State v Toapas [2006] PGNC 70; N4485 (22 August 2006)

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CRIMINAL LAW – Criminal Code, Subdivision IV.2A, sexual offences against children – Section 229A, engaging in act of sexual penetration with a child under the age of 16 years – trial – defences – whether consent is a defence – whether reasonable belief in age is a defence – Criminal Code, Section 229F.

A man was charged with having sex with a 14 year old girl, contrary to Section 229A(1) of the Criminal Code. He pleaded not guilty and a trial was held. The girl, the complainant, gave evidence; as did the police investigator who interviewed her. Tendered in evidence was the accused’s record of interview, which contained admissions that sex took place but a denial of knowledge of the age of the complainant. No evidence was adduced for the accused. He remained silent except for a short statement from the dock. The actual age of the complainant was not in issue but the accused’s knowledge of it was; it being contended that he had an honest and reasonable, but mistaken, belief that she was aged 16 years or more. The defence also argued that the prosecution had not proven that the accused had sexually penetrated the complainant.

Browne v Dunn (1893)
Kape Sulu v The State (2003) N2456
R v Nikola Kristeff (1967) No 445
The State v Albert Gias (2005) N2812
The State v Angela Colis Towavik [1981] PNGLR 140
The State v Anton Kumak (1990) N835
The State v Bikhet Nguares Paulo [1994] PNGLR 335
The State v Dibol Petrus Kopal (2004) N2778
The State v Kevin Anis (2003) N2360
The State v Kewa Kai [1976] PNGLR 481
The State v Jason Rihata (2005) CR No 171 of 2005
The State v John Ritsi Kutetoa (2005) N2814
The State v Leah Tununto (1990) N947
The State v Leonard Masiap [1997] PNGLR 610
The State v Matilda Edward (2004) N2726
The State v Michael Nema Melpa (2003) N2450
The State v Misari Warun (1989) N753
The State v Moses Jafisa Winga (No 1) (2005)
The State v Rose Yapihra (1997) N1741
The State v Thomas Angup (2005) N2830

ARB – Autonomous Region of Bougainville
CR – Criminal
DCJ – Deputy Chief Justice
J – Justice
N – National Court judgments
No – number
PNGLR – Papua New Guinea Law Reports
SC – Supreme Court Judgment
v – versus

This was the trial of an accused charged with engaging in an act of sexual penetration with a child under the age of 16 years.

1. CANNINGS J: This is a decision on the verdict for Jeffery Toapas, who pleaded not guilty to engaging in an act of sexual penetration with a child under the age of 16 years, an offence under Section 229A(1) of the Criminal Code.

Jeffery Toapas of Saposa, Bougainville, stands charged that he ... on an unknown date between 1 and 31 December 2002 at Tamuts ... engaged in an act of sexual penetration with [the complainant], a child under the age of 16 years.

3. The alleged victim is referred to as "the complainant" as that term is defined by Section 1 of the Criminal Code to mean "a person against whom an offence is alleged to have been committed".

4. The indictment was presented under Section 229A of the Criminal Code, which commenced operation on 10 April 2003. The alleged offence was committed in December 2002, four months before Section 229A commenced operation. However, it was proper to draft the indictment under the new law because:

(See Kape Sulu v The State (2003) N2456, Manuhu AJ; The State v Dibol Petrus Kopal (2004) N2778, Lay J; The State v Jason Rihata (2005) CR No 171 of 2005, Lay J; The State v John Ritsi Kutetoa (2005) N2814, Cannings J; The State v Thomas Angup (2005) N2830, Lay J; The State v Moses Jafisa Winga (No 1) (2005) N2952, Kandakasi J.)

6. The State tendered two exhibits by consent and called two witnesses to give oral evidence.

7. Column 1 of the table below gives the exhibit number, column 2 describes the exhibit and column 3 summarises its evidentiary content.

Exhibit	Description	Content
A1, A2	Record of interview: Jeffery Toapas, 07.07.03	Says he is from Babylon village, Saposa Island, aged 22 – married without children – said he caused a trouble and that he is why he was in police custody – he had sexual intercourse with a girl [the complainant’s name was given] and now she is pregnant – says that this girl calls him her uncle as he is married to her mother’s sister – the girl is doing grade 7 at Saposa Primary School – she was 15 years old at the time he had sex with her – he did not know at the time that she was only 15 – after he had sex with her, he told he would give her some money – he did not know that it was against the law to have sex with a girl under the age of 15 years.
B	Statutory declaration: complainant’s father, 19.08.03	States that the complainant, his eldest child, was born on 25 January 1988.

8. Table 2 lists and describes the State witnesses in the order that they were called and indicates the days and dates of the trial on which they gave evidence.

No	Name	Description	Day	Date (2006)
1	The complainant	The person against whom the offence was allegedly committed.	1	16 Aug
2	Constable Lilian Sopas	Police investigator.	1	16 Aug

9. The first witness for the prosecution was the complainant. In examination-in-chief she stated that she is now 18 years old. She was born on 25 January 1988. She is from Saposa. She is still going to school and is in grade 10. She knows the reason she he is giving evidence: as Jeffery Toapas had sex with her. It happened in December 2002, she does not remember the exact date. She was doing grade 6 at the time, at Saposa Primary School.

10. She recounted the events. Jeffery told her and her younger sister, Rani, and some cousins, including Regan, to go with him to collect coconuts. They paddled to Tamuts Island. Jeffery climbed the trees, threw down the coconuts and they husked them. Then he sent her sister and cousins away. They went away and she was left alone with him.

11. He told her to take off her underwear. She did not want to do that so he took off her clothes himself. When she was lying on the ground he took off h is trousers. Then he had sex with her. Afterwards he told her that he would give her some money.

12. She then went down to the beach, met her cousins and went back home. He never gave her the money he promised.

13. The following year, 2003, she was in grade 7 but did not complete school, as she was pregnant and gave birth to a baby boy on 4 September 2003. He is still alive and is being looked after by her aunties in the village. Jeffery is the boy’s father.

15. She stated that she had no boyfriends in 2002 or at the beginning of 2003. In that period did not have sex with anyone else.

16. In cross-examination, the complainant said that Jeffery went first into the bush and she followed him. He asked her to have sex with him and she agreed. He did not threaten her with a bush-knife and she did not scream. She was naked when he was taking his clothes off. She felt pain and told him that she was afraid.

17. She denied that the incident happened in October 2002. It was in December. When the village people found out about what had happened they fought Jeffery and took him to the police. She denied telling an auxiliary police officer, Andrew, that she had never had sex with Jeffery.

18. Mr Kaluwin asked her about her cousin, Regan, whose house is close to hers. She does not know where Regan is now. She denied that it was Regan who made her pregnant and that her son looks like Regan and that she was just trying to put the blame on Jeffery for making her pregnant and that she had sex with Regan some time after the incident over which Jeffery has been charged.

19. She said that the matter was not reported to the police until about June 2003. Her mother first suspected that she had an enlarged spleen and told a nurse, Susan, to come and see her. Susan came, examined her, and told her that she, the complainant, was pregnant. She did not realise until then that she was pregnant.

20. In re-examination the complainant confirmed that she remembered the incident in December 2002 when Jeffery had had sex with her. He only had sex with her once.

22. The second witness for the prosecution was Constable Lilian Solas. In examination-in-chief she stated that she is a police officer attached to the Buka CID. She has been in the Police Force for 13 years. She is the investigating officer for this case.

23. She conducted the accused’s interview on 7 July 2003. He made admissions, including that he had got the complainant pregnant. He recounted the events, resulting in him having sex with the complainant. She cannot remember him wanting any changes made to the statement but he refused to sign it. She wrote down exactly what he said.

24. She also interviewed the complainant. That was done on 25 June 2003. The complainant was brought in by her parents. At that stage she was pregnant and small in build and looked scared and depressed. There was another officer, Patrick, who was present but he has since been transferred to Arawa.

25. In cross-examination Constable Solas said that when she interviewed the accused, Jeffery, she specifically asked him if she knew the age of the complainant. He replied that he did not know her age. She found out that the accused and the complainant were neighbours but collected no evidence to that effect.

26. The accused was brought into custody on 27 June 2003 and she conducted the interview ten days later on 7 July 2003. She was told that he had been belted up by the complainant’s people before he was brought to the police station. She did not arrange medical treatment for him, as she did not think that his condition was very serious. She does not recall him asking for medication. He answered the questions and he looked OK. She wrote down exactly what he said. She conceded that she is not a medical practitioner and did not ask him if he needed medical assistance. She denied that the accused was under duress or not in a proper state of mind.

27. In re-examination Constable Solas said that the accused had no broken limbs or life-threatening injuries when she interviewed him. He was able to walk around.

28. That ended Constable Lilian Sopas’s evidence. The State’s case was then closed.

29. No evidence was called, however the accused made a short statement from the dock to the effect that he denied the charge and he would like the court to order a blood test.

30. Mr Luman submitted that the complainant was a credible witness. She was clearly embarrassed by having to recount the details of this incident and that explains why there were long pauses before some of her answers.

31. Her evidence was clear: the accused lured her away from her sister and cousins and proceeded to have sex with her. The question of consent is inconsequential. Consent is not a defence to the offence under Section 229A.

32. The evidence as to the complainant’s age is also clear. This evidence has not been contradicted. She was born in January 1988. When the incident happened – in December 2002 – she was a little under 15 years old. She was only 14. She is now aged 18. The court has had the opportunity to observe her in the witness box. She still looks like a young person, so she must have looked very young when the incident occurred. The accused could not reasonably have been mistaken about her age.

33. Mr Luman submitted that the prosecution did not have to prove that the accused knew it was a crime to have sex with a 14-year-old girl. Ignorance of the law is no excuse by virtue of Section 23 of the Criminal Code.

34. Corroboration of the complainant’s evidence is no longer required. The prosecution’s case will rise or fall depending on the court’s assessment of the credibility of the two State witnesses.

35. No defences were disclosed during the cross-examination of the State witnesses. The accused made admissions in his police interview and there was no evidence that the interview was improperly conducted or that the accused gave his answers under duress.

36. Mr Kaluwin submitted that there was a defence of honest but mistaken belief: the complainant was not under the age of 16. He relied on Section 25 of the Criminal Code. He argued that there was evidence of that honest but mistaken belief in the record of interview. It was not necessary for the accused to give evidence of that belief. He argued that the prosecution bore the onus of proof, to disprove the existence of the defence.

37. Even if that defence did not succeed, Mr Kaluwin submitted that the court should place little or no weight on the complainant’s evidence as her demeanour was not that of a witness of truth. The court had to wait an inordinately long time for many of her answers, which is indicative of someone who was lying. She is now over the age of majority. Her evidence cannot be believed.

38. Mr Luman argued that the court should not entertain the defence of honest but mistaken belief as to the age of the complainant was never put to the State witnesses. The rule in Browne v Dunn (1893) The Reports 67 was violated. If the court is disposed to consider the defence of mistake, it has been disproved by the State.

39. As to the demeanour of the complainant, she was understandably embarrassed about having to give evidence in open court. A lot of the questions put to her were irrelevant

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.

41. To sustain a conviction the State has the onus of proving beyond reasonable doubt the existence of all the following elements of the offence:

42. "Sexually penetrates" is defined by Section 6 (sexual penetration), which states:

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

(b) the introduction, to any extent, by a person of an object or a part of his or her body (other than the penis) into the vagina or anus of another person, other than in the course of a procedure carried out in good faith for medical or hygienic purposes.

43. Lack of consent is not an element of the offence under Section 229A. (though it might be a mitigating factor for the purposes of determining sentence on conviction). Consent can, however, be a defence, if the complainant consented to sexual penetration and one of the circumstances prescribed by Section 229F(a) or (b) 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

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

45. In the present case the child (the complainant) was more than 12 years old but the accused was much more than two years older than her. He was 22. So the defence in Section 229F(b) could not apply.

46. The defence in Section 229F(a) – belief on reasonable grounds that the child was aged 16 or more – was possibly available to the accused.

48. I accept Mr Luman’s submission as to the elements of the offence. The prosecution does not have to prove absence of consent. If the defence of honest and mistaken belief in age has been raised, the prosecution normally has the onus of disproving the elements of that defence. In this case, the defence of reasonable belief is potentially available under Section 229F. But it can only be successful if it is coupled with presence of consent. In that sense the prosecution has the onus of proving absence of consent. When a defence of mistaken belief is raised, the prosecution has the onus of disproving the elements of that defence beyond reasonable doubt; consistent with the approach of the courts to other criminal defences, eg provocation and self-defence. (See R v Nikola Kristeff (1967) No 445, pre-Independence Supreme Court, Frost J; The State v Angela Colis Towavik [1981] PNGLR 140, Miles J; The State v Misari Warun (1989) N753, Brunton AJ; The State v Leah Tununto (1990) N947, Brunton AJ; The State v Leonard Masiap [1997] PNGLR 610, Sevua J; The State v Rose Yapihra (1997) N1741, Bidar AJ; The State v Michael Nema Melpa (2003) N2450, Jalina J; The State v Matilda Edward (2004) N2726, Davani J; and The State v Albert Gias (2005) N2812, Cannings J.)

49. I reject Mr Kaluwin’s submission that the general defence of mistake of fact is available under Section 25. That is a general defence provision that should give way to the particular provision in Section 229F.

50. I accept Mr Luman’s submission that the defence of mistake as to age should have been clearly put to the State witnesses, in order to comply with the rule of procedural fairness known as the rule in Browne v Dunn. This rule, applied consistently in Papua New Guinea in both civil and criminal proceedings, can be expressed in many different ways, including that in order for a party’s claim to be considered credible, the party must in fairness put its case to the other side’s witnesses by way of cross-examination (The State v Kevin Anis (2003) N2360, National Court, Kandakasi J).

52. It is not a simple matter of deciding who to believe. The issue is whether the prosecution has discharged the onus of proving each element of the offence beyond reasonable doubt. If there is a reasonable doubt as to the existence of any one or more of the elements, the court is obliged to acquit the accused.

53. Prior to 2003 the general practice was that the court was required to warn itself of the dangers of entering a conviction for rape or other sexual offences based on the uncorroborated testimony of the complainant. The practice was consistent with the position at common law, the rationale being that rape is a serious charge, easy to allege and difficult to refute. (The State v Kewa Kai [1976] PNGLR 481, National Court, Prentice DCJ; The State v Anton Kumak (1990) N835, National Court, Ellis J; The State v Bikhet Nguares Paulo [1994] PNGLR 335, National Court, Doherty J.) (See generally D R C Chalmers et al, Criminal Law and Practice in Papua New Guinea, 3rd edition, Lawbook Co, © 2001, pp 333-335.)

54. Nowadays the opposite is the case: not only is the National Court not required to warn itself, it is not allowed to. Section 352A of the Criminal Code (corroboration not required) states:

On a charge of an offence against any provision of this Division, [Division V.7, (sexual offences and abduction) a person may be found guilty on the uncorroborated testimony of one witness, and a Judge shall not instruct himself that it is unsafe to find the accused guilty in the absence of corroboration. [Emphasis added.]

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 that it is unsafe to find the accused guilty in the absence of corroboration. [Emphasis added.]

56. 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.

57. The accused has been charged with an offence under Section 229A, which falls within Division IV.2A (sexual offences against children). For that offence, Section 229H (corroboration not required) applies. It is in exactly the same terms as Section 352A.

58. "Uncorroborated testimony" is defined, in relation to an accused person, by Section 1(1) to mean "testimony that is not corroborated in some material particular by other evidence implicating him".

60. It is possible to regard the present case as one in which the State is seeking a conviction on the basis of the uncorroborated testimony of the complainant. She is the only witness to testify that she witnessed what happened at Tamuts Island in December 2002. The only other person present was the accused and he did not give evidence (though there is evidence of admissions in his record of interview).

61. However, to the extent that this case is regarded as one based on the uncorroborated testimony of one witness, the complainant, I remind myself, in accordance with Section 229H, that a conviction is still possible and that the prosecution still bears the onus of proving the elements of each offence beyond reasonable doubt. I do not instruct myself that it is unsafe to find the accused guilty in the absence of further corroboration.

62. It is not disputed that the accused took the complainant, her sister and cousins to Tamuts Island in December 2002. Nor is it disputed that the complainant was aged 14 at the relevant time. Age is not at issue in this case.

63. Exhibit A: record of interview. There was a suggestion in the defence counsel’s opening submission that this document was fabricated, but he later changed tack and argued not that it was fabricated but that the accused was not in a proper frame of mind when he was interviewed. I consider that it is a credible record of interview.

64. Exhibit B: statutory declaration of the complainant’s age. No reason has been given to doubt the authenticity of the document or the facts declared in it, there being no objection taken to either.

65. Witness No 1 was the complainant. She appeared to be very nervous. She was subject to vigorous cross-examination. It was put to her that there were inconsistencies in her story and she was willing to change her story as circumstances required. It was put to her that she was saying things in her oral testimony that were not mentioned in her police statement. I thought that such differences were unremarkable and to be expected. It appears that the police affidavit was not drawn up by a lawyer and it would not be necessarily expected to be a complete record of the complainant’s version of events. She gave her police statement three years ago and cannot reasonably be expected to remember exactly what she said.

66. At the end of the process of her giving evidence I was not left with the impression that she was lying or unreliable. I do not accept the defence counsel’s submission that her demeanour in the witness box exhibited dishonesty.

67. I do not think the defence counsel succeeded in establishing that the complainant’s version of events was false or that the father of her child was anyone other than the accused.

68. I took into account the fact that at some stages of her cross-examination there were long pauses between the questions and the answers. On a number of occasions I had to ask whether she understood the question and whether she proposed to answer it. However, at the end of the process of her giving evidence I did not draw any adverse conclusion as to her credibility arising from the way she gave her evidence. It is important for the court to form an opinion on the overall credibility of the complainant’s evidence. Therefore I state that, in particular having regard to her demeanour in the witness box, I regard the complainant as a credible witness.

69. Witness No 2 was Constable Lilian Solas. She appeared to be a credible witness.

CONTENTIOUS FACTUAL ISSUES RELATING INDIRECTLY TO THE ELEMENTS OF THE OFFENCE

(1) For the purposes of this Part, "consent" means free and voluntary agreement.

(2) Circumstances in which a person does not consent to an act include, but [are] not limited to, the following: ...

(j) the person, having consented to engage in the sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

The evidence suggests that the complainant, having consented to engage in sexual activity, expressed by words and conduct, a lack of agreement to continue. That means she did not consent.

CONTENTIOUS FACTUAL ISSUES DIRECTLY PERTINENT TO THE ELEMENTS OF THE OFFENCE

72. This defence was made in a general way; though the manner in which it was put forward breached the rule in Browne v Dunn. Therefore strictly speaking the onus of proof did not rest with the prosecution to disprove its elements.

73. If the onus of proof did rest with the prosecution, I would have concluded that it had been discharged, ie the prosecution disproved the elements of the defence under Section 229F beyond reasonable doubt. There was, in fact and law, no consent. Furthermore, the accused’s belief that the complainant was aged 16 or more was not based on reasonable grounds.

75. I am satisfied beyond reasonable doubt as to all elements. Therefore the accused is guilty as charged.

76. I find that the accused, Jeffery Toapas, is guilty of one count of engaging in an act of sexual penetration with a child under the age of 16 years and convict him accordingly.

Verdict accordingly.
________________________________________________________________________

Public Prosecutor: Lawyer for the State
Public Prosecutor: Lawyer for the accused

1 –	Summary of exhibits.
2 –	Witnesses called by the State.

National Court of Papua New Guinea

State v Toapas [2006] PGNC 70; N4485 (22 August 2006)