N7959
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1279 OF 2016

THE STATE

V

TUIDA MUIA

Alotau: Toliken, J.
2019:	12 March, 04 June, 10 July

CRIMINAL LAW – Particular offence - Sexual penetration of child under 16 years of age – Trial – Consensual sexual intercourse – Consent immaterial – Defence - Mistake of age – Belief that child is 16 years or older must be reasonable as to chronological age and not physical  maturity – Accused 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 – Insufficient to discharge the defence and test for maturity on the balance of probabilities – Verdict – Guilty – Criminal Code Ch. 262. 

Cases Cited: 
Papua New Guinea Cases

R v Wanigu [1973] PNGLR 330.
R v Ulel [1973] PNGLR 254

Overseas Cases Cited:

Browne v Dunn (1893) 6 R 67

Counsel:	

P Tusais and A Kupmain, for the State
P Wallis, for the Prisoner 

JUDGMENT ON VERDICT

10th July, 2019
	
1.	TOLIKEN J. The accused Tuida Muia stands indicted for sexual penetration of a child under the age of 16 years in contravention of Section 229A (1) of the Criminal Code Act Ch. 262.
	
	ALLEGATIONS

2.	The State alleged that the complainant who was born on 07th September 2000, left her parents on Basilaki Island in 2013 and moved in with her grandmother on Logea Island to attend school there. In 2015 when she was doing Grade 7, the accused started to show sexual interest in her. Sometime in 2015 when his wife was away on another island the accused lured the complainant to his house with betel nut.  He grabbed her and was about to sexually penetrate her, but he was disturbed when another girl arrived at the house. The complainant fled the scene but was too embarrassed to tell her grandmother. 

3.	On Friday 11th December 2015, the complainant went to a creek near her house to wash dirty dishes. She went into the bush to collect leaves to wash the dishes when the accused followed her. There he grabbed her and had sexual intercourse with her by inserting his penis into her vagina.

4.	The complainant was at that time 15 years and 3 months old.

PLEA

5.     The accused pleaded not guilty. He does not deny sexually penetrating the complainant, but raises the defence of mistake of age. He further pleaded that the act of sexual intercourse was consensual which of course is irrelevant. The accused does not challenge the complainant’s date of birth.

ISSUE

6.   The issue for the Court then is whether, at the relevant time, the accused believed on reasonable grounds that the complainant was 16 years old or over. 

THE OFFENCE

7.   Section 229A (1) of the Code relevantly provides for the offence 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) …

DEFENCE OF CONSENT/MISTAKE OF AGE

8.   Except for the two exceptions provided by Section 299F of the Code, the defence of consent is immaterial for a charge of sexually penetrating a child under the age of 16 years. Section 299F provides:

229F.	Consent no defence.

Subject to Section 229E, it is not a defence to a charge under this Division 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. (Underlining added)

9.   So did the accused believe on reasonable grounds that the complainant was 16 years old or over? 

FACTUAL FINDINGS

10.   There are conflicting versions by the complainant and the accused as to whether the complainant consented to being sexually penetrated, but these are largely irrelevant for the purpose of criminal responsibility for the charge under enquiry. There is also some dispute as to the facts surrounding and leading up to the act of sexual intercourse, such the behaviour of the complainant towards the accused which will be important in assessing the issue before me.

11.   The complainant had moved from Basilaki in 2013 to her grandmother at Logea in order to attend school. She did her Grade 5, 6 and 7 there at Logea. At the time of the alleged offence she was doing Grade 7.  The complainant was born on 07th September 2000, so at the relevant time she was 15 years 3 months 4 days old.

12.   The accused is married to an aunt of the complainant and their houses are about 40 meters apart and it should go without saying that they were well acquainted with each other. The complainant would have been 12 years old when she joined her grandmother in 2013.

13.   I find that the accused had made sexual advances on the complainant prior to the incident in question. On one such occasion he lured the complainant into his house and was about to penetrate her when he was disturbed by a friend of the complainant’s who had come looking for her.

14.  It appears that the two were involved romantically somehow despite suggestions to the contrary by the complainant. The accused spoke of giving money to the complainant and of having requested the complainant for sex on one occasion before the incident in question. This was, however, not put to the complainant in cross-examination and therefore breaches the Rule in Browne v Dunn (1893) 6 R 67.

15.   Despite that, I am of the view that the incident on 11th December 2015 was not one of opportunity. I believe that they had somehow arranged to meet and they did. It is not disputed that the complainant had gone to a pool of water, perhaps a well, to do her dirty dishes. I accept that she left the dishes by the well and went into the bushes to find sandpaper leaves to brush her dishes.  I accept that the accused met her in the bush and had sexually penetrated her vagina with his penis.

16.    The complainant said that the accused forcefully removed her clothes and blocked her mouth with his hand as he was penetrating her. She also said that it was her first sexual experience and so she bled as a result. She, however, did not report the matter to her grandmother or anyone else until sometime later, and only after the accused’s wife found him sleeping naked and drunk under the complainant’s grandmother’s house soon after he had travelled back from Alotau with the complainant. The complainant who had gone in for a review of an operation of her appendix at the Alotau General Hospital. The accused, I find, told his wife that the complainant had told him to come to her house that night. It was only after this incident that the matter got reported to the police.

17.   The complainant said that the accused forced himself on her and prevented her from screaming, or calling out for help. I do not believe that she was restraint in any way, or that the accused forcefully removed her clothes. On the contrary, I find that the two had became romantically involved and had in fact rendezvous or pre-arranged to meet and have illicit consensual sexual intercourse.

18.  This does not, however, get the accused off the hook because the complainant was under 16 years of age and whether or not she consented to being sexually penetrated by the accused is immaterial as we have seen.  

DELIBERATIONS

19.   The accused raised the defence of mistake of age and the onus is 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). It is true as was held in R v Ulel (supra) that “regard  must be held for the society in which the parties lived and for the fact that one could not expect in that society to have any real appreciation of chronological age as opposed to apparent physical maturity as a test of maturity.” However, it is 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. 

20.   In the instant case 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 of or 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. She came to live with her grandmother in 2013 and did her Grades 5, 6 and 7 at Logea and the accused would not have in those circumstances reasonable 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.  

VERDICT

22.    In any case the accused did not advert his mind at all to the chronological age of the complainant before he penetrated her – even if she consented to the act as I found – and it follows therefore that I must find him guilty as charged.

Ordered accordingly, 

________________________________________________________________________________
P Kaluwin, Public Prosecutor:  Lawyer for the State		
L B Mamu, Public Solicitor:  Lawyer for the Accused