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State v Balbal [2018] PGNC 282; N7347 (2 July 2018)

N7347

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 488 of 2017

THE STATE

-V-

LEONARD BALBAL

Kavieng: Kangwia, J.

2018: 15 June & 02 July

CRIMINAL LAW – Sexual offences – corroboration not required pursuant to s 229H of the Crimes against children Act of the Criminal Code -Corroboration is required where the evidence is hearsay.

Cases cited:

Nil

Counsel

S Luben, for the State

M Mumure, for the Accused

02^nd July, 2018

1. KANGWIA, J: The accused was charged with one count of Sexual Touching under s. 229B and one count of sexual penetration under s 229A (1) of the Criminal Code Act. He pleaded not guilty and a trial ensued. This is the decision on verdict.

2. The allegations were that on 25 September 2016 the accused took the victim who was his daughter from the mother’s village to his house.

3. There it was alleged that the accused undressed the victim, fondled her vagina with his tongue and inserted his finger into the victim’s vagina.

4. Division 2A – of the Criminal Code (Sexual Offences against Children) Act makes provision for offences against children who were under the age of 16 years.

5. The subdivisions also make the following provisions:

Under s 229H corroboration is not a requirement. A person can be convicted on the uncorroborated evidence of one witness. It is not unsafe to convict on the uncorroborated evidence.

Under s 229I the spouse of a person is a competent and compellable witness.

6. Besides those provisions it is the established principle of law that the Prosecution bears the burden of proving each and every element of the offence charged.

7. To prove its case the State tendered into evidence the Pidgin version and the English translation of the ROI which contained denials. The medical report stated that abrasions were present on the vaginal entry. A statutory declaration by the mother of the victim stating the date of birth was also tendered by consent.

8. The State called two witnesses. The first was the mother who told the Court of what the victim had earlier told her; that the accused had licked the vagina of the victim and inserted his fingers into her vagina while they were together.

9. The second witness was the investigating officer who told the Court that when the victim was asked for information the victim declined to say anything to her. She repeated her silence when she was approached after three weeks hence no information could be obtained even with inducements.

10. The defence submitted that there was no credible evidence to establish the offences charged and the accused should be discharged.

11. For the State it was submitted that the evidence offered by the State was credible and was further corroborated by the Medical Report of abrasions on the victim’s vagina. The Court should believe the veracity of the evidence by the mother as coming from the victim.

12. I restate what I stated earlier that it is an established principle of law that the State bears the burden of proving each and every element of the offence alleged. The Defence does not disprove an allegation. Defence can negative issues in the allegations.

13. The only evidence on the part of the State that may be of any worth is from the victim’s mother. She did not give evidence as an eye witness. She told the Court what the victim allegedly told her earlier. That clearly puts her evidence as hearsay.

14. The law under s 229H of the criminal Code is that corroboration is not a requirement. Pursuant to this provision my view is that no corroboration was required where the evidence was from the victim. In the present case the evidence is from the mother and not the victim herself. The mother’s evidence is therefore hearsay. The hearsay evidence in my view requires corroboration.

15. Her evidence also contains inconsistencies. She told the Court of seeing the victim and the accused naked in the house after she entered the house on the first night. She later in questions from counsel changed her story and said she was on the roadside and returned when the father did not hand over the child.

16. On the second day when police entered the house to find them naked she was on the side of the road again. How could she see the accused naked when only police entered the house on the second day? There is no evidence from the police or from anyone of the persons who entered the house to affirm the assertion that the accused was found naked.

17. This type of evidence in my view goes to show that her evidence contains matters which are far from the truth. She in further questions tried to justify her prior statements and evidence at trial.

18. She told the Court that on the first day she went with her mother to get the victim but could not because the accused refused to hand over the child. There is no evidence of any communication between her and the accused on the first night.

19. The evidence of the investigator also makes the mother’s evidence less credible. Her evidence was that the victim remained silent when asked to talk about the allegation. The victim repeated that position three weeks later.

20. If that were the situation the inference that can be safely drawn is that the victim did the same thing to the mother; that she did not make the statement the mother alleged; that there is adequate room to assume that the mother invented the statements as coming from the victim.

21. The accused on the other hand answered all the questions put to him. As to his being naked he told the Court that he had just returned after a shower when police confronted him. On the victim being naked he told the Court that the victim had wetted her pants and had to be removed. These replies by the accused are in my view believable.

22. His evidence is centred on the second day and not on the first day. They in no way demonstrate any concoction or invention to dispel the allegations.

23. He further admitted to slapping the victim after she fell from the balcony and tried to run away. The evidence of the slap is consistent with the medical report findings of abrasions on the victim’s face.

24. He did not make any straight denials apart from responding that he had no answer to some of the question put to him by counsel.

25. The medical report is in my view inconclusive. There is no evidence of any medical examination on the victim apart from a physical observation by the nurse.

26. There are many possibilities open in the circumstances of this case. The mother could have framed up a story to give her husband a hard time for their domestic problems.

27. There is no evidence of any domestic problems that led the mother to take the children away apart from hunger. She had run away from her husband with the kids before the accused removed the victim from the mother.

28. In conclusion the State evidence consists of hearsay evidence only that is not corroborated in any material particular. The victim remained silent and did not relay her story to the investigator even with inducements. A second hearsay evidence would go a long way to support admissibility of the mother’s evidence.

29. The evidence of the mother stands as hearsay and uncorroborated. It would be unsafe to convict on the evidence as it stands.

30. I return a verdict of Not Guilty.

_______________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defence