R v ZY (a pseudonym) [2024] TOSC 44; CR 170 of 2023 (21 June 2024)

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

CR 170 of 2023

BETWEEN:
R E X

- Prosecution

AND:
ZY (a pseudonym)

- Accused

VERDICT

BEFORE: ACTING JUSTICE LANGI

Appearances: Mr. Tamo’ua for the Crown Prosecution
Ms. Aleamotu’a for the Accused

Date of Verdict: 21 June 2024

1. PRELIMINARY MATTERS
   1. Before the trial commenced, the medical report was tendered by consent as Exhibit 1;
   2. In her closing submissions, Mrs. Lui for the Prosecution made an application to amend the indictment as follows:
      1. The charges for Counts 2, 3 & 6 is amended and the original charge of Indecent assault of a child under the age of 12 is replaced by Indecent Assault contrary to section 124 (1) (2) (3) and (5);
      2. For Count 2 of the indictment, the year 2022 is amended to 2023 and the age of the child is amended from 12 years to 15 years;
      100. For Counts 3 & 6 – amend the age of the child from 12 years to 15 years;
      4. The Prosecution offered no evidence on Counts 4 & 5;

3. Counsel submitted that the reasons for the amendments were for the indictment to align with the evidence. These amendments were allowed with no objections from the Defence;
   

2. THE CHARGES;

1. In light of the amended indictment, the Accused is charged with one count of Indecent assault of a child contrary to section 125(1) of the Criminal Offences Act and three counts of Serious Indecent Assault contrary to section 124(1) (2) (3) and (5) of the Criminal Offences Act;
2. The charges relate to incidents of indecent assaults alleged to have occurred between the month of December 2021 and the year 2023;
3. The Accused pled not guilty to the charges and through his counsel he claims that none of this occurred and that the complainant is lying;
   
   100. BURDEN AND STANDARD OF PROOF;
4. The onus of proof lies on the Prosecution at all times, and it is to the standard of proof beyond reasonable doubt in relation to the charge and every constituent element of the charges;
5. I also remind myself that I must base my decision on the evidence which I have heard in this Court. On the basis of the burden and standard of proof, the Prosecution case must stand or fall on the evidence that the parties choose to call before me.
   
   4. ELEMENTS OF THE OFFENCE;
6. Section 125 (1) of the Criminal Offences Act states “any person who shall commit an indecent assault on any child under the age of 12 years shall be liable on conviction thereof to imprisonment for any term not exceeding 7 years”;
7. Before I can convict the Accused for a charge under section 125 (1), the Prosecution must prove the following elements beyond a reasonable doubt:
   1. That the Accused;
   2. Assaulted the complainant who was a child under the age of 12;
   100. The assault was indecent, in that right-minded persons would consider what was done offensive to contemporary standards of modesty and privacy.
8. Section 124 (1) of the Criminal Offences Act states:

“Any person who shall commit an indecent Assault on any person shall be guilty of an offence under this section”

9. Before I can convict the Accused for a charge of Serious Indecent Assault, the Prosecution must prove the following elements beyond a reasonable doubt:
   1. That the Accused;
   2. Assaulted the Complainant when he intentionally (put his penis inside the complainant’s mouth; licked the complainant’s vagina)
   100. without her consent;
   4. That the assault was indecent, in that right-minded persons would consider what was done offensive to contemporary standards of modesty and privacy.
      

5. THE EVIDENCE

Prosecution’s evidence

PW1: The Complaint’s Aunt, 44, Mata’aho, ‘Eua.

10. The complainant’s father is her biological brother.
11. She is married to a person from ‘Eua and she has lived in ‘Eua since 2015. Her brother was married to the complainant’s mother, but they are now separated. The complainant’s mother now lives in ‘Eua with the Accused together with the complainant and their children;
12. The complainant attended the Mormon middle school and would often walk past their house. She or her children would often call the complainant to come to their house and eat some food and sometimes the complainant would come to drink water;
13. On the 19 July 2023 she went to the village of Ha’atu’a to cut some pandanus leaves and she heard that something had happened to the complainant’s older sister, and that there were stories of something between her and the Accused. She tried to call the complaint’s older sister and was only able to meet her on Thursday. The following day on Friday she went to the children’s crisis centre and while she was there her son called to tell her that the complainant was at their house. She told her son to talk to her and make her stay there while she makes her way home;
14. She wanted to ask the complainant whether anything had happened between her and the accused. When she arrived, she told the complainant to get into the vehicle so they could talk there because she did not want the boys to hear. The complainant looked very scared, and she was shaking, and she saw her hands were trembling.
15. The complainant got into the vehicle, and was visibly shaken. She asked the complainant whether she knew what had happened between her older sister and the accused and the complainant shook her head. She told the complainant that she is only trying to protect her and that they will go to the Police. She asked the complainant whether the accused had done anything to her, and the complainant cried and put her hands to cover her face. She said to the complaint ‘speak to me so that nothing happens to you because if you get pregnant you will be in a sad state’.
16. Then she asked the complainant again whether the accused had done anything to her and this time the complainant did not say yes or no but just nodded her head. She then grabbed the complainant and they hugged and cried, and she told the complainant that she is not going back to her mother and that they will go to the Police;
17. She then asked the complainant what the accused did to her, and the complainant told her that the accused licked her vagina. She asked the complainant whether the accused had put his penis inside her vagina and the complainant said no. She said that the accused put his ‘pissing part’ inside her mouth
18. She did not ask any further questions and told the complainant that they will go to the Police station. The complainant told her to call the boys to accompany them because she was afraid that they will meet her mother and the accused.
19. They then drove to the Police station and on the way, she called the Women crisis centre in Tongatapu and reported the incident to them. They were directed to go to the centre at ‘Eua and wait for someone from the office to come to them. A girl named ‘Ana came and asked a few questions then told them to go and report it to the Police.
20. After they talked to the police, she offered to take the complainant and that night they did not sleep at their house because she could not think straight and the complainant was also scared. They spent the night in another house;
21. When they returned home they saw the complaint’s mother there with the Police and after they talked she left but the complainant remained and lived with her. Then in December last year the complainant’s father asked for her to spend Christmas with them and so she came to Tongatapu to her father. The complainant had only lived with her from July – December before coming to Tongatapu to her father;
22. When the complainant first came to live with them, she noticed that the complainant would always prefer to be on her own and would be hesitant to join the rest of the family and to play with her children. She later realized that the complainant would be looking out for the vehicle used by her mother and the accused. One evening the complainant told her that her mother and the accused had driven by their house five times that day. She told the complainant not to worry about them and that the police will take care of her and make sure that the accused would never come close to her again.
23. In cross-examination, she agreed that the complainant’s older sister was the eldest child of her brother and the complaint’s mother. That older sister was brought up by her father’s side of the family and the couple separated with the complainant was only about a year old. Since the separation, the complainant had been in the care of her mother;
24. She agreed that since the child had been under the care of her mother nothing had happened and that the problem now faced by the accused only happened when she reported him to the police. She did not accept, however, that the reason the complainant had agreed to make this complaint was because she had forced the complainant and threatened her with talking to the police;
    

PW2: The Complainant;

25. She is 13 years of age and is in Form 2. She grew up with her mother and her younger siblings in ‘Eua. She currently lives with her father at Sia’atoutai;
26. She is the third child of 5 children from her father’s side. Her father has remarried and has two other children and her mother also has a child with the accused;
27. When they lived at ‘Eua with their mother, the accused moved to live with them together with his daughter and his son from his first marriage;
28. She is currently in Form 2 but last year she was in form 1 at the Mormon Middle School at Pangai ‘Eua. In 2022 she was in class 6 at the Ha’atu’a Primary school and in 2021 she had been in class 5 at the same primary school. During those years, she had lived together with her mother and the accused;
29. When she was in class 5 in the year 2021, she recalled her mother had left ‘Eua to come to Tongatapu to do some Christmas shopping for them. The school break had begun in November and her mother left in December for Tongatapu while she stayed with the accused and the rest of the children;
30. When they stayed with the accused, he would go to work while they stayed at home. Then one evening after they had dinner the accused had woken her and asked why her why she was crying. They had all been sleeping in the room that was used by her mother and accused;
31. She told the accused that she missed her mother. He told her not to cry because he was just like a father to her. After he said that, he lay down and took off his pants and put his ‘pisi’ inside her mouth. She felt like she was going to vomit and the accused then massaged his penis and told her not to tell her mother. Then he told her to go and sleep and she went to sleep and the accused went away;
32. Another incident happened when she was still in Form 1. This happened at the bush allotment where the accused and her mother planted taro and kava. They would usually all go to the bush allotment but on this particular day it was only her and the accused and his daughter that went to the bush allotment;
33. When they arrived at the allotment, the accused told her to go and pick some lime and he told his daughter to go and put the taro inside a sack;
34. His daughter remained in the vehicle while she went to pick the lime from the lime tree. The accused came and cut off a stick to use for the clothes line. Then he called her to come to him and told her to piggyback on his back. He cleared the bushes and they walked for a bit then turned around again and the accused took off his pants and put his ‘pisi’ inside her mouth;
35. After he put his ‘pisi’ in her mouth he then kissed her on the mouth and told her not to tell her mother. Then they returned back home.
36. Another incident happened again when she was in Form 1. This was when the accused asked her and her siblings to go to the shop and buy some sugar. On this day the accused had dropped her mother to another place for ‘healing. Only herself and the accused’s two children were all going to go to the shop to buy sugar but when they were about to leave the accused called her back to come and stay while the other two went to the shop. He then called her to the room and again put his ‘pisi’ inside her mouth. He had left the window a little bit open to be able to look outside and when the others returned from the shop he told her to quickly run to the kitchen and stand there. Her reference to ‘pisi’ meant the body part that the men use for urinating;
37. Again in 2023, she had been sleeping while the accused went to take her mother to carry out healing and when he returned he woke her up to bring over his cigarette and to take it to the vehicle which was parked on a small hill. She took the cigarettes there and the accused told her to get into the van so she got in and sat at the back of the van. Then he came and asked her to suck his penis and he took her head and directed it at his penis. By this time she had already gotten off the van and was standing beside it and he massaged her head. Then he told her to get back into the van and he lay her down and licked her vagina.
38. She had told her aunty all of the things the accused had done to her when the police came and brought her mother to her aunt’s house. Her aunt had asked her whether the accused had done anything to her and so she told her aunt that the accused had licked her vagina and had put his ‘pisi’ inside her mouth;
39. In December last year she came to her father and she has been living with him up to the present time;
40. In cross-examination it was suggested to her that the house she lived in with her mother and he accused had not separate bedrooms and that it was just one big space where you can see from one side of the room to the other. She did not agree.
41. She agreed that most of the time they would be at home with her mother and the rest of the children together with the accused. Her mother would often be asked to carry out ‘land healings/prayers for the kava plantations’ in other allotments and would often leave their home to carry out those land healings’
42. She did not agree that there were no land healings last year;
43. She did not agree that her mother would always take her and the rest of the children with her to conduct the prayers over the kava plantations. She said that her mother would sometimes take them but there were times when they remained at home;
44. She said the indecent assaults had started when she was only in class 5 up to when she was in Form one last year;
45. She agreed that she had not confided in her mother about what the accused had done to her but she did not agree that it was because she was making up these allegations;
46. She did not agree that her aunty had threatened to take her to the police station if she did not tell her what had happened to her older sister;
47. In re-examination, she stated that she had been afraid to tell her mother about what the accused was doing to her because she was used to being hit whenever she did something wrong;
    
    6. CLOSING SUBMISSIONS

Prosecution’s submissions

48. The Crown submit that it has proven its case beyond a reasonable doubt for reasons that are summarized as follows:
    1. The evidence of the complaint’s aunt provides corroboration to the evidence of the her that the accused had licked her and put his penis inside her mouth. She also explained how the complainant was visibly shaken and scared when they talked inside the van. She explained how they had then both hugged each other and cried after the complainant told her what the accused did to her.
    2. The complainant had given evidence of four different incidents where the accused had indecently assaulted her. The first incident, which gives rise to Count 1 of the indictment, was when the complainant was in class 6. Her mother had travelled to Tongatapu to do some Christmas shopping in December of that year. Only the accused and the complainant and the rest of the children remained in ‘Eua. There was no one else living with them and it was only the accused who was the adult during that time. The complainant said the accused had gone to work and had returned home at night when they were already asleep. She stated that they had been sleeping in the room that the accused and her mother slept in. The accused came and woke her up and asked her why she had been crying and she told the accused that she missed her mother. The accused then told her not to cry as he was just like a father to her. Then the accused took off his pants and put his ‘pisi’ inside her mouth and she felt like she was going to vomit. The accused then massaged his penis and told her not to tell her mother and then told her to go to sleep.
    100. The complainant stated that the second incident happened at the bush allotment used by the accused and her mother to plant taro and kava. This gives rise to Count 3 of the indictment. The complainant had stated that they would often go to the bush allotment with their mother and the accused and sometimes it would only be the accused and herself and his daughter. On this day, she had gone to the bush allotment with only his daughter and the accused. The accused had instructed her to go and pick some lime from the tree and for his daughter to collect the taro in the sack. She had gone to pick the limes and the accused went to get a stick for the washing line. Then he told the accused to climb on his back so he can piggyback her back to the vehicle. However, on the way he stopped, and she got off and he pulled his pants down and put his penis inside her mouth before massaging his penis;
    4. The third incident happened at their house. This incident gives rise to Count 6 of the indictment. On this particular day the accused had told the complainant and the rest of her siblings to go to the shop to buy some sugar. However, when they were about to leave the accused called her back and told the other children to go to the shop. At the time, her mother had left to carry out healing at another place. The accused told her to go inside the room and he put his penis inside her mouth and only stopped when he heard the children returning from the shop. He then told the complainant to run to the kitchen and stand there while he remained in the room. He only came outside when the children were in the house;
    5. The final incident giving rise to Count 2 of the indictment happened when the accused took her mother to carry out healing. He returned home and woke the complainant and told her to bring his cigarettes out to him. She took the cigarettes outside and the accused told her to go inside their van in the back seat. The accused told her to suck his penis and she did not want to and the accused grabbed her head and pulled it to his penis and also massaged her breasts. He then told her to get into the van and he took off her pants and licked her vagina;
    6. The complainant stated that the second and third incidents occurred last year when she was still in Form 1;
    7. The complainant had told her aunt everything she had stated in court. She had also stated that her date of birth is 25 August 2011. She referred to the accused only as her mother’s friend and did not refer to him as her father or a person living with them;
    8. It is also clear from the complainant’s evidence that she had been close to her mother before she had left ‘Eua. But since she had lodged the complaint against the accused she had been taken to live with her aunt and the last time she saw her mother was when they were in ‘Eua in July last year and she only just saw her again this morning in court;
49. The following are Prosecution’s submissions in relation to the complainant’s evidence:
    1. She was only 11 years old during the first incident;
    2. The second, third and sixth incidents all occurred when she was under the age of 15 years;
    100. Her evidence was consistent and despite the difficulty in having to give evidence she did not change her evidence during cross examination. Here evidence is therefore reliable and should be accepted by the court;
    4. The doctor’s report states what the complainant had told him and her explanation to the doctor is consistent with what she had stated in court. The doctor had made an examination of her genitalia and stated that the complainant is still a virgin which is consistent with the complainant’s allegation which did not include any penetration to her vagina;
       

Defence submissions:

50. The submissions on behalf of the defendant are summarized as follows:
    1. Counts 2-4 are prejudicial because it is not clear when the offences are alleged to have occurred. The Crown alleged she was a child under the age of 15 but the date and time of the offending is unclear to be able to confirm the accused’s whereabouts at the time. The accused is unable to defend his case without knowing the exact time he is alleged to have committed the offending and it is therefore unfair and prejudicial;
    2. The accused and his family had never faced any problems since 2019. The problems had only started when the complaint’s aunt had repeatedly questioned the complainant and which resulted on the police getting involved.
    100. The complainant was slow to answer the questions put to her and she had to wait a little before answering. Some questions were answered and some were not;
    4. The complainant had never been left alone with the accused at their house and she had not stated how often the accused had done this to her, or whether or not his penis was hard and erect. She had therefore made all of these allegations up in accordance with what she had told her aunt;
    5. The Defence submit that what most likely happened was that the complaint’s aunt put all these thoughts into the complainant so she could come and explain such horrendous things while the truth of the matter was that the accused was living happily with his family. And it was only when the complaint’s aunt heard stories about the complaint’s older sister and the accused that she ‘hammered’ the complainant with these allegations. She was much older than the complainant and who was she to interrogate such a young child;
    6. There was bad air between the complaint’s mother and the complaint’s aunt. The explanation made by the complainant in relation to the accused is untrue. The Crown has also failed to provide any photos for us to see how they had lived before these charges were made. Additionally, the medical report clearly shows that the complainant is still a virgin;
    7. The charges since 2021, 2022, 2023 were to do with putting his penis inside the complainant’s mouth. If the allegations were true, then there should have been more serious acts of indecency. But in this case it’s always been just his penis into her mouth. The complainant’s evidence should not be believed.
       

7. THE LAW

51. The essential issue is whether the Prosecution has established beyond a reasonable doubt that the accused committed the offences in the manner described, that is, putting his penis inside the complainant’s mouth and licking her vagina without her consent as described. There can be no doubt that those acts are proven, the assaults were indecent;
52. The Accused through his counsel has made an outright denial of having committed the acts of indecency alleged. In contrast, the complainant claims that he did. The issue therefore comes down to the credibility of the Crown witnesses and whether I believe their version of events;
53. If he is to be convicted, the court must be satisfied beyond a reasonable doubt that his denials are untrue;
    
    8. DISCUSSION
54. Through his counsel, the accused denies the allegations and says that the complainant is lying and that the reason she is making these allegations is because her aunty, put her up to it;
55. Firstly, in relation to the submission by Ms. Aleamotu’a that the charges are prejudicial because it does not specify the exact time the offences were committed as to enable the accused to prepare his defence and his whereabouts during those dates. I do not accept that there has been any prejudice to the accused in the failure to specify the exact dates. Unfortunately, most of child sexual abuse cases only come to light after months or in this case years, after the acts were committed. It would be impossible for young children to remember the exact dates they had been sexually abused but this does not mean that the offences did not occur. The indictment states ‘on or about’ and states the year it is alleged to have occurred. The crown need only prove beyond a reasonable doubt that it was the accused who had indecently assaulted the complainant without her consent;
56. After assessing the evidence and the submissions put forth by counsels, I have no doubt as to the credibility of the complainant and the complaint’s aunt. I accept their evidence in its entirety and am not convinced that they have come to this court and fabricated such serious allegations against the accused;
57. During her evidence, I was able to observe the complainant behind the screen that was set up in court to block out any view of the accused. I found the manner she gave her evidence reliable and consistent. She seemed apprehensive at times and embarrassed but that is to be expected of such a young girl having to relive the despicable acts committed on her.
58. I also found the evidence of the complaint’s aunt credible and reject the submission by defence that she had orchestrated these allegations because she did not get on with the complaint’s mother and that there was ‘bad air’ between them. I am not convinced by Ms. Aleamotu’a that the allegations all came about because of the complaint’s aunt. There was nothing in the evidence before this court to suggest that there was even bad blood between the complaint’s aunt and the complaint’s mother;
59. In cross-examination, she was not at all defensive and agreed to some issues put to her by the Defence. There was nothing in the manner she gave her evidence to suggest to me that she was lying or had any motive to make us such lies. Her evidence was not shaken under cross-examination and remained consistent throughout the trial;
60. Sadly, the behaviour of the accused in telling the complainant not to tell her mother is common behaviour in child sexual offenders. Added to this is the reaction by the complainant to the indecent assaults on her. She stated that she had been scared to tell her mother because she would always get beaten when she did something wrong. It is evident from that statement that the complainant had thought that she was being a bad person and what she was doing with the accused was wrong. At her young age, she could not have understood that she was just a victim and it was the accused who was wrong. Moreover, she had stated that she felt like she was going to vomit. A child of her age would not make up such a reaction if she had not experienced it;
61. In relation to the first count, the complainant had stated that the acts of indecency occurred on or about the month of December when her mother had come to Tongatapu to do Christmas shopping for them. The accused had put his penis inside her mouth. At the time she was only in class 5. I am satisfied beyond any reasonable doubt that she was a child under the age of 15 at the time of this offending;
62. In relation to the second count, the acts of indecency had occurred in 2022 when the complainant was only 11 years old. The accused had put his penis inside her mouth and licked her vagina; I am satisfied beyond any reasonable doubt that the Crown has proved count 2;
63. In relation to the third count, the acts of indecency had occurred in last year when the complainant was only 12 years old. He had put his penis inside her mouth. I am satisfied beyond a reasonable doubt that the Prosecution has proven count 3;
64. The Crown withdraws count’s 4 & 5 of the indictment, and they offer no evidence. The accused is acquitted of counts 4 & 5;
65. In relation to the sixth and final count, the acts of indecency had occurred last year in 2023 when the complainant was only 12 years old. He had put his penis inside her mouth. I am satisfied that the Prosecution has proved count 6 beyond a reasonable doubt;
66. Overall, the evidence against the accused was overwhelming and I am satisfied that the Prosecution has proven all the elements of Counts 1,2,3 & 6 charges beyond any reasonable doubt.
67. He is accordingly convicted of those charges.
68. Pursuant to section 119 of the Criminal Offences Act, I direct that the identity of all parties taken in these proceedings shall not be published in the Kingdom in a written publication to the public or be broadcast in the Kingdom.
    

NUKU’ALOFA: 21 June 2023

‘E. M. Langi
J U D G E