N3849

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1286 OF 2004

THE STATE

V

IMA ESIKO

Kimbe: Cannings J
2009: 12, 13, 16, 17, 18, 19, 23 March

VERDICT

CRIMINAL LAW – trial – sexual assault – Criminal Code, Section 349 –whether the accused touched the sexual parts of the complainant – whether the complainant consented

The accused, a young man, was charged with the sexual assault of a young woman who he claimed was his girlfriend. The State's case was that the accused met the complainant on a road and pulled her into the bush where he asked her for sex and when she refused pulled down her trousers, tore her underwear and touched her sexual parts, without consent. It was alleged that he used force and that this was a circumstance of aggravation. The accused's defence was that, though he asked her for sex, when she declined, he accepted her decision and did not touch her at all.

Held:

(1)	Under Section 349(1)(a), the crime of sexual assault consists of three elements:

•	the accused touched the complainant;
•	the area of the body that was touched included the complainant's sexual parts (eg the genital area, groin, buttocks, breasts);
•	that was done without the complainant's consent.

(2)	The complainant appeared to be a credible witness. However, there were parts of her evidence that were vague and inconsistent with other evidence for the State.

(3)	The accused gave the distinct impression of giving the evidence that he thought needed to be given to get himself out of trouble, rather than giving truthful answers to all questions. The evidence of other defence witnesses did not significantly detract the State's case.

(4)	Weighing the defence evidence against the evidence for the State results in the conclusion that after a considerable period of undecidedness the complainant did, eventually, resist and say no to the accused's sexual advances.

(5)	The State proved the three elements of the offence but not the circumstance of aggravation charged in the indictment. The accused was found guilty of sexual assault under Section 349(1)(a) of the Criminal Code, committed without circumstances of aggravation.

Case cited

The following cases are cited in the judgment:

The State v James Yali (2005) N2988
The State v Polikap Lakai (2007) N3153

Dates

The events referred to in this judgment occurred in 2004 unless otherwise indicated.

Abbreviations

The following abbreviations appear in this judgement:

Const – Constable
CR – Criminal case reference
J – Justice
K – Kina
N – National Court judgment
No – number
v – versus

TRIAL

This was the trial of an accused charged with sexual assault.

Counsel

A Kupmain, for the State
R Beli, for the accused

23rd March, 2009 

1. CANNINGS J: Ima Esiko is a Tolai man, aged in his 20s, who lives at the Kapore oil palm settlement near Kimbe. On the evening of Wednesday 1 September 2004 he was involved in an incident with one of his neighbours, a Chimbu woman, Merian Siune, then aged 18 and doing grade 11 at Kimbe Secondary School, which has led to him being charged with sexual assault.

2. It is alleged that Ima (the accused) met Merian (the complainant) on a road in the vicinity of where they were living and that he pulled her into an oil palm block belonging to a Chimbu man, Mathias Ire, where he asked her for sex. When she refused it is alleged that he pulled down her trousers, tore her underwear and touched her sexual parts, without consent.

3. The accused agrees that he asked for sex but says that the complainant was his girlfriend and when she declined, he accepted her decision and did not touch her.

THE OFFENCE

4. Sexual assault is an offence under Section 349 of the Criminal Code, which states:

(1) 	A person who, without a person's consent—

(a)	touches, with any part of his body, the sexual parts of that other person; or
(b)	compels another person to touch, with any part of his body, the sexual parts of the accused person's own body,

is guilty of a crime of sexual assault.

Penalty: Subject to Subsection (4), imprisonment for a term not exceeding five years.

(2)	For the purposes of this section, "sexual parts" include the genital area, groin, buttocks or breasts of a person.

(3)	For the purposes of this section, a person touches another person if he touches the other person with any part of his body or with any object manipulated by the person.

(4)	Where an offence under Subsection (1) is committed in circumstances of aggravation, the accused is liable to a tern of imprisonment not exceeding 10 years.

5. The accused has been indicted under Section 349(1)(a), which means that to obtain a conviction the State must prove the three elements of the offence beyond reasonable doubt:

1	the accused touched the complainant;

2	the area of the body that was touched included the complainant's sexual parts (eg the genital area, groin, buttocks, breasts);

3	that was done without the complainant's consent.

6. The indictment charges that the accused "used force" on the complainant, and that this is a circumstance of aggravation (see Section 349(4) and the inclusive definition of "circumstances of aggravation" in Section 349A). If, in addition to the three elements outlined above, the State proves that the accused used force, he will be guilty of aggravated sexual assault and subject to a maximum sentence of ten years imprisonment. If the State proves the three elements of the offence but does not prove that force was used he will be subject to a maximum sentence of five years imprisonment.

UNDISPUTED FACTS

7. It is agreed that the accused and the complainant met on the road at about 6.00 pm on Wednesday and that they had a conversation. They both went to a part of Mathias Ire's block called 'the third hectare'. It is also agreed that the accused, at some stage, asked the complainant for sex and that she said no. They emerged from the block at about 9.00 pm. In the meantime the complainant's family were concerned about her whereabouts and had been looking for her.

ISSUES

8. What is not agreed on are:

•	Was the complainant the accused's girlfriend?
•	How long were they on the road for?
•	Where did the accused first ask her for sex?
•	Did he physically pull her into the block?
•	Did he touch her?
•	Did he touch her sexual parts?
•	Did he pull down her trousers and tear her underpants?
•	Did she resist?

9. Those contentious questions of fact will be addressed by examining the following issues:

1	What is the nature and quality of the evidence of the State witnesses?

2	What is the nature and quality of the evidence of the defence witnesses?

3	What is the result of weighing the defence evidence against the State evidence?

4	Has the State proven the elements of the offence beyond reasonable doubt?

1	WHAT IS THE NATURE AND QUALITY OF THE EVIDENCE OF THE STATE WITNESSES?

10. Four witnesses gave oral evidence: the complainant; her father, Bomai Siune; the police investigating officer, Const Sailas Raiu; and her uncle, John Kanua Siune. There was no medical evidence. The only exhibit was a police prosecution checklist. The State tendered a confessional statement and a record of interview but following a voir dire as to the circumstances in which the accused signed those documents I refused to admit them into evidence.

11. The complainant, Merian Siune, said that she had been to the creek to wash and on her way back to the house she saw the accused on the road. This was at about 6.00 pm. He approached her, talked to her, and then pulled her by her left hand into a nearby oil palm block. They talked on the road for almost an hour. He took her to the third hectare of Mathias Ire's block.

12. Once they were in a secluded location he told her that he had to go to Mt Hagen and that before he went, he wanted her to have sex with him. She refused but he used force to try to have sex. He pulled down her trousers and tore her underwear. He touched her from her shoulders to her hips. She still said no. He insisted. She kept telling him no and struggled against him. He eventually let her go. Then she walked back to her house.

13. Her parents had been looking for her. By the time she got back home it was about 9.00 pm. They were angry with her.

14. The complainant denied that the accused was her boyfriend. She also denied that she had made a plan to meet him in Kimbe earlier in the day. She said it took about 15 minutes for the accused to pull her into the block. She told him to let go so that she would walk by herself. But he did not let go. Only when they were inside the block did her let go of her hand. She denied making up the story to appease her parents.

15. She denied visiting the accused at Kapore police station on the Friday after the incident and delivering him cigarettes, betel nut and peanuts. She also denied visiting him on the following Sunday at Kimbe police station and bringing him a lunch pack. She denied being forced to give evidence against him or that her family had demanded compensation of K4,000.00 and two pigs.

 16. Bomai Siune said that he saw his daughter and the accused on the road near his block at around 6.00 pm on Wednesday. The accused held on to her hand and took her into the block. The complainant was not struggling. He did not try to call her but sent his wife and two other daughters to look for her. He had not seen the complainant and the accused together before. They searched his block and Mathias Ire's block but could not find her. Eventually the complainant arrived home at about 9.00 pm. He asked where she had been. She said that the accused took her into Mathias Ire's block and kept her there, that he asked her for sex and she refused and that he pulled down her trousers and tore her underwear.

17. Bomai denied being very angry. He just wanted her to return to the house as she was a schoolgirl at the time. She showed him the pants that the accused had torn. The family reported the matter to the police the next day. He denied demanding compensation of K4,000.00 and two pigs.

18. Much of the evidence of Const Sailas Raiu was about the circumstances in which the accused came to Kapore police station on Thursday morning and was detained and statements obtained from him. This was dealt with in the voir dire ruling. It is not directly relevant to the substantive issues in dispute except to the extent that Const Raiu said that he was given a pair of women's underpants that were torn and said to be the complainant's. They were supposed to be an exhibit in this case. He kept them at Kapore police station but when he returned from leave they were missing and he does not know what happened to them.

19. John Kanua Siune also gave evidence that was generally only directly relevant to the voir dire. He denied assaulting the accused, forcing him to the police station or demanding compensation.

Defence counsel's submissions

20. The defence counsel, Mr Beli, argued that the evidence of the State witnesses was unreliable and deficient in a number of respects.

(a)	The complainant was not a good witness

21. Mr Beli suggested that the complainant was not a confident witness and that she gave the impression that she had been forced into the witness box. She was a relucant witness and her demeanour was poor.

22. I cannot agree with those propositions. The complainant was not an obviously dishonest witness. Nor did it appear that she was relucant to give evidence. She appeared to be a credible witness.

(b)	Inconsistencies between the evidence of the complainant and her father

23. I consider that there are three inconsistencies. First, the complainant said she and the accused talked on the road for almost an hour. This is not consistent with her father's evidence that upon seeing them, he sent the family to look for them but they could not find them.

24. Secondly, the complainant said that the accused had to pull her all the way into the block whereas her father said that he did not see her struggling with the accused.

25. Thirdly, the complainant said that her parents were angry when she returned to the house at 9.00 pm whereas her father said that they were not very angry.

26. I consider that these inconsistencies are of moderate significance.

(c)	The complainant's evidence of where she was touched was vague

26. Mr Beli highlighted that she only said that the accused touched her from the shoulder to the hips. She gave no direct evidence of her sexual parts – genital area, groin, buttocks or breasts – being touched.

27. I agree that her evidence was rather vague. However, if the evidence of her trousers being pulled down and her underwear being torn is accepted, a reasonable inference would be that her sexual parts were touched.

(d)	The allegedly torn underpants not in evidence

28. This certainly makes it more difficult for the State to secure a conviction. However, I do not consider the absence of the underpants to be critical. Const Raiu testified that he did take possession of the torn underwear. Also, the prosecution checklist document (admitted into evidence as exhibit A) is evidence that he was in possession of a red underpants which was torn.

(e)	The time the complainant spent with the accused

29. Mr Beli asked the court to take into account the time the complainant spent with the accused: three hours.

30. I agree that that seems a long time for a woman to be with a man who was making sexual advances and who she was repelling.

(f)	Compensation was the motive

31. Mr Beli tried to establish that the complainant had a motive to lie: her family wanted compensation for what the accused did to her.

32. This cannot be ruled out. 

Assessment of the evidence of State witnesses

33. Overall, the complainant appeared to be a credible witness. However, there were parts of her evidence that were vague and that were inconsistent with other evidence for the State.

2	WHAT IS THE NATURE AND QUALITY OF THE EVIDENCE OF THE DEFENCE WITNESSES?

34. Four witnesses gave oral evidence: the accused; a neighbour, Tina Nilmo; another neighbour, John Ire; and the accused's friend and housemate, Esiko Ima.

35. The accused, Ima Esiko, said that the complainant was his girlfriend and that he had planned to meet with her earlier in the day at Kisere, in Kimbe. For some reason that plan did not work out but he met her on the road when he went back to Kapore at around 6.00 pm. They stood on the road for about 15 minutes telling stories. He asked her for sex and she did not say no straightaway.

36. He asked her to come with him into the block and she agreed. He asked her again to have sex with him but this time she said no. They stayed in the block for two or three hours, then it started raining so they came out. They went to John Ire's house. The complainant stayed there only a short time, then she went to her house. The accused stayed a bit longer, then he went to his house.

37. He denies touching the complainant or taking off her trousers or tearing her underwear or doing anything bad to her. All the time that they were in the block, they just talked and he told her of what he was going to be doing in Mt Hagen.

38. On the Friday after the incident, while he was locked up in the Kapore police cell, the complainant brought him cigarettes, betel nut and peanuts. On Saturday he was taken to the Kimbe police lock-up and while he was there on Sunday she brought him a lunch pack.

39. Tina Nilmo is an Engan woman, a neighbour to both the complainant and the accused. Her evidence was about what happened on the day after the incident, particularly at Kapore police station. She said news got around about the incident on Wednesday evening so a lot of local people converged on the police station. Her view was that it was not a serious incident and that it could be sorted out by mediation. She and others tried to negotiate something with the complainant's lain but they were demanding too much compensation – Bomai wanted K4,000.00 and two pigs.

40. John Ire is a Chimbu man. His house is 50 metres from the accused's house. He is a friend of the accused. His evidence was largely hearsay and of little relevance.

41. Esiko Ima is from the Aroma area of Central Province. He is not related to the accused but is his namesake (their names being the reverse of each other's) as their fathers are good friends. Esiko came to live in Kapore in 2004, a few months before the incident. He lives in the same house as the accused. They are close friends. He was with the accused at Kapore police station on Friday when the complainant brought the accused cigarettes, betel nut and peanuts. On Sunday he was with the accused at the Kimbe cell when the complainant brought him a lunch pack. Esiko said that she told him to tell the accused that the story is not true and that her relatives had forced her to make it up. She looked as if she was feeling sorry for the accused.

42. Mr Kupmain asked Esiko if he had made up these stories to help the accused and he replied yes.

Prosecutor's submissions

43. Mr Kupmain asserted that the case for the defence was confusing and unsatisfactory in a number of respects.

(a)	The defence case was contradictory 

44. Mr Kupmain suggested that the defence case was contradictory. On the one hand, the accused was saying that he did not touch the complainant. On the other hand, the defence counsel was asserting that the touching was consensual.

45. Mr Kupmain has raised an interesting point. The accused was emphatic that he did not touch the complainant. That was his evidence. However, I do not think that prevents the defence counsel from submitting that, if that evidence is rejected, the touching was with consent. Thus I do not agree that the defence case was contradictory.

(b)	The accused's version of events is not believable

46. I agree that the accused's evidence that he did not touch the complainant at all during the three hours they spent together is straining credibility. He was a young man who was about to leave the province. He had expressed his desire to have sex with the complainant. He says that she was his girlfriend. She denies that but it is believable that the accused wanted her to be his girlfriend. All of these factors point naturally, almost inevitably, to the conclusion that he would have touched her.

47. This part of the accused's evidence prevents him being regarded as a truthful witness.

(c)	The evidence of a key defence witness was fabricated

48. Mr Kupmain stressed that Esiko Ima admitted that he had fabricated evidence to help out the accused.

49. The transcript will reveal that that is, in fact, what Esiko admitted in cross-examination. And the defence counsel did not successfully neutralise that admission in re-examination. However, Esiko's admission was so far out of kilter with his other evidence that I consider he was obviously confused by the question. I will not therefore place any weight on his admission.

(d)	Defence evidence generally did not detract from the State's case

50. Mr Kupmain suggested that the evidence generally of the defence witnesses was not worthy of belief and did not detract from the State's case.

51. I agree that the accused was not an impressive witness but I do not put the other defence witnesses in the same category. Esiko Ima was a credible witness and his evidence shows that the complainant was feeling sorry for the accused. Tina Nilmo was also, I thought, a credible witness. Her evidence lends support to the proposition that what happened between the accused and the complainant was not a really serious incident.

Assessment of the evidence of defence witnesses

52. The accused gave the distinct impression of giving the evidence that he thought needed to be given to get himself out of trouble, rather than giving truthful answers to all questions. The evidence of Esiko Ima and Tina Nilmo does not significantly detract from the State's case but may be relevant to the seriousness of the incident.

3	WHAT IS THE RESULT OF WEIGHING THE DEFENCE EVIDENCE AGAINST THE STATE EVIDENCE?

53. Having assessed the two bodies of evidence, I make the following findings of fact:

•	The accused and the complainant were not in a boyfriend/girlfriend relationship. The accused's evidence on this issue was unimpressive and lacked corroboration.

•	They were on the road for a considerable time, from 6.00 to 7.00 pm, talking, before going into John Ire's block.

•	It was on the road that the accused first asked the complainant for sex. He was obviously in the mood for sex and would have raised the issue when he first started talking to the complainant.

•	He did not physically pull the complainant into the block. I find that she went of her own free will. Her father, Bomai, observed them talking on the road and did not see any signs of a physical struggle. There is no other evidence to support the complainant's story that she was forced into the block.

•	Once inside the block and in a secluded location, the accused touched the complainant. It is not reasonable to believe that he did not touch her.

•	He touched her sexual parts. I accept Mr Beli's submission that the complainant's evidence was vague as to where precisely he touched her. She said 'from the shoulders to the hips', which, interpreted literally, would exclude the genital area and the groin. However, I uphold Mr Kupmain's argument that the accused was intent on sexually arousing the complainant so a reasonable inference to draw is that he would have at least touched her with his hands on her breasts.

•	After a considerable period of undecidedness, the complainant did, eventually, resist and say no to the accused's sexual advances.

•	He pulled down her trousers and tore her underpants. I accept the complainant's evidence on this issue. The fact that these garments were not in evidence was not critical.

4	HAS THE STATE PROVEN THE ELEMENTS OF THE OFFENCE BEYOND REASONABLE DOUBT?

54. This case is like many other sexual offence cases in that the only eyewitnesses to what happened are the accused and the complainant. The court has to decide who to believe. In saying that, there are two important things to remember.

55. First, as I pointed out in The State v James Yali (2005) N2988, in a sexual offence case it is not just a matter of deciding who to believe. An accused cannot be convicted only on the basis of suspicion or belief on the part of the tribunal of fact (the court) that there was no consent. The court's task is, rather, to determine, having weighed all the evidence and considered that there are reasonable grounds for believing the complainant's evidence, whether it is satisfied to the required criminal standard of proof – beyond reasonable doubt – as to the existence of all elements of the offence. If there is a reasonable doubt about lack of consent or any other element, the court is obliged to acquit the accused (The State v Polikap Lakai (2007) N3153).

56. Secondly, the principles about the dangers of entering convictions on the uncorroborated testimony of the complainant have changed due to the 2002 amendments to the Criminal Code. Section 352A of the Criminal Code (corroboration not required) states:

On a charge of an offence against any provision of this Division, [Division V.7, (sexual offences and abduction) which includes Section 349] a person may be found guilty on the uncorroborated testimony of one witness, and a Judge shall not instruct himself that it is unsafe to find the accused guilty in the absence of corroboration. [Emphasis added.]

57. I am therefore not required and not allowed to instruct myself that it is unsafe to find the accused guilty in the absence of corroboration.

58. I now consider, in light of those principles, whether the State has proven the three elements of the offence of sexual assault.

59. First, that the accused touched the complainant. I consider that this has been proven beyond reasonable doubt.

60. Secondly, that he touched her sexual parts. I consider that this has also been proven beyond reasonable doubt.

61. Thirdly, that he touched her sexual parts without consent. This is a more contentious issue. Did she consent? Under Section 347A(1) of the Criminal Code, consent means free and voluntary agreement. Under Section 347A(2)(j), circumstances in which a person does not consent to an act include, where:

the person, having consented to engage in the sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

62. I find that the complainant, after a considerable period of undecidedness, expressed by her conduct that she did not wish to have sex with the accused: there was a lack of agreement to continue to engage in the activity. She struggled against him. However, he pulled down her trousers and tore her underwear. In the course of doing that, he touched her sexual parts, in that he touched her genital area and groin. At that point, she did not consent to her sexual parts being touched. I conclude that the third element of the offence has been proven beyond reasonable doubt.

63. As to the circumstance of aggravation charged in the indictment – that the accused 'used force' – it is arguable that pulling down the complainant's trousers and tearing her underpants involved use of force. However, 'using force' is not one of the circumstances of aggravation prescribed by Section 349A of the Criminal Code. I consider that for use of force to amount to a circumstance of aggravation, there must be a strong element of physical violence involved. That was not the case here. Therefore circumstances of aggravation are not proven.

 VERDICT

64. Ima Esiko is found guilty of the crime of sexual assault under Section 349(1)(a) of the Criminal Code, committed without circumstances of aggravation.

Verdict accordingly.
____________________________________________________________

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