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State v Itoro [2017] PGNC 300; N7001 (15 November 2017)

N7001

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1100 OF 2014

THE STATE

V

MORRIS ITORO

Kimbe: Miviri AJ
2017: 8^th, 9^th, 13^th, 23^rd June,
14^th & 15^th November

CRIMINAL LAW – PRACTICE AND PROCEDURE – Sexual touching s 229B 3 counts– victim 7 years old-affirmation to give evidence-51 year old accused-no medical evidence-older children suspected-told mother of suspicion-hit victim with flaming wood to tell-incredible-not worthy of belief-reasonable doubt-acquitted discharged three counts-bail refunded.

Facts

The Defendant asked the victim who is seven years old to bring a chair into the house. As She did he closed the door behind her touched her buttocks, her vagina, and then told her to touch his penis and to play with it.

Held

Reasonable doubt victim hit with a flaming wood by mother to tell. Mother told by older children who suspected did not see. Acquitted and discharged on three counts. Bail refunded forthwith.

Cases:

Beraro v The State [1988-89] PNGLR 562
Mai and Avi v The State [1988-89] PNGLR 56
Pawa v The State [1981] PNGLR 498

Counsel:

D. Kuvi, for the State
D Kari, for the Defendant

VERDICT
15^th November, 2017

1. MIVIRI AJ: This is the verdict of the court against the defendant for three counts of sexual touching.
   

Short facts

2. The child DL was playing with other children on the 2^nd March 2014 when the accused called her to bring a chair into the house which she did. He closed the door behind her touched her buttocks and her vagina and got her to touch his penis.
   
3. Older children outside became suspicious and reported the matter to the mother of the victim who questioned her with the allegation coming to light.
   

Charge

4. Accused was indicted under section 229B of three counts of sexual touching of a child in that, one; he for sexual purposes touched the buttocks of DL a child under 16 years old. And two, that he for sexual purposes touched the vagina of DL a child under 16 years old. And three, that he for sexual purposes compelled DL a child under 16 years old, to touch his penis and that on each of those occasions there was an existing relationship of trust authority in that he was a serving member of the police. And on each of the occasions she was 7 years old. All allegations arose together and so were indicted together.
   
5. Accused entered a not guilty plea to each of the charges preferred. The state made an application pursuant to the Evidence Act section 37B. SPECIAL MEASURES ORDER.
   

(1) An order under Subsection (2) shall be made where a witness in a criminal proceeding is –

(a) under the age of 18 years at the time of the hearing; or

(b) the complainant in a proceeding relating to a sexual offence; or

(c) the complainant in a proceeding relating to a crime of violence.

(2) If, in the opinion of the Court, the quality of a witnesses evidence would likely to be diminished by reason of fear of distress in connection with testifying in the proceedings, the Court shall, subject to Subsection (3) and (4), order that one or more of the following special measures be used for the giving of evidence by that witness: –

(a) the use of a screen or other arrangement to prevent the witness from seeing the accused;

(b) the presence of a support person of the witness’ choosing seated with the witness when he or she is giving evidence;

(c) dispensing with the wearing of wigs and robes while the witness is giving evidence;

(d) planned seating arrangements for people who have an interest in the proceedings, including the level at which they are seated and the people in the witness’ line of vision;

(e) the adjournment of the proceedings or any part of the proceedings to other premises;

(f) the exclusion from the court, while the witness is giving evidence, of all or any persons without an interest in the proceedings;

(g) the examination of the witness through an intermediary, who shall communicate and explain –

(i) to the witness, the questions put to the witness, in a language appropriate to the witness’ age and development; and

(ii) to the court, the answers given by the witness in reply;

(h) permitting the evidence to be given from a place other than the courtroom by means of closed-circuit television or other facilities that enable communication between that place and the courtroom.

(3) In determining what special measures are appropriate, the Court shall consider –
(a) the availability of any necessary equipment or facilities; and

(b) the age of the witness; and

(c) the opinion of the witness; and

(d) which of the special measures would be likely to maximize as far as practicable the quality of the witness’ evidence.

(4) A judge need not make an order under Subsection (1) where he determines that to do so is contrary to the interest of justice.

(5) In determining whether the use of special measures is contrary to the interests of justice, the judge shall consider –

(a) the nature and alleged circumstances of the offence to which the proceedings relate; and

(b) the right of the accused to a fair trial; and

(c) whether the quality of the evidence given by the witness is likely to be diminished by reasons of fear or distress on the part of the witness in connection with testifying in the proceedings; and

(d) any behaviour towards the witness on the part of the accused, or members of the family or associates of the accused; and

(e) whether the use of special measures would cause unnecessary delay in the proceedings.

(6) The use of special measures does not in any way affect the weight to be given to any evidence in a criminal proceeding.

6. I granted the application she was 7 years old and the matter was of a sexual nature that her buttocks and vagina were touched by the accused. And he compelled her to touch his penis with her fingers. I further ordered that she give her evidence with the support person court interpreter Rebecca Tege appointed as such and later Elizabeth Passingan Probation officer in her place when she was in courtroom two interpreting there who I was satisfied were comfortable and accepted to by the victim. Further I ordered the exclusion of all other persons from within the court to allow the victim to properly give her evidence. She was fluent in pidgin and that was the language she gave her evidence in. In so holding I was mindful that the defendant was entitled to a fair trial that the quality of the evidence was not diminished in so ordering especially in view of the sexual nature of the allegations against. I was satisfied on the material before me that granting the application would not effect the weight of the evidence given and so I made the orders giving effect to that law.

7. There was no eye witness to the complaint made. It was a circumstantial case which the law is found in the case of Pawa v The State [1981] PNGLR 498 where it was stated that there must be no other reasonable hypothesis other than the guilt of the accused. Suspicion of the older children led to the complaint to the mother of the child. I posed weather there was any motive for the suspicion, was there evidence to confirm or deny the suspicion made. Sexual allegations were always easy to make but very hard to refute. The protection of children from sexual exploitation because of their vulnerability was also a very deep concern that the law evidenced in the way it was framed. Section 229B together with section 37B set out above emphasize these points very well. There is a very delicate balancing on the one hand protection of the child and on the other hand protection of the accused. In each case the process of the law is paramount one is not sacrificed for the other. I considered all the above further in the light of Beraro v The State [1988-89] PNGLR 562 that under section 6 of the Oaths, Affirmations and Statutory Declarations Act 1962 the principle witness DL could be affirmed and did satisfy the requirements in law under section 6 primarily that she understood that she will be liable to punishment if her evidence is false. Accordingly I affirmed her to give her evidence before me in this matter in accordance with section 6 of the Oaths, Affirmations and Statutory Declarations Act 1962.

Witness on oath

8. The following was established in the preliminary leading to her affirmation, she gave her name in full and went onto state that she was a grade one pupil at Kasia Elementary School, and she said she did not know her age. That she went to church and was of the Catholic Church. She used to go to church on Sundays and attended Sunday school. And was taught about Heaven. But not about Hell. She was asked as to the difference between telling a lie and the truth and replied that I never lie, in pidgin, “Mi no save pasin bilong giaman.” If one lied one would go to Hell was her response to one who lied. I will tell the truth here in court she went on to affirm. She understood that she must tell the truth because not telling the truth will have one go to hell.

9. Having heard her in the preliminary to affirming her, I was satisfied that she understood what the difference was between telling the truth and of not having to tell the truth. In her own words one would go to hell if one told lies and she was here to tell the truth. I was satisfied as she was a church goer of the Catholic church and that she attended Sunday school and was in elementary grade one so affirmed her to give her evidence. In this regard I followed and applied the position established by Beraro v The State [1988-89] PNGLR 562, Schubert v The State [1979] PNGLR 66.

DL evidence

10. She gave particulars of where she resided as section 5 outside the junction at Tamba. That she was resident with her mother and father but previously resided at Buluma Police barracks before. She said she was playing under a mango tree next to their house that day with five other children. And where they were playing there was a grown up person, a man. She said she knew the name of the accused but forgot his name. She said he was from Buka and that if she saw him again she would recognize him. She said he was the person in court and pointed to the accused. She said she went to the house of the “Buka man” (accused) because he told her to bring a chair into the house and to get an ice block. He said that he would put the screen on. She did as was instructed and there was no other person there inside the house except the both of them. He closed the door and held my “pispis” vagina. And inside he told her to go to the room where people sleep and there he held her buttocks and also her “pispis” vagina. Before holding my vagina he held my buttocks. After that he told me to wash. He told me to go wash and I went to the house. He said he will go and get chicken and we will cook and eat. But I did not go I slept at my house. At my house my mother questioned me and I told her. From there we went to the hospital here in Kimbe.

11. Camilla Mare was a witness whose evidence was based on suspicion rather than eye witness testimony. She was outside the house of the accused with Jimaima daughter of the accused and did not see the victim come out of the house after she went in. She went with Jimaima to return the water container earlier obtained from the house but found the door locked. She was suspicious and voiced to the mother of the victim later on.

12. Delilah Lindsey Kaian was the next witness for the state sworn in pidgin originally from Kasi Hoskins Local level Government mother of five children residing at Tamba. She was the adopted mother of the victim. 2^nd February 2007 was the birthday of Delilah and she adopted her when she was only 3 years old. The children came and told me and I smacked her. I used a stick to smack her. The stick had fire on it. I hit her mouth so that she could confess what the man did to her. I slapped her on the mouth with the “flaming stick”. After I hit her the policemen came and took us to the hospital. In 2014 Morris Itoro told them to leave the house but they were waiting for the finish pay of the deceased member.

13. This evidence was likened to the case of a record of interview or admissions that were obtained in breach of the law or by assaults and beating evidence illegally obtained and could not be used or be the bases upon which convictions were founded upon. Mai and Avi, The State v [1988-89] PNGLR 56.This is a 7 year old child who was beaten on the mouth with a flaming wood and made to tell a serious allegation of sexual impropriety against a 51 year old married man with children including female children of his own. Furthermore, the accused is a police officer senior with a rank of Inspector in Charge of that particular barracks. It was a very serious matter and could not be based on this evidence to secure conviction. It was not enough to so rely.

14. At the close of the state case a no case submission was made which I ruled against as on the face of it, the victim was with the accused alone and there was opportunity for the commission of the allegation without weighing out the evidence he had a case to answer and the accused went into evidence.

Evidence by consent

15. Exhibit S1 was the record of interview of the defendant Morris Itoro dated the 6^th May 2014 conducted in English. He denied that he locked the door with DL inside. DL was inside watching a CD that he had put on the screen. His daughter did come into get water from the fridge and then returned with the empty container. And this evidence was borne out by the evidence of Camilla Mare 17 year old student at Hoskins Secondary who at the time of evidence was in grade 10, who gave sworn evidence that together with Jamaima Itoro, daughter of the accused, they came to return the water container that was earlier taken out of the house. The door was locked so they did not return it. Each time that she came the door was not locked and was just closed but unlocked. Morris Itoro does not deny that the child DL always came to his house and played with his children. And on this occasion she came around and asked to watch CD and that is what he did ask her to get the chair and to watch CD after Morris put on the screen for her to watch.
16. He gave unsworn evidence which at the outset is not parallel to sworn evidence in the way that both are considered. That is not to say that it will be treated without due regard but will be weighed with all other evidence before the court as to its veracity in the consistency and outcome of the case as a whole. He reiterated what he stated in his record of interview. And further stated that the complaint was made or motivated because in his official capacity he had been confronted aggressively by the widowed wife of the Sergeant in whose house victim and parents were living protesting eviction from the house to make way for new police personal.

17. The daughter Jimaima Itoro gave evidence on oath in support of the defence case. She said the door was unlocked and that her father was sitted at the back veranda and he could be seen from where they were. She said she had come in to get a 500ml coke bottle filled with water that she took out to her friends Camilla Mare, and Lilly who were sitting on the lawn outside the house at about 4,0clock in the afternoon. That she returned afterwards to bring back the 500ml coke bottle where she refilled it and put it back into the freezer. She said she saw DL who was sitting on each of the occasions she returned watching the ferries cartoon on the TV.

18. Exhibit S2 and S3 are the statements of the Arresting officer and corroborating officer. They are the statements obtained in the conduct of the record of interview and is nothing more to the case.

No Medical evidence
19. At the closure of the prosecution evidence there was no medical evidence to clarify the medical condition of DL if she was touched vaginally by the accused nor of any other conditions upon her. She was a minor, 7 years old born on the 2^nd February 2007 making her at the date 2^nd March 2014 of the allegation. She could not have been coached in her evidence but the fact remained that Camilla Mare had suspected and reported to Delilah Lindsey Kaian who had threatened and intimidated the child with a burning wood. Accepting a child minor as young as she was, with no knowledge acquainted in sexual matters, could she have at ease uttered as alleged by the State. I am not swayed that she would have. I am not bound that there must be corroboration but the fact is what came out of her came out with the assistance, threats, intimidation poised by an adult, her mother with a burning wood. It wasn’t remote for her to put what was asserted by the victim in court. And to erase further the inconsistency in the evidence of the State witness Camilla Mare and Jimaima Itoro who were both at the same place at the same time but evidence differed in the status of the door and the presence sight of the accused. It was not upon the defence to erase but of the prosecution and the medical evidence would have done this swiftly with ease. It was critically not there to assist dispense.

20. The following was established beyond all reasonable doubt from the evidence that was tendered by consent that indeed the victim DL did come to the house of Morris Itoro at the relevant time and date of the offence what the state had to establish were the following issues.

Issue

21. Whether or not Morris Itoro touched for sexual purposes the buttocks of DL?
22. Whether not Morris Itoro touched for sexual purposes the vagina of DL?

23. Whether or not Morris Itoro compelled DL with her fingers to touch his penis for sexual purposes?

Analysis of case

24. There was no eye witness to the act complained here. Reliance was placed on the evidence of DL sworn as against the unsworn statement from the dock by the accused. Because the evidence of DL was sworn, I will opt for it rather than the accused and also Section 229H of the Code headed corroboration not required basically empowers that a conviction can be founded upon the uncorroborated evidence of a complainant as here. That I need not be forewarned of the dangers of so acting as was previously done. But this did not eliminate the elementary that it is according to law and therefore does not lower the burden of proof that is always by law upon the prosecution to proof beyond all reasonable doubt. I ask myself is it beyond all reasonable doubt that Morris Itoro not only had opportunity but that he committed the allegations complained of. I could not be swayed by suspicion to so find.

25. DL is not versed in matters of sex and is not expected to at that age. This was evident in the instances of adjournments during the course of the trial granted the prosecution for her to recompose herself. It was critical for the prosecution case that the doubt created by the eliciting of her evidence by threats intimidation induced by a burning wood stick admitted by her adopted mother Delilah Lindsey Kaian be eliminated by a medical report that not only was she alone in the house with the accused but that he did what is alleged. There was not only opportunity but that the crime was perpetrated because there was no other person except the accused who was with DL. That there was no other reasonable hypothesis other than the guilt of the accused. I pose here could DL have been swayed by fear threats and intimidation of the burning wood by her adopted murder to make the allegations with the help of the mother putting the words to her because of the threat of eviction from the police house. Camilla Mare did not see but suspected her suspicions are not supported by Jimaima the daughter of the accused who was with her; these inconsistencies are not minor but major to the proof beyond all reasonable doubt in the charges laid. The suspicion as to opportunity were not backed by proper medical evidence to dispel the major inconsistencies raised.

26. Consequently I am not satisfied beyond all reasonable doubt that Morris Itoro did on the 2^nd March 2014 at Buluma for sexual purposes touched the buttocks of DL a child under 16 years old. I am further not satisfied beyond all reasonable doubt that Morris Itoro did on the 2^nd March 2014 at Buluma for sexual purposes touched the vagina of DL a child under 16 years old. And further that Morris Itoro on the 2^nd of March 2014 at Buluma for sexual purposes compelled DL a child under 16 years old to touch his penis.

27. Accordingly I return a not guilty verdict on all three counts preferred against the accused.

28. I order that his bail moneys be refunded forthwith.

Orders Accordingly,

__________________________________________________________________Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for the Defendant