Tolo v State [2023] PGSC 20; SC2371 (31 March 2023)

SC2371

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO. 72 OF 2017

BETWEEN:
LUKE TOLO
Appellant

AND:

THE STATE
Respondent

Waigani: Salika CJ; Kassman and Anis JJ
2023: 27^th & 31^st March

PRACTICE AND PROCEDURE – Criminal Law – Appeal against conviction – Charge of sexual penetration of a child under 16 years – An appeal against conviction – a reasonable doubt must be established to overturn a decision of the National Court.

Cases Cited:

John Beng v The State [1977] PNGLR 115
Glen Otto Kapahi v The State (2002) SC1023
John Karo v The State (2018) SC1649
David v The state (2006) SC881
Peter Waranaka v Gabriel Dusava (2009) SC980

Counsel:

Mr N Hukula, for the Appellant
Mr D Kuvi, for the Respondent

31 March, 2023

1. BY THE COURT: INTRODUCTION: Luke Tolo appeals the decision of the National Court given on 27 November 2017 against conviction. On 28 October 2017 he was charged with one count of sexual penetration of a child under the age of 16 years under Section 229 A (i) of the Criminal Code Act.
   

GROUNDS OF APPEAL

2. The appellant raised five grounds of appeal. They are:
   
   • 1.1 The trial judge failed to find that the State had not proven all the elements of the charges beyond a reasonable doubt;
     
   • 1.2 The trial judge erred in finding him guilty when there was no evidence to justify and show that the appellant had the intention to commit the offence;
     
   • 1.3 The trial judge erred in noting there was a difference in the date of the alleged offence in that the appellant says it was on Tuesday 10/05/16 around 1.30pm and 2.30 pm when the victim said it was on Monday 9/10/16;
     
   • 1.4 The trial judge fell into error in noting that he had given food that he had taken for the cleaner lady which he gave to the victim;
     
   • 1.5 The trial judge failed to note that the complainant had previous records of mobile theft.
     
3. Grounds 1.3) and 1.4) were abandoned leaving three grounds.
   

THE APPELLANT’S SUBMISSIONS

4. The appellant submitted through his counsel that the two elements of the charge under s. 229 A (1) of the Criminal Code are:
   
   1. The accused engaged in an act of sexual penetration with another person; and
      
   2. The other person is a child under the age of 16 years.
      
5. He submitted that he had no issue with the age of the victim who was a 12 year male child.
   
6. However, he submitted that the first element of the offence had not been proven beyond reasonable doubt.
   
7. The main thrust of his submission was that the learned trial judge erred when he stated that the evidence of the medical report was “much, much stronger”. He submitted that the learned trial judge erred when he failed to analyze the Health Extension Officer’s evidence which was tendered into evidence in the form of a medical report in that the HEO’s report was not an objective opinion but a subjective one and as such the conviction on that evidence was not safe.
   
8. He further submitted that the HEO’s report was not a report of a neutral person but that it was a biased one. He submitted that the HEO had formed an opinion that there was sexual penetration rather than from other causes such as constipation or diarrhea. He submitted that the HEO’s evidence was overly subjective and biased and the learned trial judge ought to have treated that evidence with much caution. He further submitted that the medical report was inconclusive.
   
9. The appellant submitted that the judge’s assessment of the characters of the victim and the appellant was confusing and did not clearly point out whose evidence he accepted as fact.
   
10. Moreover, the appellant submitted that the learned trial judge did not give proper reasons for his decision to convict him.
    
11. Finally, he submitted that the evidence showed that the victim had a propensity to steal and that the learned trial judge had failed to address this key piece of evidence which went to the crux of the issues on trial.
    

SUBMISSIONS OF THE RESPONDENT

12. The Respondent through counsel submitted that the victim had complained of sexual penetration of his anus by the appellant and that the evidence of Olive Ephraim that injuries seen on the victim’s anus was consistent with sexual penetration.
    
13. The Respondent further submitted that the real issue was whether or not there was sexual penetration of the victim through the victim’s anus. The Respondent submitted that the learned trial judge considered the medical report which confirmed sexual penetration.
    
14. The Respondent submitted that the learned trial judge preferred the evidence of the State over that of the appellant.
    

THE LAW ON CRIMINAL APPEALS

15. Section 22 of the Supreme Court Act governs appeals to the Supreme Court from the National Court on conviction and sentence. It reads:
    

“22. CRIMINAL APPEALS.

A person convicted by the National Court may appeal to the Supreme Court–

(a) against his conviction, on any ground that involves a question of law alone; and

(b) against his conviction, on a question of mixed fact and law; and

(c) with the leave of the Supreme Court, or on the certificate of the National Court that it is a fit case for appeal, against his conviction on any ground of appeal–

(i) that involves a question of fact alone; or

(ii) that appears to the Supreme Court to be a sufficient ground of appeal; and

(d) with the leave of the Supreme Court, against the sentence passed on his conviction, unless the sentence is one fixed by law.”

16. All appeals against conviction may be on a point of law only or mixed points of law and fact. This is an appeal against conviction and is on mixed law and fact and as such no leave is required. See s. 22 of Supreme Court Act. The Supreme Court in John Beng v The State (1977) PNGLR 115 considered what an appellant needs to demonstrate to the Supreme Court in order to succeed and that is “on an appeal against conviction, the Supreme Court must be satisfied that there is in all circumstances, a reasonable doubt as to the safeness or satisfaction of the verdict before the appeal can be allowed”.
    
17. The appellant was charged under s. 229 A (1) of the Criminal Code Act. The elements of the offence under that provision are:
    
    1. A person;
    2. On a date;
    100. At a place;
    4. Sexually penetrated;
    5. A child;
    6. Under the age of 16 years.
       
18. The State had the burden of proof to satisfy the learned trial judge beyond reasonable doubt of each of the above-named elements of the offence. Except for the element of sexual penetration, all the other elements of the offence were not contested, thus were proved beyond reasonable doubt.
    

DEALING WITH THE REMAINING GROUNDS OF APPEAL

19. The remaining grounds of appeal are:
    

Ground 1.1.

The trial judge failed to find that the State had proven all the elements of the charge beyond reasonable doubt.

As alluded to in paragraphs 16 and 17 of this decision, except for the element of sexual penetration, all the other elements of the charge were not disputed. This means all the other elements of the offence were proved beyond reasonable doubt.

20. The element of sexual penetration was the only issue at the trial.
    

Ground 1.2.

The trial judge erred in finding me guilty when there was no evidence to justify and show that I had an intention to commit the offence. The trial judge fell into error when he only assumed that I committed the offence where there was no evidence to substantiate all the elements of the offence.

21. Intention is not an element of the offence under s. 229 A (1) of the Code. That part of the appeal is misconceived.
    
22. The assertion that “he only assumed that I committed the offence where there was no evidence to substantiate all the elements of the offence”. There was only one element of the charge that remained to be proved, and that was the element of sexual penetration. Sexual penetration is defined under Section 6 of the Criminal Code. It reads:
    

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

1. The introduction, to any extent, by a person of his penis into the vagina, anus or mouth of another person; or
   
2. The introduction, to any extent, by a person or an object or a part of his or her body (other than the penis) into the vagina or anus of another person, other than the course of a procedure carried out in good faith or hygiene purposes.”
   

23. We note the evidence of the HEO when she was asked if the redness of the anus could have been caused by constipation. Her answer was that constipation occurs from the inside to come out through the anus. In this case, the insert was from the outside in. The evidence was not contradicted.
    
24. The oral evidence of sexual penetration came from the victim and Olivia Ephraim, the Health Extension Officer (The HEO). The HEO prepared a medical report which was tendered into evidence and formed a critical part of the evidence the learned trial judge relied on to satisfy himself beyond reasonable doubt. In the end result, the learned trial judge found that the State had proved the allegation beyond reasonable doubt. The appellant failed to demonstrate to this Court any error, on the part of the learned trial judge, to make this Court overturn the decision of the National Court.
    

INCONSISTENCIES

25. The appellant also raised the argument of inconsistencies. The appellant submitted that the trial Judge did not discuss in his decision the glaring inconsistencies in regard to the evidence of the victim. The inconsistencies include, (i), the victim’s claim that the appellant’s penis was huge like a log, (ii), the victim’s claim that blood splashed everywhere at the time of penetration; (iii), the victim’s claim that he was still bleeding at the time when he was medically examined 6 days later, (iv), the victim’s claim that after he was penetrated by the appellant and told to leave the barracks, that he crawled out and back to his home on both his hands and knees.
    
