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State v Kami [2021] PGNC 612; N9544 (17 October 2021)

N9544

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1357 OF 2019

BETWEEN:
THE STATE

AND:
QUINTON SIVILO KAMI

Angoram: Rei, AJ
2021: 6^th, 11^th, 13^th, 14^th, 15^th & 17^th October

CRIMINAL LAW – Practise and Procedure – no case submission – child witness incompetent – sexual penetration – insufficiency of evidence – no penetration.

Cases Cited:

Beraro -v- The State [1988] PNGLR 562
The State -v- Lasebose Kuriday [1981] N300
The State -v- Paul Kundi Rape [1976] PNGLR 96
The State -v- Roka Rep (No.2) [1983] PNGLR 287

Legislation:

Section 229A(2) of the Criminal Code Act

Counsel:

Mr. Solomon Kuku, for the State
Mr. Stanley Parihau, for the Defendant

RULING ON NO CASE SUBMISSION

17^th October, 2021

1. REI AJ: The accused Quinton Sivilo Kami was charged with one count of sexual penetration of a child under the age of nine (9) years.

2. The State through Mr. Popeu presented the indictment against the accused on 11^th October 2021 charging that:

“Quinton Sivilo Kami of Tambunum Village East Sepik Province stands charged that he, on the 14^th day of February 2019, at Tambunum Village Angoram East Sepik Province in Papua New Guinea, sexually penetrated one Gemelyn Grambi by inserting his penis into her anus and vagina and at that she was four (4) years old.”

(my emphasis)

3. The offence laid against the accused is one of sexual penetration and not sexual assault.

4. The trial of the matter commenced on 13^th October 2021 and ended on 14^th October in which the State called three (3) witnesses.

5. The first witness called was Sister Kupmain who gave evidence as to the medical condition of the child as on 14^th June 2019 after the incident occurred.

6. Her evidence was that upon carrying out a medical examination of the vagina of the child she concluded that there were lacerations around the outside of the vagina but no male semen could be found inside the vagina.

7. She also concluded that no damage by way of tear or laceration of the anus was evident.

8. When asked whether there was a medical report duly prepared by a medical practitioner in the matter, she said she advised the parents to go to Boram General Hospital to obtain one.

9. The second witness called by the State is the natural mother of the child victim, a Mrs. Louisa Grambi.

10. This witness gave evidence that she heard a noise in the morning at 4:00 am to go and meet her mother who was in the river some 15 meters from her house.

11. She gave further evidence that she recognized the voice to have been that of the accused as he lives in the nearby neighborhood and could easily recognize his voice.

12. Upon hearing the voice telling her to go and meet her mother at the river, she and two (2) other people by the name of Damien Grambi, the brother of the father of the victim, and a Kosmas Grambi, who is his twin brother, went down.

13. Evidence is lacking whether the victim who was alone in the house was with somebody including the accused.

14. This witness could not account for this.

15. Upon examination by myself as to whether this witness saw the accused enter the house at any earlier stage or not, she said she did not see him.

16. When asked whether she saw the accused person escape through the window of her house and she said she did not see him.

17. The only evidence she relies on is the voice she heard telling her to go and see her mother in the river to be the voice of the accused.

18. When further asked by the Court whether she obtained a medical report from a medical practitioner in accordance with the advise of Sister Kupmain, she said she could not remember the name of the doctor.

19. The third witness who gave evidence was Damien Grambi who was about ten (10) years of age at the time the offence was committed.

20. Whilst I appreciate his evidence which was mostly hilarious, I do not think his evidence is worth an iota of consideration because both in cross examination and re examination he stated emphatically that the evidence he gave to Court was told to him by the sister in law, Louisa Grambi.

21. It does not matter how strong the evidence is but if a witness admits in Court unreservedly that the evidence, he gave in Court was coached to him by another witness, that witness evidence should be discarded.

22. This witness is a child of 13 years of age therefore in accordance with the reasons for decision in Beroro -v- The State [1988] PNGLR 562, he was an incompetent witness that his evidence is unreliable.

23. The State closed its’ case when the defence made an application to make a no case submission.

24. The accused was charged with the offence of sexual penetration as provided for under Section 229A(2) of the Criminal Code Act as opposed to sexual assault.

25. As such the evidence given by Sister Kupmain that she did not locate male semen in the vagina of the victim but only lacerations outside it falls short of the charge of sexual penetration of a child.

26. While she said that there were lacerations around the vaginal area but denied any bruises in the area of the anus, the mother gave contradictory evidence that the victim was bleeding from the anus. Sister Kupmain admitted in her evidence that she did not medically inspect the anus of the victim and could not say whether there were bruises.

27. I find that the evidence adduced in Court is so weak and hopeless that no reasonable tribunal of fact could safely return a verdict of guilt: The State -v- Lasebose Kuriday [1981] N300, The State -v- Paul Kundi Rape [1976] PNGLR 96 and Roka Rep (No.2) [1983] PNGLR 287.

28. In the Paul Kundi Rape case (supra) it was said:

“A tribunal should not make a finding of no case to answer were

(a) there is no evidence to establish an element of the offence charged or

(b) there is some evidence conveying the elements of the offence charged but it is so tenuous or incredible or discredited that it amounts to a scintilla, and thus could not be accepted as persuasive by any reasonable person.”

29. The elements to be proven in any sexual penetration case are that:

(i) a person was involved;

(ii) there was sexual penetration;

(iii) a child was involved and;

(iv) the child is under the age of 12 years.

30. The elements in (iii) and (iv) above were satisfactorily proven, but there is reasonable doubt whether sexual penetration took place as there was an absence of male semen either in the vagina or the anus.

31. I therefore find that there is insufficient evidence for me to allow the accused to be called upon to give evidence.

32. The accused is therefore acquitted and discharged forthwith.
______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defendant