State v Nimo and Sindi [1980] PGLawRp 588; [1980] PNGLR 129 (26 June 1980)

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CRIMINAL LAW - Practice and procedure - Joint trials on separate indictments - Whether nullity or irregularity - Consequences of being irregularity - Whether curable by lack of objection - Whether substantial miscarriage of justice likely to occur.

CRIMINAL LAW - Particular offences - Unlawful carnal knowledge - Defence - Belief on reasonable grounds that girl of or over the age of sixteen years - Belief to have some nexus with statutory age - Belief in physical or customary maturity not sufficient - Criminal Code s. 219.

In a joint trial of two accused each charged on separate indictments alleging a single count in identical terms of unlawful carnal knowledge:

N1>(1) In Papua New Guinea, a joint trial on two or more separate indictments is an irregularity and not a nullity.

N1>(2) Such a joint trial, once commenced, should be permitted to continue unless there is a likelihood of a substantial miscarriage of justice by reason of the trials proceeding simultaneously.

N1>(3) Such an irregularity can be cured by lack of objection unless the irregularity is substantial.

N1>(4) In permitting such a trial to proceed the constitutional rights of the accused guaranteed under s. 37 of the Constitution of the Independent State of Papua New Guinea, are not infringed.

further, (in determining whether the accused had discharged the onus of establishing the defence available under s. 219 of the Criminal Code, namely that he believed on reasonable grounds that the girl was of or above the age of sixteen years).

N1>(6) For the purposes of the defence under s. 219 of the Criminal Code, the accused must establish that he held certain beliefs at the time of intercourse, from which it may subsequently be inferred, that had he consciously turned his mind to the question raised by the defence, he would have concluded that the girl was of or over the age of sixteen years as specified in the Act.

N1>(7) Belief in the physical maturity of the girl or maturity for marriage according to custom is relevant only to the extent that it provides a nexus with the age laid down specifically in the statute.

This was a joint trial of two accused, each indicted separately on a charge of unlawful carnal knowledge. After the trial had commenced, counsel for the accused objected to the trial further proceeding on the ground that there could not be a joint trial on separate indictments. His Honour having ruled on this matter, the trial proceeded, one accused was acquitted and reasons for verdict against the other were then delivered.

MILES J.: The accused were arraigned today on two separate indictments each bearing a single count in identical terms of unlawful carnal knowledge.

For some reason, these indictments were presented at a prior sitting of the court, and were something of a fait accompli at the time of arraignment. The two accused each pleaded not guilty.

After evidence of the complainant and a doctor, counsel for both accused, Mrs. Ridsdale, has raised objection to the trial further proceeding on the basis that there can be no trial on separate indictments. There is plenty of authority to support this proposition: Archbold (37th ed.) par. 545, Reg. v. Potter & McKenzie[ccxxxvi]¹, and pronouncements in Munday v. Gill[ccxxxvii]², a decision of the High Court of Australia, quoted in Kereku v. Dodd[ccxxxviii]³. In the High Court decision statements to this effect were made obiter in order to show the difference between trials on indictment at common law and summary proceedings before magistrates.

The High Court majority decided that the hearing arising from separate informations before the one magistrate at the one time was not a nullity but an irregularity and that in determining whether to set aside a conviction resulting from such an irregularity an appellate court will take into consideration whether the accused persons consented to a joint hearing and whether a miscarriage of justice is likely to occur.

N1>(1) In Papua New Guinea, is one trial on several indictments a nullity or an irregularity

It is clear from the judgment of Dixon J. (referred to by Minogue A.C.J. in Kereku v. Dodd[ccxxxix]⁴) as to why trial on more than one indictment at common law had to be a nullity:

“... upon a criminal inquest the jurors are summoned particularly to pass between their Sovereign Lord the King and the prisoner at the bar. The prisoner standing upon his deliverance may challenge them or any of them. At common law in treason and in felony he is entitled to a number of peremptory challenges, a right which in Australia has been extended to misdemeanours. When prisoners are jointly indicted they may sever or they may join in their challenges, and the consequences which ensue are prescribed by law. But there is no way allowed by law of putting in charge of one jury at one time two or more prisoners arraigned upon separate indictments.”[ccxl]⁵

In Papua New Guinea the situation is quite different. There are no juries and never have been. The words of Blackstone so long ago strangely enough would seem to apply.

“ ‘There is’, says Blackstone, ‘no intervention of a jury, but the party accused is acquitted or condemned by the suffrage of such person only, as the statute has appointed for his judge. An institution designed professedly for the greater ease of the subject, by doing him speedy justice’ (4. Comm. 280).”[ccxli]⁶

I do not hold that the procedure followed is a “mere” irregularity— it may be a substantial one, depending on the nature of the case brought against each accused.

It is clear from the evidence so far and from statements from Mr. Gavara for the State that the State alleges that the accused Nimo was a principal in the first degree to an act of intercourse with the complainant girl and that Bai Sindi is charged as being guilty of aiding and abetting Nimo within s. 7 of the Criminal Code.

There has been evidence of a prior act of intercourse by a third man, now deceased, the relevance of which is not clear. What is clear however is that the State concedes that the alleged culpability of the two present accused is not based on any common purpose formed with this third man or on any act of complicity with him.

In these circumstances I do not see that there is any likelihood of injustice by reason of the trials proceeding simultaneously.

There could be no question that the two accused could have been indicted jointly under s. 544 (6) and I see no way in which application for separate trials could be successful.

I apply the tests applied in this country in Wari Mugining v. The Queen[ccxlii]⁷ where it was held that a wrongful joinder of charges being an irregularity only is not ground for setting aside a conviction unless there is substantial miscarriage of justice.

I take into account that unless the irregularity is substantial, lack of objection will cure the defect as in Kereku v. Dodd[ccxliii]⁸, and note that in that case there was a substantial miscarriage of justice in respects other than the joint hearing. In the present case the objection was taken as soon as counsel was aware of it but not until two prosecution witnesses had given evidence.

Finally I consider the constitutional position in Papua New Guinea where the dispensation of justice is the paramount consideration. There has been no infringement of the constitutional rights of either accused guaranteed under s. 37 of the Constitution of the Independent State of Papua New Guinea.

It is highly undesirable that separate indictments should be presented in one “lumped” trial. As such a procedure is an irregularity, the court would inevitably have to consider the question of a possible miscarriage of justice as a separate issue from the issues arising in the trial itself. But in the present case there is no likelihood of a miscarriage of justice in allowing the matter to proceed and I propose to allow the trials to continue.

(After hearing the evidence for the prosecution in the joint trial, his Honour acquitted the accused Bai Sindi on the basis that it would be unsafe and dangerous to convict him on the evidence as it stood. The accused Leo Nimo gave evidence and his Honour proceeded to consider his verdict in the case against that accused.)

The accused is charged under s. 219 of the Criminal Code Act with having had unlawful carnal knowledge of a girl under the age of sixteen years. The incident occurred on 19th July, 1979 near Kavieng. There is no dispute and there is no doubt that sexual intercourse occurred, that it was with the consent of the girl and that at the time she was under the age of sixteen years, having been born at Kavieng Hospital on 1st April, 1965.

The issue for determination is whether the accused has discharged the onus of establishing the defence available under the section, namely that he believed on reasonable grounds that the girl was of or above the age of sixteen years. As is well established, this onus is to be discharged on the civil standard, that is on the balance of probabilities, and entails two elements, the first that he had the requisite belief and the second that his belief was based on reasonable grounds.

The evidence establishes that the accused was aged twenty-one years, and a fireman stationed at the Kavieng Fire Station. He comes from a village in Morobe Province, but appears to have spent most of his life around Kavieng. The girl’s parents come from Morobe province also but not from the same area, and had apparently lived in Kavieng ever since the birth of the girl in 1965 up until the date of events giving rise to the charge. Ironically on that night the girl’s father had given a farewell party to friends in Kavieng on the occasion of his impending departure for Morobe after “going finish here” and the intercourse took place after the party. The accused and the girl’s parents each understand the language of the other but the girl does not understand the language of the accused. She and the accused converse in Pigin. The accused lives among the many Morobe people in Kavieng but he says that they do not follow the customary ways.

The accused has known the complainant girl since she was about three or four. In fact he nominated 1968 as the year in which he first knew her. He said at one stage in cross-examination he didn’t know her age then, but she would have been about four and was about three feet high. He has seen her regularly over the ensuing years and noticed her grow. He has seen her at dances at the Golf Club and other places with girlfriends, and without her mother, and has danced European style with her. He had ideas of “taking her as a girlfriend when she was in High School”. She used to dress like a mature female, but only in the sense of wearing meri-blouse and lap lap. By the time the act of intercourse occurred he had formed the view that “she is a big woman”. He went on to say “I can tell by size of breasts and used to see her walking with her boyfriends and girlfriends. I’d see her in shopping centres in town and at dances. She used to go with her girlfriends. I used to think of her girlfriends as big, full grown”, and that in the custom of his area of Morobe province “I know she is all right for me to have sexual intercourse with her”. In cross-examination the following evidence was given:

“Question: You mean you thought she was healthy enough to have sexual intercourse?

Having regard to the demeanour of the accused under skilful (but fair) cross-examination, I do not regard the last question and answer as decisive.

From all this I take the accused to be asserting not that he turned his mind to the question of the girl’s age at any relevant time but that he was of the opinion that the girl had reached such a degree of maturity that it was not wrong for him to have sexual intercourse with her. I am satisfied on the balance of probabilities that this was in fact his state of mind at the time of intercourse. I turn to the question of whether such opinion was based on reasonable grounds. I take into account the appearance of the girl in court. She seems to me to be well developed for her age. In fact when she stepped forward from her seat in court towards the witness box I thought for a moment that she might be the complainant’s mother. Whilst I do not accept the accused’s statement that she looks the same now as she did on the night of the incident nearly a year ago, I am unable to assess the degree of the inevitable change that would have occurred.

Dr. John Sainere was of the view that the secondary sexual characteristics of the complainant were not well developed but as against this I have to take into account that the girl herself said that she had commenced menstruating about two years previously. It would seem therefore that puberty would have been reasonably well advanced. There was considerable evidence about the size of her breasts but that does not lead me to a firm conclusion one way or the other. She was not a virgin but there is no evidence that the accused knew that before the night in question so that is not a decisive factor.

It is apparent that the accused has had some but not extensive education and has grown up partly in a town environment, to some extent influenced by European style ways and the ways common in the national life of Papua New Guinea as contrasted with the customary ways of one who knows of nothing but remote village life.

It is of some significance that the accused knew that the complainant had had intercourse with his friend immediately before he engaged in intercourse with her and that she did not resist him or complain of pain at the outset of intercourse with him. This aspect should not be over-stressed because the accused did not himself claim that his opinion as to the girl’s maturity was based on these factors. They are however taken into account: a person may not necessarily be able to articulate all the reasons for holding a particular belief yet circumstances may indicate factors likely to influence the belief without the person being aware of them. I am satisfied that the belief of the accused was based on reasonable grounds.

On these findings, counsel for defence, Mrs. Ridsdale, submits that the accused is entitled to an acquittal. The question becomes essentially one of law and I am in the unfortunate position of being faced with directly conflicting authority on the point at issue. As recently as 14th April, 1980, Pratt J. in The State v. Kami Pongua[ccxliv]⁹ decided that it was sufficient for an accused seeking to rely on the statutory defence under s. 219 to prove that he had a belief on reasonable grounds that the complainant was “a young adult and thus a person with whom intercourse would not constitute an offence against the laws of this country”. In so deciding his Honour followed a decision of Clarkson J. in R. v. Ulel[ccxlv]¹⁰, given in 1969, and declined to follow a line of decisions to the contrary handed down by Prentice J. (as he then was) and reported in R. v. Paul Wanigu[ccxlvi]¹¹. The view of Prentice J. was that the accused must prove a belief directed and tested against the age specified in s. 219 and that belief in the physical maturity of the girl or maturity for the purpose of marriage according to custom was insufficient.

It appears that Pratt J. considered that the earlier decisions of Prentice J. were given soon after he had arrived in this country and when his Honour had not had the benefit of considering some Queensland and New Zealand authorities which bore on the subject. I find myself in a somewhat similar position here at Kavieng. The benefit of those authorities is not available to me but I have considered the matter at length overnight and having reached a conclusion I propose to state my reasons as best I can.

It is true as Pratt J. says that an accused does not have to prove that at the time of intercourse or shortly before it he considered the question of his partner’s age and formed the belief that she was of or over the age of sixteen. What he has to show, it seems to me, is that he held certain beliefs from which it may be inferred that had he consciously turned an enlightened mind to the precise question, he would have concluded that she was of or over the age permitted by law. With great respect and some reluctance I am unable to come to the view of Pratt J. that it is sufficient for the accused to have a general belief in the maturity of the girl (either in the sense of physical aptitude or in the sense of being permitted by custom to engage in intercourse) unless there is some nexus with the age laid down specifically in the statute.

Again with respect it seems to me that it may not be the case that Prentice J. is in total disagreement with the views of Clarkson J. Indeed to slightly paraphrase what is said on p. 332 of R. v. Paul Wanigu[ccxlvii]¹² I take Prentice J. to accept that if an accused says something such as “I believed her to be of an age when the present written laws of the country allowed her to have intercourse”, then that utterance might be considered as to whether it goes sufficiently to establish belief as to the statutory age or not in the individual case, so long as the belief is directed and tested against the statutory age.

Approached in this way, evidence of custom could conceivably in certain cases provide a nexus. An accused could say for instance that the girl wore certain clothing which indicated to him that it was permissible by custom for him to have intercourse with her. Additional evidence might then establish that girls do not customarily wear such clothing in the particular community unless of age which happens to be the age mentioned in s. 219.

I am unable to agree with the principle enunciated by Pratt J. that what is required under the defence section to s. 219 is a belief based on reasonable grounds by the accused that he is dealing with an adult as opposed to a child and that he believes she is of an age to consent. It would be necessary in my view for the defence to go further and show that the accused’s concept of an adult is that of a person who is or is likely to be of or over the age of sixteen years.

It has been said repeatedly that the object of this sort of law is not only to protect girls from men but also to protect them from themselves. If I may dare to say so I think this somewhat simple statement glosses over the reality of the social policy, not that girls should be “protected” from themselves, but that young people should be restricted or curtailed in expressing their own sexuality. (I refer to a paper by Judge Martin of the New South Wales District Court and Law Reform Commission in which his Honour shows how the law in this area has come to be used “as a punishment for early sexuality” in Anglo-Saxon legal systems.) The statutory law imposes an arbitrary age now fixed at sixteen years, below which it is not regarded as permissible for a girl to engage in sexual intercourse. For her to do so entails the punishment of the male partner at the instance of the criminal law. Viewed in this way physical or community standards of maturity are irrelevant to a charge of unlawful carnal knowledge unless they happen to coincide with the age arbitrarily fixed by legislation.

The Criminal Code Act 1974 is not quite a colonial relic. It was enacted prior to Independence, but during the latter period of self-government. It repeats substantially, but not identically, former ordinances which adopted the old Queensland Criminal Code Act 1899. No portion of the colonial code was ever ruled inapplicable in the Territory of New Guinea because of local circumstances[ccxlviii]¹³. As Prentice J. observed in R. v. Paul Wanigu[ccxlix]¹⁴, the decision of the legislature had altered s. 215 of the old Code within the former Territories of Papua and New Guinea, retaining a specified age (rather than stating a growth concept of native custom) and brought the age respectively up and down to sixteen years in each Territory. This section so altered was re-enacted for Papua New Guinea as a whole in the present s. 219.

It is of importance in considering the law in Papua New Guinea since Independence to turn to the Constitution in order to ascertain whether constitutional factors have any bearing on the question under consideration. In this regard Sch. 2 provides as follows:

N2>(1) Subject to Subsections (2) and (3), custom is adopted, and shall be applied and enforced, as part of the underlying law.

N2>(2) Subsection (1) does not apply in respect of any custom that is, and to the extent that it is, inconsistent with a Constitutional Law or a statute, or repugnant to the general principles of humanity.”

It would therefore seem that constitutional considerations require s. 219 (being part of a statute) to be read and construed without regard to custom or at least regardless of any custom that may be inconsistent with it. The approach of Prentice J. in this respect seems to me to be confirmed.

In any event, in this particular case, the accused does not assert as was asserted and found to be proved in The State v. Kami Pongua[ccl]¹⁵ that he believed that the complainant was of such maturity that she was of the age of legal consent, whatever the age might be. He did not direct his mind to the question of age of consent at all and in his evidence stated that he did not know that there was a law of Papua New Guinea about the age at which girls may have sexual intercourse. His case was that in the customs of his people, firstly, she had reached a stage of development whereby it was “all right” for him to have sexual intercourse with her and secondly that she was physically big enough to get married. With regard to neither aspect was there evidence that the relevant stage was likely to be reached only when the girl was of or above the age of sixteen years. On the contrary the accused himself said that he did not know whether “in our custom the people think about how many years old a girl is before they decide whether she’s big enough to marry”.

The other aspect of the accused’s belief relied upon was his belief in physical maturity, that is physical development to a stage where intercourse may be had without physical or psychological harm to the girl. As Mr. Gavara for the State submitted, to replace the concept of belief in age with a concept of belief in physical maturity is to replace a clear but arbitrary standard with one which is vague, subjective and above all in the face of the statute itself.

The word “lawful” as it appears in s. 219 falls to be considered. The use of this word in the phrase “unlawful carnal knowledge” implies that there may be occasions when sexual intercourse with a female lacking capacity to consent is lawful (regardless of the statutory defence of belief). For instance, a man may marry a woman who subsequently becomes an idiot or imbecile within the meaning of the section: it is hardly to be considered that sexual intercourse with her by her husband is thereby rendered unlawful and criminal. On analogy, it may be that some Papua New Guinea communities recognize a customary marriage of a girl despite the fact that she is less than sixteen years of age. The Native Customs (Recognition) Act 1963, s. 7, might, in such cases, remove from the area of criminality, sexual intercourse within such a marriage. It is unnecessary to decide this point.

In any event the accused had it seems ceased to live according to the customary ways of his area in Morobe during his time here in Kavieng. Like so many Papua New Guineans he finds himself caught between cultures. The role of custom in the criminal law is a complex and difficult one and has been the subject of detailed recommendations of the Law Reform Commission on which the legislature has as yet not acted. I can see no basis upon which custom can in the present case exculpate the accused. For reasons given I find that the belief of the accused falls short of that required by s. 219. The elements of the charge are established beyond reasonable doubt. The verdict is guilty.

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[ccxxxvi] [1959] Qd.R. 378.

[ccxxxvii] (1930) 44 C.L.R. 38.

[ccxxxviii] [1969-70] P. & N.G.L.R. 176 at pp. 183-185.

[ccxxxix] [1969-70] P. & N.G.L.R. 176 at p. 185.

[ccxl] [1930] HCA 20; (1930) 44 C.L.R. 38 at p. 86-87.

[ccxli] [1969-70] P. & N.G.L.R. 176 at p. 184.

[ccxlii] [1975] P.N.G.L.R. 352.

[ccxliii] [1969-70] P. & N.G.L.R. 176.

[ccxliv] [1980] P.N.G.L.R. 41.

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

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

[ccxlvii] [1973] P.N.G.L.R. 330 at p. 332.

[ccxlviii] See Andrew Chalmers and Weisbrot, Criminal Law and Practice of Papua New Guinea (Sydney, 1979), p. 3.

[ccxlix] [1973] P.N.G.L.R. 330 at pp. 332-333.

[ccl] [1980] P.N.G.L.R. 41.

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Papua New Guinea Law Reports

State v Nimo and Sindi [1980] PGLawRp 588; [1980] PNGLR 129 (26 June 1980)

Papua New Guinea Law Reports - 1980