State v Apolos [2017] PGNC 207; N6876 (8 September 2017)

N6876

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1390 OF 2015

THE STATE

V

MICHAEL APOLOS
Accused

Kokopo: Higgins, J

2017: 15^th & 16^th August, 8^th September

CRIMINAL LAW – Prosecution for sexual penetration of minor – rape and incest – essential elements to be proved beyond reasonable doubt – complaint evidence – effect of delay in reporting – pleas of not guilty – findings of guilt

Cases Cited:
Papua New Guinea Cases

State v Merriam [1994] PNGLR 104

Overseas Case

R v Barrington [2009] ACT SC 121, [5]

Counsel:

C. Sambua & J. Batil, for the State
F. Kirriwom, for the Accused

DECISION

8^th September, 2017

1. HIGGINS J: On 15 August 2017 the accused, Michael Apolos was arraigned before me on 3 counts being that he:
   
   1. ... between the 1^st day of December 2011 and the 23^rd day of June 2012 at Warangoi and at Tavtavul, Gazelle, East New Britain Province in Papua New Guinea engaged in acts of sexual intercourse with one MICHELLE MICHAEL who was then about 15 years and six months, a child under the age of 16.
      

AND THAT MICHELLE MICHAEL was then in relationship of trust, authority and dependency with him.

2. AND that ... between the 24^th day of June 2012 and the 23^rd day of June 2014 at Tavtavul, Gazelle, East New Britain Province in Papua New Guinea engaged in acts of sexual penetration with one MICHELLE MICHAEL who was then between 16 and 18 years [of age], a child between 16 and 18 years who was then in a relationship of trust, authority and dependency with him.
   
3. AND ... that ... between the 24^th day of June 2014 and the 31^st day of July 2015 at Tavtavul, Gazelle, East New Britain Province in Papua New Guinea sexually penetrated one Michelle Michael without her consent by inserting his penis into her vagina. AND at the time of the commission of the offence [he] threatened to use a weapon namely a knife.
   

AND IN THE ALTERNATIVE

... between the 1^st day of December 2011 and the 31^st day of July 2015 at Warangoi and at Tavtavul, Gazelle, East New Britain Province in Papua New Guinea engaged in acts of sexual penetration with one Michelle Michael who was his daughter, a close blood relative as he well knew.

2. To each of those charges, the accused has entered a plea of not guilty.
   
3. Those counts engage the amendments to the Criminal Code Act 1974 introduced under Act 27 of 2002, the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. The first count engages s.229A(1) & (3):
   

“(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.

(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, and is liable, subject to Section 19, to imprisonment for life.”

4. Also engaged in respect of count 2 is s.229E:
   

“(1) A person who engages in an act of sexual penetration or sexual touching of a child between the ages of 16 and 18 years with whom the person has an existing relationship of trust, authority or dependency is guilty of a crime.

Penalty: Imprisonment for a term not exceeding 15 years.

(2) It is not a defence of a charge under this section that the child consented unless, at the time of the alleged offence, the accused believed on reasonable grounds that the child was aged 18 years or older.”

5. The 3^rd count engages s.347:
   

“A person who has carnal knowledge of a woman or girl, not being his wife –

(a) without her consent; or
(b) with her consent, if the consent is obtained –

(i) by force; or

(ii) by means of threats or intimidation; or

(iii) by fear of bodily harm;

((iv) & (v)(not relevant)

is guilty of the crime of rape.

Penalty: Subject to Section 19, imprisonment for life”

6. The “Alternative” count is, strictly speaking, in terms alternative to each of the 3 counts. Any act of sexual intercourse proved against the accused in respect of Michelle Michael is incestuous.
   
7. Incest is proscribed by s.223 of the Code:
   

“(1) A person who carnally knows a woman or girl who is, to his knowledge –

(a) his daughter ...
(b) ...
(c) ...

is guilty of a crime.

Penalty: Subject to Section 19, imprisonment for life.”

8. It is important to note and to direct myself that the onus rests upon the State to prove each element of each alleged offence beyond a reasonable doubt before a verdict of guilty may be entered. There is no onus of proof or persuasion cast upon the accused. Further, he has and must be accorded a presumption of innocence. That presumption not only requires proof beyond reasonable doubt of any fact or inference leading to a conclusion of guilt but also requires that in determining inferences from evidence, including the acceptance or otherwise of adverse evidence or inferences that conclusions not adverse to the accused be preferred. That is summarised by the proposition that if an inference is available not adverse to the accused that inference is to be preferred to an adverse inference. (see eg. R v Barrington [2009] ACT SC 121, [5]).
   
9. It was conceded by Mr. Kirriwom for the accused that, as the date of birth of the complainant was 23^rd day of June 1996, she was 15 years of age until 23^rd day of June 2012 and turned 18 on 23^rd June 2014. It was further conceded, for the purposes of counts 1 and 2, the complainant was in a relationship of trust, authority and dependence upon the accused.
   
10. Lack of consent is not a necessary element of the offences alleged in counts 1 and 2, nor for the alternative count.
    
11. The issue in respect of those counts is, simply, whether between the dates alleged, the accused engaged in an act or acts of sexual penetration of the complainant.
    
12. Also engaged in respect of counts 1 and 2 is s.229D:
    

“(1) A person who, on two or more occasions, engaged in conduct in relation to a particular child that constitutes an offence against this Division, is guilty of a crime of persistent abuse of a child.

Penalty: Subject to Subsection (6), imprisonment for a term not exceeding 15 years.

(2) For the purposes of Subsection (1), it is immaterial whether or not the conduct is of the same nature, or constitutes the same offence, on each occasion.

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

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

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

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

(5) For an accused to be convicted of an offence against this section –

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

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

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

13. The evidence adduced by the State in this matter includes evidence of complaints made by the complainant both to her mother, Eltah Michael and to the accused’s cousin Rosevitha Kathimoley.
    
14. The use to which complaint evidence, if accepted as true, may be put was considered by Sakora J in State v Merriam [1994] PNGLR 104.
    
15. As His Honour noted, evidence of lack of or delay in making a complaint is adduced by an accused to support a conclusion that the acts complained of at trial had not occurred or, where relevant, had been consented to. However, as his Honour rightly concluded, (111-112), there may be good reason for a complaint, though truthful, not being made promptly. That is, indeed, acknowledged as a widespread phenomenon particularly in the case of family violation or violation by those in authority such as priests or teachers.
    
16. Whilst it is appropriate for the tribunal of fact to warn itself that a complaint is not corroboration of the matters complained of it does, if accepted as genuine, support a conclusion as to the credibility of the complainant. Corroboration of the complainant’s evidence is not required as a matter of law. Lack of it, even with recent complaint, may cause hesitation in finding the matters complained of as established beyond reasonable doubt but it does not prevent the Court, if so satisfied, from finding the relevant offence or offences proved.
    
17. I turn now to the evidence adduced by the State.
    
18. The complainant gave evidence of persistent sexual abuse, involving sexual penetration, by the accused from 2011 during December holidays of that year at a block called the intake block at Warangoi, owned by the accused.
    
19. He came one night into the room in which she was sleeping, removed her clothes and by threats of violence and by acts of violence, forced her to submit to sexual intercourse, inclusive of him inserting his penis into her vagina.
    
20. On subsequent occasions when her mother was also absent he repeated this conduct. On occasions, he assaulted her with a spoon and with sticks, on one occasion he left a cut on the right side of her face near her eye. On some occasions, he would threaten to use a knife upon her, including a bush knife. She did not allege that he had in fact used such a weapon but she took the threats seriously.
    
21. The abuse stopped in 2015. She did not attend school in 2012 and 2013. She had reported the abuse to her mother but he would assault the mother to keep her quiet about the abuse.
    
22. In 2014, she reported the abuse to Rosevitha Kathimoley, her cousin sister and a cousin to the accused. She was sent for a medical examination. However, she also said, after that report, that there was, in fact, no further sexual abuse.
    
23. It was suggested to her in cross-examination by Mr. Kirriwom (for the accused) that her mother had gone to the block in 2011, thus suggesting that sexual activity would be unlikely if the mother was there. She rejected that asserting her mother stayed behind in the village because she was then heavily pregnant with her seventh child.
    
24. She told her mother and siblings of the abuse in 2011 but nothing happened to stop its repetition until she told Rosevitha of it in 2014.
    
25. Mr. Kirriwom also questioned the complainant about alleged sexual assault upon her by one Patrick Warigi, one of her grandfathers. 6 girls, including the complainant, it was suggested, had complained about him committing sexual acts towards them. The complainant agreed that Mr. Warigi had behaved indecently. He had invited her and the other girls to touch his private parts. It was not alleged that he had penetrative sex with any of them. Thus he had been referred to the Village Court where the matter was settled out of court.
    
26. She further denied having had sex with a young man in 2014, preceding her fleeing to Rosevitha Kathimoley. She agreed that Ms. Kathimoley was the local Child Abuse Committee representative but denied that the latter had forced her to make up the accusation against her father.
    
27. There was evidence from Dr. Peter Irakau that he examined the complainant on 7 August 2015. Whilst there was no evidence of recent intercourse the complainant’s hymen had been torn. From this it was clear that the complainant had been subject to sexual intercourse in the past.
    
28. Ms. Rosevitha Kathimoley gave evidence. She confirmed her relationship to the accused and the complainant. She was a Primary School teacher and had taught at Tavtavul for 19 years.
    
29. In March 2014, the complainant came to see her, she was upset and had a recent cut beside her right eye. That accorded with the complainant’s evidence concerning the assault with a spoon. She complained that the accused had struck her in the course of demanding that she have sex with him. She said that he had sex with her on numerous occasions and if she refused he would ‘bash her up’ and tear her clothes.
    
30. Ms. Kathimoley took the complainant to her house and then confronted the accused. She told him of the report she had and demanded he stop. He said he was sorry and agreed to that demand. It does not appear that sexual intercourse was expressly mentioned but I have no doubt that the accused well understood what Ms. Kathimoley was putting to him.
    
31. In cross-examination it was put to her that she had not then gone to the police. She acknowledged that she had not done so. She was, understandably, pressed to explain that decision. She had 2 reasons for not doing so. First, the accused was her cousin and had expressed remorse and promised not to repeat his behaviour and, second, the complainant had only recently returned to school and pursuing the matter would interrupt her schooling very significantly. She decided that it should be pursued and took the complainant to the police only after forming the view in 2015 that the accused had breached his undertaking.
    
32. I can make no finding that he did so in light of the complainant’s evidence, but that does not affect the credibility of this witness’s evidence. It was her belief, whether rightly or wrongly, that the accused had breached his undertaking and that motivated the complain to police.
    
33. Ms. Eltah Michael, mother of the complainant gave evidence. She confirmed the complainant’s date of birth as 23^rd June 1996.
    
34. She deposed in cross-examination that she did not go to the Warangoi block in December 2011. She further, in response to questions from Mr. Kirriwom confirmed that, on her return to Tavtavul, the complainant told her that the accused had forced her to engage in sexual intercourse but when she raised it with him, the accused became angry and assaulted her. He said it was because of how the complainant was dressing. She was too fearful of further assaults to complain to police.
    
35. She denied, when it was put to her, that in 2014 the complainant left home to go with “friends”. She further denied that the complainant had complained that Rosevitha Kathimoley had ‘forced her’ to make a complaint against the accused.
    
36. The accused, she asserted, was often violent towards her and she was afraid to report his conduct because of that.
    
37. The State also tendered the Record of Interview with the accused. In that record, he agreed, understandably, that he well knew that the complainant was his biological daughter, born 23 June 1996.
    
38. At Q31 he was asked:
    

“Michelle reported that, that was her first time when you had sex with her. What is your answer to this?

ANS: That is not true. An old man got her in 2009. His name is Patrick Wariling” (sic).”

39. This answer is telling. It reveals a consciousness on the part of the accused that his daughter was no longer a virgin. The man he referred to was her grandfather Patrick Warigi.
    
40. He also alleged:
    

“Q40 Is it true that Michelle did not go to school in 2013?

ANS: She went to school in Term 1 but did not complete Term 2. Same as last year 2014 she ran away with a man. She stayed with the man for 3 days and 3 nights.

Q41 You, as the biological father, what action did you take, when you are saying that she ran away with a man and did not complete her education?

ANS: I was at the block when her mother rang me and told me that she disappeared with her boyfriend to Vunadidir. I sent her mother to go and look for her and I stayed back with the small ones at the house. Michelle came back to us on the house on Monday morning. Her mother and I sent the committee to go and look for the boy’s parents.

Q42 If you were concern with Michelle as your daughter that a man ran way with her, you was supposed to report this matter to the police. What will you say about this?

ANS: I did not report it because she went out with that old man already in 2009 when Rosevitha got that case but did not report that to the police.”

41. It is apparent from the context that “that old man” is a reference to Patrick Wagili, one of the complainant’s grandfathers.
    
42. Clearly, it seems to me, the accused felt that he had to explain the fact that the complainant, though living at home, was no longer a virgin.
    
43. I do accept that the accused bears no onus of disproof or explanation to contradict apparently adverse evidence but, if the evidence as advanced is capable of an adverse inference, an attempt by an accused to offer an explanation which is false or fanciful entitles the State to offer disproof of that explanation and, if the Court is satisfied to the requisite standard of proof that the explanation is false, then that is a circumstance pointing to the guilt of the accused.
    
44. In this case, as already noted, the sexual misconduct complained of against Patrick Wagili by five girls and the complainant was of indecency not penetrative sex.
    
45. It may be added to that the evidence of Rosevitha Kathimoley, that she had confronted the accused with the complainant’s allegations and albeit obliquely he had admitted abusing the complainant, appeared remorseful and promised to cease his offending behaviour. That evidence appeared to me to be truthful and compelling and I have no hesitation in accepting it as accurate.
    
46. The other suggestion was that when the complainant went to stay with friends in 2014, she may have had sexual relations with “some boys”. That suggestion was denied by the complainant along with the suggestion that Rosevitha, “forced” the complainant to make up the allegations against the accused. That is fanciful given that the witness did not take those allegations to police for reasons she gave.
    
47. It raises a question in my mind as to why, if Rosevitha had some animus against the accused sufficient to procure the complainant to falsely accuse him of incestuous relations with her, that she did not forthwith go to police to make a complaint but delayed till 2015. In summary, her explanation is not consistent with a procurement of a false complaint so that she could then get the accused into trouble with the law.
    
48. The accused chose to give sworn evidence. He was not obliged to do so and I remind myself that in doing so he assumes no burden of proof or persuasion.
    
49. Nevertheless, he is subject to the same kind of scrutiny and evaluation as any other witness.
    
50. In his evidence in chief, the accused totally denied any acts of sexual relations with the complainant and any acts of violence towards her to persuade her to have sex with him or to his wife to keep her silent.
    
51. He did however, admit that he struck the complainant across the buttocks with a stick when she returned from being away for 4 days with friends.
    
52. He did suggest, as a possible motive for Rosevitha’s hostility towards him that he had run a store, as had Rosevitha, and her customers abandoned her in his favour. That also seems a somewhat contrived suggestion not put to Rosevitha in cross-examination.
    
53. I did ask him why he did not report Patrick Wagili to police for his indecent behaviour towards his daughter. His explanation was far from convincing. He left it to Rosevitha, he said. That statement underscores my conclusion that the accused was endeavouring to divert attention from the fact that he did not want the complainant to be questioned when she might reveal his abuse of her.
    
54. I acknowledge Mr. Kirriwom’s submission in which he pointed out that the complainant had not taken opportunities to report the accused’s conduct towards her. Rosevitha when it was reported to her had also failed to promptly draw it to police attention. He suggested that should raise at least a doubt in my mind as to whether the abuse had happened.
    
55. He further submitted that the occasion when Patrick Wagili was reported for indecent behaviour had offered the complainant a further opportunity for complaint.
    
56. Whilst all that is no doubt true, it is one thing for a young girl to denounce along with 5 other girls, the indecent behaviour of a grandfather, quite another thing to denounce a violent abusive father who has already intimidated her and her mother into silence by violence and threats of violence.
    
57. Rosevitha also found it difficult to denounce the accused for the reasons she gave notwithstanding that she was the child abuse committee representative.
    
58. As Mr. Sambua, for the State, submitted, the 3 critical witnesses for the State were both straight forward and persuasive. Despite Mr. Kirriwom’s quite proper but probing cross-examination they gave no cause for me to doubt the truth or accuracy of their testimony.
    
59. The accused on the other hand, despite a confident denial of any wrongdoing was quite unpersuasive to the point of offering an incredible attempt to blame Patrick Wagili for his daughter’s violation and to discredit Rosevitha.
    
60. I have to ask myself, having heard the accused as well as the State witnesses whether I have any doubt that the accused between 2011 and 2015, up to sometime during 2014, sexually violated the complainant, his natural daughter, on numerous occasions? My answer is no.
    
61. It follows that I find the accused guilty of counts 1 and 2.
    
62. In relation to count 3, I am satisfied that, during the period mentioned, up to mid-2014 the accused had sexual relations with his daughter, the complainant, and that she submitted to those acts because of physical fear of the accused. However, although I accept the accused’s threats of violence included threats to use a knife, I am not satisfied beyond reasonable doubt that he on any such occasion actually deployed a knife in a threatening manner. That, however, does not mean that the 3^rd count fails. The reference to a knife is mere surplusage. It follows that I find the accused guilty on the 3^rd count as well.
    
63. It is unnecessary to proceed to the alternative count but it is a necessary consequence of the findings in respect of the first 3 counts that the incestuous nature of the offending behaviour is a matter aggravating the seriousness of that behaviour.
    
64. I will proceed to hear submissions as to the sentences to be imposed.
    

___________________________________________________________
Public Prosecutor’s Office: Lawyers for the State
Public Solicitor’s Office: Lawyers for the Accused