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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO 418 OF 2017
THE STATE
V
CASPER MAKIS
Madang: Cannings J
2017: 9, 13, 14 November, 29 December
2018: 5 January
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 – whether the accused sexually penetrated the complainant – alternative charge: sexual touching of child under the age of 16 years, Criminal Code, Section 229B(1).
The accused 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, in circumstances of aggravation in that the child, an eight-year-old girl, was under the age of 12 years, and in the alternative with one count of sexual touching of a child under the age of 16 years, contrary to Section 229B(1)(a) of the Criminal Code, in the same circumstances of aggravation. The accused pleaded not guilty so a trial was held. The age of the child (the complainant) was not contested.
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) Under Section 229B(1)(a) of the Criminal Code the offence of sexual touching of a child has four elements:
- the accused touches with any part of his or her body;
- the “sexual parts” (defined by s 229B(2) to include the genital area, buttocks or breasts) of another person;
- the other person is a child under the age of 16 years;
- for sexual purposes.
(3) The State failed to prove beyond reasonable doubt that the accused sexually penetrated the complainant.
(4) The State proved beyond reasonable doubt all elements of the alternative charge of sexual touching of a child under the age of 16 years in the circumstances of aggravation charged, and the accused was convicted of the alternative charge.
Cases cited:
The following cases are cited in the judgment:
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 Kunma Binge (2016) N6179
The State v Polikap Lakai (2007) N3153
The State v Stafford Hambo (2010) N4036
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, and in the alternative one count of sexual touching of the same child.
Counsel:
D Ambuk, for the State
A O Meten, for the Accused
5th January, 2018
1. CANNINGS J: The State has presented an indictment against the accused, Casper Makis, containing a primary charge and an alternative charge. The primary charge is:
2. The alternative charge is:
3. The State’s primary allegation is that on the afternoon of 12 September 2016 the accused was with his eight-year-old niece, “E”, at their house at Wagol Fikus, Madang, and while she was sitting on his lap he put his hand under her skirt, used his fingers to play with her vagina and then pushed his fingers into her vagina, all for sexual purposes. The State’s case is that by pushing his fingers inside the child’s vagina he sexually penetrated her, making him guilty of the primary charge. If that offence is not proven the State says that in the alternative the accused should be convicted of the lesser offence of sexual touching, as he, at least, touched the child’s vagina for sexual purposes. He pleaded not guilty to both the primary charge and the alternative charge.
UNDISPUTED FACTS
4. A number of undisputed facts have emerged from the evidence:
LAW
5. The primary charge is laid under Section 229A(1) (sexual penetration of a child) of the Criminal Code, which 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.
6. The two elements of an offence under Section 229A(1) are that:
7. If the child is under the age of 12 years, it is a circumstance of aggravation under Section 229A(2), which results in the maximum penalty being increased to life imprisonment.
8. “Sexually penetrates” is defined by Section 6 (sexual penetration) 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.
9. The sort of penetration alleged in this case is covered by Section 6(b): the accused to some extent introduced (ie inserted) a part of his body (a finger) into the complainant’s vagina. It is not necessary to prove complete penetration (The State v Arnold Kulami (2009) N3632).
10. The alternative charge is laid under Section 229B(1)(a) (sexual touching) of the Criminal Code, which states:
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) compels a child under the age of 16 years to touch, with any part of his or her body, the sexual parts of the accused person's own body,
is guilty of a crime.
Penalty: Subject to Subsections (4) and (5), imprisonment for a term not exceeding seven years.
11. The four elements of an offence under Section 229B(1)(a) are that:
If the child is under the age of 12 years, it is a circumstance of aggravation under Section 229B(4), which results in the maximum penalty being increased to 12 years imprisonment.
ISSUES
12. It is undisputed that the complainant was under the age of 12 years. The only issue for the purposes of the primary charge is whether the State has proven beyond reasonable doubt that the accused sexually penetrated the complainant in the manner alleged. Did he introduce (ie insert) his fingers into her vagina? If yes, the accused will be guilty of the primary charge and it will be unnecessary to consider the alternative charge. If no, it will be necessary to consider the alternative charge and the issue will be whether the State has proven beyond reasonable doubt that he touched her vagina with his fingers and that he did so for sexual purposes.
PRIMARY CHARGE: DID THE ACCUSED PENETRATE THE COMPLAINANT’S VAGINA?
13. Resolution of this issue requires a:
Evidence for the State
14. Five witnesses gave evidence for the State, as summarised in the following table.
| No | Witness | Description |
| 1 | “N” | The complainant’s mother |
| Evidence | ||
| She received a report of the incident as she was finishing work and when she got to her house she confronted the accused and was angry
with him – he did not deny it, he seemed confused – she told him that she would report him to the police – he ran
away – she went to the police then took E to the hospital. In cross-examination she denied having any grudge against the accused – he used to often stay at their place and he was not
really a problem until this incident happened. | ||
| 2 | “C” | The complainant’s sister |
| Evidence | ||
| She was aged 13 at the time of the incident and aged 14 at the trial – it was a school day and she was in her room in the house
doing homework – she heard E shout – E was outside with the accused – she looked out and saw him with E on his
lap and saw him put his hand under her skirt and touch her vagina – she called out “Casper that’s enough!”
– there was nothing blocking her view – she told her mother as soon as she arrived home what the accused had done. In cross-examination she said that she knew that the accused and E were outside together but thought nothing of it as the accused
is their uncle and he often plays with E – she had a clear view of what happened – there are houses close to their house
but the people did not hear E cry out – when their mother arrived home, she was cross with the accused, she thinks this was
because some people had already told their mother that something had happened at the house – she and E have never had any problem
with the accused before – he is their uncle and they liked him – her mother was angry with the accused – she was
not angry with E for chewing betel nut. | ||
| 3 | “E” | The complainant |
| Evidence | ||
| She was doing grade 2 when she gave her evidence – she was alone with the accused, her uncle, on the day of the incident –
he told her to climb the betel nut tree, so she did so and when she brought the nuts to him he pulled her towards him and placed
her on his lap – then he used three of his fingers to play with her vagina – he was pressing on her vagina with his fingers
for a long time and she felt pain and called out – C heard her call out then C told the accused to stop but he kept pressing
her vagina. When her mother came home she was cross with the accused – she (E) and C gave their mother the details of what happened. In cross-examination she said that her mother does not usually get cross with the accused – asked about climbing the tree, she
said she used a rope and she often does that and that her legs and groin were rubbing on the tree but that that did not cause pain
– she was taken to the hospital the next day – she does not think that the neighbours heard her when she screamed as
they were out on the road. | ||
| 4 | Constable Rayleen Botty | Police investigator |
| Evidence | ||
| She was cross-examined as to a claim that she had coached the complainant on what to say – she denied that allegation, saying
that she explained to E what it would be like to give evidence in court but she did not tell E what to say in evidence other than
just to say what happened. | ||
| 5 | Dr Robert Vei | Gynaecologist |
| Evidence | ||
| The doctor confirmed that he had examined the complainant at Modilon General Hospital – he prepared a report, admitted into
evidence, and explained its contents: “Examination of her perineum and vagina revealed sore inner labia. There weren’t any lacerations but obvious abrasions
which were very tender to touch. Also noted was the fact that the hymen of her vagina was just recently torn ... the findings strongly
corresponds well to the allegations meaning that she was definitely fondled or penetrated with the fingers.” Under cross-examination, his opinion was that the abrasions and soreness and torn hymen were fresh, not old, injuries – he considered
it unlikely that such injuries would have been self-inflicted or incurred in climbing a tree – his opinion is that she had
been touched or rubbed and probably penetrated with fingers. | ||
15. Two exhibits were admitted into evidence. The first was the accused’s record of interview in which he denied all the allegations. The second was the report of the medical examination.
Evidence for the defence
16. Only the accused gave evidence for the defence, as summarised in the following table.
| No | Witness | Description |
| 1 | Casper Makis | The accused |
| Evidence | ||
| He was at the house with E and C – C got cross with E and when he enquired with C why she was cross with E, C argued with him
and called him a thief – he left the scene and later came back when E was alone – E wanted to climb the betel nut tree
so he watched her do that, then he and E sat down together and they both chewed betel nut – E spat near the floor of the house
and he rebuked her mildly for that – then E went to the front of the house to play with other children – he went inside
the house and slept – the next thing he knew, his sister-in-law N (the girls’ mother) came home from work, calling out
his name from the street and shouting abuse and swearing at him – he asked her what the problem was but she would not listen
and called out to her brothers to assault him, so they joined in and shouted at him and threatened him – he ran away as he
was afraid for his life – he holed up at the Admin Compound until they came and found him the next afternoon and told him that
it was good that he had escaped, otherwise they would have killed him – he claimed that some in E’s family had a grudge
against him, due to marital problems between N and her husband and N getting pregnant while she was a student some years earlier
at Divine Word University, so they made up this story. In cross-examination he was asked about question-and- answer 24 in his record of interview, which states that he did have E sitting
on his lap at one stage, playing with her belly – he denied saying that: it was a concoction. | ||
Has the State proven beyond reasonable doubt that the accused introduced his fingers into the complainant’s vagina?
17. Having weighed the competing evidence and the submissions of counsel, I conclude that the State has not proven this element beyond reasonable doubt, for the following reasons:
(a) The complainant was assessed as a reliable and honest witness, however she did not state that the accused’s fingers went inside her vagina.
18. E was 9 years old when she gave her evidence. In view of her age, it was necessary to conduct an inquiry to determine her 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, she understood that the lawyers would ask her questions about what happened. She understood that if she did not tell the truth God would not be happy with her and that she could be punished. I was satisfied that she understood the meaning and importance of truth. She appeared to be an intelligent and bright child. Defence counsel, Mrs Meten, raised no objection to her competence as a witness or the admissibility of her evidence. I concluded that she was a competent witness.
19. The complainant impressed me as a person who was telling the truth. Her demeanour was sound. Her evidence was clear and credible and straightforward. However she did not state that the accused’s fingers went inside her vagina. She said on at least three occasions that he “pressed” on her vagina. There was adequate opportunity for the prosecution to clarify this and to rule out the possibility that there was a translation issue as the complainant gave evidence in Tok Pisin which was translated into English. Her evidence was consistent: that he pressed her vagina. She did not state that his fingers went inside, to any extent.
(b) There was insufficient medical evidence of penetration.
20. Dr Vei’s evidence was ultimately ambivalent about whether there had been penetration. By concluding that there was clear evidence of fondling or penetration his evidence left open the possibility that there was in fact no penetration. Further, the exact location of the abrasions was unclear and even if there were penetration, the means or instrument of penetration was unclear. Given the lack of clarity in the complainant’s evidence, the medical evidence had to be more specific. The accused is entitled to the benefit of the doubt and here there is doubt about penetration.
Conclusion: is the accused guilty of the primary charge?
21. No. The State has not proven sexual penetration and the accused is therefore not guilty.
ALTERNATIVE CHARGE: DID THE ACCUSED TOUCH THE COMPLAINANT’S VAGINA WITH HIS FINGERS, FOR SEXUAL PURPOSES?
22. 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 assessed as a reliable and honest witness.
23. The complainant was a good witness and she gave clear and straightforward evidence that the accused had played with her vagina and pressed it hard, causing pain.
(b) There was evidence of a prompt complaint.
24. 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. These are relevant but not determinative considerations (Michael Balbal v The State (2007) SC860, The State v Stuart Merriam [1994] PNGLR 104, The State v Polikap Lakai (2007) N3153). I consider that this was a case of a prompt complaint.
(c) The complainant’s mother’s evidence tended to corroborate the complainant’s evidence.
25. The complainant’s mother was a credible witness. She was not shown to have any improper motive for wanting to give false evidence against the accused. Her evidence was that there was no history of ill-will between her and the accused is accepted. His evidence of a grudge she and her side of the family had against him was vague and uncorroborated. I see no reason to reject her evidence. She reacted angrily which is understandable.
(d) The complainant’s sister’s evidence corroborated the complainant’s evidence.
26. The complainant’s sister was a credible witness. She gave evidence of seeing the accused lift the complainant’s skirt and put his hand inside the skirt. This is strong corroboration.
(e) The medical evidence supported the conclusion that the complainant had been sexually touched.
27. The medical evidence, as explained by Dr Vei, supported the proposition that the complainant had been sexually touched, with some force, if not penetrated. Dr Vei’s evidence had the effect of ruling out the defence’s proposition that the complainant could have been injured while climbing the betel nut tree.
(f) No other explanation of how the complainant was sexually touched.
28. As the complainant has given credible evidence that it was the accused who sexually touched her and her sister’s evidence was also credible and corroborates the complainant’s evidence and there is medical evidence of sexual touching, it is natural to ask the question: if it was not the accused, who sexually touched 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 only the accused
(g) The accused was assessed as an unconvincing witness.
29. The demeanour of the accused in the witness box was the opposite of that of the complainant and the 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 his denials.
Conclusion: is the accused guilty of the alternative charge?
30. Yes. All elements of the offence have been proven beyond reasonable doubt and the accused is guilty, as charged, under Section 229B(1)(a) of the Criminal Code.
VERDICT
31. Casper Makis, having been charged, as the primary charge on the indictment, 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, in circumstances of aggravation under Section 229A(2) of the Criminal Code in that the child, an eight-year-old girl, was under the age of 12 years; and having been charged, as the alternative charge on the indictment, with one count of sexual touching of a child under the age of 16 years, contrary to Section 229B(1)(a) of the Criminal Code, in circumstances of aggravation under Section 229B(4) of the Criminal Code in that the child, an eight-year-old girl, was under the age of 12 years, is found:
(a) not guilty of the primary charge; and
(b) guilty of the alternative charge.
Verdict accordingly,
__________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused
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