State v Bobo (No 2) [2007] PGNC 130; N3263 (18 July 2007)

N3263

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 51 OF 2006

THE STATE

-V-

PETER BOBO (NO.2)

Kavieng: Lenalia, J.
2007: 5, 6, 13, 16 & 18 July.

CRIMINAL LAW – Practice and Procedure – Trial on charge of rape – Alternative count – Sexual penetration of girl under age 16 – Finding of guilty on alternative count.

CRIMINAL LAW AND PRACTICE – Arrest of judgment – No formal application – No submissions made by counsels on address on the verdict on the original charge of rape – Exercise of power under s.155 (3) of the Constitution – Application by defence granted.

Case cited.
R v Merembu Bongab [1971-1972] PNGLR 433
Avia Aihi v The State [1981] PNGLR 81

Counsel:
M. Ruari, for the State
P. Tusais, for the Accused.

DECISION ON APPLICATION BY DEFENCE.

18 July, 2007

1. LENALIA, J: The accused pleaded not guilty to one count of rape contrary to s.347 of the Criminal Code Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. The second charge contained in the indictment was an alternative count of sexual penetration laid pursuant to s. 229A (1) of the above Act.

2. After the court had handed down its decision on the verdict on 13th of this month, where it found the accused guilty on the alternative charge of sexual penetration under s.229A (1), the case was adjourned to Monday (16th instant) for addresses on allocutus, the defence and prosecution addresses on sentence, Mr. Tusais of counsel for the prisoner made a verbal application on the verdict of guilty under s.229A (1) of the Act.

3. The basis of his application was that there was evidence that the victim at the time of the offence was above 16 years of age. Because of that, Mr. Tusais submitted that he was uncomfortable addressing the court on sentence. The wording of s.229 (1) of the Act states:

"(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".

4. Mr. Tusais submitted that because there was evidence by the victim suggesting that, she was above the age specified under Subsection (1) of Section 229A of the Criminal Code (Sexual Offences and Crimes Against Children) Act, the court should use its power under s.155 (3) of the Constitution to set aside the guilty verdict on the alternative charge of sexual penetration of a girl under the age of 16 years. Counsel submitted that there was evidence that the victim was over the age of 16 years and that s.229A (1) of the Act does not apply or could not be applied to the circumstances of the instant trial.

5. In her evidence in chief, she was asked as to when she was born and she replied by saying, she was born on 14th of June 1988. The medical report suggests that, the date of birth was 14 June 1989. That is a difference of one year. In any event, the court will accept the victim’s evidence of being born on 14th day of June in 1988. According to that evidence, it would appear that the victim was above the age of 16 years.

5. Mr. Ruari of counsel for the prosecution agreed with the defence submission that the court should, before they address the court, make an alternative finding instead of sexual penetration, could be on sexual assault under s.349 of the Criminal Code (Sexual Offences and Crimes Against Children) Act. Counsel further submitted that under s.541 of the Criminal Code, the court has power to find an alternative verdict despite the fact that, an alternative charge was included in the body of the indictment.

7. With due respect, I do not agree with counsels’ suggestions that, the court could come to and alternative finding under s.541 of the Criminal Code. The reason for that conclusion is that Subsection (a) of s.541 would seem to preclude this court from a finding of guilty under this Section because there was evidence of "particular age" and secondly there was clear evidence on trial that, the victim in the instant case is a niece to the accused and sexual intercourse in fact took place. That is to say, there was ample evidence of the element of "blood relationship" in terms of s.223 (2) of the Criminal Code (Sexual Offences and Crimes Against Children) Act.

8. The victim explained in her evidence that the accused is married to the elder sister of her mother. In English, the word niece means, the son of one’s brother or sister. The Oxford Advanced Learner’s Dictionary defines the word niece in the following words "the daughter of your brother or sister; the daughter of your husband’s or wife’s brother or sister". In the circumstances of this case, the victim is the daughter of the accused wife and thus by definition of s.223 (2) of the Act, there is the essential element of "blood relationship".

9. In terms of the Criminal Code (Sexual Offences and Crimes Against Children) Act, sexual penetration with a close blood relative is an offence. The words "close blood relative" is defined by Subsection (2) of Section 223 in the following terms:

"For the purposes of this section, a close blood relative means a parent, son, daughter, sibling (including a half brother or half sister), grandparent, grandchild, aunt, uncle, niece, nephew or first cousin, being such a family member from birth and not from marriage or adoption."

10. Because the victim is a niece to the accused, there are elements of first "particular age" and secondly the two were related to each other by "blood relationship". Note the language of Subsection (a) of Sections 541. The whole proviso is quoted in the following terms:

"541. Charge of rape and like offences.

On an indictment charging a person with the crime of rape or having unlawful carnal knowledge of a girl under the age of 12 years, he may be convicted of any offence—

(a) of which the unlawful carnal knowledge of a woman or girl, whether of a particular age or description or not, is an element and blood relationship is not an element; or

(b) of which procuring the woman or girl to have unlawful carnal connexion with any man is an element; or

(c) of administering to the woman or girl, or causing her to take any drug or other thing, with intent to stupefy or overpower her in order to enable any man to have unlawful carnal knowledge of her; or
(d) of unlawfully and indecently assaulting the woman or girl; or

(e) of unlawfully and indecently dealing with a girl under the age of 12 years or a girl under the age of 16 years."

11. Having heard the lawyers on Monday this week, (16th instant), I adjourned to today (18th) for the court to make my ruling.

12. The prisoner was found guilty on an alternative charge of sexual penetration. Because s.229A of the Act could only apply to victim because she was above the age limit of 16 years, sexual intercourse with girls above the age of 16 could either be a case for rape under s.347 or abuse of trust, authority or dependency under s.229E of the Criminal Code (Sexual Offences and Crimes Against Children) Act. That may only be possible if the victim is 16 or 18 years. There was no evidence of forceful intercourse in the trial before me as I have already found. Instead there was a finding of two acts of consensual sexual penetration between the accused and the victim.

13. As were the circumstances in the instant trial, the victim was just a little bit past her 17th birth day. Accepting the fact that she was born on 14th of June 1988, coming up the track to the 14th of June 2005, she reached her 17th year. The offence took place on 28 July, 2005. The victim would have been effectively at the age of 17 years, one month and two weeks exactly.

14. I am reminded by the principle stated in R v Merembu Bongab [1971-1972] PNGLR 433 where the court in that case said that, where there is no dispute about sexual penetration, the alternative verdict of indecent assault is not available. So sexual assault under s.349 of the Criminal Code (Sexual Offences and Crimes Against Children) Act might not be possible not only because of the principle in the above case but by definition of s.541 (a) of the Criminal Code an alternative finding of carnal knowledge could only be possible if there were no elements of a particular age description and or where there was no element of blood relationship.

15. The prisoner in this case was found guilty of sexual penetration of the victim. The technical problem created by s.229A (1) of the Act is the age limit which places the limit at 16 years only. For reasons stated above I accept the defence submission and treat the application as a Motion on an arrest of judgment pursuant to s.594 of the Code.

16. Since the victim was a little over 17 years, going toward her 18th birth day, the appropriate alternative verdict under s.547 of the Criminal Code should be one for abuse of trust, authority or dependency pursuant to s.229E (1) and (2) of the Criminal Code (Sexual Offences and Crimes Against Children) Act which states:

"(1) A person who engages in an act of sexual penetration or

sexual touching of a child between the age 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"

17. For the records purposes, the finding of guilt and the conviction entered on the 16th of this month shall stand as regards to sexual penetration. And since the victim at the time and the date of the offence was above age 16 years, the verdict on the alternative finding on sexual penetration under s.229A (1) of the Act concern is set aside and instead substitute that Section with s.229E (1) and (2) of the Criminal Code (Sexual Offences and Crimes Against Children) Act.

18. I consider the urgency of this application in terms of the duration of the circuit to this province and I am of the view that, I ought to apply the inherent powers given this Court pursuant to s.155 (3) and (4) of the Constitution and more particularly Subsection (4) which gives both the Supreme Court and the National Court the power to exercise the inherent power to make in such circumstances as seems proper to do justice in a particular case. The application before me is one of those particular case. The exercise of the "inherent power" under s.155 (4) must be exercised judicially: Avia Aihi v The State [1981] PNGLR 81.

19. Considering the fact that, the finding of sexual penetration in the instant case still stands, what remains to be altered is only the Section under which a finding of guilty could be made and which the court has already made.

20. Let me raise a matter of concern. If the defence counsel had known about the evidence, then the court should have been addressed on that fact when the court received addresses on the verdict. Secondly, if there was a defect on the indictment, particularly the alternative charge, there should have been a formal Notice for the Arrest of judgment pursuant to s.594 of the Criminal Code more particularly Subsection (1). Section 594 of the Criminal Code states:

"(1) A person convicted of an indictable offence, whether on his plea of guilty or otherwise, may at any time before sentence move the judgement be arrested on the ground that the indictment does not disclose an offence.

(2) On hearing of a motion under Subsection (1) the court may allow any amendment of the indictment that it might have allowed before verdict.

(3)The court may either hear and determine the motion under Subsection (1) immediately or may reserve the question of law for the consideration of the Supreme Court as if it were a question of law arising on the trial."

21. Due to the urgency of this matter, I do not think it is appropriate to adjourn the matter for a reference to be made to the Supreme Court as I think there is no serious issue to be reserved for the above Court as I am of the view that the court will accept the verbal application by the defence counsel and applying s.155 (4) of the Constitution make orders as follows:

1. The guilty verdict and conviction pronounced on the 13th of this month still stand.
   
2. The finding of guilt made pursuant to s.229A (1) is set aside and in lieu thereof substituted with s.229E (1) of the Criminal Code (Sexual Offences and Crimes and Crimes Against Children) Act.
   
3. The matter is adjourned to 1.30 pm today for counsels’ addresses on sentence.
   

The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused.