State v Paki [2020] PGNC 60; N8252 (12 March 2020)

N8252

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 257 OF 2018

THE STATE

V

UGIL PAKI

Kimbe: Miviri J
2019: 08^th 10^th13^thMay
2020: 11^th March

CRIMINAL LAW– Practice and Procedure –Persistent Sexual Abuse S229D (1) (6)CCA– Trial–Denial– Sexual Penetration not in issue– Identification in issue– Credibility whom to believe – Accused assertion aged 105 years old – too old for sexual intercourse – incapability to have sexual intercourse– no motive for complaint against – Prosecution case credible – defence case incredible – rejected – prosecution upheld – guilty of persistent sexual abuse.

Facts

The accused over a period of time engaged in sexual penetration of the complainant a minor under 12 years old.

Held

Sexual penetration not in issue.
Identification made out against Accused
Guilty of persistent sexual abuse

Cases Cited:

John Jaminan v The State [1983] PNGLR 318
Kandakason v The State [1998] PGSC 20; SC558
Waranaka v Dusava [2009] PGSC 11; SC980

Counsel:

M. Tamate & E Kave, for the State
B. Takua, for the Defence
VERDICT
12^thMarch, 2020

1. MIVIRI J: This is the verdict of an accused who repeatedly had sexual penetration of a 12-year-old girl contrary to section 229D (1)(6) of the Criminal Code Act. He was also charged in the alternative that he sexually penetrated a girl under 16 years old contrary to section 229A (1) of the Code.
   
2. The principle section 229D reads (persistent sexual abuse of a child):
   

(1) A person who, on two or more occasions, engages in conduct in relation to a 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 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.

3. Section 229D (1) and (6) were invoked against the Accused. Prosecution had to prove that the accused had over the stated period acted sexually to the complainant. And a minimum of two acts of a sexual nature contrary to the provisions of division 2A of the Code. These would include sexual penetration of a minor under section 229A, sexual touching under section 229B, indecent act directed at a child under section 229C and of course section 229D itself. But here there would be a minimum of two or more acts.
   
4. It was Charged that between the 1^st of January 2016 and the 1^st of January 2017 at Mosa, Kimbe the accused engaged in persistent sexual abuse of one Gertrude Kawas alias GK who was 12 years old at that time. Accused sexually penetrated her over the course of that period at various locations where he took her to. He touched with his penis GK’s vagina. She was then 12 years old.
   
5. Alternatively, Accused was charged that he between the 1^st January 2016 and the 1^st of January 2017 at Mosa, Kimbe, sexually penetrated GK who was a child under 16 years old. She was 12 years old and he inserted his penis into her vagina.
   
6. It was alleged that between the 31^st March 2016 and the 31^st April 2016 GK was selling greens at the local market. Accused enticed her with money took her to his home where he inserted his penis into her vagina and had sexual intercourse with her.
   
7. Again, when accused saw GK at the compound where they lived, he took her to the toilet and sexually penetrated her by inserting his penis into her vagina. He did this on several occasions over that period and the last act took place on the 1^st January 2017. The next morning the 2^nd January 2017 the parents saw her walking awkwardly prompting them to ask her which led to revelation of the allegation against the accused.
   
8. She was medically examined, and sexually transmitted disease was confirmed, and so report was made to Police leading to his arrest. He denied the allegation upon arraignment and explained that he was incapable of having sexual intercourse that he had left his wife because of that fact. He was 105 years old and could not engage in sexual intercourse.
   
9. The prosecution evidence comprised Exhibit S1(a), 1(b), 1(c), 1(d), 1(e), 1 (f), 1 (g). These were photographs taken of various locations leading to the house of the accused where he allegedly took the complainant to and had sexual intercourse with. They were taken by the security superintendent of Mosa New Britain Oil Palm one Patrick Ga’a.
   
10. Exhibit S2 and S2A were the medical report by Doctor Alfred Raka assistant company doctor Mosa Clinic New Britain Palm Oil Limited. He described amongst other matters that she was brought in because she was alleged to have had sexual intercourse with a man and had trauma to her genital area. She was not walking properly.
    
11. The examination around the genital area revealed multiple sores which were painful around the vagina and the vulva, there was offensive smell from the vaginal discharge, cervix looked inflamed and bleeding when touched, and there was offensive discharge from the cervix. A high vaginal swab was taken in the vagina and the cervix had laboratory tests done. This examination showed that she was infected with sexually transmitted disease. Obviously, she acquired this infection through vaginal sex. She was treated with antibiotics.
    
12. Exhibit S3 is the statement by the corroborating officer Detective Aloysius Baruku in the record of interview. Exhibit S4 was statement of Police informant Policewoman Detective Francisca Gambi who conducted the record of interview with the accused on the 27^th January 2017. Pidgin version was exhibit S5B. There accused maintained that he did not commit the offence as he was too old. He placed his mark acknowledging.
    
13. Established beyond all reasonable doubt were the following facts which were undisputed. She was born on the 23^rd May 2004 and as at the date of the allegation 1^st January 2016 to the 1^st January 2017 she was 13 years old as of the 23^rd of May 2017. And was 12 years old on the 23^rd of May 2016. From the 1^st January 2016 up to the 23^rd May 2016 she was under 12 years old and was penetrated sexually in her vagina by a male penis. This continued up to 1^st January 2017. She was under 16 years old therefore an offence under section 229A (1) & (2) was committed against her. There were multiple acts of sexual penetration over that period culminating in sexually transmitted disease and multiple sores around her vagina and vulva area. She was also touched and penetrated in her vagina by a male penis and therefore acquired sexually transmitted disease. This satisfied the requirement of law that there were at two or more occasion of sexual intercourse committed upon her. There was therefore satisfaction to the required balance of this element by the section. All that now remained was as to the person responsible and who committed these acts upon her to be identified to sustain the charge brought.
    
14. That is who sexually penetrated the prosecutrix GK over that period from 1^st January 2016 to the 1^st of January 2017?
    
15. GK was called on oath. She was obviously a young child under 16 years old then. Her evidence was very clear that the person who did what was alleged was Ugila. He was the tractor driver at Mosa. He came to the market where She was marketing greens and lured her to follow him with money K10 or K20. She followed him to his house where he would put his, “pispis into my pispis” interpreted he inserted his penis into my vagina and had sexual intercourse with me. This occurred over that period and the last act of sexual intercourse led to her being injured and when she woke the next day 2^nd January 2017 because of the awkward manner of the way she walked the parents enquired leading to the uncovering of the acts by the accused named by her to them.
    
16. She gave her evidence in a forthright manner and was unshaken in cross examination. In fact she strengthened her evidence even more after closure of cross examination. She described how the accused told her to open up her legs and spread them to either side of the wall of the toilet sitting her on the basin which happened to be the toilet bowl. And also detailed by stating again and again that he put his, “pispis into my pispis” describing sexual intercourse in intimate and intricate detail. When he showed me money, I would follow him. He did these many times. She was immediate and very well responded in her evidence. She was particular with the day of the offence for example, “Tuesday, Friday” and these particulars strengthened her evidence. Its structured credibility into her evidence. She had no ulterior motive to lie or to make up a story against the Accused. She identified him well and truly by his name and the position that he held within the company the tractor driver which the accused confirmed also. He corroborated by not giving any motive to why she would pick on him for the allegation. There was no issue as to the identification of the accused. The offence on each occasion over the period was committed in day light and therefore there was no issue on this aspect. She identified the photograph of the toilet as the place where he had sexual intercourse including the living room. She confirmed that after intercourse in the living room in December 2016, she felt pain in her vagina. She went to the house and her mother asked because of the awkward way that she walked, and she enlightened that it was the accused who penetrated her. She knew him by name because he took her to his house and told her his name.
    
17. I make similar observations in respect of Anna Kawas the mother of the complainant who I hold out as a witness of the truth. She was immediate to the questions that were posed to her by counsel and responded intelligently and collected. She was firm stating that together with her husband Kawas Gore asked GK as to why she was walking in an awkward manner. The response was as set by GK in her evidence that it was as a result of pain in the vagina after sexual intercourse with the accused Ugil. She is to be commended as she went and asked Ugil as to the allegation made by her daughter. She did not take the law into her own hands. She merely made enquiries. She did not pin accused with the matter as he stated. And this is so of her husband who acted within law. Accused on the other hand responded affirming in GOD with a stone in his hand that he had not committed what was alleged. There is no mention that both she and husband demanded money from accused as he put it in his record of interview. Nor did he give any reasons as to why she was making a false allegation against him in the matter. It was a personal intimate matter and for her to put a name that it was the accused there ought to be very good reasons not to believe her account and evidence.
    
18. Both mother and daughter were independently corroborated by Doctor Alfred Raka assistant company doctor Mosa Clinic New Britain Palm Oil Limited by his professional and detailed well set out medical report which I set out above. There is therefore independent verification of the account of GK and then her mother was vigilant and took the child to the Mosa Clinic for examination medically. She did not as would all other parents faced similar and take the law into her own hands. She rather resorted to getting the facts to verify what her daughter told her. And it was credit to her behaviour that the evidence is watertight by this independent corroboration. She is therefore in my view a witness of the truth which is also the case of GK. Both have no motive against the accused and only the truth. Their credibility was not questioned in any form or manner in the examination by counsel for the accused. I am left with nothing but to take their evidence in full. In so doing I reject the evidence of the accused.
    
19. Ugil Paki gave evidence in defence denying the allegation made stating it to be false. He never ever had sexual intercourse because he was incapable and sent his wife of 9 children to go away and get married to another man. He simply could not fulfil her sexual needs because he was impotent. He was calculated and determined to paint without any independent verification that he was a 105-year-old man with no competency to perform sexual acts. He did not produce any evidence of date of birth nor did he produce any records either from employment at Mosa or back home to say that he was born on a particular date and therefore at the time of the allegation he was therefore 105 years old. Added with medical evidence of his sexual impotence. He was simply trying to sway that he was an old man and could not perform sexual intercourse. But it was uphill to believe that he would just let his wife of 9 children just go like that was against common sense and logic. Nine children would be not born overnight or within a matter of minutes but over years of relationship. Obviously, the bond would not have been fragile as he painted it to be. Alternatively, in his favour he did not call the wife nor did he produce to say what he was contending so that what he asserted was not just fantasy but reality verified from that angle. It was clearly false evidence painted to avoid the truth by the prosecution which effect was to bring into play: John Jaminan v The State [1983] PNGLR 318 (29 September 1983). False denials made out of a conscious sense of guilt corroborated the account of the prosecution. His assertions and his evidence were self-serving. They were not independently verified as to their truth and veracity. He was climbing on slippery rocks that simply plumped him back into the water. There was no foot hold to bring his head above water in his case. He agreed that he was the tractor driver at Mosa with the evidence of the mother and daughter.
    
20. I draw support in Kandakason v The State [1998] PGSC 20; SC558 (7 July 1998); Waranaka v Dusava [2009] PGSC 11; SC980 (8 July 2009) assessment of logic and common sense and consistency in evidence are important tests for credibility of witnesses and their testimony. Any serious unexplained inconsistency in evidence and evidence not in keeping with logic and common sense are basis for rejection of such evidence. That is not the case against witnesses of the State. I therefore reject the accused evidence in total and hold that the truth verified is that account by all state witnesses.
    
21. I assess his evidence to be a very feeble and weak attempt to distort the truth amplified independently by the medical evidence. There is no motive upon the evidence of the mother and the daughter to come to court and to lie about the accused. He has not produced any evidence in this regard to effect their credibility so as not to believe them. His evidence is false because there is no medical or other evidence to say he is medically impotent to have sex. Nor has it been established that he is 105 years old. It is just not possible given. It would be a subject of the Guinness book of record if that were so. In all respects it is unbelievable and false. It has been made clear with intent to distort the truth that has been brought by the State. The effect in law is that his false denials corroborate the account of the state witnesses.
    
22. The totality is that, I reject his case and uphold the prosecution case. I find him Ugil Paki of Marise, Magarima, Hela Province guilty of persistent sexual abuse of GK between the 1^st of January 2016 and the 1^st January 2017 at Mosa, Kimbe who was 12 years old and a child. And that in the course of that persistent sexual abuse He, Ugil Paki of Marise, Magarima, Hela Province engaged in an act of sexual penetration of GK who was then 12 years old. And that in the course of that persistent sexual abuse he, Ugil Paki of Marise, Magarima, Hela Province touched with his penis the sexual parts, namely the vagina of GK then 12 years old.
    
23. The verdict is guilty of persistent sexual abuse contrary to section 229D (1)(6) of the Criminal Code Act.
    
24. I make no finding in respect of the alternative count as that was an alternative in the event that this principle charge was not sustained.
    

Orders accordingly.
______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for Accused