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State v Willie [2012] PGNC 44; N4711 (11 June 2012)

N4711

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. N0 1073 OF 2010

THE STATE

-V-

STANLEY WILLIE

Waigani: Maliku AJ
2012: 6th, 7th, 11th June

CRIMINAL LAW- Persistent Sexual Touching –Section 229D Criminal Code (Sexual Offences and Crime against Children) Act.

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

Cases Cited:

State-v- Hambo [2010] PNGC 38

Counsel:

Miss Christensen Rebecca, for the State
Miss Nina Atopare, for the Accused

VERDICT

11 June, 2012

1. MALIKU AJ: The accused Stanley Willie stands charged that he between the 26th day of January 2009 and the 12th day of August 2009 at East Boroko, Port Moresby, National Capital District engaged in conduct of persistent sexual abuse of a child, namely Xavier Francis Smith, a child under the age of 12 years, namely 6 years of age.

AND in the course of the conduct the said Stanley Willie on two or more occasions touched, for sexual purposes, the sexual parts, namely the genital area and buttocks, of the said Xavier Francis Smith with part of his body

AND in the course of the conduct the said Stanley Willie on two or more occasions compelled, for sexual purposes, the said Xavier Francis Smith, touched the sexual parts, namely the genital areas and buttocks of the said Stanley Willie, with a part of his body or an object

AND in the course of the conduct there existed a relationship of trust, authority or dependency between the said Stanley Willie and the said Xavier Francis Smith contrary to Section 229 B of the Criminal Code (Sexual Offences and Crimes against Children) Act.

2. The accused pleaded not guilty to the charge. I then heard evidence from the State witnesses.

3. Prior to the State called its witness, Miss Rebecca for the State tendered the following documentary evidence with consent which were accepted and marked accordingly:

i. Statement of Detective Sergeant Tinol Pakiapon of Gordon Police Station dated 10th of June 2010marked Ex A

This evidence shows that Sergeant Tinol Pakiapon was the Arresting Officer and that he arrested the accused on the 4th of September 2009.

ii. Statement of Smith Morikia dated 20th of November 2009 marked Ex B

This evidence shows Smith Morikia was the corroborating officer of the Record of Interview between the Arresting Officer and the accused on the 18th of September 2009.

This evidence also shows that there were no threats or inducements made to the accused at the time of the Record of Interview.

iii. Birth Certificate (issued on the 19th of February 2003)marked Ex C

This evidence shows and confirms that Xavier Francis Smith was born on the 13th of February 2003.

I am satisfied that Xavier Francis Smith was born on the 13th of February 2003 at the Private Hospital Port Moresby, National Capital District.

iv. English version of Record of Interview dated 18th of November 2009 marked Ex D

This is the Record of Interview between the accused and the Arresting Officer conducted on the 18th of September 2009. It contains no admissions or confessions by the accused.

The Oral evidence of State witnesses:

Xavier Francis Smith

4. The first witness called by the State is Xavier Francis Smith, the victim of this matter. His evidence is summarized as follows:

5. There were four occasions of which he alleges that he was sexually touched by the accused.

6. The first was when he was coming down the stairs to assembly where he says he was 'gibsed' on his buttocks. No specific date of the commission of the offence was given in evidence by the witness that this particular allegation occurred.

7. The second occasion was when they were at the pool, the victim was going up to the pool and the accused pinched him around his waist and to his buttocks. The accused squeezed him on the outside of the clothes. No specific date of the commission of the offence was adduced by the witness of when this took place.

8. The third occasion occurred when they were in the classroom and the victim was running around and the accused 'gibsed' him. This particular allegation was described by the victim to be that the accused squeezed him on his buttocks outside of his clothes. No specific date was mentioned by the witness of when this took place.

9. The fourth and final occasion occurred when they were coming back from PE and were going past the gate when the accused pulled down his pant which made him to cry. No specific date was mentioned by the witness of when this took place.

10. As regard to no specific dates that these acts of alleged persistent sexual touching occurred, the State submits that this manner of recollection by the witness is consistent with a child of 9 years of age, that is, it is to be expected that such circumstances the child's recollection would not be entirely perfect as to events peripheral to the acts done to him by the accused.

11. Nevertheless, it must be remembered that the locations and occasions of the acts that the child recalls have occurred in a broader context of regular and common interactions between the child and the accused during each school day and that accordingly the child cannot be expected to remember the date that a particular swimming lesson involved a sexual act by the accused.

12. It is also submitted by the State that the recounting of the witness of his evidence or story demonstrates the child is recalling the acts in an honest and credible manner and not something told to him or heard from someone. It is indeed the child's imperfect recollection as to peripheral details that demonstrate him to be an honest witness accurately recalling the acts done to him by the accused.

13. As to the child's evidence, the State submits the child described these acts in the best manner that he as a child could describe them.

14. The State submits that the evidence was sufficiently detailed as to the acts he recalls demonstrate he was recalling acts that actually occurred.

15. It has been said over and over by the courts that in any criminal matters tried before the court, the State must prove its case beyond reasonable doubt. One of the ingredients that the prosecution must proved beyond reasonable doubt is the date the alleged offence was committed or where the date of the commission of the offence was between such and such a date the State must adduce evidence to clearly show that the offence was committed between such and such a date, month and the year.

16. In this matter the State argues that the court should accept the evidence of Xavier Francis Smith to be credible and honest without evidence of the essential element of the date of the commission of the offence hence that it was sufficient that the child had correctly recalled what the State submits was actually done to the child by the accused.

17. I do not agree because the element of the date the offence was committed is an essential one which evidence must be adduced to not only show but must prove. Furthermore, where the State alleges that the offence was committed between a such and such a date, evidence must also be adduced to prove that also.

18. In the present case, there is no evidence that the offence was committed on specific date nor there is evidence that the offence was committed between the 6th of January and the 26th of August of 2009 as alleged in the Indictment before the court. The acts of persistent sexual penetration alleged against the accused must be linked to the date it was committed or to period of dates it was committed.

19. I do not dispute that the child Xavier Francis Smith was six years old at the time the alleged offence was committed. I also do not dispute that the child's memory as regards to the specific date of the commission of the offence was fallible. Given the standard of proof required of the State in any criminal trial, which is beyond reasonable doubt, the State must satisfy the court of the essential elements of the offence including the date that the offence was committed.

20. Indeed the fallibility of the child's memory or recollection of the date of the commission of the offence was one that the State ought to have seriously considered before prosecuting the matter against the accused hence it was an essential element of the charge against the accused before me. Therefore the State has not proved the elements of the date that the offence was committed beyond reasonable doubt.

Philip Smith

21. The second witness called by the State is Mr Philip Smith. This is the biological father of the victim, Xavier Francis Smith. Much was submitted of his evidence by the State however, having assessed his evidence it is relevance only for the purpose of his son reporting to him about what was alleged against the accused on 11th of August 2009 in a car.

As regards to its relevance and reliance by this court to the acts of persistent sexual touching of Xavier Francis Smith by the accused it is hearsay.

22. Furthermore as regards to his observations of the behavioural changes of his son, it is not disputed that such behavioural changes were present. However it cannot be independently concluded to have been caused by what is alleged because there is evidence that the victim was involved in improper behaviour with other boys. This is supported by the evidence of Jaclyn Matakar when she said in her evidence that what she witnessed on the 28th and 29th of July 2009 made her to be very concerned about the behaviour of the boys in her class and therefore decided to raise her concerns with the teacher in charge and eventually with the Principal.

23. Even though no objections was raised by defence about this hearsay evidence as submitted by the State counsel during the trial, the court still has a duty to determine which evidence is admissible, credible and trustworthy so as to rely upon. This evidence as regard to the behavioural changes of the victim would be of relevant and of assistance to this court as regard to the issue of guilt on the accused if the evidence of Xavier Francis Smith is truthful, credible and trustworthy.

Diane Bassett

24. The other witness called by the State is the Principal of East Boroko International Primary School, Mrs Diane Bassett. Much was also submitted by State of her evidence. However, having assessed her evidence as regard the issue that this court will eventually reach, it too is hearsay as regard the truth of the allegation. Its relevance is that only of a conversation that was had by this witness and the accused which led to the accused suspended. It further led to the accused's termination and the matter referred to the Police for criminal investigation.

25. The witness Diane Bassett relied wholly on the information she received from Miss Jaclyn Matakar about the boys behaviour in her class which included the touching of the accused by Xavier of his genital area and the poking of his buttock with a scissors by Xavier on the 28th and 29th of July 2009. It is also relevant only to having the matter referred to the Police for criminal investigation. It was argued that the accused admitted his wrong to Diane Bassett. That admission was in my view purely for her internal investigation. It did not mean that it was an admission to criminal liability. If it was intended to be relied upon by the State then in my view it was unlawfully obtained.

26. One other aspect of this evidence is that it is focused on the School administration; on what actions to be taken should a teacher be alleged to have contravened the School Rules or Education Policies. The suspension and the eventual termination are processes that Diane Bassett had to carry out pending the outcome of the Police investigation. It did not mean that the accused was criminally liable. This was an internal school disciplinary action taken against the accused.

Jaclyn Matakar

27. The third and final witness called by the State is Miss Jaclyn Matakar. This is the key witness, the second witness that the State relied on its evidence to prosecute the accused. Her evidence is in the following.

28. She was the class teacher of grade one at East Boroko International Primary School which was attended by the victim Xavier Francis Smith in 2009.

29. She described two occasions on separate days when she observed improper touching between the accused and the victim Xavier Francis Smith.

30. The first was as the victim Xavier Francis Smith and the accused were returning to the classroom after recess, the victim touched the accused on his genital area on the outside of the clothing.

31. The second occasion occurred during the class where the victim Xavier Francis Smith poked the accused on his buttock with a scissors.

32. She was concerned about what she observed but was uncomfortable about talking it over with the accused. She also received complaints from the victim Xavier Francis Smith that the accused touched his 'private parts'. When she enquired from the victim for the reasons of him touching the private part of the accused and of poking the accused buttock, the victim told her that the accused had done it to the other boys as well. None of those other boys was called by the State to give evidence that they too were sexually touched by the accused.

33. This is on its face hearsay in so far as establishing what the victim told her is true about the accused touching the private parts of the victim and the other boys. Its relevance goes only as far as her receiving the allegation of sexual touching by the accused to the victim and the other boys.

The State's submission on the evidence of Jaclyn Matakar is as follows:

34. That she was a careful witness who sought to provide accurate answers to the questions. She gave careful consideration to the questions she was asked and would not attempt to guess at answers but rather told the court when she could not recall certain matters. She was not discredited in her evidence of what she observed of what took place between the victim Xavier Francis Smith on the 28th and 29th of July of 2009.

35. I do not accept this to be true of the witness because my observation of the witness was of the opposite of the State submission. There were times that she could not answer simple questions put to her by the defence counsel. For instance she was asked by defence counsel:

→ Q. As the class teacher what was the behaviour of the victim Xavier Francis Smith in the classroom like? This was a simple question by defence counsel to the Miss Jaclyn Matakar. The witness was silent and mumbled for a while and then answered the question with the following answer:

→ A. He appeared to have no interests of doing class activities given to him and the rest of the class to do in the classroom. He had his own interests in the classroom. We had to help him do other activities from that the rest of the class children were given to do.

36. The answer speaks for itself about the victim in the classroom arena. He was obviously what this answer describes him to be while in school.

37. In respect of the evidence of Miss Jaclyn Makator on her observation of what happened between the victim and the accused on the 28th and 29th of July of 2009 the State submits that the acts can be viewed either of the two ways by the court:

(i) As occasions that amount to acts of sexual touching for the purposes of the charge on the indictment, the State submits that the court can be satisfied that the relationship that the accused developed with the victim was such that the victim acted in this way towards the accused amounted to the accused having compelled the victim to do the act.

(ii) The finding can be reasonably inferred from the evidence and if viewed in this way, as acts occurring in the context of wider acts of sexual interaction between the accused and the victim, it is submitted that the court would be satisfied that the acts were for sexual purposes.

38. With respect to the State's submission that the court can be satisfied that the relationship that the accused developed with the victim was such that the victim acted in this way towards the accused amounted to the accused compelled to do that act, I do not find anywhere from the evidence before me that the relationship the accused developed with the victim was clouded with bad ingredients. In fact the evidence of Philip Smith suggests that the accused was a friend to the victim.

39. This is consistent with the evidence of the accused that he was known to the victim and his mother. The evidence even goes to show that the accused at one time was invited by the victim's mother to attend the launching of her Herbal Medicine

40. I do not accept that such relationship compelled the victim to behave that way towards the accused on the 28th and 29th of July of 2009. I shall discuss more of this when I come to discuss the issues of the victim's behaviour at school and in the classroom and whether such touching was for sexual purposes.

(iii) As evidence of inappropriate interaction between the accused and the victim that has occurred as a result of the accused engaged in sexual conduct with the victim.

41. This argument is baseless and is not supported by the evidence. It goes to an attempt to convince the court of what is purely assumption and which is not supported by the evidence before the court.

42. Any adult as submitted by the State would recognize the act by the victim as improper and the victim at the age of 6 years of age is well aware of the inappropriateness of such conduct, particularly towards a teacher aide and indeed when the victim has been reprimanded for the conduct after the first occasion.

43. It is submitted by State, that it follows from this that given the complainant victim was willing to interact with the accused in this way that the victim must have had experiences with the accused such that the victim did not regard such conduct as inappropriate.

44. This argument is also baseless and is purely an assumption and is not safe for the court to accept.

45. Having assessed the evidence by this witness the following are obvious. She did not give evidence of the four incidents of alleged sexual touching which the victim Xavier Francis Smith had given evidence about which were core allegations. It is obvious that she had no knowledge of these four incidents of alleged sexual touching of the victim by the accused.

46. Her evidence is strictly focused on the incidents that occurred on the 28th and 29th of July in 2009. These are the events that made her to be concerned about her student's behaviour.

47. Finally in my view what Jaclyn Matakar saw on the 28th and 29th are criminal offences of itself. This therefore leaves the evidence of the victim Xavier Francis Smith of him being sexually touched alone.

Was the act of touching playful or not?

48. There are two sets of touching according to the evidence. The first is that which constituted the offence against the accused which the victim Xavier Francis Smith says occurred on four occasions.

49. The second is that which occurred on the 28th and 29th of July 2009. No criminal charges arose from this touching. The nature of this touching was the touching of the private part of the accused by the victim Xavier Francis Smith with his hand and the poking of the accused buttocks by the victim Xavier Francis Smith with a pair of scissors.

50. There is no evidence from the victim Xavier Francis Smith about his touching of the accused on his private part and the poking of his buttock with a scissors on the 28th and 29th of July 2009 but rather he chose to concentrate on what he alleged the accused did to him. The reason for not doing so is well known to him.

51. I will firstly deal with the second touching. The evidence of this touching is from Jaclyn Matakar. She said occurred on the 28th and 29th of July 2009. During the cross examination of Jaclyn Matakar she was asked the following questions:

Q: Were you in the classroom when the students were coming up the stairs?

A. Yes

Q. Did you see Xavier Francis Smith coming up the stairs with the accused?

A. Yes

Q. As they were entering, Xavier was laughing, is it correct?

A. Yes

Q. That is when you saw Xavier touch the private part of the accused?

A. Yes.

Q. Do you agree that it was in a playful manner?

A. Yes

Q. Is it correct that it was done in a playful manner?

A. I either say yes or no

52. The court notes that this answer is contradictory to the above answer.

.

Q. Did you see it as a playful act?

A. Yes it was a playful manner.

Q. You said you saw Xavier poked the accused on his buttock with a scissors, was it also a playful manner?

A. I can't remember.

53. This answer is contradictory to her evidence in chief where she says she observed the event of 28th and 29th of July 2009.

54. I accept the evidence from Jaclyn Matakar that the touching of the 28th and 29th by the victim to the accused were in a playful manner even though it was wrong for the victim to do as a student to a teacher.

The four occasions of alleged sexual touching

55. I will now deal with the first set of touching alleged to amount to sexual touching on the victim by the accused. The evidence of the victim is that the four occasions of sexual touching occurred as follows:

(i) Occasion 1: When they were coming down the stairs to assembly. The nature of touching was a gibes on the buttock by the accused.

(ii) Occasion 2: When they were at the pool, the victim was going up to the pool. The nature of touching was a pinch on him around his waist and his buttock.

(iii) Occasion 3: When they were in the classroom, the victim was running around in the classroom. The nature of touching was of a gibes on his buttock outside his clothes.

(iv) The question arises: Why was he running around the classroom during school hours?

(v) Occasion 4: When they were returning from PE going past the gate. The nature of touching was of pulling down of his pants.

56. This evidence clearly shows that the touching alleged to constitute the charges against the accused occurred not in secret but in open areas and in the presence of others. Of course it would be of greater degree of concern if the accused and the victim were alone somewhere whereby the accused could induce the victim.

57. The alleged sexual touching on the victim by the accused came to surface after the incident of the 28th and 29th of July 2009 occurred. It was disclosed by the victim when he was asked by Jaclyn Matakar after the incidents of 28th and 29th of July 2009. I have examined the evidence of the victim in respect of these four occasions. It is clouded with some unusual behaviour of the victim during school hours both in the classroom and outside of the classroom.

58. I shall deal with this when I come to discuss the behaviour of the victim in the classroom during school hours and the 28th and 29th of July 2009. Such will lead to whether the evidence of the victim is credible, truthful and trustworthy and which the court could rely on.

The behaviour of victim in school area

59. There is evidence that shows the behaviour of the victim at school was not proper. This evidence was from Jaclyn Matakar and the accused and they corroborate each other. During the cross examination, Mrs Jaclyn Matakar was asked the following questions:

Q. You told the court that students touched private parts of other students, was this the first time that you saw that?

A. It was happening before what happened to Xavier and the accused on the 28th and 29th of July 2009.

60. The court notes that the witness Jaclyn Matakar did not answer the question put her.

Q. What did you tell the Principal when you approached her?

A. I told her about the students' behaviour and about Xavier touching the accused private part and poking the accused buttocks with a scissors.

.

Q. The behaviour of the students of touching balls of other students was going on for a long time, did you take any actions?

A. Yes I raised it with the Teacher In charge and was told to see the Principal.

61. The answers to the questions asked to Mrs Jaclyn Matakar by counsel for the accused clearly show that the victim Xavier Francis Smith was involved in touching the other students' balls for quite awhile. He was part and parcel of the balls touching in the school area. This according to the evidence was continued by him to the 28th and 29th of July of 2009.

62. The other questions that were asked to Jaclyn Matakar were as follows:

Q. You being the class teacher, what was the behaviour of Xavier like in the classroom?

A. He appeared to have no interests in the class works like the others. He had his own interests in the classroom. We had to help him do other activities that interest him.

Q. What about his general behaviour?

A. He was never quiet. He talked a lot.

Q. Did you have a naughty couch?

A. Yes we had. We sent students who were naughty to the couch. The victim was sent to the naughty couch more than one time.

The Evidence of accused

63. I now turn to the evidence of the accused about the victim's behaviour in the classroom. The accused told the court that he was on duty on the 28th of July 2009. He went down the stairs and was sending the students up into the classroom.

64. He was standing and watching the students going up the stairs until the child he thought was the last was going up. He turned and saw the victim in the toilet. He saw water from the toilet flowing on the floor. He went to the toilet to see what had happened.

65. He then saw the victim who was laughing at him. He realized that the victim had blocked the waste bowl with toilet paper which caused the water over flow on to the floor. He removed the toilet paper from the toilet bowl and closed the tap.

66. The victim ran out the other door. The accused then walked up the stairs. The victim had hidden behind the door into the classroom which the accused did not know of. The accused entered into the classroom when the victim came from his back and touched him on his private part as Mrs Jaclyn Matakar was watching. The accused held the victim by his hand and took him to the couch and talked to him about what he did.

67. On the 29th of July 2009, the victim poked the accused buttock with a scissors which was witnessed by Ms Jaclyn Matakar. This happened as the accused had stood up from working with the children that he was assigned to help in a group activity.

68. As regard to the allegation 4 where it is alleged the accused pulled down the victim's pant, the evidence of the victim does not tell much about that particular occasion except to say that they were coming from PE. However it is the evidence of the accused that explains what actually happened on that occasion which is in the following: We were coming back from the top oval. The boys and the girls were walking in line. Xavier was at the back walking. He ran from the back and ran past me. I chased him and held him by his trousers which caused his pants to come down from his waist.

69. Having said that the evidence of the victim does not tell much about this particular occasion except to say that they were returning from the PE. I am compelled to accept the evidence of the accused, hence it explains what happened which resulted in the pulling down of the victim's pants.

70. The accused was asked the following question about the victim's behaviour in class during re-examination by his counsel:

Q. How did you observe the victim while in class?

A. He was clearly a cheeky child in the class. Mrs Jaclyn Matakar would send him out of the classroom to the naughty couch. He was never concentrating in the classroom. Sometimes Mrs Jaclyn Matakar would send him to another classroom when she was not happy with him.

71. Having analysed the above evidence of the accused and of Mrs Jaclyn Matakar and even of the victim himself, it is evidently clear that the victim was a cheeky boy. He was a very difficult boy to deal with in the classroom arena. He was never quiet in the class. He had been taken or sent to the naughty couch more than once. This is to be seen in the Occasion 3 of the allegation where the victim says he was sexually touched in the classroom while running around in the classroom. This is obvious of the kind of behaviour the victim was in.

72. I therefore conclude that the evidence of the victim who was the key witness on the four occasions alleged in the charge is tainted with his improper behaviour in the school. He was a cheeky child and was involved in the touching of balls with the other boys. This led him to do the same to the accused on the 28th and 29th of July 2009 which was observed by Matakar and described by her as playful manner. The touching of balls by the class boys including the victim was done in a playful manner. Given that he was a cheeky child I have doubts about the credibility of his evidence

For sexual purposes

73. I have read the case of State-v- Hambo [2010] PGNC 38 by Canning J. I agree with his honour as regard to his definition of what amounts to sexual purposes. His honour says:

"In practical terms if an adult touches a child's sexual parts and the evidence shows that this was done for any innocent or proper purposes the reasonable inference to draw is that it was done for sexual gratification, that is for sexual purposes".

74. Finally given the evidence as it is I am not satisfied that the touching of the victim was for sexual purposes. The evidence does not say so or is lacking. The evidence is tainted with the victim's improper behaviour at school and such is not capable of being relied on by the court. The evidence being clouded with the victim's improper behaviour in the school casts doubts in my mind about the victim telling the truth or had made up his story about the accused to cover up his behaviour toward the accused on the 28th and 29th of July 2009, and that the State has not proven the essential elements of the date the offence was committed or the period of which the alleged offence was committed as alleged in the indictment.

75. Accordingly, I find the accused not guilty. The accused is discharged and his bail of K500.00 refunded forthwith.

______________________________
Public prosecutor: Lawyer for the State
Paraka Lawyers: Lawyer for the Accused