N6680
                                            PAPUA NEW GUINEA	
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1428 OF 2015
 
STATE 

V

DIIJAY EMBIA (No.1)

Mendi: Ipang J
     2017:  10& 16th February, 
	    	       10th March

CRIMINAL LAW –Criminal Code Act – Section 349 (1) (a) – Sexual Touching – Complainant and the accused in a vehicle – state alleged while seated off-side the accused talked crazy sexy talks – Pinched the Complainant on her left harm and breast.
	
EVIDENCE – whose evidence should the Court believe – Credibility of witness – Assessment made on the witnesses – Demeanour of witnesses in Court taken into account.   

	Cases cited:

State-v-Angosiwen (No. 1) [2004] PNGLR 2
State-v-Peter Malihombu [2003] PGNC 124; N236  
State-v-Patrick (2004) PGNC 147; N2611 
Counsel:

Ms. W. Malo, for the State
Ms. C. Koek, for the Prisoner

DECISION ON VERDICT
10th March, 2017
1.	IPANG J: This is the decision on verdict for the accused Diijay Embia of Yaken village, Imbongu District, Southern Highlands Province who pleaded guilty to one (1) count of sexual assault contrary to section 349 (1) (a) of the Criminal Code Act. A trial was conducted and the decision was reserved and to be delivered now.

2.	On the 10th of February, 2017 an indictment was presented in the following;
	“Diijay Embia of Yaken, Imbongu, Southern Highlands Province stands charged that he on the 18th of July, 2015 at Mendi, Southern Highlands Province, touched the sexual parts of Betty Hipisa namely her breast without her consent.” 

3.	The brief facts as alleged are as follow; on the 18th of July, 2015 between 7:30am and 8:00am, the complainant was at Kiburu Service Station. There was an incident at the service station where damaged was caused to one of the fuel pump by a drunkard. The service station is owned by the complainant and her husband. The accused was present at the service station and had witnessed what had happened. The complainant was about to drive to the Mendi Police Station when the accused got on the vehicle accompanied the complainant. The accused got into the vehicle and sat on the off-side. The complainant was driving. It is alleged that on the way to the Police Station, the accused was talking to the complainant, he pinched her on her arm and breast without her consent.  

	The Charge
4.      s.349 Sexual Assault
(1) A person who, without a person’s consent – 
                           (a) touches, with any part of his body, the sexual parts of                          that other person, is guilty of a crime of assault. 
Penalty: Subject to Subsection (4), imprisonment for a term not exceeding five years.”
	
		Elements of the Offence

5.      In order to secure a conviction, the prosecution bears the obligation to prove its case beyond reasonable doubt. The elements of the offence which the prosecution must prove are; 

•	a person
•	touches (refer to s. 349 (3) ) 
•	sexual parts (refer to s. 349 (2) ) 
•	without consent 

                 State’s Case

6.    The State through Counsel Ms. Malo tendered the following documents evidence without any objection from the Defence. These are;

•	Statement of Makip Allo dated 12th August 2015, a one (1) page statement – Exhibit “A”. 

•	The Record of Interview, both Pidgin and English versions Exhibit “B”. 

7.      The evidence of Betty Hipisa. She is the complainant in this matter. She is an adult female from Wabag, Enga Province. She is a graduate from PNG University of Technology in Lae in Accounting. Her husband is an Engineer and works with Department of Works in Mendi, Southern Highlands. The husband is from Mendi, Southern Highlands.  

8.	Her evidence is that on the 18th of July 2015, she received a call from the pump boy at the service station, telling her that a drunkard had damaged the fuel pump. This was around 6am and 6:30am in the morning. She contacted her husband but could not get through to him so she told her in-laws to inform her husband. As soon as she arrived at the Service Station, she saw drunkards there, and the accused was with them. She went to the fuel boy and asked him what happened. She asked the fuel boy to go with her to the Police Station to put a report but she said to remain and watch the Service Station. The Accused then approached the complainant and he said he would give a statement.

9.	She explained that the Accused is from the same area as her husband Randy and he (her husband) told her that he (the Accused) was his cousin. She said that she allowed the Accused to accompany her because he was her brother in law and she knew him. They both got into her vehicle and she drove off. When she drove pass Dr. Birisi’s location, he said “yu sa bagarapim sindaun blo mi” (you spoil my mind). She thought he was making fun so she did not think much about it. She said when he said that, she thought he had some motives behind what he said. She laughed and they continued driving and she said how she spoils his mind and he said “when she drives”. 

10. 	At the AOG church, she received a phone call from her uncle in Lae. She answered the call with her right, whilst her left hand was on the steering wheel. Before reaching the AOG Church, the Accused pinched her breasts and side. She asked him what he was doing and he replied “lapun susu ya, larim mi holim” (old breasts, let me hold it). Then he tried to put his hand into her trousers but she pushed it away. The Accused then said “em kela ah?” (does it have hair or not), she replied and said she is a married woman and why was he asking? On the way, the Accused instructed her not to tell her husband Randy and she told him she wouldn’t because he apologised to her. When they arrived at the Police Station, they reported the matter to the Police, She called her husband and told him what happened. From the Police Station, after laying the report, they went to Kiburu. Her husband said they would go look for the person that damaged the fuel tank. As they drove to James Service Station, her husband called her and told her to leave her vehicle and get on with the Accused. 

11. 	 She said the Accused apologised, she forgave him and thought nothing would happen so she hopped on with the Accused and they went. As soon as they left he said “samtin yah tait yah” (it is tight). She understood that to mean he was referring to his private part. She responded by saying “it’s tight and what do you want me to do?” And the Accused said he wanted to have sex. She told him she wasn’t a prostitute. The Accused then repeated the same thing. When they approached the Old Compound, he said he wanted to eat her something, he said he thought she was a prostitute and wanted to eat her private part. She told him the words were not good and she wanted to vomit. When she told him it’s not good for eating, but he said “no, I want to eat it”. She responded by saying “it’s not for eating, I’m not a prostitute, it belongs to another and I am a mother. She then told the Accused to stop as she was not happy with what he said. He then apologised for the second time and told her not to tell Randy (her husband). He was repeating the same thing. 

12.	When he dropped her off at the Police Station, her husband and in-laws were there. She went to her in-law Samson Makip Allo and told him not to leave her alone as the Accused was saying things to her. Her in-law told her husband that she was there and he (husband) told him to tell her to get on a bus and go. However, she went on a dyna belonging to her workmates and went back to Kiburu. She explained that she wanted to tell her husband but at that time, he was under pressure so she decided to seek advice from the village elders. They told her to tell her husband and if she wanted to report the matter that do so. She did not tell her husband until Monday. In the night, he mobilised boys to go fight with the Accused but she told him that they will solve it in the village. After they reported to the village elders, they went to the Police Station to report, after that she flew out to Port Moresby for work. She said nothing happened after that, but when the Accused was locked up, his relatives destroyed their properties so village leaders solved it, and compensation was paid for damages. 

Evidence of Samson Makip Allo
	
13.	Samson’s evidence is basically he was at Mendi Police Station when the complainant approached him and said, “Diijay Embia mekim sampla nogut toktok lo mi so noken lusim mi wan na go.” (Diijay Embia said some bad words to me so do not leave me alone and go). He said the complainant approached him and told him on Saturday 18th of July, 2015. He later heard on Monday 20th July, 2015 heard the full story at Oceanic Construction Camp at Oiyarep and re-called what the Complainant had told him. 

Defence Case

14. 	The Accused Diijay Embia said he was on his way to Mt. Hagen and stopped at the Service Station to refill before leaving to pick up his family in Mt. Hagen. He was there and there were some drunkards there. A drunkard was trying to refuel a 20 litre fuel. A drunkard came and pulls out the pump and fuel poured on them. They stopped the tank and tried to help the boys chase the vehicle for 10 to 15 minutes. He tried to help the boys and chase them up to Tende. He told them that he knew the vehicle and they’ll report the matter to the Police so they went back to Kiburu. Then they called the complainant and her husband and told them what happened. He said the complainant came first in a Company vehicle. He said he told them he had to go to Mt. Hagen so he will refill and go. He said the complainant got there around 6:30am and told him that the fuel boy is drunk so they would go report the matter. He then told the boys to refill the car and when he returns he’ll go to Mt. Hagen.

