N6179

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 466 OF 2015

THE STATE

V

KUNMA BINGE

Cannings J

Ramu:
2015: 16 & 17 July
Madang:
2015: 6 August, 23 September,
2016: 12 February

CRIMINAL LAW – sexual offences against children – engaging in act of sexual penetration with child under the age of 16 years, Criminal Code, Section 229A(1) – trial – elements – whether the accused sexually penetrated the complainant.

The accused, an adult male, was charged with one count of engaging in an act of sexual penetration with a child under the age of 16 years, contrary to Section 229A(1) of the Criminal Code, a 12-year-old boy. The accused pleaded not guilty so a trial was held. The age of the child (the complainant) was not contested. He gave evidence that the accused anally penetrated him. 

Held:

(1)	The two elements of an offence under Section 229A (1) are that: (a) the accused engaged in an act of sexual penetration with another person; and (b) the other person was a child under the age of 16 years.

(2)	The State proved beyond reasonable doubt that the accused sexually penetrated the complainant by introducing his penis into the complainant's anus, as: (a) the complainant was a reliable and honest witness; (b) there was evidence of a prompt complaint; (c) inconsistencies in the evidence of State witnesses were not significant; (d) medical evidence was consistent with sexual contact being made; (e) no other explanation of how the complainant could have been penetrated; (f) the accused was an unconvincing witness.

(3)	The accused was found guilty, as charged. 

Cases cited

The following cases are cited in the judgment:

Devlyn David v The State (2006) SC881
Glen Otto Kapahi v The State (2010) SC1023
Java Johnson Beraro v The State [1988-89] PNGLR 562
Michael Balbal v The State (2007) SC860
Rolf Schubert v The State [1979] PNGLR 66
The State v Arnold Kulami (2009) N3632
The State v Polikap Lakai (2007) N3153
The State v Stuart Merriam [1994] PNGLR 104

TRIAL

This was the trial of an accused charged with one count of engaging in an act of sexual penetration with a child under the age of 16 years.

Counsel

M Pil, for the State
J Morog, for the accused

12 February, 2016

1. CANNINGS J: The accused, Kunma Binge, an adult male, is charged with one count of engaging in an act of sexual penetration with a child under the age of 16 years, contrary to Section 229A(1) of the Criminal Code. The State alleges that the accused, aged in his 30s, committed the offence against the complainant, a 12-year-old boy, "G", at about 12 noon on Wednesday 7 January 2015 at the Ramu Agri Industries Limited (RAIL) Estate, at Gusap, near Ramu, Madang Province. It is alleged that he penetrated the boy's anus with his penis. He pleaded not guilty so a trial was held.

2. The State's case is based on the oral evidence of the complainant and two other boys and the report of a medical examination of the complainant. The accused gave sworn evidence in his defence.

UNDISPUTED FACTS

3. A number of undisputed facts have emerged from the evidence:

•	In January 2015 the complainant was 12 years old. He lived at Ramu with his parents who worked for RAIL. He has lived there for many years. At the time he gave evidence, in July 2015, he was in school, doing grade 3.

•	The accused came to Ramu only a few days before 7 January 2015 from his home in Simbu Province, looking for work. At Ramu he was staying with his relatives who work for RAIL. 

•	The accused and the complainant did not know each other. They met in the morning of 7 January 2015 at the part of the RAIL Estate called 'Gusap Oil Palm division 2', where the complainant lives. The complainant left his house and walked into the plantation as he wanted to talk to his father about something and his father was working in the plantation. On the way he came across a group of Simbu men, including the accused, roasting cassava. The accused gave him a piece and asked him if he could show him where the river was, as he wanted to wash in the river. 

•	The complainant walked off with the accused, showing him the way to the river. Once they got there, the complainant left, in search of his father.

•	The complainant could not find his father. Then he went back to the river.

•	There is conflicting evidence about what happened when the complainant went back to the river but it is agreed that (a) at one stage the accused asked the complainant if he liked to eat meat, and the complainant said yes, and the accused said that his house people had cooked some meat and that he would get some for the complainant, and (b) there was a period of at least several minutes duration, that they were alone. 

•	Straight after the period that they were alone the complainant left the river and walked away and met a group of boys and reported to them the allegation that he had just been sexually penetrated by a Simbu man. The complainant then went back to the river with those boys and some other persons in the vicinity who heard about the allegation. That group of persons confronted the accused and physically assaulted him and they took him to a nearby company office and then the matter was reported to the Police and the accused was arrested. 

•	Later on the same day, 7 January 2015, the complainant was taken to the company clinic at Ramu and examined by Dr Yongoe Kambue in relation to an allegation of sexual assault.

•	The next day Dr Kambue prepared a written report of the examination, which has been admitted into evidence. 

LAW

4. Section 229A (1) (sexual penetration of a child) of the Criminal Code states:

A person who engages in an act of sexual penetration with a child under the age of 16 years is guilty of a crime.

Penalty: Subject to Subsections (2) and (3), imprisonment for a term not exceeding 25 years.

5. The two elements of an offence under Section 229A(1) are that:

•	the accused engaged in an act of sexual penetration with another person; and
•	the other person was a child under the age of 16 years.

Circumstances of aggravation (if the child is under the age of 12 years or if there is an existing relationship of trust, authority or dependency between the accused and the child) have not been charged in the indictment.

6. "Sexual penetration" is defined in Section 6 of the Criminal Code, which states:

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 an 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.

ISSUES

7. It is agreed that the complainant was 12 years old. The only issue is whether the State has proven beyond reasonable doubt that the accused engaged in an act of sexual penetration with the complainant in the manner alleged. Did he, to any extent, introduce his penis into the complainant's anus?

DID THE ACCUSED INTRODUCE HIS PENIS INTO THE COMPLAINANT'S ANUS?

8. Resolution of this issue requires a:

•	summary of evidence for the State;
•	summary of evidence for the defence;
•	formal determination of the question whether the State has proven beyond reasonable doubt that the accused introduced his penis into the complainant's anus.

Evidence for the State

9. Three witnesses gave evidence for the State, as summarised in the following table.

No	Witness	Description	
1	"G"	The complainant	
Evidence	
When he went back to the river and was alone with the accused, the accused asked him to come towards him so that he could check his hair for lice: he asked him to lie on the ground, on his side, so he did so, while the accused pretended to look for lice – then the accused took off both his own trousers and the complainant's trousers and penetrated the complainant's anus with his penis and ejaculated (the complainant said that the accused 'put his penis into my bottom and urinated') – the complainant felt pain and ran away – he ran towards the place where he thought his father would be but on the way he met first a Markham lady and told her what happened – then he ran again and met up with some youths from the compound at which he lives – he told them what happened and the youths ran to the river where they found the accused, who was identified by the complainant as the man responsible – they assaulted him and took him to the compound office where he was handed over to the company security guards and then the Police. 

In cross-examination the complainant said that he went to the river with the accused as he was new to the place and felt sorry for him – the Markham lady, who was the first person he met after the incident, accompanied him and the youths who went back to the river to confront the accused – the accused was still partly undressed when they got back to the river: his zipper was down.	
2	"P"	The complainant's friend 	
Evidence	
He lives in the same compound as the complainant – he, with other boys, met the complainant as he was coming back from the river – the complainant was crying – he told them that at the river a man had penetrated his anus – so the group of boys he was with went to the river, about 30 metres away – they saw the accused there, his trousers were down to the knees – they told him the he had done a very bad thing and took him to the compound office – in court, he identified the accused as the man who was at the river.

In cross-examination he said that when his group found the accused at the river, he had had his wash, he was still wet. Asked about a lady who was with his group, the witness said that, yes, there was a lady but she did not come to the river, they met her when they were taking the accused to the compound office.	
3	"S"	The complainant's friend	
Evidence	
He lives in the same compound as the complainant – he, with other boys, met the complainant as he was coming back from the river – the complainant told them that at the river a Simbu man had penetrated his anus – so they went down to the river to get the man who had done that – he admitted that he had done wrong and offered them K50.00 or K100.00 but they refused the offer and told him that they would take him to G's father – in court, he identified the accused as the man who was at the river.

In cross-examination he said that when his group found the accused at the river, the accused was dirty – he had not had his wash yet. As to his evidence that the accused had offered the boys money, it was pointed out to him that neither G nor P had said anything about being offered money – the witness maintained that the accused offered money.	