26. In support, the appellant relied upon this Court’s decision in Glen Otto Kapahi v. The State (2002) SC1023 where the Court held:
    

The mere evidence of inconsistencies in the evidence of State witnesses does not necessarily mean that the State’s case should be rejected. However, if there are inconsistencies, the trial judge should identify them, assess their significance and give reasons for regarding them as significant or insignificant, as the case may be.

27. We observe that the trial Judge did not address the inconsistencies in his decision. However, the real issue then is whether the inconsistencies are significant and would have affected his decision. See cases: John Karo v The State (2018) SC1649, Devlyn David v The State (2006) SC881 and Peter Waranaka v Gabriel Dusava (2009) SC980.
    
28. We observe that the inconsistencies appear incredible or exaggerated. We also note the tender age of the victim of 12 years which may have caused these varying recollections. We further observe that the trial Judge based his findings primarily on the evidence of the victim and the medical report that was presented together with the evidence of the HEO. The trial Judge found them credible and corroborated. In regard to the medical report, there was swollen or bruises observed around the anus area of the victim. The appellant also did not dispute the fact that he had invited or taken the victim to his room at the time of the incident.
    
29. The appellant also challenged the veracity or credibility of the evidence of the HEO. He submitted that her views were subjective rather than objective. At the hearing, we pointed out to counsel for the appellant that the subjective view argument was premised on the oral testimony of the HEO but that was because she was answering the questions that were premised on what the victim had told her at the time when the victim was taken in for examination. We also brought counsel’s attention to the actual medical report which was not challenged, and we asked counsel whether he sees the two separate scenarios. With respect, we received no valid submissions in response from counsel on these. Thus, we note that the medical report evidence remained unchallenged which had formed part of the basis of the trial Judge’s assessment of the evidence, where he, in totality, was satisfied beyond reasonable doubt that the prosecution had established its case on conviction against the appellant.
    

28. In the end or to summarise, we do not find the inconsistencies as material inconsistencies. That said, we do however note and find merit in the appellant’s argument that the inconsistencies were not addressed by the trial Judge, and we would add that it would have been prudent had the trial Judge addressed them. However, and again, we must say that none of the points made on behalf of the appellant persuade us that the verdict of guilty is unsafe or unsatisfactory. There was no major error on any question of law that would warrant us to set aside the conviction. There was no material irregularity in the trial. There was no miscarriage of justice.

SUMMARY

29. In summary we answer the grounds of appeal in the following way:
    

Ground 1.1

30. All the elements of the offence under s. 229 A (1) of the Criminal Code were proved beyond reasonable doubt. This ground is misconceived and is dismissed.
    

Ground 1.2

31. The learned trial judge did not assume the appellant committed the offence. The oral evidence of the victim, the HEO and the medical report were sufficient to prove beyond reasonable doubt that there was sexual penetration. This ground has no merit and is dismissed.
    

Ground 1.5

32. The learned trial judge did address the claim of the appellant that the victim stole the appellant’s mobile phone and that discussion by the learned trial judge we find at lines 10 to 20 on page 153 of the transcript of the judgment (found at page 165 of the appeal book). The learned trial judge did find “the phone was in fact stolen from the accused.” The learned trial judge did address the issue about the mobile phone and we are satisfied there was no error in the learned trial judge’s assessment of the totality of the evidence from the oral evidence of the victim and other State witnesses in finding the appellant guilty of the charge.
    
33. The learned trial judge was satisfied that the victim’s story was supported by the oral evidence of the HEO and her written medical report. There was critical corroborative evidence to prove sexual penetration. That finding was open to him on the evidence before him.
    
34. The learned trial judge preferred the evidence of the victim, the HEO and the medical report. This ground of appeal has no merit.
    
35. The appeal is dismissed in its entirety.
    

________________________________________________________________
Public Solicitor: Lawyers for the Appellant
Public Prosecutor: Lawyers for the Respondent