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State v Jonathan [2009] PGNC 153; N3764 (22 October 2009)

N3764

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 457 0F 2009

THE STATE

V

AMOS JONATHAN

CANNINGS J

Bialla: 18, 19 May 2009
Kimbe: 20 May, 24 June, 22 October 2009

VERDICT

CRIMINAL LAW – trial – engaging in act of sexual penetration with child under age of 16 years, Criminal Code, Section 229A(1) – circumstances of aggravation, Criminal Code, Section 229A(3) – whether act of sexual penetration was engaged in – definition of "sexual penetration", Criminal Code, Section 6 – relationship of trust, authority and dependency, Criminal Code, Section 6A(2)(c).

The accused, a mature aged man, was charged with an offence under Section 229A(1) of the Criminal Code: engaging in an act of sexual penetration with a child under the age of 16 years. The child, a girl, was four years old and the accused’s biological granddaughter and adopted daughter. Her age (less than 12) and the existing relationship of trust, authority and dependency between her and the accused were charged as circumstances of aggravation, and were undisputed facts. The accused pleaded not guilty. The complainant gave direct evidence that the accused had penetrated her and the remaining evidence was circumstantial. There was a medical report indicating sexual penetration. The accused gave sworn evidence denying that he had sexually penetrated the complainant and there were four other defence witnesses.

Held:

(1) The two elements of an offence under Section 229A(1) are that:

- the accused engaged in an act of sexual penetration with another person; and

- the other person was a child under the age of 16 years.

(2) "Sexual penetration" is defined by Section 6 of the Criminal Code to include the introduction, to any extent, by a person of his penis or an object or a part of his body into the vagina of another person.

(3) Here, the complainant’s oral testimony, corroborated by the evidence of the complainant’s grandmother and aunty, and the medical evidence (absence of hymen and other evidence of vaginal penetration) was sufficient to prove beyond reasonable doubt that the accused introduced his penis to some extent into the complainant’s vagina. The element of sexual penetration was proven.

(4) There being no dispute about the age of the child or the existing relationship of trust etc between the accused and her, the accused was found guilty in the circumstances of aggravation charged in the indictment.

Cases cited

The following cases are cited in the judgment:

Didei v The State [1990] PNGLR 458
Java Johnson Beraro v The State [1988-89] PNGLR 562
Paulus Pawa v The State [1981] PNGLR 498
Rolf Schubert v The State [1979] PNGLR 66
The State v Arnold Kulami (2009) N3632
The State v John Ritsi Kutetoa (2005) N2514
The State v John Saganu [1994] PNGLR 308
The State v John Warkuvo (2002) N2372
The State v Kewa Kai [1976] PNGLR 481
Tommy Morikawa v The State (2000) SC656

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

A Kupmain, for the State
J Unido, for the accused

22 October, 2009

1. CANNINGS J: Amos Jonathan, the accused, is a man aged in his 40s who lives in the Bialla area of West New Britain. He is charged with an offence under Section 229A(1) of the Criminal Code: engaging in an act of sexual penetration with a child under the age of 16 years. The child, a girl called "J" – the complainant – was four years old at the time and is the accused’s granddaughter.

2. The State alleges that while J was staying with the accused at his house at the Hargy Mill residential compound at Bialla in early April 2008 he sexually penetrated her by introducing his penis into her vagina. J has been raised by the accused and his wife, Susan Koti. She regards them as her father and mother. They are her biological grandparents.

3. The accused has pleaded not guilty. He denies sexually penetrating the complainant.

ELEMENTS AND ISSUES

4. Section 229A(1) (sexual penetration of a child) of the Criminal Code states:

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.

5. The two elements of an offence under Section 229A(1) are that:

- the accused engaged in an act of sexual penetration with another person; and

- the other person was a child under the aged of 16 years.

6. The indictment under which the accused has been charged alleges two circumstances of aggravation:

- the child was under the age of 12 years (a circumstance of aggravation under Section 229A(2)); and

- there was an existing relationship of trust, authority or dependency between the accused and the child (a circumstance of aggravation under Section 229A(3)).

