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State v Panut [2019] PGNC 71; N7731 (1 March 2019)

N7731

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. N0. 135 OF 2017

THE STATE

V

HENRY PANUT
Kokopo: Susame, AJ
2019: 22, 25 & 27 February & 1^st March

CRIMINAL LAW – offence – sexual penetration of a female child under 16 years of age – s 229a (1) (3) – child 14 years old – child is a niece to the accused – breach of relationship of trust, authority or dependency –

CRIMINAL LAW – issue- whether ther was sexual penetration - evidence of recent complaint of sexual nature - reliability and credibility of witnesses – general denial – evidence - assessement of demeanour of witnesses vital - accused’s false denials and lies is evidence weigh against him -

CRIMINAL LAW - proof of sexual penetration – absence of sperm in the vagina does not necessarily mean there was no penetration – evidence of bruised hymen with spots of blood is proof of penetration.

Cited Cases:
Papua New Guinea Cases

Reference N0.3 of 1978 [1978] PNGLR 421,
The State v Lemek Jubin (8 October 2018) unreported CR N0. 1142/16
The State v Kaur Aquila (25 February 2019) unreported CR. N0. 10 of 2017

Oversea Cases

Woolmington v DPP [1935] AC 462,

Counsel

Mr. Gabriel Tugah, for the State
Ms. Cecilia Pulapula, for the Accused

DECISION ON VERDICT

1^st March, 2019

1. SUSAME, AJ: On indictment presented by the State accused was charged that on 6 April 2015, he sexually penetrated a 14 year old female child, by introducing his penis into her vagina.
   
2. It is further alleged accused was in a position of trust, authority or dependency in that he is an uncle to the girl.
   
3. Accused is cited for offence provided in s 229A (1)(3) of Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 with circumstances of aggravation.
   
4. No precise defence was raised. It was a case of general denial.

Evidence

5. For the State documents tendered into evidence by consent were:
   
   1. Medical Report of the child victim dated 9 April 2015 exhibit S1
   2. Affidavit of Dr. Cecilia Thomas dated 16 November 2016 exhibit S2
   3. Copy of the Child’s Clinic Book exhibit S3
   4. Original Record of Interview in Pidgin dated 21 June 2016 exhibit S4
   5. Record of interview translated English version exhibit S5
      
6. Additional oral evidence came from witnesses:
   
   1. The prosecutrix (AK)
   2. RP (a female child friend)
   3. Roslyn Wature
   4. Francis Gaius
      
7. For the defence the only evidence came from oral testimony of the accused.

Elements of the Offence

8. Elements of the offence State is required to prove are:
   
   1. Accused was the perpetrator
   2. There was sexual penetration
   3. Complainant is a child under 16 years of age
   4. Existence of a relationship of trust, authority or dependency between the accuse and the child

Elements Proven

9. State’s evidence covering elements 1, 3, & 4 have not been challenged by the defence. Based on the uncontested evidence court finds that the following facts have been proven.
   
10. Firstly, accused is the alleged perpetrator. He was with the complainant and her girl friend at the crime scene. Secondly, complainant was then 14 years old when the alleged offence was committed on her. The child’s clinic book records 21 November 2000 as her date of birth. The alleged offence was committed on 6 April 2015. She would have turned 15 on 21 November 2015. Clearly, complainant was a child under 16 years of age. Thirdly, the accused is a blood relative to the complainant. He is a cousin brother of complainant’s biological father. Accused would be her uncle. Therefore, there existed a relationship of trust, authority or dependency between accused and the complainant. That satisfies the law in s 6A(1) (2)(c) of the Act which defines relationship of trust, authority or dependency.

Issue

11. The basic controversy in the case is on sexual penetration. Court has considered the arguments advanced by the parties. Arguments were based on evidence. In view of those arguments court will make its own independent assessment of the evidence, particularly of the State.
    
12. Generally, the onus of proving each element of the offence beyond all reasonable doubt rests with the State, subject to exceptions in the case of defence of insanity and any other statutory exceptions relating to matters peculiarly within the knowledge of the accused. (see Woolmington v DPP[1935]AC 462, Reference N0.3 of 1978 [1978] PNGLR 421, Criminal Law and Practice of PNG, 3^rd Ed. pp.14 -15). Therefore, how credible and convincing is the State’s evidence? Let me consider the evidence.
    

State Evidence

13. First, let me consider the testimonies of four State witnesses.
    
14. Complainant gave evidence in Kuanua language through an interpreter. She gave evidence under special measure orders issued upon Mr. Tugah’s application pursuant to s37D of the Evidence Act. One of her aunt was granted leave to sit by her as she gave evidence.
    
15. Relevant segment of her evidence is this. She could remember in the morning of 6 April 2015, she had gone over to her Aunt Brigit’s house. There she met her girlfriend RP. They were playing cards when accused came along. She had her back on the road and never saw him approaching them. Her girlfriend saw him coming but never told her. Accused came from behind and held her. He pulled her into the house. She told him she did not want what he was up to. Accused told her girlfriend to lock the door from the outside. But she called out to her to open the door. But accused told her not to. Accused pushed her to the ground. He removed her clothes and then removed his. He laid on top of her and sexually penetrated her by inserting his penis into her vagina. She was crying and calling out but accused never bothered. Second time he sexually penetrated her.
    
16. Her grand mum who was walking by heard the noise inside and enquired with her girlfriend about what was going on. Her girl friend told her accused rape her. Her grand mum hearing that went and told her mum. Her mum told her dad and her dad came over and took her out of the house. Her dad took her to the house and questioned her. She told him what had happened. Her dad got a vehicle and took her to the police station. And later she was taken to the hospital and was examined.
    
17. At this juncture let me state here that grand mum complainant was referring to was Roslyn Wature. And mum and dad she was referring to were her uncle Francis and his wife. This became clear when Roslyn and Francis gave their respective testimonies.
    
18. Next witness was RP, complainant’s girlfriend she was playing cards with that particular morning. She also gave evidence under special measure orders because she was 16 years of age and a child witness. She confirmed accused had approached them at Brigit’s house. Accused was then drunk. He told her to go and find Kalis. She refused to go. Accused then pulled the complainant into the house. She told accused to let go of the complainant but he refused. She said Roslyn came by to get mustard and heard noises inside the house and enquired what was going on. She told her accused had pulled the complainant into the house. Both of them then left Brigit’s house and walked to complainant’s house to get her parents. Her parents were not at home. His step father (referring to Francis Gaius) went over to Brigit’s house. He opened the door and found the complainant inside but Henry was not there.
    
19. Roslyn Wature was the next witness. She is complainant’s grand mum. That morning she came over to Brigit’s house to get mustard to chew betelnut. She came near the house and she heard a voice inside. The house is a semi-permanent house with walling made of barks of balsa tree. The barks dried up and created holes through the walls. She walked over to the side of the house and peeped through the holes. She heard the complainant telling Henry enough as she was tired.
    
20. She could see the complainant was on the ground half naked and Henry was naked. She immediately left to go and tell the girl’s parents. When she got home her parents were not there. So she told the girl’s aunt of what she had seen. The aunt told her husband Francis Gaius. She followed Francis over to Brigit’s house. Francis opened the door. Accused was standing behind the door. Francis took the complainant out of the house and they took her back to Francis’ house. Roslyn went and reported the incident to the ward member who advised them to take the complainant to the police station. They did. Police then directed them to take her to the hospital and she was medically examined.
    
21. Francis Gaius was the last witness for the State. He is complainant’s uncle. He was at his house that morning when Roslyn came and reported the incident to his wife. As soon as he was told of the incident he ran over to Brigit’s house. He saw complainant’s girlfriend was standing beside the house. When he enquired where the complainant was the girl just pointed at the house. He pushed the door but it was locked. So he kicked it open. He looked inside and saw his niece was half naked sleeping on the ground. He could not see the accused. He entered and as he turned around he saw him behind the door zippering up his trousers. He questioned him what he was doing. Accused never replied. Francis said he controlled his temper and did not do anything. He just took his niece out of the house and took her to his house. Following advice of the ward member they took the girl to the police station and after to Vunapope Hospital for medical checkup.

Defence Evidence

22. Accused gave evidence his friends came to his house and were drinking under the house. He joined them and they drank the whole night until morning of next day. At about 7:00am (that is on 6 April 2015) he left his friends to go to the store to buy coke and spear (Tobacco). On his way to the store he came by the complainant and her female friend at Brigit’s house. They were playing. He asked the two girls to go to the store but they refused. So he had to chase them and they ran away. Accused walked on to the store and got himself a coke and smoke then proceeded back and joined his friends at his house. That was when he heard from his friends about the incident.
    
23. Accused was subject to further questioning by both counsels. My observations of his demeanour will be discussed a little later in the judgment.

Evaluation of Evidence

24. All the witnesses including the accused were subject to further questioning or examination. I have heard their explanations/answers and observed their demeanour. Each of them gave their own factual account of what happened as best as they could, relying on accuracy of their memory of an incident that occurred four years back.
    
25. At this juncture I want to make a personal observation here. Most people do not have good memory. Often mistakes or inaccuracies are made in recalling details of past incidents. That does not necessarily mean they are being untruthful and that their entire evidence should not be relied on.
    
26. I note the particular questions and answers (questions 13 -20) which defence counsel took at issue. My assessment is that complainant gave answers that appeared to have been inconsistent with her evidence in chief. I have observed her demeanour. She was a bit bashful. There were moments she paused for few seconds before she answered questions. It seems she may not have clearly understood the questions particularly when she had to withstand a lot of pressure of being questioned by the defence counsel. However, at the re - examination she picked up again and re-affirmed her story.
    
27. I have had a closer look at the evidence of rest of the witnesses. I cannot find any major flaws or inconsistencies in their evidence which are fatal to the State’s case. What has been convincingly established by the evidence from all of the witnesses as well as accused is that accused had approached the complainant and her girlfriend. He had asked the girls to go to the shops but they refused. State’s evidence has also convincingly established accused had taken the complainant into Brigit’s house. While inside the house accused had asked RP to lock the door from outside. It has not ascertain if RP did lock the door. I doubt very much she did because Francis came over and tried to push the door open but it was locked from inside. So he had to kick it open. That shows that accused had locked the door from inside. And the only reason he did that was to sexually penetrate the complainant.

Recent Complaint

28. Evidence of recent sexual assault complaint may be considered good evidence State may also rely on to proving its case. It goes to credibility of a witness (s). On this point I adopt what I pronounced in my judgment in The State v Lemek Jubin (8 October 2018) unreported CR N0. 1142/16, p.10:

“At Common Law, evidence of recent complaint made at the earliest reasonable opportunity is admissible in sexual assault cases. Such evidence goes to the credibility and demeanour of complainant as a truthful person of the fact that she had been sexually assaulted. It is however, not admissible of the facts in issue such as consent if it is a central issue. (See Kilby v R [1973] 129 CLR.460). That Common Law principle has been recognized and adopted by the Supreme Court in Touramasong & Ors v The State [1978] PNGLR 337.”

29. In the present case there is evidence of a recent complaint of sexual penetration. Complainant had protested against the assault on her. Her girlfriend was also not happy about what the accused was doing to her and her friend. Roslyn and Francis reacted swiftly and intervened to rescue the complainant from inside the house where she had been sexually assaulted by the accused. Some minutes after complainant was taken to the police station for their intervention followed by medical checkup was done of the complainant eight hours after.
    
30. Evidence of such recent complaint of a sexual nature goes to credibility and demeanour of the complainant and others as witnesses of truth. Court is entitled to treat their evidence as more reliable and trustworthy. I consider them as truthful witnesses.
    
31. There cannot be any plausible reason or other ulterior motive for the complaint to be framed up against the accused. A wrong had been committed in the community witnessed by the State witnesses during broad day light by the accused who was drunk. It was reported immediately to the police for the arrest of the accused. However, accused evaded arrest until he was apprehended a year later in October of 2016. That conduct of course speaks against him.
    
32. Having said the above where does the offender’s story stand? I have had a close observation of the demeanour of the offender. Under cross- examination when pertinent facts and suggestions were put to him he answered them with a simple “no”. Few times the prosecuting counsel put the accused’s own version of facts for him to affirm he simply said no. This is a direct insult to intelligence, logic and commonsense. At least some intelligent or logical explanation should have been given instead of all “no” answers. Had he realized it or not but in the course he took he contradicted his own evidence.
    
33. Accused was simply unimpressive. I consider his denials were deliberate lies and false which puts into question his credibility. It simply points to his consciousness of guilt of the offence he is charged with on the face of State’s evidence which is convincing. I endorse and adopt what I said in my recent judgment in The State v Kaur Aquila (25 February 2019) unreported CR. N0. 10 of 2017:

“Court is entitled to hold that the accused’s false denials of knowledge of relevant facts and deliberate lies points to consciousness of his guilt of the offence charged on the face of State’s evidence which is more credible. (The State v Avaka & Kaipu (2000) N2024, Wood v R [1964]109CLR 529”

Sexual Penetration

34. Apart from circumstantial evidence from other three witnesses there is direct evidence from the complainant on this issue/element. Accused took her inside and pushed her down on the ground. First he removed her clothes and then he removed his own. He then sexually penetrated her by introducing his penis into her vagina, Accused did that twice despite complainant’s protests.
    
35. Further proof of sexual penetration is the medical report dated 9 April 2015. The report states complainant was examined eight hours after the incident on 6 April 2015. Defence counsel has certainly misconstrued the report and submitted that medical checkup of the complainant was done on 9 April 2015, three days after the incident occurred. The report states laboratory results taken of the vaginal swab showed no evidence of presence of sperm in the vagina. Except that hymen was bruised but intact with little blood stains seen and that there was no active bleeding.
    
36. Based on such a finding of no presence of sperm in the vagina defence counsel argued there was no sexual penetration of the complainant.
    
37. Findings of the no presence of sperm in the vagina may mean the following:
    
    • ➢ Vagina had been washed cleaned leaving no traces of sperm inside the vagina prior to examination, or
    • ➢ There had been penetration but no ejaculation inside the vagina, or
    • ➢ There had been penetration but ejaculation was outside of the vagina.
      
38. What is a hymen and where is it located? It is a thin piece of mucosal tissue that surrounds or partially covers the external vaginal opening. It forms part of the vulva. It is located deep inside the vagina. It is close to the entry, about 1-2cm inside the vaginal opening. (https://en.m.wikipedia.org>wki>Hymen . tallirosenbaum.com>node)
    
39. That would mean that a bruised hymen which is located inside the vagina would have been caused by penile insertion.
    
40. Therefore, absence of traces of sperm in the vagina does not necessarily mean that there was no penetration. Accused was drunk then. Perhaps due to his drunken condition or some other factors peculiar within his own knowledge he never ejaculated inside the vagina.
    
41. One final point I want to make mention of briefly before concluding. That is on corroboration in sexual offences since it was brought up by Mr. Tugah in his submission.
    
42. Counsel has rightly discussed the current status of the law in relation to the requirement of corroboration in sexual offences. (S.229H of the Act). No arguments or issues arose on this point. However, all I can say is that court may convict on uncorroborated testimony of the complainant alone as long as her/his demeanour is observed to be a truthful witness or her/his evidence is assessed to be credible and convincing. In this case there were more than one witness who gave evidence for the State. Corroboration is therefore not an issue for consideration.
    
43. Court has considered the parties arguments. The court is inclined to find in favour of the State. Therefore, the answer to the basic issue is in the affirmative. Accused did sexually penetrate the complainant by introducing his penis into her vagina.

Conclusion

44. The conclusion reached is that State has proven its case. There is no shadow of doubt in my mind to enter a conviction. Accordingly, court shall return a Guilty Verdict against the accused.

__________________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Accused