it could have been, the complainant said that it could only have been the accused because when they moved to the ‘Utulangivaka residence, the only other males who came to the house were ‘short and skinny’.
  17. The complainant said that the person on top of her did not say anything, but she remembered a scent which she described as a ‘powdery smell’, like a chemical. She had smelt a similar scent before when she had been curiously ‘checking out’ her father’s room where he had a ‘lot of stuff’. Amongst his things, the complainant found a container like a first aid kit which contained lots of different pills and condoms. She smelt a similar scent coming from the kit. On that occasion, the accused suddenly entered the room, took the kit off her and told her to get out. The complainant also recounted the accused at that time having a container marked whey protein powder. However, she described the contents as ‘not smelling good’, that it ‘smelt dark’ and ‘tasted weird’. She thought it had expired, like most of the ‘stuff ‘in their house.
  18. When she woke the next morning around 7 am, the complainant felt that she needed to go to the toilet. As she stood up, she felt pain in her inner thighs, buttocks and back area. She walked to the bathroom and as she pulled down her pants, she saw a white mucous-like substance on her underpants and vagina. She then thought it was just part of puberty.
  19. In relation to count four, on a Saturday in the second or third week of April 2021, at around 9 pm, the complainant telephoned her mother. She was so happy to hear her mother’s voice that she cried. She told her mother that earlier that week, the accused had gone to Tongatapu to see his lawyer. The complainant was scared that the accused would look for her mother and do something to her. She told her mother that she and her siblings were staying with a family from church but who were not treating them ‘too well’ and that it was hard to live without her. Her mother told the complainant it was ok, that she had been able to get help and that she would be flying to Vava'u the following week. The call did not last long because the complainant could hear someone coming.
  20. On the following Thursday (in the last week of April 2021), the mother arrived at the complainant’s school.
  21. The accused returned to Vava'u around the first or second week of May 2021. On the evening of 9 May 2021, which was Mothers’ Day, the accused came straight from the wharf to where the complainant and her siblings were staying with their mother and took the complainant, one of her sisters and their young brother to spend the night with him.
  22. Once they returned to his house, the accused said he wanted to talk with the complainant and her sister in the living room. He asked the complainant why she had spoken to her mum and a counsellor about her stay with him. The accused was shouting and screaming at them. His voice and face were ‘scary’. The complainant and her sister started to cry. She told the accused not to scream at them. The complainant was sitting on a bed in the living room. The accused was sitting on a fold out couch.[3] He told the complainant to sit next to him. He kept shouting and getting angrier. The other children were in the living room sitting on the floor playing games on a tablet. The complainant felt that if she didn’t sit with him, he would beat her. So, she sat next to him at the other end of the couch. The accused said he wanted to apologise. He then moved closer and started rubbing the complainant’s thighs. She put a cushion on her lap so he wouldn’t touch her. The accused said he was sorry for shouting and asked her to forgive him. He then told the complainant to give him a kiss. He then kissed her neck two or three times close to her chest. She then went back to her bed and tried to calm down by playing a few games. Around midnight, she spoke with her siblings and told them that nothing would happen to them because their mother was coming.
  23. The complainant was then asked about whether she had told anyone about any of the above incidents. She said she was scared to say anything because she felt she would get into trouble. Notwithstanding, she told her next youngest sister about what happened on the bed with the phone but did not go into detail. She also said that when she and her best friend at school (referred to below by the pseudonym ‘Julia’) were talking about a movie involving a father and his daughter, she suddenly told her friend that ‘her father nearly raped’ her. By that stage, she couldn’t concentrate on her studies and needed ‘to let it out’. Although she confirmed in court that the rape had occurred, she explained that she said ‘nearly’ to her friend because she felt that if she had said that she had been raped, she would be regarded as a victim at her school, and as a result, ‘would be destroyed in her social circle’. She added that by then, she ‘hated socialising’ and so what she said to her friend was ‘just to be safe in case it got out’. She also knew that the accused had relationships with multiple teachers at her school so she was worried that if what her father did to her got out, she ‘would be gone’. The complainant said that once she provided details of what happened to other adults (referred to below), some of the teachers told the accused. A teacher by the name of ‘Felice’ told her she could not complain because the accused had connections with the police in Vava'u, so she had to find the right time to ‘let it out’.
  24. On Sunday, 2 May 2021, before the accused returned to Vava'u and the complainant and her siblings were still staying with their mother, a counsellor from the women’s crisis centre by the name of ‘Sita’, whom the mother had contacted, visited them around 9 or 10 am. The complainant asked to talk with Sita. Her mother and siblings went outside. The complainant told Sita about the several occasions the accused had touched her thighs, buttocks and breasts, but did not go into further details. Sita counselled her and calmed her down.
  25. On 18 May 2021, Sita, their mother and the youngest child arrived at the complainant’s school and collected the complainant and her other siblings. Once near the hospital, they talked. Sita told them that she had received information from colleagues in Tongatapu that the accused had filed something in the court against the mother and that he would be seeking custody of them. Therefore, Sita told them to get ready because it ‘might be the last time they see their mother’. The complainant cried. Sita took the complainant out of the car, told her to calm down and to ‘tell her everything’. The complainant then told Sita the details of the incident in the bathroom. Sita took the complainant to the police to make a statement. That evening, around 6 pm, an officer from the domestic violence department took the complainant’s statement.
  26. On the following Thursday, the complainant was taken by her mother and two police officers from school to the pregnancy ward at the Vava'u hospital for a medical examination. She was examined in the delivery room where she told two doctors, a male and a female, ‘what had happened to her’ and she answered their questions. She was then taken home.
  27. The next Friday, the complainant was flown to Tongatapu with a counsellor and a police officer. On the Saturday, she was further examined at the Vaiola Hospital.
  28. Often, in cases where a witness gives very detailed evidence such as that given by the complainant here, a cross-examiner will try to focus in on those details in an effort to expose any internal inconsistencies, inherent improbabilities, or conflicts with any objective, independent evidence of that given, or to be given, by other witnesses. Here, Mr Tatafu took a different approach.
  29. He asked the complainant two questions. Firstly, he put to the complainant that the police diary (not in evidence) recorded the first doctor at the Vava'u hospital as having found her hymen still intact. The complainant remonstrated that she had not been examined properly there and that the medical staff had not told her anything. She had to ask her mother and her counsellor about the result of that examination.
  30. Secondly, Mr Tatafu put to the complainant that he would call three ladies, who resided with the complainant at ‘Utulangivaka, to give evidence that the accused did not assault or rape the complainant. Mr Tatafu did not identify those prospective witnesses or the period during which they resided with the complainant. I disallowed the question as being unfair and unhelpful. Mr Tatafu did not seek to rephrase it.

Complainant’s mother - ‘Robyn’

  1. The following is a summary of the evidence given by the complainant’s mother, also in English. For the reasons stated above, she will be referred to by the pseudonym ‘Robyn’.
  2. Robyn was married to the accused for 13 years. They were divorced last year. She has four children. She described the relationship between the accused and the complainant as ‘not close’. She recounted the years of the family living in Fiji, then moving to New Zealand and then to Tonga, as per the complainant’s evidence. She also recounted constant fighting between her and the accused during their marriage and that the accused had ‘abused’ her and their children. As a result, she eventually sought help from a women’s crisis centre. She and the accused then separated. As she was not then ‘financially stable’, and is of Fijian nationality, she needed to find her own independence. Therefore, when she left, the children had to stay with the accused.
  3. The complainant told Robyn that the accused was always ‘growling and yelling’ at the children, that he blamed them for her ‘walking out’ on the family and that the children were ‘scared of him’ and constantly having to be cautious about what they said around him.
  4. In relation to count 1, her second eldest daughter told Robyn that the accused went into the bathroom when the complainant was in there and that she came out crying. Robyn asked the complainant what happened. She described the complainant as crying and that she could only nod. Eventually, the complainant told her that she was able to cover her front with a towel. Robyn then confronted the accused and they started fighting. The accused told her he went into the bathroom to get the dirty clothes. She was not sure whether he had the clothes with him when she confronted him. Their argument ‘got out of hand’ and the accused started yelling at the girls.
  5. In early February 2021, the accused called Robyn and apologised, and said that he ‘needed to move on’. Two weeks later, he ‘blocked her’ from speaking with the children.
  6. On 24 April 2021, the complainant called Robyn to tell her that the accused was on his way to Tongatapu to see his lawyer. The complainant also told her that she and the other children were staying with ‘Ana, who was not family, and that they were being treated badly by ‘Ana and her children. The complainant then asked her mother to ‘please come to Vava'u’.
  7. So, on 29 April 2021, Robyn travelled to Vava'u. She went to the police and asked if she could see her children. The police told her that as she had ‘50/50 rights’, she could go to their school and see the children. She then went to the school and collected the children. It was an emotional reunion. She then received a call from the accused who was angry because she had taken the children. She told him that she was not taking them away. In her evidence, she said she wanted to talk to the complainant about what had happened.
  8. The accused returned to Vava'u and tried to take the children off Robyn. The complainant told Robyn that she would have to go with the accused and the younger children so that if anything happened to the youngest one, the complainant would be there.
  9. The complainant returned to Robyn the next day and told her that the accused was angry at her for calling her mother.
  10. Robyn then sought help from the police domestic violence unit. She met the accused there and they spoke about the children. At that time, Robyn was six months pregnant. She was due to return to Tongatapu to give birth in July. She ended up staying at accommodation provided by the Salvation Army to be able to spend time with the children.
  11. On a Saturday in May 2021 (the date or relative proximity to other events while Robyn was back in Vava'u were not stated), the complainant told Robyn that the area from her abdomen to her ‘privates’ was painful. The complainant confirmed that she was not menstruating, but that she had difficulty walking. Robyn inspected the complainant’s vagina and found it to be swollen and discharging pus and blood. The complainant was taken to the hospital. They were told to return at 7 pm when the hospital opened. When she was seen, the complainant was prescribed antibiotics. She was not physically examined.
  12. At that time, the accused came for the complainant. Robyn told him that the complainant was not well and that she could not walk properly. The accused argued with Robyn and threatened her before leaving with the other children.
  13. On 18 May 2021, Robyn received a call from her crisis centre counsellor, who told her to ‘get the kids together’ because the counsellor wanted to talk with them. Robyn then collected the children from school. When they met with the counsellor, she told them that the accused was getting a court order to keep Robyn from seeing the children and so it ‘might be the last time’ she sees them. The complainant started crying. The counsellor then took the complainant outside to talk. When they came back in, the counsellor told Robyn that they needed to go to the police.
  14. That evening, the complainant was interviewed by police. That was when Robyn found out the complainant had been ‘molested’. The next day, Robyn returned to the police station to give her statement. The police officer who took the complainant’s statement told Robyn that her daughter ‘had been raped’.
  15. In yet another demonstration of extreme brevity, Mr Tatafu also asked Robyn only two questions. In the first, he put to her that the problems in her marriage to the accused were due to her having an extra-marital affair. She agreed that she’d had an affair but went on to explain that there had been problems with their marriage well before that, including the accused having an affair when he was living in New Zealand.
  16. In his second question, Mr Tatafu asked the mother whether she was in Vava'u at the time of incidents alleged by the complainant. As she had already explained in her evidence in chief, the mother confirmed that she was in Vava'u at the time of the incident in Vaipua (count 1) but not for the others which occurred when the accused and the children were living in ‘Utulangivaka.

Dr Falahola Fuka

  1. Dr Fuka has been a medical officer since 2007. She has a Master’s degree in obstetrics and gynaecology and specialises in women’s health.
  2. Dr Fuka conducted a medical examination of the complainant at the Vaiola Hospital in Tongatapu and recorded the results of the examination and her discussions with the complainant in a report dated 25 May 2021.[4] Relevantly, her examination of the complainant’s genitalia revealed no signs of recent injury, although her hymen was not intact.
  3. Also in her report, Dr Fuka recorded in a section entitled “History”, what the complainant told her about the alleged rape and indecent assaults. Some details were recorded in respect of the rape which were substantially consistent with the complainant’s evidence at trial.
  4. In her conclusion, Dr Fuka opined:
“Given the nature of the allegations and the examination findings there were no strong evidence of recent injuries however due to the timing factor, negative findings does not preclude that the incident did not occur. However, the status of the hymen indicates previous vaginal penetration.”
  1. Dr Fuka was not cross-examined.

Complainant’s friend – ‘Julia’

  1. Julia (a pseudonym) is 13 years of age and described herself as the complainant’s friend. They both attended Vava'u High School. She gave the following evidence.
  2. On a day in the first term of 2021, Julia and the complainant were ‘hanging out under a tree’ talking about various things. Then, the complainant ‘told her a secret’. She told Julia that every time her parents fought, she would take her siblings outside so they would not hear or see what was going on. One night, her parents fought, and the next day, her mother was gone. The complainant found out later that her mother had gone to Tongatapu.
  3. The complainant then told Julia that one day, after showering, ‘her father tried to rape her’. Julia asked the complainant what rape meant. The complainant explained rape as ‘when someone wants to have sex with you, but you don’t want to’. Julia asked the complainant what did she do. The complainant said that she kicked her father and ran outside and screamed and took her siblings. When her siblings asked her why she was being like that, the complainant told them that she had been ‘bitten by a centipede’. The complainant told Julia she did not want her siblings to know what had happened. After that, she did not want to go near her father. She hated him. She said he called her ‘babe’, but not when her mother was still there.
  4. Julia was asked to describe the complainant’s appearance when she was telling Julia the above. She said the complainant looked ‘like she was going to cry but didn’t want to cry’.
  5. Mr Tatafu put to Julia that the only reason the complainant was crying in ‘the story’ was that a centipede had bitten her. Julia did not agree.

DEFENCE EVIDENCE

  1. Upon the close of the Prosecution case, Mr Tatafu opened his by announcing that he would be calling the accused and two other witnesses, including the doctor in Vava'u who first examined the complainant.
  2. As the case unfolded, that doctor was not called, and the remaining witness was but one of the ‘three ladies’ Mr Tatafu told the complainant he would be calling to deny her complaints.

Accused

  1. The accused is 45 years of age. He works in engineering. He also gave his evidence mostly in English. The following is a summary of his evidence.
  2. He confirmed the evidence of the complainant and Robyn about his marriage to her and the family’s movements up to 2019. He explained the decision for him to remain in New Zealand as being due to a ‘bit of a problem financially’ and that it was better for Robyn and the children to move to Tonga to live with his mother while he worked in New Zealand to save money before joining them. He later explained that he did not travel to Tonga to visit them during the ensuing four to five years because he was unable to earn enough to keep up with their needs. He said that Robyn had a ‘falling out’ with his mother as she not satisfied with how they were living. Robyn and the children then moved out and rented a residence in Nuku'alofa. That resulted in what the accused described as being a ‘very difficult time’ for him, because he had to pay their rent and send money weekly which was a minimum of $1,500. There was no documentary evidence to support that, nor was it ever put to Robyn.
  3. He then heard that Robyn was having an affair with a neighbour in Nuku'alofa. So, he decided to return to Tonga because he missed his children. Notwithstanding his earlier evidence of financial hardship in supporting his family, by the time he left New Zealand to re-join his family in Tonga, he had (somehow) managed to ‘save up some money’.
  4. The accused returned to Tonga on 19 October 2019. He found where Robyn and the children were living. After a conversation, they decided to move to Vava'u, and two weeks later, they did.
  5. The accused thought that his marriage ‘would have settled by then’. However, he said there were ‘still so many problems’ because Robyn continued contact with the man with whom she had an affair (referred to hereinafter as ‘the boyfriend’). On a number of occasions during his evidence, the accused described how whenever he came home from work, he would find Robyn lying around on a video call with her boyfriend. That was not put to Robyn.
  6. After the family arrived in Vava'u, they eventually moved to a house in Vaipua.
  7. In relation to count 1, the accused said that after work one day, when he was tired, he got out of his vehicle and heard Robyn talking to someone on the phone. He hurried to see who she was talking to. He initially said that the complainant and his second eldest daughter were in the bathroom. The entrance to the bathroom was adjacent to where Robyn was lying on a bed talking on her phone. He therefore pretended to want to use the bathroom in order to go past where Robyn was lying so that he could see on her phone who she was talking to. As he went past, Robyn yelled at him not to go into the bathroom. He entered the bathroom anyway. The shower was running. However, the accused testified that he did not see either of the girls in the shower. That evidence was not put to the complainant. Frances yelled at him again. The accused asked her why she was stopping him from going into the bathroom ‘where his daughter was’ when she was talking to another man. They then fought and the accused went to the kitchen.
  8. The accused denied ‘doing anything’ to the complainant on that occasion.
  9. In relation to count 3, the accused confirmed that in July 2020, Robyn left and moved to Tongatapu, and he and the children ended up moving to ‘Utulangivaka. The accused described the period thereafter, on more than one occasion, as ‘the most difficult in his life’. He explained that because his wife had left him with the children, every Monday to Friday he had to wake up at 4 am, then go to church at 5 am, prepare breakfast at 6 am, ready the children’s school uniforms and then take them to school. He also had his own auto mechanic business which he operated from home and by mobile service. He started work around 9 am. He would then collect the children from school in the afternoon, prepare dinner and make sure the children were bathed and that they did their homework. As a result, he only got ‘three or four hours’ sleep per night. He had no other help. He was very tired. None of that was put to the complainant.
  10. Notwithstanding the above difficulties, the accused described his relationship with all his children during the period they lived together as ‘very loving’ and that there was ‘nothing wrong’. He worked hard to provide for all their needs and wants and he regularly told them that he loved them such as when dropping them off at school each day. When expressing that affection, he used terms of endearment when referring to his daughters such as ‘baby girl’ and to his young son as ‘sunny boy’ to make them ‘feel special’.
  11. Between December 2020 and February / March 2021, the two eldest daughters of the accused’s cousin, ‘Ana, one aged 18 (referred to below by the pseudonym ‘Hinga’), the other 14, came to live with the accused to help with the children.
  12. The accused’s evidence in chief did not proceed further with any detailed accounts in relation to the remaining three charges but rested on a general denial in relation to all of them.
  13. Instead, the accused continued with the events concerning he and Robyn leading up to his arrest. He commenced by saying that he ‘did not know why this thing happened’. All he wanted, he said, was to get a divorce, ‘to let it go’ and ‘to continue his life’. So, he brought ‘Ana to stay with the children while he travelled to Tongatapu to commence divorce proceedings.
  14. The accused then said that ‘someone who hates him’ contacted Robyn and told her that he had left the children alone. With that, Robyn travelled to Vava'u and ‘took the children’. When asked who hated him, the accused returned to his frequent imploration to the effect that ‘never in a hundred years’ could he do something to the complainant as alleged, that he was the one who usually comforted her, and that even though Robyn and the children ‘did what they did to him’, he still worked to keep them. Eventually, when asked again to identify the person or persons who hated him, the accused simply said that they were people who did not agree that he could look after his children.
  15. The accused went to Tongatapu in the last week of February 2021 and returned to Vava'u in the first week of May 2021. In that time, Robyn had already ‘taken’ the children. He said he applied to the Court for an order that they be returned to him. The Court in Nuku'alofa issued a letter. However, the accused said he did not know what was stated in the letter because he did not read it. In any event, it was when Robyn received the letter, that, according to the accused, these allegations were made.
  16. In the meantime, he managed to ‘take his children back’. But when the matter came before the Magistrates Court in Vava'u, the Magistrate ordered that Robyn have custody of the children. When asked whether he knew the reason for the Magistrate’s decision, the accused said it was because of the complainant’s allegations of abuse.
  17. On 21 May 2021, the accused was arrested and charged.
  18. During his comparatively lengthy cross-examination, the accused gave the following further evidence, in summary:
  19. In relation to count 1, the accused was asked about his stated intention of walking past Robyn so that he could see who she was talking to. As that suggested that she had the phone on speaker to enable anyone such as the accused to see the number, or the face (in the case of a video call) of the caller on the screen, the accused said that he did not know the boyfriend’s voice because on previous occasions Robyn used earphones during her calls and that a male voice could have been her brother or other relative. None of that was put to Robyn.
  20. In relation to count 2:
  21. In relation to count 3:
  22. In relation to count 4:
  23. The accused denied having had any other relationships when he was living with Robyn up to 2021. He also denied her evidence that he had an affair when he was living in New Zealand. He added that when he returned from New Zealand in 2019 to find that Robyn was continuing contact with her boyfriend, he and Robyn did not any sexual relations. While he agreed that they had problems with their marriage before then, he said that the ‘only big problem’ was Robyn’s affair. He denied ever trying to have sex with her, and that when she said ‘no’, he ‘left it’. He reiterated that from the time Robyn left in July 2020 until February 2021, he had no sexual relationships whatsoever. He denied the Prosecutor’s suggestion that, in those circumstances, he was ‘sexually frustrated’ and that he took that frustration out on the complainant. He said that most of the time, he was busy working, and when he and Robyn fought, and he got angry, he did not feel like sex, and that he became ‘used to it’.
  24. The accused then said that he blamed Robyn for all this. He said that when she came back to Vava'u pregnant, and tried to take the children, the only way for her to get custody was by ‘making up these charges’. When it was put to him that Robyn had not wanted custody of the children because she did not have the financial means to look after them, and that she had only travelled to Vava'u because the complainant rang her and said that she and her siblings were being mistreated by ‘Ana, the accused said that was untrue. He added that all he had wanted was for her to ‘settle in a place’ and then he would give her the children. Until then, she was ‘not fit to look after them’ and he did not want her staying with his cousin.
  25. When asked why Robyn and the complainant would make all this up and obtain a protection order when, according to the accused, he and Robyn had agreed that the children would live with her but that he would take them to school and pick them up each day, and that that arrangement appeared to be working fine, the accused said that Robyn had ‘brainwashed’ the complainant.
  26. The accused was not re-examined.

Accused’s niece – ‘Hinga’

  1. As mentioned above, only one of the two older girls who lived with the accused for a time, the eldest, gave evidence. She is referred to by the pseudonym ‘Hinga’.
  2. Hinga is 18 years of age and is in Form 6 at school. She gave evidence that in January / February 2021, she and her younger sister moved to the accused’s residence in ‘Utulangikava, with his children.
  3. When she was asked to explain the ‘living situation’ with the accused, Hinga said:
“All I know is his love for us... when we woke, he’d prepare breakfast and for school ... after school, he prepared meals ... how much love he had for us, how much he cared for us.”
  1. She confirmed that the accused never mistreated her, her sister or his children when they lived together. He told them all to ‘live in peace’.
  2. During her cross-examination, Hinga confirmed that the reason she and her sister went to live with the accused was to help his children with school. As such, she also confirmed that they moved in when school was about to start in 2021, which was the last week of January 2021. Hinga also said that during the time they lived at the accused’s house, she and her sister returned to their mother on Fridays and Saturdays, about five times.
  3. When the accused went to Tongatapu at the end of February 2021, her mother, ‘Ana, stayed with the accused’s children at ‘Utulangivaka.

SUBMISSIONS

  1. Both counsel provided written closing submissions. Each summarized the evidence in support of their respective cases. The following summaries are distilled from those submissions.

Prosecution

  1. In relation to count 1:
  2. In relation to count 2:
  3. In relation to count 3:
  4. In relation to count 4:
  5. The Prosecution advanced the following further ‘miscellaneous’ submissions:
  6. For those reasons, the Prosecution submitted that it had proven the elements of each count beyond reasonable doubt.

Defence

  1. Mr Tatafu submitted:

CONSIDERATION

  1. To secure a conviction on the subject charges, or any of them, the Prosecution bears the onus, at all times, of proving the elements of the charges beyond reasonable doubt.
  2. The elements of the serious indecent assault charges are that on the dates and places alleged:
  3. An assault (meaning deliberate physical contact) is indecent if right-minded persons would consider the conduct so offensive to contemporary standards of modesty and privacy as to be indecent, that is, it is objectively capable of being regarded as indecent: R v Li [2006] Tonga LR 93.[9]
  4. Section 124(5) of the Act provides that a person under the age of 15 years cannot in law give any consent which would prevent an act being an indecent assault.
  5. The elements of the rape charge are that on the date and place alleged:
  6. Carnal knowledge is a legal term for sexual intercourse. The offence is deemed complete upon proof of penetration: Kaitamaki v R [1984] 2 All ER 435 (PC).[10] Proof of the emission of seed is not required: s 140 of the Act.
  7. While the indictment refers to the complainant’s lack of consent, s 118(1) of the Act defines that term to include, relevantly, ‘against her will’ or where the complainant is ‘in a state of insensibility (whether due to sleep, intoxication or any other cause)’.[11] Subsection (2) provides that a man commits rape if at the time of sexual intercourse with a woman he knows that she does not consent to the intercourse or he is reckless as to whether she consents to it. Curiously, s 118 does not contain a provision specifying that below a certain age, either a complainant is deemed incapable of giving consent such as that found in s 124(5) (for the lesser offence of indecent assault on a young person under 15 years) or that her consent is no defence to the charge as found in s 125(2) (indecent assault on a child under 12 years) and s 123 (in relation to carnal knowledge or attempted carnal knowledge of a person under 15 years or 12 years as proscribed by ss 121 and 122). It would appear therefore that for rape, any consideration of the ability of a young girl to consent to sexual intercourse is left to ss 118(3) which inquires as to the presence or absence of reasonable grounds for an accused’s belief that the complainant was consenting. A deeming provision such as s 124(5) would provide greater certainty.
  8. Section 11 of the Evidence Act is also applicable. Subsection (1) provides, in terms, that in proceedings for rape or other sexual offences, evidence of fresh or recent complaint may be given to corroborate a complainant’s evidence by showing that her conduct was consistent with her evidence at trial. However, pursuant to subsection (2), corroboration of a complainant's evidence is not necessary for the accused to be convicted. Both counsel agreed that the corroboration requirements of s 116 of the Evidence Act did not apply.
  9. 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,[12] 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.[13]
  10. There is a further need for caution in a case such as the present. Within the criminal law, there are few more difficult cases than those involving the word of a child against that of her parent. That is especially so when the complaints have arisen against the backdrop of a broken home and ongoing enmity between the adults, and where the young age of the complainant will often necessarily render her highly impressionable and emotionally immature.
  11. The propensity for a child of a split marriage, consciously or unconsciously, to want to support one parent or punish or the other, through the making of allegations of abuse such as the present or to orchestrate the child’s desired living arrangements, is a psychological phenomenon encountered all too often within the community and, on occasion, before the courts. Given the seriousness of the criminal sanctions that apply here, particularly on the charge of rape, I have endeavoured to remain especially astute during the trial and upon review of the evidence to detect any partisan sentiment in the complainant’s evidence of the kind described above or any other basis for concluding that by reason, for example, of her devotion to her mother, the complainant’s allegations are the product of bias against her father, or that her recollections have been tainted or for any other reason her evidence should be regarded as unreliable.
  12. I turn first to consider the evidence of and on behalf of the accused.
  13. For the following reasons, I found the accused an unimpressive witness, whose evidence, in material respects, was inconsistent, contradicted (by seemingly independent evidence) and implausible, and therefore, unreliable.
  14. Firstly, throughout his evidence, the accused sought to depict himself as the victim, to wit:
  15. Secondly, and by comparison to the ‘victim’ mentality displayed above, there were times in his evidence, both in the content of it and manner in which he gave it, when the accused presented more as paranoid and controlling in relation to his ex-wife and children. For example:

all portrayed a man whose personality and behaviour were consistent with that described by the complainant and her mother. That, in turn, made it easier to prefer their evidence where it was otherwise credible and reliable.

  1. Thirdly, I found it odd that the accused was able to recall in some detail the occasions on which the complainant had alleged that he indecently assaulted her, but he gave very little, if any, detailed evidence of the time or events concerning the complainant’s allegation of rape. That difference suggested that there must have been something significant in his dealings with the complainant on the three other occasions for them to have etched a place in his memory. His evidence in relation to the first charge about not seeing the complainant in the bathroom, coupled with the reason he gave for entering the bathroom when he knew she was in there was unconvincing. So too was his evidence about the other two occasions where, by his account, his only interaction with the complainant was to apologise to her and to comfort her.
  2. Fourthly, I found the accused’s asserted belief that the complainant had made up the allegations to assist her mother to obtain custody of the children highly implausible for three reasons:
  3. Fifthly, the only apparent positive defence raised by the accused in relation to count 3, the rape, was his evidence about Hinga and her sister coming to live with him and the children between December 2020 and February / March 2021 when the date range for the charge was December 2020 to January 2021. It was clear that that was an attempt to demonstrate that as there were other people in the house during that time, any rape of the complainant (by him, at least) could not have occurred. However, the accused’s evidence was contradicted by Hinga’s that she and her sister did not move in until the last week of January 2021. The accused’s evidence about the purpose of them staying was also inconsistent. He initially referred to the older girls coming to help him with the tasks associated with his children going to school. However, once it was brought to his attention that for most of December and January, the children were on school holidays, the accused changed tack by attributing the purpose of the older girls’ staying with them solely to ‘youth group’.
  4. Sixthly, the accused’s initial attempts to demonstrate the contrary gave way eventually to his concession that he was the only large male who slept in his house during the period of the alleged rape.
  5. Finally, and perhaps most importantly, the reason for recording in the above summary of the accused’s evidence the repeated references to passages of his evidence not having been put to either the complainant or her mother was to record the extraordinary extent to which the longstanding common law rule in Browne v Dunn[14] had been breached. As discussed recently in R v 'Anitema [2022] TOSC 11, also a rape case, the rule in Browne v Dunn is a general rule of practice by which a cross-examiner is required to 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.[15] The central object of the rule is to secure fairness.[16] 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 by reference to the speeches of Lords Herschell LC and Halsbury:
“[71] The failure to cross examine a witness on a particular topic has legal consequences. [It is]:
‘... 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]...‘... 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 ... 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.” [17]

[emphasis added]

  1. In this case, and in the face of the frequent breaches of the rule, the Prosecutor displayed the restraint referred to recently by the plurality of the High Court of Australia in Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA 36, where 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.”

[emphasis added]

  1. The possible explanations for the accused’s evidence not being put to the complainant or Robyn, as relevant, include that the accused gave his instructions to Mr Tatafu, but who through oversight, failed to put them; or, the accused did not give those instructions to Mr Tatafu prior to trial. In my view, and for the other reasons stated above in this analysis of the accused’s evidence, there were clear indications that significant portions of his evidence were the product of recent invention. Further, the failure of the accused, by his counsel, to challenge the relevant Prosecution witnesses by putting to them the evidence he went onto give, thereby denying them any opportunity to respond to the accused’s many contrary assertions, leads more readily to an acceptance of their evidence.
  2. My clear impression of the only substantive evidence Hinga was asked to give in her evidence in chief, by which she praised all the love shown, etc, by the accused, was that it was staged (i.e. pre-prepared). Not only was it a lengthy statement for a witness who appeared quite reluctant, compared to her subsequent quite terse responses, it only barely engaged with the question asked of her which was about the living arrangements at the house. I infer that it was an attempt to support the accused. Unlike her evidence about when she and her sister started living at the accused’s house (which self-evidently had not been prepared with the accused), I did not find her initial evidence about the accused to be of much assistance.
  3. That unfavourable assessment of the accused and his evidence is, of course, not the end of the matter. I turn now to consider the Prosecution’s evidence and whether it was sufficiently credible and reliable to prove the elements of each count beyond reasonable doubt.
  4. After carefully observing the complainant during her evidence and having reviewed her evidence since, I found her to be an impressive witness. Despite her relatively young age, she presented as intelligent and articulate and demonstrated a clarity of expression and detail in her evidence usually reserved for the more chronologically mature. I also found her demeanour and emotional state during her evidence to be consistent with a young person, in a very formal, adult environment, doing her best to provide complete and accurate information, about difficult events, according to her honest recollections. Further, I did not detect any hint of the complainant seeking to distort or strain her evidence to favour her mother or to harm her father. There was no evidence, nor even a suggestion, that she had in any way colluded with her mother or anyone else involved in reporting these matters or in preparing her evidence for trial. Her accounts were (perhaps unsurprisingly) entirely unchallenged in cross-examination.
  5. I also found nothing in the evidence of Robyn or Julia, or the manner in which they gave it, to doubt the veracity of their accounts. Then again, as neither could directly corroborate the complainant’s accounts, they were very much secondary witnesses in the case. Dr Fuka’s evidence was accepted without challenge.
  6. There was very little in the way of independent, objective or contemporaneous evidence to corroborate the complainant’s accounts. The delay in her eventually coming forward to police is understandable, to a certain extent, given she continued to reside with her father until he went to Tongatapu in February 2021. Her evidence that she apparently did not get along with ‘Ana (who was not called) while being looked after by her, and that ‘Ana is the accused’s cousin, also tends to explain that delay, at least until she called her mother. So too does her unchallenged evidence that she was afraid that if she said anything, she might get into trouble. Even when her mother returned to Vava'u, the complainant did not immediately tell her anything of what she testified here the accused had done.
  7. The turning point appears to have been the involvement of the counsellor (also not called), coinciding with notice that the accused was seeking a court order which was interpreted by the adults who informed the complainant, that if granted, she might not see her mother again. It also coincided with the events the subject of count 4, which the complainant said occurred on 9 May 2021, only days before her complaint was lodged with police and the accused was charged. The opportunity that then presented of having adults around her she could tell was consistent with her evidence early on that her mother had gone to ‘get help’.
  8. Robyn’s evidence of the accused going into the bathroom where the complainant was showering, the complainant crying and her fight with the accused about it later, which the accused did not deny, provides some support for the complainant’s account in relation to count 1, but not in respect of the actual indecent assault itself, only the accused’s opportunity to have committed it.
  9. Similarly, the complainant’s account of telling her sister what happened in relation to count 2 (although not in detail) cannot be regarded as corroborative as the sister was not called.
  10. The unchallenged evidence of Julia that the complainant told her during first term of 2021 that her father ‘nearly’ raped her may be regarded as relatively fresh for the purposes of s 11(1) of the Evidence Act, but again falls short of corroborating count 3. On the other hand, the medical evidence from Dr Fuka, although not recent, did corroborate the complainant’s evidence of penetration. The history recorded in the report, particularly of the rape, was also substantially consistent with the complainant’s evidence at trial.
  11. While the complaint in relation to count 4 may be regarded as fresh or recent, neither the counsellor nor the police officer who took the complaint were called.
  12. Contrary to that suggested by Mr Tatafu’s submission, the lack of fresh or recent complaint in a sexual assault case does not, of itself, automatically militate against acceptance of a complainant’s evidence. Section 11 works only in a positive manner, that is, evidence of fresh complaint may corroborate a complainant’s evidence, not as independent evidence of the truth of the complaint, but by demonstrating that the complainant’s conduct in making the complaint was consistent with her evidence at trial. Nonetheless, failure by a complainant to make a prompt complaint when a reasonable opportunity to do so is presented may be highly probative. Much will depend on any explanation for not having done so, and the credibility of that explanation, both objectively and subjectively, in light of all the established surrounding circumstances at the relevant time.
  13. For the reasons stated thus far, in relation to counts 1, 2 and 4 – the serious indecent assault charges - I have come to the conclusion that I accept the complainant’s unchallenged evidence as credible and reliable and I do not accept the evidence of the accused or his witness (to the extent that Hinga’s evidence was relevant to those counts).
  14. The remaining issue with those charges is whether the touching in each was indecent in the relevant legal sense. There can sometimes be a fine line when considering a parent touching a child between that which may be regarded by community standards to be perfectly acceptable and innocent, and that which is inappropriate and even indecent. The difference will depend on factors such as the age and state of physical development of the child, respective genders and the purpose of or intention in the touching. For instance, a mother rubbing liniment on her 7-year-old daughter’s bare chest for a medical condition may be perfectly innocent, whereas a father rubbing sunscreen on his teenage daughter’s bare chest would obviously be indecent.
  15. In this case, I agree with the Prosecution that the touching in each count, namely, the accused running his hand down the complainant’s bare back, buttocks and thigh; touching her breast when trying to pull her down onto a bed to sleep with him; and rubbing her thighs coupled with kissing her neck near her chest, was indecent. It all had a common salacious element, reflective of moral turpitude, which any reasonable minded person would find offensive to contemporary standards of modesty and privacy. It was also consistent with the names by which the accused addressed the complainant, once her mother had left, which, in my view, were not pure terms of endearment, but rather terms one adult might usually use when expressing romantic feelings or intimate desires towards another.
  16. Section 124 of the Act does not define or distinguish serious from simple indecent assault other than by reference to penalty. In her oral submissions, the Prosecutor referred to the Director of Public Prosecution's General Instructions Number 1 of 2015 which provides that all charges arising from an incident of indecent assault under section 124 (1) of the Criminal Offences Act, shall be charged as simple indecent assault, unless certain features or circumstances or a combination of them exist, including, relevantly, the victim being under the age of 15 years; the victim and offender living in the same residence or being closely related; the accused being more than 18 years old; the accused holding a position of authority over the victim; and the accused being charged with more than one count of serious indecent assault from the same circumstances.
  17. Accordingly, I am satisfied that the Prosecution has proven counts 1, 2 and 4 beyond reasonable doubt.
  18. However, I am unable to say that the same degree of certainty applies in respect of the most serious of the charges, count 3. For the reasons which follow, after carefully scrutinizing the evidence and considering the parties’ submissions, I am compelled to the conclusion that due to inconsistencies, ambiguities and omissions in the Prosecution case, I have been left with a number of reasonable doubts in relation to count 3 which cannot safely or responsibly be reconciled or rationalized on the evidence.
  19. The complainant gave evidence that when she awoke, she felt that her lower garments had been pulled halfway down her legs. That immediately gives rise to a practical question as to how an assailant could then physically position himself between her legs to bear weight on her and penetrate her. In that regard, the complainant added that her legs were apart. In that position, the restriction of her garments for anyone trying to get between her legs becomes even more obvious. At that point in her evidence, the complainant used her hands to gesture what I interpreted as her legs only being partly spread, that is, not all the way to the sides. In her submissions, the Prosecutor interpreted the complainant’s gesture as that her legs were raised up. Mr Tatafu did not venture a view on the issue. As the point was not clarified with the complainant at the time, so that the evidence could be accurately recorded textually, it was left unclear.
  20. So too was the evidence concerning the lighting. The complainant said that it was completely dark when she woke even though usually the accused left a light on the verandah adjacent to where she was sleeping as well as in the kitchen. The complainant did not mention, nor was she asked about, the streetlight referred to by the accused. Putting aside the implications of the rule in Browne v Dunn, discussed above, common experience suggested some substance in the point. As such, it was an issue which the investigating police officers should have considered and examined and of which photographs should have been taken, in both daylight and night-time conditions, showing the relative position of the nearest streetlight to the eastern side of the house where the complainant was sleeping and the degree of illumination from that light given the presence of the shipping container in-between. The photos that were tendered showed that throughout the house, the curtains were of a translucent material which would not have blocked out any light from the streetlight. Accordingly, the complainant’s evidence of complete darkness, so that all she could see was a ‘black shadowy figure’ (i.e. she could not see any facial or other features of the apparent assailant) was left in doubt.
  21. Which brings me to the evidence of identification, such as it was. The complainant’s description of a ‘black shadowy figure’ was necessarily vague and inconclusive. Her belief that the assailant was her father was based on two observations. The first was that he was the only large male in her house during the relevant period. That fact was eventually conceded by the accused. However, that does not preclude the possibility of an intruder, and in that regard, there was no evidence as to whether the house was locked at night or how secure it was. Further, the second was the ‘powdery’ scent or odour the complainant smelled on the assailant. The complainant recalled a similar smell among her father’s first aid kit filled with pills and condoms and from his container of expired protein powder. Apart from the first aid kit, the accused denied the existence of any of the other items. This was another controversy which could have been easily resolved had the investigating police officers identified and photographed the first aid kit and its contents and any container of protein powder. There is little reason to expect that, if they existed, the accused would have disposed of them before the police had a chance to search his house for the simple reason that it was apparent when she gave her evidence, that the first time the complainant had been asked extended questions about the identity of the assailant such as any sounds he made or how he smelled, was in court. The photographs tendered included rooms filled with tools, equipment and all manner of other household goods. Yet, as the Prosecutor accepted, not one depicted either a first aid kit or a cannister of protein powder. As such, I am left in doubt as to their existence and in turn that basis upon which the complainant sought to identify her assailant as being her father. Even though the evidence of him being the only large male in the house at the relevant time was compelling, the court cannot pick and choose which evidence of a complainant it considers is reliable when other evidence or the lack of it points the other way.
  22. The complainant’s evidence that the next morning she found a mucous like substance in her underwear and on her vagina suggests that, at some point, her undergarments were pulled back up. There was no evidence about whether, and if so, when, how or by whom that occurred.
  23. On a related issue, the Prosecutor referred in her submissions to the complainant being in pain at the time of penetration to the point where she blacked out. The Prosecutor also agreed that, in those circumstances, any such penetration was likely to have been the complainant’s first, that is, the loss of her virginity when her hymen was ruptured. However, the complainant was not asked about that. Section 33 of the Evidence Act prohibits a defendant adducing evidence or cross-examining a complainant about any sexual experience other than with the defendant without leave of the Court. But the provision does not prohibit any such evidence being led by the Prosecution in chief. If this incident was the complainant’s first experience of sexual penetration, sufficient to rupture her hymen, then in the normal course of human experience, it may be expected that the next morning when she said she went to the toilet, that she would have found traces of semen (or the mucous like substance described by her) and blood. Such substances would be expected to be found on any bed linen too, but that was never mentioned. In her evidence, the complainant did not mention anything about blood. However, any further consideration of the possible physical indicia of a ruptured hymen ought to have been the subject of expert medical evidence. Dr Fuka was not asked about it. The only relevant medical evidence was that on or about 25 May 2021, some five or so months after the rape was alleged to have occurred, the complainant presented with no recent genital trauma and her hymen was no longer intact. To venture beyond that risks speculation.
  24. Apart from what she found when she went to the toilet, there was no evidence from the complainant about anything else that happened the next day or over the ensuing weeks in terms of any discussions or other interactions with her father (apart from the events of counts 2 and 4), including whether she confronted him about it, or whether she told either of the older girls who came to stay from late January 2021, or ‘Ana, when she came to look after the complainant and her siblings. Moreover, there was no evidence and no explanation as to why the complainant did not tell her mother what had happened to her when she called her mother to warn her about the accused having travelled to Tongatapu and that ‘Ana and her family were mistreating the complainant and her siblings. Arguably, that call was the first opportunity the complainant had to raise the alarm about having been raped. It is reasonable to expect that if the rape occurred, the complainant would have taken that opportunity to inform her mother with a view to her mother getting help, which in a fashion she did in the form of the WCCC counsellor, but not then in respect of a serious complaint of rape. There was then no risk that, if she did, it might lead to her parents fighting as they had in the past because by then, they had been estranged for well over six months. There was also little chance of the complainant getting into trouble with her father because he was in Tongatapu. That lacuna in the evidence gives rise to doubt about how the complainant related with her father, and others, until he went to Tongatapu in February 2021, in circumstances where the complainant now says she believed he raped her.
  25. The earliest complaint by the complainant was to Julia. Whether the complainant’s explanation for telling Julia that her father ‘nearly raped’ or ‘tried to rape’ her is to be regarded as credible or whether it casts doubt on the veracity of her evidence requires examination through the eyes of a 13-year-old schoolgirl, conscious of the potential repercussions within her social circle and her reputation in the wider school community if anyone found out that her father had raped her. It is difficult to fathom the extent to which any such potential stigma might motivate a young girl to downplay the incident, even to her best friend, in order to avoid the risks, perceived or actual, of being socially ostracized or even ridiculed. My impression of the complainant during that part of her evidence was that her reasons were genuine.
  26. However, it was the additional evidence by Julia which is of concern. Her account of the complainant telling her that she kicked the accused away, ran outside screaming after having gathered her siblings and telling them that she was upset because a centipede had bitten her, was not only not referred to by the complainant, but was so fantastically different to the account of the rape she gave in evidence, that the complainant’s account to Julia was either completely imagined by Julia or the complainant’s account to the court was completely imagined by the complainant. I am unable to accept the Prosecution submission that the account by the complainant to Julia may have been referable to ‘another bathroom incident, as there were a lot of times of touching’. The context in which the two girls were talking was clearly the issue of rape. Julia did not mention any other incident of touching. It was prompted by a movie they had watched involving a father and his daughter. By both accounts, the complainant told Julia that her father had nearly raped her. Julia then asked the complainant what the word rape meant (a sign of innocence which would weigh against any suggestion that Julia concocted her evidence or was mistaken about it). Julia then asked what the complainant did next, meaning after her father had tried to rape her. Then, according to Julia, the complainant recounted the story culminating in saying that she’d been bitten by a centipede.
  27. The unfortunate aspect of this evidence is that unlike her reference to having been ‘nearly raped’, the complainant was never asked to confirm whether Julia’s account was accurate and, if so, why the complainant had given it. That again, was another omission in the Prosecution evidence, and in respect of which, once Julia’s evidence had been given, the Prosecution did not seek to have the complainant recalled.
  28. Robyn gave the following evidence (from the transcript) of the complainant being unwell in May 2021 when the accused came to collect the children (for Mothers Day) and of Robyn examining the complainant’s vagina:
“It was sometimes in May my daughter felt sick it was on a Saturday and she was telling me that her stomach and her lower abdomen it was painful. I just thought it was due to menstruation and I told her you already have your menstruation so what’s wrong she said she cannot stand and walk properly. I then told her okay I’ll see so my second older daughter ... took her to the room and laid her down on the floor (inaudible) had the salvation army help and I pulled down her pants and I saw that her vagina was like small and it had (inaudible) and blood[18] and I as a mother was worried I said oh we need to take you to the hospital that was on a Saturday. I took her to hospital but then they said to come back at 7pm the hospital here in Vava’u in the evening. So when we took her to the hospital the doctor prescribed antibiotics for [the complainant] but not say how sick he was. I was shocked when [the accused] came on Saturday and I explained to him please do not take [the complainant] just because she’s got a saw stomach and she cannot walk properly. We had a big argument he was just so mad at me (inaudible) I told him well someone touched her and (inaudible). We had a big argument he just took off with my other children and he said think what would happen to you.”

  1. At first blush, that evidence appeared to be intended to corroborate the complainant’s evidence of the rape. However, when it was pointed out that Robyn’s inspection of the complainant occurred approximately five months after the rape was alleged to have occurred, the Prosecutor conceded, correctly with respect, that it could not be regarded as corroboration of the rape. However, Mrs Kafa-Vainikolo then suggested that Robyn’s observations and the subsequent need for antibiotics may have been consistent with the complainant having contracted a sexually transmitted disease from the rape. There was no evidence from the complainant that she had suffered any symptoms of such a disease during the ensuing months. The fact the complainant was only prescribed antibiotics suggests she may have been suffering from the likes of a urinary tract or yeast infection. In any event, the Prosecutor conceded, again correctly in my view, that without any medical evidence on the issue, and in light of Dr Fuka’s report making no mention of any signs of what Robyn said she observed, any further attempt to rely on Robyn’s evidence to support the complainant’s allegation of rape would likely lead the Court to again stray into speculation.
  2. Further, as the above excerpt from Robyn’s evidence reveals, when she told the accused that she thought someone had ‘touched’ the complainant, the two argued. But there was no evidence from Robyn that the accused became ‘angry and defensive’ or that his ‘reaction was indicative of guilt’. His evidence was that he wanted to take the complainant to the doctor.
  3. The above conclusion on the rape charge should not be interpreted as the Court believing the accused or disbelieving the complainant. It is principally, and regrettably, the product of the manner in which the complaint was investigated, which in turn, affected the way in which the Prosecution was able to present its case at trial. As a matter of law, the benefit of the reasonable doubts described above must be given to the accused.

RESULT

  1. For the foregoing reasons, the following verdicts are entered:
  2. These reasons are to be made available to any Court, either currently or in the future, which may be asked to consider and determine whether the accused should have custody or access to the complainant and any of her siblings.



NEIAFU
M. H. Whitten QC
22 April 2022
LORD CHIEF JUSTICE

[1] Location 2 on the ‘Utulangikava sketch map and the top photo on page 5 of the photos of that house.
[2] Location 3 on the ‘Utulangikava sketch map and the top photo on page 5 of the photos of that house.
[3] Depicted on page 2 of the photos of the ‘Utulangivaka house.
[4] Exhibit P5.
[5] Bed 2 in the southeast room.
[6] In the northwest corner of the house.
[7] Area marked ‘Faletolo’ on the sketch map.
[8] Photo on page 9 near the MAERSK container.
[9] Citing R v Court [1988] 2 All ER 221 (HL) and R v George (1956) Crim LR 52.
[10] Referred to in R v Li, ibid.
[11] Subsections (a) and (b).
[12] 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].
[13] Rex v RVL [2015] TOSC 20 at [17].
[14] (1894) 6 The Reports 67.
[15] 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.
[16] R v Birks (1990) 19 NSWLR 677; (1990) A Crim R 385.
[17] The rule in Browne v Dunn has been referred to and applied 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].
[18] My note of Robyn’s evidence was that she observed the complainant’s vagina to be ‘swollen and it had pus and blood’.

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