N4893

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1461 OF 2010

THE STATE

V

JOSHUA ASES

Madang: Cannings J
2012: 19, 20 September,
2, 3, 22 October,
15 November

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

EVIDENCE – hearsay – probative value of mother's evidence of conversation with complainant, a 4-year-old child, who did not give evidence

The accused, a young 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 (the complainant) was a girl aged four years, the accused's niece. The alleged act of penetration was the insertion of a finger into the vagina. The complainant's age (less than 12) and the existing relationship of trust, authority and dependency between her and the accused were charged as circumstances of aggravation, and were undisputed facts. The accused pleaded not guilty. The complainant was not called to give evidence. The State's only witness was the complainant's mother who stated that the complainant told her what the accused did to her. The report of a medical examination showing that the complainant's hymen was torn was admitted into evidence. The accused gave sworn evidence denying that he had sexually penetrated the complainant and there were three other defence witnesses.

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)	"Sexual penetration" is defined by Section 6 of the Criminal Code to include the introduction, to any extent, by a person of any part of his body into the vagina of another person.

(3)	Here, the complainant's mother's testimony was of little or no probative value as it was hearsay; it was also questionable and unreliable as the defence introduced evidence of motive to provide false evidence against the accused.

(4)	The medical evidence was unreliable as the examination was not conducted until a month after the alleged incident; further it was vague and the person who conducted the examination did not give evidence.

(5)	Even if the mother's evidence and the medical evidence were regarded as reliable, the State's case was circumstantial and the test as to entering a conviction based on circumstantial evidence (that the guilt of the accused is the only reasonable inference to draw from the proven facts) is not satisfied as there are other possible explanations, eg that another person (named by the accused) was responsible or that the complainant suffered an injury due to some innocent cause.

(6)	The State failed to prove that the accused penetrated the complainant and he was found not guilty.

Cases cited

The following cases are cited in the judgment:

Java Johnson Beraro v The State [1988-89] PNGLR 562
Paulus Pawa v The State [1981] PNGLR 498
Rolf Schubert v The State [1979] PNGLR 66
The State v Amos Jonathan (2009) N3764
The State v Arnold Kulami (2009) N3632

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

J Morog, for the State
E Thomas, for the accused

15 November, 2012 

1. CANNINGS J: Joshua Ases, the accused, is a young man who lives in the Bogia district of Madang. 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, in circumstances of aggravation: viz that the child was under the age of 12 years and that there was an existing relationship of trust, authority or dependency between the accused and the child. The child, a girl called "Y" – the complainant – was four years old at the time and is the accused's niece. The State alleges that on 10 April 2010, while the accused was staying near the complainant's family at Warasnek hamlet, Tongbur village, he took her away and sexually penetrated her by inserting his finger into her vagina. The accused has pleaded not guilty. He denies sexually penetrating the complainant.

UNDISPUTED FACTS

2. A number of undisputed facts have emerged from the evidence:

•	The accused was for a long time living near the complainant and was regarded as part of the complainant's family. They knew each other very well.

•	A number of other children lived at the hamlet and village where the accused and the complainant lived. The accused used to play with the children and they called him by the nickname 'Gecko'.

•	The person who reported the allegation to the police that led to the accused being charged was the complainant's mother, Melolyn Badam.

•	The complainant's father, Ludwig Asivari, is the accused's cousin-brother. He does not support the allegation against the accused.

•	The complainant's mother was in conflict with her husband in the period April-May 2010 and at one stage swore at him in public, leading to a compensation demand against her by the accused's elder brother, Martin Ases.

•	A medical examination of the complainant was conducted by a health extension officer at Bogia Health Centre on 13 May 2010. It revealed that she had a torn hymen but was otherwise well, showing no sign of infection or trauma.

•	The allegation against the accused was not made (to him or his relatives) until about the second week of May 2010, one month after the date of the alleged incident, and it was after that date that the matter was reported to the police.

ISSUES

3. To prove its case against the accused the State must prove the two elements of the offence: (a) that the accused engaged in an act of sexual penetration with another person; and (b) that the other person was a child under the age of 16 years. The second element and the circumstances of aggravation are not contested by the defence. It is agreed that the complainant was four years old and that a relationship of trust existed. 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.

4. The only issue is whether the accused engaged in an act of sexual penetration with the complainant. The State must prove this beyond reasonable doubt. "Sexual penetration" is defined by Section 6 of the Criminal Code:

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.

5. The sort of penetration alleged in this case is covered by Section 6(b): the accused to some extent introduced (ie inserted) a part of his body (a finger) into the complainant's vagina. It is not necessary to prove complete penetration (The State v Arnold Kulami (2009) N3632).

DID THE ACCUSED INSERT HIS FINGER INTO THE VAGINA?

6. Determination of this issue requires a:

•	summary of evidence for the State;

•	summary of evidence for the defence;

•	formal determination of the question whether the accused sexually penetrated the complainant in the manner alleged.

Evidence for the State

7. One witness gave evidence for the State as summarised in the following table.

No	Witness	Description	
1	Melolyn Badam 	Complainant's mother	
Evidence	She observed on 13 April 2010 that her daughter, Y, was unwell: she had pain in the lower abdomen and was not walking properly, the upper part of her thighs was numb and she was passing blood while urinating – when she enquired with her what had caused that she was scared but eventually told the following story: Gecko (the accused) had been playing with her on 10 April, he took her into the house and told her to remove her clothes and he played with her vagina and inserted his finger into her vagina; this had made her sick; Gecko tricked and threatened her, saying that she must not tell anybody about what he had done, otherwise her mother would belt her. She (the mother) wanted to take Y to the health centre but she had an argument with her husband (the accused's cousin) about the matter – her husband took the accused's side and would not believe that he would do such a thing to their daughter.

In cross-examination she said that though she did not raise the allegation with the accused or his relatives until a month after the incident she did raise the matter quietly with her husband (who did not support her) and it was clear that the accused was feeling guilty about it as he was keeping his distance from her. When she did face the accused about it, he denied it. She also confronted his family but they took his side and would not believe the allegation.

The witness denied making a similar allegation of sexual interference with her daughter against another young boy living in their locality. She agreed that on one occasion after she had sworn at her husband, his cousin Martin Ases (the accused's brother) came to her demanding compensation but she refused to pay; and that it was after that that her daughter was taken (by the witness's father) to the health centre for the medical examination.	

8. The only other evidence was the record of interview (in which the accused flatly denied the allegation and gave the name of another young boy, "A", who was responsible for what had happened to Y) and the medical report.

Evidence for the defence

9. Four witnesses gave evidence for the defence as summarised in the following table.

No	Witness	Description	
1	Joshua Ases	The accused	
Evidence	In April 2010 he was living at Warasnek with his cousin Peter Kasi – Peter's house is next to the house of another cousin, Leo Kovai, and his wife, Rose Kureki (defence witness No 2). The house of his cousin Ludwig and Ludwig's wife Melolyn, where Y lives, is close by. He was with Rose on 10 April 2010, she told him to look after her two children while she went away a short distance to fetch water. He did not go anywhere else that day. Y was not with him. He saw that she was at her house (as her house is visible from Leo and Rose's house).

There has been ongoing conflict between him and his relatives and Melolyn, who does not treat them properly. He did not know anything about what he was alleged to have done until sometime in May 2010. The allegation was made by Y's mother only after his (the accused's) brother had demanded compensation from her for swearing at her husband. He was surprised and does not know why he was suspected of doing such a thing. There are many small children at Tongbur and Warasnek and he gets on well with them.

In cross-examination he said that the reason Melolyn had sworn at Ludwig had nothing to do with the allegation against him (the accused), it was something that happened before the date of the alleged incident.	
2	Rose Kureki	Cousin of the accused; aunt of the complainant	
Evidence	On 10 April 2010 the accused was at her house with her and her two small children; all the men of Warasnek had gone into the bush to work but the accused did not go as he has a bad leg. She left the house to fetch water and asked the accused to mind the children. He stayed at the house and she went away only for five minutes, then in the afternoon he scraped coconut for the evening meal. Other than the small period that she fetched water the accused was with her throughout that day. She does not believe that the allegation against the accused is true. The allegation was only made by Y's mother after she faced a compensation demand for swearing at her husband. The community was very surprised to hear about the allegation. Many people were angry with Y's mother for waiting for so long to raise it. It was only Y's uncles and grandparents who supported the idea of taking the allegation to the police.

She believes that Melolyn swore at her husband not in relation to what the accused allegedly did but because they had an argument when she worked late in the garden rather than going with her husband to a funeral gathering in a neighbouring village. She believes that Y's allegation was not against the accused but against another boy, A, who is ten years old. That boy had already got into trouble for interfering with Y. It was a big issue in the local community but later Y's mother took the opportunity to twist Y's story and switched the allegation to the accused.	
3	Martin Ases	Accused's brother	
Evidence	He is a cousin of Y's father – he lives and works in Madang town – went to Warasnek on 12 May 2010 as he was not happy to hear that his sister-in-law, Melolyn, had sworn at her husband (his cousin) – he demanded compensation and discussed the issue with village elders – it was only then that Melolyn made the allegation against the accused – the community got cross with her, questioning her motives for holding on to such an allegation for so long (she was saying that it happened more than a month earlier) – but because of her allegation he dropped his compensation demand.	
4	Elvin Gari	Village Court magistrate	
Evidence	He has been the Village Court magistrate at Tongbur for 11 years – knows all the people involved in this case as he is related to them – he was at the mediation area on 12 May 2010 dealing with the normal types of cases he deals with: adultery, stealing, fighting etc – the accused's brother, Martin, came with a demand for compensation against his sister-in-law Melolyn and that is when he first heard of the allegation against the accused – he sent the matter to the Police but then the Police sent it back to him to sort out in accordance with custom. He then found out that Melolyn was demanding K8,000.00 compensation. He was not pleased about that, the matter became too complex so he did not deal with it any more.	

The critical issue: did the accused sexually penetrate the complainant?

10. Having weighed the competing evidence and the submissions of counsel I have concluded for the following reasons that the State has not proven beyond reasonable doubt that the accused sexually penetrated the complainant:

(a)	The complainant's mother's testimony was of little probative value as it was hearsay. It was admitted into evidence (against the objection of the defence) because of the nature of the case and the possibility that the complainant might not be able to give evidence. It is conceivable that in a trial of this nature (where the complainant is a very young child) a conviction might, in special circumstances, be based on hearsay. Ultimately I have decided that this is not such a case as some good and specific reason for the complainant not being called to give evidence should have been provided and the mother's testimony needed to be corroborated.

(b)	No clear and specific reason was given for the complainant not giving evidence. She would now be six years old, still very young, but not so young as to make her an incompetent or unsuitable witness. In view of her age, it would have been necessary to conduct an inquiry to determine her capacity to comprehend the nature of truth. This could have been done in accordance with Section 6 of the Oaths, Affirmations and Statutory Declarations Act Chapter 317 and the 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. Special measures could have been made for reception of her evidence in accordance with Division III.3 (special measures for vulnerable and intimidated witnesses) of the Evidence Act. This has been done in cases such as The State v Arnold Kulami (2009) N3632 and The State v Amos Jonathan (2009) N3764 where adult men faced trial on the same charge as in the present case and convictions were entered on the strength of the evidence of child complainants (aged 8 years and 6 years respectively at the time of the trials).

(c)	There was no corroboration of the complainant's mother's evidence. Although the common law rule about corroboration of evidence in sex offence trials no longer applies in PNG (by virtue, in this case, of Section 229I (corroboration not required) of the Criminal Code, this was a case built on hearsay, so the complainant's mother's evidence demanded corroboration. There was not even corroboration of the conversation between the complainant and her mother.

(d)	The complainant's mother's evidence was in any event questionable and unreliable as the defence introduced evidence of a motive to provide false evidence against the accused: she was faced with the compensation demand from her husband's cousin as she had sworn at her husband, and it was only when she was faced with that demand that the allegation against the accused surfaced. Her evidence that she noticed nothing wrong with her daughter until three days after the alleged incident is perplexing. If it is true that the complainant was unwell, not walking properly and passing urine with blood three days later, it is reasonably to be expected that she would have shown some signs of distress on the day of the incident. But there was no such evidence. The delay of one month (10 April to 13 May) in taking the complainant to the health centre for a medical check adds further weight to the suspicion that the complainant's mother was improperly motivated. Further, it is clear that the allegation was a controversial issue in the community, as borne out by the evidence of the Village Court Magistrate, Elvin Gari. The complainant's father did not believe that the allegation was true; and this by itself is a reason to regard the allegation with scepticism as a father whose daughter has been violated in the manner alleged would be expected to react swiftly and assertively against the suspect. This is not to say that Melolyn's evidence is rejected outright but it is necessary to highlight the many aspects of the defence evidence that shed doubt on the veracity of her evidence.

(e)	The medical evidence was unreliable as the examination was not conducted until a month after the alleged incident. Further it was vague and the person who conducted the examination did not give evidence.

(f)	The accused was a reasonably convincing witness and his evidence as to his movements on the day of the alleged offence was corroborated by the evidence of Rose Kureki.

(g)	Even if the complainant's mother's evidence and the medical evidence were regarded as reliable, the State's case was circumstantial and the test set out in the leading case Paulus Pawa v The State [1981] PNGLR 498 as to entering a conviction based on circumstantial evidence (that the guilt of the accused is the only reasonable inference to draw from the proven facts) is not satisfied. There are other possible explanations, eg that another person (named by the accused as A) was responsible or that the complainant suffered an injury due to some innocent cause.

CONCLUSION

11. The State built its case on hearsay and slim and unreliable circumstantial evidence. It has not provided a good and specific explanation for its failure to call the complainant to provide direct evidence. Nor has it presented any corroboration of the hearsay evidence of the complainant's mother. The inevitable result has been that the State has not come close to proving its case beyond reasonable doubt.

VERDICT

12. The accused, Joshua Ases, having been indicted 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, is not guilty of that offence and not guilty of any other offence.

Verdict accordingly.
_________________________________

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