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State v Toguata [2018] PGNC 201; N7294 (6 June 2018)

N7294

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. N0. 796-797 of 2016

THE STATE

V

TOVIN TOGUATA

Kokopo: Susame, AJ
2018: 21-22 May
6^th June

CRIMINAL LAW – Persistent sexual abuse of girl under 16 years of age –s 229d (1) (6) criminal code (sexual offence and crimes against children) Act 2002 – female child 15 years old- blood relatives – child is a niece to accused – consent is no defence s 229f - court may convict without evidence of corroboration ss229h & 352a – issue - whether accused persistently sexually abused the child.

Held

1. Accused persistently sexually abused the child by introducing his penis through her vagina on four separate occasions.
2. Accused is an uncle to the child and is a close blood relative.
3. Accused is Guilty of offence of persistent sexual abuse of a child under s22D(1)(6) of Criminal Code (Sexual Offence & Crimes Against Children) Act 2002
   

Cases cited:

Nil

Counsel:

Miss. Batil, for the State
Miss. PulaPula, for the Accused

JUDGMENT ON VERDICT

6^th June, 2018

1. SUSAME, AJ: On an indictment presented to the court State charged the accused with one count of persistent sexual abuse of a 15 year old child with instances of sexual penetration under s 229D (1) (6) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. The indictment also stated there was a relationship of trust, authority or dependency between the accused and the girl in that the accused is the girl’s uncle.
2. In the same indictment four alternative charges of incest are pursued by the State.
3. The four allegations are;
   1. On a Sunday in January 2015 inside a cocoa fermentary (dryer) accused sexually penetrated her niece by introducing his penis into her vagina,
   2. On 16^th January 2015, in the bushes, along a bush tract to their garden accused sexually penetrated his niece by introducing his penis into her vagina,
   3. In February 2015 inside his son’s dwelling house accused sexually penetrated his niece by introducing his penis into her vagina,
   4. In December 2015, in the bushes accused sexually penetrated his niece by introducing his penis into her vagina.
4. On arraignment accused pleaded not guilty to 3 of the allegations except the allegation on 16^th January 2015 which he pleaded guilty.
5. Court reserved reading the evidence in the committal file for confirmation of the provisionally plea entered for the charge accused pleaded guilty to. For convenience, all the charges were put to trial and evidence heard of the allegations.
   
6. OFFENCES

229D. PERSISTENT SEXUAL ABUSE OF A CHILD.

(1) A person who, on two or more occasions, engages in conduct in relation to a particular child that constitutes an offence against this Division, is guilty of a crime of persistent abuse of a child. Penalty: Subject to Subsection (6), imprisonment for a term not exceeding 15 years.

(2) For the purposes of Subsection (1), it is immaterial whether or not the conduct is of the same nature, or constitutes the same offence, on each occasion.

(3) In proceedings related to an offence against this section, it is not necessary to specify or prove the dates or exact circumstances of the alleged occasions on which the conduct constituting the offence occurred.

(4) A charge of an offence against this section –

(a) must specify with reasonable particularity the period during which the offence against this section occurred; and

(b) must describe the nature of the separate offences alleged to have been committed by the accused during that period.

(5) For an accused to be committed of an offence against this section –

(a) the court must be satisfied beyond reasonable doubt that the evidence establishes at least two separate occasions, occurring on separate days during the period concerned, on which the accused engaged in conduct constituting an offence against this Division in relation to a particular child; and

(b) the court must be so satisfied about the material facts of the two incidents, although the court need not be so satisfied about the dates or the order of those occasions.

(6) If one or more of the occasions involved an act of penetration, an offender against Subsection (1) is guilty of a crime and is liable, subject to Section 19, to life imprisonment.

EVIDENCE

7. For the prosecution evidence consisted of documentary evidence tendered by consent and oral testimonies of witness’ Kilang Pukue victim’s father and the victim to be identified by her initials E.K.
8. Two things court observed prior to E.K giving evidence. First, on oral application from the prosecuting counsel special measure orders were issued pursuant to Division 3 s37B of the Evidence Act basically for the child’s protection and for the child to be accorded a conducive environment to testify with certain degree of confidence. A partition was placed in between so witness had no visual contact with the accused and all other persons except the court officers, staff and dependents of the child vacate the court room. The order was valid only for the duration of the child giving evidence.
9. Secondly, prior to the child sworn in to give evidence an inquiry was conducted to ascertain if the child understood the significance of testifying in court under oath and the consequences of telling lies on oath. The child was led by the prosecuting counsel. Court was of the view the child understood the importance of giving evidence on oath. She was a competent witness and she was allowed to testify on oath.
10. Documentary evidence tendered by consent are:
    1. S/C Berlin Tololo’s statement dated 19 April 2016, marked exhibit A
    2. S/C Sunema Vue’s statement dated 19 April 2016, marked exhibit B
    3. Record of interview (pidgin version), marked exhibit C1
    4. Record of interview (English version), marked, exhibit C2
    5. Medical report dated 11 March 2016, marked exhibit D
    6. Affidavit of Patricia Kauli, Nursing Officer, dated 29 April 2016, marked exhibit E
    7. Sketch of family tree, marked exhibit G
    8. Photocopy page of victim’s clinic book, marked exhibit H
       
11. For the defence evidence came from accused’s oral testimony.
    

UNCONTESTED FACTS

12. Uncontested facts established by evidence are as follows. Accused is from Viviran village. Toma LLG. He is the elder brother of victim’s father. In PNG context E.K will call accused as her “big papa” or uncle. E.K is the daughter of her father’s first marriage. Her father separated from her mother and got married to another woman he is currently living with. They left their village and are living at Kabereka in the Warangoi area.
    
13. Accused was given birth by her mother on 30^th July 2000 at Paparatava Health Centre. (Exhibit H). Victim was then 15 years of age when the alleged sexual abuses occurred.
14. In about 2009 the victim was allowed to go and live with the accused and his family at Viviran village. While living with the accused she attended Tauran Primary School. She was doing her 7^th grade in 2015 when the alleged sexual abuses occurred. The victim has since closure of school in December 2015 returned to live with her biological father. That was when she told her father of the sexual abuses. The father discussed his concern with a retired police constable. Thereafter, complaint was laid with the police leading to the arrest of the accused in March 2016.
15. E.K was medically examined on 25^th April 2016 by the Nursing Officer Patricia Kauli at Paparatava Health Center. Officer’s findings are contained in the report. I note that E.K was medically examined 4 months after the alleged sexual abuses occurred. The report states her cervix had swelling and inflamed. There was frothy discharge from her vagina. She was diagnosed with sexually transmitted disease and was treated accordingly.
16. I will place less weighed on medical report as E.K was examined four months after the last incident of the alleged sexual penetration in December 2015. Secondly, the findings have not been substantiated by the author of the report.
17. Court has heard testimonies of the two state witnesses, E.K and her biological father Kilang Pukue. Kilang’s evidence is more relevant to the fact that her daughter had been living with the accused and his family. That upon return in December 2015 E.K had reported to him the sexual wrongs accused had committed on her and he raised his concern with a retired police constable.
    
18. More specific on the allegations, E.K gave a detail factual account of the sexual abuses committed upon her commencing in January 2015. Her evidence is on record. Without going into detail discussion of her evidence let me lay out in brief her evidence.
    
19. It all started one Saturday in January 2015 when the accused called E.K over and showed her a phonographic picture of a female. He told her he will teach her what married couples do. On a particular Sunday when all the members of the family had left for Church service, accused held her by the hand and took her into a cocoa fermentary (dryer). Therein, he removed her clothes, laid her down and inserted his penis into her vagina and had sex with her. She felt the accused releasing his sperm inside her vagina. She felt pain and cried but accused told her not to cry as he was teaching her how married couples have sex. Accused also told her not to tell anyone about what had happened.
    
20. Second time was committed in the afternoon of 17^th January 2015 when E.K came home from school. Accused invited her to go to the garden. On the way accused told her he was going to teach her again. She tried to run away but accused held her and laid her down to the ground. He removed her pants opened her legs. He inserted his penis into her vagina and had sex with her. Again accused told her not to tell anyone of what had happened as he was only teaching her.
    
21. Third time was committed on Monday 16^th February 2015. E.K was with her grandmother. No one else was around. Accused was working on a fence and called E.K to bring him container of water. E.K did as she was told. Accused told her he will teach her again. E.K tried to run away but accused held her tight by her hand. He took her to a boy house and took her inside. Inside she cried and told him she was against what he was doing to her. Accused told her not to cry as he was only teaching her good things about marriage and that she must not tell anyone. He then had sex with her by inserting his penis into her vagina. While he was sexually penetrating her he asked if she had had her monthly period. E.K told him she had missed her period. Accused told her he will prepare a herbal drink for her to take so she will have her monthly period. In the afternoon of the same day accused prepared the herbal drink which the victim took. In the night victim had her monthly period.
    
22. The 4^th and the last incident was committed on Saturday 19^th December 2015. Accused took E.K to a certain area in the bush under the pretext of collecting firewood. There he told her again to teach her. Accused held her and laid her on the ground. Again E.K told the accused he did not like what he was doing. Accused replied it won’t take long. He removed her clothes, opened her legs and inserted his penis into her vagina and had sex with her. She felt pain and told the accused she will report him to his father. Accused asked if her father had cash and traditional “tabu shell” money to pay compensation. After that last incident E.K ran away to his father and reported what the accused had done to her.
    
23. Accused gave oral evidence which is of general character. Accused denied knowledge of the allegations put to him except the incident on 17^th January 2015. He admitted sexually penetrating E.K because she had removed her clothes first and invited him.
    

ISSUE

24. There is one basic issue to be decided. That is, whether the accused sexually abused E.K persistently?
    

ANALYSIS/WEIGHING OF EVIDENCE

25. Court has heard submissions from both counsels. I remind myself of the position of law in proving guilt. The law places onus on the prosecution to proving guilt. Evidence adduced by the prosecution and weighed against the defence evidence must be such that a judge is left with no uncertainty or doubt in his/her mind to enter a conviction.
    
26. Generally, under the common law rule of practice in sexual offences cases victim’s evidence must be corroborated by other evidence in some material particular. If there was no such corroborative evidence the court may proceed to convict on victim’s evidence alone if court viewed that her evidence was convincing and truthful. The rule of practice also required court to caution itself to enter conviction on uncorroborated evidence which must appear on the record.
    
27. That common law practice is no longer applicable in PNG. By the current legislative scheme corroboration in sexual offence cases is no longer a requirement following amendments to the Criminal Code when parliament introduced sections 229H and 352A. An accused may be found guilty on the uncorroborated testimony of one witness (the victim) and a judge is not required to warn himself to enter conviction in the absence of corroborative evidence. Miss. Batil has rightly alluded to the law in her submission. I reproduce the provisions below;
    

“229H. CORROBORATION NOT REQUIRED.

On a charge of an offence against any provision of this Division, 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.

352A. CORROBORATION NOT REQUIRED.

On a charge of an offence against any provision of this Division, a person may be found guilty on the uncorroborated testimony of one witness, and a Judge shall not instruct himself that it is unsafe to find the accused guilty in the absence of corroboration.”

28. E.K was the principle witness for the prosecution. She gave detailed evidence of what accused did to her; the days and locations the alleged sexual abuses were committed, verbal representations that were made during those occasions.
    
29. Defence had not aggressively challenged E.Ks (victim) evidence. Much of her evidence remains intact with no contradictions or inconsistencies. Defence offered no evidence apart from accused’s denials and lack of knowledge of basic facts of the allegations put to him by the prosecution during cross-examination. Miss. Batil’s argument in that respect is noted and accepted by the court.
    
30. So, the question. Is the evidence from the two prosecution witnesses trustworthy, credible and truthful?
    
31. Accused is E.Ks uncle or “big papa” in the PNG context. E.K looked up to the accused as a father figure as he is the elder brother of her biological father.
    
32. Kilang (E.Ks father) had allowed his daughter to live with the accused and his family and attend school. Naturally, Kilang would expect his elder brother to provide support and take good care of his daughter’s welfare. There would have been some degree of confidence and trust for Kilang to come up with such an arrangement with the accused and his family. There is no evidence suggestive of any animosity or long standing grudge between the brothers prior to the arrangement. They would have had a good family relationship until the occurrence of the sexual abuses.
33. Under such circumstances there is no logical reason for E.K and her father to just make up a case against the accused and deliberately tell lies in court on oath. Both witnesses maintained their testimonies all through under cross-examination by the defence counsel. From my observation and assessment they appeared to be truthful.
    
34. During cross-examination when suggestions were put to him, accused denied knowledge of the 3 instances of sexual abuse but one. He admitted having sex with E.K once because she removed her laplap (clothes) and invited him.
    
35. The law is clear on consent as stipulated under s 229F which Miss. Batil had referred to. Consent is no defence to the charge accused is charge with unless the offence was committed under the two situations prescribed in sub-sections (a) & (b). The provision reads;
    

229F. CONSENT NO DEFENCE.

Subject to Section 229E, 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.

36. None of the two situations prescribed in the provision were raised by the accused in his defence. There have been few cases in which immediate or close family members succumbed to temptations and engaged in prohibited sexual relations.

37. Did E.K remove her laplap/clothes and invite the accused to have sex? I find it difficult to accept that assertion especially weighed against the strength of prosecution’s evidence which is far more convincing. It is unlikely E.K showed her nakedness and invited the accused to have sex. It was merely a fable accused came up with and is far from the truth.
    
38. Evidence adduced has established beyond doubt accused sexually penetrated his niece not on a single occasion but on four separate occasions. Prosecution has discharged the onus of proving its case.
    
39. Accordingly, accused is guilty of the charge of the offence prescribed in section 229D (1)(6) of Criminal Code (Sexual Offences And Crimes Against Children) Act 2002.
    

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