N9852

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 304 & 305 OF 2022

THE STATE

-v-
LENNY HUD
(No 1)

Madang:  Geita J
2022:10th & 18th August

CRIMINAL LAW – Trial - Not guilty plea – Sexual penetration of a child Section 229A – Persistent sexual abuse of a child – Section 229D - Criminal Code Act as amended- Abuse of trust, authority of dependency. 

CRIMINAL LAW – Practice and Procedure – For serious allegations, “Voir Dire Test” must be applied in testimonies involving minors – In the absence of corroboration, additional evidence is necessary to make child testimony reasonably safe. 

Cases Cited:
Papua New Guinean Cases

Nil

Overseas Cases 

Rameshwar v. The State of Rajasthwar [1951] INSC 61; AIR 1952 SC 54; 1952 SCR 377 (20 December 1951)   

Counsel:

Ms. Deborah Ambuk, for the State
Mr. Katosingkalara, for the Accused

JUDGMENT ON VERDICT

18th August, 2022

	1.      GEITA J: 	As to count one (1) prosecution allege that on 25 April 2021 Lenny Hud of Wain, Nawaeb, Morobe Province engaged in an act of sexual penetration of Dephnie George, a child under 16 years. At the time the child was 6 years old by introducing his penis into the child’s vagina in circumstances of aggravation in that the accused was the child’s stepparent contrary to s.229A of the Criminal Code Act as amended.
  
	In the alternative Lenny Hud on 25 April 2021 for sexual purposes touched with his penis the sexual parts being the vagina of Dephnie George, a child under the age of 16 years, being aged 6 years at the time.

	2.	As to count two (2) prosecution allege that between 1 January 2018 and 31 December 2019 in Momase Region Lenny Hud of Wain on two or more occasions engaged in conduct amounting to an offence against Division IV.2A (Sexual Offences against Children) of the Criminal Code with Shirley George, the times and conduct as specified in the Schedule: 

•	That he on an occasion between 1 January 2018 and 31 December 2019 a Tent City, Nawaeb District in Morobe Province for sexual purposes touched with his penis the sexual parts being the vagina of Shirley George, a child under the age of 16 years, being aged 7 years at the time.
•	That he on an occasion between 1 January 2018 and 31 December 2019 a Miliok Street in Madang Province engaged in an act of sexual penetration with a child Shirley George, a child under the age of 16 years, being aged 9 years at the time.
•	That he on an occasion between 1 January 2018 and 31 December 2019 a Miliok Street in Madang Province engaged in an act of sexual penetration with a child Shirley George, a child under the age of 16 years, being aged 9 years at the time, in that he introduced his penis into the vagina of that child.

	3.	As to count two against Shirley George prosecution alleged that Section 229D of the Criminal Code was contravened.
	
4.	The accused had pleaded not guilty to both counts.

5.	Special protection measures were applied for and granted including leave for the children’s grandmother to sit in court with them. 

6.	Prior to the two-child complainant’s now 9 years and 10 years giving their testimonies the court entered into a voir dire to calm them down and more importantly to satisfy myself that they each comprehend the implications of the oath. Having satisfied myself that the minors were old enough to know the difference between the truth and a lie, I ruled that they qualify as witness in this court.

	Evidence for the prosecution.	

	7.	A total of six (6) exhibits and three (3) oral testimonies formed part of prosecution evidence. They include a medical report, the complainant’s clinic records, ROI and police officers’ statements.  

8.	Minor Dephnie George, 9 years testified that Daddy took her into the room, removed her clothes and put his penis into her vagina. She said we were in Madang in a rent house. She said she was in the rent house with mummy, Trevor, Lolo, and Leon. She said they were outside when daddy took me to the room when mummy was doing laundry. Daddy’s name is Wana. She said I don’t know where he is. He is still with me and mummy. She said I came from Lae to tell my story. (With a nod of her head). When prodded who Wana was, she said she doesn’t know but when further prodded if Lenny Hud was her father she nodded with her head, indicating a yes.

9.	In cross examination when suggested to the minor that her daddy didn’t do that thing to her, she said it’s true and said the man’s name was Lenny Hud.

10.	Minor Shirley George, 10 years testified that while they were in Lae, he normally do that to her and her small sister in Kamkumung. She said me, my mum, the little sister, and brother live at Kamkumung. My brother’s name is Henry. My sister’s name is Dephnie. We all live with grandfather. She said he normally puts his penis into our vagina, and we normally see white liquid come out and he licks our vagina, and we normally see white liquid come out. Yes, I see these things myself, with a nod of her head. She said he did those things to us at Kamkumung, Tent City, LBC, and Miliok Street. Yes, he did those things to us. The minor said at Kamkumung we sleep in one room and after sleeping with my mother, he comes and sleep with us and touch our vaginas.
11.	She said at Tent City he normally comes and takes me out from Mummy. At Tent City he puts his penis in my vagina and rubs it until pispis comes out.

12.	She said at LBC, sometimes when my mum is busy doing laundry, he uses his penis to play with my vagina until white liquid comes out. He licks my vagina. At Middle Street on first day in Madang he did not do anything. On second day in the shower, he came and got me, use his penis in my vagina and he told me to bend down, and he put his penis in my vagina. He normally push his penis inside and when I call out, he goes out. The minor said he normally wipes white liquid with bed sheet. Yes, he took me into the shower room, I can’t recall date. I did not go to school in Madang. On that day my mother was in the room.

13.	She said we left for Lae because he was doing bad things to us, argued with Mummy and he removed us from house, and we went to Lae.

14.	The minor said one day in the afternoon my Mummy was having dinner and he told us to go with him and watch movie. We went in the room, he removed my clothes and played with my vagina, and I see white liquid come out. She said we told our Mummy what he did to us, and we told Police and Police arrested him. When my little sister told Mummy, what happened to her and so when I heard her, I also told Mummy what happened to us.  

15.	The minor said on Saturday at Miliok Street Mummy was trying to take me with her to the store, but he refused. He stopped me and he put my brother and small sister in the room, put me on the table and he put his penis in my vagina, and I saw white liquid come out. The man is not a good person. His name is Lenny Hud, He is in the Cell.

16.	In cross-examination when suggested to the minor that Lenny Hud did not do those things to her the minor said he was lying. The minor admitted seeing white liquid come out from the man’s penis. She agreed that the accused argued with her mother. As to suggestions that they were sent home to Lae because of the arguments, the minor said they ran away from him and returned to Lae. She agreed that her parents continued to argue in Lae. As to suggestions that she was told by her mother to come to court and tell Court, the witness answered with a no.

Q. That time when you came and lived in Madang, how many days did you live here before you return to Lae.?
A. I can’t recall.
Q. Your Mummy is angry with Lenny Hud that is why she told you to come to court and tell your story to Court?
A. Yes.
Q. Your stories about accused using his penis on your vagina is what your mother told you to come and tell Court?
A. No.
Q. Your story about Lenny Hud using his penis in your vagina are all lies?
A. No I am not lying.

17.	Court: What year did your Mummy and Daddy get married? Ans: In 2017: 

18.	Mrs Getrude Joel (Mother of Minors) gave testimony as follow: I live in Lae with my parents. My husband is Lenny Hud, and we have three children. Henry is first born; Shirley is second born and Dephnie is third born. Trevor is my husband’s son from his first wife. I am here in court because my children were raped or assaulted by their stepdad Lenny Hud.

19.	She said it started on 25 April 2021, a Sunday as I was doing laundry Dephnie was playing outside but went inside the house, as her daddy must have taken her in the room. I don’t know as I was outside but as I came in the family room door was locked and I called out why room door was locked. Suddenly the door opened and as I went in, I saw little girl standing behind the door. Lenny was standing at the back of the door. She was in tears, when I saw her, I asked her, what did Daddy do to you, but she remained silent.

20.	I suspected something must be wrong and so I asked Lenny Hud and he told me that the child was naughty (big head), so he took her in the room and locked her up. She said I didn’t want to talk anymore as we argued too much and so I got girl and we walked out. I didn’t even ask her, but we stayed on. 

