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

Cr.124/00.

BETWEEN:

REX
Prosecution

AND:

1. FOLAU POUONO
2. PUALIKI LANGI
Accused

BEFORE THE HON. CHIEF JUSTICE WARD

COUNSEL: Mr Mr Kefu for Prosecution
:Mr S. Tu'utafaiva for both Accused.

Date of Hearing: 24th - 26th January 2001.
Date of Judgment: 31 January, 2001.

JUDGMENT

In this case I have made Orders under sections 119 and 141 of the Criminal Offences Act.

The first accused, Folau Pouono, is charged with rape of the complainant C, a 19 year old unmarried woman, on the 22 April 2000 and the second accused, Pualiki Langi, is charged with abetting him in that offence.

The 21 April 2000 was Easter Saturday and C had been attending Mass in the Roman Catholic Church in Lapaha. Her evidence was that she had a small child with her and, when the child became fractious and upset, took it home. Her home is a very short distance from the church and, as she walked back shortly before midnight to rejoin the Mass, the two accused and one other boy pulled up in a car. The driver was Langi. Pouono, whom she knew as a married man with a family, asked her where she was going. She explained she was going to church and he suggested she get in the car and go for a ride with them before church. C declined and he repeated the suggestion. When she again refused, he became threatening, got out of the car, pulled her towards him and effectively forced her to get into the car.

The car was a two door model and she sat in the front passenger seat whilst Pouono sat in the seat behind her. As the car moved off, Pouono said they would drop her at the church which was a couple of hundred yards away but, when they reached it, the car did not stop despite the girl's requests to be allowed to alight.

They then drove around for some distance during which, on her account, she asked to be allowed to get out about five times. Eventually they reached Hoi and, as C knew there were virtually no houses beyond that point, she again asked to be let out and opened her door to jump out.

Pouono grabbed her and said they would do a U-turn and return so she remained in the car and shut the door. However, instead of returning by the road along which they had come, Langi turned the car and drove along a gravel road in the bush. After some time, the car stopped because it had run out of petrol and all three men got out to fill it from a petrol can. The complainant remained sitting in the car although she told the court that she tried to walk away at one stage only to be lead back by Pouono taking her hand.

He sat her in the front seat of the car and squatted on the ground outside and told her he had affection for her. She made no reply and so he asked if she had any affection for him. She replied in the negative but, when he repeated his question, she said she did because she was afraid. During this and the subsequent events, the other accused and the boy moved away from the car suspecting that Pouono intended to have sexual intercourse with the girl.

Pouono suggested she should move into the back seat which she did and he sat in the driver's seat. Thereafter, they kissed although only on his angry insistence they do so. Under his instruction, she put out her tongue during the kissing. The accused then started to take off her shirt. She moved her hands to stop him and he told her that if she did it again he would beat the shit out of her. Although she told the court that she did try to resist further, he was able to take off all her clothes and, after various intimacies, had sexual intercourse with her. She never consented and was prevented from effective resistance by her fear of the accused.

While he was having sexual intercourse, she told the court that she was crying and the accused threatened her with further violence if she did not stop.

I do not need to go into greater detail but I have found the events subsequent to this also significant and helpful in reaching a decision in this case.

At church, the complainant had been wearing a white shirt over a dark coloured tight fitting top and a skirt over a pair of tight shorts under which she had pants. After the sexual intercourse, she only put on the shorts and the shirt. Her explanation was that Pouono did not give her the other items of clothing.

The other two then returned to the car and C remained in the shirt and shorts only.

The car was then driven, on the instructions of Pouono, back to Lapaha and, again at his suggestion, he and C were dropped off a short distance from his home whilst Langi went to drop off the boy nearby. The place where they stopped was known to both of them to be by the home of a police officer. The accused went into the house and collected a dark coloured shirt, which the complainant then put on. During the time the accused went for the shirt, the complainant simply sat outside waiting because she said she did not feel she had enough strength to run away. She gave the same explanation for her failure to flee at other opportunities that occurred.

In the meantime Langi had dropped off the other passenger and he returned to pick them up. On the complainant's account, Pouono gave her $185 and asked her to look after it for him. She put it in the shirt pocket.

The car was then driven to a Chinese shop by Vaiola hospital where a bottle of spirits was purchased. Langi got out of the car to buy it and the complainant gave him $30 from the money she was holding for Pouono.

The three of them drove to the wharf where the men drank some of the spirits. During this time, C sat in the car. At one stage, Pouono told Langi that he had had sexual intercourse with the complainant and joked about it. The complainant told the court that she swore at him when he did this. She was upset, not, as one might have expected because of the fact of the rape, but only because he was making a joke of their sexual intercourse.

When they had finished drinking and were ready to leave, the car would not start and so Langi got out and pushed it. No sooner did it start than Pouono drove off with C in the car leaving Langi behind.

Pouono thereafter drove to Popua for more drink. That quest involved stopping the car more than once. Afterwards he stopped and shared his drink with some people at the roadside before he eventually drove back to Lapaha. During the whole of the journey after they left the wharf, the car stopped a number of times because it had run out of petrol or because of breakdown. At none of these did the complainant call for help or try to run away except that she claimed to have started to walk away when the accused was drinking with the people at the roadside.

In Lapaha, the car eventually stopped by a graveyard and the accused then threatened to kill the complainant. When he got out of the car to look for something with which to hit her, she kicked open the door and ran along the road. She met some women she knew and told them that that she was running away because Pouono was going to kill her. A little later, after he had been told she was not there, she was asked if he had "done something" to her and she replied that he had. That was the first suggestion of rape and the ladies took her straight to the police station to make a complaint.

That was put forward by the prosecution as recent complaint. I do not accept it falls into that category of evidence as it was clearly not the first reasonable opportunity but I consider it an important indication of the consistency of the complainant's conduct.

The above account is that given by the complainant. Much of it is confirmed by the accused, both of whom gave evidence.

Pouono denied the rape and claimed sexual intercourse was consensual and she was a very willing participant. Any apparent reluctance was no more, on his account, than a slight coyness and, once he started any intimacy, she was extremely keen to have sexual intercourse. She did not cry and she did not resist. Afterwards, she stayed with him out of choice. The change of shirt was at her suggestion because she felt the white shirt was too bright. He said he gave her the money at the time they had sexual intercourse saying she should hold it for him and they would go out until it was spent.

He admitted that he was angry at the end and chased her but it was because she told him the money had all been spent. When he got out of the car, he was going through his pockets to see if he had forgotten he had it and it was then that she ran. It is right that, when C saw the women and said that he was chasing her to kill her, she gave the money to one of them telling her to give it to Pouono,

When the accused was seen by the police, in an extremely brief interview, he agreed he had raped C and answered to the charge with the words that it was true. The prosecution attaches some importance to those answers. The accused pointed out he had been woken from sleeping off the effect of the drink and he agreed because he thought that, if the police said he raped her, he must have done so. I do not consider there is a great deal of value in an interview in such a case where the accused is simply asked whether he committed a specific offence. Rape is an offence with a number of possible defences even where sexual intercourse is admitted. Any police officer having received an apparent admission should ask further questions to ascertain exactly what the suspect is admitting.

Langi also gave evidence and confirmed most of the complainant's and his co-accused's accounts. He agreed he thought the accused was intending to have sexual intercourse but did not know he intended to rape her.

I go no further on the issue of rape. I simply do not believe the complainant's account of being forced or frightened against her will. On the contrary, the evidence as a whole satisfies me that she was a willing partner to the act of sexual intercourse even if she might have intended not to do that as late as the beginning of the events in the car after the other two walked away. I am equally satisfied that she stayed with the accused afterwards voluntarily and willingly. Her anger at the accused joking about the sexual intercourse and the terms of her complaint to the women at the end were not directed in either case to rape. She had a number of opportunities to seek help or to attempt to escape and failed to take them. At the accused's home she waited when she was left alone and, when he returned, she willingly took off her shirt and put on another in front of her alleged rapist even though she knew she had no clothing on underneath. I accept the accused's account that she suggested the change of shirt.

Pouono is acquitted of rape and Langi of abetting it.

I have considered the possibility of convicting the accused of abduction. It is clear and not denied that the car was driven past the church and to Hoi despite a number of requests by C to be allowed to get out. Similarly, the evidence of the initial actions of Pouono in the car could amount to indecent assault if they took place before the complainant became willing as I have found she did.

As I have stated, there is no dispute about the requests to be allowed to get out of the car. I must be satisfied that the complainant was genuinely wanting to be released and the accused were preventing her and that they were doing so with the intention of having carnal knowledge of her. I am not satisfied that I can reach such a conclusion for two reasons. The first is the manner in which the complainant suggested she was effectively forced into the car. The accused deny that occurred and I cannot accept the complainant's account. It is incredible that an unwilling passenger could be placed in the front seat of a two door car and remain there whilst her assailant squeezes past her in order to be able to sit in the seat behind her.

The second, and more important reason, is the matter of C's virginity. It is not necessary to have such evidence but the complainant introduced it and did so, I have no doubt, to strengthen her claim that she was an innocent and inexperienced girl who would be very unlikely to act in this way. Such an impression would colour the whole issue of why she got into the car, her requests to be released and her willingness to indulge in sexual intercourse. However, the doctor who examined the complainant after these events gave evidence and his expert opinion, which I accept as correct, is that C had experienced sexual intercourse previously and on a number of occasions.

As I have said, it was not necessary to lie about that but lie, I am satisfied, C did and I am not willing to accept her account of the circumstances of her getting into the car or of her claimed unwillingness to participate in sexual intercourse even at the early stages of the intimacies in the car.

Pouono did not help his case by giving his evidence in an arrogant and almost boastful manner but even an unpleasant man can tell the truth and I am satisfied that he was doing so in general. I am assisted in reaching that conclusion by the evidence of Langi who I considered was a truthful witness and who gave support to much of Pouono's account.

In those circumstances, I do not consider the prosecution has proved abduction against either accused nor indecent assault against the first accused.

NUKU'ALOFA: 31 January, 2001.

CHIEF JUSTICE