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Independent State of Papua New Guinea v Aii [2023] PGNC 283; N10381 (5 July 2023)

N10381

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 26 OF 2022

BETWEEN:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

AGAINST:

TOM AII

-Accused-

Waigani: Tamade AJ

2023: 1^st June; 5^th July

CRIMINAL LAW- verdict- section 229B of Criminal Code- Accused gave inconsistent statements- State witnesses truthful witnesses- verdict of guilty returned

Legislation:

Criminal Code Act

Counsel:

Mr Dale Digori, for State
Mr. David Kayok, for the Accused

5^th July, 2023

1. TAMADE AJ: This is a decision on verdict after a trial on the matter.
   
2. The Accused is charged with sexual touching contravening section 229B(1) and (4) of the Criminal Code. On arraignment, the Accused denied the charge and the State proceeded to call its witnesses.
   
3. The State alleges that the Accused sexually touched with his penis the anus of the child under the age of 12 years of age, then aged 9 years old, at Burns Peak, in Hohola, National Capital District.
   

The Charge

4. Section 229B of the Criminal Code is in the following term with the relevant sections underlined.
   

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
(b) compels a child under the age of 16 years to touch, with any part of his or her body, the sexual parts of the acused person’s own body,

is guilty of a crime.

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

(2) For the purposes of this section, “sexual parts” including the genital are, groin, buttocks or breast of a person.

(3) For the purposes of this section, a person touches another person if he touches the other person with his body or with an object manipulated by the person.

(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.

State’s evidence

5. The prosecution and the defence had agreed for the following exhibits to be tendered by consent. These are:
   1. Statement of Koune Akuwi (victim’s mother) in English and Pidgin
   2. Statement of Constable Cathy Peter
   100. Statement of Constable Esther Bavi
   4. Record of Interview of the Accused in English and in Tok Pisin
   5. 1xA4 page containing scanned extract of Clinic Book of the victim
      
6. The prosecution called the victim and one Lynne Tanda as witnesses.
   
7. There is evidence from the Clinic Book of the victim that she was 9 years old at the time of the offending. The victim has two other siblings, a brother and a sister. At the trial of the matter, she was 12 years old. The victim’s parents are from Eastern Highlands Province. The victim and her parents leave at the Burns Peak Settlement at Hohola in NCD
   
8. The victim came into Court very timid and shy. After being made accustomed to the Court settings, the victim gave evidence in which she said that in one afternoon in July of 2020, she was playing monkey monkey with other kids in the neighbourhood when as she ran to the back of her grandmother Lynne’s house, a man grabbed her and pulled her underneath to the house. He then removed his trousers and rubbed his penis on her anus. Her grandmother then came down to the house and saw what had happened and assaulted the man. The victim said in evidence that she had seen the man before, but she does not know him.
   
9. The issue the defence took with the victim was in relation to what the man had done to the victim, the prosecution had put to the witness how she felt regarding what the man did to her. The victim’s answer was forthright, she did not feel anything. In cross examination when the defence put to the victim how she could not have felt anything as to what the Accused did to her, the victim explained that it was because the Accused did not put (his penis) inside her, “he only rubbed it outside”.
   
10. The victim confirmed that there were other children playing with her but they had ran in other directions to other nearby rent houses and she was running by herself in a different direction whilst playing when the Accused pulled her underneath to Lynne’s house. The victim had referred to Lynne as her grandmother. The victim did say that at the time she was taken to underneath her grandmother’s house, her grandmother was sitting on the platform on top of her house.
    
11. The victim was cross examined as to her statement given to the police of whether the man had lured her with K100 and also whether the man had covered her mouth with his shirt to keep her from screaming. The victim did not agree, at times reluctant to answer. She did say that what she told the Court was the truth. When asked whether what she is telling the Court was told to her by her parents, she disagreed.
    
12. Lynne Tanda was the other witness by the State. She is about 50 years old and is from Kainantu. She is from the same area as the victim’s parents.
    
13. On 16 July 2020 between 4:30pm and 5pm, she was sitting at her veranda facing down to the gate when she saw the victim walking up from the gate and towards underneath her house. She states that the victim usually comes to play with her daughter. Soon after about 2 to 3 minutes, she saw the Accused walk up to the corner of her house. As she observed, she said that the Accused looked side eyes to her meaning he looked suspicious as he went underneath her house. Lynne was observing the whole scenario and can not hear any noise from the victim who had gone underneath her house. After about 5 minutes, she decided to go down to underneath her house and check.
    
14. Underneath Lynne’s house is a chicken shed. Lynne had blocked off the underneath of her house to do a chicken shed where she raises chickens to sell. There is an entrance into this chicken shed and as it is in the afternoon, there was ample light coming into the chicken shed. As Lynne went inside the chicken shed underneath her house, she could see clearly the Accused with his back to the entrance moving his buttocks to and fro. Lynne then went straight and grabbed his shirt with one hand and her other hand she held on to his pants which was down to his knee as he was half naked and questioned him as to what he was doing. The victim was by now standing to the side and Lynne said she saw her half naked.
    
15. Lynne therefore punched the Accused in which the Accused blocked her hand. Lynne said she was still holding on to his shirt whilst with her other hand she punched him. The Accused tried to run away however Lynne struggled with him keeping a firm grip on his shirt as they came outside the chicken shed. Lynne then called out to the public and the victim’s parents to hurry up as the victim was being abused by the Accused. The Accused then broke free from Lynne and ran away. Lynne told the public who had arrived and also told the victim’s parents of what she encountered with the Accused and the victim.
    
16. Lynne clearly identified the Accused in Court as the person whom she encountered with the victim inside her chicken shed underneath her house. She confirms that the victim’s mother is related to her aunt and that her father is also from Kainantu but from a different village. Lynne also told the Court that she knows the Accused as also from Kainantu and also lives at Burns Peak settlement and that she had known him for a year or so.
    

The Defence evidence

17. The Accused was the only witness for the Defence. The Accused denied the charge entirely and states that the victim was coached by her parents to make up the whole story and that Lynne Tanda was not telling the truth.
    
18. The Accused evidence in the Record of Interview and as told in Court is not the same. The Accused states that he is an elder in the SDA Church. The Accused said that on that day on 16 July 2020, he was studying his Bible in the morning as he would be taking the Sabath service. After study he was hungry so he told his cousin to boil rice. In his record of interview, he said they ate the rice and he said he was going down to Mama Lesie’s house to have a bath. He said he went down and saw Panso with his daughter and saw Peteroli’s wife at their home. He also saw Lynne Tanda and her mother sitting on their verandah. He said he went and saw Gaby at his house and whilst at this Gaby’s house, he saw the victim who called out to him calling him Uncle to come give her K2.
    
19. The Accused walked down to the victim at the corner of Lynne Tanda’s house. The Accused said the victim asked him to give her K2 to buy ice cream however the Accused told her that he did not have any money. It was when he was talking to the victim that Lynne Tanda came down from her house and accused him of abusing the victim. Lynne Tanda then assaulted him and tore his shirt and demanded that they go to the public. As it was a settlement and people were bound to gather, the Accused said he left and went to 6 mile as he said if he had stayed back at Burns Peak, the people there would beat him up for nothing, so he left and came back on Sunday when the victim’s parents assaulted him and demanded that they go down to the Police Station. He was therefore charged and detained at the Police Station.
    
20. In the record of interview, the Accused said that he saw the victim calling out to him as uncle to come give her K2. In the Accused evidence in Court, he said he saw the victim coming in to fetch water at the yard. The Accused said that he came down to the tap where the victim was and that they talked at the tap area when Lynne Tanda came down and accused him of abusing the victim.
    
21. I find that the Accused gave two versions of how he met the victim. At his record of interview, he said that he was at Gaby’s house at the veranda when he saw the victim beckoned him to come to her and give her K2 to buy ice cream. He then went to the victim at the corner of Lynne’s house, and this was whilst Lynne was observing from her veranda. In Court, the Accused said that Lynne had come in to fetch water and beckoned him to come see her. He said he met her at the water tap when Lynne confronted him.
    
22. The Accused has clearly given two versions of how he met the victim, one at the corner of Lynne’s house and one at the water tap area which I take it to be in front view of neighbours sitting at their veranda.
    
23. In cross examination, the Accused agreed that he has some grudge with Lynne Tanda as she often complaints about the bucket with which they usually wash with and fetch water at the tap which is within Lynne Tanda’s yard. The Accused denied the entirety of the State case put to him regarding the sexual abuse of the victim and agreed that Lynne Tanda made up the whole story because of her grudge against him over the use of a bucket used to fetch water at the tap.
    

Consideration of evidence

24. The victim’s story is consistent with the evidence given by Lynne Tanda. The victim was playing with other kids when she came into the yard of Lynne Tanda. Lynne observed her coming in and also observed a few moments after when the Accused came in and also went underneath her house. As some time had passed when she did not hear from the victim, she decided to go into the chicken shed where she caught the Accused in the act with his pants down. She grabbed his shirt and his pants still down on his knees and furiously questioned him as to what he was doing. There is no doubt in my mind that Lynne Tanda is a honest and credible witness. She gave clear evidence and she came off as a concerned and caring person. The defence did not cross examine her at length as she appeared to be very firm and clear in her evidence. She was concerned about the victim as she knows the victim and her parents, and she was protective of the child.
    
25. I also have no doubt in the evidence of the victim. She was timid and perhaps fearful of the magnitude of being in Court but she told the Court that what she said in Court was the truth.
    
26. The Accused on the other hand had inconsistencies in his statement. He attempted to retell his story in very small particular details to make it believable however he never brought any other witness to Court to support his story. The Accused seemed to exaggerate his story. There is also the inconsistency in his evidence regarding the time he gave his record of interview. The incident happened on 16 July 2020 and the record of interview was on 27 July 2020. The Accused seemed to be confused stating that he was at the Boroko cell for 3 months before he gave his record of interview. He seemed to say that as he was in a dark cell, he could not make out the time from day or night. The cells at Boroko are not dark that a person cannot tell whether it is night or day. I find this to be untruthful and again of someone who lies and exaggerates his story to make it look believable.
    
27. I have no doubt that the victim’s story and the clear and undisputed evidence of Lynne Tanda as a credible witness confirm beyond reasonable doubt that on 16 July 2020 in the afternoon at Burns Peak Settlement in NCD, the Accused took the victim into the chicken shed beneath Lynne Tanda’s house and sexually touched with his penis the anus and buttocks of the child victim. The Accused was caught red handed by Lynne Tanda who grabbed his shirt and his pants which was still down to his knees.
    
28. The evidence in this trial is therefore overwhelming against the Accused who gave inconsistent statements as evasive. There therefore exists evidence that sustain all the elements of the charge under section 229B(1) of the Criminal Code.
    
29. I return a verdict of guilty as against the Accused.

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Office of the Public Prosecutor : Lawyers for the State

Office of the Public Solicitor: Lawyers for the Accused