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Police v Khasanov [2024] WSSC 72 (22 August 2024)

IN THE SUPREME COURT OF SAMOA
Police v Khasanov [2024] WSSC 72 (22 August 2024)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

KHAN KHASANOV, male of Letogo, Samoa and Uzbekistan.

Defendant

Counsel: T Toailoa for Prosecution

L Su’a-Mailo for the Defendant

Hearing: 23^rd & 24^th May 2024

19^th June 2024 (closing submissions)

Date: 22 August 2024

JUDGMENT OF TUATAGALOA J

The charges

1. The defendant is charged with three counts of rape pursuant to sections 49(1)(a) and 52(1) of the Crimes Act 2013. The charges allege that the defendant raped the complainant twice on the same night (7^th August 2022) and once, early hours the next day (8^th August 2022).

The Law

2. Rape is the act of a male having sexual intercourse with a female (section 49(2)) without her consent freely and voluntarily given and in the following situations where consent is deemed to be absent (section 51(2)):
   • (i) where a person merely does not protest or physically resist; or
   • (ii) with consent extorted by fear, threats or bodily harm; or
   • (iii) with consent by personating the person’s spouse or partner; or
   • (iv) with consent obtained by false representation of the nature and quality of the act; or
   • (v) with consent where the person is asleep or unconscious; or
   • (vi) with consent where the person is affected by alcohol or other drug; or
   • (vii) with consent where the person is affected by an intellectual, mental or physical impairment.
3. The above situations, however, do not limit the instances where the circumstances of the sexual connection or other activity give rise to evidence of consent, or reasonable belief that there is consent (section 51(2)). Honest belief in consent is a defence (section 51(3)) and not an element of the offence:^[1]
   • “In England it was possible and appropriate to introduce absence of honest belief as a third element of rape because the expression ‘rape’ was not defined in that jurisdiction. In Samoa it has been so defined, and the definition clearly excludes absence of honest belief as a primary element. Nevertheless, once there is evidence in a case which makes the possibility of honest belief in consent a live issue, the prosecution must prove its absence beyond reasonable doubt...”
4. The charge of rape consists of two elements which the prosecution must prove beyond reasonable doubt:
   • (a) The defendant had sexual intercourse with the complainant. Sexual intercourse is complete upon penetration of the female genitalia by the male penis (section 48); and
   • (b) The sexual intercourse took place without the complainant’s consent given free and voluntarily.

Background

5. The complainant and the defendant were employed by Survivor Australia who were filming in Samoa for three months from July 2022. For the first week or so of filming the complainant, defendant and other local employees commuted to work at Sheraton, Mulifanua from home. In attempts to prevent the spread of COVID from impacting on filming, arrangements were made for local employees to stay at two resorts being Return to Paradise Resort (“RTP”) in Lefaga and Sheraton at Mulifanua from 7^th August 2022 for three months until filming was completed. The complainant, defendant and other local employees were allocated to stay at RTP. The complainant and defendant stayed in different villas that they shared with one other employee.
6. On 7th August 2022, the defendant dislocated his knee on set at Sheraton Mulifanua. The complainant accompanied the defendant to the main hospital at Moto’otua where the defendant was seen by a doctor and was given prescribed medication. The complainant knew from the doctor’s note that the defendant’s knee suffered a muscle injury with no broken bones. The defendant was limping when they walked to DMC to get some lunch after he was seen by a doctor. They were later picked up from the hospital and dropped off at Sheraton Mulifanua to pick up the defendant’s vehicle and they then drove to RTP at Lefaga.
7. The alleged rape incidents took place at three different parts of the villa 906 where the defendant was staying.

The Evidence

8. The Prosecution called four witnesses - two police officers, the complainant and the complainant’s sister. The two police officers tendered the photographs of Villa 906 where the offending took place and the scene plan. The complainant’s sister’s evidence was basically that she was told by the complainant of what happened and how it happened. The key evidence as to what happened is that of the complainant.
9. The defence advanced two defences that (i) no sexual intercourse ever took place between the defendant and the complainant or (ii) if there was sexual intercourse then, the defendant honestly and reasonably believed that the complainant consented. The first defence raised is to the actus reus of the offending while the alternative defence is to mens rea. Both elements must be proven beyond reasonable doubt by the Prosecution. If one fails, the charge of rape collapses.
10. The defendant pursuant to Article 9 does not have to give evidence to prove his innocence for he is innocent until proven guilty. The defendant elected not to give evidence.
11. The only evidence therefore before the Court of what took place is that of the complainant.

(a) Was there sexual intercourse between the defendant and the complainant?

12. The Prosecution’s case is that the defendant had sexual intercourse with the complainant three times in the defendant’s Villa 906. The first two instances took place on the night of 7^th August 2022 in bedroom 2 and in the shower while the third took place in the early hours of 8^th August in bedroom 1.
13. The defendant submits that the sexual intercourse said to have taken place between the defendant and the complainant was all a figment of imagination of the complainant. In other words, the defence claims that no sexual intercourse took place. The defence says that the various sexual positions the complainant described could not have taken place for it would require bending of the defendant’s knees which would be impossible as one knee was injured.
14. The evidence that is not disputed is that the defendant, despite his injury, was still able to move around by walking (with a limp) with the complainant to DMC from the hospital and back. The defendant was also able to drive from Sheraton to RTP which would require movement of the knee(s). When the defendant and the complainant arrived at RTP, the defendant walked from the car park to his villa, then to the complainant’s villa and back to his villa. There was a lot of walking by the defendant for someone with an injured knee and on the day that he injured his knee. The reasonable inference to be drawn is that the injured knee did not restrict the defendant’s movements. The complainant’s evidence is the defendant’s knee was not broken but just a muscle injury.
    • (Transcript, page 9, lines 8-11)
    • “..Once the doctor was done I was able to ask and the only thing I knew and also from the doctor’s note that was also sent to the boss, Khan and I’s boss at that time was that it was just a lot of muscle, muscle injury just bruising but no bones were broken; but that he was told that he needed to rest, that he wasn’t supposed to walk or do any heavy work which is what our department needed to do.”
15. The Court does not accept that no sexual intercourse took place between the defendant and the complainant; that the alleged sexual intercourse was a figment of imagination or a fantasy of the complainant. There is not sufficient credible narrative to establish that the sexual intercourse alleged to have taken place was a figment of the complainant’s imagination or that it was a fantasy due to the complainant’s infatuation and obsession over the defendant. The Court would be inclined to consider such a defence if the narrative were that the defendant and the complainant had known each other and had a lot of contact prior to working for Survivor Australia to establish the suggested infatuation and obsession over the defendant by the complainant. Instead, the narrative depended upon is post the event complained of.
    • (Transcript, page 8, lines 18-26)
    • “Pros: can just pause you there? You have mentioned he was the husband of a friend; can you tell us more about your relationship with Khan or how you had come to know him?
    • Wit: I knew about him from his wife Olivia because we had worked together on a project before and from that it was just the way she described him it sounded like someone who was very devoted, someone that truly loved his kid and devoted to his wife.
    • Pros: Okay.
    • Wit: And the couple of times that I got to see him I was able to witness a brief moment of him and his child and to me it looked like that what she had shared was true and so I believed that but Olivia was someone that I considered, that I would call a friend.”
16. The only evidence before the Court of what happened is that of the complainant relayed by the complainant to her sister, Elisapeta. The Court believes the evidence of the complainant that sexual intercourse took place between her and the defendant.

(b) That sexual intercourse took place without the complainant’s consent given free and voluntarily.

