N7832
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 406 OF 2018

THE STATE

V

ADRIAN RIKAHA AGEVA
(No 1)

Buka :  Toliken, J
2019:    11th, 12th, 15th, 18th April

CRIMINAL LAW – Particular offence  – Sexual penetration of a child under 16 years of age – Trial – General denial – Age of child not disputed at trial  – Issue at trial - Whether accused sexually penetrated child - Evidence of child as to penetration not challenged in any way – Denial by accused not believable - Verdict - Guilty - – Criminal Code Ch. 262; s 229A(1. 

Cases Cited: 

The State v Alois Dick (2007) N3219

Counsel:

S Dusava, for the State
F Lugabai, for the Accused.

JUDGMENT ON VERDICT
18th April, 2019
1.	TOLIKEN, J:	Adrian Ageva pleaded not guilty to an indictment charging him with one count of Sexual Penetration of a child under the age of 16 years thus contravening Section 229 A (1) of the Criminal Code Act. (the Code)
2.	The State alleged that on 22nd day of December 2017 at Kiopan village, Hanahan, Buka, Autonomous Region of Bougainville, the accused sexually penetrated one CA, who at the time was 13 years old, by inserting his penis into her vagina.
ALLEGATIONS
3.	The alleged brief facts are that on the date in question, at Kiopan village, between 1.00p.m -2.00p.m the complainant and her aunt, Sandra Kiuts, were collecting banana leaves a fair distance from the complainant's house.
4.	As they were collecting banana leaves the accused Adrian approached them. He was holding a softball bat. He removed a knife from Sandra, grabbed her hand and pulled her and the complainant towards him and away from where they were.
5.	Sandra managed to free herself and fled the scene. The accused dragged the complainant further into the bushes, threw her on the ground, removed her clothes and his own trousers and then sexually penetrated her by inserting his penis into her vagina.
6.	After satisfying himself, a struggle ensured and he told the complainant not to tell anyone. He then ran away.

THE OFFENCE
7.	Section 229 A (1) relevantly provide for the offence in the following terms –
	229 A. 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 subsection (2) and (3) imprisonment for a term not exceeding 25 years.
8.	The term “Sexual Penetration” is defined by section 6 which states:-
‘When the expression “sexual penetration or sexual penetrates’ in the definition of an offence, the offence so far as the element of it, is complete where there is
(a)	The introduction to any extent by a person of his penis into the vagina, anus or mouth of another person; or

(b)	The introduction to any extent by a person of an object or a part of his or her body (other than the penis) into the vagina or anus of another person, other than in the cause of a procedure carried out on good faith for medical or hygienic purposes.
9.	By this definition full penetration into the vagina or anus of another person is not required because the slightest penetration would suffice, so much so, that is has been held that the use of the tongue to lick the victim’s vagina is sufficient to constitute penetration. (The State v Alois Dick (2007) N3219 per Salatiel, J).
10.	That being said, for a conviction for this offence State must prove the following elements beyond a reasonable doubt:
i.	The accused
ii.	Inserted his penis
iii.	Into the complainant’s vagina
iv.	The complainant was a child under the age of 16 years.
11.	There appears to be no serious contention and no challenge on whether or not the child was 13 years old at the relevant time and hence was under the age of 16 years.
ISSUE
12.	The issue for my determination is therefore whether or not the accused sexually penetrated the complainant’s vagina.

THE EVIDENCE
13.	The State called the complainant CA, Sandra Kiuts, Lincy Alcon and the Arresting Officer Robert Vinton. 
14.	The following documents were also tendered by consent:
1.	Record of Interview (original pidgin (A) and English translation (A2)
2.	10 x photographs of the alleged crime scene (B1 – B10)
3.	Medical Report by Dr. Wotsia (C)
4.	Medical Report by Sr. Colleen Kunubi (D)
5.	Hand drawn sketch map of the alleged crime scene (E).
15.	The accused gave sworn testimony but called no witnesses.

UNDISPUTED FACTS
16.	It is undisputed as I said earlier that the complainant was 13 years old at the time of the alleged offence, having been born on 10/04.04 according to her mother Lincy Alcon. As I also noted earlier that defence did not challenged this in anyway and even though the State has the onus of proving that the child was under 16 years of age by credible evidence such as through the production of a Birth Certificate, an NID Card or the child’s Medical Record Book, the defence silence is seen to be a concession that the child was indeed under the age of consent.
17.	There is no dispute that the complainant and the accused are known to each other and that both come from Kiopan village.
18.	There is also no dispute that on the afternoon of that day in question they came into contact with each other within the vicinity of the alleged crime scene. The circumstances under which they did are, however, disputed and I will return to these later on in this judgement.
19.	It is not disputed that at the relevant time, the complainant was with her 15 year old aunt Sandra Kiuts when they were approached by the accused. Soon after that Sandra Kiuts fled the scene and ran back to the complainant’s house. She reported to the complainant’s mother that she had left the complainant with the accused at the place where they had been cutting leaves. There was no dispute that the complainant and Sandra had been sent there to cut banana leaves by the complainant’s mother for a mumu.
20.	It is not disputed that the complainant's mother ran to the area Sandra had left the accused and the complainant soon after. She called the complainant’s name several times, but the complainant did not answer at first. It is also not disputed that when she first came to the scene she noticed that the grass and vegetation there was disturbed and she noticed or observed what she said were knee imprints on the ground and that she immediately knew that something bad had happened to her daughter.
21.	It is not disputed that upon receiving no response from the complainant, her mother Lincy went over to Mulanga’s house where she found the accused. She asked him about the complainant, but the accused denied seeing her. Lincy then left and returned to the bush. She called again for her daughter. She responded this time and came out with soil and dirt on her clothes and looking scared. She then took her home and then later took her straight to the Hanahan Health Centre where she was examined by Sr. Colleen Kunubi. The next day the complainant was taken to the Buka General Hospital where Dr. Wotsia examined her. Both Sr. Kunubi and Dr. Wotsia made separate reports which were tendered into evidence by consent.
22.	The complainant was presented at the outpatient clinic at the Buka General Hospital on 23rd December 2017 and examined by Dr. Wotsia. The examination which included a vaginal swab for the presence of spermatozoa revealed the following:
•	No scratch marks on the inner thighs, abdomen or extended areas.
•	Vulva-the right labia majora and minora were slightly swollen and 	inflamed and tender to touch.
•	The left vulva was minimally inflamed
•	The hymen was still present (remnant) but grossly inflamed and 	swollen. There was a tear noted at the left upper corner, without 	bleeding.
•	The opening of the hymen was obviously widened, through which 	the vaginal 	vault can be observed.
•	There was no unusual free fluid, blood (fresh or clotted) or 	lacerations in the 	vagina 
•	The vaginal swabs did not reveal the presence of sperm though.

23.	Dr. Wotsia concluded that the examination findings indicate a more recent vaginal penetration resulting in the torn hymen and associate vaginal and vulva inflammation. Dr. Wotsia’s findings and conclusion was not disputed in any way.

24.	Finally there is no dispute that the accused had been drinking and hence was intoxicated at the relevant time. And there is no dispute that at the relevant time, he was at his uncle Mulangas house at Kiopan. 

DISPUTED FACTS

25.	At the outset there were some disputed facts, which for want of a better word, I would call "peripheral" because they do not impact directly on the central issue – whether or not the accused sexually penetrated the complainant.

26.	So did the accused sexually penetrate the complainant? What is the evidence on this?

Evidence by the State

27.	The complainant testified that the accused had grabbed both hers and Sandra’s hands initially. He however, let go off Sandra’s hand and then pulled her (complainant) into the bushes. In the process he dropped a softball bat which he had with him under a breadfruit tree and then continued to take her further into the bush. He then threw her on the ground, removed her clothes and his own trousers and then penetrated her by inserting his penis into her vagina. He said he penetrated her twice.

28.	When asked in cross-examination why she did not shout for help as houses were nearby, she said she was scared and besides there was noise coming from a lawn mower nearby.

29.	The States second witness Sandra Kiuts testified that when the accused approached them in the bush she was standing away from the complainant when the accused grabbed her and dragged her into the bush. She immediately fled the scene and ran back to the house and informed the complainant’s mother that the accused had grabbed the complainant. She said in cross- examination though she did not immediately tell the complainants mother nor did she accompany her back to the scene. On this, latter points the complainant's mother, however, told the Court that Sandra immediately reported to her and they both proceeded to the scene.

Evidence of Accused

30.	The accused on the other hand testified that he had been drinking that day and had gone over to his uncle Mulanga’s house that morning between 6.00a.m -7.00 p.m. to charge his mobile phone. He, however, went to sleep and did not wake up until sometime between 1.00p.m - 2.00p.m. When he woke up he saw the complainant and Sandra crossing the village field next to his uncle’s house. He said they signalled to him but he did not respond at first. However, when they signalled him a second time, he went over to them thinking that they had a message for him from his girlfriend Rachael. The complainant stood waiting for him while Sandra continued on to the banana patch. He asked complainant about Rachael and she told him that Rachael was in town. She then continued on to join Sandra and the accused returned to Mulanga’s house. After about 15 minutes the complainant’s mother Lincy and Sandra came and asked for the complainant. He told them that she had followed Sandra into the banana patch upon which the complainant’s mother said that she’ll report the matter to the police. He said he was not at that time concerned because he did not do anything wrong.

31.	The accused said also that there had been a festering land dispute between his family and the complainant’s which started well before he was born. This he said may have triggered the allegations against him. It was never really brought out in the open, but when he was arrested his relatives confronted the other party. He said he may have been targeted because he had been taking the lead on behalf of his relatives.

32.	The accused denied being at Lincy’s house earlier that morning asking for his girlfriend Rachael when it was put to him in cross –examination. He also denied drinking at Mulanga’s house that morning saying that he had been drinking in town and maintained that he never confronted Sandra and the complainant as they said.  

SUBMISSIONS

33.	Mr. Lugabai of counsel for the accused submitted that there are several inconsistencies in the State’s witnesses' evidence. For instance, while the complainant said that the accused grabbed both hers and Sandra’s hands, Sandra on the other hand said she stood away from them when the accused grabbed the complainant. Furthermore, the complainant and Sandra would have been in great danger, but they did not shout or call out for help, even when it was said that someone was cutting grass with a mower nearby. This counsel said was against common sense and logic. Then there was the softball bat that the accused was alleged to have been armed with, which was rejected when it was attempted to be tendered through witness Robert Vinton. This counsel said rendered that State’s case on that point unreliable.

34.	Counsel did concede that that medical report showed evidence of sexual penetration, but argued that this does not show that it was the accused that sexually penetrated the complainant. Therefore, the accused want to be acquitted of the charge. 

35.	Ms. Dusava for the State replied that even though the evidence of the complainant and Sandra may appear to be contradictory, their evidence point to the fact that they were together in the banana patch cutting banana leaves when the accused approached them. Both were attacked and Sandra fled the scene.

36.	Counsel submitted that the accused ought not to be believed. His evidence that he had gone to his uncles house to charge his phone and then went to sleep, waking up to see the complainant and Sandra signal him as they crossed the field and thereafter approaching them cannot be true. Counsel also submitted that the land issue only worsened after he was arrested.

DELIBERATIONS/CONCLUSIONS

37.	Now, much of what the defence said was contradictory, inconsistent and against logic and common sense are on what I had said earlier were "peripheral" facts. The most pertinent evidence here is the evidence of what the accused said to have done to the complainant.

38.	I accept that there may be an inconsistency between that evidence of the complainant and Sandra on whether the accused grabbed both their hands – the complainant saying he did while Sandra said he stood a distance away from the complainant and the accused when the accused grabbed the complainant and dragged her into the banana patch.

39.	Be that as it may, there is no contradiction in the evidence on the most crucial fact – that the accused had dragged the complainant further into the banana patch. That remains uncontroverted and I find that the accused did in fact grab the complainant’s hand and pulled her into the bush/banana patch. I do not believe the accused’s evidence that he approached the complainant and Sandra on the field. I also do not believe that they signalled to him as they were passing by.

40.	I believe and find that after Sandra fled the scene the accused dragged the complainant into the banana patch and there he removed the complainant’s trousers and his own and then sexually penetrated her vagina by inserting his penis into her vagina. There is uncontroverted evidence that the grass and other vegetation around the area was disturbed – a sign of a struggle – and that there were knee marks or impressions on the ground. The complainant’s and her mother's respective evidence on this was not challenged in any way.

41.	Furthermore, and most importantly, the complainant’s evidence on the fact that the accused sexually penetrated her was not challenged at all in any direct way, for instance during cross- examination. Counsel for the defence dwelled rather at length on peripheral facts and did not put a single question to the complainant on her evidence that she was sexually penetrated by the accused. The net effect of that failure is that the complainant’s evidence on this crucial fact has not been shaken in any way.

42.	The medical report clearly shows recent evidence of sexual penetration. It shows a recently torn hymen and inflamed vulva - labia majora and labia minora. The examination was done the next day and even though there was no blood or spermatozoa observed on and in the complainant’s genitals there is no doubting that the complainant was sexually penetrated.

43.	There is no suggestion let alone any evidence that the complainant was penetrated by someone else. Hence the only conclusion is that the accused did in fact sexually penetrate the complainant.

VERDICT

44.	I therefore find the accused GUILTY as charged.

Ordered accordingly.
________________________________________________________________
P Kaluwin, Public Prosecutor: Lawyer for the State	
L B Mamu, Public Solicitor: Lawyer for the Accused