N6674
PAUA NEW GUINEA 
[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 823 OF 2016

THE STATE

V 

ALBERT EPI (No.1)

	Mendi:   Ipang, J
2017: 10th, 16th February & 9th March 

CRIMINAL LAW–Criminal Code Actas amended – sexual penetration – s.229A (1) & (2)accused sexually penetrated the victim child’s vagina with his finger or alternately touches the victim’s child vagina with his finger – section 299B (1) (a) & (4) of the Criminal Code Act as amended. 

Cited Cases: 
State-v- Patrick (2004) PGNC 147; N2611

Counsel: 

W. Malo, for the State 
C. Koek, for the Accused 

VERDICT 

09 March, 2017 

1.	IPANG J: The accused pleaded not guilty to one count of sexual penetration contrary to section 229A (1) & (2) of the Criminal Code Act as amended and with an alternate count of sexual touching contrary to section 229B (1) (a) and (4) of the Criminal Code Act as amended. A trial was conducted and this is his decision on verdict 

2.	An indictment presented by the State on the 10th of February, 2017 is as follows; 
Albert Epi of Kip, Mendi/Murumbui, and Southern Highlands Province stands charged that on the 6th of January, 2016 at Magani Settlement he sexually penetrated one NJ by inserting his fingers into her vagina, a child under the age of twelve (12) years, then seven (7) years old.  

   Alternate Count 
And also the said Albert Epi, stands charged that he on the 6th day of January, 2016 at Magani Settlement for sexual purposes, touched with his finger(s), the vagina of NJ, being a sexual part of her body, a child under the age of 12 years, then seven (7) years old. 

3.	The State alleges that on the 6th of January, 2016 the complainant child was with a friend at the house at the Magani Settlement. Her friend Magasa Luke walked down to the Magani River to wash clothes. The complainant child was on her way to the river when she saw the accused sitting beside the road that leads down to the river. When the complainant child got near to where the accused sat, the accused stood up, grabbed the complainant child and pulled her down the road to the side where a house stood. The state alleged that the accused then put his hand inside the complainant’s skirt and inserted his fingers into her vagina and pushed it in and out several times. 

The Offence(s)

4.	The accused is charged with the following charge which reads; 
Section 229(1) & (2) states; 
(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 subsection (2) and (3), imprisonment for a 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. 

The alternate count section 229 B (1) (a) & (4) reads; 
(1)	 A person who, for sexual purposes – 

(a)	touches, with any part of his body, the sexual parts of a child under the age of 16 year

(4)	If the child is under the age of 12 year, an offender under subsection (1) is guilty of a crime, and is liable to imprisonment for a term not exceeding 12 years 

5.	The State like in any other criminal trials bears the onus of proving its case beyond reasonable doubt. 

6.	The elements of the offence of sexual penetration under section 229A(1) (2) are; 
(1)	a person
(2)	engages in an act of sexual penetration
(3)	if the child is under the age of 12 years old

7.	The elements of sexual touching under section 229B(1) (a) and (4) are; 
(1)	A person
(2)	For sexual purposes 
(3)	Touches 
(4)	Sexual part of a child 
(5)	The child is under 12 years old

Issue

8.	The main issue before this court is one of credibility, who should be this court believe?

State’s Case

9.	The State tendered the following documentary evidence without any objection from the Defence. 
(1)	Medical Report by Dr. Joseph Birisi ‘Exhibit A’
(2)	Record of Interview, Tok Pidgin ‘Exhibit B’
(3)	Record of Interview in English‘Exhibit C’

10.	The State called only one (1) witness and that is the complainant child NJ. She gave evidence on oath. She said she attends Mon Primary School and this year is doing grade 3. On the alleged date of the incident, she went to do laundry in the pond, she and her friend Mangasa and they were searching for containers. The accused Albert Epi approached the victim and said he will buy flour balls so she followed the accused. She said they went into a house where there is a step ladder at Magani River. She said the accused asked “you wear trousers?” I answered “yes” the accused pushed his fingers inside (the thumb) into “Rot blong pispis” she said he pushed his fingers three (3) times. She felt pain and cried. Accused told her to go into the bush, but the victim cried; Accused called all sort of things like he will buy coca cola, chips & chicken etc... Thereafter, the accused gave her a cold shirt and told her to go and wait outside. The victim left the cold shirt and went to her friend Mangasa at Kip. Mangase said for them to go and report. The victim said the accused is her mother’s brother so the accused would be her uncle.

11.	During cross-examination, the victim explained that on the alleged date, there was no one at the step ladder house at Magani River. At that time she left the step ladder house, Mangasa was at the Bakery. The distance estimated to be between 50-60 metres. 

Defence Case

12.	Defence called Epi Albert who gave sworn evidence. He is 29 years old and married with four (4) children. On the alleged date of the incident, he said he was at Magani with his family at Kunai Paspas. He was serving customers with beer. His four (4) brothers were with him. They felt hot so they went for a swim at Magani River. He said he knew the victim NJ as her mother is his sister but denied meeting her that day.  He admitted seeing the victim that day but said she was with her mother and others on the other side of Magani River. Otherwise, he denied offering to buy the victim flour balls and said he did not talk to the victim that day. 

Submission by Defence
 
13.	Ms. C. Koek for the Accused submitted that the victim child was coached in giving evidence. Counsel submitted that there is a difference between trousers and skirts. The thumb finger is big and it’s impossible for penetration. While there is a difference between skirts and trousers, the victim has demonstrated that she knows what a trouser is and what a skirt is. She did that by saying that she wore a trouser inside and a skirt on top. The next argument is that the thumb being a big finger cannot penetrate the vagina is an argument for the purpose of this case contrary to Medical Report. 

Submission by the State

14.	Ms. Malo for the state has filed a written submission. She submitted that the victim child is a reliable witness who gave clear and consistent evidence. She is a witness of the truth and has not exaggerated on what has happened. She said the victim said the trousers did not block the accused’s hand. 

COURT’S ANALYSIS 

15.	As stated earlier, the issue before this case is one of credibility. Whose evidence should this court believe? In the case of State-v- Patrick (2004) PGNC 147; N2611 Sevua, J (as he then was) stated that, “In order to address these issues, credibility of the witnesses and their demeanour are relevant.” The accused generally denied the charge(s) and said he only saw the victim that day but was no way closer to him. He said he was with his four (4) cousin brothers that day. His four (4) cousin brothers were not called to give evidence. The reasons he gave is that they came and waited too long so they left. The other reason is that two (2) of them were attending teacher’s college so they had left. His cousin brothers are Noilyn George, Manuel Amos, Robin Jeremiah and Jerry Jeremiah. 

16.	The accused said the victim had made up the story as her ancestors were his tribal enemies. I find this to be unjustified. The victim is the accused’s sister’s daughter. He is in a position to protect the victim and not to harm her. How could she make up the story to put her uncle behind bars?

17.	The victim gave evidence on oath. She knew what she was committing herself to. She knew the consequences of not telling the truth. She gave consistent evidence and directly identified the accused very well as the brother of her mother. Accused is not a stranger to the victim. She knew who she was following that day. As a result of what the accused did to her, she felt pain and cried. Her trousers were torn. 

VERDICT
 
18.	I am satisfied beyond reasonable doubt that the accused is the person who sexually penetrated the victim with his finger. I return to a verdict of guilty of sexual penetration contrary to section 229A (1) & (2) of the Criminal Code Act as amended. 

_____________________________________________________________	
Public Prosecutor	: 	Lawyer for the State
Public Solicitor	: 	Lawyer for the Accused