State ats Patrick [2004] PGNC 147; N2611 (13 May 2004)

N2611

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR 353 of 2004

THE STATE

ats.

NERIUS PATRICK

Kavieng; Sevua, J
11th, 12th & 13th May 2004

CRMINIAL LAW – Sexual Assault – Touching of breast – Sexual part –Whether victim invited accused to her house - Whether victim’s invitation to accused was invitation to have sexual intercourse. Verdict – Guilty.

Cases referred to:
The State v Paul Kundi Rape [1976] PNGLR 96
Didei v The State [1990] PNGLR 458

Counsel:
L. Rangan for State
A. Turi for Accused

13th May 2004

SEVUA, J: The accused pleaded not guilty to the indictment charging him with one count of sexual assault contrary to s. 349 (1) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.

The State alleges that on 14th January 2004 at Mission Compound, Kavieng Town, the accused went to the residence of Ketis family where the victim, Patrolina Ketis was, and entered the shower room and touched the victim’s breast without her consent. The State says this amounts the sexual assault.

In denying the charge, the accused said it was true he went to the victim’s house however, he went there because the victim had agreed to. The Court noted that the accused did not actually denied that he touched the victim’s breast. Could this amount to an admission of guilt?

The prosecution’s case is based on the evidence of the victim who gave sworn testimony and her sister, Michelle Haroi who also testified on oath. By consent of the defence, the State tendered into evidence as part of its case, the statements of the Investigating Officer, Corroborator and the Pidgin and English version of the Record of Interview.

The evidence of the victim is that on 22nd January 2004, the accused came to their house at Mission Compound around lunch hour to look for her uncle Joe, however Joe was not there so she told the accused Joe was not there. The accused then asked for water and the victim gave him some water. The accused then asked about the victim’s family and she said they were asleep so he should leave. The victim returned to her room and read a book. Later on, she went to the shower room to have a shower and the accused followed her into the shower room. He closed the door and held the victim’s breast and attempted to kiss her, but she struggled and the accused let her go and walked out. He met the victim’s sister outside the shower room door and they went outside the house and talked. After the incident she did not tell her sister that the accused had held her in the shower and touched her breast.

In cross examination, the victim denied that she invited the accused to the house and she also denied she invited the accused to the shower room. It was put to her that the accused did not touched her breasts, but only hugged her to reassure her that she liked her. She denied this. She also further denied the suggestion that she had asked the accused to her house and into the shower room for purpose of having sexual intercourse. But that the accused respected her and did not want to have sex with her that day.

The evidence of Michelle Haroi is that she knew the accused although not very well. On 22nd January 2004, she met him coming out of the toilet door in their house and was shocked to find him there. This was around 12 o’clock midday. She followed him outside and spoke with him. The accused told her he was afraid of what he had dome to Patrolina although he did not say what exactly that he had done to the victim. He then got onto his bicycle and left. She said the victim was 15 years old. Her sister did not tell her what had happened in the shower room.

At the close of the prosecution’s case, the accused made a no case to answer submission based on the second leg of the test in The State v. Paul Kundi Rape [1976] PNGLR 96. The submission was dismissed in a separate ruling. The accused then elected to give sworn testimony.

The accused said he knew the victim for a long time as she is his girl friend and both were members of the Catholic Youth Ministry. He had met the victim at his place of work on a Sunday afternoon and they had both agreed to meet at her house the next day, a Monday. Between 11 am and 12 o'clock during his lunch break on that Monday, he went to the victim’s house in accordance with their agreement. The victim was waiting for him in the lounge room. When he arrived, he asked her for some water and she gave him water. She then went to check her father and sister in their rooms. After that, she invited the accused to the shower room to have sex. The accused followed her into the shower room but felt uncomfortable about having sex in the shower room so he only hugged her to demonstrate that he liked her and also respected her. So he did not have sexual intercourse with the victim in the shower room even though the victim had asked him to follow her there specifically for that purpose.

As the accused came out from the shower room she met the victim’s sister and they went out outside and talked. He said that he told the victim’s sister that he was scared of what he had done to Patrolina, but did not mention the exact thing he had done to the victim. The accused then left that premises and returned to work.

Having observed the demeanour of the three witnesses, I am not convinced of the veracity of the accused’s evidence. If I accept that the victim was 15 years old, it is quite strange that a 15 year old was making all the arrangements with a 24 year old adult. As far as the accused is concerned it was the accused who did everything to facilitate what he had referred to as an agreement to have sexual intercourse. That is, she invited him to the house, she invited him to the shower room to have sex, and before that she had checked her father and sister in their rooms, presumably to ensure that they did not know what she was up to.

There are too reasons that I do not believe the evidence of the accused. Firstly, he could have said all these things to the police when he was interviewed on 5th February 2004, but refused to and maintained his silence. Whilst the Court acknowledges that he was exercising his constitutional right to remain silent during the interview, there was no harm in saying all these things to Constable Toravie Joseph and First Constable Andrew Koma, if he did not have sex with the victim or touched her breast. Things were quite fresh then and besides, if it was true that he only hugged the victim, there was no harm in telling the police? If he had told the police what he has now told the Court, his answers in the record of interview would have added a lot of weight to his oral testimony and the Court would not doubt the veracity of his sworn testimony.

I consider that the accused’s evidence is a recent invention. Obviously, he has had a long time to think about what he would say in Court and his evidence is therefore a calculated lie. I say this because I had observed during questions that I asked that he suddenly changed his look and his facial expression was such that he was hiding the something. This expression was different during examination in chief and cross examination.

Secondly, I do not believe that this young girl was the instigator of the whole thing. She invited him to her house; she invited him to the shower room, and she invited him to have sex with her in the shower room. And to think that he was the innocent male adult being enticed and led into this situation is not only incredible, but contrary to logic and common sense. Usually it would be the other way around, that is, it would be the adult leading the young victim. But as is usual in sexual offences, offenders come to Courts and lie to the Courts that hey were led by the young victims in committing sexual offences. This is utter nonsense and I find that the accused in this case was not truthful. He held himself out to be the innocent adult being led into all these by a young girl who was most likely under age.

Another reason I do not believe the accused is that it was not logical to have sex in the shower room when they could have gone into the victim’s bedroom. As it were, there is evidence that the shower is in the same room as the toilet so why would the victim risk being discovered by her father or sister with the accsued having sex in the shower room? If it had been a consensual sexual intercourse as said by the accused, it would have been far safer in the sense that they may not be discovered, and of course, there is the privacy of the victim’s room assuming that the victim had asked the accused to see her that day inside her own house specifically to sexual intercourse. I am not convinced by the evidence of the accused and reject his evidence.

In my view, the issues here are firstly, whether the accused was invited by the victim to her house; secondly, whether the accused was invited to the shower room; thirdly, whether the invitation was for the purpose of sexual intercourse, fourthly, whether the accused touched the victim’s sexual parts, ie breasts, and finally, whether the victim consented.

In order to determine these issues, the credibility of the witnesses and their demeanour are relevant. In this case, it is the victim’s word against the accused’s word so the Court is entitled to believe one witness and disbelieve the other. I have already alluded to why I do not believe the accused’s evidence and I do not wish to repeat those reasons here. However, my observation of 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 if she knew the accused well and he is her boyfriend. If it was true that she had invited the accused to her house and into the shower room for purpose of sexual intercourse, why would she turn around and deny these matters and give evidence adverse to the accused who supposed to be his girlfriend? The most logical thing, in my view, was for the victim to ask the acccused to go into her bedroom if they were meeting to have sex. The matters I am raising now go against logic and common sense.

The letter and photograph that were tendered by the accused does not go to the issue of touching sexual parts and consent. It may be true that there is a boy/girl friend relationship, however that does not mean that on the date in question she consented to the accused touching her sexual; parts. So the highest I can find is that they are friends, but that’s all there is to it. There is even a suggestion in the letter (Exhibit "Ä") that the accused is married because on the back of the letter, the victim apologized to the accused for not knowing his wife’s name.

Counsel for the accused submitted that there is no corroboration of the victim’s evidence despite the requirement of s.15 of the amending Act which says that corroboration is not required. Section 15 of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002, established new Divisions IV.2A and 2B and s. 229 H which says that corroboration is not required only relates to the new Division. I do not think it relates to rape and other sexual offences against adult females. I did intimate a different view to Ms Turi yesterday but having actually read s. 229H, I am of the view that the law on corroboration is still the same. The new s.229H only applies to sexual offences against children. Therefore, in the present case, since the accused is charged under s. 349 (2) corroboration is still required as a matter of practice and the Judge still needs to warn himself of the dangers in convicting an accused person without corroborative evidence so long as he has sufficiently warn himself of the danger.

Having said that, it is my view that, the evidence of the victim is corroborated by both the accused and the victim’s sister, Michelle Haroi, who said that the accused told her he was afraid of what he did to Petronila although he did not say what he had done to Petronila. The accused confirmed this in his evidence but did not say what he had done to the victim. In my view, the accused was afraid because he had touched the victim’s breasts in the shower and it makes sense. He was in the victim’s parents' house and inside a private area of the residence and he knew he should not have been there. But he went there and touched the victim’s breasts therefore he was afraid of that, perhaps afraid that Petronila’s parents would find out that he had been into their house and into their shower room and touched their daughter’s breasts in their own shower room. I consider therefore that there is sufficient corroboration. In any event, I warn myself of the danger of convicting a person without any corroboration. See: Didei v. The State [1990] PNGLR 458.

Under s. 349 (2) the definition of "sexual parts" include "breasts" of a person therefore there is no doubt that if the accused had touched the victim’s breasts he would be guilty of sexual assault.

For all these reasons, I am satisfied beyond reasonable doubt that the accused did touch the victim’s breast in the shower room of the victim’s parents’ home. I am also satisfied that the victim did not invite the accused to the shower room to have sexual intercourse. I am not certain though that the victim did not invite the accused to her house. I give the benefit of the doubt to the accused and find that he was in fact invited. However, I find that such invitation did not extend to him going into the shower room, nor did was it an invitation to have sex.

I therefore find the accused guilty of sexual assault.

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