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State v Seneka [1991] PGNC 5; N970 (21 February 1991)

Unreported National Court Decisions

N970

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO. 973 OF 1990
STATE
V
BOB MADAHA SENEKA

Waigani

Hinchliffe J
21 February 1991

CRIMINAL LAW - Incest - Plea of not guilty - Prosecutrix not blood daughter of accused - Evidence of sexual interference - Not guilty finding - Recommend further charges under the code.

Accused was charged with having committed incest on his blood daughter over a period of three years, court found evidence of sexual interference of the prosecutrix by the accused but was not satisfied that the prosecutrix was the blood daughter of the accused.

Held:

The law is clear that the charge cannot stand unless the victim is the blood daughter of the accused. Therefore the accused found not guilty.

Recommend:

Other possible charge under the criminal code to be considered at the earliest possible time.

Cases Cited:

There were no cases cited in this judgement.

Counsel:

J Kera, for State

M Doiwa, for Defendant

21 February 1991

HINCHLIFFE J: The accused has pleaded not guilty that between July, 1987 and March 1990 at Port Moresby and Boera Village he carnally knew Sibona Seneka who was his daughter as he well knew then was his blood daughter. The charge is laid under S.223(1) of the Criminal Code.

The State case is that the accused has tampered sexually with his daughter for approximately three years and had sexual intercourse with her on several occasions. It claims that Sibona was the blood daughter of the accused and his wife Pepe.

The defence case, on the other hand, is that not only was Sibona not the blood daughter of the accused, the accused never had sexual intercourse with her and never took part in any sexual activity with her.

Sibona gave evidence and although she got off to a shaky start she soon gave her evidence in very impressive manner. I was impressed with her as a witness and I found her to be a witness of truth. She told her story with clarity and determination and to suggest that she lied and made the whole story up is quite ridiculous. She is only thirteen years old and it would surprise me somewhat if a girl of that tender age could have such a vivid imagination. I also do not accept the suggestion that her Uncle Lohia Kohu told her to tell the police lies and also to give Welfare a fabricated story. The said Lohia also gave evidence and I found him also to be a witness of truth.

Sibona said that the accused was her father and by that I assume that she was saying that the accused was her blood father. Naturally she would not know for certain that Mr Seneka was her blood father but clearly she thought he was because she had never been told anything to the contrary.

Lohia Kohu also could not say for certain that the accused was the natural father of Sibona but he also had not heard anything to the contrary. There is no dispute that Sibona was born out of wedlock and that the accused and Sibona’s mother were married about three months after Sibona was born.

Lohia and Sibona were the only witnesses to give verbal evidence for the State. A number of documents were tendered into evidence but to my mind they did not take the matter of natural fatherhood any further.

The accused gave evidence and denied any sexual contact with his daughter or that he was the natural father. I found the accused to be a very poor witness. He did not impress me and I am fully satisfied that he was a dishonest witness. I do not believe his denial of sexual intercourse. He would have the Court believe that Sibona, a girl of thirteen years, was some sort of a sexual pervert who was making the whole story up because her father gave her beatings. I can infer from the evidence that the accused is a violent person and he is also a bully. He lied in the witness box. He was unimpressive as a witness and at times it was clear to me through his actions, the tone of his voice and sometimes his confused answers that he was deceiving the Court. He lied about when he first met his wife because he was doing his utmost to convince the Court that he did not have any communication with her until she was about six months pregnant. That was clearly a lie because his wife gave evidence that they met in the middle part of 1976. She said that she was several months pregnant when she first met the accused but he was not aware of her condition. To a certain extent I was quite impressed with her evidence. She was quite brave to admit publicly in this Court that back in 1976 she was having sexual intercourse with two different men and then the accused came along and he became the third. She now has tarnished her own name and reputation for all time. In effect she has openly admitted to having been a woman of few morals at the time she met Mr Seneka.

It has been suggested that she lied about these other men to clear her husband of the charge. If that was the case I would be surprised. I ask myself - would the blood mother of a child who has been sexually abused over several years in a quite disgusting way protect the man who did it? I think not. Would she also be prepared to tell the world that she had been a loose woman, thereby destroying her reputation, when it was not true? All this to protect the man that may well have psychologically destroyed her daughter for life. Would a mother do that against her own daughter? I would hope not. Mrs Seneka named the natural father of Sibona and quite frankly I am not in a position to say it is not true. I can’t say she is telling lies about it. Even though her evidence varied at times to her husband, particularly in relation to some dates, it must not be forgotten that we are talking about something that occurred fourteen years ago. The fact that there is some variation only goes to show that the accused and his wife more than likely did not concoct their story together. Otherwise the times and dates would be identical.

I am not in any position to say Mrs Serka is lying and I am of the view that her account of events is quite believable. I am inclined to the view that anyone of the three men could be the father and I could not possibly be satisfied beyond reasonable doubt that the accused is the natural father of the victim.

The law is settled that the charge cannot stand unless the victim is in fact the blood daughter of the accused. I am not satisfied beyond reasonable doubt that she is, therefore I must find the accused not guilty, and I so find.

Finally I wish to say the following. I am quite satisfied that the accused, over several years, sexually assaulted and at times had sexual intercourse with his very young and innocent daughter. She did not consent. She was frightened of him. At times he physically belted her in a violent manner. The community is appalled by the disgusting and vile actions of a father who treats his daughter in such a way. His lust for a young girl, let alone his daughter, is quite unnatural and makes one feel quite uneasy in the stomach. To make things worse this man is a school teacher at one of Port Moresby’s better and more well known High Schools. He should not be allowed to have such access to young people. I consider him to be quite dangerous and a menace to society.

Even though he has been found not guilty under S.223(1) of the Criminal Code many would say he “beat” the charge on a technicality. Clearly the prosecution should not stop here but consider other charges against him under the Code.

There are several that should be considered and the one that comes immediately to my mind is, rape. This person has shown no remorse in what he has done. He has allowed his innocent daughter to go into a witness box, to be cross-examined and to be called a liar, in public.

I urge the prosecution to consider further charges at the earliest possible time to ensure that justice is done.

Lawyer for State: Public Prosecutor

Lawyer for Defendant: Public Solicitor