N8495

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 437 OF 2018

THE STATE

V

MATHIAS BANABA

Alotau: Toliken J
2020: 	20th, 21st February, 7th September

CRIMINAL LAW – Particular offence – Trial – Two counts of sexual penetration of a child under the age of 16 years – Circumstances of aggravation – Child 10 of age – Relationship of trust, authority and dependency (stepfather/daughter relationship –Criminal Code Ch. 262; ss 6, 229A (1)(2) 

PRACTICE AND PROCEDURE –Evidence – Circumstances of aggravation not contested – Penetration –  Full penetration not required – Slightest entry into vagina, anus or mouth sufficient –Corroboration no longer required – Corroboration may be required where complainant is a very young child or mentally challenged or in the absence of a medical report or other credible evidence– Medical report by nursing officer or non-medical practitioner – Accepted as business record – Observations by nursing officer admissible providing that officer does not proffer an opinion – Criminal Code Ch. 262; ss6, 229H.

EVIDENCE– Whether accused sexually penetrated complainant on occasions alleged – First count – Medical report – No tears/scratches around vaginal area observed – No bleeding, no presence of sperm in vaginal canal observed – Gapping of 1.5cm of vagina observed suggestive of sexual penetration –Nursing officer not a medical expert within meaning of section 37 of Evidence Act and Section 22 of Medical Registration Act – Opinion inadmissible - Doubt cast on whether complainant was living with parents at time of alleged offence – Accused not guilty of first count.
EVIDENCE – Second count –Whether accused sexually penetrated the complainant – Complainant’s evidence corroborated and strengthened by accused’s admissions in confessional statement and record of interview – Documents tendered by contested – Belated claim of force to obtain admissions - No application for voir dire to contest admissions -  Admissions – Best evidence that can be adduced – Count proven beyond a reasonable doubt – Verdict – Guilty.

Cases Cited:
Papua New Guinea Cases

Nainas v The State [1998] PNGLR 208
Michael TenaramBalbal v The State (2007) SC 860 
David Kandakason v The State (1998) SC 558 
The State v Pala Kaki (2019) N8246
The State v Daweia(2014)N5958
The State v Kapi Jas (2010) N4013
The State v Alois Dick (2007) N3219 
The State v Preston Paulus; CR No. 155 of 2015 (No.1) (unreported and unnumbered judgment dated 13 July 2018) 

Overseas Cases

Driscoll v R (1977) 137 CLR 517 
R v Baldry (1852) 169 ER 568 at 574 

Counsel:

A Kupmain, for the State
N Wallis, for the Accused

VERDICT

07thSeptember,  2020

1.	TOLIKEN J:	The accused Mathias Banaba was indicted for two counts of sexual penetration of a child under the age of 16 years, with circumstances of aggravation pursuant to Section 229A (1)(2)(3) of the Criminal Code. The circumstances of aggravation pleaded in the indictment are that the complainant child was under the age of 12 years and that the accused stood in a position of trust, authority and dependency in respect of the complainant.

ALLEGATIONS

2.	The accused is the stepfather of the complainant child, who was allegedly 10 years old at the time of the alleged offence. On an unknown date in the month of March 2014, the complainant was returning from a creek after bathing when the accused grabbed her and dragged her into the bushes, pushed her to the ground and had sexual intercourse with her. The complainant child reported the incident to her mother, but she did not believe her.

3.	Then on Monday 15 December 2014, the accused told the complainant to follow her to her aunt’s garden to harvest pineapples. She refused, but he forced her to go with him. As they were approaching the garden, he forced her to the ground, undressed her and had sexual intercourse with her.  The child cried in protest and he promised to give her K5.00 and a chicken. After he penetrated her, the complainant washed herself in a creek where a girlfriend of hers saw her washing herself and reported what she had seen to the complainant’s relatives. Later that afternoon, the complainant’s aunties questioned her, and she told them about what the accused did to her. The complainant was taken to the Samarai Health Centre the next day for a medical examination after which the matter was reported to the police resulting in his arrest.

ELEMENTS OF OFFENCE

4.	The essential elements of the charge of sexual penetration of a child under the age of 16 years with circumstances of aggravation under Section 229A (1)(2)(3) of the Code are:

1.	The accused
2.	Inserted his penis or other body part or object/implement
3.	Into the complainant’s vagina, anus or mouth
4.	The complainant was under the age of 16 years 
5.	The complainant was under 12 years of age
6.	There was an existing relationship of trust, authority or dependency.

PLEA  

5.	The accused pleaded not guilty to both counts, generally denying that he sexually penetrated the complainant on the occasions alleged. He, however, does not dispute that the child is his stepdaughter and that she was 10 years old at the relevant time.

ISSUES

6.	The issue in respect of both counts is whether the accused sexually penetrated the complainant by inserting his penis into her vagina.

THE LAW ON SEXUAL PENETRATION

7.	The terms “sexual penetration” or “sexually penetrates” are defined by Section 6 of the Code as follows:

6 .    Sexual penetration.

When the expression "sexual penetration" or "sexually penetrates" are used in the definition of an offence, the offence, so far as regards that 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 course of a procedure carried out in good faith for medical or hygienic purposes.

8.	The State is no longer required to prove full penetration into the vagina, anus or mouth of the complainant to complete the act. The slightest entry of the penis or other body part or object into the vagina, anus or mouth of the complainant is all that is required. 

9.	To illustrate this point, Lenalia J, in The State v Alois Dick (2007) N3219 when sentencing the offender on a charge of sexual touching, suggested in passing that stimulating the victim’s vagina with the tongue is sufficient to constitute penetration. In The State v Daweia (2014) N5958, I, expressed the view that His Honour might be expanding the definition a little too far, but the point demonstrates that the slightest entry into the vagina, anus or mouth of another person is sufficient to constitute penetration.

10.	In The State v Preston Paulus; CR No. 155 of 2015 (No.1) (unreported and unnumbered judgment dated 13 July 2018), the State’s case was that the accused only slightly penetrated the complainant. When convicting the accused, I held among others, that even though the term “vagina” is not defined by the Code, it should not be ascribed the technical medical meaning which the Concise Oxford Medical Dictionary, 8th Edition defines as – “the lower part of the female reproductive tract: a muscular tube, lined with mucus membrane, connecting the cervix of the uterus to the exterior.  It receives the erect penis during coitus …”  I further held that reference to “vagina” in the Criminal Code is a reference generally to the female genitalia, including the external part called the Vulva which comprises the labium - the labia majora and labia minora.  Hence, the insertion of a penis, or object, or other body part, to any extent, into the outer part of the female genitalia is sufficient to constitute penetration, and that is because the vagina as we laymen understand it does start from the vulva itself.

11.	Corroboration is no longer required to secure a conviction for sexual offences against children. Section 229H of the Code relevantly provides:

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.

12.	This, however, does not mean that every case will result in a conviction or that the trial judge is prevented from relying on some corroborating evidence. There will be cases where corroboration will be required, not as a legal imperative, but as a matter of justice and good conscience, because Section 229H of the Code does not relieve the State of its duty to prove its case beyond a reasonable doubt.

13.	Cases involving very young children, who, because of their age and vulnerability may not remember things too well or may be susceptible to manipulation by adults, or persons who are mentally or intellectually challenged may also require corroboration. In such cases corroboration may come by way of a medical report or some other credible evidence.

14.	In The State v Kapi Jas (2010) N4013, the accused was acquitted on a charge of aggravated rape. The complainant’s evidence was not corroborated nor was a medical report tendered into evidence. In acquitting the accused Cannings J held, among others, that even though there is no longer any rule or practice for a trial judge to warn itself that it is unsafe to convict an accused of rape [pursuant to Section 352 of the Code] on the uncorroborated testimony of a complainant, this was a case that required corroboration as there was no medical report or other evidence to support the complainant's version of events and she was not an obviously reliable witness.

15.	Hence corroboration will be required in appropriate cases if the state is to discharge its burden on the criminal standard. 

THE EVIDENCE

16.	The State called the complainant child and Janet Tari. It also tendered the following documents without objection:

1.	Record of Interview of accused dated 16/11/17 (Exh. A)
2.	Statement of Investigating Officer Wendy Amakos dated 6/12/17 (Exh. B)
3.	Statement of Corroborator Augustine Begin dated 6/12/17 (Exh. C)
4.	Affidavit of Nursing Officer Violet Kaiser sworn and filed on 1/12/17 (Exh. D)
5.	Confessional Statement of accused dated 17/10/17 (Exh. E)

17.	For his part the accused testified on oath and a prior written statement of State witness Janet Tari was accepted into evidence as a prior inconsistent statement. (Exh. 1)

UNDISPUTED FACTS

18.	The complainant child is the stepdaughter of the accused. She was 10 years old in 2014 when the alleged offence took place. At the relevant time she was living with her mother and the accused at his hamlet at Lolowa, Sunamwaleuyo on Sariba Island in the Samarai-Murua District, Milne Bay Province. On 15 December 2014, the accused and his wife paddled across from Lolowa to the main village of Sunamwaleuyo. When they arrived at the accused’s sister-in-law Lynette’s house, Lynette sent the accused to the garden to harvest pineapples. The complainant’s mother asked the complainant to accompany the accused and she reluctantly followed. 

19.	What happened at the garden is disputed. However, on the way back to the village the complainant bathed in a nearby creek before continuing on to the village. At the village the accused sent the complainant to fetch water for him to shower and he had his shower in a shower room or shed. The accused and his wife soon thereafter left for his hamlet which was some distance away from Sunamwaleuyo.

20.	It so happened that while the complainant was bathing in the creek she was noticed by an aunt by the name of Joannie who unfortunately was deceased by the time this matter came to trial. Joannie reported what she saw to Janet Tari, aunty Lynnette and Jacquelyn Jatlote. Later that night they went to the complainant’s grandmother’s house where the complainant was sleeping. They woke her up and questioned her and she told them what the accused did to her that day.  

21.	The next morning Janet Tari and another woman named Thelma took the complainant to the Samarai Police Station where a report was laid and she was referred to the Samarai Health Centre for medication examination. There she was examined by Nursing Officer Sr. Violet Kaiser. In her report which was tendered without objection into evidence, Sr. Kaiser made the following observations:

“There was no sign of tears/scratches inside and around the vaginal areas, no bleeding; no evidence of presence of sperm as victim, had her bath straight after the incident yesterday.
There was gaping of the vagina about 1.5cm which allowed viewing of internal vaginal canal which can mean sexual penetration had taken place.” 
…
22.	The medical report was not challenged and the fact that Sr. Kaiser, who is not a medical expert, appeared to have proffered an opinion that penetration had taken place was not challenged either.

DISPUTED FACTS
 
23.	The accused as we have seen disputed sexually penetrating the complainant on both occasions alleged in the indictment. Let me now consider these allegations against the evidence individually. 

Whether The Accused Sexually Penetrated The Complainant in March 2014

24.	The complainant testified that on that first occasion she had gone to the creek to bath. On her way back the accused came out of the sago trees and asked her to follow him, but she did not want to.  He, however, pulled her into the sago trees, pushed her to the ground, took off her skirt and inserted his penis into her vagina. She later reported the matter to her mother, but she did not believe her.  She initially said that the incident happened in June 2014 when she was living with her mother and the accused. She, however, corrected herself and said it took place in March 2014.

25.	It was put to her in cross examination that in the month of March 2014, she was in fact staying with her grandmother at Sunamwaleuyo and not with her mother and the accused at his hamlet. She answered in the affirmative and further agreed that her parents were residing at the accused village or hamlet. She denied lying about this alleged incident and that her aunties had forced her into making up this story. 

26.	The accused on the other hand denied sexually penetrating the complainant in March as alleged by the State. And this was because the complainant was living with her grandmother at Sunamwaleuyo village and not with him and her mother at Lolowa hamlet. 

27.	That essentially is the evidence on the first count. So, whose evidence should I believe? The law is settled that corroboration is no longer required for sexual offences against children and that I should not warn myself of the dangers of convicting the accused on the uncorroborated evidence of the complainant. That is not to say, however, as alluded to above, that the court will automatically convict the accused on the uncorroborated evidence of the complainant. The State must still prove its case beyond a reasonable doubt. If doubt has been cast upon a material fact in its case, the State equally negative such doubt on the criminal standard. 

28.	In this case, the child was 10 years old when the alleged incident happened. She is now 18 years old, but that does not mean that she cannot suffer from memory lapses. The accused raised an important issue – that the complainant was with her grandmother at Sunamwaleuyo at the time of the alleged offence and not with her parents at Lolowa. He may be raising a belated alibi there which may work against him. However, the complainant’s evidence that she was in fact staying with her parents when this incident happened needed to be corroborated because she could not have been at two places at the same time. This, in my respectful opinion, was the first hurdle that the State should have overcome, for only then would the complainant’s evidence of being sexually penetrated by the accused be given sufficient weight.

29.	But could the observations of Sr. Kaiser provide the necessary corroboration? It will be noted that Sr. Kaiser observed that there was a 1.5cm gapping in the complainant’s vagina which allowed her to peer into the complainant’s vaginal canal. And despite the fact that there were no tears or scratches around the complainant’s vaginal area or bleeding and absence of sperm in her vaginal canal, Sr.  Kaiser nonetheless concluded that there had been penetration. While Sr. Kaiser may not be a medical practitioner, hence a medical expert within the meaning of Section 37 of the Evidence Act and Section 22 of the Medical Registration Act, and therefore not qualified to give an expert opinion on the subject, her report, which was annexed to her affidavit, can nonetheless be accepted as a business record pursuant to Section 61 of the Evidence Act.  There is no question that it was made by Sr. Kaiser in the regular course of examining the complainant as part of her duty as a Nursing Officer when and at the time she was presented at the Samarai Health Centre and that the record of Sr. Kaiser’s observations is trustworthy. 

30.	Be that as it may, Sr. Kaiser, is not a medical expert and therefore cannot give an expert opinion – particularly whether the complainant was sexually penetrated. Unfortunately, she is one of hundreds, if not thousands, of nursing officers and other non-medical health professionals in our rural Health Centers and Health Posts who must treat or attend to victims of crime where doctors seldom can be found. In a great majority of cases their reports are the only ones that are available. Should their observations count for nothing? Would it serve the cause of justice if their observations are rejected outright?

31.	I was confronted with a similar situation in the case of The State v Pala Kaki (2019) N8246, a willful murder trial where the only evidence attesting to the injuries suffered by the deceased was from a Heath Extension Officer through whom the State sought to tender a medical report. The defence objected to the tender of the document. I, however, ruled otherwise. I said:

52.	Health Extension Officers and Nurses and Community Health Workers are often the only health professionals in rural hospitals and health centres and posts. They attend to persons brought into their facilities who have sustained serious injuries or assaults including sexual assaults and some unfortunately are brought in dead, pronounced dead on arrival or die while interned at those health facilities. 

53.	It is unreasonable to expect Health Extension Officers and other health professionals to not record their observations on the conditions of their patients, or injuries observed on them, lesser still not give evidence to that effect when required. In cases like this the court can accept such records as business records for that is really what they are. And as long as the relevant officer does not express an opinion which can only be expressed by a medical officer as to the medical cause or likely cause of death or injury observed on the subject, a non-medical officer should not be precluded from testifying nor should the court exclude a report from such an officer if its purpose is merely to show the officer’s general observations of the subject’s condition and any injuries, if any. 

32.	In the instant case, no objection was taken to the tender of Sr. Kaiser’s report nor was objection taken on her opinion that penetration had taken place. Clearly Sr. Kaiser was expressing an expert medical opinion which she is not qualified to make. However, her opinion had been allowed to stand uncontested and this may bolster the State’s case. I am, however, not convinced on the evidence before me particularly the uncorroborated evidence of the complainant that the alleged offence took place at her parent’s hamlet.

33.	The accused did not provide corroborating evidence to support his assertion as well, but he does not need to, because the burden is on the State to prove him guilty beyond a reasonable doubt. Notwithstanding that, he has raised or cast a reasonable doubt on the State’s case – that the complainant was not living with him and her mother but with her grandmother at the time the offence allegedly took place - which the State has not negatived on the required standard.  In any case any ambiguities or gaps in the evidence will have to be applied in favour of the accused. (Nainas v The State [1998] PNGLR 208)

34.	I find therefore that the State has not proved beyond a reasonable doubt that the accused sexually penetrated the complainant sometime in the month of March 2014. He is therefore acquitted of this count.

Whether The Accused Sexually Penetrated The Complainant on 05 December 2014

35.	In respect of this count it is the evidence of the complainant that as they (complainant and accused) were walking back to Sunamwaleuyo village after picking pineapples, the accused propositioned her for sex but she refused. She was walking ahead of him when he held her from the back and pushed her to the ground. He removed her skirt, pulled his trousers half-way down and inserted his penis into her vagina. She was about to cry but he told her not to as people might hear them.  He then promised to pay her K5.00 and give her a chicken. After that she went down to the creek to wash herself.  Her aunt Joannie saw her and as the complainant turned around to see her, Joannie walked away.   The complainant continued on the village where the accused sent her to fetch a bucket of water for him to shower. After showering the accused and his wife left for his hamlet. 

