N7325

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.  N0. 992 of 2016

THE STATE
V
RUDOLF DENNISON

Kokopo:  Susame, AJ
2018:  24-25 May, 27 June

CRIMINAL LAW – Particular Offence - Persistent Sexual Abuse of Girl Under 16 Years of Age –S 229d (1) (6) Criminal Code (Sexual Offence And Crimes Against Children) Act 2002 – Female Child 13 Years Old- Elements of The Offence – Sexual Abuse – Meaning of –
EVIDENCE - Need for Defence to Put Full Version of Facts Relied on to Opposing Witnesses- Reliability and Weight to be Attached for Failure to do so – Onus of Proving Guilt 
Held:
1.	Child subject of sexual abuse was a 13 year old girl
2.	The accused was the child’s brother in –law 
3.	The accused sexually penetrated his niece 

Cases cited:
Papua New Guinea Cases

The State v BN (2014) N5677
The State v Kelly Palek (2018) N7303
The State v Paul Taupin 
Supreme Court Reference N0. 1 of 1980; Re s 22A(b) Police Offences Act).
The State v Jim Kandamain (1995) 1323.

Overseas cases

Brown v Dunn (1893) 6 ER 67

Counsel:
Miss. Batil, for the State
Miss. PulaPula, for the Accused

JUDGMENT ON VERDICT
27 June, 2018

1.      SUSAME, AJ: On an indictment presented to the court State charged the accused for offence of persistent sexual abuse of a child under 16 years pursuant to s 229D (1) (6) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. The alleged offence was committed between January 2015 and 30th November, 2015.   
2.	The indictment also included circumstances of aggravation in that there was a relationship of trust, authority or dependency between the accused and the girl. 
3.  In the same indictment the State pursued alternative charges of indecent acts for under s 229C (1) and one count of sexual penetration of a  girl under 16 years citing the offence provided in s 229A (1)(3) of the Act in the event principle charge is not proved.  
4.  The indictment alleges 4 instances of sexual abuse which are:
1.	On an unknown date in 2015, accused committed an indecent act by holding his penis and showing it to the girl.
2.	On a second occasion, on an unknown date in 2015, accused committed an indecent act by holding it and showing it to the girl.
3.	Third time on an unknown date in 2015 accused committed an indecent act by holding his penis and showing it to the girl. 
4.	On the 4th and final occasion, on an unknown date accused sexually penetrated the girl by inserting his finger into the girl’s vagina. 
ALLEGED FACTS

5.	Accused is the brother- in-law of the girl. He is the husband of girl’s elder 
sister. The girl was born on 13 February 2002.She turned 13 years old on 13 February 2015. 

6.	In 2015 at times she lived with the accused and his wife at their home when she was doing her grade 5 at Tauran Primary School. 

7.	The first time the sexual abuse occurred was on an unknown date accused was bathing at the house. The girl was taking care of their baby. While having his bath held his penis and showed it to the girl. 

8.	The second time in the evening of an unknown date the girl had gone out of the house to urinate. Accused followed her out and approached her as the girl was urinating. He switched on the torch light on his penis for the girl to see it.

9.	Yet again on a third occasion on an unspecified date the girl was cooking in the kitchen. Accused entered the kitchen and sat on a bench. He removed his trousers in front of her held his penis and showed it to the girl. When the girl saw that she fled out of the kitchen.

10.	Fourth and the last occasion again on an unspecified date the girl remained home and did not attend school as she was sick. Accused’s wife had gone to work. The girl was sleeping inside the room. To her surprise accused had entered the room standing naked. He laid ontop of her and inserted his finger into her vagina. The girl pushed him off and fled out of the room. Accused followed her out and offered her K5.00 to stop her from telling anyone of what he had done. The girl refused the K5.00 offered and went to the neighbor’s house and remained there until accused’s wife returned home.

 OFFENCE
229D. PERSISTENT SEXUAL ABUSE OF A CHILD. 
(1) A person who, on two or more occasions, engages 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 committed 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 or the order 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.

11.	The term relationship of trust, authority or dependency” is provided in s6A(2) of the Act which reads in part: 
“A relationship of trust, authority or dependency includes, but is not limited to, circumstances where-
(a)	 The accused is a parent, step-parent, adoptive parent or guardian of the complainant; or
(b)	 The accused has care or custody of the complainant; or
(c)	………….(h)”
EVIDENCE
12.     For the prosecution evidence consisted of documentary evidence tendered by consent and oral testimonies of witnesses, girl victim, victim’s two sisters Nassain Michael and Ovin Inara and Patricia Kauli the nursing officer who medically examined the girl
13.      Documentary evidence tendered by consent are:

1.	S/C Berlin Tololo’s statement dated 19 April 2016, marked exhibit A
2.	S/C Sunema Vue’s statement dated 19 April 2016, marked exhibit B
3.	Statutory Declaration of date of birth marked exhibit C
4.	Record of interview (pidgin version), marked exhibit D1
5.	Record of interview (English version marked, exhibit D2

14.      For the defence evidence came from accused’s oral testimony. 

UNCONTESTED FACTS

15.     Uncontested facts established by evidence are as follows. Accused is from Viviran village. Toma LLG. Accused is the brother-in-law of the girl by his marriage to one of her elder sisters. The elder sisters including Niven and the accused took on the responsibility to take care of the girl after their mother died in 2013. The girl was doing grade 4 at Tauran Primary School in 2014 and the following year she was doing grade 5 when the alleged abuses were committed.
16. 	At the time the alleged sexual abuses occurred around the year 2015 the girl used to live with her elder sister Niven and her husband (the accused). 
17.     Court also finds that there excited a relationship of trust, authority or dependency between the accused and the girl in that their relationship would be covered by s 6A (2) (a) & (b) of the Act. That accused was the child’s guardian and child was under his care and custody. 
18.	The girl victim was given birth on 13th February 2002 at St Mary’s Vunapope Hospital. When the alleged sexual abuses occurred in 2015 she was 13 years old. 
19.	When the girl’s other elder sisters learned of the abuses she was medically examined by nursing officer Patricia Kauli at Our Lady of Sacred Heart (OLSH) Health Centre, Paparatava on 25th November 2015. 
EVIDENCE FROM PROSECUTION WITNESSES.
Witness R I
20.	Two things worth mentioning in respect of a child giving evidence. Court was put on notice by the prosecution the day before when trial should have commenced that prosecution was having difficulty getting the girl to come and testify due to certain pressures exerted on her by the family. Trial commenced the following day when the girl showed up with her uncle. 
21.	On oral application from the prosecution the witness gave evidence in a closed setting pursuant to special measure orders issued under Division 3 s 37B of the Evidence Act. With leave of court the girl’s uncle was allowed to sit by her to give her the confidence to testify as the girl appeared to be timid. 
22.	Court had to conduct a brief competency test whether she understood the significance of testifying in court. Prosecution assisted the court and examined the girl.  Witness understood the importance of giving evidence in court and the consequences she may face for giving false evidence. Court considered her as a competent witness and allowed to give sworn evidence. 
23.	The witness gave evidence of the occasions the alleged sexual abuses occurred.  She stated her sister had brought her over to take care of her two children. The accused walked down to the cocoa patch and called and signaled her to go see him. 
24.	One other time she was putting the baby to sleep while her elder sister was asleep. Accused was at the shower naked calling her. The girl looked and saw he was naked and masturbating himself. Her sister had woken up and went out of the house. She saw him naked and masturbating himself.  
25.	The other time she had gone out of the house at night to urinate. The accused followed her out. She was urinating and accused came stood by her and was urinating same time flashing the torched on his penis for her to see.  She had to flee back into the house.  
26.	There was another time accused entered the kitchen as she was cooking and gave his penis for her to hold. 
27.	The last time was when she had returned from the school in the afternoon. She had gone into the room to sleep. She closed the door. Accused had entered the room and was naked. He laid on top of her and pushed his finger into her vagina. She was surprised and pushed him away and ran out of the room. 
28.	The accused ran out after her and offered her K5.00 to stop her from telling anyone about what had happened. The girl refused to accept the money and went and stayed at the neighbor’s house until the accused’s wife returned home from work. 
29.	Under further questioning the girl stated the alleged sexual abuses occurred on four different dates. She stated she told her sister Ovin of the incident that happened at the shower who in turn told accused’s wife. Of the one that happened when she was urinating she told the accused’s wife. She stated she had a lot of respect for the accused as he is married to her sister and they look after her until the abuses occurred. She stated she never made up the stories and what she told the court is the truth. 
Witness Ovin Inara
30.     She is one of complainant’s elder sister. She gave evidence corroborating the victim’s evidence. In respect of the alleged sexual abuses she gave evidence of the incident when the accused showed his penis at the shower place. She said she was at the accused house. That particular day his small sister (victim) was swinging the baby. Accused went to have shower. The house was incomplete, had one room with walls but rest of the house was open with no walls. The shower place was at the back of the house. From where she was located she could look directly to the shower place. One of the kids wanted water so she went out. She looked straight at the shower place and saw the accused remove the towel and show his penis at his sister who was swinging the baby to sleep. She said when she saw that she was ashamed as accused was her brother in-law. 
31.     She took her to the other house and asked her what accused had done.  There her sister told her of what accused had done. She said she then went and told the accused wife who did not believe the story.  
Witness Nassain Michael
32.     She is the other elder sister of the girl. She gave evidence of what was reported to her of the alleged abuse at the shower place by her sister Ovin. She also gave her observations of accused’s suspicious behavior of seeing him with a towel around his waist and near his sister particularly when his wife was not around. His small sister told her of the incident when she went out to urinate at night and accused showed her his penis in the torch light. She wanted to report that incident to their ward member but because he was dealing with another complaint she did not lay the complaint. 
33.	The other time accused and his wife called his sister empty drum. His sister felt hurt with the comment. So, she told her of the incident when the accused inserted his finger into her vagina when she was sleeping inside the room. 
Witness Ruth Kauli
34.     She is a registered Nursing Officer and works at Paparatva Health Center. She prepared a brief report dated 28th November 2015 which was never tendered into evidence by the prosecution. She said she medically examined the girl on 28th November 2015 when she complained of lower abdominal pain associated with backache. Her findings were:
Her cervix was open and ulcerated, meaning had sore. Had smelly discharge. She felt pain when instrument was inserted into her vagina. The vaginal wall was normal. She was treated for sexually transmitted disease (STI). 
35.     When questioned during cross-examination she stated STI could be contracted if tear in the vagina is caused by insertion of finger and is left untreated.
36.      I have issue with that and will comment on this evidence later in the judgment. 

DEFENCE EVIDENCE

37.      The defence reply on evidence from the accused. Accused denied all the allegations. In an attempt to discredit the state principle witnesses accused gave evidence complainant and her sisters made up the case to falsely accuse him out of jealousy and over land or property rights issues they had with him and his wife. Accused gave evidence of few incidents that occurred as reasons for the jealousy and dislike the girl and her other sisters had towards him and his wife.

ELEMENTS OF THE OFFENCE

38.     Elements of the offence prosecution bears onus of proving are.
1.	Accused was the abuser,
2.	The child must be under 16 years old.
3.	Accused sexually abused the child.  
4. That sexual abuse was persistent. 

39.     On the basis of the unchallenged evidence as I have found above I have no doubt in my mind the girl was 13 years old at the material time the alleged offences were committed. She was born on 13th February 2002 at St Mary’s Vunapope Hospital Kokopo East New Britain Province.  I have also found that there was an existing relationship of trust, authority or dependency between the accused and the child by virtue of s 6A (2) (a) & (b).
40.	The remaining issues for deliberation are: 
1.	Whether accused persistently sexually abused the Child?
2.	Whether the accused sexually abused the child by introducing his finger into her vagina?

ONUS OF PROVING GUILT

41.     First of all what amounts to sexual abuse? The Criminal Code does not provide definition of the term. Wikipedia in making reference to an academic journal titled Sexual Abuse states; 
“Sexual abuse, also referred to as molestation is usually undesired sexual behavior by one person upon another. It is often perpetrated using force or by taking advantage of another. When force is immediate, or short duration, or frequent, it is called sexual assault. The offender is referred to as a Sexual Abuser or (often pejoratively) Molester. The term also covers any behavior by an adult or older adolescent towards a child to stimulate any of the involved sexuality. The use of a child, or other individuals younger than the age of consent, for sexual stimulation is referred to as child sexual abuse or statutory rape.” (https://en.m.wikipedia.org>wiki>sexual)
42.	Merriam in Pandoras Project support and resource for survivors of rape and sexual abuse defines Child Sexual abuse as “any sexual act with a child performed by an adult or an older child.  It could include a number of acts, including but not limited to:
a.	Sexual touching of any part of the body, clothed or unclothed;
b.	Penetrative sex, including penetration of the mouth;
c.	Encouraging a child to engage in sexual activity, including masturbation;
d.	Intentionally engaging in sexual activity in front of a child;
e.	Showing children pornography, using children to create pornography; 
f.	Encouraging a child in prostitution.”
(https://www.merriam –webster.com>legal)

43.	The term should also include any indecent act directed at a child as was considered in The State v BN (2014) N5677 cited by the prosecution. His Honor Cannings J held in the context of the Act, indecent act should be taken to mean an objectively inappropriate or offensive action committed for the purpose of sexual gratification,” done deliberately at the child. 
44.	Having defined the term, did the accused sexually abused the child?
45.	The girl gave evidence of four different occasions of what accused did to her. Although she did not provide exact dates the acts occurred, she was able to remember off her head the exact locations and times when the accused showed his penis to her and one occasion he entered the room and inserted his finger into her vagina whilst naked and when the girl was sleeping. She told her two elder sisters of what accused had done to her who at one point told their sister who was married to the accused but she did not believe them. The girl’s testimony was well corroborated by her two sisters. 
46.	There was no real challenge to the evidence given by the prosecution witnesses which remains uncontradicted. Accused generally denied all the allegation. In his defence he stated allegations were false. In support of that he gave evidence of the couple of incidents that occurred and reasons his sister in laws made up the charges.  This aspect of defence evidence did not go without challenge from the prosecution based on the often cited Browne and Dunn rule of evidence. That prosecution witnesses were not given an opportunity to agree or deny the allegations and reasons accused came up with to discredit the prosecution evidence.  
47.	I uphold the prosecution’s argument on that point. In a recent case of The State v Kelly Palek (2018) N7303 delivered on 21 June 2018 I cited with approval the authority in Brown v Dunn (1893) 6 ER 67 and stated;  
“Browne and Dunn’s Rule of evidence often cited and followed in many judgments in our jurisdiction was decreed in an old English case of Brown v Dunn (1893) 6 ER 67. The essence of the rule was basically for fairness. That if a party is intending to challenge evidence of a witness, the reason for the challenge must be put to the witness during cross-examination. Party challenging must put his version of facts he will lead evidence later to establish, to the witness to give him an opportunity to respond in agreement or otherwise. Failure to do that is tantamount to acceptance of the evidence in chief which cannot be impugned or challenged in the party’s final address. The resultant effect is that it affects and damages the credibility of the witness.  (See also The State v Merriam [1994] PNGLR 104.”
48.	While the criminal law places no obligation on an accused person to proving his innocence, it is important accused give proper instruction to his lawyer of the full version of facts he intends to rely on in his defence in good time prior to commencement of trial instead of keeping it to himself and at the 11th hour introduce such evidence if it is to be believed as credible.  Failure on the part of the defence to put those facts to the prosecution witnesses at the cross-examination may have less weight and unreliable.  
49.	For reasons of the foregoing discussions court holds that defence evidence as unreliable and place less weigh in accepting the accused reasons as truthful. 
50.     That said though, I am reminded again of the law on proving of guilt. It is trite law that onus of proving guilt rests with the prosecution. (See, Supreme Court Reference N0. 1 of 1980; Re s 22A(b) Police Offences Act). 
51.	Is the prosecution evidence convincing and satisfy the requirements of proving guilt or obtaining a conviction? 
52.	Under cross examination witnesses maintained the allegations were never made up.  Witness Nassain Michael denied having any conflicts over land.  (Question 10 and answer cross-examination of witness at page 137 of judicial notebook.) In the record of interview this is what was recorded. “Q27.  “Why would Ruth make up all this stories? Answer: There was a dispute on the land that my wife and I are living on which was for wife’s parents and my wife’s sister and her husband are arguing over it.” 
53.	If there is a purported land dispute between the elder sisters how was the girl’s involvement in the entire dispute? Disputes or arguments over land usually involve grown up adults. Not kids. The girl was just a kid then. Where is the connection for the girl to make up the stories because of land dispute involving her older sisters? 
54.	I observed the girl was a bit timid. She was 13 when the alleged offences were committed on her. She is now 16 years. At times was a bit hesitant to answer certain questions under intense examination. But, with her uncle by her side she was able to pick up and answered questions. She maintain her story without any contradictions. 

MEDICAL EVIDENCE
55.     Let me make some comments on the medical evidence as I said I would earlier. 
56.	This aspect of the evidence came from the nursing officer Patricia Kauli. Defence argued the girl had had sex many times with others but not with the accused. There is no challenge from the defence of the fact that the girl had been taken to Paparatva Health Center where she had been examined by the witness. She was diagnosed with STI and was treated accordingly. 
57.	Under cross-examination the witnesses stated it is possible for a girl to contract STI from an untreated tear in the vagina caused by insertion of a finger. Whether or not she was qualified to give such an opinion is another issue which was never argued. Nonetheless, I am not convinced on strict application of the criminal onus of proof to accept that opinion. 
58.	The exact date when the accused introduced his finger into the girl’s vagina has not been established by evidence.  She was medically examined on 28 of November 2015. Court is therefore uncertain how many days after the last act of abuse the girl went to the Health Center. 
59.	She had gone for medical checkup not because accused had inserted his finger and caused some tear inside her vagina. She had gone because of abdominal pain and back ache.  Upon examination of her vagina she was diagnosed with STI and was treated.  There is a possibility that she may have contracted the disease through sexual intercourse with other males. Medical evidence is not conclusive in proving penetration.  Whether or not to accept the expert evidence of a medical doctor and attach such weight as it thinks fit to the medical evidence is a matter for the court to decide. See, The State v Paul Taupin & The State v Jim Kandamain (1995) 1323. 
60.	Hence, I cannot hold with certainty the girl contracted STI from an untreated tear in the vagina caused by the accused with insertion of a finger. That does not mean that there was no insertion of her vagina by a finger. That is still an issue to be decided conclusively. 
61.	The girl’s oral testimony was not seriously challenged and remains undisturbed. Is there any arguable reason for her to tell lies in court under oath? Witness respected the accused and his elder sister (accused wife). Both took care of her and provided support.  By customary standards being her “tambu” she cannot go close to him. Same would be expected of the accused.  When suggested to her accused should not have done these things to her (the abuses) the girl answered, no. I therefore hold the girl a truthful and credible witness. The court has no reason to disbelieve her and not accept her evidence. Her evidence has been well corroborated by the other two witnesses.  

62.	Back to answering the two remaining issues:
1.	Whether accused persistently and sexually abused the Child?
2.	Whether the accused sexually abused the child by introducing his finger into her vagina?

FINDINGS
63.     Court’s finding on the prosecution evidence are as follows. Accused had on three separate occasions shown his penis to the girl. That on one occasion when she was having shower he had held his penis in a masturbating motion directed at the girl.  
64.	That on the fourth and last occasion accused had entered the room got himself naked unknown to the girl who was asleep had laid on top of her and sexually penetrated her vagina using his finger.  
65.	The acts of sexual abuse was no doubt more than once targeted at the girl over a period of time. That amounted to persistent sexual abuse.  
66.	The court holds that such acts demonstrated by the accused were not only indecent acts but also amounted to acts of sexual abuse of a child for personal sexual gratification.  
67.	The court further holds that there existed a relationship of trust, dependency and authority between the accused and the girl. That accused was not only the girl’s brother in law by his marriage to the girl’s elder sister but also her guardian who the girl looked up for provision of welfare and support. 
68.	Based on the above findings evidence has essentially covered all the elements of the substantive charge of persistent sexual abuse of a child required proving by the prosecution as well as the alternative charges. Though, no conviction shall be entered for the alternative charges except for the substantive charge that was pursued. 
69.	Accordingly, the accused is found guilty of offence of persistent sexual abuse of a charge under 16 years of age under s 229D (1) (6) of the Act.
____________________________________________________________
Public Prosecutor	:	Lawyer for the State					
Public Solicitor	:	Lawyer for the Accused