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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR 970 OF 2016
THE STATE
V
MICHAEL RAMRAM
Vanimo: Geita J
2017: 12, 16, 17, 19 May
CRIMINAL LAW – Trial -Particular offence – Persistent sexual abuse of a female child under 16 years – S.229D (1) (6) of the Criminal Code Act.
CRIMINAL LAW – Trial -Particular offence – Persistent sexual abuse of a female child under 16 years over a period of several months in 2015 –fondling of child’s private parts – penis into the child’s vagina and including fondling her buttocks – Four occasions of engagement with child made out.
CRIMINAL LAW – Trial - Breach of trust, authority and dependency relationship existed between the victim child and accused: granddaughter/grandfather – Victim aged 15 years at the time crimes committed.
CRIMINAL LAW – Verdict after Trial - Particular offence – Persistent sexual abuse of a female child under 16 years – S. 229D (1) (6) of the Criminal Code Act – Guilty.
Cases cited
The State v So ‘ón Torah (2004) N 2675
Counsel:
P Tusais, for the State
N Kasa, for the Accused
JUDGMENT ON VERDICT
(This is the full version of judgment delivered ex tempore)
19th May, 2017
1. GEITA J: The accused was indicted on a series of vaginal sexual penetration and touching viz: the sexual parts of his granddaughter between
unknown dates from 1st March 2015 and 23 November 2015 at Tumeleo Island in Aitape. The charges were laid under Section 229D (1)(6) of the Criminal Code to which he pleaded not guilty and trial ensued. At the time a relationship of trust, authority and dependence existing: grandfather
and grand-daughter.
2. The State’s evidence consisted of oral testimonies from two witnesses including the victim. Two pieces of documentary evidences were also tendered into Court during trial. They include the following:
Summary of State Evidence
Witness 1 - Brensley Mienrick, the Victim
3. The witness was adopted by her grandparents at a tender age of 3 years when her natural parent’s marriage failed and has
lived with them until the time of the complaints. She described her upbringing by her grandparents as not a happy one and she was
unhappy because of her grandfather’s behaviour towards her. She testified that her grandfather did not look after her well.
He would remove my clothes and fondle me and sometimes he would touch my private parts and buttock. She said he used to push ‘his balls’ into ‘my market’’. She elaborated the street slang words by saying he used to insert his penis into my vagina. That is what I mean by ‘balls’, saying the accused did those things to her since 2015 until 2016.
4. On 1st March 2015 as she was asleep in her room the defendant crept alongside her and began removing her clothes and attempted to have sex with her. As she resisted the defendant inserted his fingers into her vagina, ‘market’. As she tried to scream the defendant blocked her mouth and she felt very weak. She said I tried to push the defendant away but he pressed me down and had sex with me until he ejaculated. As a result of the assault she bled heavily for two days and missed classes.
5. The witness said about a month later my grandfather did the same thing to me again. As she was sleeping in the room with her grandmother, the accused left his room and came and slept with them. During the early morning hours after her grandmother had gone to the kitchen to prepare her market goods, the accused fondled her buttock and removed her clothes but she refused his advances and leaned against the post. The witness said the defendant forced her to look at him in the face and told her that he will have sex with her and pay her K2.00. (“He held me around to face him”) The witness said despite her refusal and resistance the defendant put his hands through her skirt, removed her tights and pants and had sex with me until he ejaculated. At the same time he blocked my mouth from screaming and pushed his penis into my vagina.
6. The witness said in the morning she felt very bad about the incident and fled to her father’s family at Tumelio Island and stayed with them. After two weeks her grandmother went and brought her back to stay with them again. She and her grandmother travelled to Aitape to buy her new sets of clothes as her clothes had being burnt by the defendant after she fled to her father’s people.
7. She said soon after returning to her grandparents the defendant again had sex with the witness. The witness said in the night the defendant forced her and had sex with her.
NB: Witness demeanour observes: At this point she appeared to be apprehensive and embarrassed at reliving the ordeal yet again however was prompted to tell her story and not be intimidated. The witness said in the night he removed my pants and tights and had sex with me but I refused. He forced me until I was weak and he shut my mouth. He inserted his penis into my vagina until he ejaculated. After that he gave me K50.00 and told me that it was our secret and for me not to tell anyone.
8. She said in the morning she saw blood coming out of her vagina which continued on for three days. As a result she missed attending classes and refused to return to school in shame. She fled to Malo and stayed with another aunt for a month to escape from her grandfather’s sexual assaults as she was ashamed. She moved back to her father’s island at Tumelio and after three days her grandmother convinced her to return home and stay with them again.
9. About a week later she moved and slept in the dining room. In the middle of the night as grandmother went to the kitchen to prepare her market goods, grandfather came and slept alongside her. She said the defendant forced her and had sex with her again and told her that it was their secret. She then moved down to the kitchen to be with her grandmother until dawn. In the morning she went to her natural father’s house and upon her return she was badly beaten by the defendant accusing her of visiting her parents. She was so badly beaten and bruised and pleaded to the defendant to stop: “I cried to him and I lost my voice”. When her natural mother saw her in distress she shouted at Michael to stop.
10. Her mother took her to the hospital and enquired about the beating and the witness told her about the grandfather’s persistent sexual abuses. The witness reported to a policeman, Kelly on the same day who took her report of sexual abuse by her grandfather.
11. In cross examination the witness disagreed with suggestions that her claims of sexual assaults by the accused were not true as other people were also around at those times in the house and sexual assaults were not possible, thus falsified. She also denied suggestions that during those times (29th January 2015 to 29th August 2015) she was with her father’s people and not with her grandparents. The witness further denied suggestions that she stole from her grandparents and fled to her father’s people. When suggested to her that her beatings were not sexual assault related but due to her meeting a boy and coming home late at 9 pm which drew the ire of her grandfather, she said that’s not true. When suggested to her that all her allegations of sexual assault by her grandfather on three separate occasions were not true the witness said, they were true and her grandfather was lying: “Em mekim”.
12. In re-examination the witness said on 23 March 2016 her mother accompanied her to Raihu Hospital to be treated for physical assault on parts of her body including her vagina. She maintained that she was not telling lies to Court and that the accused sexually assaulted her on four different occasions and at different location in her grandparents’ house.
Witness 2 - Francisca Narongo, Victim’s Mother
13. The witness testified that she got married to the victim’s father in 2004 and bore four children including the victim who was born on 2 November 1999. In 2004 her marriage fell through and now unable to take care of her children left the victim with the accused and her mother, Magdalene to foster. The rest of her children moved with her to Vanimo in 2004.
14. On Monday 21 March 2016 the victim was beaten very badly by the accused after she returned home around 8:00pm in the night. She intervened and swore at her father and later went to her sister’s house and told her what had happened. She went to the victim’s father and told him the same story and left for the ‘haus kry’. Along the way she told her mother Magdalene what had happened and her mother said the accused had done that several times and she would go and return the child. Her mother told her about the K50 given to the victim to her disapproval saying she was his wife and deserved that kind of money.
15. On Wednesday the witness accompanied the victim to Raihu District Hospital to get her swollen body treated. After leaving her clinic book at the hospital they walked down to the river to wash. Along the way the victim told her mother about what her grandfather did to her in 2015 on 4 or 5 different occasions. When I enquired further the victim said grandfather would sleep with me and see my private parts.
16. After washing at the river they returned to the hospital and the mother asked to see a Health Extension Officer to have the victim properly examined. She was treated for her wounds, taken to the private area at the Maternity Ward and her private parts examined by the HEO. I assisted the HEO by shining the torch into the victim’s private parts and he examined her. He did not say anything but only nodded his head. As we returned to the HEO’s Office and he commended me for taking the victim for examination and said any further sexual activity would have result in pregnancy as the victim’s body was fully developed.
17. In examination in chief the witness said her copy of the report was lost at sea however a copy was also given to the Policeman Kelly Wamena. She said the victim was with her grandparents from 2014 to 2015 and stayed with them all her life.
18. In cross examination the witness agreed to suggestions that she learnt about accused’s sexual assaults on the victim in 2016 after the accused caned her for coming home late. She also agreed that the victim never told her about her grandfather assaulting her all these times because she was told by the accused not to tell anyone. The witness agreed that her father was a disciplinarian but she never did that to other girls only to the victim. She agreed that the victim was kind of baby sense in 2015. She remained adamant that her mother told her about the accused giving K50 to the victim.
State submit MFI into evidence. Defence did not take issue.
State closed its’ case and Defence called evidence.
Summary of Defence Evidence
Defence Witness 1 - Michael Ramram - 62 years (Accused)
19. The accused is from Tumelio Island in Aitape, West Sepik Province. He is married to Magdalene and both have 6 children. The witness testified that he looked after the grandchildren since 2003 when her daughter’s marriage failed.
20. He said the victim went out on 28th January 2015 and returned home very late that night around 4 am the next day and when he threatened her of reporting her outing to her father she packed up and left for Malo village on 29 January 2015. He discussed with his wife what next to do about the children and agreed to return the children to their parents because of the problem now at hand. They saw a Welfare Officer Mr. Noel Maxen on 4 August who assisted them write a letter demanding compensation for looking after the children. A copy of the letter delivered to the children’s natural grandparents. After waiting for 3 weeks without any favourable response he sent his wife on 29 August 2015 to go advise them of his intention to go take a Court Summons against them. By than it was not his intention to have the victim returned to their house.
21. The accused said when her father heard my story he told the victim to return to us and she came on 29 September 2015. On 3rd October she stole K35 and returned to her father’s people. Since then she never returned to them until 2016.
22. She returned home in January 2016. On 21 March 2016 she went to the “haus cry” and never returned home until 6 pm that evening. During dinner time that evening when he enquired about the victim he was told that she was not home. He said the victim returned home around 9 pm that evening and when question she said she was home earlier but had gone out to give a biro to her friend (poro). At the mention of her poro or friend he became incensed and took his cane and started beating the victim on parts of her body and hands. He said at that time her mother called out to him to kill her, cut her vagina, fry it and eat it. With those swear words he became infuriated and beat the victim badly and told her to go and wash. He went looking for her mother to bash up but she wasn’t around.
23. He said on 21 March 2016 was the big beating but earlier on in 2011, 2012 and 2013 she was disciplined for stealing money and going and playing cards saying she was very big headed at times. The witness said he never sexually penetrated the victim on all those dates and times mentioned in her story, saying they were all false. He said during all those times alleged the victim was not living with them.
In support of his evidence Defence tended viz:
1. Letter from Welfare Office dated 4 August 2015 Exhibit A.
Cross Examination
24. In cross examination when put to the accused to tell Court at least one good reason why her granddaughter, the victim would come and accused him of sexually penetrating her; the accused said he had no reason to tell Court. When suggested to the accused that perhaps the victim was telling the truth he said that’s not true. When put to the accused that the story of the victim stealing monies and playing cards were made up as they were not told to his lawyer and not put to the victim, the accused said that was not true.
Defence Witness 2: Magdalene Ramram (Wife)
25. The witness testified that her four grandchildren moved in with them in 2003 when her daughter’s marriage failed. She said in January 2015 only Louis and Jason stayed with them as the victim had fled to be with her father’s people and only returned home around August 2015 after her grandfather threatened her natural parents of payment of some form of compensation for taking care of them. She said she stayed on with them and fled again in October 2015 after stealing K35 from her grandparents.
26. The victim returned home on 21 March 2016 late that evening which angered the grandfather to beat her up whilst I was at the ‘haus kry’.
27. On 24 March 2016 the victim’s mother took her to the hospital. She said as she was going down to the well to refresh herself she met the victim along the way and questioned her about her grandfather’s sexual assaults to which she said she was not sure and for the witness to ask her mother.
28. On 21 March 2016 her daughter Francisca came to the ‘haus kry’ and told her that she had used some bad language at the accused to which she did not like: “Grandfather cut vagina, fry it and eat it”. She said all references to her waking up in the morning and preparing her market goods at 4 am were not true because at those times victim was not living with them.
29. In cross examination the witness admitted that they took in their grandchildren in 2003 when they were at a tender age of three and above and they all slept in their own bedroom. When the victim was left in her own bedroom she never slept with her grandparents since she was at a tender age of 3 years old. She was with her other siblings in the separate bedroom.
30. She said her daughter Maryanne got married and moved to her husband’s island and returned home in 2014 and gave birth to their first child in October of that year. She said after giving birth Maryanne frequented her husband’s island but she is unable to say at what months those movements were made.
31. When put to her that she had no difficulty remembering the exact dates the victim ran away from their home however was having difficulty remembering the month Maryanne returned to her husband’s island. She said she had the dates recorded in her diary.
32. She admitted that this was not the first time for victim to run away from the house but this time around the grandfather became suspicious of her seeing a boyfriend. And so when victim returned home around 4 am in the morning the grandfather disciplined her, saying return home after two hours was ok but not coming home around 4 am in the morning.
33. The witness denied suggestions that her husband beat the victim because he was suspicious that the victim was seeing boys. She said the beating was to discipline the victim.
34. The witness admitted marketing at Aitape town but only sold buns prepared around 8pm – 9pm the previous night and ready for sale the next day, saying her day starts around 6.40 am in time to make the trip to Aitape to sell her buns.
35. When suggested to the witness that her husband was sexually molesting their granddaughter, on various times in 2015 she said that was not true saying she was always with her husband in the house.
36. When suggested to the witness to explain why their granddaughter would do such a thing to her husband, by laying accusations and bringing him before the Court the witness said she had no idea. The witness said she stays in the house and did not think that such a thing was happening in the house.
Court Question:
37. When questioned why her own daughter would use such foul language to her own father the witness said because she was very cross with him. She admitted that they were very hard words.
Defence Witness 3 Maryanne Sake (Daughter)
38. Soon after her marriage in 2012 she moved to live with her husband on her husband’s Island but returned home to her parents in 2014 to give birth to their first child. With the child born in October 2014 she stayed on until 2015 so that the child could grow up strong. When her child was about 5-6 months old she returned to her husband’s island but regularly frequented her parents. At the time her younger sister Kaylen was living with them.
39. She testified that on 21 March 2016 after returning from a ‘haus kry’ they saw the victim standing with a boy and after calling out to her 5 times to return home with them they returned home without her. After dinner her absence was noticed by the accused. When the victim returned home around 9 pm she was beaten up and told to go and have her bath. The witness said during the beating the victim’s mother came and scolded the accused to wit: kill her, cut her vagina, fry it and eat it”. She said the beating in 2016 was the first because the victim was big headed and continually absented herself from home.
40. In cross examination when suggested to the witness that she had discussed her story with her parents before coming to Court she denied. She said she never spoke to her father the accused since he was arrested and detained. When questioned if her mother sells foodstuff at Aitape market the witness said her mother sells buns but prepares them during the night from 9 pm to 12 midnight.
41. When questioned if she was ever beaten up by her father when she eloped with her husband the witness said, she went and got married in 2012 and never returned to her parents. She said her father never belted her up.
Court:
42. When asked by Court what she thought about the vulgar words used by her sister to her father she said: They are not good words and questioned why Francisca used those words to their father, the accused.
Submissions for the Defence
43. The main thrust of Defence submissions is that all allegations of sexual assaults did not happen because the victim was not around at the time in the home and environment in which those assaults took place were not conducive for those crimes to be committed. Furthermore Defence alleged that four instances of sexual assaults were repetitive and too good to be true. The hour of the day the crimes were committed and the movements of the grandmother during those times considered repeats and not believable. The Defence also took issue with the prolonged silence by the victim to report to her father’s people or anyone about her ordeal however concedes that in such cases corroboration was a non-issue (Section 229H) Criminal Code.
44. Defence submitted that the onus was on the State to prove that the accused indeed persistently sexually abused the victim and called for a finding of not guilty due to insufficiency of evidence and called for an acquittal. Ms Kasa submitted that Defence witnesses should be believed in that the accused’s evidence remained consistent even during cross examination whereas the victim’s evidence was at variance and not to be believed.
45. Mr. Tusais, Counsel for the State replied that the prosecution indictment was two pronged in that there were instances of sexual touching and sexual penetration as alleged by the victim hence all required elements under section 229D (1) and (6) successfully made out. He called for a finding against the accused. Mr. Tusais submitted that the accused and his witness evidence merely corroborated the victim’s events in parts and did not lend weight to the accused being exonerated of the crime of sexual persistence. Furthermore he said the accused supposed defence is termed as a reverse alibi however not credible enough to exonerate the accused. As witness Maryanne and mother’s evidence were at variance Court should not believe their evidence.
46. He submitted that although the accused was a Church Pastor he ought to know better and properly counsel and discipline her wayward grandchild. Instead he beat her so much that her natural mother intervened and called out to her father using the most vulgar language with sexual connotations.
47. As to the issue of not reporting the sexual abuses to her father’s people Mr Tusais said the natural mother was not around at those times and when the opportunity presented itself for her to be present, the victim told her ordeal.
48. On the issue to the victim’s evidence of sexual assaults being repetitive and too good to be true Mr Tusais said the same could be said for the accused witnesses as their evidence were built around fixed dates: 29/1/2015: 29/8/2015 and 29/3/2016 hence highly suspicious.
49. The upshot of State’s submission is that they have discharged the onus of proof beyond reasonable doubt and the Court should return a verdict of guilty against the accused.
50. What is the Law on Persistent Sexual Abuse of a Child?
Section 229D (1) and (6) reads:-
(1) A person who, on two or more occasions, engages in conduct in relation to a particular child that constitute an offence against this Division, is guilty of a crime of persistent abuse of a child. (emphasis mine)
(2) for the particular child that constitutes an offence against this Division, is guilty of a crime of persistent sexual abuse of a child. (emphasis mine)
Penalty: Subject to Subsection (6). imprisonment for a term not exceeding 15 years purposes of Subsection (1), it is immaterial whether or not the conduct is of the same nature, or constitutes the same offence, on each occasion.
(3) In proceedings related to an offence against this Section, it is not necessary to specify or prove the dates or exact circumstances of the alleged occasions on which the conduct constituting the offence occurred.
(4) A charge of an offence against this section—
(a) must specify with reasonable particularity the period during which the offence against this section occurred; and
(b) must describe the nature of the separate offences alleged to have been committed by the accused during that period.
(5) For an accused to be committed (1) of an offence against this section—
(a) the Court must be satisfied beyond reasonable doubt that the evidence establishes at least two separate occasions, occurring on separate days during the period concerned, on which the accused engaged in conduct constituting an offence against this Division in relation to a particular child; and
(b) the Court must be so satisfied about the material facts of the two incidents, although the court need not be so satisfied about the dates
or the order of those occasions.
(6) If one of more of the occasions involved an act of penetration, an offender against Subsection (1) is guilty of a crime and is liable, subject to Section 19, to life imprisonment. (emphasis mine)
51. The accused was indicted for 3 to 4 complaints of persistent sexual abuse of a child in 2015. The State must prove that the accused committed the offence of persistent sexual touching on at least two or more different occasions. The prosecution always bears the burden of proving their case beyond reasonable doubt.
52. I will attempt to answer these issues in the following manner:-
Witness Demeanour
53. Having observed the demeanour of the victim, although grown up at age 17 years since the incident, found her to be very timid and very apprehensive during evidence and obviously shy to tell the whole world her ordeal. She appeared to me to be calm and collected and focused in giving her story. If anything I was impressed with her recollection of events of persistent sexual abuse and at times very descriptive and detailed of where and how she was assaulted. For instance her reference to refusing the accused’s sexual advances and leaning against the post in the house, only to be forced into being sexually assaulted. Furthermore her reference to refusing the accused advances and turning her face from the accused with the accused turning her face to look at him. These are very detailed recollection of events, only known to her. She has remembered them clearly signifying the trauma and ordeal she went through. The same cannot be said for the accused and his witnesses. They all appeared to be very evasive and calculated at times in answering questions during cross examination. Witness Maryanne gave herself away when she parroted away answers in cross examination when no such questions were put to her. I draw inference from her cross examination: When asked if her mother sells foodstuff at Aitape market, she said yes buns and went on to describe that her mother prepares her buns between 9 pm and 12 am the previous night ready for market the next day. That information is only known to her mother but here she was reciting them, Coincidence? I don’t think so, making her evidence highly suspicious and tantamount to be coached before coming to Court.
Motive
54. The victim’s motive in my view was to see that justice is done and she be freed of the shekel of abuse and harassment brought upon her by her grandfather, the accused. She presented her evidence in open Court knowing full well that the accused was the grandfather who raised her from childhood at age 3. I find no evidence to suggest that she had ulterior motives to shame and discredit her grandfather, save to see that justice is done to her case.
55. As for Michael Ramram the accused? His motive in my view was to be exonerated from the allegations of persistent sexual abuse of her granddaughter hence his passion and vigour to distance himself from the charge. The accused and his witnesses, all his family members fell short of pointing to the Court to an overwhelming convincing motive for the victim to accuse her grandfather of sexually abusing her on more than four different instances in their family house. Motives ranging from I don’t know the reason why; I was in the house with my husband all the time; the fear of being thrown out of the grandparents’ house and the fear of her natural parents paying compensation, in my view very shallow and not convincing, considering the seriousness of the accusation against the accused.
Court Observations
Mothers and grandmothers as Protectors of Children?
56. What has become of the good old loving caring grandmotherly instincts towards their daughters and grandchildren, especially those children that were raised from childhood? (3 years and older) for more than 13 years? The recently fostered grandchildren with ages ranging from 4 years down to fend for themselves at night. One will understand in a western society where children were trained to sleep by themselves from child birth. But to let a 3 year old toddler on her own during the night is a cause for concern and suspicion. Grandmother continually attending to the needs of the accused at all hours leaving no room for promiscuous behaviour?
57. A grandmother who gave evidence that the grandfather was a disciplinarian hence it was all right for the accused to beat the victim for visiting boyfriends?
58. The true picture coming out from the above evidence and observations points clearly towards the characteristics of a grandfather who is domineering over his wife, and children and those under his care and watch. He was the authority and his word goes. It follows that the victim and grandchildren become subservient to the grandfather. His word was the law and command. After 13 years living under that rule in his household the victim obviously became subservient and fearful of her grandfather.
59. Inferentially therefore the climate was right for the grandfather to employ a scheme of violating his innocent granddaughter. The victim became vulnerable to the grandfather’s advances and succumbed to his demands against her wishes. We have here a timid 15 year old girl up against a 60 year old grandfather who is well built with stocky frame.
60. The grandmother to my mind was so blinded by her overpowering husband that she kept a blind eye on what was actually happening to her granddaughter she claims as her own daughter, a young child that she helped raise at age 3 being sexually abused in her very house. Any grandmother or women for that matter would become suspicious of why her granddaughter kept running away from home soon after she was brought back to the house. She did not see to that. She was either an inconsiderate unloving or caring grandmother with a heart of stone. I draw inference from her evidence that at age 3 years the victim slept by herself with her other sibling in a separate room, she never paused for a moment to find out what was wrong with her granddaughter. The husband in his ROI, said the victim slept with them all throughout and not separate, so who is telling the truth?
Four Allegations of Persistence Sexual Abuse?
61. A closer look at all four (4) instances of allegations of persistent sexual abuse raised by the victim against her grandfather, they all have peculiar features or attributes denoting that they were separate occurrences of assault. To my mind I could not detect any similarities to form the view that such allegations were made up or the victim was repeating her allegation of sexual assault to come up with multiple instances of sexual assault. Inferentially therefore I find that indeed multiple counts of sexual assaults were committed over a short period of time.
Welfare Letter?
62. The accused filed complaint and obtained the letter from the Welfare Officer on 4 August 2015 for looking after all four children. That letter in my view seeking compensation or ‘luk save’ from the children’s natural parents was a red herring. It would seem that the rest of the innocent children have been bundled together because of the sins of the victim, so to speak. Furthermore one questions why the one off outing by the victim to visit her boyfriend would draw the indignation of the grandfather to have the grandchildren they have loved and cared for the past 13 years suddenly removed from their home? Why? Again lots of questions still remain unanswered.
63. I have no reason to doubt that when the victim’s flights to her natural parents became frequent, the accused became uneasy and uncomfortable at the thought of ‘his sins being revealed at last’ in that the victim would tell the whole world what was happening within her household of her grandfather’s persistent sexual abuse. The welfare letter of compensation for ‘luk save’ was engineered to draw attention away from himself and vilify the victim as the villain.
64. Unfortunately for him the victim came to her senses and by the Grace of God met up with her natural mother and told her atrocious ordeal of sexual assaults. That encounter with her mother was the best thing that could have happened to her. Within the comfort of her mother she told her story like it is between mother-daughter.
65. Defence assertion of the home environment not being conducive for the crimes to have been committed may be plausible to an extend: on the veranda, however in the absence of credible evidence that line of argument is left floundering without basis. The author of that evidence Maryanne’s evidence highly questionable and not believable, in my view.
Findings of Facts
66. In these types of cases you will tend to find some half- truths and untenable evidence from both sides. Evidence in most cases will be tailored to suit a party’s case depending on whose side you are on. In my attempts to do just that I find some comfort and assistance in the case of The State v So‘ón Torah (2004) N 2675. His Honour Justice Kandakasi had this to say at page 5 of his judgment and I quote:
"Finding of credibility is in turn dependent on matters of logic and common sense as well as the demeanour of the witnesses and consistencies in their evidence: See The State v Emmanuel Bais & Felix Fimberi (11106103) N2416 and The State v Peter Malihombu (29104103) N2365. Accordingly, I carefully observed the demeanour of each of the witnesses called. I must say I could clearly tell that each of the witness were protective and supportive of the version of the party that called them. I sensed therefore that, their respective testimonies were not entirely the truth. There were some truths and some tailored evidence on both sides.”
67. I will adopt and apply the above principles in this case. In order to narrow down and crystallise the evidence as they unfolded I have grouped them in this manner. This Court now has to decide whose evidence to believe: the victim’s version of events or the accused version? :-
68. The victim gave her testimony in open Court in detail and bravely told Court what the accused did to her, reliving the trauma
and stress in the witness box. The accused also gave testimony but did not touch on any aspect of the allegations. His witnesses
were his family members, more so his wife and daughter. Inferentially corroborating her evidence that she did not confide in anyone
save her mother in 2015.
a) The victim child alleged that the grandfather first sexually penetrated her and touched her private parts, including her buttocks
on 1 March 2015 in her room. She said her grandfather pushed “his balls into my market”. Connoting penis into her vagina
she explained.
The accused offered no explanation in response. He said the victim left their home on 28 January 2015 and upon returning home, 4 am
the next day 29 January 2015 she immediately left home again when the grandfather threaten to report the matter to her natural father.
The accused witness wife’s explanation was that the victim never stayed with them in January 2015, only Louis and Jayson stayed
with them as the victim fled to her father’s people and returned home in August 2015.
69. The use of street language ‘grandfather ‘pushed his balls into my market.’ stands out like a sore thumb with
unwavering inference that she was indeed sexually assaulted by her grandfather, the way she described. The accused and his witness
attempts to remove the victim from the crime scene and distance her, in my view is not too convincing.
70. Inferentially therefore I am more inclined to believe the victim’s evidence as opposed to the accused’s. Observing
her demeanour, the victim’s use of the street language in my view was to shield herself from shame and humiliation in reliving
her ordeal in open Court, making her version of the sexual assault more convincing.
b) The victim child alleged that a month later as she was asleep in her room with her grandmother, her grandfather entered her room,
fondled her private parts and buttock and eventually sexually penetrated her against her will, ( second allegation of sexual assault)
whilst her grandmother had gone out to the kitchen to prepare her market goods. She said as she refused her grandfather’s advances
she moved away and leaned against the post. She said her grandfather forced her to look him in the face and offered to give her K2.00
in return for having sex with me. (“He held me around to face him”).
The accused offered no explanation in response, save to say that the victim was telling lies in Court.
The accused witness wife’s explanation was that the victim never stayed with them in January 2015, only Louis and Jayson stayed
with them as the victim fled to her father’s people and returned home in August 2015. The witness said all allegations of
her husband sexually molesting the victim were not true because she was with her husband all the time in their house in 2015.
71. Here again we have the victim giving a detailed account of how the sexual assault unfolded that night in question. “moving
away and leaning against the post” denotes to me that she was lying down and when disturbed, moved herself to distance herself
from oncoming danger or assault. That danger/assault in her evidence was the grandfather.
72. Furthermore the victim’s version of her grandfather forcing her to look at him in the face: ‘He held me around to
face him’. I ask how much more detailed can that evidence get. The victim coming face to face with her assailant, the grandfather
offering to give her K2.00 in exchange for sex. There is evidence before the Court that she was like a baby baby’ or mischievous
for her age. Inferentially therefore it is open to Court to infer that because of her “baby sense” the accused took advantage
of her timidness and molested her, even to the extent of offering her K2.00.
73. The next morning she felt very dejected and fled to her father’s island only to be returned to their home by her grandmother
after spending two weeks away. (Around April and May). She is giving a detailed account of what happened that particular night, a
separate allegation of sexual assault by her grandfather. Inferentially therefore I have no reason to disbelieve her evidence. I
find her to be a witness of truth.
c) The victim child alleged that not long after her return to her grandparents’ home her grandfather again sexually penetrated
her and touched her private parts, including her buttocks for the third time as she lay asleep that night. The accused shut her mouth
and forced her until she was weak and had sex with her. He later gave her K50.00 and told her not to tell anyone as it was their
secret. She bled continuously for three days, missed classes and eventually refused to attend school any more thereafter. NB. Victim’s
demeanour was observed. This time around she became apprehensive and embarrassed at reliving her ordeal in detail however was prompted
by her lawyer to tell her story and not be intimidated. She gave detailed accounts of assault leading up to sexual penetration and
eventual ejaculation by her grandfather.
The accused offered no explanation in response save to say that the victim was not telling the truth.
The accused wife’s explanation was that she was always in the house and did not think that such a thing would happen in the
house.
74. Here again we can see that the victim is reliving another bout of sexual assault by her grandfather. Her recollection of events
are given in great detail of what happened on that particular day leaving very little room for paucity and repetitiveness of events.
I cannot detect any suggestion of the victim repeating her story or inventing her evidence to implicate her grandfather. She gave
her evidence like it is as events unfolded on those days. I did not detect any hints of this evidence being manufactured on the run.
She escaped to Malo to be with her aunt and stayed there for a month, only to return home after her grandmother’s insistence.
The accused’s wife claim that such a thing could not possibly happen in the house because she was always in the house with
her husband too good to be true. This is contradictory to her evidence that she frequents Aitape to sell her market goods and buns.
Inferentially therefore this Court is entitled to believe the victim’s story and not the accused’s version.
d) The victim child alleged that about a week later after returning home to her grandparents from Molo her grandfather again sexually
penetrated her for the fourth time as she lay asleep in the dining room. She escaped her grandfather by going to the kitchen to be
with her grandmother until dawn. In the morning she fled to her father’s house and upon her return she was badly beaten by
her grandfather, accusing her of visiting her parents until “I cried to him and I lost my voice”. When her natural mother
saw the beating and the child in distress she swore at the accused.
Her mother took her to the hospital and along the way she told her mother about her grandfather’s persistent sexual abuses.
The accused offered no explanation in response save to say that the victim was not telling the truth. Furthermore he said during all
those times the victim was not living with them.
The accused witness wife’s explanation was that she was always in the house and did not think that such a thing was happening
in the house. Grandmother makes no mention of the victim escaping to her in the kitchen around 4 am, save to say that she does
her food preparation the previous nights around 8pm and 9pm, ready for sale the next day.
75. Having carefully considered all the circumstances leading up to all acts of persistent sexual abuse of the victim together with
associated findings, I find the complainant’s evidence to be fairly convincing and compelling, much more so than the accused.
I did not detect any reason from her evidence and from the accused evidence to form the view that she was lying or she had ulterior
motives to crucify her grandfather. All real evidence and hypothetical assumptions and her demeanour conclusively point to the existence
of persistent sexual abuse over a period of time. I regard all those evidences as relevant. I draw inference from evidence that the
victim was not a willing partner. She succumbed to the overbearing grandfather’s advances in fear.
76. Due to the foregoing reasons and findings, I am more inclined to believe the evidence of the victim including her witness evidences and find her to be a witness of truth. The same cannot be said for the accused and his witnesses. I was not convinced that he was a witness of truth. I am satisfied beyond reasonable doubt that the victim’s evidence has established at least two separate occasions which occurred on separate days.
77. Determination of persistent sexual abuse:
This charge has four elements:
1. The accused sexually abused the victim on two or more occasions;
2. The child in question was 15 years old;
3. The accused’s conduct constituted an offence was for sexual purposes;
4. The accused’s conduct amounted to sexual penetration and sexual touching.
I am satisfied beyond all reasonable doubt as to all elements.
I therefore return a verdict of guilty on the accused on this indictment.
78. VERDICT
I find that the accused Michael Ramram guilty and convict him accordingly.
Verdict accordingly,
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyers for the Accused
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