State v Clement (No 1) [2022] PGNC 604; N10342 (2 December 2022)

N10342

PAPUA NEW GUINEA
[THE NATIONAL COURT OF JUSTICE]

CR NO. 445 0F 2021

THE STATE

V

MALIAKI CLEMENT
Accused
(No 1)

Bulolo & Buimo: Polume-Kiele J
2021: 24^th May, 2^nd August, 3^rd, 2^nd & 23^rd November, 2^nd, 7^th & 9^th December
2022: 22^nd & 23^rd February, 1^st March, 13^th May, 21^st June, 2^nd December

CRIMINAL LAW – Verdict - Trial – Elements of sexual penetration – Criminal Code (Sexual Offences Against Children) Act, Section 299A (1) (2) and (3) – Credibility of witnesses

CRIMINAL LAW –Admissions in record of interview - Record of Interview unsigned – Whether an unsigned record of interview of accused is inadmissible - No prejudice to accused - Discretion to admit – record of interview fairly obtained and properly recorded - Admissible when adopted by accused and no objection taken at interview.

Brief Facts:

The accused, Maliaki Clement of Kumusi Village, Bulolo, Morobe Province was indicted on 3 November 2021 with the charge of one count of sexual penetration, contrary to s 299A (1) (2) and (3) of the Criminal Code Act (Sexual Offences Against Children) Act in that on 25 April 2020, the accused, Maliaki Clement at Wau, Morobe Province, Papua New Guinea sexually penetrated a child under the age of 16 years old, namely, GM who was then under the age of 12 years and aged 5 years old, by inserting his penis into her vagina. AND AT THAT TIME, the said Maliaki Clement was in a position of trust, authority, and dependency as he was the stepfather of the said GM.

Cases Cited

The State v. Cosmos Kutau Kitawal & Anor (No 1) (2002) N2266
The State v Paka [2016] N6914
State v Jubin [2018] PGNC 571; N7726
The State v Panut [2019] PGNC 71; N7731
Garitau Bonu and Rosa Bonu v The State (1997) SC528
Peter Wararu Waranaka v Gabriel Dusava (2009) SC980
Andrew Palili v The State (2006) SC848
The State v Jacob Dugura Roy (2007) N3137

Counsel

Ms. S Joseph, for the State
Mr. C Boku, for the Accused

RULING ON VERDICT

21^st June, 2022

1. POLUME-KIELE J: On the 3 of November 2021, an indictment was presented by Ms Matana, State Prosecutor, against the accused, Maliaki Clement, adult male. He was indicated with one count of sexual penetration under Section 299A (1) (2) and (3) of Criminal Code (Sexual Offences Against Children) Act.
   
2. On 8 November 2021, the accused was arraigned. He pleaded not guilty to the indictment and a trial was conducted.
   
3. This is my ruling on verdict.
   

The Charge

4. Essentially, s 299A (1) (2) and (3) of the Criminal Code (Sexual Offences Against Children) Act states:

Section 229A - SEXUAL PENETRATION states:

(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 Subsections (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

5. The following elements are crucial for the State to establish beyond reasonable doubt:
   
   • (i) The accused, Maliaki Clement.
     
   • (ii) Sexually penetrated – as defined under s 6 of the Criminal Code.
     
   • (iii) A Child, “GM”, a female of 5 years of age
     
   • (iv) An existing relationship of trust, authority and dependency – the accused is the stepfather.
     
6. If this Court were to accept the evidence adduced that the victim, “GM” was a child under the age of 16 years, then the factors prescribed under Subsections (2) and (3) are relevant to this case as the victim; GM was under the age of 12 years and or that at the time of the commission of the offence, a relationship of trust, authority or dependency existed between the offender and the complainant.
   
7. "Sexual penetration" is defined under Section 6 of the Criminal Code as follows:
   

"When the expression "sexual penetration" or "sexually penetrates" are used in the definition of an offence, the offence, so far as regards that element of it, is complete where there is—

(a) the introduction, to any extent, by a person of his penis into the vagina, anus or mouth of another person; or

(b) the introduction, to any extent, by a person of an object or a part of his or her body (other than the penis) into the vagina or anus of another person, other than in the course of a procedure carried out in good faith for medical or hygienic purposes."

8. The accused is charged with an offence prescribed under Division IV.2A of the Criminal Code. Thus, there is no requirement for corroboration to sustain a conviction. This provision is consistent with s 229H of the Criminal Code which provides as follows:
   

"On a charge of an offence against any provision of this Division, [i.e., Division IV.2A, sexual offences against children] a person may be found guilty on the uncorroborated testimony of one witness, and a Judge shall not instruct himself or herself that it is unsafe to find the accused guilty in the absence of corroboration."

The State’s Case

9. The State’s case is that the accused, Maliaki Clement is the stepfather of GM, the child. The child, GM at the time of the offence was about 5 years old and living with her mother at Naime, Wau, Morobe Province.
   
10. On the 25 April 2020, the accused, Maliaki Clement was drunk. Whilst drunk, he went to his wife’s parent’s home. He argued with his wife, Mata Eso, took GM, his stepdaughter away from her mother and left to return to his home.
    
