The State v Kikia Solowet (2007) N3154

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 16 August 2007
• Citation: (2007) N3154
• Docket Number: CR NO 296 OF 2006
• Court: National Court
• Year: 2007
• Judgement Number: N3154

Full Title: CR NO 296 OF 2006; The State v Kikia Solowet (2007) N3154

National Court: Cannings J

Judgment Delivered: 16 August 2007

N3154

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 296 OF 2006

THE STATE

V

KIKIA SOLOWET

Kimbe : Cannings J

2007: 19, 20, 24, 25 July

16 August

Criminal Law – offences – persistent sexual abuse of a child – Criminal Code, Section 229D – trial.

A man was indicted for persistent sexual abuse of a nine-year-old girl, his niece. He pleaded not guilty. It was the State’s case that the accused engaged in ten acts of sexual penetration with the girl over a three-week period. The complainant, now 11 years old, gave evidence, as did the accused’s son, now aged 15. The State also relied on the accused’s record of interview and a medical report. The accused made an unsworn statement from the dock, denying the charge and alleging that the case against him was motivated by ill-will on the part of members of his family.

Held:

(1) For an accused to be convicted of the offence of persistent sexual abuse of a child, the court must be satisfied beyond reasonable doubt that:

(a) the accused engaged in conduct in relation to the child that constitutes an offence under Division IV.2A of the Criminal Code;

(b) on two or more occasions;

(c) each occasion was on a separate day; and

(d) the material facts of the occasions are clear.

(2) The court does not have to be satisfied beyond reasonable doubt as to the dates or order of the occasions.

(3) The State does not have to prove each occasion of criminal conduct alleged in an indictment; two will suffice.

(4) In the present case, the court, having satisfied itself that the complainant understood the nature and importance of telling the truth, regarded her evidence as credible; and its credence was supported by the evidence of the accused’s son, also a credible witness, who testified that he saw the accused sexually penetrate the complainant on one occasion.

(5) The medical evidence supported the allegation of penetration of the complainant’s vagina.

(6) The accused elected to make an unsworn statement from the dock, which was lacking detail and unconvincing; and there was no other evidence to support his story.

(7) There was sufficient evidence for the court to be satisfied beyond reasonable doubt as to the existence of all elements of the offence. The accused was therefore found guilty.

Cases cited

The following cases are cited in the judgment:

Rolf Schubert v The State [1979] PNGLR 66

The State v John Saganu [1994] PNGLR 308

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

Tommy Morikawa v The State (2000) SC656)

The State v Saul Ogeram (2004) N2780

The State v James Yali (2005) N2988

The State v Jimmy Aiyo CR No 147 of 2005, 28.09.06

The State v Alex Matasol Hagali CR No 928 of 1997, 28.09.06

TRIAL

This was the trial of an accused charged with persistent sexual abuse of a child.

Counsel

F Popeu, for the State

O Oiveka, for the accused

VERDICT

16 August, 2007

1 CANNINGS J: Kikia Solowet, the accused, is a 60-year-old man from Kabwum, Morobe Province. He has for some time been living on an oil palm block at Buvussi, West New Britain Province, with his wife and family. He is charged with the offence of persistent sexual abuse of a child, his nine-year-old niece, allegedly committed over a three-week period in late 2005. He pleaded not guilty and a trial was held in Kimbe.

2. It was the State’s case that the accused sexually penetrated the child, referred to in this judgment as “the complainant”, on ten separate occasions. The complainant, now aged 11, and one of the accused’s sons, aged 15, gave oral evidence. The State also relied on the accused’s record of interview and a medical report.

3. The accused made an unsworn statement from the dock, denying the charge and alleging that the case against him was motivated by ill-will on the part of certain members of his family, with whom he had an ongoing dispute.

MATTERS NOT IN DISPUTE

4. The complainant had been staying with the accused and his wife and family on their block at Buvussi since the beginning of 2005. On 24 November, 2005 the accused’s wife – the complainant’s aunty – caught a ship from Kimbe to Lae. She was not at home when the alleged abuse occurred.

THE OFFENCE

5. The accused has been charged under Section 229D (persistent sexual abuse of a child) of the Criminal Code, which states:

(1) A person who, on two or more occasions, engages in conduct in relation to a particular child that constitutes an offence against this Division, is guilty of a crime of persistent sexual abuse of a child.

Penalty: Subject to Subsection (6), imprisonment for a term not exceeding 15 years.

(2) for the purposes of Subsection (1), it is immaterial whether or not the conduct is of the same nature, or constitutes the same offence, on each occasion.

(3) In proceedings related to an offence against this Section, it is not necessary to specify or prove the dates or exact circumstances of the alleged occasions on which the conduct constituting the offence occurred.

(4) A charge of an offence against this section—

(a) must specify with reasonable particularity the period during which the offence against this section occurred; and

(b) must describe the nature of the separate offences alleged to have been committed by the accused during that period.

(5) For an accused to be committed [sic] of an offence against this section—

(a) the court must be satisfied beyond reasonable doubt that the evidence establishes at least two separate occasions, occurring on separate days during the period concerned, on which the accused engaged in conduct constituting an offence against this Division in relation to a particular child; and

(b) the court must be so satisfied about the material facts of the two incidents, although the court need not be so satisfied about the dates or the order of those occasions.

(6) If one of more of the occasions involved an act of penetration, an offender against Subsection (1) is guilty of a crime and is liable, subject to Section 19, to life imprisonment.

6. The State has to prove four things to obtain a conviction:

(a) the accused engaged in conduct in relation to the child that constitutes an offence under Division IV.2A of the Criminal Code (sexual offences against children);

(a) on two or more occasions within a period specified with reasonable particularity;

(a) each occasion was on a separate day; and

(a) the material facts of the occasions are clear.

7. As to (a), Division IV.2A creates four offences:

· 229A – engaging in act of sexual penetration with a child under the age of 16;

· 229B – sexual touching of a child under 16;

· 229C – indecent act directed at a child under 16;

· 229E – abuse of trust, authority or dependency regarding a child aged 16 to 18.

8. In the present case the indictment states that the accused engaged in ten acts of sexual penetration with the complainant. “Sexual penetration” is defined by Section 6. It includes penetration by the fingers or penis. The indictment thus alleges that the accused on ten occasions engaged in conduct in relation to the complainant that constitutes an offence under Section 229A. The indictment states that each of those occasions occurred on a separate day. The indictment therefore meets the formal requirements of Section 229D as set out by Lay J in The State v Saul Ogeram (2004) N2780.

9. The defence counsel, Mr Oiveka, submitted that as the State alleged ten instances of penetration, each one had to be proven to sustain the charge. If one or more was unproven, the accused must be acquitted. I reject that submission. The wording of the section makes it clear that the State need prove only two instances of penetration to obtain a conviction.

EVIDENCE FOR THE STATE

10. The State’s case was based on the following evidence:

· oral testimony of the complainant;

· oral testimony of one of the accused’s sons;

· the accused’s record of interview;

· a medical report.

THE COMPLAINANT’S ORAL TESTIMONY

11. Because of the complainant’s tender age, there was some doubt as to her capacity to comprehend the nature of an oath or affirmation. I consulted the lawyers and decided that it would be inappropriate to administer an oath or affirmation. However, after she answered some questions from me, she appeared to clearly understand the nature and purpose of the court proceedings, the reason she was in court and that the lawyers would ask her questions about what happened. She immediately appeared to be a bright and intelligent child. I was satisfied that she understood the meaning and importance of truth and that she was obliged to tell the truth. Those first impressions were reinforced by the manner in which she answered questions. Though he submitted in his closing address that her evidence should be treated with great caution and was not credible, Mr Oiveka raised no objection to her competence as a witness or the admissibility of her evidence. I concluded that she was a competent witness and her evidence was admissible.

12. In reaching that conclusion, I applied Section 6 of the Oaths, Affirmations and Statutory Declarations Act Chapter 317 and guidelines for the reception of evidence by child witnesses given by the Supreme Court in Rolf Schubert v The State [1979] PNGLR 66 and Java Johnson Beraro v The State [1988-89] PNGLR...