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R v Fainga'anuku [2006] TongaLawRp 33; [2006] Tonga LR 339 (31 October 2006)

IN THE SUPREME COURT OF TONGA

R

v

Fainga'anuku

Supreme Court, Nuku'alofa
Ford CJ
CR 141/2005

11-13 and 23 October 2006; 31 October 2006

Criminal law – charges of indecent assault and rape – no corroboration – case established – convicted

The accused was charged with two counts of indecent assault and four counts of rape. It was alleged that on 14 April 2005 he abducted the 16 year old schoolgirl complainant from a bus station in Nuku'alofa and took her to his home in a bush area near Fua'amotu where he held her captive against her will until 16 April. During the three days in question, the accused allegedly twice indecently assaulted the complainant and raped her on four separate occasions. The 30-year-old accused who conducted his own defence admitted the various acts detailed in the particulars of the indictment but he was adamant that in each instance the complainant had been a willing participant and had consented to what was going on. The accused contended that the complainant had opportunity to escape or to complain to a neighbour when she met her on the second night of the alleged abduction and her failure to do so confirmed that she was not being held captive against her will.

Held:

1. In Tonga there was no requirement that the evidence of the complainant in a rape case must be corroborated. It was the practice, however, consistent with the requirements of the common law, to warn the jury to proceed with caution before acting on uncorroborated evidence, particularly when the issue was consent or no consent. A judge sitting alone must be mindful of this requirement.

2. After analysing the evidence, the court rejected the accused's version of events and held that the Crown had established all the essential elements of the various charges beyond reasonable doubt. The accused was convicted on all counts.

Cases considered:

R v Lasike [2006] Tonga LR 164

R v Talanoa [2006] Tonga LR 101

Counsel for the Crown: Mr Sisifa
The accused in person

Judgment

Introduction

[1] The accused is charged with two counts of indecent assault and four counts of rape. Although he is not charged with abduction, the thrust of the case for the Crown is that on Thursday 14 April 2005 the accused abducted the 16-year-old schoolgirl complainant from one of the bus stations on the foreshore at Nuku'alofa, took her by bus to a bush area near Fua'amotu, and then held her captive against her will in his home at Fua'amotu until the night of Saturday 16 April. During the three days in question, the accused allegedly twice indecently assaulted the complainant and raped her on four separate occasions.

[2] The complainant still attends school in the fifth form at a local college. The incident occurred during the first term school holidays in 2005. After giving evidence as the first witness for the prosecution, the complainant ended up being later recalled to the witness box to answer further questions on certain allegations the accused had made upon which she had not been given the opportunity to comment. The following narrative is a summary of her overall evidence and it includes some non-contentious evidence from other witnesses.

The case for the prosecution

[3] The complainant told the court that on the Thursday in question she had attended special study classes during the morning and around 1:30 p.m. she was sitting at the bus station waiting for a bus to take her home to Sopu. While she was waiting for her bus, a "boy" approached her and told her that the accused wanted to see her. The boy pointed out the accused who was sitting on a bus destined for villages on the eastern side of Tongatapu out past Fua'amotu. At that stage the bus was not picking up passengers. It was stationary at holding bay by the Vuna Road entrance to the bus station waiting for other buses to move out of the official bus stop area.

[4] The complainant then walked over to the eastern districts bus. Apart from the driver there were only four passages on the bus and they were all male. They turned out to be from Fua'amotu and they were all well acquainted. The accused was seated a short distance back from the driver facing the entrance door. The complainant stood at the entrance door and asked the accused what he wanted. He said that he had a message for her. At that point the driver of the bus remembered that he had a mobile telephone to be repaired and he asked the complainant whether she wanted to get on the bus or remain at the bus station. She indicated that she did not wish to board the bus and she returned to her seat at the bus station. The bus then drove away.

[5] When the bus returned some 20 minutes later the same boy approached the complainant and repeated his earlier request that the accused wished to see her. Again, she walked over to the eastern districts bus and stood at the doorway and asked the accused what he wanted. At the same time, one of the other boys in the bus, who was seated just behind the driver, grabbed hold of the study book the complainant was holding and threw it towards the rear of the bus. The complainant did not enter the bus immediately but she waited. A short time later some female passengers boarded. She described them as "three girls" and "two Fijian women." At that point the complainant also entered the bus to retrieve her school book.

[6] When she entered the bus, the complainant saw that the accused had moved to the very back seat and he was holding on to her study book. She approached him and he told her to sit down in the backseat. She refused and she asked him to return her book. Then, using both of his hands, the accused grabbed the complainant by the shoulders and forced her to sit in the backseat in the corner of the bus. He sat beside her and said that he wanted to tell her something. She asked him to tell her quickly what he wanted because she was in a hurry to catch her bus to Sopu. They then started arguing and the bus began to move off.

[7] The complainant tried to stop the bus. She called out to the driver and asked him to let her off because she was not going to Fua'amotu but to Sopu. She said that she could see the driver's face in the internal rear vision mirror and he was laughing. He did not stop the bus. The complainant told the court that at that point she made up her mind that she would go wherever the bus was heading and she would then return. She had no intention of getting off the bus until it returned to the central bus station.

[8] As the bus reached the old Office Equipment Building, still in Nuku'alofa, the complainant again tried to get the driver to stop but he refused and, at the same time, the accused told her to sit still and stop acting like a child. The accused then tried to converse with her. He asked her questions like how old she was and whether she was still attending school. She told him that she was still attending school but she refused to answer most of his other questions. On the way out to Fua'amotu the accused tried to kiss the complainant and she struggled to prevent his advances. She said he used his hands and shoulders to force her to sit in the corner seat and he threatened to punch her. The bus eventually reached Fua'amotu where the accused lived but he stayed on the bus and he forced the complainant to remain in the backseat corner. The complainant wanted to call out to the Fijian women when they were getting off the bus but the accused told her that if she called out to anyone he would punch her. She also wanted to call out to the three girls when they got off the bus but again the accused threatened to punch her and she was afraid of him.

[9] The bus travelled on as far as the next village of Nakolo, where the last passenger alighted, and then it turned around and headed back towards Fua'amotu. The only passengers at that stage were the complainant, the accused and the four males who had been on the bus from the outset. They were obviously well acquainted with both the accused and the driver and they appeared to be going along for the ride. At a bushy area somewhere between Nakolo and Fua'amotu the accused told the driver to stop the bus. The complainant said that it was not a regular bus stop and there was bush on both sides of the road. The complainant said that when the bus stopped, the driver called out to the accused "to do it in the bus" and she said that she then realised that the accused was going to rape her. She asked the driver to take her on to Fua'amotu village but he refused and he also told her that the bus was not going back into Nuku'alofa. The accused then grabbed her by the hands and pulled her off the bus. The complainant was asked in examination in chief why she did not ask the other boys on the bus for help. She replied that they were all making fun of her.

[10] One of the four male passengers still on the bus was the person the complainant described as a "boy" who had first approached her back at the bus station and told her that the accused wanted to speak to her. He turned out to be a 20-year-old plantation worker known as "Fou". Fou was called as a witness for the Crown and it was clear from his demeanour that he was of limited intelligence. He could not read or write and he seemed to have difficulty understanding even some of the more basic questions that were put to him.

[11] After the accused forced the complainant off the bus he let go of her hands and 130 the bus drove off. She was not sure where they were at that point. The complainant and her family were from Ha'apai. They had moved to Tongatapu only three years previously. The complainant told the accused to take her home. There was a house in the bush on the opposite side of the road and she noticed three male occupants. The accused told her that he would go and ask them for a vehicle. He walked over to the house and spoke to the occupants. The complainant remained on the side of the road crying. A short time later the accused returned and the complainant heard one of the boys in the house calling out to him to change his ways. She did not know what the conversation had been about but she said that the accused swore back at the man. The complainant then asked the accused to take her home. He again grabbed hold of her hands. She told him that she was not going anywhere but she would stay on the road and wait for a vehicle. The accused forced her to go with him down a dirt path until they came to a traditional Tongan fale. The fale had no walls, however, apart from the long grass that surrounded it. It had a mattress on the ground.

[12] The accused then made a phone call on his mobile. The complainant heard him ask where the vehicle was and why it had not yet come and he then told her to wait a while and a vehicle would come to take her home. He suggested that they sit and talk in the meantime. The complainant was still crying. He put both his hands around her neck and tried to hug her. She told him to let go and take her back home but he pushed her down onto the mattress. The complainant then described to the court how she struggled as the accused forced her T-shirt and bra up above her chest and started licking her breasts and sucking her nipples. She also described how he forcibly removed her shorts and underwear and proceeded to lick her vagina. After several minutes he attempted to have intercourse but the complainant struggled and it was some time before he was able to insert his penis into her vagina. She said that when intercourse did occur it hurt and she felt something tearing in her vagina. The licking of the breasts and vagina formed the basis for the first two counts of indecent assault. The intercourse that followed gave rise to the third count which is the first charge of rape.

[13] The complainant said that by this time it was starting to get dark and she was in pain and she seemed to have lost all feeling in her left thigh. She said that at that point she didn't care anymore because she realised that she had lost her virginity. The accused had to help her to her feet and she had difficulty walking because of the pain in her thigh and vagina. They walked back out onto the road and the accused then told her that he was going to take her to his home and he would then telephone for help. When they arrived at the accused's home he told her to wait outside while he went into the living room. She was asked why she didn't attempt to escape at that point and she replied that she was still hurting, her leg was still sore and she was afraid of the accused. She also did not know where they were. The accused then came out with a towel and he told the complainant to take a shower in the outside shower. She estimated that by this time it was between 6:30 p.m. and 7:30 p.m. and it was dark. She said that she spent only about one minute in the shower because she realised that he was standing at the doorway watching her.

[14] After the shower, the accused gave the complainant a pair of his own trousers and a T-shirt to wear and he said that he would be washing her clothing. He told her to enter his bedroom through the window and he helped her climb inside. Once inside the bedroom the accused, who had gone around to the front of the house and entered the bedroom through the living room, told her that he was going to have sex again. She said that she cried and was very sad and he must have known that she was in considerable pain. She said that on that occasion he did not have to hold her down as she did not have the energy to push him away. While they were having sex on that occasion, the accused mentioned something about his mother coming back soon. That act of intercourse formed the basis for the fourth count which was the second charge of rape. The complainant said that afterwards the accused went to sleep and she lay awake crying until she also drifted off to sleep. Her final thought was that in the morning she would ask the accused's mother to return her to her family.

[15] When the complainant awoke the following morning it was daylight. She looked out the window and saw the accused cooking with his mother. She decided to speak to the mother when she came back inside. The accused then came into the bedroom and she told him again that she wanted to return home. He said that in a short while a vehicle would come. A short time later another man, who turned out to be 'Atu the husband of one of the accused's sisters, entered the bedroom and told the complainant to come into the living room and watch videos. The complainant described how, as she was about to enter the living room, she heard one of the accused's sisters saying, "let's beat her up until she dies." Another of the women in the room said let her come out and watch television. The complainant said that when she entered the living room there were three adult women present and two young girls. The accused's mother then came into the house and the complainant asked her if she could take her home. The mother did not answer but she went outside again to work on a tapa.

[16] A short time later food was served and the complainant told the court that it was during this time that she met a person called "Mele" who turned out to be her eventual rescuer. Mele was one of the three adult women in the living room. She said that she felt at ease with Mele and she asked Mele if she could take her home. Mele said that she would but her vehicle was out of petrol.

[17] "Mele" was 27-year-old Mele Latai who lived in the area close to the accused's home. She was called as a witness for the Crown. Mele told the court that on the morning of Friday 15 April 2005 her husband was at work and a younger brother of the accused had come over to her house and told her that the accused had brought a girl home on the Thursday night. Mele said that she decided to go over to the accused's home to watch videos because she was "inquisitive" about the girl that the accused had come home with. She recalled that when the complainant came out of the bedroom she asked her some questions about where she was from and when the others went out to the kitchen for food she asked the complainant if the accused had done anything to her and the complainant replied that he had, the night before. She asked the complainant if she wanted to go home and the complainant immediately replied that she did. Mele was asked in examination in chief what made her put that question to the complainant and she replied: "because I knew she wanted to go home. She was crying and having difficulties. I asked her if she was homesick and she said that she was."

[18] After the meal, Mele's husband called her and she returned home. Around eight o'clock that same Friday evening she returned to the accused's house and asked his younger brother to tell the complainant to come out and go home with her to have a bath. The complainant came out and went back with Mele to her house. The two women talked in Mele's bedroom. Mele asked her if that was the first time she had been with a man and the complainant explained that it was. Mele then told her that the accused was married with children and he was not divorced. After they talked, the complainant took a bath and Mele got some of her own clothes for her to wear. Mele told the court that there was then a knock on the door. It was the accused who had come for the complainant. Mele asked the complainant if she wanted to spend the night with her but the complainant said that she was going with the accused to his home.

[19] Sometime later that same evening Mele again returned to the accused's house. She explained that she wanted to see if the complainant was alright. She said that when she arrived, the complainant and the accused were watching videos in the living room. She said that she could see that the complainant was still having difficulties and she was obviously pleased to see Mele again. The accused told Mele that on the way home from her place they had called into a clubhouse and some of the people at the club had made jokes about them because the complainant was a new face in the area. The complainant told the court that that never happened and she had told the accused at the time to stop lying. After they had been watching videos for a short time, the accused got up and went into the bedroom. Mele said that half an hour later he called out to her to tell the complainant to come into the bedroom which she did. Then, a short time after that, the accused called Mele into the bedroom and he told the complainant to tell Mele that he would be taking her back to her family, not Mele. Mele said she told the complainant not to worry because she would still come back the next day and take her home. She then returned to her own house.

[20] In reference to this part of the chronology, the complainant told the court in her evidence that after Mele had gone the accused again forced her to have sex. She told him that she did not want to lie down but he pulled her down on the bed by the collar of her shirt. The complainant continued in evidence: "When I was lying there, I told myself what's the use of struggling when I've lost my virginity. As I was lying there I thought I did not care about what happened so long as I see my parents again." That incident constituted the basis for the fifth count which was the third charge of rape. The complainant was in the witness box for a long time. She gave evidence about another incident early the following morning when the accused again forced her to have sex. That evidence formed the basis for the final count in the indictment, the fourth allegation of rape which occurred on Saturday 16 April.

[21] Returning to Mele's evidence, she told the court that on Saturday 16 April she returned to the accused's house at around 8 o'clock in the evening to pick up the complainant and take her home. Why she did not turn up earlier in the day is something that was not canvassed in evidence but the complainant said she told her that she had had to get petrol for her vehicle and take someone to the airport. In all events, Mele told the court that when the complainant came out of the bedroom on that occasion she could see that she had been crying and she was no longer wearing the clothing Mele had given her the night before but she was again wearing the accused's clothing. The complainant was obviously delighted to see Mele. She went back into the bedroom to retrieve Mele's clothing.

[22] As they were both leaving the property the accused's mother, who had been in the living room, called out and said that if the accused had not already been married he would have married the complainant. Mele said that she did not answer the remark. Mele then picked up two other friends from Fua'amotu to accompany her and she drove the complainant back to her parents' home. The complainant's disappearance had apparently been the subject of broadcasts over the local radio. The court heard how the complainant's parents reacted with delight to her homecoming and the father gave Mele money for petrol and some food items.

[23] The following day the complainant made a formal complaint to the police at the Nuku'alofa Police Station. The court was told that, for some inexplicable reason which was not explained in evidence, the police did not believe her and they refused to act on her complaint. The complainant's father apparently then complained to a senior officer and that officer suggested that, as the incident had happened in the eastern districts, the complaint should be made to the police at the Mu'a Police Station. It was the Mu'a police who investigated and prosecuted. The complainant was also medically examined at Vaiola Hospital. The doctor who carried out the medical examination gave evidence and confirmed to the court that his findings on examination were consistent with the complainant having been a virgin and then being victim to the four acts of sexual intercourse she had described.

The case for the defence

[24] The 30-year-old accused acted in his own defence and he elected to both give and call evidence in support of his case. He is an articulate speaker and he demonstrated some skill in his cross-examination of the prosecution witnesses. In his evidence, given on oath, the accused told the court that he is a married man with four children aged between nine and two but, at the time of the alleged offending, he had separated from his wife. He described his occupation as a peacekeeper with the Tongan army and he said that he had served in the army for six years. He lives with his mother and siblings in the village of Fua'amotu. In April 2005, the house was occupied by the accused, his mother, his two brothers, three sisters and 'Atu, the husband of his 19-year-old sister.

[25] Referring to the events at the bus station on the afternoon of Thursday 14 April, 2005, the accused said in evidence that he was sitting on the Fua'amotu bus and he noticed the complainant walking in from the footpath and going to sit in one of bus shelters. He claimed to have seen her before but he had never spoken to her nor did he know her name. He said that he asked Fou to go and give a message to the girl. The message was to ask the girl, "if it was convenient for her to come over to the bus." He explained that he liked the girl when he saw her and he wanted to ask her to be his girlfriend.

[26] The accused then told how the girl came over and stood at the door of the bus and he asked her if she wanted to be his girlfriend. She replied that she did and he was "excited" when she gave that response. The conversation between the pair was then interrupted by the bus driver who announced that he was going to get his telephone fixed and he asked the complainant whether she wanted to get on the bus or wait for it to return. The accused said that the complainant told him to go and she would wait for them to return.

[27] The accused said that when the bus returned to the station, he again asked Fou to go and get the girl and he did. He said that the complainant was willing to come across and get in the bus. She did not ask for her book back but she stood and talked to the accused and after a relatively short time the bus took off for Fua'amotu. The accused said that he sat with the complainant in the backseat of the bus and at no time did she try and stop the bus. He said that when the bus arrived at Fua'amotu they did not get off at his home because, as he put it, there were still some passages on the bus. So they remained on board while the bus travelled on to the next village on the eastern side which is the village of Nakolo. There were no passengers for any villages beyond Nakolo and so the bus turned around and began to travel back in the direction of Fua'amotu.

[28] As the bus was approaching a bushy area between Nakolo and Fua'amotu, the accused suggested to the complainant that they should get off the bus at that point and go back to his home in the evening and he told the court that she agreed. He admitted that the driver of the bus called out and asked them if they, "were going to do it on the bus." In cross-examination the accused was asked by Mr Sisifa why he had gone to the house across the road after getting off the bus. He replied, "because someone from that house had seen us getting off the bus." He could not or did not explain, even when asked directly, the conversation he had had with the occupants but he denied the complainant's evidence that one of the occupants had called out after him and that he had swore back at that person. He said that he was over at the house for 10 or 11 minutes and there were vehicles going past during that time but the complainant made no effort to stop any of them. When that proposition was put to the complainant she strongly denied that any vehicles had come along and she estimated the time period as only a few minutes.

[29] The accused said that at no time did he have to force the girl as they walked along the path to the small Tongan fale. He continued:

"When we got to the little fale, we talked in the fale. She consented to us having sexual intercourse. She took off her own pants and we had sex. After that we came to my home."

I need not repeat the rest of the accused's evidence. In summary, he admitted the various acts detailed in the particulars of the indictment but he strongly denied that they amounted to indecent assault or rape. He was adamant that in each instance, the complainant had been a willing participant and had consented to what was going on.

[30] In his closing submissions, the accused highlighted two matters in particular which he submitted confirmed that the complainant had consented to all that had happened. First, on the Friday night when the complainant walked across with Mele to Mele's home, the accused stayed behind and had a bath. He then walked over to Mele' house, knocked on the door and Mele came to the door holding the complainant's hand. He said that Mele then asked the girl whether she wanted to spend the night at her house and the girl replied that she would go home with him (the accused). That evidence, the accused submitted, showed that the complainant and he had developed "feelings for each other."

[31] The second matter highlighted by the accused, was the failure of the complainant to try and escape from the house at any time on the Saturday. The accused said that they had consensual sex on the Saturday morning and he had then gone to the plantation. Apart from when he came home for a meal, the accused said that he was away for virtually the whole of the day. The accused asked rhetorically, if the complainant was being held captive against her will, why did she not try and escape from his home on the Saturday or while she was with Mele on the Friday night. On the face of it, those submissions would seem to have substance.

[32] The accused called the driver of the bus, 37-year-old Tevita Manumu'a. He said that he did not recall overhearing any of the conversations between the complainant and the accused when she boarded his bus on the Thursday afternoon. He could not recall the book throwing incident and he did not hear the complainant call out or try to stop the bus at any stage. He admitted that when he stopped the bus in the bush area between Nakolo and Fua'amotu he called out and asked them if they were going to do it on the bus or get off. He said the reason he asked was because of, "the way they were acting - the way they were sitting."

The law

[33] The essential elements the Crown must prove beyond reasonable doubt in order to establish a charge of indecent assault or rape were not in dispute. They were fully reviewed by this Court recently in R v Talanoa [2006] Tonga LR 101 and R v Lasike [2006] Tonga LR 164. I will not repeat them. In Tonga there is no requirement that the evidence of the complainant in a rape case must be corroborated. It is the practice, however, consistent with the requirements of the common law, to warn a jury to proceed with caution before acting on uncorroborated evidence, particularly when the issue is consent or no consent. A judge sitting alone must be mindful of this requirement.

Conclusions

[34] The issue entirely in this case is one of credibility. I turn first to consider the submission made forcefully by the accused that the evidence of the complainant's conduct at Mele's house on the Friday night and her failure to try and escape at any time during the Saturday is confirmation that she was a willing partner to everything that happened to her. That evidence was not disputed.

[35] When the complainant was asked directly why she elected to return with the accused to his home rather than stay the night with Mele, she replied: "because I was afraid of him." Then, in reference to the Saturday, the complainant said that in the morning she had an argument with the accused because he did not want to take her home. He told her that they were going to stay together and she commented that when he made that remark to her, she thought it meant that they were going to live in a de facto relationship until she died. She cried and told him to let her go because she wanted to go home. The accused then disappeared. She did not know that he had gone to the plantation. She did not know where he had gone.

[37] When the complainant was asked why she did not try and escape sometime during the Saturday she said that it was because she knew that Mele was coming to pick her up and take her home. Mele had told her that the previous evening. She knew that Mele first had to get petrol for her vehicle and take someone to the airport. As evening approached and there was still no sign of Mele, the complainant no doubt felt that she had been let down again. Mele told the court that when she eventually arrived to pick her up, the complainant came out of the bedroom and she could tell that she had been crying. This evidence, which I accept, satisfies me that the complainant only cooperated with the accused out of fear.

[38] Although the accused, as I have mentioned previously, is articulate and he gave his evidence in an unassuming and convincing manner, I am afraid that I simply did not believe him. The notion that he could call a 16-year-old schoolgirl, who was a complete stranger to him, over to his bus and ask her straight out if she would be his girlfriend and to have her respond immediately that she would, simply defies belief, as does so much of his evidence from that point on. I did not find the evidence of the bus driver or that of one of the other male passengers on the bus who the accused also called as witnesses reliable. They seemed to have selective recall.

[39] Having rejected the accused's version of events, it is still necessary for me to return to the prosecution case and satisfy myself that the Crown has established all the elements of the various offences beyond reasonable doubt. I say at once that I have been so persuaded. Both the complainant and the other key prosecution witness, Mele, were totally convincing witnesses. There were some inconsistencies in the complainant's initial evidence but they were of a relatively minor nature and, in any event, they were clarified when she was recalled to the witness box.

[40] It was clear from the complainant's demeanour and her evidence that the ordeal she described and had to relive again in the witness box must have been a sheer nightmare for her in every way. The horror of having been subjected to the indecencies and threats she described and of having to live three days in captivity in the belief that she might never see her parents and family again simply defies comprehension.

[41] The accused is convicted on all counts.