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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR No. 676 OF 2019
THE STATE
AND
SIMON BENGUMA
(NO 1)
Lae: Polume-Kiele
2021: 17th February, 3rd March, 12th & 30th April,12th May 1st ,19th, 21st & 28th July, 2nd & 3rd August, 1st September,
1st & 10th October, 29th November, 8th December,
2022: 23rd February
CRIMINAL LAW – Trial – Accused indicted on one count of - Sexual touching, of a child under the age of 16 years old - s 229B (1) (4) (a) (5), Criminal Code Act, Division IV.2A - Sexual Offences Against Children) Act as amended; and one count of - Sexual penetration of a child contrary to Section 229A (1) (2) and (3), of the Criminal Code (Sexual Offences Against Children) Act as amended.
CRIMINAL LAW – offence – sexual penetration of a female child under 16 years of age – s 229A (1) (2) (3) – child 10 years old – whether there exists a relationship of trust, authority or dependency – s 6a(2)(b) definition considered
PRACTICE & PROCEDURE – evidence – general denial – rule in Browne and Dunn – full version of facts relied by the defence to be put to prosecution witnesses - consequential effect for breach of the rule
CRIMINAL LAW – evidence –evidence of recent complaint of sexual nature – its reliability - evidence of child witness – requirement for competency test – s 6 of oaths, affirmation and statutory declarations act ch.317 considered - corroboration is no longer a requirement, s 229h of criminal code considered – child’s evidence to be treated with caution.
CRIMINAL LAW - Ruling on verdict - Accused engaged in act of sexual touching, of a child under the age of 16 years old - s 229B (1) (4) (a) (5), Criminal Code Act, Division IV.2A - Sexual Offences Against Children) Act as amended; and sexual penetration of child under age of 16 years old – to Section 229A (1) (2) and (3), of the Criminal Code (Sexual Offences Against Children) Act as amended - Elements of offence proven beyond reasonable doubt -Corroboration not necessary - Verdict of guilty returned
Brief Facts
The accused Simon Benguma aged 52 is charged with one count of engaging in an act sexually touching of a child under the age of 16 years old under s 299B (1) (4) (a) (5) Criminal Code Act, Division IV.2A - Sexual Offences Against Children) Act as amended; and one count of engaging in an act of sexual penetration of a child under the age of 16 years under s 299A (1) (2) and (3) of the Criminal Code (Sexual Offences Against Children) Act as amended.
Cases Cited
Java Johnson Beraro v The State [1988-89] PNGLR 562
The State v. Cosmos Kutau Kitawal & Anor (No 1) (2002) N2266
The State v Paka [2016] N6914
State v Jubin [2018] PGNC 571; N7726
The State v Panut [2019] PGNC 71; N7731
Counsel
Ms. S Joseph, for the State
Mr. C Boku, for the Accused
RULING ON VERDICT
23rd February 2022
is guilty of a crime.
Penalty: Subject to Subsections (4) and (5), imprisonment for a term of not exceeding seven years.
(2) For the purposes of this Section, “sexual parts” include the genital area, groin, buttocks or breasts of a person.
(3) For the purposes of this Section, a person touches another person if he touches the other person with his body or with an object manipulated by that person.
(4) If the child is under the age of 12 years, an offender under Subsection (1) is guilty of a crime and is liable to imprisonment for a term not exceeding 12 years.
(5) If, at the time of the offence, there was an existing relationship of trust, authority of dependency between the accused and the child, an offender against Subsection (1) is guilty of a crime and is liable to imprisonment for a term not exceeding 12 years.
Section 229A - SEXUAL PENETRATION 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 Subsections (2) and (3), imprisonment for a term not exceeding 25 years.
(2) If the child is under the age of 12 years, an offender against Subsection (1) is guilty of a crime and is liable, subject to Section 19, to imprisonment for life.
(3) If, at the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and the child, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.
The charges
Count 1
Count 2
The maximum penalty is imprisonment for a term not exceeding 25 years as prescribed under Subsection (1).
"When the expression "sexual penetration" or "sexually penetrates" are used in the definition of an offence, the 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."
"On a charge of an offence against any provision of this Division, [i.e., Division IV.2A, sexual offences against children] 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."
The State’s case.
Given these matters, the State submits that it has established beyond reasonable doubt the elements of the offences of one count of sexual touching contrary to Section 229B (1) (4) (a) (5) and one count of sexual penetration of a child contrary to Section 229A (1) (2) and (3) of the Criminal Code (Sexual Offences Against Children) Act as amended.
Issue
When the expression "sexual penetration" or "sexually penetrates" are used in the definition of an offence, the 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.
The State evidence.
(1) Documentary Evidence
(2) Oral Evidence
(A) The complainant: SP
Examination in Chief
Preliminary:
18. An application was made under Section 37B (2) (a) (b) of the Evidence Act for the use of a screen to prevent the complainant from seeing the face of the accused and the presence of a support person to seat with the witness when she is giving evidence; the application was granted. The State made the application under Section 6 of the Oaths, Affirmations and Statutory Declarations Act and the celebrated case of Java Johnson Beraro v The State [1988-89] PNGLR 562 to determine the competency of the child witness. The child witness answered questions accordingly that were put to her and when she was asked as to whether she understood the importance of telling the truth; she told the Court that she is a Christian and she and her family attend Church on Sunday. She said the Bible is the word of God and if we tell lies God will not bless us. The Court considered that the child is competent witness, and the witness was sworn to give sworn evidence.
19. The witness gave sworn oral evidence and identified herself by name as SP. She is 12 years old during the trial. She attends Church with her family at the AOG. She is of mixed parentage, East New Britain, and East Sepik Provinces. She comes from a family of 4 (two brothers and one sister). She was born on 13 March 2009. She states that on March 13th, 2019, she had lunch during the lunch hour break, at 12 o’clock and went back into the classroom after lunch. Whilst she was inside the classroom, at around 2:00 p.m. the Principal of the school, Simon Benguma approached her and told her to follow him to his office to print her schoolwork, so she followed him into his office. He took her into his room and told her to remove her trousers. He told her to go and sleep on the bed. He put his finger on her vagina and was rubbing her vagina with his fingers. He further put his penis into her vagina and was rubbing it. When he had finished, he told her to go back to the classroom. She then returned to the classroom and class was normal.
20. She also gave evidence that the name of the principal is Simon Benguma, and the name of the school is Morobe Christian College. In 2019, she was a student attending Morobe Christian College and doing Grade 4. Her teacher’s name is Mrs Vura. She gave evidence that she did not tell anyone of what the accused, Simon Benguma did to her, except her mother. She told her mother at around 10 o’clock in the night, on the same day. Upon hearing of her ordeal, her mother was shocked for some time and later her mother called her small mothers at the Compound and they came to the house. The mother and her sisters went on the same night to the accused’s house and fought with him. The matter was reported to the police on the same night. The next day, she was taken to the family support centre at the Angau Memorial Hospital for a medical check-up and she told her story to the nurse. She also gave evidence that when she left the classroom Mrs Vura was inside the classroom. The accused, Simon Benguma did not ask the teacher’s permissions before taking her out of the classroom and she does not know whether Mrs Vura saw her leave the classroom with the accused, Simon Benguma.
Cross Examination
21. The complainant was cross-examined on her evidence. When put to her that her mother and small mothers had gone to the school on the same night, she agreed that her mother called her small mothers, and they went to the school that same night. She also agreed that her mother and small mothers went and fought with the Principal. However, when put to her that on the 13th of March 2019 her school was trying out uniforms, the complainant disagreed that the school was trying out uniforms that day.
22. When put to her if Mrs Vura was her class teacher, she agreed that Mrs Vura is her class teacher. It was then put to her that Mrs Vura will be coming into the Court and tell the Court that on that day, the school was trying out uniforms and she is lying to the Court when she said they were not trying out uniforms; the witness took her time to answer the question. At this juncture, the Court assured the witness to tell her story and assured her that she can either answer the question or not to answer the question; the witness told the court that she will not answer the question.
23. Overall, when cross-examined as to what grade she was in in 2019, she told the Court that in 2019 she was doing her grade 4, and there are other grades from 5 to 12 in that school. She also told the Court that the school starts with students from grades 1 to 12, and even Prep school and that the school is inside the residential area and that on this day, Wednesday all the teachers and students were present.
24. When put to her if the classroom is connected to the building or house of Mr Benguma, she responded yes. When queried as to the layout of the classroom; the witness told the Court that the classroom is joined to the office. The witness gave evidence that estimated distance from the classroom and the office would from the witness stand to the bar table. She agreed that at all times her classmates were in the classroom. She further agreed that Mrs Vura would also be in the classroom.
25. When questioned as to who picked her up from school, She agreed that her aunty Linda Ganjal picked her up after school at 3:00 p.m. and that when she went home, she told her mother about what happened at around 10:00 p.m. she told her mother she did not want to go back to school.
26. It was then put to her that the reason why she did not want to go back to school is because that day all her classmates uniform fitted well and hers did not fit. Your size is the largest, size 34 and that was the reason you did not want to go back to school; she answered ‘No’. She was probed as to why she did not tell her aunty; she told the Court she was afraid. She was probed as to what actually happened at the Clinic; she told the Court that her mother took her to the hospital, and they checked her. She was asked as to who gave the story to the Nurse; she told the Court ‘Me’. She agreed that Simon Benguma’s wife is her aunty, and she is her mother’s cousin sister.
Re-examination
27. On re-examination, it was put to her if she could recall the incident, she said that she recalled that around 2:00 p.m. Simon Benguma asked her to leave the classroom. When she left the classroom Mrs Vura was inside the classroom. Mr Benguma did not ask the teacher’s permissions before taking her out of the classroom. She does not know whether Mrs Vura saw her leave the classroom with Mr Benguma
(1) Nurse Tunu Osano
28. The next witness called by the State is Nurse, Tunu Osano, a registered nurse attached with the Family Support Centre here at the Angau Memorial General Hospital. She has been employed with the Angau Memorial General Hospital since 2004. She obtained her Certificate in Nursing at Goroka Nursing College in 1999 and also has a Bachelor’s degree in Mental Health Nursing. She graduated in 2016 from the University of Papua New Guinea. Nurse Osano gave evidence that on the 14th of March 2019 she saw the patient in this case SP (hereinafter referred to as the patient), a female of 10 years old. She gave evidence that during the consultation session, the victim, SP told her that and she quotes:
“Mr Benguma askim mi long bihainim em go long ofis. Mi ting olsem em laikim mi long helpim em long printim ol skul wok blong mi so mi bihainim em go. Em kisim me go long rum blong em na passim dua. Em tokim mi long passim ai na me passim. Em rausis trasis blong em na blong me tu. Em putim bol blo em long pispis blong me na rabim go kam. Em tok noken tokim mami na dadi. Bai ol kam paitim mi.”
29. Nurse Osano gave evidence that because of due protocol she did two examinations: physical and genital. Because the patient did say that she sustained injuries on her genitals, Nurse Osano also did a genital examination. Her finding of the genital examination is disclosed in a Medical Report which she prepared and is dated 8 April 2019 and was tendered into evidence and marked as (Exhibit “1”). The observations from the medical examination are set out below as follows:
Genital Examination:
30. She observed the following:
31. The witness gave evidence that the genital area of a female is in a circle so when an examination is done of the genital area, their findings will be made in relation to that circle as a clock reading. In her evidence, she stated that upon examination of the genital area, she noted that there were abrasions at 1 o’clock which extended to 4 o’clock and further from 7 o’clock position extending to 12 o’clock. She testified that all these ‘abrasions’ are noted at the inner vulva of the Complainant. She gave evidence and explained that the “hymen thin and stretched” as to that of a normal hymen as in a virgin hymen which would show the tissue as being thick and untouched but for this patient, she testified that it was “thin and stretched.” Given her findings, it is her medical opinion that when a “hymen is thing and stretched”, it and when such occurs, it means that force had been applied and the hymen can either be torn or become thin and stretched. The witness gave evidence that in the case of SP, her findings of “hymen thin and stretched” is consistent with the patient’s story as to what happened to her.
32. Nurse Osano also gave evidence and explained the ‘moist’ on the vagina was a result of the serum on the abrasions which caused it. She also explained that the Medical Report was compiled on 8 April 2019, about three (3) weeks from when she did the examination on the 14/03/19 due to shortage of manpower. Her findings and details of the patient, SP are correct. She has not mistaken and confused the patient, SP with another. The Hospital keeps records of their patients. There is no confusion. Nurse Osano gave evidence that her examination details of the patient are correct and that the medical findings were consistent with the victim’s story. She also testified that the patient, SP is still a child, she has not reach puberty and it is unusual for her vaginal opening to be “moist” although she agreed that the genital area is a sensitive area. In her evidence she reiterates that the “moist” on the genital was a result of the abrasions; abrasions which are right inside the vaginal area. The abrasions are not caused by wearing tight underwear because the injuries are right inside the vagina. The abrasions are not also due to the chubbiness or lack of hygiene nor self-inflicted. Nurse Osano also gave evidence that no second opinion was required as she is the senior Nurse on duty and so did the medical examination herself in the presence of the mother.
(2) Sister Sarah Wagang Kasa
33. Sister Sarah Wagang Kasa is another medical person called by the State. Sister Kasa gave evidence that she is a medical Nurse with the Family Support Centre here at the Angau Memorial Hospital. She is a Child Trauma Specialist attached to the Family Support Centre since 2013. She obtained her Certificate in General Nursing from the Rabaul School of Nursing in 1992 and practiced as a General Nurse until 2018 when she obtained a Bachelor’s degree in clinical Mental Health at University of Papua New Guinea. She also has completed an online course with the Asthwort College in Atlanta and successfully obtained a Degree in Psychology.
34. Sister Kasa gave evidence that as Child Trauma Specialist she attends to child sexual abuse and intimate partner domestic violence. Her work schedule commences from 8 a.m. to 4 p.m. during weekdays. She also attends to work when she is rostered for weekend duties. She gave evidence that in 2019 she compiled a Victim Impact Report of one such victim, SP. Although the report is undated, the signature on the back of the report is her signature. The Victim Impact Report is marked as (“Exhibit 2”). She testified that the Victim Impact Report details the impact upon the survivor of an abuse that she had faced or gone through.
35. In this case, when she first saw the complainant, SP on the 14th of March 2019, at the Family Support Centre; the complainant did not speak as she was still in shock and traumatised by the incident. She was suffering from physical and psychological trauma. She was in tears, even after undergoing a medical examination. She also noted that the incident occurred on her birth and Sister Kasa noted that this date would not bring happy memories. she will have flashbacks. It was a very sad thing to happen to a young girl and she will live with it for the rest of her life. She also gave evidence that the counselling session continued on 15 March 2019. Her role in a counselling session is to give space, to empathise with those who have suffered from abuses such as this incident The sessions are held in private so that a client is able to express him/herself. The counsellor in these sessions do not ask questions that will re-traumatise the victim.
(2) Policeman Sergeant Birik Kamai
36. Sergeant Birik Kamai is the arresting officer. He has been a police officer for over 35 years. In 2019 he was attached with the Sexual Offence Squad, Lae Metropolitan. The witness gave evidence that as an investigator with the Sexual Offence Squad they deal with rape cases, involving children and adult victims. He gave evidence that he recalls a case against Simon Benguma, as he was the investigating officer and Policewoman Constable Alice Gwabiru was the corroborator in that case. Sergeant Birik identified the document “Rekot Blong Intaviu” as the record of interview between himself, the accused Simon Benguma and the corroborator, Policewoman Constable Alice Gwabiru (“Exhibit 4”). He agreed that the record of interview was conducted on the 15th of March 2019. He gave evidence that his Statement was typed right after the interview, that is 15th March 2019 (“Exhibit 3”). The record of interview was conducted in Pidgin Language. Sergeant Birik Kamai stated that on the 15th March 2021 he approached the corroborator policewoman constable Alice Gwabiru to corroborate the record of interview between the accused Simon Benguma and himself at 1:30 p.m. Sergeant Birik also confirmed that before they commenced the interview, he asked the accused as to what language he preferred to be used during the interview and the accused chose Pidgin Language.
37. During the interview, the accused told the witness that he understood the Pidgin Language and so the witness introduced himself, the corroborator, and the offence in which the accused was charged with. Sergeant Birik Kamai gave evidence that he read to the accused his Constitutional Rights and the accused exercised that right when he spoke with his lawyer Mr. Emmanuel Mambei and his brother. The record of interview was suspended, and the accused was allowed to speak with his lawyer and brother. In his evidence, Sergeant Birik Kamai stated that the record of interview resumed after the accused had spoken with his lawyer and brother. Questions put to the accused were based on the sexual allegations against the accused in relation to the offence. The victim was a student in his school, the school is self-run and the school principal is the accused. Sergeant Birik Kamai gave evidence that after the accused read the record of interview, he denied committing the offence. The accused, Simon Benguma told the witness that he only brought the victim into office for sizing of the school uniform. The accused, Simon Benguma told Sergeant Birik Kamai that he is innocent until proven guilty before a Court of Law. Sergeant Birik Kamai stated that the accused signed the record of interview at his own free will when he was given the copy for him to sign.
Sergeant Birik was not cross-examined.
Agnes Poimat
Examination in Chief
38. The next witness called was the complainant’s mother, Agnes Poimat. In her evidence, she stated that she is married to Matthew Poimat. They have four children: LP, SP, JM and LP. She gave evidence that her daughter SP was born on the 13 of March 2009 at Angau General Hospital, Lae.
39. She gave evidence that on the evening of March 13,2019, she noticed that her daughter appeared weak, and she asked her daughter whether she was sick, and her daughter told her that she was tired. The witness gave evidence that when her daughter told her that she was tired, she told her daughter to lie down outside the veranda whilst she prepared dinner. When dinner was ready, she called out to her daughter SP to go eat but she told her mother that she was not hungry. When the family has finished their dinner, the witness went to have her bathe. When she came out her daughter told her that she wanted to use the toilet, so she took her to the toilet outside and waited for her. This was because the toilet was outside of the family home. After using the toilet, the complainant joined her mother and they both sat outside. She gave evidence that her daughter told her that she didn’t want to go back to school. The witness asked her daughter whether she was being bullied at school or her teacher scold or hit her, the witness asked her daughter the same question three times and her daughter told her that the principal Simon Benguma took her into his office, and this is what she told her mother (witness) and translated by the mother.
“em kisim mi go insait long rum blong em, em tokim mi long passim eye an em tokim mi long rausim trousers blong mi na sleep long bed. Simon Benguma rausim trousers blong em na rabim pispis blong em long pispis blong mi (SP).”
40. The witness gave evidence that when she heard what her daughter told her, she was shocked for a while and later, she called her small sisters at the Compound and asked them to go over to her place so they can take her daughter to the hospital. She told her sister what Simon Benguma did to her daughter. She also called her husband who was at the Church to come home.
41. The witness gave evidence that she called the accused and questioned him as to what he did to her daughter, so she and her husband went over to his house with their families and her husband assaulted the accused. After they assaulted him, they went to the police station and reported the matter. The arrest did not eventuate that night, so the witness was told by one policewoman Sonia to not wash her daughter and bring her to the Family Support Centre the next day.
42. The witness gave evidence that after the nurse lady obtained the report, she called her, and she was present when the nurse conducted the medical examination on her daughter. The witness gave evidence that after the medical examination, she was told by the nurse to put a police report and have Simon Benguma arrested. The witness’s husband accompanied a couple of police officers, and they went and apprehended the accused and took him into police custody. She was at the police station when the accused was taken into custody. The witness gave evidence that the accused Simon is the Principal of Morobe Christian College and at the same time she will refer to him as uncle as he is married to her aunty. The witness gave evidence that the accused Simon is married to her aunty; Simon’s wife is the witness dad’s sister. Simon Benguma is not a stranger; the witness and her family attend the same church at the Assembly of God (AOG) as the accused prior to the accused marrying her aunty. Close association with the family through church and marriage. The witness gave evidence that in 2019 the accused Simon Benguma was the Principal of the Morobe Christian College. She further gave evidence on the 13th of March 2019 her daughter told her that Simon Benguma sexually abused her. The witness identified and pointed to the accused as the person who allegedly sexually abused her daughter, as Simon Benguma her uncle and the Principal of Morobe Christian College.
Cross-Examination
43. At cross-examination, questions were put to the witness as to what time her daughter reported the matter to her, and she told the court that it was between 8 and 9 p.m. She agreed that she called her sister Barbra that night. She further agreed that she called them to assist her to get her daughter to Angau. When she was probed as to what her daughter told her, either Simon removed her clothes or she herself removed her clothes and the witness told the Court that her daughter told her that the accused told the daughter to close her eyes, remove her trousers and sleep on the bed. When the witness was probed as to who actually removed the complainant’s clothes; the witness told the Court that Simon told her daughter to remove her trousers and her daughter did as she was told. It was put to her that at the time she reported to the police station the policewoman told her not to wash the little girl, but she disobeyed the instructions and went ahead to wash the complainant; the witness became confused, and the Court told the Defence Counsel that the witness is now before the Court and giving her evidence. Her evidence is hearsay as to what the victim told her. Also, at the time the witness gave evidence to the police she was at an emotional state.
44. Defence at this juncture addressed the Court that their Defence is for ulterior motives and so he is questioning the mother of the victim regarding this allegation. The Court reminded him that this Defence could go both ways. The witness agreed that she will refer to the accused as an uncle. The witness further agrees that in 2007 he knows the accused Simon. It was pointed out to the witness that in 2007 she accused Simon of having an affair with Daphne; she told the Court that Simon’s wife Scholar Benguma went to her house and told them of that affair. Defence again put the argument of 2007 to the witness and the Court interjected and asked as to the relevance of the questions; Defence Counsel pointed out that that was when the animosity started. When the witness was probed as what she thought of Simon back then; the witness told the Court that we were upset and angry because what Simon did was wrong. The Court asked the witness whether the issue was resolved; the witness told the Court that she was living at Abel Tasman Street at the time and so she does not know if they resolved the matter. She also told the Court that she was not involved. She told the Court that she has three (3) children attending Morobe Christian College; S, J and Linden from 2018 to 2019 however after the incident she had them all transferred out. It was put to her whether she as a parent knew that at that week the school was taking measurements for school uniform; she told the Court ‘no’. She told the Court that her daughter never mentioned anything about uniform to her. She agreed that she gave her statement to the police in the morning.
No re-examination
The proven facts
45. The State submits that in ascertaining the guilt of the accused, in both offences the following elements are crucial for the State to establish beyond reasonable doubt that:
(i) The Accused, Simon Benguma
(ii) The accused for sexual purposes touched with his finger, penis or using any objects to touch the sexual parts of a child;
(iii) the accused engaged in an act of sexual penetration with another person; and
(iv) the other person was a child under the aged of 16 years.
46. In this present case, the State submits that elements (i) and (iv) of both offence and the circumstances of aggravation are not contested by the defence. It is agreed that the complainant was 10 years old at the time. Further, a relationship of trust existed as the accused Simon Benguma was the school principal (a relationship of trust under Section 6A (2)(d)).
47. Thus, the only issue remaining for determination is whether the accused engaged in an act of sexual touching and sexual penetration with the complainant. Hence, the State bears the onus of proving this beyond reasonable doubt. In order to determine the guilt of the accused, the issue for the Court to decide is who to believe. Ms Joseph submitted that the evidence provided by the state witnesses were consistent and complimented the injuries sustained by the complainant on her genitalia as noted in the Medical Report dated the 8 April 2019 which was prepared by Sr. Tunu Osano of Family Support Centre. The State submits all element of both offences have been established beyond any doubt as opposed to the Defence’s evidence which she states is dubious, contradictory, and unbelievable and the demeanour of all defence witnesses was appalling. The defence evidence should not be believed.
Oral evidence from Defence
Examination in Chief
48. The witness stated that his name is Simon Benguma. He is 52 years old and has been involved in Private education since 1992. By Private Education he referred to schools that are not part of the National Education, but they also provide education services to the public. He confirmed that he is the Principal of Morobe Christian College here in Lae. He registered that school in 2001. The school is currently located at his residence at Papuan Compound. The land space is about 30 meters in length and 18 meters wide. The school area is fenced.
49. On the day in question, 13th of March 2019, was a Wednesday. He states that every Wednesdays they do school service until 10 o’clock. He states however, that on this particular week, he gave priority to students to size their school uniform. Students were trying out uniforms from sample uniforms at the school so they can confirm their sizes prior to making purchases. The reason was because they were ordering from the Asian shops. On this particular day, it was allocated to female students to try out skirt trousers. He gave evidence that he designated that responsibility to a senior teacher namely Mrs Vura, her first name is Mary. She was assisted by her female colleague staff. The witness went on further to say that in 2019 there were 4 female teachers and 3 male teachers including him employed by the school. They teach pre-school to grade 12 students enrolled at the school.
50. He gave evidence that on this day, 13 March 2019, when the students were trying out uniforms, he was in class. The trying or sizing of uniforms went from 10:30 a.m. to almost 12:00 o’clock and continued from 1 o’clock to 2:50 p.m. After they tried all the uniforms Mrs Vura had a list of students and their sizes, she told him that all the other students fitted well except for the complainant. Because of her size, size 30 could not fit her and she told him that they did not try all the other sizes which is size 32 and size 34 so he told her to try these sizes. He gave evidence that he gave the three sizes uniform to the complainant, she went in, and he told her whichever uniform fits her she would let him know. The complainant took the uniforms and went into the office further into the living room and she tried the uniform, he apologised and said at that time he was in the classroom outside his office. After she tried the uniform, he asked her what size fitted her and she told him that size 34 but is quite loose and is big. He told the complainant that today is the last day of sizing uniforms, and the complainant told him that size 34 is quite loose and too big for her. She was trying the big size of 34 but it was longer than her height. However, the complainant later told him that size 34 is okay for her. All that occurred within a span of 3-4 minutes.
51. At around 10:50, he apologised again and said 2:50 p.m. she left her uniform with him, and he asked her about her schoolwork and how she is doing in school. The complainant’s history in school is that she is a slow child, she came to their school in 2018 at the third quarter with difficulties especially reading difficulties. She asked her about her schoolwork just to find out how well she is doing. She told him that she is only working on Maths, and she left to be with her class and teacher. He left to be with the parents who were there to pick up the students.
52. At that time some of the parents were at the back of the classroom. The classroom is basically adjacent to the building and is open. Open in the sense that it was sort of a wing, they adjust it to the building.
53. He gave evidence that the office is adjacent to the building.
54. He normally sees the parents every afternoon when they come to pick up their children and make small talks with them, to get to know them. He went to talk with the parents, the classroom was 3-4 meters away and by then the complainant was already in the classroom. As he approached the parents, he met complainant’s aunty Linda and younger sister Buida, they were among the parents waiting to pick up their children. Only the complainant and Junior were in school, the last time he remembered the complainant was chasing a black puppy dog with another student.
55. They normally finish school at 3:00 p.m. but students leave when their parents come to pick them up. After school he did not go anywhere, he was in the house within the school yard from morning till evening. After the students were dismissed and teachers left at 4:00 p.m. which is normal closing time, he remained that evening till night. It was precisely 10:57 p.m. Agnes called him on the phone and said “what did you do to my daughter? wait” and she hung up. At that time, he was sitting on the front of the classroom and close to the road at the street. At 11:00 p.m. he saw a group of people suddenly approach the school and close to where he was, without a word they used a rod to hit him three times. There was not much discussion just that 5 men assaulted him and kicking him with boots and other objects.
56. He told the Court that whilst they were assaulting him, they kept on calling out ‘pamuk man’ ‘kok blong you wokim long bikpla go na now you wokim long liklik’. He was unconscious and didn’t know anything when the neighbours came, and they all left. When he regained consciousness, they treated him with hot water, and he laid on the bed till morning. At about 2:30 p.m. on the 14th of March a police car with a known civilian policeman went to his house to see him, he could barely walk but the officer was already at the front door. Police Officer Paul Wambine told him that he is required to go down to the police station.
57. The witness went to the police station there was a crowd of people waiting there as he was escorted inside. He was led into the Sexual Offences Squad, and he met Birik Kamai. Birik Kamai informed him of the allegations against him and detained him. He was detained on the 14th of March and Policeman Kamai interviewed him on the next day
58. It was put to him that the allegations against him was that on the 13th of March 2019 he sexually assaulted Stephanie Poimat, and having heard the evidence from the complainant herself, what does he have to say; he told the Court that the allegations is not true. It was put out to him that why a little girl would make such a story; he told the Court he does not understand why such allegations would be made against him.
Cross Examination
59. Upon cross-examination, he agreed that he is the Principal of Morobe Christian College. On Wednesday the 13th of March 2019 when he took the complainant out of the class, he agreed that Mrs Vura was there. He agreed that he sought permission from Mrs Vura before taking her out of the classroom. He agreed that it was just the two of them in the office. He disagreed that he told her to remove her skirt. He disagreed that he told her to remove her clothes. When it was put to her that she told the complainant to lie on the bed; he said no. When it was put to him that the complainant did as she was told because she was afraid of him; he said no. When it was put to him that for sexual purposes, he used his fingers to rub the complainant’s vagina; he said no.
60. When it was put to him that he not only used his fingers, but further used his penis to rub on the complainant’s vagina; he said no. When it was put to him that he took advantage of the complainant and he put his penis into her vagina; he asked Counsel to rephrase. The Court took notice of the witness pretence and told Counsel need not rephrase as he understood the question. When it was put to him that he was assaulted, why didn’t he provide medical evidence to support the evidence he’s giving before the Court; he said he was badly assaulted and taken to the police station. He was probed as to what grade the complainant was in; he said grade 4. He agreed that the complainant is not a stranger to her. When the allegations were out to him; he denied all the allegations that the State has put to him. He agreed that he was the principal for Morobe Christian College in 2019. He agreed that the complainant would refer to her as grandfather.
No re-examination
Mary Vura
Examination In Chief
61. Mary Vura gave evidence that she is a teacher at the Morobe Christian College and in 2019 she was class teacher of the complainant. She was teaching the lower primary, that is grades 1 to 3 and 4 to 6. She stated that on the 13th of March 2019 the Principal, Mr Simon Benguma asked her to take the measurement for the girls for their school uniform. She took uniform measurement from the waist, length, and sleeves for the girls. For the complainant, she took the measurement, and she recalled that the complainant is a chubby girl, and all the sizes could not fit her. When she could not find her size, she told the Principal. The Principal told her to speed up the measurements so they can take it to the Chinese shops at Town and Market.
62. She gave evidence that the whole day she was in school, she did not go out for lunch either. At 2:45 pm, she stopped taking measurements and went back to her class to dismiss her class after their Bible Drills. At all material times the complainant was inside the classroom. When she dismissed her class, she saw Mr Benguma talking to the parents outside.
63. It was put to her that the complainant came to Court and told this Court that she was not aware of uniform fitting week; the witness laughed and said she lying as that week was when uniform measurements were taken. She came back the next day and heard the students and teachers in small groups talking about what had happened the previous night, she went straight to the office and to where Mr Benguma was. She saw Mr Benguma was lying on the floor with bruises and she asked him what happened, and he just told her to run the school. She conducted Assembly and later advised teachers to not say anything and let the police do their job.
Cross-Examination
64. Mrs Vura was cross-examined on her evidence, and she states that she has 20-years of teaching experience. In 2019 she was teaching
at the Morobe Christian College. She supervises Grades 1 to 6, that is six grades. She has one assistant teacher and about 36 students
under her supervision; the youngest is 7 and the oldest is 10 years old. That ten-year-old student is a big boy in her class. She
does not know the age of the complainant.
.
65. When it was put to her that she was the class teacher and she knew about the other student’s age but not the complainant’s,
how is that; she laughed and said she only know of the boy’s age because he is related to John Rosso (Lae Open Member).
66. She gave evidence that at all material times she was taking measurements and she left the class with the Assistant teacher; she was not with the students the whole day Wednesday 13th March 2019 until 2:45 p.m. when she went over to dismiss the class.
67. She was adamant that at all material times, the students were in the classroom and Mr Benguma did not take the complainant out of the classroom, this is because she would have seen it as the classroom is joined to the office. It was put to her that Mr Benguma gave evidence that he approached her and asked her permission before taking the complainant out of the class to try her uniform, what does she have to say; she was evasive and did not answer the question.
68. At this juncture, the Court asked her to describe the area where she was seated and the Principal’s office, she told the Court all the buildings are joined together but partitioned by walls and a door. So, the question was if Simon Benguma took the complainant into the Office and closed the door, would she be able to see what was going on; the witness was evasive again. The Court asked her the third time whether she would be able to see what was going on in the office and she said “No”.
Re-examination
69. It was put to her that she was at the back of the classroom, she could have seen Mr Benguma and the complainant leave the classroom; she said nothing happened that time.
Dr Lucas Komnapi
Examination in Chief
70. Dr. Komnapi gave evidence that he is a doctor by profession, a specialist in Pathology for over 22 years. He has been Pathologist here at Angau Hospital since 2009. He identified a medical report that dated the 29 of October 2019, in that report he gave his opinion regarding the medical report of the complainant.
71. At this juncture, the Court asked him whether he was asked to give a second opinion; he answered yes. In his evidence, he was asked to give a second opinion on a medical report done by a Nurse. He agreed that it was a written report, and when the report was shown to him, he identified his signature and stamp. (Defence Exhibit A).
72. It was put to him that in such a medical finding by Sr. Osano, she found moist on the vaginal area. Defence put to her that moist was caused by stimulation, but the nurse said not it was caused by serum, what would be your opinion; he told the Court that in his opinion, the moisture was a result of the examination.
Cross-examination
73. Upon cross-examination, the witness was evasive when State put the question as to the process or procedures involved in obtaining a second opinion; It was then that the Court suggested to the witness that would it be fair to say that second opinions to medical conditions should come from a doctor in the same field? He agreed but went on to say that as a medical doctor he is also entitled to give second opinions. The Court asked him what the best medical approach would be, and would it be from the same area/field; he said he is entitled to give medical opinion on any medical issue. The Court put to him that he is a specialised pathologist; he answered yes pathology is the study of diseases, cause and effects and they do autopsies. The Court asked him that this is in relation to human specifically and not animals; he answered no.
74. He was probed as to whether or not he physically examined the complainant, the subject of his opinion; he answered ‘No’. His opinion was specifically based on the medical report by Sr. Osano. It was suggested to him that would it be fair to say that especially in this case, the second opinion should have come from a gynaecologist; he said a gynaecologist specialised in female uterus, vagina, cervix and all the female anatomy.
75. Questions regarding the opinion report on the findings were not put to him as the Court is aware and appreciate that he did not physically examine the patient, the complainant in this case.
No re-examination questions.
Analysis of evidence
76. The accused Simon Benguma is the principal of Morobe Christian College in 2019. The Complainant SP on 13 March 2019, the time of the offence was 10 years old and was a student attending Morobe Christian College. The School was located inside the accused’s premises at Sitos Street, Papua Compound.
77. On the 13 March 2019, the complainant was attending school and the accused told her to follow him to his office inside his house after lunch around 2:00 p.m. when the accused was alone with the complainant, he told her to remove her trousers and sleep on the bed. The accused for sexual purposes used his fingers to rub on the complainant’s vagina, and further used his penis to rub on the complainant’s vagina and put insert it inside her vagina.
78. Her evidence is corroborated by her mother, Agnes Poimat, who gave evidence of being told about the allegation of sexual assault on the evening of 13 March 2019, between 8 p.m. and 9 p.m. and having taken certain matters into her hands, but eventually reporting the matter to the Lae Police on the same night and being told to take her daughter to the Family Support Centre for a medical examination and report to be done which she did on the next day, which is on 14 March 2019. The accused, Simon Benguma was arrested and Sexual touching, of a child under the age of 16 years old - s 229B (1) (4) (a) (5), Criminal Code Act, Division IV.2A - Sexual Offences Against Children) Act as amended; and one count of - Sexual penetration of a child contrary to Section 229A (1) (2) and (3), of the Criminal Code (Sexual Offences Against Children) Act as amended.
79. It is overwhelmingly clear from the evidence adduced during trial that the accused, Simon Benguma and his two witnesses were not truthful in their oral evidence. Firstly, I note that the accused in his evidence gave detailed answers of the events of 13 March 2019 of what happened during the day regarding the measurement of the student’s uniform sizes, obtaining permission of the complainant’s class teacher, Mrs. Vura and taking the complainant from her class and being told of the uniform sizes which fitted, and which did not fit. In cross-examination, however, when the allegations were put to the accused, he became and was evasive in most questions. In fact, his demeanour was mischievous and arrogant and to a degree pretended that he did not understand the question put to him by Counsel as to whether he was in Court during his trial when the complainant gave evidence of her ordeal. He pretended that he did not understand the question and did in fact asked counsel for the State to rephrase the question put to him. I find this demeanour most mischievous and arrogant and disrespectful in the circumstances. It displays on two occasions did a smirk and prevented that he was not in Court when the complainant was giving evidence of her ordeal.
80. In regard to the Defence’s second witness Mrs Vura, I note that she gave a passionate account of her line of duty, her students and what transpired that day in her evidence, I find that her account of her task in taking uniform measurements for the students and passing these on to the principal, contradictory because, she did state and I quote”.
“She took uniform measurement from the waist, length and sleeves for the girls. For the complainant, she took the measurement and she recalled that the complainant is a chubby girl and all the sizes could not fit her”. When she could not find her size, she told the Principal. The Principal told her to speed up the measurements so they can take it to the Chinese shops at Town and Market” (Underlining mine).
81. I find that the above statement does not resonate with her evidence that she was taking measurements, and then finding out that all sizes could not fit her”. This statement to me means that all uniforms were ready made and were available for fitting.
82. Further and in addition, the accused gave evidence that he gave the three uniform sizes ((30, 32, 34) to the complainant, she went in (to the office or bedroom) ?? and he told her whichever uniform fits her she would let him know. The complainant took the uniforms and went into the office further into the living room and she tried the uniform, he apologised and said at that time he was in the classroom outside his office. After she tried the uniform, he asked her what size fitted her and she told him that size 34 but is quite loose and is big. He told the complainant that today is the last day of sizing uniforms, and the complainant told him that size 34 is quite loose and too big for her. She was trying the big size of 34 but it was longer than her height. However, the complainant later told him that size 34 is okay for her. All that occurred within a span of 3-4 minutes. At around 10:50, he apologised again and said 2:50 p.m. she left her uniform with him, and he asked her about her schoolwork and how she is doing in school. I find this evidence inconsistent, and it does not corroborate, Mrs. Vura’s evidence of taking measurements of all students, in the classroom from 10 a.m. to 2.30 p.m., on the 13 March 2019.
83. I am of the view that the evidence of the accused, does in fact, placed the complainant in the accused’s office within the living room, under his control and well away, from the supervision of Mrs. Vura. This evidence to me, corroborates the story of the complainant of being in the living room of the accused, at the material time of the alleged sexual assault.
84. Given this assessment, I am of the view that the evidence of the accused, Simon Benguma is dubious and unreliable. It is an afterthought, a fanciful story made to discredit the evidence of the complainant. I am of the view that if in fact, 13 March 2019, was a uniform sizing day, the evidence of Mrs Vura taking out measurements and finding out that no sizes fitted the complainant contradicts the accused’s evidence of giving the three sizes to the complainant and asking her to go further into the living room to try them on contradicted Mrs. Vura’s evidence. It is inconsistent. It shows that Mrs. Vura is not present in the office and living room during the measurement taking activity. Hence, I can safely say that common sense and logic test when applied to this scenario, places the accused being alone with the complainant in the living room or bedroom of his house. It is trite law that, common sense and logic plays a major role in determining whether a witness and therefore his evidence is credible. In The State v. Cosmos Kutau Kitawal & Anor (No 1) (2002) N2266: The Court stated:
“Logic and common sense do play an important part in either the rejection or otherwise of evidence before a court of law and
whether or not an accused person should be found guilty. In The State v. Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48, applying a logical and common-sense approach, the National Court found the defendants guilty of murder even when there was no evidence
directly showing that the defendants had killed the deceased. The Court proceeded to convict them, when the defendants’ failed
to provide a reasonable explanation for the appearance of the badly wounded deceased body in their house. On appeal, the Supreme
Court affirmed the National Court’s approach and dismissed the appeal: see Garitau Bonu & Rosanna Bonu v. The State (24/07/97
SC528 and Paulus Pawa v. The State [1981] PNGLR 498 for an earlier authority on point.”
85. It provides collaboration to the story of the complainant of being alone with the accused, in his living room, bedroom where
the alleged assault of sexual touching and sexual penetration took place as retold by the complainant in her evidence. Overall, I
find that the evidence of Mrs. Vura does give credence to the complainant’s story.
86. In regard to the third witness Dr Komnapi, his evidence was brief and even though he did not physically examine the patient, the complainant, he gave evidence that his second opinion was based on the medical report provided. He stated that the injuries were a result of poor hygiene and tight undergarment, which is contrary to the medical diagnosis given in the evidence of Sr. Tunu Osano.
87. All defence witnesses in their respective evidence have attacked the complainant child of lying. They insinuated that the complainant was fat and overweight, and she could not fit properly into any of the school uniforms purchased for the student of the school. Moreso, the accused, Simon Benguma and Mrs Vura implied that because she was fat and she did not fit into the normal school uniform whilst all the other students fitted properly, she was ashamed to go back to school. Furthermore, Dr Komnapi suggested that the injuries identified could have been the result of poor hygiene and tight undergarments contrary to the medical evidence given by Sr Osano.
88. Overall, I find that the evidence of the complainant is left untouched and unchallenged by the defence. It therefore stands. It is corroborated by the evidence of Sr Osano who testified of her findings that the injuries she noted during a genitalia examination were right inside the vagina. She was adamant that these injuries could not have been caused by poor hygiene or tight undergarments, it was due to sexual assault as recited by the complainant in her story to her.
Which version is the correct one?
89. Given these matters, I now have to decide whose evidence should this Court rely upon to arrive at a ruling? Should I rely on the evidence of the State witnesses or the accused person and his witnesses?
90. In order to arrive at a determination, I refer to the case of The State v Paka [2016] N6914, a case in which I had presided where the court when considering which evidence to rely upon or is credible stated that this depends on a number of factors:
“Firstly, the degree of logic and common sense usually plays a big part in this process including the demeanour and performance of the witnesses in the witness box and consistencies in their evidence as established in Garitau Bonu and Rosa Bonu v The State (1997) SC 528; Peter Waragu Waranaka v Gabriel Dusava (2009) SC 980.
Furthermore, having stated the above, it is equally important to note that a lying witness can also be forceful and convincing in their evidence and yet be lying; whilst on the other hand, a truthful witness can be so unconvincing in their appearance and yet be telling the truth. [see Andrew Palili v The State (2006) SC 848] Similarly there is no rule of law which states that the more witnesses called by a party and the more consistent or identical their stories given by that party must be correct version of what occurred and should be believed than the opposing party who called only one witness. [see State v Jacob Dugura Roy (2007) N3137]
The Complainant in the case of PAKA was a much more impressive witness than the accused. She gave her evidence clearly, calmly and directly whereas the accused was evasive.”
91. In assessing the evidence adduced during trial, it is obvious that the evidence of the accused person and the defence relied upon is completely dubious, unsatisfactory and cannot be believed at all as opposed to that of the State. Here, the accused, Simon Benguma gave evidence that he sought the permission from Mrs Vura before taking the student complainant. However, the evidence of the accused, Simon Benguma is contracted by the defence witness Mrs Vura, who stated that the complainant never left the classroom at all material times. In his evidence, the accused also stated that he took the complainant into his room (living room), he only took her into the living room to try the school uniform. He gave the three uniform sizes ((30, 32, 34) to the complainant, she went in (to the office or bedroom) ?? and he told her whichever uniform fits her she would let him know. The complainant took the uniforms and went into the office further into the living room and she tried the uniform. I also note that this evidence aligns with Question & Answer 20 of the Record of Interview dated 15 March 2019. In this regard, there is an inference that the complainant had been taken to the house of the accused, to try on uniform in the absence of Mrs Vura, such evidence collaborates the evidence of the complainant that she was taken to the house of the accused, asked to take off her clothes and whatever occurred thereafter, gives weight to the complainant’s evidence and the allegations raised by the State. This evidence also contradicts Mrs Vura’s evidence in which she stated that all the students were measured and tried their uniforms in her presence.
92. I also note that in Questions & Answers 22 and 23, the accused had told the police that the complainant was inside the room and he pushed open the door to the room, he apologised to the complainant and told her to stand up and took her back to the classroom. These questions and answers do imply that the complainant was inside the accused’s private quarters, for whatever reasons, this he did not elaborate on as his answers to questions put to him were evasive and dismissive, however, one thing, is certain is that this evidence corroborated with what the complainant told the Court, that the Principal Simon Benguma sometime around 2:00 p.m. took her into his office and into his room and sexually abused her by touching her vagina with his fingers and rubbing his penis on her vagina and putting his penis into her vagina.
93. The accused also had not explained or refute the victim’s evidence that he penetrated her vagina with his penis on 13 March 2019 in his room, except to say that the complainant’s evidence is untrue. Given, this evidence, I can safely conclude that the accused’s general denial of sexual touching and sexual penetration is unbelievable and is rejected. In fact, when put to him by State Counsel that he was in Court, when the complainant was giving her evidence, he did not answer the question and requested that Counsel rephrase the question.
94. I also accept the evidence of the State witness Agnes Poimat, who told the Court that her daughter reported the matter to her on the night of 13 March 2019, at around 10:00 p.m. of the same day of the alleged offence. Having been told of the alleged offence, she immediately acted upon her daughter’s complaint and went straight to the accused’s house and confronted him. Agnes Poimat subsequently reported the matter to the police that same night and upon advice from the Police, she took her daughter to Angau Memorial Hospital for medical examination on the next day.
95. In the State v Jubin [2018] PGNC 571; N7726) the Court stated (per Susame AJ) that:
“29. ... “the evidence of recent complaint of sexual abuse is good admissible evidence, trustworthy and reliable.”
The Court went further and stated that
“At Common Law, evidence of recent complaint made at the earliest reasonable opportunity is admissible in sexual assault cases. Such evidence goes to the credibility and demeanour of complainant as a truthful person of the fact that she had been sexually assaulted. It is however, not admissible of the facts in issue such as consent if it is a central issue. (See Kilby v R [1973] 129 CLR.460). That Common Law principle has been recognized and adopted by the Supreme Court in Touramasong & Ors v The State [1978] PNGLR 337.”
96. This point was reiterated in the case of The State v Panut [2019] PGNC 71; N7731 where the Court (per Susame A.J at stated paragraph 28 that: “the evidence of recent sexual assault complainant may be considered good evidence the State may rely on to proving its case. It goes to credibility of a witness (s)...
97. The State submits that the evidence of all the State witnesses was truthful, consistent, and corroborated each and other. This is because the complainant reported the alleged offence to her mother hours after the offence, on the same date. The matter was reported to the police on the same night after they confronted the accused. The next day the complainant was taken to the hospital for examinations, and the accused was arrested on the same day.
98. Sr. Kasa also gave evidence that the trauma the victim suffered as a result of incident. She suffered physical trauma and psychological trauma, at the initial visit the victim could not speak she was still shocked and in tears. What happened to the little girl is unfortunate as the incident occurred on her birth date and for the rest of her life when her birth date comes around, she gets to be reminded of what happed to her in that year.
Analysis of the issues and evidence:
(1) What actually happened?
99. It is agreed that an incident involving the complainant and the accused occurred at the Morobe Christian School, Papuan Compound, Lae on 13 March 2019. However, there are two versions of what actually happened.
The complainant’s version
(2) The accused’s sworn testimony
100. In re-examination, Ms. Joseph for the State pointed out to the accused that he was the Principal of Morobe Christian College, he agreed to this proposition and that on Wednesday the 13th of March 2019 when he took the complainant out of the class, he agreed that Mrs Vura was there. He agreed that he sought permission from Mrs Vura before taking her out of the classroom. He agreed that it was just the two of them in the office. However, when suggested to him that that he told the complainant to remove her skirt. He disagreed that he told her to remove her clothes. When it was put to him that she told the complainant to lie on the bed; he said no. When it was put to him that the complainant did as she was told because she was afraid of him; he said no. When it was put to him that for sexual purposes, he used his fingers to rub the complainant’s vagina; he said no. When it was put to him that he not only used his fingers, but further used his penis to rub on the complainant’s vagina; he said no. When it was put to him that he took advantage of the complainant and he put his penis into her vagina; he asked Counsel to rephrase. The Court took notice of the witness pretence and told Counsel need not rephrase as he understood the question.
101. In addition, with regard to the statement made by the accused; he stated that he had had slept with the complainant and had sex with her with her consent, the complainant disowned that statement, saying that that sexual intercourse was without her consent and against her will and she stuck to her story.
(3) Which version is the correct one?
102. To determine which version of the stories is credible depends on a number of factors, I refer to an earlier judgment of mine in the case of The State v Mado Paka (2016) N6914. In that case, I stated that:
“Firstly, the degree of logic and common sense usually plays a big part in this process including the demeanour and performance of the witnesses in the witness box and consistencies in their evidence as established in Garitau Bonu and Rosa Bonu v The State (1997) SC 528; Peter Wararu Waranaka v Gabriel Dusava (2009) SC 980. Furthermore, having stated the above, it is equally important to note that a lying witness can also be forceful and convincing in their evidence and yet be lying; whilst on the other hand, a truthful witness can be so unconvincing in their story and appearance and yet be telling the truth (see Andrew Palili v The State (2006) SC 848. Similarly, there is also no rule of law which states that the more witnesses called by a party and the more consistent or identical stories given by that party must be correct version of what occurred and should be believed than the opposing party who called only one witness” (see The State v Jacob Dugura Roy (2007) N3137).
103. Applying the above analogy to this case, I find that the complainant was a much more impressive witness than the accused. She gave her evidence clearly, calmly and directly whereas the accused was evasive and dubious. The accused did not take the charge seriously. He perhaps thought that the child was incapable of standing up for herself even in court when giving evidence and recalling the ordeal through examination in chief and cross-examination. and could be intimidated by him or the lawyer asking questions. His demeanour was of arrogance and even had a sneer on his face at some stage whilst she was giving evidence. In fact, at one stage, when asked if he was in Court whilst the complainant was giving evidence, he deliberately, chose not to ask the question and asked Counsel for the State to rephrased the question. It displayed, his demeanour as to arrogance and disrespect and regard for the justice system. I perceived his demeanour as someone who believes that he is beyond reproach. The justice system will not have time to even consider, allegations raised by a child, such as the complainant, who had come to court and retelling her ordeal however, traumatic.
104. In this case, the complaint of sexual touching and sexual penetration was promptly reported to the Lae Police and a referral made to the Angau Memorial Hospital, Family and Sexual Support Centre as a sexual abuse and where a medical examination and report compiled.
105. The State relied on the sworn oral testimony of the complainant and the Police Record of Interview and Medical Reports which corroborates the complainant’s story. With regard to the issue of proof of age of the complainant, the complainant gave oral testimony as to her date of birth as the 13 March 2009, which testimony was corroborated by her mother.
106. The matter was reported as an allegation of sexual abuse against a child from the time that the information was lodged on or about 13 March 2019 and whilst this evidence does not by itself prove that sexual abuse took place or was attempted; it does support the complainant’s story. Consequently, I accept the complainant’s version of events as truthful and this court is satisfied that the complainant was under the age of 16 years old, (then aged 10 years) as her evidence relating to date of birth is corroborated.
107. I reject the accused’s evidence that the complainant nothing happened, consented to have sex with him as not credible.
108. With regard to the definition of sexual penetration in Section 6 of the Criminal Code, the accused did penetrate the complainant. He did insert his penis into her vagina.
109. Is the accused guilty of sexual touching under s 229B (1) (4) (a) (5) and one count of sexual penetration of a child contrary
to Section 229A (1) (2) and (3) of the Criminal Code (Sexual Offences Against Children) Act as amended as charged?
To answer the above question, I say that all the elements of both offences have been proven. First, the accused, engaged in an act
of sexual touching which began prior to the accused engaging in the sexual penetration of the child under the age of 16 years. His
intention began when he took the complainant to his office and to his room where for sexual purposes used his fingers and rubbed
it on complainant’s vagina; and secondly when the accused further sexually penetrated the complainant a child under the age
of 16 years by inserting his penis into her vagina and clearly intended to sexually penetrate her.
110. Having been satisfied that the prosecution has proven all the elements of the offence of sexual touching and sexual penetration beyond reasonable doubt, I find the accused, Simon Benguma guilty of the offence of one count of sexual touching under s 229B (1) (4) (a) (5) and one count of sexual penetration of a child contrary to Section 229A (1) (2) and (3) of the Criminal Code (Sexual Offences Against Children) Act as amended respectively.
Verdict
111. I return a verdict of guilty against the accused, Simon Benguma, for the offence of sexual touching and sexual penetration under s 229B (1) (4) (a) (5) and Section 229A (1) (2) and (3) of the Criminal Code (Sexual Offences Against Children) Act as amended respectively and enter a conviction for both counts accordingly.
Verdict accordingly
__________________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused
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