State v Kenny (No 1) [2024] PGNC 200; N10846 (21 May 2024)

N10846

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1412 OF 2024

THE STATE

V

MANUEL KENNY
(No 1)

Kokopo: Miviri J
2024: 20^th & 21^st May

CRIMINAL LAW – PRACTICE AND PROCEDURE – Section 229D CCA sexual Penetration of Child under 16 years old – 12 years old victim – Denial – Victim Living with Accused – No Dispute Sexual Penetration – No Dispute Victim Underaged Relevant Period – Question Who had Sexual Penetration of Complainant Victim Leading to Pregnancy – Who to Believe – More than Family Like Relationship – No Reason Why Serious Allegation Made Against Accused – Complainant Delivered a Child 29^th January 2023 – Where Was Complainant to Sustain Pregnant – Consistency in State Evidence – Incredible Assertions By Accused – Difference between Seeing & Sexual Intercourse – Defence Case Rejected – State Case Accepted – Guilty of Sexual Penetration Under 16 years S229D CCA.
Facts
Accused more than a family accommodated Complainant who had run away from her mother who had assaulted her because she was chewing betel nut in school uniform with friends. He sexually penetrated her, and she became pregnant. She was 12 years old at that time and under 16 years old.

Held
Denial.
Pregnant 12-year-old girl.
Who made her pregnant.
Where was She resident 9 months back from her delivery.
Seeing Boyfriend Distinct from Sexual penetration.
Defence Evidence incredible & rejected.
Consistency credible evidence by State.
State Evidence preferred.
Guilty of Sexual Penetration S 229D CCA.

Cases Cited:

Papua New Guinean Cases
John Jaminan v The State [1983] PNGLR 318
Kandakason v The State [1998] PGSC 20; SC558
Waranaka v Dusava [2009] PGSC 11; SC980
Hagena v State [2017] PGSC 55; SC1659
Balbal v State [2007] PGSC 16; SC860
Pawa v The State [1981] PNGLR 498
Morris, The State v [1981] PNGLR 493

Overseas Cases
Barca v. The Queen [1975] HCA 42; (1975) 133 C.L.R. 82 at p. 104; [1975] HCA 42; 50 A.L.J.R. 108 at p. 117.

Counsel:

J. Sausoruo & D. Mark, for the State
N. Loloma, for the Defendant

VERDICT

21^st May 2024

1. MIVIRI J: This is the verdict after hearing the evidence for and against including submissions by counsel relative. It is of a 41-year-old man who was alleged to have sexually penetrated the Complainant, a 12-year-old girl who sought refuge in his house after being slapped by her mother who saw her chewing betel nut whilst in School uniform with friends.
   
2. Between 1^st April 2022 and the 31^st May 2022 at Vudal- PNG UNRE campus, Gazelle District East New Britain Province, Abbiegail Malot who was 12 years old of Komoria village, Karkar, Madang Province went to stay with Manuel Kenny originally of Bali Island Talasea West New Britain. She regarded them as more than family and together with the three daughters of the Accused slept in the Kitchen house. The Accused and his wife slept in the main house.
   
3. The first incident of sexual penetration occurred in the middle of the night inside the girl’s room, when the accused entered and went straight to where the complainant was sleeping inside a mosquito net. He lifted it entered inside and sat between the legs of the complainant. Then removed her trousers and pants and his own trousers. Then forced the victim to touch his penis with her hand but she pulled away. He then held her legs upright, spread them and inserted his penis into her vagina. Complainant felt pain but he continued.
   
4. On the second occasion, the complainant was sleeping inside the kitchen house whilst everyone was away. The Accused went inside went to where she was sleeping and removed her clothes and his clothes. Then he inserted his penis into her vagina had sexual intercourse and ejaculated in her. This was continued consecutively for four (4) to five (5) days of the week when she was residing with the accused and his family. And by so doing by inserting his penis into her vagina when she was under 16 years, the accused contravened section 229D of the Criminal Code Act. He persistently abused her sexually.
   
