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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR. No. 3 of 2013
THE STATE
-v-
TOMMY NAND
Accused
Minj & Mt. Hagen: David, J
2014: 4, 5, 6 & 10 March & 15 April
CRIMINAL LAW – trial - engaging in act of sexual penetration with child under age of 16 years – elements of offence - elements of offence to be proven beyond reasonable doubt - definition of "sexual penetration" – consent generally no defence - no necessity for corroboration – verdict of not guilty - Criminal Code, Sections 6, 229A(1)(2), 229F, 229G and 229H.
CRIMINAL LAW – trial – sexual touching of child – elements of offence – elements of offence to be proven beyond reasonable doubt - meaning of touching for "sexual purposes" - verdict of not guilty - Criminal Code, Section 229B(1)(a)(b).
Cases cited:
Garitau Bonu and Rosanna Bonu v The State (1997) SC528
David Kandakason v The State (1998) SC 558
Andrew Palili v The State (2006) SC 848
The State v Alex Matasol Hagali (2006) N4490
The State v Jacob Dugura Roy (2007) N3137
Peter Wararu Waranaka v Gabriel Dusava (2009) SC980
Counsel:
Joe Kessan with Phillip Tengdui, for the State
Vincent Agusave, for the Accused
VERDICT
15th April, 2014
1. DAVID, J: INTRODUCTION: This is the verdict of the Court with respect to the trial of the accused, Tommy Nand who has denied two charges preferred in the indictment; first, of sexually penetrating the complainant, NT (the complainant) on 18th April 2012 at Kola village, Minj in the Jiwaka Province, a child under the age of 16 years who was then under the age of 12 years by inserting his penis into her vagina; and the second is preferred in the alternative, i.e., that on 18th April 2012 at Kola village, Minj in the Jiwaka Province, he, for sexual purposes, touched with his penis the complainant's vagina, a child under the age of 16 years who was then under the age of 12 years. These offences are preferred under Sections 229A (1)(2) and 229B(1)(a)(b) of the Criminal Code respectively.
BRIEF ALLEGATIONS
2. On Wednesday, 18th of April 2012 at about 12:00 o'clock midday, the accused of Jimbina village, Minj District was at Konmil village. On the date and time, the complainant then aged 12 years of Konmil village was at home. The accused threatened the complainant with a bush knife and forcefully dragged her away from her home into the bush and sexually penetrated her by removing her clothes and inserting his penis into her vagina. After having penetrated the complainant, the accused let her go threatening her not to tell her parents. The complainant did not report the incident to her parents. The incident was however reported to the complainant's mother by two girls who witnessed the incident. The complainant's mother asked her about what happened and she told her that the accused sexually penetrated her. The complainant's mother reported the matter to the Minj police and the accused was subsequently apprehended and charged with sexual penetration of the complainant.
THE LAW AND ELEMENTS OF THE OFFENCES OF SEXUAL PENETRATION OF A CHILD UNDER 16 YEARS AND SEXUAL TOUCHING OF A CHILD
Sexual penetration of a child
3. The principal count was preferred under Section 229A(1)(2) of the Code. It is instructive that I set out the whole of Section 229A and it states:
(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) If the child is under the age of 12 years, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.
(3) If, at the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and the child, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.
4. The elements of the offence are:
1. the accused engaged in an act of sexual penetration with the complainant; and
2. the complainant was a child under the age of 16 years.
5. The factors of aggravation under Section 229A (2) and (3) of the Code are not elements of the offence under Section 229A (1). They only become relevant after conviction on the question of penalty which is increased from 25 years under sub-section 229A (1) to life imprisonment under both sub-sections 229A (2) and (3) subject to Section 19 of the Code.
6. The expression "sexual penetration" is defined by Section 6 of the Code. That provision states:
"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."
7. Consent is not, generally, a defence, but it could be raised in circumstances prescribed by Section 229F and 229G of the Code.
8. Section 229F states:
"Subject to Section 229E, [abuse of trust, authority or dependency] it is not a defence to a charge under this Division that the child consented unless, at the time of the alleged offence—
(a) the accused believed on reasonable grounds that the child was aged 16 years or older; or
(b) the child was aged 12 years or older, and the accused was no more than two years older than the child."
9. Section 229G states:
"A person is not criminally responsible for an offence against this Division in respect of an act if, at the time of the act, the child was of or over the age of 14 years and the person was married to the child."
10. The accused is charged with an offence prescribed under Division IV.2A of the Code which requires no corroboration to sustain a conviction. This is consistent with section 229H of the Code which 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."
Sexual touching of a child
11. The alternative count was preferred under Section 229B(1)(a)(b) of the Code. It is instructive that I set out the whole of Section 229B and it states:
(1) A person who, for sexual purposes—
(a) touches, with any part of his or her body, the sexual parts of a child under the age of 16 years; or
(b) compels a child under the age of 16 years to touch, with any part of his or her body, the sexual parts of the accused person's own body,
is guilty of a crime.
Penalty: Subject to Subsections (4) and (5), imprisonment for a term not exceeding seven years.
(2) For the purposes of this section, "sexual parts" include the genital area, groin, buttocks or breasts of a person.
(3) For the purposes of this section, a person touches another person if he touches the other person with his body or with an object manipulated by the person.
(4) If the child is under the age of 12 years, an offender under Subsection (1) is guilty of a crime, and is liable to imprisonment for a term not exceeding 12 years.
(5) If, at the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and the child, an offender against Subsection (1) is guilty of a crime, and is liable to imprisonment for a term not exceeding 12 years.
12. The elements of the offence under Section 229B(1)(a) are:
2. for sexual purposes;
13. The elements of the offence under Section 229B(1)(b) are:
2. a child under the age of 16 years;
3. to touch
14. The factors of aggravation under Section 229B (4) and (5) of the Code are not elements of the offence under Section 229B (1)(a) or (b). They only become relevant after conviction on the question of penalty which is increased from 7 years under sub-section 229B (1) to 12 years under both sub-sections 229B (4) and (5) subject to Section 19 of the Code.
15. The expression ""sexual purposes" is not defined in the Code. In The State v Stafford Hambo (2010) N4036, Cannings, J said it meant "sexual gratification". There, His Honour observed:
"43. There is no definition of the term "sexual purposes" in the Criminal Code. Given its context in Division IV.2A (sexual offences against children) I consider that it means 'sexual gratification'. It does not, for example, include touching a child's sexual parts for medical or hygienic or other innocent or proper purposes. In practical terms if an adult touches a child's sexual parts and the evidence shows that this was not done for any innocent or proper purposes the reasonable inference to draw is that it was done for sexual gratification, ie for sexual purposes...."
I would adopt the definition propounded.
ONUS AND STANDARD OF PROOF
16. To sustain a conviction for any of these offences, the prosecution must prove all the elements of these offences beyond any reasonable doubt.
THE PROSECUTION CASE
17. The prosecution evidence consists of documentary and oral evidence.
18. The documentary evidence constituted by four documents which were tendered by consent of the defence are:
19. The prosecution called three witnesses namely, the complainant herself, Wulum Nua and the complainant's mother, Cathy Tump. They all gave sworn evidence and were subject to cross-examination. Special measures orders were made under Section 37B(2)(b) and (f) of the Evidence Act before the complainant and Wulum Nua gave her evidence as they were below the age of 18 years and the proceedings relate to sexual offences.
20. The complainant was the first prosecution witness to give evidence. She gave evidence following the granting of a special measures order under Section 37B (2)(b) and (f) of the Evidence Act. The complainant's father was the support person and he sat next to the complainant when she was giving evidence.
21. Wulum Nua was the second prosecution witness to give evidence. She gave evidence following the granting of a special measures order under Section 37B (2)(f) of the Evidence Act.
22. The complainant's mother was the last prosecution witness to give evidence.
23. I summarise the evidence below.
Record of Interview (Exhibits "A1" and "A2")
24. The interview conducted in Tok Pisin on 2nd of May 2012 at the CID Office, Minj Police Station in the Jiwaka Province was between investigator, Detective Constable Tumbe Kalpe and the accused with Detective Senior Constable John Mangi attending the interview as corroborator. The accused made no admissions when questioned about the allegation that on Wednesday, 18 April 2012 at about 12:00 noon at Konmil village he approached the complainant at her home whilst she was drying coffee beans, threatened the complainant with a bush knife and dragged her away into the bush where he raped her twice and then threatened her not to tell anyone about what he had done to her. He said what really happened was that he caught the complainant stealing from his garden. He said he was with the complainant when two small girls namely, Wulum Nua and Karal Ngumbi saw them and he heard them calling her. He however said that his own people brought him to the Minj Police Station in connection with the alleged incident. The Record of Interview is therefore of no probative value to the prosecution.
Statement of Detective Constable Tumbe Kalpe (Exhibit "B")
25. He investigated the complaint about the allegation that the accused sexually penetrated the complainant and performed another indecent act upon the complainant on 18th of April 2012 at Konmil village, Minj after the matter was reported to the Minj Police Station on 21st of April 2012. The accused was brought to the Minj Police Station following a citizens' arrest by his own people. He conducted the interview with the accused at the CID Office on 2nd of May 2012 which commenced at 11:00 am and concluded at 12:45 pm and during the interview he asked the accused questions about the allegation which he denied. He and the corroborator signed the Record of Interview, but the accused refused to sign. The Statement is of no probative value to the prosecution.
Statement of Detective Senior Constable John Mangi (Exhibit "C")
26. He attended the interview conducted by Detective Constable Tumbe Kalpe with the accused in relation to an allegation that the accused sexually penetrated the complaint and performed another indecent act upon the complaint at the CID Office on 2nd of May 2012 as corroborator which commenced at 11:00 am and concluded at 12:45 pm. The accused denied the allegation. He signed the Record of Interview, but the accused refused to sign it. No intimidation or force was used during the interview and the accused spoke freely when answering questions put to him by Detective Constable Tumbe Kalpe. The Statement is of no probative value to the prosecution.
The complainant
Examination-in-Chief
27. She is from Kola village and is currently aged 14 years. She is currently doing Grade 4 at the Minj Primary School. Her father's name is Tump.
28. On Wednesday, 18th of April 2012, she was alone at home at Konmil drying coffee beans. His small brother and sisters were in the bush. She was drying coffee beans when the accused approached her and put a bush knife on her neck. He then asked her to go with him following a footpath. He took her to a coffee garden where two of her sisters namely Karal Wau and Wulum Nua were picking coffee cherries. When she tried to call out to them, the accused told her to keep walking and not to look around or do anything otherwise he would cut her neck or kill her. Karal Wau and Wulum Nua called out to her, but the accused stopped her from responding. He took her into a bush and asked her to undress herself. However, the accused undressed her by taking her trousers off and he undressed himself and told her to lie down on the ground and she did facing upwards. The accused told her that if she called out, he would cut her neck off, chop her into pieces and leave her in the bush. The accused got on top of her, inserted his penis into her vagina. It was very painful and she was bleeding from her vagina. When he was satisfied, he told her to wear her trousers and return home following the footpath. When she returned home, she was afraid so she went to her uncle's house.
29. She knows the accused well as they both are from the Akugapan clan. The accused was the person sitting in the dock.
Cross-examination
30. On 18th of April 2012, she was at home at the back of the house drying coffee beans on her father's instructions when the accused approached her, threatened her with a bush knife and took her away. They followed a footpath into the bush. On their way, they were seen by the two girls. Whilst in the bush, he laid her down on the ground and proceeded to sexually penetrate her vagina with his penis. When he finished, he told her to wear her trousers and return home.
31. When the accused inserted his penis into her vagina, it was very painful and she was bleeding.
32. When she went home she was not walking properly. She did not report the incident to her parents or anyone else. She was afraid and too ashamed to tell her parents so after she got changed, she went to her uncle's house. She was in pain and bleeding and was walking slowly when she went to her uncle's house. She took a ride on a vehicle and was dropped off at her uncle's house. When questioned why she did not mention earlier about getting on a vehicle, she said she forgot. It was the two girls who told her mother and her mother subsequently went to her uncle's house and questioned her about the incident. Her mother then took her to the police station and reported the incident. They later went to the Kudjip Nazarene Hospital where she was examined and it was confirmed that she was raped.
33. Her house is situated outside the village. There are no other houses nearby. Other houses are situated past a creek.
34. She denied the suggestion that the accused found her in his brother's coffee garden whilst she was stealing garden food and the accused was trying to take her to his big brother. She also denied the suggestion that the accused took her to his brother's house to tell him about what she did and he let her go because his brother was not there.
35. When it was put to her that the allegation of rape was not true and it was made up because no medical evidence from the Kudjip Nazarene Hospital was presented to the Court to support her allegations and that her uncle had no knowledge of her being raped, she said she was telling the truth. She was adamant that she was in the village when the accused forced her to follow him into the bush where he raped her.
36. At the time of the incident, she was aged 12 years and the accused was a big boy.
37. Her statement to the police entitled "Victim's Statement" was tendered by consent as prior inconsistent statement and marked as defence exhibit 1. When she was referred to paragraph 5 of the statement which stated that the accused took her to a house first and then to the bush, took her clothes off and sexually penetrated her twice, she denied that that was what she told the police. She said she told the police what she was recounting in Court. The statement recorded at paragraph 5 was an error.
38. There is no dispute between the accused's family and her father's.
Re-examination
39. She did not tell her parents about the incident after it had happened because she was afraid of being bashed up by the accused.
40. The statement about a house in her statement (Exhibit "D1") was a mistake.
41. She did not have any problem with the accused before the incident.
Court's questions
42. When I asked as to where the incident occurred, she said it was at Konmil. Konmil and Kola are different villages situated at different locations
Questions arising
43. There was none.
Wulum Nua
Examination-in-Chief
44. She is aged 15 years now and is from Kola village. She attends the Minj "T" Primary School and is doing Grade 6 now.
45. On Wednesday, 18th of April 2012, at about midday, she was at Konmil picking coffee cherries. She was with her sister namely, Karal. As they were picking coffee cherries, they saw the accused and the complainant. The complainant was walking in front of the accused. She knows the accused and she pointed at him sitting in the dock. The distance between them and the accused and the complainant was about 2 metres, being the distance between her at the witness box and where the Associate was sitting. When they called out to the complainant, the accused told her not to respond and continued walking. They did not follow them nor do anything thereafter, but continued picking coffee cherries and later went home. They did not notice anything out of the ordinary or become suspicious because they thought that the complainant was going to her parents at their garden. When they went home, they told the complainant's mother what they saw.
Cross-examination
46. When they saw the accused and the complainant, they were walking towards the accused's big brother's house. She did not know the reason why the accused and the complainant were walking in the direction of that house. She maintained that the distance about 2 metres, being the distance between her at the witness box and where the Associate was sitting. She did not notice anything strange when the accused and the complainant walked past them. She saw the complainant and the accused together so she told the complainant's mother.
Re-examination
47. There was no re-examination.
Cathy Tump
Examination-in-Chief
48. She is from Konmil village and is married with five children consisting of 2 boys and 3 girls. The complainant was born on 11th of February 2000 and she is the eldest of the five children. The complainant was aged about 12 years and 3 months at the time of the incident. On Wednesday, 18th of April 2012, she asked the complainant to stay at home to look after the coffee beans that were put out to dry in the sun whilst she went to the garden. She returned home in the afternoon.
49. On Thursday, 19th of April 2012, she was at home and went to the roadside market at Kola when she met Wulum and Karal. They told her that they saw the complainant walking together with the accused. The complainant did not sleep at the house the previous night. Kola is the main village which is situated towards the road and Konmil is located a further up from Kola. She then went over to the complainant's uncle's house in search of her and found her there. The complainant told her there that the accused raped her. In the afternoon, she and the complainant went to the complainant's paternal uncle's house which is situated near the main highway.
50. On Friday morning, she took the complainant to the Minj Police Station and reported the incident and later went to the Kujip Hospital for a medical check-up.
Cross-examination
51. The complainant did not sleep at the house on the night of Wednesday, 18th of April 2012. She became concerned so she began a search. When she went to the Kola market, she met Wulum and Karal who told her about seeing the complainant walking together with the accused. Acting on what she heard, she suspected that the accused might have done something to the complainant so she went to the complainant's uncle's house. There, after some interrogation, the complainant told her that the accused raped her. She then took the complainant to her paternal uncle's house then to the Police Station and eventually to the hospital. When it was put to her that because she was suspicious about what the accused might have done to the complainant when they were together, she took her to the hospital to confirm, she said the complainant was examined and it was confirmed that she was raped. When it was put to her that there was no medical evidence before the Court to verify her assertion, she said she had the complainant's clinic book in her bilum outside the Court house. The complainant was experiencing pain when urinating. When it was put her that she had made up the story, she said she was telling the truth.
Re-examination
52. The complainant told her that the accused sexually penetrated her so she believed her.
THE DEFENCE CASE
53. The defence evidence consists of documentary and oral evidence. The documentary evidence which was tendered by consent of the prosecution is the complainant's undated statement entitled "Victim's Affidavit" (Exhibit "1"). From the options available to the accused, he elected to give sworn evidence. He was the only witness called for the defence. I summarise the evidence below.
Complainant's undated statement
54. She is from Kola village, Minj in the Jiwaka Province, aged 12 years and doing Grade 3 at the Minj Tee Primary School. On Wednesday, 18th of April 2012 at about 12:00 noon, she was at home drying coffee beans. Her two brothers had gone to their fish pond which was about 150 metres from their house. The accused approached her with a knife, threatened to kill her if she cried out for help and dragged her away for about 600 metres into the bush. On their way to the bush, Wulum Nua and Karal Ngumbi saw them and they called out her name. She wanted to respond, but the accused closed her mouth with his hands very strongly and threatened to kill her. He took her to a house and then took her into the thick bush, took her clothes off and raped her twice. When he finished, he told her not to tell anyone including her parents about the incident and threatened to kill her if she did. He instructed her to walk home via bush tracks instead of using the main track which led to her house and she did in fear of being killed by the accused if she did otherwise. She was scared to remain at home so she left Kola the same day and went to her father's brother's house at Jimbina.
55. After being told by Wulum Nua and Karal Ngumbi about seeing the accused dragging her into the bush, on Friday, 20th of April 2012, her mother went to her uncle's house at Jimbina where she was and enquired why the accused dragged her into the bush and if he had done anything to her and she revealed everything to her mother and uncle.
56. On Saturday, 21st, they went to the Minj Police Station and reported the incident. Later on the same day, they went to the Kudjip Nazarene Hospital for a medical check-up and obtained a medical report.
The accused
Examination-in-chief
57. He is from Jimbina village and aged 17 years.
58. On Wednesday, 18th of April 2012 between 9:00 am and 12:00 noon, he was at Konmil. On that date and time, he was trying to feed the pigs with kaukaus at the pig house situated within a coffee garden. He was going through the coffee garden when he found the complainant stealing cabbage and other vegetables from his big brother's garden. She told her to go with him to where his brother was somewhere in the coffee garden and she agreed. They went to where his brother was supposed to be, i.e., where a wire fence was constructed and started calling him. The two girls who were in the coffee garden called out to him saying that his brother had gone to Minj. When he heard this, he jumped over the fence, told the complainant who was on the other side of the fence to go home and he proceeded to the pig house with the feed. The pig house is owned by his third brother and it is the only house in the vicinity.
59. There are three males in the family. Of the three, he is the last born.
60. He denies committing any of the offences he is charged with. The complainant and her mother were telling lies. They had a land dispute with his family so they have taken the opportunity to make these allegations against him.
Cross-examination
61. On the morning of 18th of April 2012 at around 8:00 and 9:00 am, he went to feed the pigs at a pig house. He denied meeting the complainant at her house nor taking her away from there that morning and sexually penetrating her through her vagina in the bush. The pigs and pig house belong to the third brother. That is the only house within the vicinity. When asked whether his elder brother had a house near where the pig house was situated, he said no. On his way to the pig house, he went into a coffee garden which belongs to his big brother. There are two coffee gardens. The first one belongs to his big brother. She found the complainant in his brother's garden stealing so he wanted to take her to him. On their way, he called out to his brother and this was when the two girls responded and said that his brother had gone to Minj. He could not recall what the two girls were doing there. He let the complainant return home and he went over the fence to feed the pigs. He denied the suggestion that when he met the two girls, that would have been about 11:30 am to 12:00 noon and they were picking coffee cherries.
62. When it was put to him that his claim about there being a land dispute between his family and the complainant's was only to support his case, he said a land dispute did occur and it resulted in a fight. The dispute was mediated and a decision made in their favour. The complainant's family was aggrieved by the decision so made these false allegations.
Re-examination
63. There was no re-examination.
SUBMISSIONS OF THE PARTIES
Submissions of the defence
64. It was submitted by Mr. Agusave of counsel for the defence that the prosecution has failed to prove its case beyond any reasonable
doubt. I set out his reasons below.
65. When the accused and the complainant walked past Wulum Nua and Karal Wua at a distance of about 2 metres separating them, the complainant had the opportunity to signal them that she was in some kind of distress. Evidence from Wulum confirms that she did not see any sign of distress from the complainant.
66. If the accused sexually penetrated the complainant's vagina with his penis, the complainant, a 12 year old would have suffered injury and there was no cogent evidence before the court to substantiate the allegation. The complainant's evidence about her vagina being injured and bleeding therefore not walking properly when she went to her uncle's house was unbelievable as her uncle or aunty with whom she spent the night after the alleged incident would have noticed and enquired with her. Under cross-examination, the complainant said she did not report the incident to her parents or anyone else. The complainant's mother did not examine her own daughter. No evidence was sought from the complainant's uncle or from anyone else for that matter. No physical evidence such as blood stained clothes formed part of the evidence or such was observed by anyone.
67. The evidence about the complainant having been taken by her mother to the Kudjip Nazarene Hospital for medical examination where a medical staff who conducted the examination had confirmed that she was raped was not supported by any medical report from that hospital. The onus was on the prosecution to adduce this evidence before the Court.
68. There was no evidence before the Court that the complainant's mother was concerned about the complainant being absent from home during the night on the date in question. The complainant's mother's evidence was that she acted on her own suspicion that the accused might have raped the complainant in the bush as they were seen together by Wulum and Karal in a coffee garden they were at. These two girls did not tell her that they saw the complainant being raped by the accused.
69. As to the accused's evidence, counsel submitted that the accused recounted what transpired on the morning of 18th of April 2014 when he was on his way to feed the pigs bred at a pig house owned by his elder brother in a coffee garden. Wulum's evidence confirmed that the accused's elder brother owned a house for breeding pigs in the garden. The accused caught the complainant stealing garden food from his elder brother's coffee garden and wanted to take her to his elder brother who he knew was somewhere in the garden so they were walking to the pig house to find him. The Record of Interview confirms that the complainant was stealing from the garden. The elder brother actually was not there so he allowed the complainant to return to the village.
70. Mr. Agusave submitted that this case was entirely made up by the complainant's mother as there was no cogent evidence before the Court to support the allegations. Counsel acknowledged that corroboration is not required, but in this particular case it was desirable that some other evidence was required to prove that the complainant was sexually penetrated.
71. Mr. Agusave submitted that the accused was a witness of truth demonstrated by his demeanour which was good. He was not evasive to direct questions asked under cross-examination and he was not shaken under cross-examination as well. On the other hand, the complainant avoided direct simple questions and was evasive.
72. Counsel submitted that some doubts linger so a verdict of not guilty be returned.
Submissions of the prosecution
73. It was submitted by the prosecution through Mr. Tengdui of counsel that notwithstanding that the complainant was a small girl, she gave compelling evidence and details of the incident were given in a forthright manner. He argued that the complainant's demeanour was good, she was consistent and not shaken under cross-examination which was demonstrative of a person telling the truth. Under cross-examination, she confirmed experiencing pain and bleeding when the accused sexually penetrated her vagina with his penis.
74. The evidence by the complainant of being taken from her home whilst drying coffee beans was consistent with the timing of the offence taking place. Wulum Nua saw the accused and the complainant together around midday and that is the time when the sun is up for drying coffee beans. The accused's assertion that he caught the complainant around 8:00 o'clock in the morning should be disbelieved.
75. On the other, counsel submitted that the demeanour of the accused was poor and should not be believed. The reasons he advanced were; the accused avoided questions; the accused did not give direct answers; and he fidgetted in giving his answers. The accused making reference to a land dispute between the families of the accused and the deceased was only an excuse counsel argued.
76. Counsel conceded that the prosecution did not address the question of medical evidence, but said corroboration was not required under Section 229H of the Code.
77. Counsel submitted that prosecution has established the elements of the charge for sexual penetration therefore a verdict of guilty be returned.
UNCONTESTED FACTS
78 From all the evidence before me and the submissions of counsel, I find that the principal uncontested facts are:
CONTESTED FACTS
79. From all the evidence before me and the submissions of counsel, the principal contested facts are:
ISSUES
80. The principal issue in the present case is whether or not the prosecution has proven all the elements of the offence of sexual penetration of a child under the age of 16 years beyond reasonable doubt with respect to the first count? In the event that the first count is not established, the next main issue is whether or not the prosecution has proven all the elements of the alternative charge of touching for sexual purposes the sexual parts of a child under the age of 16 years?
81. A collateral issue which I need to determine during the course of my deliberations which will eventually determine the outcome of this case is whose evidence should I accept and believe?
ANALYSIS OF THE ISSUES AND EVIDENCE
General principles of evidence
82. Finding of credibility is usually dependent on matters such as the degree of logic and common sense as well as the demeanour of the witnesses in the witness box and consistencies in their evidence: see Garitau Bonu and Rosanna Bonu v The State (1997) SC528; Peter Wararu Waranaka v Gabriel Dusava (2009) SC980.
83. A further legal principle which I will bear in mind and apply here in determining the issues is that a lying witness can be just as forceful and convincing and yet lying while a truthful witness can be so unconvincing in his story and his appearance and yet telling the truth: Andrew Palili v The State (2006) SC 848.
84. Another applicable principle is that there is no rule of law that says that a party that calls more witnesses and who gives consistent and almost identical stories must be believed than the opposing party who calls only one witness: The State v Jacob Dugura Roy (2007) N3137.
85. I adopt these principles and will apply them here.
Has the prosecution proven all the elements of the offence of sexual penetration of a child under the age of 16 years beyond reasonable doubt?
86. Of the two essential elements of the offence of sexual penetration of a child under the age of 16 years, it is not disputed that the complainant was under the age of 16 years as she was born on 11th of February 2000 and aged over 12 years and 2 months on the date of the alleged incident. I am therefore satisfied beyond any reasonable doubt that the prosecution has satisfied the second element of the offence.
87. As to whether the accused was engaged in an act of sexual penetration to satisfy the first element of the offence, apart from the complainant herself, there is no direct evidence from the other two prosecution witnesses or documentary evidence that the complainant was found or seen by anyone engaging in an act of sexual penetration with the complainant at Konmil. There was however evidence from Wulum Nua which is not disputed that she and Karal Ngumbi saw the accused together with the complainant in a coffee garden they were at during the day on 18th of February 2012. These girls did not see the accused sexually penetrate the complainant's vagina with his penis nor did they see him sexually touch with his penis the complainant's vagina. The complainant's evidence is not corroborated by these girls or other evidence.
88. It has been held that whilst a medical report of a sexual assault is not an essential piece of evidence in a trial for rape, it is highly desirable for such a document to be adduced in evidence and for its author to be available for cross-examination: The State v Alex Matasol Hagali (2006) N4490. I would agree with that proposition. I will adopt and apply this proposition in the present case as it involves a sexual assault. In the present case, evidence from the complainant and her mother was that the complainant's mother took the complainant to the Kudjip Nazarene Hospital to be medically examined to confirm the complainant's mother's suspicion that the complainant might have been raped by the accused. They both said that the medical examination confirmed that the complainant was raped. However, no medical evidence from that hospital has been produced to the Court either through a medical report or by oral evidence of a medical staff who might have conducted the examination to support the assertion.
89. There is no evidence from the complainant or her mother that she was examined by her mother at anytime before going to the hospital. It appears that the complainant's mother believed everything that the complainant told her about being raped by the accused when she interrogated the complainant at her uncle's house including experiencing pain when urinating.
90. No evidence was sought from the complainant's uncle or anyone else if they noticed anything irregular in the physical appearance of the complainant demonstrating trauma or distress or that she was bleeding from her vagina or had blood stained clothes.
91. According to section 229H of the Code, corroboration is no longer an essential requirement under our law to prove this offence. So is the complainant a witness of truth upon whose evidence I am entitled to find that the accused was engaged in an act of sexual penetration with her without the need for corroboration?
92. I will now deal with the question of whether the complainant has any material inconsistencies in her evidence or even with evidence of the other prosecution witnesses and her undated statement which was tendered as a prior inconsistent statement by the defence by consent and marked as defence Exhibit 1.
93. I start with comparing her oral evidence with her undated statement. In her oral evidence, the complainant denies that the accused took her to his brother's house to tell him about her stealing from his garden. At paragraph 5 of her undated statement she states that the accused took her to a house before taking her into the bush and raping her. The relevant paragraph reads:
"He took me to a house and then took me back again into a bush and took off my clothes and repeatedly raped me two times."
94. When reference was made to this particular paragraph in cross-examination, the complainant said that was not what she told the police so that was an error. She said what she was recounting in Court was what she told the police. I reject the explanation of an error as a lame excuse. Certainly, a prior inconsistent statement has been made out.
95. The principle regarding prior inconsistent statements was stated by the Supreme Court in David Kandakason v The State (1998) SC 558 which was later adopted in Andrew Palili v The State (2006) SC 848. In the former case, the Supreme Court held:
"Where the witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the Court must regard and treat that evidence unreliable, and similarly disregard that previous statement, whether sworn or unsworn, as it does not constitute evidence upon which the judge can act. In other words, both testimony of the witness and his statement given out of the court are discredited and both are no longer reliable evidence."
96. I find that the inconsistency is significant as it goes to the core of the defence argument that the accused was taking the complainant to his brother who had a pig house somewhere within the coffee garden because she had stolen garden food from his garden. The question as to what type of house the complainant referred to is to my mind irrelevant. In adopting the above principle and applying it to the present case, I would find that the oral evidence of the complainant and the undated statement are no longer reliable.
97. All the allegations about the accused approaching the complainant at the back of her house at Konmil whilst drying coffee beans,
threatened with a bush knife and dragged by the accused into the bush where the accused sexually penetrated her vagina with his penis
and the injuries caused to her vagina including pain and bleeding she experienced as a result cannot therefore be substantiated.
98. The Supreme Court in David Kandakason also made these observations about cases advocating flexibility:
"These cases tend to encourage flexibility. The High Court of Australia in Driscoll -v- The Queen ...whilst adopting the first part of the proposition in Golder, Jones and Porritt ... said 'it cannot be accepted that in a case where a witness has made a previous inconsistent statement, there is an inflexible rule of law or practice that the jury should be directed that the evidence should be regarded as unreliable.' In other words the existence of a prior inconsistent statement ipso facto does not make a witness's evidence unreliable. On the other hand the prosecution is entitled to call other evidence to verify the correctness or truth of a hostile witness's previous written statement to prove that his subsequent sworn testimony is untrue. In R.v. Prestano & Ors ...it was held: 'that the witness having given evidence which directly opposed statements made to the police it was permissible for the Crown to test his recollection further upon that vital matter by putting to him a deposition made in an altogether different case so as to give him yet another opportunity of saying whether or not having been reminded of that, he did or did not regard what he had said previously to be right and what he had said in the witness box to be wrong'. The Court held further that the evidence was for the jury to consider subject to a proper warning from the judge as to the weight, if any, which could be attached to it." (My emphasis)
99. The evidence by Wulum Nua verifies the correctness or truth of the complainant's previous written statement and contradicts the complainant's sworn oral evidence given in Court. Wulum Nua's evidence given under cross-examination was that the accused's big brother has a house in the coffee garden and the accused and the complainant were walking towards the direction of the house when she and Karal saw them together. The complainant's mother's evidence does not address the issue.
100. Other material inconsistencies that I identify in the undated statement and evidence of the other prosecution witnesses are as follows.
101. In her undated statement, she states that whilst the accused and herself were on their way to the bush, Wulum Nua and Karal Ngumbi saw them and called out her name. She wanted to respond, but she could not as the accused closed her mouth with his hands very strongly and threatened to kill her. Evidence from Wulum Nua was that she and Karal Ngumbi saw the accused and the complainant walking past them from a distance of about 2 metres and they did not notice anything out of the ordinary or that she was in some sort of distress or there was cause for them to become suspicious. Wulum Nua said they did not follow them or did anything thereafter, but continued picking coffee cherries and later went home. Nothing about the accused closing the complainant's mouth tightly with his hands or that he was threatening to kill her was mentioned by Wulum Nua in her evidence. I find this as another inconsistency in the complainant's evidence.
102. At paragraphs 3, 9 and 10 of her undated statement, the complainant raises the issue of being "dragged" by the accused into the bush. Again Wulum Nua did not make mention of the accused dragging the complainant when she and Karal Ngumbi saw them walking along together in the coffee garden so as to arouse suspicion. Evidence from Wulum Nua was that the complainant was walking ahead of the accused. I find this as another inconsistency in the complainant's evidence.
103. At paragraph 10 of her undated statement, the complainant states that her mother went to her uncle's house at Jimbina on Friday, 20th April 2012 when she revealed to her and her uncle about the alleged incident. Her mother's evidence is that she went to her uncle's house on Thursday, 19th of April 2012. I find this as another inconsistency in the complainant's evidence with her mother's.
104. At paragraph 11 of her undated statement, the complainant states that she went with her mother to the Minj Police Station on Saturday, 21st April 2012 and reported the alleged incident and later on the same day they went to the Kudjip Nazarene Hospital for a medical check-up and obtained a report. Her mother's evidence is that she went with the complainant to Minj Police Station and the Kudjip Nazarene Hospital on Friday, 20th of April 2012. Again, I find this as another inconsistency in the complainant's evidence with her mother's.
105. Another inconsistency I find in the complainant's evidence is that under cross-examination, the complainant stated that she was instructed by her father to dry coffee beans. In her mother's evidence, she said she instructed the complainant to dry the coffee beans.
106. A number of material inconsistencies have been identified. I would find that these inconsistencies render the complainant's entire evidence unreliable. She is not a witness of truth.
107. Wulum Nua was a witness of truth. Her evidence was short and sharp and believable. She was an impressive witness and her demeanour in the witness box suggested that of a witness of truth. The basic facts deduced from her evidence are; the date and time and place where she and Karal saw the accused and the complainant together; the accused and the complainant were walking towards the accused's big brother's house; she and Karal did not notice anything strange when the accused and the complainant walked past her and Karal so as to arouse suspicion; and they told the complainant's mother about seeing the complainant and the accused together in the coffee garden. As to the time of the day, I would find as a fact that it was about midday when the accused and the complainant were seen together.
108. The demeanour of Cathy Tump, the complainant's mother in the witness box was not impressive. Her own evidence demonstrated that the actions she took after being informed by Wulum and Karal about seen the complainant together with the accused in a coffee garden they were at were driven by suspicion and believing all that the complainant had told her. There is no evidence that she examined the complainant herself. She did not produce a medical report from the Kudjip Nazarene Hospital to confirm her assertion that medical examination conducted there confirmed rape having occurred. She mentioned the existence of the complainant's clinic book in her bilum outside the Court house, but no leave was sought to produce it. I have already mentioned the inconsistencies between her evidence and the complainant's including her undated statement. Apart from her evidence about the complainant's date of birth, she is an unreliable witness in all other aspects of her evidence.
109. The accused's oral testimony is quite straight forward. It is generally consistent with his responses recorded in the Record of Interview. He denies sexually penetrating the complainant as alleged. All he said was that he was trying to feed the pigs bred at the pig house within the coffee garden sometime in the morning of Wednesday, 18th of April 2012. On the way whilst walking through his brother's coffee garden, he came across the complainant stealing vegetables from his brother's garden. So with the complainant's agreement he took her to his brother whom he knew was somewhere in the coffee garden. Along the way as he was calling his brother, Wulum and Karal who were also in the coffee garden called out to him saying that his brother had gone to Minj. The only glitch in the accused's evidence is with regard to the time of the day that he was with the complainant in the coffee garden. In examination in chief he said it was between 9:00 am and 12:00 noon. Under cross-examination, he said it was between 8:00 and 9:00 am. I consider the variance to be not fatal. Otherwise, his demeanour suggested that of a witness of truth.
110. For these reasons, I find that the prosecution has failed to prove beyond any reasonable doubt that the accused was engaged in an act of sexual penetration with the complainant. The first element of the offence has not been established.
111. All the elements of the offence of sexual penetration of a child under the age of 16 years have not been proven beyond any reasonable doubt. A verdict of not guilty is returned for this count.
Whether or not the prosecution has proven all the elements of the alternative count of touching for sexual purposes the sexual parts of a child under the age of 16 years?
112. This issue only relates to the charge under Section 229B(1)(a). Of the essential elements of the offence of sexual touching of a child under the age of 16 years, it is not disputed that the complainant was under the age of 16 years as she was born on 11th of February 2000 and aged over 12 years and 2 months on the date of the alleged incident. I am satisfied beyond any reasonable doubt that the prosecution has only satisfied the fifth element of the offence.
113. I will adopt the reasons I have given for concluding that the accused did not sexually penetrate the complainant with regard to the first count to find that all other elements of the alternative count of touching for sexual purposes the sexual parts of a child under the age of 16 years have not been established beyond any reasonable doubt.
114. For these reasons, a verdict of not guilty is returned for the alternative count as well.
115. I have already set out the elements of the offence under Section 229B(1)(b) as that provision was also relied on to substantiate the alternative charge. As can be seen, the elements of this offence vary slightly with the elements under Section 229B(1)(a). They are two distinct charges which are distinguished by the word "or" in Section 229B(1) meaning they are alternative charges which would usually require an election to be made by the prosecution. The charge preferred in the indictment does not relate to the offence under Section 229B(1)(b). If the prosecution desired, and for arguments sake, a further and separate alternative charge should have been preferred in the indictment. In any event, adopting the same reasons for dealing with the two counts earlier, I would find that apart from the age of the complainant which satisfies the second element, the rest of the elements of the offence under Section 229B(1)(b) have not been established beyond any reasonable doubt and warrants a verdict of not guilty to be returned.
116. A notice of acquittal shall forthwith issue with regard to both counts and the accused be discharged from custody.
____________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused
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