N9039

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 252 OF 2007

THE STATE

V
JOHN KARIVA
(No 1)

Popondetta:  Toliken, AJ
2013:   10th, 11th, 17th September

CRIMINAL LAW – Particular offence – Persistent sexual abuse of child – Trial – Abuse - Penile penetration of child’s vagina – Relationship of trust, authority and dependency – Biological father/daughter relationship – Criminal Code Ch. 262, s 229D (1)(6).

EVIDENCE – Relationship of trust, authority and dependency not denied – Persistent sexual penetration denied - Accused elects to remain silent – Charge proved beyond a reasonable doubt on evidence of complainant child – Verdict – Guilty.    

Cases Cited

Nil

Counsel

J. Waine, for the State
J. Mesa, for the Accused

VERDICT

17th September, 2013

1.	TOLIKEN, AJ: The accused John Kariva was indicted with one count of persistent sexual abuse of a child under the age of 16 years with whom he stood in a position of trust, authority and dependency in contravention of Section 229D (1)(6) of the Criminal Code Ch. 262 (the Code). 

CHARGE

2.	He was charged that:

“... between February 2003 to July 2004, at Foru and Guruguru, in Papua New Guinea, he persistently sexually abused HELEN NORAH KARIVA, a child under 16 years of age, by sexually penetrating her in vagina.

AND THAT HELLEN NORAH KARIVA, was then in a relationship of trust authority and dependence with him.”

THE OFFENCE

Section 229D (1)(6) of the Code relevantly 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.
…
(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.

ELEMENTS OF THE CHARGE

3.	To secure a conviction, the State must prove the following elements of the offence beyond a reasonable doubt:

(1)	    The Accused
(2)	    Sexually abused the complainant child by sexually penetrating her vagina with his penis
(3)	    On two or more occasions
(4)	    There existed a relationship of trust, authority and dependency. 
 
ALLEGATIONS

4.	The State alleged that the complainant child (the child) is the first-born daughter of the accused. She was born on 6th October 1992. Early in 2003 when she was just 11 years and some months old, she was attending Baiyi Primary School, about a whole day’s walk from heir village of Guruguru when she was taken out of Grade 3 from Baiyi Primary School by her father – accused early into the school year.

5.	On the day she taken out of school, they walked to their village of Guruguru overnighting at Foru village on the way.  In the middle of the night, the accused woke her up, held his hand over her mouth, took off her clothes and sexually penetrated her.  The child sustained injuries to her vagina – bled heavily.

6.	On the second occasion on a different day, the accused took her out fishing at the Girere Swamp. There he hit and injured her with a fishing spear. She bled from the injury she sustained. The accused then proceeded to sexually penetrate her vagina, and once again she bled from injuries she suffered to her genitals.

7.	The third incident occurred in 2004 at Guruguru Village when the child was 12 years old. The accused took the child to their garden. There he assaulted her by hitting her backside and head with a bush knife inflicting a cut on her head. He then proceeded to sexually penetrate her vagina.

8.	 On the fourth occasion – sometimes in the middle of 2004 at Lomona Village – the accused again took the complainant to the garden. There he speared and wounded the child on her leg with a fishing spear before sexually penetrating her. 

9.	Soon after that the child became pregnant. She gave birth to a child out of this incestuous relationship on 15th August 2005. At all material times the child was under the age of 16 years.

PLEA 

10.	The accused did not dispute that the child complainant was his daughter, hence the existence of a position of trust, authority and dependency. He also did not dispute that she was below the age of 16 years. He, however, denied sexually penetrating her, let alone persistently. 

ISSUE

11.	The issue to determine is whether accused persistently sexually penetrated the child on the occasions alleged on the indictment. 

EVIDENCE

12.	The child complainant and her mother Celestine Joel testified for the State. With consent, the State also tendered the accused’s Record of Interview, both the original pidgin version and the English Translation, and a Statutory Declaration by Celestine Joel pertaining to the child’s date of birth.

13.	The accused elected to remain silent and did not call any witnesses.

FINDINGS OF FACTS & DELIBERATIONS 

14.	Given the fact that the accused elected to remain silent and did not call any witnesses, I find the following proven and uncontested facts from the States’ evidence.

15.	The complainant child is the first-born daughter of the accused. She was born on 06th October 1992. She completed Elementary School in their village at Guruguru in 2002 and because there was no Primary School in the village, she was enrolled at the Baiyi Primary School in 2003. The school was, however, more than a day’s walk from Guruguru and so she had to live with relatives there. She was then 11 years old.

16.	Not long after she was enrolled, that is sometime towards the end of February that year, her father, the accused, went and removed her from the school and they headed back to Guruguru. Night fell upon them and they spent the night at Foru Village where the villagers allowed them to sleep in one of their houses. In the middle of the night, the accused sexually penetrated the child’s vagina twice with his penis after removing her skirt.  The next morning, they continued on to at Guruguru. That was the first occasion and the start of what became a persistent course of behaviour. 

17.	The second instance occurred at Guruguru sometime soon after that.  On that occasion, the prisoner, the victim and her three (3) younger sisters had gone to the garden.  There, the prisoner wanted to have sex with the victim but she refused.  This provoked the accused into assaulting her with spear inflicting a spear wound on her left biceps. He then sexually penetrated her vagina with his penis and threated to kill her if she told anyone.

18.	On yet another occasion (the third) in 2004, the complaint child went to the swamp and the accused followed her. He again demanded for sex, and yet again, sexually penetrated her with his penis. And, as was now habitual on his part, he threatened to kill her if she told anyone. The child, however, went home and reported the matter to her mother. However, she did not do anything as she was frightened of the accused because of his violent and abusive nature.

19.	On each occasion, sexual penetration was preceded by threats and actual violence, and the victim suffered injuries to her vagina and other parts of her body.  Though no medical report was filed due to the isolation of the parties’ village, the victim was able to show the Court some of the injuries she sustained on parts of her body.

20.	The complainant testified of another occasion along the road to Wanigela.  This was, however, not alleged in the facts put to the accused on arraignment, hence, I will not make any findings on that. But as it turned out the complainant child eventually got pregnant. She gave birth to a child on 15 August 2005. It was neither denied nor disproved that the accused was the father of the child. 

21.	There being no evidence to the contrary, I am satisfied beyond a reasonable doubt that the accused persistently sexually penetrated the complainant on those three other occasions alleged in the indictment and possibly on other occasions as well. The fact that the child became pregnant in 2005, by which time she would have been 13 or 14 years old, strongly suggests that the abuse persisted up until the end of 2004 when the child would have become pregnant and for all we know may have continued even after that.   

22.	I am also satisfied further that on each occasion, the act of sexual penetration was preceded by actual or threats of violence and that the complainant suffered injuries to her vagina and other parts of her body.  This is despite the absence of medical report.

23.	I am satisfied that the acts of penetration which constituted the abuse alleged, occurred on two or more occasions at different times. And this of course resulted in the child getting pregnant.

24.	I assess the victim to be a credible and truthful witness.  Her evidence was clear and straight forward.   She did not falter under cross-examination nor was she or her evidence discredited in any way, whatsoever.

25.	And finally, as I alluded to at the outset, the accuse does not dispute that the complainant is his biological daughter – hence the existence of a relationship of trust. Nor does he dispute that at the relevant time the child was under the age of 16 years. 

VERDICT 

26.	I, therefore, find the accused guilty as charged.

Ordered accordingly.

_________________________________________________________________
Public Prosecutor:	Lawyer for the State
Paraka Lawyers:	Lawyers for the Accused