N5549

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 918 OF 2013

THE STATE

-V-

GEORGE HOWARD PARAO

Lorengau: Geita AJ 
2014: 5th, 10th, March

CRIMINAL LAW – Trial - Particular offence – Sexual Penetration – Minor under 16 year - Need for caution with evidence of tender age witnesses - evidence inconsistent and unsafe – Medical evidence inconclusive and not contemporaneous - Section 229A (1) Criminal Code Act.
CRIMINAL LAW – Trial – Not guilty plea maintained– insufficient evidence to sustain charge of sexual penetration- Serious crime – Need for evidence to be of very high quality to sustain a conviction - Not guilty verdict returned for the Accused – Acquittal - Case dismissed. - Section 229A (1) Criminal Code Act.

Cases Cited 

John Jaminan v The State (No 2) [1983] PNGLR 318. 

Counsel: 

Mrs Laura Kuvi, for the State. 
Mrs Anna Raymond, for the accused.
Ms Sabenu Katurowe, assisting
 
JUDGMENT ON VERDICT

10 March, 2013 

1. GEITA AJ: You pleaded not guilty to a charge of rape upon a child under the age of 14 years thereby contravening Section 229A (1) of the Criminal Code Act, as amended to date.

Brief Facts

2.	It is alleged by the State that on Friday 8th March 2013 between 5 pm and 7pm at a water hole near Pere Camp Ward 1, in Lorengau you approached the victim from behind and pulled her into a bushy area. You overpowered her, removed her under clothes and raped her by inserting your penis into her vagina. Her struggles and shouts for help were immediately attended too by her uncle who was nearby who came and rescued her during the process of being sexually penetrated. The victim's uncle told the accused to get off the girl and the matter reported to Police whilst the victim was taken to Lorengau General Hospital for examinations.

The Law

3.	Section 229A (1). Sexual penetrating of a child

(1)	A person who engages in an act of sexual penetration with a child under the age of 16 years is guilty of a crime.

Penalty:	Subject to Subsections (2) and (3), imprisonment for a term not exceeding 25 years.

Section 6 of the Code: Sexual penetration.

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;

Undisputed Facts

4.	There is no dispute that the accused was caught naked at the crime scene.

Disputed Facts

5.	a)	Whether it was the accused that sexually penetrated the victim?

Evidence 

6.	The State called four witnesses including the victim and tendered the following documents into court by consent:

•	EXHIBIT "A" (a) & (b) – Record of Interview George Howard Parao (Pidgin & English).
•	EXHIBIT "B" - 	Statement of Detective Constable Lane Wesley 24/5/2013; 
•	EXHIBIT "C" - 	Statement of Probationary Constable Lia Jonathan 24/5/2013. 
•	EXHIBIT "D" - 	(Mistakenly skipped) 	 
•	EXHIBIT "E"- 	Sketch of female organ by Dr. Otto 5/3/2014
•	EXHIBIT "F"-	Medical Report by Dr. Samson Vava 12/3/2014

Evidence in summary:

State Witness 1- Christine Kanawi

7.	Prior to the victim giving her evidence certain special measures were taken pursuant to Section 37 (b) Evidence Act: Her evidence was given in camera including the mounting of a screen in the witness box.

She gave evidence under oath and said she came to court because of that "old man" taking her into the bush and sleeping with her. She testified of going down to the well nearby to wash when she was attacked from behind by the accused, pulled into nearby bushes and went into her. She said she yelled and cried at the time. He broke my pants and put his "pispis" into my "pispis". 

The witness said she cried and yelled out and his uncle heard her screaming and came and saw her and the accused naked. The witness said when his uncle came; the old man was on top of her. His uncle came took his clothes and assaulted him. She said the accused was taken to the Police Station after further beating by her two uncles whilst she was taken to Lorengau General Hospital. She identified the accused in the dock with no hesitation. 

8.	During examination in chief the witness said the old man was forcing himself to go with her and said he was on top of her and his "pispis" was inside "her pispis". She identified the accused in the dock with less difficulty. 

9.	In cross examination the witness denied meeting the accused in front of her father's house before going to the water hole. Examinations continue:

Q. 22 Is it true you told him to take one route to the well whilst you took another route?
A. No.
Q. 23. Is it true you arrived first, undressed and waited for him?
A. Yes.
Q. 24 Is it true accused arrived soon after that.
A. Yes.
Q.25 Is it true he proceeded to remove his trousers?
A. Yes
Q.26. Is it true that he played with his penis to get an erection?
A. Yes.
Q. 27 Is it true that while he was playing with his penis, you were undressed already?
A. Yes
Q. 36 I put to you that my client did not sexually penetrate you because he could not get an erection?
A. He is telling lies, he came with me.
Q. 37. I put to you that someone had sex with you before the incident?
A. No.

State witness No. 2 Mr. Kumalau Ponialau

10.	The witness is the victim's uncle and lives at Pere camp in Ward 1.The witness gave testimony of hearing the victim's cries for help whilst out at sea after fixing his canoe between 5-6pm that day. He said he paddled to the shore and walked up to victim's house, saw some footprints and followed the footsteps and came upon the accused having sexual intercourse with Christine. He said he saw his penis went into the little girl's thing. The witness said the accused was sitting down and had the little girl on him. He said he saw them clearly from his left side as it was still daytime with the accused facing towards him. The accused was shocked when approached and he told him that what he had done was wrong. The witness said as he stood there the accused approached him and told him that he had some money coming from his plumbing job and would give some to him but he did not respond. He said the little girl got up, came to him and told him that the accused pulled her from the waterhole into the bushes. The witness said he took the accused's trousers and walked them both to the victim's father's house. The people came and assaulted the accused and handed him over to the police. The little girl was taken to the hospital.

Cross Examinations

11.	During cross examination the witness categorically denied defence intimation that he was the one who sexually penetrated the victim and not the accused. Furthermore he denied watching from a distance until the accused had an erection and rushed at him as a cover-up. Cross examination continue:

Q.5 What do you say if I tell you that the little girl came to court and said she was lying on the ground?
A. No
Q.6 Is it correct, you said in your evidence that you saw little girl sitting on accused's laps? 
A. What I said is when I saw him he pulled little girl towards him and had sexual intercourse with him.
Q. 7 Did you tell court that you saw victim sit on the accused?
A. Yes that's correct.

In re examination the witness denied having sexually penetrated the little girl saying he wouldn't do that as she was her niece. 

State Witness 3 Elizabeth Ponghi.

12.	The witness is the victim's mother. Her role in court was to confirm the victims birth date which was not in dispute: 8th December 2000.

State Witness 4 Dr Otto Numan.

13.	Dr Numan's role in this trial was to present Dr. Samson Vava's Medical Report conducted on the victim. Dr Vava was currently on home leave and unable to report. Dr Numan is the Chief Executive Officer of Lorengau General Hospital. The witness verified the report to be that from Dr Vava and bears the logo of the Lorengau General Hospital. The witness was asked to clarify some medical terminologies and produced a sketch map of the female organ. The sketch was accepted into evidence as no objections were raised as to its tender and marked Exhibit "F.".

Cross Examinations

14.	Q. 1 Referring to the hymen, is it torn?

A. It's a soft tissue that covers the entry into the vagina. If torn it means that sexual intercourse has occurred. Dr Numan was unable to say with certainty whether the superficial tear on the left lateral area of the victim's vagina was fresh as it was not stated in the report. He further said he was unable to say if the blood stains found were fresh or otherwise as the report makes no mention of them. Dr. Numan confirmed that swab samples were sent for laboratory test confirmed the presence of sperm cells but said it was not possible to say whose sperm they belong too due to lack of proper DNA facilities in Lorengau. 

Defence case in summary

15.	In the Defence case the accused was the only one who gave evidence. His medical report on the wounds and the two broken tooth he received as a result of the incident was marked Exhibit "1" and accepted into court by consent. He came to Lorengau with his Manus wife since 2000 and has lived here since. His wife has since died in 2011.

16. He testified of coming to Pere camp between the hours of 6pm – 8pm on 8 March 2013 and upon seeing the little girl (victim) standing in front of her house, the victim asked him for money. He said the victim than told him to go to the side of the sago palms and that she would follow him later to the water hole. As he got to the water well the victim approached him for money. The witness said the victim removed her shorts and pants and he also removed his trousers. He said as the victim lay on the ground he sat there and played with his penis to get an erection when the little girl said his uncle was in the bush. The victim's uncle came got his trousers and fought him and took him to the house. He said they fought him and broke two of his teeth. At the time he was half naked from waist down with only a t-shirt.

17. In examination in chief the witness said the victim's father was known to him and he often buys food for them. He said within minutes of removing his trousers, thinking that they were going to play the victim's uncle appeared on the scene. He said he did not get an erection as his penis has been dead "em dai" since 2000. He presented himself for treatment for the wounds he received and produced a report in court.

Cross Examination

18.	Q. 1 Why did you go with the little girl?

A. Because she told me to go, and said if you have money go and have sex with me.
Q. 2 You are 63 years old and little girl ask you to go and have sex, you are a grown up man, why accept her offer?
A. Because she asked me for money so I went.
Q.5. You know it's wrong to have sex with little girl?
A. Yes I just went and sat down and did not have sex with her.
Q. 8 Knowing that you have no erection since 2000 you still went along to have sex with little girl, correct?
A. Yes
Q. 9 What do you say. You are lying, you got an erection?
A. No I couldn't get an erection.
Q. 13 You pulled her in, lifted her skirts, broke her pants correct?
A. That's not true; I did not break her pants.
Q.14 You removed your own pants?
A. I just sat there thinking that I would get an erection.
Q. 15 You inserted your penis into the victim's vagina?
A. No I did not push my penis into the little girl.
Q. 20. She was lying and you lay on top of her?
A. No.
Q. 28 I put to you that you sexually penetrated the vagina of the little girl that is why the medical report confirmed sexual activity, what do you say?
A. That is not true I did not have sex with her. 

Address on verdict- Defence

19.	Mrs Anna Raymond submitted on behalf of her client that the onus was on the State to prove its case, failing which there must be an acquittal. She submitted that the crucial aspects of State case showed signs of glaring inconsistencies: The victim said she was lying down during the act of sexual penetration whereas the only eye witness said he saw the victim on the accused's lap. Defence submitted that the medical report was inconclusive in that it failed to establish if it was contemporaneous, whether the blood stains were fresh, whether the hymen was torn and at what point in time sexual penetration took place. The finding of sperm cells in the victim was not conclusive enough to link the accused to the crime. Mrs Raymond submitted that the accused's evidence in Section 96 statement and record of interview remained intact and consistent to what was told to court in oral testimony and should be believed. Defence concede that although the accused was at the water well it was highly unlikely that sexual penetration took place since the accused had difficulty getting an erection and that he was confronted by the victim's uncle soon after he removed his trousers. In light of gross inconsistencies and the State's failure to prove its case his client should be acquitted.

Address of Verdict – State

20.	Mrs Laura Kuvi for the State submitted that the medical report was independent of both parties and should be believed by court. She said the victim gave evidence of the accused sexually penetrating her after pulling her into the bushes and removing her clothing. Inconsistencies in evidence on what positions were employed to carry out the sexual penetration ought to be given less weight as they were not serious Mrs Kuvi submitted. She said defence attempts to shift blame to a third party: the victims uncle, were of recent inventions as these evidence were not contained in the ROI and S.96 statements and should not be believed. The only evidence before the court was that only the accused was present at the scene of the crime. State submitted that the Medical doctor was unable to verify if the victim's hymen was torn because he was not the author of the report. He however said in situations were there was an absence of hymen, it follows that sexual activity has taken place. Mrs Kuvi said the fear of being sent to prison were reason enough for the accused to tell lies and expose the intimate parts of his manhood in public. In the absence of any evidence to support his defence of a dysfunctional penis such defence should be disregarded. She said the accused should not be believed. Rather the victim must be believed as she has no motive to lie. The State submitted that the court return a guilty verdict. 

Issue 

21.	The central issue in this trial is whether or not it was the accused that sexually penetrated the victim. This Court is now left with the evidence from both parties to make a finding of guilt or innocence of the accused person. In trying to analyse the whole of the evidence to arrive at a finding I ask myself these following questions:

1.	Did sexual penetration take place and by who?
2.	Is the Medical Report conclusive enough to link the accused to the act of sexual penetration with the victim?
3.	Sexual Penetration-Legal Position?
4.	Standard of Proof beyond reasonable doubt.
5.	Was force used during the commission of the crime?
6.	Could the victim have been sexually penetrated by someone else other than the accused?

Did sexual penetration take place and by who?

22.	The victim's evidence is that the old man put his pispis (referring to his penis) into my pispis (referring to her vagina.) She further said she was lying down and the old man lying on top of her during the act of sexual intercourse. Her evidence failed to find corroboration in the only eye witness account of seeing them having sexual intercourse in a sitting position. Despite State's attempts to downplay the significance of this piece of evidence I hold the view that such evidence was crucial. We have here an eye witness account of a witness who said he saw them in the act of intimate intercourse with the accused in a sitting position and the victim on his laps. When the victim's version of lying down was put to the eye witness, the witness only said no and offered no further explanation on why the variances. Inferentially it follows that either one of the two state witnesses is telling a falsehood and the credibility of their evidence in issue. Although the accused's defence of his dysfunctional erectile penis remains uncorroborated his evidence of being unable to get an erection despite forced manipulation appears plausible. This was corroborated by the victim that the accused was playing with his penis to get an erection while she was lying down, already undressed. I take judicial notice of his very advanced age at 63 years and draw inference that at that advanced age menfolk in general tend to have great difficulty in getting penile erections. For the moment I am unable to make finding with absolute certainty that the accused sexually penetrated the victim.

Is the Medical Report Conclusive enough to link the Accused to the act of sexual penetration with the victim?

23.	There appears to be insufficient evidence to establish that the report was contemporaneous. The presence of the victim's hymen being disturbed; the dry blood seen on the victims under garments casts more doubt on recent sexual activity. The medical doctor was unable to say if certain parts of the victim's vagina were freshly torn or damaged as there was no mention of them in Dr Samson Vava's report. The presence of sperm cells in the vagina also does little to prove that the sperm cells belong to the accused according to the medical doctor due to lack of proper DNA testing facilities in Lorengau. Inferentially it follows that there is insufficient evidence to make conclusive findings that the sperm cells found in the victims' vagina belong to the accused hence connecting him to sexual penetration on the victim. 

Sexual Penetration-Legal Position?

24.	Section 6 of the Criminal Code: Sexual penetration. This section is explicit in that 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-the introduction, to any extent, by a person of his penis into the vagina, anus or mouth of another person;.(Emphasis mine). Notwithstanding the medical report and the eye witness account, the victim's evidence holds the key to this element. Although she said the accused sexually penetrated her in unequivocal terms, her testimony in parts is fraught with inconsistencies in my view. I caution myself on the risks of accepting her evidence in light of these inconsistencies coupled with her tender age and the high probabilities of her telling a falsehood. I do acknowledge that in sexual offence cases corroboration is not a requirement and accused persons can be convicted with only the victim's evidence. I draw inference from pertinent inconsistencies in her evidence: She admitted during cross examinations that the accused was playing with his penis to get an erection while she was already undressed.; she was lying on the ground with the accused on top during sexual intercourse; The eye witness account of actually seeing the accused's penis going into the little girl's thing (vagina) in my view remains highly speculative and hard to believe. This is more so in light of his earlier testimony of seeing the victim sitting on the accused's lap. Be that as it may the chances of the accused's penis being inserted into the victim's vagina as claimed by the witness is speculative and hard to believe in my view. Inferentially there is insufficient credible evidence either from the victim herself or the eye witness to satisfy the requirements or elements of sexual penetration: the absence of penile introduction even to an extent in the victim's vagina by the accused. (Emphasis mine).It follows that I cannot make finding with certainty that that crucial element has been made out by State witnesses.

Standard of Proof beyond reasonable doubt

25.	 The accused has been charged with a very serious offence which carries a prison sentence up to 25 years. It follows that State evidence must be of very high quality, untainted deserving of meeting the highest standard of proof beyond a reasonable doubt. The State always has the burden of proving beyond any reasonable doubt, the guilt of the accused in order to secure a conviction and not the other way around. (John Jaminan v The State (No 2) [1983] PNGLR 318. 

Was force used during the commission of the crime?

26.	It is not disputed that the accused was seen naked with the victim at the crime scene. Does this mean that he was the one who sexually penetrated the victim? I do not think so. There must be very good and credible evidence to link him to this crime. First I look at what the victim said: The victim testified of being pulled into nearby bushes and being raped by the victim despite her protests. During cross examination she said she arrived first at the well and undressed, followed by the accused who also arrived at the well and removed his trousers. By then she was already lying down undressed while the accused was playing with his penis to get an erection. Despite her tender age she appeared to me to appreciate the consequences to her answers given during examination in chief and cross examination. Be that as it may there is no credible evidence before me to make a finding that force was used to commit the crime. There is no evidence supporting this hypothesis. 

27.	With exception of those sexual offence crimes which are pre planned such crimes are often committed when the opportunity presents themselves either through carelessness or by chance. In those situations the human sexual apparatus is immediately aroused when confronted with the opposite sex, ready to satisfy ones lust for sexual desire. There is evidence before court that one such opportunity presented itself before the accused, however the accused was unable to satisfy his sexual desires due to his impotence. There is also evidence before court that he was confronted within minutes of removing his trousers. It follows inferentially that he had no time to carry out his sexual desires, hence the crime of sexual penetration committed. The situation would have been different if he was a young man capable to instant sexual arousal in my view. 

Could the victim have been sexually penetrated by someone else other than the accused?

28.	Evidence before court shows that the other male person who came upon the scene of the crime was the victim's uncle. Accused's evidence is that within minutes of removing his trousers and playing with his penis while seating down, the eye witness appeared. In his evidence he said the little girl (referring to the victim) told him that his uncle was in the bush. The uncle's evidence was very detailed and calculated including details of how the victim came to him and told him about what had happened to her. This detailed conversation however was not given in evidence by the victim hence lacking corroboration. Is it possible that the uncle was already at the crime scene and immediately came to the victim's rescue when she was in distress? He was out at sea and paddled to the shore when he heard her shouts for assistance. Where were the rest of the villagers? Usually at that time of the afternoon the village people would have returned to their homes and yet none of them heard her call for assistance except for her uncle? There is evidence that the water well was close by their community. Unfortunately these questions will remain questions with no answers save the victim telling the accused that her uncle was in the bush. 

Application to this case

29.	This charge arose out of State allegations that the accused sexually penetrated the victim, a child under 16 years on 8 March 2013 at Pere camp in Lorengau. The standard of proof is beyond reasonable doubt and the duty is on the State to make out their case and not the other way around. Having received and heard all the evidence from both the State and Defence witnesses including submissions for and against I remain unconvinced that the accused can as a matter of law be safely convicted. Glaring inconsistencies and in my view deliberate lies by State witnesses has created more doubts than answers to sustain a conviction in view of the seriousness of the offence. The medical evidence on its own in my view is inconclusive and insufficient to link the accused to the presence of sperm cells in the victim's vagina, hence him being labelled as the perpetrator in this case. I have had the opportunity of observing the demeanour and credibility of all witnesses and find that they all remain calm and collected during evidence and during cross examination, save the eye witness whom I thought appeared to be shaken and blushed with suggestions that he was the perpetrator and not the accused. The victim was of a tender age and I cautioned myself that the risk of giving false evidence remained real. 

Sentence

30. Due to the foregoing reasons canvassed throughout the judgment I remain unconvinced and therefore make findings that there is insufficient credible evidence, expressed or inferentially to link the accused George Howard Parao that would make him criminally liable for the crime of sexual penetration. Accordingly I return a verdict of not guilty and have him acquitted. His bail shall be returned to him upon presentation of his original bail receipts to relevant authorities.
______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused