Nanuk v State [2023] PGSC 74; SC2426 (7 July 2023)

SC2426

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO. 28 OF 2022

BETWEEN:
PHILEMON NANUK
Appellant

AND:
THE STATE
Respondent

Waigani: Kassman, Kangwia, & Miviri JJ
2022: 24^th August
2023: 7^th July

APPEAL AGAINST CONVICTION – reliance on alleged irregularities at trial – failure to consider totality of evidence – tender into evidence of medical report by police investigator – failure to show errors committed by trial Judge – conviction safe - appeal dismissed.

Cases Cited:

Avia Aihi v. The State (No.1) [1981] PNGLR 81
John Beng v. The State [1977] PNGLR 115
Jackson Naepe v State (2020) SC2072
Steven Makai v the State (2009) N3841
Paulus Pawa v the State [1981] PNGLR 498

Legislations Cited:

Constitution s. 37(1) & 155(2)(b),
Supreme Court Act c.37 s. 22(1) & (2)
Evidence Act s. 37 & 61
Criminal Code s. 229(D)(5)(b)
District Courts Act c. 40, s. 95(1), 96 & 97
Public Prosecutors (Office and Functions) Act 1988 s. 4

Counsel:

S. Malaga, for the Appellant
S. Roalakona, for the State

DECISION

1. KASSMAN J: Philemon Nanuk (“the appellant”) was convicted on 25 January 2022 on one count of persistent sexual abuse of a child, an offence under section 229D(1) of the Criminal Code. The appellant was sentenced on 29 March 2022 to 22 years imprisonment. The appellant appealed his conviction which was heard and reserved by this court on 24 August 2022. The appellant has not sought and neither was he been granted leave to appeal his sentence but he says in ground 11 the sentence imposed was unsafe and unsatisfactory. I address this below. This is the court’s decision on the appeal from conviction. I have read the draft decision of my brothers Kangwia and Miviri JJ. This is my decision.
   

Appellate Jurisdiction

2. The right to appeal a conviction or sentence is not an inherent right of a person convicted and sentenced for a criminal offence. Neither is there an inherent power in the Supreme Court to act, except on review as provided by section 155(2)(b) of the Constitution. The right to appeal a conviction or sentence is a right provided by statute being the Supreme Court Act c.37 Avia Aihi v. The State (No.1) [1981] PNGLR 81. Section 22(1) of the Supreme Court Act provides an appeal against conviction shall be allowed if the Supreme Court thinks (a) is under all the circumstances of the case the conviction is unsafe or unsatisfactory; or (b) the conviction was wrong on a question of law; or (c) there was material irregularity in the course of the trial. Section 22(2) also provides the Supreme Court with the discretion to dismiss an appeal or ground of appeal if it considers that no miscarriage of justice has actually occurred: John Beng v. The State [1977] PNGLR 115.
   

Grounds of appeal

3. In the Supplementary Notice of Appeal filed 6 July 2022, the appellant raised 12 grounds of appeal. At the hearing, the appellant abandoned grounds (5) and (10B). I set out in full the remaining grounds of appeal:
   

“(1) that the conviction in all the circumstances of the case was wrong for being unsafe and unsatisfactory for the reason that the trial judge did not consider or properly consider the accused/appellant’s record of interview and section 96 District Courts Act statement.

(2) That the conviction in all the circumstances of the case was wrong for being unsafe and unsatisfactory when the trial judge failed to give reasons why or how the accused/appellant’s record of interview and section 96 District Courts Act statement “were inconsistent with common sense and logic.”

(3) That the conviction in all the circumstances of the case was wrong at law for the reason that the trial judge failed to address herself to the accused/appellants answers specifically to questions 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 51, 52, 53, 54, 55, 56 and 58 of the record of interview and paragraphs 8, 9, 13, 14, 15, 16, 17, 18, 10, 20, 21, the whole of 24, 27, 28, 29 and 30 of the section 96 District Court Act statement which had a direct bearing on the complainant’s credibility.

(4) The trial judge erred in failing to consider why the complainant’s serious allegation of sexual abuse at Boroko Lodge contained in the deposition was not included as part of the prosecution’s case.

(6) The trial judge further erred in finding that because the accused/appellant remained silent and the evidence is left unchallenged the prosecution had proved its case beyond reasonable doubt.”

(7) There was a material irregularity in the course of the trial when the trial judge accepted as evidence the medical report of Health Extension Officer Olivia S. Ephraim dated 1 August 2019 when it was not properly introduced either by consent of the accused/appellant or pursuant to the Evidence Act.

(8A) There was a material irregularity in the course of the trial when the trial judge correctly refused to accept the medical report of Health Extension Officer Olivia S. Ephraim dated 1 August 2019 on 24 November 2021 when the said report was tried to be introduced into evidence for the State through witness Christine Fuka Waure and then wrongly accepted the said medical report into evidence on 26 November 2021 through the witness Constable Adriana Kamasunga who was not the author of the said medical report.

(8B) There was material irregularity in the course of the trial when the trial judge wrongly accepted into evidence the affidavit of Olivia S. Ephraim which was defective in that it was made on “20^th August 2019” and sworn on “28 August 2019” through the witness Constable Adriana Kamasunga which purported affidavit was made for the District Court proceeding “CB No. 5842 of 2019.

(9) There was material irregularity in the course of the trial when the trial judge accepted the said purported medical report without any evidence as to the medical qualification of Olivia S. Ephraim.

(10A) There was further material irregularity in the course of the trial when the trial judge considered the medical report as “business records.” And accepted it as part of State evidence through State witness Constable Kamasunga from Police Sexual Offences Squad when the Sexual Offences Squad of the Police Department are not involved in the business of interviewing, examining and preparing medical reports for victims or alleged victims of sexual complaints.

(11) Consequently, the sentence imposed was unsafe and unsatisfactory.

4. I agree with and adopt the grouping and summary of the grounds of appeal suggested by counsel for the State (Grounds 1 – 4 and Grounds 7 – 11) which I restate in this manner, and I also include Grounds 6 and 11.
   
   1. Grounds 1, 2, and 3 raise the argument that the trial judge erred in failing to consider or properly consider the appellant’s Record of Interview and section 96 Statements and not giving reasons why the documents were inconsistent with common sense and logic.
      
   2. Ground 4 raised the argument the trial judge failed to consider why the complaints of serious allegation of sexual abuse at Boroko Lodge was not included in the prosecution case.
      
   100. Ground 6 raised the argument the trial judge erred in finding that because the appellant remained silent, the State’s evidence is left unchallenged, and the prosecution had proved its case beyond reasonable doubt.
        
   4. Ground 7 raised the argument, there was material irregularity during the trial when the trial judge accepted as evidence the medical report of the Health Extension Officer Olivia S Ephraim dated 1 August 2019 when it was not properly introduced either by consent of the appellant or pursuant to the Evidence Act.
      
   5. Grounds 8A, 8B and 10A raised the argument there was further material irregularity during trial when the trial judge considered the medical report as “business records’ and accepted the evidence through the Police officer.
      
   6. Ground 11 claims, the sentence imposed was unsafe and unsatisfactory.
      

Background facts not in dispute

5. The following background facts and matters are not in dispute. The appellant is from Lemanmanu Village, Haku District, Autonomous Region of Bougainville and was the biological father of the victim Pelisha Teliki (“the victim”). The appellant was 38 years old at the time of the offence. The victim was born on 7 August 2004 at Kimbe General Hospital and was 14 years old at the time of the offence. The victim’s biological mother is Albina Teliki (“Albina”), and she is from Kuminimbis Village, Maprik, East Sepik Province. Albina graduated with a Bachelor’s Degree in Allied Health Sciences from Divine Word University in Madang in 2004. At the time of the offence, Albina was working with PNG Institute of Medical Research based in Alotau, Milne Bay Province where she lived. Albina raised the victim as a single mother from birth of the victim until the end of the year 2017 when the victim moved to live with her biological father, the appellant. At the time of the offence, the appellant was married to Lorenna Ugul Nanuk with whom the appellant had two sons and, together with the victim, they all lived at 8 Mile in Port Moresby. When the victim informed Albina on 1 August 2019 about the sexual assaults on her by the appellant, Albina took the victim to the Port Moresby General Hospital for medical examination and then reported the matter to the police and the appellant was arrested and charged soon after. Albina then took the victim back to Alotau to live with her. At that time, the victim was 15 years old.
   

Trial – evidence for the State

6. At trial, four witnesses were called and gave sworn evidence for the State. All four witnesses were cross-examined by counsel for the appellant. The State witnesses were the victim, Albina, Christine Fuka Waure (“Waure”), Senior Nursing Officer, Family Support Centre, Port Moresby General Hospital and Police Constable Adrianna Kamasunga, the Investigation and Arresting Officer, Sexual Offences Squad, Boroko Police Station (“the arresting officer”).
   
7. By consent, the State tendered four documents which were duly marked as exhibits S.1 Police Record of Interview of the appellant conducted on 7 August 2019, S.2 Statement of the police forensic photographer Samuel Koi dated 27 August 2019 attaching 12 photographs. S.3 Statement of Constable Adriana Kamasunga dated 7 August 2019, the police investigation officer who conducted the record of interview of the appellant on 7 August 2019 and S.4 Statement of Constable Esther Bavi dated 8 August 2019 who was the corroborator during the record of interview of the appellant on 7 August 2019.
   
8. Counsel for the appellant objected to the State’s application to tender the affidavit of Olivia Ephraim (“Ephraim”) sworn 28 August 2019 annexing her statement dated 20 August 2019 and a medical report on the victim dated 1 August 2019. Ephraim was the Health Extension Officer and she wrote and signed the medical report. Counsel for the appellant insisted on the medical report being tendered through the author of the medical report and required her presence for cross-examination.
   
9. The evidence of the victim and her mother Albina has not been challenged by the appellant in any of his grounds of appeal, so it is not necessary to examine that evidence. The material facts adduced through the victim remain uncontested. Further, the circumstantial evidence of the victim’s mother Albina remains uncontested.
   
10. After completion of evidence for the State by the victim and her mother, the trial judge was informed by counsel for the State that Ephraim was not available as she was out of the country attending studies in Melbourne, Australia. Counsel for the State then informed the trial judge of her intention to call Christine Fuka Waure (“Waure”) the sister in-charge of the Family Support Centre through whom the medical report would be tendered. Counsel for the State said Waure would not be giving evidence about the contents of the medical report but would be able to explain certain medical terms in the report as requested by counsel for the appellant. This suggestion was allowed by the trial judge with the consent of counsel for the Accused.
    
11. Waure was then called. Waure said she has a certificate in general nursing and graduated in 2002 from the University of Papua New Guinea with a Degree in Clinical Nursing. Waure had worked at the Port Moresby General Hospital for many years including as a nurse in the surgical unit and she had moved the Family Support Centre where she has worked for six years as a Senior Nursing Officer. Waure also said she knows Ephraim as a colleague nursing officer in the Family Support Centre where they had worked together for four years from 2016 to 2020 when Ephraim left to take up studies in Melbourne. Waure gave evidence as to how the medical officers including nurses in the Family Support Centre receive patients or victims of sexual offences including family sexual violence and occasions when they have team discussions on particular cases. This all confirms Waure was a competent witness having appropriate training and qualifications and also having work experience and a professional working relationship with her colleague Ephraim. She also had brief basic knowledge of the essential facts and circumstances.
    
12. In this matter, Waure confirmed it was Ephraim who attended to and interviewed and examined the victim and that Ephraim discussed her findings with Waure and a third medical officer and Ephraim then prepared and signed the medical report. Waure also said she had not read the medical report. Waure also said all medical reports are filed and stored by the clerk in the Family Support Centre but, as the sister in-charge, she also has access to those records and can give authority to the release of the medical report.
    
13. Despite that comprehensive evidence by Waure which was admissible and relevant, counsel for the appellant insisted the clerk who maintains the register of medical reports be called to have the medical report formally tendered through the clerk as a business record pursuant to section 61 of the Evidence Act. Counsel for the appellant was prepared to accede to the prosecutions application for an adjournment to call the clerk the following day but that request for an adjournment was refused by the learned trial judge.
    
14. The State then called the arresting officer. The arresting officer was in the police force for eight years serving in the criminal investigation division first in the Hela Province for five years and then in the sexual offences squad at the Boroko Police Station for three years. After interviewing the victim, Albina and the wife of the appellant, the arresting officer arrested and charged the appellant. The arresting officer said she obtained the original medical report from the Family Support Centre at the Port Moresby General Hospital which was attached to the affidavit of Ephraim who had examined the victim. With the approval of the learned trial judge, the arresting officer was shown the affidavit of Ephraim and the medical report, and she confirmed she collected those documents and was aware the documents were produced for the purpose of the case against the appellant. In cross-examination by counsel for the appellant, the arresting officer repeated her evidence that she personally collected the affidavit and medical report from the Family Support Centre at the Port Moresby General Hospital and, although she did not see both documents being signed, she said both were signed by Ephraim. In re-examination, the arresting officer also said she could not recall who released the documents to her at the Family Support Centre in the Port Moresby General Hospital, but she confirmed she had signed the register, maintained in that office, on collection of the documents.
    

Trial – evidence for the appellant

15. At trial, the appellant elected to remain silent.
    

Trial – submissions for the State and the appellant

16. At the conclusion of all evidence for the State and the accused, counsel for the State and counsel for the appellant made submissions on verdict in writing and orally.
    

Consideration of the grounds of appeal from conviction

17. Grounds 1, 2 and 3 raise the argument that the trial judge erred in failing to consider, or properly consider, the appellant’s Record of Interview and the appellant’s section 96 Statement and the trial judge also erred in failing to give reasons why the documents were inconsistent with common sense and logic.
    
18. By section 95(1) of the District Courts Act c. 40, where the committal court is of the opinion that the evidence is sufficient to put the defendant on trial for an indictable offence, it shall ask the defendant if he wishes to say anything and the process to do that is set out in section 96. The appellant was allowed that opportunity and did provide a statement which was duly signed by him and the magistrate. That process and the statement are not in issue in this appeal and neither were they the subject of any argument at trial.
    
19. Firstly, I say, section 96 Statement was included in the Appeal Book in error. That document was not tendered in evidence at trial by either the State or the appellant.
    
20. Secondly, although the Section 96 Statement was not tendered in evidence by the State and the appellant, the trial judge did comment on it. That was an error on the part of the trial judge but not an error of any major significance. That document could not form the basis of any finding on the facts, whether favourable or not to the State or the appellant. In considering that document, the trial judge relied on section 97 of the District Courts Act which provides:
    

“On the trial of a defendant for an offence for which he has been committed for trial or for any other offence arising out of the same transaction or set of circumstances as that offence, a statement made by him under Section 96 may be given in evidence without further proof, notwithstanding that the statement may be exculpatory or self-serving, if the statement purports to be signed by the Magistrate by or before whom it purports to have been taken, unless it is proved that it was not in fact signed by those Magistrates.”

It is a fact that document was not formally tendered in evidence. This aspect of the ground of appeal has no merit.

21. The Record of Interview was tendered in evidence by the State with the consent of counsel for the appellant. The trial judge was entitled to consider that document and the trial judge did consider the police investigator’s questions and the answers of the appellant given in the record of interview and that is covered particularly in paragraphs 28 to 53 of the trial judge’s written decision. That is where the trial judge discussed the evidence as to sexual abuse on the four occasions from which the trial judge was satisfied that the State established the charge of persistent sexual abuse. I have perused the transcript of evidence given on oath by the victim and agree with the trial judge that the victim’s evidence was not challenged in cross-examination. In weighing up the sworn evidence of the victim against the unsworn statements of the appellant given in the record of interview, the trial judge was correct in giving greater weight to the evidence of the victim. The trial judge also correctly compared the evidence of the victim and Albina against the statements of the appellant in the record of interview and had good reason to describe the appellant’s explanations as being inconsistent with common sense and logic. There was no error in the trial judge making that comparison of the evidence before the court and forming that conclusion. Grounds 1, 2, and 3 are dismissed.
    
22. Ground 4 raises the argument that the trial judge erred in failing to address the State’s failure to include a charge or charges concerning the victim’s serious allegations of sexual abuse at Boroko Lodge.
    
23. The trial judge did consider the evidence of the victim alleging sexual abuse by the appellant on the victim at Boroko Lode and Holiday Inn, however, that evidence was not the subject of any charge by the State against the appellant. The indictment referred only to four occasions of sexual abuse that occurred in the family home in the house or in the appellant’s office in the same premises. The evidence of the victim was accepted by the learned trial judge and that is confirmed in the verdict at paragraphs 30 to 48. The power to prosecute a charge for any criminal offence in the National Court is provided to the Public Prosecutor who may exercise that power in his absolute discretion. That is set out in Section 4 of the Public Prosecutors (Office and Functions) Act 1988. Ground 4 is dismissed.
    
24. Ground 6 raised the argument the trial judge erred in finding that because the appellant remained silent, the State’s evidence is left unchallenged, and the prosecution had proved its case beyond reasonable doubt. A person accused of a crime has the right to remain silent and that right and protection is provided by the Constitution. Section 37(1) provides “Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences”. Section 37(10) provides “No person shall be compelled in the trial of an offence to be a witness against himself”.
    
25. I have had the benefit of reading the text Injia on Practice and Procedure in PNG and the Pacific where the right to silence is discussed at pages 786 and 787 and from which I have taken the following excerpts. “No accused person can be compelled by process of law to admit the offence with which he or she is charged: ‘an accused person is not bound to incriminate himself or herself.” See R v Macfarlane; ex parte O’Flanagan and O’Kelly [1923] HCA 39; (1923) 32 CLR 518, per Isaacs J at 549, [1923] HCA 39 and Scott and another v Scott [1913] AC 417, per Shaw LJ at 469, [1913] UKHL 2”.“The right not to be a witness against oneself is an unqualified right to remain silent and that silence can never be used to assist the prosecution case by an inference of guilty from silence.” See Fred Bukoya v The State (2007) SC887, [2007] PGSC 16; Paulus Pawa v The state [1981] PNGLR 498 and The State v Alphonse Aia Mohavila (2006) N3385.”
    
26. The appellant remained silent at trial. The State’s evidence I discussed above. The oral evidence of the victim and her mother were not challenged. The trial judge was entitled to consider that evidence which was duly adduced. I have discussed above the record of interview and the accused section 96 statement. The learned trial judge addressed those matters and has just confirmed the State’s evidence remained unchallenged. I see no issue with that conclusion. Ground 6 is dismissed.
    
27. Grounds 7 raised the argument there was material irregularity during the trial in the tender of the medical report of Ephraim dated 1 August 2019. Grounds 8A, 8B and 10A raise the argument there was material irregularity during trial when the trial judge accepted the medical report as a “business record” and accepted the medical report in evidence through the Police Investigating Officer.
    
28. I have discussed above the admission of the medical report into evidence. Whilst the State conceded the medical report should not have been tendered through the police officer, Waure was called and gave evidence. Waure was a person within the Family Support Centre where the medical report was lawfully stored. In fact, Waure was the supervisor of the Family Support Centre. Waure was called with the consent of counsel for the accused and with the approval of the learned trial judge. I am satisfied Waure was a competent witness. In Jackson Naepe v. The State SC2072, the Supreme Court said a medical report is admissible evidence under section 37 of the Evidence Act as a record of scientific examination or as a business record under section 61 through the author of the public document or through a second person who has custody or being the custodian of the record. The court held “A doctor through whom a medical report is tendered need not be the doctor who performed the autopsy and compiled the post-mortem records provided the doctor has some knowledge of the autopsy or is the custodian of the records or can give expert opinion on the findings of the autopsy.”
    
29. In my observation, there was no real challenge by counsel for the appellant to the contents of the medical report as to its findings and conclusions. Further, I agree with counsel for the State that despite the error apparent in the admission in evidence of the medical report, there was no error in the court finding the victim to be truthful and credible and the victim’s evidence was corroborated by the mother giving evidence of the recent complaint of the victim. There was no serious miscarriage of justice. Grounds 7, 8A, 8B and 10A are dismissed.
    

Appeal from sentence – leave required but not sought and obtained.

30. As mentioned in my opening paragraph above, the appellant has not sought or obtained leave to appeal his sentence. The appellant says in his final ground of appeal number (12) that “the sentence was unsafe and unsatisfactory.” Section 22(d) of the Supreme Court Act provides a person convicted by the National Court may, with leave of the Supreme Court appeal to the Supreme Court against sentence. The appellant has not sought and neither has he obtained leave to appeal his sentence. Ground 11 is incompetent and is dismissed.
    

Conclusion

31. I have dismissed all grounds of the appeal. I also agree with my brother judges that the appellant has failed to establish any reasonable doubt that the conviction was unsafe. The appeal is dismissed.
    
32. KANGWIA J and MIVIRI J: This is our decision on an appeal against conviction.
    
33. The Appellant was convicted after a trial and sentenced to 22 years for persistent sexual abuse of his biological daughter contrary to s 229(6) of the Criminal Code. The sexual abuse involved sexual penetration.
    
34. The upshot of the Appellants appeal was for a revisit of the proceedings with a view to removing the conviction on grounds of substantial irregularities. It was intimated that the requirements in sexual abuse cases as stated in the case of Steven Makai v the State (2009) N3841 were not satisfied before a conviction was entered rendering it unsafe.
    
35. The Respondents have contended that the Trial Judge did not err in convicting the Appellant.
    
36. The principle of law governing an appeal against conviction is that the Supreme Court must be satisfied that there is in all the circumstances a reasonable doubt as to the safeness or satisfactoriness of the verdict before an appeal can be allowed. (See John Beng v the State [1977] PNGLR 115).
    
37. Persistent sexual abuse under s 229D constitutes of all offences under Division 2A of the Criminal Code. The requirements to be satisfied are prescribed as follows:
    

229D. Persistent sexual abuse of a child.

(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 sexual 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.

38. In the supplementary notice of appeal, the appellant raised 11 grounds. At the hearing the ground on hearsay evidence was abandoned and the balance were argued. The grounds are summarized as follows:
    
    1. Conviction was unsafe or unsatisfactory when the trial Judge failed to consider explanations by the Appellant in the ROI and the s 96 statements and relied solely on the sworn evidence of the victim to convict him.
       
    2. Material irregularities in the course of the trial.
       
39. They are considered accordingly.
    
    1. Conviction unsafe or unsatisfactory relying solely on the sworn evidence of the victim.
       
40. The evidence for the State consisted of the sworn evidence of the victim, the victim’s mother, a clinical nursing officer and the investigating officer.
    
41. The Record of Interview (ROI) and the Appellants section 96 District Courts Act statements (s 96 statements hereon) were admitted into evidence by consent. Even though the Appellant strongly denied the charge in the ROI and the s 96 statements he elected to remain silent. He offered no explanation apart from relying on the earlier statements. The Appellant’s assertion is that the Trial Judge should not have relied on the silence to convict him.
    
42. Electing to remain silent is a right available to an accused under s 37(10) of the Constitution. It cannot be taken as an admission of guilt or a bolster to a deficient prosecution case. However, it may be telling against him in that it may strengthen the State case by leaving it uncontradicted and unexplained. (See Paulus Pawa v the State [1981] PNGLR 498). In the present case there is nothing in the transcripts to show that the determination of guilt was based on the election to remain silent. We find this argument as having no basis.
    
43. On the ground of lack of common sense and logic, the evidence of the victim was of the wife entering the office with a spare key and finding them in a locked office which led to the wife being assaulted. The trial judge found that the wife was suspicious. When compared with the scene created by the evidence of the victim (which were not tested in cross-examination) to the Appellant’s statement to police, it was open to the trial judge to determine which was the more coherent version. She considered the Appellants statement to be inconsistent with common sense and logic in circumstances where a father and daughter were alone inside a locked office to be caught by the wife. No more explanation was required of the Trial Judge to arrive at that conclusion. We find no error in the conclusion reached.
    
44. The Appellants next argument was that, had the Appellant’s statements in the ROI and the s 96 statement considered together with the sworn evidence of the victim, there was a reasonable doubt as to the safeness of the conviction in circumstances where material facts raised by the victim were brief and different from the fuller account of what happened by the Appellant.
    
45. Ms Roalokona contended that the trial judge did compare the Appellants statements in the ROI and the s 96 statements with the victims sworn evidence and accepted the evidence of the victim.
    
46. On a perusal of the appeal book, (Pg 171-173 of the AB) the trial judge did consider the statements of the Appellant and the sworn evidence of the victim and determined that the sworn evidence of the victim carried more weight and accepted the evidence of incidents on all four occasions. The trial judge did not err in that respect.
    
47. On the ground of failure by the Trial Judge to consider the serious allegations of sexual abuse at Boroko Lodge, we agree with Ms Roalokona that the Trial Judge did consider the Boroko incident at page 174 of the AB. It was considered as uncharged events referred to as other acts of sexual abuse.
    
48. The Law under s 229D (5) (b) requires only two separate occasions of sexual abuse to constitute the offence of persistent sexual abuse.
    
49. In the present case what is not in serious contention is that the Appellant and the victim made physical contact on separate dates in the office. The Appellant admitted to accidentally touching the victim’s breast on two occasions. Pursuant to the requirements under s 229D those two instances alone qualify as constituting persistent sexual abuse rendering the Boroko incident unnecessary. There was no requirement under law to furnish further incidents including the Boroko incident. This ground is also baseless.
    
50. In total we reject the asserted irregularities as having no merit capable of rendering the conviction unsafe.
    
    2. Material irregularities in the course of the trial.
       
51. Under this ground the Appellant alleged material irregularity when the medical report which was defective was not tendered into evidence by the examiner or through the nurse who could confirm it as a business record and instead accepted it through the police investigator who did not qualify under s 61 of the Evidence Act.
    
52. Ms Roalokona while conceding the procedural error submitted that the tender through the investigating officers did not constitute a miscarriage of justice in view of the overwhelming evidence of sexual abuse. The document was highly relevant and was admitted into evidence through the investigator who had contact with the document and s 61 of the Evidence Act requirements were complied. The case of Jackson Naepe v the State (2020) SC2072 was referred to as supporting that proposition.
    
53. We agree with the proposition in the Jackson Naepe case that the Doctor through whom the medical report is tendered need not be the Doctor who performed the autopsy and compiled the autopsy report. The proviso in that case was that the Doctor who tendered the document must have some knowledge of the autopsy or is the custodian of the records or can give expert opinion on the findings of the autopsy.
    
54. That case is distinguishable with the present case. The present case was a sexual penetration case. At trial the Health Extension Officer who conducted the examination of the victim and authored the medical report was not available through whom the report could be tendered into evidence. Attempts by the State to tender the report through a Nursing Officer was rejected.
    
55. It was eventually tendered into evidence through the police investigator on the basis that the document was relevant to the facts in issue and the probative value outweighed any prejudicial effect.
    
56. The other reason was that the investigating officer confirmed on oath that the Appellant was served the medical report and that the deponent was overseas.
    
57. The law on business records under 61 of the Evidence Act provides numerous requirements. For purposes of this case the relevant parts are reproduced as follows:
    
    61. Business records.
        
        • (1) In this section —

"record" means recorded data collected, created or received in the initiation, conduct or completion of an activity and that comprises sufficient content, context and structure to provide evidence or proof of that activity or transaction, inscribed, stored or otherwise maintained on a tangible medium or that is stored in an electronic system or device, or any other medium and is accessible in a perceivable form;

"writing" includes a photographic or photostatic reproduction, or electronic form of a document.

(2) Subject to Subsection (3), a writing purporting to be a memorandum or record of an act, matter or event is admissible in evidence in a court as proof of the facts stated in it if it appears to the court that—

(a) the memorandum or record was made in the regular course of a business at or about the time of the doing or occurrence of the act, matter or event; and

(b) the source of information, and the method and time of the preparation of the memorandum or record, were such as to indicate its trustworthiness.

(3) Subsection (2) does not require a court to admit in evidence a writing if it appears to the court that the interests of justice would not be served by its admission.

(4) For the purposes of this section, a court, in considering whether a writing should be admitted in evidence, shall have regard to all relevant circumstances, including—

(a) the source from which the writing is produced; and

(b) the circumstances of its receipt and custody by the person producing it or by any person from whom it has been obtained for the purpose of producing it in evidence; and

58. In the present case the medical report consisted of a record in writing of an examination conducted on the victim and is admissible in evidence as proof of the facts stated therein. The report contained the findings in a serious offence of sexual abuse. It was written in the regular course of the doctor’s business after examining the victim of sexual abuse. Such report would in our view be subject to public scrutiny.
    
59. The report was retrieved by the police investigator as part of his investigation which led to the charge laid against the Appellant. It was in his custody in the normal course of business. All these considerations satisfy the requirements under s 61 of the Evidence Act.
    
60. We agree with the argument that the nursing officer was the appropriate witness through whom the report should have been tendered. However, we are also of the view that the admission into evidence of the medical report through the police investigator was not a material irregularity capable of rendering the conviction unsafe in circumstances where there was unchallenged evidence of sexual abuse on numerous occasions. There was undisputed evidence of physical contact between the Appellant and the victim in an office.
    
61. In the absence of the author of the report the next best option was the report itself. If it could not be tendered through a source closer to the place of business, then the next best option in our view is the copy in the possession of the investigator.
    
62. Even though the investigator was not the author of the report nor was he someone who could give an expert opinion on the contents or findings he nonetheless had lawful custody of the document as part of his core business of investigating offences after having retrieved them from the business premises of the examiner.
    
63. There was nothing untoward in tendering the report as it was, without any further explanation which he was not privy to.
    
64. Even if the Appellant had sought to test the credibility of the report (which it could not because the author was not available) the evidence referred to were sufficient from which the Appellant could have been convicted without the medical report.
    
65. The report was relevant to the facts and the interest of justice demanded that the report be tendered into evidence through the police investigator who had lawful custody of the report. The Trial Judge did not err in accepting the report through the investigating officer. This ground is without merit.
    
66. In view of those observations the only conclusion is that the Appellant has failed to establish any reasonable doubt sufficient to hold the view that the conviction was unsafe.
    
67. The appeal against conviction is dismissed.
    

ORDER OF THE COURT

68. The orders of the court are:
    
    1. The appeal is dismissed.
    2. The conviction of 25 January 2022 is confirmed.
    3. The sentence of 29 March 2022 is confirmed.
       

Decision accordingly

Sanol Malaga Lawyers: Lawyers for the Appellant
Public Prosecutor: Lawyers for the Respondent