N6677	
PAUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 436 OF 2016

THE STATE

V

FRANCIS TOU (No. 1) 
 
   Mendi:   Ipang, J
    2017: 14th, 16th February & 09th March

CRIMINAL LAW–Criminal Code Act as amended – section 229A (1) & (2) – sexual penetration – inserting penis into vagina – the offence committed in a typical round house kitchen. 

Cited Cases: 
State v. Allan Mainde (2004) N2676
State v. Patrick (2004) PGNC 147; N2611
State v. Raphael Kuanande [1994] PNGLR 512

Counsel: 

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

DECISION ON VERDICT 

09th March, 2017

1.	IPANG J: This is the decision on verdict for the accused who had pleaded not guilty to one (1) count of sexual penetration under section 229 (1) (a) of the Criminal Code Act as amended. A trial was conducted. 

2.	The state alleged that on the 15th of August, 2015 the complainant was inside the house trying to light (make) a fire. The accused arrived and grabbed hold of her and forced her onto bed where he inserted his penis into her vagina. The complainant’s elder brother saw what happened. The accused offered him money and asked him not to report the incident, but the elder brother and the complainant reported the matter to their father. The accused is a United Church Pastor and the victim was 12 years, 10 months old at the time of the offence. 

3.	Section 229(A) (1) Sexual Penetration
(a)	A person who engages in an act of sexual penetration with a child under the age of 16 years is guilty of an offence. 

Penalty: 	Subject to subsection (2) and (5), imprisonment for a term not exceeding 25 years
	
4.	The elements of the charge of sexual penetration are;
•	A person
•	Engages in an act of sexual penetration 
•	If the child is under the age of 12 years

State’s Case
 
5.	The state through Counsel Ms. Malo tenders the following documentary evidence without objection from Defence. These documents are; 
•	Medical Report dated 20th October, 2015 ‘Exhibit A’
•	Clinic Book ‘Exhibit B’
•	Record of Interview dated 17th August, 2015 English version ‘Exhibit C’
•	Record of Interview dated 17th August, 2015 Pidgin version ‘Exhibit D’

6.	State called two (2) witnesses, Mesi Isaac and Frank Isaac. Mesi Isaac is in grade 7 and she is 13 years old. She was born in 2003. She told of the court of the reason she was in court because that person she pointed to is the accused person who sexually penetrated her. She knew the accused because he was living with them over a year. On the date of the alleged incident, 15th October, 2015, she was with the children at the church ground then left to the kitchen to make fire and cook lunch for them. While she was making the fire, the accused went into the kitchen. He told the victim that he wanted to kill “sipsip” with Nancy Polume (meaning that he want to make love with Nancy Polume) the accused then went out of the kitchen and went back into the kitchen. He forcefully carried the victim to the bed and removed her clothes. After removing her clothes he sexually penetrated her by inserting his penis into her vagina. While the accused was sexually penetrating her, the elder brother Frank Isaac arrived and saw them. The accused wore his trousers, went next to Frank and told him not to tell anyone and that he will give him some money. 

7.	Frank is the second State witness, he is 17 years old and he is doing grade 10 at Nipa Secondary High School. He knew the accused as he has lived with them for over a year. He said they lived in the same house and on the same bed. Frank said on the 15th October, 2015 after school he arrived at the kitchen around 2:30pm. The kitchen door was open. He looked inside and he saw the accused and Mesi having sexual intercourse. He was shocked and so he turned his back to them. He said the accused slept on top of Mercy. After that both got dressed and came out. Frank said there was enough light in the kitchen. The light came through the kitchen door. 

8.	State witness Mesi said the children were all at the church ground. The accused used one hand to hold her and the other hand to block her mouth and pushed her on to the bed. The kitchen had no window but the light came through the door. Frank said after he saw accused and Mesi having sexual intercourse, the accused approached him and offered him K100.00 and told him not to tell anyone. 

Defence case

9.	The defence called only one witness and that is the accused himself, he is 28 years old, single and is a United Church Pastor. He said on the alleged date of the incident, the 15th October, 2015 he was with Mathew Uruwa constructing a pig house.  The accused admitted knowing Messy as they lived together in the same village. He said Mesi’s father is also a United Church Pastor. He said they lived in the same village but different houses. He lived in Mathew Uruwa’s house. On that day, he said the victim called him to see her. He met her and she invited him to tell stories in the kitchen. So they went into the kitchen and told stories. The accused said four (4) children were with them and they told stories. This victim is his girlfriend for 6 months and so they told friendship stories. He denied having sexual intercourse with the victim. He said Frank has made up stories. He even said Frank is a good boy so as the victim. The accused said he has no problem with Frank. The only issue he has is with Frank’s mother and father who borrowed K500.00 from him and failed to repay the money. 

10.	The accused was questioned during cross-examination in relation to his Record of Interview conducted on the 24th October, 2015. In question and answer given in question 31, the accused admitted to having sexual intercourse with the victim but said the victim has consented to such as act. He said this is not his evidence and he has instructed his lawyer. 

Submission by the Defence

11.	Ms. Koek of counsel for the accused submitted that there was no eye witness to confirm that the accused did sexually penetrated the victim. There is no need for corroboration of the eye witness under the amendments to the Criminal Code Act. The requirements for corroboration has been removed. 

12.	The counsel next submitted that State’s case is weak the State failed to prove three (3) elements of the charge and these are; 

•	A person
•	Act of sexual penetration
•	With a child under the age of 16

13.	It was further submitted that the evidence of the brother of the victim must not be believed as he (Frank) is capable of lying even though he is the son of a Pastor and was brought up in a Christian home. This is a bold statement as the actual evidence must be adduced to demonstrate to this court that Frank was actually lying under Oath or was likely to lie.

14.	The Defence took issue with the evidence given by State’s second witness Frank. Frank said he saw the kitchen door open. He looked inside and saw the accused with Mesi in an act of sexual intercourse. It took Frank 30 seconds to look inside and identify the accused and Messy in an act of sexual intercourse. Ms. Koek submitted that 30 seconds would be like a blink of an eye. Thus, Koek submitted that the accused and the victim were merely having conversation and not having sexual intercourse. 

Submission by the State

15.	Ms. Malo for the State submitted that the court should not accept the evidence of the accused. She said this because there is no reasonable explanation why the two (2) State witnesses should come to court and tell lies. Counsel submitted that the complainant child gave clear consistent evidence. Her recollection of what happened was not exaggerated to falsely implicate the accused. So as Frank Isaac who gave clear consistent evidence. He saw the accused sexually penetrating the victim and later called his father and informed his father.

Issues with the Record of Interview (ROI)
 
16.	The Record of Interview was one of the documentary evidences that was tendered in to court without object from the Defence and were marked as Exhibits “C” and “D” respectively. The State called two (2) of its witnesses. After they completed their evidence, the State closed its case. Defence opened its case and called the accused to give sworn evidence. While giving his evidence, the accused denied the answers given in the Record of Interview and the signature on the Record of Interview. He said the signature was not his. The accused was then asked whether he has given this instruction to his lawyer. Ms. C. Koek of Counsel for the accused was then asked if that was the instruction. To which Ms. Koek replied the accused keeps changing his instructions one after the other and has now changed this instruction.   
COURT’S ANALYSIS

17.	Mesi, the victim and Frank Isaac have known the accused for over a year. He is a Pastor of the United Church like their father. The accused lived with them and so identifying the accused is not an issue. 

18.	There is no issue with lighting coming through the kitchen door. Whether sexual intercourse took place or not is an issue. Frank’s evidence is that he saw the accused sleeping on top of the victim. When both sensed him, “oh! oh!” and Frank turned his back on them as both were naked. They got dressed and went out to see him. 

19.	In State-v-Patrick (2004) PGNC 147; N2611 Sevua, J stated; “In order to address these issues, the credibility of the witnesses and their demeanour are relevant.” The accused said Frank made up the story. How would Frank possibly make up the story? There is no reasonable explanation given to justify that Frank has made up the story. I mean the accused is a United Church Pastor and what will be behind Frank’s mind to make a story to spoil the integrity of a Pastor. I find no reason for Frank to be lying. He was forthright in what he said. I believe his evidence given in court. Both his evidence and the victim’s were not discredited. 

20.	The Medical Report dated 20th October, 2015 marked as Exhibit “A” confirmed that there was sexual penetration of the vagina. The clinic Book tendered with consent of Defence and marked as Exhibit “B” confirms the victim was under the age of 16 years at the time of the incident. 

21.	In the Pre Trial Review Statement, Defence were to rely on the Defence of Alibi. In the Record of Interview (ROI), the accused admitted sexually penetrating the victim but said the victim consented. In the trial, the defence was shifted to one of general denial. I heard the evidence of the accused and I do not believe his evidence. He strongly denied the allegation but the State’s evidence is much stronger and reliable. 

VERDICT
22.	 I am satisfied beyond reasonable doubt that the accused sexually penetrated the victim contrary to section 229A (1) & (2) of the Criminal Code Act as amended. I return the verdict of guilty. 

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