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State v Tobata [2020] PGNC 507; N9901 (18 November 2020)

N9901

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 138 & 139 OF 2020

THE STATE

V

FIDELIS GEORGE TOBATA

Kokopo: Suelip AJ
2020: 29^th, 31^st July, 17^th August, 8^th September & 18^th November

CRIMINAL LAW – trial – verdict – persistent sexual abuse of a child – section 229D(1)(3) – father and daughter – breach of trust, authority and dependency – allegations denied – consideration of evidence – proof beyond reasonable doubt – guilty

Cases Cited:

State v Cosmos Kutau Kitawal & Anor (No 1) (2002) N2245

Counsel

G Tugah, for the State
N Katosingkalara, for the Accused

VERDICT

18^th November, 2020

1. SUELIP AJ: On 29 July 2020, the accused was indicted on two counts of sexual penetration pursuant to section 229A (1)(3) of the Criminal Code. It is alleged he committed the offence on 18 May 2019 at Vunakalkalulu Village, Gazelle District, East New Britain Province. He denied the charges which resulted in a trial being conducted on 17 August 2020.

2. This is now my ruling on verdict.

Allegations

3. The State alleges that on 18 May 2019 at around 10:30am, the accused was with the complainant, Winifred Inamete at his house at Vunakalkalulu village, Gazelle District, East New Britain Province. The complainant is his biological daughter, and she was 14 years old at that time.

4. The State alleges that on that date, time, and place, he got home after getting intoxicated. He then told the complainant to go inside the room and remove the mattresses. When the complainant went inside to sweep, he followed her inside and locked the door. He then ordered the complainant to remove her clothes and he sexually penetrated her vagina with his penis. After that, he licked the complainant’s private part, and then slept on top of her and sexually penetrated her vagina with his penis the second time.

5. The accused then sat on a chair and fell asleep. That was when the complainant opened the door and ran out. She later reported the incident to her mother, and they went and laid a complaint with the police. Thereafter, they took the complainant to the hospital for medical examination.

6. The State alleges that the actions of the accused contravened section 229A (1)(3) of the Criminal Code and charges him for two counts of sexual penetration.

The offence

7. Section 229A(1) & (3) of the Criminal Code provides:

(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 Subsection (2) and (3), imprisonment for a term not exceeding 25 years.

(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.

8. Section 6 (a) of the Criminal Code Act defines sexual penetration to be the introduction, to any extent, by a person of his penis into the vagina, anus or mouth of another person.

9. Corroboration is not required in proving this offence according to Section 229H of the Criminal Code which provides:

SECTION 229H – CORROBORATION NOT REQUIRED.

On a charge of an offence against any provision of this Division, a person may be found guilty on the uncorroborated testimony of one witness, and a Judge shall not instruct himself or herself that it is unsafe to find the accused guilty in the absence of corroboration.

10. The elements for the State to prove beyond reasonable doubt are:

(a) a person (accused)
(b) sexually penetrates (on two occasions)
(c) a child under 16 years old
(d) where there is a relationship of trust, authority or dependency

Issues

11. The issues are:

(i) whether the accused sexually penetrated his daughter?
(ii) how old was his daughter?

(iii) whether there exists a relationship of trust, authority or dependency between the accused and his daughter?

Evidence by consent

12. At the start of the trial, the State, with consent of the accused, tendered into evidence the following documents: -

Document Exhibit

(i) Statement of the Corroborator Senior Constable

Paul Bonio dated 28/11/2019 S1

(ii) Statement of the Arresting Officer, Policewoman

First Constable Rachael Hakoi dated 28/11/2019 S2

(iii) Copy of Clinic Book showing the date of Birth for

Winifred Inamete S3

(iv) Family Tree Sketch S4

(v) Record of Interview of Accused (Pidgin version)

dated 28/11/2019 S5

(vi) Record of Interview of Accused (English version)

dated 28/11/2019 S5

7. Medical Report dated 19/06/19 S6

Summary of the State evidence

13. The State’s first witness is Winifred Inamete and she is the complainant in this case. She gave sworn evidence in Court and said she is from Vunakalkalulu. She said the accused and Georgina Pakur are her parents, and she is the second born in a family of 6 siblings. She said she was 14 years old on the date of the offence. She said that on the morning of that day, her mother was at the hospital with her two other siblings and she was with her younger brother back at the house.

14. She said that the accused came home drunk, kicked the door and ordered her to remove the mattress out into the sunlight. She said she went into the house to sweep when he followed and told her to remove her clothes. She said he also removed his clothes and slept on top of her and pushed his penis into her vagina. She said she saw blood flowing from her vagina. She said he then licked her vagina, sucked her breast, and sexually penetrated her again. She said after that, he sat on a chair and dozed to sleep. She said that was when she went outside of the house. In the afternoon she said she told her mother about what her father did to her. She says that was her first sexual intercourse encounter.

15. In cross examination, she maintained her story. She was asked about one, Carlus and she said he lives at Vunakalkalulu and the distance from her house to where Carlus lives is about the same distance from the Kokopo Court house to KCentral store. She was asked if the reason why the accused was upset and assaulted her then was because he had found out that she had sexual intercourse with Carlus and she denied it. She also denied fabricating this accusation against the accused to protect herself and save Carlus, her boyfriend. She further denied telling her younger brother about what had happened because it was a bad thing.

16. In re-examination, she was asked why she was beaten up. She replied it must be because the accused had a hidden motive to sleep with her when she refused to obey his instruction for her to remove her clothes.

17. When queried by the Court as to who Carlus was, she said he was a relative as their grandmothers are sisters. She said Carlus was her boyfriend, but she has never slept with him.

18. The State’s second witness is Georgina Pagur. She is the victim’s mother and the wife of the accused. Her evidence is that on the date of the alleged offence, in the morning, she was at the hospital with her three other children. She said she returned home between 11am and 2pm, and found Winifred at the house with her small brother Raphael. Upon her arrival, she said the complainant told her that the accused did something bad to her. She said the complainant told her that he had raped her. The mother said she did not feel good and so, she got the complainant and went to her mother’s house and thereafter, they went to the police and put a report that night at around 9pm. Then on Sunday morning she said she took the complainant to the hospital.

19. In cross examination, when asked if that was the story, she heard from her daughter but never saw what happened, the mother said “yes”. She was asked about her daughter’s date of birth and she said Winifred was born on 15/11/2004. She denied if she fabricated the story and she says the daughter would not lie.

20. When the Court enquired if the daughter is a liar, the witness said the complainant does not lie and will not cry if she was telling the truth. When asked by the Court if the daughter had a boyfriend, she denied her daughter had a boyfriend.

21. The State’s last witness is Dr. Philip Wapi, an expert witness, who specializes in gynecology and obstetrics. He had conducted the medical examination on the complainant. His findings are consistent with sexual penetration where the bruises were a result of force or trauma rubbing against the vagina wall. He admitted there was no presence of blood or spermatozoa because the victim may have cleaned herself or washed. He said, however, that the finding is normal for victims who present themselves for medical examination a few days after the incident when the healing process had taken place.

22. He further said that one other major factor of his findings was the hymen not being present which he says could show sexual penetration or may be the result of the victim doing sporting exercises such as splitting.

23. In cross examination, the doctor maintained his explanation and said the injuries may have been caused by trauma or force rubbed against the vaginal wall. He said it is consistent with sexual penetration but does not rule out other causes such as stretching.

Summary of Defence evidence

24. The accused was the only witness in his defence and denied committing the offence. His evidence was essentially one of general denial and he shifted the blame on Carlus whom he said slept with his daughter. The accused said that on the previous night (Friday night), he had been out drinking until daybreak. He said when he went home, he found his daughter and his younger son. He said he asked his children for their mother and was told that she had taken the other kids to the hospital. He then told the complainant to go inside and take the mattresses out. The complainant went in, and he followed her but he did not lock the door. He then said he asked the complainant if she had sexual intercourse with Carlus. He said he assaulted his daughter and her laplap fell. Thereafter, he said he went and sat on a chair and went to sleep.

25. When asked in cross examination if he remembered your daughter’s date of birth, he replied he does not know. He then said that he was told by one of his drinking mates from the village that Carlus had sexual intercourse his daughter, Winifred. He was asked where his drinking mate, Munulei is from, and he responded that the mate is from and lives in the same village. When asked why the accused did not get his mate to testify on his behalf in Court, he said he was in custody and could not contact his mate. When asked if he sexually penetrated the complainant two times, he denied such act on both occasions.

Analysis of the evidence

26. The accused is the complainant’s biological father. The complainant is his second eldest daughter. The evidence from his daughter is a recount of what happened on the morning of 18 May 2019. Her mother then told the Court what the daughter told her that afternoon about being raped by the father. There is no reason for disbelieving both witnesses. I have observed the demeanour of both witnesses and they appear to be truthful witnesses in giving their evidence in Court. In addition, the evidence from the complainant and her mother makes a lot of sense and is logical. (See State v Cosmos Kutau Kitawal & Anor (No. 1) (2002) N2245).

27. It is not easy for any family members to lay allegations of this nature against the father because he is the head of the family, and such allegations will have a very negative impact on the immediate family relationship. It could destroy any family. I see no reason why the complainant would lie about what the father did to her, and she is old enough to know of the consequences if she lied.

28. I have also considered the insinuation made by the accused that his daughter lied to cover up her relationship with Carlus, who is also a relative. However, no one else gave evidence to support the accused. During his testimony, the accused said his drinking mate, Munulei told him that his daughter slept with Carlus the night before. There is no evidence from Munulei to back up this story. This story is hearsay.

29. Further, the doctor explained in his report that the complainant’s injuries may have been caused by trauma or force rubbed against the vaginal wall. He said it is consistent with sexual penetration but does not rule out other causes such as stretching. There is no other report apart from this to either support or dispute the doctor’s findings and explanations.

30. As it is, all evidence put the accused at the scene where the alleged offence was committed. In the Record of Interview, the accused had generally denied he committed the offence two times. He does not say he was elsewhere at the material time. No one else gave evidence to support his denial in committing the offence or backing up the story that he assaulted his daughter because he heard from one of his drinking mates that his daughter slept with Carlus who is a relative.

Finding of facts

31. Based on the analysis of evidence, I find that the accused sexually penetrated his daughter two times. The first time was when he ordered his daughter to remove her clothes and he sexually penetrated her vagina with his penis. After that, he licked his daughter’s private part, and then slept on top of her and sexually penetrated her vagina with his penis the second time. I also find that his daughter was about 14 years old at the time the accused committed the offence, not once but twice. There is no requirement for the complainant’s testimony to be corroborated in proving this offence.

32. Further, I find there existed a relationship of trust, authority, and dependency between the accused, as a father and his biological daughter, and the accused breached that relationship.

Verdict

33. The accused was charged on two counts of engaging in an act of sexual penetration with a child contrary to section 229A(1)(3) of the Criminal Code, and I am satisfied beyond reasonable doubt that the State has proven each element of the offence.

34. I find the accused guilty of both counts as charged.

________________________________________________________________
Public Prosecutor: Lawyers for State
Public Solicitor: Lawyers for Accused