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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO 83 OF 2005
THE STATE
V
FRANK KUI MAKELE
Kimbe: Cannings J
2007: 14, 15, 22 May
CRIMINAL LAW – Criminal Code, Division IV.2A, Sexual Offences Against Children – Section 229A, sexual penetration of a child – denial by accused –trial.
The accused was charged with engaging in an act of sexual penetration with a child, a 13-year-old girl, contrary to Section 229A(1) of the Criminal Code. He pleaded not guilty, denying that he ever had sex with the girl. She gave evidence, as did her mother and her father, to whom she reported the incident. The medical evidence was inconclusive.
Held:
Cases cited
The following case is cited in the judgment:
The State v Alex Matasol Hagali CR No 928 of 1997, 28.09.06
The State v James Yali (2005) N2988
The State v Jimmy Aiyo CR No 147 of 2005, 28.09.06
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
F Popeu, for the State
O Oiveka, for the accused
22 May, 2007
1. CANNINGS J: Frank Kui Makele, the accused, is charged with engaging in an act of sexual penetration with a child under the age of 16 years. The State alleges that the incident happened at Balangore village, Vitu Island, WNB, on Independence Day, 16 September 2004. The complainant – the person against whom the offence was allegedly committed – is a girl, called "V" to protect her identity. She was born on 23 November 1990, so she was 13, going on 14, at the time. She gave evidence in the trial. She is now aged 16 and a half. Frank Kui is a young man in his 20s. His age and capacity are not in issue. It is not suggested that he was a juvenile or that he lacked the physical or mental capacity to commit the offence. The law on sexual offences against children was changed in 2003. A new provision of the Criminal Code, Section 229A, makes it an offence to engage in an act of sexual penetration with a child under 16. "Sexual penetration" is defined by Section 6 of the Criminal Code. It includes "the introduction, to any extent, by a person of his penis into the vagina, anus or mouth of another person". Frank Kui is charged with introducing his penis into the complainant's vagina.
2. An offence under Section 229A is a serious one. If the child is aged from 12 to 16, the maximum penalty is 25 years imprisonment. If the child is aged under 12 or there is an existing relationship of trust between the offender and the child the maximum is life imprisonment. It is not a defence against this sort of charge that the child consented, unless the accused believed on reasonable grounds that the child was aged more than 16 or the accused was less than two years older than the child (see Section 229F).
3. Frank Kui denies having sex with V, so there is no issue about whether either of the defences under Section 229F applies. The State does not have to prove lack of consent. If the accused were charged with rape, the State would have to prove lack of consent (see Section 347). But absence of consent is not an element of the offence under Section 229A. In his police interview, conducted on 1 December 2004, Frank Kui stated that he had never had sex with V at any time. He had had no trouble with her. He had not befriended her.
4. The conventional rules that required courts to be cautious about finding a person guilty of rape or other sexual offences on the uncorroborated testimony of one witness, no longer apply in PNG. I am required by Section 229H of the Criminal Code not to instruct myself that it is unsafe to find the accused guilty in the absence of corroboration.
THE KEY ISSUE
5. As everyone accepts that V was aged 13, the only issue is whether Frank Kui sexually penetrated her at Vitu on 16 September 2004.
EVIDENCE FOR THE STATE
6. The State's case was primarily based on the following evidence:
THE COMPLAINANT, "V"
7. She recalls that on Independence Day 2004 she was at her village Balangore. The village people were celebrating Independence all day. After the celebrations she went to her house, then to the bush to go to the toilet. There is a special place about 50 metres from the house which is used as a toilet. There are hills and a small cave with bushes around it. The toilet place is not visible from the house as there are trees in between. She got up and was on her way back to the house when Frank Kui called her over towards him, offering betel nut. She went over to get some betel nut then he grabbed her hand and forced her to the ground. He took her trousers off and sexually penetrated her. He held on to her tightly and pushed his penis into her vagina. She felt a lot of pain. She had never had sex before. She was wearing a shirt and skirt with trousers inside. She tried to call out when he was holding her but he closed her mouth. The incident happened about 3.00 pm. He got up and ran away. She cried and went to her mother, who was at the house. She told her what had just happened. At that time her father was at the grandstand where the celebrations were going on. That is about 200 metres from the house. She does not know Frank Kui all that well but he is from the same village and a distant relative. She did not know what he had in mind to do to her.
8. In cross-examination she said that she did not know whether Frank Kui was taking part in the games at the Independence celebrations. If he is saying that he was playing touch rugby until 4.00 pm, she did not see him there at that time. She denied the suggestion put to her by Mr Oiveka that when her relatives found out what had happened they assaulted her. There is no aid-post at Balangore. The nearest one is the Vitu health centre. She did not go there for a medical check as her father said that he would take her to Kimbe for that purpose. She went for a check-up at Kimbe General Hospital in October 2004. Her father gave her some medicine that he got from a doctor, who is one of her uncles. She took amoxicillin. As a result of the attack her clothes were soiled and wet. V is now aged 16½. I arranged for her height to be measured in court. She is 146 cm tall. She estimated that her height at the time of incident was 120 cm.
BERTINA PHILIP – THE MOTHER
9. She recalls the incident on Independence Day 2004. She was at her haus kuk when her daughter, V, came to her, crying. V's clothes were soiled, there was grass on them. V told her that Frank Kui had grabbed her and had sex with her. V had come from the direction of the toilet area. It is about 50 metres away from the house. The toilet area is not visible from the house. She held her daughter and cried with her. She then sent word up to her husband. He was at the grandstand. He was an official in the Independence celebrations. He came fairly soon. They talked about the problem and what they were going to do about it. Some of her husband's relatives came to join them when they found out about what happened. They looked for Frank Kui but he had run away. They took V to Kimbe General Hospital at the time of the mask festival in 2004.
10. In cross-examination Bertina said that V was not a big girl at the time, she was only in grade 4. When V came towards her from the toilet area she was walking quickly and crying. She was not bleeding but her trousers and lap-lap were wet and the back of her head was dirty. Asked why they left it to the following month to get V medically checked, Bertina replied that they did not know how the court worked. It was only when they reported the matter to Kimbe Police that they were told about the need to have V checked by a doctor. Mr Oiveka, for the accused, put it to Bertina that the reason they did not take V to the health centre on Vitu is that nothing actually happened. She repeated that the reason was that they did not know that the court would require that information. All she knows, she said, is that her daughter came to her crying, her clothes were soiled, she told her what had happened to her and she believed it. V was not walking properly and she saw sperm on V's trousers.
PHILIP RUKU– THE FATHER
11. He was at the grandstand as he was a committee member for the Independence celebrations on Vitu. His other children came to the grandstand relaying the message that his wife wanted him urgently. He came down, then his wife told him what had happened. He looked at V. Her hair was soiled, her eyes were not good and her lap-lap was wet. He felt worried about his daughter. His cousin-brother came, after hearing what happened. He and his cousin-brother went looking for Frank Kui. They went to his house, about 150 metres from their house. But he was not there. They thought he might have been in the bush so they looked there. They wanted to fight him. They wanted to take him to the law but it seemed that he had run away to another village, 20 kilometres away. The next thing they heard, he had got on a ship to Kimbe. They came to Kimbe for the Tavur Show, about three weeks after the incident. They went to see the police but the police were very busy with the show. When the show ended and the police were not so busy, the police arrested Frank Kui and put him in the cells. He did not see Frank Kui playing in any of the games. Those games were played after the incident occurred.
12. In cross-examination Mr Oiveka put to Philip that there would have been too many people involved in the Independence activities to notice whether Frank Kui was there. There were sing-sing groups, choirs, string bands, and people playing rugby touch, so how could he say that Frank Kui was not there? Philip replied that he saw Frank Kui in the games and the sing-sings that took place before lunch. After lunch he did not see him. He was adamant that Frank Kui was not there in the afternoon. The population of Balangore is more than five hundred. He was keeping an eye on the activities and Frank Kui was not there in the afternoon. The health centre on Vitu Island is about nine kilometres from their house. It is staffed by nurses. Asked why he did not take his daughter to the clinic, he said he did not appreciate the importance of getting her medically examined until they came to Kimbe to report the matter to the police. The police advised them to take her to the hospital, which they did straight away. Mr Oiveka put to him that if the incident really happened as alleged than he, as a father, would have been much more concerned about his daughter's physical welfare. The fact that he did not take her to the hospital until several weeks later suggests that he was not worried about her; and that was because nothing actually happened. Philip replied that when he got the report of what happened he was angry. When he saw the condition his daughter was in, all he could think about was finding Frank Kui. He wanted to fight him. Two days later, he did see a doctor at the village who gave him some medicine, which he gave to V.
DOMINIC KAIMO – HEO
13. He prepared a medical report after examining V on 19 October 2004 (a month after the alleged incident) at Kimbe General Hospital. His report stated:
| Per Vagina Exam | →Semen seen, offensive |
| | →hymen torn, infected, rough |
| Wet prep | →no spermatozoa seen |
| G/Stain | →no spermatozoa seen |
| | →GP Rods |
There was obvious vaginal penetration.
14. In his oral evidence Mr Kaimo confirmed his opinion that there had been vaginal penetration. He observed semen but no sperm, which survives for only 72 hours. The offensive character of the semen deposit suggested that it had been in the system a long time, more than three days. The tear on the hymen indicated that she was a virgin prior to penetration. It was not unusual to be able to see dry semen within the vaginal wall a month after penetration. Mr Kaimo's evidence marked the close of the State's case.
THE DEFENCE CASE
15. The defence case consisted solely of the accused's unsworn statement from the dock. He stated that he was involved in the Independence celebrations all day from the morning until they finished at about 6 o'clock in the evening. He did not go anywhere else. V's father was on the grandstand. After the celebrations finished he went to his house. He had a wash in a drum of water outside the house, had something to eat, then went to sleep. He did not sleep in the house. He slept on a bed outside the house until the next morning. If Philip had truly gone looking for him when he said he did, he would have found him and could have killed him, as he was sleeping on the bed outside the house. When he woke up he felt like a free man. He had no troubles. He was walking around in the village. Nobody was after him. He did not hear about any of this trouble until 27 September 2004. He went to the wharf on Vitu. Philip was there and saw him get on a ship to Kimbe. He was going to the Tavur Show. He was staying on a block at the back of Nivani near Kimbe. The next thing he knew, the police came and got him. He co-operated with them but they took him to the cells. Later he was sent to Lakiemata Jail. He was in remand for one year and six months before getting bail.
THE ISSUES IN DETAIL
16. The nature of the evide
nce and submissions of counsel give rise to these issues:
17. In light of the answers to those questions, I will need to address the key issue set out at the beginning of this judgment:
1 HOW CREDIBLE ARE THE STATE WITNESSES?
18. This is a case that turns on the credibility of the State's witnesses, in particular the complainant. The accused has presented little evidence to rebut the evidence of the State. The medical evidence is inconclusive. The court must ask intensively: is the complainant telling the truth? Was she an honest witness? In answering that question I have examined her demeanour, ie the way she carried herself in the witness box. I have looked at the amount of detail that she has given of the incident. I have considered the level of consistency between her evidence and the evidence of her mother and father, in particular regarding her physical appearance when she was said to have reported to the incident to her mother. Considering all of those things I have concluded that her demeanour was not of someone who was lying. The details she provided were sufficient. She handled herself capably under cross-examination. She did not change her story. She gave the impression of telling the truth. Likewise with her mother. She presented as someone who had reacted in a way a typical mother would in such a situation. Her daughter had come to her in some distress crying and alleging that, in effect, she has just been raped. I thought the mother's evidence was credible. As for Philip Ruku, the father, he gave evidence in what I considered a candid manner. He admitted that he wanted to find Frank Kui and fight him. He heard the story. He saw the condition of his daughter. He became angry. He gave the impression that was telling the truth. The three main State witnesses gave credible evidence.
2 WERE THERE ANY TELLTALE SIGNS OF RAPE?
19. I use the term 'rape' advisedly. Frank Kui is not charged with rape. But the allegation against him is that, in fact, he raped the complainant – he sexually penetrated her without her consent. As that is the nature of the factual allegation, what evidence or telltale signs are there, that a rape took place? Mr Oiveka submitted that there was no evidence of torn clothing or physical bruising, scratches or signs of physical assault on the complainant. The complainant says the clothes that she was wearing at the time of the incident are still in the village. So there is nothing to go on there. The evidence suggests that she was not physically harmed in the incident as her parents did not take her for medical treatment until a few weeks later. They got some medicine for her a couple of days after the incident but even that delay suggests that, whatever happened, she was not physically disturbed. This lack of evidence, Mr Oiveka submitted, sheds considerable doubt on whether any incident of the sort described by the complainant actually took place. These were valid submissions, properly made. However, the lack of telltale signs of rape of the sort highlighted by Mr Oiveka does not give rise to significant doubt about the truth of the complainant's evidence. It may well have been that she was not seriously physically harmed in the incident. 20. This may have been because the accused, being a much physically stronger person than the complainant, did not have to exert excessive force to penetrate her. It is reasonable to infer that he was easily able to overpower her. Moreover, the evidence of both the mother and the father is that V was distressed, her clothes and hair were soiled; so they are sufficient signs of rape to support the basic allegation.
3 HOW USEFUL IS THE MEDICAL REPORT?
21. It is inconclusive as the medical examination was not conducted until more than a month after the incident. However, it is not inconsistent with the complainant's evidence. It suggests that she had been penetrated in the last month or so.
22. Mr Oiveka submitted that the one-month delay in reporting the matter to the police showed that no incident of the sort described by the complainant actually occurred. I agree that this aspect of the evidence on the face of it tends to make the complainant's version of events less believable. It suggests that she had not been seriously injured, physical or emotionally, by whatever happened. However, I consider that her parents had a reasonable explanation for the delay. Vitu is a remote location. It is about ten hours by ship from Kimbe. Ships go only every now and then. The evidence is that the matter was reported to the police as soon as the complainant's father arrived in Kimbe. That was about a month after the incident. The delay in getting the medical report could be explained by the same factors. Therefore I conclude the delay in reporting the matter is reasonably explicable.
5 HOW BELIEVABLE IS THE ACCUSED'S STORY?
23. It is evident from the above assessment of the evidence that the complainant's evidence version of events is believable, due in large part to the credibility of the State's witness. The strength of the State's case means that Frank Kui had to present credible evidence to create reasonable doubt about the truth of what the State's witness said. He elected, as was his right, to make an unsworn statement from the dock. He was not exposed to any cross-examination. The story he told was in the nature of an alibi, ie he was somewhere else at the time. He said he was taking part in the celebrations for Independence. The problem with the alibi is that it was very general and it was uncorroborated. He did not say exactly what he was doing, when he was doing it, where he was or who he was with. No one has come forward to verify Frank Kui's claim. Likewise with his story that he remained at his village until 27 September 2004, 11 days after Independence. He said the complainant's father saw him get on to a ship to Kimbe and there was no problem. This evidence, if true, would seriously dent the State's case. However, there was no evidence to support what Frank Kui was saying. I do not believe his story.
24. As I pointed out in The State v James Yali (2005) N2988, in a rape case – or any case of alleged sexual assault – it is not a simple matter of deciding who to believe. An accused cannot be convicted only on the basis of suspicion or belief on the part of the tribunal of fact (the court) that the accused sexually penetrated the complainant. The court cannot decide guilt or innocence simply on the basis of whether the complainant's evidence is believed. (Also see The State v Alex Matasol Hagali CR No 928 of 1997, 28.09.06 and The State v Jimmy Aiyo CR No 147 of 2005, 28.09.06.) The court's task is, rather, to determine, having weighed all the evidence and considered whether there are reasonable grounds for believing whose evidence is to be believed, whether it is satisfied to the required criminal standard of proof – beyond reasonable doubt – that each element of the offence exists. If there is a reasonable doubt as to the existence of any one or more of the elements, the court is obliged to acquit the accused. In this case, the question to ask is whether the prosecution has discharged the onus of proving beyond reasonable doubt that the accused sexually penetrated the complainant. As I said at the beginning of the judgment, the complainant's age is not in issue. It is accepted that she was less than 16 years old at the time. The State has presented a believable case. The State witnesses gave credible evidence. Though it appears that the complainant was not seriously physically harmed, that does not mean that there was no sexual penetration. The medical report, though inconclusive, is generally consistent with the complainant's claims. The delay in reporting the matter is explicable. The accused's version of events is not believable and there was no evidence to support it. I am therefore satisfied beyond reasonable doubt that the accused sexually penetrated the complainant at Vitu on 16 September 2004
VERDICT
25. I find that the accused, Frank Kui Mekele, is guilty of engaging in an act of sexual penetration with a child under the age of 16 years and convict him accordingly.
Verdict accordingly.
___________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused
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