11. On the morning of 26 April 2020, the mother of GM, being concerned about the safety and well-being of her daughter went across to her husband Maliaki Clément’s house, to check on her daughter, GM. However, when she arrived at the house, no one was home. She then discovered blood stain on GMs pillow, face towel, and the clothes which she had been wearing that previous afternoon. Fearing for her life, she searched everywhere in Wau town for her (GM) and her stepfather. She did not find them, so she went to the police and reported the disappearance of her daughter (GM) and asked for police assistance to find her. The officer who assisted Mata Eso that morning was Reserve Constable Samuel Paul. Constable Samuel Paul took her complaint and upon receiving such a complaint or report, the police did mount a search to find the child, GM and her stepfather, the accused, Maliaki Clement.
    
12. Mata Eso initially accompanied the police officers in searching but as they could not find them, she returned home. Sometime later that day on 26 April 2020, Mata Eso received word that the police had found the child, GM in the company of the accused, Maliaki Clement at Maus-Pipe, Wau. Both the accused and GM were taken by police to Wau Health Centre where the child GM was examined by the Health Extension Officer in Charge, Olivia Kola. Upon conducting a medical assessment of the child, GM, HEO Kola confirmed that the child, GM has been sexually assaulted. The HEO, Olivia Kola did compile a report dated 30 April 2020 to confirm her medical assessment and findings. These findings formed the basis for the police to detain the accused, Maliaki Clement for questioning in relation to the sexual assault and laying of charges of the offending against the accused, Maliaki Clement. He was arrested, cautioned, charged for sexual penetration of a child contrary to Section 229A (1) (2) and (3) of the Criminal Code (Sexual Offences Against Children) Act as amended. The accused denied committing the offence.
    
13. The State submitted that if the court should however find that the element of penetration under Section 229A of the Criminal Code is wanting in evidence, the state respectfully relies on Section 6 (a) of the Criminal Code that to submit that to some extent the accused did for sexual purposes sexually penetrated the complainant and this caused the injuries recorded in the medical report prepared by the Health Extension Officer, Olivia Kola in her evidence presented before the Court. Given these matters, the State submits that it has established beyond reasonable doubt the elements of the offence of one count of sexual penetration under Section 229A (1) (2) and (3) of the Criminal Code (Sexual Offences Against Children) Act as amended.
    

ISSUE

14. The issue for determination is whether the accused engaged in an act of sexual penetration with the complainant, GM. The State bears the onus of proving this beyond reasonable doubt.
    
15. "Sexual penetration" is defined by Section 6 of the Criminal Code:
    

When the expression "sexual penetration" or "sexually penetrates" are used in the definition of an offence, the offence, so far as regards that element of it, is complete where there is—

(a) the introduction, to any extent, by a person of his penis into the vagina, anus or mouth of another person; or

(b) the introduction, to any extent, by a person of an object or a part of his or her body (other than the penis) into the vagina or anus of another person, other than in the course of a procedure carried out in good faith for medical or hygienic purposes.

16. The nature of penetration alleged in this case is covered by Section 6(a): the accused to some extent introduced (i.e., inserted) his penis into the complainant’s vagina. It is not necessary to prove complete penetration.

THE STATE EVIDENCE.

17. To substantiate the State’s case, the State called both oral and documentary evidence. The documentary evidence presented by the State were tendered into evidence by consent of the Defence and consisted of the following:

(A) Documentary Evidence

• Medical Report dated 30 April 2020 prepared by the Health Extension Officer, Olivia Kola (Exhibit 1)
  
• Statement of Arresting Officer Constable Joel Allan undated – (Exhibit “2”)
  
• Record of Interview of Maliaki Clement dated 29 May 2020 (Original Pidgin Version – (Exhibit “4” - Typed Translated Version – “4A”)
  
• Statement of Reserve Constable Ricky Edward undated (Exhibit “2”)
  

18. The element of both offence and the circumstances of aggravation are not contested by the defence. It is agreed that the complainant was 5 years old at the time of the offending and that a relationship of trust, authority and dependency existed. The accused, Maliaki Clement is the stepfather of the child, GM. (a relationship of trust, authority, and dependency under Section 6A (2)(d) existed.
    

(B) Oral Evidence

(I) The complainant: GM was not called.

(II) Constable Joel Allan

Examination in Chief

19. Constable Allan gave oral sworn evidence and was subject to cross-examination. In his evidence, Constable Allan states that he is the investigating officer in this matter and his evidence is in relation to the accused, Maliaki Clement, who is before the Court. He states that he is currently attached to the MS 15 Bulolo and has been a policeman for over six years now. In 2020, he was attached to the Wau CID. He identified his signature on his statement which was made on 29 May 2020 in which he states that he did conduct a Record of Interview with the accused on 29 May 2020 at around 11.25 a.m. He states further that during the interview when the allegations were put to the accused, he chose to remain silent. On the record of interview, his signature is in the middle and his corroborator signed on the far-right side of the page. The accused refused to sign the record of interview.
    

Cross-Examination

20. Constable Allan was then cross-examined on his evidence. In cross-examination, he states that the accused was arrested on 25 April 2020, the same time that he was brought to the police station. However, on re-examination, Constable Allan did correct himself to say that the allegation was raised on 25 April 2020 and the accused, Maliaki Clement was arrested and charged on 26 April 2020, not 25 April 2020 as stated earlier. He apologised for that oversight.
    
21. There was no re-examination.
    

(III) Health Extension Officer (HEO), Olivia Kola

22. The next witness called by the State is the Health Extension Officer (HEO), Ms Olivia Kola. Ms Kola gave oral sworn evidence that she is a health extension officer attached to the Wau Health Centre. She was cross-examined on her evidence. Ms Kola gave evidence that she has been on the job for 10 years providing health services to the Wau area and other rural people. As to why she was in Court this day, she gave evidence that she was here to witness a case of GM, a female child of 5 years old, who is a patient of hers. She testified that she did examine the said child of 5 years of age who was brought into the centre and following that medical examination she did prepare a Medical Report on her which is dated 30 April 2020. She also gave evidence that the signature on the Medical Report is hers and that this report was made after she saw the child, on 26 April 2020 at about 1.00 p.m.
    
23. She also gave evidence that on the 26 April 2020 when she saw GM (hereinafter referred to as the patient), a female of 5 years old, during the consultation session, GM did not say anything, she appeared depressed, worried, and cried during the consultation. However, she did explain the procedures relating to the conduct of the examination and required the consent of the child and her mother. She gave evidence that upon her physical examination of the child, she noted that the child’s pants were soaked with blood. There were multiple bruises, swollen and painful, multiple bruises remarkable, swelling of nose, mouth and cracked lips, bleeding associate.
    
24. Following the physical examination, Ms Kola then proceeded to conduct a medical examination of the genital area and in her examination, she states that the vagina was bleeding and painful, the labia majora had bruises and abrasions remarkable and that there was cervical dilution of 1 cm.
    
25. She further gave evidence that her finding of the genital examination and diagnosis is disclosed in a Medical Report dated 30 April 2020 which is tendered into evidence and marked as (Exhibit “C”). The observations from the medical examination are set out below as follows:
    

Genital Examination:

26. She observed the following:
    
    • the vagina bleeding and painful,
    • the labia majora was bruised and abrasions remarkable and that there was cervical dilution of 1 cm.
      
27. Ms Kola gave evidence that her diagnosis of the genital area is that of an alleged rape /sexual penetration. She states that her findings and medical opinion is consistent with the patient’s condition and that what has happened to the child is that she has sustained injuries from someone who has bruised her genital areas with some object such as finger, penis, sticks or stones. That is, someone would have used force such as a penis to cause such injuries to the child’s genitalia for her to have sustained such injuries discovered on the child. HEO Kola also gave evidence that it is fair to say that the little girl was sexually penetrated by some object such as a stick, stone, finger or penis. HEO Kola also gave evidence that she did counsel the little girl and her mother on her injuries. She then treated the child for her injuries with Amoxicillin and Panadol. The medical report was prepared 4 days after the examination and the details of the patient are correct. The medical findings were consistent with her examination of the little girl.
    
28. HEO Kola was then cross-examined on her evidence. During cross-examination, she confirmed that she did conduct a medical examination of the child (patient) and her findings are contained in the Medical Report dated 30 April 2020. In her evidence, she also confirmed that there was a tear in the vagina which are indicated by bruises and abrasions in the vagina (bleeding and painful). What she has described in the Medical Report is what is visible to the naked eye. The bruises and abrasions cannot be measured by size with a tape measure. A measurement of this nature would normally be a fingertip.
    
29. As to whether there was presence of spermatozoa, HEO Kola gave evidence that the Centre does not have the required equipment to conduct this procedure.
    

(IV) Mata Eso

30. Mata Eso was also another witness called by the State. Mata Eso gave sworn oral evidence that she is from Wat, Legklu Village and that she is married. She is the mother of the child, GM. She also gave evidence that her first husband is called Joshua and her second husband is Maliaki. Her second husband, Maliaki is from Waria and is in Court this afternoon and is sitting down there on the other side of the Court. She then pointed to the accused sitting in the dock and identified him as Maliaki Clement, her second husband.
    
31. She also gave evidence that she has children, two from her first marriage and 1 from her second marriage to Maliaki. Two of the children are doing Grade 5 at School and the children’s name are Kitaleng and Gesely. Kitaleng was born on 18 September 2010 and Gesely was born on 30 June 2015.
    
32. She gave evidence further that she married Maliaki Clement on or about 2 February 2017 and they are now living at Naime, Wau.
    
33. In 2020 she was still married to Maliaki Clement, and she recalled that on 25 April, she was at home with her children when Maliaki went to the house drunk at about 9 O’clock at night, started an argument with her and then took Gesely away. She states that she did not follow her husband and daughter as it was nighttime and she stayed with her parents. The houses were not too far away, the distance was about from the courthouse to the Bulolo market however, the next 26 April 2020, she went over to the husband’s house but when she got there, the husband and daughter were not there. Upon checking the bedroom, she saw that there was blood on a face towel which had been placed inside a bilum bag of clothes. She then took the face towel and went to Wau Police station and reported to police of her missing daughter and her father. Upon registering her report, she accompanied the police to go and look for her daughter and husband, but they did not find them so returned home.
    
34. She also gave evidence that sometime later during that day, the police found her daughter and husband and took her daughter to the hospital. She was then informed so went to see her daughter who was being kept at a policeman’s house when she picked her up. Her daughter is 5 years old.
    

Cross-examination

35. Mata Eso was cross-examined on her evidence in which she confirmed that she was still in a relationship with Maliaki Clement, the accused when the incident happened. She also confirmed that she went to the accused’s house and found a blood-stained face towel which she took to the police station and made her report. She also confirmed that her daughter was taken to the hospital because she received injuries to her body and vagina.
    
36. There was no re-examination.
    

(V) Reserve Police Constable Samuel Paul

37. Reserve Police Constable Samuel Paul gave sworn oral evidence and was subject to cross-examination. In his evidence, Constable Paul stated that he has been a reserve police constable for 10 years now in Wau. He also gave evidence that he is aware of why he is in court. He is here to give his story about the arrest of the defendant, now before the court, and why he arrested him.
    
38. In his evidence, he did say that the accused was arrested because his wife laid a complaint about him sexually assaulting his stepdaughter so since he was on duty, he attended to the complaint and made the arrest of the accused. He testified that the arrest was made on 26 April and also charged the defendant with the offence of sexual assault on the same date. Constable Paul recalled that the name of the defendant is Maliaki Clement as the person who they picked up at Mouse -Pipe. When they picked up the defendant, he was not alone, he was with his child, the victim. The time that the police picked up the defendant was around 11 a.m. to 12 noon. Upon picking up the defendant and the child, the police then took the child to go to the Wau Health Centre for the HEO to conduct a medical examination and as for the defendant, the police took to the station for questioning. The witness was then asked as to whether the defendant was in Court that morning and the witness then identified the accused sitting in the dock as the defendant, Maliaki Clement.
    

Cross-examination

39. In cross-examination, the witness was asked if he wrote a statement, he said yes, he wrote a statement on 27 April 2020 and leave was then sought to show a copy of the statement, leave was granted, He was then shown a copy of the statement where he identified an error in the date and stated that the date should read 27 April 2020 and not 10 December 2019. He also identified his signature on the statement. He apologised for that error but maintained that the complaint was made by the mother of the child about that time and that was when the accused was arrested and charged for this offence.
    
40. There was no re-examination.
    

The State closed its case.

ORAL EVIDENCE FROM DEFENCE

41. The accused, Maliaki Clement is the only witness called by the Defence.
    

Examination in Chief

42. Maliaki Clement, in his defence elected to give unsworn evidence.
    
43. In his unsworn evidence, he states that his name is Maliaki Clement and is from Garaina, and he lives at No.6 Compound when he was arrested by police.
    
44. In leading evidence, the accused was asked if he recall 25 April 2020, to which he replied as No. How about 26 April 2020, he replied that he recalled that 26 April 2020 was a Sunday, and, on that day, he was at home with his parents. His parents went to church, and he stayed home with his aunty. He did not do anything, just stayed at home. When it was put to him that the State has provided evidence before the Court that he raped one, “GM” Maliaki, he replied, “Not true”. When asked further as to why they would lie to Court? He replied, they lie because the true story is with my lawyer.
    
45. The Defence then closed its case.
    

Analysis of the issues and evidence:

46. In the indictment presented against you, of one count of sexual penetration under s 299A (1) (2) and (3) of the Criminal Code (Sexual Offences Against Children) Act., you pleaded not guilty, and a trial was conducted.
    
47. The State tendered into evidence a number of documentary evidence and also called 4 witnesses to substantiate their allegations raised against you. The Court has already heard from both sides and will now assess the evidence adduced during that trial and make a determination accordingly as to verdict.
    
48. It must be pointed out that from your side, the Court notes that you only gave an unsworn statement from the dock.
    
49. It is trite that the prosecution always has the burden to prove beyond reasonable doubt every element of an offence in all cases prosecuted before the Court. The question for this Court is to determine whether the prosecution has proven all the elements of the charge of sexual penetration under s 299A (1) (2) and (3) of the Criminal Code (Sexual Offences Against Children) Act as amended.
    
50. In the trial, you denied that you raped “GM” and that the police lied because your story is with your lawyer. The Court is also aware that the evidence presented against you is circumstantial evidence. So, in order to arrive at a finding, the Court will now make or ask the following enquiries.
    

What actually happened?

51. Here, the State says that you, the accused Maliaki Clement is the stepfather of the child (GM), who is 5 years old. The police alleged that you sexually penetrated the child, GM on or about 25 to 26 April 2020 when she was forcibly taken from the care and safety of her mother Mata Eso on the night of 25 April 2020. She reported the purported forceful removal of her daughter to the police, the next day, 26 April 2020. The police mounted a search for her. She was later found by the police on or between 11.00 a.m. and 12 noon in your custody and company and both you and the victim child were taken by police to the Wau Health Centre, for the child to be treated for her injuries and medical assessment. A medical examination was conducted by the HEO, Olivia Kola and her medical report and findings are consistent with the allegations of sexual penetration raised against you.
    
52. You denied the allegations and said that you were at home with your parents and when they left for church, you remained home with auntie on the day and that you stayed home all day. Whilst your evidence appears to provide an alibi but then you have chosen not to call any of your parents or your auntie as alibi witnesses to corroborate your unsworn evidence. In your case, you have elected to give unsworn evidence in response to the alleged offending. By electing to give unsworn evidence, you have avoided having your evidence tested by cross-examination by the Prosecution on the allegations raised against you. However, it does not mean that the prosecution evidence presented against you can be totally ignored. This is because you have not asked this Court to doubt the evidence presented by the State against you. Furthermore, because you have given unsworn evidence this will also mean that this Court will give less weight to your evidence in its deliberations.
    
53. The test to be applied here is that this Court will now determine which of the two versions of evidence presented or adduced in court is credible. This is in keeping with the logic and common-sense test.
    
54. The logic and common-sense test when applied to this scenario, places the child (GM) in your (Maliaki Clement) company for a period of time. According to the evidence of the mother of the child, Mata Eso, you took away GM from her on the night of 25 April 2020 at about 9.00 pm when you arrived at the house, drunk, argued and took GM away from her. On the next day, 26 April 2020, Mata Eso went to your house to look for GM and you, but you were not home. She found blood on a face towel, pillowcase and fearing for her life, she went to Wau Police Station and made a report of her missing child, GM.
    
55. According to the evidence of Reserve Constable Samuel Paul, a police search was mounted and at about 11 a.m. and 12 noon, on 26 April 2020, the police found you, the accused, and the child at Maus-Pipe. The child’s clothes were covered in blood, she was dirty, had bruises on her face and lips and the child was brought to the Wau Health Centre for medical attention.
    
56. The HEO Olivia Kola in her evidence described the little girl’s physical and mental condition to be that of a girl who appeared depressed, worried and crying, she also had multiple bruises on her person which were swollen and painful. The girl had swelling of the nose, mouth and had cracked lips, bleeding associated. Furthermore, her pants were soaked in blood and her vagina was bleeding and painful and labia majora was bruised and abrasions remarkable and presence of cervical dilution of 1 cm. These findings according to HEO Kola is a fair assessment of some force of sexual penetration which would result in such injuries being inflicted on the child. Such injuries would be caused by an object such as a finger, penis, stick or even a stone.
    
57. It is trite law that, common sense and logic plays a major role in determining whether a witness and therefore his evidence is credible. In The State v. Cosmos Kutau Kitawal & Anor (No 1) (2002) N2266: The Court stated:
    

“Logic and common sense do play an important part in either the rejection or otherwise of evidence before a court of law and whether or not an accused person should be found guilty. In The State v. Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48, applying a logical and common-sense approach, the National Court found the defendants guilty of murder even when there was no evidence directly showing that the defendants had killed the deceased. The Court proceeded to convict them, when the defendants’ failed to provide a reasonable explanation for the appearance of the badly wounded deceased body in their house. On appeal, the Supreme Court affirmed the National Court’s approach and dismissed the appeal: see Garitau Bonu & Rosanna Bonu v. The State (24/07/97 SC528 and Paulus Pawa v. The State [1981] PNGLR 498 for an earlier authority on point.”

58. All the factors alluded to above provides collaboration to the evidence of Mata Eso who expressed fear for the safety of her child, who she feared to be in some sort of danger or of being hurt in some way by you the accused, Maliaki Clement. Otherwise, she would not in the first place asked for police assistance to find her child. The medical assessment given in the findings and diagnosis of the HEO Olivia Kola in her evidence corroborates her fears. In that, in her medical assessment, findings and diagnosis of injuries sustained by the child, “GM”, she says that an alleged sexual penetration of the child who she saw on 26 April 2020 at the Wau Health Centre did occur. She also testified that the injuries sustained by the child were caused by someone, using an object, be it a stick, finger, stone or penis. Hence, it is logical to say that the child was in your custody during a period of time from 9 p.m. on 25 April 2020 and when she was found in your company and custody on or about 11 a.m. and 12 noon on 26 April 2020. If she had sustained any injuries of such that are alleged, the common sense and logic test when applied here, places you as the only person who had the opportunity to commit and or cause the injuries suffered by the little child. Thus, it is reasonable inference that you are the person who committed the offence of sexual penetration of a child, (i.e., GM) contrary to s 299A (1) (2) and (3) of the Criminal Code (Sexual Offences Against Children) Act (as amended).
    
59. On your part, you have stated in Court is that you were with your parents on 26 April 2020 and when they went to church, you stayed home with your auntie. However, you have not called your parents or your auntie to provide any alibi evidence on your behalf.
    
60. Hence, I can only say that from the evidence of Mata Eso, Reserved Police Constable Samuel Paul or the HEO Olivia Kola, their evidence points to you being found with the child, GM at Maus-Pipe, Wau and that you were not at home at your parent’s house.
    
61. Furthermore, the evidence of Reserve Police Constable Samuel Paul also states that you were taken by the police from Maus-Pipe, Wau with the child to the Wau Health Centre. These two versions of your purported whereabouts will now need to be tested to determine which version is more logical or believable.
    
62. Overall, I find that the evidence of Mata Eso, Reserved Police Constable Samuel Paul and the HEO Olivia Kola give credence to the allegations raised by the State. The State’s evidence is left untouched and unchallenged by the defence. It therefore stands.
    
63. Furthermore, the allegations raised by the State is corroborated by the evidence of HEO Olivia Kola who testified of her findings that the injuries she noted during a genitalia examination, that the vagina was bleeding, and it was painful. She was adamant that the injuries caused to the girl’s vagina was due to sexual assault of some sort with someone using a stick, finger, stone or a penis. The findings are recorded in the Medical Report dated 30 April 2020.
    
64. In all their evidence, it is inferred that an incident involving the child (GM) and the accused had occurred between 9.00 p.m. on 25 April 2020 and 12 noon on 26 April 2020, However, there are two versions of what actually happened. Their versions and that of the accused, Maliaki Clement.
    

(1) The complainant’s version

65. The child victim did not give evidence.
    
66. So, it is fair to say that the evidence of the State witnesses Mata Eso, Health Extension Officer, Olivia Kola, and Reserve Police Constable Samuel Paul are all circumstantial evidence. However, I do note that all the above witnesses have come to Court and told the Court in their own words, what they each saw and did in relation to what they say happened to the little child (girl of 5 years of age). For instance, the Health Extension Officer gave evidence of the pain, stress and worry that the child, GM she may have gone through and the sequences of events and the medical diagnosis which is contained in her medical report dated 30 April 2020 which have led to the laying of the charge of one count of sexual penetration s 299A (1) (2) and (3) of the Criminal Code (Sexual Offences Against Children) Act as amended., against the accused, Maliaki Clement.
    
67. The version of events commenced with the evidence of Mata Eso who is the mother of the child victim, GM. Mata Eso recalled and recited for the Court, the incident of the night of 25 April 2020 at about 9 .00 p.m. when the child, GM, was forcibly taken., by the accused, Maliaki Clement, from her mother (Mata Eso) after an argument. The accused, Maliaki Clement was drunk. So, from the night of 25 April 2020 at about 9 p.m. to the next day, 26 April 2020, the child, GM in the custody and company of the accused, Maliaki Clement. Mata Eso also gave evidence of her fear for the safety of her daughter, and she did make a report of the missing child to the Wau police on 26 April 2020. She also gave evidence that on 26 April 2020, the Wau police mounted a search and found the child in the company of the accused Maliaki Clement at Maus-Pipe. The police then took the child victim to the Wau Health Centre for medical attention and that the police called her to go and check on her child at the clinic.
    
68. The child victim was then examined by the HEO Olivia Kola, who found the child to be depressed, worried and crying. She was covered in bruises and swelling on the mouth, nose and with cracked lips, bleeding associate, further and in addition, her pants were soaked in blood, bleeding in her vagina and painful. The medical findings and diagnosis is that the child had been sexually assaulted by someone and the HEO reported these findings to police (evidence of HEO Olivia Kola).
    
69. Reserve Police Constable Samuel Paul gave evidence that the accused, Maliaki Clement who he identified as the person sitting in the dock was arrested following a complaint laid with the police on 26 April 2020 by his wife of him forcibly taking her daughter from her the previous night and she is missing, and that she feared for her life as she saw blood-stained clothes left behind in the house. So, since he was on duty, he attended to the complaint and mounted a search for the child on the same date. Constable Paul also gave evidence that Maliaki Clement is the person who they picked up at Maus -Pipe, Wau. When they picked up the defendant, he was not alone, he was with his child, the victim, GM. The police picked up the defendant at around 11 a.m. to 12 noon. Upon picking up the defendant and the child, the police then took the child to go to the Wau Health Centre for the HEO to conduct a medical examination. He testified that the arrest was made on 26 April 2020 when the accused was also charged with the offence of sexual assault following confirmation from the HEO Kola that the child, GM had been sexually assaulted.
    
70. From all the above, an inference can be made that the only immediate person who could have had the opportunity to have been inflicted such injuries sustained by the child victim, is the accused, Maliaki Clement because, the child victim was with him from 9.00 p.m. on the night of 25 April 2020 and when she was found by police with him at Maus-Pipe, Wau at about 12 noon on 26 April 2020. Here, the accused has the opportunity to sexually penetrate the child whilst she was under his care and custody. The medical report points to the injuries sustained by the child victim to be sexual assault in nature. The vagina was bleeding, swollen and painful. Penetration was completed either by use of finger, or objects such as stick, stone, iron or a penis.
    
71. Applying the logic and common-sense test to this scenario, the likely inference that can reasonably be inferred here is that it is the accused, Maliaki Clement who had the opportunity from the night of 25 April 2020 to about noon on 26 April 2020 to have committed the alleged sexual assault sustained by the child victim, GM. This is because the child, GM was alone under his custody and company for a period of (9.00 p.m. of previous night, 25 April 2020 to noon 26 April 2020 to be about 15 hours. Here the elements of opportunity and presence do infer that if the child victim, GM sustained any sexual assault, the logic and common-sense approach would apply in that since, she was alone for that long period of time with the accused, Maliaki Clement, an inference can be made that it was he, the accused who caused the injuries, in that he sexually penetrated the child victim, GM. The accused was alone with the child when the police found the child victim, GM in his company.
    
72. Consequently, an inference can be drawn that the injury which was inflicted on the child was done by none than you, the accused, Maliaki Clement. This is because from the moment that you, the accused, Maliaki Clement took the child from her mother on the night of 25 April 2020, at around 9.00 p.m., to about 12 noon on 26 April 2020, when she was found in your company, you, the accused would have all the opportunity to have sexually penetrated the child (GM) and caused all the injuries sustained by the child to which the HEO Kola had diagnosed and attested to in her evidence before the Court.
    
73. In this case, the HEO Kola had subsequently reported the matter to the police that same day as a matter of sexual assault and upon advice the Police had acted upon it and arrested and charged the accused, Maliaki Clement.
    

(2) The accused’s unsworn testimony

74. In the trial, you elected to give unsworn evidence and you denied that you raped Gesely Maliaki and that the police lied because your story is with your lawyer.
    

WHICH VERSION IS THE CORRECT ONE?

75. Given these matters, I now have to decide whose evidence should this Court rely upon to arrive at a ruling? Should I rely on the evidence of the State witnesses or you, Clement Maliaki, the accused person?
    
76. In order to arrive at a determination, I refer to the case of The State v Paka [2016] N6914, a case in which I had presided where the court when considering which evidence to rely upon or is credible stated that this depends on a number of factors:
    

“Firstly, the degree of logic and common sense usually plays a big part in this process including the demeanour and performance of the witnesses in the witness box and consistencies in their evidence as established in Garitau Bonu and Rosa Bonu v The State (1997) SC 528; Peter Warungu Waranaka v Gabriel Dusava (2009) SC 980.

Furthermore, having stated the above, it is equally important to note that a lying witness can also be forceful and convincing in their evidence and yet be lying; whilst on the other hand, a truthful witness can be so unconvincing in their appearance and yet be telling the truth. [see Andrew Palili v The State (2006) SC 848] Similarly there is no rule of law which states that the more witnesses called by a party and the more consistent or identical their stories given by that party must be correct version of what occurred and should be believed than the opposing party who called only one witness. [see State v Jacob Dugura Roy (2007) N3137]

The Complainant in the case of PAKA was a much more impressive witness than the accused. She gave her evidence clearly, calmly and directly whereas the accused was evasive.”

77. In drawing to an analogy, it is obvious that the evidence of the accused person that the defence relied upon is completely dubious, unsatisfactory and cannot be believed at all as opposed to that of the State.
    
78. The accused also had not explained or refute the evidence of Mata Eso, HEO Olivia Kola or the Reserve Police Constable Samuel Paul. More so, the evidence of HEO Kola who gave evidence of the child having sustained injuries to her vagina, mouth, nose and cracked lips and her medical diagnosis of sexual penetration stand unchallenged. All the accused said in his unsworn evidence is that he was at home with his parents on 26 April 2020. He also has not refuted the evidence of Mata Eso that he took the child away on the night of 25 April 2020.

THE PROVEN FACTS

79. The State submits that in ascertaining the guilt of the accused, the following elements are crucial for the State to establish beyond reasonable doubt that:
    
    • (i) the accused, Maliaki Clement
      
    • (ii) the accused engaged in an act of sexual penetration with another person; and
      
    • (iii) the other person was a child under the aged of 16 years.
      
80. In this present case, the State submits that elements (i) and (iii) of the offence and the circumstances of aggravation are not contested by the defence. It is agreed that the complainant was 5 years old at the time.
    
81. Further, a relationship of trust existed as the accused Maliaki Clement was the stepfather of the little girl (a relationship of trust, authority, and dependency under Section 6A (2)(d)).
    
82. Thus, the only issue remaining for determination is whether the accused engaged in an act of sexual penetration with the complainant. Hence, the State bears the onus of proving this beyond reasonable doubt. In order to determine the guilt of the accused, the issue for the Court to decide is who to be believed. Ms Joseph submitted that the evidence provided by the state witnesses were consistent and complimented the injuries sustained by the victim on her genitalia as noted in the Medical Report dated the 30 April 2020 which was prepared by HEO Olivia Kola of Wau Health Centre.
    
83. Ms Joseph for the State also submits all element of the offence has been established beyond any doubt as opposed to the Defence’s evidence which she states is dubious, contradictory, and unbelievable and the demeanour of the defence witness was appalling. The defence evidence should not be believed.
    
84. I accept the evidence of the State witnesses Mata Eso, Health Extension Officer, Olivia Kola and Reserve Police Constable Samuel Paul who told the Court that a child, GM has been forcibly taken from her mother during the night by the accused, Maliaki Clement, and during that period whilst in the custody and company of the accused, Maliaki Clement, she was found in a depressed, worried and crying covered in bruises and swelling on the mouth, nose and with cracked lips, further and in addition, her pants were soaked in blood, bleeding in her vagina all evidence that the child had been sexually assaulted by someone, and in applying the logic and common sense test to this scenario is that the likely inference that can reasonably be inferred here is that the injury which was inflicted on the child was done by none than the accused, Maliaki Clement. This is because from the moment that the accused, Maliaki Clement took the child from her mother on the night of 25 April 2020, at around 9.00 p.m., to about 12 noon on 26 April 2020, when she was found in his company, he would have all the opportunity to have sexually penetrated the child (GM) and caused all the injuries sustained by the child to which the HEO Kola had discovered and attested to in her evidence before the Court. HEO Kola in this case had subsequently reported the matter to the police that same day as a matter of sexual assault and upon advice the Police had acted upon it and arrested and charged the accused, Maliaki Clement.
    
85. In the State v Jubin [2018] PGNC 571; N7726 the Court stated (per Susame A J) that:
    

“29. ... “the evidence of recent complaint of sexual abuse is good admissible evidence, trustworthy and reliable.”

The Court went further and stated that:

“At Common Law, evidence of recent complaint made at the earliest reasonable opportunity is admissible in sexual assault cases. Such evidence goes to the credibility and demeanour of complainant as a truthful person of the fact that she had been sexually assaulted. It is however, not admissible of the facts in issue such as consent if it is a central issue. (See Kilby v R [1973] 129 CLR.460). That Common Law principle has been recognized and adopted by the Supreme Court in Touramasong & Ors v The State [1978] PNGLR 337.”

86. This point was reiterated in the case of The State v Panut [2019] PGNC 71; N7731 where the Court (per Susame A.J at stated paragraph 28 that: “the evidence of recent sexual assault complainant may be considered good evidence the State may rely on to proving its case. It goes to credibility of a witness (s)...
    
87. Here, the evidence of the State witness, Health Extension Officer, Olivia Kola was truthful, consistent, and corroborated each the evidence of Mata Eso and Reserve Constable Samuel Paul. This is because the medical report was made or reported immediately to the police of the alleged offence on the same date. The matter was reported to the police as a sexual penetration matter due to the medical assessment made by the HEO of the Wau Health Centre and the accused was arrested on the same day.
    
88. The little child suffered physical trauma and psychological trauma, at the initial visit the child was depressed, worried, and cried. She was in pain, What happened to the little girl is unfortunate, she is supposed to be looked after by her stepfather, who is supposed to trust and depend on for moral and emotional support, not to be physically, emotionally, and sexually assaulted like that. It is unbearable to accept.
    
89. To determine which version of the stories is credible depends on a number of factors, I refer to an earlier judgment of mine in the case of The State v Mado Paka (supra) as alluded to earlier in this judgment........ In that case, I stated that:
    

“Firstly, the degree of logic and common sense usually plays a big part in this process including the demeanour and performance of the witnesses in the witness box and consistencies in their evidence as established in Garitau Bonu and Rosa Bonu v The State (1997) SC 528; Peter Wararu Waranaka v Gabriel Dusava (2009) SC 980... Furthermore, having stated the above, it is equally important to note that a lying witness can also be forceful and convincing in their evidence and yet be lying; whilst on the other hand, a truthful witness can be so unconvincing in their story and appearance and yet be telling the truth (see Andrew Palili v The State (2006) SC 848. Similarly, there is also no rule of law which states that the more witnesses called by a party and the more consistent or identical stories given by that party must be correct version of what occurred and should be believed than the opposing party who called only one witness” (see The State v Jacob Dugura Roy (2007) N3137).

90. In this case, the complaint of sexual penetration was promptly reported to the Wau Police and a referral made to the Wau Health Centre as a sexual assault and where a medical examination and report compiled. The State relied on the sworn oral testimony of the HEO, and the Police Record of Interview and Medical Reports which corroborates the HEO’s complaint. With regard to the issue of proof of age of the complainant, the mother of the child, GM gave oral testimony as to her date of birth as the 30 June 2015. Her testimony is unchallenged. It is also corroborated by the medical report. The matter was reported as an allegation of sexual assault against a child from the time that the information was lodged on or about 26 April 2019 and whilst this evidence does not by itself prove that sexual abuse took place or was attempted; it does support the injuries sustained by the child victim.
    
91. Given this evidence, I can safely conclude that the accused’s general denial of sexual penetration being untrue is incredible and is therefore rejected. Consequently, I accept that the version of events as adduced in the evidence of Mata Eso, HEO Olivia Kola, and Reserve Constable Samuel Paul as truthful and this court is satisfied that the child victim was under the age of 16 years old, (then aged 5 years) as the evidence relating to date of birth is corroborated.
    
92. I reject the accused’s unsworn evidence that he was at home with his parents and auntie as not credible. No alibi witnesses have been called to collaborate his evidence.
    

Is the accused guilty of one count of sexual penetration of a child contrary to Section 229A (1) (2) and (3) of the Criminal Code (Sexual Offences Against Children) Act as amended as charged?

93. To answer the above question, I say that all the elements of the offence have been proven. In that the accused, engaged in an act of sexual penetration of the child under the age of 16 years. His intention began when he took the child victim from her mother on the night of 25 April 2020 and when she was found by police with injuries which were found on the child victim as contained in the evidence of the Health Extension Officer, Olivia Kola which she gave to the police resulting in the laying of the charges and arrest for the offending. The medical diagnosis is that the child victim was sexually penetrated by an object such as a stick, finger, stone, or a penis. Overall, a stick, finger, stone, or penis cannot by itself be inserted into the young girl’s vagina by itself. It has to be inserted by someone and this is where the logic and common-sense test is applied to the scenario. Given these matters, it is only logic to infer that it is the accused who was the last person to having custody of the said child, GM and the last person found to be in her company. Thus, it can be inferred that the accused committed the act or did engage in an act of sexual penetration of the child, GM who is aged about 5 years old at the relevant time. Furthermore, the accused, Maliaki Clement sexually penetrated the said, child, GM under the age of 16 years (then 5 years old) by inserting his penis into her vagina and clearly intended to sexually penetrate her.
    
94. With regard to the definition of sexual penetration in Section 6 of the Criminal Code, I find that the accused did penetrate the complainant. He did insert his penis into her vagina. The sexual penetration is corroborated by the medical report dated 30 April 2020. This medical diagnosis remained unchallenged.
    
95. Having been satisfied that the prosecution has proven all the elements of the offence of sexual penetration beyond reasonable doubt, I therefore return a verdict of guilty against you, the accused, Maliaki Clement of the offence of one count of of sexual penetration of a child contrary to Section 229A (1) (2) and (3) of the Criminal Code (Sexual Offences Against Children) Act as amended and convict you accordingly.

Verdict accordingly

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