R v Fifita [2023] TOSC 19; CR 170 of 2019 (23 March 2023)

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

CR 170 of 2019

REX
-v-
KE’ALOHA FIFITA

REASONS FOR VERDICT

BEFORE: LORD CHIEF JUSTICE WHITTEN KC
Appearances: Mrs T. Vainikolo for the Prosecution
Accused in person
Trial: 20 to 23 March 2023

Verdict: 23 March 2023

Introduction

1. By indictment dated 22 October 2019, the Accused was charged with four counts of serious indecent assault contrary to s 124 of the Criminal Offences Act.
2. At the conclusion of the trial in this proceeding, I gave an ex tempore verdict. These are the reasons for that verdict taken from the transcript of the proceedings, and edited only as to form, not substance.

Delay in matter coming to trial

3. The events, the subject of the indictment, are alleged to have taken place in November 2018 and February 2019.
4. The Accused first appeared before this court on 8 October 2019. Cato J granted him bail on conditions which included that he was not to proceed beyond Tongatapu and that he was to return to court on 22 October 2019 for a trial date to be fixed. On that date, the Accused failed to appear and Cato J issued a warrant for his arrest.
5. The bench warrant was eventually executed, the Accused was taken into custody and brought before the court on 20 September 2022. In the intervening almost three years, he had, to use the Prosecutor’s term, “absconded” to ‘Eua. That passage of time and the resulting delay in bringing this matter to trial become relevant when considering the evidence below.

Charges

6. At the conclusion of the Complainant’s evidence, the Crown sought leave to amend the indictment so that in respect of the four counts the Accused is charged:
   • (a) firstly, that in or about November 2018, he seriously assaulted the Complainant when he kissed her cheek without her consent;
   • (b) count 2, that in or about February 2019, he used his hands to touch the Complainant’s vagina without her consent;
   • (c) count 3, that in or about February 2019, he used his hands to massage the Complainant’s breasts without her consent; and
   • (d) count 4, that in or about February 2019, he sucked the Complainant’s breasts without her consent.
7. The amendments were not objected to and leave was granted.
8. The Crown did not offer any evidence in relation to Count 4.
9. The Accused appeared at trial unrepresented. He confirmed however that he had received with the indictment and summary of facts, a court document containing information about the criminal trial process for unrepresented defendants. When asked whether he had familiarized himself with the contents of that document, the Accused said that he had limited education and could not read well. Accordingly, I explained to the Accused at the outset of the trial, and at different times during it, the various procedures that were to be undertaken.
10. Following her opening, which was supplemented by helpful written submissions, the Prosecutor called the following five witnesses.

Complainant

11. The complainant was 15 years of age at the time of the alleged offending.
12. Pursuant to s 119 of the Criminal Offences Act, I directed that the identity of the complainant and her 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. Accordingly, the Complainant will be referred to simply as the Complainant and her mother, as the Complainant’s mother.

The Complainant

13. The Complainant is the eldest of three girls in a family of seven children. She gave evidence which may be summarized as follows.
14. During 2018 and 2019 she lived in a house in Longoteme with her parents and siblings. Earlier in 2019, the Accused and his then de-facto partner, Nolini ‘Anasi, moved into the house with the family. Nolini and the Complainant’s mother are related.
15. Exhibit P1 comprised a number of photographs of the home at Longoteme and its surrounds including the lounge area and two of the bedrooms.
16. One night at the end of November 2018, whilst her mother was away at a funeral, and her father was asleep outside in a tent, the Complainant was sleeping on a bed in the lounge with two of her younger siblings. The lights inside the house were off but a light above the front door was still on. The Complainant felt a beard prickle her cheek. She then felt someone kissing her on her cheek. She awoke and could smell Tongan kava on the person kissing her. She pushed the person away and then saw that it was the Accused. Nothing was said by either at the time. The Complainant felt scared and embarrassed about what had happened. The Accused then walked off into the room that he and Nolini were occupying.
17. Shortly after, Nolini came out to go to the toilet. The Complainant went with her. Nolini asked the Complainant what the Accused had done to her. The Complainant told Nolini that he had kissed her on her cheek. Nolini told the Complainant not to tell her mother and said that if the Complainant loved her she wouldn’t say anything to her mother who was Nolini’s Aunt because ‘something might happen’. The Complainant agreed because she felt sorry for Nolini. She then laid back down and stayed awake watching her siblings in case anything might happen to them like what have just happened to her. They are the events which constitute Count 1.
18. In relation to Counts 2 and 3, the Complainant gave evidence that in February 2019, after school around 4 PM, she was at her home in Longoteme.
19. Exhibit P2 was tendered as a photograph depicting the Complainant towards the end of 2019 for the purpose of showing that she was smaller in stature then than she appeared in court.
20. When she arrived home, her brother was also there although he was staying in a hut some eight metres away from the house.
21. The Complainant went into her bedroom and closed the door, although not fully. She had her back towards the door. She took off her school uniform but was still wearing her shorts and underwear and was unbuttoning her school shirt but had not taken it off. She then felt someone from behind touching and fondling both her breasts inside her shirt and bra. She was surprised. She said the touching went on for one or two minutes although later on said it was probably just one and eventually said she wasn’t sure.
22. At that time, she tried to remove the person’s hands from her body but she could not do so. She then turned to her left to see the Accused fondling her. During that time, he also put his right hand inside her pants and touched her vagina. Eventually, the Complainant told the Accused ‘that was enough’, and for him to stop before someone came and caught them and she pushed him away.
23. She said she felt scared and embarrassed and was scared that her mother would be angry and would beat her if she found out. Before he left the room, the Accused told her to keep quiet ‘until death’ meaning for the rest of her life.
24. The Complainant confirmed that she did not consent to the Accused touching her. She also said that during the relatively short time which she estimated as being about 40 seconds when the Accused was touching her vagina, she tried to ‘shake him off’ and told him to stop.
25. The following week after school at her home, the Complainant was with one of her close friends whom I will refer to as ‘Ana. The Complainant told ‘Ana about both incidents, the kissing in November 2018 and the touching in February 2019. ‘Ana was the first person the Complainant told. The Complainant told ‘Ana in relation to the first incident that when she was sleeping on the bed that night, the Accused kissed her on the cheek. The Complainant also told ‘Ana about what had happened in the room when the Accused fondled her breasts. She could not recall whether she had told ‘Ana at the time about the Accused also touching her vagina. ‘Ana said she would not tell anyone else.
26. The Complainant also spoke with ‘Ana again about the incident the next day after school. She was going to get changed so she told ‘Ana to come with her in case the Accused did something to her.
27. About a week or so after the Complainant told ‘Ana what happened, the Complainant’s mother came into her room and asked her what the Accused had done to her. The Complainant told her mother that the Accused had kissed her cheek and touched her breasts but she did not tell her about him touching her vagina. According to the Complainant, her mother only found out about the Accused touching her vagina when they went to provide a statement to police that evening because she was scared to tell her mother about the Accused touching her vagina earlier.
28. During cross-examination, the Accused put to the Complainant that her account was untrue and that at the time he was bedridden at the home because he had gout.
29. The Accused put to the Complainant that all the events happened on the one day and that she had no clothing on when he entered her room. The Complainant denied those suggestions and reiterated that there were two separate incidents. The Accused elaborated that he was sick in bed at the time with gout and that the Complainant came in from school when he was trying to slide over to a bucket he was using as a toilet. He sought to explain that during that time he was so sick that he could not go to the living room and that people had to carry him out of his bed such as his partner or the Complainant’s mother’s sister.
30. The Accused put to the Complainant that she entered his room with just a sarong and no underwear. The Complainant denied that.
31. The Accused then put to the Complainant that as she entered his room, she revealed herself by taking off the sarong and telling him to suck on her breasts. The Complainant denied that and added that the only time she was ever in the Accused’s room was when Nolini was present.
32. The Accused then put to the Complainant that when she asked him to suck her breasts, he said no and that someone might see and that she then pulled his head to her breasts. The Complainant denied that.
33. The Accused then put to the Complainant that as he was sucking her breasts, she put his hand on her vagina and that she said to him that it was okay, she was not a virgin and that she had already slept with someone. The Complainant emphatically denied that.
34. The Accused put to the Complainant that when he was lying in bed, she told him to fondle her as ‘she was horny’ and that she grabbed his hand and put it between her legs. The Complainant denied that too.
35. The Complainant agreed that there was a time when the Accused was sick with gout but said that he was able to walk or be it with a limb like he was appearing with court. The Accused then stated that he hated the Complainant and described her as very dangerous. He again put to her that she consented to what had happened between them. The Complainant again denied that.
36. In answer to a question from the Bench, the Complainant described her relationship with the Accused prior to these events commencing in November 2018 as that she got on well with him and respected him like a father and that nothing untoward had happened before then. She also said that the Accused moved out of their home the day before her complaint was lodged with the police.

Nolini ‘Anasi

37. As mentioned, Nolini is the niece of the Complainant’s mother. She was also the former de facto partner of the Accused. Her evidence may be summarised as follows.
38. She was in a relationship with the Accused for about 18 months between 2017 and 2018. She described how she and the Accused left the house ‘probably in about January 2019’, although later in her evidence she was unsure precisely when they moved out. In any event, she said that they left her Aunt’s house because of ‘the problem’ that had occurred between the Accused and the Complainant.
39. She knew about the problem because she asked the Complainant about it. She could not recall exactly when but she did recall that one evening she went to the toilet and spoke with the Complainant about what had occurred. Nolini explained that she asked the Complainant what the Accused had done to her because Nolini had become suspicious about the way the Accused looked at Mele. For instance, she recalled that one Sunday afternoon, when she was lying on their bed, the Accused did not come and lay down with her but instead stood looking out the window. She tried to sleep but she noticed that the Accused kept flicking the curtain to their room because the Complainant was sleeping on a bed in the lounge. The Accused was also looking through a hole in the wall to where the Complainant was lying down. Nolini asked the Accused why he didn’t come to bed and why he was peeking through to the lounge where the Complainant was. The Accused did not reply.
40. During her discussion with the Complainant, the Complainant told Nolini that the Accused had entered the room she was in and kissed her and touched her breast. Nolini told the Complainant that if she loved her, the Complainant would not tell her mother. The Complainant agreed. Nolini also then decided to separate from the Accused as the only way to “cut the problem”. Before they moved out, Nolini spoke to the Accused about what the Complainant had told her. She asked him what he did to the Complainant. The Accused said he did nothing. For a time thereafter, they continued to live together.
41. However, Nolini said that there was a family meeting she attended when this issue was brought up. She said she spoke to the Accused again after her Aunt had told her that same evening about something having happened to the Complainant. The Accused denied doing anything to the Complainant. Nolini then stood up, grabbed a shovel and told the Accused she would stab him with it. The Accused then apologized to Nolini said that he made a mistake, that he could not do anything and that he just kissed and touched the Complainant on her breasts. Nolini was very angry and thought of doing something to the Accused but then there was a knock on the door and it was the police.
42. During her cross-examination, Nolini reiterated that the Complainant told her that what the Accused had done to her occurred on two separate occasions, once in the lounge room and the other in the bedroom.

‘Ana

43. The next witness was ‘Ana, the Complainant’s friend. At the time of these events ‘Ana was 16 years of age. She gave evidence that in the second week of February 2019, she went to the Complainant’s house to eat and talk. The Complainant told ‘Ana about a night she was sleeping with her two younger siblings in the lounge when she felt something like a beard prickling her cheek and saw that it was the Accused. The Complainant told her that the Accused kissed her. Later in her evidence ‘Ana said that the Complainant told her that the Accused kissed her on her neck. She also said that the Complainant told her that the Accused had held her mouth so she wouldn’t speak.
44. About three days later, the Complainant went to ‘Ana’s house where they talked. The Complainant told ‘Ana that she had told Nolini about the first occasion but that Nolini did not believe her.
45. Another day after school, the Complainant told ‘Ana that she had a shower, went to her room to change and as she was drying herself, she felt someone fondling her breasts. She saw that it was the Accused and as she turned, the Accused touched her vagina inside her trousers. The Complainant told ‘Ana that she told the Accused to stop before her mother came and caught them and that the Accused told her to be ‘silent until death’, and that if he found out that she told anyone, he would ‘beat her up’. ‘Ana said that at the time she could not believe what the Complainant had told her because she did not see the Accused as a man who would do such things. She added however that she did not believe that the Complainant would lie.
46. ‘Ana then recounted a further incident the following Monday around 4 p.m. when she was at the Complainant’s house. The Accused was sitting outside, the girls spoke to him and ‘Ana asked him what he was doing. She did not think he heard her. Shortly after that, the Accused asked the girls if any men had sucked their breasts. ‘Ana did not pay much attention to the question and both girls went inside the house where the Complainant went for a shower. After the Complainant had showered, she called out to ‘Ana to come to her room before the Accused did something to her. While they were inside, ‘Ana thought to close the door and lock it. The Accused then knocked on the door and asked them what they were doing. He then told them to come outside or whether they were “just fondling with their vaginas inside”. ‘Ana told the Accused to go do something useful before she told Nolini. It was at that point that ‘Ana believed what the Complainant had told her because she had never heard such words at her house.
47. ‘Ana described the Complainant at the time the Complainant recounted to her what the Accused had done as looking scared, as if she was concerned someone might hear about it. On another occasion, she said the Complainant looked as though she was about to cry.
48. During cross-examination, the Accused appeared bewildered at ‘Ana’s evidence. His only meaningful challenge to her evidence was suggesting that he had never seen her before. ‘Ana responded that the Accused was lying because she had gone to the Complainant’s house almost every day where they braided their hair and the Accused was there with his de facto partner. The Accused then suggested that maybe ‘Ana did come over but he had never noticed her. He did not deny ‘Ana’s evidence.

Complainant’s mother

49. The Complainant’s mother gave the following evidence.
50. In or about March 2019, the Accused and Nolini moved out of their house. The mother only found out when she came home to find that they had already moved. She did not know why. She collected a couple of items which belonged to them and took them to the house to which they had moved which was also in Longoteme. She asked them what was happening and why they didn’t tell her they were moving. They said that “it was okay”.
51. That afternoon, the mother arranged a family meeting. The Accused and Nolini attended. Just prior to the meeting commencing and after the mother had spoken to her neighbour, she confronted the Complainant and asked her what had happened. The Complainant explained about the day when her mother was at a funeral and she was sleeping in the lounge with her siblings. She told her how the Accused had been drinking kava and that she felt him kissing her. The Complainant told Nolini the next day and Nolini told the Complainant not to tell the mother. The mother then said to the Complainant “you love Nolini but you don’t love yourself”. She then added that it would be okay because she would lodge a complaint.
52. The mother also recounted the Complainant telling her about another time when she came home from school, took off her tunic and was about to take off her shirt when the Accused walked in and fondled her breasts and touched the top of her vagina. The mother described her daughter as being scared when telling her this.
53. The mother said she did not raise this matter during the family meeting because she wanted to protect her husband, her other children and her brothers. She also wanted to protect the Complainant and she was concerned as to what her husband and brothers might do to the Accused.
54. The mother lodged a complaint with the Police immediately after the family meeting that day.
55. During cross-examination, the Accused put to the mother that at the family meeting the matter was brought up and that he apologized. He said that a woman named Holeva who was the daughter of the mother’s eldest sister said something along the lines of whether the Complainant loved Nolini more than him. The mother did not recall any of that.

Detective Siosifa Siale

56. The last Crown witness was Det. Siosifa Siale. He was an investigator at Mu’a Police Station tasked with this case. He gave evidence that the Accused was arrested on 17 April 2019 and interviewed the next day. He described the process involved in conducting the record of interview including warning the Accused as to his right to remain silent and to seek assistance. At the end of the interview, he said that the Accused was provided with a copy of the record to read.
57. The Detective said that the Accused appeared to read the document because he confirmed that it was correct and signed it where indicated. The Accused confirmed that he had a copy of the record of the interview but said that he could not read it all and that he told the police at the time that he couldn’t read properly and he only signed it because the Detective told him to. Det. Siale said that that was the first time he ever heard about the Accused having problems with reading. In the circumstances, the record of interview was read out in court by the Detective.
58. Relevantly, at question 3, the Accused was asked whether he wanted a lawyer to be present during the interview. The Accused said “No, it is fine, I will get a lawyer when it’s time for trial” and signed that answer. At question 13, he was asked the reason why he was at the police station. The Accused said he knew why and that it was because of “a little girl”. He said he knew that she had complained about him and said that he went and touched her. At question 20, the Accused was asked about how he had touched her. He answered that the Complainant had come and taken his hands and put them in her vagina and told him to keep touching it. In answer to question 30, the Accused said: “I do not remember the day but I remember in February I was at home lying in my de facto partner and I’s bed. After that, the Complainant came in and showed me her breasts and told me to suck on it. I then stood up and sat at the corner of the bed and sucked on her left breast”. At answer 31, the Accused continued: “During my sucking on her breast she took my hand and put it in her trousers and told me to keep touching her vagina”. At answer 32, he said: “Then I continued to suck on her breast and touched her vagina it was a few moments after this I told her to leave”.
59. During the interview, the Detective then put to the Accused the first alleged incident involving kissing the Complainant on the cheek. The Accused said that was a lie. Similarly, at question 35, the Detective put to the Accused the Complainant’s events of the second incident February 2019. The Accused also said that was a lie. In answer to question 39, the Accused confirmed that he had touched both the Complainant’s breasts and her vagina.
60. In the Written Statement of Charges Form, under the description of the charges, the Accused wrote ‘It is true’ and signed it. In the Statement Form, the Accused confirmed that he had been cautioned by police. At the bottom of that page, he wrote: “The allegations against me is [sic] true. It is because she came and made me do the things I did and I feel remorseful”.
61. Detective Siale was not cross-examined.

Accused

62. At the conclusion of the Crown’s case, the Accused elected to give sworn evidence.
63. In his evidence in chief, he explained that he was married with four children. He said that his version of what occurred with the Complainant is what he told the police, that it was true, and he had nothing further to add.
64. During cross-examination, the Accused denied that there were two separate incidents on two separate days. When asked whether he kissed the Complainant in November 2018, after a significant pause, the Accused denied that allegation.
65. In relation to the touching in February 2019, the Accused denied the Complainant’s version and said “the truth is what she did to me”.
66. In relation to Nolini’s evidence about a conversation with the Accused after the family meeting, the Accused agreed that he eventually apologized to her, said that “there were mistakes made” but that he only kissed and touched the Complainant’s breast. He said he only apologized to Nolini because she was going to stab him with a shovel. He agreed that he did not tell Nolini that it was the Complainant according to him who initiated the contact between them. The Prosecutor then put to the Accused, on three separate occasions, that the reason that he did not tell Nolini about that was because it was he who touched the Complainant without her consent. On each occasion, the Accused initially agreed with the proposition but then sought to resile and repeat his account that it was the Complainant who initiated the touching. The Accused accepted that between the events of February 2019 and when he was arrested on 17 April 2019, he had not told Nolini that it was the Complainant who initiated the touching.
67. In relation to the earlier evidence about Holeva at the family meeting and her comment or question about whether Nolini loved the Complainant or the Accused, the Accused said that he apologized because he “saw that something was going on” and thought that Holeva “might have been angry about him using her plantation”. When asked by the Bench what that had to do whether Nolini loved him or the Complainant, the Accused did not provide any coherent answer.
68. In relation to the record of interview, the Accused accepted that he did not tell the police that he was sick in bed with gout at the time of the February 2019 event. The Prosecutor pointed out to him that question 30, he stated that he had stood up and gone and sat on the corner of the bed to suck the Complainant’s breast. That was to be compared to his earlier evidence about having to be carried around by others. To that the Accused said: “My bad, I did not explain to police that it happened while I was lying in bed, I was not able to walk”.
69. In relation to the Complainant’s evidence about the nature of her relationship with the Accused prior to these alleged events, the Accused said, in effect, that the Complainant had been flirtatious with him before these events so much so that at one time, Nolini saw what was going on and put a stop to it. None of that was put to the Complainant or Nolini, nor was it mentioned by the Accused to Police during his interview.
70. In relation to his evidence that the Complainant had told him that it was okay to touch her because she was not a virgin, the Accused initially agreed that he did not tell the police about that. However, later he suggested that he did tell the Police even though it was not recorded in the record of interview. When asked why he did not put to that to Det. Siale, again the Accused said: “My bad”.
71. The Accused did not call any other witnesses.

Submissions

72. In his closing submissions, the Accused stated that the evidence that he had given during the trial was all that he wanted to say and had nothing further to add.
73. The Prosecutor commenced her closing submissions on the three remaining counts by noting that the Crown bears the onus of proving each element of the counts beyond reasonable doubt.
74. She summarised the evidence in accordance with the outline provided above. The Prosecutor then acknowledged that there are “some inconsistencies” between the evidence of Nolini, ‘Ana and the Complainant’s mother as to times and dates and aspects of their recent complainant evidence. The Prosecutor submitted that the inconsistencies as to time and date were immaterial and that the events in question occurred over four years ago during which time the Accused had absconded to ‘Eua. She gave a number of examples and sought to identify that the differences between the various witnesses were not significant.
75. Similarly, the Prosecutor accepted that in relation to the details of what the Complainant had told each of those three witnesses about what had happened, there were some variations from the account given by the Complainant during the trial. However, the Prosecutor submitted that the accounts of the essential elements of the offences were sufficiently consistent. She emphasized the Complainant’s evidence of feeling embarrassed and scared during the events in question which evidence was supported by ‘Ana and the Complainant’s mother as to her demeanour when telling them what happened.
76. The Prosecutor submitted that the Accused’s evidence should not be believed for the following reasons:
    • (a) the Accused accepted during cross-examination that there was nothing wrong with telling Nolini his version that the dealing was initiated by the Complainant and with her consent but he never told her that;
    • (b) the Accused admitted that he knew Holeva was referring to the problem at the family meeting but the Accused did not say then that the Complainant initiated it, rather he apologized;
    • (c) the Accused admitted that his apology at the family meeting was because he knew he had indecently assaulted the Complainant without her consent;
    • (d) his apology to Nolini was for the same reason and that even though the Accused denied that during cross-examination, the circumstances and the meaning of an apology meant that his apology would not otherwise make sense;
    • (e) until April 2019, when he was arrested, the Accused never told Nolini that it was the Complainant who initiated the touching between them;
    • (f) in relation to the record of interview, the Accused never told the Police about having gout at the relevant time, and he said in answer to question 30 that he had stood up which was contrary to his evidence that he was bedridden and had to be carried around;
    • (g) the Accused’s evidence about the Complainant saying to him that it was okay for him to touch her because she was not a virgin was also not stated in the record of interview; and
    • (h) the Accused’s response to the Complainant’s earlier evidence about their former relationship when he said that he “hated” her, described her as being “mean” and “dangerous”, that he moved out “because of what she had done to him” and that she was “not respectable”, none of which was put to either the Complainant or her mother, were further reasons why his evidence should not be believed, and that the Complainant’s unchallenged evidence about their previous relationship should be accepted as a basis for finding that there was no reason for her to fabricate her complaints.

Consideration

77. As identified by the Prosecutor in her written opening, in order to secure a conviction, the Crown must prove each of the elements of each charge beyond reasonable doubt, the elements being:
    • (a) the Accused;
    • (b) did indecently assault;
    • (c) the Complainant; and
    • (d) without her consent.
78. The contest on count 1 is whether or not the Accused kissed the Complainant at all. He simply denies it ever happened. The issue on counts 2 and 3 is consent. That is because the Accused has admitted that he touched the Complainant’s breasts and vagina. The difference in version is that the Complainant says that the Accused initiated that contact and without her consent, whereas the Accused says that it was the Complainant who initiated it with consent.
79. Lack of consent is a necessary element to establish any criminal assault. Section 124(5) of the Criminal Offences Act provides:

A young person under the age of 15 years cannot in law give any consent which will prevent an Act being an indecent assault for the purposes of that section.

80. As the Complainant in this case had turned 15 shortly before the alleged offending, she nonetheless falls outside the prohibition against consent as a defence in that section. Nonetheless, I still take into account she was a relatively young girl at the time and that the Accused was not a stranger to her. As the Prosecutor described it, they were living in a domestic environment together.
81. I start with a consideration of the Accused’s evidence, for if I accept his evidence, he must be acquitted.
82. Having carefully listened to the evidence of the Accused including the way he put his case to each of the Crown witnesses, the account he gave police in his record of interview and his demeanour at trial, I found him an unimpressive witness, whose evidence was unreliable, and I have not accepted his version of events. In particular, his account of the 15-year-old Complainant initiating sexual or intimate contact with him, of the kind he described, out of the blue, is, in my view, inherently implausible.
83. Having observed the Complainant and the way in which she gave her evidence during the trial together with the evidence of the other witnesses to the extent that it was presented as recent complaint evidence, I do not accept the Accused’s belated description of the Complainant having being a flirtatious young girl who made sexual advances towards him, a much older male in her household. Any possibility of her having behaved that way when on the first occasion, her father was asleep near the house and her siblings were asleep near her; and on the second occasion, her brother was in a tent near her house, must, in my view, be dismissed.
84. I also do not accept the Accused’s evidence that the events in February 2019 could not have occurred as the Complainant described them because he was bedridden with gout, because he did not mention any of that to the police which would have been a very important part of supporting his version that it was the Complainant who came to him.
85. I have also observed the Accused first hand during the course of the trial over three days and his ability to stand and walk much as the Complainant described during her evidence. If, as the Accused suggested during the trial, he continues to suffer with gout much as he did then, it was clear that he was capable of walking albeit with an intermittent limp.
86. The other omissions from the record of interview about matters which were important as identified by the Prosecutor and during the above outline of the evidence also detract from the reliability of the Accused’s version.
87. If more be needed, the fact that he never told Nolini that it was the Complainant who initiated the advances is also a heavy consideration against the veracity of his evidence.
88. Although it is rare for a Judge in a criminal trial to have to make specific observations about demeanour of any witness or accused, this is one of the few cases in which I consider it necessary. Throughout the trial, the Accused presented with a facial expression suggestive of him not knowing what was going. That expression was marked by squinting his eyes and turning his head to the side whenever he heard something which clearly either he did not like or was concerned to try and refute. Those observations were heightened when ‘Ana gave evidence of being at the Complainant’s house when the Accused firstly asked the girls whether they had ever had a man suck their breasts and secondly, asking hem whether they were fondling their vaginas. Not only did the Accused not refute or seek to challenge ‘Ana’s evidence in that regard, his demeanour became demonstrably more unsettled and he appeared even more nervous and suspicious. I do not wish to place undue weight on those observations, but they were exceptional in my experience. Even after allowing the most concessional interpretation given the usual stresses that accompany most appearances in a court of law, I found the Accused’s demeanour inconsistent with his version of events and was left with abiding questions about his credibility.
89. I turn now to the Crown evidence.
90. There was no direct objective or independent corroborative evidence of the Complainant’s account of either incident. With one important but limited exception, namely, the Accused’s admision to Police that he touched her breasts and vagina. But that is not corroboration of any lack of consent.
91. Section 11(2) of the Evidence Act provides:

That where any person is tried for any sexual offence, no corroboration of a Complainant’s evidence shall be necessary for the Accused to be convicted.

92. In R v Vi [2018] TOSC 59 at [13], Paulsen LCJ noted that while there is no legal requirement for corroboration, out of an abundance of caution, he noted that care is to be taken when acting on the uncorroborated evidence of a Complainant, except of course that one may do so if satisfied beyond reasonable doubt that the Complainant was telling the truth. I adopt the same approach here.
93. Returning then to s 11 of the Evidence Act, subsection (1) provides:

In all criminal proceedings for rape or other sexual offences in order to corroborate the testimony of the person injured by the commission of the crime which forms the subject of the charge, evidence that such person at or shortly after the crime was committed voluntarily made a statement relating to its commission may be given. Such statement shall not in anywise be considered as constituting additional or independent evidence of the crime but only as showing that the person's conduct is consistent with his evidence at the trial.

94. It is for that purpose that the Crown relies on the evidence of Nolini, ‘Ana and the Complainant’s mother. Their evidence of recent complaint did suffer, as the Prosecutor rightly observed, from certain inconsistencies both between them and as between them and the Complainant.
95. However, I agree with the Prosecutor’s submission that certainly any inconsistencies as to time and date are immaterial in the overall context of their evidence. That concession is even more powerful when one considers that it has been over four years since the events occurred, which delay was due to the Accused breaching a condition of his bail at the time to appear before the court in October 2019.
96. It is far more important, in my view, that the accounts of each of those three witnesses was consistent with the core of the Complainant’s version as to what occurred on each occasion. Each of them confirmed that the Complainant had told them that the Accused kissed her in November 2018 and that in February 2019 he fondled her breasts and touched her vagina without her consent. I am therefore satisfied that the evidence of those three witnesses served the purpose envisioned by ss 11(1) of the Evidence Act namely that the accounts given by Complainant to them was consistent with her evidence at trial.
97. I would add that my observation of ‘Ana during her evidence is that she was an impressive witness despite her relatively young age. Being the Complainant’s close friend at the time, it is understandable that the Complainant would have divulged more details to her at the time. Any discrepancies in the content of the recent complaint evidence such as whether the Accused kissed the Complainant on her right cheek or on her neck were also not in my view sufficiently material to give rise to any reasonable doubt, particularly given the effluxion of time between those events and now.
98. That brings me finally to the Complainant’s evidence. I also found her to be an impressive witness. Her evidence was clear, and she gave it in a calm manner so far as she could despite cross-examination by the Accused. I did not gain any impression that she made up or embellished any of her evidence. Rather, her answers to each question both in evidence in chief and in cross-examination flowed naturally as one would expect from an honest witness giving credible evidence.
99. By contrast, the Accused’s answers to most of the questions asked of him involved him pausing and thinking for a while which was consistent with someone who was looking for answers which best served their interests, or he otherwise sought to evade some questions.
100. As to the evidence of the Complainant’s demeanour both when she was recouting the events to the other witnesses, I refer to the decision of Niu J in R v Fa’uvao [2018] TOSC 66 at [105 ] where His Honour observed:

“The position therefore in Tonga now is the same as it is in England, that corroboration is not required in respect of rape, and that matters such as:
(a) early complaint, such as s.11 of the Evidence Act provides for, and
(b) distress of the complainant,
are admissible but the judge will have to direct the jury how to approach such evidence. Juries should be warned that little weight should be attached to such evidence, especially where it is part and parcel of the complaint, and that it is of more significance if it manifests itself in circumstances in which the complainant has no reason to suppose he or she is being observed: R v Knight 50 Cr. App. R.122 CA. General evidence of the demeanour of the victim of an alleged offence after the occasion of the alleged offence is inadmissible for the purpose of supporting the veracity of his or her account of the offence: R v Keast [1998] Crim. L.R. 748 CA.”

101. Having considered those principles, and the Complainant’s demeanour during the trial, I am left in no doubt as to her veracity and reliability of her evidence, which I accept in full.

Result

102. For those reasons, I am satisfied beyond reasonable doubt that the Crown has proven counts 1, 2 and 3.
103. Accordingly, the Accused is found guilty on each of counts 1, 2 and 3 and not guilty on count 4.

NUKU’ALOFA	M. H. Whitten KC
23 March 2023	LORD CHIEF JUSTICE