R v Funaki [2024] TOSC 111; CR 160 of 2024 (9 December 2024)

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

CR 160 of 2024

BETWEEN:
R E X
-Prosecution

AND:
MANASE FUNAKI
-Accused

JUDGEMENT

BEFORE: LORD CHIEF JUSTICE MALCOLM BISHOP KC

Appearances: Mr J Lutui, Director of Public Prosecutions for the Crown Prosecution
The Accused in Person
Date: 9 December 2024

THE CHARGES

1. On 9 October 2024, the Defendant was arraigned where he pleaded not guilty to the following charges:
   1. Count 1: Attempted Rape, contrary to section 120 of the Criminal Offences Act.
   2. Count 2: Serious Housebreaking, contrary to section 173(1)(b) and (5) of the Criminal Offences Act.
   100. Count 3: Common Assault contrary to section 112(a) of the Criminal Offences Act.
2. On Tuesday 3 December 2024, trial for this matter began and I heard closing submissions from both parties on Friday 6 December 2024. I now proceed to Judgement of this matter.
   

THE LAW

3. Rape pursuant to section 118 states:

(1) Any person committing rape that is to say any person who carnally knows any female — (a) against her will; (b) being aware that she is in a state of insensibility (whether due to sleep, intoxication or any other cause); (c) being aware that she is feeble minded, insane or is an idiot or imbecile as to be incapable of giving or refusing consent; (d) by personating her husband; or (e) by reason of her consent to such carnal knowledge having been given under fear of death or serious injury, shall be liable to imprisonment for any term not exceeding 15 years.

(2) For purposes of subsection (1) 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 (3) It is hereby declared that if at a trial for a rape offence the Court has to consider whether a man believed that a woman was consenting to sexual intercourse, the presence or absence of reasonable grounds for such a belief is a matter for which the Court is to have regard in conjunction with any other relevant matters in considering whether he so believes.121 (4) A prosecution may be instituted against a woman as an aider and abetter in respect of an offence under subsection (1)

4. Attempted rape is defined by section 4 of the Criminal Offence Act:

Definition of attempt (1) An attempt to commit an offence is an act done or omitted with intent to commit that offence forming part of a series of acts or omissions which would have constituted the offence if such series of acts or omissions had not been interrupted by the voluntary determination of the offender not to complete the offence or by some other cause. (2) A person who attempts to commit an offence by any means shall not be acquitted on the ground that by reason of the imperfection or other condition of the means or by reason of the circumstances affecting the person against whom or the thing in respect of which the crime was intended to be committed it was not possible to commit the crime according to his intent.

5. Section 7 provides that if an accused is charged with attempt but the complete offence is proved he is to be convicted of attempt.
6. Serious housebreaking is defined by section 173(1)(b) of the Act:

House-breaking 166 (1) A person is guilty of an offence under this section if — (a) he enters any building or part of a building as a trespasser and with intent to commit any crime; or (b) having entered any building or part of a building as a trespasser he committed or attempted to commit any crime in the building or that part of it.

7. Common assault is defined by section 112(a):

Common Assault: Every person who wilfully and without lawful justification — (a) strikes at or actually hits another person with his hand or with anything held therein; (b) seizes or tears the clothes of another person; (c) pushes, kicks or butts another person;

DISCUSSION

8. These offences may seem rather complicated when set out in extension, but on the facts here are quite straightforward. The case against the accused is that he climbed through the glassless window of the complainant home pulled her out of bed, took her to a nearby couch, compelled her to have oral sex with him.
9. He compelled to perform cunnilingus and threatened the complainant that he would kill her, his arm was across a face to prevent her crying out and forcibly removed her lower clothing, before attempting to have sexual intecouse which he could not achieve because of his flaccid state. His defence is that the sexual relations were entirely consensual.
10. The parties had a previous relationship in 2016 fortutiously they now now occupied adjoining our neighbouring premises. They renewed their acquaintance and arranged to meet at night for the purposes of a sexual. At the time the Defendant’s wife was in the adjoining property together with members of her family. The complainant was at home with her daughter with whom she was sharing a bed and her husband being abroad in New Zealand.
11. It follows that if I am satisfied to the criminal standard that the version given in evidence by the complainant is true then all or some of the offences have been made out. On the other hand if I am not so satisfied in relation to each of the individual counts which I must consider separately, the defendant is entitled to be acquitted. Essentially the issue here is does the complainant’s evidence make me sure that what she said happened did in fact take place or can there be a reasonable doubt about it?
12. To answer that question it is necessary to summarise the salient parts of the evidence, though it is not my intention to regurgitate the entirety of the evidence but simply to identify those aspects which are necessary to decide the issue before me.
13. The complainant gave evidence. She said she was 27 years old and has a two year old daughter and is married.
14. On the night in question she was asleep with her daughter sleeping in the same bed next to her. The Accused called out at about midnight asking to borrow a charger. She replied that he should come back and in the morning.
15. She was in bed and then shortly after fell asleep. The next thing she realised was someone at her side. She opened her eyes. The lights were off but when the intruder switched on his phone and by its light she realised it was the Accused he asked her, “Why did you swear at me and call me a black penis?”
16. She denied saying that he then pushed her head down. She fell to the ground and called out to Ofa, the Accused’s mother-in-law sleeping in the adjoining house, but the defendant sat on her while she was on the ground.
17. She asked him to get off because she was four months pregnant and didn’t want a miscarriage. The Accused then pulled down her trousers partially and dragged her to the nearby couch, holding his arm against her head and mouth to prevent her calling out. He then inserted his fingers in her vagina pulled her hair again, punched her to her side and tell her to be quiet otherwise he would kill her.
18. He got on top of her took out his penis and told the complainant to suck it she did so in fear . She says that his penis was not erect, so he put it outside her vagina and move backwards and forwards before performing cunnilingus. He copulated three times but only stopped when he heard the nearby church bell ring for morning prayer. He then pulled up the complainant’s trousers went to the door and said in an ironic or teasing way, “ ok?”
19. The complainant then telephoned the police land and lodged a complaint. They duly took photographs of the complainant’s rather humble property and produce dphotographs which have been exhibited as exhibit one two and three. During cross examination she denied that there had been a pre-existing relationship of a sexual nature between them. It was suggested that this happened during 2016. During cross-examination, the complainant .denied that she had told the accused that she intended to divorce her husband and that she loved the accused. She explained the reference to the black penis as a joke which was shared with the defendant wife while she was doing her her hair earlier that day.
20. At one stage and cross examination the complainant said that the tip of the his accused’s penis did in fact enter into her vagina, but as I explained to counsel that, absent consent, would amount to rape but I do not think it fair to amend the indictment of this late stage to take account of that and will proceed on the basis that the allegation is one of attempted rape, See section 4.
21. The accused called his younger sister who when the parties according to him were living together was 12 years old. She says she was certain they were in a sexual relationship and that on one occasion they both slept over at her family home. In his own evidence the accused emphasised that what happened on the night in question was simply a repetition of what would frequently occur during their relationship. He said he would remove her clothes. He would then engage in cunnilingus until she reached orgasm and intercourse then took place, she then performed fellatio. He denied that on the question 19 he failed to reach an erection and in fact said that he fully inserted his penis in the defendant in the complainant’s vagina and that this was all of a piece with the sxual defective relationship which they had both had in 2016. That is the evidence of the encounter itself.
22. The other piece of evidence was given by police constable Fahiua who conducted an interview and caution, the voluntariness of which is challenged. I draw attention to the fact that each of the accused’s alleged 35 answers were signed by him is the usual practice here. In in that interview the accused is said to have replied in relation to question 11. “What was the reason for bringing you here?, “my bad act.” He was asked what was the bad act that you did? His reply to answer 12 was “ rape.”
23. He was asked about his entry into the complainant’s property and said that he had been drinking kava when tried to borrow a charger and he then climb through the glassless window and when asked, did the accused consent to this happening? He said no, he was asked about what happened next and said that when he had taken off the complainant’s clothing, “she pushed me and I forced her.”
24. He went further and said “I held her feet and pulled them apart for me to eat referring to cunnilingus.”
25. He added that he had told her to suck him otherwise he would punch her he admitted fully and inserting his penis into her vagina, “I grabbed the feet tight and cornered her to the chair and fucked her.” When charged he said he was remorseful.
26. Now I have taken it into account the way in which each party gave their evidence I accept that demeanour is an uncertain guide to credibility. However I found the Complainant gave her evidence was in a calm indeed, resigned way.
27. If the accused is to be believed or may may be believed then it follows that he had previously agreed with the complainant to visit her at night a visit that she was expecting that event, it is difficult to see why according to him she should remain lying in bed when he called out to her rather than go to the window to aid his entry.
28. It also seems to me difficult to see how a pregnant woman as I find would consent to have sexual intercourse and accompanying foreplay in the same room as her two-year-old daughter.
29. She explained and I found her evidence convincing the sequence of events, first the standing of the bed side, switching on the mobile phone light pulling her to the ground, dragging her to the couch requiring her to perform fallatio and then have himself to undertake cunnilingus and finally to have intercourse which resulted in three orgasms.
30. I am driven to the conclusion that there probably was a sexual relationship between the parties in 2016 and to that extent the complainant was not being truthful when she denied any previous knowledge of the Accused and of the sexual relationship between them in 2016.
31. Of course that is a matter that I must anxiously consider in deciding whether that decisively impacts on her credibility.
32. I find that it does not, because it seems to me she was actuated by embarrassment. She had later married and had a child and was very reluctant to admit a prior relationship between the man who happened to be now living next door, to that family and to the Police.
33. Taking full account of that, I have come to the firm conclusion that what the Complainant related did in fact happen I note that the accused admits being out and drinking kava which might of course explain his failure to achieve erection. It also may explain the nocturnal entry to the property because a daytime encounter would have been seen by his wife and her family and would not have been acceptable to them.
34. If what the accused says was or may be correct, then it follows that the Complainant was highly imaginative and capable of weaving a detailed account which it seems she must have disclosed to the police as soon as she was able to afterwards. Having observed the complainant give evidence I conclude that she was not sophisticated or manipulative enough to concoct this story presumably to avoid her husband finding out what had happened in his absence.
35. But if the accused evidence is or maybe correct there was no risk of that in any event, the husband was far away overseas. There’s no suggestion that what happened was interrupted and no suggestion that his family knew anything about what had just occurred.
36. So I can find no motive at all for the complainant to make up what must be a wicked story which she must’ve realised would have had very serious consequences as far as the Accused’s future is concerned.
37. She does not have the intellectual character resources to make that at all possible according. I bear in mind that according to the accused’s own account the complainant told him she loved hi, and wanted a doivorce. Would she a short time later report him to the police for serous sexual offences ? I have some difficulty with Count 2, entering as a tespaser.
38. I concluded that although then Accused was in fact a trespasser because she never invited him into the property nevertheless, I cannot rule out the possibility that he genuinely belived he would be welcome.
39. Without delving too much into the jurisprudence which may arise I have decided in fairness to acquit the accused of Count 2 for serious housebreaking.
40. But I have no doubt that what happened next was not with the complainant’s consent and that he knew that, otherwise why would he manhandle her and try to stop her calling out and threaten to kill her? Ths means that he is guilty of attempted rape Count 1 and common assault in Count 3.
    

NUKU’ALOFA
HON. MALCOLM BISHOP KC
LORD CHIEF JUSTICE
9 December 2024