R v F.J (a pseudonym) [2025] TOSC 10; CR 137 of 2024 (28 February 2025)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY
CR 137 of 2024

BETWEEN:
REX
-Prosecution

AND:
F. J (a pseudonym)
-Accused

JUDGEMENT

BEFORE: HON. LORD CHIEF JUSTICE BISHOP KC

Appearances: Mrs E Lui for the Crown Prosecution
Mr S Fili for the Defendant
Trial: 25 – 27 February 2025
Judgement: 28 February 2025

1. THE CHARGES

1. The defendant is charged in a single count of indecent assault on a child contrary to section 125 of the Criminal Offences Act.
2. The particulars being that on or about an unknown date during the month of February to March 2024 at Nualei, you did indecently assault the complainant who is a young female child under the age of 12, when you touched her vagina.
3. The defendant has pleaded not guilty to the charge, and it is now my duty to consider the evidence and the submissions of the counsel then come to a conclusion.
   2. DISCUSSION
4. The complainant is a child aged 5 today but at the time of the alleged offence aged 4, because of that, it is necessary to consider section 116 of the Evidence Act which in summary provides that where evidence given by a child not on oath, corroboration is necessary to convict the Accused. The complainant in this case is a child but there is no need for corroboration here.
5. The Complainant gave evidence not on oath however after that evidence had been given it was brought to my attention that Justice Cooper had already considered the question of whether the child is capable of giving sworn evidence and in a careful judgement which I gratefully adopt he concluded that she was.
6. Neither his ruling nor his conclusions were mentioned by counsels either at the beginning of the trial or when the Complainant came to give evidence. That was a lamentable failure which meant that in the interest of justice I had to consider whether it was right to recall the Complainant and have her sworn. That is what happened yesterday, and she did.
7. She was sworn then she confirmed that the evidence which she had given the previous day was true. I therefore proceed on the basis that I must consider the evidence that she gave as given on oath and I do so.
8. I remind myself that under section 11 of the Evidence Act, it is no longer necessary to find corroboration in the case of sworn evidence of a child. Since there is no corroboration in this case, I must approach the evidence with caution.
9. Secondly, I consider the evidence of the mother to which I find was unsatisfactory since it seems to me, I cannot exclude the possibility that her institution of proceedings was activated at least in part by her anger towards her husband following a quarrel as result of which she left the matrimonial home.
10. It is with those cautions in mind that I turn to consider the evidence of the Complainant herself. I found her to be a delightful little girl. She was obviously intelligent, understood the questions and her answers were both comprehensive, accurate and credible. She explained that she had lived in a property situated in a bush allotment with her mother, her sister and her stepfather, the Defendant.
11. I have been shown a bundle of photographs [Exhibit 1] which depict the matrimonial home as a very rudimentary building with no inside cooking facilities or lavatory or bathroom. It is a one room shack in fact.
12. Because of this, the mothers practice was to bathe her children outside by filling a bucket of water from the receptacles placed there to receive rainwater and taking the child in question indoors to be dried with a towel.
13. This is what the Complainant said happened on a day in question, she said that her sister was asleep in the one room dwelling. Her mother had left the room to collect a towel from the next-door shack when the defendant came into the room and asked her why is your “peeki” like that to which she replied because “it’s just like that” then she continued that Misi (the Defendant) touched my “peeki” once and then left to continue his work.
14. She later answered that when the defendant touched her “peeki,” she stated that “it felt painful.” I was told that “peeki” is the way which this little girl describes her vagina. So, what she is saying in fact is that the Defendant touched her vagina and that it was painful.
15. She was asked about when this occurred but all she was able to say was that it occurred when it was dark. I interpose to say that the mother indicated there was one occasion when they had been working in the plantation came home when dark and that it was then that she bathed the Complainant contrary to her usual practice of doing so when she returned from school.
16. The Complainant gave evidence that she did not tell her mother what had happened to her on the day in question, because the Defendant has told her not to. It was sometime later in response to some questions from her mother as a result of which her mother took her to the police station.
17. She repeated her account and did so again when it went taken at the police station.
18. She was then taken to hospital and examined by a doctor where no indication of abuse was discovered.
19. I further heard from a police officer who produced various photographs and sketches as well as a neutral body sketch in which the Complainant appointed to her groin as the place “where dad touched me.”
20. I now turn to the evidence of the mother herself which I found to be very unsatisfactory. This may well be because of her beginning her answers in English and then reverting to Tongan. It was unclear to me if she fully understood the questions and that her attempt to speak in English may have clouded the accuracy of what she was saying.
21. I accept that there was bad feeling between her and her former husband. I accept that she was angry with him at the time. She says that this was because following a discussion with the Complainant when she asked him has Misi ever done anything to you, the Complainant stated that he had and that he had touched her “peeki.”
22. Her evidence was not wholly consistent, and I have to ask myself whether I am satisfied so that I am sure as I must be because this is a criminal trial. Notwithstanding the unsatisfactory way in which the mother gave evidence, I can be sure that the Complainant has given a truthful account bearing in mind what I have already indicated about the necessary caution.
23. The defendant himself also gave evidence. Overall, I found him to be a straightforward witness who answered clearly. His evidence reinforced the view I had already taken namely that the relationship between him and the Complainant’s mother was tempestuous.
24. I accept that the mother was prone to a loss of temper, would act impulsively, and that the account which he gave of a furious quarrel concerning his father’s alleged relationship with his partner which descended into serious action on the part of the mother, including in a fit of temper driving her car, with the intention of driving it at this witness is true.
25. That of course is a regrettable way to behave and indicates a lack of self-control. The question I have to address is whether this in anyway affects my view of the veracity of the Complainant’s evidence. I am quite satisfied that the mother weaponised the account her daughter gave to do this witness harm and did so partly out of distress at what she believed to happen to her daughter and partly as a way of wrecking revenge on the man with whom she was estranged.
26. I bear all these matters in mind and have come to the firm conclusion so that I am sure that the Complainant gave evidence which was both truthful and accurate. I am satisfied so that I am sure that on this occasion, the bathing took place at nighttime unlike the usual practice of doing so immediately after school.
27. I find so that I am sure that when the mother went out of the room to pick up a towel from the shack next door the Defendant did come into the room and speak to the Complainant as she said happened where he asked her “Why is it like that?” or words to that effect referring to her vagina.
28. I am further satisfied so that I am sure that she gave accurate and truthful evidence when she was asked, “what did you feel when Misi touched you”, the reply being, “it felt painful.”
29. It seems to me, and I so find that the mother launched the complaint against her then estranged husband partly out of anger and partly out of revenge. That of course means that her evidence must be treated with caution, and I do so but the determinative question I have to ask whether notwithstanding the mother’s motive is, if I am satisfied that what the Complainant said happened did in fact and on truth happen.
    100. FINAL RESULT
30. I am satisfied accordingly there could be no question but that what happened amounted to the indecent assault on the child contrary to section 125 of the Criminal Offences Act and that the Defendant is accordingly found guilty.
31. I further order that nothing which leads to the identity of the complainant must be published and any report of these proceedings must anonymise all parties so that the identity of the Complainant is protected pursuant to s119 of the Criminal Offences Act.
    

HON. MALCOLM BISHOP KC

LORD CHIEF JUSTICE

NUKU’ALOFA

28 February 2025