State v Pongua [1980] PGLawRp 579; [1980] PNGLR 41 (14 April 1980)

Papua New Guinea Law Reports - 1980

[1980] PNGLR 41 - The State v Kami Pongua 

[1980] PNGLR 41

N222

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V.

KAMI PONGUA

Kainantu

Pratt J

11-12 April 1980

14 April 1980

CRIMINAL LAW - Particular offences - Unlawful carnal knowledge - Defence - Belief on reasonable grounds that girl of or over the age of sixteen years - Need not prove belief in any particular or chronological age - Girl aged thirteen years - Defence established - Criminal Code s. 219[liv]¹.

Section 219 of the Criminal Code which defines the offence of unlawful carnal knowledge also provides that it is a defence to a charge of such offence “to prove that the accused person believed, on reasonable grounds, that the girl was of or above the age of sixteen years”.

On the trial of an accused on a charge of unlawful carnal knowledge of a girl under the age of sixteen years (in fact thirteen years old) under s. 219 of the Criminal Code:

Held:

N1>(1)      For the purposes of the defence under s. 219 of the Criminal Code, the accused must establish a belief based on reasonable grounds that he is dealing with an adult or mature person as opposed to a child, and that he believes she is of an age to consent: this he can do by pointing to any number of factors which may subsequently form the basis for having a belief on reasonable grounds that he was not committing any criminal offence at the time intercourse took place; he need not establish belief in any particular chronological age.

R. v. Ulel [1973] P.N.G.L.R. 254 at p. 271 followed.

R. v. Paul Wanigu [1973] P.N.G.L.R. 330 not followed.

N1>(2)      On the evidence the defence was so established and there should be a verdict of not guilty.

Trial.

This was the trial of an accused on a charge of unlawful carnal knowledge of a girl under the age of sixteen years, under s. 219 of the Criminal Code. The girl was in fact thirteen years of age and the accused relied upon the defence provided for in s. 219 of the Criminal Code.

Counsel:

C. J Bourke and K. A. T. Puaria, for the State.

K. R. Roddenby, for the accused.

Cur. adv. vult.

14 April 1980

PRATT J: The accused is charged under s. 219 of the Criminal Code that on 18th December, 1979, he had unlawful carnal knowledge of one, LB a girl under the age of sixteen years. It is a defence to that charge “to prove that the accused person believed, on reasonable grounds, that the girl was of or above the age of sixteen years”. The accused has pleaded not guilty and relies primarily on the defence just mentioned. It is clear on the evidence, and it is conceded by counsel, that LB is a girl under the age of sixteen years and that sexual intercourse did occur between her and the accused on the night of 18th December last or in the early hours of the following morning. The incident took place in the house of one of the accused’s friends, after he and LB had attended an evening film show in the town of Kainantu. Prior to this date, a friendship had grown between the two during the previous four or five months, as a result of the young girl attending a number of night dances without parental or adult supervision, at which the accused played as a member of a band.

In his evidence in chief, the accused says: “I did not really know her age but I say about sixteen.” In response to a question: “Why do you say she is about sixteen?” he replied: “Because I have seen her around pictures and dances at night time; and also by the way she sometimes wears clothes, long dresses.” He further stated that at the dances, LB was usually with one girl, MK, that she danced with boys and girls, that he sometimes danced with her as did also some of his friends. All of this LB freely acknowledged. It is not without significance in the present society that at the time she asked the accused if she could become his girlfriend, she also told him that she had had already one boyfriend. I do not know whether or not this was meant to signify anything of a sexual nature, but I rather think not. It was, I feel, only a means of conveying to the accused that she was a person of some worldly experience. There is no evidence to show whether or not the accused knew LB was attending school at Ukarumpa. There is also no evidence to show whether or not the accused knew of the provisions of s. 219 of the Criminal Code either in specific or general terms.

I do not accept the accused’s answer in his evidence in chief that “she was about sixteen” as indicating any part of his beliefs at the time of the offence. It is now almost four months since he was charged with this offence and I do not doubt that he has become a lot wiser since that date. His attitude towards the girl’s age is much more accurately reflected in some of the statements contained in his record of interview and in his answers under cross-examination. I refer first to questions 35 to 39 in the record of interview:

N2>“Q. 35 Firstly did you ask her age before making friendship with her and have sexual intercourse with her?

Answer No.

N2>Q. 36  Can you tell that she’s old enough to have sex with her?

Answer Yes.

N2>Q. 37  How you can tell that she’s old enough to have sex with her?

Answer Because when I first tried her penetrating my penis into her vagina, she wouldn’t find any difficulties of penetrating my penis into her vagina.

N2>Q. 38  Do you know that she’s too young to have sex with her, as she’s 13 years old?

Answer No, I thought she enough to have sex so I did have sex with her.

N2>Q. 39  What is your intention of doing this trouble?

Answer I want to have sex with her, so I did have sexual intercourse with her.” [sic]

In cross-examination, the following exchange occurred:

“Question: You said that you did not really know her age but you say about sixteen. Did you ever really think of her age or wasn’t it till after the trouble?

Answer: I really didn’t think about her age.

Question: Did you not think about it until the trouble and went to see the police?

Answer: Yes.

Question: Do you agree she is not a very big, tall, strong girl?

Answer: I wouldn’t know.

Question: If someone asked you to judge a girl’s age, what would you look for to judge her age?

Answer: By sleeping with her by having sex.

Question: Apart from that, what other things?

Answer: Clothes.

Question: What about development of her breasts, whether they are big or small?

Answer: Yes.”

Prosecution counsel has argued that the defence can obtain no comfort from the fact that the accused obtained support for his belief as to her age from her sexual receptivity, as this would be relying on a commission of an offence to prove his defence, a pulling himself up by his own bootstraps as it were. Whilst I agree with this in part, it is his own defence with which the accused is concerned, not the offence with which the State has charged him, and it there seems pertinent to me that one of the grounds for establishing the reasonableness or otherwise of his defence, was her capacity to have sexual relations with the accused without apparent discomfort or pain. Conversely, if an accused had a great deal of difficulty in gaining entry, this might well make one dubious about the reasonableness of his belief that she was “enough to have sex”. It is one factor, among many, which can be taken into account. I would agree however that if it were the only factor, the accused would obtain no assistance from it at all.

In her evidence, the girl has stated that she was quite happy to have sex with the accused, that no force was used, and that it took place by mutual agreement. Once again, this evidence is not relevant to the charge itself. The allegation is not one of rape but it does have some bearing on the defence, that is the belief held by the accused and the factors which formed the basis of that belief.

One final matter stems from the record of interview:

N2>“Q. 40 Do you understand now that she’s 13 years of age and not capable enough to have sex with her?

Answer Yes.

N2>Q. 41  Do you know what were you doing is wrong?

Answer Yes.”

In answer to some questions asked by me relevant to this area, the accused replied that he had acquired his knowledge of the “incapability” of thirteen-year-old girls and of its wrongness as the result of the police investigation into his own activities. I accept that as a fact. I think probably that the matter of the girl’s age in terms of years, had not entered the accused’s head prior to 20th December, 1979.

It is true that both the accused and the prosecutrix are educated to some extent and that they have both lived all their lives in a semi-urban environment. They certainly do not come within that section of Melanesian society which formed the factual background in the case of R. v. Ulel[lv]², namely persons who had little or no knowledge of months, years or a person’s age in chronological terms or the relevance of a girl’s sixteenth birthday to the criminal laws of Papua New Guinea—in short, a society where man is not forever tortured by a twenty-four hour clock, and “sees out the old and sees in the new” each 31st December.

However, I do not accept the prosecution’s submission that because of the factual differences, I cannot obtain guidance from Ulel’s case, even though his Honour in that case came to a decision based on “special considerations” where the parties would not have “any real appreciation of chronological age as opposed to physical development as a test of maturity”. In my view, the principles enunciated by Clarkson J are logically just as relevant to a case where no reference to age is made in the mind of the accused for reasons other than education or knowledge of the Gregorian calendar as they are to members of a society to whom such references are utterly meaningless. Whether the defence will be successful or not because of the accused’s education and background in the former case, is another matter. He will certainly have a harder row to hoe.

Counsel have also referred me to another Papua New Guinea authority, namely R. v. Paid Wanigu[lvi]³. In that case, Prentice J (as he then was) followed several earlier decisions of his own and declined to follow Clarkson J in Ulel’s case. (It should be noted that although this latter case was not published until the bound reports of 1973, it was handed down in 1969.) After referring to two earlier decisions made shortly after his arrival in Papua New Guinea from Australia, Sir William Prentice cites the words he used in the second of those decisions of the published report in R. v. Paul Wanigu[lvii]⁴:

“If his Honour means to say more than that in lieu of stating a belief in a particular age of seventeen, an accused may be heard to say some such as ‘I believed her to be of an age when the present written laws of the country allowed her to have intercourse’ and that such an utterance might then be considered as to whether it goes sufficiently to establish belief as to the age of seventeen years or not in the individual case; then I would respectfully find myself constrained to disagree with his Honour’s conclusion. Even if the law allows evidence to be so led, I would consider the reasonableness of belief of the individual concerned would still require to be directed and tested against a probable age of seventeen.” (As the age of consent then was.)

Further on Sir William concludes[lviii]⁵:

“In any event I consider that when the accused was using the phrase ‘the girl was old enough—her breasts were big’, he was relating to physical aptitude to sex without the likelihood of physical damage—and not to the question he is required to raise under this defence—her age under s. 215.”[lix]⁶

In R. v. Ulel[lx]⁷, Clarkson J has relied heavily on a decision of the Queensland Criminal Court of Appeal reported under the title R. v. Logan[lxi]⁸ and to a lesser extent on a New Zealand authority R. v. Perry and Pledger[lxii]⁹: Unfortunately, Sir William Prentice in Paul Wanigu’s case did not deal with either of these cases so I do not have the benefit of comparing the views of both their Honours on this very important aspect. As I appreciate the ratio of the decision in Logan’s case as handed down by Mack J (as he then was), it may be summarized as follows:

The belief in a girl being of or above the age of sixteen years amounts not to a belief that she was of a particular age, but that she was “of consenting age”, and that amongst other reasonable grounds for coming to this conclusion are that “she had the appearance of an adult and she acted as an adult and the prisoner therefore assumed she was an adult”.

The passage of Mack J quoted by Clarkson J of the Ulel report reads as follows[lxiii]¹⁰:

“The onus of proving a belief on reasonable grounds rested upon the appellant. It is therefore obvious that the only reason he entered the witness box was in an endeavour to establish this defence. There was only one disputed issue for the jury, ‘Had the prisoner proved on the balance of probabilities that he believed on reasonable grounds the girl was of or above the age of seventeen years?’

A belief on reasonable grounds is an opinion which is held by the prisoner without knowing all the facts. If it were necessary to know all the facts the section would be reduced to an absurdity. The section does not mean that the prisoner must necessarily form an opinion that the girl is of a particular age, e.g. eighteen years or twenty-one years. It is sufficient that he believes she is of consenting age. Whether the prisoner believed the girl was of an age of consent and whether he held the belief on reasonable grounds were questions of fact for the jury.

Evidence to go to the jury of a belief on reasonable grounds could be that the girl had misrepresented her age or she had the appearance of an adult and she acted as an adult and the prisoner therefore assumed she was an adult. The defence does not necessarily fail because the prisoner did not ask the girl her age, and it does not inevitably succeed if the girl informed the prisoner she was of age. They are merely factors in particular cases for the jury to take into consideration.”

There is obviously an assumption underlying Mr. Justice Mack’s use of the term “the age of consent”, namely, that most members of the community who would hear or read his decision would know such age to be a specific number of years in respect of sexual offences. Likewise, when his Honour uses the term “adult”, he is not referring to someone over twenty-one years, that is a person who is no longer an infant within the law of contract and trusts. Nevertheless, in enunciating the principles underlying the defence to s. 215, I do not think Mack J had in mind any particular age at all but merely a belief by the prisoner that whatever be her age, she is old enough to consent. It seems to me then that what is required under defence section to our s. 219, is a belief based on reasonable grounds by the defendant that he is dealing with an adult as opposed to a child, and that he believes she is of an age to consent.

I do not accept the proposition that in order to rely on the defence provisions of s. 219, an accused has to say under oath: “At the time, or just before I had intercourse I considered the question of her age and formed the belief that she was of or over the age of sixteen”. I am firmly of the view that such an approach is completely unrelated to the facts of life in many of the situations from which a charge of this nature arises. What has to be established is that at some subsequent time, usually when the man finds himself confronted by a police officer, there are factors which he can point to which illustrate a belief that he was not committing any criminal offence at the time intercourse took place. In reaching that belief of course, he cannot rely on an ignorance of the specific provisions of s. 219, an ignorance of the statutory prohibition against intercourse with girls under sixteen. Section 22 of the Code specifically prevents a recourse to such lack of knowledge. It may well be that he has been deliberately told lies by the girl concerning her age, but it may often be that the girl’s conduct, dress, manner, the circumstances under which they met, and those leading up to eventual intercourse, are such that no apparent necessity to give real consideration to the girl’s age arose at all. On due reflection, it becomes apparent that although the accused had not come to any specific conclusion as to age, all his assumptions and observations would lead to the inevitable conclusion, where he asked to make it, that she was of or over sixteen or had arrived at the age of consent. Indeed, all these factors subsequently form the basis for having reasonable grounds.

It has been said on many occasions that laws in the nature of s. 219 are there not only to protect young girls from unscrupulous older men, but to protect themselves at times from themselves. But that is not relevant to whether or not a defendant holds a particular belief on reasonable grounds, and whether or not such belief can only be expressed in terms of numbers of years, or whether or not it may be just validly expressed in other terms such as “old enough”, “grown up”, “adult”, “mature” and so on. This is precisely what was being suggested by Clarkson J in R. v. Ulel when he said[lxiv]¹¹:

“I have concluded that when the accused said he believed the girl to be of marriageable age he thus expressed loosely but as best he could without reference to age as a measure of maturity the belief which constitutes a defence under s. 215 of the Code.”

With his Honour’s conclusions, I respectfully agree. As I have said a little earlier, I do not think it is necessary to restrict the ambit of his Honour’s reasoning to the circumstances of the particular case before him. There may well be other circumstances where the principle has equal application. Whether such circumstances are made out or not is a question of fact, and the further one departs from the facts which form the basis of Mr. Justice Clarkson’s judgment, the more difficult it will be for a defendant to convince a judge of fact that he had reasonable grounds for his belief.

I therefore find myself unable to agree with Sir William Prentice’s more direct and clear-cut approach as expounded in Wanigu’s case, despite the highly persuasive submissions placed before me by Miss Bourke on behalf of the prosecution.

It now falls to apply the law to the facts of the present case. From the evidence I find as follows:

N1>1.       The prosecutrix, LB, was born of an Australian father and Melanesian mother on 2nd May, 1966, and lived with both her natural parents until her mother departed some three years later. LB was then left in the actual custody of her natural father. She was and still is a student at High School.

N1>2.       The accused is a young Melanesian man of some nineteen years of age, born in Kainantu and educated to Grade 10 by the completion of 1976. He had some employment as a Rural Development Recruitment Officer in 1978 and is a member of a local dance band which performs regularly at the Army Hut, the Country Club and the Kainantu High school as well as various “private” parties. He appears to be an intelligent person and to have a reasonable command of the English language.

N1>3.       Whilst the accused was a member of the band, LB had asked him to become her boyfriend, and this was agreed to by the accused.

N1>4.       The accused and LB had been associating prior to the time of the offence for some four or five months. During this period, LB attended many of the dances in company with another young girlfriend, MK, and sometimes wore long dresses, sometimes slacks and sometimes skirts. She did not use make-up and did not alter her natural hair style. The dances usually finished at midnight. At no time was LB accompanied to these dances by any mature adult or chaperone. In addition, LB also attended films without the company of any mature adult. The accused had on at least one prior occasion seen LB at the films.

N1>5.       As one would expect in Kainantu, some of the boys in the band, and possibly at the dance, accompanied the girls on their walk back home in the middle of the night. This home appears to be that of LB’s girlfriend.

N1>6.       On the night of 18th December, 1979, the accused and LB went to the film. After the show they walked to the home at which LB was then sleeping but decided to continue on to the house of a friend of the accused. There they slept the night and sexual intercourse took place. It appears from the accused’s record of interview that there may have been an act of intercourse between them several months earlier. However, this is not the subject of any charge and prosecution did not seek to lead any evidence as to this event.

N1>7.       At no stage had the accused given any thought to LB’s age in terms of years. He had seen her on a number of occasions at night films and dances. He did not come to a specific conclusion that she was, chronologically speaking, sixteen years or over. Indeed, he did not come to any conclusion that she was of a particular age in chronological terms.

N1>8.       At the time of the trial, having seen and heard LB, I would not be prepared to find as a fact beyond reasonable doubt that she was under the age of sixteen, without other evidence to support such finding. She is an attractive young person with apparently some breast development which may or may not have reached full growth. She has a certain air of poise which one may not always expect to find in thirteen-year-old girls.

N1>9.       On the basis of all his observations and confirmed by the actual act of intercourse itself, the accused has established to my satisfaction on the balance of probabilities a belief on reasonable grounds that LB was a young adult and thus a person with whom intercourse would not constitute an offence against the laws of the country.

Accordingly, I consider that the accused has made out a defence under s. 219 and I therefore find him not guilty of the charge.

Verdict of not guilty.

Solicitor for the State: C. Maino-Aoae, Public Prosecutor.

Solicitor for the accused: D. J McDermott, Acting Public Solicitor.

> R>

[liv][lv] [1973] P.N.G.L.R. 254.

[lvi] [1973] P.N.G.L.R. 330.

[lvii] [1973] P.N.G.L.R. at p. 332.

[lviii] [1973] P.N.G.L.R. at p. 333.

[lix] What was previously s. 215 in the Criminal Code (Queensland, adopted) has now become s. 219 in the 1974 Criminal Code.

[lx] [1973] P.N.G.L.R. 254.

[lxi] [1962] Q.W.N. 5.

[lxii] [1920] N.Z.L.R. 21.

[lxiii] [1973] P.N.G.L.R. at 269.

[lxiv] [1973] P.N.G.L.R. 254 at p. 271.