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State v Melly (No 1) [2009] PGNC 164; N3772 (13 July 2009)

N3772

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1122 OF 2007

THE STATE

V

SIMAM JULY MELLY

(No 1)

Kokopo: Makail J,
2009: 07th, 10th & 13th July

CRIMINAL LAW - Verdict - Sexual penetration - Penetration of vagina by penis - Girl under age of 16 - Penetration in dispute - Age not in dispute - Evidence of victim uncorroborated - Whether safe to convict on uncorroborated evidence of victim - Evidence must be credible and not contradicted by credible evidence by defence - Finding of guilty - Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 - Sections 229A(1), 229F(a) & 229H.

Cases cited:
Papua New Guinea cases:

The State -v- Penias Mokei (No 1) (2004) N2606
John Bokin -v- Sergeant Paul Dana & Ors (2005) SC817
Rex Paki -v- Adam Koldop & Anor: OS No 304 of 2005 (Unnumbered & Unreported Judgment of 29th July 2008)
The State -v- Thomas Narop and Morris Kramer: CR No 355 of 2006 (Unnumbered & Unreported Judgment of 21st February 2009)

Overseas cases:

Subramaniam -v- Public Prosecutor [1956] UKPC 21; [1956] 1 WLR 965

Counsel:

Ms S Luben, for the State
Ms J Ainui, for the Accused

VERDICT

13th July, 2009

1. MAKAIL J: The accused is indicted with one count of sexual penetration of a female child under the age of 16 by the name of Dorcas Kosma (the "victim") between 16th October 2006 and April 2007 at Tavui No 1 village in Rabaul of the East New Britain Province contrary to section 229A(1) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 (the "Criminal Code as amended").

This section states:

"229A. SEXUAL PENETRATION OF A CHILD.

(1) 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.

(2) ...................."

BRIEF ALLEGATIONS OF FACT

2. The State alleges that the accused and the victim are from Tavui No 1 village in Rabaul of the East New Britain Province. Between 16th October 2006 and an unknown date in April 2007, they were residing in Tavui No 1 village when the accused sexually penetrated the victim.

3. The State alleges that the accused told the victim to follow him to the beach and she did. At the beach, the accused removed her clothes and told her to lie on the ground which she did and he sexually penetrated her vagina with his penis. After that, the accused told her not to tell anyone of the incident and the victim got dressed and returned to her house. The State further alleges that at that time the accused sexually penetrated the victim, she was less than 16 years. The State alleges that she was 15 years old at that time.

STATE’S EVIDENCE

4. The State’s evidence consists of the following documentary evidence which were admitted by consent of the defence:

1. Record of Interview of the Accused in the Pidgin and English versions dated 04th June 2007 (Exhibit "P1");

2. Statement of Arresting Officer, Esther Butinga dated 04th June 2007 (Exhibit "P2");

3. Statement of Corroborating Officer, Paul Bonnio dated 04th June 2007 (Exhibit "P3");

4. Medical Report of Dr John Maku dated 29th May 2007 (Exhibit "P4"); and

5. Statutory Declaration of Kosma Igen dated 31st May 2007 (Exhibit "P5").

5. In addition, the State called the victim and the father of the victim to give evidence. They gave oral evidence and were cross examined by defence counsel.

DEFENCE’S EVIDENCE

6. The accused was the only witness for the defence. He also gave oral evidence and was cross examined by the State prosecutor.

ANALYSIS OF EVIDENCE

7. I analyze the evidence of each witness below:

Victim’s evidence

8. The evidence of the victim is that she comes from Tavui No 1 village and resides in that village with her maternal grandmother after her mother had passed away and her father, Igen Kosma remarried. She has 4 brothers and 2 sisters and they also live with her grandmother. She had earlier attended Tavui Primary School but has since left school at Grade Seven (7). In 2006, she was doing Grade 6. She recalls that on 16th October 2006 she returned home from a village feast with her brothers and sisters. The accused came to her and told her to follow him to the beach which she did. At the beach, she asked the accused what he wanted from her and he told her that he wanted to have sex with her.

9. He told her to remove her clothes and she did. He told her to lie on the ground and she did. He opened her legs and inserted his penis into her vagina. After that, he released his semen outside her vagina. When he had finished, he told her to get dressed and not to tell anyone about what he did to her. She returned home.

10. She knows the accused because the accused lives in a house which is not far from where she lives, say about 20 meters away. She also knows that the accused is a married man and has children. She could not really recall the other times they had sexual intercourse but says that the sexual intercourse that took place on 16th October 2006 was the first time and the last one was in 2007 but could not say which month. When they had sexual intercourse on those other times, she did not tell anyone until the wife of the accused found out and reported her to her step mother. Her step mother then reported her to her father. She eventually revealed or admitted to her father her sexual relationship with the accused when he questioned her.

11. It was suggested during cross examination by defence counsel that the wife of the accused was suspicious of her after seeing her with the accused and another person by the name of Noel at the beach and she agreed. It was further suggested to her that after seeing her with the accused and Noel at the beach, the wife of the accused went and told her step mother about her being with the accused at the beach and she also agreed. It was further suggested to her by defence counsel that her step mother then reported the matter to her father and she also agreed. It was further suggested to her by defence counsel that when she returned home that day, her father got angry with her and she also agreed.

12. She also admitted in cross examination by the defence counsel that her father was very angry when she told him about the accused sexually penetrating her and assaulted her. But when asked if she made up the story of the sexual penetration by the accused because her father had assaulted her, she denied it. When suggested further that she made up the story because she was scared of her father, she denied it. She maintained that she did not make up the story. She maintained that the accused sexually penetrated her, but she agreed to the suggestion by defence counsel that she told her father about the accused sexually penetrating her because the wife of the accused had seen her with the accused at the beach one time.

Igen Kosma’s evidence

13. Igen Kosma is the father of the victim. He remarried after the mother of the victim died and has 4 children; one of them is the victim. The victim is the eldest child. He was informed by his second wife one afternoon upon her return from work that the accused sexually penetrated the victim. He asked the victim if what his second wife had told him was true and the victim confirmed it. He says that the accused sexually penetrated the victim on 17 separate occasions. He went over to the house of the accused to speak to him about the matter but the accused ran away. One of his daughters was with the mother of the accused at that time and he removed her from the mother of the accused because he was afraid that the accused might do the same thing to her. The next day, he reported the matter to the police sexual offences squad whereupon the accused was arrested and charged.

14. When asked in cross examination by defence counsel if he coerced the victim through assaults into admitting that the accused sexually penetrated her, he denied it. But when further asked if he assaulted the victim, he admitted it. He assaulted the victim because he was angry with the victim and also the accused because he normally looks after the accused too. When further suggested that he assaulted the victim prior to reporting the matter to the police, he denied it. When further suggested by defence counsel that it was during the time he assaulted the victim that the victim revealed to him that the accused sexually penetrated the victim, he denied it.

15. He maintained that he did not assault the victim prior to reporting the matter to the police. It was after he had reported the matter to the police and had returned home that he assaulted the victim. He also agreed to the suggestion by defence counsel that he would not have known the sexual relationship between the victim and the accused had his second wife not alerted him.

Accused’s evidence

16. The accused is married and has 2 children. He also lives at Tavui No 1 village. He was once employed as a security guard. He is fully aware of the reason for being in Court as he says that it is in relation to allegations of meeting the victim at the beach one time. At that time, he was not alone with the victim because he was with his wife and another person called Noel. But he also says that his wife came and saw the victim standing at the beach between him and Noel and got cross to him. She got cross to him because the victim had also asked Noel for betel-nut. After that, he went with his wife to the house.

17. He says that the allegation that he had sexually penetrated the victim is not true. Also the allegations that he had sexually penetrated the victim a number of times are not true. All of the allegations of sexual penetration of the victim are completely untrue.

18. In cross examination it was suggested by the State prosecutor that his wife was cross with him because she was suspicious of him and the victim having an "affair" and he agreed. He also admitted during cross examination that the father of the victim went to his house and destroyed it along with other personal items. He also agreed to the suggestion by the State prosecutor that the victim’s father is a distant relative of his.

REASONS FOR DECISION

19. To prove the offence of sexual penetration of a child under the age of 16, the State bears the onus of proving the following elements:

1. the accused engaged in the act of sexual penetration; and

2. the child is under the age of 16.

20. In my view, these are two very important elements that the State must prove. The State’s case stands tall or falls on these two elements. As Cannings J, correctly stated in The State -v- Penias Mokei (No 1) (2004) N2606:

"The accused has been charged under Section 229A(1) of the Criminal Code. It must be proven beyond reasonable doubt that:

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

- it was with a child under the age of 16 years.

They are the two actus reus elements of the offence. The provision does not expressly prescribe the mens rea element. So it implied that it must be proven beyond reasonable doubt that:

- the accused voluntarily committed the act, with the intention of doing it, and with honest and reasonable knowledge that it was not an innocent act (see The State v Okun John (2000) N1977 (Kirriwom J)."

21. The State’s case is that the accused sexually penetrated the victim between 16th October 2006 and an unknown date in April 2007 and during that period, the victim was under the age of 16. The defence case is one of general denial. That is, the accused did not sexually penetrate the victim during that period. But it is common ground between the parties that the victim was under the age of 16 between that period.

Did the accused commit the act of sexual penetration of the victim?

22. Given the parties’ position, the main issue is whether the accused sexually penetrate the victim. To determine this issue, I must assess the evidence of the witnesses. I must also have regard to section 229H of the Criminal Code as amended states:

"On a charge of an offence against any provision of this Division, [ie 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."

23. The present law in so far as corroboration of a witness’s evidence in cases of sexual offences against children are concern is that, there is no requirement for corroboration and that it is perfectly well for a judge to convict an accused of sexual offences in the absence of corroboration. And I think the reason for amending the law to do away with the requirement for corroboration of an alleged victim of sexual penetration like in this case is that alleged victims are young and emotional or traumatized and would find it difficult to give evidence against alleged offenders. Cannings J, averted to the law on corroboration as it was then and now in Penias Mokei (No 1)’s case (supra) where he said:

"Section 229H was inserted in the Criminal Code by the Criminal Code (Sexual Offences and Crimes Against Children) Act No 27 of 2002. Before that, Section 216 provided that a person could not be convicted of the offence of having unlawful carnal knowledge of a girl under the age of 16 years on the uncorroborated testimony of one witness. Section 216 was repealed by Act No 27 of 2002."

24. But in my view, the uncorroborated evidence of a witness is subject to other rules of evidence like whether the evidence of the witness is credible and that it is not contradicted by credible evidence of defence’s witnesses. Hence, if the uncorroborated evidence of a witness is not credible or is contradicted by credible evidence of the defence, the Court should not convict an accused on the uncorroborated evidence of a witness.

25. In the present case, the uncorroborated evidence before the Court is that of the victim. She gave evidence that on 16th October 2006, the accused sexually penetrated her at the beach. He did that by telling her to undress after she followed her to the beach at his request. At the beach she asked him why she had asked her to follow him to the beach and he told him that he wanted to have sex with her. He told her to lie on the ground which she did. He opened her legs and inserted his penis into her vagina. After that, he released his semen outside her vagina.

26. In my view, this is the only time she made it very clear in her evidence that the accused penetrated her vagina with his penis. Other than that, her evidence is unclear as to how the accused sexually penetrated her on the other occasions. In this respect, there is suggestion by the State that the accused had sexually penetrated her on 17 separate occasions. I will comment on this aspect later on but first, evidence of sexual penetration is very important because it is one of the two elements of the offence under section 229A(1) of the Criminal Code as amended which I have already referred to above. Sexual penetration is defined by section 6 of the Criminal Code as amended in this way:

"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."

27. Therefore, for there to be sexual penetration, there must be insertion, or introduction of the penis, into the vagina, anus or mouth of another person or the introduction by a person of an object or a part of the body of that person into the vagina or anus of another person.

28. In the present case, I will, where applicable, apply the rules of evidence as set out by Cannings J, in Penias Mokei (N0 1)’s case (supra):

"The Court, as the tribunal of fact, has to be satisfied beyond reasonable doubt that the answer to that question is yes, before the accused can be found guilty. Having regard to section 229H of the Criminal Code the following are the considerations that seem to me necessary to take into account when determining the answer to that question of fact:

1) Is there direct evidence available?

2) Is that evidence credible?

3) Is there independent medical evidence consistent with sexual penetration having occurred?

4) Is there any other corroborating evidence (bearing in mind that such evidence is not essential, but nonetheless relevant)?

5) Is that corroborating evidence credible?

6) Was the complaint fresh?

7) Is there any contrary evidence or other material before the Court

8) Is there contrary evidence or other material credible?"

29. Without any evidence corroborating the evidence of the victim of sexual penetration by the accused, the victim says that the accused sexually penetrated her at the beach on 16th October 2006 by inserting or introducing his penis into her vagina. On the other hand, the accused denies the victim’s claim that he sexually penetrated her on 16th October 2006. But he does not deny being at the beach on one occasion with the victim and another person called Noel. He only says that his wife suspected him of having an "affair" with the victim. He does not say if he was at the beach on 16th October 2006 with the victim and, if he had the reason for them to be at the beach alone and what they did at that time.

30. I find the evidence of the accused lacking and leaves a lot to be desired. He has not explained or refuted the victim’s evidence that he penetrated her vagina with his penis on 16th October 2006 at the beach, except to say that the victim’s evidence is untrue. Even the Record of Interview of the accused dated 04th June 2007 (Exhibit "P1") does not say much as to what had actually happened so it takes us nowhere in so far as trying to ascertain what had actually happened. I think he was avoiding the truth, hence I do not believe him.

31. On the other hand, I find that the evidence of the victim credible. This is because first, she was confident when she gave evidence. She made it very clear that the accused inserted or introduced his penis into her vagina at the beach on 16th October 2006. Secondly, when cross examined in relation to whether she made up the story because of her father’s assault she maintained that she did not make up the story of her sexual penetration by the accused. Thirdly, I believe her evidence because no one would have known about her sexual relationship with the accused had the accused’s wife not being suspicious of her and the accused after seeing them together at the beach on one occasion. As I have said above, the accused does not deny being with the victim and this person Noel at the beach one occasion although his evidence appears to be a little bit conflicting in so far as his wife being also present at the beach or had only arrived at the beach to discover the three of them there.

32. I am incline to accept the version that his wife was not present with them at the beach at that time but had just arrived there only to discover that he was with the victim and Noel. This is logical and also commonsense would dictate that if the wife of the accused was with him, the victim and Noel at that time, why would she get cross to the accused or become suspicious of the victim and the accused? Why would she get cross to him because the victim gave a betet-nut to Noel? To my mind, it does not make sense at all for her to get cross to him because of Noel. I believe there was more to tell that the accused has not told the Court. I believe that when the wife of the accused had gone looking for the accused and found him with the victim and Noel at the beach, she became suspicious. That is why she was cross and reported the victim to her step mother.

33. The step mother of the victim reported her to her father and further inquiries by the father confirmed the accused’s wife’s suspicions that there was a sexual relationship between the victim and the accused. I accept that the evidence of the victim’s father to the extent that the victim told him that the accused sexually penetrated her is concerned, is hearsay because he did not see the act of sexual penetration between the victim and the accused. Further, it is a statement made by the victim to him out of Court and is inadmissible because the object of the evidence is to establish the truth of the victim’s statement. Hence, I will not rely on that aspect of the evidence of the father of the victim. But I am satisfied that the victim’s father had assaulted the victim after she revealed or admitted that the accused had sexually penetrated her when he questioned her. It is no wonder the doctor reported that, "The notable injury was a ‘black’ right eye with small conjunctival haemorrhage", which is consistent with her evidence and that of her father. See Exhibit "P4".

34. This means that I do not believe his evidence that he did not assault the victim after returning from the police station. Logic and commonsense would dictate that as a father, he would have been bitter when informed of the sexual relationship between the victim and the accused and would have assaulted the victim. I find that the victim’s father assaulted her at that time she revealed or admitted to him the sexual relationship with the accused. It was not after her father returned from the police station. But I am not satisfied that the assault of the victim coerced her to make up the story of sexual penetration by the accused to prevent further assaults on her by her father.

35. On the other hand, I find that it was not a made up story but a story that actually happened. In my view, I find based on her evidence of revelation of the sexual penetration by the accused was a result of the accused’s wife discovery of the accused and the victim at the beach one time and reported it to the step mother of the victim who later reported it to the victim’s father. Otherwise, none of them, that is the accused’s wife and her parents would have known.

36. For these reasons, I am satisfied based on the uncorroborated evidence of the victim that the accused sexually penetrated her on 16th October 2006 at the beach by inserting or introducing his penis into her vagina. That evidence is sufficient to prove the element of sexual penetration.

37. But then there is the Medical Report by Dr John Maku dated 29th May 2007 (Exhibit "P4") that was admitted into evidence by consent of the defence and is before me. I propose to rely on it in line with one of the rules of evidence as set out by Cannings J, in Penias Mokei (No 1)’s case (supra). The relevant parts state, "There were no obvious injuries in the valva or vagina. The hymen was no longer intact. Examination of a vaginal swab did not reveal any sperm cells. Opinion: the un-intact hymen may have resulted from sexual intercourse in the past".

38. This is where I return to the State’s suggestion that the accused sexually penetrated the victim on 17 separate occasions. I am of the view that it is not relevant for the State to prove that the accused sexually penetrated the victim on 17 separate occasions because the accused has been charged with only one count of sexual penetration of the victim which occurred between 16th October 2006 and an unknown date in April 2007. See the wording of the Indictment. The Medical Report (Exhibit "P4") clearly states that the victim suffered no physical injuries to her valva and vagina, had no sperm cells in her vagina but the hymen was no longer intact. Hence, according to the doctor, he was of the opinion that un-intact hymen may have resulted from sexual intercourse in the past.

39. That being the opinion of the doctor, can it be said that the Medical Report of the doctor corroborates the evidence of the victim that the accused sexually penetrated the victim? I think so but first, I reject the evidence of the father of the victim that the accused penetrated the victim on 17 separate occasions because it is hearsay. It is hearsay because it goes to proving a fact that the accused sexually penetrated the victim on 17 separate occasions but it is not hearsay if it was made to prove that the victim did make such a statement. See Subramaniam -v- Public Prosecutor [1956] UKPC 21; [1956] 1 WLR 965 and also John Bokin -v- Sergeant Paul Dana & Ors (2005) SC 817. But there is evidence from the victim that she had sexual intercourse with the accused on other occasions but could not recall precisely the dates. In my opinion her evidence is consistent with and confirms the opinion of the doctor that the un-intact hymen may have resulted from sexual intercourse in the past.

40. As the defence neither led evidence of the victim being sexually penetrated by other men or "seeing" other men between 16th October 2006 and April 2007, nor suggested in cross examination that she was sexually penetrated by other men or "seeing" other men between 16th October 2006 and April 2007, I give no credence to the suggestion by the defence that she could have had sexual intercourse with anyone, hence the Medical Report (Exhibit "P4") is inconclusive and doubtful to connect the accused to the offence. This means that, I accept it as an independent piece of evidence corroborating the evidence of the victim that the accused sexually penetrated her on 16th October 2006, hence connecting him to the offence on 16th October 2006.
This leads me to the next reason for holding the view that there have been other occasions in the past where the accused sexually penetrated the victim. The reason is this, although the victim did not make a fresh complaint to the police soon after the accused sexually penetrated her at the beach on 16th October 2006, hence it might raise some doubts as to the genuineness of the complaint as it was reported almost some 6 months later, I am satisfied that the victim did not tell anyone about her sexual relationship with the accused because the accused had told her not to tell anyone. It was a secret affair between her and the accused.

41. But all these came to light when the accused’s wife became suspicious of her and the accused and reported her to her step mother. It led to her admitting to her father and her father then reporting it to the police on 28th May 2007. The victim also undertook medical examination on the same day and the Medical Report (Exhibit "P4") was prepared to verify if she was sexually penetrated. Thus, whilst the complaint was made to the police 6 months late, in my view, the delay has been sufficiently explained by the victim and her father.

42. For the above reasons, I am satisfied beyond reasonable doubt that on 16th October 2006 the accused introduced his penis into the victim’s vagina. Sexual penetration took place. The State has been proven beyond reasonable doubt that the accused introduced his penis into the vagina of the victim, hence the accused engaged in an act of sexual penetration with the victim. The first element of the offence is satisfied.

Age of victim

43. The second element of the offence is age. The victim must be under the age of 16. In the present case, the accused does not deny that the victim was under the age of 16 at the time of the sexual penetration. Further, he does not raise the defence of a reasonable belief that the victim was 16 years or above under section 229F(a) of the Criminal Code as amended. In fact in their respective submissions, both counsel submit that the age of the victim is not in issue. They say that the victim was under the age of 16. That being the case, the second element of the offence has been made out against the accused.

44. But in any case, there is evidence before the Court by way of a Statutory Declaration of Kosma Igen dated 31st May 2007 (Exhibit "P5") establishing that the victim was under the age of 16 at the time of the sexual penetration. Kosma Igen states that the victim was born on 13th July 1991. It is reproduced in part hereunder:

"(a) I am the biological father of Dorcas Kosma. My Daughter was born on 13th of July 1991 at Nonga Hospital.

(b) She is the first born in family of four children and she (sic) doing her grade seven.

(c) On behalf (sic) my wife who (is deceased) died in 1997, I am declaring my daughter’s birth. I know he date when she was born."

45. Other than the Statutory Declaration of Igen Kosma, there is no other evidence led by the State as to the age of the victim at the time of the sexual penetration. For example, Igen Kosma did not say in his oral evidence when the victim was born and her age at the time of the sexual penetration by the accused. The only evidence before the Court is the Statutory Declaration (Exhibit "P5"). Can the Court rely on it to find that the victim was 15 years old at the time the accused sexually penetrated her? That is, is it admissible?

46. A Statutory Declaration is a mode of adducing evidence in Court. The other modes are oral evidence and Affidavit. As I had observed in the case of Rex Paki -v- Adam Koldop & Anor: OS No 304 of 2005 (Unnumbered & Unreported Judgment of 29th July 2008) at p 16:

"I say this because generally there are three ways or modes by which evidence can be brought before the Court. They are by oral testimony or by Affidavits. Section 34 of the Evidence Act provides for evidence by Affidavits.............

I consider that the third way or mode to adduce evidence to Court is by a Statutory Declaration under section 9 of the Oaths, Affirmation and Statutory Declaration Act 1962."

47. In my respectful opinion, the Court may rely on it to determine the age of the accused at this point in time and most importantly at the time of the sexual penetration by the accused on 16th October 2006. Proceeding on this premise, Igen Kosma states that he is the biological father of the victim and the victim was born on 13th of July 1991 at Nonga Hospital. This evidence was neither refuted by the accused nor challenged by defence counsel during cross examination. That being the case, it remains an uncontroverted evidence of the father of the victim that the victim was born on 13th July 1991.

48. Further, this case can be distinguished from the case of The State -v- Thomas Narop and Morris Kramer: CR No 355 of 2006 (Unnumbered & Unreported Judgment of 21st February 2009) where Lay J, acquitted the two accused of 4 separate counts of sexual penetration of a child under the age of 16 because the two elements of the offence under section 229A(1) of the Criminal Code as amended were not established by the State beyond reasonable doubt. The State failed to prove that the alleged victim child was under the age of 16 because the alleged victim gave evidence of her own age at the trial and her mother had not given any evidence of the age of the victim. His Honour referred to Phipson on Evidence 14th edition at paragraph 21-20 and held that the victim could not give evidence of her own date of birth and age as that is hearsay. As a person is not conscious of the occasion of their birth, knowledge of one’s birth date is necessarily information obtained from another person which is hearsay.

49. In the present case, the victim did not give evidence of her age. It was her father who gave evidence of her date of birth by way of a Statutory Declaration (Exhibit "P5"). Therefore, the evidence of her age is not hearsay and I accept it. I find that the victim was born on 13th July 1991 and counting the years from that date to 16th October 2006 would give 15 years, 3 months and 3 days. To my mind, clearly, the victim was under the age of 16 when the accused sexually penetrated her on 16th October 2006. The second element of the offence is satisfied.

CONCLUSION

50. I am satisfied beyond reasonable doubt that the accused sexually penetrated the victim by inserting or introducing his penis into the vagina of the victim on 16th October 2006 and at that time, the victim was under the age of 16. Therefore, I convict the accused of one count of sexual penetration of the victim under section 229A(1) of the Criminal Code as amended. I will hear submissions on sentence on Thursday 16th July 2009 at 9:30 am.

________________________________________________

Acting Public Prosecutor. Lawyers for the State
Public Solicitor. Lawyers for the Accused