N9947

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 99 OF 2019

THE STATE

V

EMMANUEL TALIM
(NO 1)

Kokopo: Suelip AJ
2020: 8th, 15th, 17th September & 26th November

CRIMINAL LAW – trial – verdict – particular offence – sexual penetration of victim under 16 years with fingers s. 229A (1) Criminal Code – complainant and accused from same clan – allegations denied – consideration of evidence – proof beyond reasonable doubt – guilty.

Counsel

G Tugah, for the State
S Pitep, for the Accused
VERDICT

26th November, 2020

1.	SUELIP AJ:   On 8 September 2020, the accused was indicted on one count of sexual penetration with a child under the age of 16 years, contrary to section 229A (1) of the Criminal Code. It is alleged that he committed the offence on 30 October 2018 at Vunakaur Village, Toma/Vundidir LLG, East New Britain Province. He denied the charge and a trial was conducted.

2.	This is now my ruling on verdict.

Allegations

3.	The State alleges that on 30 October 2018, between 3pm and 5pm, the accused was at Vunakaur village, Toma/Vunadidir LLG, East New Britain Province. 

4.	The State alleges that on that date, time and place, the complainant, aged 14 years old was on her way to her sister’s house. While on her way to her sister’s house, she met the accused. He then grabbed her hand and told her to follow him into the bushes so that he can have sex. The complainant refused and he pulled her into the bushes where he restrained her and had forceful digital sexual intercourse with her two times. Later on, during the evening, he released the complainant, and she went to their house. Her relatives found her and upon questioning her, she revealed what he had done to her. She was then taken to the hospital and a complaint was laid at Kerevat Police Station. The Police later arrested him and charged him with rape under section 347(1)(2) of the Criminal Code. The State alleges that his actions contravened section 229A(1) of the Criminal Code, and indicts him on one count of sexual penetration under that section.
   
The offence 

5.	Section 229A(1) of the Criminal Code states:

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

Penalty: Subject to Subsection (2) and (3), imprisonment for a term not exceeding 25 years.
	
6.	Further, section 6 of the Criminal Code defines “sexual penetration” as: 

6. SEXUAL PENETRATION. 

When the expression “sexual penetration” or “sexually penetrates” are used in the definition of an offence, so far as regards that element of it, is complete where there is – 

(a)	the introduction, to any extent, by a person of his penis into the vagina, anus or mouth of another person; or 

(b) 	the introduction, to any extent, by a person of an object or a part of his or her body (other than the penis) into the vagina or anus of another person, other than in the course of a procedure carried out in good faith for medical or hygienic purposes.

7.	Corroboration is not required in proving this offence, Section 229H of the Criminal Code provides for this. 

	229H – CORROBORATION NOT REQUIRED.

On a charge of an offence against any provision of this Division, a person may be found guilty on the uncorroborated testimony of one witness, and a Judge shall not instruct himself or herself that it is unsafe to find the accused guilty in the absence of corroboration.

8.	The two elements for the State to prove beyond reasonable doubt are that:

(i)	the accused engaged in an act of sexual penetration with another person; and 

(ii)	the other person was a child under the age of 16 years.

Issues

9.	The issues are:

(i)	whether the accused sexually penetrated the complainant with his fingers?

(ii)	what is the age of the complainant?

Evidence by consent

10.	By consent, the State tendered the following evidence:-

	Document									Exhibit

(i)	Freda Lar’s Statutory Declaration (08.09.20) 			S1
(ii)	Statement of Arresting Officer Toby Maki (20.11.20)		S2
(iii)	Statement of Corroborator Const. Emelly Emmanuel (20.11.20)	S3
(iv)	Medical Report of Maristella Pinpin (HEO) (06.11.18) 		S4
(v)	Record of Interview (20.11.20) Pidgin version 			S5
(vi)	Record of Interview (20.11.20) English version 			S6

Summary of the State evidence. 

11.	The State’s first witness is the complainant in this case. She gave sworn evidence in Court in the kuanua language. In her evidence, she says she remembers the date of the incident and the name of the accused. She says at that time, she was schooling in 2018 doing Grade 5. She identifies the accused by pointing at him. She also says he had removed her skirt and inserted his finger into her vagina. She says this happened in the afternoon at the “tarayu” or men’s sacred place. She said she knew him well and regarded him as her uncle. 

12.	In cross examination, she maintained her story and said it was the accused sexually penetrated her. She confirmed that it was him whom she had met on her way to her sister’s house, and he asked her for sexual favours but when she refused, he forced her to the sacred men’s place known as “tarayu” and inserted his fingers into her vagina. Also, in cross examination, she was asked if compensation was paid by two separate male individuals for this wrongdoing, she said yes but also called the name of the accused. When enquiries were made as to whether the complainant was related to the accused, she said she refers to him as an uncle. 

13.	In re-examination, she maintained that he is the one who inserted his finger into her vagina.

14.	The other State witness is Jenny Remson, who is the victim’s great grandmother, and her evidence is essentially about the family locating the complainant after the alleged offence was committed. She said the complainant was found under a “laulau” tree that night. She said the complainant fainted when they found her, and they took her home. She said the complainant did not reveal anything until the next day when she was taken to Paparatava Health Centre, and she told the nurse during medical examination about the accused and what he did to her. She denied payment of compensation by two other men for this wrongdoing. 

Summary of Defence evidence

15.	The accused was the first to give evidence. He denied committing the offence and raised the defence of alibi. He said he was sick that day, and his wife was taking care of him then. 

16.	During cross examination, he said he was very sick that day and he was at home. He said he did know why he is being accused of the alleged offence. He said what the complainant said is not true.

17.	His only other witness is his wife, Cathy Gugunaliu, who testified that on the day of the alleged offence, the accused was sick, and she was taking care of him. In response to the question that there was some compensation payment already made to the victim, she said there were two other men who paid compensation to the victim but not the accused. 

18.	On cross examination, his wife said she has been married to the accused for a long time. She says she has 7 children with him but when she was asked again by the State, she said they have 8 children. When asked about the number of times she checked on the accused that day, she said she did twice. She said he did come out of the house at around 6pm to get some sunlight. However, she says at the end of her testimony that the time he came out of the house was on the next day, not on the day the alleged offence was committed. On the day of the alleged offence, she says he was in the house the whole day. 

19.	When asked who else was present at that time, his wife said his son, his wife and the grandchildren were there. When asked whether the accused always told the truth, his wife said he does. When asked if a similar allegation was made against the accused previously, his wife said that there were 2 instances when they were young, but he was already married to her by then.

Analysis of the evidence

20.	The complainant referred to the accused as an uncle. However, there was no explanation by either the accused or the complainant as to how both are related. It is only in the Record of Interview at Question and Answer no. 20 where the accused said the complainant is one of his clan members.

21.	There is no issue with the identification of the accused as she pointed at the accused during her testimony and confirmed he was the offender. The alleged offence took place between 3pm and 5pm in broad daylight.  

22.	The evidence from the complainant is corroborated by her great grandmother where she said the complainant had told the nurse what had happened. This is admissible evidence. There is no reason not to believe either the complainant or her great grandmother. Even the nurse stated in her report that the complainant was raped. Both the complainant and her great grandmother are not only impressive but also credible witnesses. 

23.	The accused denied committing the alleged offence and raised the defence of alibi. His wife testified that he was sick on that day and was in the house all day. In her oral evidence, she mentioned the two times she checked on him and the 1 time he came out of the house on the day of the alleged offence. However, at the end of her testimony, she said that the times he came out of the house was on the next day, not the day the alleged offence was committed. On the day of the alleged offence, she says he was in the house the whole day. The question I am troubled with is how the accused can be in the house whole day especially when he is sick without visiting the restroom or the bathroom, which would usually be outside the main house in a typical village setting. His wife’s testimony is confusing, and I do not see her as a truthful witness. 

24.	Another thing that troubles me from his wife’s testimony is this. She says the accused came out the house at 6pm that day to get some sunlight. By 6pm, the sun would be setting if not already set. Therefore, I do not accept this evidence.

25.	Further, in the record of interview of the accused, he generally denied committing the offence and raised the defence of alibi. He said he was sick and inside his house that whole day. His wife said he never came out of the house. Apart from his wife, no one else from his family came out to support his alibi.  His wife also said there were two earlier instances where he was accused of similar offences. This places more uncertainty as to whether he is telling the truth. The complainant did point to the accused in Court during her testimony to say he was the one who inserted your finger into her vagina. Corroboration is not required in proving this offence.

Finding of facts

26.	Based on the analysis of evidence, I find that the accused was not at home on the day he was alleged to have committed the offence. I find that he met the complainant on the road and sexually penetrated her by forcefully inserting his finger into her vagina two times. I also find that the complainant was about 14 years old at the time the accused committed the offence. 

Verdict

27.	The accused is charged with one count of sexual penetration with a child under the age of 16 years, contrary to section 229A(1) of the Criminal Code and I am satisfied beyond reasonable doubt that the State has proven both elements of the offence he committed. 

28.	I find the accused guilty as charged.
________________________________________________________________
Public Prosecutor: 			Lawyers for State
Public Solicitor: 			Lawyers for Accused