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State v Ambuna [2021] PGNC 517; N9359 (9 December 2021)

N9359

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 891 OF 2018

THE STATE

V

ANDREW AMBUNA

Baisu: Toliken J.
2021: 10^th, 30^th August, 03^rd September, 09^th December

CRIMINAL LAW – Practice & procedure – Particular offence – Sexual penetration of a child under age of 16 years – Trial – Defence – Mistake of age – Onus on accused to show on the balance of probabilities – State to negative belief beyond a reasonable doubt – Test for mistake of age – Objective test - Not on physical attributes of complainant or that her vagina is able to admit accused’s penis or that she was in school uniform – Reasonable belief must be predicated on complainant’s chronological age – Criminal Code Ch. 262, s 229A (1).

PRACTICE & PROCEDURE – Consent – Not an element of offence – Corroboration no longer required – May be required in certain cases – Criminal Code ss 229F, 229H.

PRACTICE & PROCEDURE – Evidence - Birth Certificate – Official copy of - Court to take judicial notice of signature and Common Seal of Registrar General - Official Copy evidence of matters stated therein – Challenge to tender into evidence misconceived - Civil Identification Registration Act 2014, ss 4, 22.

PRACTICE & PROCEDURE – Evidence – Complainant physically big with well-developed breasts – Thirteen years old at time of offence – In school uniform on occasions – Four months relationship – Accused and complainant discussed sex over phone, met physically, kissed and hugged on separate occasions prior to act of penetration - Accused believed complainant to be 16 years or older - State did not put to accused that he did not advert his mind to chronological age of complainant – Burden to negative that belief was reasonable not discharged – Verdict – Not Guilty.

Cases Cited:

R v Ulel [1973] PNGLR 254
R v Wanigu [1973] PNGLR 330
The State v Banaba (2020) N8495
The State v Muia (2019) N7959
The State v Otma (2013) N5451
The State v Kapi Jas (2010) N4013

Counsel:

E Thomas, for the State
D Pepson, for the prisoner

VERDICT

09^th December 2021

1. TOLIKEN J: The accused stands accused of sexually penetrating a child under the age of 16 years, an offence under Section 229A (1) of the Criminal Code (the Code).
   

ALLEGATIONS

2. It is the State’s allegation that on Monday 25^th April 2016, the accused, a serving policeman attached to the Public Safety Division at the Mt. Hagen Police Station, met the complainant, then 13-year-old Lonzee Wek in town. They took a PMV bus to Kagamuga Airport and then proceeded to the Airport Souths Home Guest House where the accused said he was to meet a friend.
   
3. At the guest house, the accused paid for a room, and took the complainant in. Once inside, the accused requested to have sex with the complainant and undressed. He then forcefully removed the complainant’s clothes, lay on top of her and attempted to insert her penis into her vagina. The complainant initially resisted as her vagina hurt but the accused overpowered her and had intercourse with her by inserting his penis into her vagina until he ejaculated. He attempted to have sex with her a second time, but she refused, got dressed and left the room. The complainant got pregnant resulting in the arrest of the accused.
   

PLEA

4. The accused did not deny sexually penetrating the complainant. He, however, raised the defence of reasonable belief that the complainant was 16 years old or older or mistake of age.
   

ISSUE

5. The only issue then for the court to determine is whether the accused believed on reasonable grounds that the complainant was 16 years old or older.
   

THE LAW

The Offence

6. Section 229A (1) of the Code relevantly provides for the offence of sexual penetration of a minor 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) ...

Elements

7. The State must prove the following elements of the charge beyond a reasonable doubt to secure a conviction –
   
   • (1) The accused.

(2) Penetrated the complainant by inserting his penis into her vagina.

• (3) The complainant was under the age of 16 years.
  

8. Where the accused raises a defence, the State must negative the defence beyond a reasonable doubt as well. In the instant case the prosecution must also negative beyond a reasonable doubt that the accused reasonably believed that the complainant was 16 years old or older.
   

Consent

9. For sexual offences against children, consent is not a defence pursuant to 229F of the Code. It becomes relevant only if the accused believed on reasonable grounds that child was 16 years old or older or the child was aged 12 years or older, and the accused was no more than two years older than the child.
   

Corroboration

10. Corroboration is also no longer required. Section 229H of the Code. A person may be found guilty on the uncorroborated testimony of one witness, and a judge shall not instruct himself or herself that it is unsafe to find the accused guilty in the absence of corroboration. This does not, however, mean that the offence is a strict liability one for even though there is no need for corroboration, the State must still prove its case on the required standard. Also, there will be cases where the court will require corroboration.
    
11. Cases involving very young children, who, because of their age and vulnerability may not remember things too well or may be susceptible to manipulation by adults, and those involving persons who are mentally or intellectually challenged, may require corroboration. In such cases corroboration may come by way of a medical report or some other credible evidence. (The State v Banaba (2020) N8495)
    
12. In The State v Kapi Jas (2010) N4013, the accused was acquitted on a charge of aggravated rape. The complainant’s evidence was not corroborated nor was a medical report tendered into evidence. In acquitting the accused Cannings J held, among other things, that even though there is no longer any rule or practice for a trial court to warn itself that it is unsafe to convict an accused of rape on the uncorroborated testimony of a complainant, this was a case that required corroboration as there was no medical report or other evidence to support the complainant's version of events and she was not an obviously reliable witness.
    

THE EVIDENCE & FINDINGS

13. At this juncture I wish to say that I do not wish to canvas the oral testimonies of witnesses including that of the accused in any great detail. This is because the issue is pretty a narrow one – whether the accused believed on reasonable grounds that the complainant was aged 16 years or older. I will therefore focus and direct my mind only on the events which happened prior to and at the time of the act of penetration.
    
14. The following are largely undisputed. The complainant was born on 29^th June 2002 at the Mt Hagen General Hospital. She was therefore 13 years, 1 month 27 days old at the time of the alleged offence. A copy of her Birth Certificate, which Mr. Pepson unsuccessfully attempted to challenge and keep out of the evidence attested to that. The complainant’s mother also confirmed that she in fact gave birth to the complainant on the said date. In any case the challenge to the tender of the Birth Certcate was misconceived as it bears the signature and Common Seal of the Registrar General for which the Court is obliged to take judicial notice of. It is an official copy of the certificate and is for all purposes evidence of the facts stated therein. (Section s 4 & 22 of the Civil Identification Registration Act 2014, formerly the Civil Registration Act 1963)
    
15. It is also not disputed that at the time of the offence the complainant was doing Grade 7 at Tarangau Primary School in Mt. Hagen City. It is not disputed either that the complainant lived at the Kimininga Police Barracks with her parents as her father was serving policeman.
    
16. The accused, who was single then and had just moved to Mt Hagen after passing out of Bomana Police Training College, also resided at the Single Barracks at Kimininga Barracks. I accept that he was also temporarily looking after a colleague’s room at a guest house at Tarangau within the vicinity of Tarangau Primary School at around the same time he developed the relationship with the complainant.
    
17. The complainant first encountered the accused on 11^th December 2015 when he made passes at her, but she ignored him. The next day the accused passed a note to the complainant through a boy wherein he supplied the complainant with his phone number. Some days later they then met for the first time behind the gymnasium at the barracks where the accused introduced himself to the complainant. He also asked if she had a phone and she said she did not. A couple of days later one Julie Daryl brought her a phone which she said the accused bought for her.
    
18. By January 2016 they met a few more times and soon developed a boyfriend/girl relationship. They talked on the phone and exchanged text messages and discussed sex. They would meet behind the gymnasium and hug and kiss. This was during the Christmas break hence the complainant would not have been in uniform. The relationship continued until the incident on the 26^th April 2016. By then school had started and obviously she would have been in uniform during the school days.
    
19. On 26^th April 2016, a Monday (and not a Friday as stated by the complainant in her evidence in-chief), the accused met the complainant at the bus stop after she had finished from school. He got her to get on the bus with him to Kagamuga purportedly to visit a friend. He, however, took her to the Airport Souths Guest House. He paid for a room there and took the complainant into the room. Once inside he sexually penetrated her.
    
20. There is no doubt that the accused sexually penetrated the complainant on 26^th April 2016 at the Airport Souths Home Guest House. The evidence by the complainant that she resisted and did not consent to the act or that the accused forcefully removed her clothes before penetrating her vagina with his penis is, however, of no consequence because consent is not an element of the offence. Also, such evidence has no probative value on the central issue before the court which is the accused’s belief that she was 16 years old or older. Along the same vein, everything that happened consequently after the 26^th of April is also not relevant to the issue.
    
21. It is not disputed that the complainant, despite her age, was physically big with well-developed breasts. The complainant’s mother Clarissa and the complainant herself attested to that. It is also not disputed that the complainant’s and the accused’s relationship subsisted for about 4 months, two of which were during first school term of 2016. At no time did the State put to the accused he did not enquire about the complainant’s age nor that the complainant did tell him that she was only 13 years old for that matter.
    
22. Furthermore, while they lived at the Police Barracks – the accused at the Single Barracks and the complainant with her parents at the married quarters – there is no evidence that the accused knew or had any knowledge of the complainant’s family except perhaps that the complainant’s father was also a policeman.
    

DELIBERATIONS

23. And so, given those facts and circumstance, could the accused have indeed reasonably believed that the complainant was 16 years old or older?
    
24. Since the accused raised the defence of mistake of age, it is incumbent on him to show on the balance of probabilities that he believed on reasonable grounds that the complainant was 16 years old or above. (R v Ulel [1973] PNGLR 254). In R v Ulel (supra) it was held that regard must be had “for the society in which the parties lived and for the fact that one could not expect people in that society to have any real appreciation of chronological age as opposed to apparent physical maturity as a test of maturity.” It is, however, not sufficient that the accused believed that the girl was big enough to admit of sexual intercourse without sustaining physical harm or that she was old enough for marriage in custom. The accused’s reasonable belief must be as to her chronological age. (R v Wanigu [1973] PNGLR 330)
    
25. In The State v Muia (2019) N7959, a case involving parties who were related and lived in the same hamlet and interacted daily for 3 years, and where the accused raised the defence on the basis that the complainant had well-developed breasts, wore a bra and no difficulty admitting his penis into her vagina, I said the following when convicting the accused –
    

20. ... the accused simply thought that the complainant was big enough for sex because she had well developed breasts, was wearing a bra and he had no difficulty in inserting his penis into her vagina. He admitted in cross-examination though that he did not ask the accused about her age.

21. And so even if we were to accept that people in rural communities such as the parties’ in this case do not have a real appreciation of chronological age, any belief that the girl was 16 or over the age of 16 years because she had well developed breasts and wears a bra cannot be held to be reasonable given the fact that the girl had spent no less than 3 years in the accused village. ... the accused would not have in those circumstances reasonably believed that she was 16 years or older. That the complainant’s vagina was able to accommodate the accused’s penis with ease is not a test for the defence of mistake of age at all. One cannot start thinking about whether the girl is of age or not while penetrating her. An accused must advert his mind to the question of age prior to penetrating a victim.

26. In The State v Otma (2013) N5451, the accused was charged as an accomplice of a person who sexually penetrated a schoolgirl in uniform who was under the age of 16 years. While finding that the accused was indeed in the company of the perpetrator when he penetrated the complainant, and hence was captured by Section 7 of the Code, and that there was ample evidence that the complainant was in fact below 16, I nonetheless acquitted the accused on the basis that the prosecution did not discharge its burden of negativing reasonable belief that the girl was 16 years or over. The defence there was one of mistake of fact under Section 25 of the Code where the belief must be both honest and reasonable. Pertaining to the fact that the complainant was in school uniform when she was penetrated, I said there at para. 63 –
    

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.

27. Now, a belief that the complainant was 16 years or older under Section 229F of the Code does not need to be honest. It only needs to be reasonably held. The test therefore is the objective reasonable man test – the question being - would a reasonable man, placed in a similar situation and faced with circumstances surrounding this case have believed that the complainant, albeit it in school uniform, was 16 years old or older.
    
28. Granted, the circumstances which confronted the court in R v Ulel (supra) may not now hold true generally, given the advances we, as a society have made since then, and the fact that a good number of our people now live in towns and cities. However, the test remains – that the belief must be predicated on chronological age and not solely on the physical attributes of the complainant. Physical characteristics of the complainant only reinforce the belief.
    
29. That said, I must, however, reiterate that the fact that the complainant would have been in school uniform on some of the occasions in which she had encounters with the accused, would not on its own, be sufficient to hold that a reasonable man would have concluded or believed that the girl was under 16 years of age or older. However, where a schoolgirl in unform is physically big with well-developed breasts and engages in conduct that is not expected from a minor such as discussing sex with someone whom she has just started a relationship, this may very well lead a reasonable man to believe that she is 16 years or over.
    

CONCLUSIONS

30. The accused here believed that the complainant was older than 16 years because of her physical built and well-developed breasts coupled with the fact that she discussed sex with him over a period of time. The State has not negatived that such a belief was reasonable. It was not put to the accused that he did not advert his mind to the chronological age of the complainant notwithstanding his observations of her physical characteristics. If the State had done that then it will have satisfied the test and in so doing discharged its duty of negativing the accused’s defence beyond a reasonable doubt.
    
31. Having considered the circumstances of this case, I hold that a reasonable man would have concluded that the complainant was 16 years or older just as the accused did.
    

VERDICT/ORDERS

32. I therefore return a verdict of NOT GUILTY and acquit the accused forthwith. His bail sureties and any sureties paid by his guarantors shall be refunded.
    

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