N4549

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 350 OF 2010

THE STATE

V

TARA THOMAS MICHAEL

Goroka: Yagi J
2011: 18th October

CRIMINAL LAW – Charge of Sexual penetration – Criminal Code Act as amended, s. 299A(1) and (2) - No case to answer submission – onus on State to adduce evidence on all essential elements of the offence – failure to adduce on age of victim – the Court's power under s. 63 of Evidence Act not be used to remedy the deficiency in the evidence.

Cases Cited:

Rolf Schubert v The State [1979] PNGLR 66 
Java Johnson Beraro v The State [1988-89] PNGLR 562
The State -v- Paul Kundi Rape [1976] PNGLR 96
State v Bond Nanal (2009) N3597

Counsel:

M. Ruari, for the State
M. Mumure, for the Accused

18th October, 2011

1. YAGI J: The accused, Tara Thomas Michael, is charged under s. 299A(1) and (2) of the Criminal Code Act (as amended) for sexual penetration of a child under the age of 12 years. The State also presented an alternative charge of sexual touching under s. 229B(1) and (4) of the Code.

2. It is necessary to state these two provisions:

"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) ………………………….."

"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) ………………………….

(3) …………………………..

(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) ……………………………. "

3. The allegation made by the State against the accused is that on 31st of October 2008 at Komiufa village, Goroka the accused lured a young boy (SP) into his house and sexually penetrated the boy's anus with his penis. It is alleged that SP was then aged 8 years.

4. The accused pleaded not guilty and so the State called evidence to prove the allegation. It called 2 witnesses, SP and his mother. The record of interview between the accused and the police was tendered into evidence without objection. There is no admission made in the record of interview.

5. In view of SP's age the State applied and the defence counsel sensibly raised no objection, for a number of protection measure orders including use of the screen for SP to give evidence, a support person to be seated with SP whilst giving evidence and barring of persons from hearing the evidence of SP. These orders were made accordingly.

6. In compliance with the practice and guideline in Rolf Schubert v The State [1979] PNGLR 66 and Java Johnson Beraro v The State [1988-89] PNGLR 562 I asked SP a series of questions and after satisfying myself that he was able to sufficiently understand the consequence of making false statement I allowed the prosecution to call him to give his evidence.

7. SP gave evidence that he was at the river at Komiufa village when the accused called him to go and buy buns. He went to the accused and the accused gave him 60 toea to buy buns. He went and bought a bun and returned. The accused told him that he had cooked some 'maggi' and they will go to his house and have it. SP and the accused then went to the accused's house. When they were inside, the accused locked the door and removed his long trousers, laid him on a bed and penetrated his anus with his penis. SP yelled out but the accused covered his mouth. After that SP came out of the house. He felt very sore and painful to his anus and legs area. He then reported the matter to a friend Jack and also to his mother. 

8. When he was asked whether he knew his age he said he does not know.

9. His mother gave evidence that in 2008 she was at the video house during the day when SP went to her crying and told her that the accused sexually penetrated his anus with his penis. She and her family got furious about the story and went and assaulted the accused. 

10. She was asked about her own age and she said she believed she was about 70/80 years. She does not know her date of birth. She was not asked nor did she give any evidence about SP's age or his date of birth.

11. At the close of the prosecution case, Mr. Mumure counsel for the accused made a brief no case submission. Counsel submitted that there is no evidence as to the age of the victim and therefore the Court cannot lawfully convict based on the first limb of the principle in The State -v- Paul Kundi Rape [1976] PNGLR 96. Counsel therefore submits the Court should as a matter of law stop any further progress in the trial.

12. Mr. Ruari counsel for the State conceded that there is no evidence but submitted that the Court has power under s. 63 of the Evidence Act to determine the age based on its own view as the Court has had the opportunity to observe SP in Court.

13. I asked both counsel to research the law a little more on the issue of whether the Court is entitled to invoke s. 63 to supplement the deficiency in the State's case on an essential element of the charge. I adjourned for lunch and heard counsel after lunch.

14. Both counsel were only able to locate the case of State v Bond Nanal (2009) N3597, a decision of Cannings J in Madang. In that case, the accused was tried on the same charge under s. 229A(1). The age of the victim was an issue at trial. The prosecution tried to prove age by producing a clinic book showing the birth record but that evidence was unreliable because the entries were tampered with. The mother of the victim was also unable to give clear evidence of the date of birth. There was in effect an inconsistency and insufficiency in the evidence in respect to the exact date of birth so the Court resorted to the power under s. 63 to determine the age.

15. In my view under the adversarial system in a criminal trial which we have adopted the prosecution carried a heavy burden of proof. The accused is entitled to presumption of innocence under the Constitution. The prosecution must prove beyond all reasonable doubt as to the guilt of an accused person. 

16. On a trial the State must adduce all evidence to sustain a lawful conviction. The Court and the defence do not carry that burden and onus. The principle in Paul Kundi Rape is that at the close of the prosecution case there must be evidence of all essential elements of the charge adduced. If there is no evidence of one or more of the essential elements then the accused must be acquitted as a matter of law.

17. Mr. Ruari submits that this Court is entitled to invoke its power under s. 63 of the Evidence Act and reliance was placed on Nanal case. I think Nanal case can be distinguished from the facts of this case. In Nanal there was evidence adduced but there was inconsistency and insufficiency in the evidence therefore the Court had to resolve the deficiency with the use of power under s. 63.

18. In this case there is hardly any evidence at all. There was no attempt by the State to obtain that evidence from the mother of the victim. As Cannings J stated in Nanal and State v James Yali (2009) N2988, the mother of the victim is the best source of information in respect to evidence on the age of a victim.

19. In my view, the power of the Court under s. 63 can only be used in circumstances where there are inconsistencies and insufficiency in the evidence. In this case there is neither an inconsistency or any shred or aota of evidence in respect to the age. The Court cannot supplement its power under s. 63 to remedy the obvious deficiency in the State's case. 

20. Age of the victim is an essential element of the charge and therefore the State must lead evidence on age. Failure to do so, in my view, is fatal to the prosecution case.

21. On the evidence before me I find that there is no evidence of age of the victim. This will also apply to the alternative charge.

22. In the circumstances, I uphold the no case submission and accordingly acquit the accused of the charge.

Ruled accordingly.
_______________________________________________________________
Acting Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused