N3216

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 227 OF 2007

THE STATE

v

NANE TION MUASA

Finschhafen: Gabi, J
2007: 21 May 2007

PRACTICE AND PROCEDURE – Sections 229A & 229B of Criminal Code Act – Sexual penetration and sexual touching – Offender, a female school teacher – Victim, a male student under 16 years – Vagina of a female offender has no capacity to sexually penetrate the penis of a male victim.

PRACTICE AND PROCEDURE – Section 6A of Criminal Code Act – Teacher/pupil relationship – Victim left school 3 weeks before the offence – Teacher/pupil relationship ceased when victim left school.

Cases Cited

The State v Miseal Butemo Jiregari [1984] PNGLR 64
The State v Dibol Petrus Kopal (2004) N2778;
The State v James Yali (2006) N2989

Counsel

J Done, for State
A Raymond, for the accused

VERDICT

 21 May 2007

1. GABI, J:	Introduction: Nane Tion Muasa, a female school teacher at Gagidu Primary School, is charged that she engaged in an act of sexual penetration with Jotham Gerald. Alternatively, Nane Tion Muasa unlawfully touched the penis of Jotham Gerald with her hand and vagina. At the time of the offence Jotham Gerald was a child under the age of 16 years. Nane Tion Muasa taught physical development and Jotham Gerald was a student in her class. As a result, Nane Tion Muasa is charged that she was in a relationship of "trust, authority or dependency" with Jotham Gerald. At the time of the offence, Jotham Gerald had been withdrawn from school by his parents.

2. The issues are: (i) whether Jotham Gerald was under the age of 16 years; (ii) whether Nane Tion Muasa has the capacity to sexually penetrate Jotham Gerald; (iii) whether Nane Tion Muasa touched sexual parts of Jotham Gerald with her hand and vagina; and (iii) whether Jotham Gerald was in a relationship of "trust, authority or dependency" with Nane Tion Muasa.

The Charge

3. Nane Tion Muasa, the offender, is indicted on 2 counts, which are set out below:

"Count 1:	NANE TION MUASA of WESAP, OGERANANG, MOROBE PROVINCE stands charged that she on the 20th day of August 2006 at Finschhafen in Papua New Guinea engaged in an act of sexual penetration with JOTHAM GERALD, a child under the age of 16 years.

AND that JOTHAM GERALD was then in a relationship of ‘trust authority and dependence’ with her.

Count 2:
	Alternative	NANE TION MUASA of WESAP, OGERANANG, MOROBE PROVINCE stands charged that she on the 20th day of August 2006 at Finschhafen in Papua New Guinea unlawfully touched JOTHAM GERALD’s penis, a child under the age of 16 years with her hand and vagina.

AND that JOTHAM GERALD was then in a relationship of ‘trust authority and dependence’ with her."	

The Law

4. The charges are laid under Sections 229A and 229B of the Criminal Code Act. I set them out below:

"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)	If the child is under the age of 12 years, an offender against
Subsection (1) is guilty of a crime and is liable, subject to Section 19, to imprisonment for life.

(3)	If, at the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and the child, the offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life."

"229B.		SEXUAL TOUCHING.

(1)	A person who, for sexual purposes –

(a)	touches, with any part of his or her body, the sexual parts of a child under the age of 16 years; or

(b)	compels a child under the age of 16 years to touch, with any part of his or her body, the sexual parts of the accused person’s own body,
is guilty of a crime.

Penalty:	Subject to Subsections (4) and (5), imprisonment for a term not exceeding seven years.

(2)	For the purposes of this section, "sexual parts" include the genital area, groin, buttocks or breasts of a person.

(3)	For the purposes of this section, a person touches another person if he touches the other person with his body or with an object manipulated by the person.

(4)	If the child is under the age of 12 years, an offender under Subsection (1) is guilty of a crime, and is liable to imprisonment for a term not exceeding 12 years.

(5)	If, at the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and the child, an offender against Subsection (1) is guilty of a crime, and is liable to imprisonment for a term not exceeding 12 years."

"Relationship of trust, authority or dependency" is defined by section 6A of the Criminal Code Act, which states:

"6A.	RELATIONSHIP OF TRUST, AUTHORITY OR DEPENDENCY"

(1)	When the term "relationship of trust, authority or dependency" is used in the definition of an offence, the offence, so far as regards that element of it, is complete upon proof that there was an existing relationship of trust, authority or dependency between the accused and the victim at the time the offence occurred.

(2)	A "relationship of trust, authority or dependency" includes, but is not limited to, circumstances where –

(a)	the accused is a parent, step-parent, adoptive parent or guardian of the complainant; or

(b)	the accused has care or custody of the complainant; or

(c)	the accused is the complainant’s grandparent, aunt, uncle, sibling (including step sibling) or first cousin; or

(d)	the accused is a school teacher and the complainant is his pupil; or

(e)	the accused is a religious instructor to the complainant; or

(f)	the accused is a counselor or youth worker acting in his professional capacity; or

(g)	the accused is a health care professional and the complainant is his patient; or

(h)	the accused is a police or prison officer and the complainant is in his care or control."(Emphasis added)

"Circumstances of aggravation" are defined by section 349A of the Criminal Code Act, which includes an abuse by an offender of a "position of trust, authority or dependency" (see s. 349A (e) of the Criminal Code Act). 

The age of Jatham Gerald

5. Jathom Gerald, the victim, was adopted at birth by Abia and Gerald Zurenouc. It appears to be a customary adoption. The State alleges that the victim was born on 10 October 1990. The defence, on the other hand, disputes that and alleges that the victim was born on 12 June 1989.