7. The second element of the offence and the circumstances of aggravation are not contested by the defence. It is agreed that the complainant was four years old at the time and that a relationship of trust existed as the accused was her grandfather (a relationship of trust under Section 6A(2)(c)). The significance of these matters is that if the accused is convicted he will be liable to a maximum penalty of life imprisonment rather than a maximum – if there were no circumstances of aggravation – of 25 years.

8. The only issue is whether the accused engaged in an act of sexual penetration with the complainant. The State bears the onus of proving this beyond reasonable doubt. "Sexual penetration" is defined by Section 6 of the Criminal Code:

When the expression "sexual penetration" or "sexually penetrates" are used in the definition of an offence, the offence, so far as regards that element of it, is complete where there is—

(a) the introduction, to any extent, by a person of his penis into the vagina, anus or mouth of another person; or

(b) the introduction, to any extent, by a person of an object or a part of his or her body (other than the penis) into the vagina or anus of another person, other than in the course of a procedure carried out in good faith for medical or hygienic purposes.

9. The sort of penetration alleged in this case is covered by Section 6(a): the accused to some extent introduced (ie inserted) his penis into the complainant’s vagina. It is not necessary to prove complete penetration (The State v Arnold Kulami (2009) N3632).

DID THE ACCUSED INTRODUCE HIS PENIS INTO THE COMPLAINANT’S VAGINA?

10. Determination of this issue requires:

- a summary and consideration of the evidence for the State;

- a summary and consideration of the evidence for the defence;

- a preliminary assessment of the State’s case in light of the evidence for the defence;

- a summary and consideration of the defence counsel’s submissions;

- an assessment of the defence counsel’s submissions; and then

- a final determination of whether the accused did the act in question.

EVIDENCE FOR THE STATE

11. It consisted of:

- oral testimony of the HEO, James Managen, who examined the complainant, and the medical report and affidavit he prepared;

- oral testimony of the nursing sister, Oini Ume, who also examined the complainant;

- oral testimony of the complainant, J;

- oral testimony of J’s grandmother (and de facto mother) Susan Koti;

- oral testimony of J’s aunty, Luisa Huvi;

- the accused’s record of interview.

The HEO’s evidence

12. James Managen has been an HEO for 14 years and has been based at Bialla Health Centre for eight years. The complainant was brought in on 14 April 2008 for a medical examination as she had allegedly been sexually penetrated by her grandfather. He and Sister Oini Ume examined her and prepared a report, stating:

This child was allegedly sexually penetrated by her Bubu, taken for medical evidence and these are our findings:

1. Complaints: The child was taken for medical examinations and reporting following an allegation of vaginal penetration by her Bubu one week ago.

2. Specific questions: The child is febrile, had swelling and pains over the vagina and surrounding genital area but now reducing swelling and pains. The child did not get any medications or taken for other medical care since the incident.

3. Vaginal examinations:

(a) Healed scratches dark marks over the perineum tissues.

(b) Hymen is absent.

(c) Orifice is opened (may allow little finger to pass).

(d) No fresh lacerations or secretions or discharges.

4. Results of findings: The child’s vaginal covering is absent and the vaginal opening is fairly big not normal to such little girl, meaning that vaginal penetrations had taken place to the child. [sic]

13. In cross-examination Mr Managen denied that he told other people in Bialla about the medical examination. He told anybody who asked him that he would not divulge such confidential information.

The nursing sister’s evidence

14. Sister Oini Ume has 18 years experience as a nursing officer. She has been a qualified midwife for three years. She recalls the medical examination of the complainant, which was conducted on 14 April, and agrees with the findings of the report, which she counter-signed with Mr Managen.

Evidence of the complainant, "J"

15. J was almost six years old when she gave her evidence (her sixth birthday was in June 2009 and she gave evidence on 18 May 2009). In view of her age, it was necessary to conduct an inquiry to determine her capacity to comprehend the nature of truth. I considered Section 6 of the Oaths, Affirmations and Statutory Declarations Act Chapter 317. I also considered guidelines for reception of evidence by child witnesses given by the Supreme Court in Rolf Schubert v The State [1979] PNGLR 66 and Java Johnson Beraro v The State [1988-89] PNGLR 562.

16. Upon answering questions from me, she understood that the lawyers would ask her questions about what happened. She understood that if she did not tell the truth God would not be happy with her and that she could be punished. I was satisfied that she understood the meaning and importance of truth.

17. Defence counsel, Mr Unido, raised no objection to her competence as a witness or the admissibility of her evidence. I concluded that she was a competent witness and her evidence, though unsworn, was admissible.

18. Upon the application of the prosecutor, Mr Kupmain, and the consent of Mr Unido, I allowed a female officer to sit next to J as a support person and ordered that the court be closed to the public while she gave evidence. These special measures were ordered under Sections 37B(1)(a) and (b) and (2)(b) and (f) of the Evidence Act.

19. In examination-in-chief J said that she and the accused, who she referred to as "Daddy", used to sleep together and he would put his penis in her vagina and take it out. He told her not to tell Mummy or he would kill her.

20. In cross-examination she said that it happened at night time. After this happened Mummy took her to "the Highway" to sleep. She used to play with other children there and climb trees, though she does not go all the way up. The incidents with Daddy happened three times. She could not walk properly after it happened. When she was being washed she felt pain.

21. In re-examination she said that she did not tell Mummy when Daddy did that thing in the night.

22. Answering questions from the bench, J said that when Daddy did that thing to her she felt pain in the groin. He did it three times. Nobody else did it to her. She did not feel good when he did it but there was no bleeding.

Evidence of the complainant’s grandmother

23. Susan Koti is the estranged wife of the accused, Amos Jonathan. She is J’s grandmother: the person J calls Mummy. She and Amos have four children and J is the daughter of their eldest daughter, Marilyn, who is a teacher at Mamota.

24. She and Amos have had marital problems. She left him and she now lives in the village. She let J remain with Amos as J was going to elementary school close to Amos’s house. On or about 7 or 8 April 2008 Marilyn took J from Amos’s house and brought her to the village.

25. Susan noticed that J was not walking properly and asked her what the problem was. She replied that she had a boil on her bottom. After five days Susan’s sister, Luisa, washed her and J cried in pain. Susan saw that her vagina was red and there were scratches to the side of it. Susan asked her who had been playing with her and she replied that it was Daddy. The next day she took J to the health centre where she was examined by Mr Managen and Sister Oini and they compiled a medical report, which she took to the police. She had been bathing J during the five days before the real problem was discovered and J had been crying in pain but she thought that was because of a boil. In that time J was not walking properly.

26. In cross-examination Susan said that she took J to the health centre on a Sunday and picked up the report the next day.

27. Asked about the time that Marilyn brought J to her, Susan said that J was not walking properly. Marilyn did not say anything about it as she was not really concerned about J and had remarried. That is why she and Amos had adopted J. It was holiday time and there was no one to stay with J. Other people in the house could see that J was not walking properly. She confirmed that she had checked J after Luisa had pointed out the problem to her. The scratches had not healed at that stage.

28. She was quizzed over the details of her marital problems. It was true that in 2006 she paid Amos compensation for adultery and in 2008 she had a relationship with Amos’s supervisor and that was the reason she left Amos’s house. Amos had done a lot of bad things to her over the years including spoiling her name in public and calling her an A grade adulteress. She had at one stage taken out a court order to prevent him coming on to her block as he had assaulted her. He was also turning their son to drugs. She was still cross with Amos because he had not apologised for assaulting her.

29. Mr Unido put it to her that it was because of the grudges she bore against Amos that she was accusing him of damaging J. ‘I am not accusing him for nothing’, she replied.

The aunty’s evidence

30. Luisa Huvi is Susan’s elder sister. Susan came to live with her at the village when she left Amos. She looks upon J as her grandchild.

31. She recalls washing J at about 4.00 pm on Saturday 12 April 2008. Water went down her groin and she cried in pain. She told Susan to take her to the room and check her, which she did. Then Susan called her in and she saw that J had scratches around her vagina, which was very red. She told Susan to take her to the health centre the next day, which she did. Marilyn had brought J to her house, where Susan was staying, on or about April 7.

32. In cross-examination Luisa said that she was aware of the marital problems that Amos and Susan had but she was not directly involved in them. She had noticed that J had not been walking properly since Marilyn brought her to stay with them. She was walking like a duck. She was concerned and asked Susan about it and Susan said that she had already asked J who said that she had a boil. She did not check it herself as Susan and Marilyn were there and she thought that they would check it.

33. Prior to April 12 she had washed J at the river. J had also cried on those occasions and she and Susan had got cross with her and told her to stop crying like a baby.

The accused’s record of interview

34. Amos Jonathan was interviewed on 25 October 2008. He is from Kubalia, East Sepik Province. He is employed as a mechanical fitter with Hargy Oil Palms and lives at the Hargy Mill compound. Susan had left J with him in early 2008 because of their marital problems. Susan went to stay at Rumaili, at Area 7. J lived with him for about three months. He repeatedly denied sexually penetrating her.

EVIDENCE FOR THE DEFENCE

35. Five witnesses gave sworn evidence:

- the accused;

- the accused’s uncle, Thomas Pali;

- the accused’s friend, Rex Simon;

- the accused’s son, Kalsie Jonathan; and

- the accused’s nephew, Sani Patrick.

The accused’s sworn evidence

36. He recalls being arrested on 18 April 2008. He did not penetrate J. She was not experiencing any pain or discomfort when she was staying with him. She used to play with other children. He feels that J may have been influenced by Susan to say bad things about him. He and Susan have had a lot of problems, caused by her adulterous affairs with other men, some of them his supervisors. These are the problems that led them to separate.

37. In cross-examination he said J was not with him in the first week of April 2008. Marilyn came to take her away on Friday 28 March 2008. He does not know anything about J not walking properly or having scratches around her vagina or being sexually penetrated. The only reason J would say things against him is that she had been influenced by her grandmother as she bore grudges against him for their separation.

Evidence of the accused’s uncle, Thomas

38. Thomas Pali is an elder in the SDA Church. He knows Amos and he also knows the HEO James Managen who belongs to the same church. On Friday 8 April 2008 some children came to his house at 10.00 pm and told him that Amos Jonathan was in the police cell for having sex with his grandchild. So he decided that he would go and see James the next morning to see if he knew anything. James is wan lotu and also from the Sepik and they often talk about church affairs. He went to James Managen’s house in the morning. James told him that Amos’s granddaughter was all right. She just had some scratches and a bit of redness around her groin. James did not show him the medical report.

Evidence of the accused’s friend, Rex

39. Rex Simon lives close to Luisa Huvi’s block. When J was brought there in April 2008 she used to play with his daughter, Merlene, who is about the same age as J.

40. J likes to climb guava trees and slide down them and he thinks that is how she might have injured herself. The same thing had happened to his daughter but he had not taken her to the health centre for treatment.

Evidence of the accused’s son, Kalsie

41. Kalsie Jonathan is aged 20. He lives at Section 7, Bialla, near his aunty Luisa and his friend, Rex Simon. He used to see J playing with other children her age, including Rex’s daughter.

42. He recalls that his cousin-brother, Jeffrey Huvi, who is Luisa’s son and James Managen, an HEO at Bialla Health Centre, got drunk shortly after J was taken to the health centre for the medical check. Jeffrey badly assaulted Amos, and swore at him and said: ‘Old man, you never got ashamed of having sex with small children’. The company security came and locked up Jeffrey.

43. In cross-examination Kalsie said that he was not with his father in the first week of April 2008. J was taken to the health centre on a Sunday, about five days after she had been brought from his father’s place at the Hargy Mill compound to Section 7.

Evidence of the accused’s nephew, Sani

44. Sani Patrick is the son of Amos’s elder brother. He was present at Amos’s house at the Hargy Mill compound when Jeffrey assaulted Amos and abused him for allegedly having sex with small children. It was a Friday and Sani had gone there to spend the weekend with Amos.

PRELIMINARY ASSESSMENT OF THE STATE’S CASE IN LIGHT OF THE EVIDENCE FOR THE DEFENCE

45. Mr Kupmain submitted that there was a strong body of evidence that the accused had introduced his penis into the complainant’s vagina:

- J’s direct evidence that he penetrated her vagina;

- the medical evidence, which shows that there was vaginal penetration;

- the evidence of the State witnesses, which corroborates the complainant’s direct evidence and proves that the only person who could have committed the offence was the accused.

46. I consider that at first glance this evidence appears to be sufficient to warrant a finding that penetration took place and that, there being no evidence that it could have been someone else, it was the accused who penetrated the complainant. However, this is a criminal case and the court has to be satisfied beyond reasonable doubt. I will now address the submissions of defence counsel and other matters that are necessary to take into account in order to afford to the accused the full protection of the law required by Section 37(1) of the Constitution.

DEFENCE COUNSEL’S SUBMISSIONS

47. Mr Unido conceded that the complainant had been sexually penetrated by someone but submitted that the State had fallen short of proving that the accused was the person responsible, for the following reasons:

1. The complainant’s evidence was not reliable.

2. The evidence of the State witnesses was not credible.

3. There was little or no corroboration of the complainant’s evidence.

4. The State failed to satisfy the requirements for conviction based on circumstantial evidence.

5. There is clear evidence that the accused was assaulted.

ASSESSMENT OF DEFENCE COUNSEL’S SUBMISSIONS

1 Complainant’s evidence not reliable

48. Mr Unido submitted that because of J’s tender age great care should be taken in accepting her evidence as parts it were difficult to believe and it was likely that she had been influenced by others, particularly Susan, to give evidence against the accused. Mr Unido suggested that it was unusual that she would say that she had been penetrated three times, yet she said that there was no bleeding.

49. I have already decided that she was a competent witness and her evidence was admissible. I now address the separate question of whether her evidence was credible, having regard to her demeanour, the degree of logic and common sense in the story that she told and how she responded to cross-examination. I agree with Mr Unido that great care must be taken when considering the evidence of a child this young: J was just short of her sixth birthday when she gave evidence and she was relating events that had taken place 13 months earlier.

50. In view of her age I warn myself, as the tribunal of fact, of the dangers of too readily accepting her evidence at face value and entering a conviction based on those parts of her evidence that are uncorroborated (Tommy Morikawa v The State (2000) SC656).

51. The reasons for this warning were explained by Doherty J in The State v John Saganu [1994] PNGLR 308:

Children are more susceptible to suggestion, have shorter memory recall and have more vivid imaginations than adults. Care should be taken with their evidence, but if the court, seeing the witness before it, considers and finds he or she is speaking nothing but the truth, then the court is entitled to accept it.

52. J’s evidence was rather general. She did not say when it was that the accused had done things to her other than it was at night time. She did not give any detail about what he had done other than that he had put his penis into her vagina. However, I thought that this was sufficient detail. It was direct evidence of him having sexually penetrated her.

53. Though at one stage she said she did not know what a penis was, she seemed to have a clear idea of the difference between right and wrong. She had a clear understanding that the accused had done wrong to her. She gave the impression of being an innocent young child who was telling the truth about what happened to her. I conclude that her evidence was very cogent and convincing.

54. I have considered the risk that she was influenced by Susan to say such things. Clearly the marital problems that Amos and Susan have experienced have created bad blood between them. This would provide a motive for her trying to frame him and coming into court to give false evidence against him. However, I do not think the defence counsel went close to establishing that Susan influenced J to make up stories about what Amos had done. Susan stood up well to cross-examination and nothing that J said in evidence created suspicion that she had been coached into giving false evidence.

55. In order to disbelieve J’s evidence it would be necessary to believe the accused’s sworn evidence. It consisted of straightforward denials of anything untoward happening. He did not give the impression of someone who had been falsely and maliciously accused of a terrible crime. His evidence was not convincing.

56. I therefore reject the submission that the complainant’s evidence was unreliable.

2 Evidence of State witnesses not credible

57. Mr Unido submitted that there were inconsistencies in the evidence of Susan and Luisa, especially in their description of the events leading up to the discovery that J had a medical problem. Luisa, for example, said that J was walking like a duck but Susan did not mention that in her evidence.

58. I consider that there were no material differences in the evidence of Susan and Luisa. They both noticed that J was not walking properly from the time she was brought to Luisa’s house on about 7 April to the time of discovery of the vaginal problem on 12 April. They each gave a satisfactory explanation for not doing a thorough check before then. J had told Susan that it was just a boil. As for Susan not saying that J was walking like a duck, this is inconsequential. The description that Susan gave of how J was walking is consistent with how Luisa described it.

59. Both Susan and Luisa stood up well to cross-examination. Their demeanour was satisfactory. They gave the impression that they were genuinely concerned for J’s welfare rather than being intent on giving false evidence against Amos.

60. Their evidence was not effectively contradicted by the evidence of the defence witnesses. Rex Simon and Kalsie Jonathan gave evidence that suggested that nothing much was wrong with J and she could have been injured in some other way when playing with other children. But their evidence was vague and unconvincing.

3 Lack of corroboration

61. Mr Unido submitted that as this was a sex offence case the court had to be extremely careful if it were considering entering a conviction against the accused based on the uncorroborated evidence of the complainant. He was suggesting that the court had to warn itself of the dangers of entering a conviction in these circumstances. He referred to a number of old cases to support this proposition, including The State v Kewa Kai [1976] PNGLR 481, Didei v The State [1990] PNGLR 458 and The State v John Warkuvo (2002) N2372.

62. I call them old cases as they pre-date the amendments to the Criminal Code under which the accused has been charged. The new law, introduced by the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002, commenced operation on 10 April 2003 (The State v John Ritsi Kutetoa (2005) N2514). The principles Mr Unido referred to no longer apply. Corroboration of the complainant’s evidence is not necessary, for two reasons.

63. First, Section 229H (corroboration not required) of the Criminal Code states:

On a charge of an offence against any provision of this Division [IV.2A, Sexual offences against children] a person may be found guilty on the uncorroborated testimony of one witness, and a Judge shall not instruct himself or herself that it is unsafe to find the accused guilty in the absence of corroboration.

64. I am therefore not required and not allowed to instruct myself that it is unsafe to find the accused guilty in the absence of corroboration.

65. Secondly, there is no rule of practice or law that in any criminal case the admissible evidence of a child witness must be corroborated by direct or circumstantial evidence. Provided trial judges warn themselves of the dangers of entering a conviction based on the uncorroborated evidence of a child (which I have already done) it is safe to convict if the evidence is very cogent indeed or convincing (Tommy Morikawa v The State (2000) SC656).

66. Mr Unido’s submission is outdated and wrong in law.

4 Failure to satisfy requirements for conviction based on circumstantial evidence

67. Mr Unido submitted that the State’s case rested on circumstantial evidence and the court must apply the principles set out by the Supreme Court in Paulus Pawa v The State [1981] PNGLR 498:

- the accused must be acquitted unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than guilt; and

- to enable the court to be satisfied beyond reasonable doubt of the guilt of the accused, it is necessary not only that his or her guilt should be a rational inference but that it should be the only rational inference that the circumstances would enable it to draw.

68. There are other reasonable hypotheses available, Mr Unido submitted, including that though she may appear to have been sexually penetrated J actually received the injuries to her groin and vagina from playing with other children and climbing and sliding down a guava tree.

69. I consider that there is a fundamental flaw in this argument. The State’s case does not depend entirely on circumstantial evidence. There is direct evidence from the complainant that she was sexually penetrated by the accused. This is not circumstantial evidence. The Paulus Pawa principles therefore do not apply in the strict sense. A conviction can be entered even though there are reasonable hypotheses available other than the guilt of the accused.

70. Having said that, I acknowledge that given the tender age of the complainant this is a case in which it is desirable to have other evidence supporting the State’s case. Great care must be exercised before entering a conviction and a similar process of reasoning to that used in cases entirely depending on circumstantial evidence should be used. That is: set out the proven facts and test the reasonable hypotheses that are available.

71. I find the following to be proven facts:

- J had been staying with Amos for several months prior to being brought by her biological mother to Luisa’s place, where Susan was staying, on 7 April 2008.

- J was not walking properly for five days and experienced pain when she was being bathed.

- The cause of the pain went undetected until late on the afternoon of 12 April 2008 when it was discovered first by Luisa and then confirmed by Susan.

- J was examined by HEO Managen and Sister Ume on 13 or 14 April 2008 and their examination revealed that she had been vaginally penetrated.

72. A reasonable inference to draw from those facts is that Amos vaginally penetrated J. Two alternative hypotheses are first that someone else penetrated her and secondly that she suffered some form of accidental vaginal penetration, perhaps self-inflicted by climbing and sliding down a guava tree.

73. As to the first one, no other suspect has been mentioned by anyone in the evidence. Who else could it have been? No one other than the accused.

74. As to the second alternative, surely the medical examination would have thrown up the possibility that there was an innocent explanation. Both HEO Managen and Sister Ume are experienced health professionals and no question was raised about their competence or the validity of their findings. Their report clearly concluded that J had been sexually penetrated. In any event the guava tree proposition advanced by Mr Unido is at odds with his concession that J had been sexually penetrated.

75. Neither alternative is a reasonable hypothesis. I therefore conclude that the facts proved in evidence are inconsistent with any reasonable hypothesis other than guilt. The guilt of the accused is not only a rational inference to draw from the evidence, it is the only rational inference that can be drawn.

5 Evidence of the accused being assaulted

76. Mr Unido submitted that there was clear evidence that the accused was assaulted by Jeffrey Huvi.

77. I uphold this submission and find as a fact that an assault of some sort occurred (though I hasten to add that Jeffrey Huvi was not summoned to give evidence and did not have the chance to rebut the allegation). However, this does not advance the defence case. The evidence about the accused being assaulted was largely irrelevant as was the evidence of Thomas Pali about HEO Managen telling him that there was not much wrong with J.

DETERMINATION OF WHETHER THE ACCUSED INTRODUCED HIS PENIS INTO THE COMPLAINANT’S VAGINA

78. The defence counsel’s submissions do not convince me that the State’s version of events should not be accepted. I conclude that the State has proven beyond reasonable doubt that the accused sexually penetrated the complainant by introducing his penis into her vagina. He may not have completely penetrated her and it may be that he was not even attempting to completely penetrate her. However, I am satisfied that to some extent he did penetrate her and that this caused the injuries recorded in the medical report.

79. The conclusion on this issue means that the accused will be found guilty as charged.

VERDICT

80. The accused, Amos Jonathan, is found guilty on one count of engaging in an act of sexual penetration with a child under the age of 16 years contrary to Section 229A(1) of the Criminal Code, in circumstances of aggravation, viz that, under Section 229A(2), the child was under the age of 12 years, and, that, under Section 229A(3), there was an existing relationship of trust, authority or dependency between the accused and the child.

Verdict accordingly.

____________________________

Public Prosecutor: Lawyer for the State
Muromu Lawyers: Lawyers for the accused