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R v Tau'aika [2000] TOLawRp 41; [2000] Tonga LR 423 (15 December 2000)

IN THE SUPREME COURT OF TONGA

R

v

Tau'aika

Supreme Court, Nuku'alofa
Ford J
Cr 209/00

23, 24, 27-30 November, 1, 5-8, 13, 14 December 2000; 15 December 2000

Criminal law — rape — conflicting evidence — complainant lied — acquitted

The complainant, an 18-year-old student, claimed that she was sexually assaulted in her home in the early evening on 31 August 2000. The accused was charged with housebreaking and rape and denied the charges. He claimed that he had had sex with the complainant earlier that day but that it was consensual. At the time of the alleged rape he was fixing a motorbike.

Held:

1. The Court evaluated the conflicting evidence and found that the complainant had made up the rape story.

2. The accused was acquitted on all counts.

Statute considered:

Criminal Offences Act (Cap 18)

Counsel for the Crown: Ms Simiki and Mr Sisifa
Counsel for accused: Mr Tu'utafaiva

Judgment

In the early evening of Thursday 31 August 2000, the complainant, an 18 year-old student, was confronted by a male intruder and sexually assaulted in the bedroom of her home as she was getting ready to take a bath. After a 13 day trial that is about the only evidence on which there was no dispute between the Crown and the accused. The accused, however, who was charged with housebreaking and rape, denied strongly having had anything to do with the sexual assault.

The complainant and her family reside at Mataika, a village on the outskirts of Nuku'alofa. They are originally from Vava'u. The family migrated to Tongatapu in January of this year principally to allow the complainant to pursue a diploma course in tourism which she had commenced last year as part of the community development training programme at seventh form, Tonga High School. Her normal school hours were from 12 to 4 pm Mondays to Thursdays. There were no classes on Fridays.

The accused, Walker Tau'aika, is also originally from Vava'u. Throughout the trial, he was referred to often simply as "Walker" and for ease of reference I will follow that same approach.

Walker is 27 years of age. The complainant had first noticed him from time to time "hanging around" the streets when they lived in Vava'u but the first time they had spoken to each other was only six days prior to 31 August this year. In brief, the complainant's account of her contacts with Walker over that six-day period is as follows:

Friday, 25 August.

The complainant said that on that day she met Walker for the first time at a car wash shop at Fanga when she was with her new-found friend, Salote. Walker had a distinctive car. It was a small two door white car with a shark painted on either side of it. The windows were tinted and they appeared to be black from the outside.

Walker offered to take the two girls into town and drop them off at school and they accepted. Walker drove the car, the complainant sat in the rear scat behind him with Salote alongside her. Walker's friend, Sioeli, sat in the front passenger seat. Before dropping the girls off at the Memorial Hall by their school, Walker drove out to a house at Havelu and after going inside he came back out to the car and they continued on their way to town. The complainant said that during that section of the journey she noticed Sioeli smoking something and exhaling it into an empty soda can and then he inhaled the smoke through a hole that had been cut in the side of the can. At that point, the complainant noted a distinctive smell that she had never encountered before. She said that "the guys" told her it was marijuana. She was upset because the smoke came across to the back of the car and, as the rear windows could not be opened, she started to feel a headache. The complainant said that on that same trip she noticed Walker wearing a gold chain around his neck. She observed it while he was sitting in front of her.

That same Friday evening the complainant was at home in her bedroom when she heard music coming from a car radio and her name being called out. She looked out the window and saw that the call was coming from Walker's "shark car". She did not recognise the voice calling out but one of her younger brothers called back that she was not home and so the car left.

Monday, 28 August.

The complainant said that she next saw Walker again during the afternoon of Monday 28 August for a short period. She was walking with Salote and Walker drove up in his distinctive car and dropped off another person called Sione Nau.

When Walker came back to pick up Sione Nau about an hour later he asked the girls to go for a ride but the complainant refused. He asked her if she wanted money to buy something to eat and when she said, "yes", he gave her $10.

Tuesday, 29 August.

On the following day, Tuesday 29 August, the complainant said that at about 3pm she was walking up to Salote's house so that they could go to the 3pm to 4pm class at school together when Walker drove up and asked her if she wanted to get into his car. Again, she refused.

Thursday, 31 August (the morning).

On the morning of Thursday 31 August, the complainant was standing at a bus stop by her home waiting for a bus to take her into town where she planned to hand in an assignment to one of her tutors who worked as an assistant manager at the Dateline Hotel. While she was waiting on the bus stop at Mataika, Walker drove up and told her to get into his car and he would take her to school. She refused and she caught the bus which came along at the same time. Then, after waiting unsuccessfully for over an hour to see her tutor, the complainant caught another bus from the Dateline Hotel back to her school and when she alighted from the bus shortly before 2pm, Walker drove up, stopped his car and gave her some biscuits and another $10.

That summarises the complainant's account of her contacts with Walker prior to the incident on the evening of Thursday, 31 August.

On the Thursday afternoon, the complainant had an exam which finished at 4 pm and then she caught a bus home. She changed her clothes and visited a neighbour with her mother for a short period and later, after her father had arrived home from work sometime after 5 pm, she made a brief visit to the family plantation where her parents and younger siblings had gone to collect taro. From there, she proceeded to make her own way back home stopping off at a relative's house for a short time.

When the complainant arrived home, she put on the kettle in preparation for her bath and then walked towards her bedroom to fetch a towel which was hanging on the bedroom door. The Crown's case is that at that point, the complainant noticed someone in her bedroom rummaging through her school bag; he was about the same build as her and he was dressed in black. She told the police that he was wearing a balaclava. She thought it might have been someone playing joke. Out of curiosity she walked over and tapped the person, on the back. As he turned around she could see his eyes through the one hole in the hood and she could smell the same distinctive marijuana smell she had encountered in the shark car six days previously. She also recognised the gold chain the person in her bedroom was wearing as being the chain worn by Walker on that occasion.

At that point, the complainant took fright and ran out of the bedroom into the living room but the man grabbed her from behind and she fell to the floor losing consciousness. A few minutes later, Crown counsel continued in her opening, the complainant gained consciousness and realised that she was no longer in the living room but she was lying beside her bed. She was experiencing an excruciating pain from her vagina area and she noticed that her panties had been pulled down around her thighs. She started crying.

At approximately 6 pm her parents arrived home and heard their daughter crying. She told them that a male person had come into the house and had sexually assaulted her. At that stage she was sitting upright alongside her bed with her legs stretched out and her hair was dishevelled. She was still wearing her singlet properly but her lava lava was down around her legs - some of it was covering her legs and her pants were halfway down around her thighs. There was blood around her vagina and all over the crotch area of her panties. The complainant told the Court that she lost her virginity on the 31st August.

The complainant's mother left the house yelling and shouting and asking God why he had brought this problem on the family. The father also left the house trying to find the offender. At that point, a neighbour, Vaisioa Sikulu, came across to help. She entered the bedroom and spoke to the complainant. The complainant asked her to hand her the school bag which was on the bed. She did so and when the complainant tipped out the contents, apart from school material, a wrist watch also fell out of the bag. The watch was later identified as Walker's.

The police were contacted at about 6.30 pm and the complainant was taken to hospital where she was examined by a medical practitioner who prepared a report and gave evidence. The doctor told the Court that her examination showed a recent tearing of the hymen with fresh bleeding and bruising inside the vagina consistent with recent intercourse. There was no sign of any other external bodily injury or trauma and the doctor gave no evidence about any findings of semen.

The police took a statement from the complainant following her release from hospital on the evening of 31 August and another statement on the following day, 1 September. Because of illness, the sergeant who took the initial statement had to arrange for another police officer to take the second statement.

Walker was arrested at 7 am on Saturday 2 September. He was kept in the cells but because of the sergeant's illness, a statement was not obtained from him until the Sunday evening. That statement covered his movements on Thursday 31 August. Prior to giving the statement, Walker had been formerly charged. On Tuesday 5 September a further detailed statement was taken from Walker covering his movements during the six days leading up to Thursday 31 August.

The accused elected to give evidence. He did not have to because the onus remains on the Crown throughout to prove beyond reasonable doubt every element of each charge. Walker gave his account of his meetings with the complainant prior to 31 August. In summary, what he said was:

Friday, 25 August.

He and Sioeli picked up Salote and the complainant at the car wash at Fanga at about 12 noon and then they went cruising in the shark car on the east side of Tongatapu to Fatumu and then Fua'amotu beach before he dropped them back at school at about 4 pm. Walker said he had arranged with the complainant to go out again at 9 pm that same evening. He later heard from Salote that the complainant was busy and would not be going. He, nevertheless, drove around to her place with Sione Nau and asked a friend of his, Tevita Lasitani, who lived locally, to point out the complainant's house. He said in his statement to the police that Sione and Tevita called out for the complainant and when they were told she was not home they drove away. In cross-examination, he acknowledged that he had also called out.

Monday, 28 August.

Walker said that on the Monday evening when he returned to pick up Sione Nau from the shop where he was waiting with the complainant and Salote, the complainant got into his car and they talked and he asked her if she would be his girlfriend and she had said "yes" and they then arranged to go for a cruise in the car the following day. He said that he then gave the complainant $20.

Tuesday, 29 August.

Walker said that about 11 am on this day, he and Sione Nau picked up the complainant and Salote and they went cruising to the west side of Tongatapu out to Ha'atafu before returning to the east side and driving out to Fua'amotu beach and then Lavengatonga where they parked. Initially Walker was driving and then they changed around and Sione Nau took over the driving while Walker sat in the back seat with the complainant. Walker said that he was kissing the complainant and sucking her breasts. He said that at Lavengatonga he and the complainant, remained in the back of the car while Sione Nau and Salote sat outside under a tree a short distance away from the car. He said that he then attempted to have sex with the complainant. He said that she took off her own pants and underwear and at the same time he took off his pants but he then saw that the complainant was crying. She asked him whether he loved her and he said that he did. Although he started to have intercourse there was no penetration because he felt sorry for her. He said that she was embarrassed because of the presence of her friend, Salote. Walker said the complainant suggested to him that they wait and "do it properly later on". Walker agreed. He said that they then arranged to go out again at 10 am on Thursday, 31 August, and, because she did not have a watch, he gave the complainant his own wrist watch and before giving it to her, he set the time to coincide with the time showing on the car clock. The complainant, according to Walker, then put the watch on her wrist.

Thursday, 31 August.

Walker's account of his movements on Thursday 31 August were recorded in some detail in the first statement he gave to the police. In essence, he said that, in accordance with the arrangement they had made the previous Tuesday, he picked up the complainant sometime after 10 am that morning. He then described their movements up until the time he said he dropped her off back near her community school at about 2 pm.

Most significantly, Walker said that during this period he and the complainant drove out to an allotment at Sopu. The allotment is owned by a Sione Filipe who was described in evidence as a wealthy Tongan businessman. He stores containers on part of the land and runs a 2 acre pigs sty on another section of the property. Walker enjoys a close association with Filipi and, apparently, from time to time he carried out caretaking work for him at a nightclub he also owns called "Little Orphan" on some basis which was never satisfactorily explained. In all events, Walker says that he parked his car under a "fau" tree at the southern boundary of the pigs sty area of the allotment and he proceeded to have sex with the complainant in the back seat of his shark car. He said that he ejaculated inside the complainant's vagina. He described how, after the love-making, the complainant became upset, first, when he queried why there was no bleeding if she had been a virgin as she claimed and later, when in response to her suggestion that they go away somewhere together, Walker disclosed that he was a married man. Walker said that in her anger, the complainant grabbed the gold necklace he had around his neck and pulled it and broke it. He says it fell onto the floor of the car and he has never worn it from that point on. He also told the Court that during the love-making session a man who he knew only as Mapu, who worked as a caretaker on the allotment at Sopu, approached the car and saw the complainant and himself while they were actually having sex.

Walker said that when he dropped the complainant back at school at about 2 pm, they had an arrangement to go out again at 10 pm that evening. The arrangement was that the complainant and Salote would after school go to the complainant's home and Salote would then invite her, in front of her mother, to come and stay with her for the night. The idea was that Walker would then pick the complainant up from Salote's home at about 10 pm and they would go cruising.

Walker said that on the Thursday evening at the time of the alleged sexual assault, he was helping an acquaintance Feleti Tamanika, fix parts to his (Feleti) motor bike at a garage at the Little Orphan.

Both the complainant and Walker were expertly cross-examined at considerable length and it became obvious from an early stage that one or other of them was giving false evidence. It is fair to say that the tell-tale signs the Court looks for on issues of credibility began to appear at a fairly early stage but the certainty that the Court requires in order to determine the outcome of a criminal trial came, in the end, not from the main protagonists, but from lesser players each of whom had their own story to tell. Much of this evidence related to the various meetings between the complainant and Walker between the 25th and 31st of August. Although of no direct relevance to the housebreaking and rape charges, those earlier incidents had a crucial bearing on the issue of credibility.

My conclusion, after studying intently every aspect of the demeanour of all the witnesses called by both sides over this lengthy trial, is that, in general terms, each witness did his or her best to assist the Court with their honest recollection of the events they described. There was only one notable exception. Only the one witness who set out to deliberately lie and deceive the Court and that witness, I'm afraid to say, was the complainant herself. Not only have I concluded the accused is not guilty of the crimes of housebreaking and rape with which he has been charged but I have reached the firm conclusion that the rape or sexual attack described so graphically by the complainant never, in fact, took place. In my considered opinion, it was all a fabrication - a lie, but it very nearly resulted in the conviction of an innocent man.

I do not propose to detail every aspect of the lengthy trial which drew me inexorably to the conclusion that the complaint was a fabrication but I will refer to just some of the relevant matters. First, there were so many question marks raised over the circumstances of the alleged rape itself such as:

• Why, not one person in the close-knit neighbourhood saw any sign of a man or of a vehicle in the area at the time the incident allegedly happened which was about 6 pm when it was still broad daylight?

• How the alleged sexual intercourse took place while the complainant's panties were positioned halfway around her thighs?

• If the flow of blood had come from the rape, how does one account for the blood on the crotch of the pulled-down panties?

• Why there was no evidence of blood on the floor of the bedroom, if that is where the rape was supposed to have taken place?

Secondly, the complainant's description of her attacker:

• How she noticed the gold necklace around the accused's neck (which on demonstration in Court was tight-fitting) when he was supposedly wearing a hood over his head.

• Her description in Court of the gold necklace as being one of the most important features which enabled her to identify the assailant as Walker as soon as she saw him and her statement in cross-examination that she noticed the necklace on her attacker as soon as she entered the bedroom and yet she did not even mention the gold necklace in her statement to the police that evening.

• How the complainant was able to identify the attacker as being Walker before she lost consciousness but was not able to confirm that again in her own mind until the following morning after she had lay awake all night thinking about it was never satisfactorily explained to the Court. In her evidence in chief she was asked:

"You say you recognised this person when you saw the chain, when he faced you -- who was it? When I saw his face I was then sure -- certain that this person was Walker."

Later in evidence in chief, after the complainant acknowledged that she was unable to tell the police on the night what her attacker looked like, the following exchange took place:

"When were you sure the person you saw that particular evening was Walker? After I was taken to hospital I came home and I was unable to sleep. Just before dawn I tried to remember everything I could about this person and my conclusion was that the person was Walker. What did you think to confirm it was Walker? First, his eyes. Secondly, his gold chain and thirdly, the smell of marijuana, confirmed my suspicions.

There was no medical evidence that would explain this phenomenon - how the complainant could be certain the man was Walker as soon as she saw him but was unable to tell that to the police or relay her certainty in this regard to anyone until the following morning.

Then, again without going into all the details, there were a number of inconsistencies in the complainant's description of the "attack" on her and what caused her to lose consciousness. She said in her evidence:

• "When he turned around I knew that it looks as though he was trying to grab me so I turned around myself and ran towards the living room. I was very frightened because I do not know why he turned around and tried to grab me. I ran straight into the wall -- the wall of the living room. As I ran towards this wall there was a table located by the wall. Before I reached the table, I felt something grab me from behind then I fell on the floor and lost consciousness. Do you remember how you fell -- front or back? I was being grabbed from the back and I fell to the back. I do not know if I was being punched."

• The complainant's neighbour, Vaisioa Sikulu, told the court that when she talked to the complainant a short time after the incident, she had told her that, "they had struggled and the man punched her and she fell on the floor in the living room."

The complainant's statement to the neighbour that she had been "punched" was no doubt the reason that prompted the Crown to cross-examine Walker about his boxing ability and his apparent trademark punch of a left hook to the jaw of his opponent when he represented Tonga and Oceania in his younger days. However, there was no evidence whatsoever of any outward abrasions or bruising to the complainant's jaw or any other part of her body.

Apart from these unsatisfactory aspects of the complainant's evidence about the so-called sexual attack, there were other dubious aspects in her story which, as it were, sounded the alarm. She never did explain, for example, why it was so necessary for her to wait at the Dateline Hotel for over an hour simply to hand in some assignment to her tutor. Why did she not leave the assignment under the tutor's door? In her evidence in chief she said that she had gone to the Dateline to give her tutor an assignment. Under cross-examination, however, when asked if she had an appointment to see the tutor at the hotel that morning, she said, "no". When she was then asked why she had gone to see him that morning she said that there had been a handout of an assignment given to the class and she had not been able to get one. Why these two different explanations for the trip to the Dateline Hotel were given was never explained. A receptionist on duty at the hotel at the time was called by the Crown. She was unable to recall having seen the complainant waiting in the reception area on the day in question but she conceded that, because of her other duties, she would not necessarily have noticed her. Coupled with this evidence, was the extraordinary co-incidence of Walker driving past the complainant's school just at the time that she was alighting from the bus she had caught from the Dateline.

But quite apart from all these unsatisfactory features in the complainant's evidence, there was, as I have indicated the absolutely compelling evidence of other witnesses which confirmed in virtually all respects the accused's account of his contacts with the complainant up to the evening of 31 August.

If the complainant was prepared to lie under oath about those other incidents then what possible credence can this court give to her evidence about the alleged rape.

One of the compelling witnesses I refer to in this regard is Mapu Naulangi, the man who actually saw Walker and the complainant having sex in the back seat of the shark car at the allotment in Sopu. He is a family man 47 years of age. He has been a lay preacher in the Free Church of Tonga for several years. Mapu had started working for Sione Kelepi as caretaker of the allotment earlier in that month of August. For some reasons, which I cannot understand, he was never interviewed by the Police. He said that on the morning in question, he was waiting by a shed on the allotment for a man to come and fill one of the containers with gas. He noticed Walker's car as it entered the allotment and travelled over to the southern boundary of the pigs sty where it parked. He knew it was Walker's car. He had seen it two or three times previously. He carried on with his work for a period then, out of curiosity, he walked up to the car and saw through the open front passenger window a girl lying on her back in a "crouching position" in the back seat with Walker on top of her. Both were naked from the waist down and they were engaged in sex. Mr Naulangi said that Walker looked up and saw him and he felt ashamed because he thought the girl was Walker's wife and so he walked away outside the fence where he stayed for some 10 minutes. When he returned, Walker and the girl were outside the car. Walker was sitting on the front bonnet and the girl was leaning on him. Walker told Mapu that he and the girl were just good friends. I found Mr Naulangi to be a patently truthful witness.

I will not review all the other evidence but I have taken it into account. For the avoidance of doubt, however, I record that I accept the explanation given in this Court by one of the other Crown witnesses, Tevita Lasitani, for his earlier inconsistent statement about Walker's watch. I accept Walker's story about his giving the watch to the complainant at the time and place he said.

Lasitani was, apparently, not the only Crown witness to change his story. In his closing submissions yesterday afternoon Counsel for the accused reminded the Court that in his original statement to the police detailing events on the day of the alleged rape, Walker had said that in the evening on his way to the Little Orphan where he helped Feleti Tamanika carry out repairs to his motorbike, he (Walker) was stopped by a police constable on the By-pass road and was told to put a safety tie on his Helmet. This was potentially important evidence because Feleti Tamanika was called by the defence and he said that Walker arrived at the garage where he was working on his motorbike at about 5.45 pm. Obviously, Walker could not have been at the Little Orphan garage and in the area of the complainant's home at Mataika at the same time and in his statement Walker named the policeman who had stopped him on his motorbike on his way to the Little Orphan.

In all events, the Crown proposed to call the policeman concerned but the policeman was indisposed with a medical condition. The Court, therefore, made arrangements for the policeman's evidence to be taken at his home but on the morning that the evidence was to be given, the Court was informed that the Crown had decided not to call the policeman as a witness. Counsel's submission yesterday, on behalf of the accused, was that in the absence of evidence to the contrary, Walker's statement about being stopped by the policeman about the same time that he was supposed to be at the rape scene would have to be accepted as unchallenged.

At the very end of the Crown's submissions, I invited the prosecutor to comment on this particular submission and she then informed the court that the reason the Crown did not call the policeman was because he had initially given a statement to the police in which he said that he did not see Walker that day but when she went to see him at his home to make the final arrangements for the taking of his evidence, he had changed his story and he now said that he did see Walker that afternoon as Walker had said and because of the change in story, the Crown "came to the conclusion that his evidence should be excluded". I must say that if the Court had been aware of this information at the time then it would have insisted on the policeman's evidence being taken. The position, in this regard, is well summed up in the following passage from Halsbury, 4th edition, Vol 11, paragraph 286:

"... there is a wide discretion in the prosecution whether it should call them (witnesses), either calling and examining them, or calling and tendering them for cross-examination; if the evidence of a witness is capable of belief, the prosecution is under a duty to call him, even though the evidence he is going to give is inconsistent with the case sought to be proved; the prosecution's discretion must be exercised in a manner which is calculated to further the interests of justice and is at the same time fair to the defence."

The thrust of the Crown's attack on the evidence called on behalf of the accused was that the seven witnesses, with one exception, were family members or work mates and the stories they told were so remarkably consistent with the accused's account that the only sensible conclusion that could be drawn was that Walker, at some stage, had got together with them and concocted their evidence to fit in with the statement he had given to the police.

That is one explanation, although given the thoroughness of the Crown's cross-examination, the accused would have needed to concoct a very detailed and elaborate script. Another explanation, and it is the one which I do not have any difficulty accepting, is that the witnesses called on behalf of the accused, who were not in any event all family members or work mates, were telling the truth.

In this regard one witness I want to make special reference to is the complainant's former friend, Salote 'Ova. She was not a family member or work mate of Walkers. Salote had been subpoenaed by the Crown but not called as a witness. The accused elected to call her as a defence witness. It is fair to say that Salote had been presented by the Crown as the turncoat who, after the alleged rape, had betrayed the complainant and sided with Walker to fabricate false evidence about the cruising out to the east in Walker's car on Friday 25 and the even longer cruising trip on Tuesday 29 August. I record, however, that I found Salote to be an important and an honest witness and her evidence turned out to be quite crucial to the case.

At the end of her evidence, Salote was asked by the Court why she believed the complainant denied the cruising in Walker's car. The answer given by Salote, which I accept, was that the complainant was afraid of her parents. In my opinion, that is also the most likely explanation for the complainant's false rape allegation. The complainant is the eldest of six children. Her mother told the Court the reason the family moved from Vava'u to Tongatapu at the beginning of the year was to enable their daughter to continue her schooling. The parents were obviously proud of her. At the same time, the mother impressed as being a strong minded person with a religious upbringing and possessing high moral standards.

When, in the absence of truthful evidence, the Court looks for the most likely explanation of what happened on that Thursday evening at Mataika, it is difficult to avoid the conclusion that it was a case of the complainant suddenly being overwhelmed by the enormity of the events of the day. Whether the bleeding from the hymen found on the panties and around the vagina area had, in fact, taken place closer to the time of intercourse at Sopu or whether, for some reason, the bleeding was delayed or perhaps even the result of a period was not fully explored. The doctor seemed to accept without difficulty that the bleeding could have been 4 hours old. That brings it closer to the time of the intercourse at Sopu. In cross-examination the complainant accepted that if she was having her period, that could be an explanation for the blood on the crotch of the panties.

In all events, I believe that the most likely explanation of what really happened is that when the complainant was in her bedroom alone preparing for her bath and she saw the blood she suddenly became overwhelmed by the realisation that she had lost her virginity to a married man who, for that reason, could never be her boyfriend. She may have even contemplated the possibility of pregnancy. She became fearful at the prospect of her mother, in particular, learning the truth. She began to cry uncontrollably and when her mother confronted her a relatively short time later, she made up the rape story. Everything else flowed from there.

In re-examination the complainant was asked:

"Did you have intercourse before 31 August? I am sure that I haven't had intercourse before 31 August. Tell the Court what time you lost your virginity. To my recollection it was 31 August".

This answer disguised the fact that the loss of virginity had taken place, not in her bedroom at Mataika, but, in the back seat of the "shark" car in the pigs sty on Sione Filepi's allotment at Sopu.

In the opening paragraph of this Judgment, I said that after a 13 day trial, the only evidence upon which there was no dispute between the parties was that on Thursday 31 August, the complainant was confronted by a male intruder and sexually assaulted in the bedroom of her home as she was getting ready to take a bath. The irony of that statement in the light of my conclusions, has not escaped me.

Before the case began, I made an Order at the request of Crown counsel, endorsed by counsel for the accused, that, for the protection of the complainant's identity, all the evidence relating to the case would be heard in camera pursuant to section 119 of the Criminal Offences Act. As it turns out, if it were not for the embarrassment her family members, in particular her parents, might otherwise suffer, I would now not hesitate, if I could, to rescind that Order so that the complainant might suffer the ignominy and shame from exposure that she deserves.

The accused, Walker Tau'aika, is acquitted on all counts and is freed from this Court.