State v Tulungen [2020] PGNC 325; N8543 (12 August 2020)

N8543

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 244 OF 2018

THE STATE

V

BERNAT TULUNGEN

Kokopo: Suelip AJ
2020: 13^th, 17^th, 21^st, 24^th, 28^th July & 12^th August

CRIMINAL LAW - trial - verdict - accused charged for persistent sexual abuse of a child s 229D(l)(6) Criminal Code as amended - first occasion in kitchen - second occasion in garden drain - accused is first cousin to complainant's step mother - accused denies complainant is of blood relation - accused in position of trust, authority and dependency- accused aware of complainant age - accused denies committing the offence - alleges he and complainant were in a relationship - consent is irrelevant to prove or disprove offence - proof beyond reasonable doubt - guilty

Cases Cited

Rodney Paul v. The State (2017) SC1630 The State v. So 'on Torah (2004) N2675
The State v. Michael Ramram (2017) N7012

Legislations

Section 229D (1)(6) of the Criminal Code as amended
Section 6A(2)(c) of the Criminal Code

Counsel

L Rangan, for the State JM
Ms. Ainui, for the Prisoner

VERDICT

12^th August, 2020

1. SUELIP AJ: On the 14 May 2019, you, Bernat Tulungen, were indicted
on two (2) acts of persistent sexual penetration pursuant to section 229D(1)(6) of the Criminal Code, as amended. It is alleged you committed the offence between 1 June 2017 and 21 November 2017 at Ratongor Village, Reimber/Livuan LLG, Gazelle District, and at Warapukpuk, Inland Baining LLG, Gazelle District, East New Britain Province, respectively.

2. You denied the charge which resulted in a trial being conducted on 13
July 2020.

3. Parties filed written submissions and presented oral submissions in Court on 28 July 2020.

4. This is now my ruling on verdict.

Facts

5. The State alleged that one evening at about 5pm on an unknown date in
June, 2017, the victim, Joan Passingan, a 14-year-old, school girl, doing grade 6 at Ratongor Primary School, was walking towards the beach to have her
shower. Whilst sitting under your house, you called her and she came to you. You then pulled her by her hand into the inside part of the kitchen, forcefully undressed her and introduced your penis into her vagina. She felt pain and bled, as this was the first time in her life to have sexual intercourse with a man. You showed her a small knife about 40 - 50cm long and said you would kill her with it if she told anyone about what had happened, and then you let her go. It is alleged at that time, the victim was 14 years old and a student. She did not tell anyone about what had happened because you had threatened to kill her.

6. It was also alleged the second act of persistent sexual abuse occurred on
20 November 2017 when the victim was sent by her mother to go and weed their garden. Whilst the victim was busy weeding at their garden, you approached her, pulled her by her hand down to a nearby ditch, pushed her down onto the ground and forcefully sexually penetrated her by inserting your penis into her vagina. Whilst you were sexually penetrating the victim, her mother came calling the victim and saw what you were doing to her daughter.

7. You are charged with persistent sexual penetration pursuant to section 229D(1 )( 6) of the Criminal Code Act.

The offence

8. Section 229D(1)(6) of the Criminal Code provides:

(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.

(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.

9. In order to prove the offence of persistent sexual penetration of a child under s 229D(1)(6) of the Criminal Code, the State must show evidence to establish that you engaged in an act of sexual penetration with a child and that there is more than one occasion of the offence being committed to the same victim. See The State v. Michael Ramram (2017) N7012.

10. The elements for the State to prove beyond reasonable doubt are:

(a) a person

(b) on two or more occasions

(c) engages in conduct in relation to a particular child

(d) the conduct constitutes an offence against this Division

Issues

11. The issues are:-

(i) Whether you introduced your penis into the complainant/victim's vagina on both occasions.

(ii) Whether the complainant/victim was under 16 years old on both occasions.

Evidence by consent

12. By consent, the State tendered the following evidence:

Document Exhibit
(a) Record of Interview - Pidgin version (3/12/17) Sl
(b)Record of Interview -English version (3/12/17) S2
( c) Statement of Arresting Officer Lovelyn Jiama (23/01/18)S3
( d) Statement of Corroborator - Martin Vitolo ( 15/12/17) S4
(e) Medical Report dated 30/11/17 S5
(f) Affidavit of Dr. John Tate sworn 6/02/18 S6

Summary of the State evidence

13. The State called three witnesses who are the complainant, Joan Passingan, the complainant's stepmother, Lucy Anthony, and the complainant's father, Joshua Anthony.

14. In summary, the complainant's sworn evidence, inter alia, is that she was born on 24 October 2002. You are an uncle to the complainant as your mother and the complainant's stepmother are sisters. In relation to what happened in the kitchen in June 2017, you locked the door, pulled her inside, removed her trousers, then pushed your penis into her vagina. She felt bit of pain and blood came out of her vagina as that was her very first time in her life to experience sexual intercourse with a man. You had shown her a knife and told her that you would kill her with it if she told anyone about what had happened.

15. Further, the complainant gave evidence in relation to what happened in the drain where you suddenly appeared at the garden, pulled her into a drain and forced her to remove her trousers. When she refused, you removed her trousers yourself and pushed your penis into her vagina. She felt a bit of pain and her vagina bled a little. You showed her a 40 - 50 cm long knife belonging to her stepmother Lucy and threatened to kill her with it if she told anyone. As you were lying on top of her, her mother arrived and saw you. The complainant got up and you fell to the grass. The complainant went to her mother, crying. She denied being in a relationship with you at any time.

16. In regard to Lucy Anthony's sworn evidence, inter alia, Lucy testified that Joan's date of birth was 24 October 2002 and she started looking after Joan when she married Joan's father in 2006 when Joan was just 4 years old. She gave evidence that on or about 20 November 2017, she went looking for Joan at the garden and she stood from about 7 to 8 metres away when she saw you sleeping on top of Joan. This supports the complainant's evidence of feeling your penis entering her vagina.

17. Evidence from the complainant's father, Joshua Anthony is mostly hearsay as he was told of the second incident by his wife, Lucy. He testified that he was so angry that he went looking for you but did not find you. He returned home frustrated and assaulted both the complainant and his wife before he sent them to the hospital for examination the next day.

18. According to the medical report by Dr. John Tate, dated 30 November, 2017 (exhibit S5"), the doctor concluded that there was sexual assault, as proven by a fresh tear of the introitus. This collaborates the complainant's evidence about what happened in the drain.

19. Defence did not cross-examine Joan, to comply with the rule in Brown v- Dunn towards establishing that Joan would have sustained the injury on her vagina in other ways, like she had sex with another person, or you or the complainant herself pushed your or her fingers into her vagina.

Summary of Defence evidence

20. You deny committing the offence and you are the only witness in your Defence. You testified as follows: -
    

(i) You said the complainant was your girlfriend and your relationship lasted for 1 year and 7 months. You said that you found the complainant at the garden. You denied threatening her but you both were at the drain when you heard the complainant's stepmother, Lucy Kurai calling out for her three times. On the third call, the complainant left you and went to her stepmother. She told Lucy that she was relieving herself in the drain. Lucy then followed the path that the complainant had come from and saw you. She called your name and you said that you were with the complainant. She then told you to leave and you left.

(ii) You also denied the first occasion in June 201 7 when you were alleged to have raped the complainant in the kitchen. When asked why the complainant would say that you raped her, you responded she was brought to Court and told to say that you had raped her.

(iii) During cross-examination, you maintained your story that you had never raped the complainant. You said you and the complainant had a boy/girl relationship for 1 year and 7 months.

Analysis of the evidence

21. It is an established fact that you are the complainant's uncle by marriage. You and the complainant's stepmother are first cousins as your mothers are sisters.

22. You deny you are related to the complainant by blood. Technically, this is true but in our local setting where family relations are highly regarded whether it is by blood, adoption, marriage or simply taking care of someone outside your bloodline. You are regarded as the complainant's uncle by relation of her stepmother, who is your first cousin. See section 6A(2)(c) of the Criminal Code Act and Rodney Paul v. The State (2017) SC 1630.

23. Your cousin sister who is the complainant's stepmother was not only angry at you but also shameful of your act towards her stepdaughter. You were expected to protect and care for the complainant but instead you took advantage of her vulnerability and forced her into sexual acts. There existed a relationship of trust, authority and dependency, and you breached it.

24. If your cousin sister did not catch you in the act, she would have not been upset with you nor would she have reported you to her husband and to the police. Neither would she have taken the complainant to the hospital for medical attention. Some other relatives would have hidden the truth to protect the family name, but your cousin sister did not hesitate to report this matter.

25. Further, there is evidence in the Record of Interview when you said this matter was mediated in the village where your mother and uncle paid Kl000 and 100 fathom of shell money. Any payment of compensation showed that what you did in fact happened and that was your way of saying you were sorry.

26. All evidence put you at the scene of both occasions the alleged offence was committed. Although you deny both incidents, you answered in the record of interview that you did invite the complainant into your kitchen in June 2017 and further, your cousin sister Lucy, caught you lying on top of the complainant in November 2017 at Warapukpuk. You never denied being elsewhere at both times.

27. More importantly, although you deny you sexually penetrated the complainant on both occasions, the medical report obtained after the second incident revealed otherwise. You did not appear to be telling the truth. Your demeanour was not impressive. See The State v. So 'on Torah (2004) N2675 where His Honor Justice Kandakasi (as he was then) says at page 5 of the judgment:

"Finding credibility is in turn dependent on matters of logic and common sense as well as the demeanour of the witnesses and consistencies in their evidence ".

28. You testified in Court that you were aware the complainant was under the age of 16 years old in 2017 because the complainant told you her age prior to alleged abuses. You knew that she was still at primary school then.
    

29. You claim that there was a boy/girl relationship between you and the complainant, implying there was consent from the complainant for you to have sex with her. Consent is not required to prove or disprove this offence. Above all, the complainant denied ever being in a boy/girl relationship with you.

30. You also did not take any issue with the medical report dated 30/11/17 by Dr. John Tate. In this report, the doctor found, inter alia, that there were "no bite marks in pelvic/peri-vaginal area but the vulvar/vagina/hymen was partially loose, admitting 2 fingers and a fresh tear noted at 7 o'clock position of the introitus with no active bleed and no obvious semen noted but whitish discharge only noted" (my underline). Thus, this evidence remains undisputed.

Finding of facts

31. Based on the analysis of evidence, I find that you sexually penetrated the complainant on 2 separate occasions. The first time was in your kitchen in June 2017 and the second time was in the drain of the complainant's family garden at Warapukpuk in November 2017. I also find that the complainant was under the age of 16 years on both occasions.

32. Apart from these, I find there existed a relationship of trust, authority and dependency between you and the complainant, and you breached that relationship.

Verdict

33. I am therefore satisfied beyond reasonable doubt that the State has proven each element of the offence you committed.

34. I find you guilty of the offence.
_____________________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused