State v Frank (No 1) [2018] PGNC 610; N9245 (19 October 2018)

N9245

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 607 OF 2016

THE STATE

-V-

ROMNEY FRANK
(NO 1)

Alotau: Toliken, J.
2018: 18^th, 19^th September, 19^th October

CRIMINAL LAW – Particular offence - Sexual penetration of child under 16 years of age – Trial – Sexual penetration not disputed – Defence – Reasonable mistake of age – Complainant and accused closely related (aunt/nephew) – Reside in same hamlet – Accused knew complainant was attending Primary School – Whether belief was reasonable – Criminal Code Ch. 262, ss 229A(1),229F.

Facts

The complainant and the accused are related and live together in a hamlet called Kaloi outside of Alotau Town. The complainant and her family moved back to the village in 2012 when the complainant was 12 years old, and she enrolled at the local Primary School. In 2015 she was doing Grade 7 when the incident allegedly happened. On the date in question the accused got the complainant up to his house after she had asked him for betel nut. He got her to enter his room and there he sexually penetrated her. The complainant said she did not consent. The accused said he reasonably believed that the complainant was 16 years or over because she was physically big and had well developed breasts.

Held:

(1) Consent is immaterial to a charge of sexual penetration of a minor, as the law presumes that a child is incapable of consenting to being sexually penetrated. The defence of consent only becomes relevant where an accused person believes on reasonable grounds that the complainant was 16 years and older at the time, he sexually penetrated her.

(2) Where consent is immaterial, and where sexual penetration is not contested, and the only issue is mistake of age, it may not be necessary for the court to dwell too much on the competing evidence as to the circumstances leading up immediately to the act of penetration. What is important is not only the age of the complainant, but most importantly her physical appearance and growth.

(3) The State must prove that complainant’s physical appearance, if that becomes a point of contention, was such that her age could not, with reasonable and fair enquiry, cannot be mistaken. It must also negative any observation by the accused that the complainant was of, or over the age of consent and that such observation and conclusion was reasonable. Failing that the accused stands to be acquitted.

(4) While the State did not lead direct evidence negativing the accused’s assertion that he reasonably believed that the complainant was 16 years or over because of her physical built and well-developed breast, no reasonable person, who is so closely related to, and who would have had daily contact with the complainant would have reached such a conclusion.

(5) Women who are sexually abused do not often reveal the abuse and may keep things bottled up for years. This may be due to the shame and trauma associated with the event, and where the abuser is a relative, it becomes all the more difficult for them to open up. That the complainant did not tell anyone until 7 ½ months later cannot therefore be taken as evidence that she was lying.

(6) I do not accept that the accused entertained any belief at all that the complainant was over 16 years when he penetrated her. I find it hard to accept that he could have, at the critical moment, adverted his mind to the age of the complainant, and not also direct his mind to the fact that this was his aunt that he was about to have sexual relations with, something deplorable in his society.

(7) Verdict of guilty returned.

Cases Cited:

Nil

Counsel:

J Apo, for the State
P Palek, for the Prisoner

VERDICT

19^th October, 2018

1. TOLIKEN, J. The accused Romney Frank was charged on indictment with one count of sexual penetration of a child under the age of 16 years in contravention of Section 229A (1) of the Criminal Code Act Ch. 262.
   
2. He was charged that on 22^nd July 2015 at Kaloi Hamlet, Ahioma, Alotau he sexually penetrated one Nori Paliau, a child under the age of 16 years, being 15 years old by inserting his penis into her vagina.
   
3. The State alleged that the accused and the complainant are related. The accused is a nephew of the complainant, being that the complainant and the accused’s mother are first cousins. The accused is, however, older than the complainant.
   
4. On Wednesday 22^nd July 2015 at about 1.00p.m the complainant was on her way to the river to have her bath. She saw the accused in his house and asked him for betel nut. The accused invited her up to the house to get the betel nut. The complainant went up and the accused asked her for sex. The complainant refused so the accused grabbed her and then sexually penetrated her by inserting his penis into her vagina. At that time the complainant was 15 years and 8 months old. The complainant became pregnant as a result.
   
5. The accused denied the charge raising the defence of mistake of age.
   
6. Section 229A (1) of the Code relevantly provides for the offence in the following terms:
   

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 Subsections (2) and (3), imprisonment for a term not exceeding 25 years.

(2) ...

(3) ...

7. The general defence for mistake of age is provided by Section 229F which provides as follows:
   

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.

8. The accused does not deny sexually penetrating the complainant but says that it was consensual and that he was under the mistaken belief that the complainant was over the age of 16 years.
   
9. There are conflicting versions by the complainant and the accused as to whether the complainant consented to being sexually penetrated, but these are largely irrelevant for the purpose of criminal responsibility for the charge under enquiry.
   
10. The main issue for the Court therefore is whether the accused believed on reasonable grounds that the complainant was over the age of 16 years.
    
11. The State called the Complainant, her mother Betty Paliau and one Wedega Simon. It also tendered a medical report by Dr. Grace Kariwiga dated 10^th February 2016 by consent.
    
12. The accused testified on oath. He did not call any other witness.
    
13. The following is not disputed. The accused is a nephew of the complainant. Betty Paliau (complainant’s mother) and the accused’s maternal grandmother are biological sisters. The complainant and the accused’s mother are therefore first cousins though in a matrilineal society such as Tawala they would be classified as sisters. The accused, though older is therefore a nephew of the complainant. They all live together at Kalio Hamlet at Ahioma, though in separate houses which are scattered around the hamlet but not far from each other. As a family they had daily contact with each other and assisted each other as normally is the case in extended families.
    
14. The complainant was born at the Port Moresby General Hospital on 24^th November 1999. She was therefore 15 years, 8 months and 2 days old on the date in question.
    
15. The complainant’s family had moved back to the village from Kimbe in 2012. The complainant was 12 years old and attended Ahioma Primary School. In 2015 she was doing Grade 7. According to her mother the complainant had always been a big girl, her built then was not too different from her current built. The Paliaus would have been in the village for some 3 – 4 years when this incident happened.
    
16. On 22^nd July 2015 the complainant was on her way to the river to bath. She came to the accused’s house and seeing him there she asked for betel nut. The accused offered him betel nut and the complainant went up to the house to get the betel nut. What happened next is in dispute, but the accused thereafter sexually penetrated the complainant. The complainant left but did not tell anyone until much, much later when she admitted to the accused’s mother that she was pregnant. It was only after that that she told her mother that she was impregnated by the accused. She was taken to the hospital and was confirmed to be pregnant.
    
17. There is some dispute as to whether the complainant consented to the act of sexual intercourse with the accused. Consent, however, as we have seen is immaterial to a charge of sexual penetration of minor, as the law presumes that a child is incapable of consenting to being sexually penetrated. The defence of consent only becomes relevant where an accused person believes on reasonable grounds that the complainant was 16 years and older at the time he sexually penetrated her. So, what really happened before the accused sexually penetrated the complainant?
    
18. The complainant testified that when she asked the accused for betel nut, the accused said he had one and the complainant asked if she could have it and then went up to get it from him. He, however, said he left the betel nut in his room. She asked him if he could get it and throw it down to her, but he said he was feeling sleepy, so he asked her to go up and get it from him. And so, she climbed up while the accused walked into the room to get the betel nut.
    
19. When she came closer, she asked him if he could throw the betel nut down so she climbed up the steps and asked if he could throw the betel nut to her. He, however, threw the betel nut just next to his room. When she went to pick up the betel nut, he grabbed her by the right arm. She asked him what he was doing, and he told her that she wanted to have sex with her. She replied “Are you sick in your brain? Wanem samting i kamap long head bilong yu?” She struggled to get away from him and managed to get free and ran to the other side, but he blocked her and grabbed her again and pulled her back into the room as she struggled and fought her back to protect herself. He overpowered her, removed her clothes and inserted her penis into her vagina. By then she was weak. After penetrating her he looked at her and laughed and walked out.
    
20. The complainant said she was really embarrassed and after putting her clothes on she walked down the house and went to the river, had her bath and then went home. She did not tell anyone because she was shocked. She said she did not have the courage to tell her mother what had happened to her. She kept it from her. She said she hardly ventured out of the house and kept pondering how she could garner up enough courage to tell her mother what had happened.
    
21. She kept things to herself until 03^rd February 2016 when the accused’s mother approached her mother and told her that the complainant was pregnant. The accused’s mother had earlier questioned the complainant and in her state of confusion she lied to her that she had a boyfriend from Mutuyuwa village. The complainant’s mother questioned her and belted her until she confessed. On 4^th February 2016 she was taken to the hospital for a scan when it was found out that she was 7 ½ months pregnant. She later withdrew from school.
    
22. The accused on the other hand testified that on the day in question his aunty the complainant rode a bicycle up to his house. She left the bicycle under the house and climbed up to his veranda. She called his name and asked for betel nut. He was inside sleeping in the room. He told her that he did not have any betel nut. The complainant, however, rushed into the room, pushed her hand into his private part, and holding his penis she said “This is the betel nut I am talking about, why are you lying!” He turned and faced down. She, however, tickled him and finally pushed her hand down again and held his penis tightly. Being only human he said he felt aroused and wanted to have sex, so he turned around. He saw that she was 16 years and above. And so, he asked her for sex and she agreed without hesitation. They undressed themselves separately and then they had sex. The accused said he did not break her virginity. They had normal sex and then she left.
    
23. In cross-examination the accused admitted that he knew that the complainant was in primary school in 2012 – 2014. He admitted that he was older than her and that when he had sex with her, he disrespected their relationship. He also knew her older siblings and that they had been living around the same area since the Paliaus came home from Kimbe. When it was put to him that he knew all the time that the complainant was a young girl and still a child he said it was not true. He denied it again when it was suggested to him that he could not have been mistaken as to her age because he knew all along that she was still in primary school.
    
24. When asked in re-examination what he thought the age of the complainant was, he thought she was above 16 years because her breasts were big and had fallen down to her chest. So, which version of the evidence should I believe?
    
25. For this type of offence, where consent is immaterial and where sexual penetration is not contested and the only issue is mistake of age, it may not be necessary for the court to dwell too much on the competing evidence as to the circumstances leading up immediately to the act of penetration. What is important is not only the age of the complainant, but most importantly her physical appearance and growth. The State must prove that complainant’s physical appearance, if that becomes a point of contention, was such that her age could not, with reasonable and fair enquiry be mistaken. It must also negative any observation by the accused that the complainant was of, or over the age of consent and that such observation and conclusion was reasonable. Failing that the accused stands to be acquitted.
    
26. Neither the complainant’s evidence nor the accused on what really happened prior to the accused sexually penetrating the complainant was corroborated. Hence it goes down to whose evidence is to be believed. I have observed them both and their demeanours while testifying. The complainant gave evidence confidently and at some point, almost gave way to tears as she recalled the humiliation, she said she felt after what the accused did to her. She was honest with her answers even admitting in her evidence in-chief that she had to lie to the accused’s mother that she had a boyfriend from Mutuyuwa in her efforts to conceal her unpleasant situation from her mother.
    
27. Mr. Palek submitted that she could not be believed because she did not shout for help when her other relatives’ houses were so close by, and that she did not reveal what happened to her until she was confronted by her mother after she was told by the accused’s mother that she was pregnant. The answer to that is that women who are sexually abused do not often reveal the abuse and may keep things bottled up for years. This may be due to the shame and trauma associated with the event and where the abuser is a relative it becomes all the more difficult for them to open up. That the complainant did not tell anyone until 7 ½ months later cannot therefore be taken as evidence that she was lying.
    
28. The accused also gave his evidence confidently but appears to have rehearsed his delivery. He gave short answers to questions put to him in cross-examination with the simple words, “It is not true.” A bare denial without anything more is often no assistance to the pursuit of objective truth and the Court’s task in assessing the truthfulness of a witness.
    
29. Having observed them both, I am inclined to hold that the true version of events is that from the complainant. I accept that she did not call out for help and that there is no evidence that she bled after being penetrated by the accused. But it was not put to her while on the stand that she was not a virgin. This would be in breach of the rule in Browne v Dunn (1893) 6 R 67. In any case while it is often thought that all virgins bleed on their first penetrative sexual experience, not every woman does. Besides, it matters not whether a child is a virgin or not for the type of offence under inquiry, even though this may have some relevance to the question of whether or not she was of age. So, did the accused believe that the accused was 16 years old or older? If he did in fact hold that belief, was it reasonable?
    
30. The accused said he observed that the complainant’s breasts were big and had fallen to her chest hence he knew that she was over 16 years of age. Mr. Palek submitted that his observation of well-developed breasts led him to reasonably conclude that she was over 16 years. And that there is no evidence that the accused knew the complainant’s age.
    
31. Ms. Roalakona countered that such belief was not reasonable because the complainant and the accused were family. The accused knew that the complainant was still attending primary school, he knew that she was younger than him and the complainant had lived together with the accused at their hamlet long enough for him to know that she was but still a child, despite the fact that the complainant was big physically.
    
32. I do agree with Mr. Palek that there is no evidence that the accused knew the exact age of the complainant as often is the case in sexual offences. The State did not lead any evidence that could have shown the Court that the accused had some idea of her age, or at least lead him to conclude that she was over the age of 16 years. Evidence of such celebration of birth days which is a common event, even in rural villages, would have gone some way in showing that the accused knew how old the complainant was. No such evidence came from the State.
    
33. Notwithstanding that, the evidence must be considered in totality and the test to be applied is an objective one even though the belief itself that the complainant was over 16 years is a subjective one. The question is – would a reasonable, man placed in the accused’s situation reasonably believe that the complainant was 16 years and over?
    
34. The pertinent facts are these. The complainant and the accused are closely related. The accused is the complainant’s nephew. The complainant and her family moved back from Kimbe in 2012 and settled with the rest of the extended maternal family at Kaloi Hamlet where the accused and his family also lived. As any extended family in a rural village setting would do, they did things together and interacted and collaborated mutually in activities in the hamlet. The complainant attended primary school from 2012 to 2015 and even though the complainant was physically big the accused knew that he was older than her. And her breast may have even been well-developed as the accused said but this was not put to the complainant by the defence.
    
35. So given those facts, would a reasonable person have concluded that the complainant was over the age of 16 years? I think not. No reasonable person, who is so closely related to, and who would have daily contact with the complainant would have reached such a conclusion. He ought to have known that the complainant would have been younger than 16 years of age because of the 3 – 4 years they had lived together at Kaloi.
    
36. I do not accept that the accused entertained any belief at all that the complainant was over 16 years when he penetrated her. I find it hard to accept that he could have, at the critical moment, adverted his mind the age of the complainant, and not also direct his mind to the fact that this was his aunt that he was about to have sexual relations with, something deplorable in his society.
    
37. I find therefore that the accused ought to have known as any reasonable man, placed in his situation that the complainant was under the age of 16 years he penetrated her.
    
38. I return a verdict of guilty.

Ordered accordingly.
________________________________________________________________
P Kaluwin, Public Prosecutor: Lawyer for the State
L B Mamu, Public Solicitor: Lawyer for the Accused