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R v V.S (a pseudonym) [2025] TOSC 12; CR 118 of 2024 (4 March 2025)

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

CR 118 of 2024

REX
-V-
V. S (a pseudonym)

JUDGEMENT

BEFORE: HON. LORD CHIEF JUSTICE BISHOP KC

Appearances: Mrs S ‘Eliesa for the Crown Prosecution
Mr S ‘Etika for the Defendant
Trial: 3 – 4 March 2025
Judgement: 4 March 2025

1. THE CHARGES

1. The defendant was originally indicted on an indictment containing four counts, three of carnal knowledge with a child and one of indecent assault. However, during the course of the prosecution case, the indictment was amended today by the deletion of count 2, 3 and 4 and so that the defendant now faces a single count of carnal knowledge on a date unknown between November 2023 in March 2024.
2. As a result, the Defendant was rearraigned on Count 1 with the amended particulars being between November 2023 to March 2024 in which he pleaded not guilty.
   2. DISCUSSION
3. This is a criminal trial, and I must therefore be satisfied so that I am sure or putting it another way beyond reasonable doubt that the case against this Defendant has been proved.
4. The Complainant is now 11 but at the time of the alleged offence was 10 years old. I conducted a preliminary inquiry to ascertain whether or not she could give sworn evidence. I concluded that she did understand the importance of telling the truth and was able to give rational answers and accordingly it was appropriate that her evidence should be on oath.
5. This was accepted during his helpful closing submission by counsel for the Defendant who has conducted this case with admirable skill. Although the evidence is given on oath and therefore no corroboration is necessary, I still caution myself that I must approach it with particular care bearing in mind the age of the child, the fact that because of the unhappy relationship between the child’s mother’s family and the defendant and the bad feeling which undoubtedly arose by virtue of the attempt to take the Complainant on a Sunday in March that evidence may have been contaminated or at least influenced.
6. I take all these matters into consideration but the determinative question here is can the Complainant’s evidence be relied on to the criminal standard as accurate and truthful.
7. I found the Complainant to be a pleasant girl who did her best to answer the questions, but it was obviously the case that she began hesitatingly and nervously. This resulted in long pauses and a marked reluctance to answer the questions posed.
8. However, as the evidence proceeded, she gained confidence and was eventually able to give a detailed account of the matter with which I am concerned. This is what happened on a Sunday between November 2023 and March 2024.
9. Some background is necessary. The mother has four children. It seems the two of them the Complainant and her younger brother lived with her and the Defendant at various addresses.
10. In November of 2023, the mother went to Australia on a seasonal fruit picking visa where she was able to speak to her daughter she said every other week, but I am satisfied that communication was not frequent, no doubt because of the financial constraints under which the mother was operating and also perhaps because the work she was undertaking was onerous and did not permit much leisure time.
11. Be that as it may, I have heard that during the absence of the mother there were occasions when the Defendant physically chastised the Complainant when she was disobedient. I have to bear in mind, and I do that for cultural reasons such behaviour is not regarded as unreasonable here in Tonga, and I do not in any way hold that against the Defendant when considering the determinative questions I must address.
12. The Complainant gave evidence of the Defendant requiring her on a number of occasions to take off her clothing and although that may or may not be helpful in considering whether or not the allegations of indecent assault and the allegations of carnal knowledge in counts 2 and 3 are made out, it is not relevant to the serious issue which I have to decide namely did the defendant have sexual intercourse in other words carnal knowledge with this 10-year old as alleged in Count 1.
13. She told me on oath there was an occasion when she and her younger brother were watching something on their mobile phone, the defendant told her to come over to his bed and to await her younger brother going to sleep.
14. When he did so the Defendant told the Complainant to take off her clothes, she did so and he took off his trousers and he then lay on top of her and told her to lie still. He then told her to place her legs on top of his shoulders after a while something emerged from the Defendant’s private parts, which she described as “white stuff” and which I infer was semen.
15. She says that on the Sunday morning, “he put his male private parts into my female private parts.” I am unsure whether the evidence about the emergence of semen and the insertion of his penis into her vagina took place on the same or different days, but it seems to me that, is not essential to the veracity of the Complainant’s evidence.
16. She further stated that following the occasion in which the Defendant inserted his male private parts into her female private parts he told her to stand up and wipe herself and put on her trousers. She said that as a result she had pain and demonstrated the pain in her groin area. That is the essential event in this case, the rest of the evidence was not particularly helpful, apart from the medical evidence, which was not decisive.
17. The mother gave evidence about going to Australia and her admonition to her daughter that you should tell the truth. I also heard from the Complainant’s Aunt, she is 27 years of age and she gave evidence of a rather disagreeable incident on the Sunday of going to the Defendant’s house and asking to take the Complainant out but that was refused in acrimonious circumstances and it ended up with the aunt, holding onto the Complainant’s hand and trying to get her into her into the car in response to her request for help.
18. The reason why she said she wanted help was not made known and I cannot find in a criminal trial that was in some way an indication of the sexual misconduct which had allegedly occurred.
19. The Complainant was taken to a police station later and eventually was examined by an experienced gynaecologist and obstetrician whose evidence was that the hymen was not intact. She explained that it was that she noticed scarring on the hymen and therefore it had begun to heal or was completely healed but what this told her was that there had been penetration of some sort, penile, digital or some other form of penetration, she could not say.
20. She also gave evidence that swabs were taken but no traces of semen were found but again she said that was because semen generally speaking would not be present after about 24 to 48 hours. The importance of this evidence is that there was some evidence that the hymen had been penetrated in the recent but not immediate past.
21. I am entitled and I do take that into consideration in considering whether that supports what the Complainant said happened on the Sunday and I find that it did. Although collaboration is not in law necessary here, the fact that corroborative evidence has been established does lend support to the Complainant’s account.
22. Furthermore, no direct evidence was given that the penetration was penile in nature. I am entitled to take into account, and I do so, first that what the Complainant said occurred; and second, there has been no suggestion that anyone else was the perpetrator. The Complainant was living in a remote property in the bush area and the only occupants were the Complainant, her younger brother and the Defendant.
    100. FINAL RESULT
23. I make clear that my findings are solely on the evidence of what happened on the Sunday, and I put out of mind the evidence which I have heard which could have been relevant had the other counts proceeded to a conclusion.
24. For those reasons, I have no doubt that there was penal penetration by the Defendant of this 10-year-old girl and accordingly the case is proved.
25. For Count 1 of Carnal Knowledge of a Child, I hereby find the Defendant guilty of the charge.
26. I further order that nothing in these proceedings may be be published in this Kingdom or broadcasted that may lead to the identity of the Complainant pursuant to section 119 of the Criminal Offences Act.
    

HON. MALCOLM BISHOP KC

LORD CHIEF JUSTICE

NUKU’ALOFA

4 March 2025