State v Masit [2017] PGNC 284; N6997 (24 October 2017)

N6997

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 479 OF 2015

THE STATE

V

PATRICK MASIT

Madang: Cannings J
2017:17, 18, 19, 24 October

CRIMINAL LAW – sexual offences against children – engaging in act of sexual penetration with child under the age of 16 years, Criminal Code, Section 229A(1) –elements of offence – age of complainant – strict proof required.

The accused, an adult male, was charged with one count 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, in circumstances of aggravation under Section 229A(3) in that there was an existing relationship of trust between the accused and the child. The accused pleaded not guilty so a trial was held. The accused conceded that he sexually penetrated the complainant. His primary defences were that he did not sexually penetrate her on the date alleged and that she was over the age of 16 years. His alternative defence, if both primary defences failed, was that the complainant consented and he had a reasonable belief that she was aged 16 years or older, which is a defence under 229F(1)(a) of the Criminal Code.

Held:

(1) The two elements of an offence under Section 229A(1) are that: (a) the accused engaged in an act of sexual penetration with another person; and (b) the other person was a child under the age of 16 years.

(2) It is by virtue of Section 229F a defence if the child consented and: (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.

(3) Here, the date specified on the indictment, even if incorrect, was immaterial as the accused conceded that he sexually penetrated the complainant on several occasions over a period of several months on dates close to the date specified.

(4) The State proved beyond reasonable doubt the first element of the offence, but not the second element. In the trial of a child sexual offence, strict proof of age is required such proof was absent. It was unnecessary to consider the defence of consent. The accused was not found guilty.

(5) It was not open to the Court to consider an alternative verdict on a lesser charge. There was no alternative charge on the indictment. The accused was discharged.

Cases cited:

The following cases are cited in the judgment:

Obed Jelis v The State (2012) SC1184
The State v Kikia Solowet (2007) N3154
The State v Bond Nanal (2009) N3597
The State v Horris Raraka CR No 38 of 2003, 07.05.07
The State v James Yali (2005) N3014
The State v Titeva Fineko [1978] PNGLR 262

TRIAL

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

Counsel:

A Kupmain, for the State
J Morog, for the Accused
24^th October, 2017

1. CANNINGS J: The accused, Patrick Masit, an adult male, is charged with one count 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 in circumstances of aggravation under Section 229A(3) in that there was an existing relationship of trust between the accused and the child.
   
2. The State alleges that the accused committed the offence against the complainant, “L”, a girl alleged to be aged 14 years, on the evening of Monday 11 August 2014 at his residence at Sisiak 2, near Madang town. He pleaded not guilty so a trial was held.
   
3. The accused conceded that he sexually penetrated the complainant but not on the date alleged on the indictment. His primary defences were that he did not sexually penetrate the complainant on the date alleged and that she was over the age of 16 years. His alternative defence, if both primary defences failed, was that the complainant consented and he had a reasonable belief that she was aged 16 years or older, which is a defence under 229F(1)(a) of the Criminal Code.
   
4. The complainant and her mother gave evidence for the State. The accused and one of his daughters gave evidence for the defence.
   

UNDISPUTED FACTS

5. A number of undisputed facts have emerged from the evidence:
   
   • In 2014 the accused was aged 46 and L was a teenager. They both come from the Sagisi area of Maprik District, East Sepik Province but have lived for a long time at Sisiak. They are neighbours and their families are close and they knew each other very well. They are at least distantly related.
     
   • The accused has two teenage daughters who were friends of L, and L would often visit the accused’s house and spend time there.
     
   • At some time in August 2014 the accused sexually penetrated the complainant by introducing his penis into her vagina. The accused claims that it was consensual sex. The complainant states that it was non-consensual and that she was raped by the accused.
     

LAW

6. Section 229A (sexual penetration of a child) of the Criminal Code 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.

(2) If the child is under the age of 12 years, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.

(3) If, at the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and the child, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.

7. 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 age of 16 years.
     
8. In this case, a circumstance of aggravation (that there was an existing relationship of trust, authority or dependency between the accused and the child) has been charged in the indictment. The State alleges that the accused was an uncle to the complainant, which falls within the definition of “relationship of trust, authority or dependency” in Section 6A of the Criminal Code.
   

“Sexual penetration” is defined by 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.

ISSUES

9. It is agreed that accused sexually penetrated the complainant at some time in August 2014. In view of the defences he has raised, the issues are:
   
   1. If the incorrect date appears on the indictment, does that mean the accused must be found not guilty?
      
   2. Was the complainant aged less than 16 years?
      
   3. If the elements of the offence under Section 229(1) are not proven, can the accused be convicted of an alternative defence?
      
   4. If the elements of the offence are proven, does the defence of consent apply?
      
   5. If no defence applies, was there a relationship of trust?
      
1. IF THE INCORRECT DATE APPEARS ON THE INDICTMENT, DOES THAT MEAN THE ACCUSED MUST BE FOUND NOT GUILTY?
   
10. Defence counsel Mr Morog submitted that the evidence of the complainant of being penetrated by the accused on 11 August was unreliable. The accused’s evidence should be preferred: that they had sex for the first time on 22 August and that it was consensual sex that took place at the accused’s house. Mr Morog submitted that the accused’s evidence as to other sexual encounters in the period from August to November 2014 should also be accepted: that the accused and the complainant had consensual sex on four other occasions at the Four Mile Guest House, near Madang town.
    
11. It is the issue about the incorrect date appearing on the indictment which first needs to be addressed. Mr Morog submits that the State must prove beyond reasonable doubt that the accused sexually penetrated the complainant on that date – 11 August 2017 – and if it fails to do so the accused must be acquitted, irrespective of the age of the complainant.
    
12. I reject the submission. First, I am not satisfied that the date is incorrect. But even if I were satisfied that the date on the indictment was incorrect, it is clear from the evidence that the accused sexually penetrated the complainant at some time in August 2014. He says it was on 22 August. She says it was 11 August. The discrepancy is immaterial.
    
13. An incorrect date on an indictment does not make the indictment defective or lead to an acquittal. Section 534(1)(c) of the Criminal Code provides that an indictment is not open to objection “for stating imperfectly the time at which the offence was committed”. This reflects the common law rule that a date specified in an indictment is not a material matter unless it forms an element of the offence (The State v Titeva Fineko [1978] PNGLR 262, The State v Horris Raraka CR No 38 of 2003, 07.05.07). In this case, the date does not form an element of the offence. The defence as to the allegedly incorrect date fails.
    

2 WAS THE COMPLAINANT AGED LESS THAN 16 YEARS?

14. This is the critical issue. To prove that the complainant was aged less than 16 years at the relevant time – August 2014 – the State relied on the following evidence:
    
    • Oral testimony by the complainant that she is now 17 years old – making her aged 14 at the relevant time – and that she was born in Madang and that in 2014 she was doing grade 6.
      
    • Evidence of the complainant’s mother that her daughter’s date of birth is 12 December 1999. The mother said, firstly, her daughter was born in Madang, then later she changed her evidence and said that she was born in Maprik District. She said that L was the fifth born of seven children; then later she said that L was the fifth born of six children.
      
    • A Department of Health clinic book, showing L’s date of birth as “12/12/1999” and place of birth as “Madang Hospital”.
      
15. The defence presented the following evidence in relation to the question of L’s age:
    
    • Evidence of the accused that in August 2014 the complainant looked and acted like a woman rather than a girl and that she initiated the sexual relations that they had consensually in the second half of 2014 and that he had two teenage daughters and he was always of the view that the complainant was older than them.
      
    • Evidence of “S”, the accused’s daughter: she is now 17, she was 14 in 2014, L was considerably older than her.
      

Has the State proven beyond reasonable doubt that complainant was less than 16 years old in August 2014?

16. In assessing this issue the overriding consideration is that, in the trial of a child sexual offence, strict proof of age is required (Obed Jelis v The State (2012) SC1184). I comment on the evidence as follows.
    
    • (1) The complainant’s evidence was inevitably hearsay
      
    • (2) The complainant’s mother’s evidence was confusing, contradictory and unreliable. I suggested in The State v James Yali (2005) N3014 that mothers are reasonably expected to be a reliable source of information about the dates on when their children were born. I now need to qualify that opinion by stressing that each mother’s evidence must be considered on its merits. For all sorts of reasons some mothers’ evidence about the dates and places of birth of their children will not be exemplary. Given the uncertainty created by the clinic book this is a case in which, as I ruled in The State v Bond Nanal (2009) N3597, 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). But there was none.
      
    • (3) The clinic book showed a date of birth that had been overwritten apparently with liquid ink.
      
    • (4) The defence introduced evidence that shed further doubt on the complainant’s age.
      
    • (5) The invocation of Section 63 (age) of the Evidence Act failed to resolve the issue. Section 63 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.

17. 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 2014. The State argues that in August 2017, she was aged 14 years, 8 months. The defence case is that she was more likely to have been aged 16 years. This means that when the complainant gave her evidence in October 2017, I was seeing and observing a youthful female who was possibly aged:
    
    • 17 years, 10 months; or, on the other hand
      • 19 years, 2 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.

18. It follows that the State has not proven that, at the relevant time – August 2014– the complainant was a child under the age of 16 years.
    
3. IF THE ELEMENTS OF THE OFFENCE UNDER SECTION 229(1) ARE NOT PROVEN, CAN THE ACCUSED BE CONVICTED OF AN ALTERNATIVE OFFENCE?
   

In Obed Jelis v The State (2012) SC1184 the Supreme Court endorsed the opinion I expressed in The State v Kikia Solowet (2007) N3154:

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. 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.

19. Here there is no statutory alternative to an offence under Section 229A(1). And there is no alternative charge on the indictment. Therefore the accused cannot be convicted of any alternative offence, such as abuse of trust under Section 229E(1) of the Criminal Code.
    
4. DOES THE DEFENCE OF CONSENT APPLY?
   
20. It is unnecessary to consider this issue as the State has not proven all the elements of any offence.
    
5. WAS THERE A RELATIONSHIP OF TRUST?
   
21. It is unnecessary to consider this issue as the State has not proven all the elements of any offence.
    

VERDICT

22. Patrick Masit, having been charged with one count 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, in circumstances of aggravation under Section 229A(3) of the Criminal Code is found not guilty of that offence or any other offence, and is discharged from the indictment.
    

Verdict accordingly.
__________________________________________________________________
Public Prosecutor : Lawyer for the State

Public Solicitor : Lawyer for the accused