State v Hayden [1976] PGLawRp 659; [1976] PNGLR 509 (10 November 1976)

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CRIMINAL LAW - Particular offences - Unlawful carnal knowledge - Proof that girl under 16 years of age - Sufficiency of proof of age - No written records available - Unsafe to act on oral evidence - Criminal Code s. 219[dlvii]¹.

On a charge of unlawful carnal knowledge of a girl under the age of 16 years, under s. 219 of the Criminal Code, strict proof of the girl’s age is required This involves two questions; first, whether there is some evidence of age which if accepted would either prove the girl’s age directly or enable it to be inferred that the girl was under 16 years, and second, where there is some evidence on which the judge could lawfully convict, whether there is sufficient evidence which ought reasonably to satisfy the judge that it has been established that the girl is under 16 years.

On a charge of unlawful carnal knowledge under s. 219 of the Criminal Code, where there was no recorded written evidence of the girl’s age, and where the relevant evidence was that of a councillor who said he first saw the girl in her mother’s arms in 1962, and from the father who said he first saw the child in 1962 when she had two teeth, was not walking too much and was always in the bilum, that he then looked after the child for six years and that she was at school for six years until the end of 1975; and where a Papua New Guinea doctor called to give evidence on other matters, was not prepared to form an estimate of her age, when asked;

N1>(1) Although there was some evidence that the girl was under 16, it was not evidence which was capable of reasonably satisfying the Court of her age, or that she was under 16 years.

N1>(2) In all the circumstances it would be unsafe, for the Court to exercise its discretion and determine the question under s. 92 of the Evidence Act 1975.

N1>(3) Accordingly in the absence of proof that the girl was under 16 years, there could be no case to answer, and the accused should be acquitted and discharged.

The accused was charged with unlawful carnal knowledge of a girl under the age of 16 years, contrary to s. 219 of the Criminal Code. At the close of the evidence for the prosecution counsel for the accused made a submission of no case to answer, on the ground that the Court could not be satisfied beyond reasonable doubt as to the guilt of the accused, because upon the essential element relating to the age of the girl the proof was insufficient.

FROST CJ: I have now to rule on the submission made by counsel for accused that, as the case now stands, I could not be satisfied beyond reasonable doubt as to the guilt of the accused because upon the essential element relating to the age of the girl the proof is insufficient. It is an offence under the Criminal Code, s. 219, to have sexual intercourse with a girl only if it is proved that she was under the age of 16 years, and Mr. Wood contends the proof of age is insufficient. It is well established that strict proof of the girl’s age is required.

As is shown by the authorities referred to in the judgment of O’Leary A.J. in The State v. Paul Kundi Rape [dlviii]², there are two questions: first, whether there is some evidence of age which if accepted would either prove the girl’s age directly or enable it to be inferred that the girl was under 16. The other question is, whilst there may be some evidence on which the judge could lawfully convict, whether there is sufficient evidence which ought reasonably to satisfy the judge that it has been established that the girl is under 16.

But there is no written evidence of the girl’s age. The best way to prove age is by a certificate of birth. As in the case of most Papua New Guinean children, her birth was not registered.

Reference to other records may assist a witness who kept the records to refresh his memory as to age. A councillor said that the girl’s birth was reported to the Council but apparently the census records are not available. It seems there are no maternal child health records.

But, if there is no official record, evidence may be given by the parents or persons who know the girl. The only evidence in this case was that given by the councillor and the father. The councillor, Tatia Meremba, said that the girl was born in Gokme Village, 16 miles away from his village, and that when he first saw her she was in her mother’s arms. It was in 1962. Apparently he fixed the date by reference to 1963, when he first became a councillor. This would make the girl 14-15 years, but possibly older. The other evidence was that of Anton, her father. The mother was not called. He did not know when she was born. He was absent from the village at the time. His work as a medical orderly took him on patrol. He had been away for 1 ½ years on patrol, and then he went to a course for 5 months at Mount Hagen, so he had been away one year and 11 months before he saw the child. He said he saw the child in 1962. She then had two teeth. Asked whether the child was walking, he answered that the child was not walking too much, she was always in the bilum. He then looked after the child for six years and she was at school for six years until the end of 1975.

Not only is the evidence in this case intrinsically unsatisfactory — the 12-year period of father’s care and school from 1962 would have ended in 1974 and not 1975 — but it also depends entirely on recollection, and only in the terms broadly of years. Further, what starting point has the Court? It is not for the Court to speculate on the age of a child in arms or with two teeth, or not walking much, or spending its time in the bilum. The witnesses’ recollection in this case was not related in clear terms to the year 1962, and recollection is notoriously unreliable in this country.

On the whole I have come the conclusion that there may be some evidence that the girl was under 16, but it is certainly not evidence which is capable of reasonably satisfying the Court of the girl’s age, or that she was under 16.

Indeed I did not understand the State Prosecutor to press me to act on the evidence. His submission is that I should act under the Evidence Act 1975, s. 92, and in the absence of evidence to determine the age of a person, having seen the girl I should exercise my discretion and determine the question. However, a note of warning has been struck in this case. A Papua New Guinean doctor, who was called to give evidence on other matters, was asked, by looking at the girl was he able to estimate her age. He said it was a bit difficult, it required a senior doctor, and later was not prepared to form an estimate of her age.

The girl is at a difficult period of her life. She comes from Gembogl — the age of maturity varies in the different localities. The fact that a National doctor is not prepared to make an estimate does not preclude me from making a determination, but in all the circumstances I have decided that it would be unsafe for me to do so.

Accordingly, in the absence of proof that the girl was under 16 years, the submission succeeds. No question therefore arises for the determination of the Supreme Court.

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[dlvii] Section 219 of the Criminal Code provides where relevant: “Any person who (a) has or attempts to have unlawful carnal knowledge of a girl under the age of 16 years; ... is guilty of a misdemeanour, and is liable to imprisonment with hard labour for five years”.

[dlviii] [1976] P.N.G.L.R. 96.

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Papua New Guinea Law Reports

State v Hayden [1976] PGLawRp 659; [1976] PNGLR 509 (10 November 1976)

Papua New Guinea Law Reports - 1976