The State v Kunma Binge

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 12 February 2016
• Citation: (2016) N6179
• Court: National Court
• Year: 2016
• Judgement Number: N6179

Full : CR No 466 of 2015; The State v Kunma Binge (2016) N6179

National Court: Cannings J

Judgment Delivered: 12 February 2016

N6179

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 466 OF 2015

THE STATE

V

KUNMA BINGE

Cannings J

Ramu:

2015: 16 & 17 July

Madang:

2015: 6 August, 23 September,

2016: 12 February

CRIMINAL LAW – sexual offences against children – engaging in act of sexual penetration with child under the age of 16 years, Criminal Code, Section 229A(1) – trial – elements – whether the accused sexually penetrated the complainant.

The accused, an adult male, was charged with one count of engaging in an act of sexual penetration with a child under the age of 16 years, contrary to Section 229A(1) of the Criminal Code, a 12-year-old boy. The accused pleaded not guilty so a trial was held. The age of the child (the complainant) was not contested. He gave evidence that the accused anally penetrated him.

Held:

(1) The two elements of an offence under Section 229A (1) are that: (a) the accused engaged in an act of sexual penetration with another person; and (b) the other person was a child under the age of 16 years.

(2) The State proved beyond reasonable doubt that the accused sexually penetrated the complainant by introducing his penis into the complainant’s anus, as: (a) the complainant was a reliable and honest witness; (b) there was evidence of a prompt complaint; (c) inconsistencies in the evidence of State witnesses were not significant; (d) medical evidence was consistent with sexual contact being made; (e) no other explanation of how the complainant could have been penetrated; (f) the accused was an unconvincing witness.

(3) The accused was found guilty, as charged.

Cases cited

The following cases are cited in the judgment:

Devlyn David v The State (2006) SC881

Glen Otto Kapahi v The State (2010) SC1023

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

Michael Balbal v The State (2007) SC860

Rolf Schubert v The State [1979] PNGLR 66

The State v Arnold Kulami (2009) N3632

The State v Polikap Lakai (2007) N3153

The State v Stuart Merriam [1994] PNGLR 104

TRIAL

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

Counsel

M Pil, for the State

J Morog, for the accused

12 February, 2016

1. CANNINGS J: The accused, Kunma Binge, an adult male, is charged with one count of engaging in an act of sexual penetration with a child under the age of 16 years, contrary to Section 229A(1) of the Criminal Code. The State alleges that the accused, aged in his 30s, committed the offence against the complainant, a 12-year-old boy, “G”, at about 12 noon on Wednesday 7 January 2015 at the Ramu Agri Industries Limited (RAIL) Estate, at Gusap, near Ramu, Madang Province. It is alleged that he penetrated the boy’s anus with his penis. He pleaded not guilty so a trial was held.

2. The State’s case is based on the oral evidence of the complainant and two other boys and the report of a medical examination of the complainant. The accused gave sworn evidence in his defence.

UNDISPUTED FACTS

3. A number of undisputed facts have emerged from the evidence:

· In January 2015 the complainant was 12 years old. He lived at Ramu with his parents who worked for RAIL. He has lived there for many years. At the time he gave evidence, in July 2015, he was in school, doing grade 3.

· The accused came to Ramu only a few days before 7 January 2015 from his home in Simbu Province, looking for work. At Ramu he was staying with his relatives who work for RAIL.

· The accused and the complainant did not know each other. They met in the morning of 7 January 2015 at the part of the RAIL Estate called ‘Gusap Oil Palm division 2’, where the complainant lives. The complainant left his house and walked into the plantation as he wanted to talk to his father about something and his father was working in the plantation. On the way he came across a group of Simbu men, including the accused, roasting cassava. The accused gave him a piece and asked him if he could show him where the river was, as he wanted to wash in the river.

· The complainant walked off with the accused, showing him the way to the river. Once they got there, the complainant left, in search of his father.

· The complainant could not find his father. Then he went back to the river.

· There is conflicting evidence about what happened when the complainant went back to the river but it is agreed that (a) at one stage the accused asked the complainant if he liked to eat meat, and the complainant said yes, and the accused said that his house people had cooked some meat and that he would get some for the complainant, and (b) there was a period of at least several minutes duration, that they were alone.

· Straight after the period that they were alone the complainant left the river and walked away and met a group of boys and reported to them the allegation that he had just been sexually penetrated by a Simbu man. The complainant then went back to the river with those boys and some other persons in the vicinity who heard about the allegation. That group of persons confronted the accused and physically assaulted him and they took him to a nearby company office and then the matter was reported to the Police and the accused was arrested.

· Later on the same day, 7 January 2015, the complainant was taken to the company clinic at Ramu and examined by Dr Yongoe Kambue in relation to an allegation of sexual assault.

· The next day Dr Kambue prepared a written report of the examination, which has been admitted into evidence.

LAW

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 age of 16 years.

Circumstances of aggravation (if the child is under the age of 12 years or if there is an existing relationship of trust, authority or dependency between the accused and the child) have not been charged in the indictment.

6. “Sexual penetration” is defined in Section 6 of the Criminal Code, which states:

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.

ISSUES

7. It is agreed that the complainant was 12 years old. The only issue is whether the State has proven beyond reasonable doubt that the accused engaged in an act of sexual penetration with the complainant in the manner alleged. Did he, to any extent, introduce his penis into the complainant’s anus?

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

8. Resolution of this issue requires a:

· summary of evidence for the State;

· summary of evidence for the defence;

· formal determination of the question whether the State has proven beyond reasonable doubt that the accused introduced his penis into the complainant’s anus.

Evidence for the State

9. Three witnesses gave evidence for the State, as summarised in the following table.

No	Witness	Description
1	“G”	The complainant
Evidence
When he went back to the river and was alone with the accused, the accused asked him to come towards him so that he could check his hair for lice: he asked him to lie on the ground, on his side, so he did so, while the accused pretended to look for lice – then the accused took off both his own trousers and the complainant’s trousers and penetrated the complainant’s anus with his penis and ejaculated (the complainant said that the accused ‘put his penis into my bottom and urinated’) – the complainant felt pain and ran away – he ran towards the place where he thought his father would be but on the way he met first a Markham lady and told her what happened – then he ran again and met up with some youths from the compound at which he lives – he told them what happened and the youths ran to the river where they found the accused, who was identified by the complainant as the man responsible – they assaulted him and took him to the compound office where he was handed over to the company security guards...