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State v Matiabe [1989] PGNC 3; N924 (12 April 1989)

Unreported National Court Decisions

N924

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

(C.R. NO. 481 OF 1988)
THE STATE
V
ARURU MATIABE

Waigani

Cory J
12 April 1989

CORY J: The rema charge against thst the accused, Matiabe, alleges that in February 1986 he had unlawful carnal knowledge of the prosecutrix, Dendele Tayanda, who was under sixteen years of age. The defence a that sexual relations took took place at that time, but denies that Dendele was under sixteen and allege that she was in fact 17 years and 11 months, having been born on or about 21 March 1968. The prosecution allege that she was born about November 1970 and that therefore she was about 15 years and 3 months.

The defence relies upon the written record contained in the MCH, the Maternal and Child Health Cards - of the four children of the mother, Dagare, and also on Dagare’s own Ante Natal Cards in relation to each child. These cards were kept at Gwala Clinic.

The prosecution originally alleged that these clinic cards were forgeries, but then as the defence case developed and the evidence of the nursing sisters who had made the various entries on the clinic cards was presented, the prosecution resiled from its original position and then made vague allegations that there had been a switch of cards, with an erasure of the entries on the card belonging to Bepa, Dendele’s younger sister and that the entries on the cards were not reliable. The prosecution were requested to particularise the sinister or wicked interpretation of the cards for which they were contending, but declined to do so. In my opinion the prosecution, having finally accepted the authenticity of the cards and having been given a satisfactory explanation by Sister Mulholland of the minor erasures on Bepa’s card and, taking the cards of the four children together, being unable to offer any evidence of a sinister manipulation or alteration of the cards, should at that point, have offered no further evidence, abandoned the charge and conceded that the accused was entitled to an acquittal.

The prosecution witness, Taiyanda, the father of Dendele, gave evidence that the sequence of the birth of his four children was as follows:- Ibame (who drowned at about 18 months), then Dendele, followed about a year later by Bepa and finally Tagira, the first three children being girls and the last one a boy. This sequence is supported by the clinic cards.

Gwala Clinic was operated by missionary nursing sisters attached to the United Church. The Clinic Cards were at Gwala Health Centre but at about monthly intervals, the nursing sisters would go out to the surrounding villages and hold a clinic, at which they examined both the pregnant mothers and the babies and children aged 0 - 5 years, notes of the former, the examinations of the pregnant mothers, were recorded at the time of the examination on an Ante Natal Card and the latter, the examination of the baby, on a MCH, Maternal and Child Health Card. When a child was born in a village, the father or a close relative would report to the Gwala Clinic the date and particulars of the birth and the sister at the clinic would open an MCH card for the child, recording the names of the mother, the father, the village, the name and sex of the child, the date of birth and any previous children as: “Siblings - alive - dead”. On the next and subsequent visits of the sisters to that village, the weight, age e.g. 1 week or 3 days and condition of the baby would be recorded, at about monthly intervals until the child reached 5 years of age.

On the basis of the Clinic cards which I am satisfied are reliable and authentic and which are to be preferred to the father, Taiyanda’s recollection of events in 1988 (which was more than 15 years ago), I make the following findings of fact -

1. &##160;; T60; The fire first child IBAME, a female, was born on 11.3.66 and was drowned about August 1967 - the last record of an examination at the clinic was 22.7.69.

2. ټ&##160;; The motherotherother’s next attendance at the cliniclinic at Maria village was on 18.9.67 when she was then four months pregn/p>

3. ټ Dendele was born 21rn 21.3.68, originally being cang called “SENESI or TENETI” and the name later changed to “DENDELE”. When the MCH card was opened, it recorded previous children as:- “Siblings - alive 1 Dead” which fits in with Ibame’s death and Dendele being the second child. I therefore find that at the time of the alleged offence in February 1986, Dendele was not 16 years and was in fact 17 years and 11 months.

4. ;ټ The 3rde 3rd childchild BEPA was born on 11.11.70. The Ante Natal Card preceding the birth had recorded “Previistor DiedDendele)” which confirms DENDELE’s birth above. When Been Bepapa’s217;s MCH card was first being made out, after Bepa’s birth, I accept Sister Mulholland’s explanation that the family’s personal particulars were copied from Dendele’s MCH card and that the sister first mistakenly copied Dendele’s name, birth weight, date of birth and delivery (village or clinic) onto Bepa’s card, then realising her mistake, she erased these first 4 entries and wrote in the correct entries for Bepa. This is supported by the fact that the 5th entry did not copy Dendele’s card but correctly recorded “Siblings 1 alive (i.e. Dendele) and 1 Dead” (i.e. Ibame).

5. Tue foanth ast lhildc TAGI TAGIRA, was born in 1974.

These findings are also supported by the census records when theus waductethe ve in Dendas then recorded as having been born abou about 196t 1969 and9 and Bepa Bepa in 1 in 1970.<970.

As contrasted with the Clinic Cards, the school records, sought to be relied on by the prosecution are unreliable. The Badihagwa High School record gives her date of birth as 15.11.70 and the school transfer certificate which the accused, as Minister of Education got from the Tari High School, gives a birth date as 1970, but the Court does not know what was the source of this information. I think it likely that it being realised that Dendele may have been too old at nearly 18 years of age, to be admitted to Grade 9, that her age was put back by 2 years and 8 months and a false date of birth given in order to get her admitted at Badihagwa High School.

The submission by the State that an attempt was made to change Bepa’s MCH card - Ex DD, into Dendele’s MCH card is not supported by the evidence. It leaves unexplained both the unaltered Dendele’s Ante Natal Card and Dendele’s MCH card - Ex EE, in which Sister Dowman has identified each of the 3 pages of recordings and notes on examination over a period of 5 years, as her handwriting. This evidence is supported by the evidence of Sister Mulholland and Sister Stothart. These three sisters and Sister Porovi also support the authenticity and reliability of both Bepa’s card and Dendele’s cards.

On the basis of these findings and on the evidence, I find the accused not guilty of the charge of unlawful carnal knowledge of Dendele under 16 years of age and he is acquitted and discharged.

In reviewing the whole of the evidence on this trial, I refer to the findings of facts made by me at the end of the voire dire on the rape charge and advise that it is my intention to refer the transcript of the evidence in this trial to the Public Prosecutor and the Commissioner of Police with the recommendation that the following charges be laid against the following persons:-

1) &ـ <6>That>That the Pthe Prosecutrix, Tendele Tayanda, be charged with perjury under s 121 of the Criminal Code, in that she knowingly gave false testiconce the ent at the accused’s house in Porn Port Mort Moresby esby in February 1986.

At the opening of this trial in the National Court on the 18th of July 1988 the State advised the Court that on the basis of a signed written statement which Tendele had made to the Police in December 1987, she stated that in February 1986 when the accused Aruru Matiabe and herself were alone in Matiabe’s house in Port Moresby, he had entered her room, struggled with her, torn off her clothes, forced her onto a bed and raped her, that this was the first occasion she had had sexual intercourse, that it had caused her considerable pain, that she screamed and that she bled heavily. Tendele had further stated to the Police that following this incident, Aruru Matiabe had threatened her not to tell anyone about it, that on a number of subsequent occasions he forced her to have sexual intercourse and that as a result, she became pregnant and gave birth to a female child. But on the 23rd of November 1988 when Tendele was called as a State witness she then knowingly gave false testimony to this court, when she retracted the above allegations and falsely swore on oath that the sexual relations which occured in February 1986 were with her complete consent, that Matiabe’s wife and children were in the house at the time, that she herself willingly removed her clothes and that they were not forcibly taken off her by Matiabe.

2) ThatrDagaya Ta

(1) Perjury under s 121 of thm Criminal Code in that:-