6. The natural mother, Koti Agilu, gave evidence for the defence. She said that the victim was born on 12 June 1989 and that Abia Zurenouc was with her when she gave birth. She has no records to show the date of birth. I showed her the "Helt buk bilong pikinini" (Exhibit "F") for the victim and pointed out to her that the date of birth shown in that book is 10 October 1990. I asked if the date of birth shown in that book was a mistake or fraudulent. She promptly replied that that date is the correct date of birth.

7. The victim’s adoptive mother, Abia Zurenouc, said that the victim was born on 10 October 1990 as shown in the "Helt buk bilong pikinini. She was with Koti Agilu when she gave birth to the victim at Braun Health Centre. This is consistent with Koti Agilu’s evidence. I find Abia Zurenouc to be a credible and reliable witness. 

8. In addition, I have examined the "Helt buk bilong pikinini", in particular the entries in the weight chart. It is clear that the entries commenced in October 1990. Secondly, the date of discharge shown in the book is 25 October 1990. I am satisfied that the victim was born on 10 October 1990 and at the time the offence occurred he was under the age of 16 years.

9. Ms Raymond urged the Court not to accept Abia Zurenouc’s evidence as it conflicts with the evidence of Banda Sungu. Banda Sungu is a Dental Therapist, who examined the victim’s molar (wisdom) teeth to determine the age. He found that the victim’s molar teeth have not erupted and concluded that the victim was under the age of 16 years at the time of the offence (Exhibit "G"). In cross-examination, Mr. Sungu said that the molar teeth normally erupt between the ages of 16 and 21 years. Mr. Sungu’s evidence is that the victim is under the age of 21 years, which is not relevant to this case. In my view, this finding does not in any way conflict with the evidence of Abia Zurenouc. 

Sexual Penetration

10. There is no dispute that sexual intercourse occurred between the offender and the victim on 20 August 2006. There is dispute as to who instigated the act of sexual intercourse. The victim said that the offender woke him up from the living room and brought him to her bedroom. She removed her clothes and told him to remove his clothes. He did. She then lay on top of him and had sexual intercourse until he ejaculated. The offender, on the other hand, said that the victim entered her bedroom, sat on her bed and woke her up. He undressed, pulled her long pants down to her knees, lay on top of her and sexually penetrated her vagina with his penis. This is consensual sex.

11. The question is whether the offender sexually penetrated the victim. Section 6 of the Criminal Code Act defines "sexual penetration." It provides:

"6.	SEXUAL PENETRATION

When the expression "sexual penetration" or "sexually penetrates" are used in the definition of an offence, the offence, so far as regards that element of it, is complete where there is –

(a)	the introduction, to any extent, by a person of his penis into the vagina, anus or mouth of another person; or

(b)	the introduction, to any extent, by a person of an object or a part of his or her body (other than the penis) into the vagina or anus of another person, other than in the course of a procedure carried out in good faith for medical or hygienic purposes."(Emphasis added)

12. Section 6 (a) deals with a male offender only. Section 6 (b) covers a male or a female offender. To come within the provisions of section 6 (b), a female offender must insert "an object" or "a part of her body" into the "vagina or anus" of the victim. Clearly, that is not the situation in this case. The allegation is that the offender engaged in sexual intercourse with the victim. I agree with Ms. Raymond that the vagina of a female offender has no capacity to sexually penetrate the penis of a male victim.

13. The State has not proven the second element of count 1. Accordingly, I acquit the offender of count 1.

Sexual Touching

14. The alternative count relates to sexual touching under s. 229B of the Criminal Code Act. There is ample evidence of sexual touching before me. I am satisfied beyond reasonable doubt that the offender touched the victim’s genital parts with her vagina. Accordingly, I find the offender guilty of sexual touching.

Relationship of trust, authority or dependency

15. Teacher/pupil relationship is a relationship of trust, authority or dependency under s. 6A of the Criminal Code Act. An abuse of that relationship is a circumstance of aggravation (see s. 349A (e) of the Criminal Code Act). "Circumstances of aggravation" must be charged in the indictment and proven beyond a reasonable doubt as an element of the offence (see The State v Miseal Butemo Jiregari [1984] PNGLR 64; The State v Dibol Petrus Kopal (2004) N2778; The State v James Yali (2006) N2989).

16. In the indictment, it is charged that Jotham Gerald was in a position of "trust, authority and dependence" with Nane Tion Muasa. The Criminal Code Act uses the term "relationship of trust, authority or dependency" (see sections 6A, 229A (3), 229B (5), 229C (3), 229E (1) and 349A (e)). At the time the offence is committed, there must exist a prior relationship of "trust, authority or dependency" between the offender and the victim. It is disjunctive. Under the Act, the State is required to prove only one of trust, authority or dependency; not all three – trust, authority and dependency. The charge is inconsistent with the Act. I am of the opinion, that as the wording of the circumstances of aggravation is in conflict with the provisions of the Act, it is to that extent defective.

17. Mrs. Sigrutoi, the Headmistress of Gagidu Primary School, said that the victim was withdrawn from school in July 2006 for stealing K5 from another student. The offence occurred 3 weeks after he had left school. This is consistent with the evidence of Nane Tion Muasa. 

18. At the time the offence occurred the victim was no longer a student. I am of the view that the teacher/pupil relationship ceased when the victim left school. Accordingly, I find that the victim was not in a relationship of trust, authority or dependency with the offender. 

_____________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused