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

CR 169 of 2018

BETWEEN:		REX 

-	Prosecution

AND:		MAKA MANU

-	Accused 

BEFORE LORD CHIEF JUSTICE PAULSEN 

Counsel: 	Ms. L Fakatou and Ms. T Kafa for the Prosecution
		Mr. S Taione for the Accused  

Date of Hearing:	17-21 June 2019
Date of Ruling: 	3 July 2019

VERDICT

	The charges 
[1]	Mr. Manu stood trial on one count of attempted rape, contrary to s. 120 of the Criminal Offences Act, and one count of serious indecent assault, contrary to ss. 124(1) and (2) of the Criminal Offences Act.  
[2]	The charges relate to an incident, alleged to have occurred on 26 May 2018 at Fasi, when Mr. Manu forced himself upon a young woman (who I shall refer to as EL), indecently assaulted her, by sucking her breasts and licking her vagina, and tried to insert his penis into her vagina. 
[3]	Mr. Manu denies the charges.  He says that none of this occurred and EL is falsely accusing him seeking attention from her mother who, she feels, is more interested in her men-friends than in her. 
	The burden and standard of proof 
[4]	The onus of proof lies on the prosecution at all times and, it is to the standard of proof beyond a reasonable doubt in relation to the charges and every constituent element of the charges.  
[5]	The Court is presented with two quite different versions of events, one advanced by EL and one by Mr. Manu.  There is little by way of substantive corroborating evidence to support either account.  In such cases, close regard to the burden and standard of proof is particularly important.  As I stated in R v Filo (CR 7 of 2018), in circumstances where the Court finds the resolution of a conflict in the evidence insoluble, it must fall back on the burden and standard of proof.  
[6]	I have also reminded myself that I must base my decision only on the evidence which I have heard in this Court.  On the basis of the burden and standard of proof, the prosecution case must stand or fall on the evidence which the parties chose to call before me.   
	The elements of the offences
	Attempted rape
[7]	Section 120 of the Criminal Offences Act reads:
Any person who attempts to carnally know any female under any of the circumstances enumerated in clauses (a) to (e) of section 118 shall be liable to imprisonment for any term not exceeding 10 years.
[8]	Section 118(1)(a) of the Criminal Offences Act reads:
(1) Any person committing rape that is to say any person who carnally knows any female — 
(a) against her will…
shall be liable to imprisonment for any term not exceeding 15 years.
[9]	The elements that the prosecution must prove beyond a reasonable doubt in order to establish the charge of attempted rape are:
	(a)	That Mr. Manu;
	(b)	On or about 26 May 2018;
(c)	Formed an intention to commit the crime of rape (that is to have sexual intercourse with EL in the absence of a reasonable belief in her consent); and
(d)	That he attempted to penetrate EL’s vagina with his penis for the purpose of carrying that intention into effect.
Indecent assault 
[10]	Section 124 (1) of the Criminal Offences Act reads:
Any person who shall commit an indecent assault on any person shall be guilty of an offence under this section.  
[11]	The essential elements that the prosecution must prove beyond a reasonable doubt in order to establish the charge of indecent assault are:
(a)	That Mr. Manu;
(b)	On or about 26 May 2018;
(c)	Assaulted EL by intentionally, and without her consent, sucking her breast and/or licking her vagina; and 
(d)	That the assault/s was/were indecent in that right-minded persons would consider what was done offensive to contemporary standards of modesty and privacy.	

The evidence
The prosecution witnesses
[12]	The prosecution called five witnesses. 
	Officer Patelesio Tu’itavuki evidence
[13]	He is an experienced officer with the Police Forensic Division.  On 29 May 2018, he was requested by the Investigating Officer to make a sketch and take photographs of the house at Fasi where, it is alleged, Mr. Manu assaulted EL.  He produced his sketch plan and photographs as exhibits.  
	EL’s evidence
[14]	EL is 18 years of age.  At the time of the events in issue she was 16 years of age.  EL and her mother were living at Fasi with Kupa, Siosi’ana (Siosi) and, their children.  They had been chased out of a previous home.  There was a house at Ma’ufanga, owned by an uncle, where they had been accepted to live, but building work was being done on it. 
[15]	EL knew Mr. Manu from church, and because he was a friend of Kupa.  She did not have a relationship with Mr. Manu.  He asked her out but she rejected him.  Mr. Manu had forced himself upon her and kissed her on three or four occasions around the end of 2017.  She had not complained about that to anyone. 
[16]	On the evening of 26 May 2018, Mr. Manu was drinking with Kupa and one Sione at the house.  She watched movies with the children of Kupa and Siosi and had fallen asleep on the couch.  She awoke when Mr. Manu touched her right hand and positioned her to kiss her on the mouth.  She pushed him away and told him to sleep in the living-room, while she went to another room.
[17]	She went into the bedroom used by her and her mother.  She closed the door, lay down on the bed and, was about to go to sleep.  Mr. Manu came into the bedroom and lay down beside her.  He kissed her on the mouth.  He pulled down her shirt, grabbed and then sucked her breast.  She resisted.  She called out Siosi’s name, hit the wall a number of times and kicked her legs.  No one heard her.   
[18]	Mr. Manu moved down and removed her underwear and trousers.  He squashed her with his body and licked her vagina about ten times.  He unzipped his trousers and removed his penis.  She kicked him on his penis and he fell backwards against the wall.  
[19]	She got up, put on her pants and went out the backdoor where she saw some neighbours preparing food.  Mr. Manu followed her and asked her to come inside so they could talk properly.  She went inside.  Mr. Manu sat on the couch.  She did not sit, but went straight out the front door, opened the gate and ran.  She did not have any slippers.  
[20]	At Ma’ufanga, she saw her mother but did not tell her what had happened because her mother was with two men.  She walked to Houmakelikao and saw a girl she knew.  She told the girl what had happened but the girl had to attend the early morning church service.  She then went to the house of a friend, who I shall refer to as MP.  MP was still asleep.  When MP was woken, EL explained to her what had happened.  MP’s mother then awoke and, on being told what had happened, took EL to the Police station to make a complaint. 
	Siosi’s evidence
[21]	Siosi is married to Kupa and they lived at Fasi.  EL and her mother lived with them for some months.  
[22]	On the night in question, Kupa was drinking with Mr. Manu and Sione.  EL’s mother went out to serve Kava.  EL was in the living-room watching TV.  Mr. Manu left for some food.  He returned with food and she shared in it.  She went to bed.  Two of her children slept in her bedroom and the other two children slept in the living-room.  Her husband had come to bed later and locked the door.  
[23]	She was awoken around 5am when the gate opened.  She opened the door to her bedroom and saw Mr. Manu asleep on the couch.  Her daughter was asleep on the other couch.  
[24]	Siosi went to EL’s and EL’s mother’s bedroom, but they were not there.  The bed was messy and Mr. Manu’s hoodie was on the bed.  She walked around the house and Mr. Manu awoke.  She asked him if he knew where EL was and he said that he did not.  
[25]	She intended to go and look for EL.  EL’s mother arrived.  They went out and looked for EL and were informed that something had happened to EL and that she was at the Police station.  They went to the Police station at around 8am.  
[26]	EL went to a safe-house and this was the last time that EL had stayed at her house. 
[27]	Siosi had found a letter written by EL.  The letter had been produced into evidence as a defence exhibit during the cross-examination of EL.  I will come back to its contents.  Siosi had shown the letter to Kupa and put it in a wall-unit, but it had gone.  She had told EL’s mother about the letter and EL’s mother had cried and said that what was in the letter was true.  This occurred the day after EL alleged that Mr. Manu had assaulted her.  
	MP’s evidence
[28]	MP is EL’s school friend.  EL came to their house early in the morning and told her that she wanted to commit suicide.  EL said that a boy in her church had been at her uncle’s house and tried to rape her but she had pushed him away and come to MP’s house.  EL appeared scared.  Her t-shirt was pulled down and she had no slippers on.  
[29]	MP explained to her mother what had happened and her mother took EL the Police station. 
	TP’s evidence
[30]	TP is MP’s mother.  She confirmed EL’s early morning visit to their home and that EL had complained about an attempted rape.  EL had dissatisfaction in her eyes, appeared cold and, had a blanket around her.  
[31]	Contrary to what MP said in her evidence, TP said that EL had told her directly what had happened to her. 
	The defence witnesses
[32]	The defence called two witnesses.  They were Mr. Manu and his father. 
	Mr. Manu’s evidence
[33]	Mr. Manu knew EL from church and from his visits to Kupa’s house.  She had kissed him at the house on 27 December 2017 and they were having a relationship. 
[34]	On the evening of 25 May 2018, he had gone out drinking and had slept late the next day.  Kupa called him to go drinking.  He was collected by Kupa and Sione, but he did not feel up to drinking.  
[35]	After a trip to Navutoka they returned to Kupa’s house at around 7pm.  When they arrived Siosi, EL, EL’s mother, and the four children were there.  EL was watching movies.  He had drunk very little, despite encouragement to do so from Kupa and Sione.  During the course of the evening EL’s mother and Sione had left.  One Salesi, who also lived in the house, arrived and went to his bedroom.  
[36]	Mr. Manu went to eat at Coastline Chicken and returned to the house with some takeaways, which Siosi and a child ate.  Mr. Manu and Kupa remained outside on the veranda and finished drinking around 1am.  They went into the kitchen and ate some roasted chicken.  Kupa then went into his bedroom.  
[37]	El was awake in the living-room.  Mr. Manu told her he would sleep on the floor.  EL asked him to sit next to her.  She told him to kiss her and he did.  She then suggested they go into the bedroom to avoid being seen.  They went into the bedroom.  EL was lying on the bed and Mr. Manu was sitting.  EL then told him that she had a boyfriend, who she loved.  He said that was alright and went out to the living-room to sleep.  EL went to the toilet.  He then went to sleep.  He awoke when Siosi ran out to the gate.  Siosi then went to EL’s bedroom and, when she came out, asked him if he knew where EL was.  He said that he did not and that the last time he saw her she had gone to the toilet. 
[38]	Some days after he had been arrested, Siosi had given him the letter that EL had written to her mother, which he had kept.
	Salesi Manu
[39]	He is Mr. Manu’s father and was called to give evidence of the clothes that Mr. Manu was wearing on the night.  This issue is not of significance in the context of my deliberations and I do not need to make any finding on the matter or refer to his evidence further. 
	Discussion
[40]	In helpful submissions, Counsel focused on the facts.  At issue is whether it has been proven, to the required standard, that Mr. Manu assault EL in the manner alleged.  Only EL and Mr. Manu were present in the bedroom and able to say what occurred there.  I must, therefore, assess their credibility.
[41]	Mr. Manu does not present as a sophisticated or worldly man.  There were aspects of his evidence that I found unconvincing, such as, his evidence that he drank hardly anything and, that he considered himself to be in a relationship with EL.  The strength of his evidence suffered because his case was not adequately put to the prosecution witnesses, consistent with the rule in Browne v Dunn (1893) 6 R 67 (HL).  Ms Fakatou, quite correctly, made skilful use of this in her cross-examination.  Whilst this failure is not to be condoned, most often it is due to Counsel’s oversight and there was no application made by the prosecution to recall any witness so that it could be remedied.
[42]	Despite those reservations, the substance of Mr. Manu’s evidence, when considered against the other matters to which I shall later refer, is believable.  Contrary to Ms Fakatou’s submission, and having observed Mr. Manu and EL closely, I do not find it incredible, even given their age difference, that EL would have kissed Mr. Manu or, that having done so, she might have regrets because she already had a boyfriend. 
[43]	There are aspects of EL’s evidence that cause me particular concern.  First, as noted earlier, EL wrote what was described as a letter to her mother.  In it, she said she was unhappy and considered ‘death better than living’.  She was clearly deeply distressed about her mother’s relationships and she expressed her perception that “her man is more important to her than me”.  She stated that it was better that she commit suicide.  She finished by expressing her love for her mother and thanked her for all she has done for her.
[44]	Siosi, who I consider a reliable and disinterested witness, gave evidence that she found the letter in the living-room on 28 May 2018 and discussed it with EL’s mother that day, whereas, EL said the letter was written earlier and that she had, before Mr. Manu attacked her, talked to her mother and asked for her forgiveness.  I do not accept EL’s evidence about that.  I am satisfied that at the time EL says she was attacked by Mr. Manu she was very distressed about her mother’s behaviour, feeling neglected and, had not discussed that with her mother.
[45]	Another matter reflecting on EL’s credibility arose from the evidence of MP.  I gave EL warnings that she should not discuss her evidence with anyone.  She was challenged in cross-examination by Mr. Taione whether she had told MP and TP that she had been raped.  She denied this and said that she complained of an attempted rape.  When MP gave evidence, she said that she had spoken to EL about the issue that day.  The importance of this matter to the defence will have been obvious to EL and, in ignoring my warnings, I cannot discount the possibility that she spoke to MP wishing to shore up her evidence.
[46]	MP and TP gave evidence, consistent with EL, that she complained of an attempted rape.  However, both accepted that they had made statements to the Police that EL had told them that she was raped.  I found their assertions that the Police statements were incorrect to be unconvincing.  I believe it is more likely than not that EL did initially complain that she had been raped by Mr. Manu, which on any view is not the case.
[47]	There were aspects of EL’s account of events during the attack that were implausible.  The details of the attack developed and changed in the telling in a number of respects.  By way of example, her evidence was, initially, that after the attack she went out the kitchen door.  Under cross-examination, this became that Mr. Manu had chased her and physically restrained her from going out the door.  
[48]	On another matter, I do not consider it plausible that no one heard EL calling to Siosi or hitting the wall during the attack.  It was the middle of the night and would have been quiet.  In the house, within metres of the bedroom, were Kupa, Siosi, the four children and Salesi.  There were neighbours preparing food close by also.  If she had called out and hit the wall, I believe someone would have heard her.  There is support for this view.  Siosi said she was woken by the gate opening, but she did not hear EL’s cries for assistance.  
[49]	Siosi’s evidence contradicts EL’s evidence in another important respect.  After Siosi awoke, she looked out her bedroom door.  Mr. Manu and her daughter were both asleep, yet, according to EL, she had run out of the house leaving Mr. Manu sitting on the couch.  If EL had left the house immediately after the attack, Mr Manu would not have been sleeping. 
[50]	Relying on EL’s letter, the defence argues that EL had a reason to make a false complaint: EL was seeking her mother’s attention.  The reason advanced cannot be discounted as far-fetched.  EL was clearly deeply distraught and contemplating suicide.  It is significant, to my mind, that she did not attempt to wake anyone as she was leaving the house or make her complaint to friends and relatives living nearby.  She complained only after seeing her mother with two men in the early morning and walking all the way to Houmakelikao.
[51]	Ms. Fakatou referred to Siosi’s evidence that the bed was messy and that Mr. Manu’s blue hoodie was on the bed.  At its highest, this is weak circumstantial evidence in support of EL’s allegations. The bed would have been messy if EL had simply slept on it.  In so far as the hoodie is concerned, EL said that she had taken off her blue jacket in the bedroom.  There is a possibility that Siosi is mistaken about the garment being Mr. Manu’s hoodie.  
[52]	Ms. Fakatou referred me to the evidence that at MP’s house EL’s t-shirt was pulled off her collar and she appeared afraid, disaffected and cold.   MP saw EL after she had walked two or three kilometres to Houmakelikao.  It cannot be assumed that her clothes were in the same state as they had been when she set out from Fasi.  Similarly, given her long journey in the middle of the night, EL’s appearance is not surprising, and is not persuasive evidence that she was attacked. 
[53]	Standing back and looking at all the evidence, the prosecution has failed to satisfy me to the required standard that Mr. Manu attacked EL, committed any indecencies upon her or attempted to rape her.  
Result 
[54]	The charges against Mr. Manu have not been proven and he is acquitted on both counts in the indictment.
[55]	There shall be an order under s. 119 Criminal Offences Act directing that the identity of EL and her evidence taken in this proceeding shall not be published in the Kingdom in a written publication available to the public or be broadcast in the Kingdom.

			   	      			               O.G. Paulsen 
NUKU’ALOFA: 3 July 2019. 	     	            LORD CHIEF JUSTICE