N4002

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 787 0F 2008

THE STATE

V

A JUVENILE, "RB"

Madang: Cannings J
2010: 3, 18, 22 March, 22 April

VERDICT

CRIMINAL LAW – trial – engaging in act of sexual penetration with child under age of 16 years, Criminal Code, Section 229A(1) – whether act of sexual penetration was engaged in – definition of "sexual penetration", Criminal Code, Section 6.

The accused, a 17-year-old boy, 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. He was 15 years old at the relevant time. The child, a girl, was eight years old and lived in the same locality as the accused. Her age (less than 12 years) was charged as a circumstance of aggravation. The accused pleaded not guilty. The complainant gave direct evidence that the accused had penetrated her. There was a medical report suggesting sexual penetration. The accused relied on an alibi. He made an unsworn statement from the dock, saying that he was somewhere else at the time, and his statement was corroborated by two 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 her mother and the medical evidence, was sufficient to prove beyond reasonable doubt that the accused introduced his penis to some extent into the complainant’s vagina.

(4)	The accused’s alibi was unconvincing, as was the evidence of the two defence witnesses. The element of sexual penetration was proven.

(5)	There being no dispute about the age of the child, the accused was found guilty in the circumstances of aggravation charged in the indictment.

Cases cited

The following cases are cited in the judgment:

Java Johnson Beraro v The State [1988-89] PNGLR 562
John Jaminan v The State (No 2) [1983] PNGLR 318
Rolf Schubert v The State [1979] PNGLR 66
The State v Arnold Kulami (2009) N3632
The State v John Saganu [1994] PNGLR 308
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
A Meten, for the accused

22 April, 2010 

1. CANNINGS J: This is a juvenile case. The accused, "RB", is 17 years old. He is charged with committing 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 "C" – the complainant – was eight years old at the time.

2. The State alleges that RB committed the offence on 12 December 2007 when he was 15 years old. The State says that at 6.30 am in the vicinity of the village where he lives, RB called C to him, grabbed her, pulled her into a garden and penetrated her vagina with his penis. The accused pleaded not guilty. He denies sexually penetrating the complainant and relied on an alibi: he said he was with his family, working in the garden all that day.

3. There is actually another charge on the indictment: one count of sexually touching the complainant. This offence is alleged to have been committed during the same incident that the sexual penetration charge relates to. I will first focus the court’s attention on the sexual penetration charge.

4. The court was closed to the public during the trial in accordance with the provisions of the Juvenile Courts Act 1991. I authorise the publication of this judgment under Section 28(1)(a) of the Juvenile Courts Act. However, the name of the juvenile accused and other particulars likely to lead to identification of the juvenile, his school, village or place of residence are not to be published. To give effect to these requirements, the name of the accused and the names of all witnesses are encoded.

ELEMENTS AND ISSUES

5. 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.

6. 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.

7. The indictment in this case charges a circumstance of aggravation: that the child was under the age of 12 years (a circumstance of aggravation under Section 229A(2)). The second element of the offence and the circumstances of aggravation are not contested by the defence. It is agreed that the complainant was eight years old at the time. 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 at this stage 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 of evidence for the State;

•	a summary of evidence for the defence;

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

•	a summary of the defence counsel’s submissions;

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

•	determination of whether the accused did the act in question.

EVIDENCE FOR THE STATE

11. It consisted of:

•	oral testimony of the complainant, C;

•	oral testimony of C’s adopted mother;

•	a medical report;

•	the accused’s record of interview.

Evidence of the complainant, "C"

12. C was ten years old when she gave her evidence. 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. 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. Defence counsel, Mrs Meten, raised no objection to her competence as a witness or the admissibility of her evidence. I concluded that she was a competent witness.

13. Upon the application of the prosecutor, Mr Kupmain, and the consent of Mrs Meten, I ordered under Section 37B(2)(a) of the Evidence Act the use of a screen to prevent the complainant from seeing the accused.

14. In examination-in-chief C said that early in the morning of the day in question she was looking for mangos when RB, who she knows as he lives at a nearby village, approached her and threatened her with a knife. He took her into the bush ‘and he raped me’, she said. Asked what she meant, she said that he removed her shorts and pushed her to the ground, lay on top of her and put his penis into her vagina. This caused blood to come out of her vagina. He told her not to tell her mother about what happened; and if her mother asked, she had to tell her that she was climbing a pawpaw tree and fell and hurt herself. He sent her away so she went to the creek to wash off the blood. After that she went to the house and told her mother, as instructed by RB, that she had fallen from a pawpaw tree. Her mother then took her to the hospital in town. She saw a doctor and first told him the story about falling from the pawpaw tree but then told him that RB had raped her.

15. In cross-examination she said that she was alone when she went looking for mangos. There are no mango trees close to her house. She has known RB for a long time. She denied that the injuries she received were a result of falling from a tree. ‘He raped me’, she said. She denied that RB was not present.

Evidence of the complainant’s mother, "LA"

16. LA is C’s adopted mother. She had been caring for her (as her biological mother was without a husband) since 2006 when this incident occurred on 12 December 2007. She saw C walk away from the house to a place about 200 metres away where there are mango trees. Later C came back. She looked as if she had been washing in the creek. LA also noticed that there was blood running down C’s leg. She asked her what happened and C said that she had fallen from a pawpaw tree. She removed C’s clothes and observed that the blood was coming from her vagina.

17. She then took C to the hospital. The doctor examined her and she was present when C told the doctor that RB had raped her. The doctor made his report, which she took to the police station.

Medical evidence

18. A pro-forma "sexual assault" form, dated 13/12/07, in the name of Dr L Geita, was admitted into evidence. It reports the presence of a blood stain on the thighs, vulva and perineum. As to the hymen and vagina, it states:

Torn hymen. Graze at fourchette and right side of vagina.

19. It concludes:

Sexual assault: penetration and injury.

The accused’s record of interview

20. RB said that at 5.30 am he went to the garden with his family and on the way to the garden they called into their aunty’s place. They planted yams while she prepared some vegetables to sell at the market. He stayed in the garden until 6.00 pm. He denied grabbing C and sexually penetrating her.

EVIDENCE FOR THE DEFENCE

21. The accused made an unsworn statement from the dock and there were two alibi witnesses, who gave sworn evidence.

The accused’s unsworn statement

22. He said that he was not present at the place that C said he was. He was with his family in the garden. They left for the garden, which is a long distance away, at 5.30 am. They were preparing the garden to plant yams. They were in the garden until 6.00 pm.

Evidence of the accused’s father, "KJ"

23. He said that RB was with him and other family members when they left the village for the garden at 5.30 am. They called in to see one of RB’s aunties (the next defence witness) on the way. The garden is about 3 km from the village. They worked in the garden all day, making mounds for planting yams. The aunty collected vegetables to take to the market and she left after a while. When the family group, including RB, finished their work in the garden, they all returned to the village.

24. In cross-examination he said that C’s house is about 1 km from the place where he and RB live. RB walks past C’s house on the way to school but the day in question – 12 December 2007 – was not a school day. It was a Wednesday but it was during school holidays.

Evidence of the accused’s aunty, "KU"

25. She was at her house on the morning in question when RB and other members of his family came and then they all went to the garden. She collected vegetables to take to the market while they worked in the garden. After she got the vegetables she went back to her house and then she went to the main road to catch a PMV into town. She met C and her mother on the PMV. She saw that there was a problem with C so she asked LA what happened and she replied that C had fallen from a pawpaw tree.

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

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

•	C’s direct evidence that the accused penetrated her vagina;

•	the medical evidence, which suggests strongly that there was vaginal penetration;

•	the evidence of C’s mother, which corroborates the complainant’s direct evidence and suggests that the only person who could have committed the offence was the accused.

27. 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

28. Mrs Meten did not concede that the complainant had been sexually penetrated by anyone and submitted that if the court finds that there was sexual penetration 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 medical evidence was deficient.

3	The accused had an alibi.

ASSESSMENT OF DEFENCE COUNSEL’S SUBMISSIONS

1	Complainant’s evidence not reliable

29. Mrs Meten submitted that because of C’s tender age great care should be taken in accepting her evidence as parts of it were difficult to believe. C did not say that she cried or screamed and there was no evidence that anyone else heard any cries or screams.

30. I have already decided that C 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 that great care must be taken when considering the evidence of a child this young. 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).

31. 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.

32. C’s evidence was rather general. She did not give much detail about what RB did 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. Though she continually said that he ‘raped’ her – which seems unusual language for a child so young to use, 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 cogent and convincing.

33. I have considered the risk that she was influenced by her mother to say such things. However, I agree with Mr Kupmain’s submission that there was no evidence of ill feeling between C’s family and RB’s family and no evidence of any motive for C to give false evidence or for her to be influenced by her family to give false evidence.

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

2	Medical evidence deficient

35. Mrs Meten attacked the value of the medical evidence on the ground that the sexual assault form was not signed by the doctor. This was a useful point to make and it certainly would have enhanced the State’s case if the doctor had signed the form or given oral evidence. However, the sexual assault form was admitted into evidence by consent. So it is in evidence. The form has been completed in handwriting and there is no reason to doubt its authenticity or to doubt that it was filled out by Dr Geita of Modilon General Hospital or to doubt the doctor’s findings. It is clear evidence that C was penetrated in the vagina.

3	The alibi

36. RB’s alibi is that at the time of the alleged incident he was with his family in the yam garden. As he has raised an alibi the court must consider the principles on alibi evidence arising from the leading Supreme Court case of John Jaminan v The State (No 2) [1983] PNGLR 318.

37. I remind myself that if an alibi is raised the burden of proof does not shift from the prosecution. The onus is never on the accused to prove an alibi or prove innocence. However, in practical terms, the accused must lead some evidence of an alibi and it must be sufficiently convincing to create a reasonable doubt in the mind of the tribunal of fact. How strong or convincing the alibi evidence must be, depends on the strength of the evidence of the prosecution witnesses. If their evidence is very strong, the alibi evidence needs to be reasonably strong to raise a reasonable doubt in the mind of the judge as to the guilt of the accused. Unlike the defences of self-defence and provocation, there is no rule of law that says that once an alibi is raised it is up to the prosecution to disprove it. If an alibi is rejected it does not necessarily follow that the court should enter a conviction. The court must still be satisfied that the prosecution has proven its case beyond reasonable doubt. An alibi that is determined to be false may, depending on the circumstances, amount to corroboration of the complainant’s evidence. Great caution should be exercised before drawing an inference adverse to an accused, as a result of the accused’s failure to call a witness that might reasonably be expected to support the accused’s alibi. A belated alibi, not revealed on any earlier occasion prior to trial, should be given less weight than an alibi consistently given over a long period, eg since the beginning of the police investigation, in a record of interview or in committal proceedings. The court should consider whether the alibi evidence contains convincing detail or whether it is vague and short on detail. The court should also consider the demeanour of the alibi witnesses and whether there are any inconsistencies in their evidence.

38. Having considered all of the above matters, I record the following relevant considerations:

(a)	The story about being in the garden all day with his family was consistent with the accused’s record of interview. It was also consistent with the notice of alibi provided to the State. It ought not be summarily dismissed as a recent invention.

(b)	The accused gave an unsworn statement, which was rather general and not very convincing.

(c)	The two alibi witnesses were not very convincing. Their evidence was rather general and neither of them was able to say that RB was in their presence at all times or at least at the critical time. Their evidence left open the possibility that RB was not at all times with the group that left the village headed for the garden about 3 km away.

39. In light of the above, I have concluded that the accused’s unsworn statement cannot be accepted. The alibi evidence is not of good quality when compared to the strength of the evidence of the complainant.

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

40. 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 sexual assault form.

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

THE CHARGE OF SEXUAL TOUCHING

42. I find that there is insufficient evidence to sustain this charge. In any event I think it is oppressive for the prosecution to include such a charge on an indictment in cases where the primary charge is sexual penetration. A much fairer practice would be to include it as an alternative charge. The accused will be found not guilty of sexual touching.

VERDICT

43. The accused, RB, is found guilty of 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.

44. The accused is found not guilty of the charge of sexual touching.

Verdict accordingly.
____________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused