Ulel, Regina v [1973] PGSC 50; [1973] PNGLR 254 (4 July 1969)

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CRIMINAL LAW - Unlawful carnal knowledge - Defence - Belief on reasonable grounds that of or above 17 years - Mistake of fact expressly excluded - Onus of proving defence on accused - Criminal Code (Queensland, adopted) ss. 24[cclxix]¹, 215[cclxx]².

CRIMINAL LAW - Evidence - Unlawful carnal knowledge - Defence - Belief on reasonable grounds that of or above 17 years - Unsworn statement - Effect and weight of unsworn statement - Evidence relevant to defence - Social factors - Belief that girl a particular age not necessary - Criminal Code (Queensland, adopted) ss. 24[cclxxi]³, 215[cclxxii]⁴ - Laws Repeal and Adopting Ordinance, s. 16[cclxxiii]⁵.

The accused was charged under s. 215 of the Criminal Code (Queensland adopted) with having had carnal knowledge of one A, a girl under the age of 17 years. At the time of the alleged offence A was in fact 14 years 6 months old: a number of witnesses gave evidence of her apparent age, ranging from 13 to 19 years. The accused made the unsworn statement: “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.”

N1>(1) Section 24 of the Criminal Code is a general provision relating to mistake of fact which may be excluded by the express or implied provisions of the law relating to the subject of an offence charged: accordingly on a charge under s. 215 of the Criminal Code, the accused’s belief that the girl is under the age of 17 years is notwithstanding s. 24, immaterial, “except as otherwise expressly stated”, and the second paragraph of s. 215, which provides that it is a defence to prove that the accused person believed, on reasonable grounds that the girl was of or above the age of 17 years, is such an express statement which s. 24 is not.

N1>(2) For the purposes of s. 215 of the Criminal Code unless the accused satisfies the jury by evidence, whether called on his behalf or extracted in cross-examination (or from the evidence in chief) of Crown witnesses, that it is more probable than not that he held a certain belief on reasonable grounds, he should be convicted.

N1>(3) The question of the effect to be attributed to an unsworn statement must be determined by reference to the Criminal Code and the Common Law of England as adopted by s. 16 of the Laws Repeal and Adopting Ordinance, and the principles and rules of the common law must be taken subject to and together with the statutory modifications in their application which had been made in England before 9th May, 1921: and the question of the weight to be attributed to an unsworn statement not being resolved by the Criminal Code is to be resolved by recourse to the common law.

N1>(4) Accordingly, when an accused makes an unsworn statement, it should be taken as prima facie a possible version of the facts, and should be considered with the sworn evidence, giving it such weight as it appears to be entitled to in comparison with the facts clearly established by the evidence. Peacock v. The King [1911] HCA 66; (1911), 13 C.L.R. 619 followed.

N1>(5) In the circumstances, notwithstanding the accused gave no evidence on oath, in determining whether he had established a defence under s. 215 of the Criminal Code, consideration should be given not only to such of the evidence in the Crown case as was relevant but also the appearance of the girl and the accused’s unsworn statement. Masnec v. The Queen[1962] TASStRp 25; , [1962] Tas. S.R. 254 referred to.

N1>(6) For the purposes of a defence under s. 215 of the Criminal Code it is not necessary for the accused to have formed an opinion that the girl was of a particular age, provided he discharges the onus of showing a reasonable belief on his part which, if expressed in terms of s. 215 of the Criminal Code rather than his own terms is one that the girl was at least 17 years old or, as expressed in R. v. Logan, [1962] Q.W.N. 5, of the age of consent. R. v. Perry & Another, [1920] N.Z.L.R. 21; R. v. Logan, [1962] Q.W.N. 5 referred to.

N1>(7) Having regard to the facts and the society in which the parties lived and to the fact that a person in that society could not be expected to have any real appreciation of chronological age as opposed to apparent physical development as a test of maturity, and bearing in mind that the age of 17 years specified in s. 215 of the Criminal Code is obviously selected as having some relationship to nubility, when the accused said he believed the girl was “fit for marriage” he must be taken as expressing loosely but as best he could without reference to age as a measure of maturity the belief which constitutes a defence under s. 215 of the Criminal Code.

Philip Boike Ulel was charged on indictment under s. 215 of the Criminal Code with having had carnal knowledge of one A, a girl under the age of seventeen years. Further relevant facts and the basis of the defences raised by the accused appear in the reasons for judgment hereunder.

CLARKSON J: This indictment is under s. 215 of the Criminal Code it being alleged that on or about 24th February, 1969, the accused had carnal knowledge of one Assumpta, a girl under the age of seventeen years.

It is not disputed that sexual intercourse took place. The real issue relates to the accused’s belief at that time as to the age of the girl. I am satisfied that although she looked older she was in fact fourteen years six months old at the time of the alleged offence. This was established by the evidence of Father Eugene Teglio who baptised the girl, then a small baby, on 26th August, 1954, and the evidence of the girl’s mother that the girl was baptised about two to four days after birth. At the time of the alleged offence the girl, her parents and the accused were all ignorant of the girl’s true age. A number of witnesses, however, gave evidence of her apparent age. Sister Mary Baptist, a qualified medical practitioner, who examined the girl on 26th February, 1969, and again saw her in court, expressed the view that girls from Lumi (from whence the girl came) were generally older than they looked and that the girl at the time of these proceedings appeared to be fifteen or sixteen years of age “but could be more”. Mr. Donovan, a patrol officer who investigated the complaint in February, 1969, said that at that time he estimated the girl’s age from her appearance to be thirteen or fourteen years old. She then looked “very much a school girl” but now looked older, approximately fifteen years. Father Eugene, a missionary of some fifteen years’ experience in the Aitape area, said of the girl that on normal standards she was “pretty big for a 15 year old. That size would be 16 or 17”.

Father Gerald Walsh, a missionary of over twenty years’ experience, estimated the girl to be between fifteen and nineteen years old.

The Crown tendered a written statement signed by the accused, the substance of which was that he made love to the girl who then willingly submitted to intercourse. The accused did not enter the witness box but made an unsworn statement as follows:

“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.”

Section 10 of the Marriage Ordinance 1963 provides that a female is of marriageable age if she has attained sixteen years and also that a judge or magistrate may, in special circumstances, authorize the marriage of a female who has attained fourteen years. However, I have no doubt the accused was referring to native customary marriages where, as far as I am aware, no minimum age applies.

The Crown maintained that because of the express provisions of s. 215 and notwithstanding any other provisions of the Code the accused bore the burden of establishing on the balance of probabilities that he believed on reasonable grounds that Assumpta was of or above the age of seventeen years.

On the other hand, the defence maintained that notwithstanding s. 215, the accused was entitled to rely on s. 24 of the Code and that the Crown was required to exclude its operation in the present case beyond reasonable doubt.

Once that contest is determined and one turns to consider the facts, it seems to me further questions arise as to what weight, if any, is to be given to the accused’s statement from the dock. Has it probative force and, if so, what force in view of the fact that it does not refer to a belief that the girl was of the age of seventeen years but to a belief that she was of marriageable age?

“It is a defence to a charge of either of the offences firstly defined in this section to prove that the accused person believed, on reasonable grounds, that the girl was of or above the age of seventeen years.”

N2>“24. A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.

The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.”

The defence argument started by asserting that both s. 24 and the second paragraph of s. 215 could apply concurrently, s. 24 imposing a limitation on criminal responsibility and s. 215 providing an affirmative defence. But as I understood the argument, counsel was forced to abandon this position because it appeared that if s. 24 applied there would never be any room for the operation of the second paragraph of s. 215. In the end it was suggested that s. 215 only applies where the accused’s belief is that the girl is seventeen years old or older. Where the belief is formed without reference to age, as in the present case where it is that the girl was of marriageable age, it does not come within the second paragraph of s. 215 but must be considered under s. 24.

It seems to me there are two answers to this argument. Firstly, the belief that the girl was of marriageable age is only relevant to the extent that it is part of the material on which may be founded a belief that the girl was seventeen years of age or more.

Secondly, the defence relied on certain passages from the decisions of the Queensland Full Court in Brimblecombe v. Duncan, Ex parte Duncan[cclxxiv]⁶ and in Loveday v. Ayre, Ex parte Ayre[cclxxv]⁷ to support this contention. To my mind, the defence contention is based on a misreading of the passages referred to and a disregard of s. 229.

In Loveday’s case, the stipendiary magistrate had held that the prohibition contained in a statutory provision relating to the supply of “lyctus susceptible timber” was absolute and that s. 24 of the Criminal Code did not apply. The Full Court said that s. 24 was available and quashed the conviction. There is in the reasons some discussion of the onus of proof where s. 24 applies. At page 97, Stanley J. in discussing this matter compares the position under s. 24 with that under a “defence” section such as s. 216 of the Criminal Code. He suggests that where s. 24 applies the Crown must negative the existence of a reasonable and honest belief in such cases just as in others it must establish an intent in the accused’s mind. On the other hand, the learned judge explains, in relation to a “defence” section such as s. 216, the accused should be convicted unless he satisfies the jury that it is more probable than not that he held a certain belief on reasonable grounds. But it is quite wrong to suppose, as the defence apparently maintains, that Stanley J. was saying that where a defence was expressly given, as in s. 216, that s. 24 was also necessarily available. The learned judge was merely comparing where the onus of proof lay in a case where a defence such as that expressly provided for in s. 216 arose with where it lay in a case where s. 24 might apply.

In Brimblecombe, the question was whether s. 24 of the Criminal Code applied when the charge under the Dairy Produce Act of Queensland was that of having sold as milk something that was not pure milk.

Philp S.P.J. having said that s. 24 of the Code was not excluded, went on to say that “whatever may be the position of mistake at common law, mistake under the Code is not a defence—it is privative of or exoneration from criminal responsibility. The prosecutor must always prove criminal responsibility and so must exclude mistake.”[cclxxvi]⁸. Then, having referred to the position before Woolmington v. Director of Public Prosecutions[cclxxvii]⁹ and certain dicta such as that of Griffith C.J. in Heaslop v. Burton [cclxxviii]¹⁰, and other dicta referring to mistake as a “defence”, the learned judge continued:

‘In Queensland the matter is made plainer since the Code itself where it desires to throw on the defendant the onus of proof of mistake expressly so provides. To take one example s. 215 dealing with defilement of girls under seventeen years provides as follows:

(1) Has or attempts to have unlawful carnal knowledge of a girl under the age of seventeen years ... is guilty of a misdemeanour.

It is a defence to a charge of either of the offences firstly defined in this section to prove that the accused person believed, on reasonable grounds, that the girl was of or above the age of seventeen years.’

Section 212 dealing with the defilement of girls under twelve years contains no such provision concerning mistake.

The onus of proving mistake in a charge under s. 215 is imposed upon the accused—it is not so in a charge under s. 212.

Sometimes the Code entirely deprives a defendant of reliance upon mistake. Thus s. 352 providing for the offence of abduction of a girl under seventeen years makes it ‘immaterial that the offender believed the girl to be of or above the age of seventeen years’. That section should be contrasted with s. 219 (dealing with abduction of girls under eighteen years with intent to have carnal knowledge) whereunder mistake is a defence proof whereof is imposed upon the defendant.”[cclxxix]¹¹.

This reference to s. 215 and similar sections in Brimblecombe v. Duncan[cclxxx]¹² is of course obiter but it contains the statement: “The onus of proving mistake on a charge under s. 215 is imposed upon the accused” which is directly opposed to the defence’s present contention.

I am not sure that I fully understand the following statement: “it is not so on a charge under s. 212”. But, because of s. 229 I cannot read it as meaning that on a charge under s. 212 the prosecutor must exclude mistake as to age.

N2>“229. Except as otherwise expressly stated, it is immaterial, in the case of any of the offences defined in this Chapter committed with respect to a woman or girl under a specified age, that the accused person did not know that the woman or girl was under that age, or believed that she was not under that age.”

So, in the present case, except as otherwise expressly stated, it is immaterial that the accused did not know that the girl was under seventeen and it is immaterial that he believed that she was not under seventeen years of age.

Section 24 is a general provision, while the second paragraph of s. 215 is concerned with belief as to age and s. 229 with belief or knowledge as to age.

Section 24 itself provides that the operation of that section may be excluded by the express or implied provisions of the law relating to the subject. The “subject” I take to be the subject of the offence charged and the relevant provisions are s. 215 and s. 229. I think the clear reconciliation of the sections is that on a charge under s. 215 the accused’s belief that the girl is under seventeen is, notwithstanding s. 24 immaterial, “except as otherwise expressly stated” and that the second paragraph of s. 215 is such an express statement (which s. 24 is not) that it is a defence for the accused to establish affirmatively that he believed on reasonable grounds that the girl was seventeen years or more.

By contrast, the first limb of s. 229 (that it is immaterial that the accused did not know the girl was under 17) is not cut down by any express statement in s. 215 and such lack of knowledge is, as s. 229 provides, no defence.

As to s. 212 this, with s. 229, creates an offence in respect to which a mistaken belief, reasonable or otherwise, as to the age of the girl cannot assist the accused.

I wish to make it quite clear that the exclusion of s. 24 from consideration in this case follows from the proper construction of the provisions I have referred to and which deal with the accused’s mistaken belief as to the prosecutrix’s age in the trial of an offence defined in Ch. 22 of the Code and committed with respect to a woman or girl under a specified age. Whether s. 24 could have any operation in respect to mistakes relating to a matter other than the age of the prosecutrix I am not required to determine.

For the reasons I have given I reject the defence contention and adopt as applicable to s. 215 what was said by Stanley J. in Loveday v. Ayre[cclxxxi]¹³ at p. 97 in respect to s. 216:

“In relation (for example) to s. 216 it is accepted that the principle as laid down in R. v. Carr-Briant ((1943) 29 C.A.R. 76) is accurate. Unless the defendant satisfies the jury by evidence—whether called on his behalf or extracted in cross-examination (or from the evidence in chief) of Crown witnesses—that it is more probable than not that he held a certain belief on reasonable grounds, he should be convicted.”

In the present case there was some evidence, to which I have already referred, that the girl appeared to be seventeen years of age or older but there was no evidence in the Crown case to indicate what belief the accused held, if any, as to the girl’s age. However in his statement from the dock, the accused stated his belief, at the time of the alleged offence, that the girl was of marriageable age. It becomes important therefore to determine whether this statement has probative force, for if it does not it seems to me the accused has done little to establish a defence under the second paragraph of s. 215 of the Code.

This problem, as far as I am aware, has not been considered in any reported decision in this jurisdiction.

The origin and history of the accused’s right to make an unsworn statement is set out briefly by Cross on Evidence 3rd ed. (1967) at p. 159, and many of the older cases are referred to by the Queensland Court of Criminal Appeal in R. v. McKenna[cclxxxii]¹⁴. Townley J. speaking for the court said[cclxxxiii]¹⁵:

“In my opinion an examination of the authorities quoted and of others leads to the conclusion that in Queensland an unsworn statement by an accused person is not evidence. It should be accorded persuasive rather than probative force. The practice has grown up of allowing a prisoner to make statements of fact but those statements are not evidence of the facts stated. Such statements of fact have come to be regarded as something less than evidence but something more than mere argument. Had it not been for the provisions of s. 619 of The Criminal Code I should have been of opinion that the right or privilege disappeared with the passing of The Criminal Law Amendment Act, 1892.

It follows that I think the learned trial judge was correct in telling the jury that the appellant’s statement was not evidence of the facts stated. I think he was also entitled to tell them the statement was merely the appellant’s explanation of the facts and his doing so involved no misdirection.”

This view does not appear to have been adopted in other jurisdictions. The view more widely adopted is that expressed by Griffith C.J. in Peacock v. The King[cclxxxiv]¹⁶ on appeal from the Supreme Court of Victoria:

“The proper direction to be given, it seems to me, is this: that the jury should take the prisoner’s statement as prima facie a possible version of the facts and consider it with the sworn evidence, giving it such weight as it appears to be entitled to in comparison with the facts clearly established by evidence.” (See also Simpson [cclxxxv]¹⁷).

In Victoria however the relevant statutory provision was that an accused person may make a statement of facts without oath “in lieu of or in addition to” any evidence on his behalf, whereas s. 619 of the Queensland Criminal Code does not expressly confer a right nor indicate the nature of the right. It provides merely that where an accused person being defended by counsel is allowed by the court to make a statement to the jury the counsel for the Crown is entitled to the same right of reply as if evidence had been adduced for the accused person.

In New South Wales the effect of the relevant statutory provision is not unlike that of the Queensland provision. It provides that an accused person may make any statement without being liable to examination thereon by counsel for the Crown or the court. Townley J. in R. v. McKenna[cclxxxvi]¹⁸ said:

“It appears to me, however, that the question of the weight to be attributed to such an unsworn statement must be resolved by recourse to the common law decisions. I include in such the decisions I have quoted from New South Wales Courts because it appears to me that the statutory enactments there under consideration added nothing to the weight such a statement would have had at common law, but merely recognised the right to make it.”

In New South Wales the problem has been considered in a number of cases including R. v. Morrison[cclxxxvii]¹⁹; R. v. Chantler[cclxxxviii]²⁰; R. v. Tyford[cclxxxix]²¹ and R. v. Riley[ccxc]²², all of which are considered by Townley J. in McKenna (supra). Since McKenna’s case the matter has been further considered in New South Wales in Franklin[ccxci]²³ and in Avery[ccxcii]²⁴, where Herron C.J. and Asprey J. said that “a statement from the dock may have for a jury evidentiary value in a criminal trial despite the fact that it may be inconsistent with the sworn testimony.”

In 1962 the Court of Criminal Appeal in Tasmania reviewed the situation in that State in Masnec v. The Queen[ccxciii]²⁵.

“... there has been some discussion as to the nature of such a statement, the Solicitor-General contending that while it may be used to found a hypothesis it was wrong to call it evidence or even evidentiary. To this one answer is as was suggested by Gibson J., that if its use be merely to suggest a hypothesis as to the facts then it does no more and probably less effectively than defending counsel could do. Notwithstanding the doubts that have been felt on the subject in the past and as to these we need do no more than refer to the article by Cowen and Carter in Essays on the Law of Evidence (1956), we think with the learned authors that this is an under-assessment of the present day effect of such a statement. We think it is evidence, unsworn maybe but this fact no more changes its essential nature than it does the evidence of children of tender years ...

... We have considered with some care the decision of the Full Court of Queensland in McKenna [1951] Q.S.R. 299 and in so far as it would indicate a narrower view of the effect of an unsworn statement we differ from it with reluctance and respect. It is significant however that in Tasmania, as in New South Wales and Victoria, but unlike Queensland the right to make such a statement depends on express statutory enactment and not on the common law and though there are verbal differences between the statutes, we think the view indicated by cases such as Riley ((1940) [1940] NSWStRp 15; 40 S.R. (N.S.W.) 111) and Simpson ((1956) V.L.R. 490) is preferable and more in accord with the intention of the legislature. That it also accords with the practice of the courts of this State for many years is also a factor which we take into account...

... While the tentative approach recommended in Peacock ((1911) [1911] HCA 66; 13 C.L.R. 619) has the blessing of authority and the sanction of tradition, a direction to the jury based squarely on the character of such statements as evidence but directing attention, as affecting their quality, to the fact that they are unsworn and have not been subjected to cross-examination is, in our opinion, preferable as candidly factual and more informative to the jury.”

In South Australia the view adopted by the Full Court is shown in Evans[ccxciv]²⁶ where the court said:

“The significance of the ‘unsworn statement’ as allowed by modern practice, has come under consideration recently in Stuart ([1959] S.A.S.R. 144), and Lavender v. Petherick ([1960] S.A.S.R. 108). Without repeating all that was said in those cases we think that it is sufficient to say that under the practice of our Court an ‘unsworn statement’ is not received as evidence of the facts stated, but is put to the jury, as the defendant’s statements before the Magistrate or when charged and cautioned are put in evidence. In the result the jury have to consider ‘what he says’ or ‘his version of the facts’, and they cannot find the accused guilty, if—having heard what he has to say—they think that he may reasonably be innocent.

That, as we understand it, is the reasoning of the High Court in Peacock ((1911) [1911] HCA 66; 13 C.L.R. 619, at pp. 640-641).”

I have been unable to find any relevant Western Australian authority although I note that s. 637 of the Western Australia Code, which is the section comparable to s. 619 of the Queensland Code, omits the Queensland provision referred to earlier relating to the effect of the accused’s making an unsworn statement.

In Perry & Anor[ccxcv]²⁷ the New Zealand Court of Appeal appears to have adopted the statement of Griffith C.J. in Peacock v. The King[ccxcvi]²⁸ to which I have already referred.

In the present case it is necessary to ascertain and apply the law of the Territory of New Guinea.

On 9th May, 1921, the then existing law of the Territory comprising laws enacted by German authority ceased to be in force and in their place a collection of Commonwealth, Queensland, Imperial and Papuan enactments was substituted by the Laws Repeal and Adopting Ordinance 1921. Section 16 of that Ordinance then provided:

N2>“16. The principles and rules of common law and equity that were in force in England on the ninth day of May, One thousand nine hundred and twenty-one, shall be in force in the Territory so far as the same are applicable to the circumstances of the Territory, and are not repugnant to or inconsistent with the provisions of any Act, Ordinance, law, regulation, rule, order or proclamation having the force of law that is expressed to extend to or applied to or made or promulgated in the Territory.”

Among the enactments applied to the Territory was the First Schedule of the Criminal Code Act, of Queensland with some amendments, and the Criminal Procedure Ordinance 1889 of Papua. The only relevant provision in the Code, s. 619, has already been referred to. The Criminal Procedure Ordinance while permitting an accused person to have his defence conducted by another person is naturally silent on any right of an accused to make a statement as well as give sworn evidence for the Ordinance was passed before the accused became a competent witness in either England or Queensland.

It seems to me that in New Guinea the problem must be determined by reference to the Criminal Code and the Common Law of England as adopted by s. 16 of the Laws Repeal and Adopting Ordinance and I adopt the suggestion made by Rich and Dixon JJ. in Booth v. Booth[ccxcvii]²⁹ that the principles and rules of the common law must be taken subject to and together with the statutory modifications in their application which had been made in England before 9th May, 1921.

I also adopt what I think to be the view of Townley J. in R. v. McKenna[ccxcviii]³⁰ that the question of the weight to be attributed to an unsworn statement not being resolved by the Code is to be resolved by recourse to the common law.

There is a surprising death of English authorities upon the point in the last eighty years. In Shimmin [ccxcix]³¹, the most recent of the English cases referred to by Townley J., Cave J. said:

“True his statement was not made on oath, and that he was not liable to be cross-examined by the prosecuting counsel, and what he said was therefore not entitled to the same weight as sworn testimony. Still it was entitled to such consideration as the jury might think it deserved ...”

“The preponderance of English authority favours the view that the prisoner’s unsworn statement is evidence in the case—of less weight than sworn testimony—but entitled to such consideration as the jury may think it deserves. The contrary view, which has found favour in some of the dominions, is that it is something less than evidence and more like the arguments of counsel, the closest analogy being a speech in which it is suggested to the jury that certain things compatible with the accused’s innocence might have happened, even if all the evidence for the prosecution is accepted. This distinction cannot often be of great practical importance. The best illustration of its possible significance is provided by the Irish case of People (A.-G.) v. Riordan ([1948] I.R. 416), in which a conviction was quashed because the trial judge had failed to put the contents of the accused’s unsworn statement to the jury and it had not been included in the transcript of the proceedings. If it had not been evidence in the case, these omissions might have been less open to criticism.

It is submitted that the Anglo-Irish approach is preferable, although this aspect of the matter has not been considered by an English court since the Act of 1898 came into force. The probative value of the statement is, of course, weakened by the right to give sworn evidence accorded to the accused under the statute. In addition to the fact that it is not on oath, it has the further infirmities that the maker is not subject to the sanction of possible proceedings for perjury (although this point is somewhat theoretical having regard to the extreme rarity of prosecutions for that offence in respect of the sworn evidence of the accused), and he is not liable to cross-examination.”

However, this aspect was eventually considered by the English Court of Criminal Appeal in Frost & Anor[ccci]³³ (referred to by Professor Cross in the 3rd ed. of his work published in 1967, at p. 160). In this case Parker L.C.J., Phillimore and Winn JJ. considered a direction given in the following terms:

“They both made statements to you and you will give the weight to those statements you think fit, but it is not evidence. It is merely comment. You will pay just as much attention to that comment as you do to the comments of counsel. You do not decide the case on that. You decide the case on the evidence, but you are influenced perhaps in your reasoning of the matter by the speeches of counsel and the unsworn statements made by the accused. That is all I have to say on the matter, members of the jury.”

“In connection with this point Mr. Nicholls says in the first instance that the learned Commissioner was wrong in telling the jury that the statement was not evidence. In the opinion of this court, it is quite unnecessary to consider what is really an academic question, whether it is called evidence or not. It is clearly not evidence in the sense of sworn evidence that can be cross-examined to; on the other hand, it is evidence in the sense that the jury can give to it such weight as they think fit. Having regard to the fact that it is sufficient for this case to quash the conviction on the first ground, namely, in regard to the direction on possession, the court has not thought it necessary to go into the full history of this matter; but, in their opinion, it is quite clear to-day that it has become the practice and the proper practice for a judge not necessarily to read out to the jury the statement made by the prisoner from the dock, but to remind them of it, to tell them that it is not sworn evidence which can be cross-examined to, but that nevertheless they can attach to it such weight as they think fit, and should take it into consideration in deciding whether the prosecution have made out their case so that they feel sure that the prisoner is guilty.

The Commissioner went a long way in complying with what this court thinks is the proper practice, but he did go on to say that the statement was mere comment and may be analogous to counsel’s speeches. In the opinion of the court, whatever the statement is called, it is certainly more than mere comment, and in so far as it is stating facts, it is clearly something more and different from the comments in counsel’s speeches. In these circumstances, this court feels that there was a misdirection in that respect also ...”

Frost & Anor[cccii]³⁴ and Shimmin [ccciii]³⁵, covering the period from 1882 to 1964, show that an unsworn statement has probative value in England and the Australian and New Zealand cases to which I have referred, with the possible exception of McKenna[ccciv]³⁶ in Queensland and perhaps Evans[cccv]³⁷ in South Australia, support the same view. In these circumstances bearing in mind the sources of Territory law to which I have referred I am constrained not to follow McKenna (supra) but to adopt the view that is conveniently summarized by Griffith C.J. in Peacock[cccvi]³⁸ and which I have quoted.

I think it is quite clear that where, as here, the accused is required to establish a defence, this does not mean that he is obliged to give or call sworn evidence. He may well be able to establish the defence on matters arising in the Crown case or on those matters and his unsworn statement.

In Perry[cccvii]³⁹ on a trial for indecent assault upon a girl under the age of sixteen years neither of the accused gave evidence and there was no evidence as to what they knew or believed the girl’s age to be. It was a defence to establish that the accused had reasonable cause to believe that the girl was over sixteen years. The Court of Appeal upheld a direction by the trial judge that the jury might infer the belief of the accused as to the girl’s age from such matters as the appearance of the girl, the accused’s conduct and the other circumstances of the case, and it is a fair reading of the report that an unsworn statement, given the weight suggested by Shimmin (supra) and Peacock (supra) is part of the material from which the jury may make its inference.

In Riley[cccviii]⁴⁰ the Full Court of New South Wales held that an unsworn statement must be regarded as “proof” in the sense of material to which the jury are entitled to give such weight as it deserves, for the purpose of determining whether the accused person has a lawful excuse within the meaning of s. 60S of the Commonwealth Bank Act 1911.

In Masnec[cccix]⁴¹ the Tasmanian Court of Criminal Appeal said of an unsworn statement, and the opening sentence I have already quoted:

“We think it is evidence, unsworn maybe but this fact no more changes its essential nature than it does the evidence of children of tender years. The traditional direction founded on Peacock v. The King ((1911) [1911] HCA 66; 13 C.L.R. 619), does perhaps lend unintentional support to the hypothesis theory (unintentional because the effect of the case is really to allow probative and not merely hypothetical weight to such statements) but the test is surely that in those matters in which an onus, not only evidentiary but probative as well, may rest on the accused, an unsworn statement, unlike counsel’s hypothesis, will be received in proof of those matters which would otherwise fall to be decided against him in the absence of evidence. In this regard the practice of our courts has been in accordance with R. v. Riley ((1940) [1940] NSWStRp 15; 40 S.R. (N.S.W.) 111). In the criminal law examples of a probative onus on the defence are not easy to find—insanity is hardly a good example—but there are others. One is under s. 124 (2) (Defilement) where it ‘is a defence to a charge under this section to prove that he’ (the accused) ‘believed on reasonable grounds that the girl was over the age of eighteen years.’ ”

I conclude therefore notwithstanding the accused gave no evidence on oath, that in determining whether he has established a defence under the second paragraph of s. 215 I am entitled to consider not only such of the evidence in the Crown case as is relevant, as for example the conduct of the accused, but also the appearance of the girl and the accused’s unsworn statement.

The Crown’s contention was that since the accused could not say in express terms that he believed the girl to be at least seventeen years of age the defence provided by the second paragraph of s. 215 of the Code was not open to him.

In this jurisdiction where a great number of the population do not know even their own ages the defence limited as the Crown suggests would have little application, but in any event I do not think the Crown’s argument is correct.

I have already referred to Perry & Anor[cccx]⁴² and in addition I gain much assistance from Logan[cccxi]⁴³ and am satisfied it is not necessary to sustain the defence for the accused to have formed an opinion that the girl was of a particular age. Speaking for the Queensland Court of Criminal Appeal in Logan, Mack J. (as he then was) said in a similar case:

“The onus of proving a belief on reasonable grounds rested upon the appellant. It is therefore obvious that the only reason he entered the witness box was in an endeavour to establish this defence. There was only one disputed issue for the jury, ‘Had the prisoner proved on the balance of probabilities that he believed on reasonable grounds the girl was of or above the age of seventeen years?’

A belief on reasonable grounds is an opinion which is held by the prisoner without knowing all the facts. If it were necessary to know all the facts the section would be reduced to an absurdity. The section does not mean that the prisoner must necessarily form an opinion that the girl is of a particular age, e.g. eighteen years or twenty-one years. It is sufficient that he believes she is of consenting age. Whether the prisoner believed the girl was of an age of consent and whether he held the belief on reasonable grounds were questions of fact for the jury.

Evidence to go to the jury of a belief on reasonable grounds could be that the girl had misrepresented her age or she had the appearance of an adult and she acted as an adult and the prisoner therefore assumed she was an adult. The defence does not necessarily fail because the prisoner did not ask the girl her age, and it does not inevitably succeed if the girl informed the prisoner she was of age. They are merely factors in particular cases for the jury to take into consideration.”

The Court of Criminal Appeal held there was evidence which should have been left to the jury and I am quite satisfied that here if the trial had been with a jury the position would have been the same.

The accused expressed his belief as to the girl’s age in terms of marriageable age, that is, that the girl was fit for marriage, and I accept that he genuinely held the belief he expressed; but the Code adopts as the test a reasonable belief that the girl was of the age of seventeen years or, as expressed in Logan’s case[cccxii]⁴⁴, of the age of consent. The real question then is whether the accused has discharged the onus of showing a reasonable belief on his part which, if expressed in terms of the Code rather than in his own terms, is one that the girl was a least seventeen years old.

My opinion has fluctuated on this problem for some time. I have finally concluded that regard must be had 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 a test of maturity. A statement by the accused that he believed Assumpta to be seventeen years old would have been immediately suspect because it adopted a criterion of physical maturity still novel to indigenous members of the society from which the parties came. Further, I bear in mind, as Father Walsh pointed out, the apparent age of a native girl can vary considerably depending on whether the child is brought up in a village or in the vicinity of a station where proper diet and medical care are available.

Clearly this girl was very well-developed for her age. Having heard the evidence and having seen the girl I accept the opinion of Sister Mary Baptist that the girl, judged by appearance, could have been more than sixteen years, and the evidence of Father Walsh that she could have appeared to have been as old as nineteen years. As a member of a jury trying this case I would think it reasonable for a person assessing physical development in such terms to have believed that Assumpta was seventeen or eighteen years old. Is this what is meant by the accused when he says the girl appeared to be fit for marriage? Bearing in mind that the age of seventeen years specified in the Code is obviously selected as having some relationship to nubility I am prepared to accept that it was.

In Logan[cccxiii]⁴⁵ a belief that the girl was of the age of consent would have entitled a jury if so minded when translating that belief into terms of the Code to say that the accused reasonably believed the girl to be at least seventeen years of age. Here, bearing in mind the special considerations I have mentioned, I adopt the same translation, although I must say not with the same accuracy nor confidence. I have concluded that when the accused said he believed the girl to be of marriageable age he thus expressed loosely but as best he could without reference to age as a measure of maturity the belief which constitutes a defence under s. 215 of the Code.

I appreciate that the path I have followed may be tenuous but it leads to the same verdict as I would expect from a properly instructed jury.

I was for a time troubled by the fact that, at least on the day of the alleged offence, the accused was Assumpta’s teacher and that in such a relationship one might expect the accused to obtain quite accurate information as to the girl’s age. But on reflection I have disregarded this aspect. The accused had only been at the school for one year and there was no evidence for how long Assumpta had been there. I am aware that eighteen and nineteen year old school children are not uncommon in the Territory. If there were evidence as to Assumpta’s progress or time at school or of the keeping of rolls containing ages or other matter relevant to the accused’s belief the Crown could have produced it. The fact that nothing like this was produced by the Crown cannot be held against the accused.

I return a verdict of Not Guilty and order that the accused be discharged. Since he has been brought to Port Moresby in custody for the completion of the trial I assume that if he so desires proper arrangements will be made for his return to Aitape.

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[cclxix]Infra p. 257.

[cclxx]The relevant portion of s. 215 is to be found at p. 257.

[cclxxi]Infra p. 257.

[cclxxii]The relevant portion of s. 215 is to be found at p. 257.

[cclxxiii]Infra p. 264.

[cclxxiv](1958) 52 Q.J.P.R. 83.

[cclxxv](1955) 49 Q.J.P.R. 93.

[cclxxvi] (1958) 52 Q.J.P.R. 83, at p. 85.

[cclxxvii][1935] A.C. 462.

[cclxxviii] [1902] St. R. Qd. 259, at p. 266.

[cclxxix] (1958) 52 Q.J.P.R. 83, at p. 86.