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State v Kuila (No 1) [2009] PGNC 108 (16 April 2009)

N3735

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.1504 OF 2006

THE STATE

V

ISAAC KUILA (NO.1)

Kokopo: Lenalia, J.
2009: 18th, 19th, 23rd, 24th March & 16th April

CRIMINAL LAW – Sexual Touching – Plea of guilty – Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 s.229B (1) (4).

CRIMINAL LAW – Sexual touching – Plea of not guilty – Trial – Evidence of young children be treated with caution – Victim at time of offence was about 9 years – Accused 67 years.

CRIMINAL LAW – Evidence – Credibility of – Evidence adduced by two young witnesses credible and corroborate each other on third count.

Cases cited.

Papua New Guinea Cases

Paulus Pawa v The State [1981] PNGLR 498
The State v Tom Morris [1981] PNGLR 493
The State v Garitau Bonu & Rossana Bonu [1996] PNGLR 48
Garitau Bonu & Rossana Bonu v The State (1997) SC528

Overseas cases

Barca v The Queen [1975] HCA 42; (1975) 133 C.L.R 82

Counsel

Luben, for the State
J. Ainui, for the Accused

16th April 2009

1. LENALIA, J: The accused pleaded not guilty to three counts of sexual touching aggravated by the victim being under the age of 12 years, an offence contrary to s.229B (1) (a) and (4) of the Criminal Code Sexual Offences and Crimes Against Children Act 2002.

2. The prosecution called three witnesses. Before they were called, the following statements of various State witnesses were tendered by consent and accepted as part of the State’s case. They include the following:

- Medical Report dated 12.9.06 Exhibit "A"

- Record of interview Exhs. "B1" & "B2" for Pidgin and English translation.

- Statement of Elisha Kedeke dated 7.9.06. Ex. "C".

- Statement of corroborator Ex. "D".

3. The record of interview contains denials right through. Much the same with the medical report shows that the victim did not suffer any injuries. Contents of statements by Investigating Officer Elisha Kedeke and the corroborator Harry Dale are similar. They each say when the accused was asked about the offences, he denied he ever asked the victim to hold his penis.

4. Before calling witness Essie July (the victim), the State Prosecutor applied under s.37B (1) (a) (b) and (2) of the Evidence Act for the use of a screen to prevent the victim from seeing the accused when giving evidence. There were two reasons given for the use of the screen. First, the offence was a sexual one and secondly, the victim was an underage girl. No objection was taken by the defence counsel and the screen was arranged before the trial commenced.

5. The victim in her testimony gave an account of three occasions on which the accused abused her by asking her to hold his penis. On the first time in 2005 the accused allured the victim by asking her to come to his kitchen. She obeyed willingly and followed him into the kitchen. While they were inside the kitchen, the accused removed his laplap and asked the victim to hold on to his penis.

6. As a prelude to what happened in the above instance, the accused had earlier on came to where the victim was weaving a coconut mat and told her dirty stories about sexual activities. Then came the second time in the year 2006. Once again the accused invited the victim into his kitchen and once they were inside the house, he removed his laplap and asked her to pondle his penis in the form of masturbation.

7. On the third occasion, it happened when the victim’s guardians went out to town. The accused once more called her into his kitchen. About the same time, the victim’s auntie and Esther Bernard arrived from town. Before she entered into the kitchen, the second witness (Esther Bernard) saw her walking into the accused kitchen.

8. Esther went back and told the victim’s auntie that, she had seen her going into the accused’s kitchen. They started to call for the victim. Evidence shows that, the victim’s guardians’ house is next to that of the accused. They share a common border.

9. Essie’s evidence is that, when the two of them were in the kitchen, she told the accused that, her auntie was calling out for her. Having heard this, the accused asked the victim to go down to the valley at the back of their house. He asked her to go through a different track than the one he was to go through. They walked out from the kitchen and down into the valley.

10. They met each other at the valley and the accused collected dried banana leaves and placed them on the ground. He laid down and asked the victim to sit astride him on his groins on top his penis. The victim said, the accused could not master an erection perhaps sufficient to achieve penetration.

11. Her evidence further shows that because her auntie and Esther kept calling out for her, she told the accused that her auntie was looking for her and she was released. When she got home, her auntie bashed her up and when she was asked where she had been, she revealed the story of what the accused had done to her that day and other incidents since 2005.

12. The second witness Esther Bernard’s evidence is relevant in so far as it corroborates that of the victim by seeing her going into the accused’s kitchen on 29th of August 2006. Esther testified that, she saw Essie going into the accused kitchen on the above date. She went back and told her granny about what she saw.

13. Her granny, Angela Kekep corroborated Esther’s evidence who said, after she was told about Essie going into the accused kitchen they both called out to the victim to come. Angela’s evidence is that, they called and shouted for the victim about almost one hour.

14. When the victim finally came, Angela said she was furious and she started to beat her. In the course of that, she asked the victim where she had been. The victim told Angela Kekep what the accused had done to her that day and other previous occasions. On hearing this, she went to the accused premises and asked the accused if what the victim told her was true.

15. The accused is said to have admitted that he did a bad thing to the victim. As a result of that, the accused paid 150 fathoms of Tolai shell money to Angela and her husband as a means of compensation for what he did to the little victim.

Defence case

16. Three witnesses were called by the defence. The accused gave evidence that he is a married man and he has eight grown up children. He was employed as a diesel mechanic with the Department of Works & Supply Marine Division. His evidence is that, a lady who is now deceased by the name of Mrs. Nerrie Peril made up all these bad and false stories against him for reasons only known to her.

17. He said that was the reason why when Mrs. Peril was ready to die at Nonga General Hospital, she invited him (accused), the Pastor and the Chair Woman of Nangananga United Church to visit her before she died. He was asked in chief and cross-examination as to why he went with the pastor and the chairwoman to visit Mrs. Kekep.

18. The accused said, it was because she had made up stories against him and the victim. He further said, because Mrs. Kekep knew that she was dying and she wanted to apologize and confess for making up the bad stories against him and Essie.

19. The accused was asked about the victim’s evidence, if it was true that he had on three occasions engaged the victim to hold his penis and on the third time, he got her and made her sit on top his penis but because he could not master an erection, he could not sexually penetrate her. The accused answered no. He was asked why the victim should make up false stories against him. The accused said, he did not know why.

20. He was asked about why he paid compensation to the victim. He said, he wasn’t present at the time when compensation was made. He said his wife made compensation while he was in police custody. He added that, the reason why compensation was made was to settle the parties.

21. In cross-examination, a series of questions were put to the accused one of which was if it was true that when he went to the victim’s auntie’s house, he said, sorry for what he had done to the victim. The accused said it was true that he told the victim and her auntie that, he should compensate the victim for allegedly defaming his name.

22. It was put to the accused why should he compensate the victim for something which he did not do. He said it was because they mentioned or accused him so he wanted to pay compensation to clear his name.

23. That was despite the fact that, he did not commit the offences. Part of his evidence is that, the husband of the deceased woman came to invite him, the pastor and chairwoman of Nangananga United Church to say sorry for the false allegations made against him.

24. The second defence witness Ms. Kesilu Kalenga. At the time of the offences, she was the Chairwoman of Nangananga United Church and she comes from Unaulul village. She has been in that office for sometime now and this year is her third term in office.

25. She recalls that some two weeks before Nerrie passed away, Nerrie’s husband invited her, the pastor and the accused to visit her at Nonga Base Hospital. She was asked in chief if she was present at the time Nerrie spoke to the pastor and the accused. The following is what she revealed in her evidence.

26. When they arrived at Nonga hospital, in the presence of the deceased’s husband, Nerrie confessed to the accused saying that she (Nerrie) was very sorry for making a false accusation against the accused. Asked in chief what was the nature of the false allegation, the witness said it was an allegation of sorcery in which the deceased had accused Isaac Kuila of performing sorcery on her. She was asked if Nerrie had apologised for anything else, the witness said, there was nothing else and after she made such confession, they returned and two weeks later, Nerrie passed away.

27. Asked in cross-examination if she was sure if Nerrie only made a confession about the sorcery allegations. The witness said, as a Church representative, she can only recall to the best of her recollection that, the confession was made in relation to the allegation of sorcery in which, the deceased had spread a rumour in the village that, the accused is supposed to have performed sorcery on Nerrie.

28. Further asked as to how Nerrie knew that, the accused had made poison on her? The witness said she heard Nerrie said that, she saw a vision on which she observed the accused performed sorcery to cause Nerrie’s death.

29. Elison Karingal was the Pastor ministering Nangananga United Church at the time of the offence. Pastor Elison said, he was invited together with the chairwoman of the above church and the accused to visit Nerrie Peril at her sick bed at Nonga hospital. The witness was asked as to what was the nature of the confession made by Nerrie Peril. The witness said, that the sick woman who was lying in her sick bed, said sorry for saying that the accused had make something to spoil Nerrie Peril’s life.

30. In chief, the witness was repeatedly asked, what was the nature of the confession and the witness could only say, as far as he can recall, Nerrie had earlier on told her relatives that, the accused had made something bad to Nerrie’s life. Then after the confession was made, the witness said, he asked the accused if he had anything to mention and the accused said he accepted Nerrie’s confession. That was the end of the defence case.

Defence address on evidence

31. On behalf of the accused, Ms. Ainui submitted that the evidence by the State was inconsistent. She cited an example when the victim was asked in cross-examination as to how many times the accused allowed her to hold his penis. At one stage she said it was four times. There is no relevance in that part of the defence submission because the Public Prosecutor had the power to decide how many charges should be laid against an accused.

32. Later when she was asked again she said it was three times. She referred to the medical report which is Ex. "A" saying there is no evidence of penetration. Counsel said, the victim was not telling the truth. Of course the charges before this court are not sexual penetration in nature.

Prosecution address on evidence

33. Ms. Luben of counsel for the prosecution replied by saying, the charges are sexual touching. She referred to the evidence of the victim alone saying that, the victim could not have made up stories against the accused for nothing. Counsel submitted that the State’s evidence was consistent all through from the victim to the last prosecution witness. She referred to the 1st and 2nd witnesses as although young, they were confident and consistent in their evidence.

34. She invited the court to consider s.63 of the Evidence Act. That Section states that, where there is no proof of the age of a person, the court having seen the witness in court can estimate the age of that witness. Counsel submitted that, this case concerns a very young victim and the court should be cautious in treating young victim’s evidence. As was in this case, though the victim is young, she could not just make up bad stories against the accused who is an elderly person.

Law

35. The accused is charged for sexual touching and not sexual penetration. I quote s.229B (1) (2) (3) (4) and (5) of the Criminal Code (Sexual Offences and Crimes Against Children) Act. It states:

"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, 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."

(4) If the child is under the age of 12 years, an offence 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 and 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".

36. The issue on this trial is whose evidence should the court accept as credible? The cases before me are cases of sexual touching or sexual in nature. I am required to warn myself of convicting the accused on the evidence by the two young witnesses. In the case of the victim, I do not doubt her evidence in any way.

37. I now warn myself about the evidence of the victim and the second witness because they are minors. There is no rule of law saying the court cannot accept the evidence of a minor. I observed the demeanour of Essie July (victim) and Esther Bernard gave their evidence who by the time of these offences were 9 and 8 years respectively. I take their evidence as credible. They were confident and answered questions forthwith without hesitation. I conclude that the victim and witness Esther Bernard were truthful and reliable witnesses.

38. It is settled law in this jurisdiction that the court can either accept or reject evidence both by the prosecution and the defence on the basis of whether such witness is credible or not: Paulus Pawa v The State [1981] PNGLR.498, see also Garitau Bonu & Rossana Bonu v The State (1997) SC.528 and The State v Garitau Bonu & Rossana Bonu [1996] PNGLR.48.

39 Under this head, the court must observe the witnesses demeanour and use common sense and tell whether the witness was telling the truth or not. Let me quote a passage from the common law case of Barca v The Queen [1975] HCA 42; (1975) 133 C.L.R 82 at 104 which was quoted in The State v Tom Morris [1981] PNGLR 493 at 495 which concisely states the position in law on drawing of inferences. The court in that case said:

"When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’: Peacock v The King [1911] HCA 66; (1911) 13 C.L.R 619 at p.634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but hat it should be ‘the only reasonable inference that the circumstances would enable them to draw’: Plomp v. The Queen (1963) 110 C.L.R 324, at p.352; see also Thomas v The Queen [1960] HCA 2; (1960) 102 C.L.R 584 at pp.605-606. However ‘an inference to be reasonable must rest upon something more than mere conjecture...’ ".

40. The accused raised general denial on his defence. However his own two witnesses did not support the defence case. The second defence witness was forthright in giving details of the reasons why Mrs. Nerrie Peril invited the three of them (accused, Kesilu Kalenga & the pastor) to visit her in her sick-bed at Nonga hospital.

41. She said the reason they were invited by Nerrie was because, earlier on, Nerrie had made allegations that, the accused had performed poison on her and she knew that she was dying so she sent word to the pastor and the chairwoman of Nangananga United Church so she could confess to the accused so that she could be forgiven.

42. Even though Pastor Elison generally said, the reason they went to Nonga hospital was because Nerrie wanted to confess to the accused for something the accused did to spoil Nerrie’s life or something bad she had done to the accused before, it is clear from the last two defence witnesses that, Nerrie did not apologize for the sexual allegations made by the victim against the accused.

43. The court infers this from the last two defence witnesses because they did not mention if they were at the hospital to talk about sexual allegations made against the accused. The confession was made for sorcery allegation which Nerrie had accused or blamed the accused for performing magic or sorcery on her. The evidence shows that, Nerrie Peril died two weeks after the visit.

44. I have assessed all the evidence both for the prosecution and defence and I find that there are no motives for the victim to tell lies. Even in cross-examination, the accused was asked why the victim would tell lies about what the accused is supposed to have done. The accused simply said there were no motives for her to tell lies.
So then the question that ought to be asked is why did the victim make up these false stories against the accused? I observed the accused demeanour while giving his evidence. Answers to questions put to him by both counsels were hastily given. His two witnesses even contradicted him.

45. I find there is inconsistency in the defence case because the accused said he went to Nonga hospital with his two witnesses and Nerrie confessed about raising false allegations of sexually abusing the victim. On the other hand, his two witnesses said, they went there and Nerrie confessed about accusing the accused for allegations of sorcery.

46. I find the prosecution evidence is more credible than that of the defence. Applying the principles stated in the case of The State v Tom Morris and Paulus Pawa v The State (supra) I return verdicts of guilty on all three counts of sexual touching. The accused is found guilty and the court convicts him on all the three charges of sexual touching.

______________________________

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