N3617
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No 1074 OF 2007

THE STATE

V

IVAN TONY

Waigani: Paliau, AJ
2009: 14th, 15th, 16th & 22nd, April

CRIMINAL LAW – Sexual Touching – Verdict – Charge of – Not Guilty Plea – Criminal Code s. 229B(1)(b) & (4).

Cases cited:

No cases cited

Counsel:

Ms. L. Wawun & Mr. T Ai, for the State 
Mrs. Wohuinangu, for the Accused

DECISION ON VERDICT

22 April, 2009

1.	PALIAU, AJ: The accused pleaded not guilty upon arraignment to one count of Sexual Touching. The charge is laid under Section 229B (1)(b) & (4) of the Criminal Code. 

2.	These are the brief facts pertaining to the charge. On the 19th March 2007 between 12 midday and 3 pm, the accused and Nikita Hekwa were in Tau Peruka's house at Tubuserea village, Central Province. They were in a room. Whilst in the room the accused told Nikita then aged 5 years old, to touch his penis. Nikita then fondled the accused penis. In the process of doing so, Hetahu Hekwa walked into the room and saw what was happening. Hetahu Hekwa accosted the accused and pulled Nikita out of the room. Hetahu told his daughter Hekoi Hekwa to find out from Nikita about the incident and Nikita told Hekoi that the accused told her to play with his penis. The matter was reported to the Police, the accused was arrested and charged. 

3.	Three (3) witnesses were called by the State in support of its case. They were Nikita Hekwa, Hetahu Hekwa and Hekoi Hekwa. The State also relied on tendered documents by consent. They were the Record of interview (ROI) of the accused, both Pidgin and English versions. Statements of Xavier Kakame and Michael Kausalala both dated 25th April 2007. The accused in support of its case gave sworn evidence. 

4.	Section 229B(1)(b) of the Criminal Code provides for the offence of Sexual Touching. It states that: 

"a person who, for sexual purposes, compels a child under the age of 16 years to touch, with any part of his or her body, the sexual parts of the accused person's own body, is guilty of a crime."

5.	There is no dispute as to the age of the child in the present case. Nikita is under the age of 16 years. The only issue is whether the accused compelled Nikita to touch, play or fondled his penis. 

6.	The State's evidence is that the accused told Nikita to fondle his penis. Nikita in her evidence admitted that she was playing with her coloured pencils when her grandfather Hetahu Hekwa came into the room. This was admitted in cross-examination. She also stated that she was forced by her grandfather and her aunt Hekoi Hekwa to tell lies about what actually took place in the room. She had to agree with them otherwise she will be beaten up. 

7.	In her examination-in-chief she said she did not know why she is in Court and after a while she cried. She was confused. She said the accused was lying on his back facing the ceiling and she was lying beside him and playing with his penis. She said he asked her to lie down. He also asked her to play with his penis. Her aunt Hekoi which she referred to as her mother smacked her before she finally admitted that the accused ask her to fondle his penis. Her grandfather also smacked her. 

8.	Hetahu Hekwa, the complainant's grandfather told the Court during cross-examination that when he opened the door to the room he saw Nikita sitting between Ivan's legs, not lying down beside Ivan. She was sitting down between Ivan's legs and playing with his penis. He said he did not smack her in his examination-in-chief. He only pulled her out of the room. 

9.	The witness Hekoi Hekwa was the State's last witness. This witness did not see what happened in the room. She only learnt of it from the complainant after she forced her to admit. She is not an eye witness. 

10.	The accused testified that he was asleep and did not know that the complainant came into the room. He was awoken when Hetahu Hekwa opened the door to the room and shouted at the complainant. At all material times his penis was inside his trousers. If the complainant was playing with his penis, he would have noticed it and woken up. If she was lying beside him or sitting between his legs he would have also noticed it and woken up. He denied everything that the State's witnesses have said.

11.	Having analysed all the evidence, I find that there are a lot of inconsistencies in the State's witness's evidence. These are whether the complainant was playing with her coloured pencils or playing with the accused's penis, whether she was lying beside the accused or sitting between the accused's legs, whether the complainant was forced to admit that she was playing with the accused penis and whether she was smacked by her grandfather. These inconsistencies have created doubts in mind as to whether I should believe the State's evidence as put forward by the complainant and Hetahu Hekwa the grandfather. I am of the view that the complainant is being forced to come to this Court to say something which did not happen. 

12.	The evidence of Hekoi Hekwa is hearsay and I consider it inadmissible. She was told of what happened by Nikita, the complainant. This explains why she sometimes took a while to answer simple questions put to her in cross-examination. If she saw what happened, she would have answered questions quickly and precisely.

13.	I consider the State's witnesses not credible witnesses. I do not believe their version of the story.

14.	I find no reason to disbelieve the accused. He is a witness of truth. He has no reason to tell lies in Court.

15.	In any event, I find that the accused did not compel the complainant to touch his penis. There is no evidence that the accused forced the complainant to touch his penis. The word "Compel" is defined as 'to force somebody to do something'. This is found in Oxford Advanced Learner's Dictionary, International Student's Edition, 7th Edition, page 294. However, there is evidence that the complainant was asked by the accused to play with his penis. She was not forced. Hetahu Hekwa did not see the accused forcing the complainant to touch his penis. I am of the opinion that for a person to compel another person to touch the sexual part of another person, that person must actually hold the hand and force the hand to do the touching. This did not happen in this case.

16.	The State's evidence is unreliable and it is unsafe to convict on. The accused is accorded the benefit of a doubt. The State has not proven beyond reasonable doubt that the accused committed the offence of sexual touching as contained in the indictment.

17.	I find the accused not guilty as charged. The accused is acquitted and discharged accordingly. His bail money is to be refunded to him upon presentation of receipt. 

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