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R v W. L (a pseudonym) [2025] TOSC 53; CR 40 of 2025 (6 June 2025)

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

CR 40 of 2025

BETWEEN:
REX
-Prosecution

AND:
W. L (a pseudonym)
-Accused

JUDGEMENT

BEFORE: HON. LORD CHIEF JUSTICE BISHOP KC

Appearances: Mrs E Lui for the Crown Prosecution
Mr T Naufahu for the Defendant
Trial: 3 – 6 June 2025
Judgement: 6 June 2025

1. BACKGROUND

1. On 30 April 2025, the Defendant was arraigned and pleaded not guilty to the following charges
   1. Count 1: Rape, contrary to section 118(1)(a) of the Criminal Offences Act
   2. Count 2: Serious Indecent Assault, contrary to section 124(1), (3) and (5) of the Criminal Offences Act
2. The evidence in this trial concluded yesterday and I heard closing submissions for both parties today. I now proceed to Judgement.
   
   2. THE EVIDENCE
3. Both charges on the indictment are said to have taken place on the 6 October 2024. Many of the facts are not in dispute.
4. It is accepted that intercourse between the Defendant and the Complainant took place, but it is asserted that it was a consensual occurrence.
5. The Complainant is 19 years old and a member of a female rugby team. The Defendant is 21years old.
6. On 5 October 2024, there was a rugby match following which the teams including both the Complainant and the Defendant departed the rugby field and indulged in a bout of drinking at about 11pm at the home of the rugby coach.
7. The party was a mixed one of about six girls and some boys. The Complainant said that her presence was not welcome by some of the boys to whom she was distantly related but that eventually she was allowed to join the group.
8. The boys were drinking in the living room, and the complainant went into an adjoining bedroom to lie down. Exhibit 1, shows a small house with as far as I could see, a living room next to which was a bedroom.
   
   1. The Complainant’s Evidence
9. The complainant went into the bedroom to sleep. Eventually a close friend of hers came into the bedroom and told her to close the door which she did using a nail and went back to bed.
10. The next thing she remembers is that she felt someone touching her feet. She said she did not pay much attention because she thought it was one of the other girls.
11. She was sleeping sideways and felt her body being flipped over to face the other way, but she did not react because she was overcome with tiredness.
12. She says that she heard the Defendant’s voice but did not know it was him. He called her name, and she woke up. She then felt something being pushed into her vagina. She was unable to say whether this was a hand or a penis, but “it felt like he was ripping me apart.” She continued, “I tried to sit up, but he held me down.”
13. There is no dispute that the person involved is this Defendant. After holding the Complainant down, he covered her mouth with his open hand which caused a cut to her lip.
14. He remained on top of her having pulled down her tights and underwear after holding her down in this way.
15. The Complainant says that the Defendant went to the door to peer into the living room and when he returned, she had already put on her tights and underwear. He returned to the bed and continued to plead with her.
16. He used his left hand to pull down her tights and underwear with his right hand but with his left hand, he tried to spread her left leg.
17. The Complainant went on to say that she felt drained and tired and told him to stop but could not push him off. She felt his right hand go under her left leg and was inserted into her vagina.
18. She said, “I felt that he was trying to push his whole hand into my vagina”, I asked him to stop because it hurts but he did not. He kept saying “please stop being mean.”
19. She used both her hands to pull up her tights and he put his right hand in front of the tights while using his left hand to spread her left leg to make it easier she says to get into her vagina.
20. She was trying to close her legs at the time and tried to kick him. She tried to stand up and he stepped backwards. She got up and stood next to the bed, but she was unable to stand properly. She was shaking from her waist, so she tried to push him out the door, but he kept pleading, “don’t be mean.”
21. There were noises coming from the living room and the Defendant went outside to talk to whoever was making the noise. The Complainant used this opportunity to close the door but because of her shaking condition, was unable to do. Eventually the door closed with a loud bang and her friend came into the room and asked why the Defendant came out of the bedroom?
22. She was unable to respond and eventually one of her cousins took her home. She was asked further about what had happened in the bedroom and said that the Defendant was in front of her legs with his left hand being next to her head and copulated on top of her before inserting his penis from her vagina.
23. She was able to say that it was the penis that entered to her vagina because of the time both his hands were used to hold hers above her head. she also clarified that during the assault he placed his hand in front of her vagina and fondled her anus. That is Count two of the Indictment
24. She did not complain to the police until the following Thursday at the instigation of friends, at this stage she says the pain had become more severe.
25. The Complainant was asked a number of questions following the ground rules hearing, the purpose of which was to establish if the intercourse was consensual. This was denied by the Complainant.
26. She also denied that there was any sexual dimension between herself and her close female friend who came into the room at one stage and lay next to her on the bed.
    
    2. The Defendant’s Evidence
27. I have listened very carefully to the evidence given by the Defendant. In the main it followed very closely the answers he gave when he was interviewed under caution and I think I can properly summarise what he said.
28. After describing the events of the early evening, the after-match drinking at the rugby grounds which continued to the house of the coach he said;

“after about two minutes I then went into the room and when I entered the Complainant was lying on top of the bed wearing a bra and tights. And I entered she took off her bra was sucking her breasts. When I was sucking on her breast and she moaned and then I also took off her tights. And then I lay on top and continue to suck a breast then I took off my trousers. I was still continuing to suck her breast and her hand reached and caught hold of my penis and inserted it into her vagina. And I then rocked back and forth and was kissing her, and I told her to go on top and she stopped me. And she told me to get out and then I went out and into the toilet maybe around 10 minutes and then I walked back and entered the room and asked her “why is she like that” and she spoke to me in English, I could not hear her and she told me to go outside. And so I opened the door and went outside and met the Complainant’s alleged girlfriend at the door. And when I went out the Complainant slammed the door and so I walked and went back.”^[1]

29. In other words, the Defendant’s account is that he went into the bedroom without it seems prior invitation began to suck the complainant’s breasts whilst on top of her and she then guided his penis into her vagina and intercourse took place whilst he was kissing her.
30. The change occurred because he asked her to go on top, she responded by telling him to get out and that is what he did by going to the bathroom and when he returned about 10 minutes later, outside the door was the Complainant’s alleged girlfriend.
31. What I am asked to infer is that the reason for the change of attitude on the part of the Complainant is the presence of who it was suggested as the Complainant’s girlfriend. As a result of that, the Complainant was as it were covering her tracks and manufacturing a scenario that the encounter was non-consensual. His account was that the room itself was dark, the complainant was lying on the bed in just her bra and tights and then while he sucked her breast she was moaning.
32. Later in his interview. He stated that the sexual intercourse was fairly prolonged and that he thrust his penis into her vagina about 12 or 13 times, although that is simply an estimate. He denied that the Complainant told him at any time that what he was doing hurt her and indeed indicated that his penis entered her vagina easily and the inference being that no discomfort was likely.
33. During his interview the Defendant says that the Complainant spoke to him in English and that he did not understand but I note that in his interview he said;

“.....she came and pushed me and chased me and I remember that she told me in English/Palangi and she said “what the fuck are you doing bro?” and I went out from the room.”^[2]

34. I asked the Defendant how he could state what the Complainant had said in English because his evidence was that he did not understand that language. He says that that was the gist of what he understood her to have said I find that answer rather improbable.
35. In essence what the Defendant told me was that he was part of the after-match drinking at the rugby grounds and then at the hosts house where there was a mixed group of men and women. He had similar experiences after rugby matches in which the complainant and her friends were also there, but they were not particular friends or anything other than casual acquaintances.
36. He says that the drinking took place until the early hours. The Complainant went into the bedroom, and he followed sometime later without invitation or any preliminary discourse to find the Complainant on the bed either a sleep or snoozing clad in a pair of tights and a bra.
37. He removed her tights and bra without resistance began to suck her breasts, his penis was on her stomach outside her vagina, but she then guided his penis into her vagina and sexual intercourse took place.
38. Her attitude changed however when the Defendant asked her to get on top of him, he got up left the room when he returned the Complainant’s alleged girlfriend stood at the door of the bedroom and the inference is that her presence caused the Complainant to be hostile to the Defendant who was ordered out and shortly thereafter left.
    100. DISCUSSION
39. It now falls to me to appraise the conflicting evidence bearing in mind the criminal standard whereas the Prosecution must prove its case beyond a reasonable doubt.
40. In relation to the Complainant, I listened very carefully to the examination in chief and cross-examination. I remind myself that demeanour can be misleading and that a lying witness can often sound very convincing.
41. Nevertheless, with those in mind I am entirely satisfied so that I am sure that the Complainant gave a detailed and truthful account. This means that I accept that she made it very plain to the defendant that she did not wish to have sexual intercourse.
42. There is no suggestion of a prior affectionate relationship between them at all or that any preliminary overtures occurred. It is difficult to accept that without any prior invitation or resignation the Defendant could simply wake up the Complainant and have sexual intercourse with her.
43. There is evidence of a struggle according to the Complainant which I entirely accept, in addition where the Complainant on several occasions asked the Defendant to stop.
44. As for the Defendant, although he gave his evidence quite lucidly and with the appearance of sincerity, I felt unable to accept that he was telling the truth.
45. His explanation of being able to recite in his interview what the Complainant allegedly said in English which he did not understand, I found totally implausible but more over what drives me to reject his evidence is the unlikelihood of what he says happened.
46. He claims that what took place was without any prior discussion or invitation in a crowded house. He alleges he was able to enter a bedroom where the Complainant was conveniently lying half naked who allowed him to suck her breast and it seems that any prior conversation even to encourage him to have sexual intercourse with her by guiding his penis into her vagina only to be followed by an about-turn and a peremptory order to leave the bedroom, all because of the presence of the alleged girlfriend who it seems was not even present until 10 minutes or so later.
47. I therefore reject the evidence of the defendant and accept that of the complainant as in all material respect being honest and accurate.
    1. Consent
48. The issue in the case is therefore one of consent sexual intercourse being accepted on both sides. This is a criminal trial, and I must be satisfied so that I am sure putting it another way beyond reasonable doubt, and as I have mentioned earlier that the allegations made by the prosecution have been established to the criminal standard.
49. First, I must establish that there was sexual intercourse, there is no dispute there was. Next, I must establish whether that took place against the will of the Complainant.
50. Rape is established if a Defendant at the time of the intercourse knows that she does not consent or is reckless as to whether she does so or not she consents.
51. In deciding whether the Defendant believed that the woman was consenting I have to consider the presence or absence of reasonable belief for any such belief together with all other relevant factors.
52. I approach this matter step-by-step as follows:
    1. Was there sexual intercourse? The answer is yes; it is not disputed.
    2. Did the Complainant consent? I find that she did not for the reason I will elaborate on later.
    3. Did the Defendant know that she did not consent? Was he reckless about whether she consented? To assist in answering that question I must have regard to any reasonable the grounds for his belief or lack of it together with other irrelevant factors.
53. My finding is that the evidence of the Complainant was compelling. I accept the demeanour is a poor guide to truthfulness and that a convincing witness may still be lying.
54. Nevertheless, I find that the account given by the Complainant that without any previous preliminary overtures in a small house crowded with other others she would have consented to someone she knew but slightly walking into a bedroom without any introduction and taking off her bra and sucking her breast preparatory to sexual intercourse, which she facilitated by guiding his penis into her vagina, I find is highly improbable to the point of absurdity.
55. Further, if the Complainant did consent as alleged by the Defendant, there is no sensible explanation for this sudden change of attitude. It was suggested that the presence of the alleged “girlfriend” at the door when the Defendant returned from the bathroom might have been the reason for that.
56. First of all, according to the Defendant the hostility arose before the presence of the girlfriend occurred and secondly, the girlfriend did not appear at the door until after the defendant returned from the bathroom 10 minutes or so after he went there.
57. A discrete issue has risen during the course of Defence Counsel’s helpful closing submissions. It was drawn my attention so far as his material is as follows;

“No, I turned over and lay facing upwards and told her to go on top and then she told me to go out and when she spoke that it was like she was speaking to me angrily and I thought that she thought while we were penetrating/thrusting that I was one of the older males and then I spoke to her and she stood up and got angry with me and I stood up and went out and then I got back in a second time to the room...”^[3]

58. This raises the question of consent. If the Complainant was willing to have sexual intercourse with one of the “older males” and such intercourse commenced in the belief that the other party was a one of the “older males” but then when the Complainant realised who it was that she was having intercourse with, she withdrew her consent and a disagreement then ensued, does this amount to a Defence when no actual sexual intercourse occurred after this discovery?
59. It is to be noted that this aspect was not a prominent feature of the oral evidence but I must have regard to the realities of the situation which were that learned counsel who now appears for the Defendant did so initially simply out of a request by the court to assist in preparing the ground rules questions because the Defendant was unrepresented and to Counsel’s great credit decided to accept the invitation of the Defendant to act for him during rest of the proceedings. I say it once that he undertook this task manfully and with enthusiasm.
60. Nevertheless, although not a prominent feature of the evidence it does fall part of the Defendant’s statement and so I must consider it and I do so.
61. If I find that even if what the defendant says in his interview is correct, objectively the complainant did not consent to sex with this defendant. If I accept the answers given under caution that she was willing to do so with one of the “older males” and believed this is what was happening initially but changed her mind when she realised her mistake, was there consensual intercourse? In other words, does the consent need to be referrable to the other party having intercourse or with another of a particular characteristic.
62. To take an example if a woman is willing to have sexual intercourse with anybody from Fiji but nobody from Samoa, and a Samoan has intercourse with her she had she believing it was a Fijian and then realises her mistake, did she In fact consent to the sexual intercourse which took place?
63. In my judgement she did not, because a woman is entitled to decide who it is she is willing to have sexual intercourse with. It is not a general invitation to all comers or in this case to anyone in the party of the older generation.
64. There is some support for that view in the statute itself which by section 118 1(d) provides that a person commits rape if he does so by “impersonating her husband.” The law recognises that consent must be consent quoad i.e with the other person and no one else.
65. The question however arises is whether the Defendant knew that the Complainant did not consent to intercourse or whether he was reckless as to whether she consented or not and then deciding that question I have to have regard to the absence of presence of any reasonable grounds for such a belief together with all other matters.
66. My findings are as follows at the very least, I am satisfied that the defendant was reckless as to whether the complainant was willing to have sex with him.
67. There is nothing in the evidence which convinces me or gives me any cause of concern that this Complainant was prepared to have sex with all in sundry provided they were one of the “older males.” There is nothing in the evidence to suggest that she gave any indications in that regard.
68. I accept what she says that she went to lie down in the bedroom because she was tired and for no other purpose. Whether or not she had taken off her outer clothing I think is irrelevant. She could have done so to be more comfortable in bed rather than as suggested by the Defendant to have sexual intercourse with one of the “older males.”
69. At the very least I find that the Defendant was reckless as to whether the Complainant consented to have sexual intercourse with him. It follows that I do not accept that this the defence of consent succeeds here.
70. I accept that there is no medical evidence and remind myself that corroboration is no longer necessary and I also remind myself that the Complainant for what I find to be good reason did not make a complaint until the Thursday following the event which occurred early Sunday morning and that any sign of injury at that time may not have been apparent or as painful as it later became.
71. It follows, therefore that I am satisfied so that I am sure that the Complainant did not consent to sexual intercourse, the Defendant probably knew that she did not consent or the very least was indifferent to whether she consented or not and so was reckless and that in coming to that conclusion I found that there are no reasonable grounds supporting the Defendant’s assertion that he had such a belief.
    4. FINAL RESULT
72. I find him guilty of Count 1 of Rape, contrary to section 118(1)(a) of the Criminal Offences Act
73. As to Count 2 of Serious Indecent Assault, contrary to section 124(1), (3) and (5) of the Criminal Offences Act, in relation to the fondling of the vagina is concerned, I consider that to be such an integral part of Count 1 as to not require separate consideration. As to the fondling of the anus, the evidence there was rather nebulous and imprecise and I am not satisfied to the criminal standard that, this has been made out.
74. Accordingly, he is acquitted of Count 2.
75. I further order that nothing which leads to the identity of the complainant be published and any report of these proceedings must anonymise all parties so that the identity of the complainant is protected pursuant to section 119 of the Criminal Offences Act.
    

^[1] Defendant’s Record of Interview dated 16 October 2024, Answer to Question 55.
^[2] Above n 1, Answer to Question 96.
^[3] Above n 2.