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State v Babia (No 1) [2023] PGNC 419; N10570 (10 November 2023)

N10570

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1439 OF 2022

THE STATE

V

DARREN BABIA
(No 1)

Vanimo: Miviri J
2023: 09^th & 10^th November

CRIMINAL LAW – PRACTICE AND PROCEDURE – S229A (1)(2)(3) CCA sexual penetration under 12 years old – 6 years old victim – Denial at Trial – Victim Sworn Evidence – Serious Sexual Allegation By Six (6) year Old Child – Against Accused Uncle – No Other Adult Male Person with Victim At Relevant Period In Issue – One Incident Charge One Prior No Charged – Victims Account Verified by Mother & Medical Report – Denial In Record Of Interview – No Motive Evidence of Victim – No Reasonable Doubt – Guilty of sexual penetration of child Under 12 years – injuries to Anus Consistent – Remanded.

Facts

Prisoner took the complainant relative down to a secluded area where he told him to remove his trousers on the pretext to excrete, laid him on the ground inserted his penis into victim’s anus and had intercourse with him. He was 6 years old son of his cousin who sustained injuries as a result to his anus. Report made to the mother who took a medical report leading to the arrest of Accused.

Held
Victim 6-year-old child recent complaint to Mother corroborated independently by medical report. No other adult male person with Victim at relevant time, assertion made against Accused. No motive to make up story against relative. Penetration of child under 12, guilty as indicted.

Cases Cited:
Kandakason v The State [1998] PGSC 20; SC558
Waranaka v Dusava [2009] PGSC 11; SC980
Pawa v The State [1981] PNGLR 498

Counsel:
F. Popeu, for the State
P. Moses & O. Himore, for the Defendant

VERDICT

10th November 2023

1. MIVIRI, J: This is the verdict after trial of Darren Babia of Lido, Vanimo Green, West Sepik Province who was indicted pursuant to section 229A (1), (2), (3) of the Criminal Code Act of sexual penetration of a minor under 12 years old.
   
2. It has been pleaded that at that time there was breach of trust authority and dependency because Darren Babia was uncle of the Complainant Lasa Lian Duni. This is an undisputed fact which is acknowledged by the Accused that the father of the complainant is related to him from his mother’s side. Accused is referred to as Adadi. As it will dawn from the evidence on both sides it is undisputed that Lasa Lian Duni was sexually penetrated anally. But the question posed is who did this against the young boy.
   
3. Lasa Lian Duni is six years old child at the time of the allegation. But going onto seven years when he gave evidence. Prompted by the Court he stated that he believed in God and that it was wrong to tell lies which was against God. It was a serious matter to tell the truth. The Court in this way administered the oath under which he gave his evidence to the Court. Further pursuant to Evidence Act 1975 as amended, section 37B (1) (2) Special Measures Order was issued with the erection of a screen, and the father of the complainant was allowed to be with him in court as he gave evidence. All other persons not connected with case were ordered out of the Courtroom when he gave his evidence.
   
4. Originally from Lido Village he lives there with his parents. Presently he is in prep at the primary school there. That last year 2022 he was not in school. But recalls what happened to him. I was playing and the Accused Adadi alias Darren Babia came and said we go and check Kaka Nigel at his house. He told lies to me and said you go and excrete where he told me to lie down, and he put his bol into my anus. This was at Wono Beach at Lido. He pointed out the Accused in the dock and said his name was Adadi who was his uncle. He was not walking straight when he went home.
   
5. He was firm and uncontradicted that Adadi alias the Accused Darren Babia came when it was light and took him out supposedly to the house of one Nigel. But along the way at Wono Beach, under the pretext of excreting, he told complainant to take his shorts off. The Accused told him to eat his “bol”, then laid him down on the grass and inserted his “bol” into his anus. After which both came back to the house where both saw the mother of the complainant Jenny Duni.
   
6. Jenny Duni mother of the complainant gave evidence on oath. On that day 30^th July 2022, she was looking for her son the complainant after leaving him with his little sister to go and get disposable nappies for her. Upon returning she did not see him so was looking for him. It was three times altogether that she went around in search of him. She was worried about him as it was election period, but saw him coming with Adadi alias Darren Babia. She asked him where he was, the accused replied that they had gone together to Kaka Nigel’s house, but he was not there so they came back. He left and I sent my son the complainant to wash. He continued to walk, and I realized that something was wrong.
   
7. I asked, Mama want to find out where were you? He said Adadi carried him, and they went to check for Nigel. I did not think that the incident had happened. I asked him about the incident of the 11^th July when he was missing underneath the campaign house of the candidate. On the night I found him he said, he and Darren had gone to sleep in a room under that house. I told him if you are hiding something you can tell that to me. I could tell that there was something not right with you. She asked he said Darren told him to eat his bol. Why you follow him to where the big boys sleep. He was ashamed he did not tell as there were other children. Out of anger I slapped him. His father came together with Darren his uncle. In the morning I wanted him to tell me about the second incident on Saturday afternoon.
   
8. I tried to lift him up and he said Mama “isi”. He said his bum was paining. I took him up to the room with his father, and pulled his trousers down checked his bum. It was swollen on either side of his bum. He told me at Wono Beach he tricked me to excrete. He told me to eat his bol and sleep on the grass and he put his bol into my anus. I felt pain, and he told me, “Stap isi” and I will release, (ejaculate). I told him Adadi I feel like excreting, and he said, “stap isi tasol” after this we came to the house. In the morning on the 31^st I took him to the Vanimo General Hospital to be checked there. My son is 6 years old and going to 7 years now. My other child is 7 to 8 months old. I gave birth to Lasa on the 15^th October 2015. She identified the Accused as Adadi, alias Darren Babia a relative. Essentially this was her evidence.
   
9. Noah Tanabo is the Health Extension officer who medically examined and wrote the details in Exhibit P2, the clinic book that belonged to the complainant. He identified his name, signature, and the details he entered in that book after his examination. The complainant was the 6-year-old patient that he examined and made a report off at the Vanimo General Hospital Outpatient Accident and Emergency. I attended to him because he was brought in on allegations of sexual assault on the 31^st July 2022. After I had examined him, I referred him to a specialist medical officer Dr Alua. In my finding, there was slight bruises swelling about 0.3cm x 0.3cm at 11.00’ clock. There was no pus, and the sphincter was weak. It was not normal. I collected specimens for sperm but came out without. I gave him medicine and referred him to the Doctor.
   
10. Accused gave evidence denying the allegations, which was the same evidence in Exhibit P1 Pidgin original record of interview conducted on the 30^th September 2022 and P1(a) the English translation of that record of interview. There was no admission. Accused denied the allegations. He endorsed and signed them on all pages. He did not explain as to who may have committed the act upon the complainant admitting that he was the only person with the complainant after which the allegation arose. He stated that it may have been before he got him to go with him to Kaka Nigel. Or after he had left him.
    
11. These were assertions that he made without any evidence that backed him to verify those assertions. But it was not for the State because the Complainant was not walking normal after being with him and it continued the next day prompting the mother to take him to the Vanimo General Hospital who confirmed the injuries to the anus consistent with the story that was given by the complainant to the mother as recounted in court. And the injuries were right around the sphincter area of the anus. Obviously, evidence of intent to penetrate, and in my view penetration of his anus. Because there was no evidence that he was suffering from dysentery or constipation.
    
12. This is a child of tender years not fluent in sex or sexual behaviour and that is clear from his use of the pidgin term, “bol” referring to the penis of the accused penetrating his anus. It is by itself in my view the truth. Because I observed this child give evidence in the witness box. He was telling the truth even to the extent of saying that the Accused told me to eat his “bol” clearly recounting details of the accused forcing him to suck and to lick his penis. That is only known to an adult as opposed to a young tender child of 6 years at time of the offence, now 7 years at the time he gave evidence. He stood to almost his shoulders leveling out with his head just coming out onto the witness box. A very young child who is innocent and would not speak as he did against his uncle, brother of his father in that way. It was the truth and he told what it was to the best he could as a child. I have no doubts to hold his evidence as the truth that unfolded before his young mind on that day.
    
13. His evidence is not by itself but corroborated verified by the medical examination a day after by HEO Noah Tanabo. There is no reason apparent or identifiable to doubt the veracity of his evidence. Accompanied by the recent complaint to his mother it makes every sense. Because the only adult male person in the immediate precincts at the relevant time leading to the assault is none other than the Accused. He admits that fact closing out any possibility to any other person other than himself, Adadi alias Darren Babia who committed and engaged in sexual penetration of Lasa Lian Duni who was 6 years old then, 30^th July 2022, a child under 12 years old. And he was the child’s uncle and who had taken him out because of that trust and dependency, relationship. Which dependency and trust he abused with the commission of the offence. There is logic and consistency in the evidence of the State witnesses which I prefer over and above his evidence following Kandakason v The State [1998] PGSC 20; SC558 (7 July 1998); and Waranaka v Dusava [2009] PGSC 11; SC980 (8 July 2009).
    
14. There cannot be any other hypothesis other than his guilt of the offence he has been charged pursuant to section 229A (1), (2), and (3) of the Criminal Code Act and I so return that verdict upon him. There is no other hypothesis other than his guilt: Pawa v The State [1981] PNGLR 498.
    
15. I find him guilty of sexual penetration of a minor under 12 as charged on the Indictment dated the 09^th November 2023 pursuant to 229A (1), (2), and (3) of the Criminal Code Act. That is the verdict of the Court against the accused.
    

Orders Accordingly

__________________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for the Defendant