N3154

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 296 OF 2006

THE STATE

v

KIKIA SOLOWET

Kimbe: Cannings J

2007: 19, 20, 24, 25 July
16 August

Criminal Law – offences – persistent sexual abuse of a child – Criminal Code, Section 229D – trial.

A man was indicted for persistent sexual abuse of a nine-year-old girl, his niece. He pleaded not guilty. It was the State’s case that the accused engaged in ten acts of sexual penetration with the girl over a three-week period. The complainant, now 11 years old, gave evidence, as did the accused’s son, now aged 15. The State also relied on the accused’s record of interview and a medical report. The accused made an unsworn statement from the dock, denying the charge and alleging that the case against him was motivated by ill-will on the part of members of his family. 

Held:

(1)	For an accused to be convicted of the offence of persistent sexual abuse of a child, the court must be satisfied beyond reasonable doubt that:

(a)	the accused engaged in conduct in relation to the child that constitutes an offence under Division IV.2A of the Criminal Code;

(b)	on two or more occasions;

(c)	each occasion was on a separate day; and 

(d)	the material facts of the occasions are clear.

(2)	The court does not have to be satisfied beyond reasonable doubt as to the dates or order of the occasions.

(3)	The State does not have to prove each occasion of criminal conduct alleged in an indictment; two will suffice.

(4)	In the present case, the court, having satisfied itself that the complainant understood the nature and importance of telling the truth, regarded her evidence as credible; and its credence was supported by the evidence of the accused’s son, also a credible witness, who testified that he saw the accused sexually penetrate the complainant on one occasion.

(5)	The medical evidence supported the allegation of penetration of the complainant’s vagina.

(6)	The accused elected to make an unsworn statement from the dock, which was lacking detail and unconvincing; and there was no other evidence to support his story.

(7)	There was sufficient evidence for the court to be satisfied beyond reasonable doubt as to the existence of all elements of the offence. The accused was therefore found guilty.

Cases cited

The following cases are cited in the judgment:

Rolf Schubert v The State [1979] PNGLR 66
The State v John Saganu [1994] PNGLR 308
Java Johnson Beraro v The State [1988-89] PNGLR 562
Tommy Morikawa v The State (2000) SC656)
The State v Saul Ogeram (2004) N2780
The State v James Yali (2005) N2988
The State v Jimmy Aiyo CR No 147 of 2005, 28.09.06
The State v Alex Matasol Hagali CR No 928 of 1997, 28.09.06

TRIAL

This was the trial of an accused charged with persistent sexual abuse of a child.

Counsel

F Popeu, for the State
O Oiveka, for the accused

VERDICT

16 August, 2007

1 CANNINGS J: Kikia Solowet, the accused, is a 60-year-old man from Kabwum, Morobe Province. He has for some time been living on an oil palm block at Buvussi, West New Britain Province, with his wife and family. He is charged with the offence of persistent sexual abuse of a child, his nine-year-old niece, allegedly committed over a three-week period in late 2005. He pleaded not guilty and a trial was held in Kimbe.

2. It was the State’s case that the accused sexually penetrated the child, referred to in this judgment as "the complainant", on ten separate occasions. The complainant, now aged 11, and one of the accused’s sons, aged 15, gave oral evidence. The State also relied on the accused’s record of interview and a medical report.

3. The accused made an unsworn statement from the dock, denying the charge and alleging that the case against him was motivated by ill-will on the part of certain members of his family, with whom he had an ongoing dispute.

MATTERS NOT IN DISPUTE

4. The complainant had been staying with the accused and his wife and family on their block at Buvussi since the beginning of 2005. On 24 November, 2005 the accused’s wife – the complainant’s aunty – caught a ship from Kimbe to Lae. She was not at home when the alleged abuse occurred.

THE OFFENCE

5. The accused has been charged under Section 229D (persistent sexual abuse of a child) of the Criminal Code, which states:

(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.

(2)	for the 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)	In proceedings related to an offence against this Section, it is not necessary to specify or prove the dates or exact circumstances of the alleged occasions on which the conduct constituting the offence occurred.

(4)	A charge of an offence against this section—

(a)	must specify with reasonable particularity the period during which the offence against this section occurred; and

(b)	must describe the nature of the separate offences alleged to have been committed by the accused during that period.

(5)	For an accused to be committed [sic] of an offence against this section—

(a)	the court must be satisfied beyond reasonable doubt that the evidence establishes at least two separate occasions, occurring on separate days during the period concerned, on which the accused engaged in conduct constituting an offence against this Division in relation to a particular child; and;

(b)	the court must be so satisfied about the material facts of the two incidents, although the court need not be so satisfied about the dates or the order of those occasions.

(6)	If one of more of the occasions involved an act of penetration, an offender against Subsection (1) is guilty of a crime and is liable, subject to Section 19, to life imprisonment.

6. The State has to prove four things to obtain a conviction:

(a)	the accused engaged in conduct in relation to the child that constitutes an offence under Division IV.2A of the Criminal Code (sexual offences against children);

(b)	on two or more occasions within a period specified with reasonable particularity;

(c)	each occasion was on a separate day; and

(d)	the material facts of the occasions are clear.

7. As to (a), Division IV.2A creates four offences:

•	229A – engaging in act of sexual penetration with a child under the age of 16;

•	229B – sexual touching of a child under 16;

•	229C – indecent act directed at a child under 16;

•	229E – abuse of trust, authority or dependency regarding a child aged 16 to 18. 

8. In the present case the indictment states that the accused engaged in ten acts of sexual penetration with the complainant. "Sexual penetration" is defined by Section 6. It includes penetration by the fingers or penis. The indictment thus alleges that the accused on ten occasions engaged in conduct in relation to the complainant that constitutes an offence under Section 229A. The indictment states that each of those occasions occurred on a separate day. The indictment therefore meets the formal requirements of Section 229D as set out by Lay J in The State v Saul Ogeram (2004) N2780.

9. The defence counsel, Mr Oiveka, submitted that as the State alleged ten instances of penetration, each one had to be proven to sustain the charge. If one or more was unproven, the accused must be acquitted. I reject that submission. The wording of the section makes it clear that the State need prove only two instances of penetration to obtain a conviction.

EVIDENCE FOR THE STATE

10. The State’s case was based on the following evidence:

•	oral testimony of the complainant;

•	oral testimony of one of the accused’s sons;

•	the accused’s record of interview;

•	a medical report.

THE COMPLAINANT’S ORAL TESTIMONY

11. Because of the complainant’s tender age, there was some doubt as to her capacity to comprehend the nature of an oath or affirmation. I consulted the lawyers and decided that it would be inappropriate to administer an oath or affirmation. However, after she answered some questions from me, she appeared to clearly understand the nature and purpose of the court proceedings, the reason she was in court and that the lawyers would ask her questions about what happened. She immediately appeared to be a bright and intelligent child. I was satisfied that she understood the meaning and importance of truth and that she was obliged to tell the truth. Those first impressions were reinforced by the manner in which she answered questions. Though he submitted in his closing address that her evidence should be treated with great caution and was not credible, Mr Oiveka raised no objection to her competence as a witness or the admissibility of her evidence. I concluded that she was a competent witness and her evidence was admissible.

12. In reaching that conclusion, I applied Section 6 of the Oaths, Affirmations and Statutory Declarations Act Chapter 317 and guidelines for the reception of evidence by child witnesses given by the Supreme Court in Rolf Schubert v The State [1979] PNGLR 66 and Java Johnson Beraro v The State [1988-89] PNGLR 562. In Schubert the court stressed that the question of whether a child witness’s unsworn evidence is admissible is a matter for the "good sense" of the court. In Beraro the court held that the trial judge erred when convicting an accused of wilful murder by shooting an innocent man in the Waigani Swamp, as conviction was based on testimony of the victim’s five-year-old son but the trial judge had no evidence before him from which he could conclude that the child understood that he could be punished if he told lies to the court. By contrast in the present case, such evidence was clearly apparent from the age of the child (twice that of the witness in Beraro), her understanding of the proceedings and her evident intelligence and sharpness of mind.

13. I ordered under Section 37B(2) of the Evidence Act that the following special measures be used for the giving of evidence by the complainant:

•	a screen was used to prevent the complainant seeing the accused;
•	a support person was seated next to the complainant in the witness box;
•	the court was closed to the public.

14. The complainant said that she remembered the day that she went with her aunty’s husband, Kikia, (the accused) to the wharf and her aunty had got on to the ship to go to Lae. They went back to the block at Buvussi. Kikia removed her cousin-brothers from the block because of an argument.

15. She said that the accused pushed his fingers into her vagina and he does that all the time. She said that on two occasions he put his penis into her vagina. Once when he did that and her brother saw what happened. All her clothes were wet on that occasion.

16. Kikia used to show her the axe when he did these things. On that occasion she was wet and the accused told her to take her clothes off and washed them. While they were washing together he put his hands into her vagina and asked her to wash his penis. Her brother Getoke saw her washing Kikia’s penis. After that, Kikia said that they should go to the community as someone had died. They took a short cut and Kikia started talking about having sex again. She cried all the way back to the house. Her brother Thompson called her over to him and asked her what had been happening. So she told her story to him. Then the in-laws found out about it and they took her to the health centre.

17. The first time they went to the health centre the doctors were busy and she had to go back the next day. When she was taken back the next day the doctors told her to buy some ‘Amox’ so somebody purchased Amox to make her better.

18. After that she was taken to Kimbe General Hospital for another check-up. Adult fluids were found in her body. After that she gave her story to the CID.

19. On all the occasions that Kikia did these things to her, her aunty was away. The first time he did it was when they left her aunty at the wharf to go to Lae. Asked when the next occasion was, she replied he did it "all the time". She said the last time was on a Saturday and that was the day that she was taken to Buvussi health centre.

20. Asked what she meant by saying that he did it all the time, the witness said "I am telling the truth". She did not say how many times he had done it.

21. On the Saturday that she and Kikia were washing together, Kikia’s children had gone to town. That was the last occasion on which Kikia did something to her.

22. In cross-examination Mr Oiveka asked the complainant if there had been any problems when Kikia first brought her over from Morobe. She said that they (presumably meaning Kikia and her aunty) used to get cross. Her aunty and her brothers looked after her well. She denied that the problem between Kikia and his sons arose because his sons tried to involve themselves in criminal activities. She confirmed that two of Kikia’s sons, Primus and Colin, and their wives, were removed from the block.

23. Mr Oiveka suggested to her that she was not telling the truth, to which she replied that she is telling the court what he did to her. She said that she did not know what sexual intercourse was.

ORAL TESTIMONY OF THE ACCUSED’S SON

24. Getoke Kikia is the accused’s last-born son. He is aged 15. He was 13 at the time his father allegedly committed the offence. He has lived all his life in West New Britain. He is going to school and, like the complainant, presented as a bright and intelligent child. He comprehended the nature of an oath, and I decided that it was appropriate for him to give sworn evidence. I did not make a special measures order under Section 37B of the Evidence Act regarding his evidence.

25. He recalled an incident at midday on 16 December 2005 at the family’s block at Buvussi. His father had given him and his brothers money and told them to go to town. He did not want to go to town, so he stayed back at the house while his brothers got on a PMV and went to town. When he was in the house the complainant and his father were in the haus kuk. He heard his father say to the complainant that he wanted to have sex with her. He heard the complainant crying. His father asked her the same question He H again and she cried again.

26. Later he saw them take their clothes to the rainwater tank at the back of the house to do their laundry. He went to the back of the house and hid behind an oil palm tree. He heard his father ask the complainant the same question again. Then his father sent the complainant back to the house to get their dirty clothes.

27. The complainant came out of the house and was standing on the veranda and his father asked the same question again, to have sex with her. The complainant cried again and she brought the clothes to his father and they continued with the laundry. They then took the clothes to the clothes line.

28. His father took off the complainant’s trousers and put a skirt on her and washed her. While he was washing her he pushed his fingers into her vagina for about five minutes. He then took off his laplap and told the complainant to wash his penis.

29. At that point his father turned her around and his father’s back was towards him and he could not see what they were doing. Then the two of them went up to the house to change. His father went inside the house and the complainant was sitting on the veranda.

30. He approached the complainant, told her that he had seen everything that happened and told her that when Betty (her in-law) comes she must tell her what happened. When Betty arrived the complainant told her what had happened.

31. The complainant is his cousin-sister. Asked further about the family relationships, Getoke said that the complainant is the daughter of his uncle, his mother’s brother. At the time of the incidents in late 2005, the complainant’s parents were living in the village, in Morobe. His mother – the accused’s wife – was also in the village at that time. She had left Kimbe on 24 November 2005.

32. In the period from 24 November to 16 December 2005 five of his brothers and two of their wives were living on the block. There are three houses on the block, the main dwelling house, a haus kuk and a poultry house. Those living in the main dwelling house were his father, the complainant, one of his brothers and himself, a total of four people. His father had his own room in the house and he, his younger (adopted) brother and the complainant slept in the living room.

33. When he was hiding behind the oil palm tree, watching his father and the complainant, he was about 18 metres away. The tank is about 16 metres from the house. He could see clearly what was happening.

34. In cross-examination Getoke said that it was true that his father had argued with two of his older brothers and their wives and chased them off the block. He denied, however, that this was because his brothers were attempting to involve themselves in criminal activities. His father chased them off the block for no reason. He just did not want them to live there anymore.

35. Asked why he did not confront his father about what happened, Getoke said he was afraid because his father might hit him. Asked why he did not report it to the neighbours living close by, he said he wanted to report it to his older brother. Asked whether he knew that his father could be locked away for life if he were found guilty, Getoke replied yes.

36. Asked about the incident on 16 December 2005 when his father had turned his back towards him, Getoke agreed that he did not see what was happening. He only heard his father telling the complainant to wash his penis. Asked why he did not disturb them, Getoke replied that he was afraid as his father might hit him. That was the first time that he had seen his father washing the complainant in that way.

37. He told the complainant to report the matter to Betty as he knew that what his father had done was not right. If he had reported it himself he would not have been believed. Asked about recent developments, Getoke said that it was true that his father has since been chased off the block. His father is living away from him and his brothers and his mother. He is happy that they are not living together anymore. 

38. Asked if he would be happy if his father goes to jail, Getoke replied yes. In re-examination he said his father had done bad things to his sister.

THE ACCUSED’S RECORD OF INTERVIEW

39. He was interviewed on 3 February 2006. He denied all allegations. He brought the complainant from Morobe in February 2005 to assist his wife with the dishes and work around the block because they did not have any daughters. When his wife went to the village on 24 November 2005 the complainant and a small boy were left in his care and he looked after them well.

40. It is true, he said, that when his wife went to the village he got rid of his in-laws, Betty and Kuri, from the house as they were not doing any work. Only the complainant was doing the work. They got jealous and made up the story about the complainant and that is why the matter was reported to the police.

41. It was put to him that on the first night after his wife had left, he violated the complainant by pushing his fingers into her vagina and that he did that on each night for a long time after that. He denied those allegations saying that they were based on suspicion. His in-laws had told the complainant what to say as they were angry with him for being pushed out of the block.

42. Asked about the incident on 16 December 2005 and the allegation that he had told the complainant to wash his penis, the accused replied that they were just washing pots and peeling sweet potatoes in the kitchen when Betty came and took the complainant away to get a medical report.

43. Asked whether there would be anyone else who would have played with the complainant’s private parts, the accused said that no one has ever had sex with her or played around with her private parts.

MEDICAL REPORT

44. It was prepared by Dr Peter Yama, medical officer at Kimbe General Hospital, and dated 3 January 2006. It was admitted into evidence without objection. It shows that the complainant was first seen in the outpatients’ department on 18 December 2005 (two days after the last alleged instance of penetration), in regard to an allegation of molestation by her aunty’s husband. The report continued:

On examination, a nine-year-old girl not in distress, but very frightened and anxious.

Examination of her private parts revealed redness of her vagina, with torn hymen confirming penetration into her vagina. She also had foul smelling vaginal discharges. Also confirming infection of her vagina due to the multiple penetrations.

She also had a tear on the posterior aspect of her vagina. Pathology test revealed bacteria in the vagina and pus cells red cells. [sic] All these are evidence of sexual molestation and forceful penetration resulting in vaginal infection.

45. Dr Yama concluded that the complainant had been sexually penetrated without her consent.

THE DEFENCE CASE: THE ACCUSED’S UNSWORN STATEMENT FROM THE DOCK

46. The defence case consisted solely of the accused’s unsworn statement. The reason his children wanted him off the block is that his elder son is a criminal. He had brought some boys with him to the block. He removed all of them and that is why they are now trying to get rid of him.

47. It is because of that problem that they suspected him of doing things to his niece and made the allegations against him. That is why he is in court. His two elder sons, Primus and Allan, want to get their hands on his two blocks. He is not living there at the moment because of these problems.

THE ISSUES IN DETAIL

48. The nature of the evidence and submissions of counsel give rise to these issues:

1	Was the complainant’s evidence credible?

2	Was the accused’s son’s evidence credible?

3	Was the other evidence consistent with the State’s case?

4	Are there gaps in the evidence that give rise to doubt about acceptance of the complainant’s evidence?

5	Was corroboration of the complainant’s evidence necessary?

6	Was the accused’s statement credible?

7	Did the accused engage in any act of sexual penetration with the complainant? If yes, on how many occasions? Were the occasions on different days and the material facts clear?

8	Has the State proven each element of the offence beyond reasonable doubt?

9	If the accused did not engage in any act of sexual penetration with the complainant or did so on only one occasion, can he be convicted of a lesser offence?

1	WAS THE COMPLAINANT’S EVIDENCE CREDIBLE?

49. I have already decided that she was a competent witness and her evidence admissible. I now address the separate question of whether her evidence was credible, having regard to her demeanour in the witness box, the degree of logic and common sense in the story that she told and how she responded to cross-examination.

50. In view of the complainant’s tender age I warn myself, as the tribunal of fact, of the dangers of too readily accepting her evidence at face value and entering a conviction based on those parts of her evidence that are uncorroborated (Tommy Morikawa v The State (2000) SC656).

51. The reasons for this warning were explained by Doherty J in The State v John Saganu [1994] PNGLR 308:

Children are more susceptible to suggestion, have shorter memory recall and have more vivid imaginations than adults. Care should be taken with their evidence, but if the court, seeing the witness before it, considers and finds he or she is speaking nothing but the truth, then the court is entitled to accept it.

52. Mr Oiveka submitted that she was an unreliable witness, largely because of her tender age. A child of that age is prone to make up stories, fantasise and be subject to undue influences. The main undue influence in this case was the underlying family problems that had resulted first in the accused’s sons being shifted out of the block and more recently the accused himself being chased away. It is apparent that the complainant had been influenced to make up stories about things that did not happen at all.

53. I was unimpressed by those arguments as they ran counter to the way that the complainant presented when she gave her oral testimony. I reiterate that she appears to be a bright and intelligent child. Though at one stage she said she did not know what sexual intercourse was, she seemed to have a clear idea of the difference between right and wrong. She had a clear understanding that the accused had done wrong to her. She gave the impression of being an innocent young child who was telling the truth about what happened to her.

54. Her answers to most questions were clear and precise. The only answer that could be regarded as vague was to the prosecutor’s question about how many times the accused did those things to her. She replied that he did it all the time. I do not consider that that sort of answer made her evidence less believable. She stated in a matter-of-fact style that the accused used to show her the axe when he did these things.

55. The way in which she told her story made her evidence intrinsically believable and convincing.

2	WAS THE ACCUSED’S SON’S EVIDENCE CREDIBLE?

56. Yes. He displayed similar characteristics in the witness box to his cousin-sister, the complainant. He also appeared to be a bright and intelligent child, cognisant of the nature and purpose of the court proceedings, their gravity and the fact that his father could be imprisoned for a long time if convicted.

57. Getoke gave clear and precise answers to questions. His evidence was confined to the last alleged incident on 16 December 2005. He gave the impression of someone giving evidence of things that he observed and not of things he suspected.

3	WAS THE OTHER EVIDENCE CONSISTENT WITH THE STATE’S CASE?

58. I will first consider the record of interview. The interview was conducted less than two months after the last alleged incident. The story the accused gave to the police is the same story he told to the court. He said that the case against him was motivated by ill-will on the part of other members of the family who wanted him off the block. They suspected him of doing bad things to his niece and that gave them a reason to get him off the block.

59. The record of interview neither supports the State’s case nor prevents it from succeeding.

60. Secondly, the medical report. The complainant was first seen in the outpatients department at Kimbe General Hospital only two days after the last alleged incident. The report supports a finding that she had been penetrated in her vagina. The report does not offer an opinion on whether she had suffered from digital (with the fingers) or penile (with the penis) penetration. However it certainly supports the finding that she had been penetrated. The conclusion that there had been forceful penetration supports the findings that she had been penetrated without her consent.

61. Though it does not directly link the accused to penetration, it is certainly consistent with the State’s case that the complainant had been sexually penetrated.

4	ARE THERE GAPS IN THE EVIDENCE THAT GIVE RISE TO DOUBT ABOUT ACCEPTANCE OF THE COMPLAINANT’S EVIDENCE?

62. There are some gaps in the evidence in the sense that the complainant referred to some family members who were not called to give evidence in the trial. Betty, for example, is the person to whom the complainant said she first reported the trouble. I would have thought that Betty would give evidence. She did not and no explanation was given for that. The complainant also referred to another brother, Thompson, who knew what happened but he also gave no evidence. The failure to bring these witnesses forward, however, was not fatal to the State’s case. It did not create any serious doubt about acceptance of the complainant’s evidence.

5	WAS CORROBORATION OF THE COMPLAINANT’S EVIDENCE NECESSARY?

63. No. Though this is a sexual assault case and the key witness is an 11-year-old child, corroboration of the complainant’s evidence is not necessary, for two reasons.

64. First, Section 229H (corroboration not required) of the Criminal Code states:

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.

65. I am therefore not required and not allowed to instruct myself that it is unsafe to find the accused guilty in the absence of corroboration.

66. Secondly, there is no rule of practice or law that in any criminal case the admissible evidence of a child witness must be corroborated by direct or circumstantial evidence. Provided trial judges warn themselves of the dangers of entering a conviction based on the uncorroborated evidence of a child (which I have already done) it is safe to convict if the evidence is very cogent indeed or convincing (Tommy Morikawa v The State (2000) SC656).

6	WAS THE ACCUSED’S STATEMENT CREDIBLE?

67. No. It was rather vague and no evidence was brought to support it. Even if there were other members of the family who had come forward to give evidence that the case against the accused was motivated by ill-will and that the complainant had been put under undue influence, the evidence would have had to be quite strong to counter the credible evidence given by the complainant and Getoke. The fact that no witnesses came forward to support the accused’s version of events means that it remained a vague and unconvincing explanation.

7	DID THE ACCUSED ENGAGE IN ANY ACT(S) OF SEXUAL PENETRATION WITH THE COMPLAINANT? IF YES, ON HOW MANY OCCASIONS? WERE THEY ON DIFFERENT DAYS? WERE THE MATERIAL FACTS CLEAR?

68. This is the critical issue. Having accepted the complainant’s evidence, which was corroborated by Getoke’s evidence of the incident on 16 December 2005 and by the medical report, I find that the accused engaged in at least three acts of sexual penetration with the complainant.

69. The first act was on the night of 24 November 2005, the day on which the accused’s wife was put on the ship to go to Lae.

70. The second act was at some time between 24 November and 16 December 2005. I accept in general terms the complainant’s testimony that after the accused penetrated her the first time (on 24 November 2005) he did it "all the time". That is a rather vague description of when and on how many occasions he penetrated her. However I do not have to be satisfied beyond reasonable doubt as to the particular days on which things happened. I am satisfied that the complainant’s evidence that it happened at least once in this period was credible. I give the benefit of the doubt to the accused by not finding that it happened more than once in this period.

71. The third occasion was on 16 December 2005. Evidence in support of this finding is the complainant’s testimony and also Getoke’s testimony. He observed what happened on that day.

72. I conclude that on each of the three occasions the accused penetrated the complainant’s vagina with his fingers. There is insufficient evidence to support a finding of penile penetration. I consider that the complainant’s evidence was vague in that regard. It is reasonably possible that there was penile penetration on the third occasion but Getoke’s evidence was that he did not see exactly what happened after the accused put his fingers into the complainant’s vagina. A reasonable person would suspect that penile penetration occurred but that is not a sufficient basis for a finding that it actually occurred.

73. The medical report provides strong support for those findings as it concludes that the complainant suffered multiple penetrations, causing vaginal infection. The report does not say that semen was found in the vagina and that is another reason I cannot find that penile penetration occurred. The accused did not in his police interview or statement from the dock give the name of any other person who might have been responsible for sexually abusing the complainant. The defence counsel did not proffer any alternative view on who might have been responsible for what Dr Yama found to be clear evidence of sexual molestation and forceful penetration. The medical report is strong circumstantial evidence in support of the finding that the accused engaged in acts of sexual penetration with the complainant.

74. The material facts are sufficiently clear to warrant a finding that those occasions occurred first on 24 November, secondly at some time from 25 November to 15 December and thirdly on 16 December 2005.

8	HAS THE STATE PROVEN EACH ELEMENT BEYOND REASONABLE DOUBT?

75. As I pointed out in The State v James Yali (2005) N2988, in a sexual offence case, where the result of the case might appear to boil down to who to believe, it is not quite that simple. An accused cannot be convicted only on the basis of suspicion or belief on the part of the tribunal of fact (the court) that all elements of the offence are proven. (Also see The State v Alex Matasol Hagali CR No 928 of 1997, 28.09.06 and The State v Jimmy Aiyo CR No 147 of 2005, 28.09.06.)

76. The court’s task is, rather, to determine, having weighed all the evidence and considered that there are reasonable grounds for believing the complainant’s evidence, whether it is satisfied to the required criminal standard of proof – beyond reasonable doubt – that each element is present. If there is a reasonable doubt about any element, the court is obliged to acquit the accused.

77. Having weighed all the evidence in this case I am satisfied beyond reasonable doubt that:

(a)	the accused engaged in conduct in relation to the complainant constituting an offence under Section 229A(1) of the Criminal Code: he engaged in an act of sexual penetration (defined by Section 6(b) of the Criminal Code) with a child under the age of 16 years by introducing a part of his body, his fingers, into the vagina of the complainant other than in the course of a procedure carried out in good faith for medical or hygienic purposes;

(b)	he engaged in that conduct on two or more occasions (three) within a period specified with reasonable particularity (the period from 24 November to 16 December 2005);

(c)	each of those occasions was on a separate day:

•	first, on 24 November 2005,
•	secondly, on a day between 24 November and 16 December, and 
•	thirdly, on 16 December 2005;

(d)	the material facts of those occasions are clear. 

78. I conclude the State has proven the four elements of the offence under Section 229D beyond reasonable doubt.

9	IF ALL ELEMENTS ARE NOT PROVEN, CAN THE ACCUSED BE CONVICTED OF A LESSER OFFENCE?

79. It is not necessary to answer this question as I found all elements proven. However, I say in passing that if one or more of the elements were not proven it would have been difficult to convict the accused of a lesser offence such as sexual touching or one instance of sexual penetration.

80. There is no general principle that if a person has been charged with a specific offence and, though not all elements of it are proven, all elements of a lesser offence are proven, the court can enter a conviction for the lesser offence. The power to convict an accused of a lesser offence only exists where the Criminal Code specifically provides for it. For example, Section 539 says that a person indicted for wilful murder can be convicted of murder or manslaughter. Section 541 says that a person indicted for rape or unlawful carnal knowledge of a girl under the age of 12 years can be convicted of certain lesser offences. Both learned counsel submitted that I would have been able to enter a finding of guilty of a lesser offence. But I do not think that is correct as the accused was not indicted for rape or unlawful carnal knowledge (that offence having been repealed by the Act which inserted Division IV.2A).

81. This is something that the Parliament needs to carefully look at. There should be a special provision in Division IV.2A allowing the court to enter convictions for lesser offences where all the elements of a more serious offence have not been proven. It would be a travesty of justice if an accused person were able to escape criminal liability if, say, he or she were charged with persistent sexual abuse of a child and the State was only able to prove one instance of sexual penetration.

VERDICT

82. I have concluded that the State has proven all elements of the offence under Section 229D of the Criminal Code. The accused is therefore convicted of one count of persistent sexual abuse of a child, as charged.

Verdict accordingly.
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Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused