State v Mokei (No 1) [2004] PGNC 165; N2606 (23 August 2004)

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CRIMINAL LAW – indictable offence – Criminal Code, Division IV.2A – Sexual Offences Against Children – Section 229A, engaging in act of sexual penetration with a child under the age of 16 years – date of commencement – Constitution, Section 37(7) – Criminal Code, Section 11 – principles regarding retrospective operation of criminal laws – Criminal Code, Section 229H – no necessity for corroboration – evidentiary considerations – matters to take into account when determining whether sexual penetration took place – elements of offence under Section 229A(1) – relevance of consent – consent as a defence – relevance of relationship between accused and child –- Criminal Code, Section 6 – definition of sexual penetration – elements of offence to be proven beyond reasonable doubt – verdict.

This is a criminal case. The accused, Pennias Mokei, is a man aged about 33, who lives in Wewak. He faces the following indictment:

Pennias Mokei of Darapup in East Sepik Province stands charged that he on the 25th day of June 2003 at Wewak in Papua New Guinea, sexually penetrated one Sue Wani, a child (girl) under the age of sixteen (16) years.

Penalty: Subject to Subsections (2) and (3), imprisonment for a term not exceeding 25 years.

(2) If the child is under the age of 12 years, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.

(3) If, at the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and the child, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.

Section 229A is a relatively new law. It was inserted in the Criminal Code by the Criminal Code (Sexual Offences and Crimes Against Children) Act No 27 of 2002. Before that its equivalent was Section 216. That section made it an offence to have unlawful carnal knowledge of a girl under the age of 16 years. The maximum penalty was five years. Section 216 was repealed by Act No 27 of 2002.

Act No 27 of 2002 was made by the National Parliament on 28 March 2002. It was certified by the Speaker on 25 June 2002. It commenced operation on 10 April 2003. (See Constitution, Section 110(2), the commencement clause of Act No 27 of 2002 and the notice of commencement in the National Gazette No G45 of 2003 at page 2.)

No objection was made to the indictment. But as the accused has been charged under a relatively new law, the Court must be mindful of the principles regarding retrospective operation of criminal laws.

No person shall be convicted of an offence on account of any act that did not, at the time when it took place, constitute an offence, and no penalty shall be imposed for an offence that is more severe in degree or description than the maximum penalty that might have been imposed for the offence at the time when it was committed.

(1) A person cannot be punished for doing or omitting to do an act unless—

(a) the act or omission constituted an offence under the law in force when it occurred; and

(b) doing or omitting to do the act under the same circumstances would constitute an offence under the law in force at the time when he is charged with the offence.

(2) If the law in force when the act or omission occurred differs from that in force at the time of the conviction, the offender cannot be punished to any greater extent than was authorized by the former law, or to any greater extent than is authorized by the latter law.

In the present case the new law, Act No 27 of 2002, commenced operation two months and two weeks before the incident giving rise to the indictment took place. The new law is still in force today. The offence and the penalty on conviction are the same as they were on the date of the incident. It was therefore proper for the accused to be charged and tried under the new law. (See the decision of Manuhu AJ in Kape Sulu v The State (2003) N2456.)

On 25 June 2003 the incident giving rising to the charge occurred. On or about 27 June 2003 a complaint was made to the Police at Wewak. Shortly afterwards the accused was arrested. On 28 October 2003 he was interviewed by two officers of the Criminal Investigation Division attached to Wewak Police Station. On 19 November 2003 he was granted bail. On 24 March 2004 he was committed to stand trial. On 10 August 2004 the indictment was presented and the accused was arraigned. He pleaded not guilty. He was present throughout the trial.

The State called two witnesses: the alleged victim (referred to in this judgment as ‘the complainant’) and her mother. The term ‘the complainant’ is used as, under Section 1 of the Criminal Code, it is defined to mean "a person against whom an offence is alleged to have been committed".

She is the complainant. At the time of the incident, she was aged 13 years and 2 weeks. When she gave evidence in this trial she was aged 14 years and two months. Neither counsel took issue with her ability to understand the meaning and effect of being required to give evidence on oath.

Her evidence in chief was as follows. At the time of the alleged incident, in June 2003, she lived with her parents in their house at Masandanai camp. She went to the local community school. She still does. Her elder brother was at school in Mt Hagen. Her parents allowed the accused to live with them. He had been living there several months. He slept in her brother’s room. She looked upon him as an uncle.

On the day of the alleged incident she had a bath and went to her room in the house. It was in the afternoon. The sun was still up. There was nobody else in the house. The accused then made "an attempt" on her in her room. He told her to lie down on the bed. He pushed his penis into her vagina three times. He also put his fingers on her breasts and under her vagina. She shouted as it was painful. She did not feel well. This was the first time she had had sex. As a result of the accused’s act, she started bleeding around the vagina. She has not had sex with anyone since then. After he did that, he told her not to open her mouth and tell anyone. At the time of the incident, her parents were out of the house, visiting friends or relatives in the same settlement. She was feeling afraid.

Despite the accused having told her not to tell anyone, she reported the matter to her mother the next morning, who got cross with the accused and chased him away. Her mother took her to the Police station, then to the hospital. She was checked by a male doctor. Her mother was present and watching the doctor check her.

Under cross-examination by Mr Siminji, Sue Wani agreed that on the evening of the alleged incident, her mother had gone to her in-laws’ house for a birthday party. Her father, Paul Wani, was in the settlement playing cards at somebody else’s house. She agreed that she had gone to be with her mother. She did not sleep in their house. She did not go to school the next day. Neither her mother nor her father slept in the house that night. The accused looked after the house.

She was asked whether she had reached puberty by the time of the alleged incident and whether she had pubic hair and whether her menstrual periods had started. She answered all those questions "yes". Her menstrual periods started on 17 May 2003. She could not recall the day she had had her period in June 2003. She knows the accused’s sister, Leah Mokei, who sometimes stays at her house and assists her mother wash her clothes. She could not recall Leah Mokei asking her mother if she had had her periods.

It was twice put to her that the evidence she had given about what the accused had done to her was a lie. She denied that by saying ‘No, it’s true’. It was put to her that the accused did not have sex with her. She responded by saying, ‘He did that to me and then I went up to the birthday party’. After the matter was reported, the accused did not come back to the house. She stated that after 25 June 2003 he did not try to have sex with her again.

In re-examination by Mr Wala, Sue Wani stated that the accused got to her before she went to the party. She did not witness Leah Mokei asking her mother about her periods.

She is the complainant’s mother. She is about 30-31 years of age. She has lived at Masandanai camp for 28 years.

Her evidence in chief was as follows. In June 2003 the accused was living with her family, as a friend and a brother. Her family also took care of his family and children.

She first became aware of the alleged incident when her daughter, Sue, told her about it in the early hours of the morning. Sue had asked: ‘Mummy, why are we keeping that man in the house?’. Sue was talking about the accused. She asked Sue why she was cross with him. Sue started crying and grabbed hold of her. Sue told her that the accused had grabbed her and put her down on the mattress and had sexual intercourse with her. She asked Sue when this had happened. Sue replied that it was the day that her mother had taken food up to Uncle Wani’s residence. That would have been on the 26th, in the daytime. At another stage of her evidence, she stated that she had also observed that her daughter was not walking properly. She asked Sue if she had a boil on her buttocks. She examined her and found that her vagina was full with blood. She asked Sue what the problem was. Sue grabbed her and was crying. She said that the accused had had sexual intercourse with her. She asked her daughter if her menstrual periods had started. Sue replied ‘no’. She asked Sue to go to school. But she did not want to go. After Sue told her what had happened, she started crying. She immediately went looking for the accused.

She discovered that he had gone to the market. So she went down to the market and found him. She grabbed him and said ‘I regard you as my brother and why did you do that thing to my daughter’. He bowed his head. He looked as though he had done something. He suggested that they wait for Sue’s father to come and then they could ‘settle this thing’. But then he ran away.

After that, she went to the Police Station with Sue. The Police took down her statement and also one from Sue. Then the Police took them to the hospital. Sue was examined by a doctor and an HEO (health extension officer). The doctor prepared a report. She looked through it and took it to the Police. The doctor who prepared the report has since died.

Mr Wala asked her about Sue’s date of birth. She originally said it was 25 August. She was unclear of the year. Maybe it was 1993. He then tendered in evidence, through Susi Wani, the identification pages of her daughter’s clinic book. This showed her date of birth as 7 June 1990. She identified the accused, as the person in the dock.

