R v L (a pseudonym) [2024] TOSC 74; CR 157 of 2023 (18 October 2024)

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

CR 157 of 2023

BETWEEN :
REX
- Prosecution

AND :
L (a pseudonym)
- Accused

VERDICT

BEFORE: HON. JUSTICE TUPOU KC

Appearances: Ms E. Lui & Mr ‘A. Fisi’iahi for the Prosecution

The accused in person

Date: 18 October, 2024

Prohibition of publication

1. At the outset, I make and an order pursuant to section 119 of the Criminal Offences Act to prohibit the publication of any details which might identify the Complainant or her evidence in this matter and such details shall not be published in the Kingdom in any publication available to the public or be broadcast in the Kingdom.

The Charges

2. The Accused pleaded not guilty to the one count of rape contrary to section 118(1)(a) of the Criminal Offences Act (Count 1), and/or in the alternative one count of carnal knowledge of a young person contrary to section 121(2) and 123 of the said Act (Count 2), and one count of serious indecent assault contrary to section 124(1), (3) and (5) of the said Act (Count 3).
3. Section 118(1)(a) reads:

“Any person committing rape that is to say who carnally knows any female-

(a) against her will...

shall be liable to imprisonment for any term not exceeding 15 years.”

4. At the close of its evidence, the Crown indicated its intention to apply to substitute the alternative count of carnal knowledge of a young person for one count of attempted rape under section 120 of the said Act. I directed that they include that application in their closing submissions to give the Accused an opportunity to respond to it.
5. Section 120 reads:

“Any person who attempts to carnally know any female under any of the circumstances enumerated in clauses (a) to (e) of section 118 shall be liable to imprisonment for any term not exceeding 10 years.”

6. The Crown submitted that the amendment sought meets the evidence before the court. Further, no prejudice to the Accused arise as the substituted alternative charge is based on the same evidence for the substantive charge.
7. The Crown referred to clause 13 of the Constitution which read:

“No one shall be tried on any charge but that which appears in the indictment, summons or warrant for which he is being brought to trial:

Save and except that —

(a) where the complete commission of the offence charged is not proved but the evidence establishes an attempt to commit that offence the accused may be convicted of this attempt and punished accordingly......”

8. And to R v Faletau [2020] TOSC 23, AM 4 of 2020. In that case, LCJ Whitten QC set out the relevant principles established by numerous decisions in the Kingdon and by common law that govern amendment of indictments. Those principles included the following:

“(a) It is very important that the prosecution take care to charge correctly.

(b) At trial, a defendant should face essentially the case on which he has been committed even though it may be modified.......

(e) Like any other procedural step in criminal law, in every case in which amendment is sought, it is essential to consider with great care whether the accused will be prejudiced thereby....

(j) Any proposed amendment in matters of description and other respects in order to meet the evidence in the case, or which does no more than take forward a case already laid on the evidence, reformulating it possibly with the assistance of some additional evidence, may be made so long as the amendment causes no injustice to the accused...

(l) Accused persons should not be acquitted merely because a charge is technically defective, unless the defect cannot be rectified.

(m) The essential question is whether the accused will be prejudiced.

(n) The overall aim must be justice both to the prosecution and the defence.”

9. The amendment sought by the Crown rise from the Complainant’s evidence that she was born on 25 June, 2007. Immediately, it was clear she was 15 almost 16 at the time of the offending. I am satisfied that the amendment falls within principle (j) above.
10. The Accused opposed the amendment but did not provide any basis for his objection. Given he is an unrepresented Accused, it was not unusual and, to some degree, expected.
11. However, I must carefully consider the essential question; whether the proposed amendment will prejudice L. I turn my mind as to what prejudice would, in fact, be caused by the amendment sought. I find that the nature of the amendment did not:
    1. call for the defence to have prepared his case differently as the substituted alternative charge was based on the same evidence; or
    2. alter the case he had to meet; or
    100. alter how he ought to have prepared his defence; or
    4. take him by surprise that would interfere with his conduct of his case; or
    5. require an adjournment.
12. Moreover, notwithstanding a decision on the application, this court may still convict for attempt under clause 13 of the Constitution. Accordingly, the application to amend and substitute the alternate charge of count 2 with one count of attempted rape under section 120 of the Criminal Offences Act, is granted.
13. Count 3 is brought under Section 124 of the said Act. That section reads:

“(1) Any person who shall commit an indecent assault on any person shall be guilty of an offence under this section......

(3) The offence of serious indecent assault — (a) is punishable by a term of imprisonment for any period not exceeding 5 years; (b) shall, subject to sections 35 and 36 of the Magistrate’s Court Act, be heard and determined by the Supreme Court......

(5) A young person under the age of 15 years cannot in law give any consent which would prevent an act being an indecent assault for the purposes of this section.”

14. The particulars of the relevant charges as they now stand, are:

Count 1: L of Tokomololo on or about 6 May, 2023, at Tokomololo, you did carnally know F, when you inserted your penis into her vagina without her consent.

In the alternative:

Count 2: L of Tokomololo on or about 6 May, 2023, at Tokomololo, you attempted to rape F by attempting to insert your penis into her vagina without her consent.

Count 3: L of Tokomololo, on or about 6 May 2023, at Tokomololo, you indecently assaulted F who is a 14-year-old female, when you licked her vagina.

The elements

15. In order to establish the charge of rape against L, it must be proven beyond a reasonable doubt that on the alleged date and place:
    1. L had intentionally inserted his penis into F’s vagina;
    2. without her consent; and
    100. L knew F did not consent to him doing so or he was reckless as to whether she consented to it.
16. For the alternative charge of attempted rape against L, it must be proven beyond a reasonable doubt that on the alleged date and place:
    1. L had intentionally attempted to insert his penis into F’s vagina;
    2. without her consent; and
    100. L knew F did not consent to him doing so or he was reckless as to whether she consented to it.
17. In terms of the charge of serious indecent assault against L, it must be proven beyond a reasonable doubt that on the alleged date and place:
    1. L intentionally assaulted the F;
    2. that the assault was indecent;
    100. L intended to commit an assault of that kind; and
    4. F was 14 years old at the time.
18. The Crown did not seek an amendment in terms of Count 3. The dates of the alleged offending on all 3 Counts are the same and an impossible situation is created where the Complainant is considered to be over 15 years of age under Counts 1 and 2 and 14 under Count 3. I will return to this issue later.
    

Cautions

19. In considering a verdict for this case, I have reminded myself of the following significant but necessary matters. Firstly, that the Crown bears the burden of proving each element that constitute the charge it has brought against L beyond reasonable doubt. That burden and standard is unchanging throughout the trial.
20. Secondly, that L is under no obligation to prove his innocence. It follows that there exists no obligation for him to give or call any evidence unless he elects to.
21. Thirdly, that the Crown’s case stands or falls on the admissible evidence which the parties choose to call before me in this court and that I must judge the case only on such evidence.

The Evidence

22. The Crown called 4 witnesses, namely, F, the Complainant, V, an eyewitness and two police officers, Detective T and Detective V from the investigating unit of the Police Department who took photographs and produced a sketch map of the crime scene.
23. Detective V produced exhibits 1-26 which were photographs of the areas where L and F were the night of the offending, including the crime scene. Those exhibits were produced without objection and explained by him as below;

Exhibit	Explanation
1	the front of F’s mother’s home
2	the back of F’s mother’s home
3	Under the ifi tree at F’s mother’s home where the drinking began
4-7	V pointing out the way they left from the home to the bush where they continued to drink
8	the tree where they sat and continued drinking
9	The path V took to look for his wife and others in the group
10	Where V stood looking into the neighbours where his wife and others went
11	The neighbour where V said his wife and others went
12	V showing where his wife and others entered the neighbours
13	V showing the taro plant where he stood and then sat to watch
14	V demonstrating how he sat and watched his wife and others at the neighbour
15	V pointing to where the Accused slipped in the mud and fell while chasing F
16	V showing the distance between himself and L when he slipped in the mud
17	V pointing out where F was when L slipped
18	V pointing out where F first tried to climb the fence
19	V pointing to the second point where F ran and tried to climb over
20	V showing the point where L caught up with F
21	V showing where L led F to
22	V demonstrating how he walked back to their original drinking place to find L and F were not there
23	V demonstrating how he saw L kneeling in front of F at the crime scene committing the alleged serious indecent assault and rape
24	V demonstrating where he stood at the scene and observed L committing the alleged serious indecent assault
25	V demonstrating how he saw F when he came back to her mother’s house
26	V demonstrating F looking through the hole on the door for her mother.

24. Detective T produced exhibit 27, a sketch map he drew of the crime scene as directed by eyewitness V recording the relevant measurements of distance in the areas that F and L were and where V observed them and the alleged offending as they occurred.

The Complainant’s evidence

25. I observed and listened to the Complainant as she gave her evidence. She was shielded by a partition at the witness box from the Accused at the bar table.
26. She was born on 25 June, 2007 and was living with her father at Hofoa at the time this matter went to trial. It appears that at the time of the offending, her parents were separated and the Accused, was in a de facto relationship with her mother.
27. She told me that she previously attended school at ‘Eua. However, in 2021, when she was in Form 2, she returned to live with her mother at Tokomololo, Tongatapu. She was, for a short time, enrolled at Liahona High School and then dropped out that same year.
28. She recounted how the Accused met her mother 2 weeks after her return from ‘Eua. He moved in and has been living with them in the same house since. Altogether, there were six people living at her mother’s house at the relevant time. They were; her mother, the Accused, her sister S with her husband V, another sister ML and the Complainant.
29. On the evening of 5 May, 2023, the family were home with 2 of the Complainant’s younger sisters (it was not clear where they lived), a cousin M and her friend MS who was in Tongatapu from Ha’apai on the way abroad for fruit picking. He was leaving the next day.
30. She said the Accused returned home that evening around midnight as he had been drinking kava. He brought 2 bottles of alcohol and a couple of beers with him. He invited them to drink with him to farewell MS. F, her two sisters, V, their cousin M and her friend MS joined him.
31. They started off at the ifi tree on the home compound^[1]. The alcohol was mixed with water and tang and they drank out of plastic cups. She said that she had drunk about 3 cups while under the ifi tree. Her mother woke up and told them to go drink elsewhere. The group left and went to a nearby bush allotment where they sat in a clearing under a tree^[2] and continued drinking.
32. The bush allotment was situated behind the house to the left on exhibit 5. Exhibit 7 shows the fence behind that house where they entered the bush allotment to exhibit 8 showing the clearing and tree where they drank. F marked how they were seated. The Accused had his back to the tree trunk and they sat circled around him. She was seated to his left and her sister ML was seated to his right.
33. It was a moonlit night and they were able to see each other as they drank. The Complainant had been to this allotment before to collect coconuts and firewood.
34. She recalled that they ran out of alcohol. From thereon, she could not remember much more except that at one point she was running away from the Accused. She did not know why but she was scared. The Accused was calling her name as he chased her telling her he would take her home. She tripped and fell and he caught up to her. He pulled her up saying he will take her home at which point she blacked out.
35. The next thing she recalled was coming to and realising she was still in the bush. She was lying on her back and the Accused was on his knees, facing her and zipping up his pants. She got up and ran home. She realised when she got home that she was naked from the waist down. She knocked on the back door. Her mother came out via the front door. She told her that the Accused had removed her clothes. Her mother did not believe her and told her not to tell lies and to go and sleep it off.
36. She went to sleep and when she awoke there was a heated discussion outside between her mother and her cousin M and sister S. She did not know what they were arguing about. But she left and lived with her grandmother at Fua’amotu on the same day because of what had happened to her.

Cross examination by the Accused

37. Relevantly, the Complainant was asked if when she came to in the bush, it was he she saw. The Complainant confirmed it was. She was asked if there were fruit pickers in the group that drank with them. The Complainant denied that suggestion. She was asked if he led her. She confirmed he did. She was asked if when she said they were in a chase, he was following her. She confirmed he was.

V’s evidence

38. V’s evidence largely matched the Complainant’s evidence up to when they were seated at the bush allotment. When the Complainant blacked out, V’s evidence filled in the blanks as to the events that occurred between the Accused and the Complainant that led to the offending.
39. V said the alcohol ran out and the Accused gave M, MS and his wife, S $50 to get more. Those 3 left and when they arrived at the neighbour’s house^[3], S was making a commotion at the kava party there. ML followed them to bring S back. V himself followed ML to watch out for his wife. The Accused and Complainant remained at their drinking place.
40. When ML entered the neighbouring compound, V stayed back and watched from the bush. He wanted to know whether his wife stayed on there or whether she went with the others to get the alcohol.
41. He watched for a while and then sat down near a taro plant^[4] keeping an eye out for his wife^[5]. He then heard running. Then he saw the Complainant running in front followed by the Accused down the same path not too far from where he was sitting.
42. The Complainant ran past him to the neighbour’s fence and tried to climb over it. The Accused, in chasing the Complainant slipped in the mud^[6] not far from where he was sitting. At that point the Complainant was trying to get away^[7]. The Accused got up and ran past him towards the Complainant who had run towards another part of the fence and tried to climb over. She did not succeed.
43. The Accused caught up with her and led the Complainant back to their drinking place. He heard the Accused tell the Complainant to sit and drink with him as the others were almost there. The Complainant said that she wanted to go to her mother repeatedly. The Accused told her to wait for the others to come with the alcohol. Then it went quiet.
44. V described how he walked^[8] back to their drinking place and saw no one there. He thought the Accused and Complainant had gone home. He paused there looking to see if the others were coming back. Then he heard the Complainant’s voice calling her mother. He followed the sound of her voice.
45. He reached an area further out from their drinking^[9] place and saw the Complainant lying on her back facing upwards calling for her mother. The Accused was on his knees holding her legs up and was licking her vagina. The Accused was fully clothed at the time. He had a black t-shirt and shorts on. The Complainant had a black t-shirt on but was naked from her waist down.
46. He walked back towards where they were drinking to see if the others had returned. They had not.
47. Then he walked back to where the Accused and Complainant were. When he got there, the Accused’s shorts were down this time and he inserted his penis into F’s vagina and had sexual intercourse with her. This time he moved up to approximately 1.75metres behind the Accused and then further up to a distance of about 1.60metres where he observed the Accused having sexual intercourse with the Complainant. During this time, he said the Complainant was calling her mother’s name.
48. Then he saw a light from their drinking place and he walked towards it and found it was his wife S who had come looking for him. They went back home. When they arrived he saw the Complainant at the back door of the house knocking^[10] and looking through the hole^[11] calling for her mother. Her mother did not come out.
49. He told his wife, S to get his phone from ML while he got some clothes for the Complainant. He got a t-shirt for her to put on her waist down. The Complainant asked for her mother and he told her to calm down as she might come and hit her. It was not long before her mother came out with a piece of wood and hit the Complainant with it.
50. The Complainant went with her cousin M to see MS off at the airport and she remained at Fua’amotu with her grandmother.

Cross examination by the Accused

51. V’s evidence as to time was rightly challenged by the Accused as there was inconsistency in his own evidence as well as against the Complainant’s evidence. For example, the Complainant said the Accused returned home on the relevant night between 12 midnight to 1am in the morning. V said it was 9pm and he estimated they left for the bush allotment around 10pm. He said the alcohol ran out at around 5am but under cross examination, he estimated the time the Accused chased the Complainant was around 11pm, 12 midnight or 1am. Then he estimated the time he saw the Accused having sexual intercourse with the Complainant’s at around 4am.
52. V was asked if there were others, in particular, fruit pickers drinking with them in the bush. V denied the suggestion. V was asked if he recalled him, the Accused telling that he slipped in the mud and they laughed at him. V said he knew he slipped and fell in the mud.
53. It was put to V that he, the Accused had asked him about his statement that he saw him insert his penis into the Complainant’s vagina and V had denied it and said it was not him but someone else. V denied knowledge of any such statement.
54. At the end of the Crown’s case, the Accused elected not to give evidence.
55. I acknowledge at this juncture that on 27 March, 2024, L was served the exhibits the Crown was to rely on together with a copy of the 20-page information brochure for self-represented Defendants on the criminal trial process. The court was assured by Ms. Lui that she had explained to the Accused in detail what the document meant. Additionally, he had been given numerous opportunities and adjournments to find legal counsel and it was at his suggestion that this trial went ahead on the basis he had decided to represent himself.

Crown’s submissions

56. Ms. Lui submits that the Crown had discharged its burden to the required standard on all Counts against the Accused. She relies on the evidence given by the Complainant as well as that of V. She submitted that V’s evidence completed F’s evidence.
57. It was argued that the Accused’s sexual intentions towards the Complainant was evident in his actions once he realised they were alone. The Complainant tried to escape and he chased her. Once he caught up with her, he did not take her to her mother but led her back to their drinking place. He told her to stay and drink with him when he knew there was no more alcohol and took advantage of her intoxicated condition.
58. On the way back, she tripped and blacked out. The Accused removed her shorts, and indecently assaulted her and then proceeded to rape her.
59. The acts of rape and indecent assault were witnessed by V and he was a credible witness. There was no reason for him to lie about the Accused and a finding of guilt for rape or in the alternative, attempted rape and indecent assault was appropriate.

Defence submissions

60. The Accused, in his submissions, denies the truth of any part of the Crown’s submissions. He submitted that the evidence of the Complainant and V were inconsistent as to where individuals in the group sat under the ifi tree and at the bush allotment. He denied the Complainant sat close to him.
61. He accepted he was 37 years of age and was living in a de facto relationship with the Complainant’s mother.
62. He said that there were a lot more people in their drinking group then those identified by the Complainant and V. Those people are now fruit picking abroad. He suggested that the complaint was conveniently delayed for those boys to leave in order to trap him. He submitted that this whole case was concocted to separate him from the Complainant’s mother so their father can return to the family.
63. He said he did not chase the Complainant or do anything to her. He did not take her home, she went home on her own while he had gone on and drank kava with the fruit pickers before he returned and drank with MS, M and ML.
64. He said it was a dark night and submits that V did not have any light with him to see that he was having sexual intercourse with the Complainant.
65. In conclusion, he submitted that the evidences of the witnesses were untrue and that is why he pleaded not guilty.
66. Unfortunately, for the accused, there was no evidence to challenge the Complainant’s and V’s evidence and I am bound to accept their admissible evidence.
67. I accept his submission that he did not take F home and that she went home herself. It is consistent with F’s evidence that when she came to and saw him on his knees facing her and zipping up his pants she got up and ran home. The balance of his submissions are rejected.

Considerations

68. For Count 1, the issue is whether the Crown has proved beyond reasonable doubt that the Accused penetrated the Complainant’s vagina with his penis without her consent and that the Accused knew the Complainant did not consent to him doing so or he was reckless as to whether she consented to it.
69. On the evidence I am satisfied that the Complainant was rendered insensible by intoxication at the time of the offending and did not have the capacity to give her consent. I further find that the Accused knew and was reckless as to whether the Complainant consented to it.
70. V impressed me as a witness of truth. His evidence was largely consistent with the Complainant’s evidence while she was still conscious to the point where the Accused chased her.
71. He was confident about the chronology of events and was able to describe them to the detectives in detail pointing them to the area and identifying the events that occurred at which area which were photographed and produced at the trial. He repeated those descriptions in court.
72. I found his response to the Accused’s questions genuine, although in observing him, I got the impression it was not easy for him to be in the position of giving evidence against the Accused.
73. I take into account that V had resided with both the Accused and the Complainant for two years at the time of the offending. I also consider the length of time whereby he observed the Accused and Complainant from the point they were chasing each other to when he found and observed the Accused on his knees and the Complainant on her back while the Accused indecently assaulted her, to walking away and returning to them again and observing the Accused rape the Complainant. V was at no point in his evidence, in doubt that the two persons he observed were the Accused and the Complainant. For those reasons, I am satisfied that he was amply familiar with them to have the ability to identify them on a moonlit night at the bush.
74. There is nothing before me to indicate that the Complainant or V had any reason to concoct these serious and damaging allegations against the Accused.
75. I turn to three areas in the Complainant’s and V’s evidence that varied. First was as to the time events occurred and second was as to the colour of the Complainants shorts. The Complainant said it was black, V said it was white. I am not too concerned about that. There was no evidence that anyone in the group had a watch and/or was looking at the time as things occurred. Furthermore, the participants were drinking and the recollection of exact times would naturally be distorted under such circumstances. In any event, the time and colour of the Complainant’s shorts were not material to the relevant issues.
76. Third, I have not ignored the evidence of the Complainant that she blacked out at the relevant time of the offending as against the evidence of V that she was calling her mother. I accept that it was likely the Complainant was calling for her mother, but did not know it owing to having been rendered insensible by intoxication or does not recall it.
77. Where V’s evidence clashed with the Complainant’s, I preferred his. I find the following matters proven beyond reasonable doubt. That when the alcohol ran out, the Accused had sent off M, MS and S to get more alcohol. ML followed to get S, and V went with her leaving the Accused and the Complainant on their own at their drinking place. Something happened between the two that scared the Complainant prompting her to run from the Accused and the drinking place.
78. The Accused chased after her, slipped and fell in the mud (which he appeared to admit he told V about in one of the questions he posed to V in cross examination). He chased the Complainant past V. The Complainant ran for the neighbour’s fence which she attempted to climb twice to get away from the Accused. The Accused caught up with the Complainant and led her back to the drinking place despite her repeated requests to go to her mother.
79. I accept the Complainant’s evidence that when the Accused led her back she tripped, fell and then blacked out. I am satisfied that while she was in that state, the Accused must have been aware of her condition. He then removed her shorts and committed the indecent assault that V walked in on whereby he observed the Accused lift the Complainant’s legs and licked her vagina. I accept that he was able to see that it was the Accused committing the act on the Complainant from where he was, about 3.6 metres from them.
80. I also accept V’s evidence that when he came back the second time, and stood about 1.75 metres behind the Accused and then moved up to about 1.60metres, he could see that the Accused’s shorts were down and he was having sexual intercourse with the Complainant with his penis penetrating her vagina. I am satisfied that V being a married man himself was capable of understanding what he was observing and describing it as he did to this court.
81. I am further satisfied his intention were exposed by chasing after the Complainant, leading her back to where he knew they would be alone and when she blacked out he committed the offending he faces and that each element of the offence of rape at paragraph 15 above have been proven beyond reasonable doubt.
82. Turning to Count 3, the Crown has now on my invitation withdrawn that charged.

Result

83. I find the Accused guilty of the charge of rape and is accordingly convicted.

P. Tupou KC
J U D G E

Nuku’alofa: 18 October, 2024

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^[1] Refer exhibits 2-3
^[2] Refer exhibit 8
^[3] Exhibit 9 – the path they walked through to the neighbour
^[4] Refer exhibit 14
^[5] Exhibit 10-11
^[6] Refer exhibit 13
^[7] Refer to exhibit 16
^[8] Refer to exhibit 22
^[9] Refer to exhibit 23
^[10] Refer exhibit 25
^[11] Refer exhibit 26