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R v Y.G [2024] TOSC 92; CR 159 of 2024 (18 November 2024)

BETWEEN:

R E X
-Prosecution

AND:

Y.G
-Accused

JUDGEMENT

BEFORE: LORD CHIEF JUSTICE MALCOLM BISHOP KC

Appearances: Mrs E Lui for the Crown Prosecution
Mrs S Fonua for the Defendant
Date: 18 November 2024

1. THE CHARGE

1. On 27 February 2024, the Defendant was arraigned where he pleaded not guilty to the following:
   1. Count 1: Serious Indecent Assault contrary to section 124(1), (2) and (3) of the Criminal Offences Act.
   2. Count 2: Serious Indecent Assault contrary to section 124(1), (2) and (3) of the Criminal Offences Act.
2. On 13 November 2024, trial for this proceeding commenced. I heard closing submissions from the Prosecution and counsel for the Defendant this morning. I now proceed to Judgement of this matter.
   

2. THE ELEMENTS OF THE OFFENCE

3. Before I can convict the Defendant on the offences charged, I must be satisfied beyond a reasonable doubt that
   1. Count 1 – On or about Feburary to July at ‘Eua, the Accused did, Indecently Assault (by fondling and sucking of her breasts), the Victim, Without her consent
   2. Count 2 – On or about an unknown date in July at Ma’ufanga, the Accused did, Indecently Assault (by fondling her breasts), the Victim, Without her consent
      

100. THE LAW

4. Pursuant to the Criminal Offences Act, s124 Indecent Assault (3) The offence of serious indecent assault — (a) is punishable by a term of imprisonment for any period not exceeding 5 years;
   

4. DISCUSSION

5. The issue in this case is what happened between the complainant and the defendant on two occasions earlier this year. The complainant says that while she was at home and asleep, the defendant came into her room, got into the bed which they shared removed her bra, fondled her breasts and sucked them, on the second occasion the Defendant fondled her breasts.
6. The defendant denies anything of the sort happened and as I understand his case, these allegations were fabricated because he tried to stop the complainant behaving in a wayward manner and in particular to terminate her association with her boyfriend.
7. The complainant I interpose is 16 years old now and is pregnant with the boyfriend with whom she is living. The Defendant is her father, at the time of the alleged incidents she was 15 years old.
8. This is a criminal trial and accordingly the duty of establishing the allegations upon the prosecution and those allegations must be proved to the criminal standard. That is to say I must be satisfied so that I am sure, putting it another way, beyond reasonable doubt that the allegations made have been proved.
9. I remind myself that I must treat each count separately and give individual consideration to each. I also remind myself that the complainant is now16 years old, pregnant with by her boyfriend who is about 19 and that during the time in question she was leading a troubled and unsettled life.
10. I further remind myself that the family in question was a dysfunctional one and that the mother and the father were estranged and that allegations had been made that the father had used violence to his wife which resulted in her obtaining a protection order. I further remind myself that there is no corroboration or other supporting evidence on the allegations because of their very nature and the relationship between the parties. As a result, I must treat the allegations with particular caution.
11. The Defendant is charged on two counts of serious indecent assault contrary to s124(1), (2) and (3) of the Criminal Offences Act. It is submitted by the Crown and not disputed by the Defence that the indecent assault is serious because of the age and the relationship between the complainant and the alleged perpetrator, her father.
12. An indecent assault is an assault in circumstances of indecency. An assault is an unwanted touching which the assaulter knows it is unwanted, an indecent assault is an unwanted touching or other physical contact in circumstances of indecency.
13. I have no doubt to fondle and suck breasts of a young girl against the consent of the person fondled and sucked is an indecent assault and I so direct myself.
14. Essentially the issue in this case is, have the prosecution established beyond reasonable doubt that the allegations made by the complainant are true? I bear in mind of course that there is no corroborative evidence as not uncommon in cases of this kind, this means that I must approach the evidence of the complainant with particular care, and it behoves me to remind myself as I do, that a lying witness may still be a convincing one.
15. I also bear in mind the family difficulties which may or may not provide a motive for the complainant not speaking truthfully about what happened. All these matters I bear very much in mind as I now turn in more detail to summarise the evidence.
16. The Complainant was born on the 23 February 2008 and so in the summer of this year when these allegations arose, she was 15 years old, and the Defendant is her father. During April to May she lived with the Defendant in the island of ‘Eua.
17. It appears the household there comprised of the defendant and the complainant and no one else. On one occasion during the summer, the complainant stated that the Defendant returned from a session of drinking Kava and returned to the property while the complainant was asleep. They shared the same bed.
18. She woke up to find the defendant “massaging both my breasts” and she went on, he then “ate” my breasts. I was told that the word ate in Tongan is equivalent to sucking in English. They complainant then continued, “He then pulled down my shirt and slept next to me.”
19. Sometime later the complainant said that she left the house in ‘Eua with a relative and she stayed at Talasiu in Tongatapu. The second time she came from ‘Eua, she stayed at Ma’ufanga with her brother and his wife.
20. The Defendant who was apparently living at the same property at that stage came home drunk having consumed kava and came to sleep next to the complainant when he again “fondled my breasts” she sat up, but he replied in an angry tone, “Why are you like that?”
21. She said that she kept quiet because she was afraid, and I accept that explanation. This took place in the living room where apparently there was a bed, it’s a small house and the point made on behalf of the defence that her cousin and wife were in the adjoining room and there is no suggestion that they were either alerted to what was happening or indeed aware of it.
22. The inference I am invited to draw is that they were bound to have become aware of what was taking place if in fact that is what happened. I reject that invitation, the complainant says she kept quiet, and I conclude that in no way causes me to doubt her credibility. As a result of what happened the complainant said that she left the property and went to Talasiu the next day.
23. The Defendant asked her to return on the following Sunday, but she refused, and she rejected his attempt to become friendly and rejected his suggestion that “if I loved him, I should deny the story.” It was put to her in cross examination that the reason for these allegations was her annoyance because of the Defendant’s insistence that she return to school and give up her relationship with her boyfriend.
24. It is asserted that the complainant asked the Defendant for money because of her financial stringent circumstances and that he in fact it acceded to her request.
25. Again, she accepted that on one occasion when they met, she threw her arms around him and hugged him. I accept that this probably did happen, but it is not unusual for victims of abuse to show affection to the abuser, particularly because of the familiar relationship. That does not in my view in anyway cast doubt on the complainant’s credibility. I remind myself she was 15 years old, and the Defendant was her father.
26. She was further cross examined about some family matters involving in the main her parents’ fraught relationship and I have to consider whether that casts doubt on her reliability as a witness.
27. It was further put to the complainant that she did not confide about what happened to her friend or close relative until later. She accepted that was the case, she said she did not do that out of embarrassment and again I accept that was indeed her reason.
28. In short, the Defendant claims that these allegations were made up because of a disagreement between himself and the complainant about how she should conduct her life, and also because of jealousy of his estranged wife from his current relationship with another women.
29. He wanted her to return to school and to give up the inappropriate relationship she was having with her boyfriend and others or was engineered by his estranged wife who was jealous of his new partner.
30. On the other hand, the complainant says that what she gave evidence about did in fact happen. I heard from the Defendant and other witnesses. The defendant is 52 years old and has eight children of which the complainant is the youngest. She is now 16 and had just turned 15 when the matter is about which I am concerned allegedly occurred.
31. The Defendant’s marriage was troubled, it is said to be characterised by violence and disharmony and a protection order was obtained by his estranged wife. In the early part of 2023, the complainant came to live with the Defendant at ‘Eua.
32. He claims that this was at the mother’s request so the complainant could be disciplined and go to school but he says she was unwilling to do and he very sensibly in my view enrolled the complainant into a technical school which is a vocational training centre rather than to pursue an academic career.
33. Whilst living with the Defendant the complainant and he shared a bed. I do not consider that is in any way sinister, and indeed such sleeping arrangements are not uncommon in the Kingdom as submitted by the Defendant’s counsel. It was whilst sleeping together in this way that the complainant alleges that the Defendant returned home from drinking kava and while she was asleep lifted her bra and fondled her breasts and then sucked them on the first occasion and fondled them on the second occasion.
34. This is completely denied by the Defendant and the false allegation was made because he disapproved of her relationship with a young man with whom eventually she became pregnant.
35. Following the obtaining of a protection order in about April of last year the Defendant was compelled to leave his property and move to Tongatapu to look for work. Whilst there, the complainant and the Defendant shared a small house with his son and his son’s wife.
36. It is alleged in Count 2 that again the defendant fondled the complainant’s breast again while she was asleep, she woke up and she says was rigid and he said to her “why are you like that”, in an angry tone.
37. The Defendant points out that the second alleged assault said to have occurred when they were both in a small house shared with his son and his wife and others.
38. The son spent the night or most of it sitting on his bed playing on his mobile phone and the inference I am invited to draw is that had anything of the sort taken place, he would’ve been bound to see it and I heard from him that he saw nothing of the kind. I do not think that evidence takes the matter very much further. What the defendant is said to have done would not be a very noisy activity.
39. It was according to the evidence of short duration and did not result in any angry exchanges therefore it could well have happened while others in the house were ignorant of what was taking place.
40. Now a good deal of the evidence dealt with what with the troubled nature of the complainant who I remind myself is now 16. She spent time with the Defendant after these incidents and indeed on some occasions ran up to him hugged him, kissed him and showed signs of affection. On other occasions sought him about and, notwithstanding that he was on bail with a condition not to contact her, kept approaching him and indicating her affection.
41. I entirely except that happened but again that is not in any way inconsistent with the truth or otherwise all of what she says occurred, there is now growing evidence that victims of abuse do also have affectionate relationships with their abuser and in the particular case I am concerned with, we have here a child of a broken marriage where apparently violence occurred between the parent and is very likely to have mixed emotions towards the abuser.
42. What I have to decide is whether it is possibly the case that because of the estranged relationship between the mother and father, the mother prompted the complainant to make false allegations about what happened in revenge for her anger at the Defendant’s new relationship with a girlfriend who I heard giving evidence and who’s evidence I found to be given in a straightforward manner.
43. So the issue here is this bearing in mind the troubled background of the complainant, her youth (16) years, the fact that she is now pregnant by her boyfriend and is displaying signs of emotional upset can I be satisfied so that I am sure that the allegations did in fact occur?
44. I have listened and observed the Complainant very carefully. I of course remind myself that demeanour is not a definitive clue to veracity and that a liar can be a convincing one, but it is my firm conclusion that the complainant was telling the truth.
45. She did not exaggerate, she accepted that she had shown affection to the complainant her father. She did not excuse her behaviour about not going to school, about absconding and going to live with her boyfriend, nor was her evidence in my judgement animated by anything other than a resigned acceptance that she must tell the truth. This is what in my view she did.
46. It follows that notwithstanding the matters I have already adverted to which I do take it into consideration. I am satisfied so that I am sure or putting it another way beyond reasonable doubt that the two offences set out in the two counts before me did in fact occur.
47. I do not place much reliance on the discrepancy and vagueness about the dates, they ought to be expected in a situation of this kind dealing with a 15-year-old at the time on the one hand and the defendant and his family on the other.
48. My conclusions are in no way weakened by the evidence given first the Defendant’s current partner. She gave her evidence with balance and in an attempt to assist.
49. In the main I accept that the evidence she gave about the complaint’s affection for her father was genuine but as I’ve already explained that does not in any way prevent me from coming to the conclusion I have already mentioned.
50. Similarly, the evidence of the complainant’s brother I again accept that he did not see anything happening but for the reasons I’ve already given I do not think that that in anyway weakens my conclusions.
    
51. RESULT
52. It follows therefore that I find the defendant guilty of both counts of this indictment in the following charges:
    1. Count 1: Serious Indecent Assault contrary to section 124(1), (2) and (3) of the Criminal Offences Act.
    2. Count 2: Serious Indecent Assault contrary to section 124(1), (2) and (3) of the Criminal Offences Act.
53. 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.
    

NUKU’ALOFA HON. MALCOLM BISHOP KC
18 November 2024 LORD CHIEF JUSTICE