Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Makile [2016] PGNC 261; N6448 (23 September 2016)

N6448

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1166 OF 2014

THE STATE

V

KILALA MAKILE

Kokopo: Anis AJ
2016: 19 February, 23, 24, 30 May
And 23 September

CRIMINAL LAW – Verdict - accused charged with the offence of persistent sexual abuse of a child under section 229D of the Criminal Code Act Chapter No. 262 - prosecution cites three (3) alleged occasions of sexual assaults by the accused upon the victim - accused plead not guilty - prosecution allege victim less than 16 years old at those three (3) occasions - prosecution required to prove a minimum of two (2) of the alleged occasions to sustain the charge

PRACTICE AND PROCEDURE – confessional statement tendered without objection - confessional statement challenged in Court - rule in Brown v. Dunn followed - Court's discretion considered

Papua New Guinea Cases cited

State v. Dickson Miritok (2007) N3466
State v. Garaina Kopun (2009) N3871
State v. Gawango Ango (2010) N4034
State v. John Baimo Kaole (2009) N3842
State v. Kelly Minong (2016) N6271
State v. Kikia Solowei (2007) N3154
State v. Leo Aiyak (1990) N799
State v. Steven Makai (2009) N3841
Uda Liki Gasika v. The State [1983] PNGLR 58

Overseas Case cited

Browne v. Dunn (1893) 6 R 67 (HL)

Counsel

Ms J Aihi, for the State
Mr P Kaluwin, for the Accused

VERDICT

23rd September 2016

1. ANIS AJ: Mr Makile, the prosecution has indicted you to stand trial at the National Court. The prosecution presented your indictment on 19 February 2016. The matter was initially set down before His Honour Justice Lenalia's Court. It was later transferred to this Court.
   

INDICTMENT

2. To protect the identity of the victim, I will adopt and use the initials "EV" to refer to the victim in this case. Let me set out the particulars of your indictment herein:

KILALA MAKILE of Rapitok No. 1, Kokopo, East New Britain Province stands charged that he between an unknown date in 2012 and an unknown date in 2014 at Rapitok No. 1, Kokopo in Papua New Guinea, engaged in conduct of persistent sexual abuse of a child namely victim EV, a child under the age of 16 years.

Circumstances of Aggravation:

AND in the course of the conduct the child namely victim EV was under the age of 16 years.

AND in the course of the conduct there was an existing relationship of trust, authority and dependency between KILALA MAKILE and victim EV in that KILALA MAKILE was the uncle of victim EV.

AND in the conduct of sexual abuse involved an act of sexual penetration on one or more occasions.

Nature of alleged separate offences:

AND in the course of the conduct KILALA MAKILE, on an unknown date in December 2012, at Rapitok No. 1, Kokopo on one occasion engaged in act of sexually penetrating a child under the age of 16 years namely victim EV then 12 years old by sexually penetrating her vagina with his penis, and penetrated her mouth with his penis.

AND in the course of the conduct KILALA MAKILE, on the 11th of August 2013, at Rapitok No. 1, Kokopo on one occasion engaged in an act of sexually penetrating a child under the age of 16 years namely victim EV then 13 years old by sexually penetrating her vagina with his penis.

AND in the course of the conduct KILALA MAKILE, on or between the 01st and 31st of April 2014, at Rapitok No. 1, Kokopo on one occasion engaged in an act of sexually penetrating a child under the age of 16 years namely victim EV then 14 years old by sexually penetrating her vagina with his penis.

BRIEF FACTS

3. The prosecution presented your indictment on 19 February 2016. The trial commenced on 23 May 2016. I will set out the summary of facts, which the prosecution had presented on 23 May 2016 in support of the indictment. I read:

Allegation

The Accused Kilala Makile persistently abuse the victim child named victim EV on two or more occasion.

Facts supporting the nature of the alleged separate occasions

Occasion one (1)

It is alleged that on an unknown date in 2012 around 6pm – 7pm, the accused threatened the victim with a bush knife and ordered her to walk a head. The victim was afraid and asked where they were going but the accused threatened her and told her to keep walking.

It is alleged that the accused ordered the victim to walk into the cocoa plantation. The victim was afraid and walked into the plantation.

It is alleged that the accused removed the victim’s clothes and pushed her head down and it is alleged that he ordered her to suck his penis. It is alleged that the victim refused and cried but the accused who was holding the bush knife threatened her and ordered to suck his penis.

It is alleged that the victim sucked the accused’s penis.

It is further alleged that the accused then trapped the victim and she fell to the ground. The accused pushed his penis into the victim’s vagina and sexually penetrated her. It is alleged that the victim told him to stop but he did not stop.

It is alleged that this was the victim’s first sexual experience. She was bleeding and was in pain.

It is alleged that the accused after sexually penetrating the victim threatened the victim and told her not to tell anyone or he would kill her or report both of them to the police.

It is alleged that the victim was twelve (12) years old on this occasion.

Occasion (2)

It is alleged that on a Wednesday, the 11^th of August 2013 between 6:00pm and 7:00pm the victim and her niece were returning home after having their bath. It is alleged that the accused went after the victim.

It is alleged that the accused threatened the victim with a bush knife and ordered her into the cocoa plantation. It is alleged that the accused grabbed the victim and pushed her onto the ground.

It is alleged that the accused then sexually penetrated the victim by inserting his penis into her vagina.

It is alleged that the victim shouted and ran away.

It is alleged that the victim did not tell anyone because she feared him.

It is alleged that the victim was thirteen (13) years old on this occasion.

Occasion (3)

It is alleged that on a Tuesday in 2014 during the victim’s term one school holidays, the victim came to Kokopo and was returning home. It is alleged that the accused approached the victim.

It is alleged that the accused forced the victim into the cocoa plantation and sexually penetrated her by inserting his penis into her vagina.

It is alleged that the victim was fourteen (14) years old on this occasion.

Circumstances of aggravation

It is alleged that in the course of these sexual conducts the victim was under the age of 16 years.

It is further alleged that in the course of these sexual conducts there was an existing relationship of trust, authority and dependency between the accused and the victim. In that the accused was the uncle of the victim.

It is alleged that the actions of the accused contravened Section 229D of the Criminal Code Act.

CHARGE

4. You are charged under section 229D of the Criminal Code Act Chapter No. 262 (the Criminal Code Act). The section states and I read:

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.

(6) If one of 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.

PLEA

5. You have pleaded not guilty to the charge and to the three (3) allegations.

ISSUES

6. The issues are as follows:

(i) Can the accused challenge the confessional statement after it has been tendered?

(ii) Whether victim EV was less than 16 years old at the time of the alleged offences.

(iii) Whether the accused committed two or more of the sexual conducts upon victim EV as alleged.

EVIDENCE

7. The prosecution called three (3) witnesses who gave oral evidence. They were:

(i) victim EV;

(ii) Nason Paraide; and

(iii) Constable Vincent Tapal.

8. You were the only witness called to give evidence.

EXHIBITS

9. The following exhibits were tendered in Court:

10. I note that Exhibit P1 and Exhibit P2 were tendered by the prosecution through witness Constable Vincent Tapal. Exhibit P3, Exhibit P4 and Exhibit P5 were tended by the prosecution before the prosecution closed its case without objection from the defence.

CONFESSIONAL STATEMENT

11. Exhibit P2 was tendered without objection from the defence. No voir dire hearing was conducted in regard to its admissibility because no notice of such was filed nor was there any expressed intention of such made by the defence before the statement was tendered. I set out the relevant parts of the confessional statement herein and I read:

"I can recall that on the 3rd of January 2014 between 12:00noon and 1:00pm I was at my house at Rapitok #3.

During that time this girl who I know by name came down to me at my house. When she was there I asked her why she came to my house and she replied that her father had chased her and she has not been in the house for three days now. She then asked me if I could lend her K10.00 and I told her that I do not have any money. She then insisted that I give her the money and I asked her that what was that for and she said just give me the money. I gave her a K5.00 and asked her when she would repay that money and she said she would repay sometime later.

While we were talking she saw my family arriving and she went into Daniel Tingala's coconut plantation nearby and told me to follow her. I then followed her and met up with her in the coconut plantation. She then told me to lie down which I did and she sat on top of me, lifted her laplap and removed her under wear and fucked me downwards. We left for our houses after we have finished.

I did not threaten the victim with the knife or used threatening words towards EV to have sex with her. She just wanted to fuck with me to get my money and also is the only time we had sex together."

12. Despite the confessional statement being in evidence, I note that the defence has adduced evidence at the trial to claim that the confessional statement was not voluntarily obtained.

13. As such, the Court's role now, in my opinion, would be to decide whether it should accept or discard the evidence or give less or more weight to it. It becomes a matter for exercise of the Court's discretion [See cases: Uda Liki Gasika v. The State [1983] PNGLR 58; State v. Leo Aiyak (1990) N799; State v. Kelly Minong (2016) N6271].

14. I will of course come to this in the later part of my judgment.

15. But in answer to the first issue Can the accused challenge the confessional statement after it has been tendered? my answer is "yes but it would be a matter of persuading the Court not to rely on it or give weight to it."

VICTIM LESS THAN 16 YEARS OLD

16. The prosecution has the burden of proof to establish that victim EV was less than 16 years old at those the three (3) alleged occasions, beyond reasonable doubt.

17. I refer to victim EV's evidence in chief. She said her age was 16 years old, that is, at the time of the trial. This evidence was not disputed by the defence either by its evidence or through cross-examination. Secondly, I refer to Exhibit P5. The document is EV's Baptism Certificate. It states EV's birth date as 26 March 2000.

18. I am therefore satisfied beyond reasonable doubt that victim EV was less or would have been less than 16 years old at the time of the alleged offences.

EVIDENCE

19. Let me summarise the sworn evidence by the parties:

• Victim EV: She said in 2012, when she was 12 years old, she climbed a betel nut tree at Rapitok village. She came back down and chewed the nut. She said you came along intending to go to the trade store. She said you asked her for a betel nut and she gave you one. She said you chewed the nut and walked to the store. She said you returned and she was still where she had been. She said it was between 6pm and 7pm in the evening. She said you produced a small knife and told her to walk into your cocoa patch. She said there you removed her clothes and you told her to suck your penis. She said you then held her to the ground and you inserted your penis into her vagina and you had sex with her. She said that was her first sexual encounter with you. After that she said you told her not to tell anyone and you gave her K5. She said you left her and you told her that you would cut her with a knife if she reported the matter. She said she was afraid and did not tell anyone of the incident.
  

She said in 2013, she and her niece went to fetch water at a creek close by to your house. She said it was between 6pm and 7pm in the evening. She said she was walking from behind. She said you came out of your cocoa patch and pulled her. She said she struggled but she said you threatened her with a knife and took her into the cocoa patch. She said there you removed her pants and told her to suck your penis. She said you pushed her to the ground and pushed your penis into her vagina. She said before you left, you told her that if she reports this, the next time she comes to fetch water, you would cut her with a knife. She said she went back to the house but she was afraid to tell anyone about the second incident.

She said in 2014, she went to the creek to shower. She said it was between 7am and 8am in the morning. She said as she was about to return, you appeared and you grabbed her. She said you removed her laplap and you held her down and told her to suck your penis. She said you forced her down and she sucked your penis with her mouth. She said she tried to shout and you left her and went away.

She said in 2014, she went onto the road to buy ripe banana. She said you were there and you asked her for a ripe banana. She said she gave you one. She said you asked her to accompany you to Kokopo. She said she told you that she would go to her house. Later she said you gestured to her to go over to him. She said you got her and together you both travelled to Kokopo on a PMV bus. She said at Kokopo, you told her to wait for you at the bus stop. She said she waited for a while and you showed up later. She said she told you that she has to go back but you told her that the two of you would go back together. Later that afternoon, she said you both got onto a PMV bus and travelled back to the village. At the drop off, she said you both walked to your houses. She said it was at that time that her sister's husband saw her and you together. She said her sister's husband Nason Paraide followed her and told her to go to his house. She said later her in-law asked her about you and that was when she told him everything or about the bad things she said you have done to her in the past. She said her in-law told her father and they reported the matter to the police.

She said she knows you because you are a family member. She said you are like a father to her. She said her father's mother and your father's mother are blood sisters.

• Nason Paraide: He said on 14 June 2014, he was at the aid post at Rapitok village. He said he stood beside a small market. He said he witnessed what you did at that time. He said victim EV bought some ripe bananas and you asked EV for some. He said you two talked but he was unable to hear the conversation. He said after that, you and EV went to the road. He said you and EV stopped a bus, hopped on and travelled to Kokopo. He said EV did not look like she was ready to go to town at that time. He said he was suspicious because you and EV did not return soon that day so in the afternoon he told his wife about it. He said on Sunday afternoon on 15 June 2014, he asked his wife to call EV to his house. He said there they asked EV about her and you going to town the previous day. He said EV told them that you forced her to go with you to town because you wanted to buy her a pair of slippers. He said EV also told him and his wife about the three (3) incidents in the earlier years, that is, in 2012 when you raped her, and in 2013 and 2014. He said he then went on to report EV's father.
  

He also said that you and him were like brothers. He said you know each other. He said his father and your father were cousins. He also said that he knows what sort of person you were and he believed EV's story. He said you have a habit of courting with girls.

• Vincent Tapal: He said he worked as a policeman for 17 years. He said he currently worked with the Special Service Division (SSD). He said his division was initially involved in the matter after the matter was reported at Tomaringa Police Station. He said they were engaged to apprehend and bring you down to the Kokopo Police Station. He said he assisted CID officer Constable Otto Morombo regarding the matter. In Court, the prosecution showed him a copy of the Record of Interview (ROI). He confirmed that and the ROI was tendered without objection. Next, he was shown a copy of the confessional statement you made. He said you told him during the ROI that you will give this statement after the interview. He said after the ROI was concluded, you gave that confessional statement. He said he wrote down what you told him and you signed off after that. He said he did not use any force or threaten you before you gave your statement.
  
• Kilala Makile: The alleged three (3) incidents were put to you by the prosection. You denied all the three (3) alleged incidents. You said you did not know because you said that you did not do these things as alleged. You said you were not sure whether victim EV had made up the story. Except for the fact that you and victim EV boarded the same bus to Kokopo, which you admit, you denied all the allegations the prosecution had put to you about what had transpired on that day on 14 June 2014. You deny ever knowing EV. You deny ever talking or ever speaking to EV. You deny receiving betel nut or banana from EV that day before travelling to Kokopo. You also deny making any gestures to EV to come to you to travel to Kokopo on that day. You said EV was on the bus that day but she was on her own and you were in the same bus but you were also on your own. You said the bus was full. You said you sat in the front seat at the back of the driver whilst victim EV sat with others at the back seat of the bus. You said when you arrived at Kokopo, you went straight to Westpac Bank. You said you withdrew some money and later went to K Central Shop. You said you bought a bag of rice and some food. You said you went straight to the bus stop and you got onto a PMV bus and went home. You said upon arrival, you went straight to your house.
  

When you return to your house after arriving from Kokopo, you said you were with your family. You said at around 6pm, one Martin Rugar came to your house with her daughter Meceline Martin and Martin Rugar's daughter in-law. You said Martin was looking for his other daughter Kilalal Martin. You said Martin told you that he assaulted Kilala because she had drank alcohol with the victim EV and Robison Vakaina. You said you did not see what had happened but you were told about the incident.

In regard to the confessional statement, you said after the ROI, Vincent Tapal got angry and shouted at you. You said you felt frightened which was why you said you made up this story, which was recorded as a statement and you signed-off on it.

In regard to your arrest, you described the manner of your arrest in Court. You said Vincent Tapal arrived at your house with several policemen. You said a gun was pointed at you and you were told to kneel down which you said you did. You said you were searched and then taken to the Kokopo Police Station.

ASSESSING THE EVIDENCE

20. Let me consider victim EV's evidence as well as recall her demeanour in Court. EV is 16 years old. EV spoke softly but clearly in Court. She gave evidence without much difficulty. She was not emotional to the questions particularly put to her by the defence. She answered the questions directly and confidently. I find that she was able to recall the three (3) incidents clearly. She cannot recall the exact date or the month of the three (3) incidents. But she was able to recall the time and year and the facts of each incident clearly. During cross-examination, she maintained her accounts of what she said happened. The defence did not, in my opinion, disturbed her evidence or caused EV to give inconsistent evidence. I consider that EV gave credible evidence in Court.

21. Secondly, let me consider Nason Paraide's evidence and recall his demeanour in Court. Nason is EV's in-law. He is married to EV's elder sister. Nason is an adult. He said he witnessed the incident that had occurred at their village on 14 June 2014. I note that at that time, EV would have been 14 years old. I find Nason's evidence credible because you did not dispute the date and some of the things that had occurred during that day. EV also recalls the incident despite the fact that she was unable to recall the date. Nason gave his evidence with ease and I did not find any indications that may suggest that he was untruthful in his evidence. The only discrepancy I note (in his evidence and EV's evidence) is where he said he and his wife had called EV over to their house the next day. I note that EV gave evidence which tends to imply that her confession to them happened or occurred on the same date on 14 June 2014. I prefer to believe Nason on this point because he was an adult at that time and I take into account the age difference between him and EV. EV was 14 years old at that time. She could have easily made a mistake either, in her recollection or she may have not properly explained that whilst giving evidence in Court. Nason's evidence corroborates with EV's evidence when he said he saw you asked EV for a ripe banana. Nason said he saw you and EV hopped on a bus to Kokopo. You denied talking to or receiving banana from EV. You admit the second allegation but you said you went on your own and EV went on her own, to Kokopo. You said that it was not a planned arrangement that you two hopped on the bus together and you gave your reasons for going to Kokopo which I will get to later below in my judgment.

22. You were asked by your lawyer whether Nason had any grudges against you. You said no. You were then asked that if you had no grudges against Nason then why Nason would tell a lie about you. You replied and said that it was because he saw you and EV boarded the bus together. I find your response hard to comprehend. You are a grown man in your mid 30s going towards 40s. You have six (6) children. EV is a child who was 14 years old at that time. I find it hard to accept that someone would suspect you of having a relationship or affair with a child by the mere fact that you and EV boarded the bus together. I think it would have to take more than that mere fact. And I think Nason has explained that in his evidence.

22. I now turn to the affidavit of Vincent Tapal. He is a policeman. He has been a policeman for 17 years. I note that he is based with the SSD section of the police force here in East New Britain. He is an experienced officer as shown by his record. However, he has no experience in police work for example formulating charges or attending to record of interviews. He admits in evidence that it was his first case. But I note that because it was his first case, he was assisted by another policeman with experience Otto Morombo.

23. The crucial part of his evidence relates to Exhibit P2, which is the confessional statement. The said statement is already in evidence and the question for this Court to determine is what weight the Court should give to it. There is a slight difference in this case because despite the fact that no objection was taken for its tendering or despite the fact that no notice of objection was filed against it, the defence had passed the rule in the case of Browne v. Dunn (1893) 6 R 67 (HL). The defence counsel did put questions to Mr Tapal in cross-examination that he threatened you and you were afraid which was why you had given the confession. You were also asked about the confession and you said Mr Tapal threatened you, which was why you gave the confession. You said you had made up the story and that it was not true. Given these and following the case law [See cases: State v. John Baimo Kaole (2009) N3842; State v. Gawango Ango (2010) N4034], I am to decide whether I should give due regard to it, that is, add more weight to or give little or no weight to the evidence.

24. I will follow the approach taken by Justice Cannings in the case State v. John Baimo Kaole (supra). This was a trial on verdict for wilful murder against three (3) accused persons. A confessional statement and record of interview of one of the accused was admitted into evidence without objection. The defence argued at trial that little weight should be given to the incriminating statements made in the confessional statement and record of interview because the defence said the accused has denied these in his sworn evidence at the trial. His Honour said and I read:

42. The weight to be attached to an accused’s sworn testimony will depend on the normal factors that decide whether any witness’s evidence is believed such as the witness’s demeanour and the credibility of the evidence in light of other evidence before the court.

43. The weight to be attached to a confessional statement or record of interview will need to be assessed having regard to the circumstances in which any incriminating statements were made to the police and whether any objection was made to their admission into evidence.

25. The Court in the said case gave little weight to the accused's sworn evidence but gave considerable weight to his confessional statement. The Court convicted the accused on a lesser charge of murder.

26. The above case is somewhat similar on point. That is, for the present case, both the confessional statement and the record of interview were tendered without objection. The slight differences are that you are only challenging the validity of your confessional statement and not your record of interview, and secondly, you have complied with the rule in Brown v. Dunn (supra) which was not followed in the case of State v. John Baimo Kaole (supra).

27. I now turn to your sworn evidence and my recollection of your demeanour in Court. The first thing that I noticed was that although calm, you were forceful at times to deny or make a point in response particularly during cross-examination. I observed that your responses to questions and answers were defensive and calculative. You tend to be very careful and mindful of the answers you gave and I noticed a lack of flow in your oral testimony. I do not find you as a person who can be easily frightened which is contrary to how you had put it. I also noted from your response that you have chosen your words carefully which were aimed at distancing yourself as far away as much as possible from victim EV.

28. It is important to point out here that you have agreed with the prosecution during cross-examination that it was odd that victim EV would make such serious allegations against you when you said you have never met, known or talked to EV.

29. Now, there were two instances where I think you have deliberately told notable lies to the Court. The first was in regard to your account of how you said you were arrested. You said a gun was pointed at you and you were told to kneel down and you were searched. I uphold the prosecution's contention that you did not forewarn your lawyer and the prosecution, and in doing so, you have breached the rule in Brown v. Dunn (supra). That is, the prosecution were not given the benefit to put the question to policeman witness Vincent Tapal to enable him to respond to the said allegation. The reasonable conclusion to be drawn by such an action is that you have invented the story at the last minute. Secondly, you continued with a story that was not told before, that is, in regard to an alleged incident after you had returned from Kokopo on 14 June 2014. You said one Martin told you her daughter had been drinking alcohol that day with victim EV and one Robison Vakaina. You even forcefully said that the story was true but later when it was put to you that you did not see but was only told about it, you agreed. But I note that you had tried to give a strong impression to the Court then that what you heard was actually what had happened. I note that the evidence is also hearsay and for all those reasons, I give no regard to it. But the twist to your recent story and assuming that I were to accept it as true, would indicate that you do know victim EV after all.

30. For these reasons, I have serious doubts about everything you have told this Court. I think you have been dishonest and that you have tried to mislead this Court with your evidence.

FINDINGS - FACTS

31. In regard to the first incident of alleged sexual assault on victim EV, I find as follows: Sometime in 2012 between 6pm and 7pm at Rapitok village, you met up with victim EV on your way to a trade store. EV was 12 years old at that time. When you returned back, EV was still there and you grabbed her, threatened her with a knife and forced her into a cocoa patch where you firstly ordered EV to suck your penis with her month. You then forced her down and you inserted your penis into her vagina. When you finished having sex with EV, you threatened her not to tell anyone or you said you would cut her with a knife. In fear of her life, EV never told anyone at that time.

32. In regard to the second incident of alleged sexual assault on victim EV, I find as follows: Sometime in 2013, between 6pm and 7pm at Rapitak village, EV and her niece went to fetch water at the creek. EV was 13 years old at that time. You appeared from the cocoa patch and you grabbed her from behind. EV struggled with you but you used a knife to threaten her. You took her into the cocoa patch. You removed EV's pants and you told her to suck your penis. Then you pushed her down to the ground and you pushed your penis into her vagina. You threatened her with a knife and told her that if she reports you, you would cut her the next time she comes out to the creek to fetch water. EV was afraid and did not report the matter.

33. In regard to the third incident of alleged sexual assault on victim EV, I find as follows: The evidence adduced in Court from victim EV and put to you were different from the brief facts used to support the incident with the indictment. That is, the facts supporting the indictment in relation to the third occasion or incident were different to what was adduced in Court. For clarity, let me firstly quote the brief facts supporting the third alleged occasion of sexual act as presented by the prosecution, here:

Occasion (3)

It is alleged that on a Tuesday in 2014 during the victim’s term one school holidays, the victim came to Kokopo and was returning home. It is alleged that the accused approached the victim.

It is alleged that the accused forced the victim into the cocoa plantation and sexually penetrated her by inserting his penis into her vagina.

It is allege that the victim was fourteen (14) years old on this occasion.

34. And let me quote the account as recalled by victim EV in her testimony in chief as I had summarised above:

She said in 2014, she went to the creek to shower. She said it was between 7am and 8 am in the morning. She said as she was about to return, you appeared and you grabbed her. She said you removed her laplap and you held her down and told her to suck your penis. She said you forced her down and she sucked your penis with her mouth. She said she tried to shout and you left her and went away.

35. Case law is settled in that the Court cannot convict based on facts that are not pleaded in or support the indictment (See cases: State v. Garaina Kopun (2009) N3871; State v. Dickson Miritok (2007) N3466). Case law also states that the material facts on each occasions must be clear (See case of State v. Steven Makai (2009) N3841). In my opinion, there seems to be a fundamental flaw made by the prosecution, that is, of not pleading the correct set of facts to support the evidence.

36. I find that the prosecution has failed to establish the third occasion of sexual assault by you on victim EV.

37. I accept the events of 14 June 2014 as recalled by victim EV and Nason Paraide. I find their evidence credible. I find that you did talk to victim EV that morning. You did ask her for some ripe bananas. I find that you also gestured to EV and you took victim EV with you to Kokopo that morning with a promise to buy her a pair of slippers. I find that you two came home together that day. I find that Nason Paraide saw you two before in the morning, which was why he was suspicious of your actions. I find that he and his wife called EV over to their house the next day. I find that EV told Nason Paraide of what you two did that day. I find that EV also told Nason Paraide and his wife of the sexual encounters EV had with you in 2012, 2013 and 2014.

38. I find that your story about what Martin Kilala told you is false and that it is most likely a recent invention by you. I find that it breached the rule in Brown v. Dunn (supra). That is, the prosecution was not forewarned and did not put the questions of facts to EV regarding the claim in examination in chief and cross-examination, to give her the benefit to respond to the said allegations. I also find that it is hearsay.

39. In regard to your relationship with EV, I find that you are related to her as she has explained in her evidence. I find EV's evidence on point true. I find that she is related to you by blood. I find that given your age and relationship, EV had regarded you as one of her father whom she could have trusted and depended upon that the material times. I find that you had breached the said trust and authority when you sexually assaulted her on those two occasions in 2012 and 2013.

40. In regard to the confessional statement, I find that the statement was obtained without any use of threats as you have alleged. I find that you were informed of your constitutional rights before the ROI was conducted. I find that the ROI was properly conducted. Now I note that you said that you were forced to make the confession against your will after the interview. And I note that policeman Vincent Tapal stated in his sworn evidence in Court that you had told him during the ROI that you would make a confession in a statement after the ROI. I find this piece of evidence or claim crucially important towards resolving this issue. That is, the only proof if I am to accept the policeman's story is look at the ROI. If you did have this conversation with the police during the ROI, it should of course be recorded. Otherwise, I will have to exercise restraint and give less or no weight to Exhibit P2 because this would show that policeman Vicent Tapal was not being truthful. When I examined the content of the ROI, I note that there is actual proof of that claim by the police, that is, of the fact that you had told Vincent during the ROI that you will make a statement after the ROI. I refer to questions and answers from questions 31 to 32 in the ROI. I quote them and I read:

"Q31: Can you sign the papers to show that the content is true and correct?

Ans: Yes, it is true and correct.

Q32: Do you have anything more to say as we are nearing the end of our interview?

Ans: I will do that in my statement."

(Bold lettering is mine)

41. I ask myself this: If you have made that statement during the ROI at the time when you were not forced to give your answers, how can you later deny that or claim that it was never your intention to make a statement in the first place? In my opinion, you have already expressed your intention to make a statement before your claim that you were threatened by police after the ROI. The above, in my view, is clear proof of that. You were given the opportunity in Court but you did not challenge the ROI or explain your answer to question 32 in the ROI. You did not clarify or explain, for example like you did want to make a statement after the ROI but then you changed your mind against making a statement but that you were nevertheless forced by the police into making the statement. No such explanation was given to the Court.

42. I find that you have again given false evidence and tried to mislead the Court into believing your version of the story on this point.

43. I will give some weight to your confessional statements against you. It tends to support what victim EV had recalled in regard to the first incident where you had sexually assaulted her in 2012. I note that there are slight variations to the confession. For example, you said it was in 2014 and you said that it was EV that came to your house and asked you for money; that it was her in that she invited you to have sex with her for money at a coconut plantation. Where there are variations in the confessional statement to the accounts recalled by EV in her testimony regarding the sexual account by you on her in 2012, I find the versions as recalled by EV to be accurate. Actually, the confessional statement is of little benefit or value to the evidence already adduced by the prosecution against you concerning the two occasions.

44. May I comment that according to your so-called confessional statement, you have implied that because EV had asked to have sex with you, despite the fact that she was 12 years old, you had allowed or had participated in the sexual act. I find this hard to comprehend except perhaps to use that to get an insight of the type of person you are. Such reasoning in my opinion is contrary to a reasonable man's way of thinking. It is also against public perception as well as it is against the society's regard for the need to protect its children.

ESTABLISHING THE OFFENCE

45. Let me identify the elements of the offence under section 229D of the Criminal Code. For this purpose, I will adopt the findings on point by Justice Cannings in the case State v. Steven Makai (supra). His Honour held and I read:

ELEMENTS

3. The offence under Section 229D(1) has four elements. The prosecution has the onus of proving beyond reasonable doubt that:

1 the accused engaged in conduct in relation to a particular child that constitutes an offence under Division IV.2A (sexual offences against children) of the Criminal Code;

2 on two or more occasions within a period specified with reasonable particularity;

3 each occasion was on a separate day; and

4 the material facts of the occasions are clear.

46. In relation to the first element, Division IV. 2A or section 229A state and I read:

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.

47. I am satisfied that the prosecution has proven beyond reasonable doubt all the elements of this offence under section 229D of the Criminal Code Act. I am satisfied that the prosecution has clearly established the two separate incidents or occasions namely in 2012 and 2013. I am satisfied that the prosecution has clearly particularised the separate facts of each incident. I am satisfied that the prosecution has established that on each of the two occasions in 2012 and 2013, that you had sexually penetrated victim EV who was under the age of 16 years old, that is, that you had forced victim EV on both occasions to suck your penis before you inserted your penis into her vagina. I am satisfied that the prosecution has established that on those two separate occasions, you had used force and had threatened victim EV to commit these sexual offences. I note that pursuant to Section 229D(5)(6) [See also the cases State v. Steven Makai (supra) and State v. Kikia Solowei (2007) N3154], the Court need only be satisfied of two (2) occasions of sexual assaults, to sustain a charge under the said section.

48. I am satisfied beyond reasonable doubt that at the material times, there existed a relationship of trust, authority and dependency between yourself and victim EV. A good example would be to refer to your confessional statement. Even if the Court was to believe your version that it was victim EV's idea to have sex with you, you as a fatherly figure to the victim had a duty to correct and cared for victim EV. You had failed to perform that role.

49. I am satisfied that the prosecution has established all the elements of the offence under section 229D of the Criminal Code Act beyond reasonable doubt.

SUMMARY

50. In regard to the issue Can the accused challenge the confessional statement after it has been tendered? my answer is "yes but it would go down to the Court's discretion and how much weight the Court may give to the evidence based on other evidence adduced by the parties on the matter." In regard to the second issue Whether victim EV was less than 16 years old at the time of the alleged offences my answer is "yes". In regard to the final issue that is Whether the accused committed two or more of the sexual conducts upon victim EV as alleged my answer is "the accused has committed two (2) sexual conducts upon victim EV which were sufficient to sustain the charge under section 229D of the Criminal Code Act.

ORDERS OF THE COURT

Verdict: Guilty as charged

________________________________________________________________
Office of the Public Prosecutor: Lawyer for the State
Office of the Public Solicitor : Lawyer for the Accused