N7303
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR N0. 1122 OF 2016

STATE

V

KELLY PALEK

Kokopo: Susame, AJ
2018: 5, 6, 14 & 21 June

CRIMINAL LAW – Particular Offence – Sexual Penetration Of A Child Under 16 Years – S 229a(1) Criminal Code (Offence And Crime Against Children) Act 2002- Female Child Aged 14 – Trial –  Defence – Evidence – Browne And Dunne Rule – The Importance Of – Consent and Its Relevance  - Its Availability As A Defence Under  S 229f(A)(B) – Onus Of Prove

Held:

1.	Consent is not an element of the offence and is unavailable as a defence under normal circumstances. Its relevance is only for purposes of sentencing. 
2.	Except in situations provided in s 229F (a) & (b) consent may become available as a defence. 
3.	That the onus of proving the defence is on the accused which is on the balance of probabilities. (Regina v Ulel [1973] PNGLR 254  & The State v Leo Nimo [1980] PNGLR 129 followed )

Cases Cited:
Papua New Guinea Cases

The State v Mokei (No.2) [2003] PGNC 129 N2635 
The State v Jeffery Toapas [2006] PGNC 70; N4485 
The State v Merriam [1994] PNGLR 104.
Regina v Ulel [1973] PNGLR 254 
The State v Leo Nimo [1980] PNGLR 129 
The State v Kami Pongua [1980] PNGLR 41,
 R v Paul Wanigu [1973] PNGLR 330.

Overseas Cases

Brown v Dunn (1893) 6 ER 67

Counsel:

Miss. Batil, for the State
Miss. PulaPula, for the Accused

JUDGMENT ON VERDICT
21st  June, 2018

1.   SUSAME  AJ:  Accused stands charged that in the evening at about 11 o’clock on 17th April 2016 he sexually penetrated a 14 year old girl at Tabuna Plantation, East New Britain Province, thereby committing an offence under s.229A(1) of Criminal Code (Offences and Crimes Against Children) Act 2002.  

FACTS ALLEGED

2.   Basic facts supporting the alleged charge are these. The victim to be referred to by her initials as R V was sitting alone on the verandah of the house at 11pm on 17 April 2016 when the accused approached her. Without her consent accused grabbed her hand and pulled her out of the house. She screamed for help but accused covered her mouth stopping her from screaming. He took her to a nearby gulley and pushed her down on the ground. There accused removed her clothes and introduced her penis into her vagina.  

3.  The offence accused is charged with is provided in section 229. I quote the relevant part of the provision. 

“229A. SEXUAL PENETRATION OF A CHILD. 
(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 Subsection (2) and (3), imprisonment for a term not exceeding 25 years.”

4.   Essential elements of the charge requires proving by the prosecution as alluded to by the prosecuting counsel are:

1.	Accused was involved,
2.	There was sexual penetration,
3.	Child (male or female) was under 16 years of age.

EVIDENCE

5.   For the prosecution evidence consisted of documentary evidence tendered by consent and oral testimonies of witness’ RV,  Alice Vitori (mother) and Senior Constable Berlin Tololo. On the other hand defence relied on evidence from the accused. 

6. Two things court observed prior to RV giving evidence.  First, on oral application from the prosecution special measure orders were issued pursuant to Division 3 s 37B of the Evidence Act.  A partition was put up so witness had no visual with the accused for her to give evidence in confidence without any distractions. Court further ordered all other persons except the court officers, staff and dependents of the child vacate the court room. The special measure orders issued were to be removed after RV has given evidence. 

7.   Secondly, prior to RV giving evidence an inquiry was conducted to ascertain if she understood the significance of testifying in court under oath and the consequences of telling lies. After the brief examination court was satisfied RV understood the importance of giving evidence on oath. She was then allowed to give her evidence on oath. 

8.  Documentary evidence tendered by consent are:

a.	statement of F/C Veronica Pagur dated 21 June 2016, marked exhibit A
b.	statement of S/C Berlin Tololo dated 21 June 2016, marked exhibit B
c.	Medical report of RV dated 21 April 2016 marked exhibit C1
d.	affidavit of Dr. Christine Tipayamb dated 4 May 2016 marked exhibit C2
e.	Birth certificate of RV, marked exhibit D
f.	Record of interview (pidgin version), marked exhibit E1
g.	Record of interview (English version marked, exhibit E2

 For the defence evidence came from accused’s oral testimony. 

