R v AH [2022] TOSC 4; CR 136 of 2021 (14 January 2022)

There is a non reporting order in place; no detail may be published that would lead to the identification of any complainant in this case.

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

CR 136 of 2021

REX

-v-
A H

JUDGMENT

BEFORE : THE HONOURABLE COOPER J
Counsel : Ms. T. Kafa for the Prosecution
Mrs F. Vaihu for the Defendant
Date of Judgment : 14 January 2022

1. There is an order under section 119 that no detail may be published that would lead to the identification of the complaints in this case.
2. The trial commenced on 4^th January 2022. Before the Crown’s opening and following the Ground Rules Hearing in December, there was discussion regarding receiving the complainant’s, T’s evidence.
3. Appended to this Judgement is the note from the Ground Rules Hearing.
4. The two main departures from the directions therein are that the support person on the day of trial could not be T’s step-sister and there was a lady from Crown Law who sat in the video-link room with T. Defence took no objection to this.
5. The other departure from those directions was that the defence had failed to prepare their questions any further or with Tongan translation.
6. T was 7 years old at the time of trial and by consent gave his evidence by Live-Link from a remote location.
7. Before that happened it was agreed he could test the equipment and familiarise himself with it, with prosecuting Counsel. There was then an introduction by the Judge to the parties. This was so as to explain their roles. T was asked if he preferred wigs to be removed (he did not); who the Judge was, his role in ensuring fairness, that T was to be listened to.
8. There was an advocate for the Crown and the defence, they were introduced to him by name and following their questions his account would be assessed.
9. It was explained there are rules in court. He must tell the truth, he must say if he did not understand a question, he must say when he wanted a break. Prosecution Counsel had put in place a red card that T could hold up if and when he wanted a break.
10. He had also been provided with a front and rear gender-neutral body map.
11. He was then asked by myself if he understood the difference between the truth and a lie.
12. There was a demonstration for him to follow and comment on.
13. It involved Judge having a fan, asking Counsel for Crown to take it away when Judge’ was turned away and then opposing Counsel blamed for taking it. He was told by Crown Counsel that the other advocate had taken it and then asked by the Judge if that was true or a lie.
14. The first demonstration did not work as intended and he gave a contrary answer.
15. Rightly, the advocate for the defence, Mrs Vaihu, was not satisfied with that.
16. The error was discovered (that it had turned out that Counsel for the Crown had not actually removed the fan).
17. With the link muted it was then discussed amongst the parties how to make the demonstration an effective test. Then it was simply repeated.
18. When the demonstration went ahead, acted out correctly and T was asked if the deliberately wrong answer supplied to him was true he replied it was a lie.
19. T did not give sworn evidence. Section 116 of the Evidence Act was followed in this regard:

“Where in any proceeding against any person for any offence any child of tender years who is tendered as a witness does not in the opinion of the Court understand the nature of an oath, the evidence of such child may be received though not given upon oath, if in the opinion of the Court the child is possessed of sufficient intelligence to justify the reception of the evidence and understands the duty of speaking the truth. The evidence of such child though not on oath shall be taken down by the Magistrate’s clerk in the same manner as the evidence of any other witness:

Evidence must be corroborated.

Provided always that no person shall be convicted of any offence unless the evidence of any child admitted under this section and given on behalf of the prosecution, is corroborated by some other material evidence in support thereof implicating the accused.”

20. Once the introductions were complete the prosecution opened their case. This was done in Tongan and I follow the English text in the Opening Note that had been provided. Then the evidence was called.

T H

21. He confirmed his age and where he attended school and that he was now in Class 2. When asked he gave his mother’s full name and explained that the defendant, A, is not his biological father.
22. At first he stated that he could not remember what A had done.
23. The prosecutor sought to try and reassure T. She did this by stating that in court there was only herself, the Judge and Mrs Vaihu.
24. Plainly the defendant was also in court and listening to the evidence. This statement to the witness should not have been made. No witness should be misled like that. I formed the view it was a slip as opposed to anything malicious.
25. I immediately considered what should be done and whether the evidence was now so tainted that there needed to be a break, the position corrected or the trial aborted ?
26. Firstly there was no objection or point taken by the defence. Secondly it was not malicious. Next, I did not consider it appropriate to correct the position as that might cause disquiet with the witness and so I decided to let the evidence simply proceed and say nothing.
27. He was then asked what he had told his mother A had done ?
28. T was using the word “Pato” (“Duck”) for penis. Shortly in the evidence he confirmed this by using a pen to circle the body map^[1] at the area of the groin. I mention that now because as in answering that question, this is how he explained his answer:
29. “A showed me his pato and told me to kiss it.” This had happened in the bathroom; repeatedly. He had not kissed it because it was “disgusting”.
30. Straight after that answer T then used the red card to show he needed a break and so the proceedings adjourned for lunch.
31. After lunch the evidence continued where it had left off, his stating he could not now remember when this had happened. He stressed again, he had never kissed his step father’s pato.
32. This had happened many times and would happen whenever they were in the shower.
33. He forced him to kiss it and beat him to make him.
34. He was beaten on his backside.
35. Then once again he stated that after being beaten he still had not kissed it.

Cross examination

36. He confirmed that he did not live with his biological father, but with his mother and younger sister, A. His biological father, F, visited every day, he said.
37. He was then asked if he knew the difference between truth and a lie. He said he did. He knew of children who lied and adults too. He said he had not know his mother to lie.
38. He was asked to comment on A saying that he did not do what T had alleged.
39. T said that was a lie.
40. He then stated that A had beaten him. He demonstrated a downwards slap from the height of his head. And, he stated that he had been hit to his face.
41. Counsel then started to put to T that the answer about hitting his face was at odds with his evidence about being hit on the backside.
42. Bearing in mind the guidance at Tool Kit 6, “Planning to question a child or Young Person”, at pages 17 to 18 points 4.30 and 4.31 about the possibility of miscommunication, that confusion could easily arise at this point and the need for the court to be vigilant about inappropriate cross-examination. Also, point 5.12, at page 24 refers to taking care when questioning a child about whether they are confused as to a piece of evidence and that can have an adverse impact on concentration and accuracy; with all that in mind I stopped Counsel from asking that question.
43. The fact remained that any point about apparently inconsistent statements can be made in submissions, the witness did not need to comment on the suggestion.
44. He then stated that he had told his mother about this many times. He told his mother many times that A had beaten him.

Re-examination

45. There was none.
    

V H

46. She was now 39 years old and was married to A H. They had married in either 2000 or 2001 she said.
47. There were three children from the marriage, three daughters aged 20, 16 and 12 and she gave their names.
48. The eldest was now living in Dubai.
49. The other two lived with her and she has also two other, younger children, T and Ag.
50. She is no longer together with A.
51. They separated on 18^th November. Initially in her evidence she stated that was 2019 but later corrected that to 2020.
52. The morning of 18^th November 2020 she had awoken early. Her husband was sitting up on the double mattress they used for a bed in the living room. He was sat at the edge of the mattress. It was about 0400 hrs.
53. T slept on the sofa in that room and A slept between her mother and step-father.
54. She made reference to the photographic booklet, exhibit 2 page 4, photographs 7 and 8.
55. Initially she gave the wrong year for A date of birth but corrected that. It was 2^nd April 2019.
56. She asked him why he was up and Mr. H replied by saying “Can’t you see I have needs but you are sleeping.”
57. She was having her period and he knew this.
58. She understood him to mean he wanted to have sex.
59. Mrs. H went to the bathroom and came back shortly. The room was lit from lights on, outside the fale. One is at the corner of the house, the other outside the back door and that can be seen in photographs 10 et seq.
60. She returned to find A leant over A. She was facing up, his head about 20 cm above her. She asked what he was doing ?
61. A was still sleeping but her diaper was not arranged as it would normally be. It was down at her thigh.
62. The diaper was fastened with a sticky tab. When she lifted her daughter up, her diaper simply fell off.
63. She noticed that the skin around her daughter’s vagina was moist. It could not have been urine because this was above her vagina and if there was urine that would have been in the diaper too. She concluded that her daughter’s vagina had been licked.
64. Also, A was not on the same part of the bed she had been when Mrs. H left the room as on her return.
65. She grabbed her daughter and spoke to her husband, tears in her eyes and asked what he had done ?
66. He replied to her, saying that he was sorry and that temptation had got the better of him.
67. His admission confirmed her suspicions.
68. She told him to leave the house. He got up wearing only the boxer shorts he had on and left, but first telling her he was sorry for what happened; she said the exact words he used were “[V], really, really sorry for what I have done.”
69. She did not reply.
70. He asked her not to tell the children, because of the family.
71. He did not ask why she was telling him to leave.
72. He left. He did return to the house to live there again.
73. On the occasion he did return, he was drunk. It was not clear how long after 18^th November this was. He said he wanted to speak to his daughters.
74. She asked him what he wanted and he said he wanted to apologise for what he had done, that he loved her, wanted her back and wanted her body.
75. She told him he was drunk and needed to leave, that there was nothing he could say to apologise and she was going to bring the weight of the law upon him for what he had done.
76. He apologised for what he had done to Ag and admitted that he had licked her.
77. As the witness recounted this there were tears in her eyes.
78. After the incident with A she grew concerned that he may have done something to T.
79. She had in the past told T to bath with A. There had been a time before Ag was born when she and A had been separated for 7 or 8 months. Initially A had been taken for adoption from May to August of 2019.
80. It was during that time that T was having bath time with A.
81. She recalled that during those bath times T had called out that A had told him to kiss his pato.
82. When at the time she had challenged A about this he had said they were only playing.
83. Mrs. H explained that it was after the incident with A she sat down and thought about T and those bath times.
84. Then after the incident with A she questioned T about this.
85. Much evidence was then given of the conversation she had with T.
86. That conversation took place nearly 18 months after the incident complained of concerning T; count 3.
87. This piece of evidence regarding a conversation that happened any where between a year and 18 months after the incidents complained of I do not consider this to be sufficiently recent so as to fall into the category of “recent complaint” to thereby be an exception to the hearsay rule. The evidence of that conversation I therefore exclude.
88. On the occasion that A had turned up at her house drunk and asked her to have him back she asked him about T and whether what T had alleged, that he had instructed him to kiss his pato, was true ?
89. She was asked what her exact words to Mr. H were and she stated : “I asked A regarding the incidents, I asked and you referred to as just playing around is kiss your pato [and put your pato to his backside,]^[2] was that true ?”
90. Mrs H stated that A had not answered her one way or another, but had started to cry and had said sorry (fakamolemole atu).
91. She also stated that A was violent in the home and towards the children, especially T.

Cross-examination

92. She was questioned, extensively, if it was really true that the defendant had been violent and she said it was and that she had called the police twice.
93. She was then questioned extensively about whether she had affairs with other men while married and living with her husband. She denied this.
94. She explained how she had got back together with her husband just before the birth of A after a period of separation.
95. She was questioned at length about the night in November 2020 and repeated her evidence, clarifying that on that night not only had A been wearing diaper but trousers too and that both had been pulled down to the thigh.
96. Her witness statement was put to her and it was suggested there was a material difference between what was in her statement : “Sia what are you doing bending over like that” and her evidence “Sia, what had happened to the girl.”
97. She confirmed that she did surmise that he had licked her vagina from everything she witnessed. That when she picked her daughter up she had been asleep until then, but then woke up.
98. That when she confronted the defendant she did not swear or attack him but merely told him to leave, that she was angry (“loto mama hi”).
99. He left saying he would come back to get his clothes.
100. She denied that allegations of violence were a lie and explained that she had complained to the police about it. Those allegations were not untrue and that she had to get a Restraining Order against him.
101. The temporary and permanent Restraining Orders, dated 23^rd February 2021 and 10^th June 2021 respectively became exhibit 4.
102. She confirmed that her two eldest daughters left and went to live with their father.
103. She said there had never been a “fight” over smoking cigarettes, nor had she stopped him from smoking cigarettes.
104. At the time she had thought the shared bath time with T was a reasonable arrangement.
105. T would call out saying “ A is playing with my pato”. Mr. H would call out saying they were “...just playing.”
106. This had happened many times. She could not tell how many exactly.
107. “Pato” was a phrase that T had learnt from her.

Re-examination

108. Took matters no further forward.
109. The photographic album and plan of the fale (exhibit 3) were put into evidence by agreement between the parties.
110. That concluded the Crown’s case.
111. Counts 1 and 2 were dismissed and not guilty verdicts entered, there being no evidence to support those allegations. Count 3 was amended so as to read “during the year of 2019” rather than “between July to November”, the year also being amended from 2019 to 2020. There was no objection by the defence.

Defence Case

A H

112. He explained that it was in November 2020 that his wife had made him leave the home they had shared together.
113. This was because they had a disagreement. It was over his failure to give up smoking. He had taken a pledge (“Tukupa”) to stop smoking cigarettes and he had lapsed that day and she had thrown him out of the house because of that.
114. T had caught him smoking and had called out to his mother, that was how he got caught.
115. She told him that as a consequence their separation was now irrevocable.
116. That same night he got a bag and put his clothes in it and went to live with his brother in Ha’ateiho. He thought this had happened at about 2000 hrs. His two eldest daughters came with him that night.
117. He went on to allege that proceeding week he had caught a man called F sneaking about their home in the night.
118. He set out his allegations of infidelity against his wife.
119. He denied that anything had happened to A as alleged, always saying about the particulars of the allegations when they were put : “Nothing like that ever happened.”
120. He denied all the particulars of the allegation when asked.
121. He agreed that T and him had shared bath times but the allegations of indecency were also a lie.
122. He denied he had ever been violent in the family home to anyone. He stated that all these allegations were a lie and they had been made up to get him out of the family home and away from his children and so that his wife could have an affair with another man.
123. He counted T as a son and had loved him as his own child.
124. He stated that he knows his wife’s character well and knows when she is lying, just like she broke her marriage vows, he claimed. He went on that there were so many problems with his marriage but endured it for his children.
125. He said that he did not return after November 2020 because of the Restraining Order and it was a lie that he had returned drunk and attempted a reconciliation.

Cross-examination

126. He maintained that he was kicked out of his home for smoking a cigarette and stated that this was not an unreasonable reaction of his wife. Then stated that the transgression of smoking was only a minor problem.
127. Yet he conceded that it should only take a major problem to warrant the complete break down of their relationship and so his being expelled from that family home.
128. He denied the allegation concerning A.
129. At first he stated that morning he had no sexual desires. Then agreed that he had.
130. He denied the allegations about T.
131. He then stated that his wife had lied about so much in the past she was capable of lying about this too and she wanted to ruin his life.
132. The cross examination was completed.
133. I raised with the parties that in my view the offence, as alleged in count 3 had not been made out as T was clear and repeatedly had stated that he had not kissed Mr. H’s penis.
134. I asked the parties to make representations to me on whether it would be unfair to amend the allegation in count 3 to read “...you indecently assaulted T when you hit him and instructed him to kiss your penis.” If defence were given a chance to re-open their examination in chief to deal with this.
135. The defence agreed that in those circumstances there would be no unfairness.
136. I ordered that change to be made to the indictment.
137. The defence re-opened their examination in chief and that was specifically put and he denied it.

Re-examination

138. In answer to why he had not contested the allegations in the Restraining Order he relied on the affidavit he swore in response to the allegations in the Restraining Order.
139. Those are allegations of sexual assault against A, violence in the family home and drink and drug use.
140. There was therein no mention of smoking cigarettes.
141. The affidavit became exhibit 5.
142. The case for the defence closed and the evidence in the trial came to an end. Directions were then given for written submissions and a date for supplemental oral submissions.

Defence submissions

143. It was submitted that the allegations are “pure fabrication concocted by Mrs. H to get rid of her husband so she can continue in her de facto relationship...”
144. The submissions focus on count 4 first.
145. It is submitted the witness Miss H’s evidence is unreliable. Specifically that she got wrong the date of that alleged offence, changing it later from 2019 to 2020.
146. It was submitted there was no clear reason why she would remember so accurately the date of 18^th November.
147. Quite reasonably the point was made that she had not actually witnesses her husband lick the vagina of her daughter.
148. It was questioned whether the defendant, as a mater of logic, would wish to satisfy his desires for his wife by licking his step daughter’s vagina.
149. It was submitted there was no medical examination, nor was there a recent complaint.
150. That after cross examination the state of the evidence was this :
151. It was merely the diaper’s removal with the wetness over the vagina and the defendant’s apology that aroused Mrs. H’s suspicions.
152. There was a version in her statement at variance with her evidence as to the moment of discovering her husband’s alleged assault.
153. A point is made that Mrs. H did have another relationship during the time she and her husband were separated.
154. It is generally submitted that Mrs. H in allegedly catching her husband licking A vagina it would be unreasonable to believe this account unless there was also evidence that she had “raised hell” that very same night, immediately gone to the police and had her daughter medically examined.
155. There were, it was suggested, irreconcilable aspects of her evidence when, for example, Mrs. H stated her husband had beaten her children but she did nothing about this. That no adequate steps were taken in regard to the violence or alleged indecent assaults so as to undermine that witness’s credibility.
156. The focus of the submissions then returned to the suggestion that Mrs. H was carrying on an extra marital affair.
157. The point was made the defendant vehemently denied the allegations. He loved the children as his own and they called him “Daddy”.
158. He loved his wife and the break down in the relationship was due to smoking a cigarette.
159. Amongst the concluding submissions in respect of this count it is stated there is no corroboration and there has to be with an allegation of this type.
160. Turning to count 3.
161. The point is made that because the evidence was unsworn it must be corroborated.
162. There was a summary of T’s evidence in chief and cross-examination provided.
163. Regarding Mrs H’s evidence concerning these allegations the point was made that there was a discrepancy about the year and months of these allegations and the indictment had to be amended.
164. It is noted by the defence that Mrs H had, at the time, thought there was nothing sinister in Mr. H’s behaviour at bath time and indeed she had instructed the two to share baths.
165. The point is made that the Restraining Order relates only to Ag and not T.
166. In the concluding submissions the points made include that there was no contemporaneous complaint regarding T nor, indeed, were T’s accusations believed by his mother at the time. The later conversation with him was over 12 months later and can not be construed as recent complaint. There was no other corroborative evidence.
167. It was repeated that these allegations were pure fabrication.

The Crown Submissions

168. Count 3, T did make a contemporaneous complaint, albeit not believed by his mother at the time.
169. It can clearly be inferred the defendant did hit T.

Consideration

170. Dealing first with T’s evidence. He was clear and forthright. He knew the difference between the truth and a lie. He demonstrated that clearly in the pre-trial discussions.
171. When asked if he had kissed his step-father’s penis as he had been commanded to, his answer that he hadn’t, because “it was disgusting” rang true.
172. That he at one time said he was beaten on his backside and another to the head to try and force him to comply with that command I do not consider significant.
173. I find so that I am sure he was struck, and at least once to the buttocks during the relevant time. T’s recollection of it combined with demonstration makes me sure.
174. He was very clear that many times this had happened; the command that he should kiss his step-father’s penis.
175. So, that allows for both accounts to have been correct.
176. He remained consistent on the central issue.
177. If there was indeed any discrepancy, then it is in relation an issue tangential and to the point that it would not of itself, with out anything more, affect the substantial allegation.
178. I thought it telling that Mr. H alleged reasons for his wife concocting the allegations. But he did not ever state there was a reason why T would.
179. Mrs H’s evidence
180. Dealing with Mr. H’s allegation of concoction by his wife.
181. Firstly, he repeatedly claimed that she had done this to get him out of the family home.
182. But, that makes no sense, as the allegations to the police of sexual assault on his step-children came after he had already left the home.
183. She was then, from that time, free of him and able to conduct her life as she wished.
184. It therefore makes no sense at all that these allegations were what freed her of him to conduct her own, single life.
185. His attack on her and her character therefore appears to be just a desperate attempt to besmirch her.
186. His case was that on a night in November 2020 his wife kicked him out of the family home for smoking a cigarette.
187. I note that if the smoking of cigarettes was such a terrible transgression in their household and the subject of tukupa, it was never mentioned as behaviour the defendant must desist in the Restraining Order as granted.
188. Had smoking been such a terrible act and a red line the defendant must not cross, one would expect to see mention of it in the Restraining Order too.
189. That there is no such mention tends to undermine the credibility of the Mr. H in this claim.
190. But to address that claim realistically; it does not seem credible by any manner of means.
191. Relationships and marriages fail for all sorts of reasons. A single cigarette smoked that caused him to be thrown out of his home, without question, and never return after being then married for at least 18 years appears very much implausible.
192. Mr. H struggled with justifying that argument in cross examination.
193. The Restraining Order was applied for both as temporary and then permanent.
194. It was not argued against by the defendant at either hearing save to adjust the amount of maintenance paid, which was successful.
195. None of the allegations of abuse or violence were argued against in those hearings.
196. I have considered the evidence that he prepared and swore an affidavit to rebut those claims.
197. But the contents of the affidavit were never put into evidence at the hearing for the Restraining Order.
198. That makes the affidavit no more than a previous consistent statement and as such, inadmissible for the truth its contents. Those parts of the statement that are exculpatory are merely self-serving statements. Therefore following the rationale in R v Pearce 69 Cr. App. R 365 CA that evidence will be excluded; the defence can not rely on the affidavit.
199. I note this : why would anyone prepare a statement for legal proceedings and then not put it evidence before a court when facing allegations of sexual assault as against his young step daughter were they untrue ?
200. His not contesting the allegations in the Family Court tends to corroborate the allegation that he left on the night of November 18^th 2020 without asking why, when Mrs H kicked him out their home.
201. It is another example of his not questioning the central allegations when challenged and is therefore consistent with what Mrs. H has said about his conduct on night 18^th November 2020; leaving the family home without asking why he was to leave. The implication being because he knew why only too well; it was he had been caught, by his wife, indecently assaulting A.
202. Thereby supportive of the contention that he left that night without any question as to why he was being told to go because it was an acknowledgement of guilt.
203. As to the allegation that he returned, drunk, at some point after 18^th November, asking to be taken back by his wife, he merely denied it with out stating more; saying, as he repeatedly had, stating: “Nothing like that ever happened.”
204. Considering that answer as well as his denials hitherto, that became weak to the point that it was no more than a man unable to provide a cogent argument to deny what was being alleged.
205. As such, those hollow denials tended to further undermine his credibility.
206. As for the argument the conversation between Mrs. H and T was too long after the incident to become recent complaint evidence, I accept that, as discussed above.

Indecent Assault

207. Elements prosecution have to prove beyond a reasonable doubt are :
     1. The defendant;
     2. Assaulted the complainant in question;
     3. During the time in as set out;
     4. That assault was indecent, and
     5. The complainant was at the material time less than 12 years old.
208. What constitutes an indecent assault is not defined in the Criminal Offences Act wherein at section 124 it is an offence to commit an indecent assault against another, punishable by a term of imprisonment not exceeding 5 years, and at section 125, an offence with the higher sentencing tariff of 7 years, for an indecent assault committed against a child under 12 years old.
209. I have considered the case of R v Court; AC [1989] 37 HL. This provides both general guidance on the point and, when considering the dictum of Lord Keith who agreed with the Lord Griffiths and Lord Ackner in dismissing the appeal, specific assistance pertinent in this case; evidence of an indecent motive can form part of the surrounding evidence a court can consider in determining whether the act was indecent.
210. “Where a charge of indecent assault...was founded on a set of facts capable of being given an innocent as well as an indecent interpretation, it was necessary for the prosecution to prove not only that the accused intentionally assaulted the victim but that in doing so he intended to commit an assault which right minded persons would think was indecent; and that evidence as to the accused’s motive tending to explain the cause for his conduct was admissible to establish whether he intended to commit not only an assault but an indecent assault...”
211. At page 33, B Lord Keith stated this : “A wicked intention is an essential ingredient of the offence of indecent assault, as indeed it is of most crimes against the person....In a narrow range of cases, however, the circumstances may not point unequivocally to the requisite wicked intention. The delivery of chastisement to the buttocks of a child is capable of presenting a case of that nature, since such chastisement is not necessarily indicative of an intention to do something indecent. Where, however, there is direct evidence ... that it was the assailant’s intention to use the victim for the purpose of gratifying a peculiar sexual instinct, and that his action did in fact amount to a using of her for that purpose, such evidence can, in my opinion, properly be taken into account so as to resolve any ambiguity about the nature of the act.”
212. Of the general directions I remind myself of these points :
213. The defendant is innocent until proved otherwise.
214. The required standard is beyond a reasonable doubt.
215. There is no such thing as cross admissibility. The two counts stand to be considered quite separately.
216. Not every part of the evidence need be resolved, only enough so as to be able to say whether the prosecution have proved, separately, any allegation against the defendant to the required standard^[3].
217. Taking first the allegation in Count 3, as against T. That was beating him and instructing him to kiss the defendant’s penis.
218. Firstly, this was said to have happened when both were naked in the bathroom at bath time.
219. Secondly, the strike to him, whether to his head or his buttocks would amount to an assault.
220. Next, that strike was accompanied not only by words expressing a desire for an act to be completed, but by an instruction.
221. Therefore, this falls squarely within the definition of a motive for the assault; the reason for the assault was to facilitate the indecent act of having his penis kissed by his step son and the words used were an expression of his “wicked intention”.
222. The words used, as T alleged, are direct evidence that “... it was the assailant’s intention to use the victim for the purpose of gratifying a peculiar sexual instinct, and that his action did in fact amount to a using of [him] for that purpose...”
223. It therefore follows that the surrounding context of why T was assaulted will, if proved to the criminal standard, make that assault, the smacking of him, indecent.
224. The allegation in relation to A, count 4, the licking of the vagina of a step child of about 18 months old, if proved, is so plainly an indecent act, it requires no further analysis.
225. T’s evidence was clear and I accept what he told me.
226. Because his evidence was unsworn, there must, under section 116 of Evidence Act, be corroboration before the defendant could be convicted of that count.
227. The evidence of Mrs. H was that on the night that Mr. H returned to her house and tried to reconcile them, she had asked him about what T had said; that there had been demands for T to kiss his “pato” (penis) by Mr. H.
228. The evidence was when he was asked this, he said sorry and started to cry.
229. Section 20 of Evidence Act provides : “A confession is an admission made at any time by a person accused of an offence stating or suggesting that he committed the offence.”
230. The apology, accompanied by his reaction of crying on being challenged with the accusation is clearly capable of being an admission; suggesting that he committed the crime and as such can amount to a confession.
231. Mrs. H’s evidence was measured and given in a clear way.
232. The allegation that she had made it all up for the reason of getting rid of Mr. H was the only ground the defendant put forward as her motive to lie; that this confession did not happen.
233. The assertion by Mr. H was, as I have noted above, completely illogical and I reject it.
234. Her evidence I accept.
235. In relation to Count 4, the indecent assault of A. Mr. H’s assertion the relationship broke down that night over the smoking of a cigarette is untenable and I reject it.
236. I accept Mrs. H’s account of what she saw and witnessed and that when incensed at catching her husband doing what he did, she immediately expelled him from the house and he left without question.
237. That at the time he was caught and asked what he was doing he replied he was “...sorry and temptation got the better of [him].”
238. I accept that evidence.
239. Guided by section 20 Evidence Act I conclude that also was a confession. Though, I agree with the Crown’s submission; there is no need for her evidence to be corroborated in any event.
240. Therefore I find, so that I am sure, that Mr. H licked his young step daughter’s vagina on 18^th November 2020 and that he confessed to it when challenged by his wife.
241. I find, so that I am sure, that on at least one occasion in 2019, he struck his step son T while they were both naked at bath time ordering him to kiss his penis.
242. He also confessed to this.
243. Both children were, at the material time, under the age of 12 years old.
244. For the reasons set out above I conclude both acts as alleged; counts 3 and 4 were indecent acts.
245. Accordingly I find Mr. H guilty of both counts 3 and 4 of the indictment.
246. Because of the serious nature of these offences and what I conclude is a substantial risk of interference with the witnesses in the light of the convictions I remand Mr. H into custody.
247. A victim impact statement from Mrs. H is to be provided please no later than 27^th January 2022.
248. A pre sentence report is to be provided please. It is to include the defendant’s reaction to the victim impact statement.
249. By 1600 hrs 3^rd February 2022 in e and hard copy I direct the PSR to be served along with sentencing submissions.
250. Sentence will take place 10^th February 2022, 0900 hrs.
     

NUKU’ALOFA

14 January 2022

N. J. Cooper

J U D G E

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^[1] Exhibit 1.
^[2] This part of the question, in brackets, as expressed as a direct quotation, I disregard.
^[3] As per Crown Court Compendium, Part 1. Page 101; chapter 4-1 at point 2. https://www.judiciary.uk/publications/crown-court-compendium-published/