IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

Cr 122/2002

R

v

Mafua

Ford J
17 and 18 March 2003; 26 March 2003

Criminal law – indecent assault – lack of knowledge of age of complainant – acquitted

The 15-year-old complainant was born on 31 December 1987 and her child was born on 1 May 2001. She lived with her maternal grandparents at Makapae and she knew the accused. He was a close friend of her grandfather's, Pila, and often attended kava parties at their home. According to the Crown's case, on the morning of Saturday 24 August 2002, the complainant and her 15 month-old baby were effectively abducted by the accused from the Talamahu market and held hostage until their release two days later. During that time, the complainant was subjected to threats and acts of sexual intercourse, first in the bush at Sopu and later in the bush near Fatai. The accused, however, was not charged with the more serious offences of seduction or rape. Instead he faced one charge only of indecent assault, contrary to section 124 of the Criminal Offences Act (Cap 18). He pleaded not guilty and the matter proceeded to trial.

Held:

1. To establish a charge of indecent assault the crown must prove first, that there was an assault on the complainant, which is any intentional application of force. Secondly, the assault must be indecent according to commonly accepted community standards. Finally, the crown must establish that the complainant did not consent to what occurred and that the accused did not honestly believe that the complainant consented. As in any criminal case, the onus lay on the Crown to prove all the various elements of the charge beyond reasonable doubt. There was no onus on an accused person to prove anything or to give or call evidence in his defence.

2. One of the elements which the crown had to be able to establish beyond reasonable doubt in order to prove guilt was mens rea or, in other words, that the accused had knowledge of the wrongfulness of his acts. The accused satisfied the court that the complainant consented to the acts which formed the subject of the charge and satisfied the court that he honestly and genuinely believed upon reasonable grounds that the complainant was over the age of 15 years. Given these factual findings the court asked where was the guilty mind?

3. The crown was not able to disprove the defence of lack of knowledge of the age of the complainant and the prosecution must fail. The accused was, accordingly, acquitted.

Cases considered:
B (a minor) v Director of Public Prosecutions [2000] 1 All ER 833
R v K [2001] 3 All ER 877
R v Tolson (1889) 23 QBD 168

Statutes considered:
Criminal Offences Act (Cap 18)

Counsel for the Crown: Mr Pouono
Counsel for the accused: Mr Tu'utafaiva

Judgment

According to the Crown's case, on the morning of Saturday 24 August 2002, the complainant and her 15 month-old baby were effectively abducted by the accused from the Talamahu market and held hostage until their release two days later. During that time, the complainant was subjected to threats and acts of sexual intercourse, first in the bush at Sopu and later in the bush near Fatai. The accused, however, has not been charged with the more serious offences of seduction or rape. Instead he faces one charge only of indecent assault, contrary to section 124 of the Criminal Offences Act (Cap 18). He pleaded not guilty and the matter proceeded to trial.

The 15-year-old complainant told the court that she was born on 31 December 1987 and her child was born on 1 May 2001. She said that she lived with her maternal grandparents at Makapae and she knew the accused. He is a close friend of her grandfather's, Pila, and he often attended kava parties at their home.

She said that on the morning of 24 August the accused and his friend, Sitalingi, picked her and her baby up from the market on the pretext of taking her to a nearby takeaway shop to buy some food for her grandmother who was still at the market. Instead, they drove her to Sopu and dropped her off at the corner of the turn-off to Hofoa. The accused then told her to wait for him by the beach while he took Sitalingi to his home at Hofoa.

The accused eventually returned and told the complainant to run away with him. They had sex for about an hour under a fau tree along the foreshore. The accused had threatened her with a knife and said that if she did not have sex with him then he would kill her. The baby lay on the ground along-side of them. After the intercourse had taken place, the accused fell asleep. They remained under the fau tree until approximately 5 pm and then they walked around the beach to the village of Fatai and stayed the night at an api belonging to one of the accused's relatives.

Early on the Sunday morning, the accused took the complainant into the bush at Fatai and had sex with her again under a fau tree. The complainant said that she told him not to do it but he forced her. She said that on that occasion the intercourse lasted for some two hours. Her child was still with her. They had had nothing to eat. 

At about 8 am that same morning, they moved from the bush into an area of tall grass and they talked. After a while the accused started touching her again and they moved under a banana tree. The complainant said, "he told me to take off my clothes but I refused and so he forced me." They again had intercourse. On that occasion, the complainant said, "he fucked me from the back." They stayed in the long grass area until dusk when they moved to another bush area. Early the following morning, the accused walked the complainant to the road at Lakepa leading to her home. She said that she told her grandfather and mother what had happened. Her mother had already complained to the police over her disappearance.

In cross-examination, the complainant said that she had been adopted by her grandparents when she was only a few month-old but she kept in touch with her mother who lived nearby. Since the incident, she had gone back to live with her mother and stepfather. She told the court that she had left school in 1999 when in the fourth form because her grandparents had told her to.

The complainant denied having had sex with the accused on any other occasion or having made arrangements to meet him at the market on the Saturday in question. Mr Tu'utafaiva cross-examined her closely on all aspects of her evidence about the abduction. She told the court that she was unable to yell for help when they were having sex at Sopu because the accused had grabbed her mouth and held it. It was put to her that she could have run away after the intercourse when the accused had fallen asleep but she said that she was unable to do so because he was lying on her shirt. When asked why she had not made an attempt to call out for help, she said that she did not see anyone and she felt scared. 

The mother of the complainant was called as a witness for the Crown. She told the court of the efforts she and her own mother had made over the weekend to try and locate the complainant and her baby. In cross-examination the mother, 'Ana, told the court that the complainant had left Liahona High School in August 2001, not in 1999 as she had told the court. She also denied that the complainant had reached form four. 'Ana agreed that the father of the complainant's child was a married man who had abducted her and was now serving time in prison over the offence. The child's father was not the accused.

'Ana had said in evidence in chief that when her daughter disappeared during the weekend in question, she suspected that she had been taken by the accused who, she was aware, had been visiting the grandparents home frequently. She explained that her suspicions were based on what she had "observed and felt as a mother". In cross-examination the witness expanded on her observations at the time and told the court that her daughter had been sleeping a lot which was strange. She assumed, therefore, that her daughter was having sex with a man but when she had put this proposition to her, the daughter had denied it.

The only other witness called by the Crown was Sitalingi. Defence counsel consented to the admission of all the police documentation as exhibits without the Crown having to call the police officers involved. 

The elements which the Crown must prove in order to establish a charge of indecent assault are well-established. First, there must be an assault on the complainant, which is any intentional application of force. Secondly, the assault must be indecent according to commonly accepted community standards. Finally, the Crown must establish that the complainant did not consent to what occurred and that the accused did not honestly believe that the complainant consented. As in any criminal case, the onus lies on the Crown to prove all the various elements of the charge beyond reasonable doubt. There is no onus on an accused person to prove anything or to give or call evidence in his defence.

In this case, the accused elected to give evidence. He told the court that he is a 43-year-old married man with four children. He works planting vegetables and one of his work colleagues is the complainant's grandfather, Pila. Nearly every day after work they go around to Pila's api to drink Tongan kava. He knows the complainant well because she would sometimes serve the kava.

The accused said that on the night of Friday 16 August 2002 he was drinking kava at Pila's place when the complainant approached him and asked whether he would take her grandmother, Siva, to hospital because she was feeling unwell. He agreed and he drove them to Vaiola hospital in his car. The complainant and her baby sat in the front seat and in the back seat were the grandmother, Siva, the complainant's mother, 'Ana and the complainant's seven-year-old sister, Keli. When they arrived at the hospital at around 9 pm, the accused was given $5 for petrol but he refused the money and gave it back to the complainant. The mother and grandmother then went into the hospital and the complainant gave the $5 to her young sister and told her to go and buy something from the shop. The accused said that the complainant then started touching his arm and when he took her hand, which was on his shoulder, she touched his penis. They then began kissing and she allowed him to touch her breasts. The accused asked the complainant whether they would have a chance to have sex and she told him that she would be waiting for him on the east side of the Talamahu market at 10 am the following day. The next morning the accused did not arrive at the market until sometime after 11 am but the complainant was waiting for him and they drove out to a tax allotment at Lapaha and had sexual intercourse under a mango tree. He later drove her back into town and dropped her off at the hospital.

That entire incident had, quite properly, been put by Mr Tu'utafaiva to the complainant in cross-examination. She admitted everything about the hospital visit but denied kissing or having any other physical contact with the accused. She also denied arranging to meet him the following morning and travelling out to Lapaha.

Turning to the weekend in question, which was the following weekend, the accused said that on the Friday night he had taken the complainant and her grandmother into town to pay the power bill. He said that when the grandmother went into the Shoreline office to pay the account, he and the complainant arranged to meet at the market again the following morning. That same Friday night, the accused and his friend Sitalingi drank kava and alcohol, first in town and then at Pila's place. The accused drank throughout the night and was heavily intoxicated. 

On the Saturday morning Pila asked the accused to drop him off at the Talamahu market. He agreed but he asked Sitalingi, who had had some sleep, to drive his car. The complainant and her baby travelled with them. The grandmother, Siva, had stayed at the market overnight. When they reached the market, the complainant went to see her grandmother at the stalls and then returned and told the accused to take Pila back home because he was too drunk and then come back and pick her up. She told him that she would leave her baby with the grandmother. The accused and Sitalingi proceeded to drive the grandfather home and when they returned to the market the complainant, with her baby, climbed into the back seat of the vehicle alongside the accused. The accused asked her why she had brought the baby and she replied, "because I want to come away with you for good."

Sitalingi was driving and when they reached Sopu and the turn off to his home village of Hofoa he told the complainant to get out of the car and wait for the accused to come back because he was afraid that his de facto wife would see her in the back of the car and assume that there was something going on between them. The accused said that when they then reached Sitalingi's home at Hofoa, he found that his own wife, 'Aimea, was with Sitalingi's partner. 'Aimea was angry with the accused because he was so drunk and she took the car away from him so that she could go shopping. The accused then had to wait approximately 20 minutes for a bus to come by so that he could go back and link up with the complainant who was still waiting for him alongside the road at Sopu.

The accused told the complainant that his wife had taken the car off him and he had no money for another vehicle to take her anywhere. The complainant responded that she just wanted to go with him. They then went into a bush area opposite a residential house on the corner of the turn off to Hofoa and had sex under a fau tree. At one point some children going through the bush noticed them. The accused said that the complainant took off her own clothes and the baby slept on a blanket in a baby carrier alongside of them. At that stage it was about 12 noon. The accused said that he was "dead drunk" and he then fell asleep and did not wake up until 4.30 pm. When he awoke the complainant and her baby were still lying there. He told her to walk to Hofoa and get Sitalingi to drive her home but she replied that she did not want to go back home. They then walked around the foreshore to Fatai where they stayed the night in a house belonging to a friend. They ate some bread before going to sleep and the baby had some strawberry drink.

The following morning, they walked to the accused's tax allotment between Fatai and Lapeka. They took turns in carrying the baby. There is a small house on the tax allotment and they had intercourse again in a bed inside the house. They then slept for a period but the complainant became concerned that her family would be looking for her and she would be beaten up. For this reason, she insisted that they should move outdoors. The accused took some blankets from the house and they stayed outside under some fau trees for the rest of the day. When darkness fell, they returned inside the house.

The accused told the court that the complainant was adamant that she did not want to return home to her grandparents but she finally agreed to do so on the Monday morning after he promised her that he would move in and live with her grandparents. He walked the complainant to the road near her home. He was eventually spoken to by the police the following week.

The Crown prosecutor's cross-examination of the accused was very brief. The accused was not challenged on any part of his story or over his assertion that the complainant consented to everything that had gone on. Instead, he was cross-examined about his knowledge of the complainant's age. Crown counsel asked why he had not made any attempt to find out the girl's age. The accused said that he had not considered that question because, as she had already given birth, he assumed that she was older. His answer in that respect, as with the rest of his evidence, was consistent with what he had told the police in the official Record of Interview. The last questions recorded in the police interview (as translated) read:

"Q. 51. It was said that you threatened (the complainant) with a knife to have sex with you?

A. Hey, police officer, there was no such thing happened for she was left at the foreshore and I returned later and I was dead drunk -- I fell asleep from drunkenness but she did not leave me.

Q. 52. What about her age, had you already asked her about that?

A. No. I thought that she was 18 years old or more for she had already given birth and she had a gap in her teeth that made me think she was old."

It is fair to say that in the witness box the complainant certainly appeared to be older than 15 and I accept, for the reasons he gave, that the accused honestly and genuinely believed on reasonable grounds that she was over the age of 15 years. Whatever views one might have about the morality of his conduct, the accused did appear to be a truthful witness and I have no reservations in accepting his description of the events wherever it differed from that given by the complainant. The complainant's story was simply not credible and I reject it out of hand. I am satisfied that she was a willing participant in everything that happened and that she freely consented to the acts of sexual intercourse. 

That is not the end of the matter, however, because section 124 of the Criminal Offences Act, under which the accused has been charged, provides in subsection 2 that a girl under the age of 16 years cannot, in law, give any consent which would prevent an act being an indecent assault for the purposes of the section. It is that provision which the Crown relies upon in the present case and counsel submits that once the Crown has proved an indecent assault has taken place and that the complainant was under the age of 16 years then that is all that is required. The Crown does not have to be concerned over establishing whether or not the accused believed that the girl had consented because under subsection 2 it is impossible, as a matter of law, for her to give her consent. As Crown counsel put it, "section 124(2) does not require any mental element."

No authorities were cited to the court but I cannot accept that bald proposition advanced by the Crown. Every criminal act requires a mental element unless it is ruled out by the specific language of the text creating the offence. As Lord Steyn expressed the requirement in R v K [2001] 3 All ER 877 (at 910):

"It is well established that there is a constitutional principle of general application that whenever a section is silent as to mens rea, there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea." 

Lord Bingham, in the same case, referred to R v Tolson (1889) 23 QBD 168 at 187 and the following passage from the judgment of Stephen J., who he referred to as "an authority on the criminal law without rival in his time":

"The mental element of most crimes is marked by one of the words "maliciously", "fraudulently", "negligently", or "knowingly", but it is the general -- I might, I think, say, the invariable -- practice of the legislature to leave unexpressed some of the mental elements of crime. In all cases whatever, competent age, sanity, and some degree of freedom from some kinds of coercion are assumed to be essential to criminality, but I do not believe they are ever introduced into any statute by which any particular crime is defined."

Applying these principles to the present case, I find nothing in section 124 of the Act which by necessary implication justifies, in the words of Lord Bingham (at 907), the compelling conclusion that Parliament must have intended to exclude the mens rea requirement. One of the elements, therefore, which the Crown had to be able to establish beyond reasonable doubt in order to prove guilt was mens rea or, in other words, that the accused had knowledge of the wrongfulness of his acts. The accused, for his part, has satisfied the court that the complainant consented to the acts which form the subject of the charge and he has satisfied the court that he honestly and genuinely believed upon reasonable grounds that the complainant was over the age of 15 years. Given these factual findings, I pose the rhetorical question, where is the guilty mind?

The Crown needed 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. In the R v K case the 26-year-old defendant had been charged with indecent assault on a 14-year-old girl contrary to section 14(1) of the Sexual Offences Act 1956 (UK). His defence was that the sexual activity between them had been consensual and he honestly believed that she was 16. Section 14(2) of the English Act is identical to section 124(2) of the Tongan Criminal Offences Act. It provides that a girl under the age of 16 cannot in law give any consent which would prevent an act being an assault for the purposes of the section.

After considering in detail the history of the relevant legislation, the House of Lords in answer to a certified question referred to it by the Court of Appeal, held that the defendant is entitled to be acquitted if he holds an honest belief that the victim was aged 16 years or over. The defendant's belief need not be reasonable provided that it was honest and genuine.

That decision was consistent with an earlier decision of the House of Lords in a slightly different context, B (a minor) v Director of Public Prosecutions [2000] 1 All ER 833 which was a case involving a 15 -year-old boy who was charged with inciting a girl under the age of 14 to commit an act of gross indecency, namely oral sex. It was accepted that the defendant honestly believed that the girl was over 14 years. The issue was whether the defendant was entitled to be acquitted if he held an honest belief that the girl was 14 years or over. The House of Lords answered the question in the affirmative. 

One of the issues raised by Crown counsel in that case was that it would be difficult for the Crown to disprove a defence of lack of knowledge of the age of the victim. Commenting upon the submission, Lord Steyn (at 851) said:

"In my view counsel has overstated the difficulties ... , recklessness or indifference as to the existence of the prohibited circumstance would be sufficient for guilt. 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."

In the present case, the Crown has not been able to disprove the defence of lack of knowledge of the age of the complainant and, having regard to my findings as set out above, the prosecution must fail. The accused is, accordingly, acquitted.