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State v Otma (No.1) [2013] PGNC 343; N5451 (18 November 2013)

N5451


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR 802 OF 2008


THE STATE


V


HARRY OTMA
(No 1)


Popondetta: Toliken, AJ.
2013: 07th, 08th, 18th November


CRIMINAL LAW – Particular offence – Sexual Penetration of a girl under the age of 16 years – Trial - Victim sexually penetrated by alleged accomplice of the accused – Accused alleged to have aided and abetted alleged accomplice - Principal Offenders - Whether accused was an accomplice to the crime – Defence of Alibi – Whether accused was present at scene of the crime – Age of Victim and proof of – Whether under 16 years of age at time of crime – Whether accused knew or ought to have known that she was under 16 years of age - Criminal Code Act Ch. 262, ss 7, 229A(1)(a), 229F, 229H; Evidence Act Ch.48, ss 57, 63.


CRIMINAL LAW – Evidence – Exhibit marked for identification – Purpose of -Whether admissible.


Facts


The accused was charged with one count of sexual penetration of a girl under the age of 16 years. The victim had gone into a settlement in search of a classmate. A person, Didimus Borah, alleged to be the accomplice of the accused offered to take her to the classmate's house but instead took her into the bush and sexually penetrated her. The State alleged that the accused followed them and encouraged the commission of the offence by, inter alia, threatening the victim and that he stood watching when his alleged accomplice sexually penetrated the victim. The accused denied the charge and raised an alibi defence. During the trial certain exhibits were marked for identification but not tendered formally into evidence.


Held:


(1) The purpose of marking an exhibit for identification is for it to be properly tendered later through a witness for the party seeking to have it so marked. To admit such an exhibit into evidence, without it having been properly tendered through a witness, would be prejudicial to the accused. As such all exhibits marked for identification must remain outside the evidence properly before the court.


(2) The accused alibi is rejected on the basis that his evidence and those of his witnesses is contradictory and hence unreliable.


(3) Knowing Didimus' bad reputation in the community it can reasonably be inferred that the accused slipped away from the people with whom he was gambling at the compound and followed him and the victim into the bush.


(4) The accused caught up with Didimus and the victim and when the victim asked him for help the accused told her to keep on walking and follow Didimus whilst at the same time pushing her along with a short stick. He followed them into the garden and together with Didimus told the victim to submit to the latter, threatening that if she shouted they would call out to other boys who were already around to come and rape her too. He then stood watching as Didimus proceeded to sexually penetrate the victim.


(5) I am satisfied beyond reasonable doubt that the accused by his conduct and words aided or assisted the said Didimus Borah in the act of sexually penetrating the victim.


(6) The offence under consideration is not one of strict liability. The State must therefore prove beyond reasonable doubt that an accused intended to sexually penetrate and in fact penetrated the victim and at the relevant time he knew or ought to have honestly and reasonably known that the victim was under 16 years of age or negative that belief if the accused indeed had such a belief.


(7) Where the State invokes Section 7 of the Code and charges an accused for aiding or supporting an accomplice but did not physically sexually penetrate the victim, as in this case, the State must still prove beyond reasonable doubt that he knew or ought to have honestly and reasonably known that the victim was under the age of 16 years.


(8) While it has been proven that the victim was under the age of 16 years and that the accused aided and supported Didimus Borah when he sexually penetrated her, in the absence of cogent evidence that he knew or ought to have honestly and reasonably known or believed that the victim was under 16 years the accused is acquitted of the charge.


CASES CITED


The State v Peter Eddie (No.1) (2009) N3782)
The State v Lucas Soroken & Ors (2006) N3029
The State v Penias Mokei (No.1) (2004) N2606
John Jaminan v The State (No.2) [1983] PNGLR 318
R v Tovarula [1973] PNGLR 140
R v Potosi (1973) N730
R v Yoka Kiok (1970) N607


Counsel:


J.W. Tamate, for the State
P. Moses and T. Ilaisa, for the prisoner


JUDGMENT ON VERDICT


18th November 2013


  1. TOLIKEN, AJ. On the 17th of September 2013, the accused Harry Otma was indicted for one count of sexual penetration of a girl under the age of 16 years. The indictment alleged further that at the time of the alleged offence the complainant was in a relationship of trust, authority and dependency with him. This is an infraction against Section 229A (1) (3) of the Criminal Code Act Ch. 262 (the Code). The State also invoked Section 7 of the Code.
  2. The accused pleaded not guilty on the basis of alibi defence, notice of which was filed and duly served on the State.
  3. The State opened its case and was about to call its first witness when Mr. Mesa of counsel for the accused informed the Court he may be acquainted with the complainant's family, something which he said he was not aware of prior to that time. He requested for and was granted time to verify this with his client. When the matter resumed Mr. Mesa confirmed that the complainant was in fact a member of a family of long acquaintance. This he said put him in a conflict of interest situation and sought leave to disqualify himself from representing the accused. No objection was raised and Mr. Mesa was duly excused. The matter was then adjourned to these sittings of the Court.
  4. When the matter recommenced on the 07th November, Mr. Tamate applied to amend the indictment by deleting the allegation of the existence of a relationship of trust, authority and dependency between the accused and complainant, and, the addition of two other witnesses to the list of witnesses contained in the indictment. The defence did not object and the indictment was amended accordingly.

THE CHARGE


  1. The amended charge therefore is a follows

"Harry Otma of Sumia Village, Mendi, Southern Highlands Province, stands charged that on the 27th of April 2007 at New Guinea Compound, in Papua New Guinea he engaged in an act of sexual penetration with one Toka Suma, a girl under the age of 16 years."


THE ALLEGATIONS


  1. The state's amended allegations in support of the charge for purpose of arraignment are that:

On Friday the 27th of April 2007 the accused was at the New Guinea Compound, Popondetta town at around 8.30 a.m. when the complainant came to the Canteen at the Compound, looking for a classmate of hers. The complainant was then 13 years of age and was doing Grade 7 at Popondetta Primary School.


While the complainant was at the Canteen a person by the name of Didimus Borah saw her and asked her what she was doing there. She told him that she was looking for a classmate by the name of Lindsay. Didimus told her that she knew where Lindsay lived and told her to follow him and she did. Didimus led her to a track to the bush past the residences while the accused was following them. Realising that they were walking away from the residential areas the complainant asked Didimus where he was taking her but he and the accused threatened her telling her not to say anything. She tried to shout and turn back but the accused who was behind him told her to follow Didimus into the bush. Once there Didimus pushed her down to the ground lifted up her skirt, removed her shorts and panties and sexually penetrated her vagina with his penis. The accused was present and watching as this was happening.


The State alleged that prior to sexually penetrating the victim Didimus had told her that if she shouted he would tell some boys who were hiding in the bushes to come and rape her.


After she was sexually penetrated the victim met her uncle Paul and reported the matter. She was taken to the police station and later to the hospital for medical examination.


The State further alleged that the accused and his accomplice Didimus lied to the victim and took her into the bush where Didimus sexually penetrated her. The accused and Didimus acted together and supported each other in the commission of the offence and thus, the accused is covered by the Code as a principal offender.


Didimus was arrested later on the same day and the accused was arrested 2 days later.


PLEA


  1. The accused denied the charge when it was put to him. Mr. Moses of counsel for the accused indicated that they will be raising the defence of mistake of fact under Section 25 of the Code. I asked counsel if there has been change of instructions as the Pre-Trial Review Statement stated that the defence was one of alibi of which a notice had in fact been filed and served on the State by Paraka Lawyers, the accused's former lawyers. Mr. Moses sought and was granted a short adjournment to consult with the accused. When the matter resumed Mr. Moses confirmed that the accused had in fact filed an alibi defence that he was at the gambling area at the compound at the time the victim was alleged to have been sexually penetrated by Didimus.

THE OFFENCE


  1. Section 229A (1) provides for the offence as follows:

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.


  1. The elements of the charge are that:
  2. This offence is not a strict liability one though. Apart from sexual penetration (actus reus) there are two mental elements (mens rea) to the charge. These are not expressly stated in the description of the offence but it must necessarily be implied (1) that the accused intended to sexually penetrate or have sexual intercourse with the victim and (2) that he knew or ought to have known that the victim was under the age of 16 years. (The State v Penias Mokei (No.1) (2004) N2606; The State v Peter Eddie (No.1) (2009) N3782)

THE ISSUE(S)


  1. At the outset it must be stated clearly that as a matter of law consent is immaterial for this offence and the Court does not need to warn itself of the dangers of convicting an accused on uncorroborated evidence. (Sections 229F and 229H of the Code). Whilst corroboration is no longer required this in no way gives the Court laxity in its judicial treatment of the evidence before it. Therefore convictions must be supported only by very strong and cogent evidence. To do otherwise would be to tread upon the accused right to the full protection of law under Section 37 of the Constitution.
  2. That being said, the issues for me to determine will be:
    1. Whether the accused was present at the scene of the crime, and if so;
    2. Whether he aided and abetted the alleged accomplice in sexually penetrating the victim.

12. In the course of the trial it became apparent that the defence also took issue with the age of the victim so a couple of other issues arise, viz;


3. Whether the victim was under the age of 16 years at the time of the alleged offence; and if so


4. Whether the accused knew or ought to have known that she was under the age of 16 years.


THE EVIDENCE


  1. The State called the victim and her mother Mrs. Penny Suma. It also tendered (with consent) the accused's original Record of Interview in Pidgin dated 12/07/07 and its English translation (Exhibits A1 and A2) and a Medical Report by Health Extension Officer (HEO) Mr. Leo Pantu dated 01/05/07 (Exhibit B).
  2. The defence called the accused himself and two other witnesses namely Priscilla Sirut and Hobart Amos.

THE FACTS


Undisputed Facts


  1. The following facts are not disputed. On the morning of 27th April 2007, sometime between 08.30 a.m. and 11.00a.m., the victim who was then attending Popondetta Primary School and doing Grade 7 had gone to the New Guinea Compound (settlement), Popondetta Town in search of a classmate by the name of Lindsay. Lindsay was part of a group in a class project in which the victim was group leader. She had gone out to look for him when he did not turn up in class.
  2. Arriving at the Compound she went up to a canteen and bought some chewing gum. As she was coming down a person by the name of Didimus Borah approached and asked her what she was doing there. She told her that she was looking for her classmate Lindsay. Didimus said he knew where the boy's house was and offered to take her there. He then asked the victim to follow him there.
  3. Didimus led her through the residences in the settlement passed the Seventh Day Adventist (SDA) Church area and onto a track leading into the bush. They crossed a creek and continued walking into the bush until they crossed another creek. At that point the victim became concerned and asked Didimus where he was taking her to. Didimus told her that he was taking a short-cut to Lindsay's house so they continued walking further into the bush. Getting more concerned by now she questioned him again and he told her that Lindsay's house was just on the other side. By that time the victim realized that there was no one around nor were there any more houses. What happened immediately after this is disputed and I will return to this aspect of the evidence later. However, they kept on walking until they came to a garden. There Didimus removed the victim's clothes and sexually penetrated her.
  4. After sexually penetrating the victim Didimus walked with her back to the compound. As they were crossing a creek just below the victim's uncle's house her uncle saw her and asked her what she was doing around there. The victim burst out crying before she could answer. She then told him that Didimus had sexually penetrated her. By that time Didimus had slipped away. Her uncle then took her down to the Police Station where she laid her report.
  5. After that the victim was being accompanied by a police woman (Betty) to the Popondetta General Hospital along the back road when she caught sight of Didimus and told the policewoman that he was her assailant. The Police woman Betty apprehended Didimus and took him back to the police station. Later that day the victim underwent medical examination at the Popondetta General Hospital. A couple of days later the victim saw the accused walking past their house. She told her father that he was the young man who had followed her and Didimus. Her father then went out and bashed up the accused and then took him down to the Police Station.
  6. The Medical Report by Health Extension Officer Mr. Leo Pantu dated 01.05.942 of his examination of the victim state among other things that:

" ...

... [Toka] experienced pain but did not bleed.


Toka had no shower or change of clothing prior to presentation. She was emotional and cried while relaying her ordeal. Her uniform shirt had dirt while her short was turned inside out.


Physical examination revealed a small bruise at her right back. Her vaginal introtius was free of hymen with old tears noted at 3, 6, 9 and 12 o'clock positions. Clear deposits were noted in her vagina, along with cervical erosion. Microscopic examination for spermatozoa was positive as many sperm cells were seen along with a few red blood cells. ..."


Disputed Facts


  1. The disputed facts centre around the four issues posed above. These are inter-related and will be considered together. The issues can thus be posed:
    1. Was the accused at the scene of the crime and if so, did he aid and abet Didimus when he sexually penetrate the victim?
    2. Was the victim under the age of 16 years and if so did the accused know that she was?
  2. At this juncture it must be stated that the State does not allege that the accused also physically sexually penetrate the victim. Rather it alleges that he assisted or aided and abetted Didimus to sexually penetrate the victim, hence, it invoked Section 7 of the Code. As such the State must prove conclusively i.e. beyond reasonable doubt, firstly, that Didimus sexually penetrated the victim in contravention of Section 229A (1) of the Code, and secondly, prove on the same standard that the accused aided and abetted him in sexually penetrating the victim.
  3. In answer to the charge the accused raised an alibi defence. So let us first consider the law on these matters i.e. principal offenders and the defence of alibi.

THE LAW


Principal Offenders


  1. The State invoked s Section 7 of the Code alleging as we have seen that while the accused did not physically sexually penetrate the victim he nonetheless aided and abetted Didimus, hence, he is a principal offender as such.
  2. Section 7 of the Code provides:

7. Principal offenders.


(1) When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:—


(a) every person who actually does the act or makes the omission that constitutes the offence; and


(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; and


(c) every person who aids another person in committing the offence; and


(d) any person who counsels or procures any other person to commit the offence.


  1. For an accused to be caught by Section 7 of the Code the State must prove beyond reasonable doubt that he aided another person in committing the offence. It must be shown that he assisted by some wilful and intentional physical act or verbal encouragement of the commission of the offence by the other person or persons. It is not enough that the accused was present for there is no crime by mere contingent association.
  2. In R v. Potosi (1973) N730 it was held that mere presence at the scene of a crime is not sufficient to attach criminal liability – there must be participation in the act. If the accused encourages or supports those involved in the actual crime he will be regarded as a principal. However, if presence is to be relied upon as distinct from any acts or words of assistance, then, presence must be willed and not accidental, and with the intention of encouraging or assisting the commission of the offence. (R v Tovarula [1973] PNGLR 140)

Defence of Alibi


  1. The defence of alibi is different from excusatory and justificatory defences under the Code in that what the accused is in fact saying is that he was elsewhere and not at the scene of the crime, hence could not possibly have committed the offence. Effectively he is saying that he is innocent – in every sense of the word - of the crime alleged against him. It is a complete denial of the constituent mental and physical elements of the crime. In other words an alibi is a complete negation of the charge and puts everything in issue. (John Jaminan v The State (No.2) [1983] PNGLR 318)
  2. Having raised the defence it is not for him to prove it beyond reasonable doubt though he must file a notice of alibi pursuant to the rules (O 4 r 4 of the Criminal Practice Rules). And for the alibi to be credible there must be supporting evidence from other witnesses.
  3. The State of course bears the onus of negativing the alibi by proving beyond reasonable doubt that the accused was at the scene of the crime at the relevant time. The requirement for notice of alibi accords the State the opportunity to call evidence to disprove the alibi.
  4. The principles pertaining to alibi defence are laid down in this jurisdiction by John Jaminan v The State (No. 2) (supra). For want of a better way of putting them, I adopt His Honour Cannings J's succinct summary of the relevant principles in The State v Lucas Soroken & Ors (2006) N3029. They are:

THE EVIDENCE ON DISPUTED FACTS


  1. So what is the evidence on the accused alleged involvement in the alleged crime and on his alibi defence?
  2. Let me take the victim's evidence from the time she and Didimus crossed the second creek before coitus. The victim testified that after they had crossed the second creek and walked further into the bush she became concerned and asked Didimus where he was taking her. Didimus told her that they were taking a short-cut to Lindsay's house. As they went further into the bush she questioned Didimus again who replied that Lindsay's house was just on the other side. At that point she became more alarmed. As she turned around to call for help she saw the accused a meter behind her. She asked him to help her but he told her to shut up and keep walking. They then came to the garden where Didimus sexually penetrated her.
  3. The victim said that the accused and Didimus told her that if she shouted they would call out to the other boys from the Compound who were already around to come and also rape her. As Didimus was sexually penetrating the victim the accused stood there watching. After that the accused separated from her and Didimus.
  4. In cross-examination she denied going straight to Didimus when she arrived at the compound. As I have found above she went up to the canteen and bought some chewing gum and as she was coming down she was approached by Didimus who offered to assist her and then led her away purportedly to Lindsay's house. She denied talking to the accused at all at the canteen area. She also denied hearing an old woman calling after her not to follow Didimus.
  5. The victim said further in cross examination when asked if the accused was carrying a knife that she wasn't but had short stick which he used to push her with and telling her to continue walking. She further said, again in cross-examination, that as Didimus was taking her back from the garden they met a young man of about 20 years of age and his mother. The man asked her if anything was wrong and she burst out crying and told him that the boy with her (Didimus) tricked her and took her into the bush. This was before she met her uncle. Mr. Moses suggested to the victim that she was lying as she did not mention this to the police. She replied that she gave her full story to the police and this was hand written and read back to her. She later signed the typed copy. It seems, however, that she did not read before signing it because she said when reading through her written statement again a day before trial she found that it was not in the statement.
  6. She denied that she was not a virgin when Mr. Moses put to her that the medical examination revealed that her vagina was free of the hymen and had old tears. She said that she bled and her clothes were covered in blood and that she did not know about sex and boys and that this was her first time. She also denied that she and Didimus knew each other and planned to have sex.
  7. The accused on the otherhand testified that he was playing a game of chance called "Hire" with Hobart Amos, Priscilla Sirut, his own mother Anna and Junior Pagur when the victim arrived at the compound around 8.30 a.m. She went up to the canteen and bought some chewing gum. She came down and was asking the accused for Lindsay when Didimus came along and offered to take her to Lindsay's house and then led her away past the SDA Church area into the bush. He denied following the victim and Didimus and said that he was still at the gambling area when he was informed of the trouble an hour later by people on the other side of the compound. He then left for town. He admitted being apprehended and bashed up by the victim's father as he was passing by their house and subsequently being taken to the police station.
  8. During cross examination the State put to the accused's attention a Pre-Sentence Report (PSR) where he purportedly made certain incriminating statement as to his involvement in the alleged crime. This document was handed up and marked for identification only (MFI No.1) but was never tendered into evidence and will not therefore be admitted. The purpose of marking an exhibit for identification is for it to be properly tendered later through a witness for the party seeking to have it so marked. To admit such an exhibit into evidence, without it having been properly tendered through a witness, would be prejudicial to the accused. As such all exhibits marked for identification must remain outside the evidence properly before the court.
  9. Priscilla Sirut testified that on the date and time in question she was gambling with others at the compound when the victim whom she did not know arrived. There were a lot of people around. She saw the victim go up to the canteen. When she came down she went straight to Didimus Borah and asked him for her schoolmate. She said she was about 7 meters from where they were. The accused was about a meter from her (Priscilla) also gambling. She then heard Didimus tell the victim that he knew where Lindsay's house was and asked her to follow him.
  10. As Didimus was leading the victim away towards the SDA Church area and to a track into the bush Priscilla said she suspected that Didimus would do something bad to the girl so she called out after Didimus saying "Didimus, Didimus! Bring that girl back!" and at the same time waving the girl back. Both Didimus and the girl looked back and she said she waived at the girl and shouted "You! Come back!" but she did not respond and Didimus continued on with her. She said she called and waved at them more than 10 times. She said in cross examination that they were approximately 50m away from where she was when she shouted at them. After that Priscilla said she left for her house some 100m away from the gambling area.
  11. Priscilla did not know where Didimus took the girl to but the next thing she knew was that the girl came back crying in the company of her uncle. She was up on a hill next to the SDA Church when the victim's uncle came back with her. Priscilla said she then confronted the victim and scolded her saying "I told you to come and you refused." She told her that she was a good girl but she did not listen to her so this is what happened to her.
  12. When asked in chief if the accused was in the gambling area when the victim was brought back by her uncle Priscilla said he was not. She again confirmed this when asked the same question during cross examination. She also said that she could not see anyone at the gambling area from her house as there were a lot of houses in between.
  13. Hobart Amos was and is still the Community Based Constable (CBC) at the New Guinea Compound. He testified that on the date in question he was in the gambling area sitting at his "table" (stall) selling rice and tinned fish when the victim arrived at the gambling area. He said she went straight to Didimus and was talking to him as if they knew each other. He confirmed that Priscilla called the girl back when Didimus was taking her away. He said that the accused was gambling just in front of him and never left the area until the girl was brought back crying by her uncle an hour or two later. He said he ran up when he heard people shouting that the girl had been raped and scolded her telling her that she was told not to follow Didimus but did not listen so this is what happened to her. Hobart said that Didimus was big headed or a trouble-maker. He also said it was the first time for him to see the victim there at the Compound.
  14. Hobart confirmed in cross examination that Didimus had a bad reputation in the community and when he was asked repeatedly why he did not do anything to prevent the girl who was a stranger there from following Didimus, even after Priscilla had called after them, this witness maintained throughout that the girl talked to Didimus as if they knew each other. While he maintained that the accused never left the gambling area he conceded towards the end that he could not possibly have noticed the accused's every movement during the whole time as he was selling his goods at the same time.

DELIBERATIONS AND FINDINGS


(i) Alibi
  1. So was the accused present at the scene of the crime or was he all the time at the gambling area? The determination of this issue boils down to the question of who to believe. Should I believe the victim or the accused and his alibi witnesses?
  2. I have considered the competing evidence and have observed the witnesses. The victim remained calm and collected throughout her testimony and did not waiver even under intense cross examination. She seemed really positive about her identification of the accused. He was but a meter behind her prodding her along with a short stick and telling her to continue walking until they came to the garden where he stood watching while Didimus was sexually penetrating her. The ordeal lasted about half an hour and after Didimus had finished, the accused even walked back with them before he disappeared. In those circumstances and given the fact that this was in broad daylight there seems to be no question of mistaken identity at all here. And the victim's positive identification of the accused 2 days later bolsters her evidence that he was present at the scene of the crime. But what about the accused's alibi?
  3. There is no question that the accused was present at the gambling area when the victim arrived. There is no question that he was playing a game of chance called "hire." He said that he was playing with his mother Anna Otma, Hobart Amos, Priscilla Sirut and Junior Pagur. But Hobart Amos and Priscilla Sirut who gave evidence for him did not say that they were playing with him though Priscilla did say that she was gambling too. Hobart on the other hand said he was sitting at his table selling rice and tinned fish and other items while the accused was gambling with others in front of him.
  4. So was the accused at the gambling area all the time? Priscilla Sirut said that he was not around at the gambling area when the victim was brought back crying by her uncle. Hobart Amos said he was but conceded that he could not have accounted for the accused's every movement when he was busy selling goods or while attending to his customers. These witnesses did not impress me at all as witnesses of the truth. Yes they are not related to the accused but they live in the same compound and obviously have known and still know each other well.
  5. Hobart Amos was particularly evasive and seemed altogether oblivious to his duty as the keeper of the law in his community. Not only did he turn a blind eye to the illegal gambling that was happening right before his eyes but he also allowed a school girl and a stranger at that, to be led away into the bush by someone he knew and admitted as having a bad reputation. He did not as much as raise an eyebrow to assist the girl even after Priscilla called at Didimus and the girl, if ever she did. Hobart's evidence cannot be believed and his demeanour on the witness stand was not impressive at all.
  6. Mr. Moses suggested and in fact put to the victim that she was not a virgin at all based on observations from the Medical Report. He also made reference to the fact that the examining officer did not observe any bleeding by the victim and that her hymen was missing and had old tears at various positions. These he said put into question the veracity of her evidence. To this I say that it does not matter if the victim was a virgin even if it can be proved that she has had prior sexual intercourse because if she was under 16 years she is deemed incapable of consenting. As to bleeding the Medical Report does indicate that "a few red blood cells" were observed under microscopic examination.
  7. So on the issues of whether the accused was at the scene of the crime, and if so, whether he aided and abetted Didimus when he sexually penetrated the victim, I make the following findings and reasonable inferences of fact:
  8. Based on the above findings I am therefore satisfied beyond reasonable doubt that the accused was present when Didimus Borah sexually penetrated the victim. I am satisfied that Didimus had the necessary intention to sexually penetrate the victim. This can be ascertained from the fact that he led the victim into the bush on the pretext of taking her to her classmate's house and further by his threats to the victim if she did not accede to his demands. He further manifested his intention by pushing the victim to the ground and removing her skirt. I am also satisfied beyond reasonable doubt that the accused by his conduct and words aided or assisted the said Didimus Borah in the act of sexually penetrating the victim.
(ii) Proof of Age
  1. Now this leads me to the next issues which touch on the second element of the charge - Was the victim under the age of 16 years and if so did the accused know or ought to have known that she was?
  2. The victim testified that she was born on 16.02.94. This is technically hearsay. However, this was confirmed by her mother Penny Suma who later testified that she gave birth to the victim at the Popondetta General Hospital at 6.00 p.m. on 16.02.94. Therefore the victim's evidence when taken with the subsequent oral testimony of her mother falls within the exceptions to the rule against hearsay.
  3. It must be stated quite clearly the date of birth must be proved beyond reasonable doubt. Section 57 of the Evidence Act Ch. 48 provides that a certificate of birth, marriage or death in the country, in a state or territory of Australia or the United Kingdom or a member state of the Commonwealth of Nations, if it purports to be issued by the officer authorized by the law of the place concerned is evidence of the matters stated without proof of the seal or stamp or signature or of the official character of the person appearing to have signed it'.
  4. However, in the absence of any evidence or if the evidence is insufficient to determine the age of a person the court may determine the question itself after seeing the person (Section 63 of the Evidence Act).
  5. Mr. Moses argued strongly that the victim's mother's evidence cannot be believed in the absence of a proper birth certificate or the victim's ante and post natal clinic book. When the witness was asked if she had her daughter's clinic book she produced an old note book. This was not a hospital issued clinic book but it bore a record of the birth and immunizations received to the victim after birth. The book was old and seemed authentic. It was, however, only marked for identification (MFI No.2) and could not therefore be admitted into evidence. It seems that Mr. Tamate was not aware of the existence the note book but if he did it is not known why it was not tendered through the witness before she was subjected to cross examination.
  6. But does this render the State's evidence completely unreliable? I do not think it does. The victim's mother was quite positive that she gave birth to the victim on 16.02.94 at 6.00p.m. It has not been shown to me that she was mistaken or telling a lie for that matter. I therefore accept that the victim was indeed born on 16.04.94 thus making her 13years 2 months and 11 days at the time of the offence. Does this, however, seal the case for the State?
  7. As we have seen the offence under consideration is not one of strict liability. The State must also prove beyond reasonable doubt that the accused intended to sexually penetrate and in fact penetrated her and at the relevant time he knew or ought to have honestly and reasonably knew that the victim was under 16 years of age or negative it if the accused indeed had such a belief.
  8. Where the accused is charged for aiding or supporting an accomplice but did not physically sexually penetrate the victim, as in this case, the State must still prove beyond reasonable doubt that he knew or ought to have honestly and reasonably known that the victim was under the age of 16 years. As this defence would lie under Section 25 of the Code the belief must therefore be both honest and reasonable. The test for an honestly held belief is a subjective one while reasonableness requires an objective test. (R v Yoka Kiok (1970) N607)
  9. It appears that both counsels did not advert their minds to this import point. Perhaps if Mr. Moses did not abandon the defence of mistake of fact that he briefly tried to raise the matter would have remained in their radar, so to speak. Be that as it may, this does not excuse the State from its duty to prove not only the age of the victim but also knowledge by the accused that the victim was under 16 years of age when he assisted and aided Didimus Borah when he sexually penetrated her. The Court is not assisted in any way when such an important aspect of the charge was not put to the accused by the State or his lawyer for that matter. And it is a matter that must not treated lightly by the Court for that matter because it involves a constituent element of the charge under Section 229A.

VERDICT


  1. Therefore while it has been proven that the victim was under the age of 16 years and the accused aided and supported Didimus Borah when he sexually penetrated the victim, I must unfortunately acquit the accused of the charge in the absence of cogent evidence that he knew or ought to have honestly and reasonable known or believed that the victim was under 16 years. It is not sufficient that the victim was in her school uniform, for a school uniform is not something that age can be ascertained from. Evidence of the victim's physical stature, development and characteristics ought to have been adduced and this was not done nor was anything to that end put to the victim and her mother let alone the accused by the State.
  2. For the above reasons, I return a verdict of Not Guilty, acquit the accused and order that he be discharged forthwith from custody.

Ordered accordingly.


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The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused

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