Home | Databases | WorldLII | Search | Feedback Tonga Law Reports

R v Fungavai [2007] TOLawRp 28; [2007] Tonga LR 163 (14 August 2007)

[2007] Tonga LR 163

IN THE SUPREME COURT OF TONGA

R

v

Fungavai

Supreme Court, Nuku'alofa
Ford CJ
CR 113/2006

23 and 24 July 2007; 14 August 2007

Criminal law – rape and indecent assault – issue of identification – Crown obliged to call all relevant witnesses – accused convicted

The accused was charged, as a serving police officer, with one count of rape and two counts of indecent assault contrary to sections 118(1)(a) and 124(1) respectively of the Criminal Offences Act (Cap 18). The offences were alleged to have occurred inside the No. 1 cell at the Mu'a Police Station on Christmas Eve 2005. The complainant was the estranged wife of another police officer. The defence raised the issue of identification and whether there was sufficient light in the cell for the complainant to recognise the offender. Defence counsel also attacked inconsistencies in the evidence given by Crown witnesses.

Held:

1. Applying the well-known guidelines in R v Turnbull [1977] QB 224, the court was in no doubt that the complainant had correctly identified the accused as the person who had entered her cell and carried out the acts complained of.

2. The position in the Kingdom was that although the Crown may not be bound by the strict disclosure requirements which these days are a pivotal part of the prosecution process in other jurisdictions, there was still an obligation upon a prosecutor in the exercise of his discretion to call or tender evidence to act in the interests of justice so as to promote a fair trial.

3. The prosecution did not put forward every witness as a witness of truth, but where the witness's evidence was capable of belief then it was the prosecutor's duty, well-recognised, that he should be called, even though the evidence that he was going to give was inconsistent with the case sought to be proved.

4. It was not the position that the prosecution were under an affirmative duty to call all witnesses that may give relevant evidence other than those whom the prosecution have relied upon to secure an indictment, for example, at a preliminary hearing or those who it had stated an intention to call where the failure to call surprises the defence at trial. However a failure to disclose the identity of any potentially helpful witnesses/statements to the defence could result in an unfair trial.

5. The fact that the Crown, as part of its obligation to call all relevant witnesses, happened to call one or more unfavourable witnesses, did not mean that the point at issue was to be concluded against the prosecution. It was still up to the judge or jury to decide which of the contracting witnesses they believed.

6. The court was satisfied that the Crown had established all the essential elements of each charge beyond reasonable doubt and the accused was convicted accordingly.

Cases considered:

Dallison v Caffery [1965] 1 QB 348

Grant v The Queen [2006] UKPC 2

R v Brent [1973] Crim. LR 295

R v Cairns [2002] EWCA 2838

R v Fainga'anuku [2006] Tonga LR 271

R v Haringey Justices, Ex p Director of Public Prosecutions [1996] QB 351

R v Harris [1927] 2 KB 587

R v Nugent [1977] Crim LR 375

R v Oliva (1969) 49 Cr App R 156

R v Russell-Jones [1995] 3 All ER 239

R v Turnbull [1977] QB 224

Seneviratne v R [1936] 3 All ER 36 (PC)

Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 60 CLR 279

Statute considered:

Criminal Offences Act (Cap 18)

Counsel for the Crown: Mr Sisifa
Counsel for the accused: Mr Pouono

Judgment

The charges

[1] The accused was charged, as a serving police officer, with one count of rape and two counts of indecent assault contrary to sections 118(1)(a) and 124(1) respectively of the Criminal Offences Act (Cap 18). The offences are alleged to have occurred inside the No.1 cell at Mu'a Police Station on Christmas Eve 2005. The complainant is the estranged wife of another police officer.

The Crown case

[2] The principal witness for the prosecution was the 25-year-old complainant. She told the court that she had married a police officer based at the Mu'a Police Station in 1999 and they had separated in 2004. She explained that she was not really acquainted with the accused but she would see him from time to time at the Mu'a Police Station when she dropped her husband off at work. He would greet her husband. She had asked her husband who the accused was and that is how she had come to know his name.

