[1973] PNGLR 330

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

REGINA

V

PAUL WANIGU

Wewak & Port Moresby
Prentice J

9-10 July 1973
19 July 1973

CRIMINAL LAW - Unlawful carnal knowledge - Defence - Belief on reasonable grounds that of or above 16 years of age - Onus of proving defence on accused - Criminal Code (Queensland, adopted) s. 215[ccclxvii]1.

The accused was charged under s. 215 of the Criminal Code with having had carnal knowledge of a girl under the age of sixteen years. At the time of the alleged offence it was established that the girl was under sixteen years. In a police interview, the accused stated that he did not know how old the girl was, and that he did not do anything wrong. In a statement from the dock the accused stated: “When I had sex with her I did not know I broke any law. I didn’t do any damage to the girl’s organs. When I had it—I knew that if he didn’t break the law—the girl was big enough and he didn’t do any damage to her organs. The girl was old enough—her breasts were big. I knew she was big enough to have sex intercourse and I had sex with her.” The accused relied on these statements as establishing a belief on reasonable grounds that the girl was over sixteen years of age.

Held

That the statements made by the accused did not relate to the question which is required to be raised under the defence of belief on reasonable grounds that the girl was of or above the age of sixteen years under s. 215 of the Criminal Code, and there was nothing in the statements that would supply reasonable belief that she was over sixteen years of age. Accordingly the defence had not been made out.

Reg. v. Ulel, [1973] P.N.G.L.R. 254 referred to dubitante.

Trial

The accused was tried on a charge of unlawful carnal knowledge of a girl under sixteen years of age, (s. 215 of the Criminal Code), and sought to establish as a defence a belief at the time, on reasonable grounds, that the girl was over sixteen years of age, (s. 215 of the Criminal Code). Further facts and argument appear in the reasons for judgment.

Counsel

P. Donigi, for the Crown.
J. Bradshaw, for the accused.
Cur. adv. vult.

19 July 1973

PRENTICE J: This case, a charge of unlawful carnal knowledge of a girl under sixteen years of age (s. 215), was fought on two grounds only by defence counsel. It was sought to show firstly, that the Crown was not in a position to establish that the complainant was under sixteen years of age at the time of the intercourse complained of; and secondly, that the accused had held a belief at the time, on reasonable grounds, that the girl was then over sixteen years of age. The fact of intercourse was admitted, and by the time the Crown had established that the girl was born after (possibly some two years afterwards) an event notorious in Wewak, namely the explosion and total loss of the M.V. “Busama” (which was proved to have occurred on 12th May, 1959)—the defence in effect, conceded that it had been established that the girl was under sixteen in February, 1973. In court she appeared to me to be some thirteen or fourteen years old.

Mr. Bradshaw relies on the record of interview and on the accused’s statement from the dock as establishing to the requisite extent, on a balance of probabilities—that the accused believed on reasonable grounds Kathy was over sixteen. To the police inspector’s question “How old is Kathy,” he replied “I do not know.” To the question “Did you know that you were doing wrong when you had intercourse with her,” he replied “No, I did not do anything wrong.” To me in a statement from the dock he said “When I had sex with her I did not know I broke any law. I didn’t do any damage to the girl’s organs. When I had it—I knew that if he didn’t break the law—the girl was big enough and he didn’t do any damage to her organs. The girl was old enough—her breasts were big. I knew she was big enough to have sex intercourse and I had sex with her.”

Counsel asks me to apply the decision of my brother Clarkson of 4th July, 1969, (R. v. Ulel[ccclxviii]2). I have on other occasions respectfully declined to follow that decision, if it is to be construed to mean that a man in New Guinea may satisfy the onus put on him by s. 215 if he merely establishes that physically a girl was apta coitionem, or big enough to be married according to native custom.

In the case of Reg. v. Marcus Wuluk (Kavieng 18/3/1970—unlawful carnal knowledge of a girl under sixteen); a defence of belief of marriageable age was sought to be erected upon a statement from the dock to the effect “. . . my one wish was to marry the girl—I did not think there was anything wrong with the trouble between us . . .” I indicated therein that I considered that a belief that a girl was of marriageable age was relevant only as a fact going towards establishing a belief as to an age of (then) seventeen years—that such a belief was not a substitute for the statutorily required belief.

In the case of Reg. v. Samuel Galang (15th and 16th July, 1970, Lae) on a similar charge, the accused had made a statement from the dock. “It is quite true that I had intercourse with the girl—because I really wanted to marry her. When I had intercourse with her I thought she was old enough to have intercourse—but I’m not sure how old she is.” In my judgment in that case I stated: “The defence of reasonable belief has been repeatedly held to require two elements—a belief in fact—and a belief on reasonable ground. I find myself again pressed with the decision of my brother Clarkson of 4th July, 1969, in R. v. Ulel. As I have stated before . . ., with the greatest respect for my brother Clarkson, I have grave doubts as to whether the statutory law may be read down in the way at least in which his judgment is sought to be interpreted.

If his Honour means to say more than that in lieu of stating belief in a particular age of seventeen, an accused may be heard to say some such as ‘I believed her to be of an age when the present written laws of the country allowed her to have intercourse’ and that such an utterance might then be considered as to whether it goes sufficiently to establish belief as to the age of seventeen years or not in the individual case; then I would respectfully find myself constrained to disagree with his Honour’s conclusion. Even if the law allows evidence to be so led, I would consider the reasonableness of belief of the individual concerned would still require to be directed and tested against a probable age of seventeen.”

This law is concerned to protect unmarried girls from intercourse while under a statutory age—originally seventeen in New Guinea, now sixteen. Since my brother’s decision and my decisions, the legislature has altered s. 215 of the Code both in Papua and New Guinea retaining a specified age (rather than stating a growth concept of native custom), and has brought the age respectively up and down to sixteen in each segment of Papua and New Guinea.

Dr. Salfield stated in evidence “I would estimate her age at, at least, thirteen. I would not like to say an upper limit. She could possibly be over sixteen. I don’t know. She had developed secondary sexual characteristics . . . If I was to say more I’d be purely guessing. There is no strong evidence. Nothing on what you could say her age is”.

I am prepared to accept on the balance of probabilities that there were reasonable grounds for the accused’s believing that she was big enough and old enough to admit of intercourse without harming her physically. Perhaps even that she was old enough for marriage in native custom. To my mind nothing appears that would supply reasonable grounds for belief that she was over sixteen years of age; and I do not think such a belief can be found in the accused. Mr. Bradshaw sought to infer from the statement “I did not know I broke the law,” an assertion of a belief that the girl was over sixteen. A man he says, is presumed to know the law and when he says “I thought she was old enough” and “I did not know I broke any law,” that is to be inferred as meaning “I thought she was over sixteen”.

I know of no warrant for applying the presumption in this ingenious fashion. It was devised as an aid to sheeting home responsibility at law, not the reverse. I do not think it can be so applied. It is the learned author of Taylor on Evidence (12th ed., p. 70) who states that the “presumption” is incorrectly stated in that form. Rather it was and should be “ignorantia juris haud excusat.” In any event I consider that when the accused was using the phrase “The girl was old enough—her breasts were big,” he was relating to physical aptitude to sex without the likelihood of physical damage—and not to the question he is required to raise under this defence—her age under s. 215.

(The accused was convicted.)

Solicitor for the Crown: P. J. Clay, Crown Solicitor.
Solicitor for the accused: W. A. Lalor, Public Solicitor.

[ccclxvii]The relevant portion of s. 215 of the Criminal Code is as follows:

Defilement of Girls under Sixteen and of Idiots.

215. Any person who—

(1)        Has or attempts to have unlawful carnal knowledge of a girl under the age of sixteen years;

is guilty of a misdemeanour, and is liable to imprisonment with hard labour for five years, with or without whipping.

It is a defence to a charge of either of the offences firstly defined in this section to prove that the accused person believed, on reasonable grounds, that the girl was of or above the age of sixteen years.

[ccclxviii] [1973] PNGLR. 254.