N4778

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. N0: 1471 OF 2010

THE STATE

V

JACK ANDY

Waigani: Maliku AJ

2012: 20th August

CRIMINAL LAW - Sexual Touching –Section 229B (5) Criminal Code (Sexual Offences and Crime against Children) Act

CRIMINAL LAW - General defence – Plea of Not Guilty - Finding of guilty of accused after a trial – accused convicted

Cases Cited

Nil

Counsel 
Miss Tracey Ganaii, for the State
Mr Fredrick Kirriwom, for the Accused

1.	MALIKU AJ: The accused Jack Andy stands charged that he on the 29th day of May 2010 at Erima, Port Moresby, National Capital District engaged in a conduct of sexual touching for sexual purposes of a child, namely Michelle Muru a child under the age of 16 years, namely 15 years of age; AND in the course of the conduct there existed a relationship of trust, authority or dependency between the said Jack Andy and Michelle Muru thereby contravening Section 229 B (5) of the Criminal Code (Sexual Offences and Crimes against Children) Act.

2.	Prior to the State calling its witness Miss Tracey Ganaii for the State tendered the following documentary evidence with consent which were accepted and marked accordingly:

i.	Statement of Kialo Naina dated 31st May 2010 marked Ex A

ii.	Statement of Jeffery Nawatz dated 31st May 200marked Ex B

iii.	Statement of 1st Constable Jenifer Galia dated 31st May 2010 marked Ex C

iv.	Statement of Constable Rachael Pinda dated 01st June 2010 marked Ex D

v.	Birth Certificate of Michelle issued on the 29th May 2009 marked Ex E

vi.	Record of Interview of the accused Jack Andy dated 31st May 2010 marked Ex F

vii.	A piece of paper which contained a famous Bible passage of John 3:16 marked G. This was tendered during the trial.

viii.	Statement of Jeampi Muru marked Ex H. This was tendered before the State closed its case.

3.	At the end of the State's case Mr Kirriwom for the accused informed the Court that the accused had opted to remain silent. Nevertheless the options available to the accused was put to the accused which the accused formally informed the Court that he wished to remain silent and was calling no other evidence. Mr Kirriwom then formally closed the defence case.

Evidence by affidavits

1.	Kialo Naina –Ex A

4.	The evidence of Mr Kialo Naina says that: 

He is married to the victim's sister, Martina Muru. He was driving his family vehicle with the victim and the accused in it at the time of the commission of the offence. He knew of what happened to the victim when his wife Martina Muru asked the victim about what he described as an incident at Erima. That the victim told Martina Muru that she was touched on her private parts by the accused Jack Andy.

This evidence is relevant only as regard to the witness is married to the victim's sister, Martina Muru, and that he drove his family vehicle with the victim and the accused and the uncle of the victim seated at the back seat in the vehicle on the 29th of May 2010 from Vabukori village after a birthday party and was present at the time the victim told his wife about Jack Andy touching her breast at Erima and him asking his wife to interview the victim at Carpenters Hardware. 

This evidence has no relevancy as to whether the accused did commit the offence because he only knew about it when his wife Martina Muru approached the victim who then told what happened upon which he asked his wife Martina to interview the victim properly at the Carpenters Hardware.

2.	Jeffery Nawatz- Ex B

8.	The evidence of Jeffery Nawatz says that:

He is an uncle of the victim Michelle Muru. They attended a birthday party at Vabukori and were returning home in the night. Martina Muru was sitting off side to her husband who was driving them. He was sitting at the back seat with Michelle Muru and the accused Jack Andy. He had a lot of beer, drunk and was sleeping. He woke up at Erima and heard Martina Muru shouting at Jack Andy. He heard Michelle Muru told Martina Muru about Jack Andy. They drove from Erima to Kialo Naina's work place.

This evidence is relevant only as regard to the fact that he is the uncle of the victim Michelle Muru, and that he was sitting at the back seat in the vehicle driven by Martina's husband back home from Vabukori village with the accused and the victim Michelle Muru and heard what Michelle Muru told Martina Muru at Erima. It is not known that he heard any further conversation between Martina Muru and Michelle Muru at Carpenters Hardware and at home.

It is has no relevancy as to whether the accused did commit the offence because this witness was drunk and was sleeping while seated at the back seat at the time the alleged offence was committed. This is the witness that assaulted the accused when awoken from sleeping at Erima and being told of what the accused is alleged to have done to Michelle Muru.

