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State v Nanuk (No 1) [2022] PGNC 123; N9529 (25 January 2022)

N9529

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1158 OF 2020

STATE

V

PHILEMON NANUK
(No 1)

Waigani: Wawun-Kuvi, AJ
2021: 24^th-26^th & 30^th November
2022: 17^th & 25^th January

CRIMINAL LAW-TRIAL-Persistent Sexual Abuse of a child- section 229 D (1)(6) of the Criminal Code-Whether the complainant was under the age of 18? Whether the accused sexually abused the child? Whether the abuse was on more than one occasion and clearly specified? Whether one or more occasions involve an act of sexual penetration?

Held:

(1) The elements of persistent sexual abuse under section 229D (1) (6) of the Criminal Code are:(1) The accused committed an act of sexual abuse within Division 2A of the Criminal Code. (2) An act of sexual abuse was committed by the accused on two or more occasions within a specified timeframe. (3) The complainant was under the age of 18 at the time the sexual abuse occurred. (4) One or more of the occasions involved an act of sexual penetration.

(2) Only the complainant and her mother gave sworn evidence. The accused remained silent. The evidence is left unchallenged.

(3) The Record of Interview and the section 96 District Court Act statement were tendered into evidence without objection. The statements made by the accused were inconsistent with common sense and logic.
(4) There was no dispute as to the age of the child. The accused in his statements to the police and the District Court agrees that the complainant was under the age of 18.

(5) The evidence of the complainant was clear and coherent. She gave clear details of each occasion alleged by the State. The medical report independently supports the last and final occasion.

(6) I accept the evidence from by the State that the complainant was a child and was persistently abused by the accused. And that the sexual abuse consisted of acts of sexual penetration.

(7) Verdict of Guilty returned.

Counsel

Ms. Elizabeth Kave and Ms Laurel Toidalema, for the State
Mr. Fredrick Kirriwom, for the Defence

DECISION ON VERDICT

25^th January, 2022

1. WAWUN-KUVI, AJ: The accused was charged with persistent sexual abuse of a child under section 229 D (1)(6) of the Criminal Code.
   
2. The State alleged that the accused is the biological father of the complainant. The State alleges that the complainant was 14 years old, and the accused was 38 years old at all material times.
   
3. The allegation by the State is that on a Friday between 1 March 2018 and 31 March 2018, the complainant was sleeping in her room. It was in the evening. The accused woke her up and told her to go down to his office so that he would give her some money. He followed her down. Once inside his office, he grabbed her shirt and attempted to remove it. The complainant resisted and he assaulted her. He threatened her to be quiet. He then removed her shirt, touched her breasts, and told her to lie down on the bed. In fear, she complied. He then touched her breasts and threatened to hit her if she cried out loud. He undressed himself and inserted his penis into her vagina.
4. Two weeks following the first incident, the accused again sexually penetrated the complainant by inserting his penis into her vagina. This incident occurred in the family home inside the complainant’s room.
   
5. On the third occasion, it was alleged that late one evening between 1 November 2018 and 31 November 2018, the accused told the complainant to go to his office. While in the office, the accused hit her. The accused touched her breasts and ordered her to suck his penis. His wife then walked into the office. The accused then assaulted his wife.
   
6. On the fourth occasion, it was finally alleged that on 31 July 2019, the complainant was assaulted by the accused. He removed her clothes and noticed that she was having her menstrual period. He then inserted his penis into her mouth and then her anus.
   
7. On 31 July 2019, the complainant’s mother was transiting a flight through Port Moresby. It was planned that the complainant was to meet her mother at the airport. The complainant’s mother was not able to board the flight and proceed to stay at her brother’s home in Gereka. She informed the accused to bring the complainant to spend the evening with her. The complainant then informed her mother of the abuse. She was taken to the hospital and the matter was reported to police.
   

Burden

8. The State bears the burden of proving its case beyond reasonable doubt.
   

Elements of the Offence

9. For a charge under section 229A (1) (6), the State must prove:
   
   1. The accused committed an act of sexual abuse within Division 2A of the Criminal Code.
   2. An act of sexual abuse was committed by the accused on two or more occasions within a specified timeframe.
   3. The complainant was under the age of 18 at the time the sexual abuse occurred.
   4. One or more of the occasions involved an act of sexual penetration.

Issues

10. The issues for the Court’s determination are:

1. Was the complainant under the age of 18 years?
2. Did the accused sexual abuse the complainant?
3. Was there more than one occasion?
4. Did one or more the occasions involve an act of sexual penetration
   

The Evidence

11. The only sworn evidence before the Court is from the complainant and her mother. The accused remain silent.

12. The medical report was tendered on the basis that it was relevant to the fact in issue, i.e., its probative value outweighed any prejudicial effect. Additionally, the investigating officer confirms on oath that the accused was served the medical report and that the deponent was overseas.

13. The Record of Interview was tendered by consent.

14. The Section 96 Statement of the accused was accepted into evidence. Section 97 of the District Act states:

“ 97.Statement may be put in evidence at trial.

On the trial of a defendant for an offence for which he has been committed for trial or for any other offence arising out of the same transaction or set of circumstances as that offence, a statement made by him under Section 96 may be given in evidence without further proof, notwithstanding that the statement may be exculpatory or self-serving, if the statement purports to be signed by the Magistrates by or before whom it purports to have been taken, unless it is proved that it was not in fact signed by those Magistrates.”[Emphasis mine]

15. The Section 96 Statement was signed by the Committing Magistrate. It was therefore accepted into evidence without further proof.

16. Section 96 of the DCA allows for the accused to give a sworn statement or an unsworn statement. The Committing Magistrates notes indicate that the statement is unsworn.

Assessment

17. As the charge is one of persistent sexual abuse, I will set each allegation down and address my findings in respect of each allegation.

18. I will deal first with the issue of age.

Was the complainant under the age of 18 years?

19. The State alleged that the complainant was 14 years old at the time of the alleged offending.

20. Defence counsels only submission is in relation to the age of the complainant. He submits that the Court cannot be satisfied as to the age because there are no documents supporting her oral testimony.

21. The complainant’s mother confirmed that she gave birth to the complainant on 7 August 2004 at the Kimbe General Hospital.

22. The mother is an Allied Health Worker. She graduated with a Bachelor in Allied Health Sciences in 2004. The same year that she gave birth to her daughter.

10. The Record of Interview was tendered pursuant to section 586 of the Criminal Code. Like section 97 of the District Court Act, the materials stated therein are accepted without further proof. The Record of Interview was conducted on 7 August 2019. The accused was asked in question and answer 21 as to the age of the child. He answered that she is 15 years old. His Record of Interview was conducted on the child’s 15^th birthday.
    

23. The accused in his section 96 statement says that the child was born in 2003.

24. There is no dispute that all material times, the child was under the age of 16 years old.

25. Additionally, the only sworn evidence that is before the Court is that of the complainant.

26. The complainant in Court stated that she is now 17 years old. However, her physical size is like a 12- or 13-year-old. She is very thin and frail in appearance.
27. I accept that the complainant at all material times was under the age of 18.

Did the accused sexual abuse the complainant?

28. The child complainant was soft spoken. She gave her evidence in English. She spoke very clearly and articulated herself very well.

29. She gave her evidence of all the events that the State had alleged. She specified what happened on each occasion. Her evidence was clear and coherent. She even gave evidence of other acts of sexual abuse that were not charged. Her account of each of those times was also clear and coherent. Whilst those events were not pleaded in the indictment, I do not find that they were recent inventions. Those events were also put to the accused in question and answer 54 and 55 of the Record of Interview. The accused also responded to those allegations in his section 96 statement.

First occasion and second occasion

30. State alleges on a Friday between the 1March 2018 and 31 March 2018, the child was woken from her sleep by the accused. He told her to go into his office so that he would give her money. She went and he followed her. Once inside the office, he prevented her from leaving and grabbed hold of her shirt. She resisted. He hit her and threatened her to be quiet. He removed her shirt and touched her breasts. He told her to lie on the bed. She complied out of fear. He continued to touch her breasts and threaten to hit her further should she cry louder. He then undressed himself and inserted his penis into her vagina.

31. Two weeks later, the accused again sexually penetrated the child in the house inside the accused bedroom.

32. The accused in his Record of Interview confirms the two occasions. However, he says that he only touched her breasts on those occasions. He confirms that both occasions were two weeks apart.

33. The accused in his Section 96 statement denies any sexual contact or feelings towards the child. However, when he was questioned by police, he admits that he touched her breasts. That when he touched her breasts, she did not remove his hand or reject it. On a second occasion, he admits at question and answer 51, that he touched her breasts again. He says that he then took her outside and told her that they must pray because he was developing feelings towards her. He prayed for him not to do it again. In question and answer 53, he admits that he started feeling differently towards the child.
34. The child complainant’s evidence was consistent with the allegations by the State. Her evidence is the only sworn evidence and carries more weight. She was not cross examined as to the details but rather generally that the accused never touched her breast or sexually penetrated her. I accept the child’s evidence that the accused had touched her breasts and sexually penetrated her.

Third Occasion

35. The next set of allegations is that on an unknown date between 1November 2018 and 31November 2018, the accused told the child to go into his office. The accused then hit the child inside the office. He then touched her breasts and ordered her to suck on his penis. His wife who was suspicious then stormed into the office. The accused physically assaulted his wife that night.

36. In question and answer 58, the accused admits that there was an occasion where his wife stormed into his office when he was with the child complainant. He was drinking out and arrived at home about 11pm. He went to sleep in his office. The child complainant then went into his office and locked the door. She sat next to his leg and started crying. His wife used a spare key and came into the room. When his wife saw the child sitting next to his leg, she started screaming and waking up the boys. He belted his wife badly.

37. This supports the child’s version that there was an occasion where his wife had walked into the office and that he had assaulted her severely. That the office was locked and that his wife had to gain entry with a spare key. The child’s evidence was sworn evidence and the details of what happened that night were not challenged in cross examination.

38. Additionally, the accused statement to police is inconsistent with common sense and logic. It is evident that his wife was suspicious. She did not knock to enter the room. She opened the door with a spare key. If this was a father and child situation and the child was pleading to go back to her mother, and she was merely sitting at his foot, what was the need for the stepmother to start screaming and what would have caused him to assault her so severely. The child’s evidence is most consistent with logic, and that was that the stepmother walked into the room and saw the accused forcing his daughter to perform oral sex on him. I accept the child complainant’s evidence.

Fourth and final occasion

39. The last occasion occurred on 31 July 2019. The complainant was to meet her mother at the airport. The accused did not take her to meet her mother at the airport. Her mother did not board the flight. She then proceeded to her brother’s home at Gereka. She informed the accused to bring the complainant to her brother’s home. The complainant appeared troubled.

40. The next day, as her mother was preparing to leave, her mother sensing that something was troubling the complainant, asked her if she was alright. The complainant burst into tears and informed her mother of all that was happening to her.

41. She was immediately taken to the Family Support Centre for medical examination and later a complainant was laid at the Boroko Police Station.

42. The Accused was arrested on 2 August 2019.

43. The accused agrees that he did not take the complainant to the airport on 31 July 2019. He says that it was because he did not want her mother to see her crying.

44. He described as a demanding child and a child that was exposing herself sexually to him. He agrees that the child did not grow up with him. She only just moved in with him in 2018. If his account was to be accepted, then, the logical thing to have done was to bring her to her mother at the airport and send her off.

45. Instead, I accept the complainant’s evidence, that he did not take her to the airport because had just forced her to suck on his penis and inserted his penis into her anus. He did not want her reporting the abuse to her mother.

46. The mother’s evidence is that she had missed her flight to Alotau because she was waiting to see her daughter. That, because she missed her flight, she demanded the accused to take her daughter to her at Gereka. Her daughter appeared distressed and troubled when she went and spent the evening with her. She told her the next morning and she immediately took her daughter to the hospital.

47. The complainant said in evidence that she was having her period at the time and that was the reason the accused did not penetrate her vagina. The medical report confirms that the child was menstruating. There was no hymen intact and there was redness all around the vagina and there were visible injuries in the anus. There were lacerations all around inside of the anal opening. The examination was done the next day.

48. It independently corroborates the final allegations by the State. I accept the evidence of the child complainant.

Was there more than one occasion?

49. Yes.
    

Did one or more of the occasions involve an act of sexual penetration

50. Yes.
    

Uncharged events

51. The child complainant gave evidence about other acts of sexual abuse. That the accused also took her to Boroko Lodge and Holiday Inn. There are not recent inventions. The allegations were put to the accused in his record of interview. He also addressed them in his section 96 statement.
    
52. Her evidence about the accused taking her to the Holiday Inn carpark to use the wifii and whilst there he would sexually assault her were supported by the accused section 96 Statement. Whilst he stated that he does not take her there and only took her once with other family members, the fact that she knew that he used the wifii at the carpark was only peculiar to him.
    
53. I do accept that she was subjected to sexual abuse on other occasions.
    

Demeanor

54. Considering all the above, I observed that the child was visibly traumatized as she recalled the events. She was physically shaking and would take heavy breathes. It demonstrates that she was telling the truth.
    

Conclusion

55. The evidence of the complainant and her mother are the only sworn evidence before the Court. The statements by the accused are unsworn. They nonetheless establish the events that transpired but the explanations were inconsistent with common sense and logic.
    
56. The child’s evidence was not challenged in cross examination. Only the charge was put to her to which she responded clearly to the defence counsel’s questions. She agreed that her father disciplines her when she misbehaves, she says that it is her stepmother that gives her money for her basic needs and that she did not make up the allegations because she wished to return to her mother.
57. For the foregoing reasons, I am satisfied that the accused persistently abused the complainant as alleged by the State.
    
58. A verdict of guilty is returned.
    

Orders

59. The Orders of the Court are:
    
    1. A verdict of guilty is returned.
    2. The accused is convicted of the charge of Persistent Sexual Abuse under section 229D (1)(6) of the Criminal Code.

________________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Defence