The State v Francis Angosiwen (No 1) (2004) N2669

• Jurisdiction: Papua New Guinea
• Citation: (2004) N2669
• Date: 18 June 2004
• Court: National Court
• Year: 2004

Full Title: The State v Francis Angosiwen (No 1) (2004) N2669

National Court: Kandakasi J

Judgment Delivered: 18 June 2004

1 CRIMINAL LAW—PRACTICE AND PROCEDURE—Application to question prosecutrix on past sexual activities—Application not in accordance with prescribed procedure—Application declined—Effect of—Same effect as failure to give notice of alibi and failure to comply with rule in Browne v Dunn—s37H of Evidence Act.

2 CRIMINAL LAW—Verdict—Incest with biological daughter by father—Medical evidence confirming sexual penetration—No credible evidence of victim being sexually penetrated by a different person—In consistency in accused evidence—Accused evidence found incredible—Guilty verdict returned—s223 of Criminal Code and s37H of Evidence Act.

3 SCR No 1 of 1980; Re s22A(b) of Police Offences Act (Papua); Biyang v Liri Haro [1981] PNGLR 28, Application by John Mua Nilkare [1998] PNGLR 472, Rabaul Shipping Ltd v Rita Ruru (2000) N2022, Thomas Kaidiman v PNG Electricity Commission [2002] PNGLR 373, Lepanding Singut v Kelly Kinamun (2003) N2499, The State v Peter Malihombu (2003) N2365, The State v Kevin Anis [2003] PNGLR 344, The State v Onjawe Tunamai [2000] PNGLR 234, Jimmy Ono v The State (2002) SC698, The State v Eki Kondi (No 1) (2004) N2542, The State v Cosmos Kutau Kitawal (No 1) (2002) N2245, The State v Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48, Garitau Bonu and Rosanna Bonu v The State (1997) SC528, Paulus Pawa v The State [1981] PNGLR 498, The State v Tauvaru Avaka (2000) N2024, Gibson Gunure Ohizave v The State (1998) SC595, John Jaminan v The State (No 2) [1983] PNGLR 318, The State v Luke Sitban (No 1) (2004) N2572, The State v Marety Ame Gaidi (No 1) (2002) N2256, Browne v Dunn (1893) 6 R 67 (HL) referred to

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Kandakasi J: You pleaded not guilty to one charge of incest with your biological daughter on 15 August 2000 at your village, Tauneges, here in the East Sepik Province. The State therefore, called two witnesses, the victim (named) and Kun Kumbau her maternal uncle in a bid to establish the charge against you. In your, defence, you took the stand and gave a sworn testimony and did not call any other person to support you.

In addition to the sworn oral testimony, the State also admitted into evidence, your record of interview (exhibits "A1" and "A2") and a medical report dated 22nd September 2000 (exhibit "C").

The Offence and its Elements

S223 of the Criminal Code as amended creates and prescribes the penalty for the offence of incest. The provision reads:

"223. Incest.

(1) A person who engages in an act of sexual penetration with a close blood relative is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.

(2) For the purposes of this section, a close blood relative means a parent, son, daughter, sibling (including a half–brother or half–sister), grandparent, grandchild, aunt, uncle, niece, nephew or first cousin, being such a family member from birth and not from marriage or adoption.

(3) No person shall be found guilty of an offence under this section if, at the time the act of sexual penetration occurred, he was under restraint, duress or fear of the other person engaged in the act."

To secure a conviction under this section, the State must establish on the required standard of prove, beyond any reasonable doubt the following elements (See Greville–Smith J, at page 34, in SCR No 1 of 1980; Re s22A(b) of Police Offences Act (Papua); Biyang v Liri Haro [1981] PNGLR 28 and The State v Ben Noel (2002) N2253.):

1. A person who;

2. engages in sexual penetration; and

3. with a close blood relative (as defined in subsection (2)).

From the outset therefore, the State has the obligation to prove each of these elements beyond any reasonable doubt. The question then is, has the State proved all of the elements of the charge of incest against you beyond any reasonable doubt?

Only on the evidence the parties produced before this Court, can the Court decide, whether the State discharged its obligation. Accordingly, I turn to a consideration of the evidence before the Court.

The Evidence

In turning to the evidence, I note that a number of important facts are not in issue. The first is the fact that the victim is your biological daughter. Next, she underwent a medical examination 48 hours later. That examination included an examination of her vagina, which revealed a normal vulva, slight crack on right perineum, torn hymen and normal vaginal discharge. On these findings, the medical evidence concludes that, the victim was sexually penetrated.

Another fact not in issue is the fact that, you abandoned, the victim and her mother and another child for ten years. The mother remarried as a consequence of which the victim and her sibling stayed and grew up with their maternal uncles. On your return, you reclaimed the children and the uncles gave them to you without any drama. The victim lived with you until the day of the alleged offence.

There is also no dispute that, on the day of the offence, you took the victim and other children to the garden. Later that day, the victim ran away from you to her maternal uncles claiming you forcefully had sexual intercourse with her. You followed her sometime later and an argument and a tussle took place between you and the victim's uncles, where they disarmed you.

What is in dispute is whether you sexually attacked the victim and penetrated her sexually. This requires a close examination of what the witnesses have said in their testimonies, which includes your own. I start the examination with the prosecution's evidence first.

(a) Victim's Evidence

She recalls, going to the garden with you and her small brother. At the garden area, you cleared the land for gardening. Thereafter, you went to the house and returned with an axe. You used the axe to cut down a sago palm tree to look for sago crabs. After that, you and the children went and collected some coconuts. At that stage, she says you told her to go and look for birds eggs. She complied and went in the direction you had indicated, with you following her. She could not find any eggs so she asked you as to where could the eggs be. You said no, then threatened her with a knife, and told her to take her trousers off and she complied out of fear of being hurt, while you removed yours and thereafter proceeded to have sexual intercourse with her. After you finished having sex with her, you warned her not to report the incident to anyone, threatening to kill her if she did. You then forced her to go and take a bath and she did as you threatened to hurt her with the knife.

After the victim had taken her bath, you returned to the house. Later in the evening that day, she tricked you by saying she was going to the toilet and she ran away to her uncles, and reported to them what you did to her. Soon you followed her, got to her uncles house with a knife, and tried to cut her and her uncles. However, the uncles fought with you and eventually overpowered you and disarmed you. You managed to escape to your house.

The next day, the uncles took the victim to the nearest police station where the incident was reported to police. The following day they took her to the Maprik Health Centre for a medical examination.

Under cross–examination, she admitted to knowing a Maxson Baire, who also comes from Tauneges and is a relative. However, when asked about her knowledge of a meeting concerning that person, she said no. Thereafter, you made an application under s37H of the Evidence Act for leave to cross–examine the victim about her past...