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State v Kaski (No 1) [2022] PGNC 431; N9789 (18 July 2022)

N9789

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 342 OF 2022

THE STATE

V

LAWRENCE KASKI
(No 1)

Madang: Miviri J
2022: 15^th & 18^th July

CRIMINAL LAW – PRACTICE AND PROCEDURE – S347 CCA sexual penetration Without Consent Two Counts –21-Year-Old Biological Daughter – Accused Biological Father – Whether Accused Committed Rape Upon Daughter – Daughter on Oath – Photograph Black Eye – Medical Report – Corroboration – Recent Complaint Evidence – No Admissions ROI – Unsworn Statement From Dock – Self Serving – Admission to Assault – No Position Either Admission or Denial On First Rape & Second Rape – Truth In State Case – Balance Discharged – Guilty of 2 Counts of Rape – Bail Refunded – Remanded.

Facts

Accused biological father of complainant assaulted her and penetrated her vagina with his penis and had sexual intercourse with her. He did this twice.

Held
Sworn evidence preferred over unsworn evidence.
Accused had sexual penetration of complainant
Guilty of Two counts of Rape
Bail refunded.
Remanded for sentence.

Cases Cited:
Townsend v Oika [1981] PNGLR 12
McCallum v Buibui [1975] PNGLR 439
R v Phillips Boike Ulel [1973] PNGLR 254
Kassman v The State [2004] PGSC 9; SC759
Kandakason v The State [1998] PGSC 20; SC558
Waranaka v Dusava [2009] PGSC 11; SC980

Counsel:

D. Ambuk, for the State
N. Katosingkalara, for the Defendant

VERDICT

18^th July, 2022

1. MIVIRI J: This is the verdict after trial against Lawrence Kaski of Mikarop village Bogia District, Madang who sexually penetrated his daughter without her consent twice.
   
2. He was charged pursuant to section 347 of the Criminal Code in each case of rape reading:
   

“(1) A person who sexually penetrates a person without his consent is guilty of a crime of rape.

Penalty: Subject to Subsection (2), imprisonment for 15 years.

(2) Where an offence under Subsection (1) is committed in circumstances of aggravation, the accused is liable, subject to Section 19, to imprisonment for life.”

3. Circumstances of Aggravation were invoked pursuant to section 349A of the Code that on each of the occasions that he sexually penetrated her, he was armed with a dangerous and offensive instrument, caused her grievous bodily harm before and in the course of the offence. And this was pursued in respect of both counts of rape levelled against him. On the second occasion he was alleged to have been armed with a dangerous and offensive weapon.
   
4. The facts on arraignment on the 05^th of April 2021 the Accused told the victim he would make a portion from her menstrual blood mixed with certain other things that he would give to her to drink so as to clear her head. He also would drink some of it. She refused and stated that she would not do such a thing with him. On the 12^th May 2021 he was aggressive to her. Because of that fact she intended to run away to Tarangau within Newtown to her cousin there. As she was walking to that area, she was stalked by the neighbourhood boys who told her that it was unsafe to walk in the night. Whilst she was talking to them the accused approached her, grabbed her and dragged her to their house. Where he took her inside ordering the Stepmother and other siblings out. He then locked the door and started to assault her with a pinch bar, all the while accusing her of having sexual relations with the boys, he had just met her with. He went onto accuse the daughter complainant of being disrespectful to him by not allowing him to have sexual intercourse with her but spend time with boys. She was assaulted to an extent where she was not fully conscious. And she felt the accused turning her over and undress her and sexually penetrated her. She cried out please Daddy don’t do that to me, but he continued to have sexual intercourse with her.
   
5. On Friday the 21^st of May 2021 Accused came home around 11.00pm in the night. The complainant daughter was asleep on the veranda where she was resting for the past week & a half due to the trauma of being assaulted with the pinch bar by the accused. Whilst she was sleeping the Accused came with a bayonet with a rugged edge and plunged it into her left knee. She woke up from sleep and started screaming as she observed blood on her knees. He proceeded to poke her with the knife all over her body with it. And then dragged her outside the house, once outside he ordered the stepmother to switch off the lights outside. There he undressed her on the pretext of bathing her wounds, he begun fondling her breasts and vagina. He took her upstairs back into the room. Still in the dark he removed the towel and sexually penetrated her. He continued for about two (2) hours before he went to his room and slept. She ran away and sought refuge from the neighbours and was brought to her cousin Lillian Titus at Tarangau Street Newtown. By his actions the Accused contravened section 347 sexual penetration without consent.
   
6. Accused pleaded not guilty to the two counts of sexual penetration without consent of his own daughter the complainant prompting her evidence on oath against him. By consent the State tendered into evidence as Exhibit P1 the original pidgin record of Interview of the Accused conducted with Police on the 20^th August 2021. Exhibit P1(a) was the English translation of that same record of interview. Exhibit P 2 was the medical report dated the 21^st August 2021 by Doctor Vero Agua. Exhibit P3 was the statement of Policewoman Rally Boti the Arresting Officer. And Exhibit P4 was the statement of First Constable Miriam Domok corroborating officer in the record of Interview of the Accused. Further upon advice of Police was Exhibit P5 photograph that was taken by State witness Lillian Titus cousin sister of the victim Milka Kaski. It depicted that the victim had racoon left eye. A black eye depicting that She was assaulted. A bleeding left knee and a swollen puffy face depicting that she was assaulted on the face. Her hair was untidy and not combed as if she had woken from bed in haste. She appeared as if She did not look groomed nor was she happy looking. Compared to her face in Court, she appeared to have been seriously assaulted depicted by the wound on her left knee visibly bleeding. It was not old wound because it was not dried blood. It was taken on the 22^nd May 2021, the morning of the alleged assault upon her. And was taken at the house of Lillian Titus who had come out to see the victim cousin sister in that state. These comprised all the evidence that was tendered by consent.
   
7. The record of Interview of the Accused contained no admissions to the offence. It did not contain anything to advance the case of the Accused. But was opportunity that the State had accorded him to give his side of the story against the allegations that were made by the daughter against him. He basically elected to remain silent. It was his right and he exercised it putting the State to prove its case against him.
   
8. Further State evidence was exhibit P 2 the medical report under hand of Doctor Vero Agua dated the 21^st May 2021 from the Madang Provincial Health Authority Obstetrics and Gynaecology Division. That report detailed that Milka Kaski 21 years old from Mikarop, Bogia residing with her biological dad at Newtown reported to the Gynaecology ward on the 21^st May 2021 around 3.00pm with the support of her elder cousin sister. Her last menstrual cycle was 03^rd May 2021. She reported that she was sexually abused and assaulted by her biological dad on the 20^th May 2021 around 12 midnight at their residential area.
   
9. He threatened her to use force, bush knife and pinch bar. And several times he punched her on the head, face. He stabbed her with the knife on her legs and hands that she could not move. He supported her to her room and sexually penetrated her vaginally. Which was more than 10 times. He also sucked her clitoris and breasts. And she admitted this to be the second episode. The first was on the 12^th May 2021 at their residential home. She was bashed up and sexually penetrated by her father. She had run away from him to be with her relatives. However, he went looking for her and brought her back. Miss Kaski said this is more traumatizing for her, sustaining injuries to the legs, hand and face caused more pain. She is walking with support. She came today for a proper examination and medical report thereafter. Which report illuminated gravely the following; “Physical examination; On examination, she walked in with the support of her cousin, was in great pain distress, and was crying whilst reporting. Vital Observations were stable. Local Examinations; Head – slightly swollen, generalized tenderness. Ears/Face- swollen, tender ++, raccoons’ eye on the left. Chest/breasts- NAD. Abdomen- soft, non-tender, no mass. Limbs bruised right 3^rd digit (hand) laceration on right limb (leg) sutured and dressed, tender, reduced range of movement.
   
10. Vaginal Examination Speculum. Perineum-bruised noted at the introitus. Vulva/vagina-laceration minimal-bleeds with contact. Cervis Os-closed, pink, minimal clear fluid noted, no laceration-Specimen taken for semen MCS.
    
11. Bimanual Examination-Bilateral adnexal tenderness. Uterus size-12/40. There was no ano-rectal injury. Investigation came back; pregnancy test was negative; semen analysis was also negative for spermatozoa. RVI screening and VDRL results not available at the time of reporting.
    
12. Summary; The findings are suggestive recent sexual assault (Incest) with multiple injuries. She was managed accordingly and follow-up at Family Support Centre for counselling. Please assist her in any way possible. Thank you signed Doctor Vero Agua O&G Registrar Under Doctor Bolgna, SSMO-Obstetrics and Gynaecology unit.”
    
13. This evidence is not related in any way to the Accused or the victim. It is independent evidence, because it is by Doctor Vero Agua, who is schooled in medicine. And her evidence is from that basis what she as a specialist in Obstetrics & Gynaecology observed on the body in particular the vagina and immediate area of Milka Kaski. She observes that the findings are suggestive of recent sexual assault (incest) with multiple injuries. The material evidence she gives corroborates the account of Milka Kaski. That she is assaulted and sexually penetrated vaginally as there is evidence of trauma present concluded by the Doctor. This evidence sets apart the truth from lies and deceit. It is not intended to lure the Court but is made with the school that the witness has endured as a professional trained in her field of medicine, obstetrics, and Gynaecology. It breaks the barrier between the Accused and the victim as to which holds water and which doesn’t in the allegation. Primarily She is asserting against her own biological father the accused Lawrence Kaski, that he assaulted her firstly with a pinch bar and then without her consent penetrated his penis into her vagina and had sexual intercourse with her against her will. He committed rape upon her. She did not consent to the Act of sexual penetration with him. Because she was assaulted to an extent where it was impossible given her physical status after the assault, he did what he did to her.
    
14. Which is also the case in the sexual penetration without consent on the 21^st May 2021. She is stabbed on the knee and repeatedly on the other parts of the body that have been set out by the medical report. She walked in great pain with the support of her cousin. She was crying whilst she was reporting. Her head and face were swollen and she had a black eye, a racoon eye. Her right-hand Limbs bruised right 3^rd digit (hand) laceration on right limb (leg) sutured and dressed, tender, reduced range of movement. Her vagina and internal was described “Perineum-bruised noted at the introitus. Vulva/vagina-laceration minimal-bleeds with contact.” The conclusion was “The findings are suggestive recent sexual assault (Incest) with multiple injuries.” This is evidence that is heart to the dispute and sets apart what the victim daughter contends apart from the father accused. It is independent evidence in material particulars apart from the victim principal witness that sets out and confirms the allegation the assertion contended by her Townsend v Oika [1981] PNGLR 12, primarily, because allegation of sexual nature are easy to make, but hard to refute. The evidence corroborating is from an independent source, McCallum v Buibui [1975] PNGLR 439.
    
15. Milka Kaski gave sworn evidence relevantly affirming at the outset in her evidence, “I came here to tell the truth as to what happened to me.” The first incident was on 12^th May 2021. I start with how it led up to me. Before the first incident at the house where we stayed with my two small stepbrother and sisters, my biological father argued with stepmother. The argument was about the newborn child. So, mother got baby and they went away leaving myself and small brother with father. Both of us where with the next-door neighbours when he called me over to our house. There I went and sat next to him. And he told me that he will ask me a question that I will not tell anyone about it. That the matter was between the both of us. He said he will get my menstrual blood make a portion that I will drink with him so that I help my head and brain. He also will drink some. And He asked if I said yes or not. He told me that I will not tell anyone about it. It was between the both of us.
    
16. I was crying when I talked to him. We were sitting down and I felt bad so I went back to the neighbour’s house. I sat quietly and people talk to me I did not reply. I found it hard to stay at home. Next day I came and stayed with the neighbour selling ice block. And I did not go home. He called me I did not go up sat on the steps of the house. I did not respond so he got a knife and chased me and I hid in the container. I slept there until the morning when I went to my big daddy at 4 mile and stayed there for two weeks. One morning when we woke up he came and told me to go back home because mummy and the baby had returned to the house so I returned with him. But I did not feel safe in the house and attempted to run away. As she did whilst the place was dark, she was called by one Noah a neighbourhood boy. He told her it was not safe for a girl or female to be out. That she wait until daybreak to go. She refused so he offered that she sleep with his small sister until it was light and She can leave. She did until 5.00am woke up early to go but Noah prevented. Eventually agreeing to leave her at Tarangau. As both went down the road, they met the Accused. Milka attempted to cover herself with a bilum to avoid detection but the cover became undone with drunken who asked who She was. The accused detected and told her to go quietly back to the house. She did not comply. He dragged her and pulled her along. Then threw her over his shoulders and carried her to the gate of their house where he dropped her to the ground. I felt unconscious he lifted me and carried me up to my room. He told mother that I was drunk drinking with the boys. There he was continuously questioning me and assaulting me. He got a pinch bar and broke my knee with it. I blocked it and it got my hand. He told me to sit down and he removed my trousers and sexually penetrated me twice. He pushed his penis into my vagina and had sexual intercourse with me. I did not agree that he should do this to me. Later he took me down to the shower and washed me. I called out to mummy and she was just sitting and watching me. My legs were broken and swollen and I was unable to walk. I was not taken to the hospital to take medication. In this condition I was given the baby to look after.
    
17. On Friday night 21^st May 2021 he drank and came to the house. I was sleeping. I was injured so came out to the living room. He brought a small knife and touched my leg. I woke up and he said, You, I will cut your leg now. You won’t go when I talk you don’t listen. He accused me of drinking around with Noah and that I went out drinking and all the men raped me. He was trying to cut the vein on my leg and I moved, and he cut me. He missed me with the knife as he wanted to cut the vein on my leg. He stabbed my leg on the right knee and I blocked it and the knife cut my 2 fingers. And at this time his wife was standing and looking. With blood he carried me. I said I want to go to the loo and urinate. He took me to the ground after I urinated. I said I wanted to wash where there is a drum to fetch water. There I washed myself he got towel and covered me and took me to the room. He told his wife and baby to go under the house switch off all main switch to the power. The inside of the house was dark. He threw me on the mattress and came with a small knife which he used to poke me with. He said don’t cry just sleep. He told me to open my legs and he put his tongue to my vagina and licked it. I wanted to cry and shout but he said, if you shout, I will stab you with the knife which he pushed underneath the mattress. His right hand locked my left hand and other hand he placed where the knife was. He told me if I shout, he will stab me with it. I was crying softly as he penetrated me twice. He put his penis into my vagina and had sexual intercourse with me. He took almost two (2) hours we were there, then he left me and went to sleep. I was with blood and naked. I got up found the laundry basket got my clothes wore and climbed up the wall jumped to the other side room rented out.
    
