State v Malpa [2009] PGNC 112; N3733 (25 May 2009)

N3733

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.584 OF 2007

THE STATE

V

ELLY MALPA

Kokopo: Lenalia, J.
2009: 20th, 22nd & 25th May

CRIMINAL LAW – Sexual Touching – Plea of not guilty – Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 s.229B (1) (4) (5).

CRIMINAL LAW – Sexual penetration – Plea of not guilty – Trial – Criminal Code (Sexual Offences and Crimes Against Children) Act s.229A (1) – Evidence of young children be treated with caution – Victim at time of offence was about 9 years – Accused 23 years.

CRIMINAL LAW – Sexual touching – Plea of guilty – Adjourned until trial on first and second counts are completed.

CRIMINAL LAW – Evidence – Credibility of – Evidence adduced by young witness credible and corroborate by accused evidence on first count.

Cases cited.

Paulus Pawa v The State [1981] PNGLR 498
The State v Tom Morris [1981] PNGLR 493
The State v Garitau Bonu & Rossana Bonu [1996] PNGLR 48
Garitau Bonu & Rossana Bonu v The State (1997) SC528

Counsel:

L. Rangan, for the State
D. Kari, for the Accused

22nd May, 2009

1. LENALIA, J: The accused is charged with two counts of sexual touching and one of sexual penetration. He pleaded not guilty to the first and second counts. He entered a plea of guilty to the last count of sexual touching. The charge on which he pleaded guilty was adjourned until the trial of the first and second count was completed.

2. The ruling on this judgment only relates to counts 1 and 2 in relation to the charges of sexual touching and sexual penetration. These offences were committed contrary to s.229B (1) (a) and (4) & (5) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.

Evidence

3. On this trial a number of statements were tendered and accepted as evidence for the prosecution. The statements made by the interviewing officer and her corroborator were tendered into evidence by consent. The record of interview in the original version in Pidgin and the English translation were tendered. The medical report and the victim’s mother’s statutory declaration were also tendered into evidence. (See Exhibits ‘A’, ‘B’, ‘C’, ‘D’, ‘E’ & ‘F).

4. Three witnesses were called to give oral evidence. They include the victim herself, her mother and the victim’s auntie. In case of the victim, she testified that, the accused had been staying with them in their house because her father and the accused’s father are blood brothers. She said on the night of 8th January 2007, she was asleep in her room and the accused had been out somewhere. He came to the house and woke her up to open the door.

5. After opening the door, she went back to bed. A short while after she laid down, the accused came to her room and sexually touched her breast and tried to remove her pants. In chief and cross-examination, she said, the accused also touched her vagina.

6. When she wanted to call out to report the matter to her mother, the accused threatened her that if she called out, he was going to either kill or beat her up.

7. On the charge of sexual penetration, the victim recalls that, on the night of 10th January 2007 two nights after the first offence, the whole family was asleep including herself. The accused came late to their house and he woke her up to open the door. She obeyed and opened for him. When she went back to her room, the accused followed her and threatened her that if she called out to report, he would kill her. He thereafter sexually penetrated her and left to his room.

8. In cross-examination, the witness was asked why she did not report to her mother when the accused was doing what he did to her. She said, because the accused had issued various threats against her she feared that if she informed her mother, the accused could beat her up.

9. It was put to her that at least the accused was not around with her during the times he was out during day times why could she not report to either her mother or even her father. The witness said, when she was threatened she bore in mind that the accused might do something to hurt her. That is why she never reported.

10. The second witness Jessie Wartovo is the mother of the victim. Her evidence is on the night of 12th January 2007, she had gone out to church for a fellowship night and when she returned later in the evening, she went into her room and studied her Bible.

11. While she was still reading, she heard the accused came into the house. Not long after that, she heard someone knocking on her door. When she opened her door, she saw the victim and beside her was the accused standing with his hands stuck on Rhonda’s breasts. She was worried about this and woke her husband and told him about what she had just seen. She asked the victim what the accused had done to her and the victim revealed to her what the accused had done to her since 8th January 2007.

12. They both looked around for the accused but he was gone. They then went to the house of a policeman nearby where they reported the matter. That policeman is the brother of the victim’s father. The matter was later reported to the police station.

13. This witness was asked in cross-examination if she was still awake by the time the victim called out to her and knocked on her door. She answered ‘yes’. She was asked if that was the first time the victim had called out to her that week. She replied ‘yes’. She was asked if on the nights before that night she ever heard any screams, she answered ‘no’.

14. She was also asked what she saw when she came out from her room. She said that, the sight troubled her when she saw the accused holding on to Rhonda’s breasts with his hands.

15. The last witness Roddie Darius corroborated the evidence of Jessie Wartovo that one day, Rhonda and her parents came to their house and reported the complaint about the accused sexually abusing the victim. She said when they were talking, the victim revealed to them two other incidents earlier where the accused sexually touched her and sexually penetrated her once.

Defence evidence

16. The accused gave evidence and denied sexually penetrating the victim. On the first count, the accused admitted in cross-examination that, he touched the victim’s breasts but did it mistakenly. In cross-examination the witness revealed that he touched Rhonda’s breast by mistake. The reason he gave for this is that, when he came home on the night of 8th January 2007, he went to the window on the victim’s room and removed a louver blade and pushed his hand in and accidentally touched the victim’s breasts in the course of waking her up.

17. On the incident about the third charge, he admitted in cross-examination that he touched the victim’s breast when Jessie came and saw them. He however denied sexually penetrating the victim on 10th January 2007. The defence case does not deny the fact that on each of the night specified on the indictment the accused was with the family of the victim. He admitted in cross-examination that what the State alleged in count three is true. That is the charged which he pleaded guilty to.

18. In cross-examination the witness was asked, if he did touch Rhonda’s breast on 8th of January that year, he found it easy to sexually penetrate the victim. In reply the accused said another man had sex with her.

Defence submission on verdict

19. Mr. Kari of counsel for the accused made a short submission on the status of the prosecution evidence. Counsel submitted that the issue is whether or not the accused committed the offences charged in counts 1 and 2. Counsel sounded a warning that, the victim was doing Grade 4 in 2007 and the court should treat her evidence with caution.

20. He asked the court to consider the medical evidence which suggests that the victim had been sexually penetrated well before the report was brought to the doctor’s attention. He asked the court to consider the fact that, the allegation is supposed to have taken place on 8th and 10th of January that year. Apart from this, the court found from the doctor’s report that it was made on 28th day of that month.

21. He said there is no evidence of recent complaint, she made no complain about suffering any pains if there was sexual penetration. Counsel submitted that there was no blood noticed by the doctor at the time and date she was examined by Dr. Raymond Saulep. Counsel submitted that though threats were made to the victim she never said anything to her mother or anyone in the family. Due to the forgoing the defence counsel submitted that, the court should not accept the prosecution evidence as credible.

Prosecution submission on verdict

22. Mr. Rangan of counsel for the State submitted that the prosecution had proven their case beyond reasonable doubt. Counsel submitted that, the accused had admitted in evidence that on the first count, he somehow accidentally touched Rhonda’s breasts and the court should infer that the allegations about sexual penetration was and is not just allegations but the court should accept the prosecution evidence that, the accused had actually penetrated Rhonda on the 10th January 2007.

23. On the evidence of the young victim, counsel said, she gave credible evidence and because the relationship between the victim and accused is very close, there is no reasons why the victim could lie against her brother.

LAW

24. The accused is charged with two counts of sexual touching and one of sexual penetration. The standard of proved in any criminal case is ‘proof beyond reasonable doubt’. The issue on this trial is whose evidence should the court accept as credible? On this trial, the court heard evidence from the victim, her mother and an auntie.

25. The evidence of the mother only corroborates the victim’s evidence on the last charge which the accused pleaded guilty to. It is settled law in this jurisdiction that the court can either accept or reject evidence by the prosecution or the defence on the basis of whether such evidence is credible or not: Paulus Pawa v The State [1981] PNGLR.498, see also Garitau Bonu & Rossana Bonu v The State (1997) SC.528 and The State v Garitau Bonu & Rossana Bonu [1996] PNGLR.48.

26. On this trial, I warn myself about the evidence of the victim who was very young at the time the offences were committed. She was in fact 13 years by the time the offences were committed. She was born on 26.10.94 at Kerevat Health Centre.

27. There is no rule of law saying the court cannot accept the evidence of a minor. I observed the demeanour of Rhonda Bungtabu and concluded that she was a credible witness. I find no reasons why she could have lied against her own brother. She gave truthful evidence and I must accept her evidence.

28. She gave straight forward answers to questions both in chief and cross-examination. I do not think of any reasons why the court cannot accept the evidence of the victim. The evidence by the accused that, he removed a louver blade and touched the victim’s breast accidentally leads me to the inference and conclusion that, he did not stand outside nor did he removed a louver blade to wake the victim up. By inference, I hold and infer that it would have been rather unusual for the accused to do that.

29. I must infer in terms of Paulus Pawa v The State [1981] PNGLR.498 and The State v Tom Morris [1981] PNGLR 493 that when the accused woke Rhonda on 8th January 2007, he went inside after the victim opened for him and thereafter followed her into her room and sexually touched her breasts and private part.

30. I must also infer that on 10th of that same month in the same week, the accused sexually penetrated the victim and therefore I find him guilty and convict him on the 1st and 2nd counts.

________________________________________

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