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State v Jubin [2018] PGNC 571; N7726 (8 October 2018)

N7726

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. N0. 1142 OF 2016

THE STATE

V

LEMEK JUBIN

Kokopo: Susame, AJ
2018: 12, 24, 26, 28 September & 8 October

CRIMINAL LAW – offence – sexual penetration of a female child under 12 years of age – s 229a (1)(2(3) – child 8 years old – whether there exists a relationship of trust, authority or dependency – s 6a(2)(b) definition considered

PRACTICE & PROCEDURE – evidence – general denial – rule in browne and dunn – full version of facts relied by the defence to be put to prosecution witnesses - consequential effect for breach of the rule -

CRIMINAL LAW – evidence – hearsay evidence – evidence of recent complaint of sexual nature – its reliability - evidence of child witness – requirement for competency test – s 6 of oaths, affirmation and statutory declarations act ch.317 considered - corroboration is no longer a requirement, s 229h of criminal code considered – child’s evidence to be treated with caution.

Issues:

1. Whether there exists a relationship of trust, authority or dependency between the accused and the girl victim.
2. Whether accused sexually penetrated the girl?
   

Held:

1. Issue No.1 – Accused is a “wantok” and a person living in the same compound with the complainants. Evidence is lacking from the State to establish a relationship situation defined in s. 6A(2)(b). State has failed to prove this element. Accused cannot be held liable for breach of s 229A(3)
   
2. Issue No.2 –
   

a. Counsel representing the accused failed to put full version of facts asserted by the accused to prosecution witnesses. Such evidence is untrustworthy and unreliable. (Browne v Dunn (1893) 6 ER 67) followed

b. Evidence of recent complaint of sexual abuse is good admissible evidence, trustworthy and worthy of reliability. (Touramasong & Ors v The State [1978] PNGLR 337) followed.

c. Medical evidence showed girl’s hymen was torn and swollen with evidence of vaginal discharge due to infection.

d. Evidence adduced by the prosecution is trustworthy, reliable and is compelling leaving no doubt that accused had sexually penetrated the girl victim.

Cited Cases:
Papua New Guinea Cases

Touramasong & Ors v The State [1978] PNGLR 337
Rolf Schubert v The State [1979] PNGLR 66
The State v John Saganu [1994] PNGLR 308

Overseas Cases

Browne v Dunn (1893) 6 ER 67

Counsel:

Mr. Tugah, for the State
Miss Marum, for the Accused

DECISION ON VERDICT

8^th October, 2018

1. SUSAME AJ: On indictment presented by the State accused was charged that on 24 October 2015 he sexually penetrated an 8 year old female child, a child under 12 years of age, by introducing his penis into her vagina. The alleged offence was committed at Vunatung Planation, East New Britain Province.

2. It is further alleged on the indictment accused was in a position of trust, authority or dependency in that accused is like an uncle to the girl.

3. Accused is cited for offence provided in s 229A (1)(2)(3) of Criminal Code(sexual Offences and Crimes Against Children) Act 2002 with circumstances of aggravation.
   
4. No known statutory defence or alibi was raised. It was a case of general denial.
   

EVIDENCE

5. For the State the documents tendered into evidence by consent were:
   
   1. Statement of Senior Constable Sunema Vue dated 16/11/15 labeled exhibit A
   2. Statement of Senior Constable Berlin Tololo date 16/11/15 labeled exhibit B
   3. Affidavit of Dr. Steinmetz Rokounal dated 29/10/15 labeled exhibit C
   4. Medical Report of the child victim dated 25/10/15 labeled exhibit D
   5. Copy of the Child’s Clinic Book labeled exhibit E
   6. Record of Interview of the accused (Pidgin & English) labeled F & G
      
6. Oral evidence came from witnesses:
   
   1. WM (the child victim),
   2. AK (victim’s friend),
   3. Matthew Wayamo,( victim’s biological father)
   4. Angela Kaiko (AK’s biological mother)
7. For the defence the only evidence came from accused oral testimony. In his denial of the allegations this is what the accused stated in evidence. On Saturday they were playing cards. In the afternoon he left the group and went to the garden. He got sugar canes and went to give them to 3 girls, WM (victim), AK & FE. The girls saw him and ran away towards his “haus wind” (garden house). He called out to AK if they were male or female persons and told them to remove their clothes so he could see whether they were male or female. They should go to their house. What the accused meant to say was they were not boys to stay around. They were girls and they should leave what they were doing and go back to their houses and play cards there. He followed the 3 girls to AK’s house. WM then told AK’s mother accused had told AK to remove her shorts. Accused came and stood by and saw AK’s mother belt AK and questioned her, what accused had done to her. She cried and told her mother accused told her to remove her clothes. AK’s mother saw accused standing there. Accused then left and watched people playing cards. It was normal until around 6.00 pm the victim’s parents returned to the house from Kokopo. They went to his house and wanted to fight him. He told them to listen to him as he had done no wrong. Accused told them to take the girl to Vunapope Hospital for checkup as it was day time which they did.
   
8. The complainants returned with police but committee told them he will bring in the accused to the police station the next day. Later police assaulted him and locked him up.
   

ELEMENTS OF THE OFFENCE

1. Accused was the person involved
2. There was sexual penetration
3. Child was under 12 years of age.
4. There was an existing relationship of trust, authority or dependency.
   

ISSUES

1. Whether there was an existing relationship of trust, authority or dependency between the accused and the child?
2. Whether the accused sexually penetrated the WM?
   

ESTABLISHED FACTS

9. One essential element of the offence is the age of the child victim that was not at issue and has been proved. The child, WM was born at Vunapope Catholic Hospital on 28^th February 2007. She was 8 years old in 2015 when the alleged offence was committed. She has just turned 11 this year. There is no doubt she is a child under 12 years of age.
   

ISSUE: Whether there is an existing relationship of trust, authority or dependency between the accused and the child?

LAW

10. The term relationship of trust, authority or dependency is defined in s 6A which is reproduced below.
    

6A. RELATIONSHIP OF TRUST, AUTHORITY OR DEPENDENCY.

(1) When the term “relationship of trust, authority or dependency” is used in the definition of an offence, the offence, so far as regards that element of it, is complete upon proof that there was an existing relationship of trust, authority or dependency between the accused and the victim at the time the offence occurred.

(2) A “relationship of trust, authority or dependency” includes, but is not limited to, circumstances where –

(a) the accused is a parent, step-parent, adoptive parent or guardian of the complainant; or

(b) the accused has care or custody of the complainant; or

(c) the accused is the complainant’s grandparent, aunt, uncle, sibling (including step sibling) or first cousin; or

(d) the accused is a school teacher and the complainant is his pupil; or

(e) the accused is a religious instructor of the complainant; or

(f) the accused is a counsellor or youth worker acting in his professional capacity; or

(g) the accused is a heath care professional and the complainant is his patient; or

(h) the accused is a police or prison officer and the complainant is in his care or control.

11. The definition covers 8 different situations of the term “relationship of trust, authority or dependency” between the accused and the victim at the time the offence occurred.
    
12. Going by the definition accused is deemed to have been in breach of the situation under s 6A (2) (b), that accused has care or custody of the complainant, victim considering the circumstances of this case.
    
13. Mr. Tugah’s argument on this issue is that such a relationship exists between the accused and the victim. This is based on the premise that the complainants and accused are from the same District and live in the same area. They live together as family and help each other in times of need.
    
14. Miss. Pulapula standing in for Miss. Marum did not argue this very important point in her submission. She did however, make a brief oral response in rebuttal when invited by the court. This was not an ordinary case of sexual penetration being alleged. It was a case in which offence was committed under circumstances of aggravation that the alleged act was committed in breach of relationship of trust, authority or dependency which makes it serious, attracting maximum life sentence subject to 19.
    
15. Onus of proving this element of the offence of course rests with the State. Examination of the evidence on this issue is necessary.
    

EVIDENCE

16. Accused is from Herovana village in the Lufa District of Eastern Highlands Province. The girl’s parents are also from the same Lufa District. They cannot be from the same village with the accused. Court has heard from Matthew (the girl’s father) he is not a close relative of the accused by genealogical connection nor by clan affiliation. However, they all live in the same compound as family members.
    
17. Court’s finding on this particular issue is this. Firstly, generally speaking they are ‘wantoks’ in PNG context and know each other being residents of the same compound. They are not family members or close relatives by biological or clan lineage.
    
18. Secondly, evidence is lacking from the State to establish how intimate or close accused relationship is with the girl’s parents or if there had been instances the girl’s parents had allowed the accused to take care or custody of their daughter in their absence even on the day the alleged offence was committed. If such evidence was available, s 6A (2) (b) definition would no doubt hold the accused liable. Just because they are all living in the same compound as ‘wantoks ’or because they regard themselves as family members does not place the accused in the relationships defined in s 6A (2) (b). State has failed to prove this element of the charge.
    
19. The conclusion reached is that there exists no relationship of trust, authority or dependency between the accused and the girl victim. Accordingly, accused cannot be held criminally liable under s 229A (3).
    
20. The next argument for consideration is on breach of Browne and Dunn Rule. Mr. Tugah argued the version of facts accused relied on were never put to the State witnesses. He urged the court not to believe his story.
    
21. Ms. Pulapula thought otherwise and asked the Court to accept evidence from the accused as credible. Thrust of her argument was against the evidence by the State witnesses. She considered witnesses Matthew Wayamo and Angela Kaiko’s evidence were hearsay and inadmissible. Secondly, evidence of child witness AK was inconsistent with WM’s evidence.
    

BROWNE & DUNN RULE

22. First, discussion of the rule in Browne v Dunn (1893) 6 ER 67. “The essence of the rule was basically for fairness. That if a party is intending to challenge evidence of a witness, the reason for the challenge must be put to the witness during cross-examination. Party challenging must put his version of facts he will lead evidence later to establish, to the witness to give him an opportunity to respond in agreement or otherwise. Failure to do that is tantamount to acceptance of the evidence in chief which cannot be impugned or challenged in the party’s final address.
    
23. The resultant effect is that it affects and damages the credibility of the witness.” (See also The State v Merriam [1994] PNGLR 104.)
    
24. It is trite law there is no obligation on an accused person to proving his innocence. However, if an accused has a story to tell in his defence, it goes to his benefit if he discloses full version of facts he intends to rely on when giving instructions to his lawyer prior to commencement of trial rather than keeping it to himself and introducing such evidence at the 11th hour, expecting his lawyer to make a good and arguable case on his behalf.
    
25. Failure to do so can be considered as acceptance of evidence in chief which cannot be impugned or challenged by the party challenging in his or her final address. By that omission or failure court is entitled hold the evidence as unreliable and having less or no weight at all.
    

RULE ON HEARSAY EVDIENCE

26. First let me consider the argument on hearsay evidence. What is hearsay? I went online and found a very precise and clear definition of the word:
    

“Hearsay statement is an out of court statement, made in court, to prove the truth of the matter asserted. In other words, hearsay is evidence of a statement that was made other than by a witness while testifying at the hearing in question and that is offered to prove the truth of the matter stated.

General rule is that hearsay evidence is inadmissible but may be admissible under one of the exceptions to the hearsay rule.” (Underlining added for emphasis). (“Hearsay” Evidence- FindLaw. https://criminal.findlaw.com)

27. This illustration will perhaps make it more vivid. A had sexually penetrating B. B went and told C & D (who never saw the act committed) that A had sexually penetrated B. C & D gave evidence in court of the complaint or report made by B to them of the alleged act that was committed. Evidence of C & D is direct admissible evidence of the fact that complaint of the alleged sexual penetration was reported to them by B (the victim). To that extent their evidence is not hearsay.
    
28. In this case witnesses Matthew and Angela gave direct evidence of the report/complaint they got from the girls WM (victim) & AK (who fled the scene), what the actions they took immediately upon receiving the complaint, conduct of the accused when he was personally confronted and questioned by the witnesses and when police went to apprehend him. That is admissible evidence and is not hearsay. This brings me to discussion of how courts have assessed evidence of recent complaints of sexual nature.
    

RECENT COMPLAINT OF SEXUAL ABUSE

29. At Common Law, evidence of recent complaint made at the earliest reasonable opportunity is admissible in sexual assault cases. Such evidence goes to the credibility and demeanour of complainant as a truthful person of the fact that she had been sexually assaulted. It is however, not admissible of the facts in issue such as consent if it is a central issue. (See Kilby v R [1973] 129 CLR.460). That Common Law principle has been recognized and adopted by the Supreme Court in Touramasong & Ors v The State [1978] PNGLR 337.
    
30. In this particular case there was no lengthy passage of time complaint was reported. The uncontested evidence which court accepts is that AK, one of the 3 girls had fled from the garden house (the scene of the crime) when she heard the accused telling them to remove their clothes. She returned home and immediately told her elder sister of what the accused had told them to do. Her sister in turn told victim’s elder brother Brian and AK’s mother Angela Kaiko. Angela questioned WM when she came home after being sexually penetrated. WM then told Angela of what the accused had done to her. When WM’s parents got home in the afternoon they were told of the incident. The parents together with Brian (WM’s elder brother) then approached the accused at his residence to question him but, because the accused threatened to put up a fight they decided to lay the complaint at Kokopo Police Station that same afternoon.
    

EVIDENCE OF A CHILD WITNESS

31. It is appropriate at this juncture to discuss how the courts have treated child witness evidence. There were no discussions or arguments from the parties on this point.
    
32. Notwithstanding that, guidelines have been established by case authorities of the need to conduct a competency test. This is in observance of section 6 Oaths, Affirmation and Statutory Declarations Act Ch.317. By law that inquiry is necessary to ascertain whether the child comprehends the nature of oath and understands the consequences of giving false testimony under oath. If such an inquiry or examination is not done admissibility of evidence is questionable and cannot be relied on. (Rolf Schubert v The State [1979] PNGLR 66, Java Johnson Beraro v The State [1988-89] PNGLR 562.The principles have been time and again adopted and applied by the courts over the years including the case of The State v Amos Jonathan [2009] PGNC 153 N3764 (22 October 2009). I have considered and applied the principle in a couple of cases I dealt with, one of which is The State v Baaf Tatawa (2018) N7245 (11th May 2018).
    
33. The competency test was again conducted in this case. Child witnesses WM & AK understood the nature of oath. Each of them understood it was wrong to tell lies and that they would be punished for telling lies. Court considered both as competent witnesses and had them sworn.
    

CORROBORATION

34. Under the current legislative regime (s 229H Criminal Code) corroboration of complainant’s evidence is no longer necessary. That has been correctly alluded to by Mr. Tugah in his submission.
    
35. Court may convict on an uncorroborated testimony of the complainant alone and if I may add subject to certain qualifications. Firstly, in the case of an adult complainant as long as his or her evidence is impressive and truthful on court’s assessment. Secondly, in a case where the complainant victim is a very young child there is a need for the court to warn itself of the dangers inherent in deciding on his evidence alone but again that is subject to court’s assessment of the demeanour of the child witness if she is telling the truth.
    
36. In The State v Baaf Tatawa (supra) I cited with approval the judgment of later Doherty J in The State v John Saganu [1994] PNGLR 308 in which the court held that common law rule that young children’s evidence require corroboration does not apply in PNG. But, court should warn itself of the dangers of acting only on the evidence of a very young child. This is because “Children are more susceptible to suggestions, have shorter memory to recall and have more vivid imaginations than adults, care should be taken with their evidence, but if the court, seeing the witness before it, finds he or she is speaking nothing but the truth,” or her evidence is cogent or convincing the court is entitled to accept it.
    

ISSUE: Whether accused sexually penetrated WM?

37. Uncontested evidence which court accepts is that WM was taken to St. Mary’s Hospital, Vunapope and medically examined. Oral testimony of witness Matthew Wayamo (girl’s father) and Dr. Steinmetz Rokounal by his sworn affidavit statement dated 29/10/15 (marked exhibit C) have both attest to that fact. Medical Report dated 25/10/15 (labelled exhibit D) by Doctor Rokounal states the girl’s hymen was torn still swollen with vaginal discharge due to infection. Such evidence is consistent with recent complaint of sexual penetration received.
    
38. Both WM & AK gave evidence the 3 girls named were playing when the accused told them to go play cards at his garden house. Accused threatened and promised to give them money so the girls accompanied him to his garden house. There accused asked them to remove their clothes. AK was scared and had to run back to her house leaving WM and her other friend behind with the accused. WM gave a detail account of representation made by the accused and how the accused sexually penetrated her and she felt pain. When she got back Angela (AK’s mother) questioned her of the report AK had told her of the alleged sexual abuse. WM then related to Angela what the accused had done to her.
    
39. I acknowledge that children are more susceptible to suggestions and have shorter memory to recall events in detail. In that respect, I treat the evidence of witnesses WM & AK with caution, but subject to my assessment of their demeanour, credibility and other evidence received. I have observed their demeanour. They understood the nature of oath. Each of them considered telling a lie is not a good thing and that they could be punished for telling lies. They were both consistent in their evidence of the basic facts of what occurred that particular day. Though, they were child witnesses I considered them to be witnesses of truth.
    
40. Secondly, complaint of the alleged sexual abuse was made known to their other family members shortly after that day. The family members then confronted the accused to ask and verify the allegations only to be threatened by the accused. Complaint was later laid with police for their intervention.
    
41. I consider the evidence of recent complaint of sexual abuse is good admissible evidence. Such evidence is trustworthy and worthy of reliability.
    
42. Accused had given evidence the girls were at his garden house playing cards. Except that he denied sexually abusing them and came up with the story he related to court. Needless to say, I had difficulty following him all throughout his story. He was shaky and not consistent. Most of the facts he relied on were never put to any of the prosecution witnesses in compliance to the rule in Browne v Dunn. For that reason I consider his evidence as untrustworthy and unreliable. It was a made believe story in an attempt to evade criminal prosecution.
    
43. Against the accused story, evidence adduced by the prosecution in proving the alleged act of sexual penetration is compelling and leaves no doubt in my mind. The conclusion reached from the discussions is that State has convincingly discharged the onus of proving guilt.
    
44. Accordingly, accused is guilty of sexually penetrating WM, a girl under 12 years of age.
    

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