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R v Kilioni [2021] TOSC 62; CR 282 of 2021 (29 April 2021)

IN THE SUPREME COURT OF TONGA

CRIMINAL DIVISION

NUKU'ALOFA REGISTRY


CR 282 of 2021


REX

-v-

POASI KILIONI


REASONS FOR VERDICT


BEFORE: LORD CHIEF JUSTICE WHITTEN QC

Counsel: Ms ‘Aholeilei for the Prosecution

Mr Tu'utafaiva for the Accused

Date of trial: 6 to 8 April 2021

Submissions: Defence 27 April 2021, Prosecution 29 April 2021, oral submissions 29 April 2021

Verdict: 29 April 2021


  1. The identity of the complainants and their evidence taken in the proceedings shall not be published in the Kingdom in a written publication available to the public or be broadcast in the Kingdom.
  2. For the purposes of that order, and their anonymity, I refer to the Complainants herein simply by their first names.
  3. At the conclusion of oral submissions in this matter, I delivered summary reasons for verdict ex tempore. This is the transcript of those reasons, edited as to form. I have also included references to Counsel’s filed written submissions.
  4. The accused, Poasi Kilioni, stands charged with two counts, namely, that on or about 27 June 2020, at Havelu:
  5. The Crown called evidence from Siosifa Kaho, Luseane Mafi Helu, Tevita Latu, Sophia and her father, Jonathan. The accused also gave evidence. I found each of the Crown witnesses highly credible and reliable in their evidence, in particular, Siosifa, who was a 14-year old male student. He impressed me as quite a mature young man who gave consistent and clear evidence throughout and was unshaken in cross-examination. Luseane’s evidence was limited in terms of its forensic value on the real issue in dispute. Tevita Latu operated an arts program from his home in which the alleged offences occurred. Sophia gave evidence by video link from Vava’u. She was 8 years of age. She, too, was very impressive in her evidence. She was clear and consistent throughout and I found her evidence to be reliable despite her young age. Jonathan, her father, simply corroborated most of Sophia’s evidence in the sense of a fresh complaint when she was questioned by her father after concerns were raised following the arts program attendance on the day in question.
  6. The upshot of their combined evidence is that on the day in question, a Saturday, the two girls, Sophia and ‘Ana, who was 7 years of age, along with Siosifa were taken by Luseane to an art class conducted by Tevita Latu. The Accused was one of two volunteers who may be described as teachers aids and who assisted Tevita in running the program. There are around 30 students all together ranging in age from about 5 to 23.
  7. The three children referred to here were attending for the first time. They sat at a table with other young children. During the course of the hour or so that they were there participating in the art activities, the accused assigned himself to their table to assist the students.
  8. I am satisfied on the evidence of Siosifa, Luseane and Sophia, that the accused was affected by alcohol on the morning in question. Each of those Crown witnesses clearly described him smelling of alcohol and acting erratically. In particular, they referred to him swearing and shouting the words “suck” and “fuck”.
  9. There really was very little contest in the evidence about what the accused did that morning.
  10. In relation to count 1, I am satisfied beyond reasonable doubt that the accused touched Sophia on her shoulder, he touched her head and hair, and more relevantly to the count of indecent assault, that he kissed her three times on her forehead and head. The fact that Siosifa only saw one kiss does not detract from my impression of Sophia’s evidence where she was quite adamant about the number of times she was kissed.
  11. In relation to count 2, the accused patted her on the head and roughed up her haira little. Siosifa and Sophia gave evidence that ‘Ana looked shocked and sad afterwards.
  12. The accused’s evidence in relation to what I have just outlined differed not as to fact but only extent. I found generally that he tended to downplay, for example, the effects of his alcohol consumption the night before when he started drinking kava around 10pm. He drank through the night, and the next morning, he started drinking whiskey. He said he was not suffering any effects of the drinking when he attended the class at around 10am. Yet, the children gave evidence that they could smell alcohol on him. Also, Tevita Latu gave evidence that when he first saw the accused that morning coming to help at the program, he appeared drunk. He had to have a talk with the accused to make sure he was fit to participate and Tevita formed the view that he was. However, the Crown witnesses who then observed the accused’s behavior during the class clearly indicated that the accused was still affected by alcohol and behaving erratically.
  13. The accused’s evidence about his motivation for or purpose in touching the girls required scrutiny. In the broad, he said that he was trying to assuage the children’s concerns about time limits that had been set by Tevita for the drawing activity they were doing and to encourage them with their work which included tracing around their hands on paper and colouring in the outline. He was the timekeeper. He said he wanted to ensure that the children, particularly the younger ones, weren’t overly concerned about the time limits.
  14. The accused also said that not only did he kiss Sophia’s head but that he also kissed other young children at the table that he was monitoring. He said that there were more than 10 at his table but he could not remember how many others he kissed. As noted, the only material difference between the evidence of Sophia and the Accused was that the accused said he only kissed Sophia once on top of her head. I note from the Summary of Facts that when he was interviewed by police, the accused denied kissing her at all.
  15. On that basis, I formed the view, as noted, that the accused generally tried to downplay some of the more significant aspects of the Crown evidence against him to try and make his behavior look more innocent.
  16. In his written closing submissions, which were filed late, Mr Tu’utafaiva identified the real issue in relation to count 1 as whether the touching and the kissing of Sophia amounts to indecent assault of a child under the age of 12.
  17. Section 125(1) of the Criminal Offences Act provides that any person who shall commit an indecent assault on any child under the age of 12 years shall be liable on conviction thereof to imprisonment for any terms not exceeding 7 years. Subsection 2 provides there it shall be no defence to any prosecution for an indecent assault on a child under the age of 12 years to prove that he or she consented to the act of indecency.
  18. In R v Latuselu [2010] TOSC 1 at [24], Chief Justice Ford set out the following elements the Crown must prove beyond reasonable doubt in order to establish a charge of indecent assault:
  19. His Honour continued:
“[25] There is an important additional element which is applicable in cases where the actions that are alleged to have made up the indecent assault are equivocal. That situation was referred to in R v Filise [2001] Tonga LR 312, 315 where I pointed out that in most indecent assault cases the factual circumstances of the alleged assault are inherently indecent but that is not always the case and in situations where there is ambiguity it is necessary to then go on to consider the accused's motive or intent. The Crown must be able to establish that the accused knew that the action complained of was indecent and that he intended to do it. The assault is an indecent assault only if the offender has an indecent purpose and in the absence of such a purpose the only offence that has been committed is a common assault.”

  1. In Filise, His Honour drew upon principles enunciated by the House of Lords in R v Court (1989) 1 AC 28 and the English Court of Appeal Criminal Division in R v C [1992] Crim LR 642, summarized as:
"Indecent assault (meaning battery) is a single offence but since Court it has been established that it takes two forms. (i) Where the manner or circumstances of the assault are unambiguously indecent the assault is an indecent assault whether the offender has an indecent purpose or not, provided only that he is aware that the elements of indecency exist, or may exist. (ii) Where the manner or circumstances of an assault are ambiguous, the assault is an indecent assault only if the offender has an indecent purpose ... Where it is alleged that an ambiguous act is an indecent assault the prosecution must prove an indecent purpose. In the absence of that purpose the only offence that has been committed is a common assault."

  1. However, in its submissions, the Prosecution referred to a very recent decision of the U.K. Court of Criminal Appeal in the Attorney General's Reference (No 1 of 2020) [2020] EWCA Crim 1665 (10 December 2020) where it was held that: [2]
“... it is not necessary for the prosecution to prove, as an element of the offence of sexual assault, that the offender not only intentionally touched another person without their consent and without reasonable belief in their consent, and that the touching was sexual, but also that the offender additionally intended his touching of that person to be sexual.
Instead, under section 78(b)[3] the accused's purpose in relation to the activity may be relevant if a reasonable person would consider that, given the nature of the activity, it may be sexual and, because of the accused's purpose, it was sexual.”

  1. The Crown here contends that the references to ‘sexual’ in that passage may be transposed to the current case to mean ‘indecent’. After considering the submission, Mr Tu’utafaiva agreed that the appropriate test is an objective one, that is, whether the actions of the accused here can be regarded by a reasonable person as being indecent according to commonly accepted community standards.
  2. In considering the above summary of the evidence and submissions, I take into account:
  3. On that evidence, I am satisfied beyond reasonable doubt that the accused kissing Sophia on the forehead and head on three occasions (or even once) went beyond what may be regarded as generally accepted in the ordinary conduct of everyday life and beyond the bounds of decency even within a school environment in a relationship between a teacher or a teacher’s aide and a student.
  4. To the extent that it is necessary to determine the issue having regard to the statements of principle to which I have just referred, I am satisfied that there was an indecent purpose or indecent element to the accused’s conduct, which he knew, and which by any objective standard, would be regarded as indecent. The references to him saying that Sophia was beautiful, the evidence of him shouting out ‘fuck’ and ‘suck’ and other “f” words, according to Sophia, the fact that she was a complete stranger to him at the time and the effects of alcohol already already described all lead to an inference in my view that there was an indecent purpose in the touching and the kissing.
  5. I therefore accept the Crown’s submissions on this count, and I find beyond reasonable doubt the accused guilty on count 1: indecent assault of a child under the age of 12.
  6. In relation to count 2, the charge of common assault on ‘Ana, there is no issue on the facts as to what occurred. The only issue sought to be raised by the accused was the purpose of his touching Ana’s head and lightly roughing her hair.
  7. Both counsel identified the real issues on this count: whether there was consent or other lawful justification.
  8. Consent may be express or implied. ‘Ana was not called and there was therefore no evidence in relation to express consent. The only evidence was of her looking sad after the patting.
  9. Most of the physical contacts of ordinary life are not criminal because they are impliedly consented to by all who move in society and expose themselves to the risk of bodily contact, such as the jostling which is inevitable from presence in a supermarket, a bus station or a busy street; or having one's hand seized in friendship, or one's back slapped (within reason): Collins v Wilcock [1984] 3 All ER 374 at 378, per Robert Goff LJ.
  10. Although such cases are regarded as examples of implied consent, it is, however, more common nowadays to treat them as falling within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life: McMillan v Crown Prosecution Service [2008] EWHC 1457 (Admin).
  11. In the case of a child too young to give consent, the decision-maker is directed to consider whether the act constituting the assault went beyond what would be regarded as generally acceptable in the ordinary conduct of everyday life taking into account the relationship between the accused and the child: R v Gee [2016] 2 Qd R 602 per Lyons J; Cattanach v Harrison (2016) 307 FLR 188 where Walmsley AJ referred to the need for parents, guardians and teachers to have physical contact with children.
  12. Conduct occurring during the common intercourse of life may still constitute an assault if it goes beyond generally acceptable standards of behavior: e.g. McElholum v Hughes [2016] ACTCA 37. Whether physical contact goes beyond what is acceptable in the ordinary conduct of daily life is a question of fact: Mepstead v DPP [1996] Crim LR 111, DC. When an issue of consent to assault arises, it is for the tribunal of fact to decide whether the degree of violence exceeds that consented to: Zijlstra v Northern Territory of Australia [2011] NTSC 46 at [49].
  13. In my view, the level of physical contact, the subject of count 2, was within the acceptable common intercourse of life, specifically, in a school or educational environment as between a teacher and student. The idea that a teacher could not pat a student on his or her shoulder or back or pat a student on the head where a teacher is trying to encourage, comfort or even congratulate a student in some way without committing a criminal offence would, in my view, be unacceptable to the average right-minded person in the community. There are, of course, limits and caution must be exercised.
  14. For those reasons, I find the accused not guilty on count 2.
  15. In the result, the accused is convicted of count 1 and acquitted on count 2.



NUKU’ALOFA
M. H. Whitten QC
29 April 2021
LORD CHIEF JUSTICE

[1] The indictment initially specified “cheeks” but was amended during the trial without objection.

[2] [45] and [46]

[3] of the Sexual Offences Act UK

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