Rex v Vakaloa [2007] TOSC 42; CR 63-2007 (4 September 2007)

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

CR.NO.63 of 2007

REX

-V-

‘UHILA VAKALOA

BEFORE THE HON. JUSTICE ANDREW

Counsel:
Mr Kefu for the prosecution
Mr Tu’utafaiva for the accused.

Date of Hearing: 28th & 29th August, 2007.
Date of Judgment: 4th September, 2007.

Judgment

The accused is charged with indecent assault, contrary to S.124 (1) of the Criminal Offences Act.

The particulars of that offence are that on or about 7th February 2007 at Vaini he did commit indecent assault on a girl under the age of 16 when he sucked on ‘EMELINE MALELEI’S breasts and touched her on top of her pubic hair.

The Crown case was that on this day the complainant, a schoolgirl aged 14 (although she had recently been expelled from school) was returning home to Longoteme and she alighted from a bus at Vaini where she saw the accused. He offered to walk her home to Longoteme and on the way took her on what was said to be a short cut. Along the way and during that afternoon and during the night the Crown’s case is that he sucked her breasts and had also touched the top of her pubic hair.

Much of the evidence is not in dispute. It is not disputed, and I am satisfied beyond reasonable doubt, that the complainant was 14 years of age at this time having been born in the 29th October 1992.

The defence case is that the complainant consented to his sucking her breasts and it is denied that he touched her on the top of her pubic hair area. Further, the defence is that he had an honest and genuine belief that she was in fact over the age of 18 years and of course that she was over the age of 16 years.

The accused in a confessional statement said as follows:

"I do recall 7th February 2007, I came with my nephew to buy a telephone card from the Chinese store situated on the turn to Vaini at Pale’s home. After that we went home. We went to the front area of the Church of Tonga and rested. After a short while I noticed a girl walking on the road. When she approached us she asked if there is any house she could go and change in, so I told her yes, we went. We went and turned on the turn at Siaki’s home which led to the sea. We made shortcuts and reach a ‘ovava situated near the sea and stayed there. I told off Tevita to go home, Tevita then went and I stayed with ‘Emeline until it was dark. At about 2000 hours I laid Emeline down and we lay together and I lay on top of her and we kissed, I took off her clothes and I sucked her breast and had sex".

It is not alleged that the accused had sexual intercourse with the complainant. He says in evidence that he had lain on top of her when he was clothed and had then ejaculated in his clothing.

The elements of the charge which the Crown must prove in order to establish a charge of indecent assault are an cited in the case of R v MOSESE MAFUA CR.122/2002 Judgment of the 26th March 2003 as follows:

1. There must be an assault on the complainant which is an intentional application of force.
   
2. The assault must be indecent according to commonly accepted community standards.
   
3. The Crown must establish that the complainant did not consent to what occurred.
   
4. That the accused did not honestly believe that the complainant consented.
   

Although S.124(2) provides that a girl under the age of 16 years cannot in law give any consent which would prevent an act being an indecent assault, consent is a relevant issue as the Crown needs to be able to prove the absence of consent and that the accused did not honestly believe at the time of the incident that the complainant was aged 16 or over.

CONSENT:

I am satisfied beyond reasonable doubt that the Crown have established the absence of consent. The evidence establishes that the accused was the aggressor in all of these events which took place over a day and a night. He was a mature man and as he knew, she was a schoolgirl. He offered to take her home and he took a path which was secluded. It was he who constantly sought to have sexual relations with the complainant and it is clear on her evidence that she resisted. The accused told the young boy with them to go away. I accept the complainant’s evidence that she did not consent and that she only allowed him to suck her breasts when she ultimately gave in out of fear and threats that he would have sexual intercourse with her. I accept her evidence that he was trying to remove her pants when his hand touched the top of her pubic hair and that it was without consent and further that given his age of 29 and she being 14 and in all the circumstances, that this behaviour was indecent.

HONEST BELIEF THAT THE COMPLAINANT WAS 16 YEARS OR OVER.

The accused may be entitled to be acquitted if he holds an honest belief that the complainant was aged 16 years or over. The accused’s belief need not be reasonable provided that it was honest and genuine.

It has been said that recklessness or indifference as to the existence of the prohibited circumstances would be sufficient for guilt. Further, that the Crown would only have the burden of proving that the defendant was aware of the age of the complainant if there was some evidentiary material suggesting the possibility of an honest belief that she was over 16.

The accused in evidence has said that the complainant was a tall girl and that "I saw the way she was built and I thought she was 18 at least." That is hardly consistent with the following exchange in cross examination:

Question: "you should have known that she was under age".

Answer: "No. I had no idea what age she was. She was almost bigger than myself".

Importantly she did not tell him her age. In her evidence she said:

"I’m too young to get married. I didn’t tell him my age. I said I was still at school."

His answer suggests, at the least, that he was reckless or indifferent to her age. The circumstances are that the accused was still a school girl or at least of school age. The accused knew that she had been avoiding school and that she had her school uniform with her and that she needed to change back into school uniform in order to be able to go home and avoid her parents learning that she had been expelled. That is evidence of some immaturity and adolescence of which the accused well knew.

He knew which school she attended. He said he had no knowledge of what grade she was in at school.

In these circumstances the accused, knowing that the complainant was still at school and without knowing or ever inquiring as to what grade she was in at school, gave no consideration to her age. In these circumstances he was reckless and indifferent as to her age. I am not satisfied that he held an honest belief that she was over 16. I am satisfied that the Crown has disproved that the accused had an honest belief that the complainant was over the age of 16.

For all of the above reasons I am satisfied beyond reasonable doubt that the accused is guilty as charged. I return a verdict of guilty.

DATED: 4 September 2007.

JUDGE