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

NO. CR. 142/2002

BETWEEN:

REX
Prosecution

AND:

NASIO UAISELE
Accused

BEFORE THE HON. MR JUSTICE FORD

Counsel: Miss Simiki for the Crown and
Mr Kengike for the accused.

Dates of hearing: 6,7,8,9 May 2003.
Date of judgment: 14 May 2003.

JUDGMENT

The accused, Nasio Uaisele, faces a charge of rape. The case for the Crown is that on 21 September 2002, he gave a lift to the 17 -year-old complainant and, after driving or "cruising" to various places, they finished up in a bush allotment near Tokomololo where the rape took place.

For his part, the accused basically admits the background facts and he also admits that he wanted to have sex with the complainant in the bush allotment but he claims that, in fact, it never happened. His defence, quite simply, is that sexual intercourse did not take place.

Both counsel agree that credibility is the key issue in the case.

The complainant told the court that on the night of Friday 20 September 2002, she went "nightclubbing" and after that she ended up sleeping the night with her boyfriend at Houmakelikao. Sometimes around 7 a.m. on the Saturday morning she began walking along Vuna road towards Nuku'alofa. When she reached the BP station a car came along driven by the accused. She had never met him before but he asked if she wanted him to drop her into town and she agreed. When they arrived at the Tu'imatamoana market near the wharf, the complainant asked the accused to drop her off at the market but he told her that he first had to go to a gas station and he would drop her back at the wharf.

The complainant said that they then proceeded to drive to a spot around Captain Bligh's Cabins where the accused got out of the car and apparently borrowed money from someone for petrol. After that they drove to a gas station and then to the Nuku'alofa club where the accused met with his uncle to try and borrow more money. When they left the Nuku'alofa club the accused asked the complainant if she drank alcohol and she replied that she did. They then stopped at a Chinese store at Longolongo and purchased four bottles of beer. They each proceeded to drink a bottle as they kept cruising around in the car. The complainant said that the accused called into another place to try and see a friend but he was not there and after that they drove to the bush allotment near Tokomololo. The accused told her that he had something to do in that area. She asked him to do it and then drop her back into town.

The complainant said that when the accused stopped the car in the bush allotment he did not get out but he sat there staring at her and then he told her that he wanted to have sexual intercourse. She said that she told him "no", she did not want him to do anything except what he had to do and then take her back into town. At that point, however, he grabbed her T-shirt and, although she tried to resist, he succeeded in removing it together with her shorts and underwear. The complainant continued in evidence in chief:

"He came on top of me and he copulated for about ten minutes and at the same time after ten minutes this person went down and was trying to lick my vagina. I then with my two hands tried with all my strength to push him away but it was not successful. He was able to lick my vagina for about 20 minutes. He then came on top of me again and was trying for the second time to copulate on top of me and at the same time he told me to touch his penis and try to make him horny again and I said, "no". I was thinking of trying to get out of the car to go and call for help from someone.

Q. So were you able to get out of the car?

A. Yes.

Q. How where you able to get out of the car?

A. I told him that I wanted to go to the toilet and I'd come back after that.

Q. Were you able to go to the toilet?

A. Yes."

The complainant then explained how she got out of the car, got dressed and ran towards the road calling for help. She said that she saw a man standing by a blue van and when she arrived at the blue van the accused, who had been chasing her, called out to her: "you arsehole, go fuck yourself." The accused went back and picked up his car.

The complainant described how the accused had then driven his car down the road past the blue van but then he reversed and he offered her a ride into town but she refused. She ended up being dropped off in town by the man in the blue van, a Mr Tevita 'Ahoafi. Later in evidence, it emerged that on the way back into town Mr 'Ahoafi had stopped off and purchased two barbecue meals and he and the complainant had eaten the barbecue food under the rain tree at Tonga High School.

A police inspector confirmed that the complainant turned up at the Nuku'alofa police station at around 1 p.m. that afternoon and was visibly upset and crying. She made a complaint of rape against the accused and she was later taken to Vaiola hospital to undergo a medical examination.

The accused was arrested on the following Monday and he made a very lengthy statement to the police which was produced in evidence. It comprised of some 67 questions and answers all recorded in a document headed Record of Interview. Two other police documents were produced by consent -- a Statement of Charges form and another form often referred to as a "Confession Statement". In this case, however, the accused made no confession to the police. He vehemently denied that sexual intercourse had occurred.

As with any criminal case, there was no requirement on the accused to give or call evidence but Mr Uaisele elected to give evidence on oath. He told the court that he was a 41 -year-old married man with seven children. He works in the office of a taxi company. The vehicle he was driving on the day in question did not belong to him. He had borrowed it from a friend, Siokatame Tupou, who also happened to be the owner of the allotment near Tokomololo.

Mr Siokatame Tupou was called by the Crown. He said that the car did not belong to him although he had the use of it at the time. He admitted lending the vehicle to the accused. He did not know why he wanted to borrow it but he remembered telling him to put petrol in it because the tank was nearly empty and he also told him to make certain that he had it back before 1 p.m. in time to take another man Mr Tupou was drinking with down to the wharf to catch the 1:30 p.m. ferry to 'Eua. As it turned out, the car was not back by 1 p.m. and Mr Tupou's drinking companion missed the boat to 'Eua.

Continuing his evidence, the accused said that after picking up the girl on the Saturday morning he had stopped off at the wharf by the market and told her that she could get out of the car then or he could drop her back later in the day because he had to come back to catch the ferry to 'Eua. He said that the complainant was happy with that arrangement and she was agreeable to cruise around with him in the car until then. The accused said that she was anxious to get some marijuana and as he had previously smoked marijuana (although he stressed that he had now given it up) he tried some of his former sources but without any success. He told the court about the other places they drove to which included the places mentioned by the complainant in her evidence. Referring to the four bottles of beer he had purchased, the accused said that the complainant drank two of them, he drank one and one bottle was left over.

The accused then gave his version of what happened when they arrived at Siokatame's allotment near Tokomololo. He said that he parked the car under a mango tree and the complainant had got out to go to the toilet. They then sat in the car for about 15 minutes. At one point , the complainant got out again and used the accused's cellphone to telephone a friend. He said that she spoke in English and he did not know what the conversation was about. When she returned to the car, the accused asked the complainant her name and then he asked if she would agree to have sex with him but she refused. He asked her if they could kiss and again she refused. She said that she would only allow a person she loved to kiss or have sex with her. She said that she wanted marijuana to smoke and the accused told her that if she did not want to have sex with him then they would have to wait in the bush until his son arrived. The complainant insisted that they return to town. At one point she mentioned money and she wanted him to give her money before they had sex. He asked her how much and she replied that if he did not have any marijuana then it would be $100. He said that he did not have any money.

The accused said that at one point the complainant got very angry and swore at him for not taking her back into town. He told her not be horrible and to have sex with him. At that point, he said, she told him to go to the little house on the allotment close to where the car was parked and tidy it up and they could then go and "have sex properly". The accused did that. The house was owned by his friend Siokatame and it was unlocked. When he returned to the car he noticed that the complainant had disappeared. He called out for her but there was no answer and so he walked out to the road. He saw the blue van but he could not see anyone around it and so he returned and picked up his car. As he drove out onto the road he saw a man inside the blue van and he stopped and asked him if he had seen the girl and the man had answered, "no". He drove on for about 20 to 30 meters and then he looked in the rear vision mirror and saw the girl standing on the other side of the van and so he reversed. He tried to get her to come back into town with him but she declined and the driver of the blue van said that he would drop her back into town later.

In cross-examination of the complainant, Mr Kengike had quite properly put to her what the accused would be saying in evidence. She admitted using his cellphone but she said that that was before they arrived at the allotment. She also admitted that they had had a conversation about tidying up the little house but she said that the accused had suggested doing that, not her.

Crown counsel indicated that the Crown relied upon the supporting evidence given by Dr 'Akauola, the medical practitioner who examined the complainant, and the evidence of Mr Tevita 'Ahoafi, the driver of the blue van.

Dr 'Etika 'Akauola examined the complainant at Vaiola hospital at 4:40 p.m. on the Saturday afternoon and he described his findings to the court. He concluded that she had had sexual intercourse within the previous 24 hours. That evidence, however, added little to the Crown's case because the complainant had earlier admitted sleeping with her boyfriend the previous night. Although she was not asked and she did not say in so many words that they had had intercourse, the admission that she slept with her boyfriend must give rise to reasonable doubt about the matter and the onus, of course, is on the Crown to produce evidence that does not allow room for speculation and doubt.

The eyewitness, Tevita 'Ahoafi, is a 39-year-old clerk with the Audit Department. He told the court that he was the owner of the blue van and he had been working on his squash crop since 8 a.m. that morning. He said that it had been raining and he was standing by his van changing his shirt when he heard a girl running towards him calling, "it's rape" and a man was following her. When the girl got to the van Mr 'Ahoafi said that the man noticed him and turned around and walked back. What the witness then said is quite crucial and I set it out in full:

"When the girl was running towards me and crying at the same time, I asked her what had happened and she said it was rape and then I asked her where did she go with the man and she said that they went to get some taro leaves. I asked her where they had gone to get the taro leaves from and she said it was a bush at the back of my plantation. I asked her what happened and she said that the guy attacked her and pulled her T-shirt. The girl also said that while the guy attacked her and tried to pull her T-shirt off she told him to let her do it and while she was about to take off her T-shirt at the same time she used her other hand to open the car door and she got out and ran."

Although the evidence of that witness was admissible under section 11 of the Evidence Act (CAP. 15) as evidence of recent complaint, it did not help the Crown's case because it was totally inconsistent with the evidence that had been given by the complainant. Crown counsel submitted that the cry "it's rape" was "a public announcement that rape had occurred." But whatever the complainant may have had in mind when she said those words, the fact of the matter is that in her description to Mr 'Ahoafi about what had happened she did not say anything to indicate that sexual intercourse had actually taken place and the witnesses's evidence must immediately, therefore, raise very serious doubts about the complainant's story.

In general terms I found the complainant to be a rather perplexing witness. While she gave her evidence with apparent confidence, her demeanour at times was somewhat disconcerting and I was not confident that everything she was telling the court was the truth. Some of her evidence was vague and confusing. I suspect that there may have been substance in some of the allegations Mr Kengike had put to her about requests she had made of the accused for marijuana. The accused had told the court that he had noticed love bites or scratch marks on the complainant's neck and I am satisfied that they existed because Mr 'Ahoafi had also noticed them. There was no suggestion that they had been caused by the accused but it is not possible on the evidence before the court to establish their cause.

As noted above, the complainant told the court that when she arrived at the blue van the accused had yelled at her, "you arsehole, go fuck yourself." When the driver of the van, Mr 'Ahoafi, gave evidence, he told the court that the accused would have been only 4 - 5 meters away from him at that point and he, Mr 'Ahoafi, did not hear him say anything. If the words had had been spoken, I am confident that Mr 'Ahoafi would have heard and recalled them.

Compared with the complainant, the evidence given by the accused was remarkably detailed and in general consistent with what is recorded in his very lengthy Record of Interview with the police. Perhaps the only part I found less than convincing was his denial, on more than one occasion, that he is no longer involved with marijuana.

On the crucial issue, however, as to whether sexual intercourse had taken place, I must say that I found his evidence quite persuasive and his story in this regard has been consistent throughout. After the police had charged him, they gave him the opportunity of making a brief written statement about the matter. What he said was this:

"I do feel strongly about the allegation against me by this young woman and I want some semen to be taken from me for examination because the truth will then be known."

When the doctor gave evidence he confirmed that semen tests can be carried out with conclusive results but he said that they do not have the necessary DNA equipment available in Tonga at the present time for this type of work. I doubt, however, whether the accused would have risked throwing down the gauntlet in those terms to the investigating police officer had intercourse taken place.

After considering carefully all the evidence, the end result is that I have not been persuaded that sexual intercourse did, in fact, take place. The Crown has, therefore, failed to establish an essential element in the charge of rape and the accused is, accordingly, acquitted and discharged.

NUKU'ALOFA: 14 MAY 2003.

JUDGE