18. I prayed to God, Father God if you want me to die, let me die, if not then let me run away. I said this and stood up and the door opened, the couple who rented the room adjacent, the wife Betha came and I met her. I tried to walk and managed. She saw me with blood and she helped me. I told her he raped me. And she told me you wait mummy come home you tell her. And the door was opened the wife got bag and was also trying to run away. I told her Betha, that I was going. I went to the neighbour’s house and went into the room. I went and held the leg of the boy-who I regarded as brother, woke him up and he saw me. He used to sleep with his mother and they both woke up. I told them that I wanted to go to Tarangau to cousin. And they helped me and took me to Lillian my cousin sister there. Who was asleep but the landlord opened the door for me and left me. It was 6.00am and they were sleeping. My hands were swollen so I could not knock their door. I was crying and Lillian heard my crying and woke up and saw me with blood. The woman with two children came looking for me. And Lillian chased her away. She took me inside and I told her what happened to me. She went to a policeman next door who told her that I should not wash and take me to a doctor and then to report to the police. And Dad did that to me he is Lawrence Kaski and he is sitting there points to Accused in the dock.
19. Lillian Titus customs officer with PNG Customs was the next state witness. She gave evidence that on the 21^st May 2021 I found my cousin Milka Kaski outside my door. I had woken up by crying at the door. I came out of the room by the main door. I saw my cousin Milka sitting at the door crying. I was shocked to see her in that state. She was bleeding with wounds on her knee. Her hair was untidy and her clothes were dirty. I asked her to stop crying and tell me what happened. She stopped crying and I helped her into the house. First thing she told me was Daddy raped me. I put her on the chair. That did not go down well with me. The person is my uncle and she is my cousin. He used knife to stab her. With the thought of violence, I sought police. I told her to sit and wait for me. I went a couple of houses up from us to Policeman Frank Pepson and saw him. I reported to him that my cousin in my house now was raped. He told me to tell her not to wash and for me to take a photograph of her. And then to take her to the hospital for medical examination and report. I came back home took Milka to the hospital ward 1 gyno ward, where she was examined and report made by the Doctor. Following the advice of the Police I did take a photograph of Milka, exhibit P5. This concluded the State case.
20. By itself the photograph is damning against the Accused. She has a black eye a swollen, a racoon eye in the words of the Doctor in the medical report, and puffy face. And is bleeding on the left leg from wound there. She appears shady not attired or groomed happy. She appears unwell. It visibly sets out the assertion that she makes. It verifies her contention of the assault at his hands. It is independent source confirming in all material particulars the allegations of assault and injuries pertaining that she makes against him of the 21^st day of May 2021. It is confirming that she is telling the truth and is a witness of nothing but the truth as she has professed by her oath. In this regard I have observed her give her evidence in court on oath. I am impressed by her demeanour as a witness of the truth. She has gone to minute intricate intimate details of the allegation that one would tell as it is within her. She is not trying to tell a story that is not there in the first place. She is reliving what has happened to her in court. She fought back tears to relive the torment and horror at the hands of her own father. The man who brought out into this world to infiltrate her intimacy and privacy to ruin her for the rest of her natural life. She has a permanent scar on her soul for the rest of her natural life that she was violated by her father. She showed courage and determination to escape his evil to no avail as he succumbed his quell of lust upon her. She ventured at the wee hours of the morning to her demise to escape his horror even if the street was unsafe. In comparison he is a witness who has shied away conveniently to avoid the truth by his unsworn evidence from the Dock. His credibility is no where near to both state witness’s cousins Milka Kaski and Lillian Titus. They stand out with the medical evidence independently verifying and corroborating in all material particulars what they depose to. I find there is no doubt in their evidence. I accept their evidence in total and reject the evidence of the accused unsworn from the dock.
21. His unsworn statement from the dock contending that in the afternoon after dinner she went out. I presumed that she would go out and come back again. But no, she went and went for good. We waited for a while she did not come. We slept and she will return and knock that did not happen. Towards the daybreak I thought of her so I followed road down. I met her with the boys drunk and walked up so I went. She is my daughter. She was drunk and leaned to me. I dragged her back to the house. I got cross and assaulted her. That was the evidence for the defence and leaves open serious gapping holes that do not make worthy his case. He has fallen by the wayside against the tide that the State has set out above.
22. Though it is evidence even though it is unsworn evidence its weight is not on the same as that of the sworn testimony. Because “In assessing the evidence, the trial judge had quite correctly alluded to the fundamental and well settled principle of law that, an unsworn statement, though is evidence in the case, does not have the same weight as sworn evidence: R v Phillips Boike Ulel [1973] PNGLR 254. Which was approved and endorsed in Kassman v The State [2004] PGSC 9; SC759 (20 August 2004). Here that is the law which is applied in the consideration of the unsworn statement of the Accused with the sworn evidence of the daughter and Lillian Titus. Because both had had their veracity tested and would fare more than his unsworn statement from the dock. His statement is self-serving deposing short that he merely assaulted her because She was drunk and late coming back to the house. He does not account for the allegation she makes against him that he had sexual intercourse with her between the 04th and the 12^th day of May 2021without her consent. Further He does not counter the assertion that she makes against him of the 21^st May 2021 that he stabbed her with a knife on her knees and hand and body. Then he sexually penetrated her vagina with his penis and had sexual intercourse with her. She did not consent as he assaulted her causing her grievous bodily harm.
23. That means he admits assaulting her but because she was out and he saw her drunk with the boys. He does not detail how he assaulted her. So, to an extent he has not challenged the evidence in the way the State has led. It means the assault with the pinch bar is not challenged nor is the stabbing with the knife on the knee and cut on the finger. They remain intact and sustained without any dent in their veracity and truthfulness. They happened as contended by the victim daughter at the hands of the Accused. He did what he did to her in the way that she has described on oath cross-examination at length to her veracity and truthfulness. His unsworn statement from the Dock on the scale with the tested evidence of the State does not equate in weight. He has fallen far short and lacking in material particulars as set out to put holes that the State has brought an incredible story. Especially when he contends that it cannot be believed that he had sexual intercourse with her for two hours yet there was no sperm or semen count made by the medical evidence. That is not his evidence unsworn from the dock. He does not challenge that fact of sexual penetration of her without her consent in both instances. They are intact and remain uncontradicted untouched against him. When viewed with the medical report it is a very strong case against the Accused made out by the State. There is no other by the unsworn evidence placed sexually against the victim. His contention that if there was ejaculation within, it has not been medically ascertained in the medical report tendered. It is a major inconsistency that dethrones the evidence so that there cannot be any convictions based. The benefit of the doubt be given the accused, an acquittal in view. This would fall but the fact of the matter is that accused has not denied penetration without consent by his own unsworn evidence, he has not challenged that material fact of the charges preferred against him. So, whether with or without ejaculation, it remains that he penetrated her vagina on each occasion alleged without her consent. He sexually penetrated her on each occasion by his penis. It is not necessary that there be ejaculation to complete the act of sexual penetration without consent. It is sufficient to show that there was penetration of the vagina by the male penis. Here that is the conclusion of the Doctor in the medical report that has been tendered marked exhibit P2. The aggregate is that the unsworn evidence does not create any doubts in the state case against the Accused. There is nothing against to doubt the evidence and the case of the state on each count against the accused.
24. A strong fundamental ring of truth spirals through the State evidence so much so that the version credible is that of the state which I prefer over and above that of the accused that he merely assaulted the accused because he was angry that She was drunk and drinking. In the assessment of logic common sense and consistency in evidence, the accused unsworn evidence does not stand the important tests for credibility of testimony. His version is short and untested by examination. Which is not of the State case and evidence. Material evidence relied have in both cases being tested out. And in my view stood out the tests because there are no serious unexplained inconsistency in evidence and evidence not in keeping with logic and common sense, which are basis for rejection of such evidence. In my view these are not the case against witnesses of the State but is the case for the defence, the unsworn statement from the dock as I have set out above. His evidence suffers that fate, Kandakason v The State [1998] PGSC 20; SC558 (7 July 1998); Waranaka v Dusava [2009] PGSC 11; SC980 (8 July 2009). And I reject his evidence in total and accept that of the State as credible and the truth in the case.
25. Which in my view leaves no other reasonable hypothesis open on the evidence other than that the accused Lawrence Kaski is guilty of aggravated rape committed upon Milka Kaski between the 04^th and the 12^th day of May 2021 at Bukbuk Street Newtown, Madang Province. He did not obtain her consent to penetrate his penis into her vagina contrary to section 347A of the Code. He had assaulted her grievously with the pinch bar causing her grievous bodily harm. She was in no position to give her consent because of the injuries suffered and he took advantage and penetrated her vagina with his penis. He committed the crime of rape pursuant to section 347 of the criminal code Act. I convict him and return a guilty verdict on count 1.
26. Further I return a guilty verdict on count 2 that he Lawrence Kaski on the 21^st day of May 2021 at Bukbuk Street, Newtown in Madang committed aggravated rape upon Milka Kaski when he sexually penetrated her. He inserted his penis into her vagina and had sexual intercourse with her contrary to section 347A of the Code. She did not consent to the act. She was overborne by the assaults that he inflicted upon her with the knife when he stabbed her culminating in the injuries that were seen evidenced by the medical report under hand of Doctor Vero Agua.
27. The accused has breached the provisions of section 347 of the Criminal Code Act of committing rape contrary in both counts alleged. I find him guilty of aggravated rape pursuant in both counts and convict him. I return a guilty verdict on both counts to the Indictment against the Accused.
    
28. I order the refund of his bail moneys and he is remanded in custody to await the sentence of the court forthwith.

________________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for the Defendant