N10994
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 577 OF 2014

THE STATE

V

MATHEW EMMANUEL

Alotau:  Toliken, J
2024:   17th September

CRIMINAL LAW – trial - particular offence – sexual penetration of a child under 16 years of age – circumstance of aggravation – existing relationship of trust, authority or dependency – first cousins – admitted - two counts – issues – whether accused sexually penetrated complainant – corroboration not required – complainant’s evidence reliable, cogent and unshaken - whether complainant was under 16 years of age – absence of birth certificate or clinic book – contradictory evidence of complainant and mother as to age - evidence of mother of year and month of birth preferred – sufficient proof – verdict – guilty on both counts – Criminal Code Ch. 262, ss 229A (1)(3), 229H.

Cases Cited:
Papua New Guinean Cases

The State v Kapi Jas (2010) N4013
Overseas Cases
 
Browne v Dunn (1893) 6 R 67, HL

Counsel:

A Kupmain, for the State
P Palek and N Wallis, for the accused     

VERDICT

17th September 2024

1.	TOLIKEN J:	The accused Mathew Emmanuel (accused) was indicted with two counts of sexual penetration of a child namely Marie Louise Mervin (complainant), a child who at the relevant time was allegedly under the age of 16 years, and with whom the accused stood in a position of trust, authority and dependency. This is an offence under Section 229A (1) (3) of the Criminal Code (the Code).

2.	It is the State’s allegations that on 28 September 2013 at around 10.00am, the complainant went to Kwakwela Village, Samarai Murua District, Milne Bay Province to look for her sister Serina. Unbeknown to her, Serina took another route hence she did not meet her.   And so, the complainant continued to Kwakwela where she met her aunt Lilian, the accused’s mother. The accused and the complainant are first cousins, their mothers being biological sisters.

3.	 Lilian gave the complainant some food and when she was about to return to her village the accused arrived from the bush with banana suckers. Seeing the complainant leave, the accused quickly followed her. He had his bush knife with him.  He eventually caught up with the complainant along the road. He grabbed her by her dress, dragged her into the bushes, forced her to the ground and sexually penetrated her by inserting his penis into her vagina. While penetrating her, the accused closed her mouth with his hand to prevent her from shouting.

4.	After that he forced the complainant to walk with him and after some distance, he again forcefully sexually penetrated her the second time. The complainant was 15 years old at that time. She reported the matter to her sisters and later to her mother.

THE OFFENCE

5.	Section 229A of the Code relevantly provides for the offence as follows:

229A. 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.

(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. 
(emphasis in bold supplied)
ELEMENTS

6.	To secure a conviction the State must prove the following beyond a reasonable doubt:

1)	The accused sexually penetrate the complainant’s vagina with his penis.
2)	The complainant was under the age of 16 years; and
3)	The accused stood in a position of trust, authority and dependency.
PLEA

7.	The accused pleaded not guilty. He admitted though that he and the complainant are first cousins hence there existed a relationship of trust, authority and dependency. He, however, denied sexually penetrating the complainant twice as alleged in the indictment and that knew that she was under the age of 16 years.

ISSUES

8.	Trial henceforth ensued on the issue of:

1)	Whether the accused sexually penetrated the complainant twice on 28 June 2013, and
2)	Whether the accused knew that the complainant was under the age of 16 years.
THE EVIDENCE
9.	The State tendered the following documents by consent:

1)	 Record of Interview dated 24 October 2013 (Exhibit “A”)
2)	Statement by Policewoman Constable Jessie Samson dated 2 December 2013 (Exhibit “B”)
3)	Statement by Policewoman Senior Constable Rhema Luckie (Exhibit “C”)
4)	Statement by Detective Sergeant Kinzi Winzi (Exhibit “D”).

10.	It then called the following witnesses:

1)	The complainant
2)	Marita Todadawe

11.	 At this juncture I must mention that during the State’s case on 03 June 2020, Mr. Palek, counsel for the accused collapsed in court and tragically died of a heart attack just as State Prosecutor Mr. Kupmain was examining his second witness Marita Todadawe.  Trial was henceforth suspended and resumed on 10 August 2020 with Marita Todadawe’s evidence. Mr. Wallis appeared for the accused.

12.	The accused elected to give sworn evidence but did not call any other witness.

DELIBERATIONS

Issue 1: Did the accused sexually penetrate the complainant as alleged?

13.	The complainant testified that on the date in question she and her sister Serina went to leave their other sister Kerina (Serina’s twin) at Yagamauna to return to school at Sideia.  There Serina left her to look for betelnut at Kwakwela village. After a while she followed Serina to Kwakwela but she was not there. Apparently, Serina had taken another route. When she arrived at Kwakwela her aunty Lilian (the accused’s mother) and her children were having a meal. She invited her to join them, and she did. 

14.	After eating she was chewing betelnut when the accused arrived with some banana suckers. They exchanged greetings and the accused asked her where she was going. She told him that she came looking for Serina. She then left. 

15.	As she came to the main road she looked back and saw the accused following her. He was carrying his banana suckers and a piece of wood to which he had stuck his bush knife. As she passed a sago grove, she felt uneasy and started to run. She again glanced back and saw the accused calling and running after her with his bush knife. He caught up with her and grabbed her by her dress. She called out to one of her uncles named Leonard who was working in his garden about 30 meters away. Her uncle did not hear her, so she kept running. 

16.	The accused however caught up her and grabbed her strongly tearing her dress. She asked him what he was doing and tried to free herself, but he was too strong. She wanted to struggle further but feared that if she continued, he might cut her with his bush knife.

17.	He eventually kicked her legs, and she fell. All the while she was shouting and calling so he closed her mouth with his hand. He then removed her panties and his own clothes, overpowered her and sexually penetrated her. He then asked her to get up and then pulled her back to the sago palms where there was a creek. She asked him to let her bathe in the creek and return to her sisters. He did not let go but instead penetrated her the second time. 

18.	When he finished, she asked him who their mothers were at which he responded by giving her the bush knife and asked her to cut or kill him. She did not take the knife though. By then the accused became fearful and took her back to the road and begged her not to tell anyone. She was also afraid but was more overwhelmed by what her brother had done to her. The accused returned to Kwakwela while she went her way.
 
19.	She met up with her sisters who scolded her, but she did not say anything to them. Her body was aching as they paddled to Sidiea. Her sisters continued to scold her until she told her elder sister Serina what the accused did to her. Her sister told her to report the matter to her mother which she did that afternoon after they returned from Sideia. Four days later she presented herself at Sideia Health Centre for a medical examination. The matter was eventually reported to the Village Councillor who alerted the police at Samarai resulting in the apprehension of the accused a couple of weeks later.

20.	The complainant’s mother, Marita Todadawe, testified that the complainant reported the incident to her that afternoon. As it was late, she advised the complainant that they will report the incident to the Village Magistrate the next day which they did. She confirmed that the complainant was taken to Sideia Health Centre for medical examination.

21.	The accused denied on oath sexually penetrating the complainant. He instead suggested that these allegations were fabricated out of spite or to get back at him for cutting down betelnut trees from a plantation which his uncle had left to him to look after. This was after the complainant’s sister had harvested betelnut without his knowledge.
22.	So, did the accused sexually penetrated his first cousin the complainant on the date alleged?

23.	It is to be noted that corroboration is not no longer required a charge of this nature. Section 229H of the Code provides that an accused person may be convicted on the uncorroborated evidence of one witness, and a judge shall not warn himself that it is unsafe to convict an accused person in the absence of corroboration. 

24.	Be that as it may, it does not necessarily follow that the State is divested of its duty to prove an accused guilty beyond reasonable doubt. It must necessarily satisfy the court that the uncorroborated evidence of a sexual offence is of high probative value to warrant a conviction. It also does not follow that corroboration is not required at all. Rather in situations where the complainant is the sole witness for the State and is of tender years for instance, corroboration may very well be required. Usually this may come by way of a medical report. (The State v Kapi Jas (2010) N4013) Evidence of a recent complaint with attendant observations of distress or physical evidence of violence occasioned on the complainant is still good corroborating evidence and may in an appropriate case bolster the State’s case.

25.	In the instant case there was no eyewitness to the alleged assaults on the complainant. It is the complainant’s words against those of the accused. While the complainant reported the incident to her elder sister almost immediately and later that afternoon to her mother, there is no probative value in her mother’s evidence. She did not tell the Court what her daughter’s composure was, or whether she observed evidence of violence on her daughter’s person or body let alone whether her dress was torn as she (complainant) had testified.

26.	 Despite that, is the uncorroborated evidence of the complainant sufficient to meet that high criminal standard required to convict him? The complainant came across as very confident and reliable, at least on the issue of sexual penetration. She did not cave under cross examination. Despite the accused’s attempt to sow some doubt in her testimony by claiming that the whole matter was a fabrication to get back at him for cutting down betelnut trees, which of was not put the complainant and her mother, hence offending the rule in Browne v Dunn (1893) 6 R 67, HL, I am satisfied beyond a reasonable doubt that the accused sexually penetrated the complainant twice on 28 June 2013. The complainant’s evidence was cogent, convincing and was not shaken let alone destroyed by cross examination. The complainant was a witness of truth. I believe her evidence over that of the accused.

ISSUE 2:    Was the complainant under the age of 16 years?
27.	Chronological age is an essential element of the charge and therefore must be proved beyond a reasonable doubt. Ideally it must be proved by a birth certificate which is conclusive proof. This may very well be true, but in a lot of communities in this country, birth certificates are often non-existent. What comes close to an official record of birth though is often a child’s Clinic Book.

28.	In this case neither a Birth Certificate nor Clinic Book was tendered into evidence. All that stands for the State is the complainant’s mother’s evidence that she gave birth to the complainant in October 1999. This was not challenged vigorously by the defence. If the complainant was indeed born in October 1999, which I believe to be the case, then she would have been 4 months shy of her 14th birthday – definitely below the age of 16 years. This was bolstered by the fact that the complainant was withdrawn from school that year (2023) while doing Grade 4 due to lack of school fees. Ordinarily, a child in Grade 4 could not be expected to be 16 years old or older.

29.	 What about the contradiction between the complainant’s evidence with that of her mother? She said in cross examination that she was 16 years old at the relevant time.  That obviously is disqualifying and may be fatal to the State’s case if taken at face value. But is it so? I do not think so for the simple reason a child this young in a rural setting cannot be expected to have an accurate knowledge of her birth date in the absence of a verifiable birth record or confirmation from a parent. This contradiction is therefore not fatal to the State’s case. I accept and find beyond a reasonable doubt that the complainant was born in October 1999 and therefore was at the relevant time under the age of 16 years.

30.	I therefore find the accused guilty of both counts of sexually penetrating the complainant, who at the material time was a child under the age of 16 years, and with whom he stood in a position of trust, authority or dependency as an older first cousin as he admitted.

VERDICT
31.	GUILTY as charged on both counts. 
Ordered accordingly.
_______________________________________________________________
R Luman, Acting Public Prosecutor: Lawyer for the State	
L B Mamu, Public Solicitor:  Lawyer for the Accused