21.	Next day on a Monday, he went to work as we were watching movies on the laptop. He returned home around 9.00am and when I asked him, he said he forgot something and had come home to pick it up. Sometimes he brings home test papers but sometimes he doesn’t.

	22.	After he left, I went to the back of the house to do some weeding. From there I called out to Dephnie to come and tell me what her daddy did to her the previous day. She told me but she was shy but when I assured her that I will not hit her, she told me that her daddy took her into the room, removed her trousers and put his penis at her vagina and was rubbing it on her vagina.

	23.	I was shocked as he favoured the elder daughter and so when I asked Shirley, she told me about what her daddy did to her also. I was shocked when both children told me, and I thought of running away. I was scared now, and I packed our clothes in a bag, got the children to crawl under the fence and we went to Jomba Police Station and reported the matter on 26 April 2021, and he was apprehended at Mapex Training Institute. Our gate is always locked as Lenny Hud goes to work.

	24.	Both Lenny Hud and I met in Lae in 2017 and we moved to Madang in 2020 but not permanently. That was my first time to know about that but don’t know incidents with elder daughter. We came to Madang but in Lae we were living at LBC in July 2020. Due to continuous problems, we moved back to Lae. That was around the end of August 2020.

	25.	We returned to Madang in September 2020 and rented a place at Kranket Island. He rented a new place. Due to same problem we returned to Lae, and he brought us back and got a rent house at Danben. Same problem and same treatment and so I returned to Lae for good in December. He left us at Tent City in Lae with his family but the next day I returned to live with my family instead.

	26.	We were in Lae for almost 3 months with my family and we returned back to Madang on 6 April 2021 and lived at Miliok Street. That’s when I found out about incident with youngest daughter.

	Cross Examination.

	27.	The witness vehemently denied suggestions that she created those stories and coached Shirlyn and Dephnie to come and tell their stories.

	Q. You coached Shirley and Dephnie to come and tell court their stories?
A. My girls are children and they are innocent. How do they know about sexual penetration and semen? How do kids know about these things? That’s how they described it to me. 
Q. You created those stories to your children as a result of your anger?
A. It’s wrong for a mother to tell children about those things.
Q. From 2017 – 2021, for almost four years of your relationship with Lenny Hud?
A. Yes but it was not steady.
Q. You are angry with Lenny Hud because of continuous arguments?
A. I normally don’t take my anger too long, I complain because of what he has done to my daughters, and I decided to leave him and report matter to Police for him to pay for the consequences of what he did to my daughters.
Q. Lenny Hud said up to 2017 and 2021 you were having extra marital affairs with another men?
A. No
Q. While you were having affairs with other men, he was supporting you?
A. That’s not true.
Q. At Miliok he was paying rent and provided bread and butter?
A. Yes, he is the man, and he is working.
Q. You were not happy about returning to Lae and therefore created the stories about sexual assault?
A. No he lied.

In examination in chief the witness said on 24, Saturday he did it to the 1st girl and on 25 Sunday, he sent me and Trevor to the store to buy him coke and he took big girl into the room, put her on the table and had sexual penetration with him.

Defence Evidence.

28.	Lenny Hud – An Information Technology Specialist, remained unemployed until 2017 he met Getrude Joel. He deposed that he didn’t know at the time that Getrude was married with children. He was previously married with 4 children. His first-born child Trevor is currently living in Port Moresby with his sister. In 2018 they lived at Kamkumung with Gertrude’s family house, but he got removed as he was unemployed. In July 2020 Getrude joined him and live at LBC for only two weeks. They both argued and as he went to work the next day, and returned home, Getrude and the children had left home. His landlord told him that they left in a vehicle.

29.	He said he did not have sex with Shirlyn at LBC and said the story about taking Shirlyn into the room was not true. He also denied Dephnie’s story about sexually penetrating her at Miliok. He said in 2018 we were having problems and I was with my family, and I did not take child to go live with me at the family house. He said Dephnie’s story about Miliok was not true because on that day, a Sunday 26 April he was busy with schoolwork, marking tests etc. He said Getrude’s story was a lie saying that on that day he was busy with schoolwork.

30.	In cross examination he admitted that he was the only adult person in the house apart from the mother that day.

	Defence Submissions

	31.	Counsel of Defence submitted that the evidence from children should not be believed due to their age and court should not treat them as complete truths. He cautioned against their evidence as they were coached by their mother. As for their mother’s evidence Mr. Katosingakalara submitted that she had ulterior motives against Lenny Hud due to their long-lasting tumultuous marriage. As to the medical reports Counsel branded them as being inconsistent and ambiguous. As to the identification of the accused he submitted that prosecution had not successfully proven that element. Counsel submitted that his client was a mature professional man and invited Court to give weight to his evidence and believe his evidence. He submitted for a finding of not guilty plea and have the accused discharged.

	Prosecution Submissions

	32.	Ms Deborah Ambuk submitted that the child witnesses came and gave their evidence in a forthright manner. In her opening witness Dephnie gave an account of her Daddy taking her into the room. Witness Shirley aged 10 gave detailed accounts of instances of sexual penetration by the accused at named locations in Lae and Madang. (Kamkumung, Tent City, LBC). Counsel submitted that their mother’s evidence only corroborated dates and places the child witnesses could not recall. She submitted that the children’s story to be believed. As to the Medical Reports Ms Ambuk submitted that the findings were consistent with the allegation of sexual penetration on the children. She submitted that the Court should believe the children’s story as told to court as they were corroborated by their mother who filled in the missing gaps as regards dates. Their evidence painted a picture of what type of father he was. 
		
Issues raised by the evidence - Identification and general denial.

33.	The issue of identification is easily ruled out as the minor’s testimony at the outset made unequivocal reference to daddy as Lenny Hud. Their testimonies were corroborated by the accused and his former wife Getrude, the minors’ mother who said they both met and lived together since 2017 – 2021.The alleged offence were committed during the currency of their unstable marriage. Furthermore, the accused admitted that he was the only adult male in the house on the days of the alleged offences. The element of existing relationship of trust, authority and dependency between the accused and minors also is made out ab initio. The element of” a person” in the Indictment, is successfully made out.

34.	As to the accused defence of general denial, the proportion holds true in many jurisdictions and I believe in our jurisdiction that when one enters a general denial, one is not saying that the allegations in the indictment are untrue. Some rebuttal evidence must be provided. Be that as it may the onus of proof is still with the prosecution to prove those allegations beyond a reasonable doubt.

Whose evidence is more believable – Accused or Minors?

35.	As is common in most sexual penetration cases they occur when only two people that are present are the adult and the minor and there is no physical evidence to support the allegation. The accused has vehemently denied those instances of sexual penetration. Having applied the Voir Dire Test on both minors I satisfied myself that they both were competent child-witnesses. During trial both minors had the ability to recall instances correctly before me. 

36.	Child witness Dephnie George’s opening testimony was short and precise, “Daddy took me into the room, took me up, remove my clothes and put his penis in my vagina.” She spoke about a rent house in Madang and her Mummy doing laundry that day. Her testimony was corroborated by her mother, giving a date on 25 April 2021, at Miliok Street as she was doing laundry outside. Her testimony was further corroborated by her elder sister Shirlyn George when she said, “When my little sister told Mummy what happened to her and so when I heard her, I also told Mummy what happened to us.”

37.	For a child of 10 years old Sherlyn’s intelligence and demeanour was observed to be above those of her little sister. I considered her testimony to be from within and I did not detect any signs of coaching. She recalled instances of how, where and when those sexual penetrations occurred and by whom. In no unequivocal terms she said daddy did those things to me and my little sister. She innocently and calmy recalled the times her daddy would take her out and sexually penetrate her at Tent City in Lae, Miliok Street in Madang.  

38.	The minor’s recollection of Lenny Hud pushing his penis into her vagina, causing her to call out and him pulling out, are events only peculiar to her. Similarly, all references to seeing white liquid (sperm) during all those acts of sexual penetration are also peculiar to her. Furthermore, the minor’s reference of Lenny Hud normally wiping the white liquids with a bed sheet are peculiar to her. These events remained vividly clear in her innocent and fragile mind and to my mind any and all suggestions of being coached are put to rest. I therefore find the minor to be a witness of truth and believe her testimony.

39.	As regards corroboration in these types of case, the law is clear that corroboration is not required. (Section 229H (Division 2A – Sexual Offences Against Children) Criminal Code Act). However, in view of the seriousness of sexual penetration allegations there must be some additional evidence rendering it probable that the story of the two minors is true and that it is reasonably safe to act upon it. There is evidence that few days after the sexual penetration instances were committed on the minors, they related their ordeals to their mother who was shocked as the accused favoured the elder child Shirley.  Those previous statements in my view would render any suggestions of coaching or concoction futile. Furthermore, Gethrude’s testimony corroborated the shaky marriage and filled in the dates which the minors could not remember, save for the bad things their daddy did to them. In the Indian Supreme Court case of Rameshwar v. The State of Rajasthwar [1951] INSC 61; AIR 1952 SC 54; 1952 SCR 377 (20 December 1951) the Court explained that independent proof of every incident mentioned in child testimony is not required for sustaining a conviction. The law only requires some additional evidence which makes the testimony “reasonably safe.” I will adopt and apply this principle in this judgment for its relevance. 

Medical Reports of Minors.

40.	The medical reports and findings are consistent with the nature of sexual penetration or abuse suffered by the minors. For Dephnie her genital examination revealed no abnormal bleeding or discharge, hymen absent with redness/tenderness noted around the introitus. (Opening of the vagina). As for Shirley her genital examination revealed no abnormal bleeding or discharge seen, hymen absent with redness/tenderness noted around the introitus. (Opening of the vagina). Small grazes noted over both labia minora. The findings concluded that the examinations were consistent with the history of sexual assault. This evidence was tendered into Court by consent and not contested. It follows that the medical report further corroborates the acts of sexual assault and meets the test of additional evidence making their testimonies reasonably safe. 

41.	As for the accused he gave sworn testimony and denied the allegations. He however corroborated that he was married to the minor’s mother Getrude, and they lived a shaky marriage during the four years of their marriage. His assertions of the minor’s mother being unfaithful and having ulterior motive by coaching the minors in coming to court remains unfounded and not to be believed. Ironically the accused was quick to forgot that he had an ongoing extramarital affair with her teacher girlfriend from Buka. (Q&A 34 ROI).  Hypothetically it is open for court to speculate that due to his ongoing unstable marital relationship with the minor’s mother he instead vented his anger and frustrations upon the two innocent children and sexually penetrated them in the manner described by the minors. By virtue of his marriage to their mother he naturally became their stepfather. He took advantage of their young age, their immaturity and closeness as their daddy.

42.	 Considering the evidence of the minors and the accused I am more inclined to believe the minors evidence and consider them safe to enter a conviction against the accused.

43.	These are serious sexual penetration allegations and no amount of good works or impeccable standing in society will exonerate you from this Indictments. You must provide credible rebuttal evidence. It is therefore erroneous for Counsel of Defence to submit for an acquittal on these grounds alone. 

Court Order

Count 1.

44.     I find Lenny Hud under the alternative count of guilty for sexual purposes touched with his penis the sexual parts being the vagina of child Dephnie George on 25 April 2020 in circumstances of aggravation in that Lenny Hud was the stepfather of the child contrary to Section 229B Criminal Code Act.

Count 2.

45.     I find Lenny Hud guilty of a crime of persistent sexual abuse of a child Shirley George on two or more occasions between 1 April 2021 and 30 April 2021 at various locations in Lae and Madang, contrary to Section 229D Criminal Code Act. In circumstances of aggravation in that Lenny Hud was the stepfather of the child contrary to Section 229A (3) Criminal Code Act.

Orders accordingly.

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