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State v Guise (No 1) [2024] PGNC 288; N10956 (24 July 2024)

N10956

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1468 OF 2023

THE STATE

V

JOHN GUISE
(NO 1)

Minj: Miviri J
2024 : 19^th 22^nd & 24^th July

CRIMINAL LAW – PRACTICE AND PROCEDURE – Sexual Penetration S229A(1)(2) CCA – Trial – Denial – Victim 10 years old – Sexual Penetration – Recent Complaint Father – Blood and Injury to Vagina Witness – Accused Relative and Known – Prisoner Married Two Wives – Immediate Relative – Violation of Child very Tender Age – 50 Year Old Man 10 year Old Female – Consistent with Penetration attempted – State Evidence Preferred – Defence Evidence Rejected Incredible Unbelievable – Sexual Penetration – 10 year old – Guilty Section 229A (1)(2) CCA.

Facts
Prisoner sexually penetrated the 10-year-old girl as she went into nearby bushes to relieve herself. He penetrated her vagina with his penis and then gave her K1.00. The father was alerted took the daughter saw the bleeding and the injuries on the vagina and confronted the accused leading to his arrest.

Held
Trial
Denial
Mistaken Identity
Accused known
Relative
Identification firm
Sexual Penetration
10-year-old child.
State evidence preferred
Incredible evidence of Accused
Broad day light identification
Common Sense & Logic
Guilty of Section 229A (1) (2) CCA.

Cases Cited:
Balbal v State [2007] PGSC 16; SC860 (22 February 2007)
Kandakason v The State [1998] PGSC 20; SC558 (7 July 1998)
Waranaka v Dusava [2009] PGSC 11; SC980 (8 July 2009)
Beng v The State [1977] PNGLR 115

Counsel:
P. Tengdui, for the State
D. Pepson, for the Defendant

VERDICT

24^th July 2024

1. MIVIRI J: This is the verdict after trial of John Guise who pleaded not guilty to sexual penetration of a 10-year-old girl Andy Daka under section 229A (1) (2) of the Criminal Code Act.
   
2. The indictment charged that; “He on the 16^th day of September 2022 at Kondopina Block engaged in an act of sexual penetration with one Andy Daka, a child under the age of 12 years old namely that she was 10 years old by inserting his penis into her vagina contrary to section 229A (1) (2) of the Criminal Code Act.”
   
3. Which section 229A Sexual Penetration was in the following terms:
   

“(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.

(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.

4. The facts alleged on arraignment were that on the 16^th September 2022 around 3.00pm Andy Daka, 10 years old female child from Kondopina Block in the Dei Council area of Western Highlands Province had left the field where independence celebration was held. She was going back home. Along the way she met her mother and told her that she wanted to go to the toilet. The mother said she would wait for her. The accused John Guise who was walking behind the child heard this, and as the child reached her block, the Accused grabbed her and pulled her three blocks back, away into his coffee garden. There he gave her K1.00 then removed her clothes, then his trousers and inserted his penis into her vagina and had sexual intercourse with her.
   
5. When the child felt pain and tried to call out, he covered her mouth and continued until he satisfied himself and then he told her to go to the house whilst he remained in the coffee garden. The child came out of the coffee garden and was met by her father who was looking for her. And he noticed her bleeding from her private part down her legs. He took her to the hospital at Kimil. Then the matter was reported to the Police at Banz. Resulting in the arrest of the Accused now in court as a result.
   
6. He denied the allegation and so the State called the Nursing Officer who examined the child on the 17^th September 2022 a day after the allegation. He was Ringo Kula nursing officer who worked at the Kimil Health Centre under the Jiwaka Provincial Health Authority. A graduate of the Veifa Nursing School in the Central Province at the time of the examination of the complainant child Andy Daka, he had worked there for five (5) years when he examined her. She was carried in by the father as she could not walk of her own accord. And there was also her mother and relatives, including the village court Magistrate with the peace officers and relatives of the accused. At the time when he gave evidence he had worked now for seven (7) years. He was familiar with his work having delivered a number of women in labour. And also, other work as a nursing officer. On that day he examined the Andy Daka vaginally to confirm or deny if she had been raped. He put her on the bed and conducted the examination of her vagina. He saw there was sperm within. Including dried blood. There was tearing within, and the inside was inflamed and red. He concluded that it was done by a man as he attempted to penetrate her vagina with his penis. And there was rape committed. He made a report Exhibit P2 dated the 16^th September 2022 of that examination. He wrote, “In addition, there were sperm around the vaginal area, ...inflamed labia and scratched labia vulva.”
   
7. It is very strong independent corroboration of the account of the complainant child Andy Daka who is a 10-year-old child having been born on the 14^th June 2012 by the sworn evidence of her father Peter Kora. He testified that on that day Friday 16^th September 2022, there was a very big celebration for the Independence Day. He had come to look for his daughter Andy Daka after being alerted by his wife, mother of the child. He came to the place where the incident took place. She came out of the road coming out of his house. John Guise had already raped my daughter Andy Daka because when I saw her as she came out, she was not walking properly. So, I asked her, and she said John Guise gave me K1.00 and he raped me. She was not walking properly and crying at the same time and gave me the K1.00. The man raped me and gave me the K 1.00 coin. I carried her and took her to the house to confirm it. Her vagina was scratched and bleeding. I confirmed it was true, so we came to that person. Her mother was also there.
   
8. On Friday 16^th September 2022, there were many drunken men and there was no vehicle so next day 17^th September 2022 we went to the Hospital first and then to the police Station. He said his wife had seen the Accused so told me to go and look for the small girl. He sat in court as support personal for his daughter Andy Daka.
   
9. Andy Daka was next called to give evidence on oath. Which was after preliminary enquiry was conducted by the Court as to whether she understood that she was before the Court. And she was required to tell the truth. To which She affirmed that she believed in God that if she did not tell the truth She would be punished by God. She was a Catholic. So, on that basis She was sworn and gave her evidence on oath.
   
10. She recounted that on that day Friday 16^th September 2022 there was independence celebrations at Kondopina block. And she had come and wanted to go to the toilet to relieve herself. And she told her mother who said she will wait for her. And she went into the nearby bushes and was relieving herself when John Guise the Accused came from the back and held his hands over my mouth and took me away. He took me to nearby bushes where he removed my clothes, and he also removed his clothes and then pushed his penis into my vagina. I bled and was crying. He gave me K1.00 and told me not to tell anyone. I was wearing a blouse and skirt like now in court. He sexually penetrated me, and I felt pain, but I did not call out because he was covering my mouth. After he did this, I came out onto the road and met my father.
    
11. In cross examination it was suggested that because the person had come from the back, she did not see him, that he was John Guise. To which she maintained that she saw him. That he had come after her and dragged her into the bushes. She said there was no cross in the family, and she did not make up what she was telling the court.
    
12. John Guise gave sworn evidence in defence denying the offence in its entirety. He stood up in court whilst giving his evidence and stated that he did not touch the body of the Andy Daka. That he did not have sexual penetration of her as alleged by the State. That it was made up because his brother had contested against one Gip Michaela, and he won. That it was a conspiracy between the father Peter Kora and Gip Michaela to get back at him with the false allegation. But in the record of interview on the 17^th February 2023, he never told the police that the allegation were false because of the reasons he set out in his evidence on oath in defence.
    
13. He was going home, and his path crossed with the victim and mother. This is a fact that he agrees with the State. So, he was there and at the relevant time. The mother said she would wait for the daughter but did not. She went to where the father was at the celebrations and alerted him. He went back looking for the daughter and found her as she came out from the road of John Guise’s house. This evidence of the daughter together with the father which are both independently verified by the medical report that sets out the truth of the allegation: Balbal v State [2007] PGSC 16; SC860 (22 February 2007). The assertions of both is confirmed in all material particulars by the medical report and evidence given by Nursing Officer Ringo Kula.
    
14. I prefer their evidence over and above that of the Accused because his evidence does not correlate with common sense and logic. There is no consistency in his defence at all. He does not live up to the same level of credibility that is demonstrated by the Father and daughter. I will reject his evidence on that basis holding in law firm from Kandakason v The State [1998] PGSC 20; SC558 (7 July 1998); and, Waranaka v Dusava [2009] PGSC 11; SC980 (8 July 2009). He defies common sense and logic which is the test for the rejection of inconsistency in this regard. Accordingly, I reject his evidence in whole.
    
15. I therefore find as a fact that 10-year-old Andy Daka went in to relieve herself as she told her mother in the hearing of the Accused. It was not in the dark but on the road as they passed each other. There is no issue against the law set out in Beng v The State [1977] PNGLR 115. They are related and live adjacent to each other. All know each other and the sighting was not of a stranger but a relative, John Guise who agrees being in that location at that time. He had the opportunity and did commit the offence. He denies the allegations. He is alone without any evidence to advance his cause any further. There was opportunity because it was the mother who alerted the father to go and check for her. And sure, enough he found his daughter with the injuries that have been confirmed by the medical report obtained 17^th September 2022. There cannot be any doubts that John Guise committed sexual penetration of Andy Daka after he had taken her to his coffee garden. There he did what she says he did, sexually penetrate her vagina with his penis causing the injuries that were seen by the father and then by Nursing Officer on the 17^th September 2022. She was just ten (10) years old under twelve (12) years old.
    
16. The accused version does not live up to the truth. He is accused of a very serious allegation of sexual conduct directed at a young tender aged child of 10 years. Who is given, not fluent in sex and sexual conduct. But has told of that fact. She is not alone but is supported by her father with independent medical evidence confirming in all material particulars the crime. There is no other verdict open in law upon the indictment dated the 17^th July 2024 against John Guise of Kondopina Block Dei Council Western Highlands and that is that he on the 16^th day of September 2022 engaged in an act of sexual penetration of Andy Daka a child under the age of 12 years, namely that of 10 years by inserting his penis into her vagina. He is guilty as indicted.
    
17. I return a guilty verdict on the Indictment. He will be remanded to await sentence.
    

Ordered Accordingly.
__________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor : Lawyer for the Defendant