N5250

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 648 OF 2012

THE STATE

V

ALPHONES KANAWE

Kokopo: Lenalia, J.
2013: 15th, 19th, 23rd April & 20th May

CRIMINAL LAW – Sexual Touching – Two Counts – Plea of not guilty – Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 s.229B (1) (4).

CRIMINAL LAW – Sexual touching – Plea of not guilty – Trial – Evidence of victim – Treated with caution – Victim's previous inconsistent statements tendered.

CRIMINAL LAW – Evidence – Credibility of – Evidence adduced by the victim – Statement given to police and to the medical officer suggest rape – Evidence in Court suggests touching – Victim's evidence corroborated by her auntie of obscene conversation with accused at about 12 midnight on 31st August 2011 
 
Cases cited
Papua New Guinea

Paulus Pawa v The State [1981] PNGLR.498
The State v Tom Morris [1981] PNGLR 493
Peter Townsend-v-George Oika [1981] PNGLR 12
The State-v-Andrew Tovue [1981] PNGLR 8. 
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) SC.528 

Overseas cases cited

Peacock-v-The King (1911) 13 C. L. R. 619
Plomp-v-The Queen (1963) 100 C. L. R. 234 
Thomas-v-The Queen (1960) 102 C. L. R. 584).

Counsel

Mrs. S. Cherake, for the State
Mr. N. Motuwe, for the Accused

20th May, 2013

1. LENALIA, J: The accused pleaded not guilty to two counts of sexual touching aggravated by the victim's close relationship with the accused. This is contrary to s. 229E (1) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.

2. The above Section states:

 "ABUSE OF TRUST, AUTHORITY OR DEPENDENCY.
 
(1)	A person who engages in an act of sexual penetration or sexual touching of a child between the ages of 16 and 18 years with whom the person has an existing relationship of trust, authority or dependency is guilty of a crime.

 Penalty: Imprisonment for a term not exceeding 15 years."

3. The prosecution called two witnesses. The victim Julian Makau gave evidence that, on two occasions, she asked the accused for money and the accused told her that after he finished working in both occasions, he was going to give her the money she requested for. 

4. On the first occasion, it was on a date in July 2011, after the accused returned from work, between 8 pm and 9 pm, the accused called the victim on up to the school campus at Gunanba Primary School where he wanted to give the victim the money. As she came to where the accused was standing, she reached her hand out to collect the money but the accused grabbed her by her hand and pulled her towards him and started to kiss her then went on to touched her breast then on to her vagina. After giving her the money, he released her.

5. On the second time, the victim again asked the accused for K18.00 to buy a short from a Mini/Mart shop here in town. The accused again asked her to collect the money from him on the road side near the same school. After he returned from work, he called up the victim by mobile and asked her to come up to somewhere near the school grounds. When she came, he held on to her hands and pulled her into the aibika patch where he again sexually touched her breasts, and the vagina. She was asked in cross-examination why she told police that she was raped. She answered that, when her two aunties came down to the Kokopo Primary School to take her to the police to report and lay her complaint, one of her aunties told her to tell police that, she was actually raped on those two occasions. She added that, in fact she was not raped.
 
6. The second witness, Scholastica Mission is a primary school teacher at Kokopo Primary School. Her evidence relates to an incident on 31st August 2012 where she was awoken by the noise of the victim talking to the accused at about midnight. She said, she heard the victim talking to someone on the mobile phone with portions of such conversation very obscene in nature. When they woke up in the morning, she asked the victim who she was talking to.

7. In reply, the victim told her that, she was talking to the accused and when Scholastica asked why she was talking to her uncle in the way she did that night. The victim then told her the story that, she was talking to her uncle Alphones Kanawe because, she asked him for flex or top-up for her mobile phone. It was there that, the victim revealed what the accused did to her. In cross-examination, this witness was asked what were the words used by the victim to the accused when they were talking on that night. The witness said, since the accused is her brother, she would not tell the Court what words were uttered by the victim to the accused as it is prohibited by the Tolai custom. She laughed away and covered her mouth with her hands repeating herself that, the accused is her brother and she would not reveal what language was used.

8. She indicated, the words used were obscene and insulting in nature and when she heard such words being used, she knew there was something going on between the accused and the victim. She then called her two elder sisters down to the school and they went to report the matter to the police. 
 
9. The record of interview and the medical report were tendered by consent and marked Exhibits "1" and "2" respectively. This is where the prosecution closed their case. The medical report was complete denial.

10. When the Court called on the defence counsel to commence the defence case, Mr. Motuwe indicated that there was no evidence to call, but the accused wanted to make an unsworn statement from the defendants' dock. The accused was called upon to confirm what his lawyer told the Court and he admitted, he merely wanted to make an unsworn statement. 

11. On his statement, the accused said, he does not deny giving the victim money. He denied giving her money at the bus-stop. He admitted to giving sums of money to the victim on two separate occasions. He denied the allegations of sexual touching and said, it was true the victim called him by her mobile and asked for K2.00 flex. She also spoke to him about her bag of clothes that were or had been left in the bus that he was the driver of. He said the clothes had been left there for some time and it was an opportune time for him to raise the matter with her when she called up that night. He did not indicate if the conversation had with the complainant was obscene or not but said on the issue of sexual touching, he did not do anything to the victim. 

Submissions on the Verdict.

12. Mr. Motuwe of counsel for the accused submitted that, the State has not proven their case to the criminal standard of proof namely "proof beyond reasonable doubt". Counsel referred to contradictory statements which the victim made to the police on her statement dated 23rd June 2011. In that last part of that statement, she informed the police investigating the complaint that, at the time the accused gave her the K18.00, the accused pulled her to the aibika garden and kissed her then removed her clothes and sexually penetrated her. She also said, she suffered great pain in her vagina.

13. On the medical report dated, the victim also told the HEO Judy Eremas that, the accused had sexual intercourse with her in the school garden at Gunanba Primary School. Counsel submitted that, the victim is such a person that cannot be trusted and the accused should not be found guilty. 

14. For the prosecution, Mrs. Cherake submitted that the State has proven their case beyond reasonable doubt. Counsel submitted that the evidence of the victim is corroborated by that of aunt and the Court should accepted her evidence and find the accused guilty and convict him on the two charges of sexual touching. 

Analysis of the Evidence.

15. The accused is charged with two counts of sexual touching pursuant to Section 229E(1) of the Criminal Code Amended. This is because, the prosecution says that, the accused in the first cousin of the victim in the sense that, the accused mother and that of the victim are biological sisters with one common mother. I come to an important question on allegations about someone who is related to the complainant. The question is, why would the victim and Ms. Scholastica Mission come to Court and tell lie when the victim and the accused are very closely related.
 
16. The accused gave no evidence and call no witnesses. No incriminating inferences will be drawn from that. The issue is the fact that the victim had chosen to come and testified to her being sexually assaulted and not raped does not necessarily mean she is a lier. She would probably have reasons as to why she wanted to maintain the allegations of sexual touching. In any event, this Court is dealing with charges involving sexual nature. In order to create a mood for sexual activity with a woman, foreplay is an integral part of it. 

17. I consider evidence by the victim where she was asked in cross-examination about why tell the police and the medical officer that, she was raped in the first place and when she came to Court she told a different story. She gave an answer that, she was forced by one of her auntie to tell police that she was raped. 

18. The prosecution evidence is both direct and circumstantial. There was direct evidence from the young victim that she was sexually touched on her breasts and then on to her vagina. Witness Scholastica gave evidence of hearing an obscene conversation between the accused and the victim about 12 midnight on 31st August 2012 where she was awoken by the noise of the victim talking to the accused at about midnight. She said, she heard the victim talking to someone on the mobile phone and when they woke up in the morning, she asked the victim who she was talking to and she informed Scholastica that, the accused was talking to her. 

19. In cross-examination, the witness confirmed that, the nature of the conversation was obscene and she said, she could not believe her ears as she heard the victim talking to someone who was none other than her first cousin brother. The issue is whose evidence should the Court accept as truthful and whose should be rejected. The principles governing reception of evidence of the nature and manner described by the evidence adduced by the prosecution on this trial have been stated over and over again in this jurisdiction.

20. 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: Garitau Bonu & Rossana Bonu v The State (1997) SC.528 and The State v Garitau Bonu & Rossana Bonu [1996] PNGLR.48, see also The State-v-Tom Morris [1981] PNGLR 493 and Paulus Pawa-v-The State [1981] PNGLR 498 (on circumstantial evidence) where there are a number of competing inferences, it is a question of fact for the trial judge to decide which and what inferences should be drawn, which should be rejected, which are reasonable, which are mere conjunctures and which party should the court believe.

21. In practice, since this case is of sexual nature, a further warning must also be taken into consideration here. The accused raised a general denial on his defence. There is a principle or rule of law 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 particular by other evidence from independent source which renders it probable that the offence charged has been committed by someone and that someone must have been the accused 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. 

22. I note the wording of s.229H of the Criminal Code (Sexual Offences and Crimes Against Children) Act which states that an accused person may be found guilty upon uncorroborated evidence of one witness. This Section states:

"229H. CORROBORATION NOT REQUIRED.

On a charge of an offence against any provision of this Division, a person may be found guilty on the uncorroborated testimony of one witness, and a Judge shall not instruct himself or herself that it is unsafe to find the accused guilty in the absence of corroboration."
 
23. In my view the above 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 that of the second witness. 

24. It is 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. 

25. The common law principles of drawing of rational inferences have been adopted into this jurisdiction in cases such as 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. (See common law cases of Peacock-v-The King (1911) 13 C. L. R. 619, Plomp-v-The Queen (1963) 100 C. L. R. 234 and Thomas-v-The Queen (1960) 102 C. L. R. 584).

26. On the instant trial, I accept the evidence by the prosecutrix and that of her auntie as credible and I conclude that, the only rational inference that the circumstances of the evidence called on this trial would enable this Court to draw is the guilt of the accused. The Court finds the accused guilty on the two charges of sexual touching. He is found guilty and convicted accordingly.

_________________________________________________________
The Public Prosecutor: Lawyer for the State.
Paraka Lawyers: Lawyer for the Accused.