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Court of Appeal of Tonga |
IN THE COURT OF APPEAL OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY
AC 3 of 2022
(CR 202 of 2021)
BETWEEN:
ATTORNEY GENERAL
Applicant/Appellant
-and-
SIOSIFA TANGINOA
Respondent
JUDGMENT OF THE COURT
Court: Whitten P
de Jersey J
Harrison J
Heath J
Counsel: Ms Sela Aleamotu’a for the Appellant
Mr Siosifa T. Tu’utafaiva for the Respondent
Hearing: 6 October 2022
Judgment: 10 October 2022
Facts
The charge
[1] The accused (Tanginoa) is charged with two counts of serious indecent assault, namely, that on 3 May 2021 at Ha’ateiho, he indecently assaulted the complainant, a female of 16 years of age, by
(a) touching her vagina, and by
(b) putting his penis between her buttocks,
without her consent, contrary to S.124 (1), (2) and (3) of the Criminal Offences Act.
The evidence
[2] Only the Crown gave evidence in this trial. The accused chose not to give evidence or to call any witness. He is not obliged to. But he is entitled to question and to test the credibility of the witnesses, including the complainant, by cross-examining them, which he did, via his counsel, Mr. Tu’utafaiva, during this trial.
[3] The complainant, female, is 16 years old and is the eldest of 5 children of their parents, who have their own home on the outskirt of Ha’ateiho. The father went to Australia, and was still there, for work purposes, and whilst there, he and the mother arranged with the father’s sister and her husband, who also live in Ha’ateiho, that the complainant and her next younger sister, who is 14 years old, go and live with them and their own children, who were younger than the complainant and her sister.
[4] The reason for that arrangement was so that the complainant and her younger sister would concentrate on their studies. The complainant was in form 5 and the younger sister was in form 3 in college. They moved to and lived with their aunt and her family as arranged, in about December 2020 and they were attending school whilst living there in 2021. The aunt’s husband is the accused in this trial.
[5] On 3 May 2021, a Monday, the complainant returned from school and went to a tax allotment where her mother and other children were collecting coconuts. She then returned home to her aunt’s, and the accused went in his station-wagon car and brought the coconuts collected by the mother in the car. The complainant helped unload the coconuts from the car, leaving 5 coconuts in the car, as instructed by the accused, to be taken to feed the pigs of the accused which were kept at the mother’s home.
[6] The complainant wanted to go with the accused so that she could get some things from the mother’s place for her home economics class at school the next day. The aunt told her that she could do that and for her to cut and bring some mangele bark from the tree along the way, so that it could be prepared as medicine for her, the aunt’s, young child.
[7] The accused was then only wearing a tight pair of shorts and a towel wrapped around her waist and a Tshirt as top. She took the machete and sat in the rear left seat of the car and they left, with the accused driving.
[8] There were 2 ways to get to the mother’s place where the pigs to be fed were kept; one way was shorter but the longer way had the mangele tree on the side of the road and it was situated in the bush area of Ha’ateiho. They took the longer way and when they got to the tree, the complainant got off with the machete and cut and peeled the bark off it. After a while, the accused got off and went to help the complainant by picking up the pieces of bark on the ground.
[9] Just then, according to the evidence of the complainant, the towel around her waist fell off, and the accused bent down to pick up a piece of bark lying on the ground near her feet but instead of picking the bark up, he had his thumb sticking up and he brought it up touching her vagina with it but on the outside of her tight short pants. She said that it was not accidental and that he did not apologise for it and that she did not say anything.
[10] They then collected the pieces of bark and they left and went to the mother’s home. On the way there, the accused told the complainant to put on trousers when they would get there in case her mother would be suspicious, and she did put on trouser shorts on top of her tight shorts when she got into her mother’s house. Whilst the accused was feeding the pigs, she also got her things for her class at school the next day. She and the accused then left, she sitting in the rear left seat again. It was dusk by then.
[11] But instead of taking the shorter way home to her aunt’s home, the accused took the same longer way where the mangele tree was instead and when they came to a big mango tree by the road where it was darker, the accused turned and stopped the car beside it on the left side of the road. He said that the car engine was heating up and that it needed water in the radiator.
[12] He then went around and opened the complainant’s door and pretended to look for something and pushed the complainant to lay back onto the other rear seat with her legs hanging out, and pushed his crotch onto her’s. He then pulled her out of the car by her hands and turned her around so that she was standing facing her seat whilst he pulled both her shorts and tight shorts down and took out his penis which was already hard and inserted it between her bare buttocks.
[13] But just then, another motor vehicle with its headlights on appeared from the end of the road to the rear of car. The accused said, “That’s enough. Let’s go”. They then dressed quickly and the accused went back and drove whilst the complainant was sitting in the rear left seat again. They left the mango tree before the other vehicle got up to them.
[14] As they were driving home, the accused told the complainant not to tell anyone what happened in case it would cause a problem.
[15] However, the complainant told her younger sister that same evening what had happened at the mangele tree and at the mango tree. She told her that she suspected that she was pregnant from what the accused had done to her, and she told her not to tell their mother or anyone what she had told her.
[16] The complainant herself however told her mother the next day, Tuesday, 4 May 2021. She went straight from school to her mother and told her what the accused had done to her at the mangele tree and at the mango tree. The mother then spoke by telephone straight away with the father in Australia and informed him of what the complainant had told her. The complainant did not go back to the aunt’s and accused’s home.
[17] The next day, 5 may 2021, the mother and the complainant went to the police and the complainant made her complaint against the accused. The younger sister also returned and lived with the mother that day.
[18] The next day, 6 May 2021, the accused and his wife (the aunt of the complainant) who was carrying their young child, came to the mother and the accused apologised to her for what he had done to the complainant and cried and asked her to forgive him. The mother told him that it was too late because the complainant had already lodged her complaint against him with the police the day before.
The Judge’s Finding on Count 1
“ I got off where he told me to and I went to get the bark and I felt that someone was behind me and when I stood up there to cut the bark I can feel someone was behind me and when I looked up it was [Mr Tanginoa]. When I was cutting the bark he was right behind me. I cut the bark and tried to move, as I move [Mr Tanginoa] also moved and I kept cutting the bark and moving and [Mr Tanginoa] was also moving. And, as we carried on like that, my towel fell off and when it did his finger swiftly touched my vagina”.
[31] It is therefore clear to me that she wanted the accused to see her in her tight pants, which tight pants revealed every curve of her hips and crotch. To me, that indicated her state of mind which she conveyed to the accused, and I am satisfied that she conveyed to him a willingness that he could admire her body, and even to touch her. And he did, and he did not apologise for it and she did not take offence or react in repulse at having being touched on her vagina.
[32] Furthermore, the proper and usual thing for the girl or woman who has been deliberately touched on her vagina is for her immediately to assert her anguish at having being so violated. I would have thought that the complainant would have immediately burst out to the accused, “Why did you do that?” or words to that effect, to indicate that she did not want to be so touched, and in order that some apology and respect is obtained from the accused. But she didn’t say anything at all. She in fact showed no indignation or anger or repulse at what the accused had done to her.
[33] Instead, she just bent down and picked up the towel and re-wrapped it around her waist and carried on picking up the pieces of mangele bark she had cut off from the tree as if nothing had happened and then they left and went to her mother’s place.
[34] That state of mind she had was confirmed by her action afterwards. Whilst travelling to her mother’s, the accused told her to put on some trousers when she would get there in case her mother would be suspicious, and she did just that. She had no thought whatsoever to tell her mother what the accused had done. She instead did what the accused told her to do instead
Analysis
17D Appeal after acquittals
(1) Where a person tried on indictment has been acquitted (whether in respect of the whole or part of the indictment) the Attorney General may, after the conclusion of the trial, submit for determination by the Court of Appeal any question of law arising at or in connection with the trial.
(2) The Attorney General shall submit with the question to be determined a statement of the circumstances out of which the question arose and thereafter shall furnish such further statement as the Court of Appeal may require.
(3) The Court of Appeal shall hear and determine any question submitted to it under this section.
(4) The Court of Appeal may determine a matter under this section in camera or in accordance with sections 24 and 15 of this Act.
(5) The determinations by the Court of Appeal of the question submitted shall not in any way affect or invalidate any verdict or decision given at the trial.
Determination
Whitten P
De Jersey J
Harrison J
Heath J
[1] Section 124 (1), (2) and (3) of the Criminal Offences Act
[2] Verdict delivered on 4 March 2022
[3] Section 17D of the Court of Appeal Act 1999
[4] At [22]
[5] At [27]
[6] At [28] & [29]
[7] At [30]
[8] Edwards v Bairstow [1955] UKHL 3; [1956] AC 14 ( HL)
[9] At paras [21] and [22]
[10] At para 4 above
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