N7288

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
 
CR NO. 12 OF 2017

THE STATE

V

HAWORD MALIMUN

Duke of York: Anis J
2018:  22nd, 23rd, 24th & May & 7th June

CRIMINAL LAW – sexual penetration of a child – section 229A(1) and (2) of the Criminal Code Act Chapter No 262 – trial on verdict – identification - defence of alibi – inconsistent evidence of the victim – circumstantial evidence considered – whether the facts are inconsistent with other reasonable hypothesis – want of alternative charge 

Cases cited:

State v. Patrick Masit (2017) N6997
John Beng v. The State [1977] PNGLR 115
The State v. John Beng [1976] PNGLR 471
State v. Luther Francis Melo (2015) N6153
Bakeri Pen v. The State (1997) SC514
State v. Miriam Kakun (1997) N1673
State v Morris [1981] PNGLR 493
State v. Bond Nanal (2009) N3597

Counsel:

Ms S Luben, for the State
Ms J Ainui, for the Accused

VERDICT
7th June, 2018

1.	ANIS J:	The accused was charged with one count of sexual penetration of a child under the age of 12 years old.  He was indicted on 22 May 2018.  He pleaded not guilty to the charge so the matter was tried on 22, 23 and 24 May 2018.

2.	This is my ruling on verdict.

INDICTMENT

3.	To protect the identity of the victim, I will use the initials HT.  The indictment reads as follows:

HOWARD MALIMUN of Mioko PALPAL, DUKE OF YORK, EAST NEW BRITAIN PROVICE stands charged that he on the 9th of November 2016 at Mioko Palpal village in Papua New Guinea engaged in an act of sexual penetration with HT, a child under the age of 16 years namely 11 years, by inserting his penis into her vagina.
AND at that time HT was under the age of 12 years in that she was 11 years old.

BRIEF FACTS

4.	The state alleges as follows:  

The accused and HT are from Mioko Palpal village in Duke of York.  On the 9th of November 2016 between 12 midnight and 1am the victim was asleep in her mother’s house.  The accused entered the house and carried the victim out of the house.  He took her down to the beach and undressed her.  The victim woke up and saw the accused removing her clothes.  The accused took her and sat her on his penis.  When he penetrated her, the victim felt pain and screamed.  The accused fled from the scene.

The victim’s grandparents heard the victim crying at the beach and ran to the beach.  They took the victim back to the house.  The state alleges that the accused penetrated the victim by inserting his penis into her vagina.  Further that at the time the victim was under the age of 12 years.  She was 11 years old.  The charge is laid pursuant to s.229A(1)(2) of Criminal Code.

WITNESSES

5.	The prosecution called 3 witnesses.  They were, (i) victim HT, (ii), HT’s grandfather John Mamur and (iii), HT’s grandmother Tanak Mamur.  The defence called 2 witnesses.  They were, (i), the accused and (ii), his wife Helen Samuel.

ISSUES

6.	The main issue is one of identification.  The accused has also raised a defence of alibi.  

SECTION 229A(1) & (2)

7.	Section 229A(1) & (2) reads and I quote:

229A.	Sexual penetration 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.
(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.

8.	The two (2) elements for the offence Sexual penetration of a child under section 229A(1) (offence) are, (i), the accused engages in an act of sexual penetration with another person, and (ii), the other person is a child under the age of 16 years.  See the case State v. Patrick Masit (2017) N6997.  The charge includes subsection (2) of section 229A.  Subsection (2), if proven, would only be relevant for sentencing.  Let me summarise.  Firstly, the prosecution has the burden to establish beyond reasonable doubt the two elements of the offence.  If the two (2) elements are proven then conviction will follow.  At the same time, if the prosecution is also able to establish beyond reasonable doubt that the victim was less than 12 years old at the time when the offence was committed, it would increase the maximum penalty the Court may impose upon the prisoner to life imprisonment.  If the prosecution establishes the two (2) elements of the offence but fails to establish that the victim was less than 12 years old at the time of the offence, the Court’s discretion on sentence shall be limited to a maximum prison term of 25 years.

JOHN BENG WARNING

9.	The defence counsel drew the Court’s attention to the case of John Beng v. The State [1977] PNGLR 115.  The Supreme Court quoted with approval an excerpt from the judgment of the trial judge in The State v. John Beng [1976] PNGLR 471, where at pages 476 to 477 the trial judge said:

“There is no rule of the law that the evidence of one witness as to identification is insufficient, nor is there any rule of law that there must be a police parade for the purpose of identification, nor is there any rule of law that in every case a warning must be given; it all depends upon the circumstances of the case before the court.  Where the identification relied upon is that of a single witness it is proper that the jury should be informed that the identification “was critical, and that mistakes have in the past occurred in regard to identification, thereby occasioning a miscarriage of justice”, and that they should be satisfied that the witness was not only honest but also accurate in the evidence he gave.  Matters to be taken into account are; “ what opportunities the person identifying had to form a judgment of the identity of the person who committed the crime…the position of the parties when the identification was made, the lighting, the opportunities to form a judgment, and generally the circumstances in which the identifying witness formed his judgment as to identification”.

10.	These principles are of course binding.  I apply them accordingly herein.

11.	With that, let me say these.  I must caution myself of the dangers of accepting evidence from witnesses who testify to say that they actually saw the accused at the crime scene.  I note that even an honest witness can make mistake for various reasons including normal human error.  I note that for me to seriously consider and accept a witness's evidence on point, the witness must prove himself or herself to be honest, accurate and reliable.  This can of course be difficult and a judge in my view must consider all factors including legal, factual and also common sense or the practical aspect of the story.  For example, whether the evidence makes logical sense.  If it is in a village setting, for example, whether the witness personally knows the accused; whether the witness and the accused come from the same or neighbouring village; whether the accused is a stranger to the witness.  If it was dark at the time of the incident, it is imperative to assess whether there was sufficient lighting, the surrounding circumstances the witness was in when he or she was observing; the proximity of the witness to the incident.  And in this case, the tender age of the witness which I will address in the later part of my judgment.

VICTIM’S AGE

12.	The accused did not contest the age of the victim nor the document that was tendered to establish this fact.  I refer the HT’s clinic book.  It was tendered without objection and marked as Exhibit “P4”.  The birth date shown therein is 12 May 2005.  The date of the alleged incident is 9 November 2016.  If I compute time, the accused would be 11 years old at the time of the alleged incident.

13.	I am satisfied that the prosecution has established this fact beyond reasonable doubt.  Let me now consider the evidence in regard to the two (2) elements of the offence.

THE EVIDENCE - PROSECUTION

14.	HT gave sworn evidence in Court.  Her evidence was given in a closed hearing setting which had been ordered based upon an application by the prosecution under section 37B(1)(a) and (b) of the Evidence Act Chapter No. 48.  Prior to the hearing of HT’s testimony, the prosecution had informed the Court in Chambers that HT had felt uncomfortable to give evidence; the prosecution informed the Court that it had had issues in preparing HT to give evidence.  The hearing which was scheduled for the morning on 22 May 2018 was then adjourned in chambers to 1:30pm that day.  It was also agreed by consent in chambers that HT would have the company of a policewoman in Court who would sit beside her to provide HT comfort when she testifies under Oath.  I also granted orders to that effect.  HT also had preferred to give sworn evidence in her local dialect.  A fresh interpreter was then identified and sworn-in, in Court who had provided the translation for HT.

15.	I observed that HT has a physical disability.  She is one eyed.  The bad eye is visibly defective and looks completely shut.  I say this because I note that this fact was not mentioned or addressed at all in Court by counsel.  It appears that both counsel took no issue with the visibility of HT’s good eye.

16.	HT was 11 years old at the time of the alleged offence.  She is now 13 years old.  Other than the measures that were put in place for the benefit of HT by the Court, neither counsel took issue with HT’s ability in understanding an oath or of the requirement to tell the truth to the Court.  Regardless of that, I had observed that HT had understood the meaning of telling the truth.  I had seen no reasons to impose or administer additional measures under section 37B of the Evidence Act Chapter No. 48 than to allow HT to continue.  She was shy and she spoke softly which was later translated.  In examination in chief, she gave her evidence which was consistent with the facts that had been alleged in the charge against the accused.  Because she was asked to tell her story without interruptions or without the use of technical legal terms or phrases, HT gave her evidence freely and without much difficulty.  I also observed that she had had some difficulties understanding the questions that were put to her in cross-examination.  At times, she appeared to also contradict herself.  I will elaborate on this in the latter part of my judgment.

17.	In summary, this is what HT had to say:  She said that on that night of 9th November 2016, she was asleep in the house.  She said the accused came into the house and took her down to the beach.  She said the accused took out his genital and he had sex with her.  She said the accused sat her on his lap and took his penis out.  She said she cried out when he took out his penis because she was afraid of him.  When she was asked what happened after that, she said the accused did not do anything.  She was then reminded of what she had told the Court earlier that the accused had had sex with her when he took her down to the beach.  She said that that was correct.  She told the Court that it was dark at the beach but that she could recognise the accused.  She said she cried out and her grandparents came to her.  She said the accused ran away when they arrived.  She said she knew Howard because they came or lived in the same village.  She said the accused was married and his wife’s name was Helen.  She pointed to the accused in Court when she was asked to identify him.

18.	The prosecution’s second witness was John Mamur (John).  He identified himself as the grandfather of HT.  He said that he could recall the night of November 9th, 2016 between the hours of 12am and 1am.  He said he had finished from a meeting and had returned home.  There, he said that he, his wife Tanak and his two uncles Ailand and Siassi all set outside the veranda of his house.  He said there was a solar light nearby.   He said as they sat, they saw the accused walking towards the beach.  He said a few minutes later, they heard screams of HT coming from the beach.  He said they all ran there and saw HT crying.  He said when they arrived there, they could see someone running away from the scene.  He said they asked HT and she told them that Howard did this to her.  He said his two uncles Ailand and Siassi gave chase.  He said they took HT back to their house.  He said that earlier that day or so, they had given permission to HT to go to stay with her biological mother for HT to baby-sit a baby.  He said they had adopted HT from his first born daughter Pauline when HT was a week old.  He said they have looked after HT ever since as their own child.  He said Pauline’s house was a few meters away from the beach.  He said when they saw the accused, he was walking away from Pauline’s house past them and onto the beach.  He said after they had retrieved HT from the beach, he stood next to a mango tree next to the beach and waited there.  He said not long he saw the accused running towards where he was standing.  He said he caught the accused.  He said he asked the accused to tell him what he did to HT at the beach.  He said the accused said “what” back to him.  He said he then assaulted the accused.  He said that before they all slept that night, they sat and discussed the matter and he said that HT had told them the story of what the accused had done to her on the beach.  He said they slept and on the next day he reported the matter to the local police.  He said the police took in the accused where he was later charged.  John was asked to identify the accused in Court and he pointed to the direction of the accused in the accused dock.

19.	The prosecution’s third witness was Tanak Mamur (Tanak).  She said she is married to John and is also the grandmother of HT.  She corroborated John’s evidence regarding them sitting at the veranda of their house with two of John’s uncles Ailand and Siassi.  She said there was light coming from a solar light from their neighbour Steven’s house which was about 30 meters away.  She said as they sat there, they saw the accused walk towards the beach.  She said a few minutes later, they heard HT’s scream coming from the beach.  She said they all went down there to rescue her.  She said HT had told them when they arrived there that it was the accused that had taken her down to the beach.  She said the two uncles chased after a person they had just seen fleeing the scene.  She said she took HT back to their house.  She said she and HT were standing about 15 meters away when John captured the accused who had come his way.  

THE EVIDENCE – DEFENCE

20.	The accused was the first witness.  He said that on the night in question, at around 9pm, he and his wife Helen took Lillin, his niece who was at his house over to his grandmother’s house which was within the vicinity of the crime scene or near the beach.  He said they left his niece there and as he and his wife were returning back, he was assaulted by John and other persons.  He said he did not know why they had attacked or assaulted him.  He said his wife had fled the scene soon after the assault on him because she was afraid.  He also said that between the hours of 12am and 1am, he was at his house which was far out in the bush with his wife, a relative named Tikur Leslie and his parents.  He denied that he was present on the beach or at Mioko village at the place and time as alleged in the indictment and from the evidence given by the prosecution.

21.	The defence next witness called was Helen Senor (Helen).  Helen corroborated the accused’s story in regard to the following.  She said it was about 9pm on the night in question, that they had gone to leave Lillin at the accused’s grandmother’s house.  She said from there they were about to head back to their house when the accused was attacked by a group of people.  She said she got scared and immediately fled the scene.  She said between the hours of 12am and 1am, the accused, his parents and herself slept or were at the accused’s house.  She said that to this day, she still does not know why they have assaulted the accused on that night.

ALIBI

22.	Let me deal with the issue of alibi.  The accused’s wife is the alibi witness together with the accused himself. 

23.	In State v. Luther Francis Melo (2015) N6153, the Court held and I quote:

21.     If an alibi is raised the burden of proof does not shift from the prosecution. The onus is never on the accused to prove an alibi or prove innocence. However, in practical terms, the accused must lead some evidence of an alibi and it must be sufficiently convincing to create a reasonable doubt in the mind of the tribunal of fact. How strong or convincing the alibi evidence must be, depends on the strength of the evidence of the prosecution witnesses. If their evidence is very strong, the alibi evidence needs to be reasonably strong to raise a reasonable doubt in the mind of the judge as to the guilt of the accused. Unlike the defences of self-defence and provocation, there is no rule of law that says that once an alibi is raised it is up to the prosecution to disprove it. If an alibi is rejected it does not necessarily follow that the court should enter a conviction. The court must still be satisfied that the prosecution has proven its case beyond reasonable doubt (John Jaminan v The State (No 2) [1983] PNGLR 318).

24.	I adopt what the Court has said above herein as my own.  I find that the defence has led evidence in regard to the accused’s defence of alibi.  The prosecution has also addressed that in its evidence and during cross-examination of the defence’s witnesses.  It is left to me to decide on the issue.

25.	Then let me look at Helen’s evidence.  The first problem I see with this witness is that she was actually present in Court when the accused was testifying.  The prosecution raised that in Court before Helen was called in to testify.  The prosecution informed the Court that it would not object to Helen testifying but that it would later make submissions to the Court of this fact and urge the Court not to give any significant value or consideration to her evidence.  I note that the prosecution has covered that in its submissions on verdict.  Helen was allowed to give her evidence under oath despite the said situation.  The approach I see is consistent with what the Supreme Court has said in the case Bakeri Pen v. The State (1997) SC514.  The Supreme Court held as follows:

In our view, a trial judge should not expressly or by tacit implication prevent or hinder a witness from testifying simply because he or she "was in Court throughout the trial". The Court should hear the witness and assess the weight of the evidence at the end of all the evidence. To indicate to a witness or the parties or their counsel that the witness's evidence will be given very little or no weight before he or she has given her evidence amounts to tacitly preventing or hindering the witness from giving his or her evidence. The Court also cannot properly discuss the weight of the evidence to be given by a witness without having heard the evidence of the witness. Failure to observe these principles amounts to a fundamental error which can vitiate a trial.

26.	Consistent with the said decision, let me now assess Helen’s evidence.  How was her demeanour in Court?  I found Helen’s demeanour as unimpressive.  She sat in a manner as to avoid eye contact with the Judge.  She spoke softly to the interpreter from start to finish.  Let me discuss two notable inconsistencies I found from her evidence.  Firstly, whilst her husband the accused has said that he was assaulted by John and others next to the mango tree beside the beach, Helen said her husband was assaulted far inland away from the beach on the main road.  When pressed by the prosecution as to which one of them was telling the truth to the Court, she said that she was telling the truth.  So her testimony has discredited her husband’s on this fact.  The second notable inconsistency is this.  When the prosecution put to Helen that her husband had said he was assaulted next to a mango tree, Helen slightly changed her story.  Let me explain.  During examination in chief, Helen did not make mention of a mango tree at the location where accused had been assaulted.  And in the first part of her cross-examination, Helen just said that her husband was assaulted on the main road far off from the beach.  But when it was revealed to her at the latter part of the cross-examination that her husband had informed the Court that he was assaulted next to a mango tree that was next to the beach, she said these in reply, “they assaulted him in the middle of the road close to a mango tree.”  The third notable inconsistency is this.  When Helen was asked during examination in chief to name the people that were at her house between the hours of 12am and 1am on 9 November 2016, she mentioned herself, the accused and the accused’s parents.  Her lawyer questioned her the second time and she gave the same answer and said that there was no one else.  I think the defence counsel did a thorough task to try to get the witness to recall if she may have forgotten to name or recall anybody else.  But Helen said that those were the only people who were there at that time.  In doing so, she has yet again contradicted her husband’s testimony. When the accused testified in examination in chief, he also mentioned the name of this person Tikur Leslie as someone who was also with them at the house between the hours of 12am to 1am that night.  

27.	Taken all these factors into account, I find as follows.  Firstly, I find that the inconsistencies have weakened the defence’s alibi.  I find Helen as not a trust worthy witness.  I note that the accused has not denied that he was within the vicinity of the crime scene that evening.  The accused and Helen say that they were within the vicinity of the crime scene that evening before the accused was assaulted by John and the villagers.  The only difference with this set of facts is the timing.  Both Helen and accused said that they were there at 9pm whilst the prosecution witnesses say that the accused was there and that he was assaulted between 12am and 1am and they deny seeing Helen at the scene.  With these, I therefore find that the prosecution has proven beyond reasonable doubt that the accused was assaulted by John and the villagers sometime between 12am and 1am on 9 November 2016.  I dismiss the defence evidence of the timing of the assault on the accused that evening. 

28.	Having made this finding which effectively dismisses the defence’s alibi defence, let me now consider the main contested facts.

SEXUAL PENETRATION

29.	The evidence of Victim HT, John and Tanak, if considered at their highest and as accurate (i.e., without regard to the defence evidence and without regard to the prosecution’s evidence being tested in cross-examination), establish that HT was sexually assaulted pursuant to section 229A.  The 2 issues I have under this sub-heading are inconsistencies and identification.

30.	But before I consider the 2 issues, let me say this.  Firstly, I find as a matter of fact that there was penetration of some sort on HT’s vagina.  I refer to Exhibit P2 which had been tendered by consent or without objection by the defence.  The exhibit is a medical report by Doctor Anton dated 9 November 2016.  HT was medically examined a day after the incident.  Two (2) notable features were (i), the bruising at the vaginal orifice and (ii) torn hymen with fresh bleeding.  In concluding, Doctor Anton stated and I quote Ä diagnosis of Sexual Penetration was made.  This evidence, in my view, is not conclusive but implies that there may have been sexual penetration.

31.	The question I have, which is the main issue, is whether it was the accused that had sexually penetrated HT on that night.  The only eye witness to the incident when it happened was HT.  John and Tanak in my view gave consistent evidence but as to this fact, they both did not actually see the accused or the person that had sexually assaulted HT.  The 2 gave consistent evidence that when they arrived at the crime scene, HT had informed them that it was the accused that had taken her down to the beach and had assaulted her. 

32.	Let me now deal with the inconsistencies in HT’s evidence.  During cross-examination, I observed in particular as follows:  HT gave evidence that it was dark.  HT continued initially by maintaining that it was dark and that there was no light.  HT changed her story slightly when she mentioned that there was light coming from a lamp in the house that she was sleeping in at the time before she was taken.  But she had given a prior statement to the police where she had stated that she was awaken at the beach or that it was at the beach that she opened her eye.  But her evidence of light at the beach was consistent which was that it was dark.  

33.	The other notable inconsistency is this.  During examination in chief, HT told her story at first without difficulty which was that the accused carried her down to the beach; that he sat her on his lap; that he penetrated her through her vagina with his penis.  But when the prosecution counsel asked HT to explain in detail, she repeated her story differently.  She said the accused sat her on his lap.  She said the accused presented his penis from his trousers.  She said that that was when she started crying out.  She said that she was afraid of the accused which was why she cried out.  The prosecution then repeated the question of what the accused did when he took out his penis from his trousers.  HT answered by saying this and I quote, “No, he did not do anything.”  Immediately after, counsel reminded HT of what she had initially stated which was that the accused had taken her down to the beach; had removed her clothes; had sat her on his lap and then had penetrated her vagina with his penis.  In reply HT said and I quote, “Yes that is true.”  But in cross-examination, HT again repeated her inconsistent testimony.  She said that the accused removed his penis from his trousers.  She said that the accused presented his penis to her and she felt frightened and cried out.  The defence asked whether the accused did anything after that to which HT answered and I quote, “No he did not do anything.” The next question that followed was, “He never had sex with you?” And HT answered and I quote, “No.”  I note that the prosecution never clarified or addressed this point in re-examination. 

34.	In regard to identification, let me say as follows.  No one saw the assailant at the time of the incident.  The only witness was HT.  I note that HT has maintained throughout her evidence that the beach area or the place where she had been assaulted was dark.  But I note that her evidence of being able to identify the accused at the beach has not been shaken.  Every time when it was put to her that it was dark and that she was unable to identify her assailant, HT kept denying that and said that she was able to recognise and identify the accused.  She said she knows the accused because they live in the same village.  She said she knows her wife and she named her as Helen.

35.	The accused denied that he was the assailant.  He and his wife have relied on the defence of alibi.  I have already ruled out that defence.  I note that the accused himself and his wife have admitted that the accused was within the vicinity of the crime scene at the material time.  The only difference was the timing which was ruled out above in my judgment.  The evidence of John and Tanak puts the accused at the vicinity of the crime scene between 12am and 1am.  They said that they saw the accused walked to the beach around that time.  They said that a few minutes after that, they heard HT’s cry which came from the beach.  They said that HT had told them when they arrived at the beach to rescue her that it was the accused.

36.	My findings on identification and the contested facts are as follows.  I am satisfied beyond reasonable doubt that the accused was the person that had carried HT to the beach.  I note that the place was dark.  However, I note that HT was awake and was aware of what was happening at the time at the beach and to her.  I find that HT had had a longer period or opportunity to recognise and identify the accused.  HT was virtually zero meters from the accused.  The accused was carrying her all that time.  Later at the beach, I find that the accused had sat her on his lap which means that she would have been very close to him and particularly to his face to be able to recognise him.  I did not find any evidence that suggests that the assailant had blocked off HT’s view or for example the assailant had shut out her eye from recognising him.

37.	Now, this is where things get complicated.  There is strong evidence from HT herself which has been tested, that the accused never penetrated her.  HT said that the accused only presented his penis out from his trousers and that when she saw his penis, she cried out or screamed.  She confirmed in her testimony through cross-examination that the accused did not do anything to her after that.

38.	I am therefore not satisfied beyond reasonable doubt that the accused had sexually penetrated HT by inserting his penis into HT’s vagina.  This is despite my findings that the accused did carry HT down to the beach; that he did removed her clothes, that he sat her on his lap and presented his penis to her.  I find as a matter of fact that when she screamed upon seeing his penis, the accused fled and left her behind.  What about the medical report which suggests penetration of HT’s vagina, I ask myself.  In my view, the medical report is not corroborated with HT’s tested testimony in Court.  Now, it may also be argued that the evidence are circumstantial and therefore that the Court should take them all into account despite the inconsistency (see case: State v. Miriam Kakun (1997) N1673).  The rule on circumstantial evidence of course states as follows:  For the Court to be satisfied and accept the evidence, the prosecution must prove beyond reasonable doubt that the established facts are inconsistent with any reasonable hypothesis other than guilt of the accused.  See the case of State v Morris [1981] PNGLR 493.  The difficulty I see for this principle to apply herein are as follows:  Firstly, the victim has expressly given evidence of want of sexual penetration.  That said, the medical evidence indicates some form of penetration of the victim’s vagina.  The medical report showed that the victim’s hymen had been torn and there was evidence of fresh bleeding of the hymen.  However, if I take into account the denial of sexual penetration by the victim HT herself, I can already see that it opens up the avenue where one could easily allege other reasonable hypothesis which could not be ruled out.  For example, the vaginal injuries sustained by HT could have been sustained earlier or after the incident whether by the accused or someone else.  Penetration of HT’s vagina by the accused using his penis cannot be the only rational outcome because that fact or act has been denied or convoluted by HT’s own evidence.  I am therefore not satisfied, based on the facts for which the accused was charged with, that he sexually penetrated HT by inserting his penis into her vagina at the beach that night as alleged.  If there is another set of facts or allegations, these are not before this Court.  I am of course bound by the charge that is laid against the accused and the facts that go to support that said charge.  See the case: State v. Bond Nanal (2009) N3597.

SUMMARY

39.	I refer to the elements of the offence.  Firstly, I find that the accused did not engaged in an act of sexual penetration with HT as alleged.  That being the case, the Court’s findings as to the second element is immaterial and the charge must fail.

REMARK

40.	I note that the accused was not charged with an alternative charge such as section 229B or section 229C of the CC Act.  As such, despite the Court’s finding of the identity of the accused and of his other actions that were sexual in nature, there is nothing before the Court to pursue or convict the accused on.

THE ORDERS OF THE COURT

A verdict of not guilty is entered forthwith.
____________________________________________________________
Office of the Public Prosecutor:	Lawyers for the State
Office of the Public Solicitor:	Lawyers for the Accused