State v Minja (No.1) [2011] PGNC 64; N4273 (17 June 2011)

N4273

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR 900 OF 2008

STATE

V

KENNETH MINJA (No. 1)
Accused

Wewak: Ipang AJ
2011: 10, 14 & 17 June

CRIMINAL LAW – Rape – not guilty plea – trial – Criminal Code Act (as amended) – section 327(1) & (2)

CRIMINAL LAW – Alternate count – sexual penetration – child under 16 years – Criminal Code (Sexual Offences & Crimes Against Children) Act, 2002 – section 229(A)(1)

CRIMINAL LAW – Rape – evidence of consent – unlawful carnal knowledge of a child under 16 years – testimony of father on age of his child

Cases Cited:
Papua New Guinea Cases

State -v- Ogadi Minjipa [1977] PNGLR 293
State v David Sopane, CR No. 818 of 2005 (N3024)

Overseas Cases

Brown v Dunn (1893) G.R. 67 (HL)

Counsel

Mr. F. Popeu, for the State

Mr. J. Kolkia, for the Accused

DECISION ON VERDICT

17 June, 2011

1. IPANG AJ: The accused Kenneth Minja pleaded not guilty on one (1) count of rape pursuant to Section 437(1) & (2) of the Criminal Code Act, chapter 262 (as amended) and an alternate count of sexual penetration of a child 'DS' under the age of 16 years pursuant to section 229A(1) of the Criminal Code (Sexual Offences & Crimes Against Children) Act, 2002.
   
2. The State alleged that the accused was at Sotmeri village, Wosera-Gawi Area on the 11 November, 2007. It was alleged that at 8.00 pm on that date as mentioned, the complainant Devis Solomon was at her sister's house eating sago and fish. She was sitting on the step of the house. The accused was alleged to have approached the complainant from her back, grabbed her, covered her mouth with his hands, pulled her away from the house into the bushes. It was alleged the accused was drunk at that time.
   
3. In the bushes, it was alleged that the accused threatened the complainant with a small bayonet knife, forced her on to the ground and forcefully removed her clothes. It was also alleged that the accused removed his own clothes and then sexually penetrated the complainant's vagina with his penis. After the accused released his sperm into the complainant's vagina, it was further alleged that the accused forced the complainant to wear her clothes. The accused then forced her to walk to the side of the river, forced her on the canoe. He then paddled the canoe to an island, where the accused has his house there.
   
4. After reaching the island, it was alleged the accused took the complainant to his house and again forced her and had sexual intercourse with her without her consent. It was alleged the accused had a knife in his possession all the time and that he used the knife to threaten the complainant. The complainant alleged that during the course of his threats, he stabbed her at her back.
   
5. The State alleged that after the complainant failed to return to the house, the father went looking for her. From information, the father found out that the complainant was at the accused's house. A week later the complainant was brought to the Gawi Health Centre and later to Maprik Police Station.
   

State's Case

6. The State has tendered by consent the Record of Interview (ROI) conducted on the accused by Detective Constable Don Anikata on the 2 April, 2007. The English version of ROI is marked as Exhibit "B1" and the Pidgin version is marked as "B2" and the Medical Report as "B3".
   
7. The State then called three (3) of its witnesses. They are the complainant 'DS' herself, the complainant's father Solomon Maruk and the Health Extension Officer (HEO) Veronica Yawi, based at Gawi Health Centre. She was the officer who examined the complainant and later referred the matter to the police at Maprik Police Station.
   

Preliminary Application

8. Prior to its first witness the complainant giving evidence in Court, the state prosecutor Mr. F. Popeu made a preliminary application before the Court basically seeking to have any persons not having any connections with this case to leave the Court room. His application was made pursuant to section 37(b)(i)(b) of the Evidence Act and section 37(b)(i)(b) & (2)(f) of the Evidence Act. Defence counsel raised no objection and the application was granted.
   
9. The second preliminary application was made pursuant to section 37(B)(i)(b)(2)(a) special measures order for the use of screen to prevent the accused from seeing the complainant and a vice versa.
   

Complainant 'DS'

10. The complainant gave the following evidence in court. She said on the 11 November, 2007 she was sitting on the step of her sister's house eating sago and fish. It was around 8.00pm.
    
11. She went on and said the accused was drunk, came from her back and covered her mouth with his hands and pulled her off. She said he pulled her to the nearby bushes. She said the accused threatened her with a knife, pushed her to the ground. She said he forced her clothes off and he pushed his penis into her vagina. The complainant said she felt pain and she shouted. She said she felt pain inside her vagina. After he released his sperm into her vagina, the accused threatened her, told her to get up and wear her clothes, which she said she did.
    
12. Complainant said after she wore her clothes, the accused threatened and got her to walk to his canoe. The accused paddled the canoe and both crossed the river to an island, where the accused's house is located. At the accused's house, the complainant said the accused did the same thing to her by inserting his penis into her vagina and released his sperm into her vagina.
    
13. She told the Court that at all the time when the accused had sexual intercourse with her, she had never consented and that the accused was threatening her with a small bayonet knife. That was the reason why she could not shout or attempt to escape.
    
14. She also said at one stage in the house on the island, the accused told her to marry him but she refused so the accused got the knife and stabbed her left shoulder at the back. She showed the scar to the Court.
    
15. She was confused with her date of birth but said in 1992, she was 15 years and she was born at Boram General Hospital. She said her hospital card was lost.
    
16. Complainant said she was at the island and her father started looking for her. She said her father got some information that she was on the island so the father paddled to the island. The complainant's father learnt of the complainant being on the island through the accused brother's wife. The complainant said her father went and got her. She said she told her father what happened so they went and reported the matter to the police.
    

Defence on Cross-Examination

17. When cross-examined by the Defence Counsel the following were revealed;
    
    • (a) The complainant is the eldest child in the family;
      
    • (b) She was sitting on the second step of the ladder at her cousin's sister's house;
      
    • (c) No one was inside the house except her sister;
      
    • (d) There were houses closed to her sister's house;
      
    • (e) There were people in the houses nearby;
      
    • (f) She said she could not scream because when the accused came and grabbed her, the accused covered her mouth and she found it difficult to scream;
      
    • (g) She denied having consented to sexual intercourse;
      
    • (h) She admitted been forced into the canoe;
      
    • (i) She said accused paddled the canoe and she was seated closed to him as the canoe was a small canoe;
      
    • (j) She said she did not bother to escape as the accused had the knife and threatened her;
      
    • (k) On the island, the accused parent's were there. Se said she saw them but they did not see her. She said she did not scream because the accused threatened her with the knife;
      
    • (l) She said she did try to scream when the accused raped her in the house but the accused covered her mouth with his hands;
      
    • (m) She said she was examined at the hospital and it was her first time to have sexual intercourse as she said she felt pain all-over;
      
    • (n) She said the accused was not her boy-friend, he is a married man;
      
    • (o) She said the accused never went with her to the house; he lied, he was drunk, he is an ancillary policeman and he did that to her;
      
    • (p) She said both never had dinner together;
      
    • (q) She said in the house, the accused never gave her towel and soap;
      
    • (r) She said she was not naked when accused went in, she said the accused forced her to remove her clothes and was naked.
      

Witness Solomon Maruk

18. Solomon Maruk said he is from Sotmeri village, Pagwi and has lived in the village since his birth. He said he is married and has 13 children. He said the complainant is his biological daughter and was born on the 3 December, 1992. He said she was born at Boram General Hospital.
    
19. This witness told the Court that on the 11 November, 2007 at 8.00pm, he gathered all his children to pray before going to sleep and he realized his daughter 'D' wasn't there. He said he looked for her at his younger uncle's house and he looked everywhere in the village but could not locate her. He said he checked all the canoes, but the canoes were there. He said he shouted but there was no response.
    
20. He said the next morning; he was informed that 'D' was on the island with the accused. He said he got on the canoe, paddled to the island and shouted; "you want to be the fourth wife" and he said he told her to leave the place. He said after the complainant came and told him what had happened to her; he brought her to the police. He said his wife went to Kubalia so he took 'D' to the police station three (3) days after the incident.
    

Defence on Cross-Examination

21. The witness said he was at a small jetty on the island and he shouted. No one on the island bothered to question him as they knew his daughter was there. He said he had not arranged for his daughter to marry anyone. He said he took his daughter to the police station after three (3) days as he waited for his wife to come back from Kubalia. He said when his daughter returned, there was a cut at her back and her jean trousers was full of mud. He said the accused is not her daughter's boy-friend.
    

Witness Veronica Yawi (Health Extension Officer)

22. This witness said in 2007, she was based at Gawi Health Centre as the Health Extension Officer. She said she has been working as a Health Extension Officer (HEO) for 16 years. She said she can recall, she conducted an examination on the complainant. She said 'D' fronted up at the Health Centre on the 19 November, 2007.
    
23. She said on examination, she discovered she (complainant) was 15 years, in no distress; her vagina was inflamed with pussy discharge, swab was taken and sent to Maprik Hospital's Laboratory for microscopic examination. The witness said the laboratory result revealed "no spermatozoa but moderate pus cells and few epithelial cells presence.' She was treated for 5 days.
    
24. The witness said, 'the presence of epithelial and pus cells are due to inflammation on the vagina. She said the life span for the spermatozoa is 48-72 hours (2-3 days) therefore; the result can be negative at that time the examination and swab was taken. She thus concluded that, "I would conclude that there was some sort of penetration in to the vagina causing presence of epithelial cells and pus cells." She said inflammation means "forced breathiness and soreness." She said some penetration means "penal penetration." She said for a young girl like the complainant there can be no other causes.
    

Defence Cross-Examination

25. The witness said she does not have any documents to prove the complainant was 15 years but she says the complainant's father told her, she (complainant) was 15 years old. She said her hymen was torn but she did not include it in the report.
    

Defence Case

Accused's Evidence – 11 June, 2011

26. The accused gave evidence that on the 11 November, 2007 soccer game started. He said he was in his house in the village and paddled his canoe across the river to the other side of the village and parked his canoe. He said he then walked to the soccer field. He said the game started at 8.00 am and he was playing goal-keeper for his team.
    
27. Accused said the complainant 'DS' brought a plastic of water to him. He said she came and sat at the back of him. He said he played and drank that water. He said the game ended at 3.00 pm. Joycelyn Solomon, the complainant's small sister came and got the complainant and the accused and they all went to the house. The accused said the complainant and him sat on the ladder.
    
28. The accused said 'D's mother cooked food and they ate. He said while eating the food, he saw his old mother walk down the road. He said he then got his old mother and they both crossed the river on his canoe and went to the island.
    
29. He said he left his mother at her house and saw 'DS' standing at the back of him. She came on her own canoe the accused said with his food. He said he went to his house and Devis left his food at his mother's house.
    
30. After she left the accused's food at the accused mother's house, the accused said she went to his single house. Accused said she came inside his house. He said she wanted to take a shower (bath) so he gave her a laplap, soap and a towel and he said he left. But he said the complainant called out and said, "Kenneth, come up here." The accused said when he went up to the house, the complainant was naked already. Accused said, he asked her to have sexual intercourse and they both had sexual intercourse.
    
31. Accused continued and said that after sexual intercourse, complainant got the towel & soap and had her bath in the Sepik River. She changed her clothes, got on to the canoe, crossed the river and went to her parent's house.
    
32. He said the next morning, her father got Pagwi police officer and they picked him up at Sotmeri. He said they called him rapist and assaulted him. He said her father has plan for her daughter to marry another man. Accused said he is the second husband. Her first husband is from Kanganamun village.
    
33. The accused said the complainant was his girl-friend since the start of the year 2007. He said her mother, brothers and sisters knew of their friendship but not the father as he was working on the road at Pagwi Highway. He said he visits the complainant at her house plenty times and likewise, complainant visits his parents. He said on the 11 November, 2007 it was not the first time they had sexual intercourse. He said they had sexual intercourse plenty times and that she walked around like a woman. Accused said 'D' was not under 16 years as she was a big lady, her actions were of an elderly lady – she walked and talked like an elderly woman.
    
34. In the Record of Interview (ROI) conducted and in pidgin version in Q.32, You denied sexual intercourse with 'D' in your house. Accused said "no". He said no sexual intercourse on Sunday. Accused counsel put to the accused that he just told the Court, he had sexual intercourse with 'D' on Sunday, and accused said that's true.
    

State in Cross-Examination

35. Accused said 'D' and him were married in 2007-2008 when 'D's father reported him to the police. He said he met with 'D's family most of the times in 2007-2008. He said he met 'D's mother most of the times but he did not bother to ask 'Ds' mother of 'D' date of birth. The accused also denies knowledge of the Record of Interview.
    
36. From the above facts presented by State and the Defence, the following can be categorized or grouped in to the facts not disputed and facts in dispute:
    

Facts not Disputed

(a) Both the accused Kenneth Minja and the complainant 'DS' are from Sotmeri village, Wosera-Gawi and both live in the village.

(b) On the 11 November, 2007 both the accused and the complainant were in the village .

(c) It is not disputed that the accused family live on the small island on the other side of the Sepik river or one of its tributaries and to get to his house from the main village, a canoe is normally used to paddle across.

(d) On the 11 November 2007, the day an act of sexually intercourse took place between the accused and the complainant was at the accused house at Sotmeri village.

(e) After the incident, the matter was reported to the police and the complainant was examined at Gawi Health Centre.

Facts in Dispute

(a) Accused took complainant by force from the steps of her cousin sister's house at night on the 11 November, 2007 and forced her in the nearby bushes.

(b) In the bushes he (accused) forced her on to the ground, forced her to remove her clothes and sexually penetrated her without her consent.

(c) That the accused used a knife threatened the complainant and had sexual intercourse with her.

(d) After having sexual intercourse with her, he forced her at knife point into a small canoe and paddled to the island and then to his house.

(e) Inside the house, the accused sexually penetrated her with force and threat without her consent.

(f) Complainant stayed over-night and the next day her father went looking for her and she was brought back to the main village.

(g) At the time, the accused had sexual intercourse with the complainant at the accused's house; the complainant was under the age of 16 years.

Analysis of Evidence

State

37. The only inconsistent evidence that can be found in the State witnesses is on the date the matter was reported to police and for the medical treatment and examination. The complainant says the matter was reported on the next day 12 November, 2007, complainant's father said three (3) days later and the Health Extension Officer (HEO) stated it was 8 days later. On this inconsistency the State submitted that it was 4 years ago and there is bound to be a mistake. However, it was submitted that the same day the medical examination was done; the matter was report to the police.
    
38. In this regard I would accept the underlying reason that the incident happened 4 years ago and there is bound to be such a mistake but there is still consistency that the matter was reported.
    
39. Otherwise, this Court agrees with the State Prosecutor that there is consistency in the evidence given by the complainant and her father. These are the following that this Court finds:-
    
    • (a) It was around 8.00 pm the accused forcefully had taken complainant into the nearby bushes, the father said it was around that time he gathered his children for prayer before they slept, that he realized the complainant wasn't around;
      
    • (b) Inside the bushes the complainant said the accused threatened her with a knife, forced her on to the ground, removed her clothes and then sexually penetrated her without her consent. Complainant's father Solomon Maruk during cross-examination told the Court that when his daughter came back she had mud on her jeans.
      
    • (c) Still on the evidence that complainant in the nearby bushes the accused threatened her, forced her onto the ground, threatened and forced her clothes off and sexually penetrated her vagina. Complainant said she felt pain in her vagina. Ms. Veronica Yawi the Health Extension Officer who examined the complainant said, "the presence of epithelial and puss cells are due to inflammation on the vagina. She concluded that, there was some sort of penetration into the vagina causing the presence of epithelial and pus cells. She also said inflammation was caused by forced breathiness and soreness. She said some penetration means "penal penetration."
      
    • (d) The age of the complainant. During evidence the complainant said she can not recall the day, the month she was born but she said she was born in 1992 at Boram General Hospital. When the complainant's father gave evidence, he was more detail in that he said his daughter was born on the 3 of December, 1992. The father confirmed this to the HEO, Veronica Yawi when the complainant was taken there for medical checkup and treatment. This then was noted on the complainant's medical report that she was 15 years old.
      
    • (e) The complainant says she was taken to the accused house by the accused on the 11 November, 2007. The next day 12 November, 2007 the father went to look for her and found her there. The father who gave evidence confirms that aspect of evidence.
      
    • (f) Complainant said at the house on the island, the accused asked her to marry him but she refused so the accused got the knife and cut her back left shoulder. During cross-examination, the father said when his daughter returned there was a cut at her back.
      
    • (g) The complainant said the accused forced her on to his canoe and paddled to the island. The complainant's father said when he realized her daughter was not around; he checked all the canoes, the canoes were there.
      
    • (h) The defence counsel raised the issue that the complainant said her father went to the accused's house, the next day and brought her back. Counsel said this was contrary to what the father said he went there and told the complainant to leave the accused place. The father said the accused brought the complainant back. This issue should not be a genuine one as the complainant made herself clear in that she said, "my dad went and got me. So I told my dad what the accused did to me." The complainant did not say her father went to the accused house.
      
    • (i) The victim did not say she was born in November, 1992. She said she cannot recall the day and the month but it was in 1992. Complainant's father said on the 3 December, 1992.
      

Defence

(a) During the Record of Interview conducted by Constable D. Anikat with the accused, Question 32 was put to the accused: Q.32 – did both of you have sex at the house? The accused answered "no". In Court, the accused told the Court he had sexual intercourse with the complainant in the house.

(b) In the ROI conducted, in question 26 "did 'D' sit on the step of the house? Answer "no". The accused gave evidence that the soccer game ended at around 3.00pm. Joycelyn Solomon, the complainant's small sister came and got the accused and the complainant to the house. The accused told the Court that the complainant and him sat on the ladder. In ROI accused denied complainant sat on the step and in Court, the accused admitted.

(c) In Examination-In-Chief the accused said the matter was reported to Pagwi Police by the complainant's father on the 12 November, 2007. However, during cross-examination the accused said it was in 2008, when the complainant and him, were about to get married.

(d) Issue of ROI. Whether ROI was been conducted? During examination-in-chief the accused seem to suggest there was no ROI conducted. However, the ROI was signed and tendered in Court by consent. The implications are these;

(i) The accused was trying to say the ROI was conducted, but the answers he gave were false;

(ii) That the ROI was conducted but nothing was put down in writing. Defence Counsel submitted that ROI was conducted but the accused gave false answers.

Credibility of Accused

40. The accused is obviously not a credible witness. He has changed his story, given during the Record of Interview (ROI) conducted and the evidence he gave in Court. The ROI was formally tendered as evidence in Court and as Exhibit – English version marked as "B1"and for Pidgin version as "B2". The accused seems to be contradicting himself and been inconsistent.
    

Rule in Brown v Dunn (1893) 6.R.67 (HL)

41. Basic rule or principle in Brown v Dunn is that defence need to put its case to the State so that the state is aware of what to expect. There should not be an "ambush" by the defence. See the case of State –v- Ogadi Minjipa [1977] PNGLR 293. In this case Prentice DCJ (as he then was) made this remark..."that defence counsel do their clients no good by not opening in cross –examination of state witnesses the version upon which the defence relies. If it is to be suggested that state witnesses are lying or mistaken or failing accuracy of recollection, they should be questioned to that effect and given an opportunity to explain. You cannot correctly professionally keep your own case secret unit your client gives evidence. Nor can you expect that his story will receive much credit – if this course is taken."
    

The following evidence by the Defence were not put to state witnesses and are now considered as breach in the rule in Brown v Dunn (supra).

(a) The complainant brought water to the accused at the soccer field. The complainant sat at the back of the accused who was playing goal keeper;

(b) Joycelyn Solomon, the complainant's small sister came and got the accused and the complainant into the house, both complainant and accused sat on the steps and ate food;

(c) Complainant's mother cooked the food;

(d) Complainant was previously married and has a first husband and the accused is the second husband;

(e) Complainant and accused had sexual intercourse plenty times and not only on one occasion on the 11 November 2007.

(f) That the accused makes regular visits to the complainant's house and family. The complainants' family, her mother, brothers and sisters knew of the accused except the complainant's father who works at Pagwi highway road.

(g) That the complainant goes and visits the accused's parents regularly.

(h) That the accused left victim's house and paddled his canoe to the island with his old aged mother. That the complainant paddled her own canoe and followed the accused later to the island with the accused's food.

(i) The evidence that complainant walked around like a woman and has another boy-friend in the village. The complainant was a big lady and her actions were of an elderly lady. How she walks and talks, she is a big lady.

Case: State v David Sapone (2006) N3024

42. In making his submission that the complainant who was on the island, could quite easily scream for help when the accused parents were there, counsel referred to the case of State v David Sapone (2006) N3024. In this case the Court acquitted the accused on the basis that they had sexually intercourse by consent because the victim at that time had the opportunity to scream or call for help to two of her friends who were drinking with them out on the verandah of their house or the security guard who was at the gate of the compound but the victim did not call for help.
    
43. The above case can be contrasted to the present case as in the present case the victim said the accused had a bayonet knife and had threatened her so she could not scream or do anything. There were opportunities present for her to call for help, however with threats and use of knife, the victim could not do much.
    

Law

44. The accused has been charged with one count of rape, an offence under section 347(1) & (2) of Criminal Code Act (as amended) and an alternate count of unlawful carnal knowledge of one 'DS' a child under the age of 16 years namely 15 years old pursuant to section 229(A) Criminal Code Act (Amended) (Sexual Offences & Crimes Against Children Act, 2000):-
    
    • (j) Under Section 437(1) & (2) of the Criminal Code (Sexual Offences & Crimes Against Children) Act, 2000 for the State to prove that; the accused raped the victim; and that
      

(ii) Accused sexually penetrated the victim without her consent. The prosecution always bares the burden proving its case beyond reasonable doubt. I am mindful of that and the defence counsel has drawn my attention in his submission in paragraphs 3, 3.1, 3.2, 3.3 and 3.4 on pages 5 & 6 respectively.

45. The rule in criminal case is that the legal burden of proving every element of the offence or the charge lies on the prosecution. In this present case I am satisfied the prosecution has proven its case beyond reasonable doubt that the accused had sexually penetrated the complainant 'DS' on the night at 8.00 pm on 11 November, 2007 in the bushes at Sotmeri village without her consent. I find the accused guilty and convict him of rape under Section 347 (1) & (2) of the Criminal Code Act (as amended). Having found him guilty of rape, I do not have to deliberate on the alternative count of sexual penetration of a child under the age of 16 years pursuant to Section 229 A (1) of the Criminal Code (Sexual Offences & Crimes Against Children) Act 2002.
    

____________________________________
Public Prosecutor: Lawyer for the State

Paraka Lawyers: Lawyer for the Accused