R v Tatakamotonga [2018] TOSC 8; Criminal Case 43 of 2017 (2 February 2018)

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

CR 43 of 2017

BETWEEN: R E X
- Prosecution

AND: SIONE SILIVA POHIVA TATAKAMOTONGA

- Defendant

BEFORE THE HON. JUSTICE CATO

Mrs Langi for the Prosecution
Mr Niu for the Defendant

V E R D I C T

1. The accused, Sione Tatakamotonga, was charged with one count of carnal knowledge of a young person under the age of 15 contrary to sections 121(2) and 123 of the Criminal Offences Act, particulars of which were that, in or about the month of August 2016 at Lapaha, he did carnally know A, a young person under the age of 15, when he inserted his penis into her vagina.
   
2. The Crown called two witnesses, the complainant and a police officer who had conducted a record of interview with the accused. The complainant, A, gave evidence that she was born on the 27th May 2002, and her birth certificate was produced in evidence making her about 14 years and 3 months old at the date of the offending. She said that she had first met the accused when she went to a fair at Tatakamotonga that belonged to her uncle. He had asked her what her name was and had, she said, asked for her phone number. She said that she did not have a phone and gave him her mother’s phone. She said that night, which was a Friday, he had texted and her mother had asked who it was. A told her that she did not know. Again, he texted the next day and again she admitted that she had lied to her mother and said she did not know who it was. She said when they were about to sleep she took her mother’s phone and texted the accused and told him not to text her mother’s phone. She did, however, tell the accused where she lived and agreed that they should meet at her place after he had run some errands, that evening. The accused came to her residence. She said she asked him to leave because her parents might see them but he stayed an asked her to come outside.
   
3. She said that she went and sat with him. He had grabbed her before she had sat down and had kissed her and then they had kissed. He then asked her to have sex and she said that she was too scared. He said if she loved him to do as he said. She said that he had pulled her over to a tree and took off his shirt which he put on the ground so that, he had said, she could lie on it. He then said that she should lie down. She said she was scared and he told her again that if she loved him she should do what he asked. She said that she lay down and she took her pants off when he asked this of her. He took off his pants and they had intercourse. She told him it hurt and he told her to lie still. She told him enough when he continued copulating and that it hurt. He said to lie still once his penis goes inside her and that everything would be fine. She said they had sexual intercourse and then he got up, put his pants on and left.
   
4. She said that she had been at school at the time in form 3. She admitted that she had not spoken with the accused about her age and nor had there been any discussion about what school or form she was in. They had not made arrangements to meet each other again. She did not meet with him or sleep with him again. She said she saw blood on her pants and underwear after having intercourse. She said that she had not slept with anyone else before or since. She confirmed that he had not asked her age, what form she was in at school or to be his girlfriend. As a consequence of the intercourse she became pregnant and appreciated that this was so after about six months. She did not tell the accused. She and her family went to the police station and made a complaint when she was about six months pregnant. Later, she gave birth on the 23^rd April 2017 to a child who died. The accused, she said, did not contact her until after the birth.
   
5. She produced in evidence a blown up black and white photograph of her at the fair from her uncles’ phone. She also admitted to touching the accused’s stomach when they were kissing.
   