Under cross-examination by Mr Siminji, Susi Wani was asked if it was on the morning of 26 June 2003 that her daughter had told her what the accused had done to her. She replied that Sue told her in ‘the morning hours’ what had happened already. She agreed that she often mixes up dates. She had confused her daughter’s birthday with her son’s. She easily forgets the dates of incidents.

It was put to her that what she had told the Court, about what the accused had done, was all lies. She denied that. She was cross-examined in detail about the statement she gave to the Police. She adopted the statement and it was tendered in evidence, through her, as exhibit D1. Mr Siminji pointed out that in her Police statement, she stated that it was not until the morning of Friday 27 June 2003 that her daughter had told her about the alleged incident. According to her Police statement, on the morning of 26 June 2003 she noticed that her daughter was not walking properly. She asked her if she had a boil. Her daughter replied that she had an upset stomach. She did not go to school that day. In the night, they both went to the night market. They bought flour balls for morning breakfast. She told her daughter to go and hang the flour balls near where the accused was sitting. A few seconds later she heard her daughter scream. She asked what the problem was. Sue replied that she was afraid. That night, Sue slept with her. Then the next morning, Friday 27 June 2003, at breakfast time, she asked Sue to make a cup of tea for the accused. Sue, however, was in tears and referred to the accused as a "rabis uncle". Sue then grabbed her by the arms and told her what had happened on Wednesday night.

Mr Siminji put it to Susi Wani that this version of events conflicted with her evidence in chief. He put it to her that she had lied to the Court. She denied that. She adopted her Police statement as the correct version of events. She said that Sue told her about the incident, on the morning of the 27th, at breakfast time.

Mr Siminji pointed out that in her Police statement, she said that when she confronted the accused at Kreer Market, she had "dust him out and asked him to wait for me for us to go to the Police Station". When she returned he was not there. Mr Siminji suggested that the accused had never said that he would wait. She denied that. She replied that the accused did tell her that he would wait.

Mr Siminji also pointed out that her evidence about the whereabouts of her husband conflicted with her daughter’s evidence. Her daughter said that her father was in the settlement playing cards. She had lied by saying that he was out of Wewak, Mr Siminji suggested. She was emphatic that her husband was not around at the time of the alleged incident. ‘Sue’s Daddy went to the bush and left Pennias to look after us ... if her Daddy was there I don’t think this thing would have happened’, she said.

Mr Siminji also put to her that she had lied when she told the Court that her daughter had not started having her periods when the alleged incident occurred. He pointed out that Sue had told the Court that her periods had started in May 2003. But she said that Sue was not having her monthly periods. She said that Sue had not told her that she was having her periods. She had seen blood in her vagina.

In re-examination by Mr Wala, Susi Wani stated that she, as Sue’s mother, had told Sue to let her know when her periods started, so that she could advise Sue about it. Sue had not let her know. After the alleged incident, Sue told her that she was not having her periods. But the accused had had sex with her and that is why she was bleeding.

She did not know why Sue thought that her father was in the settlement when the alleged incident occurred. He was definitely out of town. He was in Karawara.

She agreed that her daughter had slept with her on the night of 26 June. Sue had not reported the matter to her in the afternoon. Sue reported it to her on the morning of 27 June. She confirmed that she sometimes mixes up dates. But what her daughter told her is true.

Mr Wala informed the Court that he had intended to call a witness to give evidence regarding the medical examination of Sue Wani that was made on 27 June 2003. But he was unable to do so. The doctor who prepared the report of the examination, Dr Novette, died in June 2004. The health extension officer who was present was not available. So no other witness could be called. The medical report was not tendered in evidence.

None were called. At the start of the trial Mr Siminji, for the accused, had indicated that the accused would give sworn evidence. However, after the State closed its case, Mr Siminji advised the Court that the defence had considered its options and what had transpired and decided that the accused would make an unsworn statement from the dock.

The accused’s unsworn statement was as follows. When the incident over which he has been charged happened, he was living at Kreer. His house was full, so he had been staying with the Wani family.

After the incident happened, in the early morning, his sister was doing the laundry and saw blood on Sue Wani’s underwear. His sister told Sue’s mother about that. Sue’s mother then questioned her daughter. Sue then told her mother that her uncle (the accused) had ‘tried her’.

Sue’s mother and his sister then had a discussion. He did not know at the time what they were talking about. He went to the beach and then came back to the house. Then he went to the market. His sister followed him to the market. Sue’s mother, Susi Wani, also followed him to the market. She started arguing with him. He tried to speak. But she told him to keep his mouth shut or she would get her brothers to come and ‘chop me up bit by bit’. She told him to wait. Then Susi went away.

He told his sister that he would go and find a councillor. He found a local councillor, James Babi, and told him he would be staying at Saure village. The councillor went to see the Police. But the Police told him they had no car. The next day, Friday, he went to the Police Station with the councillor. The councillor took him into the CID room. He was asked if he had had sexual intercourse with the little girl, Sue Wani. He said ‘no’. The CID officers asked him what he did. He admitted to them that he had held her breasts with his hands. They charged him with assault. The councillor then told him that he would be put in the cell to make the complainant satisfied. He was in the cell for four nights. Then he was put in the CIS (correctional institution) until his matter came up in the District Court. He was granted bail of K200.00.

Exhibit No	Date	Description
1	07.06.90	Helt buk – front and back copy of Sue Wani’s public clinic book – tendered without objection – this document showed her date of birth as 7/6/1990 – it was accepted that at the time of the alleged offence, she was aged 13 – she is now aged 14.
2A	28.10.03	Record of interview: Pennias Mokei – English version – tendered without objection – he three times denied having sexual intercourse with Sue Wani – he was asked (question 22) if he had pushed his fingers in her vagina and also played around with her breast and when his penis reacted, pushed his penis inside her vagina and ejaculated his sperm – he replied "That is not true. I just played around with her breast and her anus" (English version) or "Em itru olsem mi bin pilai long susu belong em na holim as belong em. Tasol long kuapim em, em ino gat" (Tok Pisin version).
2B	28.10.03	Record of interview: Pennias Mokei – Tok Pisin version – tendered without objection.
D1	27.06.03	Statement: Susi Wani – tendered without objection – she states that on the evening of Wednesday 25 June 2003, she went to her uncle’s house, leaving Sue and the accused in the family home – at about 7.30 pm that night Sue walked up to where she was, then about 11.00 pm they both returned to their house – Sue slept with her that night – the next morning, Thursday 26 June 2003, as she was preparing breakfast, she saw that Sue was not walking properly, as if she had a boil between her legs – Sue did not got to school that day – that night she and Sue went to the night market and bought flour balls for the next morning’s breakfast – she asked Sue to hang the flour balls in the room near where the accused was sitting – a few seconds later Sue screamed – she asked why and Sue replied that she was scared – they slept together again – the next morning, as she was preparing breakfast, she asked Sue to make some tea for the accused – Sue was in tears and said "Please, Mummy don’t belt me. On Wednesday night whilst you were out at Uncle Wani’s place, this man (Pennias) forcefully pulled me into my bedroom, took my clothes off and forcefully had sexual intercourse with me twice [sic]. After having sexual intercourse with me, he warned me not to tell you, Daddy or anybody. That is why I am unable to walk properly and did not want to go to school when you asked me to go. He also made a second attempt when I went to hang the flour balls close to where he was sleeping." – she (Susi) then went to search for the accused at Kreer Market – she later went to the Police to report the matter and then to the Boram Hospital for Sue’s medical examination.

In June 2003 the accused was living with the complainant and her parents, at the Wani family home in Masandanai camp, Kreer, Wewak. The accused was a close family friend. He had too many wantoks staying in the house he normally lived in. So the Wani family told him he could stay with them. He was aged 32, married, with children. The complainant, Sue Wani, was aged a little over 13 years. She was attending school.

In the late afternoon of Wednesday 25 June 2003 the complainant and the accused were the only people in the Wani family home. The complainant’s mother, Susi Wani, had gone to an uncle’s place. The complainant’s father was also out of the home.

There was an incident involving the complainant and the accused. There was some sexual contact by the accused upon the complainant. He stated in his
Police interview that he played with the complainant’s breast and her anus. In his statement from the dock, he stated that the CID officers had asked him what he did. He admitted to them that he had held her breasts with his hands.

The complainant reported the incident to her mother, who then confronted the accused at the local market. She then reported the matter to the Police.
Susi Wani reported the matter to the Police. She then took her daughter to the hospital. The complainant was medically examined. Four months after the incident, the Police interviewed the accused. They compiled a record of interview.

These can be placed into two categories. First, facts which relate to the credibility of the State’s witnesses. Secondly, facts directly pertinent to the elements of the offence with which the accused has been charged.

Mr Siminji pointed to a number of inconsistencies in the evidence presented by the State. They undermined the credibility of the two witnesses he argued. It is useful to consider them as contested factual issues. They are as follows.

Mr Wala asserted the credibility of both State witnesses. Neither had any motive to lie to the Court about what happened. He conceded that their evidence about the whereabouts of the complainant’s father was inconsistent. The complainant stated that her father was in the settlement, playing cards at somebody else’s place. The complainant’s mother said that the father was out in the bush. This was a minor inconsistency, Mr Wala argued. It did not affect the complainant’s credibility as a witness. It did not impinge on the crux of the case: whether the accused sexually penetrated the complainant.

The mother’s evidence that her daughter was not walking properly after the incident and that she had personally examined her daughter, was consistent with signs of injury caused by penetration.

Mr Wala asserted that, like her daughter, Susi Wani had no reason to lie to the Court. The apparent inconsistencies between her oral evidence and her statement to the Police were explained satisfactorily in cross-examination and in re-examination. After she saw the dates in the Police statement she stated that they were the correct ones. There was clear evidence that the matter was reported to her. It was a fresh complaint. That is the issue. Not whether it was reported to her on the Thursday morning or the Friday morning. She admitted that she gets confused about dates. There was no main deviation in her oral evidence from her Police statement.

Mr Wala made no submissions on the question of whether the complainant was having her menstrual periods at the time of the incident.

As to the accused’s statement from the dock, he lied to the Court by saying that he surrendered to the Police. No witness was called to verify his statement. But his statement contained significant admissions. It also put him at the scene of the crime.

Overall the evidence is very strong. It is not, by law, necessary that the complainant’s evidence be corroborated. But here there is corroboration.

As to the evidentiary status of the medical report, Mr Wala stated that it could not be considered by the Court as evidence as there was no witness available to verify it.

Mr Siminji asserted that the State had not made out the case it alleged in the opening submission. The version of events that was put to the
Court by the State changed more than once. In the opening submission it was claimed that the accused had made a second attempt on the complainant. But the evidence before the Court on this claim was unclear.

The complainant’s mother gave evidence that was inconsistent with her prior Police statement. It is unclear when the complainant reported the matter to her mother. The complainant’s mother was not a reliable witness. She had a tendency to change her story now and then.

There were inconsistencies in the evidence of the two witnesses. The complainant said her father was in the settlement. Her mother said he was in the bush.

The accused has a constitutional right to the presumption of innocence. He can only be proven guilty according to law. The State has failed to prove the elements of the offence beyond reasonable doubt. The inconsistencies in the evidence must give rise to doubt in the mind of the Court, as a tribunal of fact, as to whether the elements were proven.

The Court can conceivably convict on the basis of the complainant’s uncorroborated testimony. But it must be very careful before doing so. The vital element is sexual penetration. But the complainant’s evidence is only talk. There is no corroboration. The evidence of the complainant’s mother should not be considered relevant. No weight should be attached to it.

The mother’s evidence about taking the complainant into her room and examining her violated the rule in Browne v Dunn ((1893) The Reports 67). The defence had no opportunity to cross-examine the complainant on that point. So no weight should be given to it at all.

The complainant’s evidence was that, by the time of the incident, she had started to have her periods. So, even if the mother’s evidence about her noticing blood around her daughter’s vagina were accepted, this was consistent with her daughter having her periods around that time.

A vital piece of evidence is missing from the prosecution case: the medical report. Mr Siminji argued that there had been no formal objection to it being tendered in evidence. It was the prosecution’s decision not to tender it. The fact that it had not been tendered meant that there was no evidence of the vital element of sexual penetration. But if the Court were inclined to give any consideration at all to the report (the document numbered MFI1) it is a flawed document. It refers to an incident having occurred on 2 July 2003. That is a week after the incident is supposed to have occurred. It is an unreliable document. Coupled with the complainant’s evidence that she was having her periods at the time, the medical report adds nothing to the case.

The accused’s unsworn statement from the dock was consistent with his record of interview. The Court should appreciate that he has maintained his version of events all along.

In conclusion there were too many loose ends in the State’s case. The accused must be given the benefit of the doubt.

Mr Wala opposed the contention that the complainant’s mother’s evidence should be disregarded. It was strong evidence. She saw blood in her daughter’s vagina. She was a witness in her own right.

In assessing the evidence I must have regard to Section 229H of the Criminal Code.

On a charge of an offence against any provision of this Division, [ie Division IV.2A, sexual offences against children] a person may be found guilty on the uncorroborated testimony of one witness, and a Judge shall not instruct himself or herself that it is unsafe to find the accused guilty in the absence of corroboration.

Section 229H was inserted in the Criminal Code by the Criminal Code (Sexual Offences and Crimes Against Children) Act No 27 of 2002. Before that, Section 216 provided that a person could not be convicted of the offence of having unlawful carnal knowledge of a girl under the age of 16 years on the uncorroborated testimony of one witness. Section 216 was repealed by Act No 27 of 2002.

Mr Siminji submitted that the complainant’s mother’s evidence added little or no value to her daughter’s evidence. He was thus raising an issue of corroboration. So it is useful to state a number of principles, arising out of Section 229H:

I accept Mr Wala’s submission that both State witnesses were credible. It was not shown or suggested that either had any motive to lie to the Court.

The complainant is still a young girl. The Court must be conscious of the necessity of a child witness understanding the meaning of truth. It must make an assessment of whether the child is capable of understanding an oath. If in doubt the Court should take steps under Section 6 of the Oaths Affirmations and Statutory Declarations Act Chapter 317. (See Beraro v The State [1988-89] PNGLR 562 and The State v John Saguno [1994] PNGLR 308.) Section 6 allows evidence to be taken in a different way if the witness does not understand what an oath means. But here the witness, Sue Wani, was in my assessment fully cognisant of the Court surroundings. She understood what she was being asked to do. She knew why the accused was in the dock. She knew the meaning of truth. She was quite nervous in the witness box. But her demeanour was not that of someone who was lying or shifting ground.

Likewise with the complainant’s mother, Susi Wani. She was a little nervous. She conceded that she got confused about dates. Many people do. But she was not confused about what she had observed and what her daughter had told her and what she did about it. She was resolute in her defence of her evidence when it was put to her vigorously by Mr Siminji, on several occasions, that she was lying.

I acknowledge Mr Siminji’s submissions about the inconsistencies in the evidence. As to the timing of the complainant’s reporting of the matter to her mother, I accept that this was done on the morning of 27 June 2003, over breakfast. Susi Wani clarified this in her cross-examination, after her Police statement was shown to her. She confirmed it in re-examination. Mr Siminji was right to suggest that the State’s case changed during the course of the trial.

In his opening address Mr Wala said the evidence would show that the accused made a second attempt on the complainant. But the evidence was unclear about this. In fact the evidence was not that the accused made a second attempt. Instead the complainant was scared when she went into a room and saw the accused. She yelled out. That was the day after the incident. I consider that the confusion arose because the prosecutor was not 100 per cent sure of his facts before he made his opening submission. It is not something that undermined the credibility of either witness.

As to the whereabouts of the complainant’s father at the time of the incident, I accept the complainant’s mother’s evidence that her husband was out in the bush. Mr Siminji correctly pointed out that her evidence differed from her daughter’s. Sue Wani said her father was in the settlement playing cards. But I did not consider that the question of fact was material. The fact was that the complainant’s father was not in the house when the incident occurred.

As to whether the complainant was having her menstrual periods at the time of the incident, this was, again, a proper issue for the accused to raise. It is a material issue. It was suggested by Mr Siminji that the complainant’s mother was confused about the blood in her daughter’s vagina. Her daughter gave evidence that she had already started having her periods. But her mother was emphatic that she had not. I found the complainant’s mother’s evidence more convincing. As a mother, it is expected that she would know full well, after having inspected her daughter’s vagina, the difference between menstrual fluid and excess blood in and around the vagina arising from sexual penetration. I consider that the complainant was confused by Mr Siminji’s questioning on this point. I do not accept that the manner in which this evidence was given by the complainant’s mother breached the rule in Browne v Dunn. That rule applies when a counsel intends to submit that a witness has lied. The counsel must put it directly to the witness that he or she has lied, and then give the witness the opportunity to explain, before submitting that the witness is not credible. I accept Mr Wala’s rejoinder that an application could have been made to recall the complainant to the witness box to cross-examine her on this issue. No application was made. No procedural unfairness occurred.

As indicated above the contentious and crucial question of fact is whether the accused introduced his penis into the complainant’s vagina, anus or mouth.

The Court, as the tribunal of fact, has to be satisfied beyond reasonable doubt that the answer to that question is yes, before the accused can be found guilty. Having regard to Section 229H of the Criminal Code the following are the considerations that seem to me necessary to take into account when determining the answer to that question of fact:

The Court’s task is to take account of each of the above considerations and weigh them in the balance to see whether it is satisfied, beyond reasonable doubt, of the question of fact before it.

For the above reasons I am satisfied beyond reasonable doubt that on the evening of 25 June 2003 the accused introduced his penis into the complainant’s vagina. Sexual penetration took place.

The accused has been charged under Section 229A(1) of the Criminal Code. It must be proven beyond reasonable doubt that:

They are the two actus reus elements of the offence. The provision does not expressly prescribe the mens rea element. So it implied that it must be proven beyond reasonable doubt that:

Absence of consent is not an element of this offence. The existence of consent might be a mitigating factor for the purposes of determining penalty. Consent is not, generally, a defence. But it will be if the child consented to sexual penetration and one of the circumstances prescribed by Section 229F of the Criminal Code applies.

Subject to Section 229E, [abuse of trust, authority or dependency] it is not a defence to a charge under this Division that the child consented unless, at the time of the alleged offence—

(a) the accused believed on reasonable grounds that the child was aged 16 years or older; or

The only other specific defence to a charge under Section 229A(1) is where the child is between the age of 14 and 16 years and the accused is married to the child. In such a case Section 229G would apply.

A person is not criminally responsible for an offence against this Division in respect of an act if, at the time of the act, the child was of or over the age of 14 years and the person was married to the child.

In the present case consent was not raised as a defence. The evidence was that the complainant did not consent. It was not suggested, either in cross-examination of the State witnesses or in the accused’s unsworn statement, that the complainant consented. There was no evidence or suggestion that the accused believed on reasonable grounds that the complainant was aged 16 years or older. The accused was more than twice the complainant’s age. They were not married. Therefore none of the specific defences apply.

It is not an element of the offence under Section 229A(1) that there was at the time of the offence an "existing relationship of trust, authority or dependency" between the accused and the child. That term is defined by Section 6A(2) of the Criminal Code. If the accused is found guilty of an offence under Section 229A(1), the issue of whether there was such a relationship becomes relevant when determining the appropriate penalty. If there was such a relationship, the maximum penalty is increased from 25 years to imprisonment for life.

When the expression "sexual penetration" or "sexually penetrates" are used in the definition of an offence, the offence, so far as regards that element of it, is complete where there is—

(a) the introduction, to any extent, by a person of his penis into the vagina, anus or mouth of another person; or

In the present case it has been proven beyond reasonable doubt that the accused introduced his penis into the vagina of the complainant. Paragraph (a) of the definition applies. The accused engaged in an act of sexual penetration with the complainant. The first element of the offence is satisfied.

It has been proven beyond reasonable doubt that the complainant was aged a little over 13 years at the time of the incident. She was a child under the age of 16 years. The second element of the offence is satisfied.

It has been proven beyond reasonable doubt that the accused intended to engage in sexual penetration with the complainant. He was fully conscious of his actions. There was no evidence or suggestion that he thought he was engaging in an innocent act. The mens rea element of the offence is satisfied.

All elements of the offence have been proven beyond reasonable doubt. I find the accused, Pennias Mokei, guilty of the offence of engaging in an act of sexual penetration with a child under the age of 16 years, as charged, and convict him accordingly.
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Lawyers for the State : Public Prosecutor
Lawyers for the accused : Public Solicitor

No	Date	Description
MFI1	08.07.03	Wewak hospital report – not tendered into evidence.

National Court of Papua New Guinea

State v Mokei (No 1) [2004] PGNC 165; N2606 (23 August 2004)