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State v Kunuma (No 1) [2025] PGNC 197; N11325 (10 June 2025)

N11325

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR 1465 OF 2024

BETWEEN:
THE STATE

AND:
JUNIOR KUNUMA
(No 1) (Verdict)

GOROKA: WAWUN-KUVI J
6, 7, 9 & 10 JUNE 2025

EVIDENCE- disputed facts- credibility - Whether the accused touched the complainant’s breast for sexual purposes? Who to believe?

Cases cited
Agen v The State [2024] PGSC 93; SC2623
Bonu and Bonu v The State [1997] PGSC 11; SC528
Pari and Kaupa v The State [1993] PNGLR 173
State v Namaliu [2020] PGNC 75; N8284
State v Raphael Kuanande [1994] PNGLR 512
Waranaka v Dusava [2009] PGSC 11; SC980

Counsel
S Joseph for the State
V Move for the accused

DECISION

1. WAWUN-KUVI J: Junior Kunuma (the accused) and the child complainant (Z) reside at [X] police barracks. The accused is the cousin of a police officer. Z is the daughter of another police officer. The accused was an adult. Z was 14 years old.
   
2. He now stands charged for touching the breast of Z for sexual purposes in contravention of section 229B (1) of the Criminal Code.
   
3. The State alleges that on New Year’s Eve of 2023, he pushed Z against a brick wall and grabbed her breast with one hand while trying to unzip his pants with the other. A group of boys interrupted him with their approaching music, enabling Z to escape and report the incident to her parents.
   
4. The accused admits being present with Z at the canteen but denies committing the acts alleged.
   
5. I must decide who to believe.
   

Burden of Proof

6. The State bears the burden of proving its case beyond a reasonable doubt and disproving any defences properly raised on the evidence also beyond a reasonable doubt.
   

State’s Case

7. The State called three witnesses and tendered the following documents during the trial:
   
   1. Exhibit S1 – Photograph of Z taken on 27 March 2024
   2. Exhibit S2- Birth Certificate of Z
   3. Exhibit S3- Statement of Mary Nuke dated 27 March 2024
   4. Exhibit S4- Statement of Joan Papcy dated 26 March 2024
   5. Exhibit S5- Record of Interview of Junior Kunuma dated 26 March 2024
   6. Exhibit S6-Record of Interview of Junior Kunuma English translation
      
8. Z. She was on the veranda with other girls, carrying the accused brother’s baby. He took the baby away and then approached her and asked if she was free that night. She did not respond because she did not understand what he meant. Later, she went to the canteen to chew a betelnut. She did not want her father to see her because he did not allow them to chew betelnuts. While there, the accused asked her again if she was free that night. She did not answer and tried to leave, but he blocked her and pushed her against the wall. He grabbed her breast with one hand and attempted to remove his trousers with his other hand.
   
9. In the cross-examination, she explained that when the accused heard the boys approaching, he released her. That was when she ran off and reported the incident to her parents. She agreed that it was following the second incident when he grabbed her throat while under the influence of alcohol, that he was reported to police.
   
10. In re-examination, she explained that when she reported the incident to her parents, her father went and saw the accused brother and told him to send the accused to the village.
    
11. AD. He is the son of a police officer and was with a group of boys, listening to music and walking to the canteen. He met Z coming up the steps and questioned her about being out after dark. She then proceeded home. He and the other boys walked towards the canteen. They noticed the accused adjusting his belt buckle. His actions made them suspicious. They informed her parents about the incident.
    
12. In cross-examination, he agrees that he did not see the accused touch the complainant’s breast.
    
13. EK: He is the father of Z, who was born on [X] at [X]. After his shift at work, he returned home to find that his daughter was not in the room. When she returned, she told him about the accused's actions. He approached the accused's brother and his wife and informed them to send the accused to the village. They did not.
    
14. During cross-examination, he noted that his daughter had bruises on her neck. He explained that he reported the matter only after the second incident because he didn't want his daughter to suffer further trauma and stigma. However, after the second assault, he decided to report it to the police, reasoning that the accused continued presence in the barracks posed a risk to his daughter's safety.
    

Defence Case

15. The Defence called the accused.
    
16. JUNIOR KUNUMA. He was in the room, cooked, and ate. Feeling hot, he went to the veranda. Z called him, but he didn’t know her name and didn’t respond. She joined other girls, returned, and called out to him again. He followed her to the canteen, where they sat about two meters apart for 1 to 2 minutes before boys approached. She left when the boys came over. Three days later, her father told him to go to the village. He refused, saying he hadn’t done anything wrong.
    
17. On 13 March 2024, his brother gave him three bottles of beer. He was drinking and went to urinate. He passed by Z and tapped her shoulder. Because of that, the District Court said that he was wrong to tap her on her shoulder and sentenced him to 6 months.
    
18. In cross-examination, he denied holding her against the wall and touching her breast.
    

Assessment of Evidence

19. I have observed each of the witnesses as they gave evidence and have considered all the prosecution and defence evidence.
    
20. There is no principle in law that says I must accept or reject all of a witness' evidence. Instead, I may give varying weights to various parts of the witness evidence and decide to believe none of it, some of it, or all of it: Pari and Kaupa v The State [1993] PNGLR 173 per Kapi DCJ and State v Namaliu [2020] PGNC 75; N8284 at paragraph 51.
    
21. When assessing the evidence, I must carefully weigh it against the circumstances of the case and determine whether it is consistent with common sense and logic and whether there are significant inconsistencies which would call into question its credibility.: Bonu and Bonu v The State [1997] PGSC 11; SC528 and Waranaka v Dusava [2009] PGSC 11; SC980
    
22. It is undisputed that the accused and the complainant were together at the canteen. The only facts in dispute are that the accused pushed the complainant against the brick wall. He grabbed her breast with one hand and attempted to unbuckle his trousers with the other hand.
    
23. In assessing the overall credibility of Z's evidence, I considered that there was no suggestion made to her by the defence that she fabricated or concocted the allegations. The defence did not seriously challenge her account. She gave evidence in English confidently and coherently with clarity.
    
24. I have had the opportunity to observe Z's demeanour. There was no indication or suggestion that she was fabricating or concocting her evidence for some ulterior or self-serving purpose.
    
25. There was no suggestion that her account was invented or concocted out of fear of punishment or reprisal from her parents. Even if her father questioned or punished her over her whereabouts, given that he is a police officer, it is implausible that she would concoct the story implicating the accused of a serious crime to avoid punishment from him.
    
26. She immediately reported to her father. Both her father and AD support this account. The defence did not challenge this account; I take it as acquiescence. I find that the spontaneous reporting to her father reinforces her credibility and supports the truth of her account.
    
27. There was no challenge to AD's observations of the accused after Z had left. While he did not witness what transpired between Z and the accused, his observations of encountering Z, followed shortly after by the accused adjusting his trousers, were sufficient for him to be suspicious and were sufficient to compel him to report the incident to Z's parents. Logically, he would not have reported the matter to Z's father if he had not thought anything of it. These matters further support Z's accounts.
    
28. The defence had questioned Z's father about her appearance. He responded that she had bruising. He indicated her chest area. Given that Z has a fair complexion, it is reasonable to conclude that any bruising would be easily noticeable. Notably, the defence did not challenge her father or suggest that he had concocted this aspect of his evidence.
    
29. Both the State and the defence have not directed me to any inconsistencies in Z's evidence, and I cannot find any. As discussed earlier, her evidence was straightforward and was not challenged in any significant way to undermine her credibility.
    
30. On the other hand, the accused demeanour and evidence indicate that he was not a truthful witness.
    
31. His explanation that he, an adult male, followed a young female child to an isolated location at night based on her invitation without enquiring about her reasons is incredible and defies common sense and logic. Z's petite stature dispels any contentions, although none were raised by counsel, that Z was 14 and there may not be anything to raise suspicions. Her physical appearance in court and her photograph taken during the charged period show that she could easily be mistaken for being 11 or 12 years old, rendering the accused explanation questionable.
    
32. His statement to police about what transpired later that night further undermines his credibility. In his ROI, he informed his brother Aaron, a police officer, about witnessing Z's father hitting her, only for Aaron to hit him as well. To my mind and that of any reasonable person, something far more serious transpired that night, prompting Aaron's reaction rather than him merely sitting with a child alone.
    
33. Additionally, he contradicts himself when he maintains in his evidence-in-chief that he did not speak to Z at the canteen, yet, in his ROI, he continued to say that he asked her if she was alright.
    
34. The most incredible and illogical aspect of the accused's account is his statement that the District Court convicted him solely for greeting Z and touching her on the shoulder on 13 March 2024.
    
35. In stark explanation is Z's explanation, which was more logical and accepted by a competent court that convicted and sentenced him to imprisonment. Her account was that he had grabbed her by the throat while he was under the influence of alcohol. She stated that his actions were in retaliation for her complaint to her father.
    
36. His explanation is illogical. It is unbelievable that he would still be friendly and chat with Z after she raised an allegation of sexual touching followed by her father confronting him and telling him to move out of the barracks and return to his village.
    
37. These matters significantly impact the accused's credibility.
    
38. I now address counsels’ submissions on recent complaint. The defence contend that the credibility of the complainant is impacted because the incident was not immediately reported to police. It was only reported after the second assault about 2 months later.
    
39. The decision not to report the first incident subject of this charge to the police does not undermine the child complainant’s evidence. It is inconsequential and has no bearing on the crucial aspects of the case and has been satisfactorily explained. It is incontrovertible as discussed earlier that she had reported the incident immediately to her father. That others who had witnessed what was perceived as suspicious behaviour had soon after reported to her father.
    
40. In Agen v The State [2024] PGSC 93; SC2623 the Supreme Court said:
    

“71. Delay in the making of a complaint to another person or in reporting the matter to authorities does not of itself mean that the allegation is false. As the case law and common experience of this country show, people react differently and there is no typical or “normal” response to sexual violence. As the case law and common experience of this country also show, there are many reasons why a person may not complain, or may delay in complaining, about sexual violence. Fear, love, children, financial constraints, shame, stigma, cultural or community expectations or concerns about the criminal process itself are some such reasons.........

72.Whether delay in making a complaint is significant to the credibility of a particular complainant will depend on the circumstances of the case.”

41. Here, the decision to withhold reporting to the police was not of Z’s. She was a child. The decision was made by her father. He explained that he had spoken to the accused sister-in-law and brother and had asked them to have him sent to the village. He had hoped that that would have resolved the matter and would have avoided trauma and stigma for his daughter. It was only after the second incident that had concerns for his daughter’s safety in the barracks and placed a formal complainant against the accused. There was no suggestion of malice or ulterior motive behind the father’s actions.
    
42. For the foregoing reasons I accept the child complainant’s evidence and reject the evidence of the accused. I accept that the accused had pushed the complainant against the brick wall and with one hand had grabbed her breast and with the other hand had attempted to remove his trousers.

The Elements

43. The elements are that the accused (1) for sexual purposes (2) touched with any part of his body (3) the sexual parts (4) of a child under the age of 16.
    
44. Having accepted that complainant’s version the only question that remains is whether the accused actions were for sexual purposes. This goes to the mind of the accused. I must assess the circumstances to draw an inference as to the intent of the accused. As was said by Injia J, in State v Raphael Kuanande [1994] PNGLR 512:
    

“Intention is a matter which goes to the state of mind of the accused at the time he acted. It may be proven by direct evidence of the accused's expression of intention followed by the act itself or by circumstantial evidence. In either situation, it is necessary to examine the course of conduct of the accused prior to, at the time and subsequent to the act constituting the offence”.

45. Given the absence of bystanders and the festivities of New Year’s Eve distracting everyone, the accused deliberately obstructing her escape, forcefully pressing her against the wall, followed by an attempt to remove his trousers and that he only released her when he heard approaching individuals, I am satisfied that the accused actions were for sexual purposes.
    

Conclusion

46. Based on the forgoing reasons set out above, I find that the accused had touched the complainant’s breast for sexual purposes and accordingly return a verdict of guilty to the charge of Sexual Touching under s 229B (1) of the Criminal Code.
    

Orders

47. The Accused having been charged with one count of Sexual Touching under s 229B (1) of the Criminal Code:
    
    1. Is found guilty.
    2. The Probation Office is requested to prepare a pre-sentence report to assist the Court in sentencing by 27 June 2025
    3. The State is directed to file a Victim Impact Statement to assist the Court in sentencing by 27 June 2025.
    4. The offender is remanded in custody pending sentencing.
       

Lawyer for the State: The Public Prosecutor

Lawyer for the accused: The Public Solicitor