R v Talia'uli [2022] TOSC 57; CR 14 of 2022 (9 June 2022)

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

CR 14 of 2022

REX

-v-
Muli Talia’uli

JUDGMENT

BEFORE : THE HONOURABLE COOPER J
Counsel : Ms. L. Aonima for the Prosecution
Defendant unrepresented
Date of Judgment: 9 June 2022

Non-publication order

1. There is a non-publication order made under section 119; no detail may be published that could lead to the identification of the complainants in this case.

Allegations

2. The defendant faced a four count indictment. Count 1, an allegation of attempted indecent assault in that he had repeatedly tried to touch Vasiti Tangulu’s vagina when she was under 15 years old. Count 2, again while she was under 15 years old, that he had indecently assaulted her by repeatedly touching her thighs. Count 3 related to Jennifer Niu, that he had attempted to rape her and count 4 that on another occasion he had raped Jennifer Niu. All four allegations were said to have occurred in June and July 2021.
3. An offence of serious indecent assault against a person under 15 years old is contrary to section 124 (1) (2) (3) & (5) of the Criminal Offences Act.
4. Attempted rape in an offence contrary to section 120 of the Criminal Offences Act.
5. Rape is an offence contrary to section 118 (1) (a) and (2) of the Criminal Offences Act.

Procedure concerning young witness

6. The case commenced with an introduction to Vasiti, the first witness. She is 13 years old and was giving her evidence by live-link from a remote location. She had an adult with her, she was acting as her support person.
7. After speaking to her and explaining role of the Judge, it was explained that I would be asking questions on behalf of Mr. Talia’uli, who was unrepresented, that in court only the truth was to be told. If she needed a break she must say or indicate with the card provided. That if she did not know the answer to a question she must say; there was nothing wrong about that. She was told about the function of the oath in court proceedings and solemnity and responsibility of that undertaking.
8. After going through these points and listening to her responses, I was of the view that she followed and understood all that was being said, that she would be confident about asking for a break and know how to do that, and that it would appropriate for her to give her evidence on oath.

Opening

9. The case was opened Tongan, the court followed the English language version provided.

The evidence

Vasiti Tangulu

10. She attended the Government Middle School (GMS) in Fanga and is in form 2. Last year she attended the Liahona Havelu Middle School. Then she was living in Ma’ufanga.
11. That house she described as Tony’s home. She lived there with a number of people including her mother, Mesia, her brother Niu and Jennifer, as well as Muli, the defendant.
12. Her mother has a job working sweeping the road, Muli works at a Chinese shop.
13. There had been an incident when her mother was working and Muli had taken her to school. She had been sat in the front of his car; Jennifer and Niu were in the back. She and Jennifer go to the same school. Niu, who also goes by the name Taniela, went to the school in Fasi. He is in Class 3.
14. They had gone to drop Taniela off first, but it was too early so they had gone to drop of Vasiti and Jennifer. That was when Muli touched her thigh. He squeezed it. It was her right thigh.
15. There was a gender neutral body map that had been prepared. She used it to mark where she said he touched her. She marked the exhibit on a point just over half way up the right thigh. That document became exhibit 1.
16. She told him not to do this and he laughed. When they reached school and she asked for money he did not give her any. He was angry and she grabbed it but he took it back and placed it in the storage compartment in the car.
17. That evening Vasiti told her mother what had happened and that he had touched her thigh. Her mother told her it was only her thigh and that was alright.
18. She also told Jennifer and Carolyn, that he touched her thigh three times. This was on different days.
19. The first time she told him to stop and she felt angry with him. He did not reply.
20. He also tried to touch her “thing”.
21. Vasiti marked exhibit 1 with a circle to demonstrate with what corresponded to the area of her vagina. She did not know any other name to describe it by.
22. This happened just once. She hit his hand when he did this. She said he was not really close at the time.
23. This had also been when they were going to school, she was sat in the front seat. The same week as the other incidents of touching her thigh. It had been on the Friday of that week. On that occasion he did not do anything else.
24. There were no other instances of touching or trying to touch her, then or on other days.
25. There was an occasion when on a Sunday he had come into the bedroom where she was sleeping during the day and picked her up. She had been sharing a bed with Niu/Taniela and Jennifer.
26. She had woken up to find him carrying her and she had extricated herself and gone to her mother and slept with her.
27. This had happened in July last year and on only one occasion.
28. She was at school and Mele was there. She told Mele about Muli touching her thigh and carrying her. She had told her mother, but her mother paid no attention.
29. Mele said they should go to the police station and lodge a complaint. They did so that evening. She told Mele this in July.

Cross-examination

30. She accepted that she had taken the money. The money was not for her to share with Taniela. She had not put the money in her hand and then placed her hand between her thighs.
31. Taking the money was not the only time he had been touching her thighs.
32. His attempt to touch her thing had not been when she had taken money.
33. He was angry when she grabbed the money and she stopped doing it.
34. It was in the car she grabbed the money and it was in her hand, her hand resting between the two front seats. At school she took the money, but the touching of her thighs was not an accident when he tried to get the money back from her.
35. When asked if she and Muli got on, she had no answer to this.

Re-examination

36. She took the money when she was outside the vehicle, this was something that happened just once and when they had arrived at her school, not earlier as they were driving there.
37. It was two dollars, and had been in the vehicle compartment. She had not snatched it from that compartment. Muli had grabbed it back from her. The only occasion was as she was getting out and when she had taken it; she had not hid it between her thighs.

25^th May 2022

Witness recalled

38. Vasiti was recalled to deal with one aspect of the evidence.

Further cross-examination

39. She denied that the occasion she was carried up by Muli was when she and her mother were watching a movie together.
40. She had in fact been sleeping in her mother’s room and her mother was there, also asleep.
41. She had woken up to find Muli carrying her, still in her mother’s room. There was no movie being watched on that occasion.

Re-examination

42. There was none.

Jennifer Niu

43. Emily, an adult, was present as support person.
44. She was 14 years old at the time she came to give her evidence. After the introduction was given and the explanation of roles and the rules of giving evidence in court as well as how to ask for breaks and the other preliminary matters, she gave her evidence on oath. I had listened with care to her answers to the introduction and was satisfied that her level of understanding was such that she could properly appreciate the function of the oath and its importance.
45. Last year she was in Havelu Middle School in form 1. At the time she was at the same school as Vasiti.
46. Her mother was working sweeping the public roads at this time. Muli is her mother’s boyfriend.
47. It was at this point that it was noticed that Emily the support person was helping the witness with her answers.
48. She was spoken to and told to desist.
49. It appeared that Emily was covering her mouth so she could whisper answers to the witness.
50. What Muli did to her was when everyone at home had left including Ivy, Koli and Mesia was at work. Vasiti and Niu were playing at Melika’s house; she was the only one at home and was sitting at the kitchen looking into Ivy’s room. Muli came, took her to Mesia’s room, he laid her down on the bed and took her clothes off and he took his clothes off and put his thing into hers.
51. She then felt pain, her thing was hurting she then told Muli she wanted to go to poo and pee, she went to the toilet, after pooing she noticed there was blood in her underwear and she was wiping herself she noticed blood on the toilet. She put the toilet paper in the toilet and flushed.
52. She saw Vasiti walk by but Vasiti did not notice her.
53. Vasiti did not really want to pay attention and he did the same thing again on the same day but at night time; the first occasion had been daytime.
54. This was in July when she was 13 years old.
55. She marked the body map where Muli put his thing in her.
56. She marked that body map with an M at the top of the page to indicate it was the part of the body that Muli had used. She marked the area of the groin.
57. That night everyone was sleeping he came in and carried her to the room and took off her clothes, took off his clothes then he put his thing into hers he also used the blanket to cover them. He kissed her lips touched and fondled her thing. She think it was hurting so she told him she wanted to use the toilet she went to poo she saw that was a lot of blood on her underwear and use toilet paper to wipe herself and also saw blood there. Vasiti walked past but was not paying attention to her.
58. She could not remember what month it was when this happened. She was 13 years old at the time. She said it happened during the warmer season when she was asked, she said that Christmas was in the cold season. She told someone what Muli did was in July.
59. She told Mele and Carolyn what had happened.
60. She told Carolyn what had happened and told her about the bad things she was doing with Muli.
61. She describes something bad as for example when he puts his thing in her.
62. She told Mele that Muli did the same thing twice to her.
63. Mele did not say anything after she told her. She remembered seeing a doctor she was taken to the hospital she told the doctor the same thing she had told Mele.

Cross-examination

64. She agreed that Koli was at home every day. She said that Muli was lying, there is no bed in the living room. She said she did not like Muli. He did bad things to her she has never liked him. She said he was lying, she had not made anything up and she did not like him.
65. She did not tell her mother. This was not the sort of thing she would like to tell her mother about. She had told Ivy a long time earlier.
66. She said she did not scream because she did not want to scream.

Re-examination

67. There was none.

Carolyn Ta’ofi

68. She also gave her evidence by live link. Given her age and my assessment of her demeanour and answers at the introduction, it was clear to me that she understood the function of the oath and its importance and so it was appropriate for her to give her evidence on oath.
69. She was 11 years old at the time of giving her evidence. She went to Havelu Middle School.
70. Vasiti is her cousin. Jennifer is also her cousin.
71. She remembered an occasion when she was at home washing the dishes. Vasiti came from school, she told her that Muli had carried her from the living room and tried to take her to his bedroom.
72. She cried out when this happened and Muli carried her back in a rush and took her into the living room.
73. She said that Muli had been touching her thigh and had continued all the way up to her thing and it made her angry.
74. Jennifer told her something that Muli had done. They were at home together and Jennifer told her something that had happened and had upset her. She was sitting all by herself, while everyone else in the household had gone. Vasiti and her youngest brother had left to play with the neighbours. Jennifer was sitting alone and Muli came and took her by the hand and led her to his room and took off her clothes and then his.
75. After doing this and laid her down and he tried to put his thing into her thing but he found it hard. The witness used the body map and circles the area between the legs of the figure to indicate the part of the body she was referring to when Jennifer had described her thing.
76. When Muli found it hard to put his thing in her that was the exact time there was the sound of a vehicle arriving and Jennifer excused herself saying she wanted to use the bathroom.
77. When Jennifer went to the toilet she wiped herself and saw there was blood on the toilet paper, then she cried. Vasiti walked past but was unaware of what was going on.
78. The second occasion was when Jennifer said she was sleeping in the living room and Muli came and he picked her up and carried her to the bedroom again that time he did the same thing, he laid her down took her clothes off and his also.
79. Then he used a cover sheet to cover both himself and Jennifer he put his thing in her and penetrated her; the witness then pointed on the body between the legs of the figure.
80. She did not tell anyone else about this.
81. In the Ha’amoko residence when their vehicle came, Jennifer told her not to tell anyone else in case Muli beat her up.

Cross-examination

82. There was none.

Mesia Tangulu

83. She is married with three children. Though technically still married, Muli Talia’uli is her boyfriend. She was still in a relationship with him at the time of the trial.
84. Her youngest child is Vasiti and she had told her something in relation to what Muli had been doing; that Muli had been touching her thigh.
85. She asked her why Muli had done this to her, she replied she did not know.
86. She had asked Muli why he had done this to her and he denied that he had.
87. She did not say anything else had happened. She told her about this was one evening after school. Muli had picked her up and taken her to her mother.
88. She thought that her daughter had told her about this in June and her daughter had not given her any other details about anything else that had happened.
89. Muli worked as a security guard at the Chinese shop seven days a week from 1800 hrs to 0600 hrs.
90. When Muli finished work in the morning she would go and meet him. They would then go together to get the kids ready for school and he would drop them off.
91. After he finished his shift at the Chinese store he would then go into work as a security officer at the Ministry of Justice that was from 0830 hrs to 1630 hrs every day excluding Saturday.

Cross-Examination

92. There was none.

Dr Meleane Toafa

93. She has been working as a doctor in the Ministry of Health for five years, specialising in paediatrics for last two years. Her medical report on Jennifer Niu became exhibit 2.
94. For ease of reference I reproduce that report herewith :
    

7th of January 2022

Medical Report: Sexual Abuse of a Minor

Name: Jennifer Niu

DOB: 23.1.2008

Address: Nukunuku

Jennifer is a 13-year-old female who was referred by the Police on the 6th of January 2022, for a medical assessment, after being reported that she was sexually abused. She presented with her guardian, Mrs. Mele Ta’ofi of Nukunuku, who is also Jennifer’s maternal aunty. The alleged events are approximated to have happened around June to July of 2021, and the alleged perpetrator is an adult man named “Muli” whom is Jennifer’s aunt’s (Mesia) partner.

Social History and Background:

Jennifer is the illegitimate and eldest daughter of Mele Ta’ofi’s younger sister ‘Aivi Niu (31-year-old). ‘Aivi had Jennifer when she was 18 years old, as a single mother. She has a husband now with 3 children, and they live in Ma’ufanga. Mele assumed the care of Jennifer since January 2021. She, her husband and 7 of their 11 children reside in Nukunuku (4 are adopted). Mele also takes care of her other sister’s (Mesia) illegitimate daughter, Vasiti.

Muli is Mesia’s partner, and they live in the same house as ‘Aivi and her husband, in Ma’ufanga (Ha’amoko).

Interview of Mele Ta’ofi:

This was done by Dr. Toafa without Jennifer in the room.

Jennifer and Vasiti moved to stay with their biological mums in Ma’ufanga (Ha’amoko) around the end of June to early July of 2021. Mele returned the girls back to Nukunuku, after she was told by Vasiti, that Muli had tried to forcefully take her to a bedroom. Upon their return, Jennifer described to Mele’s 10-year-old daughter, that Muli had taken her to a bedroom and “hoka’i” her. Jennifer told Mele that this happened 3 times, including being taken to a beach. Mele did not want to ask further questions but decided to report to the Police. The girls have not been to Ma’ufanga unsupervised since.

Interview of Jennifer Niu:

The interview was done by Dr. Toafa with Intern Dr. Semisi ‘Aholelei present in the room. Consent was obtained from Jennifer and Mele Taófi for the interview. They were informed that the information they provided will be used to form this report.

Jennifer was noted to be cognitively slower than the average 13-year-old, in that she was slow to respond to some questions and didn’t know her date of birth.

Despite being slow to respond, she was able to answer questions coherently; she was able to correctly identify the day, time in the day, and place, and was able to say her full name, address, where she goes to school at, what class she attends, and the name of her teacher.

She was able to correctly identify members in her family and relations of them to one another. She attends Year 7 in Havelu Middle School and performs below average in class. Jennifer could not identify or approximate the period in which the events of sexual abuse by Muli occurred, but she described the following:

Muli took her to a bedroom in the house at Maúfanga (Haámoko), took her clothes off, and touched her genitals and anus with his hands (na’a ne hanga ‘e ia ‘o ‘ai ‘ene nima ki heku me’a pehee (pointing to genitals) ó nanao pea ne hanga ‘e ia ‘o nanao ‘eku mui), which caused her pain in both areas.

He also took off his pants, and performed the following acts on her;

“pea hanga é ia ó ái éne meá ki heeku meá, pea ne hanga é ia o hoka’í lahi au, pea ma ái meá kovi maua ia. Na’a ne hanga ‘e ia o ái ‘ene fo’i tenga ‘o ai ki loto ki he fo’i me’a koee ‘oku ava, pea u mamahiía au ia”. *

She also described that she noted blood stains after wiping both her anus and vagina after the painful events above. She says he did not put his “tenga” on or in any other place of her body, denied receiving or performing oral sex, and denied that he used any other objects to touch her with.

She also described an incident where Muli took her to the beach, took off her tights and touched her genitals and anus with his hands, which was painful. She said the above events happened both during the day and at night. She denied being forced to take illicit substance, and also denied that any events similar to this has happened to her before or after.

Physical Examination: (by Dr. Toafa @ 3:30pm on 6th of January 2022)

Jennifer was calm and cooperative during her examination.

Her vital signs were within normal range for her age. Tanner staging for secondary sexual characteristics was stage 3 for pubic hair and 4 for breast development, which is normal for her age.

There were no injuries seen in her oral cavity. Her respiratory, cardiovascular, abdominal, neurological and musculoskeletal systems were otherwise normal. Genital examination done in the lithotomy position and knee to chest position was normal. There were no scars or discharge, and the hymen was normal. Her anus looked normal. There were no fissures, tags, tears or scars present. There was no abnormal discoloration or discharge from or around the anus.

Investigations:

There were no indications to do further tests, given the long duration between the time of events and time of evaluation.

Summary& Opinion:

Jennifer’s account of her being sexually violated by a known adult male is graphic and plausible and not incompatible with her mild degree of cognitive impairment. The fact that there is little to show for it on physical examination does not mean that there was no sexual assault given that this occurred more than 6 months ago. As much as this is a historical case, it would be very useful, making her evidence even more compelling, if there is similar account(s) or report(s) of her version to others including the police, closer to the date of the offence.

* the doctor translated this part of the report in this way : “She put his thing on her thing. Then he thrusted and then they did bad things he put his scrotum onto her genitals and she felt pain.”

95. In answer to my questions, she explained that the hymen is a piece of tissue in the body like any other, and contrary to common belief it is able to repair itself in an adolescent when there are higher levels of oestrogen. It can, on examination appear to be intact when it has been pierced, as it is very elastic in a young person, so is able to fold on itself, so that any break caused by penetration is hidden in its folds.
96. By those two mechanisms any sign of penetration can be covered up. If a hymen is injured, it can heal and may do so within 72 hours or injury or between 5 – 7 days.
97. She agreed that it would have been more correct in her opinion that instead of having written that “...there is little to show for it...” of the signs of a sexual assault as alleged, she ought to have stated that there was nothing to show for it.

Cross-examination

98. She did not know why there had been no medical examination done in June or July and that it had only taken place in January 2022.

Re-examination

99. There was none.

Mele Pohe’a Ta’ofi

100. She gave her evidence by AVL. At the time of the trial she was living in California, she used to live in Nukunuku.
101. There was a time when Vasiti, Jennifer and Taniela Niu lived with her. Vasiti and Jennifer are cousins. Both their mothers are sisters of Mele.
102. The children came to live with her because both her parents separated and she felt that she needed to assist. She was concerned for their well-being especially when their mother worked long hours.
103. She described the time they all lived together as being beautiful. She paid for the school fees, they all lived well, she treated them as one of her own children. She gave them chores to do at home just like her own children.
104. Muli was her sister’s boyfriend, she had never met him in person. On one occasion her sister wanted to invite him to have ‘umu with them, but she told her sister that she did not want to meet her boyfriend only to bring her husband.
105. She told her that she should not have a boyfriend.
106. One can hear from the news of what happens in court; children get abused in these situations and that frightened her.
107. Muli had been deported; was as concerned. That made her show extra care for these girls and eventually she removed them from her sister’s care and looked after them both herself.
108. Vasiti’s father on two occasions provided a bin of groceries. He realised that she was already caring for a number of children provide assistance.
109. In May 2021 some issues arose. This was because of differences between Vasiti’s parents. Her father wanted the children to return to Vava’u to be with his family there. Instead they went back to their mother, Mesia. The idea was that if Isi, their father, then saw they were being looked after properly he would be confident about their going to live in Vava’u.
110. They returned to their respective mothers, albeit to the same fale, but in June there was a problem.
111. Vasiti came back from school and she was crying, she told Mele that Muli had touched her thigh and was trying to do something to her.
112. She said that every time he picked her up from school he was trying to touch her thigh and encourage her to sit in front of the car. That made her feel uncomfortable.
113. In Mele’s opinion, something like that did not sound right.
114. Vasiti told her this on a Monday. She had also told her and she had been lying asleep in the bedroom and Muli picked her up and carried her.
115. As soon as she heard this Mele took her to the police station.
116. She did this because she did not like this person Muli and what he was doing to Vasiti, in her opinion was very bad and she wanted the police to sort it out.
117. She also removed Jennifer from her mother, that was sometime around the first week of July. It was then that she heard from Vasiti that Jennifer had been carried into a room by Muli and had been raped.
118. She had been told that he put his P on her P and then wriggled.
119. Jennifer told her about a different date when he took her to the yacht club area one night and he took her clothes off told her to sing and to suck his P and she did so. She told her of this on the same day as the other allegations.
120. She also told Mele that when she had finished school and was washing the dishes at home, Muli would carry her to her room and do what he always did and she would hide under the bed and Mesia did not know she was there.
121. This is what she told her after they had been to the police station to record her witness statement and they were on their way home. Mele said that she had wanted to get more information from her after she had been to the police and made her statement. That was all Jennifer told her and she did not ask her anything more as she thought that was enough.
122. Jennifer went to the hospital sometime this year, 2022, for a medical examination.
123. Jennifer told her that Muli would say to her that the nature of a pig was to snout on the ground and that he demonstrated this by pushing his face into Jennifer’s breasts.
124. In regards to the complaint that he put his P on her P and lay down and wriggled, she had told her that it was painful.
125. She said that she did not take Jennifer to the hospital to be examined because she was waiting for documents from Officer Penisoni. She did not know what the documents were but understood that if she went to the hospital there was a need for a police officer to be there also and so she had to wait for the officer.
     

Cross-examination

126. Questions were then asked on behalf of the defendant.
127. She agreed that she was already cautious of Muli before she heard of his having been deported back to Tonga.
128. As far as she was concerned, a deported person is a criminal.
129. Consequently she was worried that he would abuse both Jennifer and Vasiti.
130. She told both the girls before they returned to their mothers to look out in case Muli did anything to either of them. She told them to scream if anything happened.
131. She told them of the signs to be aware of in case there was have been sexual abuse.
132. Mele told the girls that they could come back and live with her if anything happened to them.
133. She told them if Muli did anything they were to scream out loud and they could complain and charges would be filed against him and they would be returned to her.

Re-examination

134. There was none.

Close of the prosecution case

135. There was an application to amend the indictment. Mr. Talia’uli was asked his view about the prosed amendment, but he had no object. I therefore allowed the amendment as it did not prejudice the defendant.
136. The indictment was amended. Counts 1 & 2 were amended in respect of their dates so as to plead between 31^st May 2021 and 1^st July 2021; counts 3 and 4 were amended so as to plead between 30^th June 2021 and 1^st August 2021.

Defence case

137. Mr. Talia’uli chose not to call any evidence.

Close of the evidence in the case

The elements of the offences

138. Elements of the offences the prosecution must prove beyond a reasonable doubt are :

Counts 1 & 2

139. Attempted serious indecent assault, and serious indecent assault.

The defendant;

1. On the date in question;
2. Attempted to assault Vasiti Tangulu;
3. She was a person under 15 years of age, and
4. That attempted assault was indecent, in that he tried to touch her vagina.

The defendant;

1. On the date in question;
2. He assaulted Vasiti Tangulu;
3. She was a person under 15 years of age, and
4. That assault was indecent, in that he touched her thigh.

Counts 3 & 4

140. Attempted rape and rape.

The defendant;

1. On the day in question;
2. Attempted to put his penis into the vagina of Jennifer Niu, and
3. That was without her consent.
   

The defendant;

1. On the day in question;
2. Put his penis into the vagina of Jennifer Niu, and
3. That was without her consent.

Submissions

Prosecution submissions

141. The prosecution provided detailed written submissions.
142. In relation to the allegations in counts 1 and 2 it was submitted, inter alia, that Vasiti had been touched on her thigh three times by the defendant. Each was in the car on the way to school.
143. Vasiti gave evidence that Muli had tried to touch her thing but she had hit his hand and stopped him.
144. She used the body plan to indicate where on the thigh she was complaining of and also that her thing was her vagina.
145. On one occasion Jennifer and Niu were in the car fighting and so could not have been expected to witness this.
146. Vasiti told her mother, Mesia, who told her that is was alright, it was just her thigh.
147. Mesia asked the defendant about this, he denied it.
148. Carolyn Ta’ofi gave evidence that Vasiti had complained to her of touching her thigh, encouraging her to sit in the front seat of the car and also touching her thing.
149. That Vasiti had told Carolyn that Muli had picked her up when she was sleeping and carried her.
150. Turning next to counts 3 and 4; the evidence from Jennifer was that the attempted rape and the rape of her happened on the same day.
151. First an attempted rape that happened when they were both at home and Muli led her to a room, took her clothes off, his two and attempted to have sexual intercourse with her.
152. That caused her pain. She went to the bathroom and saw there was blood on the toilet paper after she had used the toilet.
153. By using the body map it was quite clear that Jennifer was referring to Muli trying to put his penis into her vagina; and on the second occasion his actually doing so.
154. Carolyn’s evidence was of Jennifer telling her of two quite separate occasions; an attempted rape when a car arrived and Muli stopped with his attempt to have intercourse with her, his having taken both their clothes off and another occasion when he actually had sexual intercourse with Jennifer, they were both undressed by him and under a blanket.
155. The complaint to Mele, by Jennifer, has been highlighted by the Crown. He put his thing on her thing and she felt pain. They have noted the occasion when Jennifer told Mele that he took her to the yacht club, removed her clothes and his and made her sing to his thing and lick it.
156. The prosecution then made a number of points about the defence case.
157. Amongst them were that the cross-examination on behalf of Muli of Vasiti amounted to that she was mistaken and the contact had been innocent; not that she had made it up. And, it was to be noted that Vasiti’s evidence was there was a number of occasions she said he had touched her thighs.
158. Jennifer was clear; allegations were not lies.
159. The recent complaint evidence was noteworthy and important.
160. It was put to Jennifer she had lied, but this had not been put to Vasiti. That had not been put to Vasiti, only that she was mistaken as to the meaning behind any contact there may have been, in the context of her grabbing the money and his getting it back.
161. It was stressed that there was no reason for these allegations to be manufactured. Inconsistencies are to be expected from young witnesses and the medical evidence does not exclude the possibility of what Jennifer alleged being true.

Defence submissions

162. Mr. Talia’uli wanted to know why it had taken so long for a medical examination of Jennifer to be carried out ?
163. When he worked the long hours that he did, an investigation of the CCTV at the Chinese shop he was employed at or checking with the Ministry of Justice should have been expected.
164. Why had the other people in the house where he lived been questioned ? Six adults lived there. The police ought to have questioned them.

Discussion

Vasiti Tangulu

165. To my mind a striking feature of Vasiti’s evidence was the discrepancy between what she had told Mele and what she had told the police.
166. Mele’s account was that Vasiti had told her that Muli touched her thighs and that when Mele heard this she immediately took her to the police station.
167. Vasiti had told Mele that this had happened on the way back from school.
168. Vasiti’s Account to the police was significantly different in that she had told them the touching of her thighs had happened on the way to school and that there had also been an attempt to touch her vagina.
169. The Crown made the point that the scope of the challenge to Vasiti’s evidence was not fabrication but innocent contact.
170. It is submitted that Mr. Talia’ uli can not argue that Vasiti has been influenced by Mele. That line of examination was not put to her.
171. That is true. But the reality is that Mr. Talia’uli is unrepresented. He can not be expected to have a lawyer’s overview of the case and provided the court with all the material to be put to Vasiti consistent with the case that Mele might have influenced these allegations.
172. There was then to be considered whether Vasiti should be recalled.
173. In my estimation Vasiti would deny any question that suggested that Mele had influenced her so she had come up with these allegations.
174. I therefore carefully balanced that possible course, with the likely outcome were it to be pursued. I judged it was not unfair for Mr. Talia’uli to be given scope to argue Vasiti was influenced by Mele, without recalling Vasiti.
175. In coming to that conclusion I am influenced by the very clear stance of Mele in making assumptions that took her from believing Mr. Talia’uli was a deportee, thus a criminal to being a possible sex offender.
176. I also take into account that from all the surrounding evidence, Vasiti would simply deny any suggestions of influence.
177. In the round, while I do not consider it appropriate to recall Vasiti for this single point, yet I do not believe that Mr. Talia’uli should be deprived of having that possibility considered.

Jennifer Niu

178. Jennifer gave two accounts in evidence which were very similar to one another, in that respect it differed substantially from the way the Crown had opened these separate allegations. In evidence it appeared that they merged, both as to the day they occurred and what had happened. The allegation that was indicted and opened as an attempted rape became an actual rape on her evidence.
179. Whilst Jennifer was being raped Vasiti walked past, she said. Jennifer remarked: “She was not paying attention to me.”
180. To Carolyn she had described one of those occasions as an attempted rape when “...Muli was finding it hard to put his thing into her...that was the exact time there was the sound of a vehicle arriving...” and so he was thwarted.
181. Of course she never mentioned in evidence any such occasion when a vehicle arrived as Muli was raping her or attempting to rape her.
182. Further, it is noteworthy that Dr. Toafa had asked Jennifer if there was any kind of oral sex that she was made to perform; Jennifer had told her there was none.
183. “Denied receiving or performing oral sex...” is what the Doctor noted.
184. This was in stark contrast to what she had told Mele.
185. Next, the account given to Mele, that the defendant had said to Jennifer words regarding how a pig would use its snout and that he had buried his face in her breasts was entirely missing from any account Jennifer had given in court, or to the Doctor or, on the evidence before me, to anyone else.
186. In her evidence she did not mention any occasion when there was a sexual assault that took place at a beach.
187. Yet she told the Doctor that there had been such an assault on her at a beach, likewise she told Mele of such an occasion and apparently told her that was when she forced to perform oral sex on Muli.
188. The Doctor’s report amounts to this: there was no evidence from the examination that could support the complainant’s account.
189. Mele Pohe’a Ta’ofi was quite clear in her view. As far as she was concerned Muli was nothing more than a criminal even though she had never met him, nor did she know why it was he had been deported.
190. Before the girls were returned to live with their mothers, Mele had decided that Muli was a potential threat to them and might sexually assault them and had warned them about this.
191. Mele had told both girls of the signs to look out for in the event of sexual assault.
192. She told both the girls if they were sexually assaulted she would take them back and they could come back to live with her.
193. It was after the girls have returned to live with their mother’s that they complained to Mele and made allegations against Muli.
194. There are significant differences in the account that Jennifer has given to the Doctor, to Carolyn, to Mele and in court.
195. Perhaps the most striking of these is the account that she gave to Mele as to being taken to the beach one night near the yacht club where Muli took her clothes off told her to sing and to suck his penis, which she did.
196. Not only did she make no such allegation in her evidence in court, the prosecution did not open on that basis. Also, she had specifically denied that to the Doctor.
197. Plainly an occasion of forced oral sex is a striking feature of an account of abuse. To have specifically denied it when asked by the Doctor, yet told Mele this had happened, while not giving evidence before me of this, raises concerns as to the inconsistency of her accounts and with that, her credibility.
198. Against this that I then consider the medical evidence.
199. The medical evidence does not support an allegation of rape.
200. In fact it tends to support the contention that there was no rape at all.
201. I consider how the account of an attempted rape, as opened by the Crown, in chief became an allegation of actual rape. Also, the way both allegations became merged, as I have described above.
202. Both the attempted rape and the rape were said to have caused Jennifer pain and to actually bleed.
203. Yet there was nothing in either account, from Jennifer, that explained why she had not alerted anyone to this, at the time nor shortly thereafter.
204. I guard against stereotypes about reactions to non-consensual sexual conduct. Experience shows that people react differently to the trauma of sexual assault. But, given Mele had specifically instructed both girls to call out if they were being assaulted, it is a puzzling feature of Jennifer’s account that she did not call out to Vasiti when she saw her walk past as Jennifer was being allegedly raped.
205. The prosecution have submitted both in their written document and oral submissions, that there is a feature of the evidence that needs special consideration. Both complainants have given accounts of being carried whilst they were asleep and waking up to find that it was the defendant who was taking them from the room in their home were they were asleep to another part of the fale.
206. The essence of the submission reflects these authorities; DPP v Boardman [1975] A.C. 421, R v Staffen [1952] 2 Q.B. 911, R v Ball [1911] A.C.47 “Evidence cannot be admitted merely on the ground that it proves a general disposition and tendency towards wrongdoing, or towards the commission of a particular kind of crime: it must have specific probative value in relation to the crime charged. However, evidence which does merely show criminal disposition may nevertheless have specific probative value in relation to the crime charged in the light of the other evidence in the case.”^[1]
207. The Crown’s submissions, as I understand it, is that the evidence of carrying both girls, on separate occasions, whilst they were asleep so as to move them into other parts of the fale, is evidence that Mr. Muli had an sexual interest in underage girls and would use this ploy to try to abuse them.
208. Accordingly this striking feature of his behaviour could be used as a form of cross-admissibility to prove the veracity of each complainant’s allegations. That, in the same way as in DPP v Boardman, where the defendant, a headmaster, faced allegations of attempted buggery and incitement to commit buggery as against two pupils, the judge had directed the jury that they could consider the evidence on the buggery charge, concerning the boy S, as going to prove the truth of the charge, concerning boy H and vice versa.
209. In this case, it is suggested that the evidence that he had carried Jennifer to a room whilst she was asleep to rape her, could be used to prove the truth of the allegation as against Vasiti, in that he showed the same unhealthy attitude and means of abusing or trying to abuse his victims; so one allegation could be used to go to prove the truth of the other and vice versa.
210. Had the evidence consistently supported this, there would be some force in this argument.
211. The difficulty for the Crown, though, lies in the differing accounts. To Doctor Toafa, Jennifer gave no such account of being carried whilst asleep and then taken to another room to be raped, or for an attempted rape, or at all.
212. To Carolyn, Vasiti’s version was significantly different in that she stated that she screamed and this forced Muli to stop and rush her back into the room from where she had been taken.
213. When I come to review this aspect of the evidence, I have serious concerns about the differing versions, so that I conclude it would be unsafe to use this evidence as generally probative and so serve a purpose of cross-admissibility.

Mele’s Pohe’a Ta’ofi.

214. Mele had told both the complainants that Muli was a potential threat, that he might sexually assault them and what the signs of sexual assault they were to look out for were. All the evidence suggested that both girls were very happy living with Mele that they had everything they wanted. Effectively, all they had to do if they ever wanted to go back and live with Mele was to report that Muli had been molesting them.
215. I then go on to consider the significant discrepancies in Vasiti’s account when she told Mele that the touching of her thighs took place on the way back from school, as opposed to on the way to school, as she stated in evidence, and made no mention to Mele of any of an attempt to touch your vagina.
216. These discrepancies undermine Vasiti’s credibility.
217. The discrepancies are both significant and also inexplicable on the evidence.
218. Given that the complaints were made very shortly after both girls have been returned to live together in the family fale with their parents, and after Mele had warned them against Muli, I cannot discount the possibility that both complainants concocted their accounts so as to be returned to the care of Mele where they were well looked after and given a very comfortable life in her home.

Result

219. Accordingly I return not guilty verdicts in respect of all four counts and the defendant is discharged.

The police investigation

220. I need to make some observations about the investigation. Firstly, in respect of Jennifer Niu’s allegation, there needed to be a timely medical examination. A medical examination of a complainant in a sexual assault case of this nature taking place 5-6 months is unacceptable.
221. Further, I was told by the prosecutrix that despite her requiring the Officer in the Case to obtain a witness statement from Taniela Niu, said to be in the car when Vasiti was allegedly being indecently assaulted, this was never done.
222. Mr. Talia’uli in his submissions to me asked, rhetorically, why all the adults living in the fale, where the rape and attempted rape were said to have been committed were not questioned by the police ?
223. I do not know who was and who was not interviewed. All I can say is if there were any such failures that also must be explained.
224. I direct a copy of this judgement must be passed to both Director Public Prosecutions and also the Police Commissioner.
     

N. J. Cooper

J U D G E

NUKU’ALOFA

9 June 2022

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^[1] Modern Law Review; volume 48, May 1985, No. 3 page 254.