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Independent State of Papua New Guinea v Taikaip (No 1) [2023] PGNC 397; N10374 (30 June 2023)

N10374

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 392 OF 2022

BETWEEN:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

AGAINST:

STEVEN SIKI TAIKAIP

(No 1)

-Accused-

Waigani: Tamade AJ

2023: 15^th May; 30^th June

CRIMINAL LAW – verdict – section 299(B)(1)(a) and (4) of the Criminal Code- sexual touching- Accused known to the victim-

Cases Cited

State ats Patrick [2004] PGNC 147; N2611

State v Avaka [2000] PGNC 56; N2024

Legislation:

Criminal Code Act

Counsel:
Ms Violet Ningakun, for State
Ms Kim Watakapura, for the Accused

30^th June 2023

1. TAMADE AJ: The Accused is charged with one count of sexual touching pursuant to section 229B(1)(a) and (4) of the Criminal Code.
   
2. Section 229B(1)(a) and (4) of the Criminal Code is as follows:
   

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.

3. On 15 May 2023, the State presented an indictment against the Accused, c the Accused saw her and covered her mouth with his hand and held her hands and took her up to the mountains where he showed her K50 and told her that she is his wife. The Accused then took off his blue jean trousers and rubbed his penis on the victim’s vagina. He then turned the victim and tried to insert his penis into the victim’s vagina when he was disturbed by the victim’s family calling out her name looking for her. He then released the victim and ran away.
   
4. The Accused on arraignment pleaded NOT GUILTY to the charge and the State called its witnesses.
   

State’s evidence

5. The State and the Defence agreed for the following exhibits to be tendered into evidence by consent:
   
   1. Record of Interview of Steven Siki Taikaip (in Tok Pisin) - P1
   2. Record of Interview of Steven Siki Taikaip (English Translation)- P2
   100. Victim’s Birth Certificate- P3
   4. Photographs of the Crime Scene and the Complainant- P4
   5. Statement of Senior Sergeant Agnes Sive-P5
   6. Statement of Corroborator- Constable Peter Cathy- P6
   7. Statement of Investigator First Constable Maria Nombri- P7
      
6. The State called Sabeth Toyam who is from Goroka and lives at the Japanese Mountain, Dogura at 6 mile. She is a vendor at the market who sells greens and vegetables at the market. Between 7pm and 7:30pm, she felt the need to use the toilet and or as she says “nature call”, she went into the nearby bush to relieve herself. Whilst she was in the bush relieving herself, she saw a man with his hand to a girls mouth and leading her up to the mountains. She said that the man and the girl were about 15 to 20 meters to where she was doing her nature call. She said she thought it was a drug addict and she ran down the hill and told the people at the market. At the marked was the victim’s brother whose name is Ben. Ben then ran up the mountain after the man and his sister and Sabeth stayed back at the market as she said it was getting dark.
   
7. Sabeth states in evidence that after Ben and other people had gone up the mountain looking for the girl and when they came back down to the market after they assaulted the man, she saw the Accused as the man they assaulted. Sabeth said the Accused was assaulted after he was found with the girl and she saw him when they brought him down to the market. He was apprehended and kept at the market until the police came and took him away.
   
8. In cross examination, Sabeth was questioned that as it was getting dark, it was not possible for her to identify the Accused. Sabeth insists that there was light coming from the nearby houses. When asked whether there was a lot of people moving about and that she could not see clearly the Accused, she said that there were people at the market however from the track or small road leading up to the mountain, she could see a man pulling the child up the mountain.
   
9. The victim was brought in to also give evidence. At the time of the offence, the victim was 9 years old. She is now 11 years old. On the said date between 7pm and 7:30pm, she said she was with her father at their house and she was on her way to buy lolly from her mother’s market. On returning from her mother’s market, the Accused came and used his right elbow to cup her mouth and led her to the mountain. She said the Accused showed her K50 note and told her that she is his wife. He then laid her on to the ground, removed his trousers and rubbed his penis on her vagina. She also said he put his penis on her buttocks. She described what he was wearing on that day as a blue jeans and black shirt. She then heard voices of her family calling out her name and that was when the Accused removed his hand from her mouth, quickly pulled up his pants and as he was trying to run away, the victim’s father, brother and others came and assaulted the Accused. The Accused was then brought down from the mountain and a person by the name of Jeffery called the Police who arrested the Accused.
   
10. I observe that the child was clearly distraught and timid in her answers to the lawyer’s questions. In retelling what happened, it was clear that she was recalling a bad incident. She replied to the lawyer’s questions that when she was taken up the mountain, “she did not feel good”. When the Accused covered her mouth, she said “she did not feel good”. She was cross examined at length as to whether she can clearly identify the Accused at the time as it was getting dark, she clearly recalls the event and there is no doubt in my mind that she was telling the truth.
    
11. The cross examination also attempted to discredit the victim and or challenge her memory of whether it was the Accused right or left hand that cupped her mouth and or whether the victim was confused with another incident of a fight at the market. The victim is a credible witness and I do not doubt her evidence as though she answers the questions timidly and quietly, she maintained her story.
    
12. Benjamin Andrew is the brother of the victim. He is about 28 years old. On 14 June 2021 at around 7pm, he was at his mother’s table market with other boys whom they had gone swimming with during the day. His mother’s table market is near the bus stop at the Japanese Market at 6 mile, Dogura. There was a lot of people moving around at the market and whilst he was sitting there with the other boys, his mother called out to him whether he had seen his younger sister, the victim. Benjamin states that because the victim was a sick girl, Benjamin started to look for her sister.
    
13. It was then that Benjamin heard Aunty Apo (Sabeth Toyam) called out and said your sister was taken up the mountain with a man who cupped her mouth with his hand. Benjamin clearly identified Sabeth Toyam and referred to her as Aunty Apo as he is from Goroka and reside also at the Japanese Mountains. Her market table is next to Benjamin’s mother’s market table. Benjamin then grabbed his slingshot and torch and ran up the mountain with the boys that were sitting around with him at the market as he said he knew that it was her younger sister the victim who was taken up the mountain.
    
14. Whilst running up the mountain, Benjamin said he was calling out her younger sister’s name for about 5 to 6 times and when she responded, he ran to where her voice was coming from. As he approached he saw his younger sister the victim and the Accused. Benjamin said he saw the Accused’s shoes on the ground with his other shorts and he was in the process of pulling up and tying his sportswear that he wore underneath. He questioned his sister what the man had done to her. His sister then told her that the man had taken off both their trousers or pants and had touched her buttocks. Benjamin said as he approached, he also saw his sister pulling up her panties and shots. He then assaulted the Accused by punching him. He then called out to the community that he found this man with his younger sister and that was when the community joined in the assault on the Accused. The Accused was brought down from the mountain to the market area where police were called and the Accused was apprehended.
    
15. In cross examination, Benjamin maintained his story that when he arrived where his sister and the Accused were, he could see that they were dressing up. He started beating up the Accused when his mother and father and others arrived. He said he did not see anything else that happened meaning any sexual intercourse but he came upon them when the Accused and her sister were pulling up their pants and getting dressed. He maintained his story that his sister, the victim told her what the Accused had done to her. When posed a questioned in cross examination as to an inconsistent statement of whether he went up the mountain himself or he went up with his boys, he said that his story given to Court is correct as he went up with his boys.
    
16. Benjamin also clarified that when he meant the victim his sister was a sick girl, he meant that the victim usually gets feats and therefore the family usually keep a strict eye on her.
    
17. The prosecution then closed its case and the Defense called the Accused as the only witness.
    

Defence evidence

18. The Accused is a married man from Enga of about 40 to 50 years old as in his Record of Interview, he is not sure about his date of birth and gave only an estimate of his age. The Accused says that he has two wives and has five children to his first wife. His evidence in Court was in the Engan language and interpreted by the Court interpreter.
    
19. The Accused story in the Record of Interview is that the victim had told a lie to the police. He said he was with his wife at the market on that day. The victim and another little girl came by and as he was trying top up credits into his phone to make a call, he gave K1 each to each of the girls. He said in examination in chief that he usually does this to the victim as she was around the same age as his daughters. The other girl got the K1 and went and bought sausage. The victim however wanted him to give her K2 and therefore threw a tantrum, threw the K1 away and followed him to give her K2. She followed him near to the road next to some houses and it was when the Apo lady, came by and saw them and reported him to the people at the market. He said the Apo lady told the victim’s mother that he hit the victim. The boys who were drinking there then assaulted the Accused.
    
20. The Accused said in evidence that all the State witnesses were lying and denied the allegations against him. In State v Avaka [2000] PGNC 56; N2024 (2 November 2000), the Court carefully observed the demeanor of the Accused and said this:
    

“...As I said, I have observed the accused’s demeanour carefully when giving evidence, and was not impressed. He was evasive and hesitant when confronted with crucial and probing questions pointing to his guilt of the offence charged. Such lies and or fabricated evidence are clear demonstration of his consciousness of his guilt of the offence with which he is charged. Similar observations were made by Windeyer J in Woon v R [1964] HCA 23; [1964] 109 CLR 529, pp.541-542, which I respectively adopt. His Honour said, "....Whether an accusation be in terms denied or conceded, may sometimes be less important than the manner and the tone of the words used by the accused under circumstances of the utterance.

A man’s look may belie him. Demeanour and conduct may discount denial and manifest guilt as surely as would a confession made by words. But I think that Dr. Coppel was right when he said that the inference which can be drawn from conduct and demeanour that displays a consciousness of guilt may depend upon whether there is other evidence pointing to the accused as guilty of the offence charged. When there is, false account of movements, false denials of knowledge of relevant facts, any conduct, utterance or demeanour demonstrative of guilt may go far to support a conclusion that the accused committed the very crime charged" (my underlinings).

21. The Accused had given evidence in the Engan language. His tone and demeanor in responding to the question in cross examination were dismissive. He portrayed a disappointed man that the State witnesses had an agenda against him and fabricated the entire allegation over what he says is a dispute over the land which he bought and removed the victim and her family from. His evidence that he was assaulted by drunk men cannot be believed as the entire community was involved in beating him up as told by Sabeth Toyam and Benjamin Andrew.
    
22. The Accused story is not corroborated by any other witness. Under section 229H of the Criminal Code, a person may be found on the uncorroborated evidence of one witness. Weighing up the evidence of the Accused and the fact that it was uncorroborated, I am less likely to believe his story as it was uncorroborated when the setting in which he presented his story had a lot of people moving around at the market area in the afternoon of that day however he could not bring one witness to support his story.
    
23. Exhibit P4 which was tendered by consent of parties is a photograph of the area and of the road leading up to the hill or mountain as told by the witnesses. There are no big trees or thick shrubs that will block the view up to the mountain. The few shrubs in between houses are sparse. Between 7pm and 7:30pm, I find that it would still be visible from the glow of the setting sun and the visibility would also be possible from the lights from the nearby houses about a stones throw from the boundaries of these properties.
    
24. The Defence made submissions that there was no medical report to show that the victim was sexually violated however I am of the view that there is no need for a medical report as unless penetration or some other sexual charge requires proof of sexual violation, I am of the view the charge of sexual touching does not require a medical report to prove sexual touching.
    

Deliberation

25. The Defence objections to the victim’s evidence as to inconsistencies are overruled as they are not fatal. The objections on inconsistencies are whether the Accused used his right or left hand to cup the victim’s mouth to gag or keep her from screaming when he took her up the mountain and includes whether he gagged her with his hands or with his elbows. The victim appeared to be timid and took her time to answer the questions from both the Prosecution and the Defence. Retelling the ordeal, she was consistent in her evidence given to the police and again to court that she was led up the mountain. She was offered money and told by the Accused that she will be or is his wife and gave particular description of what the Accused did to her including the color of his clothes and underwear. The State has referred the Court to the case of State ats Patrick [2004] PGNC 147; N2611 (13 May 2004) that though the victim was shy, quite and soft spoken, there was no reason to believe that the victim would attend Court and lie on oath especially if she knew the Accused. The victim knows the Accused as someone whom they live with in the same area and who does his market next to her mother’s market.
    
26. Sabeth Toyam is also a truthful witness. She was taking a nature call, she went up the mountain in the bush to relieve herself when she heard someone coming and saw figures from about 15 to 20 minutes from where she was doing her business. The place was getting dark but she said she had clear visibility to identify the Accused and the victim as the Accused had his hand on the victim’s mouth to prevent her from screaming. She came down to the market area and reported the the matter to the people there. She was there at the market when they brought the battered Accused down to the market and identified him as the person she saw with the victim.
    
27. The victim’s brother is also a truthful witness. He is aware that his sister suffers from feats and therefore was quick to look for her when Sabeth or Aunty Apo reported that she was seen going up the mountain with someone who had his hand to her mouth to prevent her from screaming. Benjamin’s evidence clearly dispels any confusion as to whether there was another fight going on at the market at that time. When he heard that his sister was taken up the mountain by a man, he took his slingshot and torch and he ran. There were boys who were out swimming with him that day who also ran with him to rescue his sister. Benjamin came upon the Accused and his sister. He caught the Accused with his shoes and his pants beside him as he was trying to dress and he saw his sister also dressing up. He asked his sister what happened and being informed of what the Accused did, he started to punch and beat the Accused calling out to the community who ascended on to the Accused and assaulted him leading him back down to the market area where he was arrested and taken away by the police.
    
28. There is therefore evidence presented by the State that the Accused for sexual purposes touched with his penis, the sexual parts of the victim being her vagina and her buttocks and at the time, the child was 9 years of age. There is evidence of the victim’s Birth Certificate that she was 9 years old at the time of the offence.
    
29. I am satisfied that the evidence by the State proves beyond reasonable doubt that the Accused did sexually touch the victim and is guilty as charged under section 229B(1)(a) and (4) of the Criminal Code.
    
30. I return a verdict of GUILTY against the Accused.

_______________________________________________________________

Office of the Public Prosecutor: Lawyers for the State

Office of the Public Solicitor: Lawyers for the Accused