N8244

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 84 OF 2017

THE STATE

V

DOWNSE KORISIBENI

Alotau: Toliken J
2019:	05th, 06th, 14th November

CRIMINAL LAW – Trial – Sexual penetration of a child under 16 years of age – Two counts – Circumstances of aggravation – Child under 12 years of age –Existing relationship of trust –Teacher/pupil relationship – Defence – General denial – Criminal Code Ch. 262, s229A (1)(2)(4)(5). 

PRACTICE & PROCEDURE – Evidence – Dates of offence – Complainant confused about dates but not the days offences occurred – Date of offence not essential element of charge –Corroboration no longer required – May be required for very young witnesses - Belated alibi – May be taken as corroboration – Evidence of complainant preferred over that of accused – Verdict – Guilty on both counts. 

Cases Cited:
Papua New Guinea Cases

Jaminan v The State (No 2) [1983] PNGLR 318

Overseas Cases

Browne v Dunn (1893) 6 R 67

Counsel:

A.	Kupmain, for the State
N. Wallis, for the Accused.

JUDGMENT ON VERDICT

14th November, 2019

1.	TOLIKEN, J: 	The accused Downes Korisibeni was charged on indictment with two counts of unlawful touching of a girl under the age of 12 years in respect of whom he stood in a position of trust pursuant to Section 229 (1) (2) (4) (5) of the Criminal Code Ch.262 (the Code). Both circumstances of aggravation are pleaded in the indictment.

2.	His charges were that on 21st of April 2016, at Wamawamana Elementary School, Maramatana LLG, Alotau District, Milne Bay Province, for sexual purposes, he touched the vagina of Phylis Tomile, a child under the age of 12 years then 10 years old. Then on 22nd April 2016 he again touched the said Phylis Tomile’s vagina for sexual purpose. On both occasions the indictment alleged that the complainant Phylis Tomile was 10 years old hence below the age of 12 years, and further that the accused stood on a position of trust, authority and dependency in that he was the complainant’s Elementary School teacher.

ALLEGATIONS

3.	The brief supporting allegations are that the accused was an Elementary School teacher at Wamawamana Elementary School. The complainant was one of his pupils. She was 10 years old at that time. On 21st April 2016 the accused called the complainant into his office and closed the door after her. He then approached her and put his hand under her skirt, into her underwear and fondled her vagina. He then told her not to tell her mother. The complainant left and joined her friends.

4.	The next day, 22nd April 2016, the accused again called the complainant into his office. He closed the door and then forced her to sit on his lap and spread her legs. The complainant resisted so the accused forcefully spread her legs and pushed his hands into her underwear and started to fondle her vagina. He then released the complainant and she went home.

5.	The matter came to light when other girls in the school reported having been similarly sexually assaulted by the accused. The accused was thereafter arrested for these offences and other allegations pertaining to other girls.

PLEA

6.	The accused generally denied both counts.

THE OFFENCE

7.	Section 229 (1) (a) (4) of the Code relevantly provides:
229B Sexual Touching
(1)	A person who for sexual purposes 
(a)	touches with any part of his or her body, the sexual parts of a child under the age of 16 years, or
(b)	….………………………….
is guilty of a crime.
Penalty: Subject to Subsection (4) and (5) imprisonment for a term not exceeding seven years.
…
(4)	If the child is under the age of 12 years, an offender under Subsection (1) is guilty of a crime and is liable to imprisonment for a term not exceeding 12 years.
8.	The term “Sexual parts” is defined by Subsection (2) of Section 229B to “include the genital area, groin, buttocks or breasts of a person.”

ELEMENTS

9.	For a conviction, the following elements must be proved beyond reasonable doubt -
1.	The accused
2.	Touched with a part of his or her body
3.	A sexual part of the complainant
4.	The complainant was a child under the age of 16 years.
5.	And where a circumstance of aggravation is alleged under Subsection (4), that the child was under the age of 12 years.

ISSUES
	
10.	While the accused generally denied or traversed the charges, it is not disputed that the complainant was under the age of 12 years old and that the accused was the complainant’s teacher and thus stood in a position of trust, authority and dependency in respect of the child. Hence the only issue is; whether or not the accused touched the complainant’s vagina for sexual purposes on the dates alleged in the indictment.

THE EVIDENCE

11.	The evidence before the court for the State came from the complainant and her mother Jesset Tomile. The State also tendered the following documents by consent:

(i)	the accused’s Record of Interview dated 07th September 2016. (Exh. A)
(ii)	Affidavit of Dr Grace Kariwiga annexing a Medical Report dated 16th October 2016. (Exh. B)
(iii)	Photograph of the complainant. (Exh. C)
(iv)	A page from the complainant’s Claire Book. (Exh. D)

12.	The accused on the other hand elected to give sworn evidence but did not call any other witnesses.

State’s Case

13.	The complainant testified that in 2016 she was living with her grandmother Phyllis Isako at Wamawamana Village. She was 10 years old and was doing Elementary Two at the local Elementary School. Her parents were living at Huhuana Village. 

14.	She recalled the morning of Thursday 21st April 2016. She went to school that day and was in the classroom when the accused, her teacher, came into the classroom. He put up some work on the black board and as the pupils were working on them, he called the complainant into his office. When she went into the office the accused went over to her. He pushed his hands under her skirt and touched her vagina. He then told her to go back and continue with her work.

15.	That afternoon while at home she experienced pain in her genitals while urinating and reported to her grandmother. Her grandmother gave her medicine to drink. She also told her grandmother that she did not like her teacher because he touches her vagina. Her grandmother instructed her not to go to the teacher when he calls her.

16.	She went to school the next day - a Friday. She, however, completely forgot about her grandmother’s warning and so when the accused called her into his office she complied and went in. The accused closed the doors after her and then put his hand under her skirt and underwear and touched her vagina then he said to her “You’re a good girl. Do not go and report this matter.”

17.	The complainant was asked in cross-examination if the 21st of April 2016 was on a school holiday and she said it was not and neither was the 22nd of April 2016. She said this thing happened on the first week after they had returned from holiday or term break.

18.	When asked if the term break commenced on 11th of April 2016 the complainant answered in the affirmative and confirmed also when put to her that the 22nd of April 2016 was still within the term break and further confirmed that nobody was in school then.

19.	She denied that the incident happened during the term break and maintained that the dates were correct.

20.	It was put to her then that she was not at school as it was a school holiday and she agreed. When it was suggested that she was not telling the truth she said that she was telling the truth.

21.	When pressed about the date, she maintained dates were correct and that her teacher (the accused) was at school. She answered in the negative when asked if it was correct that the incident did occur on the 21-22 April 2016. When asked if she reported to her grandmother or anyone else, she said she did and that she also reported to her school friends Verlin and Soma. They reported the matter to their parents who then reported to the police.

22.	Jesset Tomile is the mother of the complainant. At the time of the alleged incidents she and rest of the family were living at Huhuna while the complainant was with her grandmother Phyllis at Wamawamana where she attended the local Elementary School.Sometime in June 2016, she visited her mother Phyllis and her daughter the complainant. 

23.	While there she learned from Verlin’s mother that the accused had allegedly been sexually abusing the complainant, Verlin and Soma by touching their vaginas in his office. She was shocked. She asked her daughter if this was true and she told her what the accused had done to her on the two occasions. She also confirmed this separately with her mother Phyllis after reporting the matter to the peace officer. Her mother confirmed the story and also told her that the complainant had complained of abdominal pain on the afternoon of the first occasion. She gave her some medicine and warned her not to go to the accused if he calls her. 

24.	The matter was eventually reported to the police and the complainant was also taken to the hospital for a medical checkup in the month of July. Jesset Tomile admitted in cross-examination that she learned about the alleged incidents from other people.

Defence Case

25.	The accused on the other hand testified that he was the Teacher In-Charge of Wamawamana Elementary School at the time of the alleged offences and that the complainant was one of his pupils.

26.	On Thursday 7th April 2016 (Week 9) he suspended classes early for the Easter Weekend and the term break. The term break was to start on the 18th April 2016. However, an In-service for the teachers had been planned for a week from the 11th April 2016. Hence, they were to take two breaks instead of one.

27.	On Monday 11th April 2016, he went to the main Primary School to confirm whether the In-Service was going ahead. He was advised that it had been cancelled and post-phoned. On Tuesday 12th he returned to the Elementary School. They were not able to recall the pupils, so he and the teachers continued on to completer their term work.

28.	The term break proper started on 18th of April 2016 and ended on Friday 22nd April 2016. On Sunday 17th April 2016 he went up to his garden in the mountains after church. He stayed up there until 22nd April when his elder brother went up and they both returned to the village.

29.	He said he is not sure why these allegations are made up against him. However, when it was put to him in examination in-chief if he knew of any reasons especially when the incidents are said to have happened on 21st and 22nd April 2016 which fell within the term break, he said he was not sure but it might have something to do with land disputes which the Tomiles have with the Korisibenis.

30.	The accused maintained in cross-examination that the 21st and 22nd of April fell within the first term break and that he couldn’t have committed the offence because he was not in school but in his garden in the mountains above his village.

31.	Asked if he told his lawyer about that, he said he did and denied raising his belated alibi to protect himself. Asked if he had any record to show that the 21-22 April 2016 indeed fell within a term break, he said schools had a fixed Education Calendar. He maintained that he did not touch the complainant’s vagina on the dates alleged by the prosecution. And on re-examination he re-confirmed that 21st - 22nd April fell within the normal term break and that pupils were not in school.

SUBMISSIONS

32.	Mr. Wallis submitted for the accused that the State has not proven its case beyond reasonable doubt. Counsel said the complainant’s mother’s evidence is hearsay and hence inadmissible and that the medical report which was done months after the alleged incidents has no probative value at all. And the Record of Interview is of no assistance as the accused made no admissions there. In any case, Counsel submitted this offence could not have happened because the alleged dates fell within the term break when the pupils were not at school.

33.	This, Counsel said, is a case of who to believe and the accused ought to be believed because his demeanor was excellent while the complainant was confused about the alleged dates, but most importantly, she agreed that the said dates fell during the term break. Hence the accused must be acquitted.

34.	Mr. Kupmain submitted for the State that the complainant ought to be believed because she delivered her evidence in a convincing manner and her evidence was corroborated with her mother.

35.	The crucial evidence, Counsel submitted, is that the accused touched the complainant’s vagina on the alleged dates; she felt pain while urinating later that day and reported that to her grandmother who gave her medicine and warned her not to go to his office again; that the complainant’s friends Verlin and Soma also had similar experiences, and that the complainant did not report promptly to her parents because they lived far from Wamawamana.

36.	Furthermore, why would a young girl like the complainant fabricate this story, Counsel asked. He said there is no reason for her to do that and the only reason she did was because what she said was done to her was true.

37.	On the other hand, Counsel said the accused remained silent in his record of interview and tried to blame the allegations on a land dispute with the Tomiles, which, of course was not put to Mrs. Jesset Tomile. Hence, Counsel said this was a recent invention by the accused who was very defensive and that should not go to his credit.

38.	Lastly the accused raised the defense of alibi which was never raised at pre-trial so that the State could have negatived the evidence. That also is a recent invention and is nowhere mentioned in the record of interview at the very least. Counsel said there is sufficient evidence to convict the accused.

DELIBERATIONS

39.	So did the accused touch the complainant’s vagina on the alleged dates? Did those dates fall within the first term break in the 2016 Education Calendar? If so, could the complainant be mistaken about the dates? Is the evidence of Jesset Tomile hearsay and hence inadmissible? Has the complainant’s evidence been corroborated and is there a need for corroboration at all in circumstances such as this? What is the effect of the accused belated alibi defense? These are pertinent questions upon which the outcome of the case will turn and upon which the issues will ultimately be resolved.
Did alleged dates fall on a school holiday first term break?
40.	No evidence was produced to show that the 21st and 22nd of April indeed fell within the First Term Break of the 2016 Education Calendar. I, however, took it upon myself to search the National Department of Education website and confirmed that these dates indeed fell within the First Term Break which commenced on the 10th of April and ended on 22nd April 2016.
Was the complainant confused about the dates? 
41.	I am of the view that the complainant was confused about the dates. She was 10 years old at that time and no child except one who is extraordinarily gifted will be able to be fully aware and conversion with dates, lesser still exactly remember them. This was obvious from her answers in cross examination which at first glance appear to be contradictory when she was asked about the dates and whether classes were not on during the school break. However, the complainant gave her answers based on how they were framed and even though she may have been confused about the dates, she was firm that the alleged incidents happened on a Thursday and a Friday. That evidence was not contradicted in any way.

42.	And so, while there might be some confusion about the exact dates of the alleged offences, there is no dispute that they happened on a Thursday and Friday in the month of April when classes were still on. On the same token there is also dispute that the 21-22nd April 2016 indeed fell during the First Term Break of the 2016 school calendar.

43.	There is, however, something in the record of interview which appears to suggest to me that the incidents did not happen on 21st and 22nd April 2016, but a week later, after classes had resumed after the term break. There in Q & A 18, the arresting officer put to the accused that she had received a complaint from Phyllis’ parents that on the 28thApril 2016, he had called the complainant (victim) into his office around 9:00a.m, closed the door and sexually touched her vagina. In answer the accused said, “Date is falsely stated.” That answer can be interpreted a number of ways, but what appears plain to me is that the accused disputed the date then and now as he did at the trial. He remained silent to the series of questions following that, which of course he has the right to do. But it does leave the question whether he was really disputing the date, but not the substance of the complainant’s allegations. That remains open.

44.	All in all, I am satisfied that the complainant was confused about the dates but that does not necessarily mean that she was confused about the fact that the assault on her happened during a Thursday or Friday during Term 1 of the 2016 academic year. In any case times and dates are not essential elements of the charges under enquiry. 

Did Jesset Tomile corroborate her daughter’s evidence?

45.	Mrs. Tomile’s evidence would be technically hearsay if the purpose for which it was given was to prove the guilt of the accused. If it was made or given merely as a part of the narrative as to how the matter got reported to the Police, then it would not be inadmissible hearsay.  Be that as it may, her evidence really has no probative value in as far as the guilt or otherwise of the accused is concerned.

46.	Corroboration is no longer required to convict an accused person for a sexual offence. Neither is a judge required to warn himself of the dangers of convicting an accused person on the uncorroborated evidence of the complainant. (Section 229 H of the Code). There are, however, cases that may require corroboration because Section 229H does not give the license to a trial judge to convict an accused person every time and on flimsy of evidence. This is especially true when the complainants are as young as the complainant in this case was. In such cases corroboration may be required because the State still has the duty to prove its case on the criminal standard.

47.	The accused has raised an alibi only at the trial and this caught the State by surprise. The State has therefore been denied the opportunity to adduce evidence of its own to negative the accused’s alibi.

48.	The accused is required by Criminal Practice Rules to file his Notice of Alibi if he so wishes to rely on that defence within 14 days from the date of the trial. The accused did not do that here nor did he forewarn the State that he will at the pre-trial conference.

49.	The law on alibi evidence is settled and is sufficiently discussed in the seminal case of Jaminan v The State (No 2) [1983] PNGLR 318. It was also held in that case by Bredmeyer J., that a false alibi can in fact corroborate the State’s case.

CONCLUSIONS

50.	In the instant case, the accused may not necessarily be offering a false alibi because the dates alleged by the State indeed fell on a term break when pupils and teachers were on holiday, and indeed the accused may have been in his gardens up in the mountains for the whole period including the 21st and 22nd of April 2016.

51.	However, I find that the accused had conveniently stuck to these dates because in doing so, he believes that he could not be found to have committed the offence. That unfortunately is not the case. As I have said, times and dates are not essential elements of an offence unless of course an offence specifically provides that they are. They are not in the case of sexual offenses and so, an accused can therefore be convicted notwithstanding that the dates are wrongly cited, or that witnesses are mistaken, if the essential elements of the charge are proved to the required criminal standard.

52.	In this case I am satisfied that the complainant was mistaken about the dates which as we have seen indeed fell during the first term break of the 2016 academic year.

53.	However, she was not mistaken that the alleged offences took place on a Thursday and a Friday while classes were on. And it is reasonable to infer therefore that the offences happened on the week after classes resumed, as the complainant said in her evidence, which incidentally would have been on 28th April 2016, a Thursday and Friday 29th April 2016. 

54.	I am also satisfied that the complainant was not mistaken nor was her evidence completely rendered unreliable and unsatisfactory, that the accused called her into his office on a Thursday morning, put his hand under her skirt and touched her vagina, and that the next day, a Friday, he again called her into his office, shut the door behind her and told her to sit on his laps. And when she resisted, he put her on his lap, spread her legs and again touched her vagina. He then let her go but not before telling her that she was a good girl and that she should not tell anyone what he did to her.

55.	The accused here feigned ignorance or lack of knowledge about why he had been charged and his suggestions that it might have to do with his family’s dispute over land with the Tomile’s cannot be given any weight. It was not put to Mrs. Tomile when she was on the stand and that is a breach of the rule in Browne v Dunn (1893) 6 R 67.

VERDICT

56.	I am satisfied therefore beyond reasonable doubt that the State has proved both counts and return verdicts of guilty accordingly.

Ordered Accordingly.
___________________________________________________________
P. Kaluwin, Public Prosecutor: 	Lawyer for the State
L. B. Mamu, Public Solicitor: 	Lawyer for the Accused