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

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 18 June 2004
• Citation: (2004) N2669
• Court: National Court
• Year: 2004
• Judgement Number: N2669

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 prosecutrixed 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 Brown 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 the Police Offences Act (Papua) [1981] PNGLR 28, See Application Pursuant to s155(4) by John Mua Nilkare (Unreported judgment delivered 5/04/97)SC536, Rabaul Shipping Limited v Rita Ruru (Unreported judgment delivered 08/12/00) N2022, Thomas Kaidiman v Papua New Guinea Electricity Commission (Unreported judgment delivered 20/05/02) N2343, Lepanding Singut v Kelly Kinamun & Ors, Albo Enterprises Pty Ltd, Fedelis Agin, Papua New Guinea Banking Corporation, Paul Piru and John Kil (2003) N2499, The State v Peter Malihombu (Unreported judgment delivered on 29/04/03) N2365, The State v Kevin Anis and Martin Ningigan (Unreported judgment delivered on 7/04/03) N2360, The State v Onjawe Tunamai (Unreported judgment delivered on 29/04/03) N2365, Jimmy Ono v The State (Unreported judgment delivered on 04/10/02) SC698, The State v Eki Kondi & Ors (No, 1) (Unreported judgment delivered on 24/03/04) N2542, The State v Cosmos Kutau Kitawal & Anor (No 1) (Unreported judgment delivered on 15/05/02) N2266, The State v Gari Bonu Garitau and Rossana Bonu 1996] PNGLR 48, Garitau Bonu & Rosanna Bonu v The State (Unreported judgment delivered on 24/07/97) SC528, Paulus Pawa v The State [1981] PNGLR 498, The State v Tauvaru Avaka & Anor (Unreported judgment delivered on 2/11/00) N2024, Gibson Gunure Ohizave v The State (Unreported judgment delivered on 26/11/98) SC595, John Jaminan v The State (No 2) [1983] PNGLR 318, The State v Luke Sitban (Unreported judgment delivered on 07/06/04) N2572, The State v Marety Ame Gaidi, (Unreported judgment delivered on 01/08/02) N2256, Browne v Dunn (1893) 6 R 67 (HL) referred to

___________________________

N2669

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1406 of 2000

THE STATE

-V-

FRANCIS ANGOSIWEN

(No.1)

WEWAK: KANDAKASI, J.

2004: 8th and 18th June

CRIMINAL LAW – PRACTICE & PROCEDURE – Application to question prosecutrixed 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 Brown v. Dunn – s. 37H of Evidence Act.

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 - S. 223 of Criminal Code and s. 37H of Evidence Act.

Cases cited:

SCR No. 1 OF 1980; Re s. 22A (b) of the Police Offences Act (Papua) [1981] PNGLR 28.

See Application Pursuant to s155(4) by John Mua Nilkare (Unreported judgment delivered 5/04/97)SC 536.

Rabaul Shipping Limited v. Rita Ruru (Unreported judgment delivered 08/12/00) N2022.

Thomas Kaidiman v. Papua New Guinea Electricity Commission (Unreported judgment delivered 20/05/02) N2343. Lepanding Singut v. Kelly Kinamun & Ors , Albo Enterprises Pty Ltd, Fedelis Agin, Papua New Guinea Banking Corporation, Paul Piru and John Kil (2003) N2499.

The State v Peter Malihombu (Unreported judgment delivered on 29/04/03) N2365.

The State v. Kevin Anis and Martin Ningigan (Unreported judgment delivered on 7/04/03) N2360.

The State v. Onjawe Tunamai (Unreported judgment delivered on 29/04/03) N2365.

Jimmy Ono v. The State (Unreported judgment delivered on 04/10/02) SC698.

The State v. Eki Kondi & Ors (No.1) (Unreported judgment delivered on 24/03/04) N2542.

The State v. Cosmos Kutau Kitawal & Anor (No 1) (Unreported judgment delivered on 15/05/02) N2266.

The State v. Gari Bonu Garitau and Rossana Bonu 1996] PNGLR 48.

Garitau Bonu & Rosanna Bonu v. The State (Unreported judgment delivered on 24/07/97) SC528.

Paulus Pawa v. The State [1981] PNGLR 498.

The State v. Tauvaru Avaka & Anor (Unreported judgment delivered on 2/11/00) N2024.

Gibson Gunure Ohizave v. The State (Unreported judgment delivered on 26/11/98) SC595.

John Jaminan v. The State (N0.2) [1983] PNGLR 318.

The State v. Luke Sitban (Unreported judgment delivered on 07/06/04) N2572.

The State v. Marety Ame Gaidi, (Unreported judgment delivered on 01/08/02) N2256.

Overseas Cases Cited:

Browne v. Dunn (1893) 6 R 67 (HL).

Counsels:

J. Walai for the State

L. Siminji for the Accused

19th June 2004

KANDAKASI J: You pleaded not guilty to one charge of incest with your biological daughter on 15th 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

Section 223 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

See Greville Smith J, at page 34, in SCR No. 1 OF 1980; Re s. 22A (b) of the Police Offences Act (Papua)[1981] PNGLR 28 and The State v.Ben Noel & Ors(Unreported judgment delivered on 31/05/02) N2253.

1 the following elements:

1. A person who;

2. engages in sexual penetration; and

3. with a close blood relative (as defined in sub-s.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...