15. 	He said he bought a K10.00 flex card and gave it to the complainant to call her husband. They drove back to Kiburu because they did not report it to the Police. As soon as they travelled back to Kiburu, the husband said he was at the Police Station so leave the vehicle and get on with the Accused and come to the Police Station. At the Police Station, he told them what happened and left. He said the complainant and her husband were there, all the boys were there and he told them it’s reported and he left to go pick up his family. He denied touching the complainant’s breasts and says he did not say anything to her. She is his in-law, married to his cousin; he paid bride price and knew she was a mother of kids. He said he was in town when he received a phone call and was told they reported to the Police. The Police informed him. When he went, complainant reported so they talked to the Police Station. He told them, they don’t have to argue, he asked them if they will solve it here (at the Police Station or the village and they said here (Police Station). So he told them to charge him. He said he did not want to argue, so charge him.     

	Submission by the Defence

16. 	Ms. C. Koek of Counsel for the Accused submitted that the State’s case is weak and failed to prove all the elements of the charge of sexual touching. Counsel submitted that there is no eye witness to confirm that the Accused actually touched the victim. This could be true in the sense that the Accused and the victim were the only ones in the vehicle. Thus, as the Counsel submitted the Accused is the brother in-law of the victim (the victim is the wife of the Accused’s brother), they knew each other well and respected that nature of relationship therefore the Counsel submitted that there is no reason (s) for the Accused to touch the victim’s breast and make sexual comments on her. 

17. 	The next issue Ms. Koek raised was that, there was opportunity for the victim to inform her husband of what the Accused did to her but she decided not to tell her husband. Koek submitted that Randy Hipisa being the husband of the complainant for over 10 years and having four (4) children from the marriage should have been her priority to inform her husband. However, she waited until 22nd July, 2015 to raise the alarm with her husband.

18. 	Given the above, Defence submitted that the State’s evidence is not credible. 
	
Submission by the State

19.	Ms. W. Malo for the State submitted that it is for this Court to decide whose evidence to believe. Whether it is the evidence of the complainant Betty Hipisa or the Accused Diijay Embia. Malo submitted that the State witness is more credible witness compared to the Defence witness. Counsel said the State witness gave evidence in a clear, consistent manner that would seem more reasonable. Counsel further submitted that the witness had no reason to lie nor to come up with a story to falsely implicate the Accused. Furthermore, it was submitted that the witness is an educated woman graduated from the University of Technology in Lae in Accounting. She is also married to an educated man who is an Engineer with the Department of Works. Therefore, the State Counsel submitted that there is no reason why the Complainant would come to this Court and tell lies about what the Accused did to her. 

20. 	Also submitted is the reason why the complainant did not inform her husband immediately of the incident. The reason as submitted was because the husband was under pressure and the complainant knew their way of retaliation. Malo submitted the complainant’s approach in not telling her husband immediately was reasonable and be expected from an educated person. The Counsel said this was a sensitive issue and she thought it through before telling her husband. Malo said the State witness demeanour in Court was impressive. The witness as submitted was not discredited during the cross examination. 

21.	On the contrary State Counsel submitted that the Accused demeanour was very poor. He was evasive and did not answer questions directly but rather tried to give explanation to the direct questions asked. Malo raised issues with certain evidence not put to the State witness thus contrary to the rule in Brown & Dunn. These are; 
(i) the Accused claimed he bought K10.00 flex and gave to the complainant and 
(ii) the Accused claimed complainant asked him to get on the vehicle. 

Court’s Analysis
22.	The crux of this case centres around the issue of credibility. Whose evidence is to believe or whose evidence is more convincing. As in this instant, is it the evidence of the complainant that this Court should believe or the evidence of the Accused Diijay Embia. In order to appreciate and determine who this Court should believe, this Court should assess all the evidence before it.  In State-v-Angosiwen (No. 1) [2004] PNGLR 1, Kandakasi, J stated;

“In so far as is relevant here, one of the applicable tests or principles is consistencies in a witness own evidence and other evidence called by a party. In State-v-Peter Malihombie [2003] PGNC 124; N236, I found amongst others that there were a number of inconsistencies in the prosecution’s evidence. I found the inconsistencies serious enough to cast a serious doubt on the case against the accused. Many other cases have considered and applied this test. It emerges clearly from these authorities that where serious inconsistencies exist, there is the possibility of false testimony and therefore unsafe to act on.”

	Another relevant and applicable test is on that runs closely with the consistencies test. This test focuses on testing the evidence given in Court against logic and common sense. Speaking of which I said in The State v Cosmos Kutau Kitawai & Anor (No 1) (Unreported judgment delivered on 15/15/02) N2266 that:
“Logic and commonsense does not play an important part in either the rejection or otherwise of evidence before a court of law and whether or not an accused person should be found guilty."
	
A further relevant and applicable test for our purposes is one that requires a close examination of the witnesses’ performance in the witness box, usually known as the demeanour of the witnesses. The Courts have decided many cases in the past on an application of this principle or test.
	
23. 	In the case of State-v-Patrick (2004) PGNC 147; N2611 Sevau, J (as he then was) stated that;

“In order to address these issues, the credibility of the witnesses and their demeanour are relevant. In this case, it is the victim’s words against the Accused’s words so the Court is entitled to believe one witness and disbelieve the other…” 

24. 	The Accused complete his education up to grade 10 level and he now works as a Mechanic. He said he has no personal issue with the complainant and that she is his sister in-law. After the incident, they had arguments and conflicts. Prior to the alleged incident they had no issues. The Accused denied; (i) saying “yu save bagarapim sindaun bilong mi”, (ii) touching her breasts and said, “lapun susu yah larim mi holim”, (iii) saying “samting yah tight”, (iv) saying “mi laik kaikai kan blong yu”, (v) putting his hands into her trousers and asked “am kela ah? (does it have hair or not). 
		
25.	The complainant is an educated person, having graduated from University of Technology in Lae in Accounting. She is married to Randy an Engineer with Department of Works. Both she and her husband owned Kiburu Service Station. What would have gotten into her to tell lies? As Sevua, J observed in Patrick’s case (supra), “My observations on the victim on oath was that although she appeared to be shy, quiet and soft spoken, there was no reason to believe that she would come to Court and lie on Oath, especially is she knew the Accused as well as her as her boyfriend…”

26. 	The complainant and her husband Randy were not living under one house at the time of the incident. Now this is due to some differences. When the incident happened at the Service Station, she called and informed her husband. Then come another alleged incident with the Accused regarding sexual talks and sexual touching of her breasts. Is it reasonable or logical for the complainant to call her husband straight away and inform him of the alleged incident by the Accused? Complainant said her husband was under pressure and she knew of their ways. Meaning of possible retaliation as she is from Wabag married to Randy from Mendi for over 10 years. I am satisfied the incident alleged is sensitive and could spark trouble had complainant informed her husband spot on. Her approach is logical and of a commonsense approach. 

27.	There are instances of breaches of the rule in Brown & Dun Case. The issue of Accused buying K10 Flex Card; complainant asking Accused to get in the vehicle to go to the Police Station; complainant being drunk; etc… The inconsistent statement is in relation to the Accused saying he argued with the Police at the Police Station and when questioned by the State Prosecutor, he shifted and said he argued with the complainant. When pressed further he said he argued with the Police and the complainant. 
		
28. 	I have observed the complainant giving her evidence in the Witness Box. She was forthright and gave evidence consistently and in a logical manner. She recalled all that happened and at which locations, the Accused said and did to her. I find it hard to be believed if she is lying. I find it hard to understand her reason (s) if she’s lying. She completed her evidence and sat through the submissions. I found her to be credible witness and find her evidence more convincing when it comes to assessing her credibility and demeanour. Immediately after they arrived at the Police Station she informed her in-law Samson Makip Allo. She did keep the incident to herself. I found her to be the witness of the truth. 

VERDICT
		
29.	I am satisfied that the State has proven its case beyond reasonable doubt that;
(a)	the Accused Diijay Embia is the person

(b)	touches or pinched complainants breast

(c)	breast is defined as a sexual part (s. 349 (2) CCA) 

(d)	complainant Betty Hipisa did not consent

Verdict:  Guilty of sexual touching (s. 349 (1) (a) of the Criminal Code Act.  

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