Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Gela [2020] PGNC 513; N9940 (18 November 2020)

N9940

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1610 OF 2010

THE STATE

V

DARIUS GELA

Kokopo: Suelip AJ
2020: 17^th, 22^nd September & 18^th November

CRIMINAL LAW – trial – verdict – one count of sexual touching s.229B(1)(a)(4)(5) Criminal Code – victim is 7-year-old niece of the accused – corroboration is not required – evidence of prosecution tendered by consent – accused remained silent – analysis of evidence – burden of proof on prosecution.

Counsel

G Tugah, for the State
JM Ainui, for the Accused

VERDICT

18^th November, 2020

1. SUELIP AJ: On 17 September 2020, the accused was indicted on one count of sexual touching pursuant to section 229B (1)(a) (4)(5) of the Criminal Code, with circumstances of aggravation. It is alleged he committed the offence on 22 September 2010 at Rabagi No. 1 village, Gazelle District, East New Britain Province. He denied the charge which resulted in a trial being conducted on the same day.

2. This is now my ruling on verdict.

Allegations

3. The State alleges that on 2 September 2010 at 12:30pm, the accused and the complainant, Nancy Alois were at Rabagi No.1 village in the Gazelle District. The complainant was 7 years old at that time. At that said place and time, the father of the complainant, Alois Gela sent the complainant, Nancy Alois to collect mustard leaves. Whilst there, the accused sexually touched her vagina with his fingers. He is related to the complainant as an uncle because he is the younger brother of the complainant’s father.

4. The State alleges that his actions contravened Section 229B(1)(a)(4)(5) of the Criminal Code and charged him with one count of sexual touching with circumstances of aggravation.

The offence

5. Section 229B of the Criminal Code 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) compels a child under the age of 16 years to touch, with any part of his or her body, the sexual parts of the accused person’s own body,

is guilty of a crime.

Penalty: Subject to Subsection (4) and (5), imprisonment for a term not exceeding seven years.

(2) For the purposes of this section, “sexual parts” including the genital are, groin, buttocks or breast of a person.

(3) For the purposes of this section, a person touches another person if he touches the other person with his body or with an object manipulated by the person.

(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.

(5) If, at the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and the child, an offender against Subsection (1) is guilty of a crime, and is liable to imprisonment for a term not exceeding 12 years.

6. There is no requirement for any corroboration to prove this offence, see Section 229H of the Criminal Code as follows: -

SECTION 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.

7. For this offence, the elements for the State to prove beyond reasonable doubt are: -

(a) a person (accused)
(b) sexually touched with his fingers
(c) a child
(d) under 16 years old
(e) abuse of trust, authority or dependency

Issues

8. The issues are: -

(i) whether the accused sexually touched the vagina of the victim?

(ii) what is the age of the victim?

(iii) whether there exist a relationship of trust, authority or dependency between the accused and his niece?

Evidence by consent

9. The State did not call any witness but tendered into evidence the following documents with consent from defence:-

Document Exhibit

(a) Statement of the Complainant Nancy Alois (undated) S1

(b) Statement of the Complainant’s father Alois Gela

(undated) S2
(c) Statement of the mother Cathreen Alois (undated) S3

(d) Statement of the Corroborating Police Officer

Charles Sila dated 23/11/2010 S4

(e) Statement of the Arresting Officer Policewoman

Sergeant Dorcas Marnakat (undated) S5

(f) Record of Interview of Accused (Pidgin version)

dated 18/11/2010 S6

(g) Record of Interview of Accused (English version)

dated 18/11/2010 S7
(h) Copy of Clinic Book cover of Complainant S8

(i) Medical Report by Margaret Tavui (HEO dated

13/10/2010 S9

Summary of the State evidence

10. The complainant’s story in Exhibit S1 is that she was sent to get mustard leaves by her father and after she got the leaves, the accused approached her and grabbed hold of her. She told the police that he then pushed his fingers into her vagina, and he was touching her. She said she did not remove her trousers, but he pushed his hand inside her vagina. She told the police that he later carried her, and they both walked towards the house. While on the way, she said he told her to sleep on the ground, and he will sleep on top of her. However, she said when he saw her father standing at their house and looking at them in the valley, he suddenly put her down under a banana tree and ran away.

11. The complainant’s story is corroborated by her father in Exhibit S2. The father of the complainant said at that time he was with his wife and child (complainant) at their house. He said the accused was also at their house at that time. He said the accused left and followed the road up to the main road. The father then sent his daughter, the complainant to the side of the house to get mustard leaves while he walked to the copra dryer to get a basket (that was 15 to 20 meters away). He said when he got the basket and came back, he became concerned and suspicious that his little girl had not returned. So, he said he followed the road after his daughter, and he stood about 5 meters away when he saw the accused carrying his daughter. At that instant, when he saw him, he said the accused quickly put the little girl under a banana tree, and he ran away.

12. The complainant’s mother has also provided her statement in Exhibit S3. In her statement, Cathreen Alois says she is the mother of the complainant and the wife of Alois Gela. She says she’s from Rapitok No.3 and the complainant is her first-born child. She gave birth to her on the 29 July 2003 at Napapar Health Centre. She was with her husband at their house at Rabagi No.1 village when he saw the accused carrying the complainant.

13. Also in support of prosecution are the statements of the Corroborating Officer Charles Sila in Exhibit S4 and the Arresting Officer Policewoman Sergeant Dorcas Marnakat in Exhibit S5 where they say respectively that during the conduct of the record of interview (Exhibit S6 and Exhibit S7), after the accused was cautioned and his rights administered, he denied sexually touching his niece and pushing his finger into her vagina although he admitted carrying her.

14. To prove the complainant’s age, a copy of the Clinic book in Exhibit S8 shows that the complainant child Nancy Alois was born on the 29/07/2003. Hence, she was about 7 years, and 1 month and 3 weeks old at the date of the alleged offence.

15. The final document in the State’s evidence is Exhibit S9. This is the Medical Report by the H.E.O Margaret Tavui of Kerevat Rural Hospital which shows no injuries and that the hymen was intact. In her conclusion, she said from her findings, it is clear that complainant was not penetrated vaginally/anally using fingers or penis. However, she said she could have been probably touched over her clothes or being touched lightly.

Summary of Defence evidence

16. The accused denied committing the offence and he exercised his right under s.37 of the Constitution to remain silent and did not give evidence nor call any witness. However, he was interviewed by the police and his Record of Interview has been tendered into evidence with his consent. In the Record of Interview, he denied sexually touching his niece’s vagina. He also denied running away when his brother saw him carrying his niece. At Question and Answer 30, he was asked about how long he was carrying his niece and he answered and said he carried her for about 2 hours.

Analysis of the evidence

17. The accused is the complainant’s biological uncle. The complainant is his brother’s daughter. She was born on 29/07/2003. Hence, she was about 7 years, 1 month and 3 weeks old at the date of the alleged offence.

18. While corroboration is not required, the complainant’s statement is corroborated by her father’s statement although he did not see the accused sexually touching his daughter’s vagina and pushing his finger inside her. In the father’s statement, he said his daughter crying when she was telling him about what the accused did to her. There is no reason not to believe the complainant’s story. Moreover, her evidence does not require corroboration either.

19. There is also no issue of identification as the accused admitted he was with the complainant when the alleged offence was committed. The accused also did not say he was elsewhere at that time. However, he denied sexually touching his niece’s vagina and pushing his finger into her vagina.

20. It is not easy to lay allegations of this nature against the accused especially from immediate family members because being a close member of the family will have a very negative impact on relationships. It could destroy them completely. I see no reason why the complainant would want to lie about what the accused did to her. She had referred to him as “liklik papa” in her short undated statement. This shows her respect for her father’s brother and surely, she could not have lied.

21. At Question and Answer 30 in the record of interview, the accused was asked about how long he was carrying his niece. He answered and said he carried her for about 2 hours. This is a very interesting matter to consider because carrying a 7-year-old girl for about 2 hours is unrealistic unless on special circumstances for instance, when she is ill or disabled. Her weight would become unbearable within a few minutes. There is nothing in the record of interview to show the accused was carrying her on a long-distance course. The mustard leaves she was asked to get is nearby. As such, this raises a lot of doubt in my mind as to why he would be carrying a 7-year-old girl for 2 hours.

22. The State charged the accused with one count of sexual touching with circumstances of aggravation. The circumstance of aggravation is that the niece was under 12 years old. Further, the accused is the victim’s father’s brother and clearly, there is an existing relationship of trust, authority, or dependency.

Finding of facts

23. Based on the analysis of evidence, I find that the accused sexually touched his niece’s vagina and also pushed his finger into her vagina. I also find that his niece was only 7 years old, 1 month and 3 weeks old then and therefore, she was under 12 years old at that time. Further, I find there existed a relationship of trust, authority, and dependency between the accused, as an uncle and he breached that relationship.

Verdict

24. The accused has been charged with one count of sexual touching pursuant to section 229B(1)(a)(4)(5) of the Criminal Code, with circumstances of aggravation. I am satisfied beyond reasonable doubt that the State has proven all the elements of the offence he committed.

25. I find the accused guilty as charged.
________________________________________________________________
Public Prosecutor: Lawyers for State
Public Solicitor: Lawyers for Accused