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Fehoko v R [2025] TOCA 16; AC 27 of 2024 (16 May 2025)

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

AC 27 of 2024
[CR 94 of 2024]

BETWEEN
KULI FEHOKO
Appellant

AND
REX
Respondent

Hearing
6 May 2025

Court:
Randerson, Harrison and Morrison JJ

Counsel
Alyssa Kafoa for the Appellant
‘Elisiva Lui for the Respondent

Judgment
16 May 2025

JUDGMENT OF THE COURT

Background

[1] On 30 August 2024, the appellant was convicted by Acting Justice Langi (sitting without a jury) after a trial on two counts:
(a) count 1: serious housebreaking, contrary to s 173(1)(b) and (5) of the Criminal Offences Act; and
(b) count 2: serious indecent assault, contrary to s 124(1) and (3) of the Criminal Offences Act.

• [2] The offences arise out of an incident that occurred on 1 January 2024. In summary, the Crown case was that the appellant unlawfully entered a house where the complainant was staying, and indecently assaulted the complainant without her consent. We will deal with the events in more detail shortly.
• [3] The appellant seeks to challenge the conviction on Count 2 only. The appeal on Count 2 has been abandoned.
• [4] The appeal is based on a number of grounds, contending that the the verdict was unreasonable because the trial Judge, sitting without a jury, could not reasonably have been satisfied to the required standard of the defendant’s guilt, in that her Honour:

(a) failed to consider relevant factors in the evidence, namely:

• (i) there was no medical evidence that the complainant had bruises or redness on her breasts, or pain in that area;
• (ii) there was no evidence of the complainant’s shirt being torn;
• (iii) there was no evidence of the appellant’s fluids on the shirt or the complainant’s private parts;

(b) failed to take into account the inconsistencies in the Crown witness statements, such as would mean they were not credible witnesses, in particular:

• (i) the complainant admitted she was drunk the night before;
• (ii) the complainant did not recall what the appellant was wearing, or the colour of his clothes;
• (iii) varying versions as between the complainant, her mother and a brother as to where people were sleeping and whether they had breakfast together; and
• (iv) there was no mention of where the mother was during relevant times.
  • [5] As those grounds make clear, the appeal is based on an attack on the findings of fact at the trial.

The elements of the case at trial

[6] The Crown had to prove the elements of the offence of Indecent Assault beyond reasonable doubt, namely:
(a) that the appellant;
(b) on or about 1 January 2024;
(c) assaulted the complainant intentionally;
(d) without her consent; and
(e) the assault was indecent, in that right-minded persons would consider what was done offensive to contemporary standards of modesty and privacy.

• [7] The case turned substantially upon the differing accounts given by the complainant (and other Crown witnesses) and the appellant (and other defence witnesses).

The complainant’s evidence

[8] The complainant’s evidence was to this effect
(a) she had been asleep several hours when she woke at about 9am-9.30am to find the appellant sitting on top of her, straddling her and trying to suck her right breast;
(b) she was wearing a long sulu with long tights inside, a bra and singlet; he pulled her tights down and “tried to get my vagina”; he put his head between her legs; she could feel his hair prickling her female parts;
(c) she pushed his head to get him off her, and ran to the kitchen; she was trying to get to a door that lead outside; while in the kitchen she called out for help “to his mother who is our neighbor and another man that lives in the house behind our house”; he chased her and she ran to her mother’s room at the back of the house;
(d) she tried to close the door but the appellant was stronger and pushed his way in; she said: “he grabbed me inside and I kept trying to be free of him but he was stronger and it got to a point that I then became tired and I told him that after this I will go to the police”; she described how he held her as “He tightly hugged me” from the back; when he grabbed her he “reached out and touched my [right] breast”;
(e) when she said she would go to the police the appellant apologized to her and “told me to look at his face so that I can forgive him and that he is not going to do this again”; she “told him to let me go and yes that I forgive him”; he let go and left; and
(f) her mother came home; the complainant told her that the appellant “was here trying to rape me”; she told her mother what had happened and that she wanted to lodge a police complaint; she and her mother went to the police and lodged a complaint.

• [9] In cross-examination the complainant maintained her account. The following matters emerged in her evidence:

(a) she reiterated how the appellant was on top of her: “I woke up and he was sitting on top of me with his legs spread, his knees slightly bent, and one of my legs was between his thighs”; she said the appellant had pulled down her tights but not her underwear, nor the bra and t-shirt;
(b) he appellant bit her on the breast, beside the right nipple, from the outside of her t-shirt, and fondled her right breast with his hands: “Yea he grabbed me from behind and I tried to be free from him but he had already got ahold of my breast and fondled it and I yelled out that after this I was going to the police”; and
(c) she said the bite on her breast left a mark on her skin.

Evidence by the complainant’s mother

[10] The complainant’s mother gave evidence that she saw the complainant was crying, and wrapping her arms around herself. The complainant said the appellant had come to rape her, taken off her tights and laid on her.

Evidence of the older sister

[11] The complainant’s older sister gave the following evidence:
(a) she had a phone call with the complainant on 1 January; the complainant was crying; she said the appellant tried to rape her; she said when she woke up, he was sitting on top of her with his legs spread apart and he was trying to take off her pants.
(b) on a second phone call that day, the complainant said “she was disgusted with her body and that she’ll continue to be disgusted with it until the day she dies”;
(c) on the first occasion when they were at the Magistrate’s Court in respect of the complaint in this matter, the appellant had apologized and his wife tried to give her $1,000 “as a token of apology to our uncle whom we lived with”;
(d) later, on 18 March, the appellant came to apologize again; his wife offered $1,000 and a cow.

The appellant’s evidence

[12] The appellant gave evidence in his own case. He said:
(a) he had been drinking kava with others at the church; after midnight (about 4am) he went to his house (where other people were drinking and making noise) and told the complainant to go home and sleep;
(b) at about 5.30 - 6am he saw the complainant standing outside his parents’ house; he told her to go back home and sleep, and led her to the house; he “took her into the house to the veranda area for her to sleep”; he then left;
(c) at about 9am or 9.30am he walked over to the house;^[1] he did so because a particular man, X, “still had not woken up”;
(d) he opened the door, where he saw the complainant sleeping on a couch in the living room, with her leg on a chair; he “hit her leg and she woke up angry at me”; and
(e) later he went to apologize to the complainant and her mother; they were angry and did not want to talk to him,

• [13] In cross-examination the following emerged from the appellant’s evidence:

(a) he said the reason why he opened the door and went in was “to see who was inside”; he added:

“I went to go look for [X] and while I was there I saw through the glass door that [the complainant] was sleeping and I only went over without any deep thought into it because I was under the impression that we were just playing around because we would always play around like I would suddenly punch her or slap her as an in a joking kind of way.”

(b) it was normal to play around with the complainant; he was only playing when he slapped her feet;
(c) he said he went over to speak to the complainant and her mother in order to apologize; when he, his wife and daughter went over (twice) with $1,000 and a cow, it was to apologize.

The findings by the trial judge

[14] The learned trial judge observed that given the evidence at the trial, credibility was the main issue, and her Honour was mindful of the necessity for the offences to be proven beyond reasonable doubt.
[15] Her Honour then referred to the following matters in the reasons for convicting the appellant:
(a) there was no denial that the appellant went to the house where the complainant was;
(b) he admitted he went inside the house;
(c) he did not deny that he touched the complainant;
(d) her Honour concluded that the appellant was not telling the truth; his explanation was unconvincing, and where his evidence differed from that of the complainant, his Honour believed the complainant’s evidence;
(e) her Honour rejected the appellant’s evidence in its entirety, finding that his denials are a “desperate attempt to evade a conviction”;
(f) her Honour rejected the defence contention that the complainant and her whole family colluded to tell a lie;
(g) her Honour accepted the complainant as credible and reliable; and
(h) her Honour found that there was sufficient corroboration of the complainant’s evidence, namely:

• (i) she had emotionally confronted her mother, saying the appellant tried to rape her;
• (ii) the phone call to her sister;
• (iii) the appellant, his wife and daughter tried to apologize, and offered $1,000 and a cow; and
• (iv) her Honour rejected that the appellant had no say in that, but rather he was trying to settle the matter.

Consideration

[16] This appeal is based wholly on a challenge to the factual findings of the learned trial judge who had the benefit, which this Court does not, of seeing and hearing the witnesses. Though not expressed in these terms, the case advanced for the appellant is that the verdict was unreasonable because the Judge, sitting without a jury, could not reasonably have been satisfied to the required standard of the defendant’s guilt.
[17] There is long-standing authority as to the principles applicable to such an appeal. The question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.^[2]
[18] It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred on the unreasonable verdict ground. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.^[3]
[19] The central passage from M v The Queen requires that the appellant not only identify weaknesses but then also demonstrate that those weaknesses reduced the probative force of the evidence in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted. Thus, one must link the alleged inconsistencies or weaknesses in the evidence to the alleged unreasonableness.^[4]
[20] In New Zealand, a verdict will be unreasonable if the jury or judge could not reasonably have been satisfied to the required standard of the defendant’s guilt.^[5]
[21] Having reviewed all of the evidence, in our view it was plainly open to the learned trial judge to find that the complainant’s evidence was sufficient to establish guilt beyond reasonable doubt. Put differently, such discrepancies, inadequacies, and inconsistencies that are raised by the appeal, taken separately or in conjunction, do not lead us to conclude that, even making full allowance for the advantages enjoyed by the learned trial judge, there is a significant possibility that an innocent person has been convicted.
[22] We will explain that conclusion.
[23] First, the absence of forensic evidence as to the mark on the complainant’s breast, and the presence of fluids on her t-shirt or on her private parts, are not of a character that they overcome the distinct advantage which the trial judge enjoyed, in seeing and hearing the witnesses.
[24] Access to the house was not in issue as the appellant admitted he entered the house while the complainant was there. The precise way he entered is inconsequential.
[25] The complainant’s account was that he bit her breast from outside her clothing. Photographic evidence as to the mark would have been useful but its absence was not critical to acceptance of the complainant’s account. The same is the case with the question of fluids on the t-shirt. The evidence did not establish that the appellant’s mouth touched the complainant’s private parts. To the contrary, the complainant agreed in cross-examination that her underwear had not been removed, and she felt hair touch her.
[26] Secondly, issues such as whether the complainant had breakfast with her mother and brother, and where the brother slept, and what the appellant was wearing, are all peripheral to the central issues, namely did the appellant enter the house, did he do so as a trespasser, and did he touch the complainant indecently.
[27] The appellant admitted that he touched the complainant, albeit as a slap on the feet, which made her angry. On his own evidence the touching was not by consent, not taken jokingly, and unwelcome. Given the support of the complainant’s credit by reason of the preliminary complaint to both her mother and her sister, each of which were accounts of indecent assault in a form akin to attempted rape, it was plainly open for the learned trial judge to accept the complainant’s evidence.
[28] Thirdly, the learned trial judge carefully set out the evidence in some considerable detail, which included the suggested discrepancies or inconsistencies.^[6] Her Honour’s findings are set out at paragraph [15] above and need not be repeated. Her Honour was unequivocal in preferring the evidence of the complainant and explained the reasons for the finding that the charges were proven beyond reasonable doubt.
[29] As has been observed earlier, the learned trial judge’s satisfaction as to guilt beyond reasonable doubt was based on an acceptance of the complainant’s evidence, supported, as it was, by the preliminary complaint, and a wholesale rejection of the appellant’s evidence based on his lack of credit. The case to overcome those matters cannot succeed just by pointing to inconsistencies and discrepancies of a peripheral nature.
[30] Fourthly, nothing that has been raised links the asserted inconsistencies or weaknesses to the alleged miscarriage of justice. The more fundamental issue was that the appellant’s evidence was rejected as lacking credit, and the complainant’s evidence was accepted as truthful.
[31] Fifthly, the use of preliminary complaint evidence is to support the credit of the complainant, or, as s 11(1) of the Evidence Act, puts it, “to corroborate the testimony of the person injured by the commission of the crime”. It does not constitute additional or independent evidence of the crime: s 11(1). For sexual offences, no corroboration of a complainant's evidence shall be necessary for the accused to be convicted: s 11(2). In our respectful view, the learned trial judge correctly applied s 11, noting that its relevant effect was that preliminary complaint evidence might show “the complainant’s conduct is consistent with her evidence in the trial”.^[7]
[32] The appeal must be dismissed.

Result

1. The appeal is dismissed.

Randerson J

Harrison J

Morrison J

^[1] This is the house where the complainant was sleeping.
^[2] M v The Queen [ 1994] HCA 63 [1994] HCA 63; (1984) 181 CLR 487; MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 at 614; Dansie v The Queen [2022] HCA 25; (2022) 274 CLR 651, at [8]-[9]; Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123, at [39].
^[3] M v The Queen [1994] HCA 63 [1994] HCA 63; (1984) 181 CLR 487, at [9].
^[4] See, for example, R v Miller (2021) 8 QR 221; [2021] QCA 126 at [18].
^[5] Owen v R [2007] NZSC 102; [2008] 2 NZLR 7 at paragraph [17] (a case determined under the now repealed s 375 Crimes Act 1961 (NZ) which is expressed in similar terms to the unreasonable ground under s 17(1) of the Court of Appeal Act (Tonga).
^[6] Highlighted in the defence closing submission: see paragraph 84 of the verdict reasons.
^[7] Reasons for verdict, paragraph [92](c).