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

No. Cr.67/2000

BETWEEN:

REX
Prosecution

AND:

PENI MO'UNGA
Accused

BEFORE THE HON. JUSTICE FORD

COUNSEL: Mr Cauchi for the Crown and
Mr Tu'utafaiva for the Accused

Date of Hearing: 15th - 18th January, 2001
Date of Judgment: 19th January, 2001

JUDGMENT

It is not often that a Crown prosecutor finds it necessary to have the complainant in a case declared a hostile witness. In this case, the prosecutor found it necessary to go further. He sought orders to have his first three witnesses (including the complainant) declared hostile. His applications were granted. Those applications, as it were, epitomised some of the difficult aspects of the prosecution case.

The accused faces four counts of incest. The indictment alleges that at their home at Lapaha the accused had sexual intercourse with the complainant "on or about December 1998" and then "on or about" January, July and September 1999. The complainant is now 16 years of age. She has three elder brothers and a younger intellectually handicapped sister.

The Crown called the complainant, the complainant's brother, Okusi, and the complainant's mother, Vaimoana. The only other Crown witness was Soane Naufahu, the police officer in charge of the case.

The evidence given by the family members in relation to dates in particular was vague in the extreme and had to be repeated and corrected on a number of occasions. It appears, however, that at some stage the accused went on a rugby football trip to the United States and he remained there working for six years returning in 1997. Then in September 1998, the complainant's mother went to the States to attend a funeral and she did not return until May 1999.

The complainant first started to tell the Court that the offending took place in February 1986 or 1987. The prosecutor pointed out that she had only been born in 1985. In answer to the Court the complainant then said that it happened in 1998. She said that she could not remember the day or the month but one evening she was sleeping with her younger sister and at about twelve o'clock midnight her father, the accused, (who she referred to throughout as "Peni") entered the room. She said she asked him why he entered the room because he didn't have anything in the room and he told her to move over because he wanted to sleep. She said she pushed him and he then attacked her and held her and told her not touch him any more because he will beat her. She said that he touched her again and she stabbed him with a screwdriver in the left shoulder. She said that he then attacked her and took off her clothes and he inserted his penis into her vagina. She said she cried and the accused told her not tell anyone what had happened and what happened would just be between the two of them because if anyone found out there would be a big penalty imposed on the two of them.

The evidence that I have just narrated was punctuated with lengthy pauses. Questions had to be repeated and the Court had to intervene more than once to encourage the complainant to answer the question that had been put to her.

The Court was very mindful, however, that the complainant was young, that she was in a totally unfamiliar environment and that she was being asked to speak about an acutely embarrassing topic before an audience unknown to her, made up of males ( apart from the Court interpreter) and, of course, the audience included her father, the accused.

The complainant went on to say that the following morning she told her elder brother, Okusi, what had happened, although in cross-examination she qualified that statement by saying that she had told Okusi the story in such away as to make it sound as though Peni had only "punched her". She said that she was afraid of being punished if her father found out that she had told Okusi what really happened. In all events, her evidence was that at Okusi's suggestion they then went down to Cable and Wireless where she made a phone call to her mother in America and she explained to her mother the things that Peni had done to her the night before. She said that her mother told her to wait for her and she would be on the next available flight home. She said that after her conversation, Okusi also talked to the mother on the telephone.

The complainant was then asked whether there was any other occasion when something happened between her and her father and she told about an unrelated matter when she received a beating. She was then asked more than once whether there was any other occasion when her father had come into her bedroom and she ended up answering this question with a categorical "No".

At that point, Crown counsel applied to have the complainant declared hostile. He explained that her evidence was inconsistent with evidence she had given at the preliminary hearing in the Magistrates' Court.

I allowed the application and then took a short adjournment to give the complainant the opportunity to refresh her memory from the deposition. After the break, Crown counsel proceeded to cross-examine the complainant on her earlier evidence. She agreed that what she had told the Court before the break was not true and that the evidence she had given in the Magistrates' Court, where she said that her father had had sexual intercourse with her on four occasions, had been the true story.

The Crown then sought to produce the complainant's deposition as her evidence. In my discretion, I declined this request. I indicated to counsel that, having allowed the complainant the opportunity to refresh her memory from the written deposition, I now wanted to hear her give the rest of her evidence. The complainant then proceeded to give evidence under cross-examination from Crown counsel. Even though the complainant had been given the opportunity to read through her written deposition, the evidence she gave continued to be vague and disjointed. She said that the first incident she had described to the Court before she was declared hostile had occurred in February 1998 and she then, with some prompting from counsel, talked about two other incidents where her father had come into her bedroom and had sexual intercourse with her. She agreed that one of these incidents occurred on the date put to her by Crown counsel, namely January 1999. She could give the Court no indication whatsoever of the date of the other incident, save that it took place on a Sunday. She was then asked if there was any other occasion when Peni had come into her room and she answered "No".

To establish a charge of incest, the Crown must prove three elements beyond reasonable doubt:

1. First, that there was an act of sexual intercourse. That is the penetration of the female genitalia by the male penis. Any penetration, no matter how brief or how slight is enough. There does not have to be ejaculation.

2. Second, that one of the parties to that act of intercourse was the accused and that he is (in this case) the father of the female.

3. Third, that he knew of that relationship at the time.

In considering an allegation of incest, no question of consent arises. It makes no difference whether the complainant consented to the intercourse or not.

The burden of proof, of course, is on the Crown and it remains on the Crown throughout. There is no onus of proof on the accused and he has the right to remain silent. In this case, however, the accused elected to give evidence.

The accused denied the charges. He said that whilst he was in America his wife telephoned him periodically and told him that she could not control the complainant; that she was going out smoking and getting drunk and mixing with boys. The accused said that when he came home from the States, this same pattern of "misbehaviour" continued and he freely admitted to having beaten the complainant on a number of occasions in an effort to discipline her. He told how on one occasion she had gone away from home and he had found her in a hut with boys. He told how on other occasions she had come home with love bites on her neck and chest. This evidence was consistent with evidence given by the complainant's mother and I accept it even though it was denied by the complainant. The complainant struck me as being a fairly mature young woman for her age and she knows how to look after herself. She has lived away from home now for over a year and she presently resides at a girlfriend's house at an undisclosed address.

Apart from the beatings of the complainant, the accused in his evidence freely admitted beating his other children, although not to the same extent, and he freely admitted frequent beatings of his wife throughout their marriage. The Court found that evidence deeply disturbing. In his closing address, Mr Cauchi observed that, putting aside the six years the accused spent in the States, the wife seemed to accept that it was part of her life since the marriage in 1970 to accept beatings. That is a fair assessment of the evidence. The beatings, I suspect, continue. The accused is fortunate that he has not before now faced other charges in relation to his systematic acts of domestic violence.

In all events, the case for the accused is that the complainant was lying about the incest allegations and that, in effect, she made them up as a way of getting back at him because he had stopped her from, as he put it, "going out and sleeping with friends and boys".

Although it is not necessary for the Crown to establish corroboration in a case of this nature, it is always comforting to a Court if corroboration can be found in the supporting evidence. As Ward C. J. observed in R v Teisina, CR No 230/97, at p.5:

"Of course, the court will always look for evidence that confirms the evidence of the complainant in a criminal case particularly in cases such as rape where, because of the nature of the act, there are frequently only the opposing accounts of the complainant and of the accused."

One area in this case where the Court did look for corroboration was in relation to the complainant's evidence that on the morning after the first incident when her father had entered her room and had sexual intercourse with her against her will, she had told her brother Okusi something about the matter and then, at her brother's suggestion, they had gone along to Cable & Wireless and telephoned their mother in the States. The complainant said she told her mother what had happened and her mother said that she would be home on the next available flight back to Tonga.

This evidence was important in my judgment in trying to determine where the truth of the matter lay because it was evidence which the complainant gave before she had been declared hostile and she gave it with some conviction. In cross-examination the complainant agreed that the telephone call from Cable & Wireless took place the morning after the first incident.

I was unable to find any evidence whatsoever supporting the complainant's story about the Cable & Wireless phone call. The brother, for example, denied being told anything by the complainant in this context and he denied ever going with the complainant to Cable & Wireless and making the call to the mother in the States. The mother, for her part, denied receiving any such call. I believed this aspect of their evidence.

It seemed to me that if the phone call had in fact taken place then it was perfectly reasonable to expect the mother to have reacted as the complainant had said and caught the first available flight back to Tonga. The complainant's evidence before me, however, was that the first incident of sexual intercourse took place in February 1998 and the mother was not even in the States at that time. She did not travel to the States until September 1998. Even if I were to accept that the first incident occurred on the date stated in the Indictment, namely December 1998, the evidence is that the mother did not return from the States until May 1999 and I cannot accept that, if the complainant had made the Cable & Wireless call as claimed, it I would have taken the mother another five months to return to Tonga.

So in the absence of corroboration, subject what I have to say further on, it becomes a question of credibility. Who does the Court believe? Mr Cauchi was able to demonstrate a number of inconsistencies in the accused's evidence and, as with the other members of the family, much of what he said in relation to dates, was hopelessly confusing. There were other aspects of his evidence, however, which I believed and in this regard it is not without significance that right from the outset when he was confronted with the allegations at family meetings called by the elder son, Okusi, the accused denied the allegations and told the family that if they did not believe him then they should report the matter to the Police. In my assessment, he is not the sort of person who would have thrown down that type of challenge, on more than one occasion, if he had had something to hide.

Mr Tu'utafaiva, in his closing address, highlighted unsatisfactory aspects in the complainant's evidence and in particular he said that it was simply unbelievable that the complainant could not recall the year or month, let alone the dates, of the alleged incident if they had really happened. I accept that submission. Mr Tu'utafaiva also pointed to other inconsistencies in the complainant's evidence.

But, at the end of the day, it is not simply a matter of the Court weighing up the evidence and deciding which of the opposing accounts, the complainant's or the accused, is most likely to be the true story. As I have noted, the burden is on the Crown to prove every element of each charge beyond reasonable doubt - the accused does not have to prove anything. That, in my view, is where the Crown's case falls down. Even making allowances for the complainant's age and the other matters I have earlier mentioned, I found her evidence unbelievably vague and disjointed. It is certainly not evidence of a standard which I would require to support a criminal conviction. Moreover, I was able to observe for myself the complainant telling lies in court under oath without any apparent embarrassment when she was being questioned by the Crown prosecutor before being declared hostile. Once the lies start, the Crown's task becomes so much more difficult.

The mother said that sometime after her return from the States, the complainant told her that the accused had asked her to have sex but the mother was insistent that at no time had the complainant alleged that intercourse had actually taken place. Furthermore, and significantly in my judgment, the mother said that after the complainant told her that Peni had asked her to have sex with him the mother had told the complainant to go to the police and report the matter but the complainant had replied saying, no she wouldn't go to the police because she was lying - she had "only wanted to go out".

In summary, the Crown's evidence has not left me persuaded to the required standard as to the accused's guilt. In evidence in chief, it was put to the complainant's mother that she had raised the complainant to tell the truth and the mother agreed. Crown counsel then asked whether she did in fact tell the truth and he must have been somewhat taken aback when the mother responded, "No, she usually tells lies to me and she is not truthful..."

The Crown has not made out its case to the required standard. I find the accused not guilty on all counts and he is hereby discharged.

Nuku'alofa: 19 January 2001.

JUDGE