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

AC 3 of 2022
(CR 202 of 2021)

BETWEEN:

ATTORNEY GENERAL
Applicant/Appellant

-and-

SIOSIFA TANGINOA
Respondent

JUDGMENT OF THE COURT

Court:	Whitten P
      	de Jersey J
      	Harrison J
	Heath J

Counsel:	Ms Sela Aleamotu’a for the Appellant
	Mr Siosifa T. Tu’utafaiva for the Respondent

Hearing:	6 October 2022
Judgment:           10 October 2022

Introduction
1.	The respondent, Siosifa Tanginoa, pleaded not guilty to two charges of serious indecent assault of a 15 year old female.  Following a Judge alone trial before Nui J in the Supreme Court he was acquitted on both counts, described successively as the Mengele tree and the Mango tree incidents.

2.	The Attorney- General submits for determination by this Court a question of law arising from the verdict on Count 1, the Mengele tree incident.  As framed by the Attorney- General, the question is whether it is open to a Court to find that the act giving rise to the serious indecent assault was consensual where the charge was denied on the sole ground that the act did not occur. 

Facts

3.	The Judge summarized his factual findings on  Count 1 as follows in his verdict 

The charge
[1]	The accused (Tanginoa) is charged with two counts of serious indecent assault, namely, that on 3 May 2021 at Ha’ateiho, he indecently assaulted the complainant, a female of 16 years of age, by
	(a)	touching her vagina, and by 
	(b)	putting his penis between her buttocks,
without her consent, contrary to S.124 (1), (2) and (3) of the Criminal Offences Act.

	The evidence
[2]	Only the Crown gave evidence in this trial. The accused chose not to give evidence or to call any witness. He is not obliged to. But he is entitled to question and to test the credibility of the witnesses, including the complainant, by cross-examining them, which he did, via his counsel, Mr. Tu’utafaiva, during this trial.
[3]	The complainant, female, is 16 years old and is the eldest of 5 children of their parents, who have their own home on the outskirt of Ha’ateiho. The father went to Australia, and was still there, for work purposes, and whilst there, he and the mother arranged with the father’s sister and her husband, who also live in Ha’ateiho, that the complainant and her next younger sister, who is 14 years old, go and live with them and their own children, who were younger than the complainant and her sister.
[4]	The reason for that arrangement was so that the complainant and her younger sister would concentrate on their studies. The complainant was in form 5 and the younger sister was in form 3 in college. They moved to and lived with their aunt and her family as arranged, in about December 2020 and they were attending school whilst living there in 2021. The aunt’s husband is the accused in this trial.
[5]	On 3 May 2021, a Monday, the complainant returned from school and went to a tax allotment where her mother and other children were collecting coconuts. She then returned home to her aunt’s, and the accused went in his station-wagon car and brought the coconuts collected by the mother in the car. The complainant helped unload the coconuts from the car, leaving 5 coconuts in the car, as instructed by the accused, to be taken to feed the pigs of the accused which were kept at the mother’s home.
[6]	The complainant wanted to go with the accused so that she could get some things from the mother’s place for her home economics class at school the next day. The aunt told her that she could do that and for her to cut and bring some mangele bark from the tree along the way, so that it could be prepared as medicine for her, the aunt’s, young child.
[7]	The accused was then only wearing a tight pair of shorts and a towel wrapped around her waist and a Tshirt as top. She took the machete and sat in the rear left seat of the car and they left, with the accused driving.
[8]	There were 2 ways to get to the mother’s place where the pigs to be fed were kept; one way was shorter but the longer way had the mangele tree on the side of the road and it was situated in the bush area of Ha’ateiho. They took the longer way and when they got to the tree, the complainant got off with the machete and cut and peeled the bark off it. After a while, the accused got off and went to help the complainant by picking up the pieces of bark on the ground.
[9]	Just then, according to the evidence of the complainant, the towel around her waist fell off, and the accused bent down to pick up a piece of bark lying on the ground near her feet but instead of picking the bark up, he had his thumb sticking up and he brought it up touching her vagina with it but on the outside of her tight short pants. She said that it was not accidental and that he did not apologise for it and that she did not say anything.

4.	It is necessary, in order to give context to the concluding section of this judgment, to recite the Judge’s factual narrative of events relevant to Count 2,  the mango tree incident:

[10]	They then collected the pieces of bark and they left and went to the mother’s home. On the way there, the accused told the complainant to put on trousers when they would get there in case her mother would be suspicious, and she did put on trouser shorts on top of her tight shorts when she got into her mother’s house. Whilst the accused was feeding the pigs, she also got her things for her class at school the next day. She and the accused then left, she sitting in the rear left seat again. It was dusk by then.
[11]	But instead of taking the shorter way home to her aunt’s home, the accused took the same longer way where the mangele tree was instead and when they came to a big mango tree by the road where it was darker, the accused turned and stopped the car beside it on the left side of the road. He said that the car engine was heating up and that it needed water in the radiator.
[12]	He then went around and opened the complainant’s door and pretended to look for something and pushed the complainant to lay back onto the other rear seat with her legs hanging out, and pushed his crotch onto her’s. He then pulled her out of the car by her hands and turned her around so that she was standing facing her seat whilst he pulled both her shorts and tight shorts down and took out his penis which was already hard and inserted it between her bare buttocks.
[13]	But just then, another motor vehicle with its headlights on appeared from the end of the road to the rear of car. The accused said, “That’s enough. Let’s go”. They then dressed quickly and the accused went back and drove whilst the complainant was sitting in the rear left seat again. They left the mango tree before the other vehicle got up to them.
[14]	As they were driving home, the accused told the complainant not to tell anyone what happened in case it would cause a problem.
[15]	However, the complainant told her younger sister that same evening what had happened at the mangele tree and at the mango tree. She told her that she suspected that she was pregnant from what the accused had done to her, and she told her not to tell their mother or anyone what she had told her.
[16]	The complainant herself however told her mother the next day, Tuesday, 4 May 2021. She went straight from school to her mother and told her what the accused had done to her at the mangele tree and at the mango tree. The mother then spoke by telephone straight away with the father in Australia and informed him of what the complainant had told her. The complainant did not go back to the aunt’s and accused’s home.
[17]	The next day, 5 may 2021, the mother and the complainant went to the police and the complainant made her complaint against the accused. The younger sister also returned and lived with the mother that day.
[18]	The next day, 6 May 2021, the accused and his wife (the aunt of the complainant) who was carrying their young child, came to the mother and the accused apologised to her for what he had done to the complainant and cried and asked her to forgive him. The mother told him that it was too late because the complainant had already lodged her complaint against him with the police the day before.

The Judge’s Finding on Count 1

5.	The Judge omitted to include an important part of the complainant’s evidence from para [9] of his narrative of the facts relating to Count 1. In answer to one of his questions during her examination in chief, the complainant said this:
“ I got off where he told me to and I went to get the bark and I felt that someone was behind me and when I stood up there to cut the bark I can feel someone was behind me and when I looked up it was [Mr Tanginoa]. When I was cutting the bark he was right behind me. I cut the bark and tried to move, as I move [Mr Tanginoa] also moved and I kept cutting the bark and moving and [Mr Tanginoa] was also moving. And, as we carried on like that, my towel fell off and when it did his finger swiftly touched my vagina”.

6.	Mr Tanginoa’s counsel cross examined the complainant on her account in careful detail. He confronted her with the direct proposition that “… nothing like that happened” , to which she replied “ What happened was what I talked about”. Counsel inquired whether vaginal touching was by the forefinger or thumb, to which she replied that it was the latter. He then outlined to the complainant a contradictory, exculpatory version of events which she denied, essentially that Mr Tanginoa stood behind her as she alleged but solely for the purpose of enabling her to peel the mangele bark more swiftly. Counsel did not lead or refer to any evidence as a foundation for that contrary proposition. 

7.	The Judge, who questioned the complainant extensively, suggested to her later in her evidence that the touching of her vagina may have been accidental.  The complainant rejected that possibility, which had never been raised by the defence, when agreeing with the Judge’s summary of her evidence as being that Mr Tanginoa intentionally “ ..used his thumb to insert or poke into [my] private part”; and that he did not apologise.

8. 	The Judge identified consent as the sole issue for determination at trial despite Mr Tanginoa’s denial that the act ever occurred and his counsel’s logical decision not to  challenge the complainant’s evidence on the ground that the act was consensual. The Judge correctly recited that the prosecution carried the onus of proving the absence of consent as an element of the charge. He particularized these factors as the foundation for his finding of a reasonable doubt that the complainant consented to the touching:

(1)	The complainant was only wearing a towel wrapped around her waist with only the corner tugged in to the top to keep it on her. This was not “proper wear” for a young lady to wear outside her bedroom or house, let alone in the bush near the Mengele tree;

(2)	The complainant must have known the towel around her waist was coming loose, yet she allowed it to fall off;

(3)	The “proper thing” for a young woman feeling the towel coming loose was “…to hunch back her crotch and bend forward to hide her private area from the person who may be present” but she did not do so

9.	The Judge then concluded: 

[31]	It is therefore clear to me that she wanted the accused to see her in her tight pants, which tight pants revealed every curve of her hips and crotch. To me, that indicated her state of mind which she conveyed to the accused, and I am satisfied that she conveyed to him a willingness that he could admire her body, and even to touch her. And he did, and he did not apologise for it and she did not take offence or react in repulse at having being touched on her vagina.
[32]	Furthermore, the proper and usual thing for the girl or woman who has been deliberately touched on her vagina is for her immediately to assert her anguish at having being so violated. I would have thought that the complainant would have immediately burst out to the accused, “Why did you do that?” or words to that effect, to indicate that she did not want to be so touched, and in order that some apology and respect is obtained from the accused. But she didn’t say anything at all. She in fact showed no indignation or anger or repulse at what the accused had done to her.
[33]	Instead, she just bent down and picked up the towel and re-wrapped it around her waist and carried on picking up the pieces of mangele bark she had cut off from the tree as if nothing had happened and then they left and went to her mother’s place.
[34]	That state of mind she had was confirmed by her action afterwards. Whilst travelling to her mother’s, the accused told her to put on some trousers when she would get there in case her mother would be suspicious, and she did just that. She had no thought whatsoever to tell her mother what the accused had done. She instead did what the accused told her to do instead

Analysis
10.	Our jurisdiction to hear this application derives from section 17D of the Court of Appeal Amendment Act 1999 which provides: 

17D Appeal after acquittals 
(1)	Where a person tried on indictment has been acquitted (whether in respect of the whole or part of the indictment) the Attorney General may, after the conclusion of the trial, submit for determination by the Court of Appeal any question of law arising at or in connection with the trial. 

(2)	The Attorney General shall submit with the question to be determined a statement of the circumstances out of which the question arose and thereafter shall furnish such further statement as the Court of Appeal may require. 

(3)	The Court of Appeal shall hear and determine any question submitted to it under this section. 

(4)	The Court of Appeal may determine a matter under this section in camera or in accordance with sections 24 and 15 of this Act. 

(5) The determinations by the Court of Appeal of the question submitted shall not in any way affect or invalidate any verdict or decision given at the trial.

11.	A justiciable question of law can arise if a primary court makes a finding on a view of the facts which could not reasonably be entertained. An appellate court is entitled to intervene on the principle that the finding reflects a misconception or misunderstanding of the relevant law and that no person acting judicially could have reached it. The principle can be alternatively expressed as applying where there is no evidence to support the finding or the evidence is inconsistent with the determination or the only reasonably available determination is contrary to the one made. In shorthand terms, the principle applies where the decision can properly be characterised as perverse.

12.	The Judge was not bound to reach a verdict on the ground on which the charge was defended; that is, Mr Tanginoa did not commit the indecent act complained of.  It was open to him to find that the act did occur. However, the only possible basis for that factual finding was the Judge’s express acceptance of the complainant’s evidence that the act occurred in the way she described and, in particular, by Mr Tanginoa’s intentional digital touching of her vagina through her tights. There was no alternative or contradictory account or third way, as Ms Aleamotu’a describes it, available to the Judge.

13.	As noted, the Judge correctly directed himself that the Crown was bound to negative the absence of consent beyond a reasonable doubt. The prosecution was required to prove a negative as an essential element of the offence. In view of its centrality to the Judge’s verdicts on both counts, we must emphasise that consent in this criminal context is the act of freely and without coercion communicating a willingness to participate in sexual activity with another person. The element of openly expressed mutuality lies at its core.

14.	The Judge held that the Crown failed to discharge its onus of disproving consent on an inferential finding that the complainant affirmatively invited Mr Tangiloa to digitally touch her vagina by the nature of her apparel and its loose state. This proposition was never suggested by defence counsel in cross examination of the complainant or by the Judge himself. The complainant’s unchallenged evidence was that she was facing away from Mr Tanginoa throughout the period immediately leading up to the act. There was no evidence of any preceding interaction which might have suggested that the complainant was willing to agree to a form of sexual activity with Mr Tanginoa.  She did not express or communicate a desire for intimacy.  To the contrary, the evidence was that he remained to her rear, deliberately blocking her attempts to move away from him, and that the intentional touching occurred without any prior warning whatsoever to her.

15.	The Judge had no possible evidential basis for drawing his decisive inference that the complainant’s attire or its loose state conveyed a willingness to expose herself to Mr Tanginoa’s admiration and an invitation for him to touch her vagina.  He plainly misunderstood or misapplied the principle of consent in criminal law. His line of reasoning, and its associated opinion on the steps the complainant should have taken to conceal parts of her body, have no place in a criminal justice system which provides that liability on charges of serious sexual offending is to be determined according to an impartial inquiry into whether the elements of a charge are proved beyond reasonable doubt. A judicial officer is required to put aside any subjective views or moral speculation about the appropriate nature of female dress. The state of a young woman’s attire has no relevance whatsoever  to issues of consent.  Once the Judge accepted that the act occurred, it could only have been on the premise, which he recited, that he accepted the truth of the complainant’s challenged account of the facts. In the absence of any probative evidence that she affirmatively communicated her consent to Mr Tanginoa to commit a sexual act with her, the only verdict reasonably available to the Judge on Count 1 was one of guilt. The Judge’s conclusion on consent was not only perverse in the sense that it was not reasonably available on the evidence, it was also unjudicial. 

16.	We have earlier included the Judge’s summary of the events relating to Count 2, the Mango tree incident. Its essence was that Mr Tanginoa rubbed his penis on the complainant’s buttocks shortly after the Mengele tree incident. The defence was advanced on the different ground from Count 1. It was that the act did occur but was consensual, which the Judge accepted in acquitting Mr Tanginoa. There is an unusual dissonance in the defences given that the acts allegedly occurred within a short time span. We assume that the Attorney- General did not apply to this Court for a determination on the Count 2 acquittal because the Judge’s finding was based on a rejection of the complainant’s challenged credibility on consent, the occurrence of the act not being in issue. 

17. 	The Judge’s finding on Count 2 was founded on an inference that the complainant conveyed consent to Mr Tanginoa to put his penis between her buttocks because “…she stood there quietly and allowed [ Mr Tanginoa] to pull down her pants so that her crotch and private part and her buttocks were completely bare”. He found that she did not struggle or protest. The Judge dismissed her evidence that she did say or do anything because she felt afraid and did not call for help because there was nobody nearby.

18. 	The Judge did not identify any evidence that the complainant said or did anything which might have affirmatively conveyed to Mr Tanginoa that she was consenting to his activity. As noted, the Judge relied primarily on her silence, and lack of overt resistance. Those factors could not possibly have equated with a communication of consent, of a positive willingness to engage in sexual activity. All the relevant circumstances pointed overwhelmingly to the contrary.  The complainant was a teenaged girl alone with a much older man who had immediately beforehand attempted by a pretence to force himself upon her in the back seat of the vehicle before pulling her from the vehicle and forcibly removed her clothing. They were in an isolated rural area as darkness approached where she feared being attacked by wild dogs nearby if she tried to escape. Moreover, there was no contradictory evidence available to cast doubt on her account. Nor could it ever be dismissed as inherently implausible or internally inconsistent.  

19. 	In our judgment the Judge’s verdict on Count 2 was also perverse.  It was another exercise in determination of criminal liability according to a subjective standard of female morality. The acquittal would have also justified an application by the Attorney- General for a s 17 D determination. Both verdicts unjustly impugned the complainant’s credibility and character. While our jurisdiction does not extend to invalidating the verdicts, we trust the Attorney- General ensures that the terms of this judgment are communicated to the complainant, her family and the officer in charge of the prosecution and that it goes some way towards vindicating her decision to complain to the Police and submit to a defended trial.

Determination

20. 	We grant the Attorney- General’s application and determine that it was not open to the trial Judge to acquit the respondent on Count 1 of the indictment by finding that the complainant consented to the respondent’s commission of the serious indecent act committed upon her.

Whitten P
De Jersey J
Harrison J
Heath J