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R v T.D (a pseudonym) [2025] TOSC 62; CR 88 of 2025 (21 July 2025)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY
CR 88 of 2025

BETWEEN:
REX
-Prosecution

AND
T. D (a pseudonym)
-Accused

JUDGEMENT

BEFORE: HON. LORD CHIEF JUSTICE BISHOP KC

Appearances: Mrs E Lui & Ms M Lenati for the Crown
Mr S Fili for the Defendant
Trial: 16 July 2025 – 18 July 2025
Date: 21 July 2025

1. THE CHARGES

1. The Defendant was arraigned on 23 June 2025, where he pleaded not guilty to the following charges:
   1. Count 1: Serious Indecent Assault (fondled breasts of Complainant 2), contrary to section 124(1), (3) and (5) of the Criminal Offences Act
   2. Count 2: Serious Indecent Assault (fondled breasts of Complainant 3), contrary to section 124(1), (3) and (5) of the Criminal Offences Act
   100. Count 3: Serious Indecent Assault (touched the vagina and fondled the breasts of Complainant 1), contrary to section 124(1), (3) and (5) of the Criminal Offences Act
   4. Count 4: Common Assault (hit buttocks of Complainant 1 with your hand), contrary to section 112(a) of the Criminal Offences Act
2. I heard closing submissions from both parties this morning and I now proceed to Judgement.
   
   2. BACKGROUND
3. Setting the scene, these events allegedly happened at school in here Tonga and more particularly in the pig shed of the said school and either in the stockroom or nearby.
4. As I have already indicated the alleged Complainants are young ladies who are pupils at the school they are all in their late teens or early 20s and the Defendant is one of their tutors.
5. His job was to oversee the pig pens. He is also a probationary minister of the Free Wesleyan Church, the proprietor of the school and as such has pastoral responsibilities in relation to the pupils.
   
   100. APPLICABLE LAW
6. The Crown must prove to the criminal standard in other words so that I am sure that is, beyond reasonable doubt that the Defendant first assaulted the Complainants in question and second that he did so in circumstances of indecency.
7. I hold that to fondle the breasts of a teenager or a girl in her early 20s without her consent is unambiguously an indecent assault.
8. I further hold that to touch the vagina of such a female without her consent is also unambiguously an indecent assault.
9. The question is, did the Defendant do any of those of those acts? I hold that an assault is any conduct by which a Defendant intentionally or recklessly causes a victim to apprehend immediate and unlawful personal violence.
10. Personal violence is not confined to bodily injury, a mere touching without consent is in law an assault nor is hostility in the sense of an animus at the victim necessary to be established provided what happened was done by the alleged perpetrator intentionally or recklessly done against the victim without consent.
11. I repeat the decisive question here is whether the Defendant committed the acts complained of and whether he did so intentionally or recklessly.
12. Count 4 is an allegation of common assault, I hold that what is necessary to be established is that the Defendant did the act complained of that is, hitting the alleged victim’s buttocks and did so intentionally knowing that she did not consent or being reckless as whether she did so or not. It is at the lower end of culpability.
    
    4. THE EVIDENCE
13. I have heard a lot of evidence about the daily routine at the school which it is not necessary to recite in full, briefly the pupils had a theoretical and practical training. The practical training involved attending to certain duties or chores.
    

1. Complainant 1

14. One of these was cleaning out the pig shed. This was done it seems by rotation. She gave evidence in relation to Counts 3 and 4.
15. She frankly admitted that she had been in trouble with the school authorities because she had been rather disruptive or perhaps more accurately more independent than the school authorities thought appropriate.
16. I was told that on one occasion she went missing during the evening and was found in another part of the school with her boyfriend.
17. I found Complainant 1 to be an engaging, frank and truthful witness. She did not seek to hide her shortcomings indeed she made a clean breast of them with commendable frankness. She said that when she was working at the pig shed, she was in the stockroom as was the Defendant and he began to question her about her attire he asked her what she was wearing and she responded “tights”, he kept according to her asking the same question and “he kept trying to pull up my skirt.”
18. She for her part responded by trying to hold her skirt down while he was trying to pull it up and touched her vagina over her tights when her skirt was up because of his upward gesture. He then fondled her left breast.
19. She said she did not scream for help because she was scared. Later whilst feeding the pigs she bent down, and she felt a slap on her buttocks or as she put it, “on her bum.” She describes the slap as a big slap but later said it was not particularly hard though she did feel it.
20. Later she went back to her boarding house showered and stayed in her room she spoke to her boarding house tutor and began to cry and told her what had happened then she spoke to the Principal that evening after devotions but had difficulty in openly explaining what happened. The next day she went to the home of the head tutor and told him more fully what she said had taken place.
21. A number of alleged inconsistencies between her statement to the police which I have not seen, and her evidence was put to her but none of them are of sufficient importance to undermine the credibility of the witness in question if I find that she is telling the truth.
22. One matter explored at some length was text messages with another girl who was a former student at the school, the purpose of which was that this Complainant 1 was seeking to persuade this former student to make allegations of a similar nature against the Defendant which that recipient denied.
23. I have not heard from that person, nor has her messages been placed in an admissible form before me, I cannot see how that assists the defence in any way since whether or not that former student had been assaulted, does not impact on the matters for consideration here.
24. My conclusion accordingly is that this witness is telling the truth and that the incident she describes did in fact happen.
25. I heard from three other young ladies at the at the school to similar effect and I will deal with their evidence in a moment but first I must consider whether there is any possibility here that these three put their heads together to concoct a lying account against the Defendant.
    

2. Complainant 1’s Friend

26. I heard from another pupil a friend of the Complainant 1, she was also working in or near the pig shed and saw Complainant 1 coming out of the stockroom followed by the Defendant.
27. Complainant 1 explained what had happened to her on the way back to the boarding house crying and said the Defendant had fondled her breasts and touched her vagina. This conversation took place while they were walking back to the school.
28. She spoke to a tutor and with this witness’s encouragement a few days later went to the Principal. In fact, this witness said that she was so concerned about what had happened to her friend that at the insistence of her parents she changed her school.
29. It was put to her fairly and squarely that she and Complainant 1 had been plotting to fabricate evidence, she denied this, and I can think of no reason why this pupil who had not herself been the subject of an assault should manufacture lies in the way suggested and I find her evidence both truthful and reliable.
30. Other pupils from the school gave evidence but I do not think that they add anything to that of the Complainants nor did I consider that the evidence of the Principal assisted in any way. He simply told me of the report which had been made to him and the steps he subsequently took in response.
    

3. Complainant 2

31. Complainant 2 deals with Count 1. She described the Defendant as a father figure and said, “I went to him if I needed anything,” The Defendant she said was always willing to lend a helping hand and to deal with matters at the school. She had been away from school because of a stomach complaint and when he saw her, he greeted her with a hug and kiss which in accordance with Tongan custom to which I draw no adverse inference.
32. The reason for this greeting was that this witness had been unwell with stomach problems for some time and he asked about her health she explained that she was very well now.
33. According to the witness, the Defendant touched her stomach and pressed that area saying yes you are better now you are no longer sick, she pushed his hand away and he then fondled her right and then her left breast until she pushed him off.
34. The Defendant then told her to make her breast bigger in which she replied with some spirit that, “my breasts are proportionate to my age” or used words to that effect. She said she did not tell anybody about this because and I quote “that's my nature.”
35. She was questioned by the Principal at a later date and it was put to her it seemed in leading form if it was true what someone had done to her and she said, “yes, it is true.” She said that as a result of what Complainant 1 had disclosed, she felt brave enough to explain first of all to her roommate and later to the Principal.
36. Again, I can see no reason why this rather quiet and introverted young lady should make up these stories about somebody with whom she obviously had a close relationship with, and I accept that her evidence is both truthful and accurate.
    

4. Complainant 3

37. Complainant 3 deals with Count 2. Again, an allegation that the Defendant fondled her breast without her consent. She was assigned to the pig shed together with Complainant 2 and a foreign student.
38. She was cleaning the pig shed when the Defendant asked her to clean the stockroom because an inspection was expected whilst there, she felt someone touch her stomach with a right hand stroking it, she turned around and it was the Defendant. She told him to remove his hand, but he refused he then fondled her left breast and when she attempted to move away, he continued to fondle her breasts while she was still struggling to get away.
39. At this stage another male pupil came into the scene looking for a bottle of gasoline. The stockroom door was slightly open but by then the Defendant had stopped fondling the Complainants breasts and held her by her ear as if rubbing it or twisting it.
40. It is suggested that this was done to allay any suspicion that this male pupil might have thought that something untoward was going on and that this was playful banter. She said that when the male pupil came, she forced a smile because she felt embarrassed in case he might spread rumors that she was involved in some sort of ‘hanky panky’ with the Defendant.
41. She said that she told all the students because they were laughing because the male pupil had put about that he saw the Defendant touching her ear. She also spoke to the Principal when the gossip made its rounds in the school.
42. She was asked why she had not reported it to the Police, and she said because I was looking at him as a man and said words to the effect of, “he always assisted in school matters.”
43. Again, I can see no reason why this witness would lie and less concoct a lie with the others. I believe what she said it was truthful in my view and accurate.
    

5. Defendant

44. The Defendant gave evidence and of course I treated his evidence with considerable care I acknowledge that he is a man of very good character, a probationary minister at the Free Wesleyan Church and it follows, and I accept that if what is alleged happened, it was out of character.
45. He was asked about the pupils who have given evidence, and he described Complainant 1 as a very problematic pupil, she had been the choir conductor but was demoted because of the incident involving the boyfriend. He also delt with the allegations in Count 3 which he says took place on the 5 August 2024.
46. He may well be correct about that but in my view the dates here are not very relevant at this stage. He said he told Complainant 1 who was working with Complainant 1’s friend and another student to go to the stockroom and to get an empty sack then he passed the sack to Complainant 1’s friend outside the door and he says he told Complainant 1 off about her clothes.
47. He said that he did not consider her clothing to be appropriate for working in the pig shed, apparently her skirt was too short and was transparent. He told her to come tomorrow with a long skirt and short pants or short pants with a tupenu outside saying “you are a lady and should be more modest” or used similar words.
48. He said he told her to come outside, that is to say outside the pig shed, and told the others about wearing appropriate clothes. On this occasion, he told those working at the scene to take a sack and fill it with kumala leaves from the plantation to be to be placed into a lorry so that it can be brought over to feed the pigs then they, the students all walked off laughing.
49. They returned just before dinner time and he in effect excused them from further chores and told them that he would feed the pigs and for them to all go to dinner before they are late and receive detention.
50. He denied fondling the Complainant 1’s breasts or touching her vagina, he says there was a distance between each of them.
51. He described Complainant 2 in Count 1 as a nice and obedient girl. He first encountered her when the Principal had instructed him to make arrangements to sell a cow he told the girl she was with Complainant 1 to go and get a hammer and that is why she did this. He said that he regarded Complainant 2 as one of his children and then on meeting she ran towards him and embraced him. Again, he denied that he had touched her stomach or fondled her breasts.
    
    5. FABRICATION OF THE COMPLAINT AGAINST THE DEFENDANT
52. In my view the there is no evidence that these three Complainants came together to concoct or fabricate such allegations against the Defendant.
53. None of them expressed hostility to the Defendant in fact Complainants 2 and 3 were complimentary about his devotion to duty, his kindness and approachability and although Complainant 1 was not questioned about this aspect she demonstrated no animus to the Defendant.
54. The Defense has not been able to suggest any convincing motive for these three ladies telling blatant lies against their respected teacher. Of course, I remind myself that it is not for them to establish motive nevertheless looking at the matter through the lens of a criminal trial, I am quite satisfied that no such plan has existed and that each of them were giving truthful evidence independently of the other.
    
    6. DISCUSSION
55. In this case I must decide always bearing in mind the criminal standard of proof so that I am sure that these three complainants were truthful and accurate or whether their evidence can be doubted in any way.
56. Having observed them giving evidence although I remind myself that convincing witness may also be a lying one, I am entirely satisfied that what they say happened did in fact take place.
57. Why should three decent young ladies give evidence about someone held in good repute at the school and particularly by them? Is it conceivable that these three would invent what is to all intents and purposes an identical story about the touching of the breasts and about lifting up the skirt with the reason given being inappropriate dress? a put-up job as it were why?
58. What possible reason could there be? Remembering that it is not for the Defense to prove their case but for the Prosecution to satisfy me so that I am sure, putting it another way beyond reasonable doubt. I find that Counts 1, 2 and 3 has been satisfied to me to the criminal standard.
59. As to Count 4 this is a less serious offence slapping on hitting the buttocks of someone bending down, I accept, on the authorities it is technically an assault but not a particularly serious one although I convict the Defendant of that count, I make it plain that its lack of seriousness should be reflected in any sentence.
    
    7. FINAL RESULT
60. For Counts 1 to 3 of Serious Indecent Assault, contrary to section 124(1), (3) and (5) of the Criminal Offences Act, I find the Defendant guilty.
61. For Count 4 of Common Assault, contrary to section 112 of the Criminal Offences Act, I find the Defendant guilty.
62. I further order that nothing in these proceedings that shall reveal the reveal the identities of the Complainants shall be published or broadcasted anywhere in the Kingdom pursuant to section 119 of the Criminal Offences Act.
63. That is the verdict of the court.