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State v Inabin [2018] PGNC 184; N7287 (7 June 2018)

N7287

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1643 OF 2016

THE STATE

V

MISIRU INABIN

Kibil - Duke Of York: Anis J
2018: 21^st, 22^nd May & 7^th June

CRIMINAL LAW – Section 229B(1)(a)(4) & (5) of the Criminal Code Act Chapter No. 262 – sexual touching of a child under the age of 16 years old – Child under the age of 12 years old – alleged breach of trust, authority and dependency – credibility of victim and accused tested – whom to believe

Case cited:

State v. Pennias Mokei (No.1)(2004) N2606
State v. Jeffery Toapas (2006) N4485
State v. Michael Rave, James Maien and Philip Baule [1993] PNGLR 85

Counsel:

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

VERDICT

7^th June, 2018

1. ANIS J: The accused was charged with one count of sexual touching of a child under the age of 16 years under section 229B(1)(a), (4) & (5) of the Criminal Code Act Chapter No. 262 (the CC Act). The accused pleaded “not guilty” on arraignment on 21 May 2018. The trial commenced immediately after. Presentation of submissions on verdict was heard on the next day at 9:30am on 22 May 2018.

2. This is my ruling on verdict.

INDICTMENT

3. I will refer to the victim using the initials EJ. The indictment reads in part as follows:

MISIRU INABIN of MIOKO PALPAL, Duke of York, EAST NEW BRITAIN PROVINCE stands charged that he on the 23^rd day of June 2016 at Mioko Palpal in Papua New Guinea, for sexual purposes touched with his fingers, the sexual parts of a child under the age of 16 years, namely the vagina of EJ then aged 11 years old.

AND AT THAT TIME EJ was under the age of 12 years old in that she was 11 years old.

AND AT THAT TIME Misiru Inabin was in a position of trust, authority and dependency towards EJ in that he is her grandfather.

4. The supporting facts presented by the prosecution are as follows:

The victim EJ lives with her grandparents at Mioko Palpal village, Duke of York Island. On the 23^rd of June 2016 between 6am and 7am the accused was at Mioko Palpal village. The accused is the victim’s grandfather’s brother. The two brothers were drinking alcohol under the victim’s home. The accused sent the victim to go to his house and get newspaper for him to roll his tobacco. The victim walked to the accused’s house. The accused followed her into the house. He took her and sat her on his lap. He kissed her on her right and told her he loved her. Then he touched her vagina with his fingers. After that they both walked back to the victim’s grandparents’ home. The victim told her grandmother Margaret Johnny Inabin what the accused did to her that same morning.

The State alleges that the accused touched for sexual purposes the vagina of the victim who is a child under the age of 12 years old. She was 11 years old at that time. The State further alleges that the accused abused a position of trust, authority or dependency in that he is the grandfather of the victim. The accused is the brother of the victim’s mother’s father.

The charge is laid pursuant to s.229B(1)(a)(4) & (5) of the Criminal Code.

ISSUES

5. The main issue relates to the evidence of EJ, her grandmother and the accused. The Court is left to decide on who is telling the truth, or who the Court should believe. If the Court is to believe the prosecution’s evidence, then the next issue would be whether the prosecution has established the elements of the offence of sexual touching beyond reasonable doubt.

SEXUAL TOUCHING

6. Section 229B(1)(a), (4) and (5) of the CC Act reads:

229B. Sexual touching.

(1) A person who, for sexual purposes—

(a) touches, with any part of his or her body, the sexual parts of a child under the age of 16 years; or

.....

is guilty of a crime

Penalty: Subject to Subsections (4) and (5), imprisonment for a term not exceeding seven years.

.....

(4) If the child is under the age of 12 years, an offender under Subsection (1) is guilty of a crime, and is liable to imprisonment for a term not exceeding 12 years.

(5) If, at the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and the child, an offender against Subsection (1) is guilty of a crime, and is liable to imprisonment for a term not exceeding 12 years.

7. I adopt the summary of the elements of the offence of sexual touching from the case The State v. Tommy Nand (2014) N5591. His Honour Justice David sets them out as follows:

1. the accused touched;
2. for sexual purposes;
3. with any part of his or her body;
4. the sexual parts;
5. of a child under the age of 16 years.

WITNESSES

8. The prosecution called 2 witnesses. They were, (i) victim EJ, and (ii), Margaret Johnny Inabin (Margaret). The defence on the other hand called the accused as its only witness. All witnesses gave sworn evidence and were cross-examined.

VICTIM’S AGE

9. I refer to Exhibits “P2” and “P3”. They were tendered by consent by the prosecution. They were also not challenged by the defence in terms of adducing other evidence in Court during the course of the trial. The exhibits consist of Margaret’s sworn statutory declaration dated 29 July 2016 (Exhibit P2) and EJ’s clinic book (Exhibit P3). The evidence shows that EJ was born on 20 January 2005. I find as a matter of fact that EJ was born on 20 January 2005. The allegations against EJ purportedly occurred on 23 June 2016. I therefore find that EJ was 11 years old at the date of the alleged incident.

UNDISPUTED FACTS

10. The date, time and the following facts of the alleged incident was not disputed in the evidence of both the prosecution and defence: On 23 June 2016, between 6am and 7am, the accused and his brother Johnny Inabin were drinking beer under the house of Johnny Inabin. The accused’s house was a short distance away. With them were Margaret, who was Johnny’s wife and EJ. The accused sent EJ over to his house to get a newspaper for him to roll his tobacco. EJ walked over to the accused’s house. The accused followed shortly after to his house.

DISPUTED FACTS

11. The victim gave sworn evidence as follows: She said she went inside the accused’s house but could not locate the newspaper. She said she called out to him and that she was surprised to see the accused already at the house. She said that the accused asked her who in particular had sent her to get the newspaper. She said she told him that he did. She said at that moment he told her that he loved her. She asked him what he had meant by that. She said he said nothing and went ahead and kissed her on her right cheek. She said that he then sat her on his lap, lifted up her skirt and held and rubbed her vagina. She said she told him that she would report her to her grandfather. She said he advised her against reporting him. She said he told her that if she reported them, they (EJ’s grandparents) would assault her. She said after that, he gave her 90 toea and they both walked out of his house and back to the house where Johnny and Margaret were at.

12. Margaret’s sworn evidence is as follows: She said when the accused and the victim returned from the accused’s house, she recognised that the victim looked frightened or traumatised. She said just by looking at her, she could tell that something was not right about EJ. She said that later that same morning, EJ reported the incident to her. Margaret repeated what the victim had told the Court. She said she took EJ to Kokopo the next day, Friday 24 June 2016 and reported the matter at the Sexual Offence Section at the Kokopo Police Station. She said she also took EJ to the Vunapope Hospital for a medical check-up.

13. The accused gave his evidence as follows: He said he followed EJ to his house. He said he arrived and met EJ at the veranda of his house. He said he did not go into his house. He said from there, he began to tell EJ of the importance of education. He said he encouraged her to do well in school so that when she grows up she would be able to look after her grandparents as well as him and his wife. He denied the rest of the allegations that were made against him whilst he was at his house with EJ. He said after he had spoken to EJ, they both walked back to EJ’s grandparents’ house.

ASSESSMENT

14. EJ is now 13 years old. She was 11 years old when the alleged incident occurred. Her present age means that she is still a child and as such I should caution myself when assessing EJ’s sworn evidence. This is because of the fact that there are risks that may arise in a case like this where a child testifies or gives evidence in Court. For example, there is the risk that the child may not fully appreciate the purpose or meaning of giving evidence under oath, or of the need to tell the truth in Court. There is also the risk where a child may not have the capacity to recall details of the incident. And of course all such similar considerations that are tied to a child of a tender age or of children of young age. I refer to the case State v. Pennias Mokei (No.1)(2004) N2606. Justice Cannings stated and I quote:

The complainant is still a young girl. The Court must be conscious of the necessity of a child witness understanding the meaning of truth. It must make an assessment of whether the child is capable of understanding an oath. If in doubt the Court should take steps under Section 6 of the Oaths Affirmations and Statutory Declarations Act Chapter 317. (See Beraro v The State [1988-89] PNGLR 562 and The State v John Saguno [1994] PNGLR 308.) Section 6 allows evidence to be taken in a different way if the witness does not understand what an oath means. But here the witness, Sue Wani, was in my assessment fully cognisant of the Court surroundings. She understood what she was being asked to do. She knew why the accused was in the dock. She knew the meaning of truth. She was quite nervous in the witness box. But her demeanour was not that of someone who was lying or shifting ground.

15. The accused in that case was charged with sexual penetration of a child under the age of 16 years old under section 229A(1) of the CC Act. The victim was 13 years old at the time of the offence and she gave evidence at the age of 14 years. Neither counsel took issue with her ability to understand the meaning and the effect, of being required to give evidence under oath. But regardless, the Court had to caution itself of the dangers of dealing with or of accepting evidence from a child. The accused in the case was convicted of the charge.

16. In the present case, both counsel did not take issue when EJ was administered under oath. Regardless of that, I had observed that EJ had understood the meaning of telling the truth. I found her to be a credible witness. She appeared shy and spoke softly in Pidgin which was later translated. She gave her evidence which appeared consistent with the facts that had been alleged. I would refer to her evidence as I have summarised above. I note that she had issues with some of the questions during cross-examination. She had difficulties following the type of legal questions that were put to her. But that is of course not unusual given her age. But I found that she was able to answer questions without difficulty where she understood the questions. Overall, I had observed that EJ knew the difference between telling the truth and of not telling the truth, when she gave her evidence in Court.

17. I think the part that requires clarification was at a time during cross-examination and re-examination. The specific questions which I think require consideration, were as follows:

Q. The accused never touched you or did something to you, is that true?

A. No.

18. In re-examination:

Q. It was put to you that the accused never touched you and did not hold you and you answered “”no”, Can you explain.

A. He did nothing to me but he touched my vagina.

19. In my view, EJ had answered “no” in cross-examination which was consistent with her testimony. When clarification was sought during re-examination, EJ still maintained her story which was that the accused had touched her vagina.” To my mind, that evidence plus what she had stated during examination in chief, all goes to show that EJ was consistent with her testimony.

20. Witness Margaret corroborated what EJ had said. She was present at that time. She said she could tell from EJ’s appearance that something bad had happened to her as EJ and the accused returned from the accused’s house. She said EJ looked frightened or traumatised. She said EJ told her of the incident shortly afterwards that same morning. She said that on the very next day, she took EJ to Kokopo to lay a complaint with the police. Medical examination of EJ followed after that. Now I note that whilst corroboration is permissible or allowed, it is not required under law for offences under the section 229B like for the present case (see case: State v. Jeffery Toapas (2006) N4485). The relevant law that says that is section 229H of the CC Act. It reads:

229H. Corroboration not required.

On a charge of an offence against any provision of this Division, a person may be found guilty on the uncorroborated testimony of one witness, and a Judge shall not instruct himself or herself that it is unsafe to find the accused guilty in the absence of corroboration.

21. The accused has exercised his right to give sworn evidence. I have summarised his evidence above in my judgment. I must say that I did not find the accused to be a credible witness. His demeanour in Court was that of a person who was not confident. He did not speak clearly. He was clearly cautious of his reply and I have noticed that he tried to state things to make his story look credible despite the fact that that was not what was asked of him. For example, when he was specifically asked by the prosecution whether he was alone with EJ at his house, he said that there were people on the road or nearby the road walking. He also added that although there was no one else inside his house beside himself and EJ, that there was a house which was just nearby to his house. The prosecution had to repeat the question and remind him that he was asked specifically on whether there was anybody else at his house at the time when he and EJ were there. The accused eventually said that there was no one else in the house at that time except himself and EJ. He admitted following EJ to his house but denied ever entering the house. He said he only approached EJ at the veranda of the house and spoke to her with encouraging words such as the importance of education and of the need to take care of her grandparents as well as of himself and his wife after when she grows up. I must say that I find the evidence odd. EJ’s grandparents were right there with the accused under their house. He could have said these nice words to EJ in their presence because EJ was expected to take only a few minutes. But no. The accused it seems had to get these encouraging words out to her as quickly as possible and in private that he had to leave EJ’s grandparents and follow EJ to his house to tell her, and then escort her back to EJ’s grandparents. I find that to be quite unusual and strange. I also note that no evidence was led as to whether the newspaper was ever located or found etc. His evidence specifically is that he followed EJ to his house to have a private chat and they both returned after that. As I have said, these do not all add up or make sense.

22. Evidence by both sides also reveal that the accused, EJ and her grandparents have had a good long past relationship. EJ’s grandfather is the brother of the accused. And the accused is EJ’s mother’s father. They lived together and shared food. They did not have any animosities against each other. The prosecution established these to assert to the accused that if that were the case then there was no reason for EJ or her grandmother to tell lies or accuse the accused of such a serious allegation. The accused said in response that he was surprised when he was taken to Court.

23. The other factor I must note is that EJ’s complaint was a fresh complaint. She reported the incident immediately to her grandmother on that very same morning. She did not wait until the next day or until a week, months or years later (see case: State v. Michael Rave, James Maien and Philip Baule [1993] PNGLR 85). EJ’s evidence was partly corroborated by her grandmother’s evidence.

FINDINGS

24. In regard to the disputed facts, I find the following facts as true: The accused followed EJ to his house. Inside the house, he kissed her on her right cheek and told her that he loved her. Then he sat EJ on his lap and he touched or rubbed her vagina with his fingers. After that they both walked back to EJ’s grandparents’ home. When they arrived there, EJ’s grandmother Margaret could see that EJ was traumatised or scared about something. Shortly after on that same morning, EJ informed her grandmother Margaret of what the accused had done to her. The accused is the biological brother of EJ’s grandfather. They lived as neighbours for a long time. There existed a relationship of trust, authority and dependency between EJ and the accused. The said relationship was breached by the actions of the accused on that morning on 23 June 2016.

25. I find that the accused had lied in Court to protect himself against the charge.
SUMMARY

26. To summarise, I find that EJ was below the age of 12 years old at the time of the offence. I find that the accused had uttered the word “I love you” to EJ. I find that he had kissed EJ on her right cheek. I find that the accused had used his fingers to touch EJ’s vagina for sexual purposes on 23 June 2016 at Mioko Palpal village, Duke of York in East New Britain Province. I find that at that time, there existed a relationship of trust, authority and dependency between the accused and EJ.

27. I find that the prosecution has proven beyond reasonable doubt that the accused has committed the offence of sexual touching of a child below the age of 12 years old.

THE ORDERS OF THE COURT

28. I find the accused guilty as charged under section 229B(1)(a), (4) and (5) of the CC Act.

The Court orders accordingly.
____________________________________________________________
Office of the Public Prosecutor: Lawyers for the State
Office of the Public Solicitor: Lawyers for the Accused