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State v Ova [2021] PGNC 469; N9335 (21 June 2021)

N9335

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR NO. 1408 OF 2020


THE STATE

V

AIYE OVA


Goroka: Gora J
2021: 01st June & 21st June


CRIMINAL LAW- Charge of Sexual Penetration – Alternative charge of Sexual Touching of a female child under the age of 12 years – Plea of not guilty on both counts – Matter for Trial.


CRIMINAL LAW- Victim deaf and dumb and partially disabled – Evidence all circumstantial – Victim points to the accused as the person who caused injuries to her vagina.


CRIMINAL LAW- Circumstantial evidence all pointing to direction of the accused – Accused guilty as charged and convicted accordingly on charge of sexual penetration – Alternative charge of Sexual Touching not necessary.


Cases Cited:
Paulus Pawa v The State [1981] PNGLR 498
State v Tom Morris [1981] PNGRL 493
James v The Sate [2020] PGSC 39


Counsel:
Mr. J Noma, for the State
Mr. V Agusave, for the Defendant


DECISION ON VERDICT

21st June, 2021


  1. GORA J: INTRODUCTION: Accused AIYE OVA is indicted with one count of Sexual Penetration pursuant to Section 229A (1) & (2) of the Criminal Code Chapter 262 and an alternative count of Sexual Touching pursuant to Section 229B (1) (a) & (4) of the Criminal Code Chapter 262. The indictments on both counts are in the following terms:

“COUNT1: AIYE OVA of APOMAKA village, OBURA WONENARA District in the Eastern Highlands Province stands charged that he on the 07th day of December 2019, at Konarot village, Kainantu in Papua New Guinea sexual penetrated one Ruth Michael, a female child under the age of twelve (12) years, then age eleven (11) years old by inserting his finger into her vagina. Thereby contravening Section 229A (1) & (2) of the Criminal Code Chapter 262.


COUNT 2: ALTERNATIVELY THAT the said AIYE OVA of APOMAKA village, Obura - Wonenara District in the Eastern Highlands Province stands charged that he on the 7th day of December 2019, at Konarot village, Kainantu in Papua New Guinea sexually touched, with his hand the sexual part, namely the vagina of the said Ruth Michael, a female child under the age of twelve (12) years, then eleven (11) years.

Thereby contravening Section 229B (1) (a) & (4) of the Criminal Code Chapter 262.”


  1. Prisoner pleaded not guilty to both counts and a trial was conducted, hence this decision on verdict.

FACTS

  1. State alleges that in 2019 the victim RUTH MICHAEL was eleven (11) years old staying with her family in Konarot village in Kainantu District. The victim is deaf and dumb and partially disabled. Victim’s parents are both pastors of Nazarene church at Konarot village.
  2. Accused is a fisherman at a nearby lake and is a friend of the victim’s family. He often brings fish from his catch to share with the victim’s family and is known to the family.
  3. On the 07th of December 2019 in the afternoon hours, victim was with her brother and sister at the family house whilst her elder brother and her other sister went with their mother to the garden away from the house.
  4. The accused showed up at the house and told the victim’s other brother and sister who were with her to go and look for firewood. After they left, the victim was with the accused in the house. It is alleged the accused with his hand sexual touched and inserted his fingers into the victim’s vagina for sexual purposes.
  5. When the victim’s mother returned from the garden, she saw the accused sitting with the victim on the lawn outside the house. She became curious of the accused’s presence in the house and could sense something was wrong. Then she noticed heavy bleeding coming out from the victim’s vagina. When she asked the victim, who did this to you, she pointed to the accused. The victim them led the mother into the house and pointed to a bed in the house where the accused had sexually abused her.
  6. The matter was reported to the Police at Yonki Police Station and accused was arrested thereafter.

ISSUES

  1. Whether the accused sexually penetrated the victim’s vagina with his finger?
  2. Alternatively, whether the accused sexually touched with his hands the vagina of the victim for sexual purposes?

THE LAW


  1. The law on the charge of Sexual Penetration of a child is created by Section 229A (1) & (2) of the Criminal Code. It also prescribes the penalty. The provisions reads:

“(1) A person who engages in an act of sexual penetration with a child under the age of Sixteen (16) years is guilty of a crime; Penalty imprisonment for a term not exceeding twenty five (25) years;


(2) If the child is under the age of twelve (12) years, an offender against sub-section (1) is guilty of a crime and is liable, subject to section 19, to imprisonment for life.”


  1. The law on the charge of Sexual Touching is created by Section 229B (1) (a) & (4) of the Criminal Code. It also prescribes the penalty. The provision reads:

“(1) A person who, for sexual purpose – (a) touches with any part of his or her body, the sexual parts of a child under the age of sixteen (16) years is guilty of a crime. Penalty: Subject to Subsection (4) and (5), imprisonment for a term not exceeding seven years.


(2) If the child is under the age of twelve (12) years an offender under Subsection (1) is guilty of a crime and is liable to imprisonment for a term not exceeding twelve (12) years.”


ELEMENTS OF THE OFFENCES

  1. Offence of Sexual Penetration of a child - Elements of this offence are spelt out in the provisions of Section 229A (1) & (2) of the Criminal Code. The elements are:
  2. Offence of Sexual Touching – Elements of this offence are spelt out in the provisions of Section 229B (1) (a) & (4) of the Criminal Code. These are:
  3. The onus is on the State to prove all the elements beyond reasonable doubt to secure a conviction. I will discuss the elements in detail later in the judgement.

STATES EVIDENCE
Documentary Evidence


  1. State tendered the following documentary evidence by consent:

Oral Evidence


  1. State called two witnesses, Clara Michael and her son Elijah Michael

Evidence of CLARA MICHAEL


  1. Evidences in Examination in Chief – Clara Michael is the mother of the victim Ruth Michael. Her evidence in Examination in Chief is that she is married to Michael and they are both pastors in the Nazarene Church at Konarot village. They have six (6) children, three (3) males and three (3) females. Their names are Elijah (m), Ruth (f), Benjamin (m), Deborah (f), Naomi (f) and Elisah (m).
  2. She says she did not attain any formal education. She had come to court because a Gasup man (referring to the accused) did trouble and they put him in custody.
  3. She told court that on the 07th of December 2019, a Saturday morning she planned to go to the garden. Before she left a man from Gasup, the accused, came to them with three (3) fish. She said she does not know the name of that man, but he is from Gasup and knew him by face. She recognized him in court by pointing at him. She said when the accused brought the three (3) fish, they cooked and they all ate. She then told him (accused) to leave because they were going to the garden and that their father was not at home at that time. After the accused left, she told Elijah and Deborah to accompany her to the garden. She told Benjamin, Elisah and Naomi to remain at the home and take care of Ruth as she was a disabled child. Ruth became disabled when she became ill with malaria and typhoid at the age of five (5) year old.
  4. She told court that when they returned from the garden that afternoon, they were met by Benjamin and Elisah, she asked them for Ruth and Naomi and Benjamin replied that Naomi went with her school mates and Ruth is in the house with the man from Gasup (accused). She immediately became curious why the accused had come back to their house after he had left in the morning. She also wondered why the accused comes to their house at times when their father is away.
  5. She then recalled the first time the man visited them in their father’s absence. He asked them to buy him a fishing net but she told him their father is not at home so he can go back. On another occasion he came back the second time, but she told him to go away because their father was not home. It was on the third occasion when the incident took place.
  6. Because she was so curious, they hurried back to the house. When they arrived at the house, they saw Ruth (victim) sitting with the accused outside the house on the lawn. When she saw the accused, she did not agree and said to him “I already told you to go and why are you here?” He replied, “I came back to stay with the small children.” She called the victim and asked her if she is okay, but because she is unable to talk as her speech was affected when she was sick, she could not say anything. At that moment, witness noticed the victims black skirt which she wore on her in the morning was wet. So, she lifted up the victim’s skirt and noticed she wore no pants and she saw plenty of blood on her thighs. She checked her again and saw blood coming from her vagina.
  7. She asked the victim “who did this to you?” the victim pointed to the accused where he was sitting. She asked the accused “why did you do this to Ruth, she is only a small child, a little girl.” The accused replied “sorry I did not do anything to her.” She told him that victim is full of blood, why did you do this to her. He replied again and said “I did not do anything to her you are just suspecting me.”
  8. Witness then informed all her children that the accused had assaulted Ruth and she is bleeding, but the children did not understand. They felt sorry for Ruth and cried.
  9. She told the court that her first born child Elijah ran to inform the church members nearby and the community of the incident. He told them that the accused had assaulted Ruth. When the church members heard this, one of them namely Zepta ran to their house and held accused’s hand and asked him “why did you do this to the pastor’s daughter,” he replied: “I did not do anything to her.” Zepta asked the accused second time but he continued to deny and said “you all have bad feelings against me.”
  10. Witness says she lifted the victims skirt again and Zepta saw blood on Ruth’s thighs, so he fought the accused. By then other community member’s had arrived and they all fought the accused and took him to the police station where he was arrested and locked up. At the same time, they took the victim to the hospital, she saw that the victim was still bleeding from her vagina. At the hospital nurses noticed she was still bleeding from her vagina and they also noticed lacerations and bruises on her vagina.
  11. Witness further told court that Ruth was eleven (11) years old at the time of the incident. She was born on the 24th June 2008 and was now thirteen (13) years old. She said Ruth was born normal but in 2013 she had malaria and typhoid and was in the hospital for three (3) months, but she became partly paralyzed and lost her speech. She also lost her strength and cannot do anything with her hands.
  12. She further told the court that she often dresses the victim by changing her cloths because the victim is unable to do that herself due to her disability and her hands being paralyzed.
  13. When asked if she had seen the victim’s monthly period before, she replied no.
  14. Evidence in Cross Examination – witness gave evidence in cross examination and stated that the victim’s ability to talk was affected when she was sick with malaria and typhoid. Before she became sick, she was able to talk but now she cannot. She can hear and understand but cannot talk. She can follow what she is asked to do. She communicates using signs. She stated that sometimes she gives work to the victim to do but because her hands are weak, she cannot do much.
  15. She further stated that when she returned from the garden with her two other children in the afternoon of the day of the incident, she saw the victim and the accused sitting outside of the house on the lawn, she thought bad about the accused. And upon checking the victim she saw her black skirt was wet and she saw blood on her thigh.
  16. Witness said she did not see and hear what really happened, but she suspected the accused because they were alone in the house by themselves.
  17. It was put to the witness that the accused did nothing to the victim, but it was the victim herself who scratched her vagina. She replied by saying that if the accused was not there alone with the victim, she would not have suspected him. It was further put to her that accused was looking at a magazine and victim came and played with him, but he did not want to play with her, so he pushed her away and accidently touched her vagina. In response the witness stated that no one saw anything, and nobody knows what happened. But because the accused was the only person there with the victim at that time, he was suspected of committing the offence.
  18. Witness also told court that before she went to the garden, she dressed up the victim by putting on her black skirt and pants but when she returned and checked her, there was no pants on. It was suggested to her that the victim may have removed the pants unconsciously, she replied “yes, but she had dressed her up before she went to the garden.”
  19. In re-examination witness told court that sometimes the victim does remove her clothes unconsciously but is not able to put them on herself.

Evidence of ELIJAH MICHAEL

  1. Evidence in Examination in Chief - Elijah is the elder brother of the victim. His evidence in examination in chief is that his father’s name is Michael and mother’s name is Clara. He is thirteen (13) years old and goes to school at Anava Primary School. He is in grade 6. He resides at Konarot with his parents. He has three (3) sisters and has two (2) brothers. His sister’s names are Deborah, Naomi and Ruth.
  2. He recalls 07th December 2019 he and Deborah accompanied their mother to the garden. At about 5:00pm they returned from the garden. When they were returning, they met his two (2) brothers Elisah and Benjamin on the road. Mother asked them “where is Ruth and Naomi.” They replied “Ruth and Naomi were with the Gasup man referring to the accused.”
  3. When they reached the house, they saw Ruth and the accused sitting outside of the house on the lawn. When mother checked Ruth, she saw her skirt was wet and blood on the thighs. Mother said to them Gasup man has spoilt Ruth. When they heard this, they were worried, and they cried.
  4. He says he then went to inform other church people of what had happened. The community people came and fought the accused and took him to the police station and locked him up.
  5. He said he knows that accused. He was able to recognize him in court by pointing at him.
  6. He said that when the villagers fought the accused, he told them that he did not do anything.
  7. There were no questions put to the witness in cross – examination and defense did not wish to call further witnesses, and formally closed its case.

DEFENCE EVIDENCE


  1. Accused was the only witness for the defense but he opted to remain silent which was his right to do so. Defense called no other witnesses.

ANALYSIS OF EVIDENCE
Elements of the charge


  1. As alluded earlier the onus of proving elements of the charges of Sexual Penetration of a Child and Sexual Touching rests with the State. It is up to the State to adduce all relevant evidence to prove these elements beyond reasonable doubt.
  2. On the charge of Sexual Penetration:
  3. On the charge of Sexual Touching:
  4. It is clear that State’s evidence is largely circumstantial except for admission made by the accused that he touched the victim’s vagina with his hand by accident.
  5. The remaining elements of in respect of the both charges are:
  6. There is no direct evidence to show existence of these three (3) elements but is based on circumstantial evidence.

The law on circumstantial Evidence

  1. General proposition on circumstantial evidence is that when a case against the accused person rests substantially upon circumstantial evidence there should be an acquittal unless all the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused.
  2. Further proposition is that if we find a variety of circumstances all pointing in the same direction convincing in proportion the number and variety of those circumstances and their independence one of another, although its separate piece of evidence, standing alone, may admit of any innocent interpretation, yet the cumulative effect of such evidence may be overwhelmingly proof of guilt.
  3. In the case of Paulus Pawa v The State [1981] PNGLR 498, the court stated that: “When a case against an accused person rests substantially upon circumstantial evidence there should be an acquittal unless all the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilty of the accused.”
  4. Therefore, the judge must exercise great care in such cases and be aware that any inference drawn must be tested against the exclusion of any reasonable hypothesis that would indicate innocence.
  5. In the case of State v Tom Morris [1981] PNGRL 493. The court held that: “Where there are a number of competing inferences, it is a question of fact for the court to decide which inference should be drawn, which to be rejected and which are reasonable, which are mere conjecture, and which party, if any they favor.”

Assessment of Facts and Circumstantial Evidence

  1. In the present case the accused visited the victim’s family at their home on the morning of 07th December 2019. He brought three (3) fish for them. He is familiar to the family as he has visited them on few other occasions in the past bringing some fish for them. They cooked the three fish, and they all ate. The mother of the victim told the accused to leave because she had planned to go to the garden and also their father was not home at that time. So the accused left.
  2. After the accused had gone the victim’s mother and two (2) of her other children went to the garden. They left the victim and three (3) other children in the house. These three (3) other children were told by their mother to take care of the victim as she was a disabled child.
  3. Whilst they were in the garden, the accused came back to their house. He told the three children, who were in the house with the victim, to go out and look for firewood, leaving him (accused) and the victim child alone, just themselves in the house.
  4. When the mother and her two other children were returning from the garden that evening, they met the other two children on the road who were sent by the accused to collect firewood. The mother asked them about Ruth (victim) and they told her she was in the house with the accused who had come back.
  5. It troubled the mothers mind and was curious why the accused had come back to their house because she had already told him to leave in the morning as they were going to the garden and their father was not at home.
  6. They hurried back to the house and upon arrival they saw the accused sitting with the victim outside the house on the lawn. Their mother was not happy to see the accused at their home and asked him why he had come back. He replied he came to stay with small children.
  7. At that instance their mother noticed that the victims black skirt was wet, so she called the victim and checked her. When the mother lifted the victims skirt she saw she had no pants on and there was blood on her thighs. When she did a further check, she saw blood coming from the victim’s vagina.
  8. The mother asked the victim, “who did this to you,” but the victim could not say anything as she was unable to talk due to her disability but instead pointed to the accused who was sitting nearby. The victim then led the mother into the house and pointed to a bed where the accused had abused her.

Facts not in dispute

  1. The following facts are not disputed:

Facts in dispute


  1. The following facts are disputed:

Medical Report/Statement


  1. Medical report or statement issued by the Evangelical Brotherhood Church (EBC) Health Services stated:

“Examination of the victim revealed that there was bleeding of the vagina and lacerations and bruises seen around genital area.”


  1. Medical report is consistent with the victim’s mother’s findings. She gave evidence that when she lifted the victim’s skirt, she saw blood on her thighs and there was blood coming from the vagina.

Pertinent Question


(a) Why did the accused come back to the victim’s family house after he was told to leave in the morning by the victim’s mother and he left?
(b) Why did the accused send the other children away to collect firewood leaving him and victim alone in the house?
(c) Why was the victim without pants when her mother checked her that afternoon?
(d) Why was the victim’s black skirt wet?
(e) Why and how did the victim have blood on her thighs?
(f) Why and how did the victim have laceration and bruises on her vagina?
(g) Why was the victim bleeding from her vagina?

Concluding Analysis


  1. It is obvious the accused had a motive to come back to the victim’s family house and that was to prey upon the victim, a disabled child. Earlier in the day he heard the victim’s mother telling him that she would be going to the garden. The accused found this as an opportunity to prey on the victim. So, he came back to the house knowing very well that the mother will not be at home and the victim would remain in the house due to her disability.
  2. When the accused came back to the house, he immediately put into action his plans to realise his motive or objective by sending the other young children away in the pretext of collecting firewood, leaving him and the victim alone in the house.
  3. It was during that time the accused removed the victim’s pants and sexually abused her resulting in bleeding from her vagina flowing down to the thighs. Blood coming down from the victim’s vagina is evidence of the fact that she was sexually penetrated. As observed earlier, it is not in dispute that there was penetration of the victim’s vagina. Defense has conceded to the fact. Question is who could have done this to the victim. There was no other person with the victim in the house at that time but only the accused. The incident occurred at the time when they were both alone in the house. It is therefore logical to infer that it was the accused who removed the victim’s pant and sexually penetrated her vagina. Of course, there is no direct evidence to show how the victim’s vagina was penetrated, was it a penile penetration or was it a penetration by use of a finger or an object. The fact, however, remains that her vagina was penetrated which resulted in her vagina bleeding and had lacerations and bruises as confirmed by medical report.
  4. No other person could have done this to the victim. Accused in his confessional statement and in the Record of Interview said he only touched the victim’s vagina with his finger, but victim scratched herself and caused her vagina to bleed, she was naked at that time. This is what he confessed too:

“I did not have sex with her, she is a little girl and my finger cannot fit into her vagina, I only touched her vagina with my finger but some rubbish or itchy stuff might have attached to my hands and I touched her vagina, that’s the reason why her vagina became very itchy and she started scratching it until it bleed.”


  1. This statement could mean that:
  2. In response to questions 16, 17 18 and 24 of the Record of Interview, he stated:

“On Saturday 7th December 2019 was at Konarot village. I was at Pastors house with his three (3) children. At pastors house the three (3) children were feeling hungry and they complained about food, so I sent the three (3) children to look for firewood, while myself and the dump and the disable child remained back in the house. Then while I was sitting down looking through a magazine, that female child came and she started playing around me, but I sent her away, while in the process of pushing her away, my finger touches her vagina. She was naked at that time.”


CONCLUSION

  1. Accused denied sexually penetrating the victim but admitted touching her vagina with his hand which he say was by accident. Accused and the victim were alone in the house at that time. It was during this time when they were alone victim pants was removed and she sustained injuries to her vagina. Who could have caused the injuries to her vagina? Accused denied. But when the victim’s mother asked her who did this to her, she pointed to the accused who was sitting nearby and even pointed to a bed in the house where he abused her.
  2. Medical report confirmed blood coming out from the victim’s vagina and lacerations and bruises were seen on her vagina too. No other person could have done this but accused alone. All facts and circumstantial evidence are facing towards one direction and that is to the accused. His own admission in the ROI and confessions of touching the victim’s vagina, also faces to the same direction.
  3. I don’t believe his theory that he touched the victim’s vagina by accident. The injuries in her vagina are not proportionate to just a mere touching of the vagina. Something more than that caused the injuries. In the case of James v The Sate [2020] PGSC 39 the supreme court held that the nature of the injuries sustained by the deceased and the force required to inflict them were inconsistent with the stabbing being accident.
  4. In the present case, I agree with the counsel for state that the nature of the injuries sustained by the victim and the force required to inflict them were inconsistent with the accused’s confession that he only touched the victim’s vagina. Such injuries confirm there was a penetration of the vagina. Accused admitted he used finger to touch the victim’s vagina. There is no doubt he went one step further in penetrating her vagina with his finger. The blood coming from her vagina is a testimony of that fact.
  5. I am convinced and have no doubt on the circumstantial evidence relied on by the State that it was the accused who sexually touched and sexually penetrated the victim on the afternoon of 07th December 2019. All circumstantial evidence are consistent to each other and points to one direction only and that is to the accused.
  6. I am therefore satisfied on all circumstantial evidence, that the State has proven its case beyond reasonable doubt.

VERDICT

  1. Hence, I return a verdict of GUILTY only on the charge of Sexual Penetration of a child under Section 229A (1) & (2) of the Criminal Code and the accused is hereby convicted accordingly on that charge.

________________________________________________________________Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant

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