State v Awetu [2023] PGNC 93; N10214 (28 April 2023)

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CRIMINAL LAW – Trial – persistent sexual abuse of a child s.229D(1) (6) – abuse of trust and authority, s.229E(1) – alternate count of rape, s.349A(e) of the Code -plea of not guilty

EVIDENCE- adopted father and guardian - relationship of trust authority and dependence not denied - age of the complainant not an issue.

The accused was charged with one (1) count of persistent sexual abuse of a child by engaging in indecent acts towards the child by showing his penis to her and then sexually penetrating her by inserting his penis into her vagina, contravening s.229D (1) & (6) of the Criminal Code. The two occasions were in 2013 when the victim was 11 years and in 2015 when the child was 13 years old. The accused was also charged with one (1) count of sexually penetrating the complainant on 4 May 2020, when she was 17 years old and in so doing the accused contravened s. 229E (1) of the Criminal Code in that he was a person in an existing relationship of trust authority and dependency.

1. The accused was found guilty on one (1) count of persistent sexual abuse of a child in 2013 and 2015, when he engaged in indecent acts towards the child by showing his penis to her and then sexually penetrating her by inserting his penis into her vagina thus contravening s 229D (1) (6) of the Criminal Code.
2. The accused was also found guilty of sexually penetrating the complainant on 4 May 2020, when she was aged 17 years old and in so doing did contravened s.229E (1) of the Criminal Code in that he was a person in an existing relationship of trust, authority and dependency.

1. LINGE AJ: The accused is indicted with one count of persistent sexual abuse contravening s.229D (1) & (6) of the Criminal Code (Sexual offences against Children) Chapter 262 as amended, one count of abuse of trust authority and dependency contravening s. 229E (1) of the Code and in the alternate, one count of rape with circumstances of aggravation, contravening s. 347 (1) & (2) and s. 349A (e) of the Criminal Code.

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

(1). A person who engages in an act of sexual penetration or sexual touching of a child between the ages of 16 and 18 years with whom the person has an existing relationship of trust, authority or dependency is guilty of a crime.

(2) It is not a defence of a charge under this section that the child consented unless, at the time of the alleged offence, the accused believed on reasonable grounds that the child was aged 18 years or older.”

4. When the expression “sexual penetration” or “sexually penetrates” are used in the definition of an offence, so far as regards that element of it, is complete where there is-

5. The State alleges that on an unspecified date between 1 April 2013 and 31 May 2013, at the accused residence the complainant was out in the yard looking after the market table when the accused, called her into the house and into the spare room. The complainant followed him and when inside the room, the accused took out his penis and showed it to the complainant, opened a packet of condom and placed it over his penis. He then told her if he wore this condom and slept with her, she would not get pregnant.
6. After showing his penis to the complainant still on that same day, the complainant walked out of the room because customers were calling to be served at the market table. The accused called and demanded her to return to the room where he was and then he removed her clothes, forced her onto the floor and sexually penetrated her by inserting his penis into her vagina. After he sexually penetrated her, he sent her out of the room. After this incident, he would continue to sexually abuse the complainant.

7. The State alleges that a second occasion was on an unspecified date between 1 May 2015 and 31 August 2015, the complainant then about 12/13 years old and at Grade 3 at Boreboa Primary School when the accused attempted to take the complainant out early from school. This did not happen and so he told her to return home early. After school, the complainant went home and was playing with her friends when the accused approached her and ordered her home. When they got home, he armed himself with a knife. He chased her into the house and followed her in after closing the front door. The accused forced the complainant to the spare room and there, he removed her clothes, his clothes and forced her to the floor. He then inserted his penis into her vagina and sexually penetrated the complainant. After he sexually penetrated her, he told her to go and wash. That evening, the complainant told the accused wife, Elizabeth about what the accused did to her, but nothing was done.

8. The State further alleges that on Monday 4 May 2020 in the early hours of the morning, while everyone was asleep, the accused kicked awake the complainant from where she was sleeping in the living room and forced her into the spare room where he again sexually penetrated her. The complainant then about 17 years old packed her bag and after school, instead of returning to the accused house, she went to a friend’s house and eventually related the sexual abuse by the accused to them resulting in a formal complaint being laid.

9. Upon arraignment the accused said he understood the charge and the allegation and pleaded not guilty to the charges of:

No.	DOCUMENT	EXHIBIT NUMBER	COMMENT
1	Statement of Anna Joskins dated 10 June, 2020	S1	Tendered by Consent
2	Statement of Theresa Steven Kliawi dated 12^th May, 2020	S2	Tendered by Consent
3	Affidavit of Christine Waure sworn on 7 May 2020 annexed with Statement and Medical Report by Sister Christine Waure dated 7 May 2020.	S3	Tendered by Consent
4	Affidavit of Christine Waure sworn on 6 October 2020 annexed with Statement and Medical Report by Sister Christine Waure dated 6 October 2020	S4	Tendered by Consent
5	Affidavit of Dr. Beatrice Solok annexed with Dental Report by Dr. Beatrice Solok dated 12 July 2020	S5	Tendered by Consent
6	Statement of Constable Adrianna Kamasunga dated 13 August 2021	S6	Tendered by Consent
7	Statement of Constable Maria Nombri dated 7 July 2021	S7	Tendered by Consent
8	Statement of Sergeant Addie Milali 7 July 2021	S8	Tendered by Consent
9	Section 96 District Court Statement of Roy Awetu dated 9 August 2021	S9	Tendered by Consent
10	Record of Interview of Roy Awetu dated 7 January 20211 (Pidgin Version)	S10	Tendered by Consent
11	Translated Record of Interview of Roy Awetu dated 7 January 2021 (English Version)	S11	Tendered by Consent

11. The State called only the complainant Elizabeth Vincent Awetu who gave sworn evidence in Pidgin with special measures granted under s.37B(2)(b)(f) of the Evidence Act.

12. The accused Roy Awetu gave sworn evidence in English and Pidgin. He denied the allegations. Lucy Awetu his witness gave evidence in Pidgin.

13. The complainant was taken to Port Moresby in 2012 at the age of 10 by her grandmother and handed her over to Elizabeth Awetu, her sister and her husband the accused. The complainant regards the accused and his wife as “Papa Roy” and “Mama Elizabeth”.

14. The complainant stated that she was sexually abused many times by the accused over a period of 8 years, but the accused was only charged for three occasions.

16. The first of the three instances occurred between 1 day of April 2013 to 31 May 2013. She was at home upon instructions by Mama Elizabeth to look after the market which was about 2 to 3 meters away from the house while herself, Jeffrey’s wife and their kids went to the next street to play cards. Papa Roy was alone in the house, and he called the complainant into the house which she refused but he forced her into the spare room by threatening to hit her. Inside the room the accused unwrapped a condom and told her that if she slept with her, she would not get pregnant. The accused then put the condom on his penis and told her to remove her clothes and to sleep on the floor or to sit on him which she refused both. Then two market customers disturbed the accused, so she left to serve them. The accused demanded and forced her back into the room. He pulled her and forced her to the floor and put his penis into her vagina and he also touched her breasts and kissed her lips. The accused then told her to go wash and return to the market. The complainant told her Mama Elizabeth, but nothing was done.

17. The complainant gave sworn evidence of another incident that took place between 1 May 2015 and 31 August 2015. The complainant was in Grade 3 at Boreboa Primary School, she would be about 12/13 years old. The accused came to school and told her teacher Ms. Passam that there was a family issue in which her mother requested for the complainant to go home. The teacher allowed her to go but she did not want due to many assignments. She however left with the accused, and it turned out that there was no issue at home and instead the accused wanted to take her to his friend’s house, but she said no and returned to school. The accused however told her to return home early which she did. On arriving at the house, she left her bag on the front veranda and went to play with her friends. The accused was at home alone where he closed the front door and stayed at the back. The accused saw her bag then came to her with about 80 cm x 10cm width timber and ordered her home, threatening to hit her if she refused.

18. The complainant feared the accused’s loud demanding voice and went into the house. The accused then closed the front door, took a towel and forced the complainant by pulling by her shirt into the spare room, touched her breasts, pulled her shorts down and kissed her. She pulled away and ran out, but the accused followed her, got a kitchen knife and chased her back in threatening to cut her with the knife so she listened and went back into the room. While the complainant was still standing the accused then forcefully removed her clothes and told her to sleep on the floor and he inserted his penis into her vagina. He then told her to wash and go to her Mama Elizabeth at the next street. The complainant said when the accused did this, she felt it was not alright and that she felt pain in her vagina when she went to use the toilet.

19. Thirdly, on the 4 May 2020 while in Grade 7 at Boreboa Primary School the complainant was asleep in the living room when the accused woke her up in the early hours of the morning. He kicked her more than once until she woke up and forced her to the spare room. The complainant refused and remained standing, but the accused told her to hurry up as it was time for him to go to work. The accused then removed her clothes by pulling her trousers down, accused was wearing a towel. He told her to sit on him, she refused but the accused forcefully inserted his penis into the complainant’s vagina, held her breasts and kissed her, she said she did not feel all right about it. He then told her to get change and go back to sleep.

20. In cross examination, the complainant maintained her story that she was the adopted daughter of the accused and his wife. As to the first incident she said she served 2 customers and they were street people, but she did not ask for help. There was no one else in the house except the accused. When it was put to her that she lied and the accused never sexually abused her, she maintained that the accused did it.

21. On the second occasion, the complainant maintained her story that the accused tried to take her out of school, but he didn’t. She said she went back to school. She refuted the defence’s suggestion that the accused did not sexually penetrate her. She affirmed that the accused had physically assaulted her before.

22. As to the third incident, she maintained that the accused sexually penetrated her as alleged, that he did do it. She said she also told her teacher apart from Mama Elizabeth. She clarified in re-examination that what she told the teacher was that the accused lied about family issues when he asked to remove her from school, she did not tell her teacher about the sexual abuse. She said all the counts against the accused were true.

23. The accused Roy Awetu confirmed his Waigani residence where he lived with his wife, son, daughter in law, grandchildren, and the complainant. He told the Court that he adopted the complainant in 2006 and he estimated her age to be 6 years at that time. When put to him by his counsel whether this could be 2000 or 2012 the accused said 2008. He maintained that the complainant was brought to Port Moresby in 2006 by his sister-in-law.

24. In relation to the 2013 sexual penetration incident, the accused testified that he was at work driving a bus and denied the first allegation. He said it did not happen as he would have been at work.

25. On the second incident between 1 May and 31 August 2015, the accused said in examination in chief that he did not go to the school. However later said that one time in 2015 he came home saw his wife who was ill, so he rushed to school to get the complainant. He said he took the complainant home and left her with his wife and went to get the ambulance and later asked his friends who assisted him, and they went to the hospital.

26. In cross examination he altered his story and said that when he brought the complainant home, he left for work. He then deviated saying that he called the ambulance, and later asked his boss, who is a friend for help. He was not aware of any incident after school as alleged and said he came home at night.

27. On the last incident on 4 May 2020, the accused said he woke the complainant up from sleep as she was in the walkway. He told the Court he wanted to go to the bathroom, but the complainant blocked the way. In cross examination he told the Court that on that day he was up at Bomana, so he couldn’t have done that. However, when put to him that she was blocking the way, he agreed with the State and placed himself back at the scene. Accused however denied the allegation of sexual penetration of the complainant. The accused testified that the allegation did not happen.

28. The evidence of Lucy Awetu does not go to the elements of the offence the accused is charged with and has no probative value except about her presence in the house where first she said she was always at home and later said she was not always at home.

Findings as to the Elements

A. Charge of persistent sexual abuse – contravening s.229D (1) & (6) of the Criminal Code (Sexual offences against Children) Chapter 262 as amended.

29. For the charge of Persistent Sexual Abuse, s.229D (1) & (6), the essential elements for the charge of persistent sexual abuse are:

(iii) engages in conduct in relation to a particular child that constitutes an offence against this Division 24 of the Code.

30. The aggravating factor expressed under this provision is as per subsection (6) which states that an instance of penetration aggravates the offence and increases the maximum penalty to a life sentence.

31. In relation to the first element I find that accused, Roy Awetu is known to the complainant, Elizabeth Vincent Awetu. She referred to him as “Roy” and “Papa Roy” and confirmed he was the one and same person as Roy Awetu, her adopted father. In the accused Record of Interview, he states that his name is Roy Awetu in answer to Question 5.

32. The complainant gave evidence that the accused sexually abused her many times, however, her sworn evidence was that she recalled two incidents. The First alleged occasion is as per the complainant’s evidence on an unspecified day between 1 day of April 2013 to 31 May 2013.

33. The second alleged occasion was between 1May, 2015 and 31 August 2015 as contained in the complainant’s sworn evidence.

Engages in conduct in relation to a particular child that constitutes an offence against this Division

34. With respect to this element, the complainant’s sworn evidence in Court in respect of the 2013 incident is that the accused had shown her his penis and placed a condom on, telling her that if he wore it and slept with her, she would not be pregnant. She gave further evidence that the accused touched her breasts, kissed her lips and inserted his penis into her vagina. By definition the accused’s conduct amounted to an indecent act directed at a child consistent with s.229C (1)) and sexual penetration consistent with s.229A (1) (2) (3) of the Criminal Code.

35. With respect to the 2015 incident, the complainant’s sworn evidence is that the accused forcefully removed her clothes and forced her to the floor, kissed her lips and touched her breasts before inserting his penis into her vagina. The accused conduct amounted to the offence of Sexual Penetration of a Child, s.229A (1)(2)(3)) of the Criminal Code.

B. A charge of Abuse of Trust, Authority and Dependency, is against s.229E of the Criminal Code.

(i) A person who
(ii) who engages in an act of sexual penetration or sexual touching
(iii) of a child between the ages of 16 and 18 years

(iv) with whom the person has an existing relationship of trust, authority or dependency is guilty of a crime.

36. The identity of the person to be the perpetrator is not an issue. The accused, Roy Awetu is known to the complainant, Elizabeth Vincent Awetu. She referred to him as “Roy” and “Papa Roy”, the one and same person as Roy Awetu. her adopted father. In the accused Record of Interview, the accused states his name as Roy Awetu in answer to Question 5.

37. The second element is attributed to the incident on 4 May 2020 in the early hours of the morning wherein the accused woke her from sleep and forced her to the spare room. The accused then forcefully removed the complainant’s clothes pulled her to the floor and then inserted his penis into the complainant’s vagina, he also touched her breasts and kissed her. The requirement of a person who engages in an act of sexual penetration or sexual touching is satisfied.

38. The Medical Report by Christine Waure is independent evidence and confirmed the complainant’s injuries in her vulva area in the nature of “lacerations at 3 o’clock, 6 o’clock and 7 o’clock of the labia minora of vagina”.

39. As to age, there is no dispute and the findings by Dr. Beatrice Solok contained in the Dental Report relating to the complainants dental age in which “the unerupted third molars with all root formation incomplete” places her at 17-18 years of age in 2020. This is consistent with the requirement s.229E, of a child between the ages of 16 and 18 years.

40. The last element is not in dispute and that the accused was the husband of Elizabeth Awetu and they both adopted the complainant. The complainant’s reference to the accused as Papa Roy is a manifestation of her regard of the accused since she came to the accused’s household as a young child and was raised by him for the 8 years leading up to this offence. The accused’s sworn evidence confirmed the complainant was his child, that he adopted her when she was a young child and further that he clothed her, fed her, supported her financially with school fees, bus fare and lunch money. This places the accused as a person with an existing relationship of trust, authority or dependency.

41. In relation to the alternate count of Rape, s.347 (1) & (2) and s. 349A (e) of the Criminal Code, the elements of which are:

42. The evidence supporting the alternate charge of rape with circumstance of aggravation consist of:

(i) Identity of the perpetrator which is not an issue based on the conclusion already made in the earlier charge.

(ii) The complainant’s sworn evidence relating to the 4 May 2020 incident in the early hours of the morning as detailed in the assessment of evidence is confirmation of this element of this charge. The Medical Report by Christine Waure, State Exhibit “S3” is independent evidence confirming the complainant injuries in the nature of “lacerations at 3 o’clock, 6 o’clock and 7 o’clock of the labia minora of vagina” is evidence and evidencing sexual penetration.

(iii) As to lack or without his/her consent, the complainant sworn evidence was that she was asleep and when the accused was kicking her and forcing her to wake up, she ignored him because she knew what was going to happen. She said he kept kicking her, so she woke up and he forced her to the spare room and had told her to remove her clothes and she did not want to. She said the accused said for her to get ready as he had to go to work; he then forcefully removed her clothes after she refused. In cross examination she said the accused use to threaten her, she was scared so she did not call out for help.

43. The basic principle relating to issue of credibility is based on common sense and logic in so far as determining whether a witness is credible and therefore his or her evidence is truthful or credible: State v Niningan [2003] PGNC 136, N2360.

44. The primary evidence of the sexual assault comes from the complainant as she was the very person whose body was violated by the accused. Why would she lie about sexual abuses that are ultimately brought out in public that violates her dignity.

45. I observed the complainant’s demeanour, and she was shy and nervous when giving her evidence. At times she became emotional and appeared hesitant to recount in Court the details of the actual sexual abuse, but she answered the questions properly and honestly. Clearly, she was revisiting past traumatic experiences and was recounting intimate details of her sexual violation and sexual abuse. Despite all these she was steadfast to her story of the persistent sexual abuse. In State v Francis Tigi [2013] PGNC 114; N5307, His Honour Kirriwom stated: “Only she was qualified to reveal them from her own experiences. Personal experiences cannot be made up by somebody else and planted in someone’s mouth”.

46. She recounted and maintained her story of the 2 separate incidents of sexual abuse when she was under 16 years, and of the incident on 4 May 2020. She did not sway from her story when cross examined. It is common sense and logic that when something traumatic happens to a person it is hard to erase the memory, and especially for a child. To my mind her evidence is credible, and she is a truthful witness.

47. I observed the demeanour of the accused in Court, and he appeared to me to be a person avoiding the truth. On occasions he looked down as if to avoid eye contact when giving answer. When it was put to him that he penetrated the complainant, he looked down and said no. Other times he paused and grappling with answers to simple questions like giving age of the complainant. He was calculated and evasive when it came down to his answers relating to the sexual offences. He was unsettled and nervous throughout giving his evidence.

48. His evidence was basically that the complainant was his adopted daughter and what she told the Court was not true. He said he could not have sexually abused her as alleged because he was a PMV driver and worked Monday to Saturday from 6am to 6pm, and then later said 7pm. In cross examination the accused maintained his denials but when put to him that after he sexually penetrated her, he sent her out, he shook and drop his head low. When it was put to him by State counsel that he did the sexual penetration knowing well that the complainant was a child, accused answered that he did not know. This was not clarified in Re-examination.

49. He also denied the incident in 2015, that he was at work and later agreed that he did go to the school to take the complainant home. He gave evidence that after he took her home, he went to the ambulance and later asked his friends to assist him. When cross-examined he altered his story and said he went to work after. He again changed his story and said he did get help from his Boss, and changed his evidence that when he said friend, he meant his boss. The manner in which he gave that evidence was of man trying to fix his story or his lies.

50. Further accused contradicted his own evidence relating to the incident of 4 May 2020. In Examination in Chief, he told the Court that he only woke the complainant up because she was in the walkway his access to the bathroom. In cross examination, he changed his story and said he was already up at Bomana at that time and not at his home in Waigani. When it was put to him that he woke her up because she was in the walkway, he then agreed to that. This raises the issue of lack of credibility and truthfulness on his part. His changing of his story is such as to conveniently remove himself from the scene when he had already placed himself there.

51. The accused told the Court that he cared for the complainant and raised her as his daughter, he went on to say that he cared for her and loved her, however when asked simple things about her like her birthday, her favourite colour, what grade was she at Boreboa Primary School and her exact age. He answered that he did not know and the way he answered showed he did not care nor love her.

52. The law in relation to corroboration for Division 2A offences is that corroboration is not required. Section 229H of the Criminal Code specifically states that on a charge of an offence against any provision of this Division, a person may be found guilty on the uncorroborated testimony of one witness, and a Judge shall not instruct himself or herself that it is unsafe to find the accused guilty in the absence of corroboration.

53. In State v Melly (No 1) [2009] PGNC 164; N3772 Makail J made the following remarks in relation to the provision of s.229H of the Criminal Code as amended:

“But in my view, the uncorroborated evidence of a witness is subject to other rules of evidence like whether the evidence of the witness is credible and that it is not contradicted by credible evidence of defence’s witnesses. Hence, if the uncorroborated evidence of a witness is not credible or is contradicted by credible evidence of the defence, the Court should not convict an accused on the uncorroborated evidence of a witness.”

54. The evidence of the complainant alone is credible, and it is further corroborated by the Medical Report that was tendered in as States evidence by consent.

55. With respect to the charge of Abuse of trust Authority and Dependency, the State submits, that whilst corroboration is not a requisite, the Medical Report on file supports the complainant’s story of being sexually penetrated by the accused on 4 May 2020. The findings by Sister Christine Waure after conducting an examination were that medical evidence also corroborates the allegation of sexual penetration in that there were injuries particularly lacerations at 3, 6 and 7 o’clock of the labia minora of the vagina.

56. I find the complainant to be a child of 11 in 2013 when the first incident charged occurred. At the time of the second charge in 2015 she would be 13 and in 2020 she would be 17 years.

57. As to when the complainant came to Port Moresby and into the custody of the accused there are two dates. The complainant says she came over with her grandmother Lily in 2012 at the age of ten (10). The accused gave evidence that he adopted the complainant in 2006 when she was six (6) was brought over to Port Moresby by his wife’s sister “in 2006 or might be 2008”. Apart from adding the age of the complainant by two (2), it typifies the calculating and evasive nature of the accused I would think.

58. The denials by accused of the two alleged incidents of sexual penetration in 2013 and 2015 and, the one instance of sexual penetration in 2020 does not nullify the allegations. It boils down to credibility and truthfulness and assessment of demeanour. I also note that the accused avoided many questions that placed him at the alleged scenes and gave answers to remove or distance himself from the scenes. He was evasive when it came down to the actual sexual offence. He was unsettled and nervous throughout giving his evidence.

59. The uncharged instances were not recent inventions but were put to the accused in Q 19, 20, 21 and 22 of the Record of Interview.

60. An incident that occurred during trial which must not be ignored was the accused approach to the complainant while she was still under oath. I take this into consideration. Clearly there can be no other reason other than trying to interfere with the State’s evidence. Put simply it is a bold sign by someone trying to influence evidence to cover his guilt.

61. The way he spoke is as though he did not care about the complainant including her welfare when she had run away. He could not even answer simple questions about what grade the complainant was in at Boreboa Primary School nor her favourite colour.

62. In the end I do not regard him as a truthful nor a credible witness. I give very little weight to his incredible story.

63. This leaves me to consider whether the State has proven its case beyond reasonable doubt. It is trite law that the prosecution bears the onus of proving each element of the respective offence beyond reasonable doubt. In SCR No 1 of 1980; Re S22A(b) Police Offences Act; Biyang v Liri Haro [1981] PNGLR 28, Greville Smith, J said the following:

“As a result of s. 37(4)(a) the law in Papua New Guinea relating to the proof of guilt in criminal cases is that the onus is on the prosecution to prove each element of the offence charged beyond reasonable doubt,..”

64. I find the documentary evidence from the State that were tendered by consent such as the Medical Report and the Dental Report support the charge contained in the indictments.

65. The complainants sworn evidence relating to the period in which the persistent sexual penetration occurred, the place where it happened, and the nature of the sexual assault are consistent with and satisfy the requirements of s.229D (3), (4), (5) and (6) of the Criminal Code.

66. In the end I am satisfied that the prosecution has proven each of the essential elements of the charge beyond reasonable doubt.

(1) For the persistent sexual abuse of a child contrary to s. 229D (1)(6) of the Criminal Code

(2) For abuse of trust, authority and dependency under Section 229E (1) of the Criminal Code.

(3) I make no finding in respect of the alternate count under s. 347(1) & (2) and s. 349A (e) of the Criminal Code.

National Court of Papua New Guinea

State v Awetu [2023] PGNC 93; N10214 (28 April 2023)