R v Tanginoa [2022] TOSC 7; CR 202 of 2021 (4 March 2022)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NUKU’ALOFA REGISTRY

CR 2020 of 2021

BETWEEN : REX

- Prosecution

AND : SIOSIFA KOLOA TANGINOA

- Accused

BEFORE HON. JUSTICE NIU

Counsel : Ms. Lute Fakatou for the Crown

Mr. Siosifa Tu’utafaiva for the defence

Trial : 27, 28 and 31 January 2022

Submissions : 31 January 2022

Verdict : 4 March 2022

VERDICT

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.

[19] On 11 July 2021, the accused was charged with the offences in the Magistrate Court and he was committed to this Court by the Magistrate’s Court on 8 December 2021.

[20] On 11 January 2022, he pleaded not guilty to the 2 counts of his charges in his indictment in this Court and elected trial by judge alone.

Only issue of consent

[21] The only issue for determination in this trial is whether or not the complainant consented to what the accused did to her. If she did not consent, then the acts of the accused, namely the touching of the vagina and the putting of his penis between her buttocks, were both acts of serious indecent assault, and the accused is guilty of the two charges. But if she did consent, then those two acts were not assaults and the accused would not be guilty of the charges.

[22] The burden of proving the absence of consent is on the Crown, and it must prove it beyond reasonable doubt. The accused has no burden to prove that the complainant consented to what he did to her.

The mangele tree incident

[23] I will refer to the two incidents as the mangele tree incident and the mango tree incident. I will deal first with the mangele tree incident.

[24] Ms. Fakatou, counsel for the Crown, referred to the evidence of the complainant in which she said that she did not consent to the accused touching her vagina (whilst she had her tight pants on), and that she told her younger sister of it soon after she got to her, and that she told her mother of it the following day as well. She said that that proved that she did not consent to the act of the accused at all.

[25] Mr. Tu’utafaiva, for the accused, said that if the complainant did not consent to the act at the mangele tree, she would have complained and told her mother of it right away when they got to her home, whilst the accused went to feed the pigs, but she did not. He said that the complainant was not being truthful in her answer as to why she had not told her mother of it there and then, namely that she was afraid that her mother would beat her up. He pointed out that she did tell her mother of it the following day and her mother did not hit her at all, contrary to what she said she feared she would do, and that there was no evidence that her mother had hit her before for telling her of such thing.

[26] I have to consider this incident in light of the state of mind of the complainant as shown by the evidence as at the time of the act, and what the accused may reasonably perceive that state of mind to be. That is crucial. If the accused may have reasonably considered that the complainant consented to the act, then no assault was committed. And if the evidence does show there was consent, the result would be the same.

[27] In this incident, the complainant was wearing only a towel wrapped around her waist with the corner of the towel tugged in at the top to keep it on her. It was not the proper wear a young lady such as the complainant should wear outside her bedroom or even the house, let alone out on the road in the bush area where the mangele tree was. But she wore it and went out there with only the accused in the car. That was not a proper thing for her to do but she did it.

[28] Secondly, one always knows when such a wear (like a tupenu or towel wrapped around and tugged in at the top of the waist) is starting to come loose and would fall off. As soon as one feels that the tupenu or towel is beginning to come loose or about to fall off, he, or she, quickly grabs it and tugs it back tightly around his or her waist again.

[29] In this case, the complainant must have known that the towel she had around her waist was coming loose around her waist and she ought to have grabbed and tighten it again around her waist to prevent her exposing herself to the accused, or to anyone else, but she didn’t. She allowed the towel to fall off. She made no attempt to grab it. She allowed it to fall and lay at her feet so that she stood there with only her tight pants on for the accused to see.

[30] Thirdly, the proper thing to do if the towel was coming loose and was falling off, is for the person, especially a young woman such as the complainant, to hunch back her crotch and bend forward to hide her private area from the person or persons who may be present. But the complainant did not do any such thing.

[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.

[35] I am therefore left with very serious doubt that the complainant had not consented that the accused touch her vagina. I am therefore not satisfied beyond reasonable doubt that the accused touched the complainant’s vagina at the mangele tree without her consent.

The Mango tree incident

[36] Now, as for the mango tree incident, I find that the behavior of the complainant, as she herself has given in her evidence, is consistent with her behavior at the mangele tree incident as I have stated above.

[37] Not once did the complainant make any attempt to stop the accused from doing what she said he did to her. In particular, the complainant ought to have refused and protested to be pushed back to lay back onto the other rear seat or to have her legs parted so that the accused pushed his crotch on to her’s. Such acts violated her already. It was most improper for the accused to do that to her. But she did not protest, kick or struggle to stop the accused from doing that. She thereby conveyed consent to the accused to do it to her.

[38] And when the accused pulled her to stand up beside the car, turned her around to face her seat and then pulled down both her trouser shorts and tight shorts underneath, she made no protest or struggle or refuse to be so undressed. I would have thought that if she did not consent to be so undressed, she would have grabbed and have held on to both her trousers and have told the accused to stop it. But she did not.

[39] Instead, she stood there quietly and allowed the accused to pull down both her pants so that her crotch and private part and her buttocks were completely bare. To me, she thereby conveyed consent to the accused that he could put his penis in between her buttocks from behind, which the accused then proceeded to do.

[40] This is how the complainant described what happened in her evidence in chief:

“He moved up to me and pulled me out and I stood up. He turned me around so that I had my back to him. He then undid the valcrove on my trousers and pulled my trousers down. I had my tight on underneath and he pulled down my trousers together with the tight. I also had underpants underneath the tight and he pulled it down as well.

The accused had jeans and T-shirt on. He took his jeans off – no, he pulled them down. It was getting dark and I did not see if he had any underwear on. He then put his penis (fakatangata) between my buttocks. I was standing. He put his penis between my buttocks. His penis was hard.

He told me it was OK because I would do the same with my boyfriend. I did not say anything. I felt afraid. I did not think to call for help because there was no one nearby.

Then a vehicle light shone up from behind our vehicle. The accused said to put on my clothes and we’d go. We then got in – I got into my own seat at the rear and we went to his home. As we got into the vehicle to leave, he said not to tell anyone in case it caused a problem. I said nothing.”

[41] When she was cross-examined by Mr Tu’utafaiva, it was put to her and she agreed that the accused had pushed her back to lay back, that he laid her back on the seat. She also said that as she was lying back, he parted her legs and moved his front (crotch) up to her, then he pulled her out and turned her around with her back to him and pulled her clothes down to her feet and put his penis between her buttocks. She said that it was true that she had told the accused’s children that she had a boyfriend but that she said it quietly so that the others could not hear.

[42] She was asked if she told the accused to stop what he was doing to her, and she said that she told him to stop because she was sick but that the accused told her that it was alright because she would do the same thing with her boyfriend.

[43] I asked her myself what her sickness was and she said that she was having her menstruation, and that it only started that day and that she did not wear any pad that time because she had no pad to put on. She agreed that blood would have stained the towel and the car seat she was sitting on but the photograph of the seat did not show any stain on it at all.

[44] I asked her if she told the accused that she did not consent to what he was doing to her and she said that she did. I asked her when it was that she told him and she said that she told him that when he put his penis between her buttocks. She said it was the only time she told the accused to stop.

[45] I also asked her if she knew why or how a woman or girl would become pregnant, and she said that she did not know.

[46] Having considered all the evidence, and the answers of the complainant as I have outlined above, I do not believe the evidence of the complainant at all. I do not believe that at the age of 16 years and being in form 5 in college she does not know how or why a woman or girl becomes pregnant. Every mother explains to her daughter why she has the monthly menstruation and why she has to keep away from boys until she is married. And I do not believe and I do not accept the evidence of the mother, when I asked her, that she had never explained to the complainant how or why a woman becomes pregnant.

[47] The complainant admitted in her evidence when cross-examined by Mr. Tu’utafaiva, that her mother had always told her to stop having boyfriends and not to have boyfriends. In fact, she agreed that that was why she and her younger sister were sent to live with their aunt instead, namely, to stop having boyfriends and to concentrate on their studies instead.

[48] If she did not truly know how or why a woman becomes pregnant, why then did she think, and told her younger sister, that she suspected that she was pregnant after what the accused did to her that evening?

[49] I believe she knew very well how and why a woman becomes pregnant. She gave herself away when she answered, when questioned by Ms. Fakatou, whether the penis of the accused was soft or hard when it was put between her buttocks. Her answer, straight away, was “Hard”.

[50] Ms. Fakatou submitted that the evidence of the complainant should be believed because she immediately told her younger sister what the accused had done to her, that same evening, and that she also told her mother of it the very next day.

[51] I am afraid that that is not correct. The fact that a complainant makes an “early” or “fresh” complaint immediately or soon afterwards is not additional or independent evidence to corroborate the complaint and the story of the complainant.

[52] I am more inclined to believe that what happened at the mango tree was much more than what the complainant has told in her evidence. It was such that she honestly, and reasonably believed, that she was or that she could be pregnant as a result of what had transpired at the mango tree. That meant, to her, that her pregnancy would show in time, and that it was best that she told her sister, and then her mother about it right away.

[53] I have to say that it is startling, and quite remarkable, that no medical examination was ordered or required by the police to be carried out upon the complainant. As it has turned out, some 7 months after the incident, the complainant was not and is not pregnant as a result of what happened to her. But the medical report would have shown what in fact might truly have transpired at the mango tree.

[54] Ms. Fakatou also submitted that the evidence of the complainant should be believed because the accused himself had gone and cried and apologised to the complainant’s mother for what he had done to the complainant.

[55] The evidence about that was given first by the complainant. She said that she heard the accused crying and was apologising to her mother for what he had done to her (the complainant). The mother also gave evidence about it. She said that the accused was holding their young child up to her and said, “Have pity on this child. The cup which is spilt cannot be refilled with its water again,” and he then apologised and carried on speaking but there was not much else.

[56] Those apologies by the accused did not indicate in any way whether or not he had done what he did to the complainant without the consent of the complainant. The apology was equally consistent with him, the accused, having done what he did to the complainant, with the consent of the complainant, because he, the accused, had abused the trust which the mother and father had placed upon him. He had been entrusted to look after the 2 girls like he would look after his own daughters, and he breached that trust by doing what he did to the complainant, even with the consent of the complainant, because he should not have touched her at all like she said he did.

[57] I therefore do not consider that the apology of the accused admitted his guilt in any way in respect of these 2 charges.

Verdict

[58] Accordingly, and for the reasons which I have given, I have reasonable doubts that the complainant did not consent to the acts of the accused which are the subject of these two charges. I find that the Crown has not proved that the accused committed those acts on the complainant without her consent beyond reasonable doubt. The charges in counts 1 and 2 of the indictment are dismissed and the accused is discharged.

Nuku’alofa: 4 March 2022.

Niu J

J U D G E