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State v Yambo [2021] PGNC 578; N9405 (1 October 2021)

N9405

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 401 OF 2018

THE STATE

V

PETER YAMBO

Kokopo: Suelip AJ
2021: 20^th September & 1^st October

CRIMINAL LAW - verdict – trial – persistent sexual penetration of a child – s.229D(1)(6) of the Criminal Code – victim admits and then denies instances pleaded in the indictment – medical report considered – demeanor of witnesses – who the Court should believe – inconsistencies in location of alleged instances – onus on State to prove beyond reasonable doubt – not guilty

Cases Cited

State v. Robert Depit (2019) N7920
The State v. George Kulap (2019) N7925

Counsel

T Kametan, for the State
S Pitep, for the Accused

VERDICT

1^st October, 2021

1. SUELIP AJ: On 14 September 2021, you, Peter Yambo, were indicted for engaging in an act of sexual penetration of a child under the age of 16 years, thus contravening section 229D(1)(6) of the Criminal Code Act, as amended. You pleaded not guilty to the charge and a trial was conducted immediately thereafter.

2. This is my decision on verdict.

Facts

3. It is alleged that between 3 December 2017 and 9 December 2017, you, Peter Yambo were at Floodway Blocks, Warongoi, East New Britain Province. During the said period you lived at Floodway. The complainant, 12-year-old female named Patricia Hillary was also living there at the time with her family. You were known to the family as you usually go to the house, and they used to give you food. It is alleged that on 4 December 2017, between 2 pm and 3 pm, you were at the house of the complainant when the mother of the complainant sent her to collect mustard in the bushes. When the complainant went away, you followed her. You met her in the bushes, laid her on the ground, removed her clothes and sexually penetrated her by introducing your penis into her vagina. On 6 December 2017, between 3pm and 4pm, you were again at the house of the complainant. You told the complainant to go with you into the cocoa plantation. In the plantation, you removed the complainant’s trousers, fiddled with her vagina, and inserted your finger into her vagina. After doing that, you told her not to tell anyone or you will hit her. On 8 December 2017 at around 1pm, you, the complainant and the complainant’s father Hillary Lemmia had gone to cut grass at one Jnr Sinai Brown’s Block at Tavatavul, still at Floodway. You followed her when she had gone out to look for coconuts and you sexually penetrated her near the bamboo trees. The State alleges that your actions contravened section 229D(1)(6) of the Criminal Code in that you, on two or more occasions, engaged in an act of sexual penetration with a child under the age of 16 years old.

4. Section 229D(1)(6) of the Criminal Code, as amended provides the following:

229D. PERSISTENT SEXUAL ABUSE OF A CHILD.

(1) A person who, on two or more occasions, engages in conduct in relation to a particular child that constitutes an offence against this Division, is guilty of a crime of persistent abuse of a child.

...

(6) If one or 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.

5. Let me also say at the outset that corroboration is not required in proving this offence and section 229H of the Criminal Code as amended provides for this as follows:

229H – CORROBORATION NOT REQUIRED

On a charge of an offence against any of 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 is unsafe to find the accused guilty in the absence of corroboration.

6. In order to prove the offence of persistent sexual abuse of a child under s229D(1)(6) of the Criminal Code, the State must show evidence to establish that you engaged in an act of sexual penetration with a child and that there is more than one occasion of the offence being committed to the same victim.

7. The elements for the State to prove beyond reasonable doubt are:

(i) a person on two or more occasions
(ii) engages in conduct in relation to a particular child
(iii) the conduct constitutes an offence against this Division (2A)

8. The issue is whether you sexually penetrated the victim on two or more occasions?

9. By consent, the State tendered the following evidence:

Document Exhibit

(i) Baptism Certificate of Patricia Hillary dated 19/01/18 S1

(ii) Affidavit of HEO Jessica Bavai sworn 24/03/18 S2
(iii) Medical Report of Patricia Hillary dated 14/12/17 S3

Summary of the State’s evidence

10. The State’s first witness is the victim, Patricia Hillary, who gave sworn evidence. She was about 11 years old at the time the alleged offence was committed. She is now 16 years old. She said the first instance was when she went to get mustard and you followed her. She said when she came down from the mustard tree, you were there, and you removed her clothes and inserted your penis into her vagina.

11. On the second occasion, she said you went up to the house and told her to follow you into the bush where you pushed your penis and finger into her vagina.

12. On the third occasion, she said you did the same thing to her. She said this happened at Junior Sinai’s area. She said this was when her and her father went there to do clean up with you. She said her father was in a little house at that time sleeping and did not see what you did to her. She said she had gone to collect coconuts and that was when you followed her and found her near the bamboo trees where you inserted your penis into her vagina. She said her father saw you both near the bamboos and he hit you on your back with a grass knife. She said you then ran away. She said thereafter, she caught bus with her father, and they went to the police to report about what had happened. She said after that, the police told them to return home.

13. In cross examination, the complainant said she knew you well as you visit her home often. About the first instance, when your counsel asked her to confirm that you did not follow her to get mustard, she said yes. When asked to confirm that at that time, she only got mustard and returned home, and she answered yes. When asked if on the second occasion, you did not insert your fingers into her vagina, she also said yes. When asked if you did not put your penis into her vagina on that same occasion, she also said yes. When asked again by your lawyer if at that time, she was just at the house, and you never went to her house then, she agreed. Further, on the third occasion, when she was asked for her response about what you did to her at Junior Sinai’s house did not happen, she agreed and said none of what she said happened, did happened. When asked if it was because of her father’s suspicions that the complaint was laid, she said yes.

14. In re-examination, she said you only sexually penetrated her twice and those instances happened in her house and the second time was at your area. She confirmed that you did not sexually penetrate her on the first instance when she went to collect mustard. She also denied that you sexually penetrated her on the second occasion in the bush.

15. When the Court enquired about the number of times you sexually penetrated her, she did not answer. When asked if you ever sexually penetrated her, she denied it. When asked why she would say you sexually penetrated her, she said it happened twice. When asked, where it happened, she answered it happened in their home on a Saturday or Monday at a Christmas time. When asked where the second instance took place, she said it happened where your garden is. She denied you both have a sexual relationship and she said you are related to her on her father’s side of the family. When asked if she bled from the sexual intercourse, she said she did feel pain, but she did not bleed. When asked why she did not tell anyone about what you did to her, she said you threatened to hurt her if she told anyone. When asked if she thought what you did to her is acceptable, she said it is not an acceptable behavior.

16. The State’s other witness is Lemia Hillary, who is the complainant’s father. He also gave sworn evidence. He says he knows you as you live with his sister Agatha, and you come to visit them, and they feed you. He recalled what happened at Sinai’s block. He said whilst in the house, he noted that you and his daughter were away for a long time. He said when he came out of the house, he saw you coming from near the bamboo trees. He asked you more than once as to where you were and when you did not answer, he got angry and hit you on your back twice before you ran away. He then took his daughter to the police to report the matter and thereafter to the clinic to get her checked. When asked if he saw you take his daughter often, he said you always come to the house to get his daughter away.

17. In cross examination, when asked about what happened at Junior Sinai’s block, he said when he woke up, he saw you walking up from the bamboo trees and he also saw his daughter standing near the bamboo trees. When asked that he only became suspicious when he saw the two of you near the bamboo trees, he said yes. He said it was a long time you two were away from sight and so he became suspicious. He agreed that he does not know exactly how long you two were away, but he reckons it was a long while. When asked if he never hit you twice on your back, he disagreed and said he did hit you twice because you did not answer him when he asked where you and his daughter were. When asked if the nurses told him of his daughter being sexually penetrated, he said yes, he was told by the nurses, not by his daughter.

18 No questions were asked by the State in re-examination. The Court then enquired if he was related to you, and he denied any family relationship between you two. When asked about the time he took the victim to undergo medical examination, he said it was 2 days after the alleged incident occurred.

Summary of Defence evidence

19. Only you gave evidence in your defence. You said you are 50 years old from Finschafen in the Morobe Province and you reside at Sawmill at Sinai Brown’s place where you work as a cleaner. You say you know the victim and she lives at floodway at Warongoi. You say the victim is not related to you and you usually go there to look for betelnut. You said that on 4 December 2017 between 3 to 4pm, you went to look for betelnut at the victim’s house. At the house, you said you stayed on when the victim’s mother sent her to get mustard from the block. You said you remained at the victim’s house when the victim went off to get the mustard. You said after the victim got mustard and returned, you chewed betelnut and then you went home.

20. You also gave evidence that on 6 December 2017, you said you were at home and did not go anywhere. You said you did not see the victim on that day as you were at home. You further said on 8 December 2017, you were at Junior Sinai Brown’s block cutting grass there. You said while you were cutting grass, Hillary and the victim came and found you there. You said when they came, you all cut the grass and when completed, they left for their home, and you also went home. You said nothing occurred during that time. You said Hillary was upset with you when you and the victim went to collect coconuts to take home. You said while you and the victim were collecting the dry coconuts, her father was at a small house within the area. You said although Hillary was angry at you and victim, he did not do anything. You said after work they left, and you also left for your home. You said after a week, the police came to your house and arrested you. You said what the victim said about you having sexual intercourse with her on the 3 days is not true.

21. In cross examination, you said where you lived is a bit far from where the victim lives. You said you go to the victim’s house to chew betelnut. You said you are familiar with the victim’s family. You said on 4 December 2017 you were at the victim’s house to look for betelnut. You said the victim was sent by her mother to look for mustard. You said you did not follow the victim to go get the mustard and you remained in the house. You said you did not sexually penetrate the victim on that day. You also said on 6 December 2017 you were just at home and did not go anywhere. You said you did not take the victim to the cocoa block, nor did you push your finger into her vagina. You further said on 8 December 2017 whilst at Junior Sinai’s block with the victim and her father, you denied following the victim to collect coconuts. You also denied sexually penetrating the victim that time. You said the victim’s father was angry, but you came from another direction from where the victim came from. You said the victim’s father never hit you twice on your back with a grass knife as alleged.

22. In response to questions from the Court, you said you are employed as a cleaner at Sinai Brown’s residence. You say you are married with a daughter and your wife is still at Finschhafen and have lived here now for 19 years. You said you were never in trouble with the law before.

Credibility of witnesses

23. I have observed the victim’s demeanor in the witness box to be unimpressive. Although she initially gave evidence to support the three (3) instances of allegations of sexual abuse, she later denied these instances and said there were only 2 occasions of sexual penetration, one was in her family home and the other was where your garden is. She does not appear to be telling the truth, let alone the notable but crucial inconsistencies in her evidence which I will discuss shortly. I also note that she did not understand some questions posed to her during cross examination which she may have answered incorrectly.

24. The evidence from the victim’s father is that of a concerned father. After he saw you and the victim coming from the bamboo trees, he became suspicious and assumed that something must have happened during the time he fell asleep in the small house on Junior Sinai’s block. It was then that he got angry and asked where you and his daughter were and when you did not answer, he became furious. You denied that he hit you twice on your back. I find him to be a truthful witness, but his knowledge is limited to the events at Junior Sinai’s place and what happened thereafter.

25. On the other hand, you appear confident when you gave evidence. You admit that on the first and third instances, you saw the victim, but you denied sexually penetrating the victim on both occasions. There are a few things you said during trial that raises doubt as to whether you are telling the truth. For example, you say you are married and have a child, both of whom live in Finschhafen. You also say that you have lived here now for 19 years. That is a long time away from your family. You never said if you visit them or vice versa. You also denied being hit twice by the victim’s father after he saw you and the victim near the bamboo trees. The victim gave evidence and said she saw her father hit you on your back. Her father also said he hit you twice on your back with a grass knife. Other than that, you are an impressive witness. You answered questions put to you confidently.

26. The question now is who the Court should believe?

Consideration

27. The onus is on the State to prove beyond reasonable doubt that you committed the offence of persistent sexual abuse. Let us start with the first element of the offence. There is no issue with your identification. On the second element of proving there were two or more occasions of the offence, the evidence presented by the State is that you, on three (3) occasions were engaged in the act of sexual penetration of the victim. These three occasions are pleaded in the indictment. The first was on 4 December 2017 when you followed the victim to collect mustard at the block and you sexually penetrated her in the bushes. The second occasion was when you went to the victim’s house and told her to go with him to the cocoa plantation when you digitally penetrated her with your fingers. The third occasion occurred at Junior Sinai’s block where you followed the victim to collect coconuts and you sexually penetrated her near the bamboo trees. However, during the course of the victim’s oral evidence, it became apparent that that the three (3) instances of allegations of sexual penetration, either with your penis or fingers, did not occur because she denied these instances and said there were only two (2) occasions of sexual penetration, one was in her family home and the other where your garden is. These inconsistencies raise doubt as to whether you committed the alleged offence on those specific occasions as pleaded in the indictment and no evidence was adduced during trial for those other occasions.

28. The State says that despite the inconsistencies in the locations of the offence, the victim maintained that she was sexually and/or digitally penetrated by you. However, your lawyer says the three (3) instances of sexual penetration upon which you were arraigned have not been made out by the State hence, the State has not proven its case beyond reasonable doubt. The question in my mind now is “can you be fairly tried on what you were arraigned on?”. I refer to what my brother Anis J said in the case of State v. Robert Depit (2019) N7920. At paragraph 20, he said, and I quote in part:

“An indictment is presented with its brief facts before a trial shall commence. The alleged facts are read out together with the indictment at arraignment. And with that, an accused person is immediately asked to take his plea, which is based on what has been read out to him or her in Court. The accused is then trialled based on the indictment and the alleged facts. If evidence is adduced at the trial and it reveals different facts altogether other than what the accused had been arraigned on, then logically and in my view, the trial cannot continue because the new facts have not been pleaded and put to the accused on arraignment. I will also say this. The right to a fair trial or protection of the law under section 37 of the Constitution, would be at stake if such practice (i.e., to rely on a new set of facts as it is later revealed in evidence as opposed to the set of facts that had been originally pleaded together with the indictment) is permitted by the Court. An accused person has a right to be properly informed of the charges, and he or she shall also be afforded sufficient time to prepare to defend himself or herself. See section 37(4)(b) &(c) of the Constitution.”

In that case, the Court stopped trial after an application for a no case to answer was heard and the accused was discharged.

29. The same statement was recited in The State v. George Kulap (2019) N7925 at paragraph 11, and I adopt it as my own. It is clear that the two separate instances of the alleged offence were not pleaded in the indictment with brief facts to support the charge nor were you arraigned on the two separate instances.

30. As regards the last element of the offence where the State must prove that you were involved in the act of sexual penetration with a child under 16 years old. The only other evidence to prove that there was indeed an act of sexual intercourse on the victim is her medical report of 14/12/17 by HEO Jessica Bavai. In that report, it shows inflammation and bruises around vaginal opening. It also shows that “cervix swollen, and no hymen seen”. This is confirmation that there was sexually activity, and your counsel did not raise any objection, nor did she provide any other explanation to raise doubt as to the findings of this report. As it is, there is proof that the victim was subjected to some sexual activity in or around her vagina before 14/12/17. As to how that happened and who did it still requires additional evidence to be adduced. As it is, the evidence presented by the State is not enough to prove beyond reasonable doubt. I also note the alleged commission of the offence was within 2 days apart which is strange in the circumstances of your case.

Findings

31. Essentially, the State has fallen short of proving the three instances of the offence. I find that the victim herself denied those three instances as pleaded and says there were in fact two separate instances of the offence committed by you. The first was in her home and the second was in your garden. These separate instances are not pleaded in the indictment and the brief facts lack particulars of these two instances. There was also no evidence adduced at trial to prove these separate instances. I also find that the medical report proves that the victim was subjected to some sexual activity, but it does not prove that you are the one who committed the act.

32. I am therefore, not satisfied beyond reasonable doubt that you committed the offence of persistent sexual abuse as alleged by the State.

Verdict

33. You are not guilty of the charge of persistent sexual abuse of a child under 16 years and you are acquitted forthwith.
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Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner