State v Asil [2021] PGNC 654; N9904 (30 July 2021)

N9904

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 520 OF 2018

THE STATE

V.

MOSLEY ASIL

Kokopo: Suelip AJ
2021: 11^th, 17^th, 19^th May & 30^th July

CRIMINAL LAW – trial – verdict – persistent sexual abuse of a child s229D(1)(6) – grandfather and adopted granddaughter – allegations denied – accused witnessed victim having sex with boyfriend once near river - evidence considered – proof beyond reasonable doubt – not guilty

Cases Cited

State v. Michael Ramram (2017) N7012
State v. So’on Torah (2004) N2675

Counsel

G Tugah, for the State
S Pitep, for the Accused

DECISION ON VERDICT

30^th July, 2021

1. SUELIP AJ: On 11 May 2021, the accused was indicted on one count of persistent sexual abuse thus, contravening section 229D(1)(6) of the Criminal Code (as amended). He denied the charge and a trial was conducted on the same day.

2. This is now my decision on verdict.

3. The allegations are these. The State alleges that between the 1 January 2013 and the 29 December 2017, the complainant namely Moslyne Henry was living with the accused at Dadul village, Sinivit LLG, Pomio in East New Britain Province. He is related in that the complainant is his granddaughter, being his adopted son’s daughter. The State further alleges that during that time and place, the accused engaged in persistent sexual abuse of the child complainant. The first occasion of sexual abuse happened in 2013, when the complainant was doing her Elementary 2. He took her to the garden, removed her clothes and sexually penetrated her. The second occasion happened on a date in 2014 when the victim was doing Grade 3 at Rieit Primary School. He took the complainant to the river and sexually penetrated her there. He continued sexually abusing the victim in 2015 and 2016 where he kept on having sex with the complainant. At times when the complainant refuses, he would get angry and bash her up. He continued persistently sexually abusing the complainant until she got fed up and ran away to her biological mother in December 2017 and revealed everything to her. A report was then laid with the Police, and the accused was arrested and charged with persistent sexual abuse of a minor.

4. The State now alleges that his actions had contravened Section 229D(1)(6) of the Criminal Code Act (as amended), and charges him with one count of persistent sexual abuse.

5. Section 229D(1)(6) of the Criminal Code, as amended 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.

6. This is one of the offence where corroboration is not required in proving this offence and section 229H of the Criminal Code (as amended) provides for this as follows: -

229H – CORROBORATION NOT REQUIRED

On a charge of an offence against any of provision of this Division, a person may be found guilty on the uncorroborated testimony of one witness, and a Judge shall not instruct himself or herself that is unsafe to find the accused guilty in the absence of corroboration.

7. 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 the accused 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 State v. Michael Ramram (2017) N7012.

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

(i) a person
(ii) on two or more occasions
(iii) engages in conduct in relation to a particular child
(iv) the conduct constitutes an offence against this Division

9. The issues are twofold: -

(i) whether the accused introduced his penis into the complainant/victim’s vagina on all occasions.

(ii) whether the complainant/victim was under 16 years old on all occasions.

10. At the commencement of the trial, the State tendered the following documents into evidence with the consent of the accused: -

Document Exhibit

(i) Medical Report of HEO Jessica Bavai (4/01/18) S1

(ii) Affidavit of HEO Jessica Bavai (24/03/18) S2
(iii) Record of Interview – Pidgin version (11/01/18) S3
(iv) Record of Interview – English version (11/01/18) S4

(v) Statement of Corroborator – Misheck Nandawo (6/02/18) S5
(vi) Statement of Arresting Officer – Myrah Gaemate (6/02/18) S6

(vii) Statutory Declaration – Myrah Gaemate 19/01/18 S7

Summary of the State’s evidence

11. The State called only one witness who is the complainant herself. In summary of her oral evidence, Moslyne Henry said at the material time, she was living at Dadul block with her adopted mother, her family and the accused. She is related to him in that he and her biological grandfather are brothers. She recalled the first occasion when she was doing her grade 2 at Vivirit Elementary School in 2013. She said her adopted mother Janice, was away at work at Tropicana then. At that time, she said she went to the garden alone with the accused and at the garden, he told her to take off her clothes and he also took off his clothes, and he sexually penetrated her by inserting his penis into her vagina. She said it was her first time to experience sexual intercourse with a man and she felt pain. She also said there was blood coming out from her vagina.

12. The complainant also told of the second occasion in 2014 when she was doing her grade 3 at Reit Primary School. On that occasion, she said the accused took her and his other grand children to the river to wash. At the river, she said he took her away from the other grand children to about 180 to 200 meters away under a cocoa tree beside the river and sexually penetrated her again.

13. In cross examination, she conceded that she had a boyfriend between 2015 and 2017. She also conceded that in 2015, her parents were summoned by the school to discipline her about having a boyfriend. She denied having a sexual relationship with anyone and she said the first person to have sex with her is the accused. She said he continued to have sex with her, and she left in 2017 to return to her biological mother because she was fed up with what he was doing to her. She said that was when he came and assaulted her for no reason.

14. In re-examination, she maintained that although she had a boyfriend, she did not engage in any sexual intercourse with him and it was the accused who had sexually penetrated her without her consent. She also maintained that it was because of what he was doing to her that caused her to return to her biological mother.

15. In her answers to questions from the Court, she said she did not call for help nor tell anyone of these sexual encounters with the accused because he had threatened to kill her if she did.

Summary of the Defence evidence

16. In his Defence, 2 witnesses were called to give oral evidence. The accused himself was the first witness called to give evidence. In summary, he said he is 56 years old and originally from Madang. He said he currently resides at Dadul block with his children of which 3 are male and 1 female. He said he was once married but got divorced in 2008. He told the Court that he was employed by PNG Power Ltd until he resigned in 2014. He said he hardly visited his family at Dadul block during his employment with PNG Power because of his workload as a linesman who goes on 2 weeks on call and spends another 2 weeks living at the back of the main office with his co-workers. He said Dadul block is accessible by road transport for a fare of K7.

17. He gave evidence that whilst living with his daughter, the complainant was also in residence with them. He said the complainant is his granddaughter as her grandfather is his brother. He said there were two instances where the complainant had issues with two different male friends. He said on the first occasion, the school had called the complainant’s family to a meeting at the school where the head teacher discouraged the complainant of having boyfriend-girlfriend relationship. He said he cannot recall the complainant’s first boyfriend’s name. On the second occasion on 10 November 2015, he said he caught the complainant red handed when he saw her having sex with her boyfriend, Henry Malaga. He said this was when the complainant ran away to her biological mother and refused to return to have the matter mediated. That was when he assaulted the complainant, and he was ordered to pay (and he did pay) the complainant K230 by the Law & Order Committee at the Village Court.

18. The prisoner denied both occasions of the alleged sexual penetration of the complainant as he was still employed by PNG Power between 2013 and 2014. He said he paid compensation for assaulting the complainant and it was two weeks later that the police came and arrested him for the alleged offence of persistent sexual abuse on the complainant.

19. The second witness is your daughter, Janice Asil. She gave evidence that she is 34 years old and has since 2018 been working for Tropicana. She said she has 5 children and adopted the complainant. She gave evidence that the accused treated all her grandchildren including the complainant equally. She said she is aware that in 2015, the complainant had boyfriend issues and she went to the school to meet with the head teacher. She said the accused also told her that he saw the complainant having sexual intercourse with her boyfriend at the river and that his daughter said to sort this issue out, but the complainant ran away. She said this caused the accused to be angry and he assaulted the complainant. She said the other relatives came thereafter and assaulted him, and he paid K350 for assaulting the complainant.

20. She denied all the instances of allegations against the accused and said she never saw anything strange or unusual about the complainant’s behavior. She said the accused lived in a separate house from the main house where she and her family including the complainant lived. When asked whether the complainant was a truthful person, the witness said the complainant sometimes hides the truth and makes up stories.

Analysis of the evidence

21. The State has adduced evidence from the complainant that it was the accused who sexually penetrated her in 2013 at the garden and then in 2014 at the river. All these satisfies all the elements of the offence of persistent sexual abuse. The other two occasions of the same offence have not been made out by the State and therefore they cannot be maintained.

22. Despite the complainant’s evidence to prove the elements of the offence, that evidence is contradicted by the accused when he testified that he was hardly at Dadul block in 2013 and 2014 as he was then employed by PNG Power Ltd. His daughter also supports his evidence that he was still employed and living in Kokopo in 2013 and 2014.

23. From the complainant’s evidence, it seems the accused was at Dadul block from 2013 onwards and he did not live elsewhere. Although corroboration is not required, no one else came forward to support her allegations that the accused had always lived at the block. Further, even though there was no Notice of Alibi, there is no other evidence given to prove that he was residing at Dadul block between 2013 and 2014. However, on the other hand, there is no dispute that the accused was at Dadul block in 2015 when the school asked to see the complainant’s family over the complainant’s boyfriend relationship with her first boyfriend.

24. Another inconsistency in the State’s evidence is this. The complainant said her adopted mother (accused’s daughter Janice) was already working for Tropicana in 2013. Janice herself gave evidence that she only started working for Tropicana in 2018, not in 2013. How can the complainant not recall when her adopted mother got employed?

25. Yet another inconsistency in the complainant’s evidence is this. She denied dating one Henry Malaga in 2016. However, when pressed at cross-examination about when she dated Henry Malaga, she said she befriended him between 2015 and 2017.

Credibility of witnesses

26. Before I discuss the credibility of each witness, I adopt the statement of His Honor Justice Kandakasi (as he then was) in State v. So’on Torah (2004) N2675, at page 5 of his judgment where he says: -

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

27. I have observed the complainant’s demeanor in the witness box to be unimpressive. She does not appear to be telling the truth and her dates are all mixed up. There are significant inconsistencies in her evidence as discussed in paragraphs 24 and 25 above. She also gave evidence that she had at least two boyfriends from 2015 onwards but denied any sexual relationship with either male even though the accused said he did see her having sex with her boyfriend, Henry Malaga, at the river.

28. On the other hand, the accused appeared confident when he gave evidence and denied all the allegations. He was certain that in 2013 and 2014, he was still employed by PNG Power Ltd, and he spent most of these two years either at the back of the office with his co-workers or at the manager’s house at Kenabot. His daughter supports his evidence and I do not see any reason why she would lie about the father’s whereabouts in 2013 and 2014. The accused was an impressive witness, and his evidence entails logic and common sense.

29. The daughter’s testimony is mostly hearsay, but a fact was established when she testified that she was at home in 2013 until 2018 when she was employed by Tropicana. She denied all the allegations against the accused, and she did not notice any strange or unusual behavior of the complainant. She was calm and collected when she gave her evidence. She was seen to be telling the truth of what she knew, heard, and observed.

Finding of facts

30. From the analysis above, I have doubts about whether the two occasions of persistent sexual abuse did in fact occur. Thus, I find that the accused did not persistently sexually abuse the complainant on those two occasions. The two occasions occurred in 2013 and 2014 when he was still employed by PNG Power Ltd in Kokopo and he lived in Kokopo during that period until he resigned and returned to his daughter’s family at Dadul block.

Verdict

31. There are obvious inconsistencies in the complainant’s evidence that the accused committed the offence as alleged especially with the time the alleged abuses took place. I am therefore not satisfied beyond reasonable doubt that the State has made out a case of persistent sexual abuse of a child against the accused.

32. I find the accused not guilty of the charge offence of persistent sexual abuse of a child. He is now discharged of one count of persistent sexual abuse of a child forthwith and his bail monies will be refunded to him.

________________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused