State v Morris [2009] PGNC 68; N3658 (20 May 2009)

N3658

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No 70 OF 2008

THE STATE

V

SIME MORRIS

Waigani: Paliau, AJ

2009: 12th, 13th 14th & 20th May

CRIMINAL LAW – Practice & Procedure – No case submission – When such submission is made – Whether weighing of evidence required – No evidence adduced by State – Submission accepted – Accused has no case to answer.

Cases cited:

The State v. Paul Kundi Rape [1976] PNGLR 96
The State v. Roka Pep, [1983] PNGLR 289

Counsel:

Mr. Giruakonda & Mr. T. Ai, for the State
Ms. Wurr & Mr. Mesa, for the Accused

20 May, 2009

1. PALIAU, AJ: The accused is indicted for the offence of Sexual Touching contrary to s.229B (1) (a), (4) and (5) of the Criminal Code. The accused has pleaded not guilty.
   

The Facts

2. Briefly the facts are as follows. It is alleged by the State that on a date unknown between the 16th & 18th October 2007, at Keasu Settlement, Gerehu National Capital District, the accused touched the victim’s vagina with his penis. The accused rubbed his penis on the victim’s vagina. The victim Kore Tom was a child under the age of 12 years.
   
3. The State further alleges that at the time of the commission of the offence, the accused had a relationship of trust, authority and dependency with the victim. The accused knows the victim very well.
   

The Evidence

4. In support of its case, the State called four (4) witnesses, including the victim. It also tendered by consent the Record of Interview, both pidgin and English versions; a Statement by Detective Constable Xavier Kakame, dated 22nd November 2007; a Statement by Detective Constable Anton Haniken, dated 10th December 2007 and the Medical Report by Dr. Rhonda Piari, dated 25th October 2007. The Defence tendered as prior inconsistent statement, the statement by Maria Kaupa, dated 7th November 2007.
   
5. I have looked at the State’s evidence and I consider that there is no need for me to analyse in detail the evidence. This is basically because the oral evidence given by Tom Kaupa, the father of the victim; Maria Kaupa, the mother of the victim and Annalisa Tom, the victim’s sister are all hearsay evidence.
   
6. Tom Kaupa merely testified as to what he was told by his wife and what the victim had told her about what the accused had done to her. This was when Annalisa had cried and reported to her mother, Maria Kaupa about what the accused had done to her. The accused had asked her to lie on the bed but she refused. At that instant the victim from no where told her mother and Annalisa that the accused also did that to her by rubbing his penis on her vagina until he ejaculated.
   
7. The witnesses only related what the victim had told them. The victim although was called, was not able to say anything. In fact it was difficult for Counsel for the State to get her to talk. The Court even allowed Counsel to conduct their cases in Pidgin. This did not receive results either. In the end, I ruled that the victim did not understand why she is in Court and therefore not competent to give evidence. The victim is under 16 years old. In fact she is 5 years old.
   
8. In the Record of Interview (ROI), the accused denied committing the offence. The State however was of the view that there was admission and referred to question and answer 34 of the ROI. It states: -
   

"Q34. Do you have anything to say in relation to your charge?

Ans. If my actions are wrong I just want to say sorry to the court and that next time I won’t do the same trouble again."

In my view the accused was not referring to the trouble that he allegedly did to the victim, that is rubbing his penis on her vagina. He was referring to what he did when he was wiping Annalisa with a towel when she was wet and naked after washing.

9. The victim was examined by Dr. Rhonda Piari on the 22nd October 2007. Due to the nature of the offence there was nothing of evidentiary value arose to assist the State’s case.
   
10. After the State closed its case, the Defence made a no case submission.
    

The Issue

11. The issue is one of whether the accused has a case to answer.
    

The Relevant Law

12. The offence of sexual touching is provided for under s.229B of the Criminal Code. It states:
    

"229B. Sexual Touching

(1) A person who for, sexual purposes -

(a) touches, with any part of his or her body, the sexual parts of a child under the age of 16 years; or

..........

is guilty of a crime.

...........

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

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

13. The elements of the offence are -
    
    1. a person for sexual purposes;
       
    2. touches;
       
    100. with any part of his or her body;
         
    4. the sexual parts of a child; and
       
    5. under the age of 16 years.
       
14. The Defence in its no case to answer submission submitted that there is really no evidence whatsoever adduced by the State, so the case should not proceed any further. The victim did not give evidence. The other State’s evidence are all hearsay, except for the Medical Report which is of no evidentiary value.
    
15. A no case submission should only be entertained by the Court if it is very clear that the evidence by the State is so dubious, or so tainted, or so obviously lacking in weight or reliability that a reasonable tribunal could safely convict on it. That the evidence is so insufficient that the accused should not be called upon to answer it. These principles are pronounced in the case The State v. Paul Kundi Rape [1976] PNGLR 96.
    
16. The State v. Paul Kundi Rape case (supra) is also for the proposition that the Court at this stage of the proceedings is not required to weigh the evidence. This is only required after the evidence by both the State and Defence are completed or after the State has closed its case and the Defence does not wish to adduce evidence.
    
17. The State v. Roka Pep [1983] PNGRL 289, was decided on the principle that if after the close of its case the State has failed to adduce evidence in support of one element of the charge there is no case for the accused to answer; and there is a discretion in a trial Judge to stop a case even though there is some evidence adduced by the State in support of each element of the offence charged, and this discretion may be exercised in a case where there is a mere scintilla of evidence but the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it.
    
18. And so, I am of the opinion that in the present case, the State has not adduced evidence. This is because the victim did not give evidence. The evidence given by the other State’s witnesses are all hearsay evidence. Even the accused did not admit committing the offence in his Record of Interview.
    
19. Even if the State has adduced evidence in support of the elements of the offence, which I say it has not, the evidence are so lacking in weight and reliability that I cannot safely convict on.
    
20. I accept the no case to answer submission. The accused has no case to answer. The accused is acquitted and discharged forthwith. His bail monies are to be refunded to him upon presentation of receipt.
    

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