UNCONTESTED FACTS

9.   Set out below are facts that are not in contention and established by evidence. RV lives with her parents in a brick house of the father’s employer at Tabuna plantation. Accused was then living with his uncle next door in the same building. His uncle works as a security guard for the same company RV’s father works for. Accused was then working for the same company as a crew on a company vehicle. Being neighbors accused is well known to RV and her family. At times accused visits them and the familyoffer him meals. RV and her family had a good relationship with their neighbors. She was then doing grade 4 at Tobera Primary School. 

10.   RV was sitting by herself on the verandah of the house at about 10.05 o’clock in the night watching while her father was inside the room. Her mother had gone out to visit a friend in the neighborhood. Accused had approached her and taken her out. 

11.  Accused has admitted he had sexual intercourse with RV at about 11:00 o’clock on the night of 17 April 2016. That took place in a drain some 30 to 40 meters away from their dwelling house. In addition to the accused’s admission, the uncontested evidence of medical report dated 21 April 2016 marked exhibit C1 states microscopic examination done on 19 April 2016 of vaginal swab taken revealed presence of spermatozoa (sperm). The uncontested evidence of copy of birth certificate (marked exhibit D) states RV was given birth at St Mary’s Hospital Vunapope at 2.30am on 19 September 2001.  She was then14 years of age when the accused had sexual intercourse with her. 

12.  Based on these set of facts court finds that accused had sexually penetrated RV by introducing his penis into her vagina on the night of 17 April 2016. That RV was then 14 years of age, a child under the age of 16 years. 

13.  The remaining issues of contention are;

1.	Whether sexual penetration was consensual?
2.	Whether accused believed on reasonable grounds  RV was 16 years of age or older

CONSENT 

14.   For discussion on this point let us look at what the law states. The relevant section of the Act is set out below: 

229F. CONSENT NO DEFENCE.
Subject to Section 229E, 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.

15.  What can be construed from the wording of the provision? I consider the provision to mean the following. 

16.   Firstly, under normal circumstances consent is never a defence to a charge of prescribed offences against children under Division 2A of the Act. In other words consent is not an element of the charge that requires proving by prosecution. Consent becomes a relevant consideration amongst other factors when deciding sentence. His Honor Cannings J held a similar view in The State v Mokei (No.2) [2003] PGNC 129 N2635 (26 August 2004) and in The State v Jeffery Toapas [2006] PGNC 70; N4485 (22 August 2006) in his discussion of absence of consent as an element of the charge of the offence under s 229A (2). In the former case His Honor expressed;  

“But the prosecution does not have to prove absence of consent. Nevertheless, the presence or absence of consent is something that in my opinion is certainly relevant to sentence. If there were real consent – especially if the child had reached puberty – then in my view that is something that would militate towards a lighter sentence. It would not right the wrong. But it would make the wrong less grievous.” 

17.   Secondly, consent maybe available as a complete defence in two scenarios stated in sub- sections (a) & (b). First if the accused believed on reasonable grounds that the child was aged 16 years or older and second if the child was aged 

12 years or older, and the accused was no more than two years older than the child.  Whatever the underlying rational for inclusion of the two exceptions consent may become available as a defence.  In the absence of such reasonable belief, consent by itself cannot operate as a defence. 

18.   Defence in sub section (a) is similar to crimes in sections 214, 216, 217, 220 of the Criminal Code  and section 229P  of Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 which is available for offences in sections 229K and 229M respectively. 

19.   Accused gave evidence in his defence that he saw the girl’s built and thought they were of the same age. He said she was his girlfriend and act committed was consensual. Possible defence that could be available to him is the one provided in sub-section (a) alluded to above. That again is another issue for consideration. 

20.  But, first was the act consensual?  Discussion and assessing of evidence is necessary. 

21.   RV is the principle witness for the prosecution. She gave her account of what happened that particular evening. I have read her entire evidence. This is basically her version of facts. She was sitting by herself on the verandah of the house while her father was inside the house. That was about 10:05 o’clock. Her mother had gone out. She was just sitting there watching. Accused came through a hole on the wall and approached her. He held her two hands and pulled her down from the house, same time placing his hand over her mouth to prevent her from calling out. He held her hands and took her into the bush some 30 – 40 meters away from the residence. It was raining that night.  Accused while still holding her by the collar of her shirt over her mouth accused got a banana leaf and placed it on the ground in a drain. He pushed her down on the banana leaf that was placed on the ground. Accused removed her trousers and his own trousers. Accuse slept ontop of her and sexually penetrated her by introducing his penis into her vagina. After sexually penetrating her he left her there and walked back to the house. The girl also walked back to the house and upon arrival she was questioned by her parents who she had been with. While questioning her parents belted her and she mentioned accused’s name.  

22.   Alice Vitori is RV’s biological mother. She gave evidence she had gone out to visit a friend from West New Britain leaving her husband and children in the house. When she returned to the house she realized their daughter was not at home. She enquired with her husband and she was told both of them were out. They began searching for her. She went and searched at the auntie’s house but could not locate her there. When she returned her son Noah told her RV was at home. She saw that she was wet.  She started questioning her daughter and she told her what had happened. Alice stated they knew the accused very well. He often come over to their house and have meals. They generally have a good relationship with the accused.  

23.   On the other hand the accused stated he knows RV. They had been in a boy girl relationship for a year. They share things.  He buys her pen and gives her money. 

24.   He had told her to wait for him outside the verandah that night. So she waited for him. He went and saw her and both went to the back of the house amongst the banana patch and had sexual intercourse by mutual consent. After having sex she returned to the house and the girl’s father wanted to cut her with a knife. She was scared and she mentioned his name. He was at the back of the house and the girl’s father came and cut him with the knife on his back. Her father told him to go with them to the police station to sort the matter out. 

25.   Under cross-examination accused maintained RV was his girlfriend. They kept their friendship secret. They were both scared and never told RV’s parents about it because they might get cross. Accuse denied pulling her away and covering her mouth to prevent her from calling out. 
Question: How credible and convincing is the prosecution evidence? In other words was RV telling the truth accused had forcefully taken her out of the house and sexually penetrated her? 

26.   I have heard and observed RV giving her evidence. Let me make some critical observation of her evidence with specific references.  Firstly, accused is no stranger to RV and her family. They are neighbors living in the same company allocated building. Accused lives with his uncle in a separate room divided by a partition while RV lives with her parents in the other. I refer to relevant parts of what transpired during cross-examination of the witness. 

Q 1. You know Kelly Palek?
Ans. Yes
Q2 You and his family live in the same building?
Ans. Yes
Q3. Would it be correct to say your family know Kelly very well?
Ans. Yes. 
Q8.  You were waiting for someone?
Ans. No was just sitting down watching
Q10. Accused signaled you?
Ans. No 
Q11. Accused pulled you out you never struggled?
Ans. I wanted to withdraw from him but he used force to pull me out.
Q 15 You have good relationship with the accused?
Ans. No
Q 16. You never fought back when accused took you to the drain?
Ans. No
Q 21. Accused pulled you to the drain and had sexual intercourse with you, you never struggled?
Ans. I did scream
Q 22. You were alone on the verandah waiting for someone?
Ans. No. just sitting down and watching. 
Q25. When accused placed banana leaf on the ground you never tried to run away?
Ans. He held my hand when he placed leaf on the ground
Q26 Accused held your hand and mouth?
Ans. Yes
Q27. Same time he held your mouth and held you and same time placed the leaf on the ground?
Ans. Yes
Q 28 It is impossible for accused to do that?
Ans. True
Q 29 So you consented for accused to have sexual intercourse with you?
Ans. No. 

Was there a boy girl relationship going on between the accused and RV unknown to her parents?  If so did they have sexual intercourse by mutual consent? 

27.   Accused maintains that RV is his girlfriend. They have been friends for about a year. They share things.  He buys her pen and gives her money. He had told her to wait for him outside the verandah that night. So she had waited for him. Prosecution has challenged this version of facts when it argued existence of their friendship was never put to RV during cross-examination to give her the opportunity to respond to affirm or deny. This was in breach of Browne and Dunn Rule and that it was a recent invention and affects the credibility of accused as a witness.  

28.  Browne and Dunn’s rule of evidence often cited and followed in many judgments in our jurisdiction was decreed in an old English case of Brown v Dunn (1893) 6 ER 67. The essence of the rule was basically for fairness. That if a party is intending to challenge evidence of a witness, the reason for the challenge must be put to the witness during cross-examination. Party challenging must put his version of facts, he will lead evidence later to establish, to the witness to give him an opportunity to respond in agreement or otherwise. Failure to do that is tantamount to acceptance of the evidence in chief which cannot be impugned or challenged in the party’s final address. The resultant effect is that it affects and damages the credibility of the witness (See also The State v Merriam [1994] PNGLR 104). 

29.   While the criminal law places no obligation on an accused person to proving his innocence, it is critically important accused give proper instruction to his lawyer of the full version of facts he intends to rely on in his defence so his lawyer will put up a good arguable case on his behalf. 

30.   Defence has failed in this case to put to the prosecutrix if they both had a boy girl relationship during cross-examination. On strict application of the Browne and Dunn’s rule, I should place less weight on the accused’s version of facts as not credible, and instead find on the contrary there was no such boy girl relationship.  

31.  Nevertheless, that being said there are other aspect of evidence from the accused which remains to be considered and weighed against the evidence given by RV.  

32.  I have found on the evidence both the accused and RV are no strangers to each other. They know each other quite well. What still puzzles me is why would a young girl decide to sit all alone at such an hour of the night outside on the verandah? When questioned she said she was just sitting there watching? What was she watching? None of the parties got RV to clarify what she meant by that. RV denied waiting for someone. She also denied accused had signaled her. 

33.  Next point, RV stated the accused gained entry through a hole or gap on the partition. There was no clear description of the partition, the size of the hole or gap accused entered and pulled RV out through that same hole.  RV stated she wanted to scream but accused placed his hand over her mouth. He held her by her two hands and pulled her out through the hole. How is that possible? It was almost late hour of the night. It was not established if there were any lights or not at the verandah. RV no doubt would have noticed the accused gaining entry through the gap. What stopped her from raising her voice and enquire who it was, or if she realized it was the accused what stopped her from greeting him and strike a chat or conversation with him.  After all they knew each other. Furthermore if RV sensed that the accused was up to something at the earliest opportunity available she should have raised her voice and called out to her father who was inside the room.  

34.   I could go on and raise more questions about her evidence. But let me say this. The entire story in the manner she described was not impressive and convincing. I doubt she was hiding the real truth and came up with the story just to make up a case.   

35.   It is more than likely both must have had a liking for each other. That night the girl decided not to remain indoor with her father and her other siblings. Instead, she stayed up sitting alone out on the verandah of the house, obviously waiting for someone. When accused saw that there was no one moving about he approached RV and took her away and both had sexual intercourse. There was not much resistance put up by the girl nor did she call out to her father for help. What was intended to be a secret relationship unfortunately, became known to RV’s parents when they found out. They started questioning her and because she was belted up,  she came up with the story to make it look like a rape case. 

FINDING ON ISSUE OF CONSENT

36.   The end result of all of the discussions is that court is not convinced beyond doubt there was lack of consent. Accused is given the benefit of doubt in that respect. The girl was not taken out of the house by force as alleged, rather she was a willing partner of the intended act. The intended act was manifested in the drain when they both had sexual intercourse.  I conclude therefore that sexual penetration was committed by mutual consent.  

DISCUSION ON DEFENCE IN S 229F (a)

37.   The next issue for consideration is whether accused had reasonable grounds to believe that girl was 16 years of age or older? 

38.   First, discussion of the law on that particular defence. No assistance by way of arguments were advanced by both the defence and prosecution on this point. Some attempt was made but on the evidentiary aspect of the case. 

39.   There have been several decided cases in our jurisdiction on this particular defence. These are: Regina v Ulel [1973] PNGLR 254, The State v Leo Nimo [1980] PNGLR 129, The State v Kami Ponua [1980] PNGLR 41 and R v Paul Wanigu [1973]PNGLR 330. 

40.   Supreme Court in Regina v Ulel (supra) dealt with an appeal from the trial court’s decision.  Appellant had been convicted for the crime of unlawful carnal knowledge of a girl under the age of 17 years pursuant to s 215 of the Criminal Code of Queensland that was then adopted. In his defence the appellant had stated that, “When I had intercourse with the girl, I thought she was fit for marriage, because most of the girls around that area are like that when they get married.” 

41.   The court held: 

“For the purpose of this defence….it is not necessary to for the accused to have formed an opinion that the girl was of a particular age, provided he discharged the onus of showing a reasonable belief on his part which, if expressed in the terms of s 215 rather than his own terms is one that the girl was least 17 years old or of the age of consent.  The learner authors of Criminal Law and Practice of Papua New Guinea 3rd edition at p.254 in interpreting the decision in Regina v Ulel stated “Where the accused’s defence is based on reasonable belief that the girl was above the age of consent ‘regard must be held for the society in which the parties lived and for the fact that one could not expect a person in that society to have any real appreciation of chronological age as opposed to apparent physical development as to test of maturity” 

42.   The same court held that onus of establishing that the accused believed on reasonable grounds that the girl was of or above the age or above age is on the defence. He must prove that on the balance of probabilities. There is therefore no obligation on the prosecution to negative the defence. The section court in Regina v Ulel also held that where there is a specific defence provided the particular offence mistake of fact defence in section 24 (now s 25 in the Code) has no application or is immaterial.  

43.   That is the correct position of the law on the particular defence in s 229F (a) in relation to the offence the accused is charged with. 

44.   With respect, His Honour Cannings J may have erred in holding that: “When a defence of mistaken belief is raised, the prosecution has the onus of disproving the elements of that defence beyond reasonable doubt; consistent to the approached of the courts to other criminal defence, e.g. provocation and self defence,” in The State v Jeffery Toapas [2006] PGNC 70; N4485 prosecution has cited in its submission. 

45.   As regards the standard required of the accused to establish the defence the decision in The State v Kami Pongua [1980] PNGLR 41 is that it was sufficient for the accused to have a general belief in the sense of her physical aptitude or he believed the girl was old enough or grown up, adult, or mature.   Miles J in The State v Leo Nimo (supra) in disapproving decision in Kami Pongu’s case followed the decision of Prentice J in R v Waningu [1973] PNGLR 330. His Honor decided that the accused must show:

“That he held certain beliefs from which it may be inferred that had he consciously turned an enlightened mind to the precise question, he would have concluded that she was of or over the age permitted by law….[It is not] sufficient for the accused to have a general belief in the maturity of the girl (either in the sense of physical aptitude or…being permitted by custom to engage in intercourse), unless there is some nexus with the age laid down specially in the statute.” 

46.  The decision in Leo Nimo’s case makes sense to me which I am inclined to follow.   

47.   The next part of my decision is the application of the principles on the facts found based on my assessment of the evidence.    

ACCUSED’S EXPLANATION  

48.  In his defence this is the explanation he gave under cross-examination.  During their one year friendship they share things, accused buys her school items and give her money. He knew she was attending Tobera Primary School. Girl never told him of her age neither did he asked her. They were friends for a year without the girl’s parents knowing. He saw her built and thought they were of the same age. If he had known he would not have befriended her. Prisoner was 16 years old when he was in grade 8. He also agreed children attending primary schools in PNG would be under 16 years of age.  When further questioned about his admission to Q31 and his explanation in the record of interview this is what transpired?  Q62. What did you mean ‘I had done wrong..? Ans. I thought she was my girlfriend so I asked for bail.  Q63. What wrong? Ans. Because I never told her parents we have been together. Q64. That was not the reason why you were admitting the wrong because Roselyn was a child? Ans. Yes. 

49.  In addition to that are these facts. The girl and her family had been living at the same building where accused’s uncle and his family also live in but in a separate room next door. While living as neighbors accused became familiar with the girl and her parents. 

50.  The offence was committed in 2016. Their one year friendship would have commenced in 2015.  Accused would have come over to be with his uncle and family a year or 2 earlier in around 2014 or 2013. The girl was still attending Tobera Primary School in those two years doing her grades 2 to 4. She was in grade 5 when the offence was committed. The girl would have been pretty small and young in those years. She had grown and is 18 years old now.  

51.  Is this evidence or explanation from the accused convincing enough to accord him the defence under s 229F (a)? In other words from the facts set out did the accused reasonably belief the girl was of the age of 16 years or over when he had sexual intercourse with her because she consented? 

FINDINGS ON THE DEFENCE

52.  I hold his explanation satisfactory and persuasive. Any adult person in his aged group or older would not have reasonably believed the girl was 16 years of age or older given the facts. The girl was pretty young, much younger than the accused when he first began knowing her and seeing her attending Tobera Primary School as a kid. In her close association with her being neighbors living next door to each other they kind of fell for each other in secret which subsequently lead to the commission of the crime. I doubt accused had no such reasonable belief the girl was aged 16 years or older and he had sexual intercourse with the girl who he obviously knew was under age when they both gave in to their inner cravings to have sex. 

SUMMARY OF FINDINGS

53.  The summary of court’s findings are that sexual penetration of the girl was consensual. However, accused had no reasonable belief to hold the girl as a 16 year old or older. Rather on the facts considered he obviously knew the girl was under age. He has failed to discharge the onus of proving the defence provided in s 229F (a). Hence, he does not have the benefit of that defence to exonerate him from criminal liability. 
Accordingly, Court returns a guilty verdict against the accused. 
__________________________________________________________________Public Prosecutor:	 Lawyer for the State					
Public Solicitor:	Lawyer for the Accused