State v Dick [2007] PGNC 56; N3219 (31 May 2007)

N3219

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 531 OF 2005

THE STATE

v

ALOIS DICK

Kokopo: Lenalia, J.
2007: 16, 29 & 31 May

CRIMINAL LAW – Sexual touching – Plea – Matters for consideration – Sentence – Criminal Code (Sexual Offences and Crimes Against Children) Act 2002, s.229B

CRIMINAL LAW – Incest – Incest between father and daughter – Plea of not guilty – Trial – Evidence – Only evidence tendered the record of interview and admissions made by accused – Admission and its status in law – Criminal Code (Sexual Offences and Crimes Against Children) Act, s.223 (1).

Held: 1. Where an admission or admissions are made in answer to questions
put to an accused during the record of interview or a confessional statement unless challenge ought to be accepted as the truth of what was said by an accused to a person in authority.

2. Where admissions are made by an accused person to any person in authority in answer to a question or questions put in plural form, unless qualified by any other questions, should not be accepted into evidence as truth of what was being said as the answer might give rise to doubts by the trial judge whether the accused answer was for that particular offence or the other.

Cases cited:

The State v Paul Kundi Rape [1976] PNGLR 96
John Beng v The State [1977] PNGLR 115
The State v Aige Kola [1979] PNGLR 620
The State v Tom Morris [1981] PNGLR 493
Michael Mini v The State [1987] PNGLR 224
The State v Anis Noki [1993] PNGLR 426
The State v Jenny Kebana (2005) N2813
Tapopwa Thomas v The State [1979] PNGLR 140

Counsel

R. Auka, for the State
P. Moses, for the Accused

31 May 2007

1. LENALIA, J: The State Prosecutor presented an indictment containing two charges, the first one for an offence of sexual touching and the second charge for incest. The victim of the two charges was and is none other than the accused own daughter. The accused pleaded guilty to count one which charge is aggravated by an existing relationship of trust authority and dependency. He entered a plea of not guilty to the second charge. These offences are charged pursuant to Sections 229B (1) (a) & (4) and 223 (1) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.

2. On the procedure, the court adjourned the first case on which he had pleaded guilty on administration of allocutus and addresses on sentence to be obtained after the decision on the verdict on the second charge. The second charge was adjourned to the next day for the prosecution to call their only witness, the victim R. D. This witness is living at the National Agricultural Research Institute up at Keravat.

3. When the case was called on 17th of this month, for the trial to proceed, the victim witness was called but she made no appearance. Being faced with that situation, Mr. Auka of counsel for the State submitted that, the only witness he was to rely on was the victim. However he submitted that such witness was not available. He tendered by consent the record of interview, (see Exhibits "A" & "B" for the Pidgin and English translation). He then submitted the case for the prosecution closed.

4. Mr. Moses of counsel for the accused sought a fifteen (15) minutes adjournment which was granted. When the court resumed, counsel made a brief submission of no case to answer on the second charge of incest. Counsel submitted that, since penetration is denied in the second count, it was incumbent on the victim to come to court to be examined and cross-examined.

5. The case of The State v Paul Kundi Rape [1976] PNGLR 96 was cited for the principle that at this stage of the trial on the second charge if the State has not made out a case for the accused on the second charge, he should be acquitted.

6. For the prosecution, Mr. Auka replied to the defence no case submission that, the record of interview was clear. He referred the court to question 17 on the record of interview where the accused was told by the interviewing officer that he would then be arrested because of the allegations of sexual penetration of the victim. The Accused was then asked if he understood the process to which the accused answered "Yes". Mr. Auka asked the court to find that due to admissions made by the accused in the record of interview, the court should find that there is a case for the accused to answer.

7. The court adjourned that trial to consider the evidence and counsels’ submissions. But in the course of perusing the file, the court found that there was an interesting piece of evidence which I believe might not have been detected by both counsels. That piece of document is essential for the defence case as it is a hand written medical examination report done on the victim on 21 January, 2005.

8. Having found such document, I decided to recall the matter to give directions to lawyers to further address the court on the status of that medical report. On 29 May, the court gave direction for both the defence and prosecution counsels to address the court on the medical report. For the accused, Mr. Moses briefly submitted that, the status of the medical findings confirms their submission of no case to answer.

9. Another problem encountered on this trial is that by the time the court gave the directions, the prosecution counsel Mr. Auka who prosecuted this case had completed the circuit and went back to Moresby. In his absence, seeing it was a simple issue of addressing the court on the medical evidence, I further directed that instead of Mr. Auka doing the address, Mr. Rangan of their Rabaul Office should address the court accordingly. Mr. Rangan submitted that, the question put in question 17 on the record of interview could not be interpreted to mean the accused was consenting to having penetrated his daughter. He further submitted that, the question was put in ambiguous manner which could create doubt on the mind of the court.

10. Briefly, the nature of the medical report is that when the Health Extension Officer at Keravat Health Centre one John Galele examined the victim on 21 January 2005, he made the following findings:

• "No pubic hair
• No bruises on the thighs
• Normal – vaginal opening
• No deposition of secretion
• One index finger inserted
• Unable on two fingers – no insertion"
  

11. The officer concluded by saying that he found the victim to have been sexually molested by fingers through foreplay and his opinion was that penetration by penis was less likely. In fact the H.E.O at Keravat Health Centre found that only one index finger could be inserted into the victim’s vagina but unable on two fingers. The medical report was tendered by consent and marked with Exhibit "C".

LAW

12. Having heard counsels’ addresses on the status of the medical report the court is in a better position to make a ruling on the no case submission. As Mr. Moses submitted, the question is if the State has not made out a case against the accused on the second charge, the accused ought to be acquitted.

13. The basis of such application is based on both the first and second legs of the principles enunciated in The State v Paul Kundi Rape [1976] PNGLR 96. Counsel submitted that as from the evidence as it stands, there is no case for his client to answer.

14. The principles developed from the above case say that there are two tests which the court ought to consider at this stage of this trial as established by the above case and many more cases after it for example, (see John Beng v The State [1977] PNGLR 115. The first of those two tests is, is there some evidence of the essential elements of the charge before the court now which would either prove the elements directly or to enable the court to infer its existence.

15. The second test or question is, although if there was a case to answer, is there sufficient evidence on which this court could lawfully convict the accused? (See cases of John Beng v The State v [1977] PNGLR.115, The State v Anis Noki [1993] PNGLR.426, see also The State v Jenny Kebana Peter (2005) N2813) and Michael Mini v The State [1987] PNGLR 224

16. The question that is usually asked at the time when a no case submission is made is, on the evidence as it stands, could the accused be lawfully convicted. If the court rules that, there is a case to answer, the trial will proceed which means the defence would be invited to give evidence and call any witnesses. But if the court rules in the negative, it means this will be the end of the trial on the second charge: The State v Tom Morris [1981] PNGLR 493.

17. Obvious as it is, in order for the court to rule that, there is a case for the accused person to answer, there ought to be some evidence from which this court would reasonably form an opinion that the accused could lawfully be convicted. After reading the medical report, I am not convinced about the prosecution allegation that the accused sexually penetrated his daughter.

18. There is no evidence before the court to even infer if the accused penetrated the victim. The evidence presented by the prosecution on the second charge in this case is so lacking in weight and credibility such that as a tribunal of fact and of law I feel considerable hesitation in going past the first leg or even if there was some evidence, the second leg in Paul Kundi Rape’s case, (see The State v Aige Kola [1979] PNGLR 620).

19. There are two other matters I must raise. First, the accused was asked the following question in question 19 in the record of interview and its answer:

"Q.19. Alois, you are now going to be arrested and charge for having sexual intercourse with your daughter. You are not obliged to say anything and anything that you say will be taken down into writing and will be given as evidence.

Do you understand?"

The accused answered-

"Yes"

20. When Mr. Auka addressed the court in reply to the no case submission, he submitted that there is ample evidence to show that the accused had in fact sexually penetrated his daughter and therefore the court should find that there is a case for the accused to answer. In my view and interpretation of the above question, I think the question was put in plural form. When the accused answered "Yes" I think he was consenting to the arrest to be effected on him and secondly that he understood the process of interrogations he had gone through.

21. To assume that the accused was admitting to having sexually penetrated his daughter between the time period stated in the body of the indictment on the second charged would in my view be out of context with the question put to the accused.

22. But I also note that earlier on in question 16 of that document, the accused was asked the following question in the plural form:

"Can you recall back to October 2004 and January 2005 your daughter stated that in between that period of time you normally touches her skin, breasts and normally have sexual intercourse with her.
What will you say about this matter?

Ans. Yes it’s true."

23. My view is that the above question was put in plural form because, the question relates to two separate offences. One of sexual touching and the second one for the offence of sexual penetration. Again when the accused answered by saying "Yes its true" he could have meant true to each offence charged or only to one of the two.

24. In the form of questioning like this, interviewing officers should bear this fact in mind that, where a question is asked in plurality, further questions should be asked to qualify the later suggestion or suggestions for that matter on the question put.

25. The word "plural" is defined in the Oxford Advance Learner’s Dictionary as: a form of a noun or verb that refers to more than one person or thing" or "relating to more than one". When the interviewing officer asked the question if it was true that the accused had between the month of October 2004 and January 2005 he had repeatedly sexually molested his daughter by touching her breasts her private part and sexually penetrated her were and are in fact two separate questions regarding two separate offences, one of sexual touching and the second one for sexual penetration. No further questions were asked to qualify what the accused meant when he said "yes". For instance, whether he said "yes" to sexual penetration or to sexual touching.

26. The second matter, I wish to make mention of is according to the record of interview which is now in evidence on the second charge, there is clear evidence of sexual touching which had existed for some time from October 2004 to January 2005. There is evidence of touching the victim’s vagina, her breasts and other parts of her body. There is also evidence that the accused repeatedly performed cunnilingus on his daughter perhaps for purposes of stimulating her into action.

27. It could be possible to hold that there is a case for the accused to answer because of the definition of the words "sexual penetration". This phrase is defined in s.6 of the Act in the following way:

"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 any 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."

28. Looking at the wording in the above proviso it appears to this court that even an attempted penetration by half insertion of the penis as in Subsection (a) or introduction to any extent as in Subsection (b) of any object such as a piece of wood or it may be the use of fingers or may even be the use of the tongue by licking the victim’s private part to generate stimulation could qualify for charges of sexual penetration.

29. Under these circumstances, an accused could still be charged for sexual penetration under s.229A (1) of the Act. However, remember that to secure a conviction for partial penetration needs evidence from the victim to proof that she was partially penetrated. The accused pleaded guilty to one charge of sexual touching of the victim and what I say in this paragraph only relates to the charge of sexual penetration or partial penetration as defined in s.6 of the Act.

30. I remind myself that sitting as a court of both facts and of law, even if there was a finding of a case to answer for count 2, on the basis of partial penetration, that conclusion would be most likely infringement of the rule of law on duplicity. Such rule requires that an indictment must not be double i.e. no one count should charge an accused (unless in the alternative) with having committed more than one offence unless part of one act and one entire transaction. (See ss.528, 529 of the Criminal Code).

31. In the circumstances of the instant trial, given the nature of the medical report suggesting that only one index finger could be inserted into the victim’s vagina at the time and the medical examiner was unable to insert by two fingers, to this court, the victim was a virgin by the time she was examined. This practically rules out any alternative findings of sexual penetration under s.541 (d) or (e) of the Criminal Code.

32. Given the fact that the first charge was committed in the same period of time; that is between 1 October 2004 and 31 January 2005 as stated in count 2, there is no possibility of finding of a case to answer for another charge of sexual touching as it would offend against the rule enunciated by the Supreme Court case of Tapopwa Thomas v The State [1979] PNGLR 140. In that case it was said that a conviction for charges of rape and carnal knowledge of a girl under age 16 years arising out of the one act of intercourse amounted to the accused being punished twice for one act or omission within the meaning of s.16 of the Criminal Code. (See judgment per Andrew; J).

33. Having come to this conclusion, I rule that there is no case for the accused to answer in count 2. He is acquitted on count 2. The court directs that the accused will now address the court on allocutus on the first charge followed by counsels’ submissions.

___________________________________________

The Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Accused.