N3632

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 737 0F 2007

THE STATE

V

ARNOLD KULAMI

Bialla: Cannings J
2009: 14, 15, 16, 19 May

VERDICT

CRIMINAL LAW – engaging in act of sexual penetration with child under age of 16 years – trial – Criminal Code, Section 229A(1) – whether act of sexual penetration was engaged in – definition of "sexual penetration", Criminal Code, Section 6.

The accused, a mature aged man, was charged with an offence under Section 229A(1) of the Criminal Code: engaging in an act of sexual penetration with a child under the age of 16 years. The child, a girl, was six years old at the time, and the accused's niece. Her age (less than 12) and the existing relationship of trust, authority and dependency between the accused and her, were charged as circumstances of aggravation, and were undisputed facts. The accused pleaded not guilty. He denied sexually penetrating the complainant or touching her for sexual purposes. During the court's deliberations, the issue arose whether it was open to enter a conviction for any lesser offences under Section 229B(1): sexual touching of a child under the age of 16 years.

Held:

(1)	The two elements of an offence under Section 229A(1) are that: 

•	the accused engaged in an act of sexual penetration with another person; and 

•	the other person was a child under the age of 16 years.

(2)	It is not necessary to prove rupture of a hymen to establish "sexual penetration", which is defined by Section 6 of the Criminal Code to include "the introduction, to any extent, by a person of his penis into the vagina … of another person".

(3)	Here, the complainant's oral testimony, corroborated by the evidence of the complainant's mother and aunty (evidence of a prompt complaint), and the medical evidence (showing presence of semen and minor bleeding from scratches above the urethra extending to the clitoris with bruises of the labia bilaterally), was sufficient to prove beyond reasonable doubt that the accused introduced his penis to some, albeit small, extent into the complainant's vagina. The element of sexual penetration was proven.

(4)	There being no dispute about the age of the child or the existing relationship of trust etc between the accused and her, the accused was found guilty in the circumstances of aggravation charged in the indictment. 

(5)	Obiter dictum: The elements of the offences under Section 229B(1) of the Criminal Code were also proven but the court expressed the view that if the offence under Section 229A(1) had not been proven, convictions could not be entered under Section 229B(1).

(6)	The accused was accordingly found guilty as charged.

Cases cited

The following cases are cited in the judgment:

Java Johnson Beraro v The State [1988-89] PNGLR 562
Rolf Schubert v The State [1979] PNGLR 66
The State v Bond Nanal (2009) N3597
The State v John Yambra Pai (1986) N535

TRIAL

This was the trial of an accused charged with engaging in an act of sexual penetration with a child under the age of 16 years.

Counsel

A Kupmain, for the State
S Maliaki, for the accused

19 May, 2009 

1. CANNINGS J: Arnold Kulami, the accused, is a Chimbu man, aged about 50, who lives at Tiauru in the Bialla area of West New Britain. He is charged with an offence under Section 229A(1) of the Criminal Code: engaging in an act of sexual penetration with a child under the age of 16 years. The child, a girl called "M", was six years old at the time, and the accused's niece.

2. The State alleges that he took M into his house at about 7.00 pm on 28 August 2007, while his relatives were outside mourning the death of his brother, Andreas Kulami. A haus krai had been set up and the wife of the deceased, M's mother, Elizabeth, was making sleeping arrangements for her sons. It is alleged that the accused took the opportunity, while he was alone with M, to sexually penetrate her, by inserting his penis into her vagina.

3. M reported to her mother that the accused had done bad things to her, so the mother examined M's genital area. Then M's aunty examined her. They then went to the Bialla Police and to the Bialla Health Centre. Two nurses examined M and concluded that she had been vaginally penetrated. 

4. This all happened on the night of 28 August 2007. A bit over a week later, the accused was arrested and charged.

5. He has pleaded not guilty. He denies sexually penetrating M or touching her for sexual purposes. His lawyer, Ms Maliaki, submits that there is insufficient evidence that M was penetrated. As for the injuries M appears to have received the most likely scenario, Ms Maliaki, argues, is that they were caused by M's mother and her aunty when they examined her.

THE EVIDENCE

6. The State's case was based on the following evidence:

•	oral testimony of M;
•	oral testimony of M's mother;
•	oral testimony of M's aunty;
•	oral testimony of the police investigator;
•	oral testimony of one of the nurses who examined M;
•	the accused's record of interview, containing some statements that are claimed by the accused to be fabricated; and
•	a medical report signed by the two nurses who examined M.

7. For the defence, two witnesses gave sworn evidence:

•	the accused; and
•	the accused's brother-in-law, Sine Kaupa.

ELEMENTS OF THE OFFENCE

8. Section 229A(1) of the Criminal Code (sexual penetration of a child) states:

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.

9. The two elements of an offence under Section 229A(1) are that:

•	the accused engaged in an act of sexual penetration with another person; and

•	the other person was a child under the age of 16 years.

10. The indictment under which the accused has been charged alleges two circumstances of aggravation:

•	that the child was under the age of 12 years (a circumstance of aggravation under Section 229A(2)); and

•	that there was an existing relationship of trust, authority or dependency between the accused and the child (a circumstance of aggravation under Section 229A(3)).

11. The circumstances of aggravation are not contested by the defence. It is agreed that M was six years old at the time and that a relationship of trust etc existed as the accused was her uncle (which is a relationship of trust under Section 6A(2)(c)). The significance of these matters is that if the accused is convicted, he will be liable to a maximum penalty of life imprisonment rather than a maximum – if there were no circumstances of aggravation – of 25 years.

12. If it is not proven that the accused penetrated the complainant, the question will arise whether he can be convicted of any alternative offences, in particular the offences of sexual touching of a child under Section 229B(1).

ISSUES

13. The principal issues to be decided are:

1.	Did the accused engage in an act of sexual penetration with the complainant? If yes, he will be guilty as charged.

2.	If the answer to (1) is no, did the accused sexually touch the complainant?

3.	If the answer to (2) is yes, can he be convicted of an offence under Section 229B(1)?

FIRST ISSUE: DID THE ACCUSED ENGAGE IN AN ACT OF SEXUAL PENETRATION WITH THE COMPLAINANT?

14. The State bears the onus of proving beyond reasonable doubt that the accused engaged in an act of sexual penetration with the complainant.

"Sexual penetration" is defined by Section 6 of the Criminal Code, which states:

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.

15. The sort of penetration alleged in this case is covered by Section 6(a): that the accused, to some extent, introduced (ie inserted) his penis into the complainant's vagina.

The complainant's evidence

16. M is now eight years old. In view of her age, it was appropriate to conduct an inquiry to determine her capacity to comprehend the nature of truth. I considered Section 6 of the Oaths, Affirmations and Statutory Declarations Act Chapter 317. I also considered guidelines for reception of evidence by child witnesses given by the Supreme Court in Rolf Schubert v The State [1979] PNGLR 66 and Java Johnson Beraro v The State [1988-89] PNGLR 562.

17. Upon answering questions from me, she appeared to clearly understand the nature and purpose of the court proceedings, the reason she was in court and that the lawyers would ask her questions about what happened. She appeared to be a bright and intelligent child. She understood that if she did not tell the truth God would not be happy with her and that she could be punished. I was therefore satisfied that she understood the meaning and importance of truth.

18. Ms Maliaki raised no objection to her competence as a witness or the admissibility of her evidence. I concluded that she was a competent witness and her evidence, though unsworn, was admissible.

19. Upon the application of the prosecutor, Mr Kupmain, and the consent of Ms Maliaki, I allowed a female police officer, Const Jacob, to sit next to her as a support person and ordered that the court be closed to the public while she was giving evidence. These special measures were ordered under Sections 37B(1)(a) and (b) and (2)(b) and (f) of the Evidence Act.

20. In examination-in-chief M said that the accused pulled her into the house. He held her hand and put it on his private part. He took off his trousers, took off her trousers and put her on top of him and asked her if it 'felt sweet'. Then her mother called out for her. She went to her and told her what happened. M's evidence to that stage was rather general.

21. In cross-examination she provided a lot more detail. She said she was sitting on the accused's veranda with her brothers, Lucas and Michael, and one of her uncles, Sine Kaupa. Another man, Eric, and his wife, Danette, came along. At one stage she asked the accused, Arnold, to scratch her back as it was itchy, which he did. Those people left and that is when the accused took her into the house. Later the accused 'had sex' with her. She reported what the accused did when she went over to her mother's kitchen house, not far away from the accused's house. Her mother screamed at her and hit her over the ear, but she did not cry and she was not frightened. She told her mother what happened and then her mother took off her skirt and checked her vagina. Other people were present, including Sine Kaupa. Her mother inserted her finger into her vagina and she was very rough and scratched it. M felt pain when her mother did that and it was more painful than what had happened at the accused's house.

22. In re-examination she said that Sine was not present when the accused pulled her into his house. When her mother checked her vagina, she found blood and mucous.

23. Answering questions from the bench, M said that the accused put his 'private part' into her vagina. It went inside. He was rubbing it up and down and it hurt. She did not sing out. He had done this thing to her plenty of times, she said.

24. Answering further questions in cross-examination M said that the accused did not put his penis on her belly. He just put it on top of her vagina.

The mother's evidence

25. In examination-in-chief Elizabeth confirmed that when M came out of the accused's house, she hit her over the ear. M said to her: 'Mama, Arnold had sex with me'. M just told her that. She did not ask M if the accused had done something bad to her. She then got a light and checked M's vagina and found blood and semen. Then she called out to her sister, Miriam, who came over and checked her and saw the same thing. She called out to the accused but he was hiding in the oil palm. Her relatives borrowed a vehicle and a number of them climbed aboard with M and they went to Bialla. First they went to the police, who sent them to the hospital where the medical examination was performed.

26. In cross-examination Elizabeth was grilled over what she actually did when she examined her daughter's vagina. Did she use her whole hand to inspect the vagina? Did she insert her finger in the vagina? She eventually answered that she had used her whole hand in a cupping motion to rake blood and semen from the vaginal area. She did not put her finger into the vagina. She said that M screamed when she did this, as it was painful.

The aunt's evidence

27. The aunt, Miriam, lives in Bialla. She is Elizabeth's younger sister. Her evidence was consistent with Elizabeth's. Miriam checked M's vagina after Elizabeth and also found blood and semen. She described how she used an open palm of her hand and put her hand between M's legs and when she pulled back her hand it had blood and semen on it. She cried as M is like a daughter to her. They had to carry M to the vehicle at Tiauru before they left for Bialla. Miriam went with the group to the police station and the hospital. She was present with Elizabeth and her son Michael when the medical examination was conducted.

The police investigator's evidence and the record of interview

28. First Const Benson Gope said that he interviewed the accused on 5 September 2007, eight days after the incident. He told him about his right to remain silent and other constitutional rights. The accused answered the questions put to him of his own free will and he recorded his answers. The accused denied sexually penetrating M but said that he did scratch her genital area as she said she was itchy, she was scratching it herself and then asked if he could scratch it for her.

29. Ms Maliaki suggested that that part of the record of interview was fabricated. First Const Gope was adamant that he just recorded what the accused said.

The medical report and the nurse's evidence

30. Betty Akarah, a nursing officer at Bialla Health Centre, was on duty on the night that M was brought in. She has been a nurse for over 20 years and has a diploma in paediatrics. She witnessed the examination conducted on M by nursing officer Peter Sep and signed the medical report dated 29 August 2007.

31. The report stated:

Vaginal examination was performed … the results and findings are as follows:

1.	Vagina was excessively wet and intact.

2.	Presence of male seminal secretions over vagina was evident.

3.	There was minor bleeding from scratches per vagina above the urethra extending to the clitoris with bruises of the labia bilaterally.

4.	The child was crying during the procedure sensitively, due to post mental and physical traumatic effect of the sexual experiences suffered.

Conclusion: … it is conclusively obvious that the child was vaginally penetrated and abused physically.

32. In cross-examination Mrs Akarah agreed that M's hymen was not ruptured and that the substance identified in the report as semen was on the outside of the vagina, not inside. They did not take a swab as Bialla has no lab facilities and it was impractical to get something to Kimbe for a lab test. But that was unnecessary she said. Ms Maliaki suggested to her that the substance could have been anything, water perhaps, but she was adamant that it was semen. She said that she was an experienced nurse, able to differentiate sperm from other fluids, and in this case the substance was easily recognisable. As for the scratches, she agreed that the skin in and around a six-year-old's vagina is soft and any movement up and down the skin can cause scratches and bruises but added that in this case the child and her mother were crying.

33. Ms Maliaki put it to Mrs Akarah bluntly that the report's conclusion that M was vaginally penetrated was wrong, it was not supported by the earlier findings, especially that the vagina was 'intact'. Mrs Akarah responded that penetration does not mean only complete penetration, it can include partial penetration. This might have been a case of attempted penetration. The fact that the hymen was not ruptured does not mean that there was no penetration. Mrs Akarah did not agree that the conclusion was flawed.

34. In re-examination she said that she did not think that a mother examining her daughter's vagina would inflict the sort of injuries that she observed in this case.

The accused's sworn evidence

35. He is the younger brother of the late Andreas, so he is M's uncle. His evidence was that he was on the veranda of his house with M and her two brothers and another relative, Eric, and his wife. They were talking about goings on in the village, back in Chimbu. M asked her to scratch her on the back and thighs. She was itchy so he did as he was asked. He did this on the veranda in the presence of Eric and his wife. He did not scratch or touch M's vagina on the veranda or in the house. He did not have sex with her.

36. He was assaulted on the night of the incident and took off for five days. Some of the relatives were chasing him with bushknives and axes. They wanted to kill him.

37. He did not tell the police that he touched M's vagina. He told them the same story he has told the court but they have lied about what he said to them. He cannot read or write so he does not know what they wrote down, but he knows that he said nothing about touching her vagina.

38. He maintained that he never sexually penetrated or touched M. He has been falsely accused of causing his brother's death by sorcery and he has been falsely accused of molesting M, who he regards as his daughter. There has been a dispute over who would get his brother's land and that can explain why his relatives are making up stories to get him convicted.

The accused's brother-in-law's evidence

39. Sine Kaupa was at the haus krai for the accused's big brother, Andreas. He was at the kitchen house at the back of Elizabeth's house when he heard her call out for M, who came over. Elizabeth took off M's skirt and underwear and asked her what Arnold had done to her. There were mainly men present so he told another lady, Dannette, to come and check M's body. The men stayed outside and Danette came out and said that M's skin was only red.

40. M was taken to the hospital at Bialla and when they came back he heard that the doctor said that there was no evidence that M had been interfered with. Her skin was red, that's all.

How strong is the evidence of penetration?

41. Mr Kupmain submitted that there was a strong body of evidence, showing that the accused penetrated the complainant's vagina with his penis:

•	M's evidence that he put his private part into her vagina;

•	the immediate complaint by M to her mother;

•	the examination of the vagina by Elizabeth and Miriam, both of whom were credible witnesses who say they found blood and semen around the vagina;

•	the medical report, which concludes that there was vaginal penetration;

•	the evidence of Mrs Akarah, an expert witness, who did not retract from the opinions expressed in the report;

•	the record of interview, which contains admissions by the accused that he at least scratched M's vagina with his hands.

42. I consider that at first glance this evidence appears to be sufficient to warrant a finding that penetration took place and that, there being no evidence that it could have been someone else, it was the accused who penetrated the complainant. However, this is a criminal case and the court has to be satisfied beyond reasonable doubt. I will now address the submissions of defence counsel and other matters that are necessary to take into account in order to afford to the accused the full protection of the law required by Section 37(1) of the Constitution.

Defence counsel's submissions

43. Ms Maliaki submitted that the State had fallen short of proving penetration for the following reasons:

1.	The complainant's evidence was not clear.

2.	The scratches and bruises were caused by the mother and the aunt.

3.	The medical evidence was inconclusive.

4.	Parts of the record of interview were fabricated.

5.	It is not clear that the accused and the complainant were alone.

Assessment of defence counsel's submissions

1 Complainant's evidence unclear

44. Ms Maliaki submitted that M's evidence about sexual contact was confined to M putting her hand on the accused's 'private part' and him putting his private part on top of her. M also said that she felt more pain when her mother and aunty examined her at the kitchen house than any pain she felt at the accused's house. This suggests that there was no penetration, Ms Maliaki submitted.

45. I agree that those parts of the evidence do indeed suggest that there was some sexual contact falling short of penetration. However, there were other parts of M's evidence that suggest that penetration, to some extent, was effected. First, she reported to her mother that the accused had 'had sex' with her. Then, when she was answering questions from the bench she said that the accused put his private part into her vagina.

46. Overall, I consider that the complainant's evidence, while not conclusive, is consistent with penetration having been effected.

2 Scratches and bruises not caused by the accused

47. Ms Maliaki suggested that the most likely scenario is that the scratches and bruises noted in the medical report were caused by Elizabeth and Miriam when they were examining M's vagina. M said that she felt pain when her mother was examining her – more pain than what she felt at the accused's house; and Mrs Akarah agreed that the skin in and around a six year old girl's vagina is very sensitive.

48. I reject this submission. Elizabeth clarified in her evidence how she examined M's vagina. She cupped her hand to rake out blood and semen from the vaginal area. Miriam's evidence was similar. Mrs Akarah said that she did not think that a mother examining her daughter's vagina would inflict the sort of injuries that she observed in this case. She also observed that M and her mother were crying when they attended the health centre and this is something noted in the medical report. The child was reported to be crying because of the mental and physical trauma caused by the sexual experiences she suffered. I find that the scratches and bruises were caused not by Elizabeth and Miriam but by the accused when he sexually molested the child.

3 Medical evidence inconclusive

49. The argument was raised that the medical report was internally inconsistent, in that it starts off by saying that the vagina was intact but concludes that the child was vaginally penetrated.

50. Mrs Akarah (who is, as Mr Kupmain stressed, a paediatric nurse and someone who can be regarded as an expert witness for the purposes of this case) satisfactorily explained this apparent inconsistency. A vagina can be intact, in the sense that the hymen is not ruptured and there are no other signs of severe physical force, but there can still be evidence of partial penetration. She also said that this might have been a case of attempted penetration. 

51. In any event, though she was subject to intense cross-examination, Mrs Akarah did not agree that the conclusion in her report was flawed. The report concluded that there had been vaginal penetration, so I reject the defence counsel's submission that the medical evidence was inconclusive.

4 Record of interview fabricated

52. There was no voir dire (hearing within the trial) conducted on this issue and this was consistent with the normal practice that a voir dire is confined to situations where an accused alleges that statements he made to the police were made involuntarily or unfairly induced (The State v John Yambra Pai (1986) N535, Pratt J).

53. The accused gave evidence that the parts of the record of interview that state that he scratched M's vagina are fabricated as he never said such a thing. He just said that he scratched her leg and thighs; and that was because she asked him to do that and it was in front of other people. I was unimpressed by the accused's evidence on this issue – and on other matters too. He was not an impressive witness. His demeanour was not sound.

54. By contrast, First Const Gope, who conducted the interview, was an impressive witness who was not shown to have any motive for fabricating evidence or for lying about what happened at the interview. He said that he just recorded what the accused said.

55. The record of interview was admitted into evidence by consent and there was no suggestion that the statements in it were made involuntarily or induced unfairly. I reject the submission that parts of it were fabricated. It is a significant piece of evidence as it contains admissions by the accused that he at least scratched M's vagina with his hands.

5 Unclear that the accused and M were alone

56. If the accused's evidence were accepted, the court would find that he and M were not at any stage alone and this would mean that there was no opportunity for him to penetrate her. However, I do not accept the accused's evidence. I have already remarked that he was not an impressive witness. 

57. The other thing is that it does not make sense to conclude that he and M were never alone. There is consistent evidence (by the complainant, Elizabeth and Miriam) about Elizabeth calling out for M, M coming over to her from the accused's house and being hit over the ear by Elizabeth, and reporting the matter to her mother and then the examination of the vagina by Elizabeth and Miriam. 

58. Sine Kaupa's evidence supports the finding that this was the train of events. The accused himself says that he was assaulted and he had to run away to avoid being attacked by his relatives. Obviously he was the prime suspect from the beginning. The reason for that must have been that he was at some stage, just prior to M coming to her mother, alone with M.

59. No one else could have been responsible for what happened to M other than the accused.

Conclusion as to first element of offence

60. The defence counsel's submissions do not convince me that the State's version of events should not be accepted. I conclude that the State has proven beyond reasonable doubt that the accused sexually penetrated the complainant by introducing his penis into her vagina. He did not completely penetrate her and it may be that he was not even attempting to completely penetrate her. However, I am satisfied that to some extent he did penetrate her and that this was the cause of the bleeding, scratching and bruising in her vaginal area.

61. My conclusion on this issue means that the accused will be found guilty as charged.

SECOND ISSUE: DID THE ACCUSED SEXUALLY TOUCH THE COMPLAINANT?

62. In view of my finding on the first issue, it is not necessary to address this issue. However, I think it is to consider it, in light of the sexual touching offences created by Section 229B(1) of the Criminal Code, which states:

A person who, for sexual purposes—

(a) touches, with any part of his or her body, the sexual parts of a child under the age of 16 years; or

(b) compels a child under the age of 16 years to touch, with any part of his or her body, the sexual parts of the accused person's own body,

is guilty of a crime. 

63. The elements of the offence under Section 229B(1)(a) are that:

•	the accused touched;

•	with any part of his or her body;

•	the sexual parts;

•	of a child under the age of 16 years;

•	for sexual purposes.

64. The elements of the offence under Section 229B(1)(b) are that:

•	the accused compelled;

•	a child under the age of 16 years;

•	to touch;

•	with any part of the child's body;

•	the sexual parts of the accused's own body;

•	for sexual purposes.

65. If I had not been satisfied that the accused sexually penetrated the complainant, there is ample evidence to conclude beyond reasonable doubt that the elements of both of those offences exist. 

THIRD ISSUE: CAN THE ACCUSED BE CONVICTED OF SEXUAL TOUCHING?

66. Though I am satisfied that the elements of the two types of sexual touching offences under Section 229B(1) have been proven, I do not think that I could have convicted the accused of those offences as they were not included as alternative charges in the indictment. There is only one charge on the indictment. I recently expressed the view in a Madang case, The State v Bond Nanal (2009) N3597, that unless the Criminal Code expressly provides for it or alternative charges are included in an indictment, the Court cannot enter an alternative conviction. 

67. I note that Section 541 states that a person indicted of unlawful carnal knowledge of a girl under the age of 12 years can be convicted of certain lesser offences. However, I cannot see how that provision could apply here. 

VERDICT

68. The accused, Arnold Kulami, is found guilty on one count of engaging in an act of sexual penetration with a child under the age of 16 years contrary to Section 229A(1) of the Criminal Code, in circumstances of aggravation, viz that, under Section 229A(2), the child was under the age of 12 years, and, that, under Section 229A(3), there was an existing relationship of trust, authority or dependency between the accused and the child.

Verdict accordingly.
____________________________

Public Prosecutor: Lawyer for the State 
Public Solicitor: Lawyer for the accused