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R v Palota [2003] TVHC 3; Case No 237 of 2002 (14 April 2003)

IN THE HIGH COURT OF TUVALU
CRIMINAL JURISDICTION

CASE NO: 237/02

R

-V-

UIKI PALOTA

Hearing: 12 April 2003
Judgment: 14 April 2003

Afele Kitiona for prosecution
James Duckworth for accused

JUDGMENT

The accused is charged with rape, contrary to section 128 of the Penal Code and assault causing actual bodily harm, contrary to section 238 of the same statute.

The alleged victim in both charges is Lagimaina Sakulaa, known as Lagi, and both charges relate to the same incident on 3 August 2001, at which time Lagi was 16 years old.

Many of the background facts are not in dispute. The defence is that the complainant consented or, if she did not, that the accused believed she had consented. Where there is dispute on fact apart from the actual circumstances of the rape, it relates principally to intention and motive.

The accused, Uiki, is a 44 year old seaman who is married to the complainant's older sister and by whom he has three children. It appears that they were all were living in the same house in Vaitupu with the complainant's mother and other relatives but Uiki, as a result of his occupation, was only there when back from sea.

On the morning of 3 August 2001, the accused and another man, Itaia, were at the house drinking whisky mixed with soft drinks. It is undisputed that Lagi drank two cups of the mixed drink despite her young age. She told the court she was offered them by the accused. He agreed she had them but said she effectively begged them from him. Lagi also told the court that she later had one more with Itaia.

After the second cup or while still drinking it, the complainant went into the room and lay on her bed. The accused says he told her to lie down. Whatever the reason, there is no doubt that while she was lying there, Uiki went and stood in the door to the room talking to her. He asked her about her boyfriends and she told him their names. He left when his daughter told his wife that he was talking to Lagi in her room.

At about that time the complainant was told to go and fetch a lady from another house which she did using the accused's motorcycle. Once she had done so, she rode to an adjacent village, Tumaseu, to visit a friend Lusii. They met at the house of one Pulotu and sat talking.

After a short time the accused turned up on a borrowed motorbike. There was a conversation and the accused and the complainant went off together on their respective motorcycles along the road towards the bush. It was there the offences are alleged to have occurred.

The descriptions given by the two principal witnesses of how they went off together differ. It is relevant to a consideration of the motives of the each of them.

Lagi said that the accused invited her to go with him on a ride and she agreed. In cross examination she accepted that it was inappropriate behaviour to go off in that way but she told the court that she never expected Uiki was capable of such a thing and when she went on the ride she was not aware it might happen.

The accused said that he went looking for Lagi because she was on his motorcycle and he was worried because she had been drinking and had no licence - a point disputed by Lagi. He said that, once he had found them, he noticed that one of the side lights on his cycle had been smashed. As it had not been done before, he assumed she had been in an accident. He said he noticed that her face was puffy but noticed no bruises.

He said he asked for his cycle but Lagi insisted she would ride with him and, even when he pointed out that he was going towards the bush, she still insisted she would go with him for the ride.

They rode off together and the complainant's account is that, after a short while, Uiki told her to take a side road but she did not agree. However, when he told her to stop, she did so and he drove his motorcycle so it was alongside hers. He then got off his motorcycle and came to the complainant asking her why she did not like him. He then suggested they should have sexual intercourse. When Lagi did not agree, he pushed her from her motorcycle and she fell to the ground. She had not put the stand on the cycle and so it fell also.

While Lagi was on the ground, the accused punched her eyes and, at the same time, had a grip on her neck. He said that if she made any noise, he would kill her. He then pulled her by the hand into the bush about 60 metres to where it was quite dense. She was crying but did not try and escape. When he had sexual intercourse, she only resisted to the extent that she tried to turn away.

Once there, the accused pushed her to the ground again and removed her shorts and pants. She had been wearing a sulu but it had fallen when she was pulled from the cycle. Uiki licked her, masturbated himself and told her to do the same to him. He removed her bra and handled her breasts and then attempted to have sexual intercourse but was unsuccessful because he was not erect. He again masturbated and then successfully had intercourse.

The accused then told her to stand up and put on her shorts. She did so and started to walk towards the road at which he told her not to tell any members of the family. He was still telling her when she got on her motorcycle and rode off.

The accused's version of events bore some similarities in the sequence of events but differed totally in the matter of consent. He told the court that he had neither intention nor thought of intercourse until the girl insisted on accompanying him. He did then think she might be hoping for sex but he did not have any such expectation or inclination.

He agreed he told her to stop on the road and did so because he wanted to ask her why she did not like him. However, at that point he felt she was trying to lead him on and for the first time felt some sexual arousal. He pulled her from her motorcycle which fell to the ground and said, "Follow me." He explained that he really only pulled her hands from the handlebars at which Lagi said "We should not be doing this because of my sister."

However, she went a few metres into the bush and sat down. He sat beside her and put his hand into her pants and fingered her vagina. He noticed she was not a virgin and told her so. After he had masturbated her for some time, she told him she wanted to go further into the bush and they did so. Once there, she lay down and he lay by her. He agrees he had no erection and asked her to masturbate him after which they had sexual intercourse. She was willing and, indeed, asked him to do it again.

He said that, afterwards, she suggested they should ride home in opposite directions so no one would be suspicious.

The subsequent events are not in dispute. As Lagi was about to ride off Itaia came along the road on a motorcycle. He had been looking for her.

The complainant's mother told the court how she heard that Lagi was riding with Uiki and went to the police and asked them to look for her. It was then that Itaia also went off to do the same.

He told Lagi to stop but she did not and so Itaia went along the road and asked Uiki what he was doing and where had he been but received the answer, "Nothing".

Itaia told how he noticed that Lagi was holding her hand to her face and it appeared to him that she was trying to hide the left side of her face.

Lagi then passed two police officers who were also looking for her. They told her to stop but she did not until they turned around and put on the horn. One of the officers noticed she had bruises on her face, her hair was disarranged and she had dirt on her clothes. He asked what had happened and she did not reply but he then rode with her on her cycle and while driving asked her if Uiki had raped her. She nodded and then, when he asked again, she answered sharply, "Yes".

It is only necessary to mention three of the subsequent events. First is the fact that Lagi was taken home and her mother greeted her by grabbing her by the hair and beating her with her fists on her shoulders.

Second, she was examined at about 7.00pm by a nurse who said she still smelled of liquor. She recorded that the girl had bruises on her face and that her left eye and upper lip were swollen. She noted that there were scratch marks on her neck which she said ran along the length of her neck.
Third, the accused who had been taken into custody by the second of the officers who saw them on the road, was only asked to make a statement some ten days later in which he set out his account of the events of that day. It is mostly consistent with the account he gave in the witness box. He described how, at Tumaseu, he told her, "Come with me and have a ride to the end of the island." He continued:

"During the ride I never talked to her until I stopped her and I asked her if we could have sex that time but she said, "Wait until dark". I forced her hand into the bush and so I have sex with her. Then I told her that she has previously had sexual intercourse with someone and she admitted that she used to have sex with [one of her boyfriends]. On that time we only had sex once then she (Lagi) told me to go to the village on the other way and she would come to the village on the road near the lagoon side."

I remind myself that the burden of proving the offence is on the prosecution and remains on the prosecution throughout. In this case, where the defence is consent, the prosecution must prove beyond reasonable doubt that the complainant did not consent and also that the accused did not believe she was consenting.

As in all allegations of a sexual nature, the court should look for some evidence which corroborates the allegation of the complainant. In a case such as this where the sexual intercourse is not denied and the only issue is consent, the evidence of the injuries being seen immediately after the intercourse by the officer and the manner in which the cycles were left are both capable of being corroborative of lack of consent. However, the court must first decide whether the complainant is credible before it looks for corroboration.

The accused's case is that this girl was clearly affected by alcohol and was hoping for sex with him from an early stage in the events we have heard. He told the court that his intentions were honourable up to the moment they stopped at the side of the road. At that point, although he admits she appeared to be offering some resistance, he was sure it was more a way of teasing him. When he had sex with her he was sure she was a willing and even enthusiastic partner.

I found the complainant a credible witness. I am satisfied beyond any doubt that she did not consent. I did not believe the accused's denial of any ulterior motive. His conduct from the time he followed her to her room and started asking about her boyfriends suggests he was starting to prepare the ground for such an approach. He agreed it was not proper conduct to go riding with Lagi on the road into the bush. He also told the court that he suspected that, when Lagi agreed to ride with him, she was hoping to have sex with him but he did not want to. As a much older man married to the 16 year old girl's sister, it is not believable that, in those circumstances, he would still have offered to take her on the ride if he was not intending to have sex. When asked why he did so in those circumstances, he replied that he was intending to have a ride on that road.

Even more remarkable is the fact that, in those circumstances, he would call her to stop as he agreed he did. He said it was to ask her why she did not like him. If his account is correct it was a very unfortunate time to choose to ask a question he could have asked later and in less compromising circumstances. I accept he did ask her but I am satisfied it was a ploy to provide an opportunity to suggest sexual intercourse.

The evidence that the girl was pushed off her bicycle and forced into the bush was supported by the evidence of a witness who passed by whilst the two were in the bush. He noticed the two cycles had been left lying in the road. As they were obstructing the road to some extent, he put them on their stands at the side of the road. Had the events occurred as the accused described, I have no doubt they would have realised that they would be likely to attract attention by leaving two cycles in that way. The fact they were not left otherwise suggests that the accused could not leave the girl long enough to put them up. The same witness noticed Lagi's sulu on the ground and took it with him. Again, if the girl was consenting, she would have taken her sulu with her. I also take that evidence in support of her account of losing her sulu when she was pushed from her bicycle.

The witness was asked by defence counsel whether he noticed any disturbance in the sand of the road to support the complainant's account of being pushed from her motorcycle. He had not but I do not attach much weight to that. I am satisfied that, unless there was something to put him on warning, a person in that position would be unlikely to notice the disturbance that would have been caused by simply pushing someone off a motorcycle.

The defence suggests that the bruises to the complainant's face were caused by the suggested accident which the accused said had broken the light on his motorcycle. The girl denied there had been any accident. However, the woman Lusii with whom Lagi was talking at Pulotu's house, gave evidence and said she had seen the bruises before the two rode off to the bush. I accept she was a truthful witness but I am satisfied she was mistaken in her evidence of this. The accused himself did not notice any bruises, only some puffiness. The account of Itaia that the complainant was trying to hide her face also suggests the injury was recent and they were clear enough for the police officer to notice them straight away. The position of the bruises combined with the scratches to her neck all point to an assault as she described in her evidence.

I am satisfied beyond reasonable doubt that the complainant did not consent to the sexual acts of the accused.

For the same reasons that satisfy me there was no consent, I am equally satisfied beyond reasonable doubt that the accused knew full well that this girl was not willing to have sexual intercourse. I have no doubt he was hoping she would be willing and he may have hoped that, even after her initial reluctance, she would agree but I am satisfied he realised she did not consent and continued regardless. His suggestion that he went on this ride with no improper intention at all and was only led into it at late stage by the willingness of the 16 year old girl does not accord with the evidence as a whole. I am sure he hoped and intended that Lagi, with the alcohol she had taken, would be persuaded and that was his intention. However, once she refused, he went ahead regardless and knowingly. He is convicted on count one.

I am also satisfied that the account given by the complainant that he hit her in the face and grabbed her by the neck to obtain her compliance was true. The injuries amounted to actual bodily harm and he is convicted on count two.

DATED this 14^th day of April 2003.

CHIEF JUSTICE