R v Afu [2018] TOSC 24; Criminal Case 36 of 2018 (14 June 2018)

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

CR 36 of 2018

BETWEEN: REX

Prosecution

AND : SIONE TAUTU’A’A AFU

Accused

BEFORE LORD CHIEF JUSTICE PAULSEN

Hearing : 12-13 June 2018
Date of Ruling : 14 June 2018

Counsel : Miss ‘E. ‘Akau’ola for the Prosecution

The accused in person

VERDICT

[1] The accused, Sione Tautu’a’a Afu is charged with four counts of carnal knowledge of a young person under the age of 15 contrary to section 121(2) of the Criminal Offences Act, particulars of which were that on 7 and 8 August 2017 at Veitongo he did carnally know K, a young person under the age of 15.

The evidence

[2] The Crown called five witnesses including the complainant K, her sister M, a friend S, the mother of K and M and a police officer who conducted a record of interview with the accused. The accused represented himself and choose to give evidence.

[3] I should say at this point that I found the evidence of K, M and S hard to reconcile. They gave very different evidence about, for instance, when and for how long they lived with the accused. Fortunately, the facts that have a real bearing on the outcome of this case are relatively certain.

K’s evidence

[4] K was born on 30 August 2003 as the eighth of nine siblings. In August 2017, when the offences were alleged to have occurred, she was 13 years and 11 months old. She had been expelled from school on 2 August 2017. As a result of a beating she and M took from their eldest sister they decided to run away from home. The two met up with S in town during the afternoon of 4 August 2017 and travelled by bus to Veitongo where they got off the bus and, she said, went to the bush. They were in the bush for about 3 days and then met with the accused and another boy who they did not previously know, at a stone fence near a gas station when they were trying to hitch a ride. They went with the accused to his house as they had nowhere else to go. She said they stayed at the house for less than a week and there was no one else there except for her, the accused, M and S. They did not leave the house apart from the night the Police came when they went roaming in Veitonga.

[5] Whilst at the accused’s house K and the accused entered into a relationship and she had sexual intercourse with him on four occasions. She said they did it on the Sunday night, early Monday morning, Monday afternoon and again on Monday night. She said that the suggestion to have sex was hers. The way she put it was that while they were lying together and talking she had ‘caused this to happen’. She suggested having sex on two of the four occasions and the accused had suggested it twice. On each occasion that they had sex the accused put his penis into her vagina. She said that she consented to having sex on each occasion and that whilst she and the accused were having sex M and S were outside. K did not tell anyone she and the accused had sex apart from M.

[6] K said the accused had asked her age and she told him that she was 16 years old. She wanted to appear older than she was. She told him she was 16 years old three times and never told the accused her real age. She said that the accused asked her if she was at school and she told him that she had dropped out. She did not tell the accused that she had run away from home but said that she had been staying with a friend because she was embarrassed about staying in the bush. During the time she stayed at the accused’s house her parents did not try to contact her. K acknowledged that after the Police had come she had returned to K’s house because she had wanted to visit him. He had not asked her to come back. On one occasion he had visited her.

[7] In cross-examination the accused put it to K that she had gone to his house because K and M had asked him for help. K agreed that they had done so because they had nowhere to stay. The accused also put it to K that she told him she was 18 years of age and older than he was. K denied that she told him that she was 18.

[8] In answer to questions from me, K said they lived at the accused’s house for 3 or 4 days from Sunday to the following Tuesday or Wednesday but then contradicting both this and her earlier evidence said she had gone with him on the Friday. She said that they had money for food but that she did not drink alcohol. She did smoke cigarettes at the accused’s house. She said that she had been smoking since last year.

[9] In re-examination K said that she had taken a change of clothes with her when she ran away from home. There had been changes to her physical appearance since last year in that her hair had been blonder then and she had cut her hair when her father had died.

K’s mother’s evidence

[10] The next witness was K’s mother who confirmed that K was born on 30 August 2003 and will be 15 years old on 30 August this year. She said that K and M had run away from home last year and that she had contacted the Police and the girls had been found at Veitongo. She said that the girls had then fled to the bush and the accused had originally lied about them being there but had told the truth when he was arrested by the Police. She said that she was giving evidence because she was asking that the accused to be forgiven.

M’s evidence

[11] M is a year older than K and is now 16 years old. She went with K and S on the bus and got off at Veitongo after running away from home. She said they stayed in the bush for four days and then went to stay at the accused’s house. They had met the accused near the GPS. She said that the accused invited them for a drink and there was another person there who she did not know. They drank alcohol at the accused’s house with other young people and they stayed in the house for just one day and they trusted the accused because they had nowhere else to go. They left the house when the Police found them and they turned themselves in.

[12] M did not tell the accused that they had run away from home and she told him she was 18 and that K and S were present when she told him her age. The accused told her he was 17.

[13] M also said that she has returned to the house to visit because she was acquainted with the accused.

S’s evidence

[14] S is 16 years old. She was at the same school that K and M attended but she was also expelled from school last year. She had gone with K and M to Veitongo on the bus on a Friday afternoon and met with the accused. She was still in school at the time. M told them that they should get off the bus at Veitongo as she knew a place to stay. They got off the bus and went into the bush. She changed out of her school clothes into other clothes that K and M had brought with them. S said that they met the accused at the rock fence and they talked and he took them to the house of Sione Katoa which was more like a hut. She said the accused did not ask them to go with him and that they wanted to go. They slept in the hut. S, K and M slept in one bed and the accused slept elsewhere. The only people there were the accused, M, K and S. They left on the Sunday when Sione Katoa told them to leave and they went to the accused’s house where they stayed until the Tuesday which was when the Police caught them and returned them home. S said they spent the time looking at their phones. S, K and M slept on a bed in the living room and the accused slept in the kitchen.

[15] S said that they did not tell the accused that they had run away and that the accused had asked them their ages and she had told him she was 16 years old, K told him she was 18 years and M said she was 19 years. In answer to questions from me S said that they had all drunk alcohol.

The Police Officer

[16] Police Officer Paea Pensioni is a criminal investigator focused on violence and sexual offences. She interviewed the accused on 13 September 2017 and after cautioning him she took down his record of interview. Because of his age the accused had his grandmother present with him during the interview. She read the record of interview and also the written statement of charges into evidence. The Officer said that she also took a statement from K but that was not produced.

The accused’s evidence

[17] The accused is now 18 but he was 17 at the relevant time. He attended high school until the middle of last year. In August 2017 he was living at Veitongo. He was with a friend on a Friday evening and met K, M and S. They asked for help to hitch a ride into town. When they did not get a ride they asked him if he knew a place they could stay. He said that he did and they could sleep at a friend’s house and he took them to the house of Sione Katoa. The girls said they would leave the next day. They slept at Sione Katoa’s house and the next morning the girls said they wanted to stay and he told them they should move to his house and stay there. It was whilst they were at his house that he and K entered into a relationship.

[18] The accused said that he asked the girls their ages and K said she was 18, M said she was 19 and S said she was 16. It was after the accused and K agreed to be in a relationship that they talked and decided to have sex. He said that they lived together for about a month and the Police came a number of times and the girls told him not to tell the Police that they were there as they did not want to return home. It was on the third occasion that the Police came around that they caught them and arrested him. During the time the girls were living with him they smoked and drank alcohol. They would drink alcohol at his house or go to a friend’s place to drink. The accused said that another boy would come and pick K up on Mondays and drop her back on Fridays and she would stay until picked up again on the Monday.

[19] In cross examination the accused acknowledged that his date of birth was incorrect in the statement of interview. He said that he did not know his birth date and had to ask his mother. He confirmed that he met K for the first time on the Friday evening when they had gone and slept at Sione Katoa’s house but he had not entered into a relationship with K until they went to his house. He confirmed also that he had asked K her age but denied that she said she was 16. He said he believed K that she was 18 because she had told him and they were in a relationship. He said he did not suspect that she was underage. He acknowledged that he and K had sex on four occasions and admitted that he had lied to the Police about the girls not being at his house and said this was because the girls insisted that he not tell the Police. He said also that the girls told him that they did not want to go back because they were fed up with being beaten. The accused denied that the girls had told him they had run away and said he only found that out when the Police found them.

[20] Miss Akau’ola then cross-examined the accused on his Police interview and put it to him that he had lied that he did not know the girls names (question 13). The accused said he misunderstood the question and thought it referred to the names of the boys from Havelu. The accused was also questioned about lying to the Police that he had no relationship with K and he said he had never been arrested and interrogated before and was afraid.

[21] The accused was then asked about the smoking and drinking at his house and he said they would drink on Friday and Saturday nights. He gave quantities of alcohol and cigarettes that would be consumed and acknowledged that they drank excessively but said that he had sex with K on only one occasion when drunk.

[22] Miss Akau’ola asked the accused whether he had noticed that K was of young appearance. He said that she acted like someone much older and was a smoker and a drinker and he believed, because of the way she acted, that she was 18. He also said he had not heard any news about young girls running away.

[23] In answer to questions from me, the accused said that he learned that the girls had run away when the Police caught them. I asked him to read his answer to question 35 of the record of interview where he had said that when he first met the girls he pitied them because they had told him they had run away from home. He said that he only learned they had run away when in the Police car as the girls were joking about it and the question had not meant much to him at the time. Miss. Akau’ola asked further questions of the accused about this and put it to him that the girls did tell him they had run away. The accused said that she may be correct.

The law

[24] The Crown accepts it has the burden to prove beyond reasonable doubt under section 121(2) of the Criminal Offences Act that the accused carnally knew K in the month of August, 2017 (on one or more of the occasions alleged) and that she was at the time under 15.

[25] Miss. Akau’ola submitted that the accused was entitled to an acquittal if he held an honest belief that K was 15 or over. If she means that the accused carries a legal burden to prove such a belief then I do not agree with that submission which is not in accord with the decision of Cato J in Tatakamotonga (Unreported Supreme Court, CR 43 of 2017, 2 February 2018, Cato J) upon which Miss Akau’ola relied.

[26] In Tatakamotonga Cato J noted that section 121 is silent as to any defence that an accused might have that he believed a child to be 15 or over, but that the availability of such a defence can be inferred from section 123 which only precludes a defence of belief that a child is over the age of capacity to have sexual intercourse in relation to an offence under section 121(1), which relates to a child under the age of 12.

[27] Cato J adopted the approach that an accused has no more than an evidentiary burden to raise material suggesting the possibility of an honest belief that a child was underage in which case the Crown must negative such belief beyond a reasonable doubt. At paragraph [15] Cato J said:

In this case I am satisfied that the accused has discharged an evidentiary burden sufficient to require the Crown to negative beyond reasonable doubt the accused’s belief that the complainant was old enough to have consensual sexual intercourse.

[28] This is consistent with the approach of Lord Steyn in B (a minor) v DPP [2000] UKHL 13; [2000] 1 All ER 833 where he observed:

In my view, counsel has overstated the difficulties....recklessness or indifference as to the existence of the prohibited circumstance would be sufficient for guilty. And in practice, the Crown would only have to shoulder the burden of proving that the defendant was aware of the age of the victim if there was some evidentiary material suggesting the possibility of an honest belief that the child was over 14

[29] Even if I had been prepared to accept Miss. Akau’ola’s submission that the accused has the burden to establish an honest belief that K was over the age of 14 years the result of this case would be the same. I am satisfied that the accused did in fact honestly believe on reasonable grounds that K was over the age of 14 years when he had carnal knowledge of her. My reasons are as follows.

[30] The accused stated in his evidence that he believed K to be 18 years old. This is consistent with what he said in his record of interview (at question 23) that he thought the girls were between 18-19 years old. Mr. Afu is now 18 years old but was aged 17 when these events occurred. Having had the opportunity to speak with and observe the accused over a lengthy period while he conducted his defence and gave his evidence I formed the view that he is a relatively simple and naïve person. An example of this was that he considered he was in a relationship with K when she was being collected by other boys and taken to Havelu. K on the other hand is physically mature and would, in my view, to the accused’s mind appear worldly. She could certainly be mistaken for someone older than her years. There was evidence that her appearance had changed since August last year but I believe the changes, which involved the removal of blonde colouring and the cutting of her hair, could not but have made her appear more youthful today than previously.

[31] The accused was certainly not reckless or indifferent to K’s age before he had carnal knowledge of her. K, M and S all said that the accused asked them their ages. K said she told him that she was 16 and that he asked her three times what her age was. Whilst there is a difference between K and the accused as to whether she said that she was 16 or 18 years old I prefer the evidence of the accused on this matter as his recollection is supported by the evidence of S and, in any event, in the context of the offences with which he is charged it is not material whether he believed she was 16 or 18.

[32] Of course, it would not matter that K told the accused that she was 18 (or 16) if it was plainly obvious to the accused that she was not yet 15 years old, but that was not the case. In addition to K’s appearance the accused said he believed K because they were in a relationship. K also said they were in a relationship. From her behaviour K appeared to be older than her true years. K was clearly keen to have sexual intercourse with the accused and said that she had first suggested it. She also smoked and drank alcohol. In this regard I note that whilst K said she did not drink alcohol I do not accept her evidence which is contrary to the evidence of M, S and the accused. The accused made the point also that M and S did not dispute it when K told him that she was 18. Whilst the reason they did not do so is now clear (it appears all the girls lied to him in one respect or other) that would not have been obvious to him at the time.

[33] I have been troubled by two aspects of the evidence. First, is the fact that the accused lied to the Police when he said he was not in a relationship with any of the girls and had not had sex with K. Whilst his dishonesty cannot be condoned I believe him when he says that he was afraid having never been arrested or interrogated by the Police before. I expect he was very afraid and very confused also to discover that K was still only 14 (when he was arrested) and that he was facing serious criminal charges as a result of his relationship with her when she had told him directly that she was 18 and gave every appearance of being so.

[34] The second matter concerns whether the accused knew that the girls had run away from home. I am of the view that the accused was told by the girls at some early stage that they had run away from home but this does not lead me to reject his evidence that he believed K to be 18. That the girls had run away says that they had been living with their parents but not a great deal about their ages. Given their particular circumstances a young person may be regarded just as much a runaway from home at 16 or even 18 as at say 13 or 14.

Verdict

[35] I find the accused not guilty on all counts.

[36] The accused is discharged.

[37] I have made an order that there is to be no publication of the names of the complainant K or any details which may be used to identify her.

O.G. Paulsen

NUKU’ALOFA: 14 JUNE 2018. LORD CHIEF JUSTICE