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State v Nawa (No 1) [2009] PGNC 114; N3731 (24 July 2009)

N3731

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NOS.612 OF 2007

THE STATE

V

CHRISTOPHER NAWA (NO.1)

Buka: Lenalia, J.
2009: 9th, 10th 21st & 24th July

CRIMINAL LAW – Sexual penetration – Plea of not guilty – Trial – Criminal Code Sexual Offences And Crimes Against Children Act 2002 S.229A

CRIMINAL LAW – Trial – Evidence by prosecution and defence – Credibility of – Corroboration – Sexual Offences – Corroboration not required by law – Danger of convicting the accused on uncorroborated evidence – Inferences of guilt should not be drawn where there is contradicting evidence given by the State – State evidence corroborate itself – Finding of guilty as charged.

Cases cited:
Papua New Guinea Cases

The State v Andrew Tovue [1981] PNGLR 8
Peter Townsend v George Oika [1981] PNGLR 12
The State v Tom Morris [1981] PNGLR 493
Paulus Pawa v The State [1981] PNGLR 498
Allan Oaka v The State [1988-89] PNGLR 131
Didei v The State [1990] PNGLR 458
Didei v The State [1990] PNGLR 458
The State v Garitau Bonu & Rossana Bonu [1996] PNGLR 48
Garitau Bonu & Rossana Bonu v The State (1997) SC528
The State v John Wanjil & 3 Ors [1997] PNGLR 64
The State v Nelson Tuli [1997] PNGLR 305

Overseas cases

Peacock v The King [1911] HCA 66; (1911) 13 C.L.R. 619
Thomas v The Queen [1960] HCA 2; (1960) 102 C.L.R. 584
Plomp v The Queen (1963) 100 C.L.R. 234
Barca v The Queen (1975) C.L.R. 82

Counsel:

C. Sambua, for the State
E. Latu, for the Accused

24th July, 2009

1. LENALIA, J: The accused pleaded not guilty to one count of sexual penetration of an under age girl contrary to s.229A (1) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. A trial was conducted during which two witnesses including the victim were called. In the course of this trial a number of statements and the record of interview were tendered. I will refer to the documentary evidence later.

Prosecution Evidence

2. The victim in this case whom I will only refer to as J. B (Jubilee Bitavi) gave evidence of how the accused sexually penetrated her on 10th November 2006. J. B was a student at Wakunai Primary School on the Autonomous Region of Bougainville doing Grade 7 when the alleged offence occurred. On that date after the school closed at 12.30 pm, the victim and other children from Teokon village were preparing to go home. As she was ready to take off, the head master of the school came to her and asked her which road she was to take to go home. She replied that she was to go along with other children through the main road.

3. When the accused heard this, he suggested to the victim why not take the back road. After this the victim and Delphine Vane left the accused. They took off with the intention of going along the main road. However due to the majority of students going along the beach, the two of them decided to go along the beach with most other students. When they reach the river, they started to swim. While the victim was swimming, the accused sent a boy by the name of John Ponau to the victim to ask where the school treasurer Kevin Tauna was. She told this boy that, she had just been at school and she could not tell where the treasurer was. The first boy was sent back with that message to the accused.

4. A little later, the accused sent another small boy to the victim who was still at the river to fetch her to see the headmaster. The headmaster of the school then was the accused. The victim returned to the school office and the accused told her to go back to the river and tell Delpine that he wanted to go along with the two of them go on the back road to Teokon village so he could see the school treasurer. The victim said, when the accused came to them on the beach he asked them again which track they should follow. J. B suggested they should go along the main track. On hearing this, the accused informed them that, they should take the short cut track.

5. So they began to walk up the track suggested by the accused. On their way, J. B felt that some thing was to go wrong. The victim’s girl friend Delphine Vane led the way, followed by the accused and the victim was the last person. After walking several hundred metres from the beach and with the feeling that something was to happen, J. B without telling her friend and the accused made a U turn and ran back toward the beach. On reaching the beach, she stood and looked around not knowing that the accused had caught up with her. He came and stood a couple of metres away from her and asked her to walk up to him.

6. At first the victim was quite reluctant to do as the accused ordered. The victim said, when she did not move, the accused shouted at her and ordered her to come close to him. She obeyed and the two of them walked some few metres into the bushes and there the accused asked her to remove her clothes. When she was naked, he asked her to lie down on the ground. He kneeled down and commenced to push his fingers in and out the victim’s vagina a number of times. She said, this was done to enlarge her vaginal opening.

7. She said, the accused then laid on top her and tried to sexually penetrate her. When he tried to push his penis into her vagina, he could not penetrate her. He tried the second time, he could not succeed. He tried the third time and it was then that he penetrated her. According to J. B when the accused reached orgasm, he pulled his penis out of her vagina and ejaculated on the ground. He told her to get dress, he also got dressed and they walked away into different direction. In case of J.B she walked up the same track and reached the river where her friend was swimming waiting for them.

8. In cross-examination the witness was asked why was it that the accused wanted to accompany her and her friend to the village. J.B said, she did not know why as the accused did not tell them why he wanted to see the school treasurer. She was asked where was the accused when he spoke to her and Delphine. The victim replied it was at the river when the three of them walked up together. She was asked about certain distances between her village and the river where the offence took place. First she said 20 metres but when she was asked to further clarify, she said, it could be from the court premises to the main wharf which was estimated by counsels to between 200 to 300 hundred metres.

9. She was asked about what type of feeling she had when she decided to run away from the accused and Delphine. She said, she felt that the accused would do something to her. Asked if she ever excused herself before she turned back leaving the accused and Delphine. She was asked if she ever said any thing to the accused in the process of seducing her. The victim said, she did not say anything. Further asked if it was true that it was the first time ever for her to experience sex with the accused, she answered no. It was put to her if it was true the accused did not have sex with her. The witness said it is true that the accused sexually penetrated her.

10. She was asked if it was true when she got home she never told anyone about this trouble. J.B said she did not tell anyone immediately but later, one of the female teachers reported the matter to the police. She named that teacher as Theresa Kamae. She was further asked if it was not the first time for the accused to have sex with her on 10th November 2006 but was one of several occasion of consensual sex. The victim said it was the accused first and last time to have sex with her.

11. The second witness Delphine Vane’s evidence corroborates evidence by the victim on what happened at the beach. She saw their fellow student John Ponau came and talked to the victim in this case. Before they went through that back track, she had seen the accused standing together with the victim talking on the beach. After a while, J.B came to her and while they were together another boy by the name of John Seman came to the two girls and told them that the accused wanted these two girls to accompany him to Teokon village to see the school treasurer.

12. Delphine said, after they were informed this, they went up to see the accused who spoke to them and they took off from the beach following the track not commonly used. This track is referred to by the victim’s evidence as a ‘short cut’ road to her village. The witness said, they had gone into the track some 60 or so metres into the bush track, when the victim turned around and ran back to the beach. She said, not long after J.B had left them that the accused also excused himself to go for nature call. She went ahead to the river and started to swim in the hope that the accused and the victim would come and fetch her to go to the village.

13. After sometime, the victim came and while they were standing on the river bank, the accused came and gave a piece of paper to the victim and asked the two girls to give it to the school treasurer. He left them and walked back through the track. The witness and the victim then walked home. In her statement, the witness said, when they were walking home that afternoon, she noticed that the victim’s countenance fell and she did not talk to this witness until they reached home.

14. In cross-examination, Delphine was asked to confirm the order of their proceeding from the beach into that bush track. She confirmed that, she was leading with the head/master following her and the victim was at the back. She was asked what did she mean when she said, the head/master abused J.B. The witness said when the victim left her and the accused, not long after that, the accused excused himself to go for nature call. She said, she then formed suspicion that, the accused was going to do something nasty to the victim. She was asked how soon did the accused leave her after J.B left. The witness answered that as soon as J.B left the accused left as well.

She was asked to confirm if she ever saw the accused talking to the victim before he sexually penetrated her. The witness said, she did not see them in the act nor did she see them talking.

15. She was asked if the victim ever told them that she was going to go back to the beach. Delphine said, J.B told them that she left something on the beach and she was returning to pick it up. She also revealed in a serious of questions put to her by the defence, she did not confirm her suspicion until after a week when she heard the news that the accused had sexually penetrated J.B. She confirmed the name of the teacher who reported the matter to the police as Theresa. This teacher was her class teacher in 2006.

16. In the course of cross-examination, this witness also revealed that, there was a possibility that, the victim had had sexual contact with one or other boy friends prior to being sexually penetrated on the date of this offence. She was asked if she was aware of certain occasions where other students were either suspended or terminated from the school because of sexual allegations. The witness answered in the negative.

17. The following documents were tendered by consent and marked for identification as follows:

- statement by Constable Mark Savia Ex. ‘1’

- the record of interview Pidgin & English translation Ex. ‘2’ & ‘2.1’.

- the medical report Ex. ‘3’.

- sketch map of the scene Ex ‘4’.

- the clinic book Ex. ‘5’.

- statement of the mother Ex ‘6’.

Defence case

18. The defence case was one of total denial. The accused does not however deny meeting the two girls on the beach. He does not deny walking together with the victim and Delphine on the track where the offence took place. Accused admitted in evidence that, he took a walk together with the two girls that afternoon with the intention to see the school treasurer. He said in evidence that, the village where he was to see the treasure is not far from the school. He said, when they were walking through the track, the victim told the two of them that, she was to return to the beach to pick up something she had left.

19. He was asked in chief about the allegation made against him if it was true. The accused replied that, the allegations came into light when he was in Buka. Then thereafter, when he returned to the school, some people came to his home and destroyed certain properties and demanded compensation. He was asked about an allegation of incest and asked if it was the allegation which concerned his daughter. The accused merely answered as ‘he thought so’ but there were also complaints about other cases involving other female students.

20. In cross-examination the accused was asked if he sent the two boys to inform the victim something before the two girls came to him. The accused gave a negative answer. He was asked what Grade Delphine was doing in 2006. He said she was doing Grade 4. The accused admitted talking to the victim and Delphine that day. He was asked why he had to ask the two girls to accompany him when he could have gone to Teokon village by himself.

He was further asked about the distance from the school to Teokon village. The accused said the girls knew that, he was coming to fetch them to go to the village. He was asked why he wanted to see the school treasurer. The accused said because he is his (accused’s) friend. In relation to the question as to why he had to talk to and asked the girls to accompany him to the village when he could have gone there by himself. He answered that they are friends and he does not see anything wrong with that.

21. He was asked about what would be the motive for the victim and Delphine to come to court and tell lies against him. In case of Delphine he said he did not know why. In case of the victim, the accused said, it could be something to do with the school selection processes and the examination results. These questions were also put to the accused in examination in chief. He asked if it was true he did have sex with the victim. He said he did not have sex with her.

22. After questions were asked in re-examination, Mr. Latu of counsel for the accused submitted their case closed. Due to my absence last week, by consent, the matter was adjourned for addresses on the verdict to 22nd July 2009, the date when we resume on this circuit. The following is the addresses on verdict.

Defence addresses on the verdict

23. Mr. Latu of counsel for the accused briefly discussed the evidence adduced by the prosecution and the defence. Counsel suggested that the victim’s evidence cannot be relied on as she contradicted herself on a number of times and when she was asked certain questions in cross-examination she seemed not to remember what happened on the date the offence is said to have occurred. Counsel referred to an example where the victim was asked about why she wanted to go back to the beach. The victim seemed not to have recalled why she went back. As appeared in the second witnesses and even the defence evidence, the victim told the accused and Delphine that, she wanted to go back to the beach because she had forgotten something.

24. The defence counsel also raised an important issue about the principle of ‘recent complaint’. He said, the victim did not report the matter either to the police or her mother. That somehow the matter was reported to police by a female teacher. According to the prosecution evidence, a teacher, Theresa reported the case to the Wakunai Police Station.

25. Counsel urged the court to treat the evidence by the prosecution with caution as the medical report does not show any signs of sexual intercourse with the victim on that date, there is a possibility that, the accused was framed up by the victim for some unknown reasons. Counsel further submitted that there is evidence that the victim prior to the date of these allegations had had sexual penetration contact with other men.

Prosecution address on verdict

26. Mr. Sambua of counsel for the State posed three issues for the court to consider. They include:

1. Whether or not the accused sexually penetrated the victim.

2. If the accused had sex with her, was it a consensual act.

3. Was the victim under the age of 16 years?

27. Counsel submitted that, given the nature of the evidence in this case, it will be the issue of who to believe and whose evidence should not be accepted by the court. Counsel submitted that there is evidence that around about the area of the scene, the accused was there with the victim and Delphine. He further submitted that, the evidence by the defence well corroborates that by the prosecution that the accused was with the victim and the second State witness.

28. Mr. Sambua referred to questions 15 and 21 and their answers in the record of interview and suggested that, the evidence by the defence contradicted itself and in breach of the rule in Browne v Dunn (1893) 6 E. R. 67. Counsel referred the court to the accused manner of answering questions in cross-examination where the accused appeared to have been so evasive and aggressive would suggest to the court that, the accused was not truthful in his evidence and the court should return a guilty verdict.

Law

29. The accused is charged pursuant to s.229A (1) of the Criminal Code (Sexual Offences and Crimes Against Children) Act. Under Subsection (1), where a person engages in an act of sexual intercourse with a victim who is under the age of 16 years, can be sentenced to the maximum penalty of 25 years.

30. On this trial the evidence by the State was and is mostly circumstantial in nature. I accept the evidence by the State that, the accused sent messages through the two Johns to the victim that afternoon. There is evidence that, when the accused came to the beach, he then took the two girls to go up the back track which also leads to Teokon village. There is also evidence that the three of them, Delphine, the accused and the victim walked up together almost half way through the track when the victim left the accused and the second prosecution witness for purposes of picking up something which she supposedly left at the beach.

31. There is evidence too that, immediately after the victim turned and ran to the beach, the accused excused himself to attend to a nature call. There is evidence that, after sometime, the victim came and joined with Delphine. Then after that, the accused came and gave a piece of paper to the victim to give to the school treasurer. There is evidence by Delphine that after the victim joined up with her on the river, she observed the victim to be in a distressed condition. Unfortunate though that the second witness did not inquire with the victim what had happened to her or at least find out if anything was wrong.

32. The defence evidence does not show to the court or at least give any reasons why the accused had suddenly changed his mind and decided not to continue with the girls to go to the village and see the person he had been planning to see that afternoon. The accused has not given any convincing motives or reasons as to why the victim would come out publicly and tell lies against him.

33. The issue on this trial is whose evidence should the court accept as credible? The case before me is one of sexual penetration. I am required to warn myself of convicting the accused on the evidence by the two young witnesses and particularly that of the second State witness which is circumstantial in nature. In case of the victim, I do not doubt her evidence in any way. I also take the evidence by the second witness as credible. The court finds no motive for the two young girls to come to court and tell lies.

34. I now warn myself about the evidence of the victim and the second witness because they are young girls. There is no rule of law saying the court cannot accept the evidence of a minor. I observed the demeanour of the victim and Delphine when they gave their evidence who by the time of this offence 14 in case of the victim and the second witness was much less than that because she was only doing Grade 4. I take their evidence as credible. They were confident and answered questions forthwith without hesitation. I conclude that the victim and witness Delphine were truthful and reliable witnesses. Comparing the demeanour of the two prosecution witnesses and that of the accused, I cannot believe the accused side of the story.

35. It is settled law in this jurisdiction that the court can either accept or reject evidence both by the prosecution and the defence on the basis of whether such evidence is credible or not: Paulus Pawa v The State [1981] PNGLR.498, see also Garitau Bonu & Rossana Bonu v The State (1997) SC.528 and The State v Garitau Bonu & Rossana Bonu [1996] PNGLR.48.

36. Under this head, the court must observe the witnesses demeanour and use common sense and tell whether the witness was telling the truth or not. Let me quote a passage from the common law case of Barca v The Queen [1975] HCA 42; (1975) 133 C.L.R 82 at 104 which was quoted in The State v Tom Morris [1981] PNGLR 493 at 495 which concisely states the position in law on drawing of inferences. The court in that case said:

"When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’: Peacock v The King [1911] HCA 66; (1911) 13 C.L.R 619 at p.634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only reasonable inference that the circumstances would enable them to draw’: Plomp v. The Queen (1963) 110 C.L.R 324, at p.352; see also Thomas v The Queen [1960] HCA 2; (1960) 102 C.L.R 584 at pp.605-606. However ‘an inference to be reasonable must rest upon something more than mere conjecture...’ ".

37. The accused raised general denial on his defence. There is sound reason for the rule in sexual offences that it is unsafe to convict an accused person upon uncorroborated evidence of a prosecutrix alone unless such evidence is corroborated in some material in particular by other evidence from independent source which renders it probable that the offence charged has been committed by someone and that the accused was the one who committed it: Didei v The State [1990] PNGLR 458 see also Peter Townsend v George Oika [1981] PNGLR 12 and The State v Andrew Tovue [1981] PNGLR 8.

38. Mr. Sambua referred the court to s.229H of the Criminal Code (Sexual Offences and Crimes Against Children) Act which seems to say that an accused person may be found guilty upon uncorroborated evidence of one witness. This section may be unconstitutional because it seems to tell the court what to do. After all the present case is not one where there is no corroborative evidence. The evidence of the victim is very well corroborated by the second witness.

39. Of course if the Court was to believe the victim’s evidence alone, it should find the accused guilty because there is no rule of law which says that an accused should not be found guilty on uncorroborated evidence. However, uncorroborated evidence will depend on the credibility of the prosecutrix evidence and other relevant evidence in the prosecution case and that of the defence. In the case before me, I am convinced that the victim was forthright in her evidence and I accept such evidence as credible.

40. I am satisfied by the State’s circumstantial evidence that the accused was with the victim and the second prosecution witness on the date of this offence. I have quoted some case law authorities dealing with the law of circumstantial evidence such as The State v Tom Morris (supra) and Paulus Pawa v The State (supra). In those case the courts have said that where a case against an accused rests substantially on circumstantial evidence the court cannot return a guilty verdict unless the circumstances are "such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused".

41. And as often stated to enable the court to be satisfied beyond reasonable doubt of the guilt of an accused it is necessary not only that the guilt should be a rational inference, but that it should be "the only rational inference that the circumstances would enable" the court to draw, (see cases of Peacock v The King [1911] HCA 66; (1911) 13 C. L. R. 619, Plomp v The Queen (1963) 100 C. L. R. 234 and Thomas v The Queen [1960] HCA 2; (1960) 102 C. L. R. 584).

42. The above principles were adopted and affirmed in Paulus Pawa v The State (supra) and since then the principle had either been followed or restated such as in The State v Jupui Kapera N567, The State v Simon Sulu Uraken N883, The State v Nelson Tuli [1997] PNGLR.305, The State v John Wanjil & 3 Ors. [1997] PNGLR.64 and many more cases.

43. On the matter of credibility as to whose evidence should the court give weight to, by the evidence presented to the court on this trial, I take the State’s evidence as credible and by such evidence I am satisfied that the inference which I have drawn is not only a rational inference but it is the "only rational inference that the circumstances" of the evidence have enabled me to draw.

44. The conclusion which this court has reached in the present case is in my view ‘more than mere conjecture’. The court now returns a verdict of guilty to one count of sexually penetrating the victim who was at the date of the offence under the age of 16 years. The accused is found guilty and convicted on that charge of sexually penetrating the victim under the age of 16 years.

____________________________________________

The Public prosecutor: Lawyer for the state
Latu lawyers: Lawyer for the accused