Unreported National Court Decisions
N517
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
IN THE MATTER OF A CASE STATED BY IAN C. MCWALTERS, A MAGISTRATE OF THE DISTRICT COURT TO THE NATIONAL COURT OF JUSTICE
AND:
IN THE MATTER OF SCHEDULE 2.10 OF THE CONSTITUTION
Rabaul
Barnett AJ
23 November 1984
6 February 1985
CRIMINAL CODE, SECTION 216(2), CHAPTER NO.262 - unlawful carnal knowledge of girl under age of sixteen years - belief on reasonable grounds that girl over age of sixteen years.
Held:
Defence under Subsection 2 of Section 216 is established if accused held, on reasonable grounds. Beliefs about the girl or her circumstances which would have caused a mind enlightened on concepts of chronological age to have reasonably concluded she was of or above the age of sixteen years.
Legislation:
Constitution, Sch.2.10
Criminal Code, s.216(2).
Cases cited:
R. v. Paul Wanigu (1973) P.N.G.L.R. 330
R. v. Ulel (1973) P.N.G.L.R. 254
The State v. Kami Pongua (1980) P.N.G.L.R. 41
The State v. Leo Nimo (1980) P.N.G.L.R. 129
Counsel:
S. Passingan, for the State Prosecutor.
B. Dilon, for the Defendant.
6 February 1985
BARNETT AJ:  This matter comes befor me by way of a case stated from the District Court at Rabaul pursuant to Sch.2.10 of the Constitution.
It concerns the interpretation of s.216(2) of the Criminal Code about which there are conflicting decisions in the National Court. In these circumstances the Constitution provides for the learned magistrate to state a case to yet another judge of the National Court, which he has done. It is to be hoped that following upon my decision there will be an immediate appeal to the Supreme Court so that a ruling can then be given binding on all lower courts.
Section 216(2) of the Criminal Code provides a defence to a charge of unlawful carnal knowledge of a girl under the age of sixteen years:-
“(2)    It is a defence to a charge of an offence against subsection (1)(a) to prove that the accused person believed, on reasonable grounds, that the girl was of or above the age of sixteen years.”
The learned magistrate referred to two lines of decisions in the National Court, the one culminating in a decision of Pratt J. in The State v. Kami Pongua (1980) P.N.G.L.R. 41 which he refers to as the “Pratt Test” and the other culminating in a decision of Miles J. in The State v. Leo Nimo (1980) P.N.G.L.R. 129 which he refers to as the “Miles Test”.
The question which the learned magistrate asks of this Court is:
“In discharging the onus upon him under s.216(2) of the Criminal Code that he believed on reasonable grounds that the girl was of or above the age of sixteen years, what must a defendant show?
Must he show only that he believed on reasonable grounds that he was dealing with an adult or mature person, as opposed to a child; and that he believed she was of an age to consent?; or
Must he further show that in believing he was dealing with an adult he also believed, or would have so concluded if he had turned his mind to it, that this adult was of or over the age of sixteen years?”
The s.216(2) defence was originally drafted for the Criminal Code of Queensland which has been adapted and adopted into Papua New Guinea.
It was thus intended for a society where a girl’s date of birth is recorded and subsequent “birthdays” are celebrated annually. It is a society where people are regularly reminded of their chronological age because it has importance for such things as admission to school classes, and the right to drink alcohol, drive motor vehicles, marry and vote. In Queensland therefore it makes sense to expect people to have a belief about a girl’s chronological age because people are accustomed to think about that concept.
In Papua New Guinea however, large numbers of people are not accustomed to think about chronological age; especially those living in the village. Here, date of birth is often not recorded, birthdays are not celebrated and occasions when it is necessary to focus the consciousness on a person’s specific age, expressed in years, are rare.
Are such people who are not “enlightened” on the concept of chronological age to be effectively denied the s.216(2) defence because they will rarely be able to truthfully say “I believed she was sixteen years old”? Or can the phrase “believed ... that the girl was of or above the age of sixteen years” be given a wider interpretation so that the defence is available for the “unenlightened” people who reasonably believed the girl was mature enough for sex?
Both lines of authority cited by the learned magistrate show that a wide interpretation has been given to s.216(2). None of the many judges who have interpreted this section restrict the saving belief to one as to the exact age of sixteen years measured according to the Gregorian Calendar. The real issue before me is whether or not the saving belief must at least relate in some indirect way to the girl having attained her sixteenth birthday.
From my reading of the authorities cited there are three types of beliefs being considered. Firstly, a belief held on reasonable grounds that the actual age of the girl was of or above sixteen years. This would so clearly be a defence that it will not be discussed further. Secondly, a belief held on reasonable grounds that the girl was a young adult and thus a person with whom sexual intercourse would not be against the laws of the country; per Pratt J. in Kami Pongua case at 49. Thirdly, certain beliefs (held on reasonable grounds) from which it may be inferred that, had he consciously turned an enlightened mind to the precise question, he would have concluded that she was of or over the statutory age of sixteen years permitted by law; per Miles J. in Leo Nimo case at 129.
Turning then to the “Pratt Test”. It is by no means clear to me that Pratt J. was saying anything very different from Miles J.. At p.47 Pratt J. says:
“On due reflection, it becomes apparent that although the accused had not come to any specific conclusion as to age, all his assumptions and observations would lead to the inevitable conclusion, where (sic.) he asked to make it, that she was of or over sixteen or had arrived at the age of consent.”
Clearly, both judges were dealing with similar concepts. However, with the looser form of wording used by Pratt J. in applying this principle (p.49) and in the form in which the so-called “Pratt Test” has been posed in this case stated, I must respectfully disagree. In doing so, I am content to adopt the approach of Miles J. at p.136 -
“With great respect and some reluctance I am unable to come to the view of Pratt J. that it is sufficient for the accused to have a general belief in the maturity of the girl (either in the sense of physical aptitude or in the sense of being permitted by custom to engage in intercourse) unless there is some nexus with the age laid down specifically in the statute.”
Had the legislature wished to break away from this link between the acceptable degree of maturity and the girl’s age, it had a recent opportunity to do so. In the early 1970’s when removing inconsistencies in the law as it applied to the then Territory of Papua New Guinea, the age was altered from fourteen and seventeen years respectively to sixteen years as presently required. It would have been easy to rewrite the section making belief as to “maturity”, “marriageable age” or some other appropriate concept, a defence. As this was not done, the reference to sixteen years in the section must be given some meaning. I shall now elaborate slightly on the principles laid down by Miles J. for dealng with an accused person whose mind is not enlightened on the concept of chronological age.
1.       The accused person must have held certain beliefs about the girl and her circumstances prior to the act of sexual intercourse.
2.       The onus is on the accused to establish on the balance of probabilities he held these beliefs.
3.       The beliefs must be held on reasonable grounds. (They could be beliefs about such things as her appearance, occupation, school grade, date of birth, habits, friendships, dress, status in customary society ..., etc.).
4.       Had he turned a mind enlightened on concepts of chronological age to the precise question of the girl’s age, in the light of these beliefs and any other relevant facts known to him, it would be reasonable to conclude that she was of or above the age of sixteen years.
(Note, both the grounds on which he held certain beliefs and the conclusion as to age to be drawn from them must satisfy the requirement of being reasonable).
Although these principles have been elaborated for application to the beliefs of a mind which is not enlightened on concepts of chronological age, they would be equally applicable to an “enlightened” person. If an educated person living an urban life believed (for instance), on reasonable grounds, that a mature looking fifteen year old girl was an airline hostess he would have a defence under the so-called “Miles Test”, even though he never directed his consciousness to the question of her being of or over sixteen years.
Turning finally to the questions posed by the learned magistrate in the case stated. I answer them as follows. To discharge the onus upon him under s.216(2) of the Criminal Code the defendant must show on the balance of probability that either:-
(a)      he believed on reasonable grounds that the girl was of or above the age of sixteen years; or
(b)      that the beliefs which he reasonably held about the girl or her circumstances were such that, had he consciously turned a mind enlightened on concepts of chronological age to the precise question of her age, he would reasonably have concluded that she was of or above the age of sixteen years.
Lawyer for the State, State Prosecutor.
Lawyer for the Defendant, Public Solicitor.