The State v Jeffery Toapas (2006) N4485

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 22 August 2006
• Citation: (2006) N4485
• Docket Number: CR NO 24 of 2004
• Court: National Court
• Year: 2006
• Judgement Number: N4485

Full Title: CR NO 24 of 2004; The State v Jeffery Toapas (2006) N4485

National Court: Cannings J

Judgment Delivered: 22 August 2006

N4485

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 24 OF 2004

THE STATE

V

JEFFERY TOAPAS

Buka: Cannings J

2006: 16, 17, 22 August

VERDICT

CRIMINAL LAW – Criminal Code, Subdivision IV.2A, sexual offences against children – Section 229A, engaging in act of sexual penetration with a child under the age of 16 years – trial – defences – whether consent is a defence – whether reasonable belief in age is a defence – Criminal Code, Section 229F.

A man was charged with having sex with a 14 year old girl, contrary to Section 229A(1) of the Criminal Code. He pleaded not guilty and a trial was held. The girl, the complainant, gave evidence; as did the police investigator who interviewed her. Tendered in evidence was the accused’s record of interview, which contained admissions that sex took place but a denial of knowledge of the age of the complainant. No evidence was adduced for the accused. He remained silent except for a short statement from the dock. The actual age of the complainant was not in issue but the accused’s knowledge of it was; it being contended that he had an honest and reasonable, but mistaken, belief that she was aged 16 years or more. The defence also argued that the prosecution had not proven that the accused had sexually penetrated the complainant.

Held:

(1) On a charge under Section 229A(1) of the Criminal Code, a reasonable belief that the complainant was aged 16 or more can be a defence. But it must be coupled with the presence of consent, under Section 229F.

(2) The general defence of mistaken belief in a material fact under Section 25 of the Criminal Code is not available as a defence against a charge under Division IV.2A (sexual offences against children).

(3) When a defence of mistaken belief is raised, the prosecution has the onus of disproving the elements of that defence beyond reasonable doubt; consistent with the approach of the courts to other criminal defences, eg provocation and self-defence.

(4) Here, the prosecution disproved the elements of the defence under Section 229F to the required standard. There was no consent and no reasonable belief that the complainant was aged 16 or more.

(5) The complainant was a credible witness, as was the police investigator. The admissions made by the accused in his police interview corroborated the other evidence. The prosecution proved beyond reasonable doubt that the accused sexually penetrated the complainant.

(6) The accused was found guilty as charged.

Cases cited

The following cases are cited in the judgment:

Browne v Dunn (1893)

Kape Sulu v The State (2003) N2456

R v Nikola Kristeff (1967) No 445

The State v Albert Gias (2005) N2812

The State v Angela Colis Towavik [1981] PNGLR 140

The State v Anton Kumak (1990) N835

The State v Bikhet Nguares Paulo [1994] PNGLR 335

The State v Dibol Petrus Kopal (2004) N2778

The State v Kevin Anis (2003) N2360

The State v Kewa Kai [1976] PNGLR 481

The State v Jason Rihata (2005) CR No 171 of 2005

The State v John Ritsi Kutetoa (2005) N2814

The State v Leah Tununto (1990) N947

The State v Leonard Masiap [1997] PNGLR 610

The State v Matilda Edward (2004) N2726

The State v Michael Nema Melpa (2003) N2450

The State v Misari Warun (1989) N753

The State v Moses Jafisa Winga (No 1) (2005)

The State v Rose Yapihra (1997) N1741

The State v Thomas Angup (2005) N2830

Abbreviations

The following abbreviations appear in the judgment:

ARB – Autonomous Region of Bougainville

CR – Criminal

DCJ – Deputy Chief Justice

J – Justice

N – National Court judgments

No – number

PNGLR – Papua New Guinea Law Reports

SC – Supreme Court Judgment

v – versus

Tables

The following tables appear in the judgment:

1 –	Summary of exhibits.
2 –	Witnesses called by the State.

TRIAL

This was the trial of an accused charged with engaging in an act of sexual penetration with a child under the age of 16 years.

Counsel

R Luman, for the State

P Kaluwin, for the accused

1. CANNINGS J: INTRODUCTION: This is a decision on the verdict for Jeffery Toapas, who pleaded not guilty to engaging in an act of sexual penetration with a child under the age of 16 years, an offence under Section 229A(1) of the Criminal Code.

INDICTMENT

2. The indictment states:

Jeffery Toapas of Saposa, Bougainville, stands charged that he … on an unknown date between 1 and 31 December 2002 at Tamuts … engaged in an act of sexual penetration with [the complainant], a child under the age of 16 years.

3. The alleged victim is referred to as “the complainant” as that term is defined by Section 1 of the Criminal Code to mean “a person against whom an offence is alleged to have been committed”.

4. The indictment was presented under Section 229A of the Criminal Code, which commenced operation on 10 April 2003. The alleged offence was committed in December 2002, four months before Section 229A commenced operation. However, it was proper to draft the indictment under the new law because:

· the act constituting the charged offence (engaging in an act of sexual penetration with a child under the age of 16) constituted an offence (unlawful carnal knowledge of a girl under the age of 16 years) defined and prescribed by a written law (the former, repealed Section 216 of the Criminal Code) at the time it allegedly took place (December 2002); and

· the new law amended (as distinct from repealed) the old law.

(See Kape Sulu v The State (2003) N2456, Manuhu AJ; The State v Dibol Petrus Kopal (2004) N2778, Lay J; The State v Jason Rihata (2005) CR No 171 of 2005, Lay J; The State v John Ritsi Kutetoa (2005) N2814, Cannings J; The State v Thomas Angup (2005) N2830, Lay J; The State v Moses Jafisa Winga (No 1) (2005) N2952, Kandakasi J.)

5. The accused pleaded not guilty and was present throughout the trial.

THE STATE’S CASE

Outline

6. The State tendered two exhibits by consent and called two witnesses to give oral evidence.

The exhibits

7. Column 1 of the table below gives the exhibit number, column 2 describes the exhibit and column 3 summarises its evidentiary content.

TABLE 1: SUMMARY OF EXHIBITS

TENDERED BY THE STATE

Exhibit	Description	Content
A1, A2	Record of interview: Jeffery Toapas, 07.07.03	Says he is from Babylon village, Saposa Island, aged 22 – married without children – said he caused a trouble and that he is why he was in police custody – he had sexual intercourse with a girl [the complainant’s name was given] and now she is pregnant – says that this girl calls him her uncle as he is married to her mother’s sister – the girl is doing grade 7 at Saposa Primary School – she was 15 years old at the time he had sex with her – he did not know at the time that she was only 15 – after he had sex with her, he told he would give her some money – he did not know that it was against the law to have sex with a girl under the age of 15 years.
B	Statutory declaration: complainant’s father, 19.08.03	States that the complainant, his eldest child, was born on 25 January 1988.

Oral evidence

8. Table 2 lists and describes the State witnesses in the order that they were called and indicates the days and dates of the trial on which they gave evidence.

TABLE 2: WITNESSES CALLED BY THE STATE

No	Name	Description	Day	Date (2006)
1	The complainant	The person against whom the offence was allegedly committed.	1	16 Aug
2	Constable Lilian Sopas	Police investigator.	1	16 Aug

9. The first witness for the prosecution was the complainant. In examination-in-chief she stated that she is now 18 years old. She was born on 25 January 1988. She is from Saposa. She is still going to school and is in grade 10. She knows the reason she he is giving evidence: as Jeffery Toapas had sex with her. It happened in December 2002, she does not remember the exact date. She was doing grade 6 at the time, at Saposa Primary School.

10. She recounted the events. Jeffery told her and her younger sister, Rani, and some cousins, including Regan, to go with him to collect coconuts. They paddled to Tamuts Island. Jeffery climbed the trees, threw down the coconuts and they husked them. Then he sent her sister and cousins away. They went away and she was left alone with him.

11. He told her to take off her underwear. She did not want to do that so he took off her clothes himself. When she was lying on the ground he took off h is trousers. Then he had sex with her. Afterwards he told her that he would give her some money.

12. She then went down to the beach, met her cousins and went back home. He never gave her the money he promised.

13. The following year, 2003, she was in grade 7 but did not complete school, as she was pregnant and gave birth to a baby boy on 4 September 2003. He is still alive and is being looked after by her aunties in the village. Jeffery is the boy’s father.

14. She identified the accused by pointing him out in...