R v Salesa [2010] TVHC 2; Criminal Case 01 of 2009 (24 May 2010)

In The High Court of Tuvalu
At Funafuti
Criminal Jurisdiction.

HC. Crim. Case no. 1/09

Between:

R

V

Filiotama Salesa
Defendant

BEFORE THE CHIEF JUSTICE

D Gorman for prosecution
I Isala for accused

Hearing: 19 – 22 May 2010
Judgment: 24 May 2010

Judgment

1.On 11 April 2009 Nivaga II sailed from Vaitupu to Funafuti via Nukufetau. Amongst the many passengers were a 19 year old Norwegian part Tuvaluan girl, Sonia Dahl, who was returning from a visit to Vaitupu with her aunt, Tagisia Efata, to pick up the aunt’s grandchild and to watch the sports day at Motufoua. They had spread their mats on the starboard side of the main deck just aft of the boxes containing life jackets. Sleeping on the nearer of those two boxes was the accused, Filiotama Salesa, and his pregnant wife, Lila, who were travelling with Lila’s mother back to Funafuti for the birth of the baby. The ship was very crowded with many people sleeping on the main deck.

2. During the voyage, the prosecution case is that the accused took Sonia downstairs against her will to a cabin identified by all the witnesses as Room 11 where he assaulted and raped her. As he left her, he invited another man, Starchel Soloseni, into the room where he also raped the victim. This accused is charged with rape and common assault. Counsel for the Crown has confirmed that, if the accused is convicted of the rape, he would not seek a verdict on the assault charge.

3. During the voyage to Nukufetau the two families got into conversation in which Tagisia told Lila that Sonia was related to the accused. It appears that neither knew of this relationship and the accused denies it is, in fact, true.

4. At one stage after they had left Nukufetau, the accused was asked to go to the upper deck to find a doctor travelling on the ship and ask her to come down and look at a baby who was unwell. He was then involved in drinking with some men on the upper deck for some time during which they consumed between them a bottle of Bounty rum and a quarter bottle of wine. The accused told the Court he only drank one glass of rum and a small amount of the wine. He accepts he was affected by the drink but was still well aware of all that was happening.

5. Whilst Filo was away from the others, a trainee seaman, Ali, who knew Sonia came to talk to her with the permission of her auntie. By the time the accused returned, his wife, Tagisia and Ali were all asleep. Tagisia told the court that she had previously warned Sonia about walking around the ship alone and that, as the accused was a relative, he should look after her. On his return, Sonia was not asleep and asked him if he would accompany her while she went to the women’s’ toilet. They went together and the accused waited outside. At that point the deck is effectively only a narrow passageway along the side of the superstructure. It was some time after midnight and most people on the deck were asleep.

6. As in many rape cases, the prosecution case depends principally on the evidence of the complainant, Sonia. The case is that whilst she was urinating, the accused came into the ladies toilet and pushed open the door of the cubicle where she was. She stood up and he pushed her against the wall and told her he loved her. She tried to push him away and reminded him that they were related. However, the accused kept touching and kissing her and saying he loved her but, when she continued to resist his advances, he hit her in the face and dragged her by her hair across the toilet and out of the door. She screamed twice but it appears no one heard or took any notice. Sonia pointed out that the noise of the sea and the ship’s engines were loud and sound was easily lost. The room where the toilets are has only one small porthole to the outside.

7. Once outside, Filo pulled her by the hand along the narrow side deck. Sonia told him not to do it, repeated that they were related and reminded him that his wife was pregnant and about to have a baby. As she was being pulled along she tried again to scream but he put his hand on her mouth and said that he would beat her up and throw her overboard if she did. Sonia told the court that she was very scared by that threat. She is small; she told the Court that she is 155 cms tall. The accused is clearly taller and powerfully built. Sonia explained that she also spoke to him properly in a such a way that she felt he may accept so she could go back to her auntie and she would say nothing about it.

8. She did not notice anyone sleeping in the narrow part of the deck although the accused stated there were a number of people sleeping there. The court viewed the locus and the deck there is narrow and has a number of structures along its length. It would not be likely to have been chosen by anyone wishing to lie down but I accept there may have been one or two.

9. When they reached a door from the deck into the cabin area, he held her with her hands locked behind her and pushed her through the door and along a short passageway to some stairs down to the lower deck. He pushed her down those stairs. He was not holding her but had her hands behind her back and his push caused her to stumble. At the foot of those stairs he again pushed her down another flight to the deck below. On the way down those stairs her recollection is that, again, he did not hold her but pushed her. Halfway down she held the rail and he then pushed her hard enough to cause her to fall to the bottom. She was crying and saw some trainees to her left at the foot of those stairs. She asked them to help but they just laughed at her. Filo picked her up from her back and pushed her in front of him to one of the cabins. It was locked but one of the trainees opened the door and the accused pushed Sonia into the cabin so she fell on the floor.

10. The defence called a witness, Lina Malaki, who was sleeping in the passage way on the main deck. She told the Court that she was effectively lying across the top of the stairway. She had her sick daughter with her whom she had collected from Vaitupu and only slept fitfully much of the time. She did not see Filo and Sonia pass on their way down. It has been suggested by the defence that the complainant could have called to her for help. Sonia told the court she was not aware of anyone there when they passed. The witness told how she was not always there and went at least once to the bridge for some Panadol for her daughter. The witness also did not see Sonia when she ran upstairs after she had been raped.

11. Once inside Room 11, the accused closed and locked the door and turned off the lights. He took off her sulu and top and, when he lay on her, she realised he was naked. He then raped her. As he did so he held her hair and pulled her head to one side so her face was to the floor. Whilst this was going on, the girl was trying to struggle, repeatedly saying "No" and was crying. His response was to tell her to shut up and that he cared about her. Before and during the rape he also hit her although she could no longer recall precisely where those blows landed.

12. After he had ejaculated, he stood up, dressed, put on the light and opened the door. The girl was still lying on the floor and she heard him saying to someone outside "Come, come". The accused then left the room and another man entered. It was Starchel whom Sonia knew and to whom she was also related.

13. She was still crying and tried to persuade him to help her so she could go to the Captain or her auntie. Instead, he locked the door and hit her two or three times before he also raped her. Sonia tried unsuccessfully to stop him but he completed the rape, said "Thank you" and left the room. It appears Starchel has been charged but has left the jurisdiction and so was not present during this trial.

14. The girl was sitting on the bed looking for her sulu when a third person came in and said he wanted to talk with her. She shouted at him and was able to leave the room but Starchel was still outside and held her and took her upstairs apparently looking for another room. Eventually she was able to escape from him and ran out the same way she had entered where she saw a friend, Leitu Kofe (now Leitu Frank), standing near the toilet. Sonia ran to her crying, hugged her and told her that she had been raped by Filo and Starchel.

15. Leitu gave evidence. She had seen some men, including Starchel, drinking earlier but was unsure whether she had also seen Filo with them. It was much later that she saw Sonia running towards her crying and saying Filo’s and Starchel’s name and rape. She noticed that Sonia was crying and looked shaky and scared. She had to calm her down before she could tell her what had happened. Sonia told her that she went to the toilet and Filo came in and dragged her downstairs. He hit her and then they had sexual intercourse. She said she did not like it and that it was rape. Then Starchel came and then a third person came in who wanted sex as well but she was crying and asked him not to. He let her go and, after she escaped from Starchel she came upstairs and met Leitu. She was still distressed and crying and the witness noticed some bruises on her arms.

16. While this was going on, Ali appeared followed by Tagisia. Sonia’s auntie was angry and shouting. She repeatedly asked where she had been and what had happened . She slapped her two or three times with an open hand on her upper arm and pinched her leg. Sonia was crying all the time and told her she had been raped by Filo. She wanted to have a shower because of what had happened. She wanted to wash the sperm off her and eventually was able to go the toilet room with Leitu who stayed with her while she showered and also gave her some fresh clothes to wear.

17. Once back where they had been sleeping, she lay and cried while Leitu comforted her. The complainant said that she did not see the accused there, only his wife. Tagisia noted that there were already bruises showing on Sonia and that her clothes were dirty.

18. When the ship berthed at Funafuti, it was daylight and she went home, telephoned her parents in Australia and then went to the police. They took her to hospital where she was seen by a doctor who noted a number of small bruises on her right upper arms and shoulder, her left loin and the lower part of her right leg and noted areas of tenderness over her back, upper limbs and her sides. Vaginal examination showed abrasions in her vaginal canal and areas of redness there and on the labia. Swabs were taken but showed no spermatozoa. Sonia told the Court that more bruises appeared on her face a day or two later.

19. The account given by both the complainant and, later, by the accused referred to a number of trainees being around. The prosecution called two of them. Both knew the accused well although they did not describe him as a close friend. I was not satisfied that they were telling the truth in respect of many aspects of the events. I formed the clear impression that they did not wish to implicate him if they could avoid doing so.

20. It is clear that they were aware that Filo had taken the girl down and into Room 11 and their evidence describes a number of trainees more interested in seeing what was happening there than in considering she might be in need of their help. Her statement that, when she appealed for their help, they laughed at her is, I am satisfied, supported by that aspect of their evidence.

21. The first, Tumua Amosa, was very clearly trying to avoid saying anything to harm the accused’s case. He referred to seeing them together more that once and consistently failed to notice any signs of distress. In that respect, his evidence was a variance with the other trainee. It was noteworthy also that, when referring to seeing Sonia and Starchel after Filo was no longer involved, he was willing to describe her distress. His major value as a witness was that, as he was on the 12 to 4 watch and was on watch at the time of the incidents, he was able to give a reasonably accurate time for the events – something the other witnesses were not able to do. He put most of the events he saw as happening between 3.30 and 4.00 although it is clear that the first time he saw them would have been somewhat earlier.

22. The other trainee, Peter Monise, also knew the accused as they came from the same island and had grown up together. He also was not very forthcoming about the events generally but it was clear that, when put in the position of having to answer the questions directly, he was unwilling to hide the truth. He stated that, when Filo and Sonia were coming down the second stairway, it seemed that they had had an argument. He noted that Filo was holding her from the back and Sonia was asking him not to do it. She was, he said, clearly protesting. He described how Filo was holding her with one arm around her chest and holding the rail with his other arm.

23. Later, when describing seeing her more that once with Starchel, he saw she was angry, that he was pulling her against her will and he also saw her break away from him and that he caught her again. In all that, he did nothing to help her or to try and stop Starchel. I am satisfied that he took the same attitude when he saw her with Filo and only reluctantly acknowledged any signs of force against her.

24. After the ship docked, the accused and his wife and mother in law took the boat to Amatuku where they showered, ate a meal and rested. In the early afternoon the police came and took them both to the police station where the accused was detained in custody whilst the police made further inquiries. The following evening he made a statement under caution in which he described the events in some detail. The prosecution case is that it is a complete and true admission of the offences.

25. The accused gave sworn evidence. He described how he had helped fetch the doctor to the sick baby and had then joined some others in drinking. On his return to his wife, he was settling down to sleep when Sonia asked if he would accompany her while she went to the toilet. He waited outside as she requested and never went in. When she came out he told her he liked her and wanted to talk to her. She was laughing and giggling and asked what he wanted to talk about. When he said he wanted her to be his girlfriend, she did not take him seriously. However, she agreed to talk but told him she was scared of her auntie and so they moved where she could not see them. He pointed out that it would be quick and she could return before her auntie woke.

26. They looked for a place to be alone and eventually went in to the accommodation through the door by the Chief Engineer’s cabin. The accused noticed there were two older men and a lady, the witness Lina Malaki, in that passageway. Filo said that Sonia asked where they were going and was told they would go to the lower deck. He led on the stairs and she followed but slipped on the last steps possibly from the motion of the vessel. He suggested that Sonia was not angry but was shy of the trainees. His evidence was that she told him she would go back to her auntie but he told her it would be quick and she then continued walking down. The accused explained that he meant that it would be quick for them to talk.

27. As they walked towards Room 11, they were kissing. The door to the room was locked but, after the accused knocked, the door was opened by a trainee and he left so they could enter. They both went in and the accused turned on the light and closed the door but did not lock it. They stood kissing against the wall for a minute or two by which time her sulu had come off. She sat on the lower bunk but he helped her up and they went on to the sofa. He took off her panties and they had sexual intercourse. Throughout he was aware that she was concentrating on what they were doing. was enjoying it and the whole act was consensual. When he ejaculated, she smiled and asked if he had finished.

28. After they had dressed, he opened the door because the room was really hot. As he came out, Filo met Starchel standing outside the room. Starchel told the accused that Sonia was his girlfriend. Filo told the court he was unsure if that was true but, as Starchel insisted, he told him to come in.

29. Filo left the girl in the room with the other man. By then it was coming up to 4.0 am and he returned to his wife and went to sleep. His wife gave evidence and confirmed that he was there when she woke and that she had to waken him when the boat arrived in Funafuti. When the accused woke, he says he saw Sonia by her auntie and she smiled at him.

30. He told how he and his wife and mother in law went to Amatuku and how the police came. He asked why they had to go to the police station but they did not tell him. His wife gave similar evidence. At the police station he was put in a cell and his wife was not allowed to speak to him. She left some cigarettes and drink for him but he was never given them by the police. The next day, his wife brought some food to the station for him.

31. He told the court that, during the interview, he was telling the truth but, whenever he gave an account that differed from that given by Sonia in her witness statement, the officer stopped writing and threatened to put him back in the cell until he stopped lying. Eventually he was able to have a chance to see her statement when the interviewing officer left the room and the other officer gave it to him so he could read it very quickly – an event denied by the officer. After that he gave an account which followed hers even though it was, he says, not true. The interview is reasonably long and took more than four hours from 7.0 pm to 11.20 pm. Counsel for the defence has suggested that was inordinately long and shows that it was delayed by the repeated clashes over the contents. The officer denies that was the case. Any delay was because Filo frequently broke down in tears and the interview had to be suspended until he recovered his composure.

32. It was put to the officers that he signed because he had not eaten and could not face going back into custody. Extreme hunger can sap a man’s will but it became clear later in the evidence that he had been given an opportunity to eat the food his wife had left there before he went to the interview. Despite his lack of food, he did not eat and told the officer to have it because, he said, he knew he would be released soon. Had he been as desperate with hunger as was suggested, that would appear to be a remarkable response to accessible food. At the end of the interview, he signed the statement and was released on bail shortly before midnight.

33. The police denied that any such impropriety occurred. It was, they said, an account given voluntarily which confirmed the victim’s allegation in all major particulars. He frequently broke down in tears as he spoke of the events. I am satisfied beyond any doubt that the police are speaking the truth about this. The accused’s account of how the statement was taken is not credible. Despite the manner in which he said it had been taken, he made no attempt to complain or to give any account of the inaccuracy of the document before the trial despite the utterly damning nature of its contents.

34. The officers, on the other hand, were adamant and convincing in their account. As a result of the cross examination of the two officers involved in the statement, the prosecution called the officer who was in charge of the criminal section at that time. He too was, I am sure, a truthful witness and I accept his account of the procedures and the manner in which the taking of such a statement would be, and I accept in this case was, conducted.

35. With the exception of the two trainees, I found the prosecution witnesses credible and accurate. The complainant, in particular, gave her evidence in a careful and considered manner. There is little opportunity in this case to measure the evidence of either the complainant or the accused against independent evidence. However, the visible bruises noticed by Leitu before the auntie slapped Sonia support Sonia’s account rather than the defence suggestion that it was those slaps which caused the bruising. The dirt that was on her sulu when the auntie saw her is consistent with her account that the sexual intercourse took place on the floor of the cabin rather than that of the accused who specifically said he put her on the sofa because the floor was dirty. Similarly the (albeit reluctant) evidence of distress from Peter Monise and the attitude of the accused once he had completed the sexual intercourse of leaving her with another man both help to confirm her account. The recent complaint to Leitu, although not proof of the facts stated, demonstrates that her account was consistent then with her evidence now.

36. I remind myself that the burden of proving every ingredient of the offence lies on the prosecution and that the accused need not prove anything. I also remind myself that the standard of proof is beyond reasonable doubt. There can be no conviction of rape unless the prosecution proves to that standard that there was sexual intercourse involving penetration of the complainant’s vagina by the accused’s penis, that she did not consent or that her consent was obtained by force, fear or fraud and that the accused intended to have sexual intercourse despite the lack of consent . It must also prove that he knew she was not consenting.

37. I am satisfied that Sonia’s evidence is true and accurate. I do not believe the accused’s account. The sexual intercourse is not in dispute and I am satisfied beyond reasonable doubt that she did not consent at any stage. I am similarly satisfied that the evidence from her and the prosecution witnesses shows that throughout, she was crying and protesting her lack of consent and there was nothing which suggested otherwise. I am satisfied beyond reasonable doubt that Filo had sexual intercourse with Sonia without her consent with intent to do so and with no doubt in his mind that she was not consenting.

38. He is convicted of rape. I do not enter any verdict on the common assault charge.

Dated: 24th day of May 2010

Hon. Gordon Ward
CHEIF JUSTICE