State v Nanal [2009] PGNC 53; N3597 (9 April 2009)

N3597

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 725 0F 2006

THE STATE

V

BOND NANAL

MADANG: CANNINGS J

14, 15 MAY, 4 SEPTEMBER, 27 OCTOBER 2008; 9 APRIL 2009

VERDICT

Criminal law – engaging in act of sexual penetration with child under age of 16 years – trial – Criminal Code, Section 229A(1) – whether act of sexual penetration was engaged in – whether child was under age of 16 years – whether there was an existing relationship of trust, authority or dependency.

Criminal law – abuse of trust, authority or dependency – Criminal Code, Section 229E(1) – engaging in act of sexual penetration with child aged between 16 and 18 years with whom there was an existing relationship of trust, authority and dependency.

Criminal law – alternative offences – whether a conviction for a lesser offence can be entered when its elements are proven but there is no express provision in the Criminal Code for entering an alternative conviction – whether necessary for an indictment to include the lesser offence as an alternative charge.

The accused was a grade 7 schoolteacher who had a relationship with one of his female students, the complainant. The State alleges that it became a sexual relationship and that the accused committed an offence under Section 229A(1) of the Criminal Code as the complainant was at the time under the age of 16 years. The State further alleged the offence was committed in circumstances of aggravation, as there was an existing relationship of trust, authority or dependency between the accused and the complainant. The accused admitted to having a special relationship with the complainant but denied having sex with her. It was also part of the defence case that the complainant was above the age of 16 at the time that the alleged sexual penetration took place. During the court’s deliberations, the issue arose whether it was open to enter a conviction for the lesser offence under Section 229E(1): engaging in an act of sexual penetration with a child aged between 16 and 18 years with whom there was an existing relationship of trust, authority or dependency.

Held:

(1) The two elements of an offence under Section 229A(1) are that:

- the accused engaged in an act of sexual penetration with another person;

- the other person was a child under the age of 16 years.

(2) If at the time of an offence under Section 229A(1), there was an existing relationship of trust, authority or dependency between the accused and the complainant, this is a circumstance of aggravation which, if charged in the indictment, lifts the maximum penalty from 25 years to life imprisonment.

(3) Here, the complainant’s oral testimony, corroborated by the terms of love letters exchanged between her and the accused, and having regard to the accused’s unconvincing evidence, was sufficient evidence that the accused engaged in at least one act of sexual penetration with her.

(4) However, it was not proven beyond reasonable doubt that the complainant was under the age of 16 years. It is more likely that she was aged 17 years. Therefore the accused was found not guilty under Section 229A(1) of the Criminal Code.

(5) The elements of an offence under Section 229E(1) of the Criminal Code were proven as the accused engaged in an act of sexual penetration with a child aged between 16 and 18 years with whom there was an existing relationship of trust, authority and dependency.

(6) However, as the indictment contained no alternative charge and there is no provision of the Criminal Code that allows a conviction for a lesser offence to Section 229A(1) to be entered, it was not open to the court to enter a conviction under Section 229E(1).

(7) Therefore the accused was fully discharged from the indictment.

Cases cited:

The following cases are cited in the judgment:

The State v Albert Monja (1987) N632
The State v Alex Matasol Hagali CR No 928 of 1997, 28.09.06
The State v Anslem Pasika (2005) N3166
The State v Douglas Jogioba, CR No 1766 of 2005, 24.10.07
The State v Henry Judah Les (2005) N2950
The State v James Yali (2005) N2988
The State v Jimmy Aiyo CR No 147 of 2005, 28.09.06
The State v Kikia Solowet (2007) N3154
The State v Peter Bobo (No 2) (2007) N3263

Abbreviations

The following abbreviations appear in the judgment:

AJ – Acting Judge
CID – Criminal Investigations Division
Const – Constable
CR – criminal case
J – Justice
K – Kina
N – National Court judgment
No – number
PNGLR – Papua New Guinea Law Reports
v – versus

TRIAL

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.

Counsel:

J Wala for the State
Y Wadau for the accused

CANNINGS J: Bond Nanal, the accused, is a schoolteacher, aged in his 30s. In 2004 he was a grade 7 teacher at Amele Primary School, Madang Province. During the course of that year he had a special relationship with one of his female students, “DG”, the complainant. The State alleges that it became a sexual relationship in that the accused engaged in several acts of sexual penetration with the complainant and that she was at the time under the age of 16 years. The accused is charged with an offence under Section 229A(1) of the Criminal Code – engaging in an act of sexual penetration with a child under the age of 16 years – committed in circumstances of aggravation, in that at the time of the offence there was an existing relationship of trust, authority or dependency between him and the complainant.

The accused admits to having a special relationship with the complainant but denies having sex with her. It was also part of the defence case that the complainant was above the age of 16 at the time the alleged sexual penetration took place.

During the court’s deliberations, the issue arose whether it was open to enter a conviction for the lesser offence under Section 229E(1): engaging in an act of sexual penetration with a child aged between 16 and 18 years with whom there was an existing relationship of trust, authority or dependency.

THE EVIDENCE

The State’s case was based on the following evidence:

- oral testimony of the complainant;

- oral testimony of the complainant’s mother;

- oral testimony of the police investigator;

- seven ‘love letters’ exchanged between the accused and the complainant;

- the complainant’s clinic book, showing her date of birth;

- the accused’s record of interview.

For the defence, two witnesses gave sworn evidence: the accused and Dr Alois Kawa.

ELEMENTS OF THE OFFENCE

The accused has been charged under Section 229A(1) of the Criminal Code (sexual penetration of a child) which states:

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.

The two elements of an offence under Section 229A(1) are that:

- the accused engaged in an act of sexual penetration with another person; and

- the other person was a child under the aged of 16 years.

The indictment alleges that at the time of the offence there was an existing relationship of trust, authority and dependency between the accused and the complainant. This circumstance of aggravation, if proven in addition to the elements of the offence, would make the accused liable under Section 229A(3) to a maximum penalty of life imprisonment. The accused does not dispute that a relationship of trust, authority and dependency existed as he was a schoolteacher and the complainant was his pupil. That sort of relationship is by virtue of Section 6A(2)(d) of the Criminal Code a relationship of trust, authority or dependency. Therefore, if both elements of the offence under Section 229A(1) are proven, the accused would be liable to a maximum penalty of life imprisonment.

If one of the elements is not proven, the question will arise whether the accused should be convicted of an alternative offence. For example, Section 229E(1) makes it an offence to engage in an act of sexual penetration with a child aged between 16 and 18 years with whom there was an existing relationship of trust, authority and dependency.

ISSUES

The principal issues to be decided are:

1. Did the accused engage in one or more acts of sexual penetration with the complainant?

2. Was the complainant under the age of 16 years at the time?

3. If the answer to (1) or (2) is no, can the accused be convicted of any other offence?

FIRST ISSUE: DID THE ACCUSED ENGAGE IN ONE OR MORE ACTS OF SEXUAL PENETRATION WITH THE COMPLAINANT?

The State bears the onus of proving beyond reasonable doubt that the accused engaged in at least one act of sexual penetration with the complainant.

The complainant’s evidence

DG said that Mr Nanal was her grade 7 social science teacher in 2004. He initiated their relationship in about September. This led to them having sex three times. On each occasion she was an unwilling participant. He forced her to have sex against her wishes.

On the first occasion he called for her and gave her money. She went to see him as requested. He gave her K10.00. She wanted to run away but he held her by the hands and removed her clothes and had sex with her. Asked what she meant by ‘had sex’, she said he inserted his penis into her vagina. This was near a road near the school. They were disturbed by some boys who saw what was happening.

On the second occasion, he again asked her to go and see him, and she did. He gave her K20.00 and asked her to have sex with him. She refused but he forced her and he had sex with her. This happened in the bush near the road leading to the school.

There was a third occasion also, while she was collecting firewood for a class picnic.

As well as money he gave her gifts such as a camera and watch. He told her that he wanted to marry her and take her to New Zealand and become a lecturer. She believed what he was saying. She trusted him. However, her classmates got to know what was happening and she felt shame. She did not report these incidents to her parents because if they found out they would have beaten her. By 2005 the relationship had finished. He wanted to continue it but she said no.

She admitted to exchanging love letters with the accused, at least seven of them. There were also others, which she has burned.

In cross-examination she denied initiating the relationship. She admitted asking him for K50.00 at one stage to buy a dictionary. There was a lot of talk going on in and around the school and eventually her parents found out. Her mother went to the school and confronted the accused.

The mother’s evidence

She heard the stories about Mr Nanal having sex with her daughter in the bush. She went to the school and confronted him. She spoke to the headmaster who undertook to investigate the matter but nothing eventuated at first. Then she discovered some of the love letters in the house, so she went back to the school and confronted the accused again: ‘Are you here to teach or to spoil my daughter’s education?’ she said. She was so angry she almost hit him. He denied the stories. She was not satisfied so she talked to her husband who was the chairman of the school board, and the matter was reported to the Lutheran Education Agency.

Soon afterwards the accused was arrested and charged. At Jomba police station he was still denying it but her daughter said to his face ‘You are lying!’

The police officer’s evidence

First Const Jenny Ariku of the Sexual Offences Squad gave evidence. She has been a CID officer for 16 years. She conducted the official police interview of the accused. Though he refused to answer most questions, he made an admission in question-and-answer No 7: that he and the complainant had had consensual sex.

The love letters

Seven letters were admitted into evidence. All are handwritten. Some are written in Tok Pisin, some in a mixture of Tok Pisin and English. All are undated. Excerpts are shown below (generally the first and last sets of paragraphs of each letter). The original text is shown first, followed by the translation, prepared by Interpreter Roy Bakarum and agreed to by the prosecutor and defence counsel.

Exhibit A: letter from the accused to the complainant

Original text

Hi-i-i Dee,

I LOVE You Deeply! Lewa, pasin ya you mekim long kisim mi igo long haus bilong yu na bilong mitup’la raun wantaim long gaden em tu i soim mi olsem, You tu igat deep heart for me. Lewa – I Love You My Sweet heart, You are everything to me. I can’t sleep in the night without you. I can’t do my studies without you. “Lewa – it’s my heart speaking.” I wanna be with you. I wanna always like you to be at my side, so that you and I can talk together, share jokes, share Love, share fun, kissing, hugging and showing one love and our togetherness.

...

You are not my Girlfriend anymore, you are My Wife – I LOVE YOU. Lewa catch. Please Reply → Lewa o-o-o, You right ya-a-a.

Translation

High Dee,

I love you deeply! Heart, what you did today by bringing me to your house and we going together to the garden also shows to me that you also have deep heart for me. Heart – I love you My Sweetheart, you are everything to me. I can’t sleep in the night without you. I can’t do my studies without you. “Heart – it’s my heart speaking.” I want to be with you. I always want you to be at my side, so that you and I can talk together, share jokes, share love, share fun, kissing, hugging and show one love and our togetherness.

...

You are not my girl friend anymore, you are my wife. I LOVE YOU. Heart catch up. Please reply → Heart o-o-o. You are right.

Exhibit B: letter from the accused to the complainant

Original text

Hi-i-i Lewa

It so sad to hear that your parents are on their backs up against you. It’s not only you but something of such does happen to me. Lewa – noken wari. There’s Someone who Loves and care for you. I LOVE You. You are Everything to me. Lewa – Honest, Ating olsem na long nait me dreams na lukim yu kam long haus bilong mi. Morning ya, mi wari long yu stap yet na yup’la kam. Taim ol lik lik troops bilong yu ya ol i wave long me na yu tu i mekim me hamamas stret.

...

Lewa – Don’t worry My LOVE for you is Permanent. Lewa – Film ya next week Monday Bai yu kisim ya – You are my wife and I’ll do everything for you. Lewa – please makim wanp’la day na place were bai mitup’la iken meet face to face so that I will share my problem that Mr Ganahao save mekim long mi. Lewa wanp’la taim em ikisim pay slip bilong mi na em i kukim. Taim mi painim na ol sampela teachers i tokim mi. Lewa – Ain B.C. long ol dispela ol samting. Dee – Lewa – I Love You and I know our Love is the real one. I don’t see anything wrong with this Love. You are my wife. Lewa – I LOVE YOU. Please Reply tomorrow.

Translation

Hi Heart

It is so sad to hear that your parents are on their backs up against you. It’s not only you but something of such does happen to me. Heart – do not worry. There’s someone who loves and cares for you. I LOVE YOU. You are everything to me. Heart – Honest, I think that is why last night I dreamt and saw that you came to my house. In the morning I was worried about you when you and the others came. When your small troops and you waved at me you made me very happy.

...

Heart – Don’t worry My LOVE for you is permanent. Heart – You will get the film next week Monday – You are my wife and I will do everything for you. Heart – please choose one day and place where we both can meet face to face so that I will share my problem that Mr Ganahoa always give me. Heart at one stage he got my pay slip and burnt it in the fire. I was told by some teachers when I was enquiring about my pay slip. Heart – Do not worry about these things. Dee – Heart – I love you and I know our Love is the real one. I don’t see anything wrong with this love. You are my wife. Heart – I love You. Please Reply Tomorrow.

Exhibit C: letter from the accused to the complainant

Original text

Hi-i-i Dee

Lewa – Love na wanbel em stap. Lewa – If you really LOVE Me than please take action. I want to meet you at Kamkumu. Long hap where ol lik lik limbung istap. Long en em last time mitup’la bin meet long en. I got something to give you. (Money) Your Money.

Translation

Hi Dee

Heart – Love and fondness remains. Heart – If you really love me then please take action. I want to meet you at Kamkumu where the small palm (limbung) trees are where we last met. I got something to give you. (Money) Your Money.

Exhibit D: letter from the complainant to the accused

Original text

Hi-i-i Bond,

Honestly Lewa, ol tok2x blong yu long aste ye mekim mi wari stret. Wanem kain tingting stret kisim yu na yu writim dispela note long mi. Honest lewa tokim mi, yu wokim na mi wari ya. Aste nait mi skelim dispela note igo na honest aiwara blong mi pundaun ya. Sapos mi ino lovim yu, why bai mi westim taim blong mi long igo lukim yu antap long maunten. Em orait pasin na way blong yu, thank you stret, mi ino kros mi 1 bel. Thanks for your good advice too, my love.

...

Bon – mi laikim wanpla K50 long Thursday. This coming Thursday. Mi laik baim Dictionary, na Bag. Friday yu kisim ol samting blong Syll orait yu mas kisim thongs blong em tu. Lewa mi tu bai go laun long Friday, but raun bilong mi em igat conection bilong em. Mi bai go daun long Jomba, long hap by mi go long Madang Tech. Ino mi wan bai raun, igat wanpela escort blong me bai raun wantaim mi. So I don’t know bai mi bungim long hap or nogat? Lewa → Laik Bilong Mi, Mi Askim Yu Tasol. Lewa Catch → I LOVE YOU.

Translation

Hi Bond

Honestly Heart, the things you said yesterday made me really worried. What made you to write this note to me? Honest heart tell me, you made me worry. Yesterday night I was going through the note and my tears fell down. If I did not love you then why would I have wasted my time to go up to the mountain and see you? That is okay it is your ways and attitude, and thank you, I am not cross, I am happy. Thank you for your good advice too my love.

...

Bond – I want a K50.00 on Thursday. This coming Thursday. I want to buy a dictionary and a bag. On Friday when you buy Sylvester’s things you must also buy him a pair of thongs as well. Heart I also will go into town on Friday, but my going has its connections. I will go to Jomba and from there to Madang Tech. I will not go alone but with an escort. So I don’t know if I will meet you there or not? Heart → My Request, I am only asking. Heart Catch up → I LOVE YOU.

Exhibit E: letter from the complainant to the accused

Original text

Hi-i-i Bond,

Lewa, Saturday mitupla Mathilda lusim yu na go long garden na em stori long Sylvester, na honest Sylvester wari nogut tru long yu na em belhat long Daddy blong em ken. Sylvester em wari nogut tru long yu na Saturday whole em ino raun wantaim mi em raun blong em yet na em wokim ol samting long laik blong em.

...

Lewa – I’m very sorry. Mi ting bai igat class na mi tokim yu long go daun na bai mitupla passim taim igo 12:00 tasol, Gahanao laik krai long wantok blong em olsem na em stopim class. Lewa don’t worry, planti taim. Wari noken daunim yu, tingx2 ino ken kilim yu, strongim yu yet na pinisim wok blong yu, inap yu kambek, bai mi wetim yu yet. No matter how many years it takes. Lewa – I’ll still wait for you. Until our love comes true!!

Translation

Hi Bond,

Heart, On Saturday when Mathilda and I left you and went to the garden, she told me about Sylvester, and how Sylvester was very worried about you and angry about his dad. Sylvester was worried about you whole day on Saturday and he did not go around with me but alone and was doing this at own will.

...

Heart – I am very sorry. I thought there was going to be classes so I told you to go down to meet me so we can pass time until 12:00 but Gahanao wanted to share tears with his relative and so he cancelled the class. Heart do not worry, there is plenty of time ahead. Worry should not let you down, thoughts will not kill you, be strong and finish your work, until you return. No matter how many years it takes. Heart – I still wait for you until our love comes true!!

Exhibit F: letter from the complainant to the accused

Original text

Hi Bond

Hello and how’s you at this very moment. I have nothing much to share with you but just to bring your mind back from 2004. Before going further I wanna say thanks for my watch that you have bought for my birthday present.

...

Lewa you tingim yet o nogat? Sapos you tingim, plis tingim na noken tak aut. Honest Bond dispela watch ya mi baim battery na putim tasol em no wok. Yu ating ino wanbel yet na baim display watch. So I want you to go down and wait for me on the road on Thursday and get the watch. You yet bai baim battery na putim. If you love me than reply my note. If not, pls tokim me stret.

Translation

Hi Bond

Hello and how’s you at this moment. I have nothing much to share with you but just to bring your mind back from 2004. Before going further I want to say thanks for my watch you have bought for my birthday present.

...

Heart, do you still remember or not? If you still remember please kept it and do it and do not say it out. Honest Bond I bought battery for this watch but it is not working. I think you were not happy when you bought the watch. So I want you to go down the road and wait for me on Thursday and get the watch. You will buy the battery yourself and put it in the watch. If you love me then reply my note. If not, please tell me straight.

Exhibit G: letter from the complainant to the accused

Original text

Hi-i- Bond

Mi tin yu tromoi mi long baret, tasol nogat you holim mi strong long lewa blong yu yet. Mi sori tru long ol tok mi mekim long Tuesday. Mi tok tru long yu olsem, that’s the end. But note blong yu long Wednesday em tokim mi olsem, yu wan to come back to me.

...

My love, its not late yet, Don’t Worry !!

All that you need will surely come

I’ll be your dream,

I’ll be your wish, I’ll be your fantasy

I’ll be your hope

I’ll be your love, be everything that you need.

Please Reply if you love me. Catch.

Translation

Hi Bond

I thought you have dumped me into the drain, but you are still holding strongly onto me in your heart. I am very sorry about the words I made on Tuesday. I told you the truth that this is the end. But your note on Wednesday told me you want to come back to me.

...

My love, its not late yet, don’t worry!!

All that you need will surely come

I’ll be your dream,

I’ll be your wish, I’ll be your fantasy

I’ll be your hope

I’ll be your love, be everything you need.

Please Reply if you love me. Catch.

Medical evidence

There was none.

The accused’s sworn evidence

He has been a primary school teacher since 1992. He married in 1994 and his wife died in 2002. He was posted to Amele Primary School in 2002 and was there until 2005. In 2004 he was coordinating the upper primary levels and teaching grade 7 social science. The complainant was one of his students.

She started the relationship by writing the initial love letter and asking him for things such as a biro. She kept writing letters, insisting that he reply. She misinterpreted what he had said in a talk to the social science class about caring and sharing. She therefore put him in the situation where they were writing letters to each other.

He did write to her but never expressed any interest in having sex with her. He did give her some things, but only when she requested them. The relationship – purely one of friendship – only lasted a short time. Around the beginning of October 2004 he found out that she was befriending a brother of one of the teachers at the school, so he broke off the relationship.

It is true that DG’s mother came to the school after she heard rumours that he was having an affair with her daughter and had had sex with her. The matter was reported to the Education Office which sent a team to the school in November 2004 to conduct an investigation. They concluded that there was no sex and that he and the complainant were just writing letters to each other. He was again posted to Amele in 2005 and he thought that was the end of the matter.

Everything would have settled down but a woman called Desca, who wanted to have a relationship with him, got involved when he rejected her; and Desca joined with DG’s mother in reporting the matter to the police.

The police looked at the 2004 letters and would not listen to him to get his side of the story. They locked him in the Jomba cell for several days and mistreated him. He was not eating right and his mind was disturbed by the poor conditions. Everything he said should be interpreted in that context.

In cross-examination, he admitted that he was in a position of trust and authority but emphasised that he only wrote letters to the complainant on her insistence. They were only letters and it did not go beyond that. It was only a short friendship.

Dr Kawa’s evidence

The doctor gave evidence about the way in which sexual penetration of a male upon a female takes place in normal circumstances. In particular he explained the position of the vagina in relation to the rest of the body.

Credibility of witnesses

As I pointed out in The State v James Yali (2005) N2988, in a sexual offence case it is not a simple matter of deciding who to believe. An accused cannot be convicted only on the basis of suspicion or belief on the part of the tribunal of fact (the court) as to the elements of the offence. (Also see The State v Alex Matasol Hagali CR No 928 of 1997, 28.09.06 and The State v Jimmy Aiyo CR No 147 of 2005, 28.09.06.)

The court’s task is, rather, having weighed all the evidence and considered that there are reasonable grounds for believing the complainant’s evidence, to determine whether it is satisfied to the required criminal standard of proof – beyond reasonable doubt – that the elements of the offence exist. If there is a reasonable doubt, the court is obliged to acquit the accused.

Here, there are reasonable grounds for believing the complainant. She was a more impressive witness than the accused. She gave her answers quietly and calmly and her demeanour seemed to be that of a witness of truth. The accused – who presented as an intelligent person – also gave his answers calmly but his demeanour was not impressive. He seemed more intent in giving calculated answers – those that he thought would show that he had obtained consent or believed that he had consent – rather than answers that were straightforward and truthful.

His story – that his student was the one who initiated the relationship and that he was practically forced into writing letters to her to please her – is stretching credibility. The relationship he had with the complainant was obviously much more intense than he made it out to be in court. The way that he gave his evidence made this unlikely scenario harder to believe.

The complainant’s version of events was much more credible. She was a young girl who got a crush on her teacher and this developed into something that seemed at the time, to both of them to be a serious relationship. I tend to believe that she was telling the truth on the question of whether they had sex. I will now consider the specific submissions of the defence counsel and determine whether they create a reasonable doubt about her evidence.

Defence counsel’s submissions

Mr Wadau submitted that the State had fallen well short of proving that sex took place for the following reasons:

1. There was insufficient evidence of how penetration was effected.

2. There is nothing in the love letters to show that sexual penetration occurred.

Assessment of defence counsel’s submissions

1. I do not agree that the complainant’s evidence was insufficient. She was specifically asked, in relation to the first occasion on which, she said, the accused had sex with her, how penetration was effected. She said that he inserted his penis into her vagina. This falls within the definition of sexual penetration in Section 6 of the Criminal Code, 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.

Specifically, the complaint’s description of what happened falls within the description of sexual penetration in Section 6(a).

It is correct, as Mr Wadau pointed out, that she did not say that the accused’s penis was erect; and Dr Kawa gave evidence that penetration of the vagina with a penis, other than an erect penis, is physically impossible. The court is entitled to take judicial notice of that fact. The complainant did not have to say it. Dr Kawa also gave evidence about the position that the woman has to be in for penetration to be effected: bent forward or lying on her back. The complainant gave the impression that she knew what sexual penetration entailed. When she said, expressly, how it was effected in relation to the first occasion and described it as “had sex” it follows that when she used the same terminology to describe the second and third instances of “having sex” she was saying, by necessary implication, that he inserted his erect penis into her vagina on those occasions also. A complainant does not have to say expressly when giving evidence whether she was bent forward or lying on her back. The complainant gave sufficient details of how penetration was effected on each occasion. I would have thought that Mr Wadau would have been better to attack the vagueness of her evidence – precisely where and when did the incidents take place – and the lack of corroboration (what about the boys who disturbed them?). However, those points were not pressed.

2. As to the love letters, it is correct that none of them expressly refers to sexual penetration. However, the letters are written in passionate terms, with each side professing profound, deep and everlasting love for the other. In one of the letters (exhibit A) the accused refers to the complainant no longer being his girlfriend: she is referred to as his wife. The letters corroborate the complainant’s evidence that sexual penetration was engaged in.

Conclusion as to first element of offence

The defence counsel’s submissions do not convince me that the complainant’s version of events should not be believed. She was a credible witness.

I am not convinced that she was telling the truth when she said that she was forced into having sex. The evidence suggests that in fact she consented. However, consent or lack of it is not an issue in this case. It is not an element of the offence with which the accused has been charged.

The key question at this stage is whether sexual penetration occurred. On that issue I am satisfied beyond reasonable doubt that the accused engaged in at least one act of sexual penetration with the complainant, by introducing his penis into her vagina, in or about September 2004, at Amele.

SECOND ISSUE: WAS THE COMPLAINANT UNDER THE AGE OF 16 YEARS AT THE TIME?

The State relied on two pieces of evidence to prove the complainant’s evidence:

- The mother’s evidence that she gave birth to the complainant at Modilon Hospital on 23 December 1988.

- A copy of the complainant’s clinic book, showing her date of birth as that date.

If accepted, this evidence supports the proposition that at the time of the incidents in September 2004, the complainant was aged 15 years, 9 months: a few months short of her 16th birthday. The accused would be convicted.

Mr Wadau argues, however, that this is unreliable evidence as the mother’s evidence is uncorroborated, as there are serious deficiencies in the clinic book. In particular:

- The name of the child is shown as “Alice”, which bears no resemblance to the complainant’s name.

- The date of birth has been altered. It looks as if it originally stated, in handwriting, 13 December 1986 (which would make the complainant aged 17 years, 9 months at the time of the incidents). But it has been overwritten as 23 December 1988.

The mother gave evidence on these apparent discrepancies. She said that complainant, DG, is her third child. When she was born they called her Alice. But she kept getting sick, every few months, so they decided to change her name to DG; and once they did that, she stopped getting sick.

As to the overwritten date of birth, this was done by her five-year-old daughter who was scribbling on the clinic book.

I agree with Mr Wadau’s submission that these explanations were unsatisfactory. First, as to the alleged name change from Alice to DG, there is no record in the clinic book of when and how the change was effected. It is reasonably to be expected that if a mother changes the name of her child at an early age, the sisters or doctors at the clinic or hospital would make an amendment to the name in the clinic book. As to the story about a five-year-old child overwriting the date, this seems most implausible. The date looks as if it has been carefully and deliberately overwritten in biro by someone with a rather steady hand, not accidentally changed by an unsupervised five-year-old child scribbling on a book.

I suggested in James Yali’s case that mothers are reasonably expected to be a reliable source of information about the dates on when their children were born. However, given the uncertainty created by the clinic book and the unconvincing explanation for the wrong name appearing and the date of birth being overwritten, this is a case in which there needed to be some independent corroboration of the age of the complainant; eg school records, church records, evidence from a local ward councillor, sporting records (eg selection in an age group team in a particular year).

In saying that, I am mindful of Section 63 (age) of the Evidence Act, which states:

In any legal proceedings, if the court does not consider that there is evidence or sufficient evidence to determine the age of a person the court, having seen the person, may itself determine the question.

Here, there is insufficient evidence of the age of the complainant, so the court, having seen her give evidence in the witness box, is entitled to determine what her age was in 2004. The State argues that in September 2004, she was aged 15 years, 9 months. The defence case is that she was more likely to have been (if any credence is to be given to the original date of birth in the clinic book) 17 years, 9 months.

This means that when the complainant gave her evidence in May 2008, I was seeing and observing a youthful female who was either aged 19 years, 5 months or 21 years, 5 months. I cannot with any confidence determine that she was either of those ages. Both scenarios are plausible. However, I think the latter is likely.

It follows that the State has not proven that, at the relevant time – September 2004 – the complainant was a child under the age of 16 years.

The standard of proof required is beyond reasonable doubt but even if the civil standard of on the balance of probabilities were to be applied I would still not be convinced. I consider it is more likely that she was aged 17 years at the relevant time.

The second element of the offence has not been proven. Therefore the accused is found not guilty under Section 229A(1) of the Criminal Code.

THIRD ISSUE: IS THE ACCUSED GUILTY OF ANY OTHER OFFENCE?

There is a related offence, created by Section 229E of the Criminal Code, on which the accused could have been indicted: engaging in an act of sexual penetration with a child aged between 16 and 18 years with whom there was an existing relationship of trust, authority and dependency.

Section 229E (abuse of trust, authority or dependency) states:

(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.

The offence has three elements:

- the accused engaged in an act of sexual penetration or sexual touching with another person;

- the other person was a child between the ages of 16 and 18 years;

- there was an existing relationship of trust authority or dependency between the accused and the child.

I consider that each of the three elements has been proven. However, it would not be proper to enter a conviction against the accused. There is no general principle that if a person has been charged with a specific offence and, though not all elements of it are proven, all elements of a lesser offence are proven, the court can enter a conviction for the lesser offence. This is the thrust of most of the National Court cases that have grappled with this issue. See, for example, The State v Albert Monja (1987) N632, King AJ; The State v Henry Judah Les (2005) N2950, Lay J; The State v Anslem Pasika (2005) N3166, Kandakasi J; The State v Kikia Solowet (2007) N3154, Cannings J. Lenalia J appeared to take a different view in The State v Peter Bobo (No 2) (2007) N3263, but that was a peculiar case in which the accused was indicted for rape.

The power to convict an accused of a lesser offence only exists where the Criminal Code specifically provides for it. For example, Section 539 says that a person indicted for wilful murder can be convicted of murder or manslaughter. Section 541 says that a person indicted for rape or unlawful carnal knowledge of a girl under the age of 12 years can be convicted of certain lesser offences. There is no provision in Division IV.2A (sexual offences against children) or elsewhere in the Criminal Code that allows a conviction on Section 229E to be entered where the indictment charges an accused only with an offence under Section 229A.

The situation would be different if Section 229E had been included in the indictment as an alternative charge. But that was not the case here.

The accused is perforce of Section 37(1) of the Constitution entitled to the full protection of the law. If there is any reasonable doubt about the interpretation of provisions of the Criminal Code the ambiguity should be resolved in favour of the accused. As the Code does not provide for conviction for a lesser offence, none should be entered.

The accused cannot be found guilty of any other offence and must be fully discharged from the indictment.

REMARKS

This case shows how important it is in child sexual offence cases for there to be clear evidence as to the age of the child. The Public Prosecutor also needs to exercise more finesse in the drafting of indictments in these sorts of cases. Alternative charges should be included if there is insufficient evidence as to the age of the child (as was done in James Yali’s case). Or, if there is evidence of lack of consent, the charge preferred in the indictment might be rape (as in the case of The State v Douglas Jogioba, CR No 1766 of 2005, 24.10.07, where a male schoolteacher was convicted of two counts of rape committed against one of his grade 8 female students).

In this case a schoolteacher who entered a manifestly inappropriate and improper relationship with one of his students has been allowed to not face the full consequences of his actions by reason of an inadequate investigation and prosecution.

VERDICT

The accused, Bond Nanal, is found not guilty of engaging in an act of sexual penetration with a child under the age of 16 years contrary to Section 229A(1) of the Criminal Code and not guilty of any other offence. He is fully discharged from the indictment.

Verdict accordingly.
____________________________

Lawyer for the State: Public Prosecutor
Lawyers for the accused: Young Wadau Lawyers