State v Kauckesa [2005] PGNC 182; CR 801 of 2005 (12 August 2005)

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 801 OF 2005

THE STATE

V

GOMONG KAUCKESA

Finschhafen: Kirriwom, J
2005: 9, 10 & 12 August

Counsel:
N. Miviri, for the State
S. Maliaki, for the Accused

12 August 2005

1. KIRRIWOM, J.: The accused Gomong Kauckesa of Sockeneng village, Finschhafen is charged with one count of sexual penetration of a girl under the age of 16 years contrary to section 229A of the Criminal Code. The charge against the accused is that on 25 March 2005 at Sockaneng village, Finschhafen the accused engaged in an act of sexual penetration of NM a child under the age of 16 years.

2. The allegation against the accused was that on the night of 25 March, 2005 after a church fellowship in the village at the home of the victim, the accused took the victim NM to a secluded place where he lifted up her clothes and penetrated his penis into her vagina. The victim was only 15 years old. When the accused was arraigned he admitted having sexual intercourse with NM but said that she was his girlfriend and this night was their fourth time to have sex. There were three previous occasions when they had sex.

3. This was an equivocal plea so I refrained from accepting a plea of guilty and sought clarification from the accused’s lawyer. Ms Maliaki advised that what the accused told the court was consistent with his instructions to her. While that statement per se was not raising any known legal defence for this kind of sexual offence, in my view that statement indirectly was questioning the rationale of the entire proceeding against the accused so I entered a plea of not guilty.

4. The issue in the trial centred on only one thing - the age of the victim. It turned out that there was no birth certificate or a clinic book indicating when the victim was born. Sockaneng village where the victim and the accused come from is not far from the Province’s best privately run Braun Memorial Hospital where no doubt there is regular post and pre-natal clinic inspections are carried out by the sisters and nurses of the hospital as part of the hospital’s health extension programs as happens everywhere. In line with this program, a card must have been kept on the victim that at the instance of this trial, none could be produced. Instead the victim herself told the court that she was born on 27 April 1989 according to her mother. This was clearly hearsay and I don’t accept it. It would have been different if the mother herself gave this evidence subject of course to whether the court believed her or not. But she did not testify so this evidence is a suspect.

5. The accused claimed that the victim was close to or about 21 years old because she was born about the same time that his sister was born. His sister was now 21 years old married with a child. As far as he was concerned the victim was over 16 years old because she had been sleeping with other men and boys before he first had sex with her in January 2005 and again in February, 2005 until that time in March 2005 which was their fourth time when their affair went public because his wife cornered the both of them the same night after their sexual encounter and demanded to know what was going on between them.

6. That night after having sex the accused took the victim to his wife and told her to make bed for her to sleep with them. The accused and NM are related although not very close but they are from the same ancestral line. Sex between persons in such close relationship are prohibited in certain societies in PNG. The victim was afraid of going home after being out with the accused so the accused took her home probably thinking that he would save her the ordeal of explaining to her parents and then exposing their secret affair. But his wife was not content with their denials which it seemed finally led to the victim reporting to a village elder of what happened between her and the accused on the night of 25 March 2005.

7. Apart from the victim’s own evidence of her age, State called Banda Sunga, the District Dental Therapist based at Braun Memorial Hospital but who was on furlough leave. Mr Sunga examined NM’s teeth on 3 August 2005 just a week before this trial on request of the police to make a guesstimate of her age. His one line report dated 3 August 2005 reads:"This is to inform you that I have this day examined Miss N M dated 03/08/05 and find out that her age is 14 – 15 years."

8. The reliability of this evidence was challenged by the defence on the basis that the report was not produced on Braun Memorial Hospital letterhead although it was stamped bearing the hospital stamp. Apart from this one sentence report, Mr Sunga explained in his oral evidence that in his opinion the victim was 14-15 years because her wisdom teeth had not yet grown or erupted. He justified this by saying that at 8 months to 2 years a child’s baby teeth grow. By the time a child reaches the age of 16 the baby teeth fall of and at that age the wisdom teeth also grow. He said 16 is the minimum age for the wisdom teeth to erupt, it can even erupt much later although the age grows older.

9. If this evidence is to be believed, then I don’t know how it can help prove conclusively that the victim was 15 years on 25 March 2005 when the same evidence also is capable of supporting the theory that the victim was well already above that age although her wisdom teeth is slow in erupting. But then why go through all this trouble when a certificate of baptism from the local parish which no doubt keeps a register of births of all its parishioners or certificate of confirmation also from the same source could save all the trouble. As I have said already, Sockenang village is just past Lugaweng Seminary and is accessible by foot from here and from there to Butaweng also by foot so what is so difficult in not having some kind of record kept of the victim’s birth.

10. Although the victim denied secretly having an affair with the accused, a married man with three children, she did admit having sex earlier with him but she claimed it was rape. She said she did not report him because he promised he will not do it again. She said that was the only occasion apart from the night of 25 March 2005 when he had sex with her three times in a row.

11. The accused’s claim that she had previous sexual experiences with other men was also confirmed by Kaling Aima the village elder who reported the complaint to the police. He said that similar conduct of NM in 2003 landed her and her family in big trouble when they and her family and the family of the man she befriended made peace by exchange of pigs and garden food and were also ex-communicated by the church for some time.

12. All these evidence focusing on whether the victim is a child under the age of 16 years has not impressed me and I don’t know whether she really is 14 or 15 as claimed by the district dental therapist or 15 as she herself claims she is. I saw her in the witness box. Contrary to the State’s assessment of her physique as that of a child, I formed the impression that she is older than she claims she is because she has fully developed breasts and a body capable of being taken for someone above the age of consent, be it 18 or older. Her behaviour as that of a worldly woman as it were and I accept the evidence of Kaling Aima and the accused of an earlier incident of the victim with another male person leading to some form of village mediation. These types of behaviour of a young teenager like her are not justifiable yard stick to measure her age, let alone past or previous sexual experiences, but on the issue of consent which is now relevant especially when the question of reasonable belief as to age of the victim is relied upon, it is inevitable that the court must consider all these factors as past cases have done that I make references to some of them. This is where medical evidence is also relevant and in this case there is no evidence of medical examination of her after the incident. If she reported on the next day and the same day it was further brought to the attention of the police, there was still opportunity for medical check. That was not pursued. It casts further doubts on the reliability of the evidence of age of the victim as deposed to by the victim herself and that by the dental therapist.

13. The law on the belief of the accused that the girl was of or above the age of consent has been discussed in various authoritative decisions of the National Court such as in R v Ulel [1973] PNGLR 254 (Clarkson, J), R v Wanigu [1973] PNGLR 330 at 332-333 (Prentice, J ), The State v Kami Pongua [1980] PNGLR 41 ( Pratt, J) and The State v Leo Nimo [1980]PNGLR 129 at 136 (Miles, J).

14. In the repealed provision of the Code under section 216 (now superceded by section 229A), it is a defence for the accused to prove that he believed on reasonable grounds that at the time he had sex with the victim she was or over 16 years old (sub-sect.(2)). For the sake of comparison, I set out s.216 which reads as follows:

"216. Defilement of girls under 16 and of idiots.

(1) A person who—

(a) has or attempts to have unlawful carnal knowledge of a girl under the age of 16 years; or

(b) knowing a woman or girl to be an idiot or imbecile, has or attempts to have unlawful carnal knowledge of her,

is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding five years.

(2) It is a defence to a charge of an offence against Subsection (1)(a) to prove that the accused person believed, on reasonable grounds, that the girl was of or above the age of 16 years.

(3) A person cannot be convicted of an offence under this section on the uncorroborated testimony of one witness.

(4) The wife of the accused person is a competent but not a compellable witness."

15. However the section is now substituted by the following provision since the 2002 Amendment to the Criminal Code by the new Sexual Offences and Crimes Against the Children Act of 2002. Section 229A provides:

"229A. Sexual penetration of a child.

(1) A person who engages in an act of sexual penetration with a child under the age of 16 years is guilty of a crime.

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."

16. Consent was not a defence in this offence under the Code but was indirectly raised and accepted as a defence under subsection (2) if the accused proved on the balance of probabilities of a reasonable belief he held at the time of the act of sexual intercourse that the girl was of the age of consent. It seems therefore that under the amendments a specific provision was made for this defence under section 229F where it provides as follows:

"229F. Consent no defence.

Subject to Section 229E, 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

(b) the child was aged 12 years or older, and the accused was no more than two years older than the child."

17. But availability of this defence is subject to section 229E which talks about abuse of trust, authority or dependency. Section 229E reads as follows:

"229E. Abuse of trust, authority or dependency.

(1) A person who engages in an act of sexual penetration or sexual touching of a child between the ages of 16 and 18 years with whom the person has an existing relationship of trust, authority or dependency is guilty of a crime.

Penalty: Imprisonment for a term not exceeding 15 years.

(2) It is not a defence of a charge under this section that the child consented unless, at the time of the alleged offence, the accused believed on reasonable grounds that the child was aged 18 years or older."

18. In this case there was some suggestion that the accused and the victim were closely related but I am satisfied that they were not first cousins and there was therefore no existing relationship of trust between them.

19. In this case, the victim was under no threat or compulsion to have sex with the accused. She chose to do so at her own free will. If she was not a willing party she would have complained of rape in the first instance but she did not. And she probably would not have reported at all if the accused’s wife did not become suspicious and began questioning her and the accused.

20. The State has not satisfied the court beyond a reasonable doubt that the victim was a child under the age of 16 years and incapable of consent at the time of sexual penetration of her by the accused on 25 March 2005.

21. In the circumstances, I am not satisfied beyond reasonable doubt that the accused is guilty of this offence and I acquit him of the charge.

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defence