36.	Later that night, as she was sleeping in her grandmother’s house, she was awoken by Janet Tari, Jacquelyn Jatlote and aunt Lynette. They questioned her and she told them what the accused did to her that day. The next morning on 16 December 2014 she was taken to the Samarai Police Station and later to the Samarai Health Center by Janet Tari and another woman named Thelma.

37.	When cross examined on her evidence on this count the complainant did not waiver from her testimony in any significant way. She remained resolute, maintaining that the accused sexually penetrated her.

38.	The State’s second witness, Janet Tari testified of being informed by the Late Joannie about what she saw and how she was suspicious of the way the complainant was washing herself. She confirmed accompanying Jacquelyn Jatlote and Lynette to the complainant’s grandmother’s house and questioning the complainant. In cross-examination, she, however, conceded to making certain statements in her prior written statement to the police which were inconsistent with her oral testimony. Her statement to the police was accepted into evidence as a prior inconsistent statement. (Exh.1) What then is the effect of the inconsistency?

39.	The Supreme Court in David Kandakason v The State (1998) SC 558 (per Kirriwom J with whom Amet CJ and Los J agreed) adopted a passage from judgment of the Australian High Court in Driscoll v R (1977) 137 CLR 517 that:

It cannot be accepted that in a case where a witness has made a previous inconsistent statement, there is an inflexible rule of law or practise that the jury should be directed that the evidence should be regarded as unreliable. 

40.	The Court then said:

In other words, the existence of a prior inconsistent statement, ipso facto, does not make a victim’s statement unreliable. On the other hand, the prosecution is entitled to call other evidence to verify the correctness or truth of a ... witness’s previous written statement to prove that his subsequent sworn testimony is untrue."

41.	This statement was reaffirmed in Michael Tenaram Balbal v The State (2007) SC 860 (Sevua, Kandakasi, Gabi JJ) where at paragraph 21 of their joint judgments the justices said:

... questions of inconsistency does not arise until a witness gives a testimony that directly opposes or contradicts a statement previously given by the witness. Even in that case, that is not conclusive. As long as the court warns itself of the kind of weight it should place on such evidence, it can still consider the evidence. Th[u]s in our view, a prior statement that omits other evidence, but included subsequently in the oral testimony of a witness, does not amount to a prior inconsistent statement”. [Sic.]

42.	Kandakason involved a situation where two witnesses who had previously gave statements for State turned hostile, while Balbal was a case where the witness alluded to something in his oral testimony which he did not mention in his prior statement to the police. 

43.	It is clear from the above authorities that an inconsistency in a witness' prior statement does not render it completely unreliable, if the witness can show through oral evidence,  that he in fact did not make the prior statement, and that his oral testimony is supported by other witnesses.

44.	In the present case, while the statement in question was accepted into evidence as a prior inconsistent statement, a closer examination reveals that there was nothing inconsistent between the witness’ oral testimony and her prior written statement. But even if there was, any inconsistency would be rendered insignificant by the complainant’s own evidence where she, among other things, confirmed that Janet Tari and the others did in fact questioned her that night about the incident and particularly over what Joannie had observed that day. 

45.	The accused of course denied the charge. He testified that on the morning of the day in question he and his wife had paddled over to Sunamwaleuyo from his hamlet at Lolowa. On arrival, his sister-in-law Lynette sent him to the garden to pick some pineapples. The complainant accompanied him to the garden. They picked the pineapples and the complainant returned with them to the village while he stayed back. He climbed a coconut tree for coconuts and after husking them, he returned to the village. At the village he asked the complainant to fetch him water for him to wash. After showering they had pineapple salad and he and his wife soon after left for Lolowa. He vehemently denied penetrating the complainant in the garden.

46.	His denials, however, fly in the face of admissions he made in a confessional statement dated 17 October 2017 (Exh. E) and in his Record of Interview of 16 November 2017 (Exh. A).  The following is recorded in his Confessional Statement:

Q1.	You do not have to say anything but anything you do say may be taken down in typing and may later be given to court as evidence. Do you understand?
Ans.	Yes
Q2. 	Do you understand English well?
Ans.	Yes
Q3.	Are you sure you are freely willing to give your confessional statement regarding the crime?
Ans.	Yes	
Q4.	Alright, you can make your confession now regarding the crime you have allegedly committed. 
[Ans.] That time we went up to the garden we collected pineapples. After [we] collected pineapples we walked back to the house and near the house is the bathroom. I told her to [fetch] my water. She [fetched] it came and left it inside the bathroom. I went inside and she followed me came inside and touched my penis. She told me to fuck her but I told her you small girl. She took her pants off and I hold my penis and rubbed it on her vagina. After that I removed it out I did not removed my sperm into her. We were in the bathroom and Joynnie saw us. She went and reported the matter to her grandmother and they went to Samarai Police Station and reported the matter.
Q5.	Is this story you gave me true?
Ans.	Yes
…

47.	The accused did not want to read over the statement or make any changes but did sign it. Then in his Record of Interview, the following relevant exchanges are recorded:
	.... 
Q19.	Can you recall back on the 15th of December 2014?
Ans.	Yes
Q20.	What happened on this date and month I mentioned?
Ans. 	I made trouble to Jacqueline.
Q21.	Tell me what trouble you made?
Ans.	Jacqueline wants me to have sex with me[her?] so I lied down and I hold my penis and put it into her vagina.
	…
Q24.	On Monday 15th December 2014, at around midday. Where have you been?
Ans.	I went to the garden with Jacqueline.
Q25.	What were you doing at that time?
Ans. 	I was collecting pineapple.
Q26.	Tell me after collecting pineapple where did you go?
Ans.	We walked back to the village.
Q27.	Before reaching the house, on your way back what happened?
Ans.	Jaqueline lied down and I hold my penis and put it inside her vagina.
Q28.	On you your way home you walked quickly behind Jacqueline and held her hand then you pushed her on the ground. What would you say to that?
Ans.	No.
Q29. 	You pulled your trousers half way down and you put your penis into her vagina and had sex with her. What would you say to that?
Ans.	Yes, but I did not sleep on top of her.
Q30.  She was crying and you told her to stop, people might hear it. Then you promised to give her five kina. What would you say to that?
Ans.	No.
Q31.	Is it true you pull your trousers half way down and you hold your penis and put it into Jacqueline vagina? 
Ans.	That’s true.
…
Q34.	What would you say if police witness testified to court that you sexually penetrated Jacqueline?
Ans.	Yes, I did.
…
Q38.	During the record of Interview did I threaten you, forced you held promises against you to obtain your answers or you released them at your own free will?
Ans.	No.
…
48.	It is abundantly clear that the accused admitted to sexually penetrating the complainant’s vagina with his penis, both in his Confessional Statement and Record of Interview. The only difference there being the location the act took place. In his Confessional Statement he said it was inside the shower room while in the Record of Interview he said it was on the road on the way back from the garden. The latter version of course significantly corroborates and strengthens the complainant’s own evidence. 

49.	In cross examination, the accused sought to argue that he was forced to admit the crime by the investigating officer. This appears to me to be a recent invention which equally appeared to have taken Mr. Wallis by surprise. If there is any credit at all to this claim, it would have been raised at pre-trial so that a voir dire would have been conducted so that the circumstances in which the admissions were made could have been properly and closely scrutinized and tested. That fact that the admissions were freely and voluntarily made are supported by the very fact that the confession and the record of interview were tendered and accepted into evidence by consent. 

CONCLUSIONS

50.	The admissions made by the accused, particularly that he sexually penetrated the complainant, be it at the shower room or on the road from the garden, is irrefutable evidence supporting the charge. I give no credit to his assertion that he was forced to make the admissions in his confessional statement and record of interview. In any case, a confession or admission is the best evidence that can be adduced (R v Baldry (1852) 169 ER 568 at 574 per Erle J). Hence, the accused must stand guilty on his own words. 

VERDICT

51.	There is no doubt at all in my mind that the accused sexually penetrated the complainant at Sunamwaleuyo village on Sariba Island on 15 December 2014. The complainant was 10 years old (hence under 12 years of age) at the time of the offence and that the accused is her stepfather – facts which the accused did not challenge. The State has proved the second count against the accused beyond a reasonable doubt. I therefore return a verdict of GUILTY on this count. 

ORDERS

21.	My orders are these:

1.	The accused Mathias Banaba is acquitted of the first count on the indictment.
2.	He is, however, convicted of the second count which charged him that on 15th December 2014, he sexually penetrated the complainant (aged 10 years) with whom he stood in a position of trust, authority and dependency by inserting his penis into her vagina. 

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