N7245
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. N0. 633  OF  2016

THE STATE

V

BAAF TATAWA

Kokopo:   Susame, AJ
2018:   09th May
	
CRIMINAL LAW – Offence of child being compelled to touch accused penis & sexual penetration of a child under 12 years of age ss. 229B (1)(b) & 229A(2) Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 -Trial – Need for inquiry to be conducted to test child’s competency in compliance to s 6 of Oaths, Affirmation and Statutory Declarations Act Ch.317  – Common Law rule for corroboration of young Child’s evidence not applicable in PNG- s 229H Criminal Code – Court may convict on uncorroborated testimony of complainant- Need for court to warn itself of dangers inherent for acting on evidence of a young child- Court is entitled to convict if evidence is cogent & convincing.          

Cases cited:
Java Johnson Beraro v The State [1988-89] PNGLR 562.
Rolf Schubert v The State [1979] PNGLR 66
State v Amos Jonathan [2009] PGNC 153 N3764 
State v Saganu [1994] PNGLR 308

Counsel:
Mr.Rangan, for the State
Ms.Pulapula, for the accused

JUDGMENT ON VERDICT

11th May, 2018

1.	SUSAME, AJ:   Indictment presented by the State Prosecutor on behalf of the Public Prosecutor on 9th May 2018 against the accused alleges 3 charges:

•	That in September 2014 the accused compelled the female child victim to touch his penis inside his Kitchen.
•	Between September 2014 & December 2015 accused compelled the female child victim to touch his penis inside his dwelling house.
•	On or about 11th December 2015 the accused sexually penetrated the female child victim through her vagina.

2.	The offences are provided for under sections 229B (1) (b) & 229A (2) of Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.
EVIDENCE
3.	For the State the following documentary evidence were uncontested and tendered by consent:

1.	Affidavit statement of Police Woman Senior Constable Myrah Rerevate marked exhibit “A”
2.	Affidavit statement of Police Woman Constable Sharon Kasau marked exhibit “B”
3.	Record of interview (original pidgin & English version) marked exhibit “C1”  “C2”
4.	A photo copy page of victim’s clinical book marked exhibit “D”   
4.  Primarily, prosecution’s case rested on oral evidence of three children witnesses. By law a person is considered a “child” if he or she is under the age of 18 years. (Evidence Act, 37A. INTERPRETATION. 1 For the purposes of this Division “child” means a person under the age of 18 years ;) 

5.	For their protection the witnesses will be identified by their initials. They are:

1.	S. H (victim or prosecutrix),
2.	R. B and,
3.	B.B. 

6.	S. H is in her 6th grade at Reit Primary School, Sinivit LLG, Pomio District. Her date of birth (which is uncontested and accepted by the court) is 11th August 2005 as evidenced by the record in the photocopy of a page of her clinical book marked exhibit “D”. At the time the alleged sexual abuses occurred commencing September 2014 into 2015 she was 9 to 10 years of age.

7.	R.B is a female child. She is doing elementary 2 at Rivirit Elementary School at Riet. Her exact date of birth has not been established by documentary evidence. By her physical appearance she was obviously a minor about 9 or 10 years of age. R.B is also one of the victims of the alleged sexual abuse. 

8.	B.B is a male child. He is the biological brother of R.B. Though his date of birth has not been established by evidence he is also a minor by his physical appearance. He could be around 15 or 16 years of age. 

9.	Prior to discussion and assessment of evidence adduced by the parties it is important some discussions is had of the law in dealing with child witness evidence. No arguments were heard on this point at the hearing of submissions even when I pointed that out to Mr. Rangan representing the State. 

10.	Notwithstanding that, the guidelines have been established by the Supreme Court of the need for the trial court to first satisfy itself of the competency of a child witness as required by section 6 Oaths, Affirmation and Statutory Declarations Act Ch.317.  Such an inquiry is necessary to check the child’s intelligence on his understanding of the importance of giving evidence on oath and the consequences of telling lies. If such an inquiry or examination is not done admissibility of evidence is questionable and cannot be relied on: (Rolf Schubert v The State [1979] PNGLR 66, Java Johnson Beraro v The State [1988-89] PNGLR 562.

11.	The principle has been time and again adopted and applied by the courts over the years including the case of State v Amos Jonathan [2009] PGNC 153 N3764 (22 October 2009). I do so in this case. No such an inquiry was conducted in this case prior to each of the child witness testifying. This was largely due to an oversight by the court as well as the counsels who are supposed to offer assistance as officers of the court in upholding the rule of law. Strictly speaking going by the case law evidence by the three child witnesses called by the prosecution should be disregarded as inadmissible. That practically means that prosecution will have no other credible evidence to rely on. Prosecution, which bears the onus of proving guilt beyond all reasonable doubt, would have then failed to discharge that onus hence, giving the benefit of doubt to the accused person. 

12.	On this point alone I could return a not guilty verdict and acquit the accused of the charges. However, in case I am in error in holding the above view I go on to make my finding on the evidence that has been adduced by-passing the competency test. 

13.	Question:   Is the evidence adduced by the prosecution cogent or convincing?

14.	Before discussing and assessing the evidence reference to the principle of law in dealing with evidence of young children’s witnesses is necessary for its application. 

15.	It was held in State v Saganu [1994] PNGLR 308 that common law rule that young children’s evidence require corroboration does not apply in PNG. Under the current legislative regime (s 229H Criminal Code) corroboration of complainant’s evidence is no longer necessary. Court may convict on uncorroborated testimony of the complainant alone. But, court should warn itself of the dangers of acting only on the evidence of a very young child.  “Children are more susceptible to suggestions, have shorter memory to recall and have more vivid imaginations than adults, care should be taken with their evidence, but if the court, seeing the witness before it, finds he or she is speaking nothing but the truth,” or evidence is cogent or convincing then the court is entitled to accept it. 

16.	Respectfully, I adopt and apply the principle. I am careful and warn myself of dangers inherent in acting on evidence of very young witnesses as is in this particular case.  

17.	Evidence by the three prosecution witnesses are not in much contention.  According, to the evidence heard first incident of sexual abuse occurred in September 2014. The three witnesses were playing with toy cars made of empty tin cans when the accused called the two girls over to him. He took them into his kitchen and therein unzipped his trousers and told the girls to hold his penis same time saying to girls in pidgin language “holim olsem”.  B.B had walked over to the accused’s kitchen.

18.	He just happened to be there to hear the accused making that statement to the girls. So out of curiosity he peeped though a hole on the wall and saw the girls holding accused’s penis. He just saw what happened and walked away to his house. Later he questioned the girls and they said no. He said he forgot to report what he had seen to his parents. 

19.	Interesting observations. The crime scene in particular the kitchen, how it is built has not been recreated by a sketch. No photographs were taken of the interior and exterior of the kitchen.

20.	The girls stated accused had issued threats on them not to tell anyone including their parents in fear of accused assaulting them. But, then B.B. who was their senior was actually by the kitchen.  He said he was angry over what he saw. Naturally, a brother would react and take some action in protest or in defence of his sibling. Being caught red handed the situation would have been different. The girls would come out clear of the wrongful act accused had committed on them notwithstanding his threats. B.B decided not to do anything and walked away.  How can he easily forget and not report what he saw to his parents immediately and kept silent all about it as if no wrong had been committed? 

21.	Next onto the subsequent instances of sexual abuse that continue after September 2014 up to December 2014.  For those allegations evidence came from the victim S.H. My assessment of her evidence is that evidence is of general character which lacked precise details of dates, occasions or locations the description of type of sexual abuses that were allegedly committed.  Prosecution’s evidence is not convincing to proving those allegations of persistent sexual acts.

22.	With respect to allegation of sexual penetration on 11th December 2014 these are my observations. Victim or prosecutrix had told court accused had called her over to go to the store and buy a packet of sugar. She went and purchased the packet of sugar and took it back to him. The accused took her into his dwelling house.  Accused removed his trousers, then her shorts. He laid her down and pushed his penis into her vagina. After she went out of the house. This incident was seen by B.B who happened to be around then. 

23.	Again that incident was never reported to anyone immediately or sooner. B.B decided not to cause or raise early alarm when he suspected that accused all along was sexually abusing S.H and his little sister R.B. The first person he decided to talk to was Phillip perhaps towards the end of December 2014. Victim’s parents were later informed and victim was questioned and she gave her story which eventually led to police intervention and accused taken into custody. As to when parents were told, how matter was report to police and accused was arrested and taken into custody is vague. But, information charging the accused for offence of sexual penetration under s 229A (1) was laid on 19th February 2016 for the committal court proceedings.  

24.	Furthermore victim may have been taken to a clinic or hospital for examination. Evidence is not in court from the prosecution of the exact date examination was conducted, the hospital or clinic victim was taken to and the medical finding of examination that was conducted.  Suffice to say there is no medical evidence to add value or weight to the victim’s claim that accused had introduced his penis into her vagina. 

25.	The accused generally denied committing the alleged sexual abuses. In his defence he stated in 2010 he had removed witnesses’ families from his block. For that reason the families had a grudge against him. He cannot recall the dates and committing offences. Because of the grudge they had of him the families made up the stories which resulted in his arrest. He could possibly be telling the truth. 

26.	This is a criminal case. The law (Constitution) places no obligation on an accused person to proving his innocence. Onus of proving guilt rests with the prosecution and it is a very high standard. That a judge must not have any doubt in his mind to enter a conviction on the strength of the prosecution’s evidence measured against evidence adduced by the defence.  In this case it has not convincingly discharged that onus.  Hence, benefit of doubt is accorded to the accused. 

27.	Accordingly, a Not Guilty verdict shall be entered for the accused.  Accused is acquitted of all 3 allegations. I order that he shall have his cash bail refunded forthwith.
__________________________________________________________________
Public Prosecutor: 		Lawyer for the State
Public Solicitor:		Lawyer for the Accused