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State v Paka [2016] PGNC 425; N6914 (15 March 2016)

N6914

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 414 OF 2015

THE STATE

V

MADO PAKA

Kainantu: Polume-Kiele J
2015: 2, 10 November

2016: 15 March

CRIMINAL LAW – Trial – Accused indicted on two counts of charges - Sexual penetration of a child under the age of 16 years old - Criminal Code Act, Division IV.2A - Sexual Offences Against Children, Section 229A (1) and alternatively; Rape - Criminal Code, Section 347 (1) & (2).

CRIMINAL LAW - Ruling on verdict - Accused engaged in act of sexual penetration with child under age of 16 years old – Elements of offence proven beyond reasonable doubt - Consent not a defence – Corroboration not necessary - Verdict of guilty returned - Criminal Code, Sections 6, 229A(1)(2), 229F, 229G and 229H.

CRIMINAL LAW - Alternative Charge – Rape - Criminal Code, s 347 (1) & (2) –Sexual penetration by the accused without consent established - Application of factors – Assessment of verdict - Alternative conviction of rape available

Brief Facts:

The accused, Mado Paka aged 19 years, is charged with sexual penetration of a girl under the age of 16 years under s 229A (1) of the Criminal Code, Division IV.2A - Sexual Offences Against Children, and alternatively, a charge of rape under s 347 (1), (2) of the Criminal Code.

On the 24^th day of March 2014 at around midday, the accused followed the complainant from the Main Market to West Goroka when he noticed that she was alone. At and or within the vicinity of the Papindo Supermarket, West Goroka, the accused approached the complainant and showed her a pocket knife and told the complainant not to shout or ask for help or else he will kill her. He then ordered her to do as he says and to follow all his command.

The accused continuously showed the knife to the complainant and ordered her to follow him to the Goroka Main Market. She complied in fear of her life. At the Goroka Main Market, the accused holding on to the hand of the complainant and the complainant boarded a bus bound for Kainantu Town. In the bus, the accused sat next to the complainant in the front seat of the bus to ensure that she did not alert anyone of her plight and to act normal and pretend that she was ok and that there was nothing wrong.

Upon reaching Kainantu Town, the accused took the complainant to one of his sister’s house where they overnighted. It is at this sister’s house at Kainantu that the first incident of sexual penetration took place whereby the accused forcefully penetrated Piwas Dafito, the complainant; a child under the age of 16 years by inserting his penis into her vagina against her will and without her consent and alternatively the accused sexually penetrated Piwas Dafito against her will and without her consent. She was then taken to Ikana Village and stayed with the mother of the accused at Ikana Village, the complainant said that the accused sexually penetrated her every night against her will. She said further that on the 24^th of July 2014, the accused assaulted her very badly because he suspected her of having affairs with his Village boys and ordered her to drink her own blood which she did out of fear. The next morning, she managed to escape from the mother’s house and later that day, met some people who were able to lead her to a school teacher, a man named Lote who happened to be from her own Village in Lufa. She then stayed there found some refuge for a short time. Her stay with this relative did not last long because as soon as the teacher left to go into town, the accused went to the teacher’s house, threaten her with a bush knife and cut her on the head and ordered her to drink her own blood and she complied out of fear again. The accused then took her back to Ikana Village and on their way to Ikana Village the accused cut her again on the right arm and she indicated to a scar on her right arm of such injury. When she got to Ikana Village, she was in great pain but the accused kept assaulting and forcefully penetrating her against her will and without her consent and this continued until she was able to come to Kainantu sometime in December 2014 and that was when the incident was reported to the Kainantu Police as an incident of rape.

Held:

(1) The versions of the complainant’s story of her ordeal is truthful and is the correct one;

(2) The Complainant was under the age of 16 years old, she was 14 years 2 months 26 days old when she was sexually penetrated by the accused by inserting his penis into her vagina.

(3) The accused is convicted on the offence of sexual penetration of a child, namely Piwas Dafito, who was under the age of 16 years old, then 14 years old.

(4) The accused found guilty of the charge of sexual penetration of a child under the age of 16 years contrary to Section 229A (1) of the Criminal Code Act.

(5) The alternative charge of rape pursuant to s 347 (1) (2) of the Criminal Code as this charge was also put to him on arraignment is available.

Cases Cited:

Andrew Palili v the State (2006) SC 848
Garitau Bonu and Rosa Bonu v the State (1997) SC 528
Peter Wararu Waranaka v Gabriel Dusava (2009) SC 980
The State v Jacob Dugura Roy (2007) N3137
The State v Kenneth Penias [1994] PNGL 48

Counsel:

Barbara Gore, for the State
Samuel Ifina, for the Accused

RULING ON VERDICT

15^th March, 2016

1. POLUME-KIELE J: This is my ruling on verdict on the accused, Mado Paka; indicted for one count of sexually penetration of a girl under the age of 16 years under s 229A (1) of the Criminal Code and alternatively a charge of rape under s 347 (1)& (2) of the Criminal Code.
   
2. The accused pleaded not guilty to both indictments and a trial ensued on the 10^th of November 2015.
   
3. At trial, both the complainant and the accused gave sworn oral testimony.
   

The Charges

4. Sexual Penetration of a child under the age of 16 years - Section 229A (1) of the Criminal Code Act provides:
   

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

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

(2) If the child is under the age of 12 years, an offender against Subsection (1) is guilty of a crime and is liable, subject to Section 19, to imprisonment for life.

(3) If, at the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and the child, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life."

Elements of the offence:

(a) the accused engaged in an act of sexual penetration with the complainant; and

(b) the complainant was a child under the age of 16 years.

The maximum penalty is imprisonment for a term not exceeding 25 years as prescribed under Subsection (1).

5. If this Court were to accept the evidence adduced that the victim, Piwas Dafito was a child under the age of 16 years, than the factors prescribed under Subsections (2) and (3) are not relevant to this case as the victim; Piwas Dafito was not under the age of 12 years. Furthermore, at the time of the commission of the offence, no relationship of trust, authority or dependency existed between the offender and the victim.
   
6. However, in for the purpose of determining guilt, "sexual penetration" is defined under Section 6 of the Criminal Code as follows:
   

"When the expression "sexual penetration" or "sexually penetrates" are used in the definition of an offence, the offence, so far as regards that element of it, is complete where there is—

(a) the introduction, to any extent, by a person of his penis into the vagina, anus or mouth of another person; or

(b) the introduction, to any extent, by a person of an object or a part of his or her body (other than the penis) into the vagina or anus of another person, other than in the course of a procedure carried out in good faith for medical or hygienic purposes."

7. Furthermore, “Consent” is not, generally, a defence, but an accused can raise “consent” as a defence in circumstances prescribed by Section 229F and 229G of the Code.
   
8. Basically, Section 229F states:
   

“Subject to Section 229E, [abuse of trust, authority or dependency] it is not a defence to a charge under this Division that the child consented unless, at the time of the alleged offence—

(a) the accused believed on reasonable grounds that the child was aged 16 years or older; or

(b) the child was aged 12 years or older, and the accused was no more than two years older than the child."

9. Section 229G states:
   

"A person is not criminally responsible for an offence against this Division in respect of an act if, at the time of the act, the child was of or over the age of 14 years and the person was married to the child."

10. In this case, the accused is charged with an offence prescribed under Division IV.2A of the Criminal Code. Thus there is no requirement for corroboration to sustain a conviction. This provision is consistent with s 229H of the Criminal Code which provides as follows:
    

"On a charge of an offence against any provision of this Division, [i.e. Division IV.2A, sexual offences against children] a person may be found guilty on the uncorroborated testimony of one witness, and a Judge shall not instruct himself or herself that it is unsafe to find the accused guilty in the absence of corroboration."

11. The alternative charge of Rape - Section 347 (1) & (2) of the Criminal Code provides:
    
    • (1) A person who sexually penetrates a person without her consent is guilty of a crime of rape;
      

Penalty: Subject to Subsection (2), imprisonment for 15 years.

(2) Where an offence under Subsection (1) is committed in circumstances of aggravation^[1], the accused is liable, subject to Section 19, imprisonment for life

Elements of the offence:

10. In considering whether or not to convict an accused of the offence of rape, the court must be satisfied beyond reasonable doubt of the following elements:

(a) that it was the accused;
(b) who sexually penetrated another person;

(c) without that person’s consent.

11. Other factors which the Court has taken into consideration are whether or not the offence was committed under circumstances of aggravation, if this is established than this factor would be used as a guide in determining guilt and for such aggravation, the maximum penalty prescribed under Subsection (2) subject to s 19, is imprisonment for life. However, for purposes of determining verdict for these offences, a number of matters were taken into consideration by this Court. Firstly, as the accused had pleaded not guilty to the charges, this meant that the State prosecutor was required to call the victim for purposes of adducing evidence to support the charges.
    

Onus and standard of proof

12. In order to secure a conviction for any of these offences, the onus is on the prosecution to prove all the elements of these offences beyond any reasonable doubt.
    

The State’s case

13. The prosecution’s case consisted of oral and documentary evidence.
    
14. Documentary evidence presented by the Prosecution tendered into evidence by consent of the Defence consisted of the following:

(1) Police Record of Interview which was conducted in Tok Pidgin and translated into English dated 23^rd December 2014 between First Constable Douglas Minja, Investigating Officer and the accused and corroborated by Constable William Melyauen (Exhibit ‘A’).

(2) Medical Report prepared by Dr Beron T Kongona of Kainantu District Hospital dated 16^th December 2014;

(3) Undated statement of First Constable Douglas Minja, Investigating Officer who interviewed the accused on the 23^rd of December 2014;

(4) Undated statement of Constable William Melyauen, who was the corroborator during the Police Record of Interview conducted on the 23^rd of December 2014; and

Summary of the Evidence:

15. Record of Interview – Exhibit “A1” – the interview was conducted in Tok Pidgin on the 23^rd of December 2014, at the CID office, Aiyura Police Station, Eastern Highlands Province between the Investigating Officer, First Constable Douglas Minja and the accused Mado Paka. Constable William Melyauen was in attendance as corroborator. The accused did not make any admission when he was questioned about the allegations raised against him that on the 24^th of March 2014, he did threaten a woman, namely Piwas Dafito with a pocket knife at Goroka and brought her to Kainantu and you did threaten her with a knife and forcefully had sex with her until 8^th December 2014. The accused however said that he traveled to Goroka Town on the 24^th of March 2014. When he got to the Main Market, he got off the bus and walked to West Goroka where he met the Complainant standing alone at Papindo Super Market. He then went to her and she asked where he was from and he replied by stating that he was from Kainantu and a conversation followed between the Complainant and himself. During the course of this conversation, the accused asked the complainant if she was alone and she replied that she was with her mother and he then asked where her mother was and again the complainant replied that her mother was there with her and he then asked her mother if he can take the complainant with him and she agreed to the accused taking the complainant away. After agreeing to the accused taking the complainant away, the accused went into the shop to buy a plastic of scones and gave it to the mother and took the complainant away. He said that the complainant agreed to go away with him and that he had sex with her but she consented to having sex with him. He denied using any form of force and any weapon to threaten the complainant to have sex. A complaint of rape was reported to the Kainantu Rural Hospital and a crime report was made at the Police at Kainantu Police Station which has resulted in these proceedings where the accused is now charged with two indictments; Sexual penetration of a child under the age of 16 years - Section 229A (1) of the Criminal Code Act and alternatively, Rape under Section 347 of the Criminal Code.
    
16. First Constable Douglas Minja was the Investigating Officer after the matter was reported at the Kainantu Police Station on the 8^th of December 2014. Following the arrest of the accused, he was brought to the Aiyura Police Station where the Investigating Officer interviewed the accused on the 23^rd of December 2014 at the CID office, Aiyura Police Station about the allegations that the accused sexually penetrated the complainant who was under the age of 16 years who was 14 years old including injuries to her body both internal and external. The accused said that he understood the charge against him but do not understand as he said that he asked to take her and he brought her to Kainantu. He also said that he asked to have her and she said yes and he did. When asked as to what he meant by ‘have her’ he said had sexual intercourse with or her. The interview commenced at 10.55am, was suspended at 11.12 am and recommenced at 11.25 am and concluded at 2.25 pm. The interview was signed by him and the Corroborator, Constable William Melyauen. The accused did not sign the Record of Interview. This statement has was not relied upon by the prosecution
    
17. Constable William Melyauen – Corroborator; attended the Interview conducted by First Constable Douglas Minja with the accused at the CID office, Aiyura Police Station on the 23^rd of December 2014 about the allegations that the accused sexually penetrated the complainant who was under the age of 16 years who was 14 years old including injuries to her body both internal and external which commenced at 10.55am, was suspended at 11.12 am and recommenced at 11.25 am and concluded at 2.25 pm. The interview was signed by Investigating Officer and himself as Corroborator. The accused did not sign the Record of Interview. This statement has was not relied upon by the prosecution
    

The complainant – Piwas Dafito

Examination –in- Chief

18. The State called their only witness, the Complainant, Piwas Dafito. Due to her age, special measures were made under s 37(B) (2) (b) and (f) of the Evidence Act before the complainant gave her evidence as she was under the age of 16 years and the proceedings were related to sexual offences.
    
19. The Complainant gave sworn oral evidence in Tok Pisin and interpreted into English. She said that she is from Lufa and was a student at Kokoraipa Community School doing Grade 6 when the trouble started. This was during the first term school holidays in March 2014. As a consequence of this trouble, she is no longer in school. She also said that she was born on the 29^th of December 1999, however her age is contested and thus the Clinic Book which contained this information was not tendered into evidence by the State. Her evidence relating to her date of birth however remains uncorroborated.
    
20. The Complainant said that she went into Goroka with her mother. This was because an uncle had died in a car accident and there was a court case in progress at Goroka in relation to this death. During the course of the day, her mother told her to return back to the house to cook some food for her uncle so she went to the bus stop to catch the bus back home. Her mother was left at the Peace Park. As she was walking towards West Goroka, the accused followed her and threw a buai skin at her and this made her feel dizzy. She continued on with her journey and was standing in front of the Papindo Supermarket when the accused then walked up to her, showed her a knife and told her not to shout, attract attention or call out for help or he will kill her and ordered her to follow him towards the Goroka Market Bus Stop. She could not call for help or escape as there were no familiar faces (“save face”) around her. When they reached the Market, he held on to her hand and commanded her to get on a bus bound for Kainantu bus which she did in fear of her life and they travel down to Kainantu that day.
    
21. At Kainantu, they went to a School and at the gate, the accused went and asked for a woman who is a relative of his mother. This relative is married to a Manus man and this is where the complainant and the accused overnighted. At the house at Kainantu that night, the accused threatened her and ordered her to take off her clothes and wanted to sleep with her. She refused his advances but he threatened her with a knife and forcefully penetrated her by inserting his penis into her vagina.
    
22. The complainant said that she wanted to return to Goroka the next day but the accused forced her to follow him to his Village, Ikana. When they got to Ikana Village, they went to the house owned by the mother of the accused. The accused then left the complainant with his mother where she has stayed during the period of her stay in Ikana Village. Whilst staying with the mother of the accused at Ikana Village, the complainant said that the accused sexually penetrated her every night against her will. She said further that on the 24^th of July 2014, the accused assaulted her very badly because he suspected her of having affairs with his Village boys and ordered her to drink her own blood which she did out of fear. The next morning, she managed to escape from the mother’s house and later that day, met some people who were able to lead her to a school teacher, a man named Lote who happened to be from her own Village in Lufa. She then stayed there found some refuge for a short time. Her stay with this relative did not last long because as soon as the teacher left to go into town, the accused went to the teacher’s house, threaten her with a bush knife and cut her on the head and ordered her to drink her own blood and she complied out of fear again. The accused then took her back to Ikana Village and on their way to Ikana Village the accused cut her again on the right arm and she indicated to a scar on her right arm of such injury. When she got to Ikana Village, she was in great pain but the accused kept assaulting and forcefully penetrating her against her will and without her consent.
    
23. She said further that weeks after going back in Ikana Village, her parents went looking for her and after spending a night at Omaura Village, they went to Ikana Village and took me away to Omaura Village and wanted to settle the matter with the accused but the accused said that they will settle the matter on Monday. However during the night, when I went to use the toilet, this man went and threaten me and took me away again. I wanted to shout for help but he threatened me with a bush knife and we walked that night through the bush to get away from Omaura Village. During the night, my phone (which my father had given me that day) rang and the accused switched it off. We arrived at some place and saw people I do not know. However we met a man at his garden who offered food to eat and then the accused and I continued walking through the bush and arrived at a woman’s house. I understood that she was from Ikana but married to a man of the Village. The accused and I stayed that night in this woman’s house and the next morning, we started our journey again, walking through the bush, and I wanted to escape but do not know the place and bush. However somehow we arrived at a man’s house at Kainantu (through my prayers). This man is from Nompia.
    
24. At Kainantu, I was not allowed to see any relatives and we were always moving from place to place. However a friend of the accused saw us and he asked that we stay at his place. Although there were a lot of people around, the accused did not leave me alone. When there is no food to eat, the accused would leave me in a corner of the road and would go and ask people for food and money.
    
25. However during one of the days that the accused and I were at Kainantu, I met an aunty of mine who upon seeing me cried and came and held on to my hand. Her name is Regina. It was when I told my aunty Regina that I had no freedom and she said to report the matter to the police. But the accused took me away, assaulted me and threw me into the drain and also stoned me. However my auntie came and stopped him from assaulting me and took me to the market. I then told my aunty of my ordeal and all the bad stuff that the accused had done to me and she then went to the bank to get her husband. In the morning, we met this man and when my auntie’s husband asked him to come to the police station he ran away.
    
26. I went to the hospital to see a doctor because of the injuries that I had suffered. A medical report was prepared by a doctor and the medical report and the incidents were reported to the police then we came and rested. During the cause of the day, a brother of the auntie came and said that he will keep an eye out for the accused. Sometime during the week, the uncle caught this man and called the police and he was then handed over to the police and locked up.
    
27. This man is the person sitting in the dock.
    

Cross- Examination

28. On cross-examination, the complainant said that on that day, she was attacked in front of the Papindo Supermarket, West Goroka. The accused placed a pocket knife against her body and ordered her to follow him and if she do not follow him, he will kill her. It happened at around 12 O’clock in a public place, she did not know any people standing (“no save pes”) around to help her and she was also scared for her life and the knife.
    
29. She did not see any policemen or vehicle. She was alone. Her mother was not with her. Her mother was at the Peace Park but gave her K1.00 for bus fare and I went to West Goroka bus stop waiting for a bus to go home. The K1.00 bus fare was to Kamaliki not Lufa.
    
30. Whilst waiting for the bus, she did not notice the accused approach her and when he came and placed a pocket knife against my body at my side, and told me not to attract attention, shout out for help and scream, he will kill me. As the knife was placed against my body, I followed the accused as commanded and walked with him to the Goroka Main Bus Stop. When they got to the Main Market, they went and got on a bus bound for Kainantu. The accused was still holding on to my hand and I could not escape. The PMV bus did not stop along the Highway.
    
31. When we arrived at Kainantu and went and slept at one of his relatives’ house. The house was occupied by a woman and her son only. The accused did not take me in a right way. He did all kinds of things to me. The accused did not sleep in another room. We slept together. He laid me down on the floor and we slept together. He pressured me to have sex whilst in Kainantu.
    
32. The next morning, the accused took me to his Village when I told him that I was at school and I asked to go back, the accused threatened me and said that we will go to his Village, Ikana. I would have escaped if the accused did not threaten me and used a knife to threaten me.
    
33. We then travelled to Ikana Village by PMV, the village is quite far and besides, the PMV did not stop. I could not attempt to alert other passengers about my situation as the accused was sitting close to me. At Ikana Village, he took me to his uncle’s house and his uncle asked if I was at school. The accused tricked his uncle and took me to his parents’ house and threatened his parents and locked me in the house and I was not able to tell anyone of my situation. His mother is still alive but his father is dead. Whilst at his Village, I was always locked up as he was scared that I would escape. Most times, he would wait until his mother is fast asleep and then he would come and threaten me and have sex without my consent.
    
34. Even in his village, he assaulted me and accused me of going around with his brothers and village boys. One time, I ran away to another village and stay with the family of a teacher at Omaura Village. This teacher is from the same Village as me in Lufa. However, whilst there, the accused went and threatened me with a bush knife and attacked me and took me away.
    
35. Sometime later, my parents themselves came to Omaura Village to take me back but the accused again threatened me and took me away. There were no arrangements made for me to marry the accused. I had never taken the accused to meet my parents until they arrived at Omaura Village to take me away. Whilst at Ikana Village, I had made gardens but had been making gardens with a lot of pain and suffering.

Re-examination

36. Upon re-examination, the complainant said that she did not know the accused prior to the offence/incident. The parents went to Ikana Village to discuss the matter with the parents of the accused but the parents of the accused said that they did not want me to stay as the accused is a ‘drug body’.
    
37. The statement of the complainant was then tendered into evidence and is marked as Exhibit “B”).
    

Testimony of the Accused

38. The accused gave sworn evidence that he worked at a Kai Bar, namely Small Boy at Kainantu and after getting paid, traveled to Goroka Town on the 24^th of March 2014. When he got to the Main Market, he got off the bus and walked to West Goroka where he met the Complainant standing alone at Papindo Super Market and when he come closer to her, she asked where he was from and he replied by stating that he was from Kainantu and a conversation followed between the Complainant and himself. During the course of this conversation, the accused asked the complainant if she was alone and she replied that she was with her mother and he then asked where her mother was and again the complainant replied that her mother was there with her and he then asked her mother if he can take the complainant with him and she agreed to the accused taking the complainant away. After agreeing to the accused taking the complainant away, the accused went into the shop to buy a plastic of scones and gave it to the mother and took the complainant away.
    
39. The accused and the complainant then got on the bus to Kainantu and upon reaching Kainantu; he went to his employer and got his pay and then took the complainant to his Village and introduced her to his relatives and told them that she was his wife. On their third day in his Village, he went and slept with the complainant and asked her to have sex with her and she consented and they had sex. After a week in his Village, the accused took the complainant to see her relatives at Kokoraipa but they then demanded a sum of K5, 000.00 as bride price however the accused did not pay the bride price and he returned to his Village.
    

Submissions by the Defence Counsel

40. Mr Ifina of Counsel handed up written submissions and spoke to his submissions. He submitted that the accused Mado Pako is 19 years old and totally denied the charge of sexual penetration of a child under the age of 16 years old and also denied the alternative charge of rape.
    
41. Thus the issue for this Court to determine is whether or not the State has disproved the Statutory Defence under s 229F of the Criminal Code in relation to the charge of sexual penetration of a child under the age of 16 years old; and if not; then; Whether or not the State has proved the absence of Consent in relation to the alternative charge of rape under s 347 (1) (2) of the Criminal Code.
    
42. Counsel for the accused submitted that the accused has no prior convictions and is single. He further submitted that no force was used to take the complainant from West Goroka as the mother of the complainant had agreed to the accused taking the complainant away and this agreement was sealed with a ‘plastic of scones” (my emphasis). With regard to the allegations that the accused had used a pocket knife to threaten and force the complainant to go with the accused, the accused denied that a knife was used to threaten the complainant nor did he use any form of force or any weapons to achieve sexual penetration. The act of sexual penetration was consensual. Furthermore, the accused was of the belief that the complainant was of his ‘size’.
    

Submissions by State Counsel

43. Ms Gore of Counsel filed written submission and also made oral submissions for the State. She submitted that the charge of sexual penetration of a child under the age of 16 years and the alternative charge of rape are both very serious offences. The accused in denying both charges has led to the trial of this matter and thereby forcing the victim to re-live her ordeal. Whilst there is not much of an age difference between the accused and the victim when the offence was committed; these types of offences are very prevalent in the country. Furthermore, the accused has shown a lack of remorse for his crime. Medical reports do confirm that the victim suffered injuries as a result of the sexual and physical assault committed by the accused upon her person.
    

Other material

44. The State presented into evidence the Police Record of Interview (both original Pidgin and English version) dated and the Complainant’s Statement were tendered into evidence by consent.
    
45. The Clinic Book relating to the date of birth of the complainant was however objected to by the Defence and this was not tendered into evidence.
    

Decision making process

46. In determining verdict, a number of factors were taken into consideration. Firstly, the accused denied the charge and this led to a trial which meant that the State had to call the complainant to give evidence during the trial of the matter. In this case, the victim had to suffer the embarrassment and humiliation of having to re-live the ordeal. Other matters also relevant in reaching a determination includes considerations that if the accused had pleaded guilty and admitted the charges, this would have resulted in time saving for the court and expenses and the matter dealt with in a timely manner. At the same time, other considerations which are equally important in determining verdict are whether the offence was committed under circumstances of aggravation, such as kidnapping of the victim by using a weapon such as a knife to frighten her or wounding the victim and holding her captive against her will.
    

Issues

47. The issues for deliberation on a ruling on verdict are:
    

(1) Whether what is alleged is what actually happened

(1) Whether the accused is guilty of sexual penetration of a child under the age of 16 years or alternatively rape, as charged?

(2) Can the accused be convicted of sexual penetration?

(3) Can the accused be convicted the alternative charge of rape?

Analysis of the issues and evidence:

(1) What actually happened?

48. It is agreed that an incident involving the complainant and the accused occurred at West Goroka, Eastern Highlands Province on the 24^th of March 2014. However there are two versions of what actually happened.
    

(2) The complainant’s version

49. The victim said that she went into Goroka with her mother as one of her uncle had died and there was a court case in progress in relation to this death. This was during the first term break of school holidays in March. However during the course of the day, her mother told her to return back to the house in Kamaliki so she went to the bus stop to catch the bus back to Kamaliki. As she was walking towards West Goroka, the accused who was following her and threw a buai skin at her and this made her feel dizzy. When she got within the area of the Papindo Supermarket at West Goroka, the accused then walked up to her, showed her a knife and further ordered her not to draw attention or shout or call for help or he will kill her. The accused then told her to follow him and walk towards the Goroka Market. When they reached the Market, he commanded her to get on the Kainantu bus and she followed in fear of her life and they travel down to Kainantu that day.
    
50. At Kainantu, they went to a School and at the gate, they asked for one of the woman who is a relative of the mother of the accused and they went and stayed with this woman at her house. At the house at Kainantu that night, the accused ordered her to take off her clothes and forcefully penetrated her by inserting his penis into her vagina.
    
51. She said further that she wanted to return to Goroka the next day but the accused forced her to follow him to his Village, Ikana. When they got to Ikana Village, they went to the house owned by the mother of the accused. The accused then left the complainant with his mother where she has stayed during the period of her stay in Ikana Village. Whilst staying with the mother of the accused at Ikana Village, the complainant gave evidence that the accused sexually penetrated her every night against her will.
    
52. She said also that on the 24^th of July 2014, the accused assaulted her very badly because he suspected her of having affairs with his Village boys and ordered her to drink her own blood which she did out of fear. The next morning, she managed to escape from the mother’s house and later that day, met some people who were able to lead her to a school teacher, a man named Lote who happened to be from her own Village. She stayed with this man for a short time because as soon as the teacher left to go into town, the accused went to the teacher’s house, threaten her with a bush knife and took her back to Ikana Village. On their way back to Ikana Village, the accused cut her with a bush knife and ordered her to drink her own blood and she complied out of fear again. The complainant says that during this period and whilst walking through the bush to return to Ikana Village, the accused threatened her with a knife and sexually penetrated her without her consent by inserting his penis into her vagina
    
53. In cross-examination it was put to the complainant that she willingly went with the accused and that she actually had consensual sex with the accused. The complainant denied these assertions and said that she did not willingly go with the accused. She said that she was shown a pocket knife and told to go with the accused. She was not to make any noise or shout for help because if she did, he will kill her. She also said that she was forced to have sex with the accused as he threatened her with a knife and hammer in order to have sex. She denied that she consented to have sex with the accused.
    
54. In re-examination the complainant said that the accused showed her a pocket knife and ordered her to follow all his orders or he will kill her. He continuously showed her the knife and told her not to shout or call for help or he will kill her. He then took her by force to travel by bus to Kainantu where he ordered her to take off her clothes and he forcefully sexually penetrated her by inserting his penis into her vagina. This act of sexual penetration by the accused also continued every night in his mother’s house at Ikana Village where she was held captive during the period that she was there until her parents arrived at the Village to enquire as to her whereabouts which led to her escape and eventual trip to Kainantu where the matter was reported to the Police in December 2014 and the accused arrested and charged resulting in this matter now before the Court.
    

(3) The accused’s sworn testimony

55. The accused said that he is from Ikana, Gadsup. He worked at a Kai Bar, namely Small Boy at Kainantu and after getting paid, traveled to Goroka Town on the 24^th of March 2014. When he got to the Main Market, he got off the bus and walked to West Goroka where he met the Complainant standing alone at Papindo Super Market and when he come closer to her, she asked where he was from and he replied by stating that he was from Kainantu and a conversation followed between the Complainant and himself. During the course of this conversation, the accused asked the complainant if she was alone and she replied that she was with her mother and he then asked where her mother was and again the complainant replied that her mother was there with her and he then asked her mother if he can take the complainant with him and she agreed to the accused taking the complainant away. After agreeing to the accused taking the complainant away, the accused went into the shop to buy a plastic of scones and gave it to the mother and took the complainant away.
    
56. The accused and the complainant then got on the bus to Kainantu and upon reaching Kainantu; he went to his employer and got his pay and then took the complainant to his Village and introduced her to his relatives and told them that she was his wife. On their third day in his Village, he went and slept with the complainant and asked her to have sex with her and she consented and they had sex. After a week in his Village, the accused took the complainant to see her relatives at Kokoraipa but they then demanded a sum of K5, 000.00 as bride price however the accused did not pay the bride price and he returned to his Village.
    
57. In cross-examination he said that he did not know at the time that the Complainant was a student and attending Kokoraipa Primary School doing Grade 6. It was put to him that the Complainant had told him that she was a student doing Grade 6 at Kokoraipa Primary School and therefore he would have known that she would be under the age of 16 years old but the accused said that he was of the view that the complainant was his size. In regard to the charge of sexual penetration, the accused also maintained that the act of sexual intercourse was consensual and that there was no form of force either by the use of a weapon or aggravation exerted on the complainant The accused stuck to his story that the complainant was his size and that having sex with the complainant was consensual.
    
58. In re-examination, Ms Gore for the State pointed out to the accused that in his record of interview which was admitted into evidence by consent, the accused stated that he was told by the complainant that she was a student doing Grade 6 and therefore he would have known that she would be under the age of 16 years old. In addition, with regard to the statement made by the accused; he stated that he had had slept with the complainant and had sex with her with her consent, the complainant disowned that statement, saying that that sexual intercourse was without her consent and against her will and she stuck to her story.
    

(4) Which version is the correct one?

59. To determine which version of the stories is credible depends on a number of factors. Firstly, the degree of logic and common sense usually plays a big part in this process including the demeanour and performance of the witnesses in the witness box and consistencies in their evidence as established in Garitau Bonu and Rosa Bonu v The State (1997) SC 528; Peter Wararu Waranaka v Gabriel Dusava (2009) SC 980. Furthermore, having stated the above, it is equally important to note that a lying witness can also be forceful and convincing in their evidence and yet be lying; whilst on the other hand, a truthful witness can be so unconvincing in their story and appearance and yet be telling the truth (see Andrew Palili v The State (2006) SC 848. Similarly there is also no rule of law which states that the more witnesses called by a party and the more consistent or identical stories given by that party must be correct version of what occurred and should be believed than the opposing party who called only witness (see The State v Jacob Dugura Roy (2007) N3137).
    
60. The complainant was a much more impressive witness than the accused. She gave her evidence clearly, calmly and directly whereas the accused was evasive. Whilst the complaint of sexual penetration and alternatively rape was not prompt, as soon as the complaint was reported to the Kainantu Police, the matter was reported to the Kainantu Rural Hospital as an allegation of rape and the complainant was taken to Kainantu Rural Hospital where a medical examination and report compiled.
    
61. The State relied on the sworn oral testimony of the complainant and the Police Record of Interview and Medical Reports which corroborates the complainant’s story. With regard to the issue of proof of age of the complainant, the complainant gave oral testimony as to her date of birth as the 29^th of December 1999, which testimony remains uncorroborated.
    
62. The matter was reported as an allegation of rape against the accused from the time that the information was lodged on or about 11^th December 2014 and whilst this evidence does not by itself prove that non-consensual sex took place or was attempted; it does support the complainant’s story. For these reasons, I reject the accused’s evidence about the complainant going willingly with him to Kainantu or his Village or having consensual sex with the complainant without any force whatsoever or the use of weapons as being credible.
    
63. I accept the complainant’s version of events as truthful and this court is satisfied that the complainant was under the age of 16 years old, (then aged 14 years) as her evidence relating to date of birth remains uncorroborated.
    
64. I reject the accused’s evidence that the complainant consented to have sex with him as not credible.
    
65. With regard to the definition of sexual penetration in Section 6 of the Criminal Code, the accused did penetrate the complainant. He did insert his penis into her vagina. He did by his own admissions, admit to having sex with the complainant.
    

Is the accused guilty of rape, as charged?

66. In the State v Kenneth Penias [1994] PNGLR 48, the trial judge stated and I quote: ‘rape or attempted rape is “an invasion of privacy of the most intimate part of a woman’s body. Women become objects of sex, and sex alone to men like the prisoner, who prey upon them and rape them. But women are after all human beings like men. They have a right to travel freely alone, in groups, in any place, anytime of the day. At times because of their gender which comes insecurity, they need the protection of men. Unfortunately, rape has become a prevalent crime in the country”. The Judge went on to say “Women in towns and villages are living in fear because of the pervasive conduct of men like the prisoner.
    
67. So to answer the question above; yes, the accused did sexually penetrate the complainant without her consent therefore he can be convicted of rape in the alternative manner that he has been charged.
    
68. The State has proven that the accused committed the offence of rape. The accused was the one who penetrated the complainant and was the one who grabbed her or threatened her with the knife, he was present and did in fact admit to having sex with the complainant. It has been proven that Mado Paka did sexually penetrate the complainant and did so without her consent. The proven facts therefore support an alternative conviction for rape under Section 347 of the Criminal Code against the accused as put to him during his arraignment.
    

Is the accused guilty of sexual penetration of a child under the age of 16 years old as charged?

69. All those elements have been proven. First the accused had, under circumstances aggravation, engaged in an act of sexual penetration with a child under the age of 16 years where he had sexually penetrated the complainant by inserting his penis into her vagina and clearly intended to sexually penetrate her without her consent. His intention began when he took the complainant against her will from West Goroka to Kainantu where the first act of sexual penetration started and this continued whilst the complainant was held captive at Ikana Village and up to the time that these incidents were reported to the Police at Kainantu in December 2014.
    
70. The first incident of sexual penetration began on the night of 24^th March 2014 at Kainantu where he put his intention into action by removing her clothes under circumstances of aggravation and penetrated her by inserting his penis into her vagina without her consent. This acts of sexual penetration under circumstances of aggravation continued in Ikana Village, then Kainantu again until it was eventually reported to the Kainantu Police on or about the 24^th of December 2014.
    
71. Consequently, the accused is convicted on the offence of sexual penetration of a child, namely Piwas Dafito, who was under the age of 16 years old, then 14 years old under s 229A (1) of the Criminal Code.
    

VERDICT

72. Mado Paka is found guilty of sexual penetration of a child under the age of 16 years under Sections 229A (1) of the Criminal Code. In relation to the alternative charge of rape under Section 347(1) of the Criminal Code, the alternative charge of rape is available.
    

Verdict accordingly,

_________________________________________________________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the accused

^[1] Section 349A - Interpretation – For purposes of this Division , Circumstances of Aggravation include , but not limited to circumstances where-

(a) The accused person is in the company of another person or persons; or

(b) At the time of, or immediately before or after the commission of the offence; the accused person uses or threatens to use a weapon; or

(c) At the time of, immediately before or after the commission of the offence, the accused person tortures or causes grievous bodily harm to the complainant; or

(d) The accused person confines or restrains the complainant before or after the commission of the offence.

(d)