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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR. 1218 OF 2010
THE STATE
V
FRANCIS TIGI
Vanimo: Kirriwom, J
2012: 18 July
2013: 18 July
[NO.1]
CRIMINAL LAW – Particular Offence – Persistent Sexual Abuse – Child victim aged 12 – Alleged offender aged 62 – Sexual touching and penetration of vagina with fingers and penis – Offence perpetrated over one year and three months – No violence involved – Alleged offender befriended victim and maintained friendship with family with his generosity – Victim and sister became totally dependent on the accused – Serious betrayal of trust and friendship – Criminal Code, section 229D.
Facts
The accused stands charged with one count of persistent sexual abuse of a child FT aged 12 years old which spanned over a period of three years when she was only 10 when the accused indoctrinated or groomed her into becoming his sex object when he allegedly showed her blue movies on his mobile phone and as she grew older with breasts developing he moved up to touching her breasts which as time progressed moved to touching of her vagina with his fingers and by the time she had her first monthly period in July 2009 penile penetration of the vagina began and even penetration of the vagina with tongue and continued till April 2010 when he was arrested and charged with this offence.
The accused denied the charge and accused the father of the victim Mr FT of making up the allegations and putting that story in the victim's mouth which she then told the police and later told the court.
Given the nature of the charge and age of the victim involved in this case, the only issue here was whether the victim can be believed in her evidence?
The court saw no reason to not believe the victim, although no evidence of corroboration was tendered by the State, and found the evidence over-whelming against the accused, none of which was even rebutted by the accused, and returned a guilty verdict against the accused.
Reasons are in the judgment.
Cases cited
The State v Apolo Kesu [2006] Unreported National Court Judgment.
The State v Steven Makai (2009) N3841
The State v Kikia Solowet (2007) N3154
Publications
Megan's Law- Facts About Sex Offenders (http://meganslaw.ca.gov/facts.htm)
Counsel
T. Ganaii, for the State
A Ninkama, for the Accused
DECISION ON VERDICT
18th July, 2013
1. KIRRIWOM, J.: The accused Francis Tigi from But village, Wewak East Sepik Province was charged with one count of persistent sexual abuse of a child under the age of sixteen over a period of nine months between 1st January 2009 and 30th April 2010, which involved and included sexual touching and sexual penetration of the victim through her vagina and mouth by insertions of tongue, fingers and penis. At all material times of the incidences constituting this offence, the victim was 12 years old.
The indictment
2. The charge against the accused reads as follows:
Francis Tigi of But village Wewak, East Sepik Province stands charged that he between the 1st day of January 2009 and the 30th day of April, 2010 at Vanimo, Sandaun Province in Papua New Guinea, engaged in an act of persistent sexual abuse of a child namely FT who at the relevant times was under the age of sixteen years.
And in the course of persistent sexual abuse of the child, the said Francis Tigi on dates unknown between 1st day of January 2009 and 30th day of April, 2010 on two or more occasions for sexual purposes touched the sexual parts of the said FTwho was then 12 years old by touching her breasts with his fingers.
And in the course of persistent sexual abuse of the child, the said Francis Tigi on dates unknown between 1st day of January 2009 and 30th day of April, 2010 on two or more occasions sexually penetrated the said FT who was then 12 years old by inserting his fingers into her vagina.
And in the course of persistent sexual abuse of the child, the said Francis Tigi on dates unknown between 1st day of January 2009 and 30th day of April, 2010 on two or more occasions sexually penetrated the said FTwho was then 12 years old by inserting his penis into her mouth.
And in the course of persistent sexual abuse of the child, the said Francis Tigi on dates unknown between 1st day of January 2009 and 30th day of April, 2010 on two or more occasions sexually penetrated the said FT who was then 12 years old by inserting his penis into her vagina.
3. The charge as presented in the indictment is a re-draft of the original charge which was much the same or similar in style and content except that the phrase 'by inserting his penis into the vagina' appearing repetitively in the indictment pertaining to the various incidences alleged in the original charge were replaced or rephrased with appropriate wordings consistent with the circumstances alleged by the victim. I accepted the re-worded and re-phrased indictment as presented despite objections by the defence.
4. There is still, in my view, room for improvement even in the way the charge was drafted for purpose of clarity and understanding. But this is not to say that the above indictment was defective or that the accused did not appreciate the nature of the charge against him. He is a well educated man and he appreciated the charge brought against him and the nature of the allegations raised.
A suggestion
5. I would have preferred to see the indictment drafted in these terms:
AB of (address))stands charged that between 1st day of January 2009 and 30th day of April, 2010 persistently abused the victim CD (sexually), over a (duration) period, in that:
And at all material times there was in existence relationship of trust, authority and dependency between the accused and the said victim.
6. Anything like this would look tidier and neater and cut out the monologue of repetitiveness.
7. The accused pleaded not guilty to the charge. State called four witnesses. They were the victim, FT, VT ( her young sister), FT (father of the victim and the complainant) and Detective Senior Constable David Akem. I discuss their evidence in the judgment.
8. Defence went into evidence after an unsuccessful no-case to answer submission and called as witnesses the accused Francis Tigi, one Marley Sega and a Ben Kasanda. I also examine each of their evidence in the judgment.
9. The accused has not raised any particular defence in this case except general denial. No medical evidence was tendered. Medical evidence is not a legal requirement just as corroboration is no longer necessary nor required in sexual offence cases (Criminal Code, s.229H).
Evidence in the State case
FT (victim)
10. FT gave evidence in somewhat reserved manner, not wanting to divulge much but otherwise she told the court what exactly happened in the critical times she and her sister were alone with the accused at his home at Amgrim office. She knew the accused when he was living with them at Palai camp. Later he moved out to his place at Amgrim Office and she and her small sister go to his place and spend nights with him. At the time of this trial FT had left school after Grade 7 and she was no longer a small girl.
11. FT described the sleeping arrangement at Amgrim Office as one single room where three of them slept together on one mattress with accused sleeping on one side, FT on the other side and VT in the middle. Despite this arrangement, VT in her evidence said she could not understand why she sometimes found herself sleeping on the floor when she woke up in the middle of the night or in the morning.
12. FT gave evidence of the accused showing them blue movies and when VT has gone to sleep the accused would fondle her breasts and touch her vagina with his fingers. She said he did this many times and told her not to tell her parents. While he did all these he continued to shower them with nice things and money for lunch and shopping.
13. The breasts fondling and inserting fingers into the vagina went on until the victim had her first menstrual period. After this the accused also began inserting penis into the victim's vagina.
14. I set out verbatim what the victim said in her evidence while talking about their camping at Amgrim Office with the accused:
........
Q. Know when you went and stayed there?
Ans. No
Q. Know what year?
Ans. No
Q. How long you stay there?
Ans. Plenty time
Q.Why were you staying there?
Ans. Francis Tigi asked us to go.
Q.Why did he ask you to go there?
Ans. He was living by himself so invited us to go and live with him.
Q.Who did Francis Tigi ask for you to go and stay with him?
Ans. My little sister.
Q. Know when you left that place for the last time?
Ans. No.
Q. Tell us how you lived with Francis Tigi at Angrim Office?
Ans. No answer.
Q. You slept at Angrim Office?
Ans. We slept there.
Q. Who of you slept at Angrim Office?
Ans. Me and little sister.
Q. Where did Francis Tigi sleep?
Ans. Sleep together.
Q. Tell us of your sleeping arrangement?
A. Francis Tigi, me and little sister.
Q. Sleep on one bed?
Ans. Yes.
Q. How many times sleep there?
Ans. Plenty time.
Q. Who provided food and other things for you there?
Ans. Francis Tigi.
......
Q. Know Francis Tigi was arrested and charged?
Ans. Yes.
Q. Why was he arrested and charged? You know?
Ans. Yes Your honour.
Q. Tell us?
Ans. I told the story of what he was doing to me and my father took him to the Police Station and he was charged.
Q. Tell us what he was doing to you?
Ans. He put blue movie on, sometimes on his mobile phone and also on the screen. When he is seeing (or showing) blue movie he touches my body. One time he told me to undress and I said no but...(victim broke down so a support person had to be arranged to sit with the witness).
Q. Continue where you left off.
Ans. ....He forced me to undress and I said no. He removed my clothes and put his penis into my vagina. He then gave me some money and told me not to tell my parents. He said if I did, my parents will fight him and take him to the Police and there will be no one to give me any more money. Another time he told me to remove my clothes and he licked my vagina. Again he gave me money and told me not to report to my parents. And another time he sucked my breasts and put on blue movie and told me to watch or see the blue movie and repeat what they did in the blue movie. He did this many times.
Q. How did he remove your clothes?
Ans. He pulled down my pants and told me to lie down and he came ontop of me.
Q. How did he come on top of you?
Ans. He came and slept on top of me and inserted his penis into my vagina. This happened many times.
Q. How did Francis Tigi sleep ontop of you and do to you?
Ans. He slept ontop of me.
Q. Where were his hands?
Ans. Put his fingers into my vagina.
Q. How many times he do that?
Ans. Few times.
Q. How many times Francis Tigi put his fingers into your vagina?
Ans. About 2-3 times.
Q. How many days did Francis Tigi put his penis into your vagina?
Ans. Plenty times.
Q. How many times he gave you money?
Ans. Plenty times.
Q. How much money?
Ans. K50, K100 and K200.
Q. How many times show you blue movies?
Ans. Plenty times.
Q. Was VT with you during those times?
Ans.Yes
Q. VT see the movies too?
Ans. Yes.
Q. What type of movies you watched?
Ans. All kinds of pictures of men and women having sex.
Q. What kind of men and women, black or white?
Ans. Black and white.
Q. Where was VT when Francis Tigi did these things to you?
Ans. After she is asleep.
15. And in relation to this matter going to the police FT explains as follows:
Q. Tell the court how this matter went to the Police?
Ans. His daughter came from Port Moresby and wanted her fridge back. Francis Tigi left the fridge in our house and told us to use it. When his daughter came from Port Moresby she wanted it returned. My mother argued with her about that and told her she will return the fridge. They went back to the house. We slept until morning about 5 or 6 am daddy woke me up and asked me and I told him all the stories. And we came and reported the matter to the Police and they arrested him.
Q. Know when you told your father?
Ans. 7th April 2010.
Q. After that you go back and spend night at Francis Tigi's house?
Ans. Yes.
Q. How many times?
Ans. Plenty times.
Q. What happened?
Ans. He told me to stay with him.
Q. Did he have sex with you?
Ans. No
16. FT went on to tell the court how she and her small sister first came to know Francis Tigi while they shared accommodation with Mrs Schola Bogan and her two children at her place where she also shared with the accused.
17. In cross-examination she told the court of the accused showing her blue movies in the house when he was staying with them at Palai camp but nothing more. She said he did all those other things to her in the office where they slept with him. She said after the fridge incident this whole affair became public when she told her father of what Francis Tigi was doing to her.
18. Defence tendered into evidence as prior inconsistent statement and marked as exhibit D1 FT's police statement. The prior inconsistent statement related to the victim's sworn testimony of the accused licking her vagina or penetration of her vagina by insertion of tongue which was not stated in her affidavit or out of court statement. I have expressed before that deposition taken of a witness need not be as detailed as the evidence given orally in court, suffice that there is no marked departure from the sworn testimony to what is in the deposition. Be that as it may, I re-produce that affidavit sworn 14th April, 2010:
"1. I was born on 12th September, 1996 at Boram General Hospital Wewak East Sepik Province.
2. I am from Kafle village, Nuku district, West sepik Province and attending Vanimo Primary School doing grade seven (7).
3. I recall sometimes in 2006 my parents left for Port Moresby on their personal business. I resided with Mrs Schola Bogen with my small sister VT.
4. That particular time I got to know Mr. Francis Tigi because he was also living with Mrs Bogan.
5. During that time my parents understand Francis Tigi as a friend and also my parents accommodated him by giving him a room last year 2009.
6. During the absence of my parents Francis Tigi usually gives me lunch money like K1 to K50.
7. Last year 2009 the Amgrim Office was completed by Vanimo Forest Products and they handed the office to the landowner company Amgrim Holdings Ltd.
8. Mr Francis Tigi moved to the new office and he requested through my parenst that my small sister and I will accompany him to his new accommodation.
9. Few times I with my small sister usually come with Francis and overnight at his new house.
10. That time I was alone with Francis Tigi he usually plays with my (sic) breasts and uses his fingers to penetrate my vagina many times and tells me not to tell anyone and pays me money.
11. After playing with my breasts and finger penetrates my vagina he usually pays me K20 to K50 every time he does this act.
12. My first monthly period was on 29 June 2009.
13. After my monthly period, Francis Tigi, about July 2009 between 9pm to 12 pm asked me to have sex with him. I refused, he forced me, removed my short and forced his penis into my vagina.
14. I had no complications during the intercourse Mr Francis Tigi usually finger penetrates me so many times. When Francis had finished having sex with me he paid me K20.
15. From that time on since that first sexual intercourse, Mr Francis Tigi sexually penetrated me seven times and paid me money after sex.
16. From the experience Francis Tigi has done to me my father noticed my appearance and questioned me about Francis.
17. On Wednesday 7th April 2009 I reported to my father and mother what Francis has done to me.
18. On Friday 9th April, 2009 my father reported the matter to the police.
19. On Sunday 11th April 2009 I was approached by Francis Tigi and requested me to see him at his house. At about 10pm I left my house and came to Francis Tigi's house. At the house he told me to support him to deny the allegation about him. He gave me K100 cash to corrupt me.