6. Detective Vea gave evidence and produced a record of interview taken from the accused on the 3^rd February 2017 before he was charged. The accused gave his date of birth as 8^th April 1998 making him about 18 years and 4 moths at the time of the alleged incident. He said he lived with his aunt and helped out with her business. He said in September 2016 he was at ‘Apifo’ou College. He said he lived close to the Fotu hall in Tatakamotonga (near Lapaha) where he admitted to seeing the accused at the fair. He said that had occurred on a Friday in the month of August. 2016. He said that she had asked him where he lived and he told her he lived at Mu’a and she had said that she was from Lapaha. He said that she had asked for his phone number which he gave her. He said after that he went to clean up the community police office. He said he went home and came back later to the fair. He talked with A. He was asked by Detective Vea how old he thought A was. He said “about 17, may be”. He said that A had told him she would text him. He said that he had not asked her to be his girlfriend or whether she went to school. He was asked, “Sione with your experience and knowledge that you have given that you were also still at school, how old would you think [A] to be and in what form, and had replied, “Yes I thought she would be still at school may be in Form 5”. He said that the next day, A had texted his phone from she had said her mother’s phone. That had been around 9 in the morning. Later, he came home after helping with his aunt’s business in town and found a text from A, at about 9pm. He then went and drank kava with the community police and received another text. A, he said, asked whether he was coming over and gave him directions as to where she lived. He had walked over to her home. She was awake. She had said she was the only one at home with the girls. He said only A was awake when he arrived. He said she had told him she had a boyfriend in Vaini which A had denied in cross-examination. She had asked him if he had a girlfriend and he said he did not. He said she leaned over and they kissed. They were sitting together and she had started talking dirty. By this, he said that she had asked whether he had gone with any girl and he had told her no. He said she lay towards him and he felt horny. He said that she had said to go and sit under a tree which was at the back of their house. She lay down. She took off her pants and underwear and he took off his clothes. That was about midnight. He said they kissed and had sexual intercourse. He was then asked (question 85 of the record of interview) “Did you know Sione when you looked at [A] that she was still a young person under the age of 15?” and his response was “yes”. He was then arrested and charged with carnal knowledge of a girl under 15.
   
7. In response to the charge, he said the charge was true. He then made a statement under caution in which he said that he was remorseful over what he had done to the complainant. The reason he said that he had done this to her was because he did not know she was underage. And they had both consented.
   
8. Under cross-examination from Mr Niu, detective Vea admitted that there were inconsistencies in the answers provided by the accused in Question 32, when the accused had said he thought that she was 17 or thereabouts, and section 85 in which the detective had asked him whether he knew when he looked at her that she was still a young person under the age of 15, and his answer in his voluntary statement that he did not know she was underage. Mr Niu asked what he, detective Vea, took to be his answers, did he know or did he not know she was underage? Detective Vea said in response to this question that he did not know. Later, detective Vea said, “That is the truth. I should have questioned him again especially when it came to the last question but I did not manage it, but the truth is I should have revisited the question. Later, when shown the blown up photograph of the accused he said that she could be 14 or she could be 15.
   
9. The accused gave evidence and said that he helped his aunt in the markets as a delivery man. He confirmed much of what he had said in his record of interview concerning meeting the accused and said that he had been part of the town police. He said of the exhibited photograph of A that he recognized her as wearing the clothes that day and that he estimated her age as 17 when he met her at Fatu market. The accused answered he did not understand the answer he had given to question 85 which Mr Niu translated as “You knew Sione looking at A she is not 15”, to which he had replied yes.
   
10. Mrs Langi cross-examined the accused and he had agreed that he had not asked A about her age or school. He also agreed with Mrs Langi that was not really important to him. He maintained it was A who had texted him. It was put to the accused that he had wanted to have sexual intercourse with A and he did not care about anything such as age and that was it. He responded yes.
    
11. In re-examination by Mr Niu who asked what he meant when he said it was not important to him, he said I did not know her very well. He maintained he did not want to ask about her age because he did not know her at the time. He said that he did not know it was a crime to have carnal knowledge of a person her age. He said in answer to a question from Mr Niu “when you saw A did you think she would be of the age that is allowed to have sex with or not have sex, and he answered “type of age where she is allowed” and he again maintained he thought she was 17. He added the things that caused him to think this was her attitude to him, the fact she talked dirty and her appearance. He said the way she looked he could see that she was a girl of 17 years of age. I asked him was there any stage when you were troubled or concerned that she might be too young for sex. He replied “No, the way I looked at her she had been older”. I asked him “so you are saying that night, she look sufficiently old in your mind, and answered yes. Then I asked him “Ok to have sex with”, and he responded yes.
    

Ruling

12. The Crown has to prove beyond reasonable doubt under section 121(2) of the Criminal Offences Act that the accused carnally knew A on the month of August, 2016 as alleged, and that she was at the time under 15. The section is silent concerning any defence that the accused believed her to be over 15, but this can be inferred from section 123 which states that consent will be no defence to such a charge but 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.
    
13. In some jurisdictions a belief as to age is defined by statute. That is not the case in Tonga. Parliament seems to have accepted, however, that a person who honestly and reasonably believed the complainant was under the age of 15 could advance this as a defence or the prohibition would have been extended to offences under section 121(2). I note the section refers to a person who merely honestly believed this was the case. I observe that in two unreported cases referred to by Mrs Langi, R v Mafoa CR122/2002 Ford J and R v Vakaloa CR 63/2007, Andrews J on the application to the former section 124 of the Criminal Offences Act relating to indecent assault the Courts considered it was open to the defence to raise the issue of honest belief that the complainant was above the age where she could not be regarded in law as capable of giving her consent (at that time 16, now 15). In those cases, both Judges relied on English cases and common law. In R v Mafu Ford J referred to B (a Minor) v DPP [2000] UKHL 13; [2000] 1 All ER 833 where the House of Lords had ruled that the accused was entitled to be acquitted if he held an honest belief that the complainant was 14 years or over. Ford J noted that one of the issues raised by Crown Counsel against such a defence was that it would be difficult for the Crown to disprove the defence. Lord Steyn, however, 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”.

14. Ford J held in Mafua, that the Crown was not able to disprove on the evidence the defence of knowledge of age and the prosecution failed. In Vakaloa, Andrew J considered however rejected this defence where the accused was 29 and the complainant 14. The accused, Andrew J considered, at the least had been reckless and indifferent to her age. The accused, in that case, was still a school girl. The accused knew she had been avoiding school, that she had her school uniform with her and that she needed to change back to her uniform in order to be able to go home and avoid her parents learning that she had been expelled. Andrew J considered that the accused had been reckless or indifferent to her age and he was not satisfied that he held an honest belief that she was over 16.
    
15. 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. He, in his record of interview, had first told the police officer when interviewed several months after the incident that he believed her to be about 17. He stated after he was charged in his voluntary statement that he would not have had sexual intercourse had he believed that she was under age. I was concerned with what I considered was a leading question when the accused answered yes to Question 85. I formed the view during the quite lengthy observation of the accused that he was a retiring and rather simple person and, in these circumstances, there is a risk that leading questions may elicit answers that are unreliable. For the same reason, I approach the answer yes he gave Mrs Langi when she suggested to him he was interested in having sexual intercourse and did not care about age as evidence of indifference to age.
    
16. I have not found this issue easy to resolve. However, the accused was only 18 at the time of the incident. I do not consider him a particularly worldly or experienced youth as I have said, having viewed him in the witness box for some time. He was not, like Vakaloa, a mature man of 28 with knowledge that the complainant was a schoolgirl who had troubles and was vulnerable. I consider that the complainant was as keen to have sexual intercourse with him as he was with her although she might have expressed some diffidence in her evidence about this. They had both plainly felt an attraction to the other or matters would not have progressed as quickly as they did. They were both young people and whilst he was older than her, that factor here was not to my mind of such a disparity that it would require him to make inquiry. Nor does the appearance of the complainant in the photograph taken at the time (who appears well presented and not in school clothes) appear so at odds with the appearance of someone over the age of 15 or even older as the accused suggested she was. I am satisfied that he did not know she was at school. An insight into his experience in this area I considered was his description of her “dirty talk” as her questioning him as to whether he had sexual relations with another. I did not find him a witness that I could reject as clearly dishonest when he said that he believed her to be older than she was and of an age to have carnal knowledge.
    
17. I accept that he probably had no knowledge of the relevant age of consent of carnal knowledge. Whilst ignorance of the law cannot assist him, unless there exist, in my view, circumstances or factors which should have led him, if he were honest, to make inquiry as to her age, his assertion of a belief that she was old enough to lawfully have carnal knowledge should be accepted. Recklessness or indifference, depends as Andrew J recognized in Vakaloa on an appreciation by an accused that circumstances exist which call for him to inquire as to the age of the complainant before proceeding to have consensual intercourse.
    
18. I have considered all the evidence on the issue of age. Age can be deceptive. I am left in a reasonable doubt on this issue and accordingly, the Crown had not discharged its onus of proof. I also note that my reasoning would be the same should a higher standard than honest belief be required, that is one that is based on reasonable grounds. I consider his belief was in the circumstances based on a reasonable foundation, for the reasons I have given and he should be acquitted.
    

Verdict – not guilty. The accused is discharged.

C. B. Cato
DATED: 2 FEBRUARY 2018 J U D G E