[3] The 24th of December 2005 was a Saturday. The previous evening the complainant had gone out partying in Nuku'alofa and when she arrived home in the early hours of the Saturday morning she was, on her own admission, "very drunk". She lived with her mother and sister at the village of Fatumu. Although the evidence touching on the matter was disjointed and vague, it appears that when she arrived back from town she had an argument over the use of the family vehicle and a complaint was made to the Mu'a police. Two male police officers, Constables Faiva and the accused, then took the complainant to the police station. She was still in an intoxicated state. It was revealed in cross examination that on the way to the police station the complainant had jumped out of the police vehicle. The accused picked her up and put her back in the rear seat of the car and sat beside her and held her hand so that she would not open the door again. The complainant thought that it was sometime after 8 a.m. when they arrived at the Mu'a Police Station. She was placed in cell No.1.

[4] Helpful photographs and a sketch plan were produced by the Crown showing the layout of the Mu'a Police Station and, in the presence of counsel, I also carried out a scene inspection. There are two cells alongside each other measuring 8'6" by 6'4". The walls and flooring are constructed of solid concrete. There is a small grill window at the top of the back wall of cell No.1 and the solid steel door also has bars on it in part. There are no lights in the cells and although there was a light fitting in the small hallway outside the two cells, the light was not working at the time of my visit and I suspect that it has been out of action for some time. The complainant said that when the door from the hallway leading into the main office was closed, the cells were very dark and I accept that evidence. The police photographer who took his photographs around the middle of the day also commented in evidence that the cells were very dark and he had to use a torch and the flash light from his camera in order to take his photographs. There is no furniture whatsoever in the cells, nor is there any washing or toilet facilities. If a prisoner wishes to go to the toilet they either shout or rattle the door or do both.

[5] The complainant said that at one point after her incarceration she was sitting on the floor with one arm resting up on the cell door in front of her. Someone then entered the cell with some food. She could not see what it was but she could smell that it was food. The person then walked around behind her and bent over her shoulder and started giving her love bites on her breasts. He did not say anything and because of the darkness she could not see who it was but she pushed the person away and picked up the food and threw it at him and he then went out of the cell and closed the door. As he exited the cell, however, the complainant could see him in the light coming through the open door leading from the hallway into the office and she realised at that point that the man was the accused. Following that incident, the complainant said, she took off her T-shirt, lay it on the concrete floor and then she lay down on the T-shirt and went to sleep. At that point, she was wearing her bra, underwear and long tight trousers.

[6] The complainant then proceeded in evidence to describe what happened next. She said that she was not aware of the time of day but she was woken by someone turning her onto her back and her head struck the cell wall. She attempted to jump up but with one hand her attacker started strangling her around the neck pinning her head against the cell wall. He then proceeded to lick her vagina. It was at that point that the complainant realised that he had removed the bottom half of her clothing. She struggled but he began to lick her breasts and then have sexual intercourse with her. She said that after the sexual intercourse he jumped up and closed the cell door and she could see him putting on his trousers in the hallway but, because of the darkness, she was unable to recognise his face. After he put on his trousers he opened the door leading from the hallway into the office (which was directly opposite the cell door) and the complainant said that at that point she could see in the light coming through from the office that the assailant had again been the accused. She described how he opened the door to the office only partially and he walked through the doorway sideways but he was facing her as he did so and she could clearly see who it was.

[7] The complainant told the court that as soon as she realised that her assailant was the accused she called out to him and said, "Latiume, I know it's you. Why did you penetrate my anus? I will bring charges against you. Why did you do this to me." She was asked in examination in chief why she had used the term "anus". She replied: "Because I was angry that he did that. Whether he had penetrated my anus -- he did not do that, I just said that because I was angry at what he did."

[8] The complainant said that after the assailant went back into the office, another officer, Constable Sione Lelea, came out of the office and opened the cell door. He also left open the office door. The complainant came out from the cell into the office area and as she did so, she could see the accused out on the footpath in a hurry to get across the road. She yelled after him, "I will lay a complaint, why you do that you arsehole?" The accused did not reply. She said that he was not concerned. He hitched a ride in a vehicle outside the police station and left.

[9] In cross examination Mr Pouono put it to the complainant that she had consented to what had been done to her in the cell and he queried why she had not yelled out for help. In response the complainant said that she could not call out because the assailant was strangling her neck. In her words: "All I was concentrating on was getting air to breathe. I did not know if I was going to survive. I did not consent to his actions. I thought let him do what he was doing so I could live."

[10] That was not the end of the complainant's ordeal. She then described to the court in some detail the saga that followed when she endeavoured to lodge a formal complaint with the police and the aftermath once her complaint was eventually accepted. The complainant was not challenged in cross examination on this part of her evidence.

[11] The complainant said that after the accused had left the police station she spoke to Constable Lelea and asked him if he could take down her statement because she wanted to make a complaint. She also asked Lelea "if it was normal police practice that they would do indecent things to people in custody." The complainant said that Lelea treated it all as a joke and refused to take a statement or treat her complaint seriously. She then asked him to stand by the door of the police station while she went to take a shower in another building at the back of the police station which housed the bathroom. She said that after her shower, Lelea told her to go to another room in the police station and lie down and sleep and wait for a police vehicle to arrive to take her home. She did that.

[12] The complainant said that a short time later a Constable 'Alamoti Langi arrived at the police station and woke her up and asked her what she was doing there. He had brought some food into the office. She told Langi that she wanted to make a complaint and he asked her why her complaint had not been taken down already. She said that at the same time Lelea was in the background laughing. Langi suggested that she should make her complaint at another police station. Another officer then arrived at the Mu'a Police Station and shortly after that the complainant was taken back to her home in a police vehicle.

[13] When the complainant arrived home there was no one at home but her mother and sister arrived back from town a short time later and she told her mother what had happened and showed her mother the marks on her body. She accused her mother of being the cause of it all because she had been the one who had wanted her taken to the police station. The mother cried and told her that they should go back to the Mu'a Police Station to make a complaint. They drove to the police station but there was no one there. They returned the following day, however, which was Christmas Day 2005 around 7 p.m.

[14] The complainant said that when they arrived at the police station on that occasion they spoke to Inspector Melenaite Kaufusi, "Naite", as she was referred to in evidence, was the acting officer in charge of the Mu'a Police Station. The complainant's mother told Naite that what had happened to the complainant was unsatisfactory and they wanted to lodge a formal complaint. According to the complainant, Naite told them to go home and she would speak to the accused about it and come and see them. She commented that it was very sad for the accused because he had a wife and children. The complainant and her mother then returned home.

[15] On the Monday morning, 26 December, the complainant and her mother decided to travel to Nuku'alofa and make a complaint at the Central Police Station. They did so. The officer they saw was 'Unga Fa'aoa. He recorded the formal complaint. The officer also told them that he would contact the Mu'a Police Station to find out why the complaint had not been acted upon. The complainant said that she was happy when she left the Central Police Station because she knew that her complaint had finally been lodged.

[16] At around 6:30 a.m. the following day, the complainant had a visit at her home from Naite and the accused. They arrived in a police vehicle and told the complainant's sister that they wanted to speak to the complainant. The complainant said that when she went out to the vehicle, Naite asked her to get into the car because they were going to talk. She asked Naite what they were going to talk about and she (the complainant) suggested that if they wished to talk then they should talk in the house. Naite told her again to get into the police car and they would "just have a little talk." She did so. She sat in the backseat and Naite and the accused were in the front. The car was driven to a spot by the cemetery at Mu'a. Naite then got out of the vehicle and told the complainant to talk to the accused while she went and made a phone call. The complainant identified from the photographs the spot at the cemetery where the police vehicle had pulled up.

[17] The complainant said that after Naite walked away to make her phone call, the accused told her that he was very sorry about what had happened but the temptation was too great. According to the complainant he said: "I feel remorseful, I feel truly remorseful at the moment." He then asked her what if he was to give her some money and a bottle of alcohol, would she then go back to the police station and withdraw her complaint. The complainant said that her response was: "You know what you did to me. I want to take it to court." The accused apologised again and at that point Naite returned to the vehicle.

[18] When Naite entered the vehicle, according to the complainant, she repeated the same offer of money and alcohol in return for the withdrawal of the complaint. The complainant told her that it had nothing to do with her (Naite) and she was going to do what had to be done. The complainant told the court that Naite responded saying that it was sad for the accused because he had a wife and children and if the wife got to hear about it then they might be separated for good. Further discussion followed with both Naite and the accused pleading with the complainant to withdraw the complaint. The complainant wanted them to take her home and so in the end she said to them, "why don't you drop me off at home and you can go and get the bottle of alcohol and you can ring me." She explained to the court that the only reason she made that proposal was to get them to take her home. They did so.

[19] Later that same day the complainant received telephone calls from both the accused and Naite. She said that she told Naite that they could take the money and the alcohol because she was not going to withdraw her complaint and she should leave the matter between her and the accused because she wanted it to go to court.

[20] The next development, according to the complainant, occurred around 9 p.m. on the same Tuesday. The complainant was attending a concert at Fatumu when she was informed that there was a police vehicle outside the concert venue and the officer wanted to speak to her. She went out to the police vehicle and saw that it was Constable Lelea. He made the same proposal, offering money and alcohol for her to drop the charges against the accused. She told him to take it because she did not want anything from him but he held the bottle of alcohol out of the car window. In the end she took the bottle and gave it to some boys who were standing on the roadside. After the concert finished she returned home and went to sleep. The complainant said that around 1 a.m. the following morning her mother saw Constable Lelea pull up outside their house in a police vehicle. He knocked on the door but the mother did not answer. He returned again around 3:30 a.m., according to the complainant, but again no one answered the door.

[21] At around eight o'clock that same Wednesday morning, Naite telephoned the complainant and again implored her to withdraw the charges. Then, at approximately 7 p.m. the same day, according to the complainant, Naite, the accused and Constable Lelea arrived at her home in a police car. When the complainant saw them pull up outside she ran out the back of the house because she did not want to see them. Without objection, however, the complainant recounted to the court what her mother told her about the visit (the mother having since passed away). Naite apologised to the mother over what had happened. She said that a mistake had been made but she was looking at the position of the accused's wife and children. The accused then cried and apologised to the mother and told her that he was truly remorseful. The complainant said that her mother accepted the apology by Naite and the accused. Her older sister then called out to the complainant to come back inside the house. She did so, the police were still there and her mother told her that she (the mother) wanted her to go to the police station and withdraw her complaint. The police then left and an argument broke out between the complainant and her mother but the complainant refused to consider withdrawing her complaint.

[22] At around 8 a.m. the following day (Thursday) Naite telephoned the complainant and repeated her earlier pleas but again the complainant rejected her request. That was the last attempt by the Mu'a police to persuade the complainant to change her mind and withdraw the complaint.

[23] The Crown also led evidence from the three Mu'a police officers. The first officer called as a witness was Constable Lelea. He told the court that he was on duty on the morning of 24 December having arrived at work at around 9 a.m.. He recalled sometime later, while he was on the telephone, that the accused took some food into the complainant in custody. He said that after his telephone call which lasted for four or five minutes he went to a shop across the road and he was away for seven to eight minutes. He said that when he returned to the police station the accused was in the Charge Office. The accused told the witness to release the prisoner so she could go and have a shower. Lelea said that he would not release the prisoner because he "was not a female officer" and so the accused released her to have a shower. Lelea said that when the complainant came out of the cells she was holding her T-shirt in front of her but as she walked past him he could see that she was wearing only a bra on her top. The witness said that after she had taken her shower, the complainant said that she was very upset about Lemisio Sete (another police officer) because he had punched her on the face and the mouth (that particular allegation had never been put to the complainant for her to comment upon). Lelea said that he told her to go to the CID office and sleep. He said that later PC Langi came in with some food and he told Langi that the CID office was closed because a female prisoner was sleeping there. He said Langi went into the CID office and came out with the complainant and they went to the Charge Office. He (Lelea) overheard the conversation and, according to Lelea, the woman was alleging that the accused had licked her but she was laughing about it saying that "the Crown was now on its knees before her." Lelea denied that the complainant had made any complaint about the accused to him on the morning in question and he denied having laughed at the complainant at any stage.

[24] Referring to the events after the complainant's release from the Mu'a Police Station on the Sunday, Constable Lelea admitted going to the complainant's home on the Tuesday night and offering her a bottle of alcohol. He said that he was instructed by the Acting Officer in Charge, Naite, to take the alcohol to the complainant. He said that the complainant was his cousin and his understanding was that the alcohol was being offered to the complainant so that she would not make any complaint about the accused. The witness told the court that the complainant took the alcohol and that was the last time he had spoken to her. He denied going to the concert at Fatumu to track down the complainant but he admitted going back to her house later during the night and knocking on the door but no one answered. He was asked why he had done that and he replied that he went back to her home, "to get an answer for the officer in charge as to whether she was going to drop her complaint." He continued, "I thought by then she would be happy with the alcohol I had given her."

[25] Police constable Langi was the next witness for the Crown. He said that he should have been on duty on 24 December 2005 but he had asked to be excused so that he could attend a hall dedication ceremony at Lapaha. He did, however, take some food along to the police station on two occasions that morning. He said that on the second occasion he had asked Constable Lelea if he had eaten the food and he replied that he had not but the food had been eaten by a female prisoner. Langi asked where she was and Lelea said lying down in the back room. Langi said he went to see her and he asked her to come and have something to eat and she did. He said, "we were joking because she had a black eye. I asked her why and she said, "she had been punched by a male cousin of hers." Langi said that while they were talking, the complainant said that she, " was tired from --" and then she laughed. He asked her why else she was tired and she said, "the accused had come and had sex with her." Langi said he asked her if she wanted to make a complaint and she told him that she did not want to make a complaint but she wanted to go home. A witness said that Constable Lelea would have overheard their conversation. He said that he (Langi) then returned to the dedication ceremony.

[26] The next Crown witness was Assistant Inspector Melenaite Kaufusi (Naite). She had been a police officer for 20 years and on 24 December 2005 she was Acting Officer in Charge at the Mu'a Police Station. Naite told the court that she recalled going over to the complainant's home after the incident but she could not recall the exact date. She said that the accused went with her although he had told her that he wasn't going to say anything because the complainant was lying. They talked to the complainant's mother. Naite said that she apologised to the mother because she was aware of the complaint that the accused had raped her daughter. She said that she apologised because she had been the Officer in Charge of the police station at the time. The witness said that at that point she looked across the room at the accused and indicated to him with her eyes that he must speak to the mother but he did not say anything. Naite, therefore, told the mother that they would attempt to see her daughter later on.

[27] Naite also recalled in evidence that several days after that visit they returned to the house just by chance to see if the complainant was home. The mother told her that she was home but she had left the house as soon as she had seen the police vehicle arrived. Naite said that two days later the complainant telephoned her and asked her if she could get her a bottle of liquor so that she could withdraw the complaint. Naite told her that she had no money but she would try and see if she could get her a bottle of liquor. She said that she rang her back later and told her that she was not able to get a bottle of alcohol.

[28] Naite was asked about the complainant's evidence that Constable Lelea had come around to her house with a bottle of alcohol saying that he had been told by her (Naite) to pass it on to the complainant. Naite replied: "that's true, but I only gave her the bottle of alcohol because we were friends and she wanted it and so I gave it to her." Naite denied that the alcohol was intended to persuade the complainant to withdraw her complaint.

Submissions

[29] As was his right, the defendant elected not to give or call evidence but Mr Pouono presented helpful written submissions dealing in some detail with the facts of the case. Counsel highlighted what he referred to as "major contradictions" in the Crown's case between the complainant's evidence on the one hand and the three police officers on the other. One of the matters he referred to under this head was the complainant's evidence where she told the court that she had complained to Constable Lelea about what the accused had done to her in the cell but Constable Lelea denied this in evidence and said that she did not tell him she wanted to file a complaint. Mr Pouono made the point that neither Lelea or Langi had given evidence about seeing the love bites on the upper part of the complainant's body which the complainant alleged the accused had given her in the cell. Counsel also analysed the evidence relating to the timing and duration of the alleged offences and submitted that there were inconsistencies between the complainant's estimate that the incident had taken "quite a while" and Lelea's evidence of the four to five minute telephone conversation and the seven to eight minutes he had taken to go to the shop across the road. By reference to the photographs before the court, Mr Pouono submitted that there was insufficient space for sexual intercourse to occur if the complainant had been lying on the floor across the cell, as she had claimed, rather than lengthways. Defence counsel also attacked the credibility of the complainant's evidence submitting that the accused would not have been able to remove her long tight trousers without waking her up and he also submitted that she had known the accused better than she was letting on to the court. Finally he made observations about her demeanour in the witness box and submitted that there was no corroboration of her complaint.

[30] In his closing submissions, Mr Sisifa accepted that there may have been " vast inconsistencies " between the evidence given by the complainant and the three police officers, Inspector Melenaite Kaufusi, PC Lelea and PC Langi, and he also accepted that the evidence given by the three police officers tended to support the evidence of the accused. The prosecutor submitted, however, that as fellow police officers, the police witnesses were close to the accused and they had sympathy for him. Commenting on Naite's position as Second Officer in Command and Acting Officer in Command of the Mu'a Police Station, Mr Sisifa submitted that she was more concerned with protecting her own reputation and that of the accused than acting on the complainant's complaint. He submitted that the main issue in the case is one of credibility and he invited the court to conclude that the complainant's version of events was the truth.

The law

[31] There was no dispute over the essential elements which the Crown has to prove in order to establish charges of rape and indecent assault. The central issue is whether the Crown has established beyond reasonable doubt that the accused committed those crimes in the manner alleged. The question of identification was raised by Mr Pouono and he queried whether there was sufficient light in the cell. No authorities were cited by either counsel but applying the well-known guidelines in R v Turnbull [1977] QB 224, I have no doubt that the complainant correctly identified the accused as the person who entered her cell. Her evidence in this regard was corroborated by Constable Lelea who told the court that the accused had told him that he was going into the cells to take some food to the complainant and then whilst Constable Lelea was talking on the telephone, he heard the cell door open. This was despite other evidence that police rules allowed only female officers to enter the cells of female inmates and at the Mu'a Police Station inmates were not permitted to be fed in their cells but they were to be taken to a separate dining area.

[32] Defence counsel's strongest submission was his attack on the inconsistencies in the Crown case between the evidence given by the complainant on the one hand and the three police officers on the other. The prosecutor freely acknowledged the conflicts in his case. Once again, however, no authorities were cited in relation to the submission. If a submission is being put forward on the law it is important that counsel should at the same time explain, from his perspective, the legal implications of the submission in relation to the facts of the case before the court, supported by reference to appropriate authorities.

[33] Speaking generally, the position in the Kingdom is that although the Crown may not be bound by the strict disclosure requirements which these days are a pivotal part of the prosecution process in other jurisdictions, there is still an obligation upon a prosecutor in the exercise of his discretion to call or tender evidence to act in the interests of justice so as to promote a fair trial.

[34] Historically, in England the prosecution had a duty (under a now repealed section of the Indictments Act 1915) to call all witnesses whose names "are on the back of the indictment". In this regard, the Court of criminal appeal stated in R v Oliva (1969) 49 Cr App R 156: "The prosecution did not, of course, put forward every witness as a witness of truth, but where the witness's evidence is capable of belief then it is their duty, well recognised, that he should be called, even though the evidence that he is going to give is inconsistent with the case sought to be proved."

[35] The most recent authoritative statement summarising the extent of the duty was stated by the (UK) Privy Council in Grant v The Queen [2006] UKPC 2 in these terms:

"25. The extent of the duty on the prosecutor to call witnesses named on the back of an indictment was fully reviewed in R v Russell-Jones [1995] 3 All ER 239. The principles there summarised were not criticised in argument, and provide authoritative guidance. That summary need not be repeated. Plainly the prosecutor has a discretion. It is a discretion to be exercised by the prosecutor acting as a minister of justice, in the interests of fairness. Thus the prosecutor need not call witnesses who are incapable of belief, or whose evidence is pure repetition (R v Haringey Justices, Ex p Director of Public Prosecutions [1996] QB 351, 356), or whose evidence is not material (R v Harris [1927] 2 KB 587, 590 and Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279, 307-308). The general rule, however, was that stated in R v Russell-Jones [1995] 3 All ER 239, 245:

"The next principle is that the prosecution ought normally to call or offer to call all the witnesses who give direct evidence of the primary facts of the case, unless for good reason, in any instance, the prosecutor regards the witness's evidence as unworthy of belief. In most cases the jury should have available all of that evidence as to what actually happened, which the prosecution, when serving statements, considered to be material, even if there are inconsistencies between one witness and another. The defence cannot always be expected to call for themselves witnesses of the primary facts whom the prosecution has discarded. For example, the evidence they may give, albeit at variance with the other evidence called by the Crown, may well be detrimental to the defence case. If what a witness of the primary facts has to say is properly regarded by the prosecution as being incapable of belief, or as some of the authorities say "incredible", and his evidence cannot help the jury assess the overall picture of the crucial offence; hence, it is not unfair that he should not be called."

[36] It is not the position that the prosecution are under an affirmative duty to call all witnesses that may give relevant evidence other than those whom the prosecution have relied upon to secure an indictment, for example, at a preliminary hearing or as it appears following Grant, those who it has stated an intention to call where the failure to call surprises the defence at trial - see R v Nugent [1977] Crim LR 375; R v Oliva (supra); Seneviratne v R [1936] 3 All ER 36, 48 (PC). However a failure to disclose the identity of any potentially helpful witnesses/statements to the defence could result in an unfair trial. In England and various other jurisdictions this obligation is now circumscribed by statute but it was also recognised at common law - see Dallison v Caffery [1965] 1 QB 348. The Crown may also call a witness on the basis that it regards the person as a witness of truth in relation to some but not all of his evidence, and to do so is not an improper exercise of the Crown's discretion - R v Cairns [2002] EWCA 2838.

[37] From the foregoing it can be seen that if, as in the present case, the Crown, as part of its obligation to call all relevant witnesses, happened to call one or more unfavourable witnesses, that does not mean that the point at issue is to be concluded against the prosecution. It is still up to the judge or jury to decide which of the conflicting witnesses they believe -- see also commentary on R v Brent [1973] Crim.L.R. 295.

Conclusions

[38] Apart from the issues of identification and conflicts in the Crown case, I have also carefully considered the factual submissions advanced by Mr Pouono but, with respect to counsel, I do not find any of them persuasive. I accept that there apparently was an earlier incident where the accused had made an unwelcome approach to the complainant and, on that occasion the complainant did not make an official complaint about his conduct. This matter was raised in cross examination of the complainant and in submissions defence counsel argued that it reinforced Constable Lelea's evidence that on the present occassion she had told Lelea that she did not wish to make a complaint. I reject that contention. Although the details relating to the incident were vague, I have no difficulty in accepting the complainant's version of events. On the issue of corroboration, there is no requirement that the evidence of the complainant in a rape case must be corroborated – see R v Fainga'anuku [2006] Tonga LR 271.

[39] As both counsel acknowledged, the real issue is one of credibility and in that regard, I prefer the complainant's evidence to that of the three police officers. The complainant impressed me as a convincing and truthful witness. She had obviously been placed under intense pressure to withdraw her complaint and it is testimony to her strength of character that, despite the ordeals she was subjected to, she has had the courage to see the matter pursued through to the end. In relation to the three police officers, I agree with Mr Sisifa's observation that in giving evidence they were clearly primarily concerned with protecting their own position and in distancing themselves from the crimes committed by their colleague and fellow officer - the accused.

[40] I am satisfied that the Crown has established all the essential elements of each charge against the accused beyond reasonable doubt and he is convicted accordingly.