10. Two exhibits were admitted into evidence, without objection from the defence. The first was the accused's record of interview in which he denied the allegation that he had sexually penetrated the complainant. The second was the report of the medical examination. Dr Kambue's report states:
 
1.0	Introduction
["G"] was seen at RAIL [Ramu Agri Industries Ltd] clinic on the 7/1/2015 with history of sexual assault with possible anal intercourse that occurred on the same day. He was sexually abused by an adult male. The boy reported what happened to the parents.

2.0	Initial medical examination revealed
a)	All vital signs were within normal range, mentally alert and cooperative with no evidence of physical injuries to other parts of [his] body.
b)	Perineum was intact with no bruises or abrasions.
c)	Perianal area was intact with no obvious bruises or lacerations.
d)	No obvious injuries, secretion and/or foreign bodies were noted in the anus.

3.0	Pathology tests
a)	Microscopy of perianal and anal swabs revealed presence of sperm cells.
b)	No bacteria associated with sexually transmitted infections were found.

4.0	Initial treatment
Nil

5.0	Summary
a)	There was history of sexual assault.
b)	Sperm cells were present in the perianal/anal area.

6.0	Conclusion
It appears ejaculation into the anal area had occurred.

For your information and perusal.

Dr Yongoe Kambue	B Med Sci, MBBS, DA, M Med (Emerg Med)
Chief Medical Officer

Evidence for the defence

11. The accused was the only witness for the defence. 

No	Witness	Description	
1	Kunma Binge 	The accused	
Evidence	
He is married with two children – on the morning of the incident he asked the complainant to take him to the river – at the river he asked the complainant if he would like to eat some pig meat, he replied yes, so he (the accused) told him that he would later take him to the house at which he was staying so he could eat some meat – the complainant left him and went to the plantation and while the complainant was away, he (the accused) slept – the complainant came back and was upset with him and accused him of making a false promise about the pig meat – the complainant came back with other boys and they accused him of committing an offence against the complainant – he believes that the complainant made up the story about being penetrated as he was angry with him (the accused) who he thought was telling lies about the pig meat – the boys who came back with the complainant assaulted him badly, first at the river and then on the way to the road – he flatly denied penetrating the accused; if he had done such a thing he would not have stayed at the river, he would have run way – some children were playing at the river about 30 metres away from him and the complainant.

In cross-examination he again denied penetrating the complainant – he is a married man and it would be hard for him to consider committing such an offence.	

Has the State proven beyond reasonable doubt that the accused introduced his penis into the complainant's anus?

12. Having weighed the competing evidence and the submissions of counsel, I conclude that the State has proven this issue beyond reasonable doubt, for the following reasons:

(a)	The complainant was a reliable and honest witness.

G was 12 years old when he gave his evidence. In view of his age it was necessary to conduct a preliminary inquiry to determine his capacity to comprehend the nature of truth. I considered Section 6 of the Oaths, Affirmations and Statutory Declarations Act Chapter 317. I also considered guidelines for 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. Upon answering questions from me, he understood that the lawyers would ask him questions about what happened. He said that he goes to church and knows about God and understood that if he did not tell the truth God would not be happy with him and that he could be punished. I was satisfied that he understood the meaning and importance of truth. He appeared to be an intelligent and bright child. Defence counsel, Mr Morog, raised no objection to his competence as a witness or the admissibility of his evidence. I concluded that he was a competent witness. 

The complainant impressed me as a person who was telling the truth. His demeanour was sound. His evidence was clear and credible and straightforward. There was no equivocation in his answers. Defence counsel Mr Morog cross-examined him appropriately but he did not waver.

The complainant's evidence was that he was anally penetrated. It is not necessary for there to be evidence of 'complete' or 'full' penetration (The State v Arnold Kulami (2009) N3632). The complainant said that the accused inserted his penis into his anus, not that the penis was placed on the anus. He said that he felt pain. This is sufficient evidence of "sexual penetration", which is defined by Section 6 of the Criminal Code to include "the introduction, to any extent, by a person of his penis into the … anus … of another person". I accept the complainant's evidence that he was anally penetrated and that the person responsible was the accused. 

(b)	There was evidence of a prompt complaint.

13. The prompt making of a complaint by a person who alleges a sexual violation is a relevant consideration to take into account by the Court when determining the genuineness of the allegation; just as the absence of a prompt complaint can cast doubt on the genuineness of the allegation (Michael Balbal v The State (2007) SC860, The State v Stuart Merriam [1994] PNGLR 104, The State v Polikap Lakai (2007) N3153). This was a case of a very prompt complaint. I accept the complainant's evidence that immediately after the incident at the river he left the scene and met his friends P and S and told them what had happened. 

(c)	Inconsistencies in the evidence of the State witnesses were not significant.

14. Mr Morog alleged inconsistencies in the State's evidence, in particular:

•	G and P said or implied that when the boys went to confront the accused at the river, he was wet, whereas S said that the accused was dirty and had not had his wash;

•	G said that the Markham lady had accompanied him and the boys to the river to confront the accused, whereas P said that they did not meet that lady until the group was heading back from the river towards the compound office, and S mentioned nothing about any lady;

•	S said that the accused offered them money, whereas neither G nor P mentioned anything about being offered money.

Mr Morog submitted that these inconsistencies made the State's case weak and that it was dangerous to enter a conviction in these circumstances. 

15. I agree with Mr Morog's identification of the apparent inconsistencies but their existence does not significantly weaken the State's case. The mere existence of inconsistencies does not mean that the State's case should be rejected. The task of the court, having identified inconsistent evidence, is to assess its significance and give reasons for regarding the inconsistency as significant or insignificant (Devlyn David v The State (2006) SC881, Glen Otto Kapahi v The State (2010) SC1023). I consider all inconsistences as being insignificant. The issue of whether, when the boys went back to the river, the accused was wet or dry is not material to the question of whether the accused penetrated the complainant. It is reasonably to be expected that when the group of boys went back to the river, they were angry, they wanted to fight the accused, so it is expected that in such a tense situation different witnesses would have different recollections of whether the accused was wet or dry.

16. Similarly with the question of whether the Markham lady accompanied the boys to the river. Both G and P said that she was there but it is understandable that they would have a different recollection of the point at which she joined the group.

17. As to the evidence about whether the accused offered the boys money to keep the matter quiet, that was S's evidence but neither G nor P was asked about it and the fact that they did not say in their evidence that the accused offered money does not actually give rise to an inconsistency.

(d)	Medical evidence was consistent with sexual contact being made.

18. Dr Kambue's report does not provide conclusive evidence of complete penetration as "perineum [the area between the anus and the scrotum] was intact with no bruises or abrasions; perianal area was intact with no bruises or abrasions; no obvious injuries, secretion and/or foreign bodies were noted in the anus". However the report supports the State's case that sexual contact by a male person was made with the complainant in the area of the anus, as "perianal and anal swabs revealed presence of sperm cells", indicating that ejaculation had occurred. The medical evidence corroborates the complainant's evidence that he was, at least, sexually assaulted and supports the State's case that the accused to some extent penetrated the complainant. 

(e)	No other explanation of how the complainant could have been penetrated.

19. As the complainant has given credible evidence that he was sexually penetrated and the medical evidence is not inconsistent with that proposition, it is natural to ask the question: if it was not the accused, who penetrated the complainant? There is no evidence that it could have been anyone else, and the absence of such evidence supports the proposition that it was the accused who penetrated the complainant. 

(f)	The accused was an unconvincing witness.

20. The demeanour of the accused in the witness box was the opposite of that of the complainant and other State witness. He gave the clear impression that he was not telling the truth. Though his evidence was consistent with the story he told the Police, reported in the record of interview, there is no evidence to corroborate it. 

Conclusion: did the accused penetrate the complainant's anus?

21. Yes. The State has proven beyond reasonable doubt that the accused to some extent introduced his penis into the complainant's anus. The second element of the offence has been proven. The accused must be convicted. 

VERDICT

22. Kunma Binge, having been charged with one count of engaging in an act of sexual penetration with a child under the age of 16 years, contrary to Section 229A(1) of the Criminal Code, is found guilty, as charged. 

Verdict accordingly.
__________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused