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R v KB (a pseudonym) [2026] TOSC 1; CR 46 of 2025 (23 January 2026)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY
CR 46 of 2025

REX
-v-
KB (a pseudonym)

VERDICT

BEFORE: HON. JUSTICE TUPOU KC
To: Mrs ‘E. Lui for the Prosecution
Mrs. Kolokihakaufisi for the Accused
Date: 23 January, 2026

1. At the outset, I order that any details which might identify the Complainant or her evidence in this matter shall not be published in the Kingdom in any publication available to the public or be broadcast in the Kingdom, pursuant to section 119 of the Criminal Offences Act.
   
2. The accused is charged with one count of serious indecent assault. The indictment alleges that on 29 June, 2024 at Pahu, the accused committed the offence of serious indecent assault on the complainant who was under the age of 15, by fondling her breast.
   
3. In order to convict the accused, the Crown must satisfy the court beyond a reasonable doubt that:

a) on 29 June, 2024 at Pahu;

2. the accused intentionally assaulted the complainant;

100. that the assault was indecent; and

4. the complainant was under 15 years at the time.

4. The Crown’s case is that on the relevant day, at the parties’ grandmothers home at Pahu, the accused entered their grandmother’s bedroom while the complainant and her toddler cousin were inside looking at themselves in the mirror on the grandmother’s dresser. The accused removed the toddler from the complainant and pushed her onto their grandmother’s bed. The accused fondled the complainant’s breasts and when she tried to leave the room, the accused held her at the door.
   
5. The defence is that none of the allegations made by the complainant is true.
   
6. It was not disputed that the complainant was 12 at the time of the complaint and proof of consent is unnecessary^[1]. I further hold the fondling of the breasts of a minor girl under the age of 15 is unambiguously indecent and therefore unnecessary for the Crown to prove intention^[2].
   
7. It was not disputed that:
   1. on 29 June, 2024;
   2. the accused was at Pahu at his grandmother’s home;
   100. the complainant and others were there; and
   4. the complainant was 12 at the time of the complaint.
      
8. Assault is any conduct whereby a Defendant intentionally or recklessly causes a victim to apprehend immediate and unlawful personal violence. Mere touching without consent is in law an assault.^[3]
   
9. In order to secure a conviction in this case, the Crown must prove to the required standard that the Defendant did commit the acts complaint of.
   
10. The burden of proof is on the Crown from the beginning to the close of the case. The Defendant is under no obligation to give or call evidence to prove his innocence or to disprove the Crown’s case. The Defendant need only raise sufficient doubt about the Crown’s case against him.
    

The Evidence

11. Pursuant to s.116 of the Evidence Act, counsel for the Crown informed the court that she had assessed the complainant and was of the opinion that she understood the importance of telling the truth. I took the opportunity to speak with her before she gave evidence and formed the opinion that she is possessed of sufficient intelligence to justify the reception of the evidence and that she understands the duty of speaking the truth and for the court to receive her sworn evidence.
    
12. For the Crown the court heard from the complainant, her mother, and M (the complainant’s mother’s brother-in-law. For the defence, the court heard from the accused and his father.
    
13. A sketch of the home where the offending occurred was provided by the accused and the Crown provided photographs of the front porch, the living room, the grandmother’s bedroom with the complainant pointing out where she alleges the offending occurred.
    
14. Across the width of the house at the front is a front porch which enters into the living room that also runs across the width of the house. After the living room, the house is divided by a hallway that leads into the kitchen. There are 3 bedrooms on the left side and 2 on the right with kitchen parallel to the last bedroom on the left.
    
15. On the left side of the house is the grandmother’s bedroom where the alleged offending occurred, the complainant and her sisters’ bedroom and then her parents’ bedroom. To the right is the accused’s bedroom, M and his wife’s bedroom and then the kitchen.
    
16. From the kitchen there is an entrance to a back veranda with the bathroom and laundry area.
    
17. The occupants of the home at the time were:

a) the complainant’s grandmother;

b) the complainant’s parents and 3 siblings;

c) M, his wife and one year old toddler; and

d) the accused and his father.

18. There had been a family funeral at Ha’asini and on or around 9am on the morning of 29 June, 2024, the family left to attend the funeral.
    
19. M, his wife and toddler did not go to the funeral and the complainant wanted to stay back and look after her toddler cousin. The accused stayed back to do his washing.
    
20. I found the complainant and the Crown witnesses in this instant credible and truthful and after hearing all the evidence called by both sides, I make the following finding of facts.
    
21. On the morning of 29 June, 2024, the accused and the complainant were at their grandmother’s home at Pahu where they live. Their aunt P and her husband M were also present with their baby K. The complainant’s parents, siblings, grandmother and the accused’s father went to Ha’asini to attend a family funeral.
    
22. P and M were in their bedroom. The complainant was looking after K in the living room. The accused was also in the living room. At one point, the complainant took K to her grandmother’s bedroom where they were looking at themselves in the mirror on her grandmother’s dresser.
    
23. Then the accused entered the grandmother’s bedroom and asked the complainant what they were doing. The complainant said they were looking in the mirror.
    
24. The accused then took K from the complainant and put her in the living room. This is where M later saw K looking towards the grandmother’s bedroom at the accused and the complainant when he came through the hallway.
    
25. The accused pushed the complainant onto their grandmother’s bed. The complainant fell on her back facing the accused. She got up and pushed him and asked what he was doing. According to the complainant’s mother, the complainant said on the day that the accused then fondled her breasts and when the complainant pushed the accused away, he grabbed and held her trying to kiss her.
    
26. At this point M had come through the hallway to check on the complainant and K. He saw K in the living room opposite the grandmother’s bedroom and then saw the accused holding the complainant in a hug at the grandmother’s bedroom entrance. M called out to K and when the accused saw him he pushed the complainant into the grandmother’s bedroom and came towards him saying “how’s it bro?”.
27. I note the complainant’s evidence was that when M appeared in the hallway and saw them, the accused was committing the act complaint of. Clearly, M’s evidence was that he saw the accused holding the complainant in a hug consistent with the version the complainant told her mother on the day that the act complaint of happened before the incident M saw. I find that version more plausible.
    
28. The complainant was asked to point to the part of her body on the neutral body map provided by the Crown produced as exhibit P3. She pointed to the breast area of the body map. She was also asked to show how the accused touched her breasts. The complainant showed a groping action with her fists.
    
29. M saw the complainant go to her room and the accused went to do his laundry. M went with his baby to their bedroom. The accused then went back to ask M if he had soap powder and asked M if he had kava the night before and then went back to his room. M heard him on a video call and was picked up by his aunt shortly after.
    
30. M then called the complainant into their bedroom and asked her what had happened, with his wife present. The complainant described what the accused did to her.
    
31. When the complainant’s parents and grandmother returned from the funeral, P told the complainant’s mother to ask the complainant what the accused did to her and she did. The complainant’s mother told the court what the complainant had described the accused did to her.
    
32. I found the complainant and the Crown witnesses both credible and truthful. The complainant was able to engage and provide her answers accurately and remained unshaken under cross examination. I accept that parts of her evidence may appear unclear about what occurred after the incident but that in my view may be attributed to the clarity of the questions put to her or lack thereof. I found no inconsistency in her evidence where it mattered, that is, that the incident leading to her complaint, did in fact happen.
    
33. The complainant was challenged on inconsistencies of the statement she made to the police and her evidence in court. The police statement was not available to the court or produced in any form and was therefore difficult for both the complainant and the court to make any sense of the context of what was asked of the complainant. Nonetheless, in my view, nothing came out of those questions contaminated the credibility of the complainant’s evidence.
    
34. The evidence of P and M were consistent and together with the complainant’s evidence confirmed what M saw.
    
35. I also remind myself that pursuant to the amendment to s 11 of the Evidence Act, the evidence of the complainant in this instant no longer require corroboration.
    
36. The accused’s version of that morning’s events was that he told his father he would stay back and do their washing. That was confirmed by his father. At 16 minutes to 9am he filled up the washing machine and put their washing on and then had something to eat. Then he went to the living room and called his siblings and then his mother on his phone. That phone is no longer in use and he has a new one.
    
37. He said the complainant and K came to play in the living room and then the complainant went inside their grandmother’s bedroom on her own and closed the door and called out to K. This was not put to the complainant under cross examination and is disqualified under the Browne v Dunn rule. The accused then said, he heard M come.
38. He went and put in his second load of washing just before his mother’s sister arrived to pick him up.
    
39. He said his father knew that he would be spending that Sunday at Kolovai. However, when his father was asked about that, his father confirmed he found out the accused was going to Kolovai when he texted him before he left Pahu that day.
    
40. The accused said it was almost 5pm when he left Pahu with his mother’s sister. If that were true he would have still been at Pahu when the complainant’s parents arrived back around 3-4pm that day. I prefer the complainant, M and P’s evidence that the accused had left when her parents came back from the funeral.
    
41. Copies of messages from an online family chat group was produced to which the Crown objected. I did not rule it out at that point but said that it was up to the defence to produce it properly via witnesses if it wished. I do not recall any of the witnesses speaking to those messages.
    
42. In case I’m wrong, I have had a look over them and am unable to see how it assists the accused in any way. It is impossible to confirm the date and time the accused’s responses in the thread of communication were made which I assume is intended to place the accused as having been engaged in a family discussion at the time of the alleged incident.
    
43. As mentioned, I believe the complainant and M as truthful witnesses and prefer their version of events above that of the accused that he was where they said he was at the material time of the incident complained of.
    
44. Contrary to his evidence in chief, the accused under cross examination agreed that he went inside their grandmother’s bedroom while the complainant and K were there. He agreed that he asked the complainant what they were doing and she told him they were looking at themselves in the mirror. This confirms that part of the complainant’s evidence. He maintained denial that he ever pushed the complainant onto the bed or committed the act complained of or held her at the doorway when M saw them.
    
45. The complainant was challenged by defence counsel that the grandmother’s bedroom was too small and that there was no dresser there. Undoubtedly as informed by the accused. Conversely, upon examining the photographs provided by the Crown of the grandmother’s bedroom, a dresser with a mirror can be seen on the Crown’s photograph 3(c) on exhibit P1.
    
46. The court heard from the accused father. He was not present at the home when the incident occurred. He heard about it the next day when his daughter called to inform him. He was very angry and confronted his mother and the complainant’s mother.
    
47. The accused father alleged that his mother and siblings foster a degree of animosity toward the accused since the heir to the ‘api at Pahu indicated that he would gift it to the accused.
    
48. Contrary to that evidence, the accused himself admitted that the complainant’s mother treated him well and like her own son. He confirmed that she was the one that assisted in his school activities for school anniversaries and so on. He further confirmed that he was on good terms with the complainant’s mother, the complainant and her siblings. There is no evidence of any expressed animosity towards the accused as suggested. Being mindful at the same time that no obligation falls on the accused to establish motive.
    
49. There is nothing before the court in any event that the gifting of the land to the accused is possible given the grandmother is still living and such gifting would be subject to the rules of succession under the Land Act.
    
50. In my view, there is nothing to suggest that this 12-year-old complainant at the time of the incident was motivated by underlying land issues to concoct this serious allegation against her own cousin putting herself and her family through the trauma and embarrassment of having to come and give evidence about it in this trial. This is supported by the fact the family have moved out of the home since the incident.
    
51. I bear in mind that a convincing witness may also be mistaken or wrong. But having listened and observed the complainant I am entirely satisfied that what she described the accused did to her did in fact happen. I hold the same view in terms of the other Crown witnesses and that their evidence support that of the complainant.
    
52. Unfortunately, despite the fact that the accused is under no obligation to give or call evidence, prove his innocence or disprove the Crown’s case, I found the evidence called by the Crown more likely that I am sure that is what happened.
    
53. In conclusion and for the reasons provided above I am satisfied beyond a reasonable doubt that the Crown has discharged the burden of proving the charge against the accused.
    

Result

54. I find the accused guilty of one count of serious indecent assault contrary to s 124 (1)(2) and (5) of the Criminal Offences Act.
    

P. Tupou KC

NUKUÁLOFA: 23 January, 2026 J U D G E

^[1] See s. 124(5) Criminal Offences Act
^[2] R v Fillse [2001] TOSC 51; CR 103 2001 (3 December, 2001)
^[3] See R v TD (a pseudonym) [2025] TOSC, 62 CR 88 of 2025, paras. 9-10