N11383
PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
CR 1096 & 1097  OF 2024

BETWEEN:

THE STATE

AND:
JAMES MOLO BAIGE (No 1) (Verdict)

LAE: Wawun-Kuvi, J
2025: 8, 9 & 15 July

TRIAL-DISPUTED FACTS-CREDIBILITY- Whether the accused sexually penetrated the child complainant by inserting his finger into her vagina? Who to believe?

Cases Cited
Agen v The State [2024] PGSC 93; SC2623
Waranaka v Dusava [2009] PGSC 11; SC980
Bonu and Bonu v The State [1997] PGSC 11; SC528 
Pari and Kaupa v The State [1993] PNGLR 173
State v Namaliu [2020] PGNC 75; N8284
State v Raphael Kuanande [1994] PNGLR 512

Legislation
Criminal Code

Counsel
E Kave, for the State
JO Steven, for the Accused

21 July 2025

DECISION
1.	WAWUN-KUVI, J: James Molo Baige (the accused) and the child complainant (LA) are known to each other. The accused was the security guard employed at the school where the child attended. 

2.	He now stands charged on two counts of sexual penetration in contravention of section 229A (1)(2) of the Criminal Code.

3.	The State alleges that on the first occasion, the child complainant went to school but was refused entry because she did not have the proper school shoes. The accused called her over to the guard house and told her to wait for her uncle there. While seated in the guard house, the accused approached her. He sat next to her and put his hand under her skirt and underwear and inserted his finger into her vagina. The complainant told him to stop because she felt pain.

4.	On the second occasion, the State alleges that they told her to wait for her uncle at the guard house. The accused followed her into the guard house and again inserted his finger into her vagina. At home, she cried and told her grandmother what the accused had done to her. She was taken to the hospital and later to the police station where a formal complaint was made.

5.	The accused denies that he sexually penetrated the child complainant.

6.	I must decide who to believe.

7.	
Burden of Proof
8.	The State bears the burden of proving its case beyond a reasonable doubt and disproving any defences properly raised on the evidence also beyond a reasonable doubt.

State’s Case
9.	The State called two witnesses and tendered the following documents by consent: 

1)	Exhibit S1 – Record of Interview dated 15 March 2024
2)	Exhibit S2- Statement of Constable Dorothy Lanku dated 15 March 2024
3)	Exhibit S3- Statement of Constable Alice Gwabiru dated 1 March 2024
4)	Exhibit S4- Affidavit of Dr Terrolyn Noese dated 13 March 2024 attaching the dental age determination report.
5)	Exhibit S5- Affidavit of Sr Sarah W Kasa dated 12 March 2024 attaching the medical report
6)	Exhibit S6-Statement of Constable Darra Okuk dated 16 March 2024
7)	Exhibit S7- Statement of Peter Tugua dated 16 March 2025
8)	Exhibit S8- Copy of 1st page of Clinic Book of (LA) reflecting birth details.

10.	LA. She went to school with her uncle to school. He also attends the same school. The accused called her over to the guard house. He asked her if her underarm hair had already grown. She responded and said no. He then asked her if the place where she pees already has hair. Again, she responded and said no. He took her to open her legs, and he inserted his finger into her vagina. He did this until her uncle arrived. He told her not to tell her parents. She went home and felt pain.

11.	On the next day, she again went to school. She wore sports shoes. The school only allows polished shoes. They arrived late at school. The head teacher was standing with the security guard. The head teacher did not see her shoes, but the security guard saw them. He told her to go sit at the guard house. She recalled what had happened to her the previous day and did not feel well. She told her uncle to head home but he said that they would stay. The accused then told her to open her legs, and he put his finger into her vagina. When her uncle came, the accused stopped. She wanted to go to class but the accused told her that she was being punished. Her uncle left with some boys to buy cigarettes, and the accused again inserted his finger into her vagina. Two little boys who had avoided the earlier inspection were noticed by the class teachers and went set out. The boys climbed onto the roof of the guard house. He started playing with her vagina again until her uncle came. When he left to check for a bus back home, the accused did the same thing again. He had stopped when the boys came down from the roof. He had done the same thing 4 times. He told her that when she goes home, she must not wash her underwear so that the hair on her vagina would grow. When she went home, she told her grandmother, and she told her grandfather. They then went to the hospital for help.

12.	She recalls that it was term 1 and she was in Grade 3. She says that the first occasion was on March 6, and the second occasion was the next day. The first occasion happened at about recess and the second occasion he did it from morning until afternoon.

13.	She stated that his finger was sharp, and she felt pain. 

14.	CROSS EXAMINATION: She confirmed that the guard house did not have a door, but it was raised like the witness box. She also confirmed that she was the only child with the accused. When asked about the boys, she said they did not comb their hair and went into the classroom. Their teachers sent them out. She agreed that they were at the guard house but started that they were on the roof. She agreed that it was not good for a man to insert his finger into a girl’s vagina.
 
15.	Finally, she answered “yes” when Ms Steven for the accused put the compounded question “the security guard did not insert his finger into your vagina because it is not good”

16.	RE-EXAMINATION: She explained that there are steps that lead up to the roof and the boys used the steps to go up to the roof. She confirmed that the security guard inserted his finger into her vagina. 

17.	QUESTION FROM THE COURT: To clarify the answer to the compounded question by Ms Steven, I asked the complainant what she meant when she said yes. She answered “it’s not good for a man to put a hand into a girl’s vagina because the law said no”

18.	BG: She is the complainant’s grandmother. She says that she her granddaughter reported to her what the accused did to her on the two occasions. She observed that her behaviour and appearance was unusual. When she contacted her husband and they took her to Angau Hospital. Noone attended to them, so they went to Forest Medical. Forest did not have the equipment to conduct the tests and so sent them back to Angau. They waited until10pm and left. On the next day, they went to Dr Vak. Dr Vak checked her and informed that there were scratches on her vagina. He gave a medical report which she gave to Constable Dorothy. They then took her to Angau. At Angau she was taken by the nurse from the Family Support Centre. 
 
19.	She was not cross examined.

20.	DARRA OKUK S6:  She is a police constable. On 8 March 2024, she received a complainant of sexual penetration from the child complainant. She recorded the complaint. She and Constable Peter Tuga went to the school, with the child complainant and her mother and apprehended the accused.

21.	PETER TUGA S7: His evidence is the same as Constable Darra Okuk.

22.	RECORD ON INTERVIEW S1: The accused confirms that he was with the girl on 1 March and 6 March 2024. He knows the child complainant and knows her brother is Theodore.  He denies sexually penetrating her with his fingers. He gave his account that he was not alone with the girl and the guard house. On the first occasion, he says that there were 15 to 20 other students including her brother Theodore. The younger ones stayed in the guard house and the older students were with him outside the guard house.  On the second occasion she was with other students, and she approached him enquiring after Theodore. They left to search for Theodore.  

23.	CONSTABLE DOROTHY LANKU S2: She is the arresting officer and confirms the investigation, charges and conducting the interview and recording it.

24.	CONSTABLE ALICE GWABIRU S3: She is the corroborator and confirms the RO1.

25.	DR TERROLYN NOESE S4:  Has a bachelor’s in dental surgery and a bachelor’s in science. She conducted dental examination and confirmed that the age of the child was 10-11 years old.

26.	CLINIC BOOK S8: Indicated that the child complainant was born on 8 May 2013.
27.	 SARAH WAGANG KASA S5: She is a registered mental health nurse employed at the Family Support Centre. She conducted the examination on 11 March 2024. and observed redness at 1’ clock extending to 3 o’clock position and at 7 o’ clock position and 9 o’clock position extending to 10 o ‘clock position on the inner vulva.

28.	The hymen was intact and unremarkable. No swabs taken due to digital penetration.

29.	It was noted the medical findings were very consistent with the history being obtained from the female child survivor.

Defence Case
30.	The accused gave an unsworn statement from the accused dock. The accused stated:

“I heard the story about the witness, the little girl Lucy Anne Gili, while she mentioned about the little boy sitting on the top of the roof, that is the wrong interpretation. There is a shelf in the guard house that I put the bed for the kids. Those little boys jumped on the shelf. While Lucy Anne and other boys were sitting on the form. When she mentioned that they were on the roof of the house that is why I want to explain that the interpretation in correct. It was not the roof of the house it was the shelf of in the guard house.
And another thing I want to raise before this Court is regarding the medical report from the Vak clinic. I looked through my file and I cannot locate the report from the Vak clinic. I understand that there is factual evidence in the medical report because that it why they deny, or they failed to bring the report before the Court.
Another one is a word that the arresting officer used to charge me under s 229A (2) with respect of a word penetration. The medical report made by Sarah Kasa Wagang is nullified or contradicted the charge that the police have laid against me under s 229A (2) and the amended charges under s 229E. I can recall what they have stated in the file. Its really contradicting. There is no facts and evidence. And I refer also to the word sexual penetration under s 229A (2) there was no element of sexual penetration in pursuant to s 6(a) and (b) of the Sexual Offences Act under Papua New Guinea Criminal Code Act Chapter 262.
Therefore, the statement of police and the statement or affidavit of the doctor or nurse I mean is contravening to s 21A (1)(2)(3)(4) of the said Victim Impact Statement in the said Papua New Guinea Criminal Code Act Chapter 262.
Your Honour I also make objection to the alternative charge as mentioned to me yesterday about sexual touching, I make objection to that charge. I seek leave of the Court to dishonour charge. I must only be charged with section 229A and 229 E of the Criminal Code Act.
Your Honour therefore I seek leave of this honourable court to nullify the alternate charge of sexual touching. I must be charged under s229A (2) and 229E of the Criminal Code Act.
Your Honour I recall back to the police RO1 file the police information sheet with respect to the Papua New Guinea District Court Act Form 16 containing CB 844/24 and the other one containing 845/25, your honour those two Form 16 have no chapter number for that, form 16. It includes the magistrate for the District Court did not sign the form 16 and has no common seal of the District Court.
Your Honour I call recall back to Friday 8 March 2024 I was unlawfully detained without any police charges against me. Your Honor I recall back to Friday 15 March 2024 I was called out from the Lae Central Police cell and taken to the police SOS office for interview. There was none other police officers in the office. It was me and First Constable Dorothy Lanku. She interviewed me without corroborator. 
Your Honour you can see there in the file I said that number 3 the statement of facts Officer in Charge of the case not the arresting officer. She said she charged me, but she did not arrest me. I refer to the file page 8 of 9 question number 57 there is a statement there OIC case charge me, but she did not formally arrest me, and I was unlawful detained on 8 March, and I was taken to Buimo and I was there without formal police arrest and now I stand before the Court.
Your Honour the Court told me yesterday that there is no objection to the police and witnesses. For your information I make an objection at the District Court, Committal Court, in the section 96 statement and I gave it to the magistrate with respect of making an objection to the statement of the OIC case and the medical report and including other documents in my possession. I made objection but I heard yesterday that there is no objection. I made an objection. Therefore, I seek leave of this Court, to locate the copy of my objection under s 96 statement which I have given on the 19th of July 2024.
Your Honor I recall back to 8 March 2024 where I was taken out to the police station. The police have brutally assaulted me, and I lost my two teeth. My front teeth here. From there on 8 of March 2024 police did not arrest me and detain me in custody. Your Honor this is contravening section 42 of the Papua New Guinea human rights law including other sections of the human right under the Papua New Guinea Constitution they have deprived my right, totally in breach of my rights as of 8 of August, sorry correction, as of 8 of March 2024 until this date in Court because of not formally arrested and detained at Buimo and now I stand before the Court.
Your Honor the total negligence of police with failures due to failed, that they did not arrest me or charge me is contravening to Royal Papua New Guinea Police or Constabulary Police Arrest Act at s 2(4) of the Police Arrest Act 1997. 
Your Honour I continually deny the police charges, the entered police charges and swear before this Court I am innocent and did not commit any offences under s229A (2) and s 229(E) of the Papua New Guinea Criminal Code Act. Your Honour I seek leave of this Court to dismiss this and charges and set me free. Thank you, Your Honor.”

Assessment of Evidence
31.	I have observed each of the witnesses as they gave evidence and have considered all the prosecution and defence evidence.

32.	There is no principle in law that says I must accept or reject all of a witness's evidence. Instead, I may give varying weights to various parts of the witness evidence and decide to believe none of it, some of it, or all of it: Pari and Kaupa v The State [1993] PNGLR 173 per Kapi DCJ and State v Namaliu [2020] PGNC 75; N8284 at paragraph 51.

33.	During the assessment of the evidence, I must carefully weigh the evidence against the circumstances of the case and determine whether it is consistent with common sense and logic and whether there are significant inconsistencies which would call into question the credibility of the evidence: Bonu and Bonu v The State [1997] PGSC 11; SC528 and Waranaka v Dusava [2009] PGSC 11; SC980 

34.	The child complaint’s evidence was sworn evidence. It was straightforward. She gave evidence in English which was not seriously challenged in any material way that would discredit it.

35.	The accused gave an unsworn statement from the dock which not subjected to the test of cross examination. 

36.	Section 572 of the Criminal Code reads:
(1)	At the close of the evidence for the prosecution, the proper officer of the court shall ask the accused or his counsel whether the accused intends to adduce evidence in his defence or whether he desires to make a statement to the court before he or his counsel addresses the Court.
(2)	Whether or not the accused intends to adduce evidence in his defence he is entitled to make a statement to the court.
(3)	When the accused makes the statement to the court, he shall make the statement at the close of the evidence for the prosecution and before adducing any evidence in his defence. 

37.	S 12 of the Evidence Act states:
“12. Accused as witness.
A person charged with an offence is a competent but not a compellable witness in any legal proceedings in connection with the offence with which he is charged.” 

38.	Section 16 of the Evidence Act states:
“16. Giving of Evidence from the witness box.
A person charged with an offence and called as a witness, shall, unless otherwise ordered by the court, give his evidence from the witness box.”

39.	In considering an unsworn statement, it was held that the proper direction when deciding the facts is to take the statement as prima facie a possible version of the facts and consider it with sworn evidence, giving it such weight as it appears to be entitled to it in comparison with the facts clearly established by the evidence: R v Ulel [1973] PNGLR 254 adopting Griffith CJ in Peacock v R (1911) 13 CLR at 641. 

40.	The accused made a statement from the dock in his defence. Most of the accused statements were irrelevant to the issue and is disregarded. What is relevant is that his statements supported by his answers in his Record of Interview which the State has tendered as S1. I must decide what value to give that evidence. During this process, I continue to remind myself that the burden remains with the State to prove its case against the accused and does not shift to him. It is a question of how much weight I should give to the statement. The statement is not on oath; it is unsworn and was not subject to the test of cross examination.

41.	The only issue before me is who should I believe?

42.	It is undisputed that the child was the guardhouse on both occasions and that she was not permitted to enter the classroom. The facts in issue is whether there were other children present and whether had inserted the accused has inserted his finger into the child complainant’s vagina on both occasions. 

43.	In assessing the overall credibility of the child complainant’s evidence, I considered that there was no suggestion made to her by the defence that she fabricated or concocted the allegations. The defence did not seriously challenge her account. She gave evidence in English confidently and coherently with clarity.

44.	I also have had the opportunity to observe her demeanour. There was no indication or suggestion that she was fabricating or concocting her evidence for some ulterior or self-serving purpose.

45.	There was no suggestion that her account was invented or concocted out of fear of punishment or reprisal from her parents or grandparents. There is nothing before me to show why she would concoct these serious allegations against the school security guard.
 
46.	She immediately reported to her grandmother which is supported by her grandmother. The defence did not challenge this account. There was no cross examination of the grandmother; I take it as acquiescence. I find that the spontaneous reporting to her grandmother reinforces her credibility and supports the truth of her account.
47.	Both the State and the defence have not directed me to any significant inconsistencies in her evidence, and I cannot find any. As discussed earlier, her evidence was straightforward and was not challenged in any significant way to undermine her credibility.

48.	I had posed questions about the date of the offence. I resolve this by finding that the date of the offence is not material to the issue and in any event the specific dates were put to the accused in ROI. Additionally, this is not a case where the events happened with a significant gap. The reporting to the grandmother then to the police and the immediate arrest were days apart. It does not impact or affect the credibility and reliability of the child’s evidence because, it was not challenged and her evidence as said was coherent and not significantly challenged in cross examination.

49.	On the other hand, the accused demeanour from the dock and his long-winded statement indicate that he was not a truthful witness.

50.	There was no dispute about the injuries to the child’s genitals. The only question was who was responsible. 

51.	While it was suggested to her that there were other children into the guard house, she explained, and she the little boys were seated on the roof of the guard house. She explained that the offence happened when the children when in class which is logical for a school because when children are in class in a school there are rarely any staff or student walking around. 

52.	In any event, material aspects of the child’s evidence were not challenged by the defence. The only sworn evidence was that of the child.

53.	For the foregoing reasons I accept the child complainant’s evidence and reject the evidence of the accused. 

The Elements
54.	The elements are that the accused (1) sexually penetrated (2) a child under the age of 16. 

55.	Penetration is defined by s 6 of the Criminal Code to mean:
(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 part of his or her body (other than the penis) into the vagina, anus of another person, other than in the course of a procedure carried out in good faith for medical or hygienic purposes”

56.	Having accepted that complainant’s version the only two questions that remain is whether the accused actions were for sexual purposes and whether there was sexual penetration. 
57.	To sexual purpose, this is a matter that goes to the mind of the accused. I must assess the circumstances to draw an inference as to the intent of the accused. As was said by Injia, J (as then was), in State v Raphael Kuanande [1994] PNGLR 512:
“Intention is a matter which goes to the state of mind of the accused at the time he acted. It may be proven by direct evidence of the accused's expression of intention followed by the act itself or by circumstantial evidence. In either situation, it is necessary to examine the course of conduct of the accused prior to, at the time and subsequent to the act constituting the offence.

58.	There is no other reason for a security guard to insert his finger into the vagina of a child other than for sexual purposes. I am satisfied that the accused insertion of his finger into the vagina was for sexual purposes.

59.	The next question is whether there was sexual penetration? There was no challenge to the medical report which was tendered by consent. No suggestions were put to the child that she was not sexually penetrated. I take that as acquiescence that penetration was not in issue.

60.	In any event, I accept submissions by State counsel and adopt The State v Preston (2018) N9239, which discusses the definition of sexual penetration under s 6 of the Code and the definition of vagina. The child’s evidence is supported by the medical report that shows injuries to the inner vulva.

61.	The law is that the introduction to any extent is sexual penetration. I am satisfied that penetration occurred.
Conclusion
62.	Based on the forgoing reasons set out above, I find that the accused had inserted his finger into the child complainant’s vagina and accordingly return a verdict of guilty to the charges of Sexual Penetration under s 229A (1)(2)
of the Criminal Code.

Orders
63.	The Accused having been charged with two counts of Sexual Penetration under s 229A (1) (2) of the Criminal Code:

1.	Is found guilty of both counts.
2.	The Probation Office is requested to prepare a pre-sentence report to assist the Court in sentencing by 24 July 2025
3.	The State is directed to file a Victim Impact Statement to assist the Court in sentencing by 24 July 2025.
4.	The offender is remanded in custody pending sentencing.

The Public Prosecutor, Lawyer for the State
The Public Solicitor, Lawyer for the accused