State v Hevena [2024] PGNC 386; N11055 (21 October 2024)

N11055

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 402 OF 2023

THE STATE

V

ROBIN HEVENA

Waigani: Miviri J
2024 : 07^th, 09^th & 21^st October

CRIMINAL LAW – PRACTICE AND PROCEDURE – Sexual penetration Minor 12 years old – 5 years old victim – Section 229A (1) (2) (3) CCA – Digital Penetration – Injuries to Vagina – Treated & Discharged – Wantok from Same Area – Well Known to Victim & Parents – Broad Daylight Identified by Complainant & Mother – Identification – Alibi raised in Record Of Interview – No formal Notice of Alibi Filed – Criminal Practice Rules Order 4 Division 2 –Application For Leave to File – No Basis for Leave – Application Refused – State Evidence on Identification beyond All Reasonable Doubt – Identification of a well-known person – Broad Daylight Identification – Not a Fleeting Glance – Digital Penetration – Under 12 Years Old – 5 years Old – Guilty of Section 229A Criminal Code .

Facts

Accused inserted his finger into the complainant’s vagina and injured her. She became ill as a result. In the process of trying to help she told her mother of what accused did to her. Mother confirmed, sought medical help and reported to Police.

Held
Sexual penetration with finger.
Identification of who did it.
State evidence preferred over.
Defence evidence incredible rejected.
False Alibi.
Corroboration of Identification.
Guilty of Sexual Penetration digitally.
Remanded.

Cases Cited:

Papua New Guinean Cases
John Beng v The State [1977] PNGLR 115.
Kitawal v State [2007] PGSC 44; SC927 (22 February 2007).
Pawa v The State [1981] PNGLR 498
Morris, The State v [1981] PNGLR 493
Naepe v State [2020] PGSC 144; SC2072 (25 August 2020).
Kandakason v The State [1998] PGSC 20; SC558 (7 July 1998).
Waranaka v Dusava [2009] PGSC 11; SC980 (8 July 2009).
John Jaminan v The State [1983] PNGLR 318
Hagena v State [2017] PGSC 55; SC1659 (11 December 2017).
Balbal v State [2007] PGSC 16; SC860 (22 February 2007).
Mai and Avi, The State v [1988-89] PNGLR 56

Overseas Cases
Browne v Dunn (1893) 6 R. 67, HL.
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:
E. Kariko, for the State
K. Watakapura, for the Defendant

VERDICT

21^st October 2024.

1. MIVIRI J: This is the verdict after trial of a 52-year-old man acclaimed preacher of God who pleaded not guilty to digitally penetrating the vagina of a child Maris Philemon who was under the age of twelve (12) years old. She was 5 years old.
   
2. He was indicted under section 229A (1) and (2) of Criminal Code, Sexual Penetration of a Child which read; -
   

(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 Subsection (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.”

3. The facts levelled on arraignment against Robin Hevena also known as Robin Kaimo the accused was that together with the complainant Maris Philemon they resided in the same neighbourhood at June Valley, Port Moresby. On the afternoon of the 1^st May 2022, Accused was playing Ludo there. And the complainant was also there playing with other children. Her parents were not around then. The accused lured her to his house on the promise of giving her food. He took her into the house and inserted his finger into her vagina. She felt pain and cried. The matter came to light the next day 2^nd May 2022, when the mother of the complainant was washing her. She noticed that her daughter was unwell, in pain and had injuries to her vagina. The complainant told her mother that Wesley’s father Robin took her into his house and put his finger into her vagina. She was taken to the clinic where she was checked and later a complaint was laid with police.
   
4. Accused denied the charges on arraignment contending that he was not guilty. He had at that time of the allegation gone to Boroko. He was not there and could not have committed the offence given that fact. In effect stating that even if the offence was committed, he could not have been responsible because he was at Boroko. The trial issue in essence was identification, law of which was set out in John Beng v The State [1977] PNGLR 115. Was this a case of a fleeting glance made out in difficult lighting circumstances of a stranger. I am mindful particularly given that, “In proceedings where evidence of identification is relevant, the Court should be mindful of all the inherent dangers, the need for caution before convicting in reliance on the correctness of identification, the possibility that a mistaken witness could be a convincing one and that any number of such witnesses could all be mistaken; the Court should examine closely all the circumstances in which the identification by each witness came to be made bearing in mind that recognition may be more reliable than identification of a stranger, but that even where the witness is purporting to recognize someone he knows mistakes can be made. When the quality of the identification evidence is good the matter should proceed to a verdict, when the quality of identification evidence is poor, unless there is other evidence which goes to support the correctness of the identification, an acquittal should be entered.” John Beng (supra).
   
5. The State relies on the complainant together with her mother identifying the Accused as the perpetrator of the allegation. But tendered a number of evidence by consent. Exhibit P1, Statement of Mark Philemon’s father of the complainant employed as a security guard with G4S security company. He confirmed that they were resident at June Valley. The complainant is his 5-year-old third born daughter who goes to elementary school. He says that she was sexually abused by Robin Kaimo from Eastern Highlands on Sunday 1^st May 2022. That the daughter reported when questioned by the mother on Monday morning when she was sick as a result of that incident. That she told her mother that Wesley’s father Robin Kaimo pushed his finger into her vagina (lolo), and she felt pain and cried. Which was checked by the mother confirming and reconfirmed by the nurse at the clinic at Tokarara. Because of the pain she was unable to walk, and the mother carried her to the clinic. And after the return from the hospital complainant pointed out the house of Robin as they were walking back up. And along the way they both met Robin who complainant pointed out to her mother as the man who did what happened to her. Upon returning home from work he was told by his wife all. He was very frustrated and together with the wife they went and belted Robin, the Accused. Telling him that he will stand before the Court in respect of the matter after they had obtained the medical report. Complainant was unable to walk and go to school she missed one week without school. Also to recover from the pain and sickness. I want the perpetrator to face the law.
   
6. The next exhibit was exhibiting P2 Statement of the Corroborating officer in respect of the record of interview, Sexual Offences Squad Adriana Kamasunga. Both her and Steven Eka Investigating Officer, exhibit P3 related to the conduct of the record of interview with the Accused on the 28^th October 2022. Suspect had been earlier been arrested by uniform policemen and was in custody when he took him in after collecting other evidence. He had charged him after the conduct of the record of interview.
   
7. The subject record of interview is exhibit P4 originally conducted in Pidgin. It was conducted on the 28^th October 2022 in the Boroko Sexual Offences Squad Office. Accused did not make any admissions. But stated at Question 12 that at 9.0’clock together with his family he went to Boroko. And at 2.00pm and 3.00pm he went to Gordons with his family. At, 5 0’clock and 6.0’clock he was at Erima and 7.00pm to 8.00pm together with his wife he went to his house at Tokarara. So, Sunday he was not there when the incident took place. He denied the offence and put up an alibi. But he did not call any evidence on oath in defence after recounting the evidence in the record of interview over. He did not call his wife or any of his family members accepting that he could not be at two places one and at the same time.
   
8. There was no compliance with Order 4 Division 2 Notice of alibi:
   

“4. An accused person shall not upon his trial on indictment, without the leave of the Court, adduce evidence of an alibi unless, before the expiration of the prescribed period, he gives to the Prosecutor written notice of particulars of the alibi and unless the notice contains the name and address of any person whom he claims can support the alibi or, if such name or address is not known to him at the time he gave the notice—

(a) he gives in the notice all information in his possession that may be of material assistance in locating that person; and

(b) the Court is satisfied that before giving that notice he had made all reasonable attempts to obtain that name and address and that thereafter he continued to make all reasonable attempts to obtain and to inform the Public Prosecutor of that name and address.

5. A notice under this Section shall be duly given if it is delivered to or left at the office of the Prosecutor responsible for the conduct of the trial or sent by certified mail addressed to him at that office.

6. Evidence tending to disprove an alibi may, subject to a direction by the Court, be given before or after evidence is given in support of the alibi.

7. A notice purporting to be given under this Section on behalf of the accused person by his lawyer shall, until the contrary is proved, be deemed to be given with the authority of the accused person.

8. In this Division—

"evidence of alibi" means evidence tending to show that by reason of the presence of the accused person at a particular place or in a particular area at a particular time he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission;

"the prescribed period" means the period of 14 days prior to the date of trial of the accused person.

9. He made an application when trial was well underway and concluded in the State’s case orally by his counsel to be given leave to file the notice of alibi in accordance with the Rule set out above. Given that the State evidence had closed, it could not be reopened because the accused had slept over his rights to so file. There were no grounds established by affidavit material as to the reason for so seeking an adjournment to file that notice. The alibi was raised on the 28^th October 2022 when the record on interview was conducted. What was needed was the accused to lead evidence on that fact as it stood in the record of interview. And there was no evidence filed in support for the grant of the application. Particularly after He had examined the State witnesses in this way following the rule in Browne v Dunn (1893) 6 R. 67, HL which was part of our Law held out in Kitawal v State [ 2007] PGSC 44; SC927 (22 February 2007). It followed upon him to call his witnesses drawing. Because alone his evidence was self-serving not verified and it made no difference even if a notice was filed, or leave granted for the same. He had already put the State on notice but did not follow through with it. What remained given was the only evidence of the State, if glossed circumstantially the law was that it must draw as its only rational reasonable hypothesis that provided by the State, which is the guilt of the Accused: Pawa v The State [1981] PNGLR 498. The following come out from the complainants as a witness. She is a 5-year-old. She is not expected in that age to know about sexual behaviour and the like associated. 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. What then is the status of the State evidence against the Accused on the allegation levelled.
   
10. State evidence started with 5-year-old Maris Philemon a very young child in grade 1 at the Ororo Primary School June Valley. Preliminary examination was conducted by State counsel to see if she was fit to take the oath on the Bible to be able to give her evidence. At the outset she stated that she was not feeling well. And that she went to the big church on Saturday which was her Sabath. And that Jesus was a good person, and it was good to follow him. Here she said we must listen to our parents to wash the plates sweep the floor. And Satan was a very bad person. She knew the story of Eve and Adam. Essentially from the examination by Counsel it was clear that she was clear as to the consequences not to follow Jesus. That she must tell what was seen and if she did not there would be consequences that followed. From this preliminary questions it was apparent to me that she could understand the consequences of swearing on the bible and telling the truth. Accordingly, she was sworn on oath to give her evidence.
    
11. On oath she stated that she was in grade 1 at Ororo Primary School June Valley. She knew why she was in court; it is my court and that I came because of the incident that happened to me. I was living well before this incident. I was in prep when the incident happened to me. And it happened at Amoko line’s house. He stays with us. We went and stayed at his house. They were playing Ludo, and he told me to go to his house. He removed my clothes and put his pointer finger into my “Lolo” vagina. That person and she points to the Accused in the dock. I know him, Robin. He stays with us at our block down there. Robin told me come we go to my house. He pulled me by the hand. Come we go to my house. He removed my pants and did this to me. I felt pain and cried when he put his finger into my Lolo vagina, pointing to her lower part of body. I felt pain and found it hard to get up. Mother got hot water washed me. I cried and she took me to the hospital. They gave me injection and medicine. Robin did not say anything he put his finger in my lolo, vagina and I cried. I went to my house. I felt that mother boiled hot water and washed me I felt hot. I told mother that a person Robin did something to me. Mother took me to the hospital. I felt feverish when my mother held me there. She maintained in all material aspects this evidence in cross examination. She was unshaken in her evidence.
    
12. In re-examination she maintained that what happened was at Amokos place. That Robin told her come we go to his house. There he put his finger into my lolo, and I felt pain. And that was what made me sick.
    
13. The next witness on oath was Rossie Warrima originally from Goroka mother of the complainant who was her third child born on the 25^th May 2017 and was seven (7) years old now at trial. That they all lived at Toks Gamose Sipo Koura Way June Valley. And she knew why she was in Court. It was because of her third born daughter Maris Philemon who was asleep and had not eaten when I came home from market. At 08.00pm my husband arrived from work. At 9.00pm pikinini child was crying because of pain and we did not rest well. In the morning my husband went to work and told me to go to the hospital with the child Maris Philemon. I washed her and observed her body, a man must have injured my child. I saw the signs on her my child’s vagina. I saw liquid and dried blood on her vagina side. When I put hot water on her vagina, she felt pain and was crying. So, I asked her did someone hold you on your pispis, vagina she said yes.
    
14. Daddy bilong Wesley was at Amoko took me to his house removed my pants and put his finger inside and did this. Lolo bilong me. Wesley’s father Robin Hevena Kaimo we stay together, and we go to Church together, so I know him. She told me it was yesterday Sunday. I was afraid and sad. Quickly I washed her and took her to the hospital. She couldn’t walk so I carried her. We got on the bus I carried her same way to the hospital. I explained to the nurse formally what happened and for her to double check and confirm that, yes someone spoiled your daughter. She opened her legs open and used the mobile telephone torch to check her vagina. She took her story and treated her and told us to see her one week later for the medical report at the Tokarara Clinic. I carried her the same way on my back and took her home. On the way home my daughter told me and showed me the house where Robin resides and told me that is where he took me to. And as we were going up Robin came down, my daughter pointed to him and said that is Robin and wanted to cover her face from him. I raised my head and saw him come to the area where it happened.
    
15. At 8.00 0’clock my husband returned from work I told him the story. Together with my husband no one supported us we went and told Robin Kaimo you are married man; this is just a child. We assaulted him and said we will put it to the law. After one week we got the medical report and reported to the Police who send him to Bomana. We thought because we go to the same church he will come and say sorry, but he did not so we reported to the Police.
    
16. The next state witness on oath was one Jonah Ikoki who gave sworn evidence that he knows the complainant and her mother. She is my small sister both her parents are my parents also. He was at the place at that time when the little girl got injured. And he saw and spoke to the accused there at that time and place. I asked him and he could not hear so I spoke to him in sign language, you went and what happened, nothing happened postponed to another time. I helped to register his son’s case, so I enquired. I watched a short while and went home. It was 3.0’clock to 4 0’clock when I spoke to Robin. In cross examination he was shown his statement by the police and asked that he was not watching but was also playing Ludo. So, he was busy playing and did not see the accused. He replied that he saw the accused Robin.
    
17. His statement was tendered into evidence as prior inconsistent statement marked as Exhibit D1. In it he stated that on the 1^st May 2022 between 3.30pm and 4.00pm he saw Robin Kaimo walking into the premises while I was playing Ludo on the mobile phone with the group. Since Robin have the hearing problem, I asked him louder concerning his son’s death court case. I repeated two (2) times and also did action with my hands, and he responded and said, the Court was postponed to next hearing that he was observing us playing. Robin Kaimo is also one of the players in the game. He sometimes collects tax (money) for the use of his phone (touch screen). Therefore, after a few minutes, I looked around for him to join the group to play gambling, but I did not see him, he had disappeared.”
    
18. Further evidence was led through the Arresting Officer Steven Eka of the medical report that he collected through his investigation. He identified MFI 1 that had been earlier intended to be tendered through the mother but could not as its author was not called. The witness identified the subject and confirmed that it was collected from the Hospital where the examination of the complainant took place. He had found the nurse the author of the subject report who had inscribed it after sighting conducting her medical examination. The State sought to tender it through this witness pursuant to section 61 of the Evidence Act as business records that were made or taken as a result of the investigation that was conducted in respect of the matter. It was business records and could be tendered as such. Objection was made by defence stating that the witness was not the author of the subject report. It was conceded by the State. But counter argued that it could be tendered as it came into the hands of the Arresting Officer in the course of this investigations in the matter. His business of investigating as a police officer had uncovered it. It could be tendered on that basis pursuant to section 61 of the Evidence Act. He was not the author, but he had verified with her, and it could be tendered as evidence he had uncovered. He knew how it came into being and was material to the case at hand drawing the allegations to point. His situation could be likened to Naepe v State [2020] PGSC 144; SC2072 (25 August 2020). He was not the author but had the necessary verification to its existence and therefore on that basis was proper to admit it into evidence. And in this regard, it ran hand in hand with the evidence of the mother and complainant. On these grounds I admitted this evidence as exhibit P5 for the state. The State closed its case.
    
19. Exhibit P5 was a Department of Health Division of Curative Health Services NCD Health Services medical report Form dated the 10 of May 2022. The personal particulars filled out were Maris Philemon F/5 years old of June Valley, home Province of Eastern Highlands. The purpose of the examination was to examine the victim confirmed with the following vaginal tear, inflamed fresh bleeding around the vaginal wall, cut on the left side vaginal wall most probably tear due to force being applied. Incident occurred at around evening on the 1^st May 2022 while mum was away at the market. The little girl stated that she was alone when the perpetrator used his finger to push through the vagina by force. Assessment: Sexual Assault case”
    
20. The effect of this evidence is that its material to the case before me. It concerns Maris Philemon 5 years old who was examined medically at the Tokarara Clinic on the 2^nd May 2022 after the Mother Rossie Warrima had taken her there. And she had done so because of the condition in the vagina of the complainant. And both this witness and the father had opted that this takes place. And the nursing officer there said a report will be furnished of the examination of the vagina of the complainant. It is now that report uncovered brought by the Police arresting Officer in the course of his duties as an investigator. It is not coming through a second-hand mode. It is not alone but confirms the existence of that injury on the body of the complainant. Relevantly the vagina with all the injuries consistent with the account that she gives coupled with that of the mother and the father set out above. Such evidence has not been diminished in its credibility urged by the accused that it is not by the author. Because it has been verified by the Police arresting officer with the author. It is part of the evidence in the state case and its effects as part of that must not be ignored. But must be accorded its place to arrive at determination on all the evidence as a whole.
    
21. Particularly given the fact that the accused does not refute that the complainant was sexually assaulted digitally by someone else on 1^st May 2022. And that she was injured in that manner and taken to the hospital on the 2^nd May 2022, by her mother joint decision by both parents. And that this medical examination did take place which report now uncovered by the police arresting officer who has testified to that effect. It means the issue is one of the identifications of the perpetrator of that sexual assault upon the complainant. It is undoubtedly clear that the assault was perpetrated upon the complainant in broad day light. And she was looking at the person in broad day light at close quarters because of the way in which the assault was perpetrated. No motive has been led by evidence from the defence against the demeanour of the complainant and her mother against the accused. There is no bad blood prior to the allegation between. He says they are distantly related in marriage in the way that he has described. He has not painted why related as they are, why the allegations of a sexual nature against him.
    
22. In this regard he has not challenged his sighting and the evidence of Jonah Ikoki sighting him there where the complainant was playing with the other children. And finding him not there despite that he was one of the players in the Ludo game. He also does not dispute the conversation with this witness about postponement of the case involving his son’s death. He does not detail on what basis he was able to say with precision that his allocation of time to his movement on that day beginning with when he went to Boroko ending with when he returned to his house. He does not explain why he was meticulous keeping time in this manner. There is no reference either to a clock or radio, or any mechanism or instrument from which he was able to confidently say he was at a particular location for according to the reading on the clock. This is events that happened two years ago in 2022 in May. And logically trite with common sense is the fact that it is not possible to, unless measured in reference to a clock or instrument keeping with records pertaining. He is not running a rigid business that requires strict adherence to keeping time.
    
23. What has really happened here is serious unexplained inconsistencies that do not hold up his evidence as to time. There is no consistency in evidence and evidence keeping with logic and common sense. Particularly given that he cannot be at two places one and at the same time. These are very major inconsistencies that do not hold his evidence above water. Particularly where he has called none of the family members, he was with to support his cause. His case does not have legs to past the allegation of the State. There is no credibility to hold him out as a witness of the truth having observed his demeanour throughout the trial. The resort to being a pastor a man of God does not add credit to his evidence. It destroys because why hold out as such in the face of a very serious criminal allegation. Comparably he has established basis in law for the outright rejection of his evidence: Kandakason v The State [1998] PGSC 20; SC558 (7 July 1998); Waranaka v Dusava [2009] PGSC 11; SC980 (8 July 2009). Here the truth is that he has strenuously tried to paint that he was out all throughout the 1^st May 2022. But in the effort, he has created a false alibi which is corroborative of the assertions of the State. He was where he was seen by Jonah Ikoki disappeared from sight because he was with the complainant who saw him and identified him out as the perpetrator of the allegation. She went on to seal this after going to the clinic returning with her mother and upon sighting his house and pointing him as he passed both mother and daughter. He was immediately in the area from the evidence of Jonah Ikoki.
    
24. I find that the Accused has told deliberate and calculated lies in the face of imminent guilt. That is corroboration of the assertion of the prosecution and in particular evidence by the complainant, in law. The prosecution version is corroborated affirming soundly on all fours with John Jaminan v The State [1983] PNGLR 318. The consistency and independent verification of the medical report details set out above will be consistent with the law in Hagena v State [2017] PGSC 55; SC1659 (11 December 2017). It is good law particularly denoting that sexual allegations are easy to make difficult to refute. Here I am comforted that it would not be erroneous Balbal v State [2007] PGSC 16; SC860 (22 February 2007). No, I do not have the author of the subject report but no law has been breached for this Court to consider its veracity in terms of Mai and Avi, The State v [1988-89] PNGLR 56.
    
25. Accordingly, I am satisfied that the accused Robin Havena of Kuana village, Henganofi Eastern Highlands was with the complainant and did commit the offence upon her of sexual penetration committed on the 01^st May 2022 where he inserted his finger into her vagina. And at that time, she was 5 years old, and therefore under the age of 12 years old. I convict him pursuant to section 229A (1) (2) of the Criminal Code.
    
26. He will be remanded in custody to await sentence. Remand Warrant will issue forthwith.
    

Orders Accordingly

__________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor : Lawyer for the Defendant