N7988
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 389 OF 2018

THE STATE

V

JERRY INAHU
Accused

Vanimo: Geita J 
2019: 11, 18 February, 15 August

CRIMINAL LAW –  Trial - Particular offence – Persistent sexual abuse of a female child under 16 years between unknown dates from 1st August and 31st August 2017 – Sexually penetrated the child, despite knowing that the child was under 16 years old - S. 229D(1) & (6) of the Criminal Code Act.

CRIMINAL LAW –   Trial –Three occasions of conduct of persistent sexual abuse of child -Consent no defence s. 229F. Guilty Verdict- S. 229D (1) & (6) of the Criminal Code Act.

Cases Cited

Browne v Dunn (1893) 6 R 67 (HL)
The State v Masit (2007) N6997
The State v Bond Nanal (2009) N3597
The State v Makai [2009] PGNC 239)

Counsel:	

T Aihi & M Tamate, for the State
M August, for the Accused
				
			       JUDGMENT ON VERDICT
15th August, 2019

1. 	GEITA J:  Upon indictment on three counts of persistent sexual abuse of a child laid pursuant to Section 299D (1) & (6) Criminal Code the accused pleaded not guilty and trial ensued.   

	The terms of the indictment are as follows:

2.   Jerry Inahu of Buna, Green River, and West Sepik Province stands charged that he between 1st of August and 31st of August 2017 at Warakongkong and Biaka village, Vanimo in Papua New Guinea engaged in the conduct of persistent sexual abuse of a child, namely Maxlyn Tawian, a child under the age of 16 years, then 15 years old.

Circumstances of aggravation:

AND two or more of the occasions of the persistent sexual abuse involved an act of sexual penetration.

Nature of separate offences alleged:

In the course of the conduct Jerry Inahu on two or more occasions engaged in an act of sexual penetration of the child Maxlyn Tawain by inserting his penis into her vagina.”

Prosecution evidence- Witness 1 – Maxlyn Tawain, the victim. 

3.	The victim gave testimony of befriending Jerry, the accused via mobile phone in January 2016 and frequently visited him. During those visits the accused would shower her with money ranging from K50 up to K100.One Saturday in July 2016 they both met at the Christian Bookshop and took a bus to his house at Warakongkong where he left her with his sister and returned to his place of work at Green River. The accused’s sister later returned her to her home but she did not tell her mother where she was the previous night.

4.	Their communication and friendship developed until 25 August 2016 when they met again at the Boat Shed and travelled to Waramo, bought some beer and gave for his boys to drink. They later returned to his house at Warakongkong and spent the night together. During the night they had sex despite her protests and dosed off to sleep. She was woken up during the night and they had sex again for the second time and slept.

5.	Around 1 pm the next day they headed back to Green River with some boys in his vehicle which broke down at Biak village. They remained stranded on the road side until Sunday daybreak and he invited the victim to accompany him to a nearby hill to try get help via his mobile phone. Whilst on the hill, alone they both had sex and returned to their vehicle. They journeyed on to Green River to his family home and was met by the accused’s wife who was not very receptive of her. She spent the night with them and was returned to her big sister who lives nearby by the couple. The next day she returned to Vanimo on a PMV.

6.	In examination in chief the victim said at the time Jerry had sex with her she was in Grade 6, attending Vanimo Primary School. She identified the accused with no great difficulty and described the various sexual acts performed on her by Jerry and said in most instances they were against her wishes. Their affair was reported to the Police by her father after he saw them together.

7.	In cross examination the victim maintained that all those sexual assaults were carried out on her despite her protests and resistance. She admitted that by being alone with the accused would lead to both of them having sex. She further admitted hiding their relationship from her family members until both of them were caught on the road by her father.

8.	In re-examination the victim admitted that Jerry’s wife was known to her and she would refer to her as her aunt.

Witness 2 – Josepha Tawain, victim’s mother

9.	Her role in this trial was to introduce into Court oral evidence of bearing five children, one of whom was the victim, born on 22 May 2002 in the village at Green River.

Defence evidence- Witness 1 –Jerry Inau

10.	The accused gave testimony of befriending the victim over the phone which resulted in exchange of credits, cash monies and phonographic material. He clearly recalled the events which took place between the 25th and 28th in 2017. He said this went on for some time until they both met at the Boat Shed and ended up at his house at Warakongkong around 7 pm. On the night of 28th day in 2017 whilst on their way to Green River their vehicle broke down and they spent the night on the road. The next day he went up a small hill to try and pick up mobile signals and call for assistance from Green River Secondary School. He said the victim returned to Vanimo in a separate vehicle. The accused said when they were taken to the Police Station, he was told that the victim was under aged. He said her actions however showed to him that she was mature. From there on he stopped communicating with the victim, however the victim continued to pester him to accept her as his wife.

11.	Another time the victim returned to him at Wara Kongkong around 7 pm in the night as he was with his elder brother in his house. His brother rang the victim’s father who came and took her away.

On 22 October, 2017, a Sunday she again returned to the accused’s home but was told to return to her parents to which she refused. Again on 24 October 2017 as her sister came to take her back to her parents she refused to go and insisted that she would marry the accused. The next day on 25 October 2017, she again refused her mother’s attempts to return home. On 22 October 2017, Police arrested the both of them and took them to the Police Station where he was charged around 5pm the same day.

12.	In examination in chief the accused said he got to know the victim via phone conversation. He said he could tell that she was a big girl as she would request for credits and I would give her. He admitted that he didn’t know how old the victim was. He maintained that during all those sexual encounters the victim was a willing partner as she removed her own clothes.

13.	In cross examination the accused admitted that the victim was his wife’s niece from her father’s side. He admitted sending credits and receiving bad pictures from the victim and continued to entertain her.

Q& A 10: You entertained her by responding to her?
A. She looked like she was a big girl and was sending those pictures to me.
Q. Did you report to the Police?
A. I went and told Kabilo what was happening.
Q. When was that?
A. In August 2017, I reported to Kabilo
Q. Why didn’t you refuse her requests?
A. She was insisting and forced me to get married to her.
Q. You went to Police Station and Police told you that she was under age?
A. Police told me she was under age and I stopped but I can’t recall date.
Q. I put to you that between 25 and 28 August 2017, Police told you her age?
A. That was on that day. During the day so I stopped.
Q. You told Court that in the afternoon from dates 25 and 28 August 2017, the victim returned to your house.
A. Yes at 7 pm.
Q. On the night of 25 August 2017 you had sex with the victim?
A. Yes, she agreed and we had sex.
Q. During the same night you had sex with her again?
A. I asked her, she agreed and we had sex.
Q. The next day at Biaka village, you had sex with her again.
A. Yes she agreed and we had sex. She was playing with my penis and we had sex.
Q. Did you ask her if she was at school?
A. No I didn’t ask her.
Q. Police took you and victim, after you were told that she was under age?
A. Yes on 22 October 2017 and then I was sent to CS.

Defence evidence- Witness 2 –Ronald Ifiok

14.	This witness is the grandfather of the victim and lives next to the accused’s house at Warakongkong. He recalls seeing the victim come to the accused’s house on four different occasions. He saw her come to Jerry’s house in the month of July 2017 but the accused was not at home. She came again in August 2017 around 7.30 and he invited her to stay at his house. He called her father to come and get the victim. On the third occasion the victim was seen with Jerry in his vehicle at Warakongkong in August.On the fourth occasion she came and stayed with Jerry for 1 week on 22 October 2017 but the witness told her to return to her parents.

15.	Undisputed facts

(a)	It is not disputed that the accused and the victim conjured a boy/girl relationship in January 2017.
(b)	It is not disputed that the accused would shower the victim with mobile credits, money upon her request.
(c)	It is not disputed that their relationship matured into intimacy or sexual intercourse on three separate occasions.

16.	Issue

(a)	What is disputed is whether or not the accused knew that at the material time the victim was a child under the age of 16 years old.
(b)	Consent.

Was the victim 15 years old when she had sexual intercourse with the accused?

17.	The accused admitted in evidence that he did not attempt to find out how old the victim was during their phone relationship. He asserts that by her requests for phone credits and transmission of phonographic material to him, he formed the view that the victim was mature. It was not until 25 August 2017 that he was told by Police that the victim was under age. On the evening of 25 August 2017 he had sexual intercourse with the victim, with the full knowledge that the victim was under age.

18.	As for the victim’s age, only her biological mother gave testimony that the victim was the youngestof her five children born on 22 May 2002 in the village at Green River. This would make her to be 15 years at the time of those three sexual assaults. The victim said she was in grade 6 when their relationship started. If she is now in grade 9 at Don Bosco Technical School in 2019, in year 2016 she would be doing grade 6.

19.	The victim’s clinic book was not readily available before the court. Mr August for the accused submitted that this was a child sexual offence and the age of the child must be properly made out: (The State v Masit (2007) N6997).Some independent source of corroboration of the age of the victim was required: (The State v Bond Nanal (2009) N3597). For the moment the mother’s evidence of her daughter’s age has not been discredited and remains credible. This evidence finds corroboration in the victim’s evidence that she was doing grade 6 at the material time in 2016. Furthermore on the question of credibility on whose version to believe I find the victim and her mother’s evidence more convincing. Going by the facts before me viz. victim is in grade 9 now in 2019; she was in grade 6 at the height of their friendship: Counting backwards in years,that would be year 2016. Common sense and logic dictates that a majority of children within that age range, under 10 -15 years find themselves doing grade 6 classes. It is highly unlikely that a mature student, save for some adults/parents would find themselves doing grade 6 in school. In the absence of any solid evidence discrediting their version of the victim’s age, I find that at those material times the accused committed the sexual acts on the victim, the child was under the age of 16 years.

Persistent Sexual Abuse

20.	The evidence before court shows that despite being made aware by Police on 22 October 2017 that the victim was under aged, he persistently enticed the child and had sex with her on three separate occasions thereafter. His flimsy defence was that the child was a willing partner.

Consent

21.	By operation of Section 229F it is not a defence that the child consented. The accused only evidence of believing on reasonable grounds that the child was aged 16 years and older arose from the fact the she was constantly requesting for phone credits and exchanging phonographic pictures with him. That belief to my mind is an absurdity, flimsy and not plausible.It must fail. As to the small aged difference by virtue of s 229F (b) that exceptional defence must also fail. The victim was 15 years and the accused was 28 years at the material times of their sexual encounters.

22.	Defence evidence through witness Ifiok is of very little use and tainted with breaches of the Browne v Dunn (1893) 6 R 67 (HL) rule. I did not find him to be a witness of truth.

Law

23.	What is the Law on Persistent sexual abuse of a child? 

Section 229D (1) and (6) reads:-
(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 sexual abuse of a child.
Penalty: Subject to Subsection (6). Imprisonment for a term not exceeding 15 years 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) …
(6) If one of more of the occasions involved an act of penetration, an offender against Subsection (1) is guilty of a crime and isliable, subject to Section 19, to life imprisonment. (Emphasis mine)

Application

24.	Now applying the law to the required elements, it is not disputed that it was the accused Jerry Inahu who on three separate occasions sexually penetrated the victim by inserting his penis into her vagina.

At those material time the child was under aged 15 and under 16 years. Counsel of State Ms. Theresa Aihi submitted that all required elements have been successfully made out and the State has proven beyond reasonable doubt that the accused must be found guilty of the offence of persistent sexual abuse of the victim. (The State v Makai [2009] PGNC 239)

Brown and Dunn Rule

25.	Might I add here in passing that during the cause of this trial more than 13 instances of breaches of the Browne and Dunn Rule were noted by the Court and the State Lawyer alerted however no objections were raised during trial? Ms Therese Aihi has now captured those breaches in her submissions and claims that the victim was prejudiced and unfairly treated by Defence. Basically, the rule in Browne v Dunn (supra) has it that the party intending to lead evidence that will contradict or challenge the evidence of an opponent’s witness, it must put that evidence to the witness in cross-examination. It is essentially a rule of fairness. 

26.	In this case some pertinent breaches were occasioned for instance: That the child told him that she will suck his penis and marry him; That she sent obscene or phonographic pictures to him through his mobile phone; That the child frequented his home at her own will; that the child stayed with him for one week etc. When placed against the accused direct evidence that he had sex with the child on three different occasions, knowing that she was under age, the Court need not look further to find the guilt of the accused.
Notwithstanding the glaring breaches of the rule in Brown v Dunn (supra) the crucial elements of the indictment remain intact and undisturbed, hence of very little utility in this trial. A prudent lawyer should always remain alert to these rules lest they prove fatal to their entire case(s).

Findings

27.	The Court is satisfied beyond reasonable doubt that all necessary elements required in a charge pursuant to s. 229D (1) and (6) of the Criminal Code in this case has been successfully made out. Therefore the accused Jerry Inahu is guilty as charged.

Verdict

28.	I find that the accused, Jerry Inahu, is guilty of three (3) counts of engaging in acts of persistent sexual abuse of a child under the age of 16 years and convict him accordingly.
Verdict accordingly,
_____________________________________________   
Public Prosecutor:  Lawyer for the State
Public Solicitor:	  Lawyer for the Accused