R v Setefano [2022] TOSC 47; CR 185 of 2021 (27 May 2022)

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

CR 185 of 2021

REX

-v-
Lemisio SETEFANO

JUDGMENT

BEFORE: THE HONOURABLE COOPER J
Counsel: Ms. T. Kafa for the Prosecution
Mr. S. Tu’utafaiva for the Defendant
Date of Trial: 16 - 19 May 2022
Date of Judgment: 27 May 2022

1. There is an order made under section 119, that no detail may be published that could lead to the identification of the complainant in this case.
2. The defendant faced a three count indictment alleging three separate instances, on the same day, of serious indecent assault contrary to section 124 (1) (2) & (3) of the Criminal Offences Act. It is alleged that on 29^th April 2021 he had kissed the complainant Mrs Halaifonua, had touched her breast and had inserted his fingers into her vagina.
3. There were three exhibits in the case:

Exhibit 1: the photograph booklet.

Exhibit 2: the sketch plan.

Exhibit 3: the record of police interview.

Sitela Halaifonua

4. She is married and has 3 children with her husband. The youngest is 2 years old. She lives also with her parents and her two brothers.
5. Her husband left for New Zealand in 2019 to work on a fruit picking scheme. They were married in 2015.
6. She stated she was at court because of the disrespectful behaviour the Superintendent of the Vaini police station had treated her with. She learnt that Mr. Setefano was the Superintendent of Vaini police station from her brother.
7. The date was not clear to her and she thought the incident she was giving evidence about took place on Thursday 10^th April or May 2021.
8. The defendant she referred to as “Sete”; she had not been acquainted with him having only met him the day before, at her brother’s trial. This was at Mu’a court. She had attended that hearing and had spoken to 3 officers. One was called Sefo, but Sete was not one of them.
9. She enquired who the prosecutor was in that case, and was told it was Sete. There was no need to know his name, she said, only to find out the status of her brother’s case. He told her not to worry about it, but nothing else was said.
10. She had seen him before, but only when he drove past her house. She had not seen him at any other time.
11. There was an incident when she had been involved in a road traffic accident. It had occurred outside her ‘api. She had been negligent and her vehicle had struck a truck. When that happened, she immediately called the police. The truck driver was arrested and taken to the police station.
12. Two police officers had then attended and spoken to her, she did not know who they were. That Wednesday, at Mu’a court, she had asked Sete for help with a solution, because the truck driver had given her a quote for repairs and she could not afford them.
13. Turning to the Thursday, the day of the allegation, she had been at the village community police. She is the treasurer and records who works there each night. She was cleaning up as some of the older men of the district would collect there to drink kava.
14. She noticed it was about 2300 hrs and decided to go home and shower before she returned. At her fale her mother was unwell and in bed, so she brought her medication she required and some water. It was about 2330 hrs and she went to shower. She wore her bra, underwear, short tights and had a towel wrapped around herself as she went to the bathroom, which is a few meters behind their fale. As she did so she could hear a vehicle arriving at their ‘api.
15. The photographic bundle became exhibit 1.
16. It was quite normal for her to have a bath that time of night. At home were her mother, her children and her brother.
17. The noise of the truck was followed by the sounds of her mother greeting someone.
18. She was in the shower bending over to clean a sandal when she could hear an indistinct voice from outside the bath house
19. She looked out and saw Sete under the tree next to the bath house. She identified the photograph top page 1; exhibit 1.
20. He was next to the doorway; he asked if he could join her in the shower, saying her mother had told him to ask.
21. She got up, wrapped a towel around herself and walked out of the bath house. She cursed at him and told him to stop his foolishness.
22. She described that decision as naïve, saying that she had not thought Sete had any ill intentions. She used the word “shit”.
23. She stood outside and started talking with Sete about the accident, what she thought he was there to talk to her about. She then said they should discuss this in the fale where her mother and children were. He said he wanted to go elsewhere and talk to her there. She replied they could stay here if he wanted to talk about her accident, if it was something else he was there for, she would not go with him.
24. He then explained that at the Mu’a court house, he realised he had feelings for her; with the other officers there he had been unable to say anything and felt shy.
25. He should stop this foolishness, she said; if he was not there to talk about the accident he should get the hell out. She wanted to know why he had driven out here. He’d had a few drinks at the Vaini police station and then had left. He was passing her ‘api and so stopped to see her.
26. If it was not about the accident, she was going to change and go back to the community police. He replied about it being the only time he had come to her house and now she was being difficult. She began to notice he had ill intentions and told him to go home to his wife and children.
27. She noticed he was drunk; he was nagging, being stubborn and kept trying to get her to go with him. She turned to get her tooth brush and toothpaste to brush her teeth at the water pipe behind her fale.
28. As he turned he grabbed her from behind. He put his hand over her breast and turned her mouth, with his hand, to his and kissed her.
29. She tried to shake him off. As they struggled he used two fingers and penetrated her vagina.
30. At this point, she was worried that her brother might come out to try to use the bathroom. He said if she did not agree to go with him, he would not release her.
31. She decided to deceive him, to tell him she would change and join him and he should wait in his vehicle. She went into the fale. Her mother said something to her, but she did not reply. She went to her room, which is at the back and has windows both facing the rear of the ‘api and the road to the side, and she locked her door and kept the lights off. She sat on the floor.
32. She used her mobile phone to call her cousin Kalotia. She was scared and wanted her cousin to walk over and check if Sete had left. She spoke to Kalotia and asked her to come but did not tell her anything else.
33. Kalotia works at the community police, at that time she lived at her house and had been living there for 3 months prior to this incident; they shared a room.
34. When she arrived she knocked and opened the door. Kalotia asked why Sete was outside. She did not explain the reason and told her to stand on the veranda and see look out for when he left, then they would return to the community police.
35. There was then given rather a lot of detail concerning the car engine starting and the vehicle moving towards the back of the ‘api, making a U turn and driving off, reference being made to exhibit 2, the plan.
36. The light in her room remained off during this time. She explained in her mind she was concerned he would come back as he was drunk. She had smelt alcohol on him.
37. She dressed and in approximately 5 minutes, they left for the community police.
38. She did not tell Kalotia about what had happened with Sete.
39. Kalotia only found out when she went to make a statement, that was the next day, the Friday.
40. There was no reason why she did not tell her cousin. She explained that she wanted to discuss it all with her parents first and speak to her husband.
41. She went to community police; wrote to her husband on messenger that she wanted to talk with him. She told him everything that happened when the spoke shortly after.
42. He had called her and asked what it was she wanted to discuss, she said the Superintended of Vaini police station had just left. He wanted to know why. She said she did not know his reason for arriving but explained what he had done to her; that he had touched her breast, kissed her and touched her vagina and penetrated it.
43. She could tell her husband was angry. He said he wanted to be in Tonga to confront Sete. He told her that the next day she should go to the Longolongo police station and make a statement; he would contact them first.
44. She agreed to this.
45. She told her husband first as ever since they have been married, she has kept no secrets from him and tells him everything.
46. After their conversation she continued to send him messages, but told no one at the community police; they were drinking kava there. She left there about 0430 hrs.
47. The next day she went to the Longolongo police station to give her statement after her husband called them. The following week she told her parents about the incident.
48. She explained that showering at that time was normal for her. One of her parents would normally wait outside, but her mother was ill and her father worked as security and was working that night.
49. When Sete had grabbed her, they had struggled for 3 or 4 minutes.
50. She said that she had not shouted out at that time in case he was violent and hit her and she would have been knocked out.
51. This incident was the day before her statement and that was given on 30^th April 2021.
52. Her concern about her brother coming out while Sete was struggling with her was a fear that there may be a fight between them.
53. When her cousin had come into her room she had still not yet got up from where she was sitting on the floor since she first came in.

Cross-examination

54. She trusted her parents and would tell them if anything happened to her.
55. Her son would be 2 years old around August 2021.
56. She also had another son who was born in February this year, making him 3 months’ old.
57. Her husband had been away since 2019.
58. On Wednesday 28^th April 2021, she had been at the Mu’a magistrates’ court.
59. 28^th April 2021 was the first time she knew Sete.
60. She had met him first week of March 2021, but did not know his name.
61. She was aware of her neighbour, Mafua Teaupa, who had made complaints to the police concerning youths drinking and their disorderly behaviour; that they would congregate on the concrete slab outside her fale.
62. She did not recall Sete parking outside her fale on the 1^st week of March 2021to talk to these youths. Her father had spoken to them.
63. The accident she was involved in was on 19^th March 2021.
64. She did not recall Sete speaking to her on the last week of March 2021.
65. She had spoken to him at the Mu’a magistrates court when her brother was there. That was the same day as her trial, she stated.
66. There was then an adjournment over night for the relevant papers to be obtained concerning her case in the magistrates’ court.
67. She now stated that she could not recall if her trial was on 28^th April 2021. She then agreed it was 26^th May 2021 it had taken place and she had been fined TOP$300.00.
68. She had been given a bill for TOP$96,000.00 by the truck driver for the repairs.
69. On 28^th April 2021 she had spoken to Sete about it. She had asked him for help with her court case. She had urged Sete for the matter to be settled out of court. He had told her he would speak to the truck driver and see what he had to say.
70. She had then told Sete that once that was settled he could come to her house; she is always there.
71. As far as she could recall, 28^th April 2021 was the first time she had spoken to Sete about the accident.
72. She had met Sete prior to the 1^st week of March, but only found out his name when she was at court for her brother’s case on 28^th April 2021.
73. In March an officer named Sefo and a colleague of his, came to arrest her brother to do with a complaint she had made.
74. Sefo and his colleague chased her brother.
75. Sete was not standing outside her fale when that happened. Then she stated that he, Sete, was outside talking with her father. But, she had not talked to him then.
76. Then she said she was not sure if she and Sete had any other contact before 28^th April 2021. She had often seen him driving back from Vaini and she had asked the people of Malapo where he lived.
77. She denied that there had been a morning when she was at a Chinese shop and that he had stopped to talk to her as he was driving past.
78. She stated that she had no knowledge of his coming to see her one night in April. This was not a time after stopping outside the Chinese shop to speak to her.
79. She had no knowledge of asking him to come to the back of her ‘api. The only time she had asked for help was at the Mu’a court house.
80. There had been no occasion when he had been visiting her for a smoke and a chat; nor their sitting together on the broken down vehicle pictured in the photograph album, that was parked near the bath house. They had not held hand and kissed. Nor an occasion the next day when he had stopped outside her fale.
81. They had never spoken at her ‘api, it had only been at the Mu’a court house.
82. There had been no previous occasion when they had met, that she had said this place is not right. That was a phrase he had said on the night of the incident. She had not gone for a walk with him to the Government Primary School. There had never been sexual relations with him whatsoever. She had not told him she was married and they had to take care her husband did not find out.
83. The night of the incident she heard the noise of his vehicle engine at approximately 2330 hrs.
84. The photograph booklet at page one shows three images where she had demonstrated her their relative positions. She did not remember when those photographs were taken.
85. Her toothbrush and toothpaste was already in the bath house.
86. She gave evidence that her mother had thought he was someone from the community police. That her mother had told him that she was showering.
87. Her evidence was that her mother was lying down when she had spoken those words to Sete.
88. The only people who would call that time of night were community police and it was not common for other people to call by.
89. It was Sete who said that her mother had told him to join her in the shower. He had not called out her name and that he did not call out identifying himself to her.
90. She had come out wearing only her towel. She had told him “You fucking go to my house, go to the front. The house is at the front, not the back.”
91. When he had said he would come inside and join her, that was when she immediately stepped out. She did that of her own volition.
92. She had stood there talking to him because Sete wanted to talk. She had told him they should go inside her fale. He had said they should walk elsewhere together and talk. He suggested they drive off in his vehicle, but she had said to him if he did not want to talk in her fale, he ought to leave. If not, they could talk right there. She had not thought he would do anything to her if she stayed there talking to him.
93. She again denied there had been any previous sexual relations between them. But that if all they were doing was talking about the accident she was happy to do that standing in her towel.
94. She had not agreed to go and have a few drinks with him.
95. She was talking to him only because of the accident, when she realised he had other intentions, she told him to go back to his wife and children. She said that before she turned to go back into the bath house.
96. She had not asked him if he had come with someone else. She had been talking with him as he smoked.
97. She had not dried off in front of him. There had been no laughing from her in response to his offering to dry her. He had not pulled her to him by her thighs and she had not kissed him; nor touched his penis over his clothes
98. She had been standing and he had used one hand to grab her vagina. This had not been by the brown down vehicle. She had not lead him towards the back of the ‘api to where it was dark.
99. They had not had sex. There was nothing consensual that took place or she would not have lodged a complaint and told her husband.
100. She had not said that she had seen someone walking along the road who had seen them, nor tell him to stop least they were discovered.
101. There had been no conversation when she said that she would go first and he was to follow later.
102. She had lied to Sete and told him that she would get ready and then she hid in her room; but did not know what Sete had done after that.
103. There had been nothing said by her to her mother. Her mother had spoken to her, but she had not replied.
104. She had not told her mother what Sete had done. She accepted that she loved and trusted her mother, but had decided to tell her husband first.
105. In her bedroom she had been shivering, confused and scared and so called her cousin so she could go to community police and call her husband from there. Sete was drunk and she was afraid he would return. He smelt of alcohol and had told her he had been drinking at the Vaini police station.
106. She had told the police in her complaint that he had inserted his two fingers into her vagina 5 times poking her angrily and that it hurt her. She had made up the lie of telling him to wait as she changed to get rid of him because of that assault and that was why she had made the complaint on 30^th April 2021.
107. She had not mentioned the touching of her vagina at the Longolongo police station when she went to make her statement because initially it was a male officer who had attended to her. She had requested a female officer.
108. There was no medical examination, she had not thought of that.

Re-examination

109. She had a 3-month old child, but her evidence had been that she had 3 children with her husband.
110. Her youngest child was 3 months old and her husband had become aware of this in February this year.
111. When in court on 28^th April 2021, she had already been approached by the truck driver regarding his request to pay for the repairs. There had been a conversation with Sete about this. He had told her to discuss it with the driver and see what he would agree to.
112. As for leaving the bath house to clean her teeth, that was to be done at the tap behind her fale, photograph 6.
113. She said that she would never accept a fee invitation out as she is a married woman and has children with her husband.
114. She said that her parents were used to her behaviour; people coming by and asking for her, they know to go straight to her fale.

Kalapu Halaifonua

115. He gave his evidence by AVL from New Zealand where he works on a fruit picking scheme.
116. He and his wife were married in 2015, they have 3 children. He has been in New Zealand since 2019.
117. He remembered the night of the incident as she had called him, crying. And told him something had happened.
118. He told her he knew Sete, when she asked and she said he had done something to her. He had made an attempt at her while she had showered. Sete had said something to her, she had felt afraid. She had taken her towel and left the bath house as she was afraid he would come in.
119. She had tried to get back to the house and that was when Sete had grabbed her, kissed her, touched her breast and private parts. She could smell he had been drinking and he was drunk and she had tried to shake him off. She was very afraid and had gone back into her fale to change and then leave for the community police.
120. Her cousin had come into the room where she was in her fale. As she spoke to him telling her this, he could tell she was very afraid. She was scared of going out again, that is when they went to the community police. He told her he would call the police station the next morning.
121. He did that the next morning and telephoned his wife to tell her he had; that they would be contacting her and he had given her details.
122. He was shocked when she called as they had already spoken that evening. He described her having a sickness of fear. By which he meant she would become very scared by things.

Cross-examination

123. He did not know his children’s dates of birth.
124. He had gone to New Zealand in January 2019 and that was the last time they had actually been together.
125. She had not told him about her evidence in court concerning this trial. She had told him in reply to his question that her case had gone alright.
126. She confirmed she had left the bath house to go back into her fale.
127. He knew about the accident but had not sent her any money to help with it.

Re-examination

128. There was none.

Kalotia Fa’amasa

129. Last year she lived in Malapo, with the complaint, who is her cousin. She was also a member of the same community police as her.
130. In April last year something had happened. She had been at the community police, a lot of them had been working that night, but not her cousin. At about 2000 hrs she had been there, no one else was, nor the complainant.
131. She thought the incident took place about 2200 hrs or 2300 hrs. she had walked to their ‘api to use the bathroom, as she walked over she could see them both standing under a tree next to bath house.
132. Upon seeing them she walked back to the community police. In her mind it was something that concerned just the two of them.
133. After approximately 5 minutes her cousin contacted Siope at the community police and Siope asked her to go back to her cousin’s.
134. She did that, her cousin was in her room and asked her to look outside and see if Sete had left. She saw his vehicle and told Sitela this. Her cousin looked afraid.
135. As she was there she heard the vehicle turn and leave.
136. She looked afraid and so asked her what had happened and her cousin said nothing had. She asked her to go to the community police but Sitela asked her to wait a little then they would.
137. At the community police, when they went there, Sitela was on the phone. But she did not know what was being said. Although she knew it was her husband she was speaking to. She explained the route she took between the side of the house and the concrete water tank by reference to the photograph album. As she had approached the bath house she could see Sete holding Sitela from behind, she turned and left; she believed something was going on between them.
138. Sete had his back to her as she approached and once she saw him grab her, she turned and left. Saw them for 2 or 3 seconds. She did not want Sitela to think that she was peeking on her.
139. She was not sure if Sitela and Sete were having an affair.
140. Then the call to Siope had been about 5 minutes later. She was unaware what vehicle Sete drove but when she had seen his truck she thought it was Sisi coming to check on her after the accident.
141. When she went to the fale to see Sitela she was seated beside the bed, on the floor in her towel. She described her demeanour as afraid by reference to her not concentrating on what was being said to her.
142. When Sete’s truck drove off, it did so slowly.
143. She did not mention to Sitela what she saw, though it had alluded to it in a joking way one time at a kava session at the community police.

Cross-examination

144. There was none.

Luseane Tupou

145. She is Sitela’s mother. She had been surpirsed when Sitela had told her about making a statement to the police about a week later.
146. At the time of the incident she had been lying in her living room; she was ill. There had been a call for her daughter, she said she was in the shower and she was surprised when she came back in, went straight to her room and then both left for the community police.
147. Only when her daughter told her, did she know it was Sete. She did not know anything else about this. She knew Sete as he regularly attended their ‘api because of her son.

Cross-examination

148. There was none.
     

Police interview

149. Mr. Setefano was interviewed on 16^th September 2021 at 1230 hrs. The transcript of interview became exhibit 3 and was adduced by consent. His account of that night was going to the home of Sitela about 2200 hrs. He was acquainted with her by this time.
150. She was showering in the bath house. She had given him an open invitation to go there and he stated he always did.
151. She came out in a towel and he asked to dry her, to which she laughed. They kissed after joking about it together, then she touched his penis over his clothes and they had sex. She at no time went back into the bath house.
152. While they were having sex someone walked along the pathway and he saw a person there.
153. After the interview he was charged with three offences of indecent assault, as per the indictment; and he denied the allegations.

Close of the prosecution case

154. At the conclusion of their case I then reviewed the evidence.
155. There had been nothing in the evidence of the last two witnesses that need clarifying by way of cross-examination and I had indicated this to the defence.
156. The evidence before me was that of the complaint, the recent complaint evidence to her husband and to her cousin and the evidence of her mother and the record of interview.

The law

157. The starting point is as set out in Galbraith [1981] 2 All ER 1060.

How then should the judge approach a submission of ‘no case’? (1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury...

158. The tension that has arisen around the authorities concerning test in the second limb revolve about the role of the judge in assessing the quality and reliability of a particular witness’ evidence. Blackstone’s; D 16.56 et seq.
159. Galbraith, prima facie, made clear that issues of credibility were always a matter for the jury. But in Shippey [1988] Crim LR 767, the trial judge took a more robust view as the evidence contained ‘really significant inherent inconsistencies’. It was for the judge to assess the evidence and, if it was ‘self-contradictory and out of reason and all common sense’
160. For my part I consider it clear that this guidance has to be adapted, because the situation in the instant trial is that there is no jury, thus I turn to what the correct guidance is in the magistrate’s court.
161. At D 22.53 the position is set out regarding the approach a magistrate’s court should take:

An important issue is the extent to which justices may have regard to the credibility of prosecution witnesses when considering a submission of no case to answer. In the Crown Court, the test to be applied by the judge when ruling on a submission of no case (set out in Galbraith [1981] 2 All ER 1060) is whether the prosecution evidence is so tenuous that, even taken at its highest, a jury properly directed could not properly convict on it. The requirement that the Crown Court judge should ‘take the prosecution evidence at its highest’ is intended to leave questions of credibility to the jury. In Barking and Dagenham Justices, ex parte DPP (1995) 159 JP 373, the Divisional Court said that questions of credibility should, except in the clearest of cases, not normally be taken into account by justices considering a submission of no case. Nonetheless, it is submitted that some justices may well take the pragmatic view that it would be inappropriate for them to go through the motions of hearing defence evidence if they have already formed the view that the prosecution evidence is so unconvincing that they will not be able to convict on it in any event. However, the general principle remains that, so long as the necessary minimum amount of prosecution evidence has been adduced so as to raise a case on which a reasonable tribunal could convict, the justices should allow the trial to run its course rather than acquitting on a submission.

162. In the instant case, at the close of prosecution evidence, it was clear the complainant had made some unreliable claims about her credibility and veracity of her account. The evidence as a whole needed to be reviewed in this light.
163. Bearing in mind the duty to ensure that the prosecution was given an opportunity to deal with these concerns DPP v LB [2019] EWHC825 (Admin), I set out what they were in a general way and gave overnight to respond.
164. I was then greatly assisted by Counsel’s written submissions.
165. The key features of the evidence that troubled me were (i) the complainant had stated that she told her husband everything and they had no secrets between them; (ii) she stated that she would not go for free with another man as she was a married woman and had children with her husband; (iii) the cousin, Kalotia Fa’amasa had seen nothing untoward when she had happened to come upon Sete and Sitela together that night.
166. Dealing with the first point the Crown submitted that the complainant had eventually told her husband of the birth of her youngest child.
167. It is important to have in mind that the statement the witness made about telling her husband everything and they never had any secrets, was a spontaneous claim on her part. There was nothing about the questioning that drove her to make this claim. She freely said it in her evidence-in-chief.
168. It means that she had a relationship with another man, that she had become pregnant and for close to 9 months had not told her husband this while he was away working in New Zealand.
169. I can only conclude that is the antithesis of telling one’s husband everything and having no secrets between them.
170. The second point that she claimed because she was a married woman with children with her husband, and effectively, that she would not accept an invitation to go with another man in the way the defence suggested she had.
171. Again, this was not an answer forced from her. It was freely given in re-examination.
172. Again, knowing as we did that she had carried on another relationship while her husband was abroad and had become pregnant by another man, it was nonsense to suggest that her behaviour was that of a married woman who would only act appropriately within her marriage.
173. The third point, that her cousin had seen nothing untoward when she had come upon Sete and Sitela outside the bath house that night. Prosecution argued that it had only been a glance, some 2 to 3 seconds that she had seen this for.
174. What is important to understand is that on the Crown’s case, at that stage, the complainant was outside the bath house, that the defendant had made a comment to her about wanting to join her in the shower, that she had then become aware that he had an ulterior motive as she was standing talking to him and as she turned to go back into the bath house he had grabbed her.
175. The Crown pointed out that this would have been the first contact between Sete and Sitela and that at that stage nothing could be determined if the cousin had not seen any reaction by the witness that showed she was unwilling, as it what too soon. In short, she had not had enough time to see what was yet to develop in Sitela’s reaction to him.
176. I can not see how there could be any room for doubt on this point. Either his touching of her was wanted or it was not. Her evidence was that she was already wary of his comments and advances before the touching. That being so, any contact between them, especially a grab, would have been unwanted, on the complainant’s version.
177. The complainant’s evidence was that this was what triggered her to struggle with the defendant for some minutes.
178. Yet, against that, her cousin walked away so that Sitela did not think she was being spied on; that is to say her cousin did not want to intrude.
179. That is in stark contrast to what the complainant alleged happened at that point.
180. There was nothing at all about what Miss Fa’amasa saw that supported the complainant’s account. It was at direct odds with the allegation to the point that Miss Fa’amasa had later alluded to the incident with her cousin “in a joking way.”
181. My certain view is that Mrs Halaifonua could not be trusted on her word. She had made statements that went right to the heart of the case, that were demonstrably false and misleading.
182. Where the case being put to her was that she had a consensual relationship with the defendant, but effectively dismissed this by saying she had no secrets with her husband and was not the type to freely go off with a man at night because she was a married woman and had children with her husband, when she had hidden her pregnancy by another from her husband and not told him until the month the child was born, leads me to conclude that she would say anything.
183. In that context, her cousin seeing her and Sete, with his arms around her and not seeing anything untoward and leaving them so as not to interrupt what was going on, makes no sense on the Crowns case.
184. It totally undermines the complainant and her account.
185. Then where there needed to be some corroboration, the reverse was the case.
186. Given that the only direct evidence against Mr. Setefano came from Mrs Halaifonua and I can not trust her on her word, it would be perverse to put aside the relevance of those two comments and assess her allegations without that broader context.
187. She twice staked her reputation as honest and true to her husband, when the opposite was demonstrably the case.
188. Pervert/perverse literally means “to turn from its proper purpose; to misinterpret; to lead astray; to corrupt.”^[1]
189. In every sense those answers she gave about her truthfulness and fidelity were designed to mislead and invert the truth.
190. I conclude, so I am sure, that no reasonable tribunal might convict on her evidence, or the evidence as a whole, that the Crown had presented, when it is correctly analysed.
191. Accordingly, I dismiss the three counts that Mr. Setefano faces and enter not guilty verdicts in respect of each.
     

NUKU’ALOFA N. J. Cooper

27 May 2022 J U D G E

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^[1] Collins New English dictionary, 1970.