5. That section Persistent Sexual Abuse of a child is in the following terms: -

“(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.”

6. At the outset evidence by consent comprised the Exhibit P1 Statement of Policewoman Weiba Sylvia who was instrumental as the arresting officer who set out the work to arrest the accused conduct a record of interview Exhibits P3A Pidgin original and P3B English translation. She was corroborated by policewoman Patricia Philemon Exhibit P2. Basically, both set out the work undertaken to arresting and charging the accused after a formal record of interview.
   
7. On oath the complainant Abbiegail Malot of Madang resident at Vudal for three years, a pupil attending originally at Kerevat Primary School but transferred to Vudal Primary School was called. She recalls what happened in between the 1^st of April and 31^st May 2022. She had gone to school and was chewing betel nut whilst in school with her friends. Her mother saw her and slapped her. As a result, she went and was staying with Jenny and Manuel and going to school. Whilst resident there one time in the night she was sleeping with the two girls between 4.00am to 5.00am, Manuel came into the room. He lifted the mosquito net and came to where she was sleeping. And then had sex with me. Two nights later he came looking for her. And when her mother used to send word for me, they would not tell her. And the second night when he came to her, she saw blood and water on her bedsheet. She told the wife of the accused who said she does not know what that is supposed to mean. She went and asked her next-door neighbour for soap so that she can wash the bedsheet. After washing she hung out for them to dry and did not go to school.
   
8. She was still there and on the third night her mother rang when she was having her dinner. She heard her mother talking to Manuel and he brought the phone so that I could talk to her. In cross examination she affirmed that there were three of us sleeping in that room. And they were sleeping a meter and a half apart. Here she specifically stated that accused came into the room and had sex with me. He closed my mouth with his hands. Both her friends were small and were fast asleep and could not hear. It was 4.00am to 5.00am when he did this to her. She affirmed and said Accused was lying when he denied having sex with her. Because at that time she was living with them and not with her mother at Kereba. And this was after her mother had slapped her at school and she went and stayed with Accused and his family. And she stayed with them between 1^st April 2022 to 31^st May 2022.
   
9. These dates are confirmed by the evidence of Beverely Malot mother of the complainant Abbiegail Malot. On oath She stated that between 1^st of April 2022 and the 31^st May 2022 I slapped my daughter because she was chewing betel nut with her friends in school uniform. She refused and was upset and went and stayed with Manuel and his wife. And in mid-June 2022 she was returned to me. I was sending word and calling Manuel and his wife to send her back to me. And daughter returned to me mid-June. She denies any other dates. Discovering that her daughter was pregnant May to August she tried to find the father from the girl unsuccessfully so referred the matter to the Police. And agreed that there were renovations carried out to the house of the accused, but the complainant was living with him and his family in the dates 1^st April 2022 to 31^st May 2022.
   
10. In defence the accused said complainant was living with him and his family over issues with her mother since the 18^th February 2022. Not 1^st April 2022 to the 31^st May 2022 because his house was being repaired and it was not possible to accommodate her at that time. The main house was being repaired. There were two rooms in the kitchen house where all slept in. His wife himself and their girls. It was not possible to commit sexual intercourse upon her given these facts. The environment was not conducive to commit the offence. There was no privacy because all the family were sleeping together given the disrepair status of the house. Which was undergoing renovations. It was suggested to her that her daughter had a boyfriend whose name was Bruno Stena. Like her daughter she denied this fact. And of seeing this boy during that period.
    
11. It must be settled that seeing a boy is not the same as having sexual intercourse with that boy. Both are not the same thing, and one does not give as its consequence pregnancy. Sexual penetration does but not merely seeing a boy, in this case allegation of seeing a Bruno Stena alleged boyfriend of the complainant, evidence of the accused. That evidence in my view is a desperate attempt by the accused to draw the point of the allegation of the offence away from him to another person. Because when interviewed by police in the record of interview Exhibit P3A and P3B English translation, he does not name the boyfriend as one Bruno Stena. He merely says her boyfriend who he stopped her from seeing because she was young. Further he says and agrees that she was pregnant and delivered a baby boy per question 36 of the record of interview. Delivery date is the 29^th January 2023 from the evidence of the mother Beverely Malot. Common sense denotes and recounts to the questions raised by the Court that working backwards from when her daughter became pregnant giving birth to a child on the 29^th January 2023, would give conception around May 2022, which is the date and month she was with the accused and his family at their house. That is where she was by the evidence of the mother and daughter combined.
    
12. I do so because common sense and logic denotes that both daughter and mother are telling the truth. I do not find any reason to doubt the veracity of their evidence and in the way they have given their evidence in Court. I have observed both very carefully and do not find any reason to doubt the veracity of their evidence. I have observed the complainant daughter and find her as a witness of the truth. She has no reason to make a very serious allegation against Manual the Accused, who is more than a family in the words of the mother. Because the Accused himself at question 24 and 25 denotes that Abbiegail will call the accused daddy because we looked after her mother during the time of her schooling was finding difficulty at her neighbourhood, so we took the step in helping her. It begs why would such a relationship be brought to ruins with a very serious allegation that carries a maximum imprisonment of life against a person who is called daddy. Only the truth and the desire to live out the truth in my view would prompt what this young girl came out to do before me. No reason has been enlightened to me by the defence to doubt her credibility as a witness of the truth. I draw the same assessment and inclinations upon the evidence of the mother, Beverely Malot. A single mother who describes the accused as more than family shows out the very strong bond between enlightened out by the admissions of the accused in the questions and answers of the record of interview set out above.
    
13. I do not find the accused evidence credible and worthy of consideration adding to his case so that the weight is in his favour. Rather I find that he has lied deliberately in asserting that she was not with him for the reason that his house was undergoing renovations during 1^st April 2022 to 31^st May 2022. Because that is not set out in his record of interview which is more closer to the offence having been conducted on the 06^th April 2023. The offence a year set apart. It is now a year since, and in my view, he has had time to reflect on the strength of the evidence and has sought to add to strengthened. It is an attempt in the face of evidence depicting his conduct contrary to the law which he has sought desperately to paint disassociation from. It is a deliberate lie concocted out of a conscious sense of guilt which effect is that it is corroborative of the assertions by the Prosecution: John Jaminan v The State [1983] PNGLR 318. And that is so because there is no name of the boyfriend supplied in the association of the complainant within his record of interview answers at questions 40. Now a name has come of that boyfriend but is not in the record of interview. Particulars that have come to build what is not there in the first place. Accordingly, I reject his evidence as untruths that have been told with a conscious sense of guilt. I find him as a witness who has lied under oath in Court for the reasons, I set out above. I will reject his evidence totally and will not accept any of it.
    
14. In my considered view in the aggregate, there are very serious unexplained inconsistencies that do not hold up his evidence. Because any serious unexplained inconsistency in evidence and evidence not in keeping with logic and common sense are basis for rejection of such evidence, Kandakason v The State [1998] PGSC 20; SC558 (7 July 1998); Waranaka v Dusava [2009] PGSC 11; SC980 (8 July 2009). Here therefore, common sense and logic denote that accused was the only male person who had the opportunity to commit that offence. He in telling that it was the 18^th February 2022 is evidence self-serving as he is not independently verified that, that is the date she was accommodated so there was no offence committed. Both mother and daughter are consistent and give credit to the fact of the birth of the child from that breach of the law on the 29^th January 2023. It is in my view corroboration independent verification of the account of the mother and daughter missing in the case of the accused, Hagena v State [2017] PGSC 55; SC1659 (11 December 2017). It is good law and particularly in sexual cases is very good law, Balbal v State [2007] PGSC 16; SC860 (22 February 2007). The application of which here leaves the defence comparably not on the same footing as the Prosecution.
    
15. I reject outright the defence case because in my view the following facts are undisputed established beyond all reasonable doubt that Abbiegail Malot was sexually penetrated as a result of which she became pregnant, and gave birth to a baby on the 29^th January 2023 evidence of her mother Beverely Malot. This is undisputed by the defence who have not advanced evidence or arguments against. He has confined that he had no opportunity to commit sexual penetration because she was not living with him 1^st April 2022 to 31^st May 2022. It is his word self-centred without any other evidence to seal that fact against the contention of the State. Both daughter and mother are consistent if it is to be held as a fact that she gave birth to a child on the 29^th January 2023. It is therefore safe to find as a fact that Abbiegail Malot was pregnant. And it is safe to find that She was a child when she gave birth to a child on the 29^th January 2023. And her evidence affirms that she was sexually penetrated more than once by a male person leading to her pregnancy showing out in August 2022 forcing the mother to try to find out who was the father to that pregnancy. Having been unsuccessful from speaking with the daughter complainant, she referred the matter to the police. Here it is undisputed both by the prosecution and the defence that Abbiegail Malot was a primary School pupil at Kerevat Primary School. Because that is where her mother saw her and slapped her because she was chewing betel nut whilst in school uniform with her friends there.
    
16. The question now becomes where Abbiegail Malot was resident nine (9) months counted backwards from the 29^th January 2023. Because her evidence of sexual penetration is at the Kitchen house of Accused whilst She was resident there with, he and his family after running away from her mother. I find as a fact for the reasons that I have advanced that She Abbiegail Malot was resident with the accused and his family on the period 1^st April 2022 to 31^st May 2022. And I find as a fact that he had sexual intercourse with her repeatedly over that period. He penetrated his penis into her vagina with ejaculation over a number of occasions which I deduce from her evidence. And I find as a fact the initiating beginning was when he one time in the night when she was sleeping with the two girls between 4.00am to 5.00am, Manuel came into the room. He lifted the mosquito net and came to where she was sleeping. And then had sex with me. Two nights later he came looking for her. That establishes the acts of sexual penetration, and it was persistent given the number of times he had sexual intercourse over that period with her. Which is consistent and falls square with the definition set out under section 229D (5) of the Act, there is more than one act of sexual penetration and the like in the hands of the accused against the victim complainant.
    
17. Circumstantially viewed the only rational reasonable hypothesis is that provided by the State, which is the guilt of the Accused: Pawa v The State [1981] PNGLR 498. She is her daddy why would she make a very serious allegation of sexual penetration against him given he is more than a family in the words of her mother. The question I therefore pose is the only question for the court is whether the guilt of the accused is the only rational inference that all the circumstances would enable it to draw: Morris, The State v [1981] PNGLR 493. Which approved and endorsed Barca v. The Queen [1975] HCA 42; (1975) 133 C.L.R. 82 at p. 104; [1975] HCA 42; 50 A.L.J.R. 108 at p. 117. I am firm that is what it is given the evidence that the accused has sought to bring in defence incomparable with that of the Prosecution.
    
18. I am satisfied beyond all reasonable doubt that at that time Abbiegail Malot was a child in primary School, notably at Kerevat Primary School. Which is where her mother slapped her leading to her unceremonious movement to the accused and family trusting him. Which trust he has taken advantage of and breached with the commission of the offence upon her. And evidence has established it beyond all reasonable doubt of being committed upon her on the 1^st April 2022 to 31^st May 2022 satisfying section 229D on all frontiers by it. Because there is reasonable specification particularly describing the offence set out by the nature and particulars in the way that the Accused perpetrated and committed the offence satisfying section 229D (1) (2) (3) (4) and (5). There is no doubt that the indictment has been discharged beyond all reasonable doubt of the guilt of the accused. I find him guilty on the indictment preferred dated as set out above.
    
19. Accordingly, I order that his bail moneys are refunded forthwith, and he is remanded to await sentence forthwith.
    

Orders Accordingly

_____________________________________________________________
Office of the Prosecutor : Lawyer for the State

Office of the Public Solicitor : Lawyer for the Defendant