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State v Tepson [2017] PGNC 342; N7016 (17 November 2017)

N7016

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 968 & 969 of 2015

THE STATE

V

JOHN TEPSON

Kimbe: Miviri AJ
2017: 16^th November

CRIMINAL LAW – PRACTICE AND PROCEDURE – Sexual Penetration –no case submission-no evidence on age-upheld-no case to answer – accused acquitted and discharged.

Facts
The Accused admitted to sexual penetration of the victim but said she was 16 years or over.

Held
No case submission
No evidence of age
No case submission upheld
Acquitted and discharged.

Cases:

Avini v The State [1997] PNGLR 212

State v. Paul Kundi Rape [1976] PNGLR 96

Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37), The State v [1983] PNGLR 287

The State v Amoko Amoko [1981] PNGLR 373.
Wani v The State [1979] PNGLR 593

Counsel:

D. Kuvi, for the State
D. Kari, for the Defendant

RULING ON NO CASE SUBMISSION

17^th November, 2017

1. MIVIRI AJ: John Tepson was charged on indictment that he on a date unknown in October 2013 at Hoskins had sexual penetration of JT a girl who was 14 years old and under 16 years of age.
   
2. A second count was that he had sexual intercourse with her JT a girl under 16 years of age on a date unknown in November 2013. Both charges were pursuant to Section 229A of the Criminal Code and circumstances of aggravation were pleaded in that he was the adopted father of the child.
   

Facts

3. It was alleged that JT was brought from Menyamia across here to Kimbe and lived with the accused and wife. He was her adopted father after her parents died. He abused that authority of dependency and trust and had sexual intercourse with her on each of the occasions. She was 14 years old and therefore under 16 years of age.
   

State evidence

4. The state evidence comprised the tendered evidence of the record of interview of the accused exhibit S1A the pidgin original version and the English translation version exhibit S1B. Further evidence was the statement of the police informant Detective Senior Constable Wayne Isako.
   
5. This evidence established beyond all reasonable doubt that there was sexual penetration of the victim JT but there was no evidence on the age of the victim at the close of the State’s case.
   

State Oral Witnesses

6. The first was one Wayne Isako detective First Constable with the criminal investigation Division in Kimbe who gave evidence essentially of taking the complaint conducting the investigation including taking the statement of the complainant with all other witnesses and of interviewing the accused in the record of interview. Attempt was made by prosecution to get evidence on the age of this victim from this witness and the defence which was not forth coming.
   
7. The state closed its case
   

No case submission

8. The defence has made a no case submission relying on the case of State v. Paul Kundi Rape [1976] PNGLR 96 and also Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37), The State v [1983] PNGLR 287. In particular contending and invoking the second leg of Roka Pep’s case that there is discretion in the judge to stop the case here against the accused because prima facie there is no evidence of the age of the victim JT to call the defendant to answer to the charge.
   
9. The State has relied on the admission of the accused in the record of interview question 18 that she must be 15 years turning 16.
   
10. I am not satisfied that the State’s reliance on the record of interview as evidence on the balance of probabilities to call the accused John Tepson to answer because there is no evidence on the age of the girl. He is merely making an assumption and not a conclusive finding as to the age. He is not an expert and does not settle that issue on the balance of probabilities to call him to answer: Avini v The State [1997] PNGLR 212.
    
11. And in the exercise of my discretion I will stop the case here against the accused John Tepson on the two counts of sexual penetration of a minor under 16 years old contrary to section 229A of the Criminal Code Act.
    
12. I return a not guilty verdict on the first count and the second count against the accused.
    
13. I order that his bail moneys be refunded forthwith.
    

Orders Accordingly,

__________________________________________________________________Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for the Defendant