The State v Pennias Mokei (No 1) (2004) N2606

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 23 August 2004
• Citation: (2004) N2606
• Court: National Court
• Year: 2004
• Judgement Number: N2606

Full Title: The State v Pennias Mokei (No 1) (2004) N2606

National Court: 23 August 2004

Judgment Delivered: Cannings J

1 Criminal Law—indictable offence—Criminal Code, Division IV.2A—Sexual Offences Against Children—s229A, engaging in act of sexual penetration with a child under the age of 16 years—date of commencement—Constitution, s37(7)—Criminal Code, s11—principles regarding retrospective operation of criminal laws—Criminal Code, s229H—no necessity for corroboration—evidentiary considerations—matters to take into account when determining whether sexual penetration took place—elements of offence under s229A(1)—relevance of consent—consent as a defence—relevance of relationship between accused and child——Criminal Code, s6—definition of sexual penetration—elements of offence to be proven beyond reasonable doubt—verdict.

2 Browne v Dunn (1893) The Reports 67, Beraro v The State [1988–89] PNGLR 562, The State v John Saguno [1994] PNGLR 308, The State v Okun John (2000) N1977, Kape Sulu v The State (2003) N2456 referred to

___________________________

N2606

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 459 0F 2004

THE STATE

V

PENNIAS MOKEI (NO 1)

WEWAK : CANNINGS J

11, 12, 13, 23 AUGUGST 2004

Criminal Law – indictable offence – Criminal Code, Division IV.2A – Sexual Offences Against Children – Section 229A, engaging in act of sexual penetration with a child under the age of 16 years – date of commencement – Constitution, Section 37(7) – Criminal Code, Section 11 – principles regarding retrospective operation of criminal laws – Criminal Code, Section 229H – no necessity for corroboration – evidentiary considerations – matters to take into account when determining whether sexual penetration took place – elements of offence under Section 229A(1) – relevance of consent – consent as a defence – relevance of relationship between accused and child –- Criminal Code, Section 6 – definition of sexual penetration – elements of offence to be proven beyond reasonable doubt – verdict.

Cases cited

Browne v Dunn (1893) The Reports 67

Beraro v The State [1988-89] PNGLR 562

The State v John Saguno [1994] PNGLR 308

The State v Okun John (2000) N1977

Kape Sulu v The State (2003) N2456

Mr J Wala for the State

Mr L Siminji for the accused

CANNINGS J:

INTRODUCTION

This is a criminal case. The accused, Pennias Mokei, is a man aged about 33, who lives in Wewak. He faces the following indictment:

Pennias Mokei of Darapup in East Sepik Province stands charged that he on the 25th day of June 2003 at Wewak in Papua New Guinea, sexually penetrated one Sue Wani, a child (girl) under the age of sixteen (16) years.

The indictment was presented under Section 229A(1) of the Criminal Code.

Section 229A states:

(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, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.

NEW LAW

Section 229A is a relatively new law. It was inserted in the Criminal Code by the Criminal Code (Sexual Offences and Crimes Against Children) Act No 27 of 2002. Before that its equivalent was Section 216. That section made it an offence to have unlawful carnal knowledge of a girl under the age of 16 years. The maximum penalty was five years. Section 216 was repealed by Act No 27 of 2002.

Act No 27 of 2002 was made by the National Parliament on 28 March 2002. It was certified by the Speaker on 25 June 2002. It commenced operation on 10 April 2003. (See Constitution, Section 110(2), the commencement clause of Act No 27 of 2002 and the notice of commencement in the National Gazette No G45 of 2003 at page 2.)

No objection was made to the indictment. But as the accused has been charged under a relatively new law, the Court must be mindful of the principles regarding retrospective operation of criminal laws.

Section 37(7) of the Constitution states:

No person shall be convicted of an offence on account of any act that did not, at the time when it took place, constitute an offence, and no penalty shall be imposed for an offence that is more severe in degree or description than the maximum penalty that might have been imposed for the offence at the time when it was committed.

Section 11 of the Criminal Code states:

(1) A person cannot be punished for doing or omitting to do an act unless—

(a) the act or omission constituted an offence under the law in force when it occurred; and

(b) doing or omitting to do the act under the same circumstances would constitute an offence under the law in force at the time when he is charged with the offence.

(2) If the law in force when the act or omission occurred differs from that in force at the time of the conviction, the offender cannot be punished to any greater extent than was authorized by the former law, or to any greater extent than is authorized by the latter law.

In the present case the new law, Act No 27 of 2002, commenced operation two months and two weeks before the incident giving rise to the indictment took place. The new law is still in force today. The offence and the penalty on conviction are the same as they were on the date of the incident. It was therefore proper for the accused to be charged and tried under the new law. (See the decision of Manuhu AJ in Kape Sulu v The State (2003) N2456.)

BACKGROUND

On 25 June 2003 the incident giving rising to the charge occurred. On or about 27 June 2003 a complaint was made to the Police at Wewak. Shortly afterwards the accused was arrested. On 28 October 2003 he was interviewed by two officers of the Criminal Investigation Division attached to Wewak Police Station. On 19 November 2003 he was granted bail. On 24 March 2004 he was committed to stand trial. On 10 August 2004 the indictment was presented and the accused was arraigned. He pleaded not guilty. He was present throughout the trial.

ORAL EVIDENCE

State witnesses

The State called two witnesses: the alleged victim (referred to in this judgment as ‘the complainant’) and her mother. The term ‘the complainant’ is used as, under Section 1 of the Criminal Code, it is defined to mean “a person against whom an offence is alleged to have been committed”.

Sue Wani

She is the complainant. At the time of the incident, she was aged 13 years and 2 weeks. When she gave evidence in this trial she was aged 14 years and two months. Neither counsel took issue with her ability to understand the meaning and effect of being required to give evidence on oath.

Her evidence in chief was as follows. At the time of the alleged incident, in June 2003, she lived with her parents in their house at Masandanai camp. She went to the local community school. She still does. Her elder brother was at school in Mt Hagen. Her parents allowed the accused to live with them. He had been living there several months. He slept in her brother’s room. She looked upon him as an uncle.

On the day of the alleged incident she had a bath and went to her room in the house. It was in the afternoon. The sun was still up. There was nobody else in the house. The accused then made “an attempt” on her in her room. He told her to lie down on the bed. He pushed his penis into her vagina three times. He also put his fingers on her breasts and under her vagina. She shouted as it was painful. She did not feel well. This was the first time she had had sex. As a result of the accused’s act, she started bleeding around the vagina. She has not had sex with anyone since then. After he did that, he told her not to open her mouth and tell anyone. At the time of the incident, her parents were out of the house, visiting friends or relatives in the same settlement. She was feeling afraid.

Despite the accused having told her not to tell anyone, she reported the matter to her mother the next morning, who got cross with the accused and chased him away. Her mother took her to the Police station, then to the hospital. She was checked by a male doctor. Her mother was present and watching the doctor check her.

She identified the accused, as the person in the dock.

Under cross-examination by Mr Siminji, Sue Wani agreed that on the evening of the alleged incident, her mother had gone to her in-laws’ house for a birthday party. Her father, Paul Wani, was in the settlement playing cards at somebody...