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

NO.CR.229/00

REX

-V-

FINAU TANIELA SOLE

BEFORE THE HON. CHIEF JUSTICE WARD

Counsel: Mr Pouono for prosecution
Mr Tu'utafaiva for accused

Date of hearing: 7 and 8 August 2001
Date of judgment: 8 August, 2001

JUDGMENT

The Accused is charged with rape contrary to section 118 of the Criminal Offences Act.

In the evening of Friday 22 September 2000, the accused, a 26 years old man, and the complainant, a 46 year old married woman whose husband has been abroad for four years, took part with others in a drinking party. It went through that evening and into the early hours of the next morning. Having started in Lapaha where both of them live, it moved to town and back to the road to Hufangalupe Beach. From there it is clear they went to two places in Lapaha and to the Hufangalupe Night Club and then back to the complainant's home.

It is equally clear that a considerable quantity of alcohol was consumed and they were drunk. The complainant was so drunk that she remembers nothing after they left the road to Hufangalupe beach until she woke at about 7:00am to find the accused in the middle of sexual intercourse with her in her bed at home. She immediately moved away and told him to 'Fuck off' and that is effectively what he did. He made no further attempt to continue or restart the sexual intercourse and left the house. The complainant was still, it would appear, sufficiently affected by the drink to go back to sleep for some time until she was woken by a friend to go to town. It was only then that she realised that she was naked.

The accused was seen by the police two days later and, in a very brief interview, was asked about the incident. He was asked if he knew why he was there and replied that he knew he was charged with rape. He said that she blacked out and he raped her. He then made a short statement saying:

"I admit raping 'Akanete when I had sexual intercourse with her but it was because I was so horny and also I was drunk."

I am not satisfied that the acceptance of the word rape in such an interview is sufficient evidence, in itself, that the accused understood he was admitting an offence of rape rather that simply fornication or adulterous sexual intercourse. In all such cases the police should ask sufficient questions to establish that the accused understands the full implication of what he is admitting

In evidence the accused explained that, when they returned finally to Lapaha, he helped take the complainant to her house and up the stairs because she was drunk. The other person helping was a woman friend of the complainant named Kaola. She, Kaola, eventually left the other two in the house and the first move was made by the complainant. He told the court they had consensual sexual intercourse then and later when they awoke later in the morning.

Kaola was a prosecution witness and told how the complainant was so drunk that she kept going to sleep in the van but that, at other times, she was apparently perfectly conscious. On three occasions she had to get out to relieve herself once involving crossing the road to avoid being seen, she was conscious enough to decline the suggestion they go to the dance because she knew her brother was there and, back in the house, she thanked Kaola for helping her.

I do not need to go into the evidence further. It is clear there is no dispute that the accused did have sexual intercourse with the complainant. The whole issue is whether or not there was consent.

I formed the firm impression that the complainant was a totally truthful witness. I was not satisfied that the defendant was speaking the truth in much of what he said in the witness box. In any matter where there is a conflict between his account and that of the complainant, I accept the complainant's account. There is a stark conflict in their accounts of what happened after the complainant became aware of the accused having sexual intercourse with her in the morning. I am also satisfied beyond reasonable doubt that she did not intend, in any of the time she recalls, to have sexual intercourse with the accused.

The problem for the prosecution is that it must prove beyond reasonable doubt that the complainant did not consent and that the accused knew or was reckless whether she did or did not consent. I accept the accused may have taken advantage of her drunkenness but that is far from proof that, in the state she then was, she was unwilling.

Throughout her evidence and in the face of a detailed cross-examination, the complainant never tried to resile from the fact that she knew nothing of the events between the departure from the road to the beach and her waking at home at about 7:00am. If the prosecution evidence had been that, throughout that time, she had been unconscious in the sense of being immobile and incapable of doing anything, the fact of the sexual intercourse would be evidence of a clear lack of consent or of a reckless disregard of whether it had been given or not.

However, the prosecution evidence shows that the complainant was not so affected. Her lack of memory is more amnesia of those events than the result of being unconscious during that period. The evidence shows that, for much of that time, she was capable of acting in a conscious, if drunken, way.

In those circumstances, the prosecution must produce evidence that she was not willing to have sexual intercourse with the accused and that, when it occurred, she had not consented. There is no such evidence. There must be a possibility on the evidence as a whole, that, whatever her sober inclinations, under the effect of a considerable amount of alcohol she did want and agree to sexual intercourse. Without that being disproved, the court cannot be satisfied there was no consent. The prosecution evidence demonstrates that, whatever her subsequent memory of her actions, she may have been capable of giving consent and the accused could have felt it was given by a person acting rationally in the circumstances

The defence called two witnesses who told the court that, at about 8:00 to 9:00am on the Saturday, they remarked on the fact that the accused had a 'love bite' on his neck. I accept their evidence. There is no evidence that he had such a love bite before the party or that he had been with anyone else since. It points, therefore, to the possibility of consensual sexual intercourse with the complainant.

The only evidence of lack of consent was when she was aware of the accused having sexual intercourse and immediately indicated she did not consent. However, as I have stated, the accused immediately desisted. I am not able, in view of her previous amnesia, to accept beyond reasonable doubt that she actually woke up at that time rather than simply becoming conscious in such a way that she now remembers it.

Mr Pouono for the prosecution suggests that the court could convict the accused on the basis of the accused's evidence. He told the court that he did ask and received her consent when they first had sexual intercourse but did not repeat his request before they had it the second time even though he knew she was a married woman. This, Mr Pouono suggests, shows he was reckless whether she consented or not to the second incident. I cannot accept that. It is unreasonable to assume that because a couple are not married to each other, the man must check his partner consents every time he has sexual intercourse even when, as his evidence had it, she is still in the same bed and actively taking part in the whole act.

It is also not acceptable because Mr Pouono must now say that he accepts the truth of the accused's account even where, in relation to the second incident, it directly conflicts with his own witness. If he is abandoning the complainant as a credible witness, how is the court ever to find rape proved? I have already stated that I do not accept the truth of the accused's account where it conflicts with that of the complainant.

It leaves the court in the position that, despite accepting the truth of the complainant's evidence, it must inevitably find that the prosecution has not proved lack of consent and so he is acquitted.

NUKU'ALOFA: 8 August, 2001.

CHIEF JUSTICE