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State v Daweia [2014] PGNC 258; N5958 (17 November 2014)

N5958

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1169 OF 2010

THE STATE

V

MORRIS DAWEIA
Respondent

Alotau: Toliken, J.
2014: 03rd, 04th, 08th, 10th, September
17th November

CRIMINAL LAW – Trial – Sexual penetration of a child under 16 years of age with circumstances of aggravation - Accused an uncle to and class teacher of complainant – Plea – General denial – Criminal Code Ch. 262, s 229A (1)(2)(3).

CRIMINAL LAW – Evidence – Whether accused penetrated complainant when alone in classroom while classmates played outside and Head Teacher was in his office a few metres away in same building – Whether accused threatened complainant, removed his and her clothes before penetrating her – Whether accused jumped out of window without his trousers – Circumstances described by State witnesses defy logic and common sense.

CRIMINAL LAW – Evidence - Whether complainant bled as a result of being penetrated by accused according to State witnesses –Whether complainant had menstruation according to accused - Hypothesis by accused not negatived by State.

CRIMINAL LAW – Evidence - – Medical Report – Absence of – Not necessary if there is strong oral evidence of sexual intercourse.

CRMININAL LAW - Evidence – Whether actions of accused to try and sort matters out with complainant's parents and his arranging for medical examination of complainant was evidence of post-offence guilt – Actions consistent with that of someone trying to prove innocence and not post-offence guilt – Verdict – Not Guilty.

Cases Cited:
Saperus Yalibakut v The State (2006) SC 890
Anos Naime Maraga & Ors v The State; SCRA No. 34 of 2003 (Unnumbered and unreported judgment of 30th April 2009)
Garitau Bonu & Rosanna Bonu v The State (1997) SC 528
Paulus Pawa v The State [1981] PNGLR 498
The State v Kapi Jas (2010) N4013
The State v Amos Jonathan (2009) N3760)
The State v Alois Dick (2007) N3219

Counsel:
R. Auka and L. Kuvi, for the State
P.Palek, for the Accused

JUDGMENT ON VERDICT

17th November, 2014

1. TOLIKEN, J. The accused was indicted with one count of sexually penetrating a child under the age of 16 years with whom he stood in a position of trust, authority and dependency thereby contravening Section 229A (1)(2)(3) of the Criminal Code Ch. 262.
   

ALLEGATIONS

2. It is the State's allegation that on Monday 12th of October 2009 the accused who was an Elementary School Teacher was at Keia Elementary School, Maramatana Area, Alotau, Milne Bay Province, sexually penetrated one Judy Daweia between 10.00am and 12.00 midday. The complainant was an Elementary 2 pupil at that school. The accused was her teacher and also an uncle to her.
   
3. The State alleged that the complainant stayed back in the classroom to do some school work when the rest of the class went out to play sports at the lunch break. While she was doing her work the accused came from behind, grabbed her by her shoulders and showed her a knife. He told her not to shout and then pushed her to the floor. The complainant did not shout out of fear for her life. The accused then removed her skirt and panties, removed his own trousers, slept on top of her and inserted his penis into her vagina. The complainant felt pain when the accused was penetrating her and told him to stop but he did not. After penetrating her, the accused put on his trousers and jumped out of the window leaving the complainant in pain and bleeding on the mat she had been sitting on. After a few minutes the accused came back into the classroom and called the other pupils back in and then dismissed the class for the day.
   
4. The complainant walked home bleeding. The bleeding continued for two weeks. She did not go to school during those two weeks. She reported the matter to her mother sometime during those two weeks. Her mother then reported it to the police. The police investigated the matter and arrested the accused as a result.
   
5. The State alleged that at the time of the offence the complainant was under the age of 16 years (12 years old) and the accused being her teacher was in a position of trust, authority and dependency.
   

PLEA

6. The accused generally denied the charge.
   

THE OFFENCE

7. Section 229A of the Code provides as follows:
   

229A. Sexual penetration of a child

(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 Subsections (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.

ELEMENTS OF THE OFFENCE

8. For the State to secure a conviction it must prove beyond reasonable doubt the following elements of the charge:
   
   1. The accused
   2. Sexually penetrated the complainant
   3. The complainant was under the age of 12 years
   4. There was an existing relationship of trust, authority and dependency between the accused and the complainant.
      

THE EVIDENCE

9. The State called five of the seven witnesses listed in the indictment. These are:
   
   1. Judy Daweia
   2. Fiona Kaukauri
   3. Wilfred Kaukauri
   4. Brian Suita
   5. Faith Clifton
      
10. The State also tendered the following documents with or without objection:
    
    1. Record of Interview (dated 30th June 2011) – Exhibit A (no objection)

2. Statement by Brian Siuta to the Police dated 18.02.11 – Exhibit B (no objection)

3. Statement of Faith (Daweia) Clifton to the Police 17/07/14 – Exhibit C (objection)

4. Copy of a page from the Complainant's Clinic Book – Exhibit D (objection)

11. The accused testified on oath in his own defence. He called no other witnesses.
    

UNDISPUTED FACTS

12. The following facts are not disputed; the complainant Judy Daweia was at the relevant time under the age of 16 years and was doing Elementary 2 at Keia Elementary School. The accused was her class teacher and a classificatory uncle. It is the practice in that school for classes to break for 30 minutes for lunch at 10.00 o'clock. Classes are dismissed at 1.00pm.
    
13. On the date in question, 12th October 2009, the school took its normal lunch break at 10.00a.m. The accused let his class out and the pupils went outside and played soccer. The complainant, however, stayed back in the classroom to complete some of her school work.
    
14. There is no dispute that the complainant bled from vagina that morning sometimes between the lunch break and the time her class was dismissed for the day. The bleeding soiled her clothes and the mat that she had been sitting on. The mat was burnt the next day on instructions from the Head Teacher Mr. Brian Siuta.
    
15. It is not disputed that the accused had gone over to Mr. Brian Siuta after classes ended on the date in question and reported to him that he had noticed that the complainant had had her period to which Mr. Siuta replied that she was too young to have her menstrual period.
    
16. The complainant went home that afternoon but did not mention her bleeding or its cause to her mother. She stayed home for two weeks and only reported the matter when her mother questioned her after she was informed by the P & C Chairman of the School Mr. Kaukauri on 20th November 2009 that she (complainant) had been raped at school allegedly by the accused.
    
17. When the accused heard later that he was accused of having raped the complainant he attempted to sort the matter out with the complainant's parents, but they refused because they wanted to report the matter to the police. Then on 27th November 2009 the accused arranged to have the complainant undergo a medical check at the Garuai Health Centre. He sought the assistance of the Village Councillor who took the complainant and her mother to the Health Centre in his dinghy. The complainant was examined by the Sister-in-Charge. No Medical Report was ever given to the complainant even though her mother did pay the required fee.
    
18. The accused went in to see the officer in Charge of the Garuai Police Station Constable Nauko. Constable Nauko later took him to Alotau Police Station and referred him to Constable Ronah Lemek. Lemek asked him to make a statement which he did and then asked him to advise the complainant and her mother and Mr. Suita to come into Alotau and give their statements. This was sometime in December 2009.
    
19. The complainant's mother also went in to see Constable Nauko separately but was advised by the officer that he was on leave. Nothing was done until the 26th of January 2010 when Constable Ronah Lemek (who happened to be from the same area as the parties) came home for leave when the complainant's mother reported the matter to her. She later went to the Alotau Police Station and gave her Statement as did the other State witnesses.
    
20. The accused was finally arrested on the 28th of June 2011 with the assistance of his estranged wife Jean Dilolai a relative of Mr. Siuta.
    
21. The Elementary School consists of a double classroom with two staff offices in the middle. It is made of bush material. The walls are made from slit sago fronds and have spaces which can allow one to see through them. It has big wide windows and an open space at the bottom of the walls to allow for fresh air. At the back of the classroom is Mr. Siuta's house and a church building situated about 25meters and 13 meters respectively from the classroom. Other residences are located around the school itself on both sides. There is also a community hall next to the classroom and the school playground is just outside the classroom.
    
22. There are two teachers – the accused and Mr. Brian Siuta the Head Teacher. The accused taught Elementary 2 while Mr. Siuta took the other class (Elementary 1). They enter their respective classrooms through two open doors that lead directly from their offices.
    

DISPUTED FACTS

23. The principal disputed facts are:
    
    1. Whether the accused sexually penetrated the complainant on the date in question resulting in her bleeding from her vagina; or
    2. Whether the complainant bled because she had her first menstruation period,
    3. Whether the accused threatened the complainant with a knife to shut her up before penetrating her,
    4. Whether the accused was caught in the act by Flora Kaukauri and in the haste of getting away picked up his trousers and jumped out through the window.
       
24. The disputed facts can all be addressed together so I proceed to consider the competing evidence. And I start with the evidence of the complainant and her friend Flora Kaukauri.
    
25. The complainant testified that on the date in question she had remained back in the classroom when the rest of her class went outside to play during their lunch break when the accused came from behind her. He grabbed her by her shoulders and pushed her down to the floor, removed her skirt, pushed his penis into her vagina and then started thrusting in and out of her vagina. She tried to stop him but he continued. He went faster but then stopped, picked up his long trousers and then jumped out through the window naked. There he wore his trousers and walked around to the door and called his class in but then immediately dismissed the class.
    
26. The complainant said in examination in chief (through a series of leading questions that did not get any objections from the defence) that she tried to call out to her friends when the accused pushed her down to the floor but he showed her a knife so she got scared and did not call for help. She also said that she bled as a result of being penetrated by the accused and that blood got on to her clothes and the mat she was sitting on. She said that the accused was about to jump out of the window when her friend Flora Kaukauri came in. She said that she did not report the matter to her mother when she went home that day. She was bleeding for two weeks and did not go to school during that time. She only reported the matter to her mother after two weeks. She denied having her period on that day and vehemently maintained in cross examination that she was sexually penetrated by the accused and that she was not having her menstruation. She said that she had her first period on 21.10.10 when asked by the Court.
    
27. Flora Kaukauri was the complainant's friend and classmate. She was 10 years old at the time of the incident. And like the complainant was also in Elementary 2. She confirmed that the complainant remained back in the classroom when the rest of the class (including Flora) went out to play during their lunch break at 10.00a.m. She thought of the complainant and returned to the classroom. From the doorway she saw the accused jump out of the window. She noticed the complainant sitting down with blood on her clothes and on the mat which she shared with her and another girl named Hela. She asked her what was wrong and she replied "Morris held a knife to me and told me not to shout." Hearing this Flora said she went back to the oval and continued playing until the accused called them in and then dismissed the class.
    
28. In examination in chief she said she did not tell anyone what she saw until that night when she told her parents she saw including seeing the accused jumping over the window half naked. She said that all the pupils were out on the field playing and there was no one close to the classroom. When asked what happened to the soiled mat she said it was picked up by the boys and brought to Mr. Siuta who instructed them to burnt it.
    
29. In cross examination she said that all the children were playing in the oval. No one was in or near the classroom except the complainant. She said it was their sports day but denied that there were any teachers with the children. She said the accused was in the classroom marking their work. When asked if the complainant was naked when she came to the classroom Flora said she was not but when asked if she saw her putting on her clothes she said she saw her picking up her clothes. She was shown her Statement to the Police where she said that she saw the complainant sitting down with her clothes on. When asked which of this two statements was true she said her oral testimony was the true version. She maintained under cross examination that the accused jumped out of the window and that the complainant was not having her menstruation that time. She admitted that the Head Teacher Mr. Siuta was in his office but she did not report what she saw to him that day. She remained silent when it was put to her that she did not report the incident to Mr. Siuta because nothing happened and further when it was suggested to him that she was couched to say what she said to the police by her father.
    
30. Mr. Brian Siuta was the Head Teacher of Keia Elementary School. He testified of dismissing the children at 1.00p.m that afternoon. As they were going off he noticed something odd about the way the complainant, who was with his daughter Hela, was walking. She sort of gathered her clothes to the side of her legs and was not walking properly. When she noticed him looking at her, she pretended to walk normally to the road. He then continued on preparing his lessons. A while later the accused walked into his office, sat down, put his legs on the window and said in local language words to the following effect "I have a news to tell you. The child Judy had her period and blood spilt on the mat". He replied saying "She is too small to have her period" at which the accused replied; "Uncle, in fact she is already having intercourse with other men." He immediately recalled how the complainant had been walking and how she had gathered her clothes and things. He suspected then that something was wrong.
    
31. Mr. Siuta admitted in examination in chief that he did not attempt to ask the complainant why she was walking in the manner he described nor did he talk to her. The next morning the children told him about the soiled mat and he told them to burn it because he did not want them to talk about such things. He said that lunch is normally at 10.00a.m but classes started late that day so they had their break at 11.30a.m. and the pupils were sent home at 12.00 midday. He also said it was a sports day and every child was out in the field playing. None of them was near the classroom. He was shown his Statement to the Police dated 18.02.11. The Statement was tendered into evidence by consent.
    
32. In cross examination Mr. Siuta admitted that he did not see the accused sexually penetrate the complainant and merely assumed that she was. He agreed that it would have been appropriate for him to refer the complainant to the Health Centre but did not. He maintained that the complainant being only 12 years old was too young to have her monthly period so her bleeding would have been from sexual penetration.
    
33. He admitted that his house is within the school ground not far from the classroom and that his wife and children were there. There are other residences around and there is a community Hall next to the classroom and there were people walking around that day. He admitted that even though it was a sports day the pupils played soccer without supervision. He also agreed that the walls of the classroom were made from weaved sago blinds and there were gaps through which he can see through to the accused's classroom and office and hear what was being said on the other side. He confirmed this again when asked to clarify by the Court.
    
34. Mr. Siuta denied suggestions that he had a fall out with the accused over teaching positions and wanted to get back at him. And even though he was related to Jeane Dilolai whom the accused had left, this had nothing to do with this case. He admitted telling complainant's mother about the incident during the funeral of an Elementary School pupil on 20.10.2009 and this resulted in the matter being reported to the police.
    
35. Mr. Wilford Kaukauri is the Chairman of the P & C of the Elementary School. He testified that on the 12/10/09 they were having dinner when her daughter Flora informed them about what happened to the complainant at school. He went to the Head Teacher the next day to find out. He then went to the complainant's mother and told her to take the matter to Village Court as it was something they would not solve in the school. He said he went to check the school but the evidence was already destroyed. They went to the police station at Garuai but the policeman was on leave and could not do anything. They, however, eventually reported the matter to Constable Ronah Lemek. He confirmed that the complainant was eventually taken to the Garuai Health Centre for examination.
    
36. Faith Clifton is the complainant's mother. She testified that she gave birth to the complainant on 14/08/97. She tendered a copy of the complainant's clinic book (against the defence's objections - Exhibit D) which unfortunately was illegible. She said the original was at home. The accused is her cousin brother.
    
37. She recalled returning home from Alotau on Monday the 12.10.09 and finding her daughter sleeping. On Tuesday morning the complainant informed her that she was sick. She told her not to go to school and then went to the garden. When she returned from the garden her mother (the complainant's grandmother) told her to ask the child what really was wrong with her. She asked the complainant but she said she was alright. Faith, however, observed that the complainant was not walking properly and when she gets up, she would hold her side as if in great pain. Sometimes later her grandmother noticed thick blood on a mat that the complainant had been sitting and advised her (Faith) to advise her daughter to put her clothes properly when in public and with family members.
    
38. During the funeral of an Elementary School pupil on 20.10.09 Mr. Kaukauri informed her that her daughter was raped by the accused. She said she "dropped tears" because the accused is a family member and the complainant was but a child.
    
39. On another day the accused came down and unsuccessfully tried to sort the matter out with them. He then left but told them to go up to his place on the Sunday but they did not. So on Monday he came down with their auntie Pauline Igibala and took the complainant and her mother by dinghy to the Health Centre for medical examination. Faith took her daughter in for examination but when they came out the accused and Auntie Pauline went in and saw the Sister In-Charge while she waited outside. On the way home the accused told her (complainant's mother) that the examination was negative but she did not believe him because she wanted the accused to be answerable to what he did to her child.
    
40. In examination in chief Faith said that she paid the fee for the Medical Report and Sr. Annette Diala did the Report. She, however, did not see the Report. She also said that her daughter was again examined by a doctor at the Alotau General Hospital. No report was tendered in that respect. She denied any grudges against the accused and when asked if she questioned her daughter why she was walking with difficulty she said she did but she (the complainant) was too frightened to answer. She said it was her sister's children Talita and Joyceline who told her what had happened. However, Faith did not do anything or go and talk to the Head Teacher. Apart from her oral testimony the State also tendered her statement to the police dated the 26.01.10 with consent.
    
41. In cross examination Faith was asked about what she said in her statement to the police where she said she advised her daughter how to keep her clothes away from everyone and how to take good care of herself when menstruating. It was put to her that she knew immediately that her daughter was menstruating but she answered in the negative. And when it was put to her that the complainant was menstruating she said she did not believe she was because she was only a child. She said on re-examination that the complainant's bleeding was not normal.
    
42. The accused on the other hand testified that on the day in question he sent out his class at 10.00a.m for the normal lunch break of 30 minutes. Classes resumed at 10.30a.m and ended at 12.00p.m. When classes started at 8.00a.m he observed that the child Judy did not participate in class activities. She did not go out for recess but kept sitting on the mat until he dismissed the class and she went home with Flora and Hela.
    
43. During recess he went over to Mr. Siuta to discuss the day's lessons. He then returned to his classroom, rang the bell and classes resumed for the second part of the day. He did not notice anything unusual at first regarding Judy, not until she was going home when he noticed blood on her skirt. Seeing this he went over to Mr. Siuta and told him that Judy had had her period. Mr. Siuta replied that she was too young for that, to which the accused said that that may be so but she had her period nonetheless. On that morning he had given English and maths lessons to the kids before the lunch break.
    
44. He confirms that the classroom was made of bush materials and had big wide windows. It has gaps under the walls to allow for fresh air. It has two offices one for Mr. Siuta and one for himself. There were gaps under the rooms which the children can crawl under and there were gaps in the walls which people can see through. There were no proper doors.
    
45. The accused admitted that the complainant is his niece. He denied though that he sexually penetrated her besides the classroom was not an appropriate place for sex.
    
46. He said he was not aware of the allegation against him until he was informed by the Village Birth Authority clerk. That same afternoon he went down to discuss the matter with the complainant's parent but they did not want to talk to him. So he went to the School Board consisting of Mr. Siuta, Nicodemus Bade (BOM Chairman) and Wilfred Kaukauri (P & C Chairman), the Village Court Magistrate and Councillor Richard Bailasi and requested them to meet with him on Sunday. They, however, did not turn up. He then asked the Village Councillor and asked him to assist in taking the complainant to the Health Centre for medical examination.
    
47. On the 20th November 2009 the councillor took the complainant and her mother and the Village Birth Assistant to the Health Centre on his boat while the accused walked to the Health Centre. By the time he arrived at the Centre the complainant had already been examined. They were called in by the Sister In-Charge who briefed them of her examination of the complainant. He said that she informed them that the complainant denied being sexually penetrated when questioned and that she was entering into her puberty. There were no injuries seen in or around her genital area.
    
48. After that the accused said he went to see the Policeman in Charge of the local Police Station who later took him to the Alotau Police Station and referred him to Senior Constable Ronah Lemek. S/C Lemek questioned him and asked him to make a brief report on what happened on the 12th of October which he did. She then sent him home and asked him to inform the complainant and her mother and Mr. Siuta to come in and make their reports. He said there was no response from them.
    
49. He never heard again from S/C Lemek until his arrest in town on 28th of June 2011 with the assistance of his estranged wife Jeane Dilolai. Jeane and the accused had had problems in 2010 and Jeane left the accused. There was no indication of Jeane returning to him between October 2010 and March 2011 so he re-married. Jeane then sued him for adultery in the District Court but the case was dismissed. She later got the Welfare Office on him but she was again unsuccessful. And because of that she went to Brian Siuta and Wilfred Kaukauri and stirred up this trouble.
    
50. The accused denied seeing any medical report. He said that he suspected that the complainant had her period because she did not move around that morning and just stayed in the classroom. He confirmed the distances between the classroom and the field and that there were other residences including Mr. Siuta's and other building surrounding the classroom as we have seen in the undisputed facts above.
    
51. In cross examination the accused denied that the complainant was a very small girl. He said in fact that she was a big girl. He denied, given the location of the classroom, that anyone who wanted to do something there could do it. He vehemently denied approaching the complainant from the back and grabbing her by the shoulders and pushing her down, pulling a knife on her and then sexually penetrated her and then jumping over the window half naked after that.
    
52. He admitted that he has no grudges against the complainant but said he had issues with Brian Siuta and Wilford Kaukauri. He said that in 2005 he was caretaker of Keai Elementray School and Brian Siuta had wanted him out so that he could bring Wilford's nephew. They took the matter up to the Provincial Education Board but did not succeed. The accused denied that all the children were playing in the school ground. When asked why he went to the trouble of going to see the complainant's parents he said that he did so because he was suspected and for them to discuss the problem when the evidence was still fresh.
    
53. The outcome of this case turns on the element of sexual penetration only. Sexual penetration is defined by Section 6 of the Code as:
    

6. Sexual penetration.

When the expression "sexual penetration" or "sexually penetrates" are used in the definition of an offence, the offence, so far as regards that element of it, is complete where there is—

(a) the introduction, to any extent, by a person of his penis into the vagina, anus or mouth of another person; or

(b) the introduction, to any extent, by a person of an object or a part of his or her body (other than the penis) into the vagina or anus of another person, other than in the course of a procedure carried out in good faith for medical or hygienic purposes.

53. It is clear from the definition that there need not be full insertion or introduction of the penis into the victim's vagina for penetration to be complete. The slightest introduction of the penis or other body parts or objects is sufficient. (Saperus Yalibakut v The State (2006) SC 890; The State v Amos Jonathan (2009) N3760) It was even suggested obiter in The State v Alois Dick (2007) N3219 by Lenalia J. that stimulating the private part of a victim with one's tongue could amount to penetration. That may be going a little too far but this demonstrates the point that the slightest of entry into a person's vagina or anus or mouth is sufficient to constitute penetration. So did the accused sexually penetrate the complainant?

SUBMISSIONS

54. Mr. Palek submitted that the complainant's evidence should not be believed because of her failure to immediately report the matter to Mr. Siuta whose office was just next door. She also did not report to her mother but lied to her saying she was alright when asked if she was alright. She also had another opportunity to tell her grandmother when alone with her when her mother went to the garden but again failed to do so.
    
55. Brian Siuta for his part failed to take appropriate action by referring the complainant to the hospital for examination when he said he suspected that something was wrong when he observed the manner she was walking away after school on the date in question. The complainant's mother also failed to take her daughter to the Health Centre when she was allegedly informed by Mr. Kaukauri that her daughter was raped.
    
56. Mr. Kaukauri for his part allegedly learnt of the alleged offence on the night of the 12th of October 2009 from his daughter and even though he said he went and saw Mr. Siuta the next day, he as Chairman of the P & C, did not attempt to bring the complainant to the Health Centre for medical check.
    
57. Mr. Palek also attacks the demeanour of the state witnesses. He submitted that the complainant was not an impressive witness. She seemed to have studied her statement to the police and this was evident from the fact that at the end of her evidence in chief she quoted exactly the following statement, "I Judy Daweia certify that this statement is true to the best of my knowledge and belief" - a statement that Mr. Brian Suita interestingly also made at the end of his evidence in chief.
    
58. Counsel also submitted that the complainant's evidence was too brief. She does not describe in any detail how the accused removed her clothes and how he was holding the knife, what clothes she was wearing, whether she felt pain when she was penetrated and why she did not cry out in pain if indeed this was the first time she was penetrated. If she did, Mr. Suita would indeed have heard her cry out in pain. For a virgin lesser still a 12 year old girl not to scream in pain when penetrated for the first time defies common sense and logic. Mr. Palek therefore urged the Court not to believe her evidence.
    
59. Mr. Palek submitted that Flora Kaukauri was also not impressive. She did not answer several questions put to him in cross examination and seemed lost at times. She said she saw the accused jump out of the window half naked but not a single person outside saw this. She also said she saw her friend with blood on her skirt and the mat she was sitting on but she did not alert Mr. Suita and that also is against logic and common sense. And when it was put to her that her statement to the police was different from her oral testimony and when asked which of this was the true version of what happened she said her oral testimony was the true version.
    
60. Mr. Palek attacked Mr. Brian Suita as not being a witness of truth. He took long pauses before answering simple questions in cross examination. His evidence on the time they had had their lunch break contradicted the testimony of the complainant, Flora and the accused.
    
61. As regard the complainant's mother Faith Daweia, Mr. Palek conceded that she was an impressive witness but pointed out that she at first believed that her daughter was having her first menstruation period when she observed thick blood on the child's clothing and mat until told otherwise by Mr. Kaukauri and Mr. Suita.
    
62. Furthermore Mr. Palek submitted that no medical report was tendered into evidence and this leaves a lot to be desired of the State's evidence.
    
63. Mr. Palek submitted that the bleeding observed by witnesses was from the complainant's first menstruation period. He submitted that most girls start to menstruate between the ages of 10 to 12 years but the average is 12 years. He quotes no authority for this though but said further that typically a girl would get her first period 2 years after her breasts starts to develop.
    
64. On the other hand, Mr. Palek submitted that the accused's evidence is credible and ought to be believed over that of the state's witnesses. He answered questions confidently and his demeanour was very impressive. He confirmed that the complainant is related to him, that he saw blood on the complainant's skirt as she was going home with her friends and concluded that she was having her period and accordingly informed Mr. Suita. He only became concerned when he heard that he was suspected of having raped her. And he thus went to the extent of assisting her to the Health Centre for medical check. Mr. Palek finally submitted that the accused's credit was not shaken by vigorous cross examination and therefore the matter should be dismissed.
    
65. Mr. Auka for the State submitted that the case hangs on whose evidence is to be believed and hence depend very much on the credibility of the witnesses and the court will ultimately have to strike a balance between what is logical and what is not. (Paulus Pawa v The State [1981] PNGLR 498; Garitau Bonu & Rosanna Bonu v The State ( 1997) SC528.) Counsel submitted also that there is no rule law that a judge must accept or reject the whole of a witness's evidence. A judge may accept part and reject part of the evidence (Anos Naime Maraga & Ors v The State; SCRA No. 34 of 2003 (Unnumbered and unreported judgment of 30th April 2009 per Kirriwom, Lay and David JJ.) As to the lack of medical evidence Mr. Auka submitted that the absence of medical report does not prevent a conviction where there is convincing oral evidence. (The State v Kapi Jas (2010) N4013)
    
66. Mr. Auka submitted that the State's case is very convincing and that the evidence corroborative. The evidence of witnesses was reliable. There is evidence of bleeding by the complainant and evidence by her mother of her difficulty in getting up and therefore there is no need for a medical report to prove penetration. Furthermore there was no motive for the State witnesses to lie. The accused was seen jumping out of the window of the classroom in broad day light by Flora after he sexually penetrated the complainant. Her two weeks of bleeding was because she was sexually penetrated by the accused and not because of menstruation as she was too young to have her period. She in fact had her first period a year later on 21.10.2010.
    
67. Mr. Auka submitted that there was a good reason why the matter was not reported immediately to the police – that the OIC of the local police station was on leave and it was not until S/C Ronah Lemek came for her leave in the village that the matter got finally reported. Mr. Auka also submitted the attempt by the accused to sort the matter out with the complainant's parents and the fact that he and his aunt arranged for her to be taken to the hospital was suspicious. Why would he go through all that trouble?
    
68. Counsel argued that the accused took advantage of the opportunity when he saw the complainant alone in the classroom and sexually penetrated her. And whether people were watching did not matter to him. The state therefore proved its case beyond reasonable doubt, counsel submitted. So whose evidence should I believe?
    

DELIBERATIONS

69. This case does come down to whose evidence to believe. There is no medical report but there is no need for one to secure a conviction if the oral testimony is credible. However, as pointed out by Cannings J. in The State v Kapi Jas (supra), while corroboration is no longer needed and a judge is no longer required to warn himself or herself of the dangers of convicting on uncorroborated evidence in sex offences (Section 229H of the Code), a medical report is necessary where oral testimony is not immediately convincing. So is the oral testimony of the two most crucial witnesses for the State convincing?
    
70. The complainant testified that the accused approached her from the back, grabbed her shoulders, pushed her to the floor and removed her skirt and his trousers and then sexually penetrated her. She said she asked him to stop but he showed her a knife. After penetrating her he jumped half naked out of classroom window holding on to his trousers. Flora entered the classroom and saw him jump out of the window with only his shirt. She noticed her friend sitting on the mat with blood on her skirt. She questioned her and she said that the accused pointed a knife at her and then sexually penetrated her. Now, that seems to be very convincing and conclusive evidence from two girls who were aged 10 and 12 years.
    
71. But viewed against the location of the classroom, the fact that it is in the same building as that of the other classroom and the accused's and Mr. Suita's offices, the fact that it was made of bush material with large open windows and open space at the bottom to allow for fresh air, the fact that the walls are made of weaved sago blinds with gaps thus allowing one to see through to the other side and, that there were no proper doors, is it possible for accused to have sexually penetrated the complainant without being noticed or heard?
    
72. Sexual intercourse is something that is done in private and not publicly. And unless one is completely devoid of common sense and decency I just do not see how the accused could have done such a thing or even contemplated the idea in the first place. He would have been either completely insane or so blinded by animalistic lust to have sexually penetrated the complainant in such circumstances and in the manner described by the complainant. The complainant might have been alone in the classroom but her fellow pupils were outside playing soccer unsupervised. Kids being kids, what or who was there to prevent them from leaving the field and run around the classroom?
    
73. If I am to believe the complainant it would be reasonable to infer that the accused would have wanted quick sex given the circumstances. If so why did he have to take off his long trousers when he could have easily just unzipped, slightly pull his trousers down and penetrate the complainant. He would not have had the time nor was the place conducive for quick sex so why risk getting caught while trying to put his trousers back on?
    
74. He is said to have jumped over the window half naked holding his trousers in his hand. Why would he do that when he could have easily just walked back into his office? Why risk being seen by people outside including other kids and of course members of Mr. Suita's family whose house is located just at the back of the classroom or others whose residences are located around the school? Would he have not shaken the building in the process of jumping out the window and thus alerting Mr. Siuta?
    
75. The complainant is being held out to have been a virgin being only 12 years old. Would she not have felt pain when she was being penetrated by the accused? If she did, why didn't she cry out? When the accused jumped out of the window why didn't she immediately alert Mr. Suita whose office and classroom are but a few meters away from where she was. Why did she not report the matter to her mother immediately when she arrived home? There was no immediate threat from the accused who, lived a bit far from the complainant and her family. These questions beg a lot of answers and effectively render the State's crucial evidence highly unbelievable and at worst against logic and common sense.
    
76. But what about the actions of the accused in unsuccessfully attempting to discuss the matter with the complainant's parents and going to the extent of taking her to the Health Centre for medical check? Are these a manifestation of post-offence guilt or that of someone trying to proof his innocence? A reasonable man who had committed a serious offence would not go to such an extent. To do so would be to incriminate one-self. I believe therefore that the accused wanted to prove his innocence.
    
77. Now the defence has led evidence pointing to another hypothesis – that the complainant was bleeding from her first menstrual period. The complainant's mother at first believed that that was the case and in fact counselled her daughter to take proper care of herself and her clothes during her menstruation period. She only changed her mind when she was informed by Mr. Suita and Mr. Kaukauri that her daughter had been raped.
    
78. The defence had submitted that girls would on average have their first period at about the age of 12 years and in this case the complainant was experiencing her first menstrual period. Granted there is evidence that she had her period on 21.10.10. But has the State negative the defence's assertion beyond reasonable doubt? I think the State has not shown that the complainant's bleeding can be attributed solely to an act of penetration by the accused. It has not negatived the hypotheses that she was bleeding from first monthly period.
    

VERDICT

79. Therefore on the central issue of whether or not the State has proven beyond reasonable doubt that the accused sexually penetrated the complainant on 12th of October 2009, I must answer in the negative. Thus it is unnecessary to consider the other issues.
    
80. I return a verdict of NOT GUILTY and order that the accused be acquitted and discharged forthwith.

Ordered accordingly

________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused