State v Joe (No.3) [2021] PGNC 545; N9391 (11 November 2021)

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CRIMINAL LAW – Verdict – Three Counts of Sexual Penetration of a Child under the age of 16 years – Section 229A (1) of the Criminal Code – Assessment of credibility and demeanor of witness – State witnesses are credible- Elements of offence established by proof beyond reasonable doubt – Identification of known person – Offender tricked the family and lured the child complainant away – Offender threatened and forced complainant to secluded spots - Guilty on all three counts – Convicted accordingly

Balbal v The State [2007] SC 860
St v Kelly Joe No (2), Cr No 851 of 2019
State v Nand [2014] PGNC 60; N5591
State v So'on Taroh (2004) N2675

2. The accused Kelly Joe is known to the child complainant and her family. He was 47 years old and victim was 14 years old at the time of the commission of the alleged offence.

2. On the 15^th of December 2018 at around 10:00 pm the accused approached the child complainant’s family and offered to sell them electronic devices, namely tablets. The child complainant’s father gave some money for a tablet and told the child complainant and her younger brother to follow the accused to his house to get the device. They followed the accused to get the tablet. On the way, the accused told the complainant’s brother to wait and he led her away to secluded spots. He then used force and sexually penetrated her vagina, anus and mouth. After he released her, she reported to his sister first and then to her family. The accused was then arrested and charged.

3. The issue for consideration is whether the State has proven its case beyond a reasonable doubt that the accused sexually penetrated the complainant in the manner alleged by the State, i.e., through penal penetration to the vagina, mouth and anus.

4. The offence provisions and case law on the elements for the offences of which the accused is charged with are stated below:

(1) 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 Subsection (2) and (3), imprisonment for a term not exceeding 25 years.

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

(3) If, at the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and the child, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.

Elements of the offence of Sexual Penetration of a Child
5. In the State v Nand [2014] PGNC 60; N5591, the court stated the elements of the offence of Sexual Penetration of a Child under the age of 16 to be: the accused engaged in an act of sexual penetration with the complainant and the complainant was a child under the age of 16 years.

No	Document	Date	Exhibit No
1	Statement of JS, child complainant, Pidgin version, 1 paged	19^th December 2018	“A”
2	Statement of TS, father of child complainant, 1 paged	21^st September 2021	“B”
3	Statement of DS, mother of child complainant, 1 paged	21^st September 2021	“C”
4	Affidavit by Christine Waure, 3 paged	23^rd September 2021	“D”
5	Statement of Adriana Kamasunga, Police Corroborator	20^th December 2018	“E”
6	Statement of Esther Bavi, Police Investigating Officer	20^th December 2021	“F”
7	Extract of Clinic Record of Birth		“G”
8	Section 96 statement of Accused	09^th July 2019	“H”

7. Separate rulings were made and sent for publication on the conduct of a voir dire and admissibility of the accused’s Record of Interview (ROI) and the Medical Report. In summary, this Court had refused the admission of both the ROI on grounds of breach of Constitutional Rights and the Medical Report on grounds of Fairness, that is where the State witness was not the author of the report nor a competent witness to tender such a report under section 61 of the Evidence Act. Refer to St v Kelly Joe No (1) Cr No 851 of 2019 and St v Kelly Joe No (2) Cr No 851 of 2019.

9. Witness is the child complainant. She is now 17 years old. Her date of birth is 03^rd September 2004. She resides at Bush Wara, Nine Mile, NCD. She said she is in court for her rape case involving the accused Kelly Joe. She knew him as he usually goes to the betel nut market to buy betel nut and cigarette. The accused is known to her. She identified the accused in the witness box as the same person who sexually penetrated her. She said in cross-examination that the accused sexually penetrated her through the vagina, mouth and anus. She was not able to scream as he held onto her throat and threatened her. After he had released her, she reported to his family, her family and they reported to the Police. She was later taken to the hospital.

10. Witness is the father of the child complainant. He only gave his statement to the Police and to the Public Prosecutor last week on the 21^st of September 2021 before this trial. He didn’t know why the Police did not get his statement earlier. He said he knew the accused who usually sell betel nut and smoke together with them. They all live at Nine Mile, Bush Wara. He knows the accused for two months now. On the date of the incident the accused went to sell tablets to them. The witness told his children, the complainant and her younger brother to go with the accused to get the tablets. They left and after a while, his son returned home without the complainant. They started to search for her. They could not find her. She came home in the early hours of the morning looking troubled. She then told her father and the family that the accused had raped her.

11. The accused gave sworn oral testimony. On the date in question, he was at his home at Nine Mile, Bush Wara, with his sister Nancy and they both were attending to the poultry farm all day. At night, he went to sleep. His sister was also at the house. On the next day, he heard people calling his name and saying that he had raped the child complainant. His sister took him to the Police Station to clear his name. There the Police assaulted him and locked him up.

12. He said he did not sexually penetrate the child complainant through the vagina, anus and mouth. He does not really know the complainant. He usually sells betel nut and cigarettes in front of his house and usually greets them. He said he arrived in Port Moresby from Chimbu and had lived in the Nine Mile community for nine months.

13. The evidence on the age of the child complainant is stated by her parents in their respective police statements. She was born on the 03^rd of September 2004. On identification, she had known the accused well as someone who lived in the same community. Her evidence in examination in chief is an elaboration from her police statement. She had stated that the accused had led her away, verbally threatened her, forced her to undress and had sexually penetrated her vagina, anus and mouth with his penis. He held her on the throat and threatened her not to scream. When he released her, she reported to his sister what he did to her. She also reported to her parents.

14. Prosecutions submitted that evidence had sufficiently established the elements of the offence.

15. In summary, Defence submitted that the complainant’s oral testimony was inconsistent with her police statement. Further, that it is implausible to believe her when she stated that the accused was holding her on the neck. If that was so, how was it that he would then be able to forcefully remove her clothes and sexually penetrate her. The court should not believe her story.

16. For the complainant’s father, Defence submitted that the father’s witness statement was only recently obtained and he may have fabricated his story.

17. State has the onus of proving all the elements of the offences charged. In this trial, where the defence has raised general denial, it is a question of who to believe. The court is vested with the power to assess the truthfulness of a witness’ story. The court is tasked as assessing the credibility of each of the witnesses, the principle in Balbal v The State [2007] SC 860 is applied.

18. The credibility of a witness and their demeanor is dependent on matters of common sense and logic and careful assessment of any inconsistencies in the evidence, principle in State v So'on Taroh (2004) N2675 is applied. On inconsistencies, the court is to consider whether there are serious inconsistencies that will cast doubt on the story of the witness, or they have been sufficiently explained so that the court can rely on them.

19. At the outset, I say this. This court refused to accept into evidence the medical report on the basis that the person whom the Prosecutions called to tender the report through was not the author of the report nor a competent witness. (Refer to State v Kelly Joe (No 2) (2021) N9390. The court is mindful that for this offence, section 229H of Criminal Code provides that this court can convict on the uncorroborated testimony of the victim alone and a Judge shall not instruct himself or herself that it is unsafe to find the accused guilty in the absence of corroboration or medical report for that matter

20. In this court’s consideration of the complainant’s story, in her police statement, especially on the manner in which she said was taken away, I say her story on this aspect of her evidence was very brief. She did not say how exactly she was taken away. She only said this: “I trusted him. I thought he really wanted to give the tablet and I followed him, but he took me into the bush and put his penis into my anus, and mouth”. In her oral evidence, however, when asked in examination in chief, she then went further and said the accused forcefully dragged and pulled her away and he forcefully removed her clothes. I accept that her oral testimony was a further explanation of her story in her police statement. It was made in elaboration of her own story on how she was taken away and how she was being sexually penetrated.

21. In her police statement, the elements of the offence of sexual penetration of a child under the age of 16 years had been sufficiently established. That is all that is required in a police statement. The manner in which she was taken away is not an element of the offence, and therefore it does not affect her story now when she did not mention it there in the police statement at that time. She however, had sufficiently explained and had maintained those to be the circumstances in her oral evidence. I accept this as a true account of her own story on the manner in which she had been taken away and then sexually penetrated.

22. The defence submitted that it went against commonsense and logic if the court was to accept that the accused was to hold on to the complainant’s neck the whole time whilst dragging and pulling her or sexually penetrating her as she claimed. Defence submitted that this could not have been possible, and so the complainant had made up this story. At the outset, I say this. If there was no physical force or violence used, there is evidence of the accused issuing verbal threats to the child complainant who then would have complied with his orders without much or any resistance at all due to the fear of being hurt or harmed. Further, the court infers from the accused’s offer to sell tablets as his technique to allow the child’s father to let her and her brother go with the accused. He then lured the complainant away to secluded spots, induced her to accept sex for the offer of tablets and thus facilitated the commission of this crime. Even if this court finds that there was no physical force or violence, it would have been possible to obtain sex with verbal threats and by luring the complainant as the facts suggest in this circumstance. I am minded that under section 229F of the Criminal Code, consent is not an issue in this trial.

23. On the credibility of the complainant, I find her demeanor to be good. She answered questions clearly and without hesitation and explained further where she needed to. For example, she explained that she was forcefully taken away. She answered all questions in cross-examination in a coherent and consistent manner, maintaining that the accused lied when he said he did not sexually penetrate her. She maintained her evidence in cross-examination that the accused sexually penetrated her. She was not discredited in cross-examination. I accept the complainant’s story as the truth for all the above reasons. I also find that there is no motive for lying or making up these serious allegations against the accused who is elderly and is known to her and her family.

24. On identification, the accused was positively identified in the defendant’s dock by the complainant as the person who sexually penetrated her by inserting his penis into her vagina, anus and mouth.

25. In relation to the statement of the father of the complainant, I accept that the Public Prosecutor has the power and the discretion to obtain additional evidence where he sees fit to do so to prove the Prosecution’s case. Where the Public Prosecutor had obtained the statement of the father of the child complainant only weeks before trial, he has rightly used that discretion to do so. The statement was used in court as it was not objected because it was duly served on the defence before trial and tendered without objection. It was properly and relevantly obtained and used for this trial. I accept that both the oral testimony and the statement of the father of the child complainant is credible and can be relied upon.

26. The father’s story is reliable because it is consistent with the complainant’s story in so far as the accused approaching them and his offer to sell tablets to the family was concerned. I have assessed his demeanor to be good. He did not try to make up reasons for why the Police did not obtain his statement initially in 2018. He simply said he did not know why they did not get his statement. I accept that to be his simple and honest explanation.

27. The father’s story is also consistent with the complainant’s story when he stated that she went to get the tablet and never returned. They had to mount a search for her. She was no where to be found until early hours of the morning when she went home. His evidence is relevant as it is one of recent complaint. His story was not discredited in cross-examination. I accept his story as the truth of what happened that evening and what happened to his daughter as she returned and in the manner she complained to him.

28. The accused denied the allegations. His answers to all the questions in cross-examination were consistent only because they were the same answers right through out. He kept repeating this “I was at home working on the poultry farm the whole day” and “I was at home asleep the whole time during the night”. These answers were almost automatic and was the only immediate answer given to all the questions asked in cross-examination. To me, it appeared that the accused convinced himself that he was not anywhere else except at the house all throughout the day and asleep all throughout the night when the alleged offence occurred.

29. The accused raised an alibi and his alibi witness was his sister Nancy who was there with him tending to the poultry farm or at home when he was asleep at night. Nancy, however, was not called to give the alibi evidence for the accused. If her evidence was important for his case, he would have produced her. In the absence of any motive for why a family known to him would make up a story of such serious allegation and grave consequences, and in the absence of any alibi evidence, I reject the accused’s story that he was innocent and was at home the whole time at the relevant time.

30. In the end, I accept the complainant’s story and that of her father over the accused’s story.

31. I find that the accused had lured the father and his children into believing that he was selling tablets and they were going to buy the tablets he had offered to sell. He told them the tablets were at his house. That was the reason why the father gave some money and allowed the child complainant and her brother to follow the accused to his house to get the tablet. The accused then told the complainant’s brother to wait. He led the complainant away to secluded spots and sexually penetrated her with his penis through her vagina, anus and mouth. I find that the evidence supports the elements of the charges. I find that there was positive identification. I also find that the child was 14 years old at the time of the commission of the offence. I find no evidence that the tablet was actually given and bought. The offender had tricked the family and lured the child complainant to him in order for him to facilitate the commission of this offence.

32. The State had proven its case beyond a reasonable doubt. The evidence establishes the elements of the offence by showing the identity of the accused as a known person, that he sexually penetrated the child complainant who was under the age of 16 years. At the time of the commission of this offence, she was 14 years old. He committed the act of sexual penetration by inserting his penis into the vagina, anus and mouth of the complainant.

33. Consequently, the accused is found guilty on all three counts of sexual penetration of a child under the age of 16 years, under section 229A (1) of the Criminal Code and is convicted on all three counts accordingly.

Count 1:
Sexual Penetration of a child under the age of 16 years, then 14 years old, by inserting his penis into her anus, contrary to section 229A (1) of the Criminal Code.

Count 2:
Sexual Penetration of a child under the age of 16 years, then 14 years old, by inserting his penis into her mouth, contrary to section 229A (1) of the Criminal Code.

Count 3:
Sexual Penetration of a child under the age of 16 years, then 14 years old, by inserting his penis into her vagina, contrary to section 229A (1) of the Criminal Code.

Verdict accordingly. ________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitors: Lawyer for the Accused

National Court of Papua New Guinea

State v Joe (No.3) [2021] PGNC 545; N9391 (11 November 2021)