N6409
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1137 of 2014

THE STATE

V

MIHA MAERA

Kerem: Koeget, AJ
2016:3rd, 7th and 11th March

CRIMINAL LAW:	Indictable office – section 229A(2) of Criminal Code Act (as amended) - Competency - child - Examination as to competency - Need for Court to be satisfied that child understands liability to punishment if evidence false - understanding that wrong to tell lies insufficient - Oaths, Affirmations and Statutory Declarations Act, section 6.

EVIDENCE - 	Swearing and Oaths - Competency - child of tender years - examination as to competency - Need for court to be satisfied that child understands liability to punishment if evidence false - Oaths, Affirmations and Statutory Declaration Act, section 6.

EVIDENCE - 	Identification relevant considerations when determining credibility - pre-existing knowledge of accused - No identification parade.

CRIMINAL CODE ACT - Sexual Offences - Abolition of warning against dangers on convicting on the basis of uncorroborated testimony of victim.

INTRODUCTION:

The accused pleaded not guilty to one count of Sexual Penetration of girl under the age of twelve years old.  The charge is laid under section 229A of the Criminal Code Act (as amended). 

FACTS:

1.	It is alleged that on Thursday 18th July, 2013 between twelve o’clock mid-day and three o'clock in the afternoon, the victim Sophia Sireh then under the age of twelve years was at Kerema Secondary School premises with other young children collecting bread fruits.  They made fire and cooked the bread fruits they collected.

2.	After eating the bread fruits, other children left and return to their respective homes but the victim remained on the school premises alone.  The accused Miha Maera resides at the school premises called the victim and told her to climb the betel nut tree to knock down the nuts.  

3.	The victim felt uncomfortable climbing the betel nut tree with shorts so she removed it and climbed it with only pants.  She knocked the betel nuts and climb down to the ground.  As she stood the accused grabbed her from the rear, pulled her pants down and bent her forward then inserted his penis into her anus.  She felt pain but did not shout for fear of being assaulted by the accused.  The accused threaten to assault the victim if she reports the incident to the mother or anyone.

4.	After the intercourse, the victim return home but did not tell the parents about the incident for fear of being assaulted by the accused. 

5.	A day later, the victim showed signs of discomforts when she did not walk properly.  It is then, she told the mother that the accused penetrated her anus with his penis on 18th July 2013 when she was at Kerema Secondary School premises.  She was taken to Kerema General Hospital by the mother for medical examinations and a medical report was obtained.  

HELD:
1.	When a child is examined as to competency to give evidence the court must be satisfied under section 6 of the Oaths, Affirmations and Statutory Declarations Act chapter 317 that child understands that she will be liable to punishment if her evidence is false.

2.	There are inherent dangers in relying on correctness of identification to support a conviction but, in this case, after giving the appropriate warnings, the identification evidence was strong and sufficient to establish that the accused was the offender in this case.

3.	Though the victim's testimony could be regarded as uncorroborated, there is no longer a practice that the court must  warn itself of any danger of relying on uncorroborated evidence of a victim in a sexual penetration trials.  The court is prohibited from issuing such a warning by recent amendments to the Criminal Code Act.

Cases cited:

Biwa Geta –v- The State [1988-89] PNGLR 153
Jawa Johnson Beraro –v- The State [1988-89] PNGLR 66.
John Beng –v- The State [1977] PNGLR 115.
Rolf Schubent –v- The State [1979] PNGLR 66.

Counsel:

D. Mark, for the State
B. Popue, for the Accused

Evidence for State

11th March, 2016

1.	KOEGET, AJ; At the commencement of the trial, the following documents were tendered with consent:
-	Medical report by Doctor John Opa.
-	Record of interview between accused and Police investigation officer dated 14th August, 2013 (both English version and Pidgin translation).

2.	The victim was of tender years, the court needed to be satisfied that she understood liability to punishment if she gives false evidence in the trial against the accused so following questions were asked:

Q.	What is your name?
A.	Sophia Sireh.
Q.	Do you go to school this year?
A.	Yes.
Q.	What is your school's name?
A.	Karaeta Primary School.
Q.	If you tell the truth to your parents, they will not be angry with you?
A.	Yes.
Q.	But if you tell lies to them, they will be angry with you?

A.	Yes.
Q.	In your school did you hear story about Jesus Christ in the Bible?
A.	Yes.
Q.	He died on the cross - because of the wrong things people did on earth?

A.	Yes.
Q.	Did you hear stories about God, he created earth and all things including human beings?

A.	Yes.
Q.	Is it against God's law to tell lies?

A.	Yes.
Q.	If you tell lies, God will punish you?

A.	Yes.
Q.	If you give false evidence in court against the accused in court, you will be punished?
         A.	Yes.
3.	After answering the series of questions put to the witness and the answers she gave, I am satisfied that she understands liability to punishment if she gives false evidence in the trial before me.  So she was sworn and she gave evidence on oath.

4.	Her evidence is that between 12 mid day and 3 o'clock in the afternoon on 18th July, 2013, she went with her three brothers and two friends to the Kerema Secondary School premises to collect bread fruits.  All of them were of tender ages.  They made a fire and cooked the bread fruits and ate them. 

5.	Her brothers and two other children left leaving her behind.  She remain at the school premises for sometimes when the accused called and told her to climb the betel nut tree to knock the nuts down.  She obliged and remove her shorts as she felt uncomfortable climbing the betel nut tree.  She had her pants on when she climbed the betel nut tree got the nuts and climb down to the ground. 

6.	When she was on the ground, the accused grabbed her from the back, removed her pants down, bent her forward and inserted his penis into her anus.  As soon as the accused removed his penis from her anus, she pulled up her pants and ran home.  When she arrived at her family house, no one was around so she waited till her parents arrived.  She told nobody till the next day when she felt discomfort and was not walking normal, then the mother enquired happened to her.   She told her of the accused inserting his penis into her anus the previous day at the Kerema Secondary School premises. 

7.	She did not tell her parents the same day due to fear that should tell her mother about the incident, she might be assaulted by the accused when she is seen in Kerema town.  The victim’s mother and uncles went and assaulted the accused and then reported the incident to the policemen at the Kerema Police station.  She was then taken to the Kerema General Hospital for medical examination.  The medical in part states:  “She had no bleeding but defection was initially painful”. 

8.	She was asked the following questions in examination in chief:

“Q.	Who were you frightened of?
A.	Miha.
Q.	Why were you frightened?
A.	He might hit me.
Q.	How did you feel when Miah inserted his penis into your anus?
A.	I felt pain in the anus”

9.	It was suggested to her in cross-examination that someone either than the accused inserted his penis into her anus.  She denied and maintained that it was the accused as he resides at the Kerema Secondary School premises with the school’s Head Mistress.  She knew the accused prior to the incident as he is a close friend of her brother Bonny who resides with them in the family house and accused frequently come to that family house.  She identified the accused in the seat in the dock. 

10.	She reiterated in re-examination that on 18th of July, 2013 she did not permit the accused to insert his penis into her anus. 

11.	The victim’s mother Marshe Sireh stated in evidence that on 19th July, 2013 she noticed her daughter was uncomfortable walking and sitting so she asked what happened to her she replied and said accused inserted his penis into her anus the previous day when she was with her brothers and friends at the Kerema Secondary School premises. 

12.	The victim told her that accused is a friend of Bonny and she confirms that the accused regularly come to their family house with Bonny.  She knows the accused resides with Ms. Kauri at the school premises. 

13.	She noticed that the victim’s attitude changed after the incident and refuses to go with other little children to the school premises to play or collect bread fruits. 

14.	At this stage, the State closed its case and Defence counsel made a no case to answer submission on the second limb of the principles in Paul Kunid Rape –v- The State [1976] PNGLR 96, and The State –v- Roka Pep (No.2) [1983] PNGLR 287. 

15.	The principle stated in those cases is that:

“When the tribunal decides that there is a case to answer, nevertheless, has discretion to stop a case to the close of all evidence in appropriate circumstances.  This discretion is exercised where there is a mere scintilla of evidence is so lacking in weight and reliability that no reasonable tribunal could safety convict on.”

16.	He submitted that although there were evidence that the accused committed the offence, the court still has discretion to stop the case because the victim is of a tender age and she could be mistaken or coached to tell lies on oath against the accused by older members of her immediate family. 

17.	In my view such submission was baseless because the victim’s evidence was uncontradicted, in particular regarding the identity of the person that committed the act complained of upon her.  She was firm in her evidence that it was the accused that inserted his penis into her anus on 18th of July 2013 at Kerema Secondary School premises.  She knew him well prior to the date of incident as he is a friend of her brother Bonny and he regularly visit Bonny at their family house in Kerema town.  She knew that the victim resides with the Kerema Secondary school Head Mistress’ in her house at the school premises. 

18.	In the recent amendment to the Criminal Code Act, a person can be convicted on uncorroborated testimony of a complainant.  The definition of complainant is in section 1 of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.

Section 1 states:

“Interpretation (Amendment of Section 1) Section 1 of the Principal Act is amended by inserting the following definition after “Company”:-

“Complainant” means a person against whom an offence is alleged to have been committed;”

19.	In this case the victim Sophia Sireh is the complainant.  I am impressed with victim’s evidence although she is of a tender age. 

20.	She maintains that she had known the accused through her brother Bonny.   He committed the offence upon her.   She did not permit the accused to insert his penis into her anus that day. 

21.	In the circumstances of the case, I find that there is sufficient evidence upon which the accused can be call upon to answer the charge.  Therefore, I find the accused has a case to answer. 

22.	Soon after delivery of ruling on the no case to answer submission, Defence counsel sought adjournment to obtain instructions from the accused regarding further conduct of defence’s case.  When trial resumed, Defence counsel applied to change his client’s original not guilty plea taken at the commencement of the trial.  The application was granted and the accused was rearriagned on the same set of facts and he pleaded guilty to the charge of Unlawful Sexual Penetration of a girl under the age of twelve years so he was convicted accordingly

ISSUE:

23.	The only issue for determination by the court is what is the appropriate sentence to impose upon the prisoner?

ALLOCATUS:

The prisoner stated:

	“My father is deceased and I apologise for what I did.  There is no one to care for me, except my aunt, the Principal of Kerema Secondary school Ms. Kauri.  My mother is in the village and she is a subsistence gardener”.

Personal Particulars:

24.	The prisoner was 13 years of age when he committed the offence but now he is 16 years.  So he is a youthful offender and a first time offender as well.

MITIGATING FACTORS:

25.	The prisoner has no prior convictions.  This is the first time he has been in trouble.  The age gap between the prisoner and the victim is 6 years.  The victim did not suffer any permanent injuries.  She has fully recovered.  The prisoner was held in custody at the Police station cells before released on cash bail of K300.00.  There was no weapon used in the commission of the offence.

SENTENCE:

26.	In the exercise of the sentencing discretionary powers of the Court under section 19 (1) (d) (i) of the Criminal Code Act, the prisoner is sentenced to be imprisoned for a period of 5 years in hard labour.

ORDER:

27.	The sentence of 5 years is wholly suspended upon the prisoner entering into recognizance and to keep peace and be on Good Behaviour Bond for period of five years. 

28.	Should the prisoner breach this condition, he shall be brought to court to be dealt with for the suspended portion of the sentence.
His bail money of K300.00 is refunded to him.

Accordingly ordered.
________________________________________________________________
 Public Prosecutor	 : Lawyers for the State	
 Public Solicitor	 : Lawyer for the Defence