The State v Amos Jonathan (2009) N3764

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 22 October 2009
• Citation: (2009) N3764
• Docket Number: CR NO 457 0F 2009
• Court: National Court
• Year: 2009
• Judgement Number: N3764

Full Title: CR NO 457 0F 2009; The State v Amos Jonathan (2009) N3764

National Court: Cannings J

Judgment Delivered: 22 October 2009

N3764

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 457 0F 2009

THE STATE

V

AMOS JONATHAN

CANNINGS J

Bialla: 18, 19 May 2009

Kimbe: 20 May, 24 June, 22 October 2009

VERDICT

CRIMINAL LAW – trial – engaging in act of sexual penetration with child under age of 16 years, Criminal Code, Section 229A(1) – circumstances of aggravation, Criminal Code, Section 229A(3) – whether act of sexual penetration was engaged in – definition of “sexual penetration”, Criminal Code, Section 6 – relationship of trust, authority and dependency, Criminal Code, Section 6A(2)(c).

The accused, a mature aged man, was charged with an offence under Section 229A(1) of the Criminal Code: engaging in an act of sexual penetration with a child under the age of 16 years. The child, a girl, was four years old and the accused’s biological granddaughter and adopted daughter. Her age (less than 12) and the existing relationship of trust, authority and dependency between her and the accused were charged as circumstances of aggravation, and were undisputed facts. The accused pleaded not guilty. The complainant gave direct evidence that the accused had penetrated her and the remaining evidence was circumstantial. There was a medical report indicating sexual penetration. The accused gave sworn evidence denying that he had sexually penetrated the complainant and there were four other defence witnesses.

Held:

(1) The two elements of an offence under Section 229A(1) are that:

· the accused engaged in an act of sexual penetration with another person; and

· the other person was a child under the age of 16 years.

(2) “Sexual penetration” is defined by Section 6 of the Criminal Code to include the introduction, to any extent, by a person of his penis or an object or a part of his body into the vagina of another person.

(3) Here, the complainant’s oral testimony, corroborated by the evidence of the complainant’s grandmother and aunty, and the medical evidence (absence of hymen and other evidence of vaginal penetration) was sufficient to prove beyond reasonable doubt that the accused introduced his penis to some extent into the complainant’s vagina. The element of sexual penetration was proven.

(4) There being no dispute about the age of the child or the existing relationship of trust etc between the accused and her, the accused was found guilty in the circumstances of aggravation charged in the indictment.

Cases cited

The following cases are cited in the judgment:

Didei v The State [1990] PNGLR 458

Java Johnson Beraro v The State [1988-89] PNGLR 562

Paulus Pawa v The State [1981] PNGLR 498

Rolf Schubert v The State [1979] PNGLR 66

The State v Arnold Kulami (2009) N3632

The State v John Ritsi Kutetoa (2005) N2514

The State v John Saganu [1994] PNGLR 308

The State v John Warkuvo (2002) N2372

The State v Kewa Kai [1976] PNGLR 481

Tommy Morikawa v The State (2000) SC656

TRIAL

This was the trial of an accused charged with engaging in an act of sexual penetration with a child under the age of 16 years.

Counsel

A Kupmain, for the State

J Unido, for the accused

22 October, 2009

1. CANNINGS J: Amos Jonathan, the accused, is a man aged in his 40s who lives in the Bialla area of West New Britain. He is charged with an offence under Section 229A(1) of the Criminal Code: engaging in an act of sexual penetration with a child under the age of 16 years. The child, a girl called “J” – the complainant – was four years old at the time and is the accused’s granddaughter.

2. The State alleges that while J was staying with the accused at his house at the Hargy Mill residential compound at Bialla in early April 2008 he sexually penetrated her by introducing his penis into her vagina. J has been raised by the accused and his wife, Susan Koti. She regards them as her father and mother. They are her biological grandparents.

3. The accused has pleaded not guilty. He denies sexually penetrating the complainant.

ELEMENTS AND ISSUES

4. Section 229A(1) (sexual penetration of a child) of the Criminal Code states:

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

5. The two elements of an offence under Section 229A(1) are that:

· the accused engaged in an act of sexual penetration with another person; and

· the other person was a child under the aged of 16 years.

6. The indictment under which the accused has been charged alleges two circumstances of aggravation:

· the child was under the age of 12 years (a circumstance of aggravation under Section 229A(2)); and

· there was an existing relationship of trust, authority or dependency between the accused and the child (a circumstance of aggravation under Section 229A(3)).

7. The second element of the offence and the circumstances of aggravation are not contested by the defence. It is agreed that the complainant was four years old at the time and that a relationship of trust existed as the accused was her grandfather (a relationship of trust under Section 6A(2)(c)). The significance of these matters is that if the accused is convicted he will be liable to a maximum penalty of life imprisonment rather than a maximum – if there were no circumstances of aggravation – of 25 years.

8. The only issue is whether the accused engaged in an act of sexual penetration with the complainant. The State bears the onus of proving this beyond reasonable doubt. “Sexual penetration” is defined by Section 6 of the Criminal Code:

When the expression "sexual penetration" or "sexually penetrates" are used in the definition of an offence, the offence, so far as regards that element of it, is complete where there is—

(a) the introduction, to any extent, by a person of his penis into the vagina, anus or mouth of another person; or

(b) the introduction, to any extent, by a person of an object or a part of his or her body (other than the penis) into the vagina or anus of another person, other than in the course of a procedure carried out in good faith for medical or hygienic purposes.

9. The sort of penetration alleged in this case is covered by Section 6(a): the accused to some extent introduced (ie inserted) his penis into the complainant’s vagina. It is not necessary to prove complete penetration (The State v Arnold Kulami (2009) N3632).

DID THE ACCUSED INTRODUCE HIS PENIS INTO THE COMPLAINANT’S VAGINA?

10. Determination of this issue requires:

· a summary and consideration of the evidence for the State;

· a summary and consideration of the evidence for the defence;

· a preliminary assessment of the State’s case in light of the evidence for the defence;

· a summary and consideration of the defence counsel’s submissions;

· an assessment of the defence counsel’s submissions; and then

· a final determination of whether the accused did the act in question.

EVIDENCE FOR THE STATE

11. It consisted of:

· oral testimony of the HEO, James Managen, who examined the complainant, and the medical report and affidavit he prepared;

· oral testimony of the nursing sister, Oini Ume, who also examined the complainant;

· oral testimony of the complainant, J;

· oral testimony of J’s grandmother (and de facto mother) Susan Koti;

· oral testimony of J’s aunty, Luisa Huvi;

· the accused’s record of interview.

The HEO’s evidence

12. James Managen has been an HEO for 14 years and has been based at Bialla Health Centre for eight years. The complainant was brought in on 14 April 2008 for a medical examination as she had allegedly been sexually penetrated by her grandfather. He and Sister Oini Ume examined her and prepared a report, stating:

This child was allegedly sexually penetrated by her Bubu, taken for medical evidence and these are our findings:

1 Complaints: The child was taken for medical examinations and reporting following an allegation of vaginal penetration by her Bubu one week ago.

2 Specific questions: The child is febrile, had swelling and pains over the vagina and surrounding genital area but now reducing swelling and pains. The child did not get any medications or taken for other medical care since the incident.

3 Vaginal examinations:

(a) Healed scratches dark marks over the perineum tissues.

(b) Hymen is absent.

(c) Orifice is opened (may allow little finger to pass).

(d) No fresh lacerations or secretions or discharges.

4 Results of findings: The child’s vaginal covering is absent and the vaginal opening is fairly big not normal to such little girl, meaning that vaginal penetrations had taken place to the child. [sic]

13. In cross-examination Mr Managen denied that he told other people in Bialla about the medical examination. He told anybody who asked him that he would not divulge such confidential information.

The nursing sister’s evidence

14. Sister Oini Ume has 18 years experience as a nursing officer. She has been a qualified midwife for three years. She recalls the medical examination of the complainant, which was...