Luke Tolo v The State

• Jurisdiction: Papua New Guinea
• Judge: Salika CJ,Kassman,Anis JJ
• Judgment Date: 31 March 2023
• Neutral Citation: SC2371
• Citation: SC2371, 2023-03-31
• Counsel: Mr N Hukula, for the Appellant,Mr D Kuvi, for the Respondent
• Docket Number: SCRA NO. 72 OF 2017
• Hearing Date: 27 March 2023,31 March 2023
• Court: Supreme Court

SC2371

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA NO. 72 OF 2017

Between:

Luke Tolo

Appellant

v.

The State

Respondent

Waigani: Salika CJ; Kassman and Anis JJ

2023: 27^th & 31^st March

PRACTICE AND PROCEDURE — Criminal Law — Appeal against conviction — Charge of sexual penetration of a child under 16 years — An appeal against conviction — a reasonable doubt must be established to overturn a decision of the National Court.

Cases Cited:

John Beng v The State (1977) PNGLR 115

Glen Otto Kapahi v The State (2002) SC1023

John Karo v The State (2018) SC1649

David v The state (2006) SC881

Peter Waranaka v Gabriel Dusava (2009) SC980

Counsel:

Mr N Hukula, for the Appellant

Mr D Kuvi, for the Respondent

Public Solicitor: Lawyers for the Appellant

Public Prosecutor: Lawyers for the Respondent

31 March, 2023

1. BY THE COURT: INTRODUCTION: Luke Tolo appeals the decision of the National Court given on 27 November 2017 against conviction. On 28 October 2017 he was charged with one count of sexual penetration of a child under the age of 16 years under Section 229 A (i) of the Criminal Code Act.

GROUNDS OF APPEAL

2. The appellant raised five grounds of appeal. They are:

1.1 The trial judge failed to find that the State had not proven all the elements of the charges beyond a reasonable doubt;

1.2 The trial judge erred in finding him guilty when there was no evidence to justify and show that the appellant had the intention to commit the offence;

1.3 The trial judge erred in noting there was a difference in the date of the alleged offence in that the appellant says it was on Tuesday 10/05/16 around 1.30pm and 2.30 pm when the victim said it was on Monday 9/10/16;

1.4 The trial judge fell into error in noting that he had given food that he had taken for the cleaner lady which he gave to the victim;

1.5 The trial judge failed to note that the complainant had previous records of mobile theft.

3. Grounds 1.3) and 1.4) were abandoned leaving three grounds.

THE APPELLANT'S SUBMISSIONS

4. The appellant submitted through his counsel that the two elements of the charge under s. 229 A (1) of the Criminal Code are:

1. The accused engaged in an act of sexual penetration with another person; and

2. The other person is a child under the age of 16 years.

5. He submitted that he had no issue with the age of the victim who was a 12 year male child.

6. However, he submitted that the first element of the offence had not been proven beyond reasonable doubt.

7. The main thrust of his submission was that the learned trial judge erred when he stated that the evidence of the medical report was “much, much stronger”. He submitted that the learned trial judge erred when he failed to analyze the Health Extension Officer's evidence which was tendered into evidence in the form of a medical report in that the HEO's report was not an objective opinion but a subjective one and as such the conviction on that evidence was not safe.

8. He further submitted that the HEO's report was not a report of a neutral person but that it was a biased one. He submitted that the HEO had formed an opinion that there was sexual penetration rather than from other causes such as constipation or diarrhea. He submitted that the HEO's evidence was overly subjective and biased and the learned trial judge ought to have treated that evidence with much caution. He further submitted that the medical report was inconclusive.

9. The appellant submitted that the judge's assessment of the characters of the victim and the appellant was confusing and did not clearly point out whose evidence he accepted as fact.

10. Moreover, the appellant submitted that the learned trial judge did not give proper reasons for his decision to convict him.

11. Finally, he submitted that the evidence showed that the victim had a propensity to steal and that the learned trial judge had failed to address this key piece of evidence which went to the crux of the issues on trial.

SUBMISSIONS OF THE RESPONDENT

12. The Respondent through counsel submitted that the victim had complained of sexual penetration of his anus by the appellant and that the evidence of Olive Ephraim that injuries seen on the victim's anus was consistent with sexual penetration.

13. The Respondent further submitted that the real issue was whether or not there was sexual penetration of the victim through the victim's anus. The Respondent submitted that the learned trial judge considered the medical report which confirmed sexual penetration.

14. The Respondent submitted that the learned trial judge preferred the evidence of the State over that of the appellant.

THE LAW ON CRIMINAL APPEALS

15. Section 22 of the Supreme Court Act governs appeals to the Supreme Court from the National Court on conviction and sentence. It reads:

“22. CRIMINAL APPEALS.

A person convicted by the National Court may appeal to the Supreme Court–

(a) against his conviction, on any ground that involves a question of law alone; and

(b) against his conviction, on a question of mixed fact and law; and

(c) with the leave of the Supreme Court, or on the certificate of the National Court that it is a fit case for appeal, against his conviction on any ground of appeal–

(i) that involves a question of fact alone; or

(ii) that appears to the Supreme Court to be a sufficient ground of appeal; and

(d) with the leave of the Supreme Court, against the sentence passed on his conviction, unless the sentence is one fixed by law.”

16. All appeals against conviction may be on a point of law only or mixed points of law and fact. This is an appeal against conviction and is on mixed law and fact and as such no leave is required. See s. 22 of Supreme Court Act. The Supreme Court in John Beng v The State (1977) PNGLR 115 considered what an appellant needs to demonstrate to the Supreme Court in order to succeed and that is “on an appeal against conviction, the Supreme Court must be satisfied that there is in all circumstances, a reasonable doubt as to the safeness or satisfaction of the verdict before the appeal can be allowed”.

17. The appellant was charged under s. 229 A (1) of the Criminal Code Act. The elements of the offence under that provision are:

a) A person;

b) On a date;

c) At a place;

d) Sexually penetrated;

e) A child;

f) Under the age of 16 years.

18. The State had the burden of proof to satisfy the learned trial judge beyond reasonable doubt of each of the above-named elements of the offence. Except for the element of sexual penetration, all the other elements of the offence were not contested, thus were proved beyond reasonable doubt.

DEALING WITH THE REMAINING GROUNDS OF APPEAL

19. The remaining grounds of appeal are:

Ground 1.1.

The trial judge failed to find that the State had proven all the elements of the charge beyond reasonable doubt.

As alluded to in paragraphs 16 and 17 of this decision, except for the element of sexual penetration, all the other elements of the charge were not disputed. This means all the other elements of the offence were proved beyond reasonable doubt.

20. The element of sexual penetration was the only issue at the trial.

Ground 1.2.

The trial judge erred in finding me guilty when there was no evidence to justify and show that I had an intention to commit the offence. The trial judge fell...