20. Today Francis Tigi went to the school, picked up my small sister and told us to help him deny the allegation."
19. The charge in this case is one of persistent sexual abuse, and in her statement she talks about sexual penetration of her by finger and penis and tongue. For purposes of satisfying all the elements of the offence, the evidence is there. This affidavit was deposed to on the same day that the accused was interviewed for the first time regarding the complaint.
20. Counsel for the accused asked these series of questions in reference to the police statement and her sworn testimony:
Q. Recall your statement Exhibit D1 I showed you earlier? You told court that accused licked your vagina. Remember telling court that?
Ans. Yes.
Q. Did Police write this down in that statement?
Ans. No.
Q. Put to you that Francis Tigi never licked your vagina?
Ans. No answer
Q. You made this up?
Ans. It is true.
Q. That is why it is not in your statement?
Ans. No.
Q. Statement is made up?
Ans. Not true.
Q. That is not what you told the Police. That did not happen? Francis Tigi never licked your vagina, true or not true?
Ans. Not true.
Q. Not true meaning what?
Ans. He did it.
21. She was then cross-examined at length for not reporting to anyone or parents.
Q. Recall when this incident first happened? Why not report it to your family?
Ans. He gave me money.
Q. Those things were bad, were you upset about them?
Ans. Yes
Q. if you were upset, you should have reported but you did not?
Ans. He gives me money.
Q. He did nothing bad to you so you did not report to your family?
Ans. He gives me money and tells me not to tell my parents.
Q. Recall first time when this happen?
Ans. Yes.
...
Q. put to you that you reported the matter to your parents and police on 14/4/10?
Ans. Yes.
Q. Those bad things happened before 14/4/10?
Ans. Yes.
Q. Put to you that between 1/1/09 and 14/4/10 when Francis Tigi was arrested, bad things happened to you?
Ans. True.
Q. Many months passed between those times and you did not report the incident?
Ans. He did it.
22. In re-examination she re-iterated her story. She denied being assaulted by her father to tell him all the story about what the accused did to her. She confirmed her earlier story to the police to be true.
VT (victim's sister)
23. The next State witness was VT. She was said to be 16 and attending Vanimo Primary School at the time of trial. She said she was in court because of Francis Tigi. He had some problem with her sister. She then went on to tell the story of her parents going to Port Moresby in 2007 and leaving her and her sister with Mrs Schola Bogen at Jackson Mosh's area. Francis Tigi looked after them while they were there. When parents returned they moved back in with the parents at Palai camp while the accused remained with Mrs Bogen until she too left for Madang.
24. By now the accused moved to his work place in Angrim Office. She and her sister sometimes stayed with accused at Angrim office and other times at their parents' home.
25. This witness was all over the place with her story. Nothing came out of her in a coherent and cohesive context and fashion because she was not testifying willingly. She was prompted to tell her story in bits though not sequentially and that is why it has to be rationalised by analysis with other evidence. Unlike her big sister FT who also was an unwilling witness, but she nevertheless told the court of the experiences she went through first hand with the accused.
26. VT adored the accused as a nice uncle who looked after her and gave her money and supported her during the time her parents were away in Port Moresby and even after they returned to Vanimo.
27. State therefore attempted to discredit the witness by tendering into evidence her affidavit she swore as her out of court statement given to the police marked as Prior Inconsistent Statement - Exhibit 5.
28. In this affidavit sworn 20th April, 2010 she said she was in Grade 6 at Vanimo Primary School at the time of the investigation of this case. It is a one page affidavit and the relevant paragraphs are set out below:
....
Mr. FT (victim's step-father)
29. The next State witness was Mr. FT from Kafle village, Nuku, West Sepik Province. He is an elderly man in his early fifties and twice married. From his first wife PT he had two children, FT1 who was now married and DT who was 9 years old.
30. In 2003 he married his present wife, mother of FT and VT. When he married their mother, the two girls were aged 6 and 5 years respectively. He raised the two girls together with his own two children as his own children.
31. He is a school teacher who resigned from teaching in 2007. Following his resignation in early 2007 he and his wife went to Port Moresby to collect his finish pay. As they were close friends with Mrs Schola Bogan, they left the two girls with Mrs Bogan and went to Port Moresby. At that time they knew of the accused who also rented a room at Mrs Bogan's place.
32. When they returned in August they were told by Mrs Bogan and the two girls that the accused assisted them with lunch money and bought food for the house.
33. They got the two girls and returned to Palai Settlement. About this time PNG Harbours Board claimed ownership of land where Mrs Bogan was settling on and forced her out and Vanimo Forest Products had to relocate elsewhere. The accused did not want to move to that new location and asked Mr. FT and his wife to spare him a room to rent and they did.
34. As they knew him as a friend they leased him a room in their house to rent for K500 per month. This was between the year 2008 and 2009.
35. At some point in time thereafter, Mr. FT began seeing noticeable changing behaviour from FT and her attitude towards the accused and reciprocated by the accused's heightened interest in his daughter. He noticed too that the accused was over-bearing on his daughter too much, restricting her movement and even inquisitive over her telephone calls and communication. She was also not concentrating in her school as her interest dropped and her attendance and even her performance in class was worrying . He was worried as the father by what he was seeing.
36. Therefore on or about 9 April, 2010 at about 6:04am in the morning, Mr. FT confronted her with a made-up accusation that she was having an affair with the accused and that the accused admitted to this and he was locked up in police custody as a result. The victim immediately admitted and told him everything about what was happening between them. The year given as 2009 in his testimony does not auger well with other evidence so I will accept this as genuine mistake. The witness actually meant 2010. So two days later on 11th April, 2010 Mr FT lodged his complaint with Vanimo Police which ultimately led to the arrest of the accused.
37. This arrest did not take place on that day without drama. It is important to appreciate this because the defence relied on this evidence to show that this complaint against the accused was fabricated by Mr FT and forced upon or down the victim's mouth to repeat this story to the police for a case against the accused. And defence wanted to demonstrate this by the subsequent behaviour and conduct of the victim and her small sister as indirect retraction by the victim of her confession to her father on the morning of 9th April 2010.
38. The following extracts of evidence taken in cross-examination set out verbatim from my own notes illustrate this scenario:
Q. When Mali got her fridge you and your wife were very angry?
Ans. I had nothing to do with the fridge. As the father of the house, I gave my full permission for them to come and get the fridge. I was not upset when Mali got her fridge.
Q. You recall questioning your daughter on 9 Apirl 2010?
Ans. I asked FT and she told me what Mr Tigi did to her.
Q. I put to you that on that night you told your daughter that just had an argument with the accused and his daughter and the accused told you that he was sleeping with your daughter FT?
Ans. I as the father of the girls FT and VT am concerned about their future as I see from their attendance at school and performance in class and the way Mr Tigi was masterminding FT's movement, walks and behaviour and FT's increased sexual awareness and interest at the time. So as the father who was concerned about their future, what tactic I used to question her to give me the answer is my concern.
Q. What do you mean by tactic?
Ans. How I questioned her to give me the answers.
Q. Your tactic was to say these things to her and FT was to respond?
Ans. No.
Q. Put to you that you put those words in her mouth and assaulted her?
Ans. No.
Q. Because you assaulted her she made up the story?
Ans. No. I did not assault her.
Q. After you questioned FT you reported matter to the Police?
Ans. Next day I reported matter to the Police.
Q. when exactly was the next day?
Ans. 11th April 2010.
Q. After reported the accused, when was he arrested?
Ans. Reported on Friday, Police arrested Mr Tigi on Monday.
...
Q. Recall time you and your wife were at the Police Station when the accused came in his vehicle with your daughters?
Ans. Yes.
Q. You were upset when you saw them with the accused and shouted at them and called them names?
Ans. I reported the matter on Friday. On Sunday night between 8:30 and 9:00pm Mr Tigi went up to my house and asked a next door neighbour to get FT to go to him. Without mother and us knowing FT disappeared and went with Mr Tigi. Mr Tigi gave her a K100 note and told her to deny the story and same time told FT to go with him to the company office and she did. She slept in the company office till next morning. When we woke up in the morning we discovered our main door opened and remained that way throughout the night. We also realised FT had not slept in her room. Therefore her mother and I started searching for her. We finally came to realise that Francis Tigi took her in his maroon forerunner to Vanimo Primary School to pick up her little sister VT. Without my permission they took that little girl out of school and took her to the Police Station with her big sister. I was frustrated; I cannot recall what comments I made when I saw Mr Tigi pulling the little girl out of school.
Q. Is it correct that you did not see what you just told the court about the K100?
Ans. She gave me and her mother the K100.
39. Cross-examination then centred on Mr FT's visit to the Juvenile Court Officer, Ben Kasanda, who is also the Senior Community Based Corrections Officer in Vanimo.
Q. Recall going to the Probation Office here in Vanimo of 14/4/10 with you daughter and your wife?
Ans. Yes.
Q. this is two days after the police arrested the accused?
Ans. Yes.
Q. You went there to the Probation Office to seek advice?
Ans. Yes.
Q. Consulted Ben Kasanda?
Ans. Yes. It was not a meeting. We only brought FT to Probation Office to explain what happened.
.......
Q. During the meeting was it not Mr Kasanda's advice to settle this matter out of court?
Ans. He advised us to settle outside or go to court.
Q. after that meeting you went about demanding compensation from the accused?
Ans. Yes.
Q. You asked for various amounts starting at K100,000?
Ans. No.
Q. Because you asked for that amount accused said no compensation let us go to court?
Ans. No.
.....
Q. Because of your concerns you want the court to deal with the accused?
Ans. I brought this complaint to the Police because I thought the future of these two kids are spoilt, that is why I thought the State will come up with some advice to solve this problem.
Detective Senior Constable David Akem
40. The last witness for the State was Detective Senior Constable David Akem who served the Police Force for 25 years and 20 years in CID. He was OIC CID Fraud Unit here in Vanimo but also investigated other cases including sexual offences. He was the investigating officer in the case following complaint of rape against the accused Francis Tigi.
41. The essence of his evidence was to show that this case was not a trumped up charge against the accused but based on genuine complaint. And this is supported by evidence of the Senior Constable together with an affidavit of the corroborator Detective Senior Constable Joseph Seki sworn 26 May 2010. A sworn affidavit from DSC David Akem to was admitted into evidence and both marked exhibits 2 and 3 respectively.
42. Also admitted into evidence by consent was a copy of the victim's birth certificate or certificate of birth entry dated 11th March 2010 showing that the victim was born on 12 September, 1996 at Boram Hospital Wewak.
And exhibit 1 is the record of interview between the accused and the Police which contains all denials.
Defence evidence
Francis Tigi
43. The accused denied the allegations and said that the complainant Mr. FT had framed up these allegations and told his daughter to make these false accusations against him. He told the court that Mr. FT was upset over the fridge that was removed from his house with police assistance when they wanted to keep it to sell black market beer as their only source of income. The fridge belonged to Mali and she wanted it back.
44. Because of this he assaulted FT and induced these false allegations from her and reported him to the police. To prove this he said the victim and her small sister went on their own free will to the Police Station with him to withdraw the complaint made.
45. Defence also tried to admit into evidence a typed document headed Statement marked MFI 1 purportedly written and signed by FT. This was a statement contradicting her earlier statement given to the police describing it as all lies as she was forced, tricked and lied to by her father to give those stories which were not true. But the document was never tendered into evidence and remained a MFI when trial concluded. What would be the value of that evidence is an interesting question.
Marley Sega
46. Marley Seka was the second witness for the Defence. She was said to be a daughter of the accused because she was raised by the accused when she was six years old. Originally she comes from Gaire village in the Central Province. She is married and had two children.
47. She said when she left Vanimo on 12 March 2009, she left her fridge with the accused who gave it to the victim's family to use. When she returned from Goroka on 12 March 2010 she saw FT with her dad in Amgrim Office.
48. A week after her arrival her father went to Port Moresby on business trip. This was on 17 March 2010. The two girls were with them. Their behaviour was causing her some concerns. She immediately disliked them because they went out at night and came home late, they smoked and she got scared of having them around in case they get into problem and she finds herself or they could be in trouble. So she sent them back to their parents. She told the accused about this upon his return.
49. After the girls had returned to their parents she asked them for the return her fridge on 1 April 2010. There was some reluctance and she got into argument with RT. She complained to the police and the next day police told the family to return the fridge. Following the police visit on 5 April 2012 she went back and got her fridge from them.
50. About a week later on 11 April 2010 at 11pm they had a visit from FT. She had run away from her parents to tell them that her father and tricked her and she told her father of what she and the accused had been doing at Amgrim Office. She slept with them that night and the next morning the small sister VT also turned up crying and feeling sorry for the accused. She asked them to collect her from school and take her with her sister to the Police Station and together they will stand by uncle Francis.
51. When they drove to the Police Station with FT after picking up VT from school, the parents were already at the Police Station. The parents were furious to see the girls in the company of the accused screamed at the girls saying 'tupela meri bilong Francis Tigi, kam aut said'. She saw Police Station Commander punch the accused as he sat in the car.
52. After this incident the relationship between her and the accused and the victim's parents turned for the worse. All communication
ceased. However the victim continued to ring her and her dad asking for assistance every now and again and they have been reminding
her that she was a State witness and they can be in trouble for interfering with her. That constant communication and assistance
was being given even well after the case was already registered with the National Court including the week of trial in this matter
here in Vanimo.
I have set out Marley's evidence in the judgment to show the vicious cycle of events that unfolded after the victim told her father
of her traumatic experiences in exchange for a good and comfortable life while growing up in a settlement where life was never meant
to be easy. Otherwise, Marley is not a material witness in the defence case and neither is her evidence. Her evidence is all but
part of the res gestae.
Ben Kasanda
53. Defence last witness was Ben Kasanda. I have already described him earlier, he is the senior community based corrections officer in Sandaun Province and also the juvenile court officer. He interviewed the victim when brought to him by Mr. FT and his wife in his capacity as Juvenile Court Officer to seek his advice and opinion after lodging complaint with the police of what happened.
54. Mr. Kasanda questioned the child victim in the presence of the parents but she was tight-lipped and said nothing so he knew she would not say anything in the presence of her parents thus he excused the parents who left him and the victim alone. It is not clear what the victim told Mr Kasanda but according to Mr Kasanda, the victim denied any sexual contact with the accused. He then told the parents of the victim's denial of the allegations and suggested that they consider settling this matter out of court.
55. It seems there were some attempts made but abandoned in favour of prosecution. But I must sound a caution here that court officers dealing with juvenile offenders must exercise caution and restraint when serious criminal cases involving minors or juveniles are brought to their attention. This is a very serious case that diversion was obviously not an option to be considered when the matter was in the hands of the police and it involved a mature adult and a small child. It will render meaningless the increased protection given to the child victims of sexual violence introduced into the Criminal Code in the 2002 under the legislative enactment known as Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 (No 27 of 2002).
56. I have no problem with the part Mr Kasanda played in this case up to this stage. However, in my view Mr Kasanda over-stepped the fine line that separated his official responsibility and sank into a world of oblivion and negligence when he released a copy of his interview notes to the accused with whom Mr Kasanda had no business with in connection with the victim and of sharing confidential information that came to his knowledge and possession in the course of and by virtue of his employment. And as it turned out, as would be expected, the same information was used by the accused to mount a case against the interests of the juvenile whom Mr Kasanda was by law supposed to be protecting. This is where Mr Kasaanda's involvement becomes a suspect due to improper use of office to extract information that was unlawfully divulged to the wrong party in this case.
57. Otherwise, Mr Kasanda was not a material witness in this case and his evidence was absolutely irrelevant to the issue before the court.
Analysis of the evidence
58. FT gave evidence of sexual penetration of her vagina by the accused with his fingers and penis, she gave no evidence of sucking the accused's penis or the accused inserting his penis into her mouth but she testified to him licking her vagina with his tongue or penetration of the vagina by insertion of his tongue. This was not part of the allegation in the State case and no address was made on this by either counsel.
59. I will disregard the allegation of sucking penis or penile penetration of the mouth because there is no evidence supporting it and likewise I will not rely on the evidence of licking of vagina which is not part of the charge against the accused. However because the charge is one of persistent sexual abuse I will consider it as part of the res gestae of the State case overall that sustained the entire case of sexual abuse.
60. The only evidence of persistent sexual abuse are based on repeated instances of touching of the victim's breasts and sexual penetration of the victim by the accused on two or more occasions:
when she was only 12 years old.
61. It is not disputed that FT was 12 years old at all material times during which these alleged acts took place. She was born on 12 September 1996 at Boram Hospital Wewak and this evidence was tendered by consent. It is also not disputed that even as early as 12 years, victim was already sexually developed with a number of boyfriends she had at the time. I make this observation purely on the evidence of the father and that of the accused and his daughter Marley. This evidence came out during cross examination of the father and in examination in chief of the accused when he gave his evidence. I stopped further testimony on this from the accused because this evidence was attacking the character of this child victim when she was not even given the opportunity to admit or deny those stories about her when she was in the witness box.
62. Be that as it may, I accept however that her constant outing with boys and possibly becoming involved in teen sex at that early age was clearly obvious to her step-father Mr. FT, a retired teacher, who was becoming quite concerned not only by her behaviour, but also by decline in her performance at school. Her attendance too was bad according to the father.
63. On top of all these, he was unsettled by the sudden deep interest that the accused showed towards the child FT's affairs. The father used the phrase 'over-minding' and said that the accused was 'over-minding her affairs'. In other words the accused made it his business to know everything that FT was doing, where she was going and so forth, as if she was his own daughter and Mr. FT suddenly became conscious of FT's sexuality. Such conduct observed by Mr. FT was reason enough for him to be worried as the father. FT was only a child and such attention from someone old enough to be her grandfather was not normal.
64. Like all fathers he confronted FT to tell him as to what was going on between her and the accused. He knew that having FT spilling the beans on the accused would not come freely and willingly given the long period of their relationship. The accused had been provider to the victim and her small sister VT since 2007 when Mr. FT and RT went to Port Moresby and remained there for some months and whilst the girls stayed with a family friend Mrs Bogan in whose house the accused was coincidentally accommodated as well, he looked after them and they looked up to him as their source of support.
65. This support continued even when the accused moved into the victim's family's residence at Palai Settlement where he rented a room in their house after Mr.FT and his wife returned from Port Moresby. The bond that developed between the accused and the two girls had become so strong that the accused even trusted the accused as a true friend to the extent of allowing the girls to stay over with the accused at his company residence.
66. Mindful of this background and using a bit of psychology, Mr. FT devised a trick which his daughter fell for it and spilled everything to him. The disagreement over Marley's fridge had the parties on the edge even going to the Police Station. Mr FT tricked his daughter about confession on the part of the accused, and not knowing this was a lie, the victim revealed to her father of what was happening between her and the accused.
67. Evidence is conflicting here as to the victim's reaction when she discovered that her father had tricked her. On the one hand, from the defence perspective, it is asserted that when she learnt that her father had tricked her, and he now had the information he needed to lodge a complaint with the Police against the accused, she immediately alerted the accused of what happened. However, from the prosecution perspective, the accused secretly organised for FT to go to him and he paid her K100 to withdraw the case.
68. Let me now digress briefly to address this point about eliciting the truth from children who have done wrong by their parents or guardians by whatever tactic that is applied. Firstly, this type of interrogation is not the same as interviewing a suspect by a State authority for purpose of criminal prosecution of the person questioned. This is where the law prohibits self-incrimination and obliges the person to exercise his right to silence. A parent's right to information that will help them to advance the welfare and interest of their child who is alleged to be a victim of crime is not the same thing. There will be many reasons the child concerned will not cooperate including fear of being beaten, sympathy for the other person, embarrassment, shame, etc as research into victims of child sex abuse show.
69. Therefore, I agree with Mr FT when he said that as the father of those girls, how he obtained information from the victim or what tactic he used to compel his daughter to tell him her story of what happened between her and the accused, is none of anyone's business except his alone, and could not have been better stated. She would need some persuading to admit. No sensible person can quarrel with that statement as long as the child is not armed in any way.
Shooting the messenger down
70. Defence conducted its case by targeting the whistle-blower which was Mr FT. Shooting the messenger down is not going to make the case disappear. The case has nothing to do with Mr. FT. He did what every father in his situation would have done. That is not sin, nor is it unlawful. It may be unfair but definitely not unlawful. It is better for the father to act now and save his daughter from more serious harm than turn a blind eye and pretend as if nothing was going on although he may have had some suspicion, until permanent damage is done or pregnancy occurs, as is often the case according to reported cases.
71. In most cases of this nature nobody knows what is happening behind the screens of those apparently benevolent and kind gestures of and support provided by someone with a big heart until something snaps. The child victim becoming pregnant is often the common result in most cases when the news spreads and public gets to know what has been really happening behind all the smoke screens of perfect relationships. That is when the truth comes out.
72. In this type of cases for purpose of criminal law the benevolent gestures and fatherly figure to the child victim is not necessarily a defence nor is it a defence for a person charged for child molestation or sexual abuse of child, but rather a tool of manipulation or torture chain disguised in chocolate coated cream that is sweet and attractive to the child victim more than its repelling effect in its damaging consequences she is not prepared to recognise just yet.
73. Defence counsel took a strong challenge to the father of the victim who did the right thing in this case. In cases of this nature, it will do defence no good to shoot the messenger who is doing the right thing by law. The father is not the cause of the accused finding himself in this situation.
The issue
74. The issue is:
75. The issues are:
76. The point to emphasise here is that the father is only a whistle-blower as well as being the complainant. His evidence is relevant as far as his complaint is concerned based on what he was told by the victim. The evidence that is crucial in determining criminal culpability of the accused is the testimony of the victim herself, by circumstantial evidence, the behaviour and evidence of the little sister VT.
77. The father did not make up these allegations given to police and later to the court by the victim. He could not be a privy to all these intimate details of what happened between the child victim and the accused. So he can't have possibly put those words in the victim's mouth.
Only the victim knows the truth
78. Only she knows what happened to her, what he did to her, where he did it to her, how he did it to her and how many times he did those things to her. Only she knows that the accused used to show her and her little sister blue movies in his mobile phone while he was staying with them in their house in the privacy of his room. Only she knows that this practice continued at Amgrim Company Office when the girls joined the accused there and shared the same bed and mattress with him. And only she knows that from showing blue movies, his probing fingers moved up the next step to touching her breasts and then to the next level of touching her vagina, gradually progressing to inserting of fingers into her vagina and ultimately graduating to penile penetration of her vagina and penetration of her vagina by his tongue. These are the experiences only she knows that the father could not have placed in her mouth. Only she was qualified to reveal them from her own experiences. Personal experiences cannot be made up by somebody else and planted in someone's mouth.
Rule in Browne v Dunn
79. The accused never put to the victim that he did not do those things to her as she alleged. He did not put to the victim that all those things she alleged against him were not true but were all lies. The accused, it seemed, was obsessed by the fact of being caught in this difficult or embarrassing situation by trickery on the part of the victim's father when he was doing everything possible to keep this affair under wraps by making sure that the victim and her little sister were always happy with him and had him in their good books with the money that he constantly kept flowing to them for their up-keep daily and lunches at school.
The Defence Game of Shifting Sides
80. The accused therefore reverted to a game of psychology where he tried to alienate the victim's father from them by distancing him as their step-father and not their real father as he worked his way closer to the mother of the two girls RT. As the proceedings were on foot before the committal court, he and his daughter Marley drafted a letter to the Magistrate to withdraw the case when such course was only open to Mr. FT, the complainant in this case, and he was not aware of what was happening.
81. On the day he was questioned and charged, the accused went to the Police Station in the company of his daughter Marley and the victim FT and her little sister VT. He had the girls with him to support him deny the charge against him and possibly to have the charge withdrawn. When they arrived at the Station Mr. FT and RT were there waiting with the PPC and to his dismay whatever plot he may have had just dissipated as the table was already turned against him. According to the evidence, he was immediately pulled into the station for questioning and later charged.
82. Defence concentrated in discrediting Mr. FT as an untruthful witness who forced or coerced his daughter into 'confessing to him' something that never happened between her and the accused. It was all but an imagined case made out of nothing because of a fridge that belonged to Marley, the daughter of the accused that Mr and Mrs FT did not want to part with and were forced to release it to Marley under Police supervision. The differences over the fridge turned into dislike of each other resulting in Mr. FT concocting this story against the accused.
83. The accused gave evidence denying the charge and called as his witnesses two people. The first witness was Marley Sega a young woman from Gaire village Central Province who says she was raised by the accused when she was only 6 or 7 years old when her father died and looks up to him as her father as the person who brought her up. The other defence witness was Ben Kasanda, Senior Community Based Correctional Officer of Vanimo Sandaun Province, man who wears many hats under the Community Based Corrections Office in the Department of Justice and Attorney General as Senior Probation Officer, Senior Parole Officer, Senior Juvenile Court Officer and generally known as Senior Community Based Corrections Officer.
84. Marley's evidence relate to the behaviour of the victim and her little sister VT which caused her real concern to remove them from her father's house at Amgrim company premises and also the fridge which the accused took to their place which the family used to store cold drinks and even beer which they sold in the informal sector market and the resistance she faced with RT recovering it back from them.
85. Ben Kasanda's evidence concerns an interview that he had with the child victim FT in his office in the course of his duties as a Juvenile Court Officer and what he did with that interview record. I will discuss his evidence in detail later, particularly the appropriateness of his dealing with confidential information coming into his possession in his capacity as juvenile court officer and given to him strictly in that capacity and to be used only in the best interest of the person who gave that statement. Strangely enough, this interview statement was given to the accused who used it to mount his defence against the charge that was laid against him to contradict the State case whose principal witness is the victim herself, although she does not know this.
Identifying sex offenders according to established characteristics and patterns of behaviour
86. It is not an uncommon experience or phenomenon in this type of cases that the child victim is often the unwilling and reluctant witness against the accused. And the reasons for such attitude or behaviour are explained in many publications and articles on the subject under different titles dealing with child sex victims or child sex offenders. A good example of this publication that gives simple and plain facts about sex offenders is one produced by the Office of the Attorney General, California Department of Justice and published in the internet as Megan's Law. I have appended a short print-out of this in FAQ format as an appendix to this judgment. Amongst the many reasons a child sex victim would not report or disclose to anyone of what is going one include:
87. Failure by the child to inform anyone of the abuse is not that the child victim must have consented to the acts as consent is immaterial where offences against children are concerned as child victims are by law incapable of giving consent (Criminal Code, s.229F).
88. A classical example of a case involving a child victim who was sexually abused by her step-father over a period of ten months when she was only 11 years old and despite detesting what the father was doing, she could not tell her mother because he threatened to kill her and her mother and dump their bodies where no one will ever find them is the case of The State v Apolo Kesu [2006] Unreported National Court Judgment. The abuse continued in the family home while the mother was at work and the child got home from school. After ten months of persistent abuse of sexual penetration by finger, tongue and penis, sexual touching and other indecent acts against the child, the child reported to her aunt when she and the mother went home to the mother's village without the step-father and she saw the only opportunity to reveal all. She did not tell her mother because she did not think she will believe her and also if the father finds out, that was it for her and her mother. His threat to kill them lingered in her head.
Fear of losing support if accused goes to prison
89. This case falls in the category of fear of losing the accused as he was their main source of support who brought them much happiness that their own parents could not fulfil these needs. There was this vacuum in their needs that the parents could not satisfy. The accused had over time groomed them and cultivated this culture of dependency on him that they felt safe, secure and trusted and relied on him for support. Their reluctance to help police, their parents and even this court was a mixture of fear of losing him and sympathy for the accused.
90. Defence relied strongly on the fact that the accused provided freely and willingly to the victim and her sister and quite recently since this case was registered even the mother of the victim was said to be eating out of the hands of the accused. He was so fond of the victim and her sister that he would not have done such bad things to the victim as alleged. In cross-examination defence counsel took issue with a State witness that if the accused was doing those bad things to the victim as alleged; she never complained or reported to the authorities at her own free will of what was happening in the Angrim Office at nights. This statement overlooked simple logic that sexual intercourse between a male and female is not such a bad thing irrespective of age disparities between them and to expect the victim to regard it as 'bad thing' if she was willingly participating in it is a ridiculous proposition. Be that as it may, whether the victim was a willing or consenting party, it did not matter because of the protection that the law has for children under 12 and 16 years old from older people. The point that the defence was relying on in support of the accused is a clear recipe for the commission of this crime because the accused had over the last two years starting from Mrs Bogan's house where he lived with the two girls to the time he had his own place, had established himself with the victim and her family of such a close relationship that the situation was now ripe for him to pick the fruits of his evil scheme without any negative reaction from his victim. He made sure that the victim and her sister saw him as their saviour and their survival rested on him that they must protect him from any harm.
91. Victim in her evidence told the court that every time they had sex he would give her money and tell her not to tell anyone or the police will arrest him and take him away and there will be no more support for them. The victim and her sister believed this and they feared for his well being. They wanted him to continue to provide for them. This was clearly evident in the demeanour of the little sister whose evidence mostly supportive of the accused as a good man who looked after them.
92. Even if she knew what was going on, she was not prepared to see the accused go to jail and she being left without support. She also shared the same bed and mattress with her sister and the accused and there have funny incidences sometimes when she found herself sleeping on the floor in middle of the night or the next morning when she knows she slept on the mattress when she went to bed.
93. The victim testified that she (the victim) slept in the middle, the accused on one side of her and her little sister on the other side of her, all on one big mattress. After the little sister had slept the accused would play with her breasts, vagina and sexually penetrate her. She never felt any pain because he had over time managed to open her vaginal passage by inserting his fingers inside her vagina and she was able to accommodate his penis without trouble when sexual penetration with penis finally took place and continued thereafter.
94. There is only one offence charged which is of persistent sexual abuse of a child over a period of nine months between 1 April 2009 and 31 March 2010. It is just one continuing charge consisting of four or five different elements and circumstances spread or clustered over countless number of times and days involving initially cuddling or fondling of the victim's breasts, then followed by penetration of the vagina with fingers and finally penile penetration of the victim's vagina. There was evidence of penile penetration of the victim's mouth as well and through this fact was not pleaded in the charge for the accused to answer, it did not matter because the accused denied the charge anyway. But I don't place much weight on it as I have stated earlier. There was suggestion also penetration of the victim's vagina by the accused's tongue. Penetration of the vagina by the penis took place 'plenty times' as described by the victim. She estimated finger penetration three or four times and this would have been during pre-first menstrual period. By the time the victim passed this stage, penile penetration took the centre stage in their sexual activity. As the victim herself described in her statement tendered into evidence by defence and marked exhibit D1 –Prior Inconsistent Statement of FTin the following paragraphs:
13. After my monthly period, Francis Tigi, about July 2009, between 9pm and 12 midnight asked me to have sex with him. I refused, he forced me, removed my short and forced his penis into my vagina.
14. I had no complications during the intercourse because Mr Francis Tigi usually finger penetrates me so many times. When Francis had finished having sex with me he paid me K20.
95. After this encounter, there was no turning back. He continued with his exploitation of this innocent and immature child then only twelve years going to thirteen years old.
Victim a credible witness
96. Is there any reason why I should not believe this girl who went through these traumatising sexual experiences at that early age? At the time she testified before me in July 2012, she was heading towards her 16th birthday and well composed and she gave her evidence on oath appreciating well the nature of the oath she took. Those graphic details of what went on in Amgrim Office in the middle of the night after her small sister went to sleep could only have come from the person who was in the act and no one else. There is no reason for me to not accept this story from the victim of those unfortunate events that unfolded during those times the victim and her sister lived on the generosity of the accused.
Accused a liar
97. I do not accept the evidence of the accused and the defence witnesses. Their story is not new. It was the reaction of someone in despair. The opportunity for the crime was always there and it was designed and put in place by the accused deliberately over time and it is not surprising that this revelation has uncovered what was happening.
The Law
98. This offence of persistent sexual abuse was only passed by the Parliament in 2002 –see Criminal Code (Sexual Offences and Crimes Against Children) Act of 2002, s.15 (No. 27 of 2002) and there are not so many case law authorities on the law. There is however only few decided cases on trial where the accused denied the charge for various reasons and pleas of not guilty were entered. Often the defences were of general denial.
99. Section 229D provides:
"229D. Persistent sexual abuse of a child.
(1) A person who, on two or more occasions, engages in conduct in relation to a particular child that constitutes an offence against this Division, is guilty of a crime of persistent sexual abuse of a child.
Penalty: Subject to Subsection (6), imprisonment for a term not exceeding 15 years.
(2) for the purposes of Subsection (1), it is immaterial whether or not the conduct is of the same nature, or constitutes the same offence, on each occasion.
(3) In proceedings related to an offence against this Section, it is not necessary to specify or prove the dates or exact circumstances of the alleged occasions on which the conduct constituting the offence occurred.
(4) A charge of an offence against this section—
(a) must specify with reasonable particularity the period during which the offence against this section occurred; and
(b) must describe the nature of the separate offences alleged to have been committed by the accused during that period.
(5) For an accused to be committed of an offence against this section—
(a) the court must be satisfied beyond reasonable doubt that the evidence establishes at least two separate occasions, occurring on separate days during the period concerned, on which the accused engaged in conduct constituting an offence against this Division in relation to a particular child; and
(b) the court must be so satisfied about the material facts of the two incidents, although the court need not be so satisfied about the dates or the order of those occasions.
(6) If one of more of the occasions involved an act of penetration, an offender against Subsection (1) is guilty of a crime and is liable, subject to Section 19, to life imprisonment."
100. In order for a charge to satisfy this provision or fulfil the ingredients for this offence, there must be two or more occasions of sexual abuse of a child in the nature of sexual touching or sexual penetration by any means of the victim's vagina or other sexual parts by a male penis or other means manipulated by someone.
101. The repetitive acts amounting to sexual abuse can be of the same nature or of different types and description but must occur at different times and different locations or same place and it is not necessary in which order they are presented.
102. All these separate incidences are in my view different elements of the single offence of persistent sexual abuse, it can be all sexual touching, it can be all sexual penetration of victim's mouth or anus by man's penis or sexual penetration of victim's vagina by man's tongue or fingers or penis. As long as there is clear evidence of repeated acts of sexual nature of no less than two occasions, the offence is complete.
103. As Cannings J said in The State v Steven Makai (2009) N3841:
"(1) For an accused to be convicted of the offence of persistent sexual abuse of a child, the court must be satisfied beyond reasonable doubt that:
(a) he engaged in conduct in relation to the child that constitutes an offence under Division IV.2A of the Criminal Code;
(b) on two or more occasions;
(c) each occasion was on a separate day; and
(d) the material facts of the occasions are clear.
(2) The court does not have to be satisfied beyond reasonable doubt as to the dates or order of the occasions.
(3) The State does not have to prove each occasion of criminal conduct alleged in an indictment; two will suffice.
(4) In the present case, the court, having satisfied itself that the complainant understood the nature and importance of telling the truth, regarded her evidence as credible; and its credence was supported by the evidence of her complaining to two other people about what happened.
(5) The medical evidence supported the allegation of penetration of the complainant's vagina.
(6) The accused's sworn evidence was unconvincing, his demeanour was poor and he in effect presented a vague alibi without notice to the State; and there was no other evidence to support his story.
(7) There was sufficient evidence for the court to be satisfied beyond reasonable doubt as to the existence of all elements of the offence. The accused was therefore found guilty".
104. And in The State v Kikia Solowet (2007) N3154, another decision of Cannings J, His Honour reiterated the same requirements in proving the offence where he presented this summary of the case:
"A man was indicted for persistent sexual abuse of a nine-year-old girl, his niece. He pleaded not guilty. It was the State's case that the accused engaged in ten acts of sexual penetration with the girl over a three-week period. The complainant, now 11 years old, gave evidence, as did the accused's son, now aged 15. The State also relied on the accused's record of interview and a medical report. The accused made an unsworn statement from the dock, denying the charge and alleging that the case against him was motivated by ill-will on the part of members of his family.
Held:
(1) For an accused to be convicted of the offence of persistent sexual abuse of a child, the court must be satisfied beyond reasonable doubt that:
(a) the accused engaged in conduct in relation to the child that constitutes an offence under Division IV.2A of the Criminal Code;
(b) on two or more occasions;
(c) each occasion was on a separate day; and
(d) the material facts of the occasions are clear.
(2) The court does not have to be satisfied beyond reasonable doubt as to the dates or order of the occasions.
(3) The State does not have to prove each occasion of criminal conduct alleged in an indictment; two will suffice.
(4) In the present case, the court, having satisfied itself that the complainant understood the nature and importance of telling the truth, regarded her evidence as credible; and its credence was supported by the evidence of the accused's son, also a credible witness, who testified that he saw the accused sexually penetrate the complainant on one occasion.
(5) The medical evidence supported the allegation of penetration of the complainant's vagina.
(6) The accused elected to make an unsworn statement from the dock, which was lacking detail and unconvincing; and there was no other evidence to support his story.
(7) There was sufficient evidence for the court to be satisfied beyond reasonable doubt as to the existence of all elements of the offence. The accused was therefore found guilty."
Applying the law
105. While I agree with Cannings J on those requirements most of which are his findings on the evidence relative to those cases before him, not all cases of persistent sexual abuse will present to a court all of those matters enumerated above. There will be cases where some of those things will be absent but that does not necessarily make that case devoid of merits or not fulfilling the requirements of the law.
106. Take for example, absence of medical evidence is not critical to a charge under this section as some of the offences set out in Division IV.2A of the Criminal Code will not require medical examination to prove such as sexual touch, fondling or sucking of breasts, kissing, licking of vagina, etc.
107. In this case before me, there is clear evidence of the accused, in the nine months period between 1st January, 2009 and 30th April, 2010, sexually touching the victim on two or more occasions by holding and sucking her breasts; also on two or more occasions on unknown dates sexually penetrating the victim by insertion of his fingers into her vagina; also on two or more occasions on unknown dates sexually penetrating the victim by inserting his tongue inside the victim's vagina and on unknown dates on two or more occasions sexually penetrating the victim by inserting his penis into the victim's vagina.
108. The evidence is overwhelming against the accused and corroborated by the behaviour and conduct of the victim and the accused after the disclosure of the evil deeds as the accused took extraordinary measures to suppress and derail the prosecution of this case. The key witness's evidence is as clear and concise as it can be for this court to rely on despite what the accused tried to paint in his evidence by using the victim and her sister as his witnesses. Such a reaction is not uncommon in this kind of offences as researches have shown so the accused was not treading on uncharted route or breaking new ground in his plight to escape the long arms of the law.
109. The charge is an appropriate one because these different sexual episodes spread over a long period of time. The pleadings however did not include immorally corrupting innocent child victims by exposing them to explicit adult sex scenes in action in mobile phone screens and even large screen in the privacy of his office cum home at Amgrim Offices. All these happened in the presence of the young sister VT as well. He even had the victim repeat or follows the same motions as those actors in the blue movies he played on the screen as he groomed her in the sex game. The father was quite rightly concerned about the future of these two girls whose lives were seriously and grossly affected by these evil and immoral deeds so early in their development.
Conclusion
110. I am satisfied that the charge has been proven beyond reasonable doubt in that as the allegations of sexual impropriety continued over a nine months period in the privacy of the accused's office cum home and sexual penetration took place 'plenty times' and could not have been detected had it not been the coming of Marley Sega, the accused's daughter from Goroka, unknowingly uncovered her father's secret, but to her she was doing a favour to her dad by removing the pests or bludgers on his life when she gave the girls marching orders to return to their parents and later demanded the return of her fridge from the victim's parents.
111. The issue created over the return of the fridge was not the basis for the family framing up this charge against the accused. That and the return generally of Marley Sega to Vanimo was a blessing in disguise for the family that blew open the lid and exposed the can of worms that occupied her father's secrets in his Amgrim Holdings Office with these little guardian angels he convinced the Mr. FT and his wife to let go with him to protect him from other women by their presence alone at his home because he lived alone.
112. I am further satisfied that the offence persisted over a time period of two years starting from Mrs Bogan's house commencing with showing of pictures of naked men and women having sex, the way the victim was sexually manipulated by the accused such as fondling of her breasts, insertion of fingers in her vagina and penetrating her vagina with his penis over a period of nine months from the time she had her first monthly period in July 2009 till April 2010 suffices and qualifies the term sexual abuse as used in section 229D of the Criminal Code. There is no rebuttal of this evidence other than general denial which I reject for the reasons I gave in this judgment.
113. I find the accused guilty as charged.
Verdict: Guilty
Public Prosecutor: Lawyers for the State
Paul Paraka Lawyers: Lawyers for the Accused
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