Rex v Kaloni [2001] TOSC 37; CR 100 2001 (1 October 2001)

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

CR.100/2001

BETWEEN:

REX
Prosecution

AND:

KITEKEI'AHO KALONI
Accused

BEFORE THE HON. CHIEF JUSTICE WARD

Counsel: Mr Kefu for prosecution
Accused in person

Date of Hearing: 20 and 27 September 2001.
Date of Judgment: 1 October 2001.

JUDGMENT

The accused is charged with two counts of indecent assault contrary to section 125(1) of the Criminal Offences Act. The alleged victims are sisters, Faye, known also as Luse, and Meleane. The first was 9 years old at the time and her sister was 7. I have directed that there shall be no press reports of these proceedings that will in any way identify the two girls and I conducted the proceedings in camera.

The offences occurred in 2000 but the actual dates are not clear. The accused lived next door to the girls' family and had done so for some years. Faye told how she was called by the accused one day at lunch time. She was on her way to school and wearing her school uniform. He offered to give her money and food and she went into his house. Once there he took off her clothes told her to lie down and commenced to lick her vagina. He did this for some time and then told her to put on her clothes and go to school. The girl said that he did this on a number of occasions. He always offered her money and food but only ever gave her food. She told the court she was told by him not to tell anybody and she was clearly willing to go along with that request.

Her younger sister was also called to the house by the accused in the same way. There was an offer of money and food and, when she went into the house, her clothes were removed, she lay down and the accused licked her vagina. At the end she was told to go to school.

On a later occasion, she was asleep at home and was called by the accused from outside her house. He first asked for the use of her father's spade but, shortly afterwards, returned, called her to the window and touched her vagina through her pants by putting his arm through the louvres.

On that occasion, her mother had gone to church but her father was still in the house and he heard the accused call Meleane over to come and get $2. The father came out in time to see the accused touching his daughter's vagina. The accused apologised and acknowledged that what he had done was wrong. Later the girl's mother went to his house and took a stick to him.

It was after this that the older girl also told her parents what had happened to her.

The accused was seen by the police and interviewed. He represented himself in court and, in cross-examination suggested that the officer had threatened to put him in a cell if he did not sign the interview. When the officer denied this in the witness box, he was accused of lying.

As the accused was unrepresented, I did not, at that stage consider it appropriate to hold a trial on the voir dire. However, as the suggestions of threats could affect the admissibility of the interviews, I have considered the evidence from that point first before looking at the content of the interviews. I am satisfied beyond any doubt that the officer was truthful and I accept no threats or any other inducement were used to persuade the accused to give his answers.

In those interviews, the accused confesses to licking the girls' vaginas.

The accused elected not to give evidence but he did wish to call his children as witnesses for the defence. I adjourned to allow him to call them and ordered that he should have any subpoenas he needed.

At the adjourned hearing, he called his 12 year old son who told the court that he lived at home with his father and that he had never seen the girls there. I accept he was a generally truthful witness. In cross-examination he agreed that he did not live there all the time and frequently stayed in other houses.

The accused indicated that he wished to call two other children to similar effect but they had not come to court. He sought a further adjournment and I refused.

Neither of the girls gave evidence on oath. I warn myself of the dangers of such evidence especially in cases of alleged sexual interference with small children. I found both girls were credible witnesses but I should not accept their evidence unless it is corroborated. I find ample corroboration in the evidence of the father when he saw the last incident and heard the accused agree that what he had done was wrong and in the answers the accused gave to the police.

I accept the accused's son is generally honest but his evidence did not and cannot cover all the time the accused was at home. In fact his evidence was that he was not at the house anything like all the time. It would not be difficult for the accused to choose a moment when the house was, and would continue to be, empty.

I am satisfied beyond any doubt that the accused did entice the two girls into his home and there lick their vaginas. Those were indecent assaults and he is convicted on both counts.

NUKU'ALOFA: 1^st October, 2001.

CHIEF JUSTICE