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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO 438 0F 2009
THE STATE
V
A JUVENILE, "RM"
Madang: Cannings J
2010: 14, 15 April, 13 May
VERDICT
CRIMINAL LAW – trial – engaging in act of sexual penetration with child under age of 16 years, Criminal Code, Section 229A(1) – circumstances in which consent is a defence – Criminal Code, Section 229F.
The accused, a 17-year-old boy, was charged with an offence under Section 229A(1) of the Criminal Code: engaging in an act of sexual penetration with a child under the age of 16 years. He was 16 years old at the relevant time and the complainant was a 15-year-old girl. The accused pleaded not guilty. He agreed that he sexually penetrated the complainant but raised the defence of consent.
Held:
(1) The two elements of an offence under Section 229A(1) are that:
(2) It is a defence under Section 229F that the child consented if: (a) the accused believed on reasonable grounds that the child was aged 16 years or older; or (b) the child was aged 12 years or older, and the accused was no more than two years older than the child.
(3) If the accused brings evidence in support of a defence under Section 229F the State must disprove one or more elements of the defence beyond reasonable doubt.
(4) Here, the two elements of the offence were undisputed and the accused gave evidence that the child consented and it was undisputed that the child was aged 12 years or older, and that the accused was no more than two years older than the child. It was therefore incumbent on the State to prove beyond reasonable that the child did not consent.
(5) Though consent is not expressly defined for the purposes of Section 229F it makes sense to apply the definition of consent in Section 347A (meaning of consent) of the Criminal Code: free and voluntary agreement.
(6) The State proved beyond reasonable doubt that the child did not freely and voluntarily agree to be sexually penetrated by the accused. She did not consent.
(7) The defence of consent failed and the accused was found guilty as charged.
Cases cited
The following cases are cited in the judgment:
The State v James Yali (2005) N2988
The State v Jeffery Supunau (2010) N3919
The State v Peter Eddie (No 1) (2009) N3782
TRIAL
This was the trial of an accused charged with engaging in an act of sexual penetration with a child under the age of 16 years.
Counsel
N Goodenough, for the State
A Turi, for the accused
13 May, 2010
1. CANNINGS J: This is a juvenile case. The accused, "RM", is 17 years old. He is charged with committing an offence under Section 229A(1) of the Criminal Code: engaging in an act of sexual penetration with a child under the age of 16 years. The State alleges that RM committed the offence on 28 January 2009 when he was 16 years old. The child, a girl called "J" – the complainant – was 15 years old at the time. The State says that at 2.00 pm in the vicinity of the place where he lived, RM met J, took her into the bush and sexually penetrated her by introducing his penis into her vagina.
2. The accused pleads not guilty. He agrees that he sexually penetrated the complainant but says that she consented. The State accepts that the defence of consent can be available to the accused, given his age and the age of the complainant, but argues that there was, in fact, no consent.
ELEMENTS OF THE OFFENCE AND THE DEFENCE OF CONSENT
3. Section 229A(1) (sexual penetration of a child) of the Criminal Code states:
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.
4. The two elements of an offence under Section 229A(1) are that:
5. The defence of consent is available in limited circumstances under Section 229F (misleadingly entitled 'consent no defence'), which states:
Subject to Section 229E, it is not a defence to a charge under this Division [Division IV.2A: Sexual offences against children] that the child consented unless, at the time of the alleged offence—
(a) the accused believed on reasonable grounds that the child was aged 16 years or older; or
(b) the child was aged 12 years or older, and the accused was no more than two years older than the child.
6. The effect of Section 229F is that it is a defence to a charge under Section 229A(1) if:
7. As to who bears the onus of proof as to a defence under Section 229F – does the State have to disprove the defence? Or does the accused have to prove the elements of the defence? – I consider that the proper approach was set out by Makail J in The State v Peter Eddie (No 1) (2009) N3782: if the accused brings evidence in support of a defence under Section 229F the State must disprove one or more elements of the defence beyond reasonable doubt.
8. Consent is not expressly defined for the purposes of Section 229F but, in my view, in order to bring a consistent approach to the concept of consent as it is used in different provisions of the Criminal Code, it makes sense to apply the definition of "consent" in Section 347A (meaning of consent) of the Criminal Code: it means free and voluntary agreement.
UNDISPUTED FACTS
9. These are:
10. The effect of these facts is that:
DID THE COMPLAINANT CONSENT TO ENGAGE IN AN ACT OF SEXUAL PENETRATION WITH THE ACCUSED?
11. Determination of this issue requires:
EVIDENCE FOR THE STATE
12. It consisted of:
Evidence of the complainant's mother, "S"
13. S said that on the afternoon of the incident her daughter, J, accompanied her to town to do some shopping. After they had done some shopping she sent J back to the house but when she (S) went back to the house J was not there. S and her husband became worried as J seemed to be missing. She and her husband did not allow J to move around freely as she was only 15 years old.
14. J eventually turned up and her father asked her where she had been. J did not answer him at first so her father hit her with a rubber hose but then she said that RM had taken her and done something to her. J told them what had happened.
15. She, S, was upset about what RM had done so she went to his house, which is close by, and hit him on his bottom with a piece of timber. S said that J was too young to have a boyfriend. She and her husband would not have approved of her having a boyfriend. But RM was not J's boyfriend, said S.
Evidence of the complainant, "J"
16. J said that she knew RM as he lived in the same area as her. She denied that he at any time was her boyfriend. On the day of the incident she got word that he wanted to see her so she went to meet him at a spot near the local school. He told her to follow him into the bush. She said no as she was scared but he forced her by placing an open hand across her chest, so she followed him.
17. Once inside the bush he told her to remove her clothes. She said no but he kept insisting, saying 'you will sleep with me'. She continued to say no but he forced her to remove her clothes and he pulled down the zipper of his trousers, pulled out his penis, lay on top of her and penetrated her vagina. The incident did not take long, perhaps a minute, he was in a rush, he penetrated her, then pulled up his trousers and left. After that happened she put on her clothes and went back to the house. Her parents asked where she had been and she told them what RM had done to her. The only reason she had sex with RM was that he forced her to.
18. In cross-examination J said that she was away from the house from 2.00 to 3.00 pm. She went to meet RM as he rang her. She knows him as they had been going to the same school. She also knows RM's friends, G and M, who gave evidence in this case, but denies that G and M would think that she was RM's girlfriend as she never was his girlfriend. She did not tell anyone she was going to meet RM. She was aware that he was leaving the next day to go to school, to do his grade 11, in another part of the province.
19. She walked to a spot next to the school. She went there, expecting that RM would say good things to her. She denied giving him signals that they should go to another spot to avoid being noticed by teachers who were doing in-service training at the school or washing her legs at a tap or asking him to follow her or sitting down to talk with him or kissing him. She said that it was him who wanted to kiss her. She resisted but he was strong and kissed her and then penetrated her.
20. It was correct that when she went back home and her parents asked where she had been she did not answer at first and that is when her father hit her. Her mother and father were cross and went around to RM's house to confront him but she did not go with them.
21. It is also correct that her parents disapproved of her having a boyfriend and that if they had found out that she had a boyfriend they would have been cross with her. She continued to deny that RM was her boyfriend. He wanted to have a relationship with her. He had asked her twice to go around with him but both times she said no.
22. Ms Turi put to her that the only reason she would not admit that RM was her boyfriend was that she was scared of her parents. J continued to deny that he was her boyfriend. 'I am telling the truth. I never befriended him', she said.
Evidence of the complainant's father, "W"
23. He is a police officer, a Senior Sergeant. RM's father is also a police officer. The families were living together in the same police barracks when the incident involving his daughter occurred. J was missing for a couple of hours and when she eventually came home he noticed that her dressing was rough and there were sugar cane leaves on her head and clothes. It looked suspicious so he asked where she had been and she replied that RM had grabbed her, taken her into the sugar field and had sex with her. He got angry as she was only 15 and belted her on the leg and bottom. J told her that RM had forcefully had sex with her. He (W) later confronted RM but RM said nothing to him.
24. In cross-examination W said that he did not allow J to have a boyfriend as she was too young. She was under age and of course he would be cross if she had a boyfriend. 'She knows that', he said. It was put to him that she only told him and his wife what happened after he hit her but W said that she told him first that she was with RM – that is when he hit her.
The accused's record of interview
25. RM admitted that he had had sex with J but said that it was with her consent. They met at a spot near the school. She kissed him and then he asked her to have sex with him and she agreed, so they had sex. He did not ejaculate and it only lasted a few seconds and they left.
Medical evidence
26. A report was prepared by a doctor at the local health centre, which indicated that J had been taken to the health centre at 6.15 pm on the day of the incident. She was attended to by a Health Extension Officer and she was regarded as a sexual assault victim. The report stated:
Examination: The attending HEO did clinical examination initially and later a doctor conducted a confirmatory examination.
Initial vaginal examination done on the day of assault revealed normal female genitalia with no bruises, laceration or active bleeding. The hymen was perforated with torn edges. A high vaginal swab was done for semen analysis and transported in Normal saline media to [the] clinic, which revealed no spermatozoa on both wet preparation and gram stain.
Confirmatory vaginal examination done on the 30th January 2009 revealed ruggedly torn hymen with infected edges. However, the upper part of the vagina showed no signs of trauma or infection.
Treatment: She was treated prophylactically for STI and unwanted pregnancy. No prophylactic treatment for HIV was given due to non-availability of drugs. However, she will be reviewed after three months for further counselling and testing.
Conclusion: A 15-year-old female with history of being sexually assaulted. Clinical examination both initial and repeat confirmatory examination showed torn hymen initially and torn hymen with infected edges respectively. Perforation of hymen means there was penetration of the vagina.
EVIDENCE FOR THE DEFENCE
27. The accused gave sworn evidence and there were two other defence witnesses.
The accused's sworn testimony
28. RM said that J was his girlfriend. They had been going to the same school for a few years and they were neighbours. He arranged to meet her near the school at about 1.30 pm. She turned up and told him to wait there as she was going to do some shopping with her parents and would later return; which is what happened. She came back and gave him instructions to avoid being seen by the teachers who were doing their in-service training in the classrooms; they walked in different directions and then met again at a different spot nearby. They sat down, telling stories and then he kissed her and then they had sex together. He wanted her to leave but she refused and instead they stayed in the bush a bit longer, telling stories. She knew that he was leaving the next day but he told her that he would come back and visit her.
29. They then got word that her parents were looking for her. He asked her what she would tell her parents and she said that she would say that she had been playing with the kids. They went their separate ways and he headed to his big sister's house. The next thing he knew was he was told to go to his own house, which he did. J's parents had found out about him and J being together and J's mother came to his house and hit him with a piece of timber until it broke. She was very angry with him and threatened to get her relatives from another province to come and sort him out. J's father also came to her house and he was also very angry. He brought lots of people with him and they assaulted him with their hands until his big sister stopped them and then he ran away and slept at a friend's place. The next day he was arrested and locked up.
30. He said that his friends, G and H – who are also J's friends – knew that he was J's boyfriend but that J's parents did not know about it. He did not force J to have sex with him, he said.
31. In cross-examination he was asked why he regarded J as his girlfriend. He said that they would talk on the phone to each other regularly and they would use their friends to pass messages between each other. They did not have a close physical relationship but on the day in question they agreed to have sex with each other. She had seen him the night before the incident and given him the indication that she would like to meet him the next day. They actually kissed each other before being interrupted when his mother came along so he expected that they would end up having sex.
32. In re-examination he said that once they were in the bush together he knew that they were going to have sex. They both agreed and they had sex. He did not force her.
Evidence of the accused's female friend "G"
33. She knows RM and J. She had been going to school with them in 2008 and living in the police barracks with them. They were all friends and neighbours. RM and J had a boyfriend/girlfriend relationship. She knew this as they both used her as a messenger to pass messages to each other.
34. In cross-examination G said that she never used to read the messages that were passed through her. However, she would often see them together, usually at the sports field. She had never seen them having sex, however. Their relationship had been going on for about four months before this incident, she said.
Evidence of the accused's male friend, "M"
35. He is a good friend of RM and is the same age as him. His father is also a police officer. They were neighbours and in school together. He thought that RM and J were having a boyfriend/girlfriend relationship. RM is his best mate and used to tell him everything. J used to often ring RM on his mobile phone. He does not know when their relationship started.
PRELIMINARY ASSESSMENT OF THE STATE'S CASE IN LIGHT OF THE EVIDENCE FOR THE DEFENCE
36. Mr Goodenough submitted that the complainant gave clear and direct evidence that she did not consent and her evidence should be accepted. The only directly contrary evidence came from the accused, however it should be rejected, he submitted.
37. It is correct that the court can find that there was no consent based on the testimony of the complainant alone. This is made clear by Section 229H (corroboration not required), which states:
On a charge of an offence against any provision of this Division, 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.
38. However, this is a criminal case and the court has to be satisfied beyond reasonable doubt. I will now address the submissions of defence counsel and other matters that are necessary to take into account in order to afford to the accused the full protection of the law required by Section 37(1) of the Constitution.
DEFENCE COUNSEL'S SUBMISSIONS
39. Ms Turi submitted that the accused's evidence should be preferred, for the following reasons:
ASSESSMENT OF DEFENCE COUNSEL'S SUBMISSIONS
1 Accused's evidence more reliable
40. Ms Turi submitted that the accused's evidence was more reliable than the complainant's. He gave his evidence clearly and calmly and the complainant had a motive for lying: she was afraid of her parents. She was not able to admit at the time of the incident that she had a boyfriend/girlfriend relationship with RM as she had already been belted up by her father and she would have received a worse beating if she had admitted that she had consensual sex with RM. Now that she was giving evidence in court she was obviously still scared of her parents, especially her father. She would be in serious trouble if she told the truth, so she was again in the position where she could not tell the truth. This came out in the way that she gave her evidence, Ms Turi submitted.
41. I have carefully assessed this submission and on the face of it is a logical submission to make. It is clear that J's parents are quite strict and were genuinely concerned about their daughter's welfare and genuinely believed that she was too young to have a boyfriend, let alone have sex. The defence had established that she may have a motive for lying. The practical effect of such a well thought out submission, however, will always depend on the manner in which the main protagonists – in this case RM and J – give their evidence. In this regard, my assessment is that J was an impressive witness. She did not give the impression of someone who was lying in order to save herself from her parents. Her demeanour was that of a witness of truth. She came across as a young girl who was perhaps a little naïve. I think that there might have been more to the strength of her relationship with RM than she was willing to admit. It may well be true that at times she gave an indication to RM that she would be willing to take her relationship with him beyond mere friendship. However, the critical question in this case is whether she consented to being sexually penetrated by RM. She said no, and she was adamant that she always said no. She was subjected to vigorous cross-examination and stood up to it well.
42. By contrast, RM, while not giving the impression of being an obvious liar, was not as impressive in the witness box. His demeanour was not as solid as that of J.
43. I therefore reject the submission that the accused's evidence was more reliable.
2 Medical evidence deficient
44. Ms Turi submitted that the medical evidence showed no evidence of trauma and this is correct. Mr Goodenough conceded that the report is equivocal. It shows that penetration took place but neither supports nor detracts from the proposition that it was non-consensual.
3 Evidence of boyfriend/girlfriend relationship
45. This was a major line of argument for the defence but I consider the evidence fell a long way short of establishing that RM and J were in such a relationship. J consistently denied it and even RM's evidence that such a relationship existed was rather vague and general. The evidence of RM's friends, G and M, was also vague and general. I find as a fact that no such relationship existed between RM and J at any time. I point out that had I drawn the opposite conclusion, it still would not have determined the question of whether J consented to sex.
4 Agreement to meet
46. Ms Turi highlighted that J had agreed to meet RM at a spot near the school, so it could be inferred from this that she had agreed to have sex. RM gave evidence of a prior agreement to meet and said that he was expecting that they would probably have sex.
47. Again, these are valid submissions and indeed J in her evidence conceded that she agreed to meet RM. But agreeing to meet someone at a pre-determined location and agreeing to have sex with that person are two completely different things. There is nothing in this aspect of the evidence that defeats the natural conclusion arising from acceptance of J's evidence that she did not agree to have sex with RM.
5 Parents' reaction to incident
48. Ms Turi submitted that J's parents reaction to the incident – in particular the evidence that J's father belted her – shows that they were angry with J for having a relationship with RM and for having sex with him.
49. I consider that J's father, W, explained his reaction truthfully when he gave evidence. He and his wife were worried about their daughter. She was missing and when she returned they were suspicious that something had happened. They were cross with her that she had been with a boy. That was why she was belted.
DETERMINATION OF WHETHER THE COMPLAINANT CONSENTED
50. Ultimately in a case such as this, where two witnesses – the accused and the complainant– are giving opposite versions of one incident, the court must make an assessment of who to believe. I believe the complainant. That does not, by itself, however, mean that the accused is guilty (The State v James Yali (2005) N2988; The State v Jeffery Supunau (2010) N3919).
51. The next task is for the court to assess all the other evidence and draw inferences from that evidence and to determine whether the State has proven beyond reasonable doubt the elements of the offence that are in contention. I have completed that task and my assessment is that the State has proven beyond reasonable doubt that the complainant did not freely and voluntarily agree to engaging in an act of sexual penetration with the accused. She did not consent. The conclusion on this issue means that the defence under Section 229F(b) of the Criminal Code does not apply and, the elements of the offence under Section 229A(1) being undisputed, that the accused will be found guilty as charged.
VERDICT
52. The accused, RM, is found guilty of one count of engaging in an act of sexual penetration with a child under the age of 16 years contrary to Section 229A(1) of the Criminal Code.
Verdict accordingly.
____________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused
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