Girua v Naewa [2011] PGDC 9; DC1056 (4 February 2011)

DC1056

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL (GRADE FIVE) JURISDICTION]
GFCr 64 of 2009

BETWEEN

JUDY GIRUA
Informant

AND

JOIA NAEWA
Defendant

Goroka : G.Madu

2009: August 10, 26 September 8
: October 8, 28 November 5, 18, 26
: December 16
2010 : March 25, 30, 31 May 31 July 7, 26, 27
: August 3, 6, 10 September 22
: October 26 November 23, 24
: December 6, 10
2001: January 27 February 4

CRIMINAL - Particular –Indecent and Unlawful Assault – on a female -
Plea – not guilty – evidence

CRIMINAL – Evidence – Matters for consideration –vaginal examination
Indecent – uncorroborated accepted if there is truth.
Cases Cited

The State –v- Andrew Tovue[1981] PNGLR 8

References

Criminal Code Act S. 349

Counsel
Senior Sergant James Bonki, for the State
Brian Koningi, for the defendant
4 February 2011

REASON FOR DECISION

G Madu,PM. : The accused Joia Naewa was charged on one count of indecent assault of a married woman pursuant to Section 349 of the Criminal Code, Chapter No. 262.

3. The prosecution alleged that on 23rd of July 2009 between 10 am and11am at Asaro Health Centre the accused whilst on duty examined the victim who came to get her family planning injection. The victim when giving her card to the accused, ask the victim to lie on the form. The accused told the victim to lie on the form and lift her meri blouse which she did. The accused then without her consent touched her breasts and squeezed them for a long time. He then touched her abdomen and pressed and asked her if she felt pain and she replied with a “No”. The accused put his hands into the victim’s panty and quickly inserted one of his fingers into her vaginal canal which made the victim to get up. The victim was very upset and left immediately and reported the incident to her husband.

EVIDENCE ADDUCED BY THE STATE

The State called two (2) witnesses. Victim Morume Nick stated that she went to the Asaro Health Centre on 23rd July 2009 to get a Family Planning Injection. While sitting on the form the accused saw the victim coming towards her so she got up and gave her card. The accused then asked the victim to lie on the form. He lifted her clothes up and held her breasts and presses them for a long time. The accused then pushed his hand through the pants and held her on the vagina and pushed his hands through vagina canal. The accused then asked the victim how many children the victim had and whether her breasts were alright. The accused then asked the victim in pidgin, “Yu laik last kuap”(Do want to have last sex) three times and she was upset and immediately went and reported the incident to her husband.

This witness stated that she was not sick or had no other health problem but went purposely to get family planning injection but instead the accused examined her without her consent and did not have genuine reasons to do so.

4. The second witness Nick Lasaho said on 23rd July 2009 at Asaro Police Station when the victim came to see him at the Police Station she was in tears and told him that the Doctor did not check her the way he is suppose to do. The witness basically repeated the evidence given by the first witness to the court. After that the second witness asked the first witness to go back to the Doctor and ask him explain why he did such a thing to her but the Doctor said he was sorry for what he did. The witness stated he was not happy about the incident involving his wife and reported the incident to the Police.

The State intended to call the investigating officer to give evidence but Defence Counsel indicated that the record of interview would be tendered by consent and admitted the record of interview as evidence.

EVIDENCE ADDUCED BY THE DEFENCE

The accused elected to give sworn testimony. He said on Thursday 23rd July 2009 was a Remembrance Day, a Public Holiday. He was on call with his wife who is also a nurse and both were taking care of a mother in labour. As it was A Public Holiday, a notice was put to inform the public that only emergency cases will be attended to and on that day only the back door was open for emergency cases only.

The accused and his wife were attending to a young mother on labour when he left to attend to an elderly partly crippled man Kennedy Digano to supply him medication as he was going home to the village.

When the accused came out from labour ward he saw another patient sleeping on the form and he was disappointed and asked how did you come into the ward? Knowing well that it was a public holiday and notices were put to inform the public and only two staff were on call, the accused upset and raised his voice. This made his wife to leave the labour ward to see what was happening.

During that time the accused asked the victim why she was sleeping and why she came and in response she said for family planning. The accused told her that family planning was not an emergency and to return the next day but his wife insisted that he should attend to her when she saw her shivering. He felt sorry and conducted a brief examination while she was lying and diagnosed that she had malaria and treated accordingly.

The second witness Kennedy Digano stated that 23rd July was a Public Holiday and he was admitted to the Health Centre and admitted to the ward for three weeks. It was holiday and all the staffs went on break on that day while O.I.C and his wife worked over the holiday. This witness was discharge and waited to get his supply. While waiting the victim came in from the side or back door and slept on the form.

The O.I.C examined her and diagnosed that she had malaria. So he went around to the Dispensory to get the supply. He came back and gave the supply to the victim and the witness and both left.

The third witness Judy Naewa stated that on 23rd July 2009, she saw Moruma Nick coming through the back door into the clinic and slept on the form. At that time both herself and the boss referring to her husband were attending to a woman in the labour ward. He came out from the labour ward to discharge a patient when he noticed Morume sleeping on the form and said “you, it is a public holiday we will not see the sick people”. When the accused spoke aloud, the witness came out of the Labour Ward to see who was talking and by that time Morume was sleeping on the form. The witness then told her husband that the victim was sick and must be treated as she was shivering. The accused then told Morume that family planning is not an emergency and told her to come back the next day. By that time the witness was standing at the door way of the Anti - Natal ward.

The witness said that at that time she put her ears to the mother in labour and her eyes to her husband who was examining Morume. She also saw the second witness Digano sitting and undoing the bandage in his hands.

The witness stated that the accused examined Morume by applying the normal procedure of pulpation and telling her not to have sex one night and her treatment will be for Malaria. By that time the mother in labour had delivered and one of the ladies ran out to tell the sister to come and check the mother who has just delivered. The accused by then went to get supplies for Digano and Morume from Dispensory. Their medicines were supplied and both left.

ISSUES

The accused does not deny conducting examination on the victim’s breast and groin areas. He denied conducting vaginal examination because he had to examine her in a proper examination room and that he needed hand gloves. The examination he conducted was brief as it was in the presence of other people.

There are two issues and these are:

(i) Whether the accused actions amount to indecency?

(ii) Whether the accused evidence need not be corroborated?

ANALYSIS OF EVIDENCE

Where the evidence is before the Court, it is necessary to analyse these evidence in conjunction with the witnesses’ demeanour and credibility.

In relation to the victim she spoke confidently when giving her story and could recall what transpired on that date. She said that on 23rd July 2009, she went to Asaro Health Centre not knowing that it was a public holiday and was there specifically to get family planning injection and was not sick as alleged by the accused. I consider her as credible witness.

Her husband Nick Losaho when giving evidence told the court the version of the story of relayed to him by his wife and when she approached him she was in tears. The witness was not satisfied with the response the accused gave to his wife and reported the incident to the police. Again I observed this witness to be truthful and credible.

The accused in examination in - chief and cross - examination gave lengthy responses and appeared to be protective of his action. In record of interview he totally refused to answer some crucial questions from the arresting officer. Why all of a sudden he is now talking out. I cannot understand. It raises question on his demeanour. I observed him as not truthful.

The defence second witness Kennedy Digano said that he was present when the victim was examined and when the supplies were given by the accused they both left together. The victim rebutted that part of evidence saying that Digano had already left leaving her alone in the out – patience area. I observed this witness was not telling the truth as his story was being fabricated.

The defence third witness Judy Naewa is the wife of the accused and is a compellable witness. There is no doubt that as a wife she had to give evidence in support of the accused. I question her credibility and therefore her story has been fabricated.

I am therefore satisfied that Morume and her husband Nick Losaho were truthful witnesses.

FINDING OF FACTS

In accepting the Morume Nick’s testimony, I am satisfied that the accused on 23rd July 2009 did conducted examination on the victim at the Asaro Heath Centre Out patience area. Was the examination authorised? The accused admitted examining the breasts and groin areas but denied doing vaginal examination as he had to do it in the examination room and needed a hand clove. The victim on the other hand said that accused had the doors locked and then put his finger into her vaginal canal when no one was around at that time.

APPLICATION OF THE FACTS TO LAW

The issue in contention is whether the accused in conducting vaginal examination had acted decently on the patients. This is a situation where a patient had acted on instruction of her doctor. She was there for the purpose of getting family planning injection. In her evidence she stated that when she was asked by the accused to lie down she followed his instruction. She protested against him only after he put his finger into her vaginal canal by getting up. Was it proper for him to do what he did? I am of the view that the accused did not act decently in examining the patient. The fore most would have been to have her taken into an enclosed room for examination with proper implements like hand gloves. I am sure that the accused knew what he was to do. Further the victim told her husband when she reported the incident to him that the doctor did not examine me the usual way. Here I am led to infer that the victim knew well that the accused did not do the right thing. In the case of The State –v- Andew Tovue [1981] PNGLR 8, held that “what amounts to indecency depends upon the standard of modesty of the ordinary citizen of the area at the time the act occurred. Standard of decency vary from place to place and from time to time”. This means that what is indecent at one time and place or under one set of circumstances may not be indecent at another time and place or in different circumstances.

In the instant case, since the victim indicated to the accused that she was there to get her family planning injection, should not have proceeded to examine her but instead had a different motive when he put his finger into her vaginal canal which amounted to indecency.

Though not a rule of Law, it is a rule of practice established by the courts that an accused person in criminal cases of sexual offences cannot be convicted on uncorroborated testimony of the alleged victim held in The State –v- Andrew Tovue. However since I have alluded that there is truth in the evidence given by the victim and therefore I am satisfied that the accused has committed the offence of indecent and unlawful assault. For this reasons I rule that the victim’s evidence need not be corroborated.

I have considered the evidence and in view of the discussions, I am satisfied that the accused did indecently and unlawfully assaulted the victim under s.349 of the Criminal Code.

Finally I am satisfied that the State has proven its case to the required standard and find the accused guilty as charged.

Orders accordingly

_____________________________________
Lawyer for the Informant, Police Prosecution.
Lawyer for the Defendant, Koningi Lawyers.