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State v Kombeng [2015] PGNC 48; N5952 (23 April 2015)

N5952

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 253 OF 2014

THE STATE

V

LEVY KOMBENG
Respondent

Madang: Cannings J
2015: 18, 19 February, 5, 11, 18 March, 23 April

CRIMINAL LAW – sexual offences against children – engaging in act of sexual penetration with child under the age of 16 years, Criminal Code, Section 229A(1) – trial – elements – whether the accused sexually penetrated the complainant.

The accused, a 30-year-old man, was charged with two counts 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 in that the child, a nine-year-old girl, was under the age of 12 years and the niece of the accused. The accused pleaded not guilty so a trial was held. The age of the child (the complainant) was not contested. She gave evidence that the accused sexually penetrated her, vaginally and anally. The accused denied the allegations.

Held:

(1) The two elements of an offence under Section 229A(1) are that: (a) the accused engaged in an act of sexual penetration with another person; and (b) the other person was a child under the age of 16 years.

(2) The State proved beyond reasonable doubt that the accused sexually penetrated the complainant by introducing his penis into the complainant's vagina, as: (a) the complainant was assessed as a reliable and honest witness; (b) there was evidence of a prompt complaint; (c) the complainant's mother's evidence corroborated the complainant's evidence; (d) the medical evidence supported the conclusion that the complainant had been sexually penetrated;(e) no other explanation of how the complainant could have been penetrated was in evidence; (f) the accused was assessed as an unconvincing witness.

(3) The accused was convicted of the first count on the indictment. He was acquitted on the second count due to absence of clear medical evidence.

Cases cited

The following cases are cited in the judgment:

Java Johnson Beraro v The State [1988-89] PNGLR 562
Michael Balbal v The State (2007) SC860
Rolf Schubert v The State [1979] PNGLR 66
The State v Polikap Lakai (2007) N3153
The State v Stuart Merriam [1994] PNGLR 104

TRIAL

This was the trial of an accused charged with two counts of engaging in an act of sexual penetration with a child under the age of 16 years.

Counsel:

F K Popeu, for the State
J Morog, for the accused

23 April, 2015

1. CANNINGS J: The accused, Levy Kombeng, is charged with two counts 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 in that the child was under the age of 12 years and the niece of the accused. The State alleges that the accused, aged 30 at the time, committed the offences against the complainant, his nine-year-old niece, "M", while he and the complainant were together in the family home in Madang town on the morning of Sunday 16 June 2013. It is alleged that he penetrated her vagina with his penis (count 1) and that he penetrated her anus with his penis (count 2). He pleaded not guilty so a trial was held.

2. The State's case is based on the oral evidence of the complainant and the complainant's mother and the report of a medical examination of the complainant. The accused completely denies the allegations.

UNDISPUTED FACTS

3. A number of undisputed facts have emerged from the evidence:

• The accused was aged 30 at the time. The complainant, whose date of birth is 29 February 2004, was aged nine. She was in grade 1 at school.
  
• The accused was living in the same house with the complainant, her three younger siblings, her parents and two other adult male relatives (referred to as "bubus"). The accused is the complainant's father's brother. The complainant calls him "Uncle Levy".
  
• The accused had been living in the house without incident for five years prior to June 2013. He was working with one of the family's uncles who is a building contractor in Madang.
  
• On the morning of Sunday 16 June 2013, only the accused and the complainant were at the house. The complainant's father was at work in another town, her mother had gone to church and the two bubus were outside at a small market.
  

LAW

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

A person who engages in an act of sexual penetration with a child under the age of 16 years is guilty of a crime.

Penalty: Subject to Subsections (2) and (3), imprisonment for a term not exceeding 25 years.

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

• the accused engaged in an act of sexual penetration with another person; and
• the other person was a child under the age of 16 years.
  

6. If the child is under the age of 12 years, this is a circumstance of aggravation under Section 229A (2), which results in the maximum penalty being increased to life imprisonment. If there is an existing relationship of trust, authority or dependency between the accused and the child, this is a circumstance of aggravation under Section 229A (3), which also results in the maximum penalty being increased to life imprisonment.

ISSUES

7. It is undisputed that the complainant was under the age of 12 years and that the accused was her uncle and that (by virtue of Section 6A (2) (c) of the Criminal Code) a relationship of trust, authority and dependency existed between them. The only issue is whether the State has proven beyond reasonable doubt that the accused sexually penetrated the complainant in the manner alleged. Did he, as charged in count 1, introduce his penis into her vagina? Did he, as charged in count 2, introduce his penis into her anus?

COUNT 1: DID THE ACCUSED PENETRATE THE COMPLAINANT'S VAGINA?

8. Resolution of this issue requires a:

• summary of evidence for the State;
• summary of evidence for the defence;
• formal determination of the question whether the State has proven that the accused penetrated the complainant's vagina.
  

Evidence for the State

9. Three witnesses gave evidence for the State, as summarised in the following table.

10. Two exhibits were admitted into evidence. The first was the accused's record of interview in which he denied the allegation that he had sexually penetrated the complainant. The second was the report of the medical examination.

Evidence for the defence

11. Two witnesses gave evidence for the defence, as summarised in the following table.

Has the State proven beyond reasonable doubt that the accused introduced his penis into the complainant's vagina?

12. Having weighed the competing evidence and the submissions of counsel, I conclude that the State has proven beyond reasonable doubt that the accused introduced his penis into the complainant's vagina, for the following reasons:

(a) The complainant was assessed as a reliable and honest witness.

M was 11 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. She appeared to be an intelligent and bright child. Defence counsel, Mr Morog, raised no objection to her competence as a witness or the admissibility of her evidence. I concluded that she was a competent witness. The complainant impressed me as a person who was telling the truth. Her demeanour was sound. Her evidence was clear and credible and straightforward. There was no equivocation in her answers. Defence counsel Mr Morog cross-examined her appropriately but she did not waver. She adequately explained why she did not immediately report the incident to her mother.

(b) There was evidence of a prompt complaint.

The prompt making of a complaint by a person who alleges a sexual violation is a relevant consideration to take into account by the Court when determining the genuineness of the allegation; just as the absence of a prompt complaint can cast doubt on the genuineness of the allegation. These are relevant but not determinative considerations (Michael Balbal v The State (2007) SC860, The State v Stuart Merriam [1994] PNGLR 104, The State v Polikap Lakai (2007) N3153). I consider that this was a case of a prompt complaint.

(c) The complainant's mother's evidence corroborated the complainant's evidence.

The complainant's mother was a credible witness. She was not shown to have any improper motive for wanting to give false evidence against the accused. Her evidence was that there was no history of ill-will between her and the accused. She had treated him like a son, she said, before this incident. I see no reason to reject her evidence. Mr Morog suggested that it can be inferred from her evidence and that of the complainant that the mother was so forceful in her interrogation of her daughter that she was in effect threatening her, so the complainant was under pressure to come up with some explanation and she came up with the story that the accused had penetrated her. I reject that interpretation of the evidence. Both the complainant and her mother were credible witnesses and the explanation given by both of them as to how the complainant took some time to tell her mother what happened was understandable and acceptable and truthful.

(d) The medical evidence supported the conclusion that the complainant had been sexually penetrated.

The medical evidence, as explained by Dr Silari, supported the State's case that the complainant had been vaginally penetrated.

(e) No other explanation of how the complainant could have been penetrated was in evidence.

As the complainant has given credible evidence that it was the accused who penetrated her and her mother's evidence was also credible and corroborates the complainant's evidence and there is medical evidence of penetration, it is natural to ask the question: if it was not the accused, who penetrated the complainant? There is no evidence that it could have been anyone else, and the absence of such evidence supports the proposition that it was the accused who penetrated the complainant. Mr Morog submitted that it could have been anyone else, but given the nature of the evidence, it was incumbent on the defence to proffer some reasonable alternative.

(f) The accused was assessed as an unconvincing witness.

The demeanour of the accused in the witness box was the opposite of that of the complainant and the other State witness. He gave the clear impression that he was not telling the truth. Though his evidence was consistent with the story he told the Police, reported in the record of interview, there is no evidence to corroborate his denial. It is interesting that the two bubus, who the evidence suggests were outside the house in close proximity when the incident occurred, were not called to give evidence.

Conclusion: did the accused penetrate the complainant's vagina?

13. Yes. The State has proven beyond reasonable doubt that the accused introduced his penis into the complainant's vagina. The accused is therefore guilty of count 1.

COUNT 2: DID THE ACCUSED PENETRATE THE COMPLAINANT'S ANUS?

14. The complainant testified that he did, however I find that the medical evidence on this issue is inconclusive. Dr Silari's report notes "there was also anal bruising noted with slight tenderness". I take into account the definition of "sexual penetration" in 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.

15. The State has not proven the accused introduced his penis into the anus, to any extent. This element of count 2 has not been proven. Therefore the accused is not guilty of count 2.

VERDICT

16. Levy Kombeng, having been charged with two counts 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 under Section 229A(2) of the Criminal Code in that the child was under the age of 12 years and Section 229A(3) of the Criminal Code in that at the time of the offence there was an existing relationship of trust, authority or dependency between the accused and the child, is found:

(a) guilty of count 1, as charged; and

(b) not guilty of count 2.

Verdict accordingly,
_______________________________________________________

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