N4625

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1283 OF 2009

STATE

V

PETER MANN (NO.1)
Accused

Kundiawa: Ipang AJ
2012: 18 & 19 March

CRIMINAL LAW – Criminal Code Act (Sexual Offences and Crimes Against Children) Act, 2002 – s. 229A (1) (3) & s. 229B (1) (a)(5) – four (4) counts of sexual penetration of a girl under the age of 16 years old and one (1) count of sexual touching – accused placed under position of trust – in that the accused was like an uncle to the victim.

CRIMINAL LAW – Defence of Alibi – weakened due to accused admitting that since he left Kundiawa he still travels back to Kundiawa.

CRIMINAL LAW & PRACTICE – Credibility of victim not tainted - victim stood by her evidence, not shaken, gave detail of the incidents - evidence not damaged by defence.

Cases Cited
David Kandakson v The State [1998] SC 558
Andrew Palili v The State (2006) Sc 848 
State v Minjipa [1977] PNGLR 293
State v Simon Ganga [1994] PNGLR 323
Browne v Dunn (1893) GR 67 (HL)

Counsel

Mr. J.Kesan, for the State 
Ms. Williams, for the Accused .

DECISION ON VERDICT

19 March, 2012

1. IPANG, AJ: The accused pleaded not guilty to four (4) counts of sexual penetration of a child JWS under the age of 16 years then aged 13 years contrary to s. 229A(1) &(3) of the Criminal Code (Sexual Offences and Crimes Against Children) Act, 2002. The first, second and third counts involved sexual penetration by penis into the victim's vagina. The fourth count involved sexual penetration of vagina by the accused inserting his fingers into victim's vagina. The accused was alleged to have held the breast of JWS on the fifth count contrary to s.229B(1)(a)(5) of the Criminal Code (Sexual Offences and Crimes Against Children) Act, 2002.

Brief Facts

2. The State alleged that in 2009, the child Julie Wari Sipa, then aged 13 years old was a grade 4 student at Marane Top up Primary School. The child JWS was given by her parents to the accused and his wife to look after. The accused and the victim's mother come from the same village. The victim's mother relates to the accused as his brother. Victim would relate herself to the accused as her distance uncle. The victim, victim's parents, the accused and his wife all live at the Malaria Compound in Kundiawa.

3. In early 2009, the accused argued with his wife Lucy Mann and his wife left for her village at Yuwai. After the accused's wife had left, the accused and the victim JWS were living by themselves. The state alleged that on an unknown date in early July in the night whilst the victim was sleeping, the accused undressed her and sexually penetrated her with his penis.

4. State further alleged that a day or two after the first incident in July, in the afternoon, the accused took the victim and drove her in his bus to Onule village. It was in the night and was dark. At Onule village, the accused stopped his bus along the road laid the victim down on one of the seats in the bus, undressed her and had sexual intercourse with her.

5. The third occasion which was alleged to have taken place one or two days after the second incident in July. The victim was playing with other children in the Malaria Compound. It was on a day time. Accused called the victim in to the house and closed the door. The accused laid the victim on the bed and undressed her. The victim was faced up, when the accused sexually penetrated her with his penis.

6. The fourth occasion was on the 19th July, 2009. The accused picked up the victim at Wara Market late in the afternoon. He took the victim for a drive along Gumine road at night. At Onule village, the accused used his finger and inserted into the victim's vagina and then sexually touched the victim's breasts.

7. The State submitted that from counts 1-5, the accused was placed in the position of trust in that the accused was like an uncle to the victim.

8. The accused has been charged under S.229 A (1) & (3) of the Criminal Code Act (Sexual Offences and Crimes Against Children) Act 2002. Under this provision the State bears the obligation to prove its case beyond reasonable doubt that;

i.	The accused (Peter Mann) sexually penetrated (with penis and finger)

ii.	Victim (Julie Wari Sipa)

iii.	Victim Julie Wari Sipa under 16 years (to be exact 13 years old)

iv.	Accused Peter Mann under relationship of trust authority or dependency (i.e. Guardian uncle to the victim)

9. Again under S.229 B of the Criminal Code Act (Sexual Offences and Crimes Against Children) Act 2002, the State bears the obligation to prove beyond reasonable doubt that, 

i.	The accused Peter Mann sexually touched (held the victim child breast) 

ii.	The victim is Julie Wari John

iii.	Victim Julie Wari John is under 16 years old (i.e. 13 years old) 

iv.	There exist relationship of trust, authority or dependency (i.e. Guardian Uncle to the victim)

STATE'S CASE

10. The State called three (3) witnesses, the victim Julie Wari Sipa, the victim's mother Dorothy Sipa and the Police investigating Officer Det. Constable Timothy Simbia. The State also tendered the following documents (1) Record of Interview dated 31st August 2009 as Exhibit 'A', Summary of Facts as Exhibit "B", the Police Information as Exhibit "C", the Statement of Wari Julie John as Exhibit "D", the Statement of Dorothy John Sipa as Exhibit "E" and the Medical Report as Exhibit "F".

11. The victim Julie Sipa gave evidence by giving the accurate descriptions of what actually took place on those five occasions. She recalled that in 2009 she was in Grade 4 at Marane Top Up Primary School. She said in early July, 2009, the accused quarreled with his wife and the wife left for her village at Yuwai. While living alone with the accused, one night on an unknown date in July whilst she was sleeping on her bed, the accused undressed her and sexually penetrated her vagina with his penis.

12. Then on the second occasion within the month of July, the victim said that took place one or two days after the first incident. The victim told the Court that the accused took her in his bus to Onule village. It was dark in the night and the victim said the accused laid her down on one of the seats in the bus, undressed her and sexually penetrated her vagina with his penis.

13. Victim gave account of the third incident that took place; one or two days' after the second incident. She said it was on a day time at Malaria compound. She was playing with other children when the accused called her in to the house and closed the door. She described what the accused did to her. She said the accused laid her on the bed, undressed her and sexually penetrated her with his penis and then let her out.

14. On the fourth occasion, the victim said it took place at Onule during the night of 19 July, 2009 on a Sunday. At Onule the victim described that she was asleep in one of the bus seats, the accused used his fingers and inserted it into her vagina and then sexually touched her breasts.

15. The victim's evidence given was of good re-collections and descriptive of what actually the accused did to her, the place the incidents took place (in the bus, in the room) etc. The victim said at the end of every incident the accused warned her not to tell anyone.

16. However, despite this warning, when questioned of her whereabouts on the 19 July, 2009 the victim admitted what happened to her mother Dorothy Sipa. I find Dorothy Sipa to be an honest witness. She told the Court that the accused's wife told her that the accused sexually penetrated the victim but she did not do anything as she just heard it. She denies fabricating the allegation because the accused did not repay her K1, 000.00. I believe her evidence that she gave K1, 000.00 to the accused because the accused was looking after her daughter the victim. She also gave evidence that although, the accused had left Malaria Compound for Banz, in the new Jiwaka Province, he still comes to Kundiawa. This was confirmed by the accused thus weakens the strength of the defence of alibi.

17. The State's third and final witness Detective Constable Timothy Simbia gave account of what he did when the matter was reported to him. This witness was taken to task over the victim's statement which the investigator had written down. The investigator had written down 26 July, 2009 as the date in which the alleged incident took place. The Investigator explained that he had dealt with the similar complaints of sexual penetration, one occurred on the 19th July, 2009 and the other on the 26 July at Yuwai and therefore, he said he had genuinely mistaken the dates. I do pretty much agree with this investigator. He took the victim's statement down on the 9th of October 2009 and therefore he has clearly mistaken the dates. It would be different if he had taken the victim's statement on the 21st or 22nd July and try to raise the reason that he got himself mixed up with another offence committed on the 26 July, 2009.

18. There are of course inconsistencies with the evidence of the victim given in court regarding the number of day's interval before the next alleged incident took place and the place where the victim was picked up, etc.

19. In the Supreme Court Case of David Kandakason v The State [1998] SC 558 and later adopted in Andrew Palili v The State (2006) SC 848, the principle of prior inconsistent statement was stated and I quote:

"Where the witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the Court must regard and treat that evidence unreliable, and similarly disregard that previous statement, whether sworn or unsworn, as it does not constitute evidence upon which the judge can act. In other words, both testimony of the witness and his statement given out of the court are discredited and both are no longer reliable evidence."

20. In Exhibit 'D', the statement of Julie Wari Sipa on the date of the final incident was stated as 26th July, 2009 instead of 19 July 2009. It was the Investigating Officer, Det. Constable Timothy Simbia who wrote the victim's statement and mistakenly wrote the date 26 July, the date of another similar complaint he dealt with. Otherwise the date on the Record of Interview (ROI), the Police Information, the Statement of Facts (SOF) and the Medical Report all stated the 19 July, 2009.

21. Because the other documents that were tendered were stated 19th July and that the victim's statement was taken on the 9th of October, 2009 I find such inconsistency minor and was reasonably made out of mistake. It does not ruin the State's case. The claim raised by the defence that the Investigator is married to the accused former wife and has been biased or has personal interest in the matter, I find is a shallow argument. Unless there are evidence to substantiate such claim, it is unfair to raise such allegation. There has to be something more than just marrying accused former wife.

DEFENCE CASE

22. Defence called the following witnesses, the accused himself, Richard Willie, Lucy Mann and Ba Kale. The witness Lucy Mann is the wife of the accused. Witness Ba Kale is the cousin brother of the accused. The accused sometimes overnight at Ba Kale's place at Mirane village. Witness Richard Willie regards the accused as a big boy and both come from one hauslain (or the same tribe). Both also have houses at Banz in the newly established Jiwaka Province. 

23. Lucy Mann's evidence does not assist defence case at all. State witness Dorothy Sipa said she heard accused wife Lucy Mann telling her, the accused has been sexually penetrating her daughter. However, Mrs. Sipa said she just heard it and does not take it seriously as she herself has not heard it or seen anything. She has not taken real issue with what was said to her until the incident of 19th July, 2009. So Lucy Mann's evidence that she has not seen or talk to anyone including the victim's mother Dorothy Sipa, does not assist the substance of defence case.

24. Richard Willie said he spent his two (2) weeks of Term 2 holiday at Banz. He is a teacher by profession. He said he saw the accused at Banz. He said the accused operated his PMV Bus service at Banz. He also said his house is close to the accused's house at Banz and he knew the accused. But this witness fell short of saying whether accused does not come to Kundiawa as this witness does not know how accused operated his bus out of Banz. Again my view is that this defence witness evidence does not really strengthen the defence's, defense of alibi. Basic reason that this witness was not available at every time to monitor where the accused was going.

25. Ba Kale is the witness who the accused had decided to over-night, with on the 19th July at Mirane village. This witness said at Mirane village, he saw the accused stop the bus so he ran towards the accused. He said he saw the victim inside the bus. He then asked the accused if he had come with the victim. Witness told the victim to go down and stay with her bubu (grandmother) but the witness said the victim refused and said she wanted to go to Kela village to sell her betel nuts and smoke. The accused then told the victim to go down as the next day Monday 20th July classes will resume after Term 2 holiday. Wari got upset so the accused drove the bus, the witness sat on crew seat and they drove to Kela. At Onule village it rained and the bus got stuck, fuel was low and the battery was weak. They over-nighted, witness said the victim gave him betel nuts and smoke. The accused was tired and went to sleep, later the victim went to sleep but he stayed till morning. 

26. State Prosecutor raised objections with the evidence given by Ba Kala regarding the victim going to Kela village to sell her betel nuts and smoke. Furthermore, sharing her betel nuts and smoke with this witness. Next, regarding witness Ba Kale sitting in the bus till morning. Prosecutors objection was based on the Rule in Browne v Dunn (1893) GR 67 (HL). The rule in Browne v Dunn (supra) was followed in State v Minjipa [1977] PNGLR 293 and subsequently applied in State v Simon Ganga [1994] PNGLR 323. The principle in Brown v Dunn (Supra) basically stipulated that a party must put its case to the other party's witnesses in cross-examination so that the witnesses are given the opportunity to either agree, disagree or even explain what is being put to them. That was not put to the victim during cross-examination and is a clear breach of the rule Brown v Dunn (Supra) and cannot be relied on or given any consideration.

27. The accused Peter Mann used to be employed as Provincial Aids Co-ordinator based in Kundiawa. He resided at Malaria compound with his family. In April, 2009 he was put off from the payroll so left the Malaria Compound on the 25th of June, 2009. He told the Court he stayed at Banz all month. From June to July 2007.

28. He said he has a house at Banz and he stayed there and operated PMV Bus Service. At Banz, he travels to Kundiawa. And, he said on one of those occasions, he travel to Malaria Compound once during the mouth of July 2009. 

29. On the late afternoon on the 19th July, the accused said he decided to over night with his cousin brother Ba Kale at Marane village. He drove to Wara market and told his crew to overnight at Hapwara which is beside Kundiawa town. The crew left and he drove down and he said people blocked the bus and passengers rushed in to the bus. He then drove to Mirane village. At EBC, Mirane village, three (3) passengers got off and he was surprised to see the victim in the bus. Accused said when he asked the victim where she was going, she said to Kela village. 

30. Accused refuted because the victim had to attend classes (school) the next day. However, he said she assisted so he asked Ba Kale and both drove the victim to Kela village. At Onule village the road condition was bad so they stayed overnight. Accused slept in front on the driver seat, Ba Kale stayed till morning and the victim slept in one of the back seats.

31. I find the accused evidence shaky and unreliable. At Wara Market he said people blocked the bus and passengers rushed in to the bus. It became obvious not many passengers got on the bus. As the accused said only 3 passengers got off at Mirane while the victim was inside the bus. Ba Kale said only two (2) passengers got off. Accused being the guardian of the victim, and submitted to victim's demand to sell betel nuts and smoke is not usual. As a guardian education of the victim should have been given prominence. He said he left Malaria Compound and never returned but the victim's mother Dorothy Sipa in no uncertain term pointed out that though he left for Banz, he still comes back to Malaria Compound.

32. I cannot rely on the evidence of the other defence witness as they are related to the accused. Not just related but are "closely" related. As in the State's case, though the victim is related to the victim's mother, the victims' evidence is unshaken. She was honest and stood the test of cross-examination.

33. I am satisfied beyond reasonable doubt that the accused had sexually penetrated the victim on those 4 occasions and sexually touched the victims' breasts and accordingly found him guilty on all 5 counts and enter conviction against him.
 
VERDICT: 	Guilty on all 5 counts

_______________________________________________________________
Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyer for the Accused