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State v Gurang (No.1) [2021] PGNC 393; N9136 (29 June 2021)

N9136

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1142 OF 2020

THE STATE

V

SONGSONG GURANG
(NO.1)
Accused

Karkar: Geita J
2021: 29^th June

CRIMINAL LAW – Trial – Accused found guilty to the charge of Sexual Penetration of a Child under the age of 16 years laid pursuant to Section 229A (1) of the Criminal Code.

CRIMINAL LAW – Trial – Guilty Verdict returned.

Cases Cited:

None

Counsel:

Deborah Ambuk, for the State
Delilah Ephraim, for the Accused

Note: This is the edited version of ruling delivered on maiden court circuit to Karkar Island.

EX TEMPORE RULING ON VERDICT

29^th June, 2021

1. GEITA J: The terms of the indictment are: On the 1^st day of July 2020 at Urugen Village, Sumkar District, Madang, the accused in this Court Songsong Gurang of Urugen Village, Sumkar sexually penetrated a child Fedelma Lawong. At the time, the child was 15 by inserting his penis into her vagina. So that the charge or the indictment and charges laid under s.229 (A) (1) of the Criminal Code.

2. And this morning the accused upon arraignment pleaded not guilty and the State called its witnesses. State evidence basically relied on court exhibits tendered into Court (Accused record of interview, corroborator’s statement, Letter from Urugen Primary School and Medical Report from Miak Health Center.) The medical report was tendered through the witness concerned. The Urugen Primary School Board of Management report indicating and showing that the child was a child student at that school during that year and the medical report by the Nurse in Charge, Sr. Benedicta gave evidence and submitted the medical report as forming part of her evidence.

3. In short, the allegations are that on the 1^st of July, 2020 sometime between 3 and 4 pm, the complainant then a grade 5 student from Urugen primary school. After school, she went to her garden with a friend Rose and whilst in the garden harvesting some produce, the accused approached her and sensing that the accused was nearby the victim decided to give way and in doing so her back was turned towards the accused. In pretext of walking past the accused grabbed the victim from behind. At the time he was armed with two knives and threatened the young victim and removed her clothes and sexually penetrated her against her wishes. The accused threatened the victim not to tell anyone. If she did, she would be subjected to further harassment or in her own words “your young life would be cut short”.

4. The matter was reported to her mother and later to some relatives, aunt and uncle with subsequent appearance, the charges at the Police Station followed with a medical report on the same day. Hence the charges now before this Court.
Défense Witness - Unsworn Evidence by The Accused – Songsong Gurang

5. The accused elected to give an unsworn statement after being cautioned by Defence Counsel of the consequences of giving unsworn statement or evidence. The Court having satisfied itself that the accused understood the consequences of giving unsworn evidence proceeded with the matter. The Court proceeded to examine the accused further if he was comfortable and willing to give unsworn testimony, considering the consequences. Some of which include although the evidence may be untested and unsworn; the Court is bound to consider those evidence. In any event, the only course for concern for the Court is that because such evidence remains not tested the credibility is somewhat diminished. Those are the concerns, and they were put to the accused, and he has elected to do so. And he has given oral testimony basically denying that he was the one implicated in the indictment; saying that he did go to his garden after work around 3 and 4 pm. Ironically that is the hour that the young victim has alleged to have recorded in her evidence. The accused said after work about 3 – 4, he went to his garden and returned home later to find out that he has been named as the person who raped the young girl. And so, having approached the young girl’s family to reason with them, the accused in his unsworn statement said he was threatened of reprisals and so he retreated concerned that he could not be heard. Later in the night, the next day he was approached by Community Policing, apprehended and brought to the Police Station with eventual charges. He maintains all along that he was not involved in that sexual penetration incident, and he has nothing to do with it.

State Witness No.1 – Victim – Fidelma Lawong

6. The young victim was called this morning and she give evidence. She identified the alleged person and identified him as Songsong, pointed to him sitting in dock. She was subjected to aggressive cross examination as to whether she was mistaken with Songsong’s identity. The young witness remained consistent in aggressive cross examination that the person that she saw and the person that raped her was none other than the accused in dock. She was threatened which resulted in the eventual sexual penetration. So, she appeared to be unwavering, maintained her story right throughout despite aggressive cross examination as to her status as a virgin and she had any prior association with boys. She maintained all along her story that there was none other than the accused in the dock who raped her.

State Witness No. 2 – Victim’s Mother – Grace Lawong

7. The victim’s mother was called, and she gave her story about the young girl reporting to her and about how the aunt and uncle had taken the young girl to the Police Station and eventual medical examinations which evidence is now before this Court. So, the young girl and the mother have no hesitation that it was the accused. When subjected to cross examination that they may be biased in pointing fingers at the accused because there have been ongoing land disputes and that in past instance of a pregnancy incident resulting from within that family, the young victim maintained that no, it was the accused who raped her. And the mother maintained her story that her daughter was raped by the accused.

State Witness No. 3 Health Officer Sr. Bernadette

8. Now the Health Sister Bernadette came this afternoon and gave evidence basically stating that she conducted an examination on the young girl’s private parts on the same day and she confirmed that the private parts were indeed disturbed and there were signs of activity of some form of sexual penetration. As to whether the young girl was a virgin, Sister Bernadette said from her experience there has been activity and there were no signs of prior sexual activity and basically confirmed that the young girl was a virgin at that time she was raped. So that aspect of sexual penetration concluded.

Victim’s Age Not Contested

9. As to the young girl’s age under 15, that’s not been contested. Under 16 that’s not been contested so I take judicial notice that the young girl’s age and the education board evidence which states that at the time she was in Class 5 A. She was in upper grade at Urugen area school. They referred to the Lukautim Pikinini Act and why children should be protected under that piece of legislation. So, the age as it stands remains uncontested, so this Court is satisfied that at the time the sexual penetration occurred; the child was indeed underage.

The Law

10. In this case the law that we are looking at is s. 229A (1) and the law basically is saying Sexual penetration of a Child. And the law describes a child as a child who is under 16. In this case we have a victim child who at the time she was sexually penetrated, she was 15.

Elements

1. One of the elements is a child. So, the Court is satisfied that we have a child. The child was under 15. She was sexually penetrated. So that is proven.

2. We now look at whether the child was 16 or under. And as I said earlier on the child at the time she was sexually penetrated was 15. The issue of age is not contested. So that element of the child being under 16 again is proven.

3. The next element is that person. Who is the person? In this case the only person fingers are pointed to is the accused Songsong Gurang in this Court. There is no other persons implicated or accused.

11. The child in my view was an honest witness. She has come to Court, and she has testified and subjected herself, in my view to humiliation and shame. But she has decided to come forward because she felt that the truth must be told and so she has come to do that. So, I hold the young victim child as a witness of truth. I do not for a moment have any doubts as to her credibility. The same goes for the mother and the same goes for the medical sister’s evidence. I hold them to be witnesses of truth. As it happens this afternoon we have also a Rose who could be a credible witness for the young victim but evidence now before this Court shows that Rose happens to be a niece because Rose’s father and the accused’s father are related and obviously some pressure put on Rose who was supposed to be a close key witness remained away, threatened not to give evidence and she has decided to distance herself. Nonetheless there is sufficient evidence to find that all evidence is pointing to the accused in this Court. The accused has given unsworn testimony and I touch on the cautions given on unsworn testimony. Unsworn testimonies are good. Courts are obliged to take note of unsworn testimonies. However, the Court must be careful when considering unsworn testimonies because by their very nature; the unsworn testimonies have not been cross examined. They have not been tested and so that there is a danger here of Court relying too much on unsworn testimonies. Again, unsworn testimonies, Court must be mindful of the accused’s constitutional rights. They have the right to give their evidence through Court. If they decide to hold back, that is fine. The only downside is that because they have decided to give unsworn evidence and to have it subjected to cross examination; then they loss that opportunity of testing or discrediting state evidence. He has lost his opportunity to test the young victim’s evidence that it was you who did that to me. The sister and the mother’s evidence. So, you tend to loss all those opportunities available to you. Considering the unsworn testimony, I am saying that he still does not hold water although he has distanced himself from this sexually activity. I am satisfied that I can safely rely on the testimony of the young women, the medical report and from the mother. At the end of the day, I am satisfied that all the elements of sexual penetration of a child successfully made out. For the moment there is no other person. The only person is the accused in the dock, and he has been identified consistently throughout trial this afternoon by the victim, the mother, medical sister as the perpetrator and identified as Sonsong Gurang and so the finding of this Court is the accused is Guilty of the charge of sexual penetration of a young girl under 16 years.

12. I have heard your story and I have heard the young girl’s story. The young girl and mother came, and they told their story. The young girl basically said it was you who raped her and nobody else. You have come to this Court and decided not to hold the Bible and tell your story. When you don’t hold the Bible; that’s alright, that’s your constitutional right and that is respected. But the bad side is because you did not hold the Bible the young girl’s Lawyer was not given the opportunity to test your story to find out if they are true or not true. Although you have said throughout that you did not rape her, but the Court is satisfied with the story of the young girl, the medical sister, and the mother of their story and I am satisfied that you are the one that sexually penetrated the young girl on 1^st July 2020 in her garden.

13. Those are the orders of this Court. Guilty verdict is entered.

_______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused