The Tonga Supreme Court has acquitted a teenager on charges of knowingly having consensual intercourse with a 14-year girl in 2017. The court accepted that the accused, who was 18 years old at the time, believed that the girl was 17 years and would not have had sexual intercourse with the girl if he knew she was 14.  The girl became pregnant as a consequence.

The formal charge was one count of carnal knowledge of a young person under the age of 15 years, contrary to sections 121(2) and 123 of Tonga’s Criminal Offences Act.

In the ruling made by Justice Cato, the girl plaintiff met the accused Sione Siliva Pohiva Tatakamotonga at her uncle’s fair in Lapaha, where the accused obtained the girl’s mother’s mobile number – as the girl did not have her own mobile phone. The accused told the court that it was the girl who offered him the mobile number.

On the following night, the girl and the accused met at her home while her family were sleeping. After arriving to her home, the accused and the girl conversed, kissed and offence took place outside her house. Following the encounter, the pair did not contact each other. The girl became pregnant as a consequence and six months later, she and her family complained to the Police. The girl’s baby died after birth.

Justice Cato said he had not found this issue easy to resolve. He drew contrasts to a previous case involving a relationship between a 28 year-old-man named Vakaloa and a 14-year-old girl.

He stated that Tatakamotonga was not a mature man like Vakaloa and was only 18 at the time of the incident. "I consider that the complainant that the complainant was as keen to have sexual intercourse with him as he was with her, although she might have expressed some difference in her evidence about this. They had both felt an attraction to each other or matter would not have progressed as quickly as they did. They were both young at the time and whilst he was older than her, that factor here was not to mind of such a disparity that it require him to make inquiry.”

A photograph of the girl at her uncle’s fair, was displayed in court.

Having viewed the photo, Justice Cato stated: “Nor does the appearance of the complainant in the photograph at the time (who appears well presented and not in school clothes) appears so at odds with the appearance of someone over the age 15 or even older as the accused suggested she was. I am satisfied that he did not know she was at school.”

Justice Cato concluded after considering 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 has 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 rounds. I consider his belief was in the circumstances based on a reasonable foundation, for the reasons I have given and he should be acquitted.”

The verdict was not guilty and the accused was discharged.

Counsel for the prosecution was Mrs Langi. Counsel for the defendant was Mr Niu.