17. The issues here are (i) whether the complainant had consented to the sexual intercourse, and (ii) if not, whether the defendant knew she was not consenting or did not have a reasonably held belief in her consent. It is for the prosecution to prove beyond reasonable doubt that the act was without the complainant’s consent but also that the defendant did not believe on reasonable grounds that the complainant consented.
18. Absence of consent is an essential element and must be proved by the prosecution regardless of whether the defence has raised it or relied upon it and even where the defence says that no sexual contact occurred.
19. It is elementary that the material time when consent and belief in consent is to be considered is the time the act took place. In considering the reasonableness of the defendant belief in consent it was crucial to focus on “how the incident began rather than on the act of intercourse itself was wrong”.
20. Failure to protest or resist does not constitute consent, but this does not affect belief in consent. Where consent is an issue, the prosecution bears the burden of proving that the defendant did not believe on reasonable grounds that the complainant consented.^[2]

The first rape allegation

21. The complainant’s evidence is, she was tired and was falling asleep on the way to Sheraton Mulifanua from the hospital to pick up the defendant’s car and they drove to RTP. They stopped at Frankie Supermarket on the way for the defendant to do his grocery shopping. It was starting to get dark. When they arrived at RTP she helped the defendant take his groceries to his villa before she went to her villa. Her roommate had not arrived at the time and despite saying ‘no’ the defendant insisted that she wait at his villa for her roommate. Eventually, she relented and told the defendant that she would have a shower and then come and wait in his villa, but the defendant insisted that she shower in his villa. The defendant accompanied the complainant to her villa to get some of her belongings. After her shower, she sat on one of the couches facing the glass sliding door so she could see her roommate when she walked past as she (complainant) had the key to their villa. She fell asleep on the couch and was awoken by the defendant who told her to go lie down in one of the bedrooms and that he would look out for her roommate. The complainant told the defendant that it was alright, she will wait on the couch for her roommate. Once again, the complainant fell asleep and was again awoken by the defendant who insisted that she go lie down in one of the bedrooms and he will keep a lookout for her roommate.
22. The complainant went and lay down in bedroom 2 and fell asleep straight away. The complainant was shaken awake by the defendant who offered to massage her feet as a thank you for accompanying him to the hospital. The complainant thought nothing of it or that it was awkward to have the defendant massage her feet for she knew that the defendant had worked as a masseuse.
23. The complainant fell asleep while the defendant was massaging her feet. The next time she woke up she could hear someone calling her name and really shaking her. She woke up to see the bedroom lights on and saw that she had changed position in that she was now lying across the bed horizontally parallel to the headboard where her head was when she first fell sleep. She also realised she was naked with the defendant lying next to her on her left who was also naked with his finger inside her vagina.
24. The complainant said she wore a sports bra, panties, shorts, and a t-shirt to bed. She woke up to someone shaking her and shouting her name; woke up and found herself naked. It would require some rigorous moving of the complainant’s upper body to remove the sports bra for it would have to be pulled over her head unlike a normal bra. The removal of all the complainant’s clothes according to her evidence did not wake her up. In her evidence she was only awoken when she was shaken, and her name being shouted. Why would the defendant go to great lengths to wake her up with all the lights on if his intention was to have sexual intercourse without her consent?
25. The complainant said she was panicking and confused as to what was happening. She asked the defendant why he was doing this to her and the defendant responded that ‘she asked for it.’ She asked the defendant what he meant by ‘she asked for it’ and the defendant responded that while she slept, they had a whole conversation and that is what she asked for. The complainant tried to think back as to how and what she would have done or said throughout the day that would have (defendant) entertained the idea. She said her family told her of her being a heavy sleeper but nothing about talking in her sleep. She said she could not physically move for she was confused and overwhelmed with guilt, and she just lay there and let the defendant have sexual intercourse with her. The inference that could be drawn from this evidence is that the complainant was not a willing participant. She said that the defendant also said that ‘what happened tonight never happened’. There was no evidence or suggestion of the victim feeling scared or in fear when the defendant said this, but in her evidence, it only compounded the feeling of guilt on her part for the defendant’s wife.
26. The complainant comes across as an intelligent and very capable woman, but she contradicts herself and at times her evidence does not make sense. Her evidence paints the picture of herself as being a helpless victim when she is an able and capable woman. There is her evidence where she could not physically move therefore could not fend off or push away the defendant; yet it was also her evidence that when the defendant went down on her she pushed his head away for she did not want his mouth there.^[3] Furthermore, she could talk with the defendant when she asked him why he was doing what he was doing to her and could have therefore said ‘no’ or stop the defendant by saying that she could not remember asking for it because she was asleep at the time.
27. The complainant was not asleep when the sexual intercourse took place; she was awake and conscious. In her evidence she does not drink alcohol or smoke. From her evidence, she was aware of what was happening. She could relay in detail what the defendant did to her and the different sexual positions. She said that she felt scared at one point when the defendant had one of his hands on her throat “when he was going in me”.^[4] There is no suggestion at all in her evidence that the defendant threatened her or that she was in fear of the defendant at the material time or in any context. There was no evidence that the defendant was aware of such fear (if any) or any manifestation of it. All she said was that she blamed herself, was confused and overwhelmed with guilt because the defendant is married to someone, she considered a friend.
28. The complainant’s sister Elisapeta’s evidence was what was relayed to her by the complainant, so her evidence is the same as that of the complainant. What I want to highlight from her evidence is in regard to the complainant being a heavy sleeper to which she said that the complainant does not sleep talk but is “the heaviest sleeper out of the four of us because of the way we were raised.”^[5] She explained that their parents were missionaries, and they travelled a lot and so they were trained to fall asleep quick. She went to say that she was a lazy sleeper but that Tiffany “is the heaviest sleeper” for it is hard to wake her up.^[6] Her evidence is also that the complainant put others before her. I find parts of her evidence convenient and at times not credible.
29. I find that the conduct of the complainant and the circumstances of the alleged rape ambiguous, capable of raising a reasonable doubt as to the absence of consent in the first allegation of rape. The complainant was aware of what was happening and could convey, if not verbally or by actions, that she was not consenting to the sexual intercourse at the material time.

The second and third rape allegations

30. In both alleged rapes the complainant, as was the case in the first incident, blamed herself, that it was all her fault for trusting the defendant thus the reason she just let the defendant have sexual intercourse with her without saying ‘no’ or physically fending off the defendant.
31. The complainant’s evidence is that after the first sexual encounter the defendant said for them both to go shower. He to use his shower in bedroom 1 and she to the same shower that she used before which is the ensuite to bedroom 2. While she was in the shower, there was a knock on the door. She opened it and the defendant told her that his showerhead was not working, and he got in the shower with the complainant where he again raped her.
    • (Transcript, page 17 lines 21- 34)
    • “Wit: He said he wanted us both to go and shower, he was going to go to his shower and that I was to clean up in the shower that I used before because apparently to him that bed was dirty now, it was not what happened on it but... So, I went into the shower just hoping that that was the last, that, that was it but then he came, I just remember being in the bathroom and then the knock came. The temptation to just not open that door, to keep it closed was there, but I honestly do not know what would have occurred because it was already too late to try to call for help. So, I opened the door and he was standing there, his showerhead wasn’t working or something so he wanted to use the one that I was in and in that shower that’s where he – in the shower that’s when it happened again, that was where he put his penis inside of my vagina again.
    • Pros: Can I pause you there Tiffany please. When that happened again in the shower when he put his penis inside your vagina did you consent to this action by Khan?
    • Wit: No Ma'am there was no verbal consent to this.
    • Pros: Can you please repeat what you said?
    • Wit: There was no verbal consent to this.”
32. I find that prior to the second rape allegation, there was the opportunity for the complainant to leave the defendant’s villa and return to her villa when the defendant went to his shower. She also did not have to open the bathroom door to the defendant allowing the defendant to enter and get in the shower with her; she could have fended him off or said ‘no.’ There is no evidence or suggestion that she was physically incapable of fending off the defendant or that she did but the defendant was too strong. There was also no evidence or suggestion that the defendant was stopping her from leaving or was threatened by the defendant.
33. She said there was no verbal consent on her part to what the defendant did. The Court took that to mean that the complainant did not say ‘no.’ The complainant’s conduct and behaviour, or lack thereof, places the lack of consent on her part in doubt.
34. The third rape allegation is said to have taken place in bedroom 1 where the defendant was sleeping. The complainant in her evidence said that after the alleged rape in the shower the defendant said to her that they sleep in bedroom 1. According to the complainant the defendant had considered the bed in bedroom 2, where the first alleged rape took place, to be dirty. The complainant and the defendant went to bedroom 2 and slept. The complainant said she woke up early hours the next morning and lay very still facing the wall when the defendant pulled her backwards towards him and raped her for the third time; afterwards, the defendant acted as if nothing happened.
35. She said that she complied when the defendant said that they go and sleep in bedroom 1 for at that point she was already ashamed to go to her villa and risk having her roommate asking her questions as to why she had come back at that time of the night. I find this part of her evidence also confusing as to why she would not be able to tell her roommate or her sister straight away or anyone for that matter of the sexual intercourse that just took place between her and the defendant that she never consented to.
36. For the same reasons as above, I find the complainant’s conduct and behaviour places the lack of consent on her part doubtful.

Further Observations by the Court

37. The Court has focused on the evidence particular to each allegation of rape at the time it happened and have not considered the rest of the evidence post event or after the alleged rape had taken place. I turn now to that evidence.
38. I must say that I find this an unusual case involving repeated expressions by the complainant of her feelings at the time of the acts which feelings concern other people and how they will be affected if they become aware of the sexual intercourse that took place between her and the defendant. How the complainant portrayed putting other people’s feelings before her own as the reason she allowed the defendant to have sexual intercourse with her not once but three times without her conveying in words or action to the defendant that she was not consenting. The complainant also seems to portray herself as a naïve, innocent woman for in her evidence she said that she only came to the realisation that she was raped when the defendant’s wife suggested it to her.
39. The circumstances following the alleged rape further compounded doubting the lack of consent on the complainant’s part. The evidence is the very next day the complainant texted the defendant and this continued every day for the duration of the filming of Survivor Australia. The complainant went out to dinner with the defendant; she hung-out with the defendant on set and after hours; she took photos of her and the defendant on her phone and even wore the defendant’s wife’s t-shirt that the defendant gave her albeit knowing who the t-shirt belonged to. What is even more bizarre is that the complainant allowed the defendant to move in to the same villa that she and a roommate were sharing during Survivor and he shared the same bedroom with the complainant’s roommate; the same roommate that she was concerned about leading to her contacting the defendant’s wife but resulted in her lodging a complaint with the Police regarding the alleged rape. When asked if it is normal for someone who has just been raped to act or behave the way she did towards the alleged rapist she responded that she had to act and behave normal so that no one would suspect what had happened (again) to protect her family, the defendant’s wife etc. The Court with this post event evidence sense some jealousy or envy on the complainant’s part for a relationship that may have developed between the defendant and her roommate who she referred to as a friend.
40. As mentioned before, I find the complainant to be a smart and very capable person. She is a mature woman at the age of 34 years and does not strike me as a naïve person albeit she tried to portray herself as one in her evidence.

Conclusion

41. There is grave doubt as to the lack of consent on the complainant’s part. I also find that the circumstances at the time of each sexual intercourse are such that it would cause the defendant reasonable belief that the complainant was consenting to each act of sexual intercourse.
42. I find that the prosecution has failed to prove beyond reasonable the second element of lack of consent on the part of the complainant.
43. The charges of rape (x3) against the defendant are dismissed.

JUSTICE TUATAGALOA

^[1] Ufiufi v Attorney General [2009] WSCA 14; [2010] 3 LRC 384 (9 October 2009) – This case was decided under the Crimes Ordinance 1961. The Crimes Act 2013 maintained sections 46 & 47 (repealed) in sections 48, 49 and 51 but with more detailed circumstances. Section 51(3) specifically provides ‘honest and reasonable belief’ as a defence.
^[2] R v Daniels [1986] 2 NZLR 106
^[3] Transcript, page 16 lines 29 -31
^[4] Transcript, page 16 lines 16 -23
^[5] Transcript, page 80, line 14.
^[6] Transcript, page 80 lines 12 - 22