State v Horis [2008] PGNC 324; N4178 (21 October 2008)

N4178

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 922 OF 2007

STATE

V

HILLARY HORIS

Lorengau: Manuhu, J.
2008: 15, 16 & 21 October

JUDGMENT ON VERDICT

CRIMINAL LAW – Sexual touching – Not guilty plea – Identification of known person – Corroboration by unchallenged evidence – Victim was clothed and asleep in bedroom when touched on buttocks – Sexual touching includes indirect touching – Accused convicted.

No case cited.

D. Kuvi with P. Kaluwin, for the State.
J. Ainui with S. Maliaki, for the Accused.

21st October 2008

1. MANUHU, J.: Hillary Horis was indicted for sexually touching PM (identity withheld) on the night of 5th May 2006 while she was sleeping in her room in her parents' house. Hillary says he didn't do it. But if he did it, he says further that because they were both clothed, what is alleged is not sexual touching. I will decide on those two issues.

Did Hillary assault PM?

2. PM says that Hillary and his two male in-laws were watching a rugby match on TV at his parents' house on the night already mentioned. Cousin Asa, sister Lynn and Mary were also there. She went to bed at half time. Sometime later, while she slept face down, she felt somebody on top of her. He was moving his groin area against her buttocks. She turned around and saw Hillary. She called Hillary's name aloud. She described the clothes Hillary was wearing then. Hillary appeared to smile at her and went out of the room. She looked out the window and saw Hillary walking away.

3. Asa gave evidence in support of his cousin. He confirmed that after watching TV, Hillary and his in-laws proceeded downstairs to a kitchen built on the ground. Tea was prepared and when it was being served Hillary was missing. Asa looked for Hillary in the neighbourhood and everywhere but Hillary was not found. Even the toilet was searched without success. Hillary's in-laws left after drinking their tea. Asa got ready to go to bed under the house, a few meters to the back door stairs, the only stairs to the house. As he was about to sleep, Asa heard PM called Hillary's name. Asa proceeded up the stairs to investigate and met Hillary coming out of the house when his in-laws were already gone.

4. At the end of PM's evidence, I was of the view that her evidence was sufficient. Hillary was not a stranger to her. There were some lighting. She saw Hillary and called his name. She was a strong witness which is a credit to her at just 15 years of age. However, given the high standard of proof, her evidence required corroboration for the conviction to be safe.

5. Such corroboration evidence came from Asa's sworn testimony. After PM called Hillary's name aloud, Hillary was the person seen by Asa coming out of the house. This was when his in-laws had long gone. There were no other male persons in the house. Asa's evidence clearly shows that Hillary's identification by PM is credible and believable. Asa was not cross examined and his evidence remains intact.

6. The record of interview was tendered into evidence. In it, Hillary confirmed PM's evidence as to what had happened. Hillary signed the interview.

7. By the close of the State's case, Hillary had PM, Asa and his own admission in the interview to overcome. Hillary had to come up with evidence that is good enough to discredit PM and Asa, and their evidence. Hillary must also explain why his answers in the interview should not be taken against him.

8. I find Hillary to be evasive, unimpressive and unconvincing. An accused person is supposed to tell his lawyer the version of facts he relies upon. The lawyer uses that story in cross examination of State witnesses. In Hillary's case, his lawyer did a marvelous job of putting his case to the State witnesses in cross examination. But when he gave evidence, he came up with new facts which were not raised in cross examination. For instance, Ms Ainui did not challenge PM and Asa on whether tea or rice was served. It wasn't counsel's fault. My impression is that Hillary decided to alter those facts only after he realized that Mary who did the cooking that night was not going to give evidence. Similarly, evidence on consumption of alcohol and what Pomanus did only surfaced when prompted in cross-examination. There were numerous other examples of evasive answers given by the accused.

9. More importantly, Hillary's evidence on fabrication of the record of interview is a lie. I don't accept his evidence that questions 13 to 23 were fabricated. Detective Sergeant Lynnette Watah has no reason to fabricate an interview against him and, on the same breath, I am not willing to accept Hillary's suggestion relating to the delay of over a month in the signing of the interview. I find as a matter of fact that the interview was conducted properly and due to shortage of ink it had to be signed later. And Hillary signed it without undue pressure.

10. In the circumstances, especially his own admissions, I am satisfied beyond reasonable doubt that Hillary assaulted PM when he went on top of her and moved his groin area against her buttocks.

Does the assault tantamount to sexual touching?

11. The relevant undisputed fact is that Hillary and the victim were both clothed at the time of the assault.

12. Under section 229B of the Criminal Code, a person who, for sexual purposes touches, with any part of his or her body, the sexual parts of a child under the age of 16 years is guilty of a crime. Sexual parts include the genital area, groin, buttocks or breasts of a person. A person touches another person if he touches the other person with his body or with an object manipulated by the person.

13. It is submitted that there is no sexual touching if PM was clothed with her pair of jean trousers. I am of the opposite view. Touching, if unwanted, is an assault. Under section 243 of the Code, a person who directly or indirectly touches or moves, or otherwise applies force to, the person of another, without his consent, is said to assault that other person, and the act is called an assault even if the other person is fully clothed. In my view, therefore, touching for the purpose of section 229B covers direct and indirect touching. For the purpose of section 229B, touching, moving or application of force upon a sexual part even if covered by clothing is sexual touching. To hold otherwise would leave a serious vacuum that would deny our children the protection they deserve against sexual predators.

14. I am satisfied ultimately that the State has proven all the elements of the charge beyond reasonable doubt and I find Hillary guilty as charged.

Verdict: Guilty as charged.
_______________________

Jack Pambel – Acting Public Prosecutor: Lawyer for the State
Frazer Pitpit – Acting Public Solicitor: Lawyer for the Accused