3.	Jenifer Galia- Ex C

9.	The evidence of Constable Jenifer Galia says that:

She is the Arresting Officer and the Informant of the matter. She was on duty on the 31st of May 2010 when the victim Michelle Muru was brought into her office accompanied by her mother. She obtained the victim's story. She obtained statements from Martina Muru, Jeampi Muru and Kialo Naina. She took the accused into the SOS Office and conducted the interview with the accused. He arrested the accused and charged him with the offence of sex touching of the victim. She was told by the victim Michelle Muru that she and the accused are cousins.

This evidence is relevant only as regard to the fact that she was the Officer that conducted the interview with the accused based on the belief she had after assessing statements from those who had their statement taken by her and that she conducted the Record of Interview with the accused on the 31st of May 2010 at Boroko Police Station. It is nevertheless hearsay as to whether the accused person is the person that committed the offence on the victim.

4.	Rachael Pinda - Ex D

10.	The evidence of Rachael Pinda says that:

She is a Police woman and is a crime Investigator. She was the corroborator to the record of interview between the accused and the Arresting Officer Constable Jenifer Galia on the 31st of May 2010.The interview commenced at 11.05 and was conducted in Pidgin language. The accused was accorded his constitutional rights.

This evidence is relevant only as regard to the fact that the witness was present during the Record of Interview between the Arresting Officer and the accused at Boroko Police Station on the 31st May 2010 at 11.05am. It is hearsay as regard to whether the accused did sexually touch the victim Michelle Muru on the 29th May, 2010 at Erima.

5.	The birth certificate of the victim – Ex E

11.	The purpose of this evidence is to establish the date, month and the year in which the victim was born. It shows that the victim Michelle Muru was born on the 07th of October 1994 at Mararingan village, Kaiapit, Morobe Province. The victim was 15 years old at the time the offence was committed. This evidence without doubt confirms that the victim was born on the 07th of October 1994.

6.	The Record of Interview- Jack Andy - Ex F

12.	This evidence shows that:

The accused was interviewed by the informant Constable Jennifer Galia and Rachael Pinda on the 31st May in 2010 at the Sexual Offences Squad Office, Boroko Police Station.

This evidence is relevant only as regard to the Record of Interview between the accused and the Arresting Officer on the 31st of May 2010 at Boroko Police Station. It contains no admission or confession by the accused on the charge.

7.	A piece of paper with a famous Bible verse - J 3.16 - Ex G

13.	This evidence shows that:

The victim was able to identify the accused from reading a Bible passage from the Gospel of John Chapter 3. 16.

8.	Jeampi Muru – Ex H

14.	The evidence of Jeampi Muru says that:

She is the adopted mother of the victim Michelle Muru. She is a teacher at Saint John School for the blind at 3 Mile. Upon the arrival of Michelle Muru at their house she told this witness more than one time that she was touched on her breasts by the accused. She was later told by Martina Muru what Michelle Muru told her at Erima and Carpenters Hardware.

This evidence is relevant only as regard to the reporting of the incident by both the victim and Martina to this witness. It is hearsay as regard to the commission of the offence and to who committed the offence.

Beside the documentary evidence which were tendered with consent, the State called oral evidence from the victim Michelle Muru and Martina Muru. I will first of all deal with the oral evidence of Martina Muru and the evidence of the victim, Michelle Muru will follow.

Oral Evidence of Martina Muru

15.	She is the sister of the victim Michelle Muru.

16.	On the 29th May 2010 the accused, the victim, Martina Muru, her husband and Jeffery Nawatz were returning from attending a birthday party at Vabukori village to Erima to buy betel nuts. 

17.	A long the road from Vabukori she heard the victim singing to the music played in the vehicle and chatting with her cousin, the accused. Sometime later as they drove to Erima she noticed the victim stopped singing and wondered why the victim stopped singing and was silent. She called to the victim to check on her but did not get a response. 

18.	At Erima she turned toward the victim to check on her at which she noticed the accused 'pulling away from the victim'. She asked the victim if she was alright, and the victim told her that the accused touched her on her breasts. 

19.	An argument ensued and she removed the accused from the vehicle. She also out of frustration gave her child to her husband, got out of the vehicle and punched the accused. The accused was left behind at Erima but told to find his way home. 

20.	They left Erima to Carpenters hard ware, her husband's place of work where her husband was asked to fix a fork lift. Before her husband left them to fix the fork lift, he asked her to properly interview the victim, to ascertain what exactly had happened to her. She says that at this stage the victim began to cry and was shaking and telling her that the victim had touched her on her breast and her vagina.

21.	During the trial the witness was asked to describe in court how she saw the accused pull away from the victim, which she did. It was also put to the witness that she scolded the victim at Carpenters hard ware, and forced her to say that the accused touched on her breasts and vagina which she denied and maintained that the victim told her what the accused did to the victim.

22.	The witness was taken through the statement she made to the police, which she admitted making a statement to the police. She told the court that she read the statement, and agreed with its content and signed the statement. 

23.	This statement was made to the police two days after the incident. The witness was taken to the statement which she read as follows, "Upon stopping at Erima I turned around to check the back seat, I saw Jack pulling his hands away from Michelle's lap".

24.	She was asked if she made that statement to the police, and she denied this, saying it appears to have been a typing error.

25.	In carefully analysing this witness's evidence two things appear from her evidence. 

26.	First, the reporting or telling of what the accused did to the victim by the victim to her sister, Martina which I had already said is relevant to the reporting or telling of what the accused did to the victim to Martina by the victim but is hearsay for the fact that the witness is reciting to the court what the victim told her. 

27.	The second thing is the previous statement made by this witness to the police and what she told the court in her oral evidence. In her statement to the police two days after the commission of the alleged offence the witness said, 'Upon stopping at Erima I turned around to check the back seat, I saw the accused Jack pulling his hand away from Michelle's lap." 

28.	In her sworn oral evidence during the trial the witness was asked the following questions by counsel for the accused:

Q. Do you recall giving a statement to the police?
A. Yes I do.

Q. Did you sign it?
A. Yes I did.

Q. Did you read it before you signed it?
A. Yes I did.

Q. You agreed with the content of your statement before you signed it?
A. Yes I did.

Q. You are Martina Muru?
A. Yes I am.

Q. I take you to 4th paragraph of your statement to the police, can you see in your statement to the police the following "Upon stopping at Erima I turned around to check the back seat, I saw the accused Jack pulling his hand away from Michelle's lap." Counsel continued, what do you say about that statement? The witness replied. No I saw him pulling himself away from Michelle.

Q. Do you say it was a typing error?
A. Yes I think so.

Q. Did you read it before you signed it?
A. Yes I did.

Q. Did you see Jack pulling away his hand from Michelle's lap or pulling himself from Michelle?
A. I saw Jack pulling himself away from Michelle and not his hand away from Michelle's lap.

Q. So the statement about pulling his hand away from Jack's lap is not your statement. What do you say?
A. Yes, but there other things to that I said that are true.

29.	Martina had not only denied her previous statement made to the police but have changed her story. This amounts to inconsistency. It casts doubts in my mind on whether Martina did see what she said in her statement to the police and what she described to the court in her oral evidence. If there was a need for the corroboration of the touching of the victim's breasts, tigh and vagina it would be from Martina's evidence if she had truly seen the accused pulling his hand away from Michelle's lap or himself from Michelle.

30.	It is trite law that where a witness had made a previous statement to the Police and later gives evidence in court and that evidence is inconsistent to the previous statement, the court ought not to place much weight or no weight on it all because of its inconsistency and had clouded the credibility and reliability of the witness.

Oral evidence of Michelle Muru

31.	This is the victim of this matter. She is the key witness on the matter. She gave sworn oral evidence in the following.

32.	Her name is Michelle Muru of Mamaringan village, Artzera, Morobe Province. She was born on 07th October in 1994 at Mamaringan village. She is Grade 9 at Port Moresby International School this year. 

33.	She attended a birthday party at Vabukori village on the 29th May 2010 with her sister Martina Muru, Kialo Naina (her sister's husband), her uncle Jeffery Nawatz and her cousin Jack Andy, the accused.

34.	They travelled to Vabukori village in a vehicle owned by her sister and her husband, Kialo Naina. After the party was over at about 8.30 – 9pm, the victim Michelle Muru, Martina Muru, Kialo Naina, her uncle Jeffery Nawatz and the accused travelled from Vabukori village into Port Moresby city. 

35.	They stopped at Erima to buy betel nuts. While at Erima the accused pushed his hand into the victim's clothes and down toward the victim's vaginal area when her sister Martina Muru turned toward her calling out "Michelle are you ok?"

36.	The victim told her sister the accused touched her on her breasts and her vaginal area. 

37.	The accused was told to get out from the vehicle by Martina Muru and was assaulted by Jeffery Nawatz.

38.	During the examination in chief the victim Michelle Muru was asked several questions. I will state the questions and answers that I consider relevant to the issue that this court is to decide on.

Q. Who else was inside the vehicle that you were in from Vabukori village?
A. My sister Martina, my uncle Jeffery Nawatz. My uncle was on my right and the accused was on my left. I was sitting between my uncle and the accused at the back seat.

Q. How did you know that your uncle and the accused were sitting with you at the back seat?
A. I heard them talking and so I knew who was on my left and on my right side.

Q. Were you talking with any of the people that were with you in the vehicle?
A. Yes, with Jack Andy.

Q. What were you talking about?
A. We were telling stories.

Q. You Cousin Jack Andy put his hand into your clothes, which part of your body did he touch?
A. My breasts and down toward my pispis.

Q. What do you mean by my pispis?
A. I mean my vagina.

Q. Which part of his body touched your breasts and your vagina?
A. His fingers.

Q. How long did he touch your vagina for with his fingers?
A. About one (1) minute.

Q. Which of your breasts was touched by the accused?
A. My left breast and saying bai mi holim na bai yu kisim gutpela feeling (I will hold your breast so you can get excited).

Q. Where was his hand at the time the accused said this to you?
A. On my breast.

Q. How long was he touching your breast for?
A. Was not for a long time. I think it was about three (3) minutes.

Q. After the accused had touched your breast where else did he touch you?
A. He pushed his hand down toward my vagina.

Q. Were you still in your clothes or were your clothes still on your body?
A. Yes.

Q. Was his hand outside your under pant?
A. It was inside my under pant just above my vagina.

Q. Can you explain what you mean by the accused touched the outside of your vagina?
A. I mean that his hand was inside my pant touching both sides of my vagina.

Q. How did you know that it was the accused hand that touched your left breast and both sides of your vagina? 
A. I felt it coming from him. It was him. He was sitting on my left side. He was talking with me while his was touching my left breast and both sides of my vagina.

Q. You told the court that the accused told you "bai yu gat gutpela feeling." What made you know it was the accused who said that to you?
A. I know the voice of the accused very well.

Q. You identified the accused by his voice, is that correct?
A. Yes because I have known him for about three (3) years. He was living with us at Waigani in our family home before the incident.

Q. You are blind and cannot see. How are you able to tell who that person is and who that person is?
A. By his or her voice.

Q. How would you be able to identify the accused if he is the person talking?
A. I would by hearing him talking. I know his voice well.

Q. What was your uncle doing at the time you say the accused touched you?
A. He was drunk and was sleeping in the vehicle next to me.

Q. Who else was drunk at that time?
A. No one else.

Q. How did you know your uncle was asleep next to you in the vehicle?
A. He was lying down on the seat next to me. I was able to feel him.

39.	At this stage the State with the consent of the defence counsel sought permission from the court to conduct voice identification. The identification was in the following. Two other persons were located. Their identity was never disclosed. They were brought into court and sat with the accused. Each of them and the accused was asked to read a Bible verse or passage from the Gospel of John 3.16 – "For God so loved the world so much that he gave his only begotten son." After each had read the above Bible verse or passage Miss Ganaii for the State asked the witness the question: "Michelle which of the three persons that read the Bible verse or passage is the accused?" The accused replied saying: The 3rd person is the accused Jack Andy.

40.	A careful analysis of the evidence of the victim, Michelle Muru clearly establishes the following:

•	The accused Jack Andy was at all times with the victim, Martina and her husband, Jeffery Nawatz on the 29th May 2010.

•	They travelled to Vabukori village together to attend a birthday party.

•	They returned together from Vabukori village in the vehicle they travelled in to Vabukori village owned by Martina and her husband Kialo Naina after the birthday party was over.

•	Kialo Naina was the driver with his wife Martina sitting next to him in the front seat.

•	The accused, the victim and Jeffery Nawatz were seated in the back seat.

•	The accused was seated on the left on the back seat, the victim in the middle and Jeffery Nawatz was seated on the right of the back seat. The picture here is that the victim sat in between with the accused on her left and Jeffery Nawatz on her right on the back seat.

•	No other persons sat at the back seat with the victim, the accused and Jeffery Nawatz.

•	While travelling from Vabukori village into Port Moresby city, music was played from the vehicle cassette stereo or from the radio causing the victim to sing to the songs played.

•	The accused and the victim were telling stories and also talked about music at the back seat. There is evidence that the victim likes music.

•	Jeffery Nawatz having had too much alcohol at Vabukori village was drunk and was asleep on the back seat, and was not able to hear the victim singing and telling stories with the accused Jack Andy until he was awaken at Erima.

•	The victim, Martina, Kialo Naina the accused and Jeffery Nawatz drove into Erima to buy some betel nuts.

•	At Erima the accused pushed his right hand into the victim's clothes on the left shoulder touching the victim's left breast, pushed his hand downward and touched the victim's tigh and pushed his hand further downward touching the victim's vaginal area telling the victim "bai mi holim na bai yu kisim gutpela feelings" meaning "I am going to touch you so you will get a good feeling".

•	That as soon as the accused touched the victim on her left breast, tigh and the vaginal area the victim stopped singing and was quiet.

•	The accused is a cousin to the victim and even though the victim is blind she has always identified the accused by his voice. They have lived together at the family home at Morata, Port Moresby for three years.

41.	Before I answer the questions or issues put to the court, let me first of all deal with the last part of the State's submission that the Court could lawfully convict the accused after it had refused to grant an amendment sought by the State to insert the word "the sexual parts" on the Indictment thus allowing the charge to be: "JACK ANDY of Mamaringan village, Artzera, Morobe Province stands charged that he on the 29th of May in 2010 at Erima, in the National Capital District, in Papua New Guinea, sexually touched for sexual purposes the sexual parts of one Michelle Muru, a child under the age of 16 years, who at that time was 15 years old. AND at the time, there was an existing relationship of trust, authority and dependency between JACK ANDY and MICHELLE MURU in that JACK ANDY is a cousin OF MICHELLE MURU. Contravening Section 229B (5) of Criminal Code (Sexual Offences and Crimes against Children) Act.

42.	Miss Ganaii for the State submitted that the Court could still lawfully convict the accused despite its refusal of the State's application by adopting the kind of wording used in the charge of wilful or murder charges as an analogy.

43.	Mr Kirriwom for the accused objected to this application citing the incompletion of the Indictment against the accused Jack Andy. However, Mr Kirriwom conceded to the State's application that this Court could still lawfully convict the accused Jack Andy because evidence was led during the trial that established 'the sexual parts' of the victim Michelle that was sexually touched for sexual purposes by the accused Jack Andy were clearly established.

44.	Given that evidence was led during the trial whereby the sexual parts of the victim that was sexually touched for sexual purposes, being the left breast, the tigh, and the vaginal area was clearly established by evidence this Court could lawfully convict the accused on the basis of that evidence.

45.	In the event that no evidence was led during the trial to establish the sexual parts of the victim that was sexually touched for sexual purposes the Court could not lawfully convict the accused because there is no evidence upon which the conviction would stand on, thus rendering the charge incomplete and the Indictment is therefore bad.

46.	I conclude that this Court could lawfully convict the accused Jack Andy for the offence charged with.

47.	Having analysed the evidence of the victim I will now deal with the issue in dispute

Issue One:

48.	Did the accused Jack Andy sexually touch for sexual purposes the sexual parts of Michelle Muru?

Issue Two:

49.	Whether or not the accused Jack Andy is the alleged offender

50.	Yes evidence clearly establishes that the accused Jack Andy sexually touched for sexual purposes the sexual parts of Michelle on the 29th of May in 2010 at Erima on her left breast, tight and her vaginal area.

51.	Yes evidence clearly establishes that the accused Jack Andy is the person that sexually touched Michelle Muru for sexual purposes on her sexual parts, being the left breast, tigh and vaginal area on the 29th of May in 2010 at Erima.

52.	There is no evidence to suggest that the victim and the accused have had bad times before the incident. On the contrary evidence overwhelmingly shows that the accused and the victim were good to each other hence they are cousin. 

53.	There is no reason for the victim to lie about the accused. There is either no reason for the victim to blame the accused for what happened to her on the 29th of May in 2010 in the vehicle. The accused was sitting next to the victim at the back seat of the vehicle they were travelling from Vabukori village to Erima where the accused committed the offence. 

54.	The evidence clearly shows that the victim was sexually touched on her left breast, her tigh and her vaginal area by someone sitting on her left, being the accused. The evidence clearly shows that the accused and the victim were talking to each other until the accused touched her. 

55.	The victim being blind knows the accused by his voice as demonstrated during the trial when the accused and two other persons read from the Bible in which the victim did positively identified the accused being the third person to read.

56.	I am satisfied beyond reasonable doubt that the accused Jack Andy did sexually touched for sexual purposes the sexual parts of one Michelle Muru on the 29th of May in 2010.

57.	I find the accused Jack Andy guilty of one count of sexual touching and convict him accordingly.

____________________________________
Public Prosecutors: Lawyers for the State
Public Solicitors: Lawyers for the Accused