N7400

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 662 & 663 OF 2016

THE STATE

V

PETER KAGO AND PHILIP KITI

Maprik: Geita J
2018: 18, 19, 22 June

CRIMINAL LAW – Trial – Abduction – Section 351 Criminal Code – All required elements not successfully made out – The complainant has voluntarily taken herself away from her mother’s care and custody – The complainant therefore cannot be said to be abducted from her mother’s care and custody.

CRIMINAL LAW – Sentence – Sexual penetration of a child under 16 year – Section 299A (1) Criminal Code – All elements successfully made out – Age of child successfully made out - Admission of sexual penetration by one accused – Guilty verdict entered for Philip Kiti.

CRIMINAL LAW – Trail – Sexual penetration – Section 299A (1) Criminal Code – Guilty verdict entered for Peter Kago by operation of Section 7 Criminal Code.

This is the Court’s ruling delivered ex tempore against Peter Kago and Philip Kiti under CR662/2016 and CR663/2016 respectively. 

Cases Cited

Nil

Counsel

Mr. Raphael Luman, for the State
Mr. Darrell Sakumai, for the Accused

RULING ON VERDICT 

22 June 2018

1.      GEITA J:  	The both of you were arraigned on 2 counts each on indictment. One for the abduction of a child: at the time of the crime, the girl Jineth Naripai  was under 16, an indictment under s.351 Criminal Code. And on the other counts you both were indicted under s.229A (1) on a charge of Sexual Penetration of a child under 16 years of age to which you both pleaded not guilty and the matter trailed. 

Evidence for Prosecution

2.	The evidence for the prosecution most of which we have heard this morning came through from your Lawyer and the State Lawyer. But for my purposes; I am going to recite again since this is an ex tempore judgment. The State evidence came through documentary evidence: that is the record of interviews police conducted against the both of you on Friday 19th June 2015 and for Peter Kago on 17th June, 2015.  Those records of interviews were conducted in pidgin and translated into English.  So those came into Court that now forms part of State evidence to support its case by consent.  State called two witnesses, the victim Jineth Naripai together with a nursing sister of 30 years experience who testified of taking some notes on the victim and made recordings of her findings.

Victim’s Evidence in Brief

3.	The victim’s evidence in brief is that, on that particular night 1st May 2015 she was invited by a friend to accompany her to a nearby river to wash. As it turned out she did to her detriment. She said that the river was some 50 to 60 meters away.  And it was at that time around 7pm, that a vehicle approached, an Education office vehicle driven by Peter Kago and with an off-sider Philip Kiti.  The two girls were picked up and driven to a secluded location.  And the girlfriend of Peter Kago being a girlfriend there were no issues as they knew each other and went about into their business. But the victim was left with Philip Kiti and evidence before this Court is that there was admission of sexual penetration of the child; in this case Jineth Naripai.  And the State also relied on the medical report prepared by a medical sister and presented to Court which formed part of the evidence.  The medical report accounts for the victims visit and examination of her private parts including the recording of her age, at 16 years.

Accused – Peter Kago

4.	For the accused, Peter Kago exercised his right to remain silent and that is provided by our Constitution.  However there were certain rules which the Lawyers must explain to accused persons if they elect to remain silent and I am told and satisfied that all those three basic principles or requirements have been explained to the accused Peter Kago. He has elected to remain silent and offer no evidence on basically both counts; one on abduction and one of sexual penetration.  

Accused – Philip Kiti

5.	As to the accused Philip Kiti, his evidence in a nutshell is basically an admission of the events, captured in his record of interview of sexual penetration and as we all know consent is not an issue. It is not relevant whether the child wanted you to have sexual intercourse that’s not an issue.  In your   evidence you said the child agreed for you to do what you did to her so you had sexual intercourse with her. However this time you have placed the scene of the crime away from the scene of the crime described by the victim.  Again those are irrelevant considerations but they are facts before this Court.  And in evidence from the witness box you said at the time you thought the victim was 16 years of age.   You said in these parts of the country children go into school at age about 8 and 9 years.  And so you are now inferring or asking this Court to believe that at the time you had sex with the child she would have been 16 years.  So in a nutshell that is your evidence before this Court.  

Court Issues

6.	So the primary issue for this Court to determine are obviously the elements of those indictments, those charges.  And our Law is such that if charges are made than it is the duty of the State to prove all elements of a particular charge.  If State fails to list or not prove all elements then that charge(s) must fail and the accused be acquitted or let go.  

Count 1- Abduction

7.	So we have a look at the 1st count of adduction. The relevant law has rightly been pointed out and referred to this Court by your respective Lawyers with regards to the element are that in the case of abduction the State must prove that:-

1.	The child was unmarried
2.	The child was under 16
3.	The child must be under the care of someone
4.	Carnal knowledge will have taken place

8.	And there must be someone who did that thing to another person and in this case the State is saying the both of you Peter Kago and Philip Kiti abducted that girl from her parents.  I am saying here for the moment that those persons could be said to be Peter Kago and Philip Kiti.  This victim is not married so that is not disputed.  The next element is the victim at that time was under 16 years.  As we have heard from both lawyers is a crucial element in that the age must be made out.  In other words both lawyers are saying that if this Court is unable to find that the Child was over 16 then the both of you should be let off. As to the charge of carnal knowledge there is no issue because there is already an admission by Philip Kiti that sexual intercourse took place with Jineth Naripai. 

9. 	As to the element of under the care of someone, the State is saying that the child at the time was under the care of her parents, her father and mother.  All we know is that the victim, her mother and father left their home to attend to a cousin’s mourning ceremony in another village.  And the victim took herself away from her parents’ custody to a nearby river upon invitation by her girlfriend, a distance estimated to be about 50 or 60 meters away from her parents.  So the question now is at what point does the care and protection or custody of the parents kick in?  So the evidence is that she voluntarily took herself away from the custody and care of her parents to that secluded place and so my view is that she cannot be said to be taken away by Peter Kago and Philip Kiti from her parents.  She has already absented herself from that environment; that safe protection.  And so to my mind this element has not been successfully made out.  

10.	As to whether the child was under the age of 16 years.   The evidence from the victim is that she believed she was born on a particular date and she believed she was some 14 years, 7 months or under 15 at the time she was assaulted.  And she relied on information given to her by her parents and she has no difficulty relaying or reciting her age.  There is evidence before this Court that she was doing grade 8 at that time she was violated.  The accused evidence as we heard on presumption is that at that time she was violated she was 16 and Philip Kiti’s only observation of her age is that in this part of the area, children at age 8 and 9 go to school implying as I said that she would at that point in time be 16 and not 15 or under.  And I am saying here although there maybe some truth in that line of reasoning to peg the victim’s age at 16 at that time of the assault; however I am saying on its own, without corroboration   it remains unconvincing.   Whereas on the other hand the victim’s version of her age in my view more convincing in two aspects making it more superior to Philip Kiti’s version.  The nearest evidence came from the nursing sister with 30 years of experience who recorded the victim’s age at the time of consultation to be 14 years, 7 months and in the same documents noted 15 and my view is that, that information can be said to be made and recorded as contemporaneous, meaning they were given at that particular times and recorded and so it must be true.  No questions asked.  Given that those information were given 10 days after the incident.  There is evidence that the victim said because it was a Friday and they were having transport difficulties into town.  From my counting of the dates its 10 days and 1 week will have gone by, another weekend and on a Monday they fronted up on the 11th of May 2015, 10 days after.  Be there as it may there was an attempt made to present herself at a nearest hospital and subject herself to examination.  Those examinations revealed that there was sexual activity on her body.  But for the moment the focus is on the determination of her age.  At that time 14th May 2015 she gave her age to be 14 years 7 months and that was recorded.  The Medical sister in her report assessed her to be at about 15 even then 14 year 7 months (14/7 months) or 15 still fall within the 15 years age range and well below 16.

COURT’S OBSERVATIONS

Demeanour

11.	The Court had the opportunity of observing what is normally called demeanour.  Seeing witnesses in Court and trying to follow their stories and to just get an appreciation of whether that witness is telling the truth, or whether they are telling half- truths, whether he’s scared or not scared so Courts have that opportunity.  And in this case I have been referred to Section 63 of the Evidence Act by State Lawyer saying that the Court can also use that Law and that Law is basically saying that in any legal proceedings if the Court does not consider that there is evidence or sufficient evidence to determine the age of a person that Court having seen the person may itself determine that question.  And I have seen that victim in Court. And we have all seen the victim, she appears to be smallish looking child, gave evidence and I do take judicial notice that in this part of our country the maturity of the physical maturity of our people are not as big or not as fat as the Papuans but they are slim and so you can be confused whether a very small girl could be seen as a 20 year old or a very small girl could be seen as a 13 year old. So the Court has that opportunity before it.  

12. 	And so I’ve made that observation and so we have two points of reference; her story and the Medical sister’s story. The contemporaneous one. The one that was told to her on that day and recorded that day.  That must be true beccause that’s what she said as against Philip Kiti’s about his observation.  Only one, and so I am more inclined to believe observing the demeanour to believe the victim’s version of her age that she was under 16 and probably at that time under 15 so I am more inclined to believe that.  

13.	On the other hand if this Court was to believe what your lawyer is saying that this is not the proper time for Court to use Section 63- Evidence Act, I am saying with respect that I disagree with your lawyer’s submission because this is a discretionary matter as in all criminal matters or civil matters the Courts exercise power to determine age by looking at them.  And for argument sake Philip Kiti is a school principle of many many years of experience and you will have obviously known the age of the child when she presented herself unwillingly on the night at 7pm.  Obviously you being a married man with several children, you will obviously have noticed that she is only a small girl.  But there is evidence before this Court that two cartons of beer were consumed so I am entitled to believe that your judgment was clouded by the consumption of beer.  And so you could not be in a better position to make an assessment of her age.  As I have said I had the opportunity to observe the demeanour of the victim.  She was smallish, slim built who maintained her age at 19 years.  From my observation of her demeanour her version of her age including the contemporaneous of both records and medical reports, I am more inclined to believe that story.  As I said I do not quite agree with your lawyer’s version that I should not consider Section 63;   Alright suppose I agree with your lawyer and say okay at that time the child as you say was 16, three years later or four years later she’s now here and by looking at her could she look like a 20 year old or 22 or 23 when she was in Court. I don’t think so.  Anyone seeing her sitting there four years later you wouldn’t think that she’d be 20 so again on both sides in my view that is a fallacy that must fail.  

14.	I did say that at the material time of the crime committed; alcohol was consumed.  And obviously your judgment was impaired on your observation of the maturity of the victim’s age.  As you stated in evidence, you have never met her before.  If you have never met her before then you will have no idea and any assumptions that you make here would only be mere assumptions.  This Court is entitled to believe from the evidence before this Court.  You have never met the victim and when that opportunity presented itself to be in the company of the opposite sex especially at a secluded dark spot around 7 and 8 pm and you were under the influence of alcohol.  Your sense of judgment impaired and whether the victim was very young, young enough to be your daughter did not matter to you.  So long as the victim was of the female species. That’s all that mattered to you.  There is evidence that you offered her K150.  That evidence again remains intact and has not been disturbed.  It follows that you were out to fulfil your sexual desires irrespective of the age of the victim at the time. The element of the child’s age is successfully made out.

COURT FINDINGS

Count 1 - Abduction

15.	Going to the abduction charge, the finding of this Court that the accused Philip Kiti and Peter Kago cannot be lawfully convicted on the State evidence on Abduction.  And so Count 1 is dismissed.

Count 2 – Sexual Penetration

16.	As to count 2 whether Philip Kiti and Peter Kago can be held liable.  You have heard this morning your lawyer made submissions.  For Philip Kiti there is no dispute that sexual penetration occurred.  With Peter Kago your lawyer is saying that there is some dispute: You remained silent and so your lawyer has rightfully pointed out the law and the principle is that people who come to Court and remain silent that should not be taken against them and that is true.  It does not mean that by remaining silent they must be found guilty.  No that’s not the law and that is respected.  However the downside is that in light of some evidence produced by the State against you, in this case against Peter Kago.  You are given an opportunity to disprove or rebut those evidence to have yourself freed.  And for the moment because you have elected your right to remain silent, your side and your views have not been heard.  I am only left with Jineth Naripai’s version against you.  And Jineth Naripai’s version against you is that at that secluded spot she challenged you with a few questions that  she was of the Revival faith and what you suggested to her was against her faith and that you frequented the school she attended last year and taught them about good moral behaviour? You tried to brush aside her questions.  And she also said at that secluded sport she confronted you that she was the daughter of Hubert Naripai to which you said Hubert was your brother and you would do nothing to her.  Those evidence for the moment remain good and damming in my view because they have not been challenged by you.  You elected to remain silent.  Your lawyer has referred me to a number of cases and I take judicial notice of those cases.  But for the moment my view is that they are not appropriate to this case. 

17. 	I’ve touched on the records books, I’ve touched on age and I will now touch on Section 7 and Section 8. The State has also used Section 7 and Section 8 basically saying you are both very educated men having worked with, Education Department for a very long period of time. One as School Inspector and another as Headmaster.  The language of law is that Peter Kago aided and abated or you helped and you ensured that Philip Kiti commit that crime.  And section 7 and 8 is saying that, if the Court finds that you Peter Kago in your actions contributed to that crime, then you must as a matter of law also be found guilty.  

18.	You had that opportunity to distance yourself when confronted by that young girl that she was the daughter of Hubert Narapai and you said Hubert was your brother.  So you had that opportunity to run away and save that girl but you didn’t.  You allowed your friend Philip Kiti to do what he wanted to do with your brother’s daughter.  It follows that by operation of Section 7 and 8 this Court lawfully finds you guilty of sexual penetration of Jineth Narapai.  As for Philip Kiti, the evidence is straight forward as the elements are clear, he is the principal perpetrator, you are also found guilty of sexual penetration of Jeneth Naripai.

19.	In the absence of any evidence or any suggesting of your non participation I more inclined to believe that your actions or in actions amounted to aiding and abating Philip Kiti who sexual penetrated Jineth Naripa.  The Court rules as I said earlier on by operation of Section 7 and 8 of the Criminal Code, accused Peter Kago is also found guilty under the charge of sexual penetration of victim Naripai.  

Court Orders

20.	Count 1: Abduction
	Peter Kago	- Not Guilty
	Philip Kiti	- Not Guilty
	
Both acquitted.

Count 2: Sexual Penetration
Peter Kago	- Guilty
	Philip Kiti	- Guilty

Orders accourdingly.
_______________________________________________________________
Public Prosecutor: 			Lawyer for the State
William Tekwie Lawyers	: 	Lawyer for the Accused