IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

CR 55/2002

R

v

Mauala

Ford J 
22, 26 August 2002; 12 September 2002 

Criminal law – attempted rape and indecent assault – proof required 

On 14 March 2002 the 18-year-old complainant went to a store in Sopu and on the way home she was accosted by the accused who had been drinking. The complainant alleges that she was knocked off her bike on to the side of the road and, despite her vigorous attempts to fight off the attack, she was indecently assaulted in the course of an attempted rape. The complainant was discovered by her stepfather who had heard her cries and had gone out to look for her. The accused was charged with attempted rape and, in the alternative, indecent assault. The accused was a 24-year-old married man with one child. He contended that he had known the complainant for some six months and he considered that he had "a boy-girl relationship" with her. He told the court that on the night in question he wanted to have sex with the complainant but she said, "no, maybe some other time" but she had consented to him kissing her on the lips and on her breasts. He pleaded not guilty and the matter proceeded to trial. 

Held: 

1. To prove a charge of attempted rape, the Crown must prove two elements: first, that the accused formed an intention to commit the crime of rape, and secondly, that the accused did or omitted some act for the purpose of actually carrying that intention into effect. The mental element in attempted rape was the same as that required for the full offence, namely, an intent to have sexual intercourse coupled with awareness that the complainant may not be consenting The court was not persuaded beyond reasonable doubt that the necessary elements to establish a charge of attempted rape were made out. 

2. To establish a charge of indecent assault the Crown must prove that there was an assault on the complainant, which was any intentional application of force. Secondly, the assault must be indecent according to commonly accepted community standards and finally, the Crown had to establish that the complainant did not consent to what occurred and that the accused did not honestly believe that the complainant consented. The complainant's evidence corroborated by her stepfather satisfied the court that all the elements of the indecent assault charge were established to the required standard of proof. 

3. The accused was acquitted on Count 1 and convicted on Count 2. 

Cases considered: 
 R v Cavanagh [1972] 1 WLR 676 
 R v Khan [1990] 1 WLR 813 
 R v Woodhead (1847) 2 Car & Kir 520 

Counsel for Crown : Mr Sisifa 
Counsel for accused : Mr Tu'ivai 

Judgment

The delivery of this judgment has been delayed up until today's date because counsel for the accused has been on business in New Zealand. 

The accused is charged with attempted rape and, in the alternative, indecent assault. He pleaded not guilty and the matter proceeded to trial. The case has some unusual features. 

On 14 March 2002 the 18 -year-old complainant went to a Chinese store in Sopu and on the way home she was accosted by the accused who had been drinking. The complainant was knocked off her bike on to the side of the road and, despite her vigorous attempts to fight off the attack, she was indecently assaulted in the course of the attempted rape. That is essentially the Crown's case. The complainant was rescued by her stepfather who had heard her cries and had gone out to look for her. 

The complainant, a high school student, told the court in evidence that sometime between 10 pm and 11 pm on Thursday 14 March 2002 her mother had asked her to go to the local Chinese store and buy a loaf of bread. She took her stepfather's bike. She said that she saw "this guy" by the store. He was drinking and had a cup or a jug of alcohol in his hand. She had left her bike on the opposite side of the road from the store and she said that as she was walking back to fetch it after buying the bread "the guy", who she identified as the accused, followed her and touched her arms and kept asking if they could talk. The complainant said that she kept saying "no". When she then picked up her bike and started to ride it home he held on to the handle while walking along side of her while she kept on telling him to let her go because her parents were waiting for her. The complainant then told the court that when she tried to ride away the accused pushed her so hard that she fell off the bike on to the side of the road and then, in her language, "he tried to rape me." 

The complainant said that after he pushed her onto the road, the accused started taking off her trousers, tights and panties. She said that she was struggling, crying and telling him to stop but she was tired and had no strength left and so she just lay on the road. The complainant said that after the accused pulled her underwear down he started licking her vagina and she then said, "he was trying to touch my vagina with his hands." The undergarments were produced in evidence and the complainant pointed out a tear in the back of her black tights which she said was caused when the accused was removing them. 

The complainant told the court repeatedly during her evidence how she cried and struggled during the whole episode which she said lasted for some 20 -- 25 minutes. She also said that she yelled out for help "many times" but the accused told her to shut up. She said that at one point he "squeezed my neck and was kissing my tits on the ground and he told me to shut up and not to cry because a neighbour might hear." 

The complainant, who gave all her evidence in English, went on to tell the court how she was found by her stepfather: 

"While crying and yelling, I heard footsteps on the other side of the road. I realised it was someone who had noticed me and I kept on yelling for help and I heard someone close calling someone else's name in the neighbourhood and I knew that he heard me. When I was crying and when I heard the footsteps walking towards me and it (sic) was coming closer to me and while I was lying on the road he was trying to take off his trousers and all of my clothes were down and he was trying to take off his trousers he wore. And he was sitting on my feet and holding my left hand. I moved around and was trying to escape but when I tried to get up he pushed me down on the road a few more times. I kept on crying. I tried to run. I left my bread. When I got to the other side of the road My stepfather asked what happened and I told him. I kept crying. 

I did not know the reason why he jumped up. Think it was because he saw my stepfather watching across the road. When he tried to take off his trousers he jumped up. I started to run. I saw a person standing on the road. I did not know it was my stepfather. I told him what happened." 

Towards the end of her evidence in chief, the complainant was asked whether she had seen the accused before the night of the incident. She first answered "no" and then she proceeded to tell the court that she had met him once before back at the end of December 2001. She said that she was walking back from town with a photograph of her high school class and she dropped the photograph. The accused, who was walking on the other side of the road came over and picked it up and put it in his pocket. She said that she kept on asking for it back but he would not return it. A lady then drove up in a car and called the accused by name and then she asked the complainant what she was doing talking to her husband. The complainant said that she explained how he had taken her photograph and at that point the accused gave the photograph back. The complainant was then asked by Crown counsel: "Was there any other time you had seen him prior to the incident on 14 March?" She replied: "No". 

In cross-examination, Mr Tuivai followed up this line of questioning. He put it to the complainant that the accused would say that he had met her on a number of times prior to the incident. Her response to that proposition was, "that is not true." I propose to come back to this point. 

The complainant also said in cross-examination that at no stage did the accused remove her pants below her knees and she also confirmed that he had only touched the outside area of her vagina with his hands. 

The stepfather gave evidence and I will also come back to that later. 

The Crown called only one police officer. That was a constable Taufa. He took no part in the arrest or the processing of the accused and his only involvement in the case was that he was called in to witness the accused sign his name at the end of his interview with the investigating officer, constable 'Ahofono. That was at approximately 23:00 hours on Friday 15 March 2002. 

Constable 'Ahofono was not called as a witness. Crown counsel explained that he is presently in the United States. That is something which should have been ascertained prior to the pretrial conference when the trial date was confirmed and the problem should then have been explained to the trial judge. If a Crown witness is absent for reasons beyond the prosecution's control then, whether the trial should proceed without him or whether it should be adjourned, is a matter for the trial judge's discretion. In R v Cavanagh [1972] 1 WLR 676, Lord Lane said: 

"The prosecution must take all reasonable steps to secure the attendance of any of their witnesses who . . . the defence might reasonably expect to be present. The reason for that is obvious and was expressed in R v Woodhead (1847) 2 Car & Kir 520. If, however, it proves impossible, despite such steps, to have the witnesses present, the court in its discretion may permit the trial to proceed provided that no injustice will be done thereby. What considerations will affect the exercise of the court's discretion will vary infinitely from case to case. Would the defence wish to call the witness if the prosecution did not? What are the chances of securing the witnesses attendance within a reasonable time? Are the prosecution prepared to proceed in his absence? If so, to what extent would the evidence of the absent witness have been likely to assist the defendant? If the absent witness can be procured, will other witnesses by then have become unavailable. There will be many other matters which may have to be considered." 

In the present case, no indication was given to the court or to defence counsel prior to trial that the police officer who arrested the accused and was in charge of the case would not be giving evidence. On the contrary, his name was included in the Crown's list of witnesses.  

As it was, counsel for the accused took strong exception to parts of the police record of interview and to certain matters surrounding the arrest of the accused but he was not able to explore his points of concern in cross-examination because the only police officer called as a witness knew nothing about the arrest or the conduct of the interview. The timing of the arrest, for example, was a point which assumed some significance. Both the complainant and her stepfather said that she left for the shop between 10 pm and 11 pm the stepfather estimated that he found her about 30 -- 35 minutes later. The accused, in his evidence, said that it was not until 12:23 am that the stepfather had arrived on the scene. He told the court that he was able to be specific because he had looked at his watch at that point. 

The evidence was that the complainant had made immediate complaint to the police when she arrived home. Evidence, therefore, of the exact time when the complaint had been lodged with the police would have cleared up some of the uncertainties raised in relation to this aspect of the case but it was not forthcoming. 

There were other aspects surrounding the circumstances of the arrest which defence counsel also took issue with. I am satisfied that the concerns he raised were legitimate concerns and not simply "stage-managed" issues to highlight the significance of officer 'Ahofono's evidence. 

The court has an overriding concern to ensure that the accused receives a fair trial and it has a discretion to exclude otherwise admissible prosecution evidence if it is not desirable in the interests of justice that such evidence should be admitted. The record of interview and other documentation produced by constable Taufa were accepted on the basis that he was a witness to the interview. It did not emerge until the end of his evidence, in answer to a question from the Bench, that he had not, in fact, been able to sit in on the interview because he had other duties to attend to. He had simply been called in after completion of the interview to witness the accused's signature. 

Counsel for the accused did not object to the admission in evidence of the police documentation but, for the reasons stated, I, nevertheless, consider that in the overall justice of the case, I should exclude the documentation from my consideration of the case. That is the course I have decided to follow. The officer in charge of the case should have given evidence. 

The accused elected to give evidence. He did not have to. There is no onus on an accused person to prove his innocence. In a criminal trial the onus is on the Crown, and it remains on the Crown throughout, to prove all the essential elements of each charge beyond reasonable doubt. 

The accused told the court that he is a 24-year-old married man with one child and he lives about five houses away from the Chinese store referred to in evidence. The essence of his evidence was that he had known the complainant for some six months and he considered that he had "a boy-girl relationship" with her. He told the court that on the night in question he wanted to have sex with the complainant but she said, "no, maybe some other time" but she had consented to him kissing her on the lips and on her breasts. He admitted in cross-examination that he was "aroused" but he said that everything he did, he asked her first and he denied taking her tights and pants down or touching her vagina in any way. 

In one part of his cross-examination, Crown counsel put a series of propositions to the accused which seemed to be premised on the assumption that the accused and the complainant had known each other prior to the incident and that there had been some consensual element involved in the incident itself. The following question in cross-examination illustrates the point: 

"And even though (the complainant) consented for you to kiss her on the lips and breasts, you were still unhappy with her because you had been trying to come to her home and she was still lying to you -- many times you had been to her house and she was still lying to you?" 

That line of questioning led to the following exchange between the Bench and Crown counsel during the presentation of his closing submissions: 

"Counsel: The Honourable Court has heard from the complainant herself and the Crown submits that the complainant's evidence stated that she only got to meet the accused once and that was during December last year. The second occasion the complainant met the accused was on the night of the offence against the accused, the 14th of March 2002. 

Court: That was her evidence. In your cross-examination of the accused you put a lot of propositions to him such as he would have been disappointed going around to her house and she breaking her promise and not being there, what do I make of all that? 

Counsel: The Crown's case was, although the complainant denied some of - of her -- but it's not clear to the Court whether the complainant had seen the accused more than two times, that is a fact for the court to decide but there's no dispute against that evidence of the accused that he met the complainant on several occasions. 

Court: There's no dispute from the Crown's point of view? 

Counsel: Yes, however Your Honour, the Crown's case is that.

Court: I'm sorry, I just want to get that it clear, so there's no dispute from the Crown's point of view that he met the complainant several times before this incident. 

Counsel: Several times, yes, although the complainant denied seeing him more than once." 

Then, further on during Crown counsel's submissions: 

"Crown counsel: Whether the complainant allowed the accused to kiss or suck her breasts is upon her own will but up to the point where she put it clearly to the accused that she did no longer wish to continue with such acts, her consent ended and the Crown submits that up to the point when the complainant stopped the accused, the accused was so aroused and couldn't help it but to force the complainant to satisfy his own lust. 

Court: Do I take it from that, that the Crown agrees that she may have consented to the kissing on the lips and maybe the breasts but that's as far as it went, she consented to nothing else? 

Counsel: The Crown doesn't accept that because the complainant herself didn't agree that she agreed to allow the accused to kiss her. 

Court: Yes, but she also told the court that she had only met the accused once and the Crown has made an acknowledgement in relation to that and I'm just trying to see how far it goes. Does it go to the proposition I just put to you or not? 

Counsel: No sir. 

Court: It doesn't? So just to get it clear, you are really saying that the complainant's evidence, you're inviting the court to accept it all, apart from her previous associations with the accused? 

Counsel: No, Your Honour, I'm just putting to the court that it's unclear to this Court. 

Court: What, what's unclear? 

Counsel: Her previous -- like -- whether she had previously seen the accused. 

Court: I thought the Crown had conceded that she had, in fact, seen him. That's what you told me a few moments ago? 

Counsel: Um, I was just raising the point. 

Court: I want to get it very clear because, "there is no dispute that the accused saw the complainant several times despite her denial." Now that's what I wrote down. Are you saying that is not what you meant? 

Counsel: I'll take it back. 

Court: You'll take what back, you'll take this back? 

Counsel: Yes, I'll take that back. 

Court: It is pretty important, I'll just make a note, "Mr Sisifa now takes this back". 

The Crown cannot make "see-sawing" concessions like that in a criminal case and I decline to accept counsel's retraction. The only conclusion I can draw from the concessions made he is that the complainant told lies on oath when she denied having seen the accused other than on the day when she dropped the photograph on the road. In those circumstances, I have determined that she is an unreliable witness and I am not prepared to act on her unsupported evidence. 

The only reliable corroboration, in my view, comes from the complainant's stepfather. I found him to be a credible witness. He is a 33-year-old stevedore. He said that after the complainant had been gone for 20 minutes or more he heard yelling or shouting and so he went outside and then he heard other shouting and he remembered that the complainant had gone to the shop and so he started walking down the road. As he heard shouting continuously he hurried his step and then he saw his bike on the road. As he got nearer he looked across to the side of the road and saw the accused sitting on top of the complainant's stomach. He said that, at that point, he would have been only 3 meters away from them. The accused turned around and saw him and then he let go of the complainant and she stood up crying and started pulling up her clothes and she then ran past her stepfather. He called out to her and asked what had happened and she said that the accused was forcing her. 

The stepfather continued: 

"I then left the complainant and started towards the accused to see what happened. As I approached the accused, I told him that what he did was unreasonable and that the complainant would lay charges against him. He told me, that's fine with him -- it's okay." 

The stepfather said that he noticed that the accused was drunk. He could tell that from the way he walked and from the smell. 

I accept that evidence. The stepfather seemed to me to be a truthful witness. 

I turn now to the charges faced by the accused. To prove a charge of attempted rape, the Crown must prove two elements: first, that the accused formed an intention to commit the crime of rape, and secondly, that the accused did or omitted some act for the purpose of actually carrying that intention into effect. The mental element in attempted rape is the same as that required for the full offence, namely, an intent to have sexual intercourse coupled with, at least, awareness that the complainant may not be consenting -- R v Khan [1990] 1 WLR 813. 

The stepfather came out of the house as soon as he heard the first cry and he was on the scene within a very short time. By then the accused had been with the complainant for approximately 20 minutes or more and the complainant admitted that during that time his hands had only touched the outside of her private parts. I do not accept the complainant's evidence that she had been crying and shouting prior to when the stepfather first heard shouting. It is also significant, in my view, that the stepfather said that the accused was sitting on the complainant's stomach, not her legs, and he said nothing about the accused having his pants down when he accosted him. He was certainly given every opportunity by counsel to make that observation, if it had been true. 

Having regard to all those factors, I have not been persuaded beyond reasonable doubt that the necessary elements to establish a charge of attempted rape have been made out. 

The demarcation between attempted rape and indecent assault is not clearly defined and there is an obvious overlap. The elements which the Crown must prove to establish a charge of indecent assault are well-established and have been restated by this Court in a number of recent cases. First, there must be an assault on the complainant, which is any intentional application of force. Secondly, the assault must be indecent according to commonly accepted community standards and finally, the Crown has to establish that the complainant did not consent to what occurred and that the accused did not honestly believe that the complainant consented. 

With the corroborative evidence from the stepfather, the Crown has satisfied me beyond reasonable doubt that all the elements of an indecent assault charge have been made out. While I accept that the accused may have had reasonable grounds initially for believing that the complainant consented to his advances, that all changed at about the point in time when the stepfather heard the complainant yelling out. It must have been patently obvious to the accused by then that any prior consent to his advances had been withdrawn. It is no defence that the complainant consented if the indecency was afterwards committed by force or against her will. 

The complainant's evidence, in so far as it was corroborated by her stepfather, satisfies me that all the elements of the indecent assault charge have been established to the required standard of proof. 

The accused is, therefore, acquitted on Count 1 and convicted on Count 2.