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National Court of Papua New Guinea |
PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE
CR NO 1640 OF 2006
THE STATE
V
STEVEN MAKAI
Kimbe: Cannings J
2009: 15, 16, 19, 20, 21 October,
15 December
VERDICT
CRIMINAL LAW – sexual offences against children – persistent sexual abuse of a child – Criminal Code, Section 229D – trial.
The accused, a man aged in his 30s, was charged with persistent sexual abuse of a nine or ten year old girl, his sister-in-law. He pleaded not guilty. The State alleged that he engaged in three or four acts of sexual penetration with the girl over a period of 19 months. The girl, now 14 years old, gave direct evidence, and two other witnesses gave evidence of her making allegations against the accused. The State also relied on a medical report. The accused gave sworn evidence, denying the charge and saying that he was somewhere else during the relevant period.
Held:
(1) For an accused to be convicted of the offence of persistent sexual abuse of a child, the court must be satisfied beyond reasonable doubt that:
(a) he engaged in conduct in relation to the child that constitutes an offence under Division IV.2A of the Criminal Code;
(b) on two or more occasions;
(c) each occasion was on a separate day; and
(d) the material facts of the occasions are clear.
(2) The court does not have to be satisfied beyond reasonable doubt as to the dates or order of the occasions.
(3) The State does not have to prove each occasion of criminal conduct alleged in an indictment; two will suffice.
(4) In the present case, the court, having satisfied itself that the complainant understood the nature and importance of telling the truth, regarded her evidence as credible; and its credence was supported by the evidence of her complaining to two other people about what happened.
(5) The medical evidence supported the allegation of penetration of the complainant's vagina.
(6) The accused's sworn evidence was unconvincing, his demeanour was poor and he in effect presented a vague alibi without notice to the State; and there was no other evidence to support his story.
(7) There was sufficient evidence for the court to be satisfied beyond reasonable doubt as to the existence of all elements of the offence. The accused was therefore found guilty.
Cases cited
Papua New Guinea cases
Java Johnson Beraro v The State [1988-89] PNGLR 562
John Jaminan v The State (No 2) [1983] PNGLR 318
Rolf Schubert v The State [1979] PNGLR 66
The State v Kikia Solowet (2007) N3154
The State v Robert Wer & Others [1988-89] PNGLR 444
The State v Saul Ogeram (2004) N2780
The State v Sei Nakiking Tubol & Others [1994] PNGLR 378
Overseas Cases
Browne v Dunn (1893) 6 R 67 (HL)
TRIAL
This was the trial of an accused charged with persistent sexual abuse of a child.
Counsel
F Popeu, for the State
D Kari, for the accused
15 December, 2009
1. CANNINGS J: Steven Makai, the accused, comes from Vovosi village in the Hoskins area of West New Britain Province. He is aged in his 30s and is married to a Sepik woman and they have five children. He is charged with one count of persistent sexual abuse of a child. The child is his wife's cousin-sister, "D". She was nine or ten years old when the abuse allegedly occurred over a 19-month period from December 2004 to July 2006 at Sarakolok oil palm settlement, near Kimbe. The accused pleaded not guilty and a trial was held.
LAW
2. The accused is charged under Section 229D (persistent sexual abuse of a child) of the Criminal Code, which states:
(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 [convicted] 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.
ELEMENTS
3. The offence under Section 229D(1) has four elements. The prosecution has the onus of proving beyond reasonable doubt that:
ISSUES
4. D's age is not in dispute. Nor is the relationship that existed between her and the accused: she is regarded as his sister-in-law. The accused denies ever sexually penetrating her. The issues for determination therefore follow the elements of the offence:
1 DID THE ACCUSED ENGAGE IN CONDUCT IN RELATION TO "D" THAT CONSTITUTES AN OFFENCE UNDER DIVISION IV.2A OF THE CRIMINAL CODE?
5. The State alleges that the accused sexually penetrated D by introducing his penis into her vagina on several occasions and that on each occasion that conduct constituted an offence under Section 229A(1) of the Criminal Code. That section falls within Division IV.2A (sexual offences against children). There is no dispute that if the accused did engage in that sort of conduct it would constitute an offence under Division IV.2A so the first element becomes whether the accused did, in fact, engage in any acts of sexual penetration with D.
6. Determination of this issue requires:
Evidence for the State
7. It consisted of:
Oral evidence of three witnesses
8. The first witness was the complainant, "D". The other two witnesses gave evidence of D telling them what the accused did to her.
9. (1) The complainant, D, is now aged 14. She suffers from a severe physical disability which has been diagnosed as 'muscular dystonia due to motor neurological dysfunction'. A report by Dr Patrick Kiromat of Kimbe General Hospital dated 14 October 2009 was admitted into evidence. Though she is physically impaired, her level of consciousness and comprehension has been assessed as 'normal'. She is therefore not mentally impaired.
10. Nevertheless, in view of her age and the fact that she was giving evidence about events that allegedly occurred three to five years ago when she was only aged nine or ten, it was appropriate to conduct an inquiry to determine her capacity to comprehend the nature of truth. I considered Section 6 of the Oaths, Affirmations and Statutory Declarations Act Chapter 317. I also considered guidelines for reception of evidence by child witnesses given by the Supreme Court in Rolf Schubert v The State [1979] PNGLR 66 and Java Johnson Beraro v The State [1988-89] PNGLR 562.
11. Upon answering questions from me she appeared to understand the nature and purpose of the court proceedings, the reason she was in court and that the lawyers would ask her questions about what happened. She understood that if she did not tell the truth God would not be happy with her and that she could be punished. I was satisfied that she understood the meaning and importance of truth and allowed her to give sworn evidence.
12. The defence counsel, Mr Kari, raised no objection to her competence as a witness or the admissibility of her evidence. I ordered the use of a screen to prevent her seeing the accused and also allowed her father to sit next to her in the witness box as a support person. The court was closed to the public while she gave her evidence. Those special measures were ordered under Section 37B(2)(a), (b) and (f) of the Evidence Act.
13. D was at most times nervous and hesitant when giving her evidence. I allowed several adjournments for her to regain her composure. Her evidence was received on three separate days of the trial. At the end of her examination-in-chief, however, her evidence was clear. She knows the accused. He is her sister's husband. He did a 'bad thing' to her on three occasions. Asked what that was, she originally said that 'he put his pis-pis (penis) on my pis-pis (vagina)' but she eventually said that he 'put his pis-pis inside my pis-pis or 'pushed it inside'. She was saying that he sexually penetrated her by introducing his penis into her vagina. She said this happened three times.
14. The first time he did it was when he took her and a couple of his children, Morgan and Phili, to the creek. He left the children on the side of the creek and took her to the betel nut garden and then he did the 'bad thing' to her. Her grandfather was still alive at that time, though he was sick and about to die. That was in 2004.
15. On another occasion he took her and three of his children to 'the third-hectare' (the far end of the oil palm block, Block No 860, where she lives, at Sarakolok). He took her into the bushes and again did the 'bad thing' to her. He removed his clothes and slept on top of her. He was still living at Sarakolok at that time.
16. The next occasion was the morning after he took her to the third-hectare. This time he took her to 'the other side', at the boundary to Jonah's block, No 861. He was still living at Sarakolok at that time.
17. She said that after it happened the third time "Mama Martha' and 'Mama Dora' (the other State witnesses) found out about it.
18. In cross-examination D said that her grandfather died at the end of 2004. After he died Steven (the accused) left block No 860 where he had been living with his wife Susan (D's big sister).
19. Asked whether any other person did this bad thing to her, D replied no.
20. Mr Kari put it to her that the accused was not at Sarakolok when she said the bad things were done to her. Her response was 'he is lying'.
21. She said that she did not say anything after Steven did the bad thing to her at the creek. Also, after he took her to the third hectare and did the bad thing, she did not report him to anybody. But after the third time, at the boundary, she told Martha and Dora.
22. (2) Martha Joe is married to D's biological father. She is D's stepmother. D regards her as her mother.
23. Martha said that she used to see Steven and D walking around together a lot so she questioned D about what they were doing. Eventually D told her where they went and what Steven had done to her. Then she told D's aunty, Dora. Then they asked D to take them to the places he had taken her and to explain again what he had done.
24. She and Dora then reported the matter to D's father who went and argued with Steven and destroyed his house. At that time Steven was living with his family on Block No 860. They had their own house, which Steven had built.
25. In cross-examination it was put to Martha that the accused was not living at Sarakolok during the period in which he is alleged to have abused D. Her response was inconsistent and confusing.
26. (3) Dorothy (aka Dora) Paul is D's aunty. She was living at Block No 860, Sarakolok in 2006. She remembers that it was on the morning of 29 August 2006 that she sat with Martha and D and heard D telling the story about what the accused had done to her and where he had taken her.
27. Dorothy's recollection of dates was much more impressive than Martha's. She said that D's grandfather had died on 4 December 2004. At that stage she (Dorothy) was living at Block No 860. She did not leave to live elsewhere until January 2009. The accused and his family were also living at Block No 860 in the period from December 2004 to August 2006. He had been living there for some time prior to 2004. The accused did not go back to his village after D's grandfather died. He stayed living with his family on Block No 860.
28. The accused only went back to his village after 29 August 2006. It was on that day that D's father and family found out about the allegations against the accused and that is when they destroyed his house. It was also the day that the matter was reported to the police.
Record of interview
29. The accused denied sexually penetrating D and said that he had been assaulted by his own in-laws at the police station, in front of police officers.
Medical evidence
30. A report by Dr Peter Yama of Kimbe General Hospital dated 13 September 2006 was admitted into evidence. Dr Yama said that he had first seen D at the hospital on 5 September 2006:
On examination of her private parts there is evidence of vaginal discharges, quite offensive.
Recent evidence of scratch marks and a torn hymen proving sexual penetration.
Laboratory tests revealed plenty of pus cells and bacteria that causes gonorrhoea, which cause sexually transmitted disease yet again evidence of sexual penetration.
Therefore with all this evidence I strongly conclude with my professional experience that this young girl was sexually penetrated and molested.
Evidence for the defence
31. The accused gave sworn evidence. There was no other evidence for the defence.
32. Steven Makai said he married his wife in 1997. They lived together at his village until late 2004 when his wife's grandfather was very sick. So they went to live with him at Block No 860, Sarakolok. They stayed for a few weeks after his death and then went back to his village. They went back to Block No 860 in the middle of 2006.
33. Early one morning in 2006 his in-laws, led by D's father, came to his house at Block No 860 and woke him up and accused him of doing bad things to D. He tried to talk to them to put his side of the story but they would not listen. They assaulted him and damaged his house so he ran to the police station. They had never been happy that he had married their sister and there were ongoing disputes about bride price so they would use any chance to get mad with him.
34. In examination-in-chief he was asked what he had to say about the allegations against him and about the evidence that D had given. He replied 'I am not sure of these things' and 'I am not clear'. He recalls one time that he took his children to the creek. There were a number of children there and his wife was there too doing her laundry. He told her to look after the children. He repeated that his in-laws were mad with him for marrying his wife.
35. In cross-examination he maintained that he and his family stayed only a short time at Block No 860 after his wife's grandfather died as his in-laws were mad with him. He and his family only went back to Block No 860 in 2006 when his wife's uncle died. He built the house at Block No 860. That is where they stay when they visit the block. It is a bush material house that he built in 2002-2003.
36. He denied that he was making up the story about his in-laws not being happy with him. They are always getting mad and arguing with him. He also denied that he and his family were living continuously at Block No 860 from 2004 to 2006. His wife will testify about these things, the accused said (but she did not give evidence). He never visited Block No 860 during that period. They only went there to attend to matters arising from the deaths of his wife's grandfather and uncle.
37. He could not identify any reason for D – as distinct from her relatives – being mad with him.
Preliminary assessment of the State's case
38. Mr Popeu submitted that the medical evidence shows that D – who was only 11 years old at the time of the medical examination – had been sexually penetrated by someone. The medical evidence was not challenged. So it is a matter of determining who penetrated her. No one has suggested that it could have been anyone other than the accused. D's evidence, although at times hesitant and interrupted by lapses of memory, was sufficient. It contrasted with the accused's evidence which was evasive, Mr Popeu submitted.
39. I consider that at first glance this evidence appears to be sufficient to warrant a finding that penetration took place and that, there being no evidence that it could have been someone else, it was the accused who penetrated D. However, this is a criminal case and the court has to be satisfied beyond reasonable doubt. I will now address the submissions of defence counsel and other matters that are necessary to take into account in order to afford to the accused the full protection of the law required by Section 37(1) of the Constitution.
Defence counsel's submissions
40. Mr Kari submitted that the State had fallen short of proving that the accused sexually penetrated the complainant, D, as:
Assessment of defence counsel's submissions
(1) D an unreliable witness
41. Mr Kari pointed to the difficulties that D had when giving her evidence. She took a long time to answer many questions and her recollection of dates and times was inconsistent. She kept referring to the accused putting his penis on her vagina thus raising doubt about whether, even if he did something bad, he penetrated her, Mr Kari submitted.
42. I consider that the last point was clarified on the last day that D gave evidence: she clearly said that he put his penis inside her vagina. This is clear evidence of penetration, corroborated by the medical report. As to the stop-start nature of D's evidence, I have already commented on this when summarising her evidence. I do not think it detracted from the quality of her evidence. I have taken into account the physical handicap that D is enduring and also that she is still a young girl. For most children her age it will be a daunting experience to come into court and be asked extremely sensitive questions about sexual matters in the presence of the person against whom the allegations are made.
43. I have taken into account all those things and concluded that D was a reliable witness.
(2) Accused gave credible evidence of not being at Sarakolok
44. Mr Kari submitted that the accused's story that he was not at Sarakolok from late 2004 to July 2006 – he was, in fact, back at his village – throws considerable doubt on D's evidence and makes it difficult for the State to prove its case beyond reasonable doubt.
45. Mr Kari was careful when making this submission not to use the term alibi but as pointed out by Mr Popeu it is a term which must be used as it was the accused's principal defence. When an accused says he was somewhere else at the time of an offence he is raising an alibi and there are special principles that must be applied when deciding what weight to give to the accused's evidence, as set out in the leading Supreme Court case of John Jaminan v The State (No 2) [1983] PNGLR 318.
46. If an alibi is raised the burden of proof does not shift from the prosecution. The onus is never on the accused to prove an alibi or prove innocence. However, in practical terms, the accused must lead some evidence of an alibi and it must be sufficiently convincing to create a reasonable doubt in the mind of the tribunal of fact. How strong or convincing the alibi evidence must be, depends on the strength of the evidence of the prosecution witnesses. If their evidence is very strong, the alibi evidence needs to be reasonably strong to raise a reasonable doubt in the mind of the judge as to the guilt of the accused. Unlike the defences of self-defence and provocation, there is no rule of law that says that once an alibi is raised it is up to the prosecution to disprove it. If an alibi is rejected it does not necessarily follow that the court should enter a conviction. The court must still be satisfied that the prosecution has proven its case beyond reasonable doubt. An alibi that is determined to be false may, depending on the circumstances, amount to corroboration of the complainant's evidence. Great caution should be exercised before drawing an inference adverse to an accused, as a result of the accused's failure to call a witness that might reasonably be expected to support the accused's alibi. A belated alibi, not revealed on any earlier occasion prior to trial, should be given less weight than an alibi consistently given over a long period, eg since the beginning of the police investigation, in a record of interview or in committal proceedings. The court should consider whether the alibi evidence contains convincing detail or whether it is vague and short on detail. The court should also consider the demeanour of the alibi witnesses and whether there are any inconsistencies in their evidence.
47. Having considered the above matters I record the following relevant considerations:
(a) No notice of alibi was provided to the State. Leave of the court was not sought under Order 4, Rule 4 of the Criminal Practice Rules, to adduce evidence of the alibi. Strictly speaking, it should not have been admitted (The State v Robert Wer & Others [1988-89] PNGLR 444, The State v Sei Nakiking Tubol & Others [1994] PNGLR 378). But the prosecutor raised no objection and it was admitted. The admission of evidence and the weight to be attached to it are two different things, however. The circumstances in which the alibi evidence came to be admitted make it a belated alibi. Even in his record of interview, there is no mention of it. This significantly lessens the weight to be given to it.
(b) The accused was a very unimpressive witness. His demeanour was poor. He was evasive, hesitant and nervous.
(c) The alibi was uncorroborated. The accused said that his wife would back up his claim that he was at the village, but she did not give evidence and no one else came forward. Surely if in fact the accused was at the village and not at Sarakolok someone in the village would have seen him.
48. In light of the above I have concluded that the evidence of the accused is not credible. The alibi evidence is poor and I determine that in fact it is a false alibi.
(3) Evidence of a motive for the accused being wrongly blamed
49. Mr Kari did not highlight this point in his closing submission but it is something that the accused raised several times in his evidence so I have considered it. However it carries little weight. The claim was very vague. There was no corroboration of it. Furthermore as stressed by Mr Popeu the manner in which it was made violated the rule in Browne v Dunn (1893) 6 R 67 (HL). That is, it was a key part of the defence case that was not put to the State witnesses; and the State was left without an opportunity to rebut the allegations.
Final determination of whether the accused engaged in any acts of sexual penetration with "D"
50. The complainant D was a credible witness. Dr Yama's report supported her evidence that she had been sexually penetrated. There was evidence of a prompt complaint to her mother and aunty. Nothing in the accused's evidence shed significant doubt over what D said. The accused was given the chance to deny that he had penetrated D but did not express any outright denial. All he indicated was that 'it could not have been me as I was not there'. This was false evidence and has the effect of strengthening the State's case.
51. The State has proven beyond reasonable doubt that the accused engaged in three acts of sexual penetration with D at the places described by D in her evidence. On each occasion the accused's conduct constituted an offence under Division IV.2A of the Criminal Code: an offence under Section 229A(1).
2 WAS THE CONDUCT ENGAGED IN ON TWO OR MORE OCCASIONS WITHIN A SPECIFIED PERIOD?
52. The indictment alleged that the conduct was engaged in on four occasions and that was the allegation put to the accused on arraignment. However, the State did not have to prove each occasion alleged in the indictment and on arraignment. Two was sufficient (The State v Kikia Solowet (2007) N3154).
53. The State has proven that the conduct was engaged in on three occasions, thus satisfying the requirements of Sections 229D(1) and (5)(a).
3 WAS EACH OCCASION ON A SEPARATE DAY?
54. Yes. D's evidence is that each of the three occasions was on a separate day. That evidence is accepted, thus the requirements of the second limb of Section 229D(5)(a) are satisfied.
4 ARE THE MATERIAL FACTS CLEAR?
55. I regard this as an element of the offence in view of the following requirements:
56. The indictment complied with the first two requirements (The State v Saul Ogeram (2004) N2780) and the court is satisfied, having accepted the complainant's evidence, that the third requirement has been met. The material facts of the incidents are clear.
CONCLUSION
57. All elements of the offence under Section 229D(1) have been proven beyond reasonable doubt. The circumstance of aggravation prescribed by Section 229D(6) – that one or more of the occasions involved an act of penetration – has also been proven beyond reasonable doubt.
VERDICT
58. Steven Makai, having been indicted on one count of persistent sexual abuse of a child under Section 229D(1) of the Criminal Code, is found guilty of that offence in circumstances of aggravation under Section 229D(6) of the Criminal Code.
Verdict accordingly.
____________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused
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