State v BN [2014] PGNC 250; N5677 (17 July 2014)

N5677

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 889 OF 2013

THE STATE

V

"BN"

Madang: Cannings J
2014: 19, 20 May, 3, 24 June, 17 July

CRIMINAL LAW – sexual offences against children – committing indecent act directed at child under age of 16 years, Criminal Code, Section 229C – elements of offence – trial

The accused, a mature-aged woman, was charged with an offence under Section 229C(1) of the Criminal Code: committing an indecent act directed at a child under the age of 16 years, in circumstances of aggravation, in that the complainant, an 11-year-old girl, was under the age of 12 years. The State alleged that the accused arranged with her husband for him to have sex with the complainant, who had been taken into their care, and that she fetched the complainant and took her to her husband and that she committed two indecent acts directed at the complainant: she undressed the child in the presence of her husband and then sat and watched as her husband sexually penetrate the complainant by introducing his penis into her vagina. The accused pleaded not guilty and a trial was held. The State relied on sworn oral testimony of the complainant and her biological father. The accused gave sworn evidence that she had fetched the complainant and removed her clothes and watched her husband have sex with her but that she did those things as he forced her to do so, in that he would have assaulted her if she refused to comply with his demands.

Held:

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

• the accused committed an indecent act;
• the act was directed at a child under the age of 16 years.
  

(2) The terms "indecent act" and "directed" are not defined by the Criminal Code but given their context in Division IV.2A (sexual offences against children), "indecent act" should be taken to mean an objectively inappropriate or offensive action committed for the purpose of sexual gratification and "directed" implies that the action should be done deliberately with the aim of being communicated to the child.

(3) The Court found that the accused did undress the complainant and did watch her husband have sex with her, but accepted the accused's evidence that she did those things as she was forced to do so. In effect she acted out of compulsion.

(4) As the accused's actions were not done for purposes of her sexual gratification, they were not "indecent acts". The first element was unproven.

(5) The accused was found not guilty.

Cases cited

No cases are cited in the judgment.

TRIAL

This was the trial of an accused charged with committing an indecent act directed at a child under the age of 16 years.

Counsel

F Popeu, for the State
A Meten, for the accused
17th July, 2014

1. CANNINGS J: The accused, BN, is charged with an offence under Section 229C(1) of the Criminal Code: committing an indecent act directed at a child under the age of 16 years, in circumstances of aggravation, in that the complainant, a young girl, alleged by the State to have been aged 11, was under the age of 12 years.

2. The State alleges that the accused arranged with her husband for him to have sex with the complainant, who had been taken into their care, and that she fetched the complainant and took her to her husband and that she committed two indecent acts directed at the complainant: she undressed her in the presence of her husband and then stood and watched as her husband sexually penetrated the complainant by introducing his penis into her vagina. The accused pleaded not guilty and a trial was held.

3. The State relied on sworn oral testimony of the complainant and her biological father. The accused gave sworn evidence that she had fetched the complainant and removed her clothes and watched her husband have sex with her but that she did those things as he forced her to do so, in that he would have assaulted her if she refused to comply with his demands.

UNDISPUTED FACTS

4. A number of undisputed facts have emerged from the evidence:

• The accused is a woman aged in her mid-40s. She had been married to her husband, MD, for more than 20 years when this incident happened at their village in Madang Province on or about 1 January 2013. The accused and MD have five children.
  
• The complainant, JN, was at the time of the incident under the age of 16 years. (Her exact age is contentious. Her biological father gave evidence that her date of birth is 25 June 2001, which supports the State's proposition that she was 11 years old at the time. The defence does not accept that evidence.)
  
• MD asked the accused to bring the complainant to him in a garden that was 300 metres from their house. It was night-time. The accused complied with the request: she fetched the complainant and accompanied her to the garden.
  
• The accused undressed the complainant. MD then sexually penetrated the complainant by introducing his penis into her vagina. The accused stayed and watched.
  
• The complainant became pregnant as a result of the incident. She gave birth to MD's child at Modilon General Hospital in September 2013.
  
• The complainant's biological parents had divorced. Her father, NK, remarried and the complainant was living with her father and stepmother in the village in 2012, with the accused and MD.
  
• NK was very close to the accused and MD. He regarded them as his mother and father. Thus the complainant was living with the accused and her husband at the time of the incident.
  
• NK reported the incident to the Police in February 2013, when it became apparent that the complainant was pregnant.
  
• Soon after the Police commenced investigating the incident, MD absconded. He left the village and has not been seen since. His whereabouts are unknown.
  

THE OFFENCE

5. Section 229C (indecent act directed at a child) of the Criminal Code states:

(1) A person who commits an indecent act directed at 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 five years.

(2) If the child is under the age of 12 years, an offender under Subsection (1) is guilty of a crime, and is liable to imprisonment for a term not exceeding seven years.

(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 to imprisonment for a term not exceeding seven years.

ELEMENTS

6. The two elements of an offence under Section 229C(1) are that:

• the accused committed an indecent act;
• the act was directed at a child under the age of 16 years.
  

7. Both elements must be proven beyond reasonable doubt. If they are, the Court will then need to determine whether the State has proven the circumstance of aggravation charged in the indictment: that the complainant was under the age of 12 years at the time. The significance of proving the circumstance of aggravation is that it increases the maximum sentence from five years to seven years imprisonment. If one of the two elements of the basic offence is not proven, the accused will be found not guilty and it will be unnecessary to determine the exact age of the complainant.

"Indecent act" and "directed"

8. The terms "indecent act" and "directed" are not defined by the Criminal Code but given their context in Division IV.2A (sexual offences against children), and in the absence of any reported case in which the National Court or the Supreme Court has interpreted the terms, my view is:

• "indecent act" should be taken to mean an objectively inappropriate or offensive action committed for the purpose of sexual gratification of the accused; and
  
• "directed" implies that the action must be done deliberately with the aim of being communicated to the child.
  

9. As there are specific offences of engaging in an act of sexual penetration with a child under the age of 16 years (Section 229A) and sexual touching of a child under the age of 16 years (Section 229B) there does not appear to be any requirement to prove physical contact with the child for an "indecent act" to be committed for such an act to be "directed" at the child.

ISSUES

10. There are two main issues:

• Did the accused commit an indecent act? and if she did -
  
• Was that act directed at the complainant?
  

11. If both issues are decided in favour of the State, the accused will be found guilty, in which case the final issue will be:

• Was the complainant under the age of 12 years?
  

DID THE ACCUSED COMMIT AN INDECENT ACT?

12. Resolution of this issue requires a:

• summary of evidence for the State;
• summary of evidence for the defence;
• formal determination of the question whether the State has proven that the accused committed an indecent act.
  

Evidence for the State

13. Two witnesses gave oral evidence for the State, as summarised in the following table, and two exhibits were admitted into evidence by consent.

Oral evidence

No	Witness	Description
1	JN	Complainant
Evidence: The incident of 1 January 2013 was not the first time the accused and her husband had forced her to have sex – both the accused and MD were naked – the accused forced her to remove her clothes – then the accused sat and watched, from only two metres away, as MD had sex with her – the incident of 1 January 2013 happened in the garden – the accused took her from the house to the garden – they both told her not to tell anyone.
2	NK	Biological father of the complainant
Evidence: He did not know of any relationship between his daughter and MD until he (NK) found out that she was pregnant – he was very angry with MD and cried for his daughter – but he decided to take the matter to the Police as he was afraid that he might kill MD – he regarded the accused and MD as his mother and father – they had been very good to him, especially in the period after his first wife left him – he does not know anything about the allegations now being made against the accused – his daughter did not make any allegations, to him, against the accused – she must have made the allegations to the Police and that is why the Police arrested the accused, as MD escaped – he (NK) was the one who took the matter to the Police: he contacted his friend Willie, the investigating officer, who committed himself to the case – his daughter (the complainant) is now living with Willie and the complainant's baby has been adopted by Willie and now carries Willie's name – this has all been done with his (NK's) consent.

Exhibits

• Record of interview of accused – she agreed that the complainant and her father were given a piece of land by herself and her husband to build a house and that they lived with her and her husband, MD – as for the allegations of indecent acts, she remained silent (exhibit P1).
  
• Child health record book of the complainant's child, a girl (exhibit P2).
  

Evidence for the defence

14. The accused gave sworn evidence and there were two other defence witnesses, and a statement of the complainant's biological father, NK, was admitted by consent on the basis that it was evidence of a prior inconsistent statement.

Oral evidence

No		Witness	Description
1		BN	The accused
Evidence: She was asleep in the house when her husband, MD, who was drunk woke her up and forced her to get the complainant and bring her to him in the garden – she knew that this meant that he wanted to have sex with the complainant – this had happened several times previously – she did not like what was happening – she was cross with both her husband and the complainant, who had consented to this arrangement – she had hit the complainant twice – she told the complainant's stepmother, S, but she did nothing about it – MD had given NK a piece of land and NK had come to live in the village with them – NK and his daughter, the complainant, were like family members. She took the complainant into the garden to the place where MD was waiting – both MD and the complainant forced her to take off the complainant's clothes – they had sex in front of her – she stood and watched – she had tried to talk her husband out of doing this but he took no notice of her and would only argue and fight in response.
2	BS			Member of Village Committee
Evidence: in the normal course of events he would have intervened in this situation, but it was taken to the Police before he had a chance to conduct mediation – MD and the accused had a difficult and unstable marriage due to MD having a number of affairs – when the accused complained, he would hit her.
3	SK			Village Church Elder
Evidence: he was not surprised when he found out about the Police being called into this incident as MD has been engaged in this sort of activity for a long time – he had a habit of beating his wife and a reputation for engaging in sex with under-aged girls.

Exhibit

• An undated witness statement by NK: he was very cross with the accused and her husband when he first heard that his daughter was made pregnant by MD – he decided not to take the law into his own hands, so he reported the matter to the Police – his daughter (the complainant) was born on 25 June 2001.
  

Has the State proven beyond reasonable doubt that the accused committed an indecent act?

15. Having weighed the competing evidence and the submissions of counsel I have concluded that the State has not proven beyond reasonable doubt that the accused committed any indecent acts, for the following reasons:

(a) The accused was assessed as an honest witness

16. I was impressed by the demeanour of the accused in the witness box. She appeared to be telling the truth: she was forced into her involvement in the incident by the coercion of her husband, who threatened her with physical violence if she did not comply with his demands.

(b) The complainant was not a convincing witness

17. I was left with the impression that the complainant was not telling the truth when she said that she was forced into having sex with MD by both MD and the accused. I find that in fact the defence has proven that the accused did not force the complainant to do anything. Indeed it is a moot point whether MD forced the complainant into having sex with him.

(c) Not proven that the accused acted for sexual gratification

18. I find that the accused did commit the following acts:

• she undressed the complainant; and
• she watched her husband have sex with the complainant.
  

19. I agree with Mr Popeu's submission that such actions are capable of being regarded as indecent acts for the purposes of Section 229C. However, I accept the accused's evidence that she did those things as she was forced to do so. In effect she acted out of compulsion. Her acts were not committed for purposes of her sexual gratification. Therefore they were not "indecent acts".

Conclusion: did the accused commit an indecent act?

20. No. The State has not proven that the accused's actions were indecent acts.

CONCLUSION

21. As the State has not proven the first element of the offence, the accused must be found not guilty. It is unnecessary to address any other issues. The Police must turn their attention to the accused's husband. He must be arrested and charged and given the chance to defend himself against the serious allegations against him that have emerged in this trial.

VERDICT

22. The accused, "BN", having been charged with one count of committing an indecent act directed at a child under the age of 16 years, contrary to Section 229C(1) of the Criminal Code, in circumstances of aggravation under Section 229C(2) of the Criminal Code, is found not guilty of that offence, and not guilty of any other offence.

Verdict accordingly.
____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused