Papua New Guinea Law Reports - 1967-68
[1967-68] PNGLR 388
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
REGINA
V.
KARIBE-PUNI
Tari
Mann CJ
21 June 1968
24 June 1968
7 August 1968
CRIMINAL LAW - Rape - Consent - Child of tender years - Criminal Code (Queensland, adopted), s. 347.
The accused was charged, inter alia, with rape. The evidence established that he had sexual intercourse with N., a girl aged at the most, thirteen years. N. gave evidence that she did not consent to the act although two Crown witnesses deposed that when they came upon the couple in the act of intercourse N. did not appear to be making any resistance. The evidence also established that the accused had on three previous occasions had intercourse with N. with her consent.
Held:
that:
(1)      The question of consent or no consent is an essential issue of fact upon a charge of rape and the onus is upon the Crown to show lack of consent.
(2)      It is not correct to say that as a matter of law a child of tender years cannot consent; it is a question of whether she did or did not and the age, mental state and social experience of a young girl are all elements to be taken into account on the question of consent.
R. v. Bradley (1910), 4 Cr. App. R. 225; R. v. Harling, [1938] 1 All E.R. 307, 26 Cr. App. R. 127; R. v. Howard, [1966] 1 W.L.R. 13, 50 Cr. App. R. 56, referred to.
Criminal Trial.
The facts appear sufficiently from the judgment.
Counsel:
Aoae, for the Crown.
Luke, for the accused.
Cur. adv. vult.
7 August 1968
MANN CJ:  The accused was charged upon two counts. They both referred to incidents allegedly taking place on 15th March, 1968, and were relied upon in the alternative. The first count alleged that the accused committed rape on one Nagai-Mabi and a plea of Not Guilty by counsel by leave, pursuant to s. 601A of The Criminal Code, was entered. The second count alleged that the accused unlawfully and indecently dealt with Nagai, a girl under the age of fourteen years.
There was a great deal of conflict in the evidence given by the persons most directly concerned. I am satisfied that a good deal of this evidence was untrue, the motivation for departing from the truth apparently arising from the somewhat peculiar background situation of the persons involved.
The accused, Karibe, had been employed as a native missionary by one of the missions established in the area, but had only been himself baptized for twelve months, and it would appear that his main function was to act as “contact man” in the remote area in which the mission was not yet fully established.
He stated in evidence that he did give instruction to classes of persons who wished to join the mission and become baptized. It is clear that a person in the position of the accused would in many respects gain substantial influence and prestige amongst the people with whom he worked, and might readily expect gifts and favours of all kinds from the people.
Karibe was himself married and had one child. His wife gave evidence on behalf of the accused, from which it appeared that over a considerable period of time Nagai was bringing to the accused gifts of food from her father, who doubtless hoped to gain from the establishment of friendly relations with the mission. There were repeated suggestions that Nagai had been sent across to the house of the accused on many occasions to cook for him, and that her father, Mabi, had promised Nagai to the accused in marriage. Mabi and his wife strongly denied any such suggestion, and denied a number of transactions which were said to be related to such a prospective marriage.
The wife of the accused said that she had no knowledge of any prospective marriage between her husband and Nagai and said that she would have objected to it. She suspected that her husband might have intended to marry the girl, but, if so, he had kept it secret.
The accused himself said that it was well known amongst the local people that he was to marry Nagai, but he admitted that he had told nothing of this either to his wife or to the mission, but said he intended to tell them afterwards.
Nagai, in her attitude towards the wife of the accused, apparently created in the mind of the latter an impression that she was fond of the accused and hoped to marry him, but nothing specific was said to her on the subject. She did herself, however, tell Nagai that she was visiting their home far too much and bringing too many gifts for the accused, and she told her to stay away.
In this area, as in many others, the practice of men marrying several women has been widespread, and it often appears to be regarded as solely the husband’s business, so that he is under no obligation to consult his earlier wives and obtain their concurrence. This may be because wives are primarily a source of wealth and prestige for their husbands. The possession of several wives at one time by many local inhabitants poses difficult problems for a mission entering the area for the first time. When directed to make a choice of one and send the others away, as a condition precedent to membership of the mission, the greater hopes and expectations of the younger or youngest wife not infrequently lead to a situation where the elder or eldest is later encountered in the criminal jurisdiction charged with homicide.
The frequency of such a situation, however, could not afford any justification to the accused in the present case, for on no view of native custom could a baptized missionary regard it as proper for him to acquire a second wife at that time. Hence the deception practised by the accused in his dealings with his wife, the mission, and on at least some points, as I suspect, the Court.
In giving evidence on his own behalf, the accused spoke with much apparent force and conviction, and although he tried to justify his behaviour, he established to my satisfaction that he is of poor and unreliable character. He seemed to me to be a calculating opportunist.
The Crown case was weak in some aspects, because the parents, as well as the wife of the accused, tried to maintain a position of respectability in spite of some situations which could not be satisfactorily explained. In spite of much conflict on some points, I am satisfied beyond reasonable doubt on the following points:
(1)      The accused had sexual intercourse with the girl, Nagai, on or about the date in question, at a watering place not very far from her parents’ home. The parents were not there at the time.
(2)      Shortly before the act of intercourse took place, the accused went to the house of Nagai’s parents and asked where the parents were. He was told by Nagai, in the presence of two witnesses, that they had gone away for a few days. Upon hearing this, the accused made a gesture to Nagai, which was not observed by the other two women. It consisted of elaborately pointing and beckoning in the direction of the watering place which was familiar to Nagai, and at which she had apparently on at least one or two occasions previously met the accused.
(3)      Nagai, shortly after this gesture and after the accused had gone, told the other women that she was going to fetch some water, and she voluntarily went alone down the path where she expected to meet, and did meet, the accused.
(4)      The other two women, being concerned at Nagai’s absence for longer than was necessary to fetch the water, came down to look for her and found her on the ground, with the accused, in the act of intercourse and without making any noticeable resistance.
(5)      Interrupted in this fashion, the accused asked the two witnesses not to tell anybody about what they had seen and promised to give them money if they did not tell. The accused told the Court that he did not in fact give them any money because they did tell. Nagai was herself very embarrassed and walked away at first, but turned and came towards the two witnesses and accompanied them home. At some later stage she told the story that the accused had placed a sharp knife across her throat and threatened her and compelled her to submit to intercourse.
(6)      That the girl is under the age of fourteen years, her most probable age being about twelve or thirteen at most.
I cannot be satisfied that Nagai did not consent to having intercourse with the accused. She was quite old enough to understand thoroughly, and she certainly knew and understood what was going on. In spite of the doubts raised by the medical evidence, I accept the statement of the accused that he had on three previous occasions had intercourse with Nagai with her consent and approval. It is not without importance that although she was young, she would not necessarily be regarded by her own people as too young for marriage and here, as in other areas, premarital intercourse would be extensively practised, at least by many people, sometimes even with the knowledge of other people. The real barrier to the marriage of the accused to Nagai was that he had neither money nor pigs, and his relatives were most unlikely to help. He had made a token present to Mabi of one rooster but clearly hoped to acquire Nagai on credit.
One curious disadvantage of the situation in which such a prospective second wife finds herself, is that the offence of adultery, which only applies to native people, would be a handicap in the course of her premarital activities, because in her own case the prospective husband would be already married, and she might easily be charged with adultery by the first wife if found out.
The accused would at least have a full understanding of this risk, since he had been convicted of adultery a few years before, but in his case the situation arose when he was not married, but the woman concerned was.
Harling’s case[cdlxxx]1 involved a charge of rape under the Criminal Law Amendment Acts of 1885 and 1922, as in force in England. The trial judge in his summing up said that a child of 13 ½ years in the eyes of the law cannot consent, so that no question of consent arose. However, the remaining elements of the offence as applicable in England were put to the jury as comprising carnal knowledge and force. The Court of Criminal Appeal made it clear that absence of consent is always an essential element in a charge of rape and that, even in the case of a child, lack of consent must be established by the Crown. Hence the observation of the trial judge to the effect that depending on the age not much more would need to be proved in some cases to establish that the girl did not consent.
In the Territory, where social conditions and experience of quite small children may be very different from those found in England, this obiter dictum must be regarded with a good deal of caution. It is clear from the decision of the Court of Criminal Appeal that an inference that there was no consent, on the facts of a particular case, can only be an inference of fact and in no sense a presumption of law. It requires evidence to establish the fact.
It is clear that the Court of Criminal Appeal strongly departed from the views expressed by the learned trial judge and found it desirable to restate the law on the question of consent. The Appeal Court reached its conclusion by drawing the inference of fact that there was no consent, yet making it clear that such a conclusion required proof. In Harling’s case[cdlxxxi]2 this conclusion of fact was supported by evidence that the child had resisted. Thus, on the facts of that particular case, the Court of Criminal Appeal reached a conclusion similar to that of the learned trial judge, who had put aside the question of consent on account of the child’s age, and put the case to the jury as one depending on the question of whether force had been used. The authoritative part of the report is the restatement by the Court of Criminal Appeal that the issue of fact as to consent or no consent is an essential element in a charge of rape.
The case of John Alfred Bradley[cdlxxxii]3 again makes it clear that in a common law jurisdiction the element of consent is essential. There a conviction for rape was set aside because on the particular facts of the case it appeared to the Court of Criminal Appeal that the jury had not been adequately directed as to the law and might have been led into error by inferring lack of consent where the evidence was equally consistent with consent. It was also a case where much depended on the element of force.
Under The Criminal Code in force in Papua, s. 347 gives a statutory definition of the crime of rape. It does not specify that force is a necessary element, except in cases where actual consent is obtained by force, or by other specified means. The prime elements specified in the section are carnal knowledge and lack of consent.
The case before me at present is one in which although there was medical evidence of minor injury, the extent of that injury was no more than a natural consequence of the age and physical characteristics of the girl, and would not support any inference having any bearing on the question of consent. Nor is the girl so young as to give rise to any inference of fact which would support the allegation that she did not consent.
In these circumstances, the accused cannot be found guilty of the crime of rape and accordingly I find him not guilty on that charge.
[His Honour then considered alternative verdicts and found the accused guilty of unlawful carnal knowledge of a girl under the age of fourteen years. He later added the following note to his judgment.]
Note: Since preparing the foregoing judgment, I have been referred to the case of R. v. Howard[cdlxxxiii]4. At first sight the report appears to support the obiter dictum of Hilbery J. in Harling’s case[cdlxxxiv]5 previously referred to. The Court of Criminal Appeal, however, affirmed the restatement of the law quoted from the decision of the Court of Criminal Appeal in Harling’s case[cdlxxxv]6.
From the judgment of the Court of Appeal in Howard’s case[cdlxxxvi]7, it is clear that the question of consent or no consent is an essential issue of fact and the onus is on the Crown. It is not correct to say that as a matter of law a child of tender years cannot consent. It is a question of whether she did or did not. It is otherwise in the case of other offences involving unlawful carnal knowledge or indecent dealing with young girls because in those cases lack of consent is not an element of the offence.
In Howard’s case[cdlxxxvii]8, which was a case of rape at common law, there was no evidence suggesting that she did consent by words or by conduct and the Court of Criminal Appeal held that on this question of fact it would have been idle for anyone to suggest that a girl of that age, that is six years, had sufficient understanding and knowledge to decide whether to consent or resist. Any show of resistance is important at common law on the question of whether force was used, but it is equally important as evidence of non-consent. Similarly the age, mental state and social experience of a young girl are all elements to be taken into account by the tribunal of fact on the question of consent.
Since there can be no fixed borderline so far as age is concerned when considering the issue of consent in a charge of rape, caution must be exercised in applying what appears to be a legal principle as it was stated by the trial judge in Harling’s case[cdlxxxviii]9. Of course, the younger the girl the stronger the weight of evidence tending to negative consent, but in every case the onus of proof, however slight in the circumstances, must be carried by the Crown.
Verdict: Not Guilty of rape. Guilty of carnal knowledge of girl under age of fourteen years.
Solicitor for the Crown: S. H. Johnson, Crown Solicitor.
Solicitor for the accused: W. A. Lalor, Public Solicitor.

[cdlxxx][1938] 1 All E.R. 307; 26 Cr. App. R. 127.
[cdlxxxi][1938] 1 All E.R. 307; 26 Cr. App. R. 127.
[cdlxxxii](1910) 4 Cr. App. R. 225.
[cdlxxxiii][1966] 1 W.L.R. 13; 50 Cr. App. R. 56.
[cdlxxxiv][1938] 1 All E.R. 307; 26 Cr. App. R. 127.
[cdlxxxv][1938] 1 All E.R. 307; 26 Cr. App. R. 127.
[cdlxxxvi][1966] 1 W.L.R. 13; 50 Cr. App. R. 56.
[cdlxxxvii][1966] 1 W.L.R. 13; 50 Cr. App. R. 56.
[cdlxxxviii][1938] 1 All E.R. 307; 26 Cr. App. R. 127.