State v Giroro [2009] PGNC 88; N3683 (25 June 2009)

N3683

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No 306 OF 2008

THE STATE

V

REUBEN GIRORO

Waigani: Paliau, AJ
2009: 15th, 16th, 17th, 19th, & 15th, June

CRIMINAL LAW – Verdict – Sexual Penetration and Sexual Touching of child under the age of 12 years – Charge of – Plea of Not Guilty – Criminal Code s. 229A(1)(2) and s. 229B(1)(a) – Caution must be exercised when dealing with issue of lying and truthful witnesses – Whether prior statement omitting other evidence but included in oral testimony amount to prior inconsistent statement – Complaint made two (2) months later – Whether recent and credible.

Cases cited:

The following cases are cited in the Judgment.

The State v. Jacob Dugura Roy (2007) N3137
Michael Tenaram Balbal v. The State (2007) SC860
The State v. Stuart Hamiton Merriam [1994] PNGLR 104
The State v. Moki Lepi (No. 1) (2002) N2264

Counsel:

Mr. J. Wohuinangu & Mr. A Kupman, for the State.
Mr. J. Mesa, for the Accused.

25th June, 2009

PALIAU, AJ: The accused is charged for one count of engaging in an act of sexual penetration with the victim by inserting his finger into her vagina. He is also charged for an alternative count of sexual touching by fondling the victim’s breasts with his fingers. These acts occurred on 4th July 2007 at North Waigani, National Capital District.

The accused is further charged for second count of sexual touching by fondling the victim’s breasts with his fingers on an unknown date between 1st May and 31st July 2007, also at North Waigani, National Capital District.

The acts of sexual penetration and sexual touching were committed contrary to Sections 229A(1)(2) and 229B(1)(a) of the Criminal Code respectively.

The Facts

The State alleges that at all material times the victim was under the age of 12 years and the accused had an existing relationship of trust, authority or dependency with her.

The accused has pleaded not guilty to the two counts and the alternative count.

The accused lived with the victim and her father at their North Waigani home at the time of the commission of the offences. He lived with them and attended the Papua New Guinea Institute of Public Administration (PNGIPA). Whilst staying with them he had on a number of occasions fondled with the victim’s breasts and pushed his fingers into her vagina. The victim at that time as 8 years old. The accused is her uncle.

The Evidence

State’s Evidence

The State in support of its case called three (3) witnesses. The victim herself; the babysitter - Ronda Borezi and the victim’s father, Robert Abani. Documentary evidence tendered by consent were the Record of Interview (ROI) both in Pidgin and English versions dated 11th November 2007 marked as exhibits "A" and "B" respectively; Statement by Susan Eric dated 23rd November 2007 marked as exhibit "C" and Medical Report by Dr. Mano Mao dated 17th July 2007 and marked as exhibit "D".

First Witness – Romelda Abani (the victim)

The first witness for the State who gave evidence was the victim. In her evidence she stated that the accused on many occasions did fondled and touched her breasts and pushed his fingers into her vagina between 1st May and 31st July 2007. In particular in May and July 2007.

She stated that in July 2007, she lived with her father, her smaller brother Kingston, her aunty Ronda Borezi, her uncle Johnston Abani and his wife Dona and uncle Reuben Giroro, the accused, at their family home in North Waigani, National Capital District.

They have a two bedroom home. And she sleeps with her father and brother in one of the rooms. This is her parent’s room. She said the accused would come to the room and tell her to sleep and pushed his fingers into her vagina, kissed her and fondled her breasts. These happened many times.

She did not report the matter to anyone because the accused told her not to and that he will buy her lollies and ice cream. She said he in fact bought her lollies and ice cream.

She said at one time, Ronda, the babysitter saw her coming out of the family room with the accused and the accused told her to go to the bathroom to wash her face.

She told the Court that she was not forced or told to come to tell lies to the Court by anyone, including her father.

In answer to questions during re-examination as to whether her father, her uncle Johnston or anyone else did push their fingers into her vagina, she said no.

When pressured during cross-examination, she maintained that it was the accused who did those bad things to her and not anyone else. She also said her and her father was angry about what the accused has done to their family and wanted to get him into trouble.

Second Witness – Ronda Borezi (baby-sitter)

This witness said she is related to Robert Abani, the father of the victim. He is her cousin. She came to babysit Robert Abani’s children, Romelda the victim and Kingston because Robert’s wife had left them.

She said in May 2007, when babysitting Romelda and Kingston, she would see the accused bathing the victim under the mango tree. In the process, she would observe the accused fondled the victim’s breasts, and held her vagina and buttock. She would normally observe all this from the window of the house looking down.

On the 20th May 2007 at 7:30pm, she witnessed the accused going into the room where the victim and her brother Kingston were in there sleeping. He wore a grey sportswear and was in the room for about ten (10) minutes. She did not see what happened. But the accused came out when Johnston’s wife called for dinner time. When he came out of the room, she observed that his penis was erect and very tight and was protruding from the sportswear. When he sensed this he turned to face the wall. When his penis came to normal he sat down and ate dinner. During all this time Robert and Johnston was under the house and Dona Johnston’s wife was in the kitchen.

She recalled on 4th July 2007, she was upstairs at 3:00pm when Romelda came up after school and went to the room and slept. After that she noticed the accused entered the room and closed the door. He was in the room for ten (10) minutes and she heard Romelda, the victim crying. She called out to her and when she came out she went straight to the bathroom. He washed her and took her downstairs. She did not come to her but waited for the accused who by that time had gone to the shops to buy her ice cream and lollies. She went upstairs after she received the ice cream and lollies from the accused. She said at this time Johnston was at work.

She told Robert Abani about what the accused had done to the victim and requested him to question the victim himself. This was on the 10th July 2007.

She said no one forced or told her to come to Court and tell lies. She came to Court because she saw what happened.

She said she came to Court because of what the accused did to the victim. She did not come to Court to get back at the accused because he was having an affair with Robert’s first wife. She denied knowing that they were having an affair.

She did not go to the Waigani Police Station when Robert went to report Romelda’s case. She gave her statement later on 10th August 2007 at the Boroko Police Station.

Third Witness – Robert Abani (victim’s father)

Robert Abani is the victim’s father and also the cousin brother of the accused. The second witness, Ronda Borezi is his cousin sister. He said his daughter was born on the 2nd March 1999. She is now 10 years old. At the time of the offence she was 8 years of age.

His first wife left him on the 15th May 2007. She left at her own will. She left because he pressured her to find employment as he was finding it difficult to provide for the family’s welfare with what he earns. He knew of no other reasons why she left.

He said he is in Court because he lodged a complaint against the accused for what he did to his daughter. That is why he is charged. His cousin sister Ronda Borezi told him on the 10th July 2007 about what the accused had done to his daughter and for him to question his daughter about it. When he questioned his daughter she told him everything about what the accused had done to her.

On the 11th July 2007, he lodged a complaint at the Waigani Police Station. The accused was arrested on the 12th July 2007. This complaint was in relation to what the accused had done to his daughter. It was not in relation to an affair between the accused and his first wife. The accused was released after two days from Police cells for reasons known only to the Police.

He said he took his daughter to the University clinic for medical examination. Dr. Mano Mae conducted the examination.

He said the accused came to live with them in February 2007 whilst attending Institute of Public Administration doing a Diploma course in Public Administration. The course was for the duration of 2007. During the time that the accused lived with them, they had a peaceful and happy life. He held no grudges against the accused because they are cousin brothers.

He maintained during cross-examination that he had no argument with his wife when the accused lived with them. He went to Gordons Police Barracks where his wife was living to get her back but she refused. He still did not know why his wife left. He denied that the accused was his wife’s boyfriend. He denied bringing his wife to the Police Station to be detained with the accused because they were having an affair.

He denied having a meeting with his brothers and sisters and his wife’s relatives including the accused on the 18th July 2007 to resolve the problem between his wife and the accused. He said they had that meeting to have his wife returned back. But his wife had made up her mind not to return. He denied telling the accused that he will not leave him alone because his wife was having an affair with him. He said that in relation to his daughter’s case.

He did not know when the accused returned back to Chimbu and whether he was recalled back for duty on the 27th July, 2007.

When the accused was living with them, he had also his brother Johnston and his wife Dona living with them.

He did not tell or force his daughter to come to Court and tell lies to the Court. Neither did he make up all the stories.

Record of Interview (ROI) – Exhibit "A" & "B"

In his ROI, the accused did not admit the offence.

Statement of Susan Eric dated 23rd November 2007 – Exhibit "C"

In her statement, Susan Eric recalled Robert Abani lodging a complaint against the accused of molesting his 8-year-old daughter, Romelda Abani.

It was on the 11th July 2007 when she was on duty during 7am – 3pm shift. She advised Robert Abani to bring his daughter, the victim and the babysitter for interview. She also told him to take his daughter to the hospital for medical examination.

Medical Report by Dr. Mano Mao dated 17th July 2007 – Exhibit "D"

The medical report revealed a perforated (broken) hymen. The tissue covering present and/or intact in vagina, which was highly suggestive of sexual penetration. There were no other obvious tears or bruises around genital area and/or vulva.

Defence’s Evidence

The accused testified on his own behalf and the statement by Ronda Borezi dated 10th August 2007 was tendered, Exhibit "1" as prior inconsistent statement.

Reuben Giroro - Accused

The accused in 2007 was employed by the Correctional Services as a Prison Warder at Barawagi prison establishment, Simbu Province. In February 2007 he came to Port Moresby and enrolled at the Institute of Public Administration. He enrolled to do Diploma in Public Administration and sponsored by the Correctional Services.

Because he was unable to be accommodated at the Institute, he sought assistance from his cousin brother, Robert Abani. Robert Abani agreed to assist him so he lived with Robert Abani and his family including the victim at their North Waigani home and attend to his studies at the Institute. It was during his stay at Robert Abani’s home that he is alleged to have committed the offences against the victim for which he is now before this Court.

Basically the accused denied that he committed the acts of sexual penetration and sexual touching on the victim. That he did not bath the victim at all and never entered the room where the victim normally sleeps in with her father and her younger brother Kingston on the above dates.

On the 20th May, it was a Sunday, the accused went to the college library and went home at 5:00pm and stayed under the house where he normally does his studies and school work. He had a small table under the house for this purpose. He only went upstairs on the above date to sleep. He normally sleeps in the lounge/living room. He had his dinner downstairs. Johnston’s wife brought his dinner.

On Wednesday 4th July 2007, the accused came home after school at 3:00pm and stayed under the house looking at his school notes. He stayed under the house until 5:00pm when Johnston and his wife arrived from work. The victim, her brother Kingston and babysitter were upstairs playing and making noises. He never went upstairs. Only Kingston came downstairs saw him and went upstairs again.

He denied ever assisting the victim by washing and drying her. The victim was old enough to do that by herself. The victim’s father sometimes assisted his daughter.

That he was arrested on Thursday 12th July 2007 at Waigani TST and locked up in the cells at Waigani Police Station. The Police did not inform him why he was arrested. He was kept in custody from 12th July 2007 and released on Friday night on 13th July 2007. He was informed by Police that Robert went to get his wife to be locked up with him as they were having an affair. He was released because this was a civil family matter and must settle outside.

He was not arrested for what he allegedly did to the victim. He was arrested because Robert alleged that he was having an affair with his wife.

Robert’s wife left him and the children on the 16th May 2007. Before she left they were having arguments. He did not know what the arguments were all about. But on the 18th July 2007, he went with Robert and his brother and sister to Gordons Barracks to talk to Robert’s wife and to get her back. Robert’s wife refused to go back. He later learnt that Robert was informed by Ronda that his wife was having an affair with him.

His arrest on the 2nd November 2007 was because Robert wanted to get even with him. This was because when Robert’s wife refused to go back to him Robert said to the accused "My brother, I will not forget it. I will make sure justice is done."

The accused did not complete his studies. He went back to Barawagi on the 28th July 2007 after his immediate commander at Barawagi Prison requested him to go back. He did not hear anything from Robert after he left.

Statement by Ronda Borezi, dated 10th August 2007

Ronda Borezi was cross-examined about this statement that she gave to the Police. It was inconsistent with what she is telling the Court. In her statement to Police page 2, paragraph 2, she said Robert and Johnston were upstairs on the 20th May 2007 at 7:30pm. In her oral evidence she said they were downstairs. When cross-examined as to which is true, she said, what she is telling the Court is true.

ISSUES

The issues in this case are:

(a) Whether the accused sexually penetrated the victim? and

(b) Whether the accused sexually touched the victim?

There were no admissions but a general denial.

THE LAW

Under Division 2A. Sexual offences against children of the Criminal Code, Sections 229A and 229B provides 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.

(2) If a child is under the age of 12 years, an offender against Subsection (1) is guilty of a crime, .........

(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, ........."

"229B. Sexual Touching.

(1) A person who, for sexual purposes –

(a) touches, with any part of his or her body, the sexual parts of a child under the age of 16 years; or

(b) .........

is guilty of a crime.

(2) For the purposes of this section, "sexual parts" include the genital area, groin, buttocks or breasts of a person.

(3) For the purposes of this section, a person touches another person if he touches the other person with his body or with an object manipulated by the person.

(4) If the child is under the age of 12 years, an offender under Subsection (1) is guilty of a crime,...........

(5) 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,........."

The elements of sexual penetration of a child are:

(a) a person,

(b) engages in an act of sexual penetration,

(c) with a child,

(d) under the age of 12 years

The elements of sexual touching are:

(a) a person,

(b) for sexual purpose,

(c) touches,

(d) with any part of his body,

(e) the sexual parts of a child,

(f) under the age of 12 years.

ANALYSIS OF EVIDENCE AND THE LAW

The State has the onus of proving beyond reasonable doubt the elements of sexual penetration and sexual touching.

In order to determine whether the State has discharged that onus, the evidence of all the witnesses must be carefully analyzed and weighed. The evidence that are crucial to this case are that of the victim, Romelda Abani and Ronda Borezi for the State and the accused for the Defence.

Mr. Mesa, counsel for the accused submitted that the charge against his client is all made up because Robert Abani, the father of the victim wanted to make sure that his client gets into trouble because his client was having an affair with his former wife. That was the reason the wife left him and the children. Robert’s effort to bring his wife back was not successful because the accused was living with them.

This evidence is also important to the case which I must consider first. It goes to motive. That Robert had a motive to bring these charges against the accused. The accused denied outright that he committed the offences against the victim. That he heard Ronda Borezi saying that Robert’s wife will not come back because she is having an affair with the accused. The reason for the accused arrest on the 12th July 2007 was in relation to Robert’s complaint about the affair between him and Robert’s wife. It was not because he committed the offences against the victim.

The above motive was re-enforced by the fact that Robert was alleged to have told the accused after their negotiation of 18th July 2007 with the wife’s relatives failed to bring the wife back, that "my brother, I will not forget it. I will make sure justice is done."

Further, Mr. Mesa submitted that the motive was re-enforced by the fact that the accused was not charged when he was arrested on the 12th July 2007. He was released from custody after 2 days. He denied having an affair with Robert’s wife.

Against these, Robert denied having any knowledge of any affair between his wife and the accused. Ronda also denied having told Robert that the accused was having an affair with his wife. Both Robert and Ronda strenuously asserted during cross-examination that they are in Court because of what the accused did to the victim. They are not in Court so as to make sure that the accused gets into trouble because he had an affair with Robert’s wife.

Robert said he went to the Waigani Police Station on the 11th July 2007 to lodge the complaint about what the accused did to his daughter, the victim. This was after Ronda and the victim had told him on the 10th July 2007 of what had happened to the victim. He did not go to the Waigani Police Station to lodge a complaint against the accused and his wife having an affair. And the accused was released for reasons known only to the Police.

As to what he told the accused on the 18th July 2007, Robert denied that he was referring to his wife and the accused. It was related to his daughter’s case against the accused. They went to negotiate as to whether the wife could come back again to him and the children. Nothing was discussed about the affair between the accused and his wife.

The statement by Susan Eric, a police woman of Waigani Police Station reveals that there is record of a complaint by Robert Abani about his 8-year-old daughter on 11th July 2007. The complaint was about the accused molesting his daughter. This piece of evidence is crucial because it tells us that it is the only complaint that was lodged by Robert. There was no other complaint lodged in relation to an affair between the accused and Robert’s wife. When the accused was cross-examined if he had any documents to show the Court as to the complaint about his affair with Robert’s wife, he was unable to produce any.

The duration of the accused’s Diploma course at the Institute was to have lasted the whole of 2007. However, his abrupt departure back to Barawagi Correctional Institute is questionable. He said he received a direction from his immediate commanding officer to return back. When cross-examined as to whether he is able to show any written direction, he was unable to produce any.

To me, it is clear that there was no complaint lodged by Robert at the Waigani Police Station on the 11th July 2007 complaining about the accused having an affair with his wife. The only complaint was the one recorded by Police woman Susan Eric and it was about what the accused did to the victim. And Robert did lodge this complaint.

The victim, Ronda and Robert all testified that they are not in Court to tell lies. That no one told them or forced them to come to Court to tell lies about the accused. Even under intense cross-examination they maintained their stand.

I am not persuaded by the Defence that the accused was arrested on the 12th July 2007 after Robert complained on 11th July 2007 of him having an affair with Robert’s wife. And the victim, Ronda and Robert are in Court today because Robert failed to secure a prosecution against the accused. This story about the accused doing bad things to the victim is a lie. They are in Court now to get even with the accused. All these I find not convincing.

I find the victim, Ronda and Robert are here in Court following a complaint by Robert at the Waigani Police Station on the 11th July 2007 about what the accused allegedly did to the victim between 1st May and 31st July 2007 at Robert’s house at North Waigani.

Having said the above, has the State proven beyond reasonable doubt that the accused sexually penetrated and sexually touched the victim?

It is not disputed that the victim at the time of the offence was under the age of 12 years. She was 8 years old.

The accused in his evidence denied sexually penetrating the victim by pushing his fingers into her vagina and denied sexually touching the victim by fondling her breasts. He denied having any part in bathing the victim between 1st May and 31st July 2007.

On the 20th May 2007, the accused went to the library at the Institute and came back home at 5:00pm. He stayed downstairs under the house studying. He had his dinner under the house. He only went upstairs to sleep and did not enter the room where the victim sleeps with her brother and father.

On the 4th July 2007, the accused came home after school at 3:00pm and stayed downstairs studying until 5:00pm when Johnston and his wife came home after work. The victim, her brother Kingston and Ronda were upstairs as he heard them making noises.

In direct conflict is the victim’s evidence that the accused went into the room where she sleeps with her brother and father and pushed his fingers into her vagina, fondled her breasts and kissed her. He did this many times. She did not tell anyone because he told her not to and that he bought ice cream and lollies for her.

She said in one of those times her aunty and babysitter Ronda saw her and the accused come out of the room and he took her to the shower to wash her face. I believe she is referring to the 4th of July 2007. He then bought her ice cream and lollies.

Ronda’s evidence is that she saw the accused many times touching the victim’s breasts whenever he baths her under the mango tree. She normally watched him from the window upstairs. At times he would normally go into the shower with her to bath her.

On the 20th May 2007, she said the accused went upstairs at 7:30pm and entered the room. He locked the door as he went in. He stayed in the room for 10 minutes. When Johnston’s wife called him for dinner, he came out of the room. When he came out she noticed his penis was erect and very tight. When he sensed that she was watching, he turned to the wall until his penis came to normal and he sat down and ate dinner. He was wearing a grey sportswear. At that time Johnston’s wife was in the kitchen they were all upstairs, Robert, Johnston and Johnston’s wife.

On the 4th July 2007, Ronda was in the house with Kingston, the victim’s brother. Romelda the victim arrived home at around midday and Ronda told her to have her bath and to sleep. The accused came home at about 3:00pm. After he left his bag in the living room he went to the room where the victim was sleeping and locked the door. She waited and pressed her ear against the door and could hear Romelda making small noises. She called to the victim and both the accused and victim came out from the room and went into the bath room. They later went to the stairs and whilst the victim sat on the stairs the accused went and bought chocolate and lollies.

On the 10th July 2007, she reported the matter to Robert and asked him to question the victim.

It is clear there are two versions of the story. The accused version and the version by the victim and Ronda. The credibility of the witnesses are also taken into account when considering who is telling the truth or which version of the story is to be believed. As Davani, J said in The State v. Jacob Dugura Roy (2007) N3137:

"...... Authorities warn that extreme caution must be exercised when the judge is dealing with the issue of the lying and truthful witness. There is no rule of law that says that a party that calls for more witnesses and who gives consistent and almost identical stories must be believed and a party who calls only one witness must not be believed.

There is no rule of law that says that where two or more persons tell the same story, that story is the truth as opposed to a single witness. And in a criminal case where there is only one witness in his own trial, that makes his chances of being believed non-existent. However, the authorities say that ten people giving the same story who appear to be quite convincing could all be lying. On the converse, an accused may be the only witness in the defence case and may not be as smart or convincing as the prosecution witness, yet he could be telling the truth."

In the present case, the evidence by the victim and Ronda are consistent with each other. There are no inconsistencies in their evidence.

The victim’s evidence basically reveals what the accused did to her. I find her evidence to be straight forward. The victim was put through heavy cross-examination but she maintained her story that she stated in examination in chief. She answered questions put to her by both counsels with clarity and certainty. Her demeanour in Court was excellent. At one stage she broke down crying, but I believe that is expected of a 10 year old child being her first time to be confronted by Counsel in Court. But that did not create doubts in her evidence at all.

The victim was put through competency test on oath and she passed it with flying colours. That she was found to be competent to give evidence. She understood that if she tell lies to the Court, she could be punished. I find the victim to be credible and truthful witness.

The witness Ronda testified her seeing what the accused did to the victim. This is in relation to seeing the accused bathing the victim under the mango tree and touching and fondling the victim’s breasts. She also saw the accused going into the room where the victim sleeps and seeing him coming out of the room on the 20th May and 4th July 2007. On one occasion she observed the accused’s penis erect and tight and on one occasion she observed the victim and the accused coming out of the room and went to the bath room.

Her evidence corroborates the victim’s evidence. That the accused sexually penetrated and sexually touched the victim on many occasions. She observed that the accused was always available when the victim goes to have her bath. He takes her towel and follows the victim to the bathroom to wash and wipe her.

As a babysitter she was all the time in the house and had the opportunity to observe what was happening. There is no evidence to suggest that she was not in the house on any occasion.

Her statement to the Police was tendered as prior inconsistent statement. She stated in her statement to the Police that on 20th May 2007 at about 7:30pm, she was upstairs in the house with Robert, Johnston and Johnston’s wife. In her oral evidence, she said Robert and Johnson were downstairs. When cross-examined as to which statement is true, she said what she is telling the Court is true. In my view this inconsistency does not affect the truthfulness of the State’s case. In Michael Tenaram Balbal v. The State (2007) SC860, the Supreme Court was of the view that:

"Thus in our view, a prior statement that omits other evidence but included subsequently in the oral testimony of a witness, does not amount to prior inconsistent statement."

I find the witness’ demeanour in the witness box to be also good. She answered truthfully all the questions that were put to her by both Counsels. She was clear in her answers. Although at times she was emotional and shouted, she had a reason to be emotional because of what the accused had done to the victim. She was the one that observed all these. There is no reason for her to come to the Court and lie. This witness is also credible and truthful.

As earlier stated, this witness’s evidence corroborates the victim’s evidence. The medical report that was tendered by consent also corroborates the victim’s evidence in so far as sexual penetration is concerned. The medical report reveals that there was sexual penetration.

The evidence of Robert Abani is relevant in so far as he lodged a complaint to the Waigani Police station on the 11th July 2007 after the victim and Ronda told him of what had happened to the victim. It was the only complaint from Robert. There was no other complaint in relation to an affair between the accused and Robert’s wife. I find no inconsistency in his evidence. His demeanour in the witness box was good. He answered clearly and precisely all the questions that were put to him. I observed he became emotional and at times very loud in his response. But he had a reason to behave in that manner because he was concerned about his daughter’s case, like any father in his shoes would do. I find that he is a credible and truthful witness.

The issue of the delay in the victim’s complaint was raised by the Defence. It was some two (2) months before the victim told her father after Ronda asked the father to question the victim. Is this a recent complaint and can it be accepted as credible?

This issue was discussed by the Supreme Court in Michael Teneram v. The State (supra). In their discussion they referred firstly to the case of The State v. Stuart Hamilton Merriam [1994] PNGLR 104. In this case, Sakora J, convicted the accused even though the victim complained after 10 years of the date of the offence. This was a case of sodomy against an 8 or 9 year old boy. His Honour was of the view that in cases of sexual offences against victims of tender age, it is not expected of them to immediately lodge a complaint for the reason that they would not be in a position to appreciate or know that what was being done to them was wrong. But the complaint must be made at the earliest or first opportunity that presented itself.

Secondly, the case of The State v. Moki Lepi, (No. 1) (2002) N2264 was also referred to. The victim who was 5 years old at the time of offence and 9 years old at the time of trial did not complain to anyone until some 3 years after the offence was committed. The accused was convicted and imprisoned by Kandakasi J. His Honour accepted the victim’s testimony and held that the victim did not appreciate what the accused did to her was wrong until her mother educated her on the bad sexual things men or boys could do to girls. This was the first reasonable opportunity that avail itself.

I find the victim in the present case being a tender aged girl of 8 years did not appreciate the fact that, what the accused did to her was wrong. The first opportunity avail itself after 2 months when she told her father. In the above cases, the first reasonable opportunity presented themselves after 10 years and 3 years respectively. I accept the complaint by the victim as credible.

The accused denied outright any involvement in the commission of the crime. His evidence merely is painting a picture that what he is now in Court for was not the actual reason. That the victim, Robert and Ronda are in Court because, Robert failed to secure a prosecution involving the accused and Robert’s wife having an affair. As I have already found, this is not sufficient reason for them to make up the claim and testify against the accused. He did not provide any credible evidence to contest the overwhelming evidence put forward by the State. Although his demeanour was calm and collected in the witness box, I do not find him to be credible and truthful. His evidence relating to his arrest is inconsistent with the Statement by Police woman Susan Eric. He was arrested on 12th July 2007 for what he did to the victim and not for an affair with Robert’s wife.

After having reviewed all the evidence and based on the foregoing discussions, I find that the State has proven beyond reasonable doubt all the elements of the offences. The accused sexually penetrated and sexually touched the victim. The accused committed the offences as charged in the indictment. The accused is convicted as charged.

_________________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused