N3198

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1236 OF 2004

THE STATE

V

ALEXANDER JUNIOR NARA of Urip Village, Dagua,
East Sepik Province (No. 1)
-Accused-

Kimbe: Davani .J
2007: 5 & 12 April

CRIMINAL – Sexual touching of a child – not guilty plea – conduct of a trial – special measures order – s. 229B(1)(a)(4) of the Criminal Code (Sexual Offences and Crimes Against children) Act of 2002 – s.37B(1)(a)(b) of the Evidence (Amendment) Act 2002.

CRIMINAL – Defence of accident – an act occurring independently of the will of a person is separate and distinct from an accidental event which brings about the final result – Defence must be raised at pre-	trial – even if Defence not raised by the accused until trial, court should not convict unless Defence has been disproved at trial – S. 24 of Criminal Code Act.

CRIMINAL – Credibility of witness or accused – keeping an explanation undercover with a view to surprising the other side is most unlikely to add to the credibility of a party.

Cases cited

Papua New Guinea Cases

Koru Noho v Proy Vaii (1979) N188 

Overseas Cases

Palmer v R (1971) AC 814 
Thomas -v- Van Dan Yssl [1976] 14 SASR 205 

Counsel:

A. Kupmain, for the State
P. Kapi, for the Accused

VERDICT

10 April, 2007

1. DAVANI J: On 5 April 2007, the State presented an indictment charging Alexander Junior Nara (the accused) with one (1) count of sexual touching, charge laid pursuant to s. 229B (1) (a) (4) of the Criminal Code (Sexual Offences and Crimes Against Children) Act of 2002 (‘CCSOCAC). He pleaded not guilty, necessitating a trial.

S. 229B (1) (a) (4) reads;

"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
…
(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.
..."

State’s allegations

2. The accused is a 27 year-old male from Urip Village, Dagua in the East Sepik Province. He presently resides with his parents at block 1827, section 9, Kavui in Kimbe. He was completing a 2-year programme in a Diploma in journalism at the Divine Word University in 2001 but had to discontinue because he could not pay the school fees.

3. He is the victim’s first cousin, being the son of the victim’s mother’s brother. The victim, P.N., is presently in grade 9 at a primary School in Kimbe. She was in grade 4 and aged 9 years when the offence was allegedly committed upon her.

4. The State alleges that on 22 February, 2004 at Kavui, Block 1827 at about 7pm, the victim was sent by her mother to fetch water from a drum under the accused’s house. The accused was sitting on the steps when the victim arrived with her plastic containers. It was there that the accused, whilst in the pretext of assisting her, placed his hand in the victim’s panties and rubbed her genitalia. Upon this happening, the victim screamed and ran crying to her mother.

Defences case

5. The accused denies the allegations saying that if the incident did occur, that it was an unintentional act on his part. He said it was whilst he was assisting the victim fill up her water container, that his elbow or a part of his body, may have rubbed against her genitalia.

Preliminary matters

6. Before the commencement of evidence by the State, Mr Kupmain, counsel for the State, made application under s. 37B (1) (a) (b) of the Evidence (Amendment) Act 2002 for a special measures order, considering the victim was below the age of 18. This application was not opposed. The orders I made was for the victim to give evidence without being frightened or distressed. Section 37B of that act allowed for that to happen i.e if in the opinion of the court, the quality of the witnesses evidence was likely to be dissolved by reason of fear or distress, the court can make such an order.

The orders enabled;

i.	The use of a screen to prevent the victim from seeing the accused;
ii.	A policewoman to sit with the victim in the witness box when she was giving evidence;
iii.	The victim to give evidence in camera.

7. I made such an order because it was not contrary to the interests of justice.

Analysis of evidence and the law

8. The State called the victim and her mother. The accused was the only witness in his defence.

9. The victim’s evidence was that on the day in question, she was asked by her mother to fetch water from a drum seated under the accused’s parents’ house. As she ran in, she saw the accused seated on the steps to the house. The accused heard her and called out ‘whose there’. She responded by saying ‘Bata Jun Jun, it’s me". Bata JunJun is interpreted to mean ‘my brother JunJun’. JunJun is short for Junior, the accused’s second name. The victim said the accused came down the stairs, walked up to her, approached her from the back, put his hand in her panty, then rubbed his fingers on her genitalia. She cried and ran to her mother.

10. She told her mother and her mother then called out to the accused asking him "who is she, your enemy for you to do this to her. She is your sister".

11. The victim’s mother confirms the victim’s evidence. She said she did send the victim to fetch water from under the accused’s parents’ house after they returned from the garden. She heard the accused ask who was under the house and she heard her daughter respond by saying "It’s me, bata JunJun’. She said about 5 to 10 minutes later, she heard her daughter scream, a scream so terrible, as though her daughter was in pain. Her daughter ran to her, crying and in a state of fear. She asked her what was wrong. 

12. The victim did not say anything but urinated on herself. After a while she told her mother what had happened.

13. She said she reported the matter to the police and the police called a meeting involving the victim’s mother and the accused’s parents. It was agreed that the accused and his parents would pay some monies to the victim and her mother and that this would be done within 6 months. But this did not happen. The victim’s mother then reported the matter to the police who promptly arrested the accused.

14. The accused’s counsel, in submissions, raised the Defence of accident under s. 24 of the CCA. He submitted that if the accused had touched the victim’s genitalia, that it was unintentional. He said he did not know which part of her body he touched. But the victim’s evidence is that when the accused pushed his hand in her panty, he rubbed her genitalia and that it was not for too long. She said it did not feel good, that was why she cried. The victim’s evidence is also that the accused came from behind and pushed his hand into her panty.

15. Who is telling the truth here? 

16. The victim was aged 9 when the offence was allegedly committed. She is now 12 years old and in grade 7. Her evidence was clear, unblemished and free of contradictions. The accused however, expects the court to believe that when he put his hand into the victim’s panty and touched and rubbed the victim’s genitalia, that it was an accident. There are several irregularities and inconsistencies in the accused’s case that I must point out. This will all go to the accused’s credibility. These are;

i.	The Defence of accident under s. 24 of the CCA was not raised at pre-trial nor was it raised in Defence Counsel’s opening. The only time Defence counsel raised this provision was when he made submissions. This is procedurally irregular. If counsel is to rely on any statutory provisions as part of its Defence, that this must be made known to opposing counsel at the pre-trial stages. Keeping an explanation under cover with a view to surprising the other side is most unlikely to add to the credibility of a party. However, it is now settled law that if there is evidence of a particular Defence, even though it has not been specifically raised by the accused, the court should not convict unless satisfied that that Defence has been disproved (see Palmer v R (1971) AC 814 and cited in Koru Noho v Proy Vaii (1979) N 188 dated 23rd March 1979).

ii.	Furthermore, s. 24 is in the alternative. It is either unintentional or an accident. Mr Kapi raises both alternatives. He cannot do that. It is most irregular. There is good reason for that. Chalmers, Injia, Weisbrot and Paliwala in the text "Criminal Law and Practice of Papua New Guinea" said at pg 164 that: "Section 24 is intended to make it clear that subject to the express provisions of the code relating to negligent acts and omission, where a person is charged with the commission of a crime, criminal liability shall not attach where the alleged acts or omissions which are said to amount to the commission of the crime charged have occurred independently of the will of the accused or where in association with some act or omission of the accused, there has occurred some accidental event which has substantially brought about the final result".

17. Obviously s. 24 carries two separate elements. The accused either opts for one or the other. An act occurring independently of the will of a person is separate and distinct from an accidental event which brings about the final result.

18. Generally, the situation in this case is not akin to that of an accident or an unintentional act. In this case, the victim was in the process of fetching water from a drum when the accused came from her rear and placed his hand in her panty. How can this be an "accident" or an "unintentional act" within the meaning of s. 24?

19. The accused’s evidence is that his elbow may have touched the victim’s private part when he lowered the drum for her. How can his elbow touch her private part? Did he put his elbow into her panty? Most unlikely. The victim is adamant in her evidence that he did touch her private part with his hand and rub it. I believe her because there is no reason for her to lie. Evidence from the accused, on her mother coaching her to say this, has no substance. I find it hard to accept that a grown man like the accused did not know when he touched a female’s body, what he touched. Clearly, Defence Counsel has raised this Defence as a last minute ploy to shift the blame-worthiness of the accused. But it has not succeeded because of the manner in which this defence was presented. The various legal elements that go towards establishing an unintentional act or an accidental event have not been proven by the evidence. Furthermore, there are no legal submissions or evidence from Defence Counsel on this aspect that would convince me otherwise. As I said, this is all a last minute ploy which is definitely impinging on the accused’s credibility as a witness.

20. In any event, there are matters he raised in his evidence which were not put to the victim, thus breaching the well established rules on cross-examination. e.g

i.	When he went to assist Priscilla, he told her wait, that he will straighten the drum for her to fill up;

ii.	That he had to remove the iron sheeting that covered the drum;

21. The case Thomas v Van Dan Yssl [1976] 14 SASR 205 at 206, Bray CJ summarized the principles on cross-examination in these words:

"….. If it is intended to suggest that a witness is not speaking the truth on a particular matter by cross-examination, his direction must be directed to the matter by cross-examination so that he may have an opportunity of giving an explanation of it open to him unless he has had notice beforehand that the credibility of his story is impeached, or unless, probably, it is so intrinsically and patently incredible as to be unworthy of examination. With respect, I think the rule is a salutary one. As Lord Herschell said at 70, ‘It is absolutely essential to the proper conduct of the cause."

22. The other two members of the Full Court of the Supreme Court of South Australia concurred with the judgement of Bray CJ.

23. Additionally, the accused’s evidence became very confusing when he referred to plastic drums as buckets then later as size 44 gallon drums.

24. The accused also showed and demonstrated that he was very calculative and careful in his evidence. In cross-examination he admitted that he did touch the victim’s genitalia or vagina as he said but in re-examination he said, at that time he could not recall what part of her body he touched. But he knows now it is her vagina because that is what the victim told the police and told the court. No doubt, the accused is fabricating his evidence.

Conclusion

25. The accused is clearly lying to the court. His credibility is tainted beyond doubt.

26. I have no hesitation in finding that the State has proven beyond reasonable doubt, the charge of sexual touching, against the accused. The accused is guilty as charged.

_____________________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused