Independent State of Papua New Guinea v Lari [2023] PGNC 159; N10297 (14 April 2023)

N10297

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 7 OF 2022

BETWEEN:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

AGAINST:

LEONARD LARI

-Accused-

Waigani: Tamade AJ

2023: 22 March; 14^th April

CRIMINAL LAW – persistent sexual abuse of a child – step-father sexually abusing daughter under the age of 16 – victim gave evidence – evidence corroborated by victim’s mother and medical report – accused found guilty

Cases Cited

State v Ningigan [2003] PGNC 136; N2360

State v Kutau (No 1) [2002] PGNC 87; N2245

Balbal v The State [2007] PGSC 16; SC860

State v Jaminan [1983] PNGLR 318

Legislation

Criminal Code Act

Counsel:
Mr Dale Digori, for State
Ms Tymillah Yapao, for the Accused

14^th April, 2023

1. TAMADE AJ: Leonard Lari of Miaru Village, Malalaua, Gulf Province stands charged that you on two or more occasions engaged in conduct amounting to an offence contrary to section 229D of the Criminal Code which is Persistent Sexual Abuse of a Child with the child M.O (to protect her identity), the times and conduct being specified in the Schedule to the Indictment as follows:
   
   1. On an unspecified date between the 1^st day of January 2016 and the 31 day of December 2016 at Gordons, National Capital District in Papua New Guinea, the Accused for sexual purposes touched with his fingers, a sexual part, namely the vagina of the said child under the age of 16 years, then aged 6 years old and at the time there was an existing relationship of trust authority and dependency between the victim and the accused that the accused was the step father of M.O. The State charges the accused pursuant to section 229(B)(1)(a), (4) and (5) of the Criminal Code, Section 229B (1)(a), (4) and (5) of the Criminal Code.
      
   2. On an unspecified date between the 1^st day of January 2016 and 31^st day of December 2016 at Gordons, National Capital District in Papua New Guinea, the Accused for sexual purposes touched with his hands a sexual part, namely the buttocks of the said M.O, a child under the age of 16 years, then aged 6 years at the time. At the time there existed a relationship of trust, authority and dependency between the Accused and the victim M.O in that the Accused was the step father of M.O. The Accused conduct is contrary to section 229(B)(1)(a)(4) and (5) of the Criminal Code.
      
   100. On an unspecified date between the 1^st day of January 2016 and the 31^st day of December 2016 at Gordons, National Capital District in Papua New Guinea, the Accused for sexual purposes touched with his hands a sexual part namely the breasts of the M.O a child under the age of 16 years, then aged 6 years at the time. At the time there was an existing relationship of trust, authority and dependency between the Accused and the victim in that the Accused was the step father of M.O. The Accused conduct is contrary to section 229B(1)(a),(4) and (5) of the Criminal Code.
        
   4. On an unspecified date between the 1^st of January 2019 and the 31^st day of December 2019 at Gordons, National Capital District in Papua New Guinea, the Accused sexually penetrated the said M.O, a child under the age of 16 years, then aged 9 years at the time by inserting his finger into her vagina. At the time there was an existing relationship of trust, authority and dependency between the victim and the Accused in that the Accused was the stepfather of M.O. The Accused conduct is contrary to section 229A(1),(2) and (3) of the Criminal Code.
      
   5. On an unspecified date between 1^st January 2019 and 31 December 2019 at Gordons, National Capital District in Papua New Guinea, the Accused sexually penetrated the said M.O a child under the age of 16 years then aged 9 years old by inserting his fingers into her anus. At the time there was an existing relationship of trust, authority and dependency between the victim and the Accused in that the Accused was the stepfather of M.O. The Accused conduct is contrary to section 229A(1),(2) and (3) of the Criminal Code.
      
   6. On 18^th day of August 2020 at Gordons, National Capital District in Papua New Guinea, the Accused for sexual purposes touched with his hands, a sexual part, namely the breasts of the said M.O a child under the age of 16 years, then aged ten (10) years old. At the time, there was an existing relationship of trust, authority and dependency between the Accused and the victim in that the Accused was the stepfather of M.O. The Accused conduct is contrary to section 229B(1)(a), (4) and (5) of the Criminal Code.
      
2. The State also puts forth an alternate count in the Indictment. Count 1 is that between 1^st day of January 2019 and 31^st day of December 2019 at Gordons, National Capital District, the Accused sexually penetrated the victim M.O a child under the age of 16 years then aged nine (9) years old by inserting his fingers into her anus. At the time there was an existing relationship of trust, authority and dependency between the Accused and the victim in that the Accused was the step father of M.O. The Accused conduct is contrary to section 229A (1),(2) and (3) of the Criminal Code.
   
3. On Count 2 in the alternative, the State says that the Accused stands charged that he on an unspecified date between the 1 day of January 2016 and 31^st day of December 2016 at Gordons, National Capital District in Papua New Guinea, for sexual purposes touched with his fingers a sexual part namely the vagina of the said M.O, a child under the age of 16 years, then aged six (6) years old. At the time there was an existing relationship of trust, authority and dependency between the Accused and the victim in that the Accused was the step father of M.O. The Accused conduct is contrary to section 229B (1),(a), (4) and (5) of the Criminal Code.
   
4. On arraignment, you pleaded NOT GUILTY to the charge in the indictment.
   
5. The State then proceeded to call its witnesses and tendered its evidence.
   

The Charge

6. Section 229D of the Criminal Code is in the following term:
   

229D. PERSISTENT SEXUAL ABUSE OF A CHILD.

[77](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.

Penalty: Subject to Subsection (6), imprisonment for a term not exceeding 15 years.

(2) For the purposes of Subsection (1), it is immaterial whether or not the conduct is of the same nature, or constitutes the same offence, on each occasion.

(3) In proceedings related to an offence against this section, it is not necessary to specify or prove the dates or exact circumstances of the alleged occasions on which the conduct constituting the offence occurred.

(4) A charge of an offence against this section –

(a) must specify with reasonable particularity the period during which the offence against this section occurred; and
(b) must describe the nature of the separate offences alleged to have been committed by the accused during that period.

(5) For an accused to be committed of an offence against this section –

(a) the court must be satisfied beyond reasonable doubt that the evidence establishes at least two separate occasions, occurring on separate days during the period concerned, on which the accused engaged in conduct constituting an offence against this Division in relation to a particular child; and
(b) the court must be so satisfied about the material facts of the two incidents, although the court need not be so satisfied about the dates or the order of those occasions.

(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.

M.O- First Witness

17. The State called its’ first witness, the child M.O. I observed the child who had come into Court after the Accused was obscured by a screen to protect the child witness from seeing the Accused. I spoke to the child explaining the Court room setting and explaining to her that she will be sworn on oath to give evidence and also stressed to her the importance of telling the truth in a Court of law. I asked her how she preferred to be called, she shyly stated that she be called by her first name. I observe that M.O at the time of trial was in her school uniform as she had to leave school to attend the trial. She stated that she is 13 years old.

18. M.O states in evidence that sometime in 2016 whilst alone watching TV in the house, the Accused who is her stepfather came in to the room where she was and touched her breast and buttocks. At that time, she was six years old. The Accused warned M.O that she should not tell anyone of what he did as if she did, he threatened to kill her with a knife.

19. M.O also stated in evidence that sometime in 2019, she was alone in the house when the Accused penetrated her anus and private part with his finger. She could not recall where her mother was at the time. She could recall that her younger siblings were playing under the house at that time. M.O maintained that she was threatened by the Accused with a knife not to tell anyone.

20. M.O goes on in her evidence to state that also sometime in 2020, M.O and her two younger siblings who were the natural children of the Accused and her mother including the Accused were all sleeping together in the same room during the day watching TV when the Accused threw his hand and touched her breast. Whilst lying down with the children and the Accused, M. O’s mother opened her eyes and saw what the Accused did. M.O’s mother beckoned for M.O to follow her outside and whilst out of the presence of the Accused, her mother asked her about what the Accused had done by touching her breast. It was then that M.O confided in her mother and told her about the incidences where the Accused would touch and penetrate her. M.O’s mother then brought M.O to the Police Station for the police to lock up her step farther. I observe that M.O pointed towards the direction of the Accused to identify him that he was her stepfather who did those acts to her.

21. At cross examination, when questioned whether M.O was lying, I observe that M.O was staunch in her responses, much more courageous and her answers were with a raised voice. When she was questioned whether she was lying to the Court and making up stories, M.O was defiant in her answer almost screaming. She talked back and said very firmly asking why would she lie? Everything that she said she maintained quite strongly that it was the truth. All that she said did happen to her. When asked whether her parents were constantly arguing about money, she agreed that they argue but she does not know what they argue about.

22. I find M.O’s evidence as one of truth that she understood the enormity of giving evidence and telling the truth. I find that M.O understood that the matters said in Court were highly sensitive and I observe that there were moments where she would look away where the bare upfront sensitive details were discussed however in cross examination, I find her resolute in her answers that she refused to be taken as lying.

Witness Tessie Jimmy

21. Tessie Jimmy is the wife of the Accused and M.O’s mother. Tessie was previously involved with a white man in whom M.O is her child from this previous relationship. Tessie then married Leonard Lari the Accused and they have two other children together who are younger than M.O. M.O was born on 10 February 2010 at the Port Moresby General Hospital. Tessie gave evidence that whilst being married to the Accused they lived at Gordons at a house belonging to the Accused parents. As the Accused had other siblings including his parents, Tessie and the Accused and their children including M.O all lived in one room at that house. Tessie states in evidence that her husband the Accused was not employed and he would spend most of his time only in the room. Tessie however would do all the housework, take care of the kids and the family and also do marketing outside the house on the street to try to fend for the family.

22. Tessie states in evidence that sometime in 2020 after she had prepared lunch for her family and after the family had their lunch, they all proceeded into their room to watch TV and have a lie down rest with the children. All the children including Tessie and the Accused were lying down watching TV and dozing off when Tessie opened her eyes and saw the Accused throwing his hands on M.O’s breasts. She was startled and got up screaming at the Accused. Tessie said she was in fear of the Accused as he can be aggressive and therefore she went outside the house and told M.O to follow her. Once outside, she questioned M.O and that was when M.O told her about the incidents that the Accused had touched and penetrated her. Tessie then brought M.O to the Police Station where a complaint was lodged against the Accused and she brought M.O to the Hospital for a medical check.

23. I observe that Tessie was distraught talking about the ordeal. She said that she spent her whole life with the Accused and never could have imagined that such a thing would happen to her child with the man she married. She talked about how aggressive the Accused can be that he kept a kitchen knife in their room just above where the Accused sleeps. Because of her fear of him using that weapon, she had to walk out of the room leading M.O to follow so that M.O can speak to her away from the Accused.

24. Tessie was shown a photograph of the kitchen knife that the Accused kept in their room to threaten M.O and Tessie confirmed that it was the knife kept in their room. Tessie also confirmed that when she brought M.O to the hospital to be checked, the doctor examining M.O confirmed that M.O was sexually violated and that after the examination, M.O was given medication.

25. In cross examination, Tessie agreed that there was a lot of people living at the Accused parent’s house and confirmed that her and the Accused and her children lived in one room. She agreed that they do not pay the rent to the Accused’s parents however they collect about K1000 from tenants of the house and this income is divided between them and the Accused parents. Tessie strongly denied that she and the Accused always argue about the rental income. It appears to be the Defence case that Tessie made up the whole story because she was tired of the Accused not being employed and therefore all their arguments were about money. Tessie denied this in cross examination and said that she helps her family by selling betelnut and smoke in addition to taking care of the children and the house. She complains that the Accused is never involved in the family life example by taking her to picnics etc like other husbands do for their wives. It appears that Tessie had a lot to carry raising her children, doing house chores and selling betelnut and smoke whilst her husband does not do much spending most of his time in their room.

26. Tessie can be observed as a wounded and devastated woman. She had remarried and had hoped that the Accused would be a responsible man who would protect and raise her children including her daughter M.O and to find out what M.O had told her left her torn and beside herself. When asked whether she was making up the whole ordeal and lying to the Court, Tessie took her time to answer, I observed her fuming, too angry and aghast to even respond. As Tessie was giving her evidence, I observed M.O looking at her mother. When the questions challenged her mother’s credibility, I observe M.O lowering her head in Court, I can only conclude that M.O was in a way ashamed and sad that the whole ordeal had broken her mother. I have no doubt believing Tessie as a truthful witness.

Defence Witness- The Accused- Leonard Lari

27. The Defence called only one witness being the Accused. You confirmed that M.O was your stepdaughter and that M.O had lived with you and your wife and their children as his own. You confirmed that you were unemployed and that you and your family had been living at your parents house at Gordons. You also confirmed that as your other siblings and parents were all in the same house, your family all lived in one room in that house.

28. You had denied the charge against you and said that M.O and your wife had lied and made up the story. It is your story that every time you have an argument with your wife, Tessie would take M.O to her relatives. You state in evidence that perhaps one of Tessie’s relatives had abused M.O when she took M.O to them. Your evidence is uncorroborated. There is no one apart from you to support what you said. You said that Tessie told M.O to lie and make up the allegation as Tessie was always upset with money. You however agreed that you had a knife in your room and that you used it to cut tobacco to sell but denied threatening M.O as you said you treated M.O like your own daughter.

29. Tendered into evidence by consent of parties is the Medical Report by Dr Marilyn Morris who is the Obstetrics and Gynaecology Registrar at the Port Moresby General Hospital. Dr Morris examined M.O when M.O was brought in by her mother on 29 August 2020. Dr Morris states that according to M.O, she claims that her step father coerces her into his bedroom multiple times and on multiple occasions penetrates her vaginally and anally with his penis and his finger and threatens her with a knife not to inform her mother. M.O told Dr Morris that the last time her step father sexually abused and penetrated her was a month ago from 20 August 2020 that would be sometime in July of 2020. Dr Morris confirmed that M.O was pre-menarche (not yet seen periods). Dr Morris found during her examination that “specific examination of the genital region revealed redness of the vulva. The hymen was absent and the vaginal floor could be clearly seen through the introitus....” Dr Morris concluded that there was absent hymen and multiple scaring of the anus with redness of the vulva which is consistent with the history and suggestive repeated sexual assault with vaginal and anal penetration.

30. In reading the Record of Interview tendered into evidence, you where questioned and denied the allegation and you stated that M.O could have been abused by someone else and was too afraid to tell you and your wife. You suggested that it could be by one of Tessie’s relatives as when you argue with your wife, Tessie would bring M.O to her relatives. At Question 51 of the Record of Interview when asked if you had anything to say to the Court in relation to the charge, your Answer is as follows:

“It’s my first time to stand in Court, can the Court have mercy on me. My children are still small and there is no one to support them...”

31. I depict some admission in the above answer in the record of interview. Given that your story is uncorroborated, I have doubts in your evidence. I observed you to be an untruthful witness, choosing to calmly deny the allegations. You never maintained eye contact when answering questions.

32. The Court in State v Ningigan^[1] said this in relation to logic and common sense in regard to credibility of witnesses:

“It is trite law that, common sense and logic plays a major role in determining whether a witness and therefore his evidence are credible. I noted that in these terms in The State v Cosmos Kutau Kitawal & Anor (No 1) (15/05/02) N2266:

"Logic and common sense does 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."

It is also trite law that, in order for a party’s claim to be considered credible, he must in fairness put his case or claim to the others’ witness by way of cross-examination. This is in effect what is meant by a "fair hearing in s. 37 (3) of the Constitution, which is in turn in my view, a codification of the rule in Browne v Dunn (1893) 6 R 67 (HL). Where a party fails to do that, his or her subsequent claim losses credibility and is therefore not reliable...”

33. Justice Kandakasi (as he was then) also said in State v Kutau^[2] that logic and common sense is important in either the rejection of evidence or the believability of the evidence. In the case of Balbal v State^[3] as submitted by Mr Digori, the Supreme Court considered an appeal on a case of a father indecently raping his daughter under the age of 16 years old. The Supreme Court said this:

“The way to receiving, assessing and determining whether or not to accept a witness and his testimony is a well trodden one. Rules of evidence have much to say and do with the reception or rejection of evidence. Logic and common sense do play an important part in that, as has been noted and applied in many decisions of both this and the National Courts.[3] This is in addition to any serious inconsistencies that might exist in the testimonies of the witnesses called by a party which makes any acceptance of the evidence difficult.[4] Another important factor is the demeanour of the witnesses in the witness box as they give their testimonies. Witnesses’ performance in the witness box can indicate whether they are truthful witnesses telling it all or are untruthful witnesses, withhold the truths.[5] It is well accepted law that, a trial Judge is in a better position to observe the demeanour of witnesses and pass judgments as to the truthfulness or otherwise of witnesses and their testimonies.[6]...”

34. The Supreme Court stated in Balbal v The State^[4] that care should be taken when dealing with tender aged children when they give evidence, that they should understand the effect of giving evidence under oath.

35. Having observed the demeanour of the child M.O and her mother Tessie and having also observed you the Accused, I have no doubt in my mind that M.O and Tessie are truthful witnesses. I also have no doubt that M.O as a child clearly understood the seriousness of telling the truth in Court after explaining to her the importance of telling the truth in Court. In State v Jaminan^[5], the Court said that:

"At the end of the day the position is as always, namely: has the prosecution proved its case beyond reasonable doubt? If during the evidence of either the prosecution witnesses and/or the defence witnesses a chink has been made in the prosecution armour, be it through a doubt concerning identification, or the claim of alibi for example, then a verdict must be returned for the accused."

36. From analysing all the evidence, including the record of interview, the evidence by witnesses in Court and their demeanour, the medical evidence by the doctor who examined the child, I find that there is overwhelming evidence as against you. That logic and common sense tells me that the occasions you have persistently sexually abused M.O could also be at other times that she cannot specifically recall. This is consistent with what M.O told Dr Morris when she was being examined at the hospital. You would not have been caught had it not been for your wife discovering your actions when you were reported to the Police. You are M.O’s step father, you are supposed to be her protector and provider, she should be safe in your home. There is an existing relationship of trust, dependency and authority between you and M.O. You have violated that relationship, you have violated and forever caused damage to a young child’s body, to her young mind, that can never be reversed. She will live with that trauma. You have also broken and wounded your wife with your conduct and no doubt you have destroyed the fabric of your family and Tessie’s family on her side. I am satisfied that the State has proved all the elements of the offence beyond reasonable doubt and therefore I find you guilty of the offence of persistent sexual abuse of a child as indicted.

37. A verdict of guilty is entered against the Accused.

________________________________________________________________

Office of the Public Prosecutor : Lawyers for the State

Office of the Public Solicitor: Lawyers for the Accused

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[1] [2003] PGNC 136; N2360 (7 April 2003)
[2] (No 1) [2002] PGNC 87; N2245 (15 May 2002)
[3] [2007] PGSC 16; SC860 (22 February 2007)

^[4] Ibid

[5] [1983] PGSC 12; [1983] PNGLR 318 (29 September 1983)