SC2812

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCREV NO. 14 OF 2023

BETWEEN
MAKAKAI CLEMENT
Appellant

AND:
THE STATE
Respondent

LAE: MIVIRI J, DOWA J, WAWUN-KUVI J
29, 30 OCTOBER 2025

SUPREME COURT REVIEW – Conviction of Sexual Penetration Section 229A (1)(2)(3) CCA – Sentence 20 years imprisonment – No Evidence in Court of Principle Witness Prosecutrix – No Explanation Why Prosecutrix Not Before Court – Conviction Unsafe Unsatisfactory – Appeal Upheld – Conviction Quashed – Prisoner Discharged from Custody.

SUPREME COURT REVIEW – Conviction of Sexual Penetration Section 229A (1)(2)(3) CCA – Sentence 20 years imprisonment – State Concession or Counsel Concession to Appeal – No Basis to Determination of Appeal/Review – Court Ultimate Authority to Determination of Appeal/Review – No Identification of Person Who committed the Offence – Conviction Unsafe Unsatisfactory– Appeal Upheld – Conviction Quashed – Prisoner Discharged from Custody.

Cases cited
John Beng v The State [1977] PNGLR 115
William Norris v The State [1979] PNGLR 605
Pawa v The State [1981] PNGLR 498
State v Ova [2021] PGNC 469; N9335
State v Kevin (No 3) [2021] PGNC 626; N9673
Beng, The State v [1976] PNGLR 471
Bonu and Bonu v The State [1997] PGSC 11; SC528

Counsel
Mr L Mamu, for the appellant 
Mr L Maru, for the respondent

1.	BY THE COURT: This is the decision of the court after hearing the review of the applicant seeking to overturn his conviction of sexual penetration of a minor pursuant to section 229A (1)(2)(3) of the Criminal Code Act handed down by the Lae National Court on the 16th of June and 06th September 2022. 

2.	In plain he says the conviction is unsafe and unsatisfactory and should not stand, relying on John Beng v The State [1977] PNGLR 115 as basis. 

3.	Alternatively, he challenges the sentence by contending that there is identifiable error in the discretion exercised to impose. And he maintains that because of that it can vitiate the sentence passed: William Norris v The State [1979] PNGLR 605. 

4.	The State at the outset of the hearing conceded to the review that because the principal witness, the complainant five (5) year old child witness GM was not called, there was no basis in law to maintain its position against the review of the appellant. Her evidence was not on file in the proceedings, and the conviction could not stand in view of that fact. It was the prosecution assertion that the prisoner was convicted unsafely and unsatisfactory. Because the evidence of the State hinged around the complainant. She was the one who underwent the medical examination because of sexual penetration culminating injuries to her vagina and surroundings. The other evidence does not improve that position further.

5.	At the outset we determine that the concession of counsel does not oblige the court to adhere to that concession. The court is very independent and is not bound by the concession that counsels or parties between themselves have come to. Just because the State concedes to the case contended by the Appellant does not mean that the court will simply endorse that decision. The court will go through the merits of the case for and against and determine the matter in its own discretion based on the facts and the law as to what its determination is in law. The concession made by the parties, here the prosecution is only one of the matters that the court will consider with all others in the review, or appeal of whatever cause of action is presented. It will independently assess and determine the merit of the matter for and against to arrive at its independent decision. And here it is no different, because it is a very serious conviction of sexual penetration of a minor under 12 years old committed by the stepfather of the complainant upon her. And there are very serious injuries to the vagina and surroundings. What is before the Court without her evidence must be properly determined to arrive at the decision of the Court. We caution against the easy pick to simply endorse a concession which in our view has the tendency to look bad on the Court as independent and impartial. Because Justice is blind is not dictated by emotion or attachment. It is driven by way of where lies the truth, not without.

6.	Accordingly, we sought to weigh out the materials for and against in the appeal book compiled in the review. Primarily, counsel points that there is no victim or complainants’ evidence in the proceedings. She is the five (5) year old GM stepdaughter of the appellant who was seen by the mother and the report made out by the health Extension Officer Olivia Kola dated the 30th April 2020. Who noted that the child GM’s pants were soaked with blood, there were multiple bruises, swollen and painful, swelling of nose, mouth and cracked lips bleeding associated. This witness medically examined the vagina of GM. And she states that in her examination, that the vagina was bleeding and painful. The labia majora was bruised and abrasions remarkable, and there was cervical dilation of one (1) cm. And she further gave evidence that her findings and diagnosis is disclosed in the medical report of the 30th April 2020 of an alleged rape and sexual penetration. She expounded that what has happened to the child is that she sustained the injuries from someone who had bruised her genital areas with some object such as a finger, sticks or stone or even a penis.

7.	The mother of the child was called on oath. She complained to police after sighting a blood stained face towel found at the house of the prisoner that prompted her to lay the complaint of her missing daughter with the father to the police. She had reported the matter to police because she found a face towel with blood on it in the house of the appellant.

8.	There is denial by the Accused of the conviction that he has sustained sexual penetration of a minor pursuant to section 229A (1)(2)(3) of the Criminal Code. At pages 75 to 77 of the Appeal book he gives unsworn evidence that he stayed home with his parents. Then the parents went to church and they came back. He was with his aunty. And stayed home. This is unsworn evidence not on the same footing as sworn evidence, which is the case of the prosecution evidence but for the complainant not called. It is untested by cross examination, and the like so does not have the same bearing as sworn evidence. But it will be weighed out with all other evidence led. Its weight will be lower compared to sworn evidence. So, if he had committed the offence why was he still with the complainant stepdaughter at the time that the police reservist Samuel Paul arrested him when he was with her.

9.	The case of the prosecution is based on circumstantial evidence that because prisoner was with the complainant at that time, he must have committed the acts of sexual penetration upon her. GM is a five (5) year old child who could have been called to establish who had caused the injuries that were caused to her body evidenced. No, the establishment of the injuries did not necessarily mean that the prisoner was the author because he was with her at that time. Inferences are not based on probabilities and possibilities. The law is clear there must be no other reasonable hypothesis other than the guilt of the prisoner. An Accused cannot be found guilty unless the circumstances are such as to be inconsistent with any other reasonable hypothesis other than his guilt: Pawa v The State [1981] PNGLR 498. 

10.	In addition, to the complainant not being called and there being no explanation, the appeal book reveals that defence counsel was prevented from putting the defence case theory to prosecution witnesses. A theory that the allegations were concocted and fabricated by the mother of the complainant who was the wife of the appellant, the Health Extension Officer and the Policeman because all were related from the same village. The trial judge did not allow defence counsel to put these questions. Instead, the trial judge directed defence counsel that it was a sexual penetration matter, and these matters were irrelevant. In this regard we caution that the rule in Brown v Dunn elaborated in Kitawal v State [2007] SC927 is underpinning and counsel defending or prosecuting or other counsel representing must be allowed to exercise to the fullest to bring out their individual cases for their clients.

11.	Here is evidence beyond all reasonable doubt of a sexual assault fitting section 229A (1)(2)(3) of the Criminal Code. But who is the person who committed that offence. It cannot be assumed that the prisoner appellant is the perpetrator. He is not caught in the act of sexual penetration. He was with the complainant, but he has denied the offence. He is the only male person with her. He is her stepfather. There is no reason in the Judgement as to why the complainant is not called to testify. Counsel referred to 36 cases in paclli where the child victim gave evidence supported by corroboration leading to convictions. And amongst that only 5 did not have the complainant victims because they were either disabled, mute: State v Ova [2021] PGNC 469; N9335 or had since died State v Kevin (No 3) [2021] PGNC 626; N9673. There is nothing in that likeness or regard here on the record of the proceedings as to why the complainant is not before the court. 

12.	Her evidence is very important, very material and core to the matter. She lays the foundation of the offence connecting all evidence. Because it was committed upon her. The medical report originates from her. It depicts her injury to her vagina and immediate area. She would put the identity of the person who sexually penetrated her having seen that person up close upon her in the commission of the offence. Yet she is not produced, and no reasons are disclosed. The prosecution does not produce any reasons, nor does the court in its Judgement why her evidence is not there for consideration. In summary this is not a case where one is seen under the various circumstances described by Beng, The State v [1976] PNGLR 471. What is apparent is that there is no identification of the perpetrator of the crime. Identification is material and must be established beyond all reasonable doubt to secure the conviction. It may be circumstantial but why, when the principal witness is there. She is the subject of a medical examination. But it is for reasons unknown not produced in the trial to continue the prosecution beyond all reasonable doubt.

13.	What can be attributed to the fact that the complainant was with the Prisoner appellant is not safe. It is an assumption because he was with her, the only male person he must have committed the offence. That is unsafe and unsatisfactory to assume without other facts. For instance, as demonstrated in Bonu and Bonu v The State [1997] PGSC 11; SC528. They are alone confined in that room. This is not a room the evidence does not depict as such. Furthermore, we are conscious that the mother complains to Police with the face towel that has blood stains on it. Her complaint is against the stepfather with the daughter. Is that enough with the extent of the injuries that she has suffered to assume that because she was with the stepfather prisoner, he must have committed that offence upon her. If he has committed that offence upon her, why has she not come to testify to that fact in open court. The mother has testified why not her. It leaves a lot outstanding to act alone on the evidence of the mother and the medical report, the health Extension officer and the policeman. He did not see them in the act of sexual penetration. Yes, she had injuries to her vagina whilst in the presence of appellant, but it did not conclude without any other evidence particularly that of the complainant victim that he was the author of that criminal act.

14.	The offence of sexual penetration under section 229A (1)(2)(3) is a very serious criminal offence carrying a maximum imprisonment term of life imprisonment. And a minimum term of 25 years imprisonment. It is her cause and without her evidence there cannot be penetration of a child. She was penetrated to make out that element in the offence complete. It is not complete and proved beyond all reasonable doubt given. Reliance on the medical evidence is insufficient without the child’s evidence. That does not advance the State cause without the evidence of the child. It remains lacking and therefore it is unsafe and unsatisfactory to firm the conviction. It must be set aside against the appellant. 

15.	The combination of the prosecution concession on appeal, the not calling of the child complainant, the lack of any explanation for not calling her and the barring of defence counsel from putting a case theory that suggests a conspiracy to fabricate allegations against the appellant render the conviction unsafe. 

16.	The conviction order is set aside forthwith. The appellant is discharged from custody forthwith.

17.	And we make the following orders: 

1.	Appeal is upheld and conviction is set aside.
2.	Sentence is set aside.
3.	Appellant is discharged from custody forthwith.

Orders Accordingly.
_____________________________________________________________
Lawyer for the appellant: Public Solicitor
Lawyer for the respondent: Public Prosecutor