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State v Yariyari [2009] PGNC 241; N4000 (20 August 2009)

N4000

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 728 OF 2006

THE STATE

v

WILLIAM YARIYARI

Popondetta: Kariko, J
2009: 18, 19, 20 August

CRIMINAL LAW EVIDENCE Charge of sexual penetration, section 229A Criminal Code victim alleged to be under 16 years evidence of age proof-section 63 Evidence Act considered.

CRIMINAL LAW VERDICT Whether alternative verdict of sexual touching, section 229B Criminal Code, available.

Cases cited:
The State v Peter Joseph Hayden [1976] PNGLR 509.
The State v Kikia Solowet (2007) N3154.

Counsels:
Mr A Kupmain, for the State
Mr M Yawip, for the Accused

20 August, 2009

1. KARIKO, J: The accused pleaded not guilty to 2 counts of sexual penetration of a girl under the age of sixteen years contrary to section 229A of the Criminal Code. The State alleged that on 3 January and 4 January 2005 the accused had sexual intercourse with the alleged victim, one Sharon Poivo, aged 12 years at the time.

No case Submission

2. At the end of the State's case, a no case submission was made in respect of the second count and the allegation relevant to 4 January 2005. The submission was upheld on the basis that no evidence was adduced in respect of that allegation. The State conceded and I upheld the submission.

3. The trial proceeded on the first count.

Elements

4. The elements of the charge are:

(a) The accused sexually penetrated the alleged victim; and
(b) She was then under the age of 16 years.

Issue

5. There is no dispute as to the first element. The accused admitted he had sexual intercourse with Sharon Poivo on the relevant date.

6. From cross-examination of the State witnesses and the evidence of the accused in court, it appeared the accused was running a defence of reasonable belief that the girl was of or above the age of 16 years.

7. In his final submissions, counsel for the accused asked the court to find that the State has not proved beyond reasonable doubt that Sharon Poivo was under the age of 16 years at the relevant time. The State Prosecutor argued otherwise.

Evidence of age

8. In The State v Peter Joseph Hayden [1976] PNGLR 509, the court in dealing with an offence under the now repealed section 216 (unlawful carnal knowledge of a girl under the age of 16 years) stated that a prosecution for this offence requires strict proof of the girl's age. In my view, this principle applies also to a charge under section 229A.

9. Evidence for the State came from sworn evidence of the alleged victim, her uncle Ranford Poivo, and the Record of Interview of the accused which was tendered by consent. What then was the evidence regarding the alleged victim's age?

10. The Record of Interview was based on an allegation of rape and did not address or refer to the age of the alleged victim. Sharon Poivo said she is now aged 12 years but she is a mature young female who told the court she has 2 children. She appeared to me to be in her late teens or early twenties. So I do not believe she knows her age. In fact, she added she does not know her birth date and suggested her uncle Ranford would know. Her uncle did not provide a birth date but thought she was aged 15 or 16 years in 2005. He said she was already a tall girl. The only other evidence led by the State in relation to age was that Sharon was in Grade 5 at Tufi Primary School in 2005. But in PNG we have cases of children starting school several years late and who are much older than their class mates. This is particularly so in the rural village setting. So the Grade in school alone cannot determine the age of the girl with certainty.

11. I have also considered whether section 63 of the Evidence Act would assist. This section provides:

63. Age.

In any legal proceedings, if the court does not consider that there is evidence or sufficient evidence to determine the age of a person the court, having seen the person, may itself determine the question.

12. I believe it would be unsafe for me to do so, particularly when the alleged offence took place over 4 and a half years ago and the alleged victim is now a mature young woman with 2 children. As I said she looked to me to be in her late teens, early twenties but it would be unsafe for me to determine an age to be discounted by 4 and half years to find her age in January 2005.

13. Can I conclude beyond reasonable doubt from the State's evidence that Sharon Poivo was under the age of 16 years on 3 January 2005? The answer is "No", as the evidence is insufficient for me to reach such a finding.

14. I therefore find the accused Not Guilty of sexual penetration as charged.

15. Both counsels submitted that it was open to the court to convict on the alternative verdict of sexual touching (section 229B of the Criminal Code) if the evidence established it.

16. I do not accept this proposition and adopt the obiter of Cannings, J in The State v Kikia Solowet (2007) N3154, where his Honour observed:

There is no general principle that if a person has been charged with a specific offence and, though not all elements of it are proven, all elements of a lesser offence are proven, the court can enter a conviction for the lesser offence. The power to convict an accused of a lesser offence only exists where the Criminal Code specifically provides for it. For example, Section 539 says that a person indicted for wilful murder can be convicted of murder or manslaughter. Section 541 says that a person indicted for rape or unlawful carnal knowledge of a girl under the age of 12 years can be convicted of certain lesser offences. Both learned counsel submitted that I would have been able to enter a finding of guilty of a lesser offence. But I do not think that is correct as the accused was not indicted for rape or unlawful carnal knowledge (that offence having been repealed by the Act which inserted Division IV.2A).

This is something that the Parliament needs to carefully look at. There should be a special provision in Division IV.2A allowing the court to enter convictions for lesser offences where all the elements of a more serious offence have not been proven. (My emphasis).

17. Even if the alternative verdict was available, the State would still have to strictly prove the alleged victim's age.

Verdict

18. I am not satisfied beyond reasonable doubt that the accused committed the offence of sexual penetration as charged, I find him not guilty and accordingly acquit him.

_________________________

Acting Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defence