National Court of Papua New Guinea

13. The second issue he raised is that because he had money or tobacco in his house, Mary is supposed to have made up the story against him so that she could either steal his tobacco or money expected for the sale of such tobacco. The second aspect of the accused evidence was never put to the state witnesses. He told the court that, what Mary told the court in evidence that she stole kaukau from the fire was not true as she dug up kaukau from mounts of kaukau and she was found by the accused himself and he chased her away.

14. In cross-examination the accused was asked if the reason why he was assaulted that afternoon was because, he was with the victim in his hut that morning. The accused said, it was not true that he was with the victim. He was asked about the time he was assaulted and he confirmed that it could have been about 1pm. He said, he was assaulted at the house boy next to the victim’s parents’ house. He further revealed that, the second witness’s house is across the road and they all live together in the same location. He was asked if during the process of him being kept in the police station, he ever made any admission to police. He denied having made any confession to the police.

15. He was asked as to when grudges between him and the second prosecution witness commenced? He said in September 2015. Further asked if Mary Roland did not have any grudges with him back in March 2015, why would Mary make up false stories against him. He answered that, was because he chased Mary from his garden so she made up the stories. He was further asked why the police would make up the false and serious allegations against him in the confessional statement. (See Ex. “3” and “3A”). He answered that because of false statements given to police by witnesses.

Counsel’s Submission on Verdict

16. Counsel representing the accused Ms. Ainui submitted that the accused denied all allegations made against him because, the accused caught Mary Roland stealing his kaukau and chased her. Counsel further submitted that the second reason for the false allegations is that because the accused had a large quantity of tobacco in his house that could fetch so much money so Mary wanted the accused to be locked away so she could get the benefits of proceeds of the sale if she sold it.

17. Counsel referred to the victim giving evidence saying she spoke confidently but said, could the court accept her evidence. She asked the court to consider the defence evidence of accused chasing Mary Roland away from his kaukau garden and other allegation about the quantity of tobacco.

18. Mr. Rangan argued that, the State have proved their case beyond the criminal standard of “proof beyond reasonable doubt.” Counsel argued that, there is no issue about identification as on both occasions, the victim vividly identified the accused as they live together and the accused stays around in the victim’s parents’ house because one of the victim’s parents is related to the accused.

Application of Law

19. The issue on this trial is whose evidence is credible and whose is not. At this stage of this trial, the court has the task of weighing all evidence called by the prosecution and defence. The principle of law in relation to credible and incredible witnesses is, the court cannot return a verdict of guilty “unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused”: Paulus Pawa-v-The State [1981] PNGLR 498, see also GaritauBonu& Rosanna Bonu-v-The State (1997) SC528.

20. The court has weighed all the evidence both for the prosecution and the defence. I remind myself of the principle in sexual cases that, it is unsafe to convict an accused person upon uncorroborated evidence of a complainant alone unless such evidence is corroborated by other evidence from independent source which renders the facts in issue probable that the offence charged was committed by someone and that the person who committed the crime was the accused: Didei v The State [1990] PNGLR 458 see also Peter Townsend v George Oika [1981] PNGLR 12 and The State v Andrew Tovue [1981] PNGLR 8.

21. The victim of this case though 7 or 7 ½ years old was very confident in how she gave evidence. She gave evidence of how the accused sexually penetrated her on those two occasions. Once in March 2015 and the second time was in October of that same year. The defence evidence of grudges between Mary Roland and the accused in my view is far from the truth. There is no logic in the evidence by the accused that, Mary made up the story.

22. The question arises is why would the victim make up serious false allegations against the accused. After all, the accused admitted in the confessional statement that, he sexually penetrated the victim two times. He informed Police Constables Nikints Kerowa and Otto Morombo of the Sexual Squad Office in Kokopo that, when the victim was cleaning the roof of his house, she only wore a skirt without underwear and when he saw her “as nating” he was tempted to have sex with her.

23. After she removed the rubbish, he took her down to the ground. She collected the rubbish and threw it away and he put her back up again on the roof the second time. Again he observed the victim’s naked balm and he wished he could have sex with her. After he took her down the second time, he took her into his house and laid her down on the floor and sexually penetrated her.

24. He also admitted having sex with the victim the second time on 21^st day of October 2015. Again this was because, the victim came to him in his garden where he sexually penetrated her the second time.

25. The medical report was not contested. The Health Extension Officer of Warongoi Rural Hospital Mr. Peter Irakau swore an affidavit saying that he examined the victim after five days from the date she was sexually penetrated. Although no spermatozoa examination was done, he found that, the victim’s hymen was torn. This essentially, is proof of the fact that the victim was in fact sexually penetrated by someone.

26. In criminal practice, the standard of ‘proof’ is very high and it is referred to as “proof beyond reasonable doubt”. This requires that the court must be satisfied beyond reasonable doubt about the guilt of an accused person before he or she can be convicted: The State v Joseph Dugura Roy (2007) N3137.

27. Which of the two versions of evidence adduced by the prosecution and the defence should be accepted as credible? In cases such as the instant trial, the practice and case law authorities warn that extreme caution must be exercised when the judge is dealing with the issue of the lying and truthful witness.

28. The court observed the witnesses’ demeanor and particularly the young victim. Although very young she maintained her cool spoke very confidently and narrated the full story of what the accused is supposed to have done to her in March 2015 and 21^st October of that year. Both in cross-examination and re-examination, the victim answered questions quickly and when she was asked to identify the accused, she stood up and pointed to the accused.

29. I observed the accused gave his evidence. I am of the opinion that he was not honest. The defence did not file any notice of voir dire if the accused wanted to challenge the tender of the confessional statement. It has been a long standing practice that, before an accused is being interviewed or questioned for purposes of obtaining statements or where a record of interview is to be conducted, the caution contained in the Judges Rules must be given to an accused and the rights pursuant to s. 42 (2) of the Constitution must be complied with. (See The State v Towes Minmin (2005) N2915), The State v Joanes Mesak (2005) N2853, The State v John Ave, Hubert Kuere & Mary Buku (2004) N2622 and The State v Raphael Walimini(2004) N2621). (See Ex. “3” & (3A) and Ex. “5” & “5A”).

30. On this trial, the offender accused the policemen who conducted the interview with him saying, the information they got was from the statements of the witnesses. How did the accused expect the court to accept such lies? The accused even argued in evidence that on both occasions, he was not on the scene. As to where he was, the defence did not file any notice of alibi.

31. I am satisfied beyond reasonable doubt that the person who sexually penetrated the victim on those two occasions was non-other than the accused. The accused is found guilty and convicted for the crimes of sexual penetration of the victim under the age of 12 years of age contrary to s. 229A (2) of the Criminal Code. He is found guilty and convicted accordingly.

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