N8850

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 44 OF 2018

THE STATE

V

MICHAEL FRANCIS

Kokopo: Tusais AJ
2021: 09th, 10th, March & 19th May

CRIMINAL LAW – Sexual penetration of girl under 12 years –Trial– Accused denied sexually penetrating child– Medical report support recent sexual activity - Accused outright denial of sexual penetration – Issue of whose evidence to believe - Criminal Code section 229A (1) & (2) (b).

Cases Cited:

Counsel:
Mr.  Luman, for the State
Ms.  Pulapula, for the Defendant

DECISION ON VERDICT
20th May, 2021
1.      TUSAIS AJ:  INTRODUCTION: The accused is charged with one count of sexual penetration of a girl under 12 years, contrary to s. 229A (1) & (2) of the Criminal Code (Ch. 262) (the Code). In the alternative the accused is charged with one count of sexual penetration of a girl under 16 years, contrary to s. 229A (1) of the the Code. 
FACTS

2.     The State alleged that on 11th August 2017 between the hours of 8:00am and 9:00am the complainant Jacklyn Varpin left a mourning place or hauskrai at Ranige Village, Rieit Ward, Sinivit LLG, Pomio District of East New Britain Province and went to her adopted parents’ house at their block at Ranige. The accused Michael Francis saw the complainant and followed her to her family’s house at their block. After spending some time with the complainant at the complainant’s family block the accused went up to the complainant who was in their kitchen house and grabbed her by her hand. The accused then carried the complainant and made her lie on a bed inside the kitchen house and he removed the complainant’s clothes and his clothes, and he sexually penetrated the complainant’s vagina with his penis. The complainant was 11 years old at the time.

3.    The actions of the accused violated section 229A (1) and (2) (Sexual penetration of a child under 12 years of age) of the Criminal Code.

ALTERNATIVELY

4.     The State alleges that the complainant Jacklyn Varpin was under the age of 16 years on 11th August 2017, namely 12 years old when the accused sexually penetrated her vagina with his penis.

5.     The actions of the accused violated section 229A (1) (Sexually penetration of a child under the age of 16 years) of the Criminal Code.

PROSECUTION CASE

6.     The prosecution called three witnesses and tendered five documents, 4 of them by consent and one through medical witness HEO Peter Iramu. The documents tendered and accepted into evidence are listed as follows.
No	DOCUMENT	EXHIBIT NO	
1	Statutory Declaration of Mary Jubilee dated 01/09/2017	A	
2	Statement of Veronica Pagur dated 24/08/17	B	
3	Statement of Myrah Gamate dated 24/08/17	C	
4	Record of Interview between police and accused dated 22/08/17
a)	Pidgin original
b)	English translation	
D1
D2	
5	Affidavit by HEO Peter Irakau of Warangoi health Centre annexing Medical Report for Jacklyn Warpin dated 16/08/17	E	

Witness one: Jacklyn Varpin
7.     On 07th August 2017 she was left by her foster mother with a relative named Elisabeth Wate, who had recently lost her husband. Jacklyn helped Elisabeth with preparation of food for the hauskrai. Then she decided to go to her house which was at the very end of the village, to feed the pigs. As she walked the accused met her and asked where she was going. She replied that she was going to her house to feed the pigs. She continued and saw the accused following her. She arrived at her house, got a string bag and went to the garden where she harvested tapioc and singapo or taro. She returned to the house and fed the pigs with tapioca. Then she cooked the taro and served a plate to the accused. They both ate and when she finished eating Jacklyn went to get the plate from the accused who was inside the kitchen. He grabbed hold of her hands and she asked what he was doing but he did not say a word. Instead, he lay her down on the bench that was used as a seat inside the kitchen, took off her shorts and underwear and inserted his penis into her vagina. When he finished she wore her clothes. Accused just sat in the kitchen and played cards.  Two women arrived at the house looking for mustard and saw them. Late in the afternoon her mother arrived back at the house. The accused was still there playing cards while she was raking outside the house. The mother was suspicious of the accused and kept asking what he had done to her. Jacklyn did not say anything and her mother got angry and hit her, threatening to cut off her legs and hands. Accused ran away while the mother was hitting her.

8.     Jacklyn later told her father about what the accused had done to her. She had bled after the accused had sex with her and her mother noticed the blood stain on her skirt. She told the court that she had washed after the sex act because blood was flowing and changed into a skirt. As a result, her father took accused to the police station and later took Jacklyn to Warangoi hospital where she was examined.
Witness two: Mary Jubilee
9.     Mary gave evidence that she looked after Jacklyn from a very young age after her birth mother died. She testified that Jacklyn was born on the 07th of August 2006 and on the day of this trouble she was 11 years old. On that day the 17th of August 2017, she told Jacklyn to stay with Elisabeth at the hauskrai and went off with her grandson to visit her sick husband at Vunapope hospital in Kokopo. When she returned in the afternoon, she noticed that Jacklyn was not there. Elisabeth gave her a plate of food. At the same time the two women who had gone to look for mustard arrived and told her that Jacklyn was with the accused at their house. Mary immediately asked Elisabeth to cover up her plate of food and she hurried off back to her house with her grandson. 
10.     When they got near the house Mary told her grandson not to make any sound. At the house she saw the accused playing cards inside the kitchen and Jacklyn raking outside.  She asked her daughter why she had not followed the two ladies back to the hauskrai and said she should not be with accused as he was not a female. Mary got a stick and hit Jacklyn. While she was hitting her the accused ran away. Mary saw a stain on Jacklyn’s skirt and was very sad and cried because Jacklyn was a little girl and not yet menstruating. Mary took Jacklyn to see her father and Jacklyn then told of what accused had done. The father went to the hauskrai, got the accused and brought him to Warangoi police station and they brought Jacklyn to Warangoi hospital for checkup. 
Witness three: Peter Irakau
11.     Mr Irakau is a Health Extension Officer. In 2017 he was working at Warangoi Rural Hospital. He confirmed doing a report after examining Jacklyn Warpin on the 16th of August 2017, five days after alleged sexual assault. His report tendered and marked as exhibit “E” states that: 
…” During the vaginal examination on the 16th August 2017 the Hymen was torn and the vaginal orifice was inflamed…”

DEFENCE EVIDENCE

12.     Michael Francis opted to give sworn evidence. He told the court that he is 32 years old from Vunamurmur village in Kokopo. He is married with one child who was aged 11 years in 2017. On Friday 11th August he was at Reiet village and Jacklyn went and asked him to bring her to the house. There Jacklyn got a bilum and went to the garden while he played cards. He told court that Jacklyn was his granddaughter. Jacklyn returned and prepared the food. Then two women named Linda and Nancy arrived at the house looking for mustard. They all ate and after they finished eating the food the two women took Jacklyn with them to look for mustard. Later they brought her back to the house and left for the hauskrai. Those two women told Jacklyn’s mother that Michael Francis and Jacklyn were alone in the house. The mother went to the house and hit Jacklyn while forcing her to say that he, Michael, had sex with her. He tried to stop the mother from hitting Jacklyn. Accused said the only reason why Jacklyn made up the false story about him having sex with her was because her mother had forced her to do so by threatening to cut off her legs. Accused denied sexually penetrating the child.

ELEMENTS OF THE OFFENCE
229A. SEXUAL PENETRATION OF A CHILD.
[74](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.
(2) If the child is under the age of 12 years, an offender against Subsection (1) is guilty of a crime and is liable, subject to Section 19, to imprisonment for life.
(3) If, at the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and the child, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.”
13.     The prosecution always bears the burden of proving the following elements beyond a reasonable doubt:

I.	The accused (a person)
II.	Sexually penetrates
III.	A child under the age of 12 years

14.      Most facts in this case were not in dispute. They are summarized as follows:
1.	Jacklyn Warpin was born on the 07th of August 2006. Therefore, on 11th August 2017 she was 11 years and 4 days old.

2.	The accused and the victim were alone together at the victim’s house from about 9.00 am in the morning till late afternoon on the 11th of August 2017.

3.	Two women looking for mustard saw the two of them alone in the house and later told the mother at the hauskrai.

4.	Jacklyn bled that day and blood stain was seen on her skirt by her mother,

5.	Medical report confirmed that Jacklyn’s hymen was torn, and her vaginal opening was inflamed
ISSUE 

15.     There are two main issues in this case:
1. The first is whether the alleged victim is under the age of 12 years.
2. The second issue is whether the accused sexually penetrated the victim
 
ASSESSMENT OF EVIDENCE

16.     On the first issue of age there is clear undisputed evidence that the victim was aged 11 years at the time of the alleged offence. The only question is whether there was in fact sexual penetration by the accused. To determine that question I assess the evidence given by the victim. Section 229H of the CCA says a court can convict on the evidence of the victim alone. No corroboration is necessary.

17.     Defence lawyer submitted that the victim should not be believed because she did not struggle and try to resist the accused when he grabbed hold of her hand. Defence lawyer also submitted that the victim’s evidence is not credible because she did not make recent complaint to the two ladies who went to get mustard. On that basis it was submitted that the court should not give weight to the evidence of the victim. But these are matters that really go to the issue of whether there was consensual sex. That is not an issue in a case of sexual penetration of a child unless the accused raises defence that he believed on reasonable grounds that the girl was over 16 years of age. Also, where there is only a two year age difference between the accused and the victim. The relevant section is s 229F:
229F. CONSENT NO DEFENCE.

[79]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.

18.     I observed the victim as she gave evidence. She was soft spoken and a shy teenager and was obviously nervous to be in court and giving evidence of such an embarrassing kind. However, she gave clear and consistent evidence. Her evidence was detailed. Under intense cross examination she maintained that the accused did have sex with her. I am of the view that there may have been some cooperation on her part even though she was of such a young age and not physically mature enough to have sex. This is because she cooked and served food to the accused and never gave evidence of any force being used by the accused apart from the initial grabbing hold of her hand. After the act of sex, she put on her own clothes and never showed any distress when the two ladies arrived. When her mother arrived, she was raking around the house as if nothing happened. She was feeling pain in her private part at that time but forced herself to rake. Even when assaulted badly, she refused to tell her mother that the accused had sex with her. It was only when the stain was found on her skirt that she later revealed all to her father.

19.      In those circumstances I find that there was in fact sexual penetration of the victim. The next question is who did that to the child? The only evidence before me is that the accused was with the victim for almost the entire day from 9.00 am until very late in the afternoon. Later that afternoon blood stain was seen on her skirt by the mother. No other man had sex with the victim on that day until her mother saw fresh blood stain on her skirt that afternoon. Later the Health Extension Officer examined her and found that her hymen was torn, and her vaginal opening was inflamed. There is no other evidence of someone else causing these injuries. So, I am convinced that the accused himself caused it by sexual penetration by inserting his penis into her vagina.

20.     I was not impressed with the accused evidence. He did not explain why he felt it necessary to go with the victim to her house. Did he go because there was danger and so he went along to protect her? There is no evidence of that. This was in the village, a safe environment most of the time. Once he brought the victim to the house why did he remain there until late afternoon? After all, he had his own wife and 11-year-old child that were somewhere in the village. He had family duties to look after his family. Why did he devote all this time to the victim? Evidence shows that he is only distantly related to the victim through her adoptive father who was his distant brother. Why he called the victim his grand daughter does not make sense especially since he is still young at 32 years and was related as a distant brother to her adoptive father. He should call her daughter instead of granddaughter. 

21.     The victim’s evidence is corroborated by the evidence of the mother observing a blood stain on her skirt on the same day as this offence. The mother said her child was too small to begin menstruation. Defence lawyer did not suggest that in her cross examination or later submissions that the blood stain was from menstrual flow. This evidence of blood stain was in fact completely ignored by defence counsel and not emphasized by the prosecutor. I consider it to be of strong probative value in establishing bodily injury that is consistent with sexual activity. Final corroboration comes from the medical report. It clearly shows a freshly torn hymen and inflamed vaginal opening. When asked by the court what caused the bleeding, the victim said it was because the accused had sexual intercourse with her.

CONCLUSION
22.     The state has therefore proven beyond a reasonable doubt that the accused sexually penetrated the victim who was a child under the age of 12 years at the time.
23.     I find the accused guilty on one count of sexual penetration of a girl under 12 years and convict him accordingly.
Verdict accordingly.
_______________________________________________________________
Pondros Kaluwin, Public Prosecutor: Lawyers for the State
Leslie B Mamu, Public Solicitor: Lawyers for the Defendant