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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO 471 OF 2009
THE STATE
V
STAFFORD HAMBO
Madang: Cannings J
2010: 19, 20, 21, 22 April,
26 May
VERDICT
CRIMINAL LAW – trial – sexual touching of child – Criminal Code, Section 229B – elements of the offence – meaning of touching for "sexual purposes"
EVIDENCE – whether a conviction can be entered for a child sex offence if the child complainant does not give evidence – similar fact evidence – corroboration.
The accused was charged with six counts of sexually touching a child under the age of 16 years contrary to Section 229B(1)(a) of the Criminal Code. Two offences were allegedly committed against each of three girls, aged 8, 8 and 12 years respectively. He pleaded guilty to two counts of sexually touching the 12-year-old girl and not guilty to sexually touching the two 8-year-old girls. A provisional guilty plea was recorded on the two counts relating to the 12-year-old girl and a trial was conducted on the four remaining counts on the indictment. Only one of the 8-year-old girls gave evidence. As to the two counts relating to the girl who did not give evidence, the State relied on admissions in a record of interview and similar fact evidence.
Held:
(1) Under Section 229B(1)(a) of the Criminal Code the offence of sexual touching of a child has four elements:
- the accused touches with any part of his or her body;
- the "sexual parts" (defined by s 229B(2) to include the genital area, buttocks or breasts) of another person;
- the other person is a child under the age of 16 years;
- for sexual purposes.
(2) Circumstances of aggravation are where the child was under the age of 12 years (s 229B(4)) or where there was an existing relationship of trust, authority or dependency between the accused and the child (s 229B(5)), in which case, if charged on the indictment and proven, the maximum penalty is increased from 7 years to 12 years.
(3) As to the charges relating to the 8-year-old girl who gave evidence, her evidence was convincing while that of the accused (who gave sworn evidence) was not. All elements of the offence for the two counts were proven as were two circumstances of aggravation: that the child was under 12 and that there was an existing relationship of trust, authority or dependency as the accused held himself out and was regarded by the girl as a pastor. The accused was convicted of those two charges.
(4) As to the charges relating to the 8-year-old girl who did not give evidence, the accused was found guilty of one of the charges (on the basis of admissions in the record of interview and similar fact evidence) and not guilty of the other charge (due to insufficient corroboration).
(5) The accused was accordingly found guilty of three counts of sexual touching, in circumstances of aggravation, and not guilty of one count.
Cases cited
The following cases are cited in the judgment:
Billy Nara v The State SCRA No 27 of 2005, 28.11.07
Java Johnson Beraro v The State [1988-89] PNGLR 562
R v Namiropa Koinbondi [1969-1970] PNGLR 174
Rolf Schubert v The State [1979] PNGLR 66
The State v Bill Vevo [2007] PGNC 1
The State v Eddie Sam (2006) N2627
The State v John Baimo Kaole, Peter Papui & Lucas Papui (2009) N4013
The State v Malepo (No 2) [1996] PNGLR 252
The State v Paul Ipor Daniel [1988-89] PNGLR 580
The State v Robin Erick & Emil Basilio (2006) N3023
The State v Sime Morris (2009) N3658
The State v Ungum Ovohe (1980) N245
TRIAL
This was the trial of an accused on four counts of sexual touching of a child under the age of 16 years.
Counsel
N Goodenough, for the State
J Kolkia, for the accused
26 May, 2010
1. CANNINGS J: The accused, Stafford Hambo, is a 62-year-old Oro man. He is charged with six counts of sexual touching of a child under the age of 16 years contrary to Section 229B(1)(a) of the Criminal Code. The offences are alleged to have been committed over a two-day period, 23 and 24 January 2008, at Ranara in the Ramu area of Madang Province.
2. There are three complainants, girls aged 8, 8 and 12 years respectively. Their names are "M", "K" and "R". The State alleges that the accused committed two offences against each of them:
ELEMENTS
3. Under Section 229B(1)(a) of the Criminal Code the offence of sexual touching of a child has four elements:
(The State v Sime Morris (2009) N3658.)
4. The State alleges that each offence was committed in circumstances of aggravation in that, in relation to counts 1 to 4, the child was under the age of 12 years (a circumstance of aggravation under Section 229B(4) of the Criminal Code) and, in relation to all counts, there was an existing relationship of trust, authority or dependency between the accused and the child (a circumstance of aggravation under Section 229B(5) of the Criminal Code) as the accused held himself out and was regarded by the girls as a pastor.
5. The accused does not contest any of the circumstances of aggravation. The ages of the girls are not disputed. Nor is the fact that the accused held himself out as a pastor and was regarded by the girls and the local community as a pastor. This gives rise to a relationship of trust, authority or dependency under Section 6A(2)(e) of the Criminal Code: the accused was a religious instructor to the child. The significance of the circumstances of aggravation is that if the accused is convicted of any offence the maximum penalty in each case is increased from 7 years to 12 years.
ISSUES
6. The accused pleaded guilty to counts 5 and 6 and a provisional plea of guilty has been recorded on those counts. These counts will be revisited after verdicts are entered on counts 1 to 4, to which the accused pleaded not guilty. Determination of whether the accused is guilty of any of counts 1 to 4 requires:
EVIDENCE FOR THE STATE
7. Four witnesses gave oral evidence: M’s mother, M, R and the police investigator. K did not give evidence. The other evidence was a pocketsize Holy Bible (exhibit A), a small plastic bottle of Mayflower Hair Oil, also called coconut oil (exhibit B) and the accused’s record of interview (exhibits C1-C2), which was admitted into evidence after a voir dire (a hearing within the trial, conducted to determine whether the record of interview should be admitted into evidence).
Oral evidence
8. M’s mother, "D", is a schoolteacher. The three complainants, M, K and R, were living with her and her mother in a house at Ranara. Her husband was away working at the time. M is her daughter, K is her niece and R is her small sister. The accused Stafford was living in the local community. He told people that he was a pastor and that he could heal people who had sicknesses and give them knowledge. She came to know him quite well and like many other people believed in him.
9. At 8.00 am on 23 January she went to the school and returned at 10.00 am. The accused told her that he had seen M and that she is very gifted and has great knowledge. The next day she did not go to school early as it was the first week of the school year and she was not eager to go. Stafford came around to the house and insisted that she should go to school, so she went for a short while and returned to the house. She saw Stafford go to a small room, a kitchen, at the back of the house and thought that it looked suspicious. He then gave her K2.00 for bus fare so she could go to Ramu, which she did, returning at 4.30 pm. She then heard the story about what Stafford had done to the three girls, M, K and R.
10. In cross-examination D denied that the accused was invited to her house to conduct a fellowship with the family. He was self-invited, she said. She also denied that he prayed with her and her mother and the three girls on 23 January. She agreed that the accused was bashed up by some local boys on 24 January but said that they were not her family members who did that. When she came home from Ramu the girls were crying and when they told her what he had done she went looking for him. The story spread quickly and the boys asked her what happened. She told them and they were angry so they assaulted him, causing him to bleed.
11. The second State witness was the complainant M. She is now ten years old. In view of her age, it was necessary to conduct an inquiry to determine her capacity to comprehend the nature of truth. I considered Section 6 of the Oaths, Affirmations and Statutory Declarations Act Chapter 317. I also considered guidelines for reception of evidence by child witnesses given by the Supreme Court in Rolf Schubert v The State [1979] PNGLR 66 and Java Johnson Beraro v The State [1988-89] PNGLR 562. Upon answering questions from me, she understood that the lawyers would ask her questions about what happened. She understood that if she did not tell the truth God would not be happy with her and that she could be punished. I was satisfied that she understood the meaning and importance of truth. Defence counsel, Mr Kolkia, raised no objection to her competence as a witness or the admissibility of her evidence. I concluded that she was a competent witness.
12. Upon the application of the prosecutor, Mr Goodenough, and the consent of Mr Kolkia, I made special measures, orders under Section 37B(2)(a) and (b) of the Evidence Act for the giving of her evidence: a screen was used to prevent her seeing the accused and a support person, her mother, D, was seated with her when she gave evidence.
13. In examination-in-chief M said that on the morning of 23 January she and K were in the house. No one else was there. Stafford came to the house. He told them that he was a pastor and that he had some oil and if he put it on them they will be filled with knowledge. They agreed to what he proposed. She, M, was the first one. He took her into the kitchen. He asked if she was wearing her pants. She said yes. He told her to remove her pants so she went out and removed her pants and came back. He told her to spread her legs. He got the oil that he had (exhibit B) and put it on his hand and then rubbed his hand on her vagina. He told her to lie down and open her legs, which she did, and then he put his penis on her vagina and told her to wipe the oil. She did not look at his penis but she felt it. It was slippery and when she wiped herself she wiped off the oil and also some yellow substance but she does not know what the yellow substance was. He then opened the Bible that he had with him (exhibit A) and prayed to God to forgive his sin. He told her that if she told anyone about the oil it would turn around and kill her. He sent her to go outside and see if there was anyone else around. No one was there so he got K and did the same thing to her. She kept watch while K was with him.
14. The next morning, 24 January, she was at the house with K and R. Stafford came and got R and took her into the kitchen. She and K went outside and played.
15. In cross-examination M said that after Stafford did those bad things to her she told her mother who reported the matter to the police. She, M, denied that the accused conducted a fellowship at their house on 23 January.
16. As to the complainant R there was an objection by the defence counsel to her giving evidence on the grounds that her evidence was irrelevant (as it could only relate to counts 5 and 6) and prejudicial (as the accused pleaded guilty to counts 5 and 6). I overruled the objection and permitted her to give evidence as it could be relevant as similar fact evidence and in the circumstances it was not be unfair to the accused to do so.
17. In examination-in-chief R said that on the morning of 24 January she went to the market and then came back to the house. Stafford was there and he asked if he could put oil (exhibit B) on her, so that she could be filled with knowledge. She said yes and then he held her breasts with his hands and forced her to remove her trousers. He touched her vagina with his hand and asked her if it felt nice. He kissed her three times. Then her mother and sister, D, came. She wanted to tell her mother what had happened but he had told her that if she told anyone the oil would kill her.
18. There was no cross-examination of R.
19. The police investigator, Snr Const Francis Ikuma, gave evidence on the voir dire, which was necessitated by an objection to the admission into evidence of the record of interview on the ground that the accused made admissions involuntarily due to intimidation. Snr Const Ikuma denied threatening the accused and said that he made his admissions voluntarily.
Record of interview
20. The interview was conducted on 20 February 2008. The accused said that he is from Gona, Oro Province, and is 60 years old. He was married but his wife died. They had a son, a policeman, but he was killed at Bialla. The accused said he is a pastor with the Anglican Revival Church Inter-denomination Intercessor Prayer Group. He resides at Ranara with a Lutheran Church pastor. He made a number of admissions.
21. Re M, that: he went to her house on the morning of 23 January and told her and K that he could anoint them with oil to give them great knowledge and wisdom; he took M into the kitchen, asked if she were wearing underwear, told her to kneel, touched her body, rubbed oil on his hands, rubbed her vagina with oil, rubbed his penis against her vagina and released his sperm; he told her to go outside to clean up; he opened his Bible, placed his hand over her face and prayed and asked God for forgiveness; and then he told her to go outside.
22. Re K, that: on the morning of 23 January he called her into the kitchen and told her to remove her trousers, which she did, and then he held her buttocks and told her to pull up her trousers; on the morning of 24 January he went back to the girls’ house to visit them and told K to go into the kitchen so that he could anoint her and pray with her so that she would receive great knowledge, instructed her to remove her trousers and bend down, which she did; he rubbed his penis against her vagina; and he told her if she told anyone she would die from the oil he put on her.
23. Re J, that: on the morning of 24 January, when she came to the house, he told her that he could anoint her with oil and pray with her, she agreed and he took her into the kitchen, forced her to remove her singlet, held her breasts, told her to remove her panties and sit down and open her legs, which she did; he rubbed oil on his hands and touched her vagina, told her it was sweet, told her to stand up, which she did; and then he kissed her three times.
EVIDENCE FOR THE DEFENCE
24. The accused gave sworn evidence for the purposes of the voir dire and then gave sworn evidence in his defence. This was the only evidence for the defence.
The accused’s sworn evidence for purposes of the voir dire
25. In examination-in-chief he said that he was told on 24 January that D was forcing her three girls to say that he had touched all of them. He was trying to go to the police station to sort out the problem but was assaulted by a group of people. Snr Const Ikuma then locked him up in the police cell and while he was in there asked him about what happened on 23 and 24 January. At first he denied doing anything to M and K but as it was his first time to be arrested he got scared. Snr Const Ikuma told him not to deny anything so he admitted to doing things to M and K as well as admitting what he did to R.
26. In cross-examination he said that he had been a pastor for seven years. He made admissions and signed the record of interview as he was scared.
The accused’s sworn evidence in his defence
27. In examination-in-chief he said that on 23 January D invited him to her house as she had been having problems with her husband. He went there and stayed from 10.00 am to 12 noon. There were five of them there: D and her mother and the three children. They told stories for a while and then he preached to them. Then D went to the school and he went back to his house. He did not sexually touch any of the girls on that day.
28. On the morning of 24 January he went back to their house. D and her mother and the three girls were again there. After a while D went to the school (he denied telling her to go as he had no right to tell her that) and the mother went to the market. M and K went to cook some banana, leaving him together with R on the veranda. They were talking and then he went inside. She followed him in and held his hand and placed it on top of her breasts. This aroused him and he touched her body. He then told her to go outside as it was already wrong. He went outside and then D and her mother arrived. He ate some cooked banana and left. [The accused then repeated the evidence about being assaulted and arrested that he had given during the voir dire.] He did not sexually touch either M or K that day, he only touched R, he said.
29. In cross-examination he was shown exhibit B. He acknowledged that the bottle of coconut oil was his. He puts it on his hair. He does not use it to anoint people. He was also shown exhibit A and acknowledged that it was his Bible. He used it for fellowships and prayer meetings. His Church is based at Bulolo. The admissions in his record of interview about what he did with R were truthful except the part about using oil. He did not use the oil when he sexually touched R. He denied that he had at any time sexually touched M or K.
PRELIMINARY ASSESSMENT OF THE STATE’S CASE
30. The State has relied on the direct evidence of the complainant M to sustain counts 1 and 2. Her evidence is corroborated by M’s mother’s evidence and by the admissions in the record of interview. As for counts 3 and 4, the State argues that they can be sustained by the admissions in the record of interview and by the similar fact evidence provided by the evidence of both M and R.
DEFENCE COUNSEL’S SUBMISSIONS
31. Mr Kolkia submitted that the accused should be acquitted of counts 1 to 4 as there was considerable doubt that any of the three alleged incidents at the centre of these charges actually happened. In particular he submitted that:
ASSESSMENT OF DEFENCE COUNSEL’S SUBMISSIONS
1 Evidence of D and M unreliable
32. Mr Kolkia submitted that there were two inconsistencies in the evidence of D and her daughter, M:
(a) D said that there was a baby living with them in the house, whereas M said no when she was asked whether they had a baby living with them; and
(b) D said that she heard about the allegations from various unnamed people, whereas M said that she reported the matter to her mother, D, who then reported it to the police.
33. It was submitted that this made their evidence unreliable and raised considerable doubt over whether the alleged incident of 23 January actually occurred. I reject this submission for three reasons.
34. First, there were no inconsistencies of the type alleged. I think they have resulted from an incorrect recording of the evidence by the defence counsel.
35. Secondly if I am wrong about that, neither alleged inconsistency is significant. Inconsistencies in the evidence of two witnesses do not necessarily mean that their evidence is unreliable or false. Inconsistencies in immaterial, irrelevant or trivial aspects of the evidence should be regarded as insignificant and therefore inconsequential. I place both alleged inconsistencies in that category.
36. Thirdly, what is a far more important factor in determining whether the alleged incident of 23 January actually occurred is to make an assessment of the credibility of the story told by the person who gave direct evidence of such an incident: the complainant, M. When she gave her evidence she was 10 years old. She appeared to be a bright and intelligent child with a good recollection of what happened on that day. She knows the difference between right and wrong and she gave the clear impression of knowing that the accused did some wrong things to her. She gave a detailed account of what happened and gave her evidence in a way that suggested that she was telling the truth. I also consider that her mother, D, was an impressive witness. Her evidence corroborated that of her daughter.
2 No evidence by the complainant and the record of interview as hearsay
37. Mr Kolkia submitted that the State’s case on counts 3 and 4 should fail as the complainant, K, did not give evidence and the State could not rely on the accused’s admissions in his record of interview as they were hearsay. Relying on cases such as The State v Eddie Sam (2006) N2627 and The State v Robin Erick & Emil Basilio (2006) N3023 he suggested that the statements recorded in a record of interview cannot be accepted as establishing the truth of what was said as the record of interview only establishes that such statements were made. Also, the accused’s evidence in court – which was contrary to his admissions – should be given more weight as it was sworn testimony, whereas his admissions were unsworn statements.
38. As to the complainant not giving evidence, this aspect of the case makes it unusual but it does not necessarily mean that the accused must be found not guilty. There is no rule of law that says that the complainant in a sex offence trial must give evidence and that if she or he does not give evidence, the accused must be found not guilty. A conviction can still be entered provided that the State presents other evidence that establishes the elements of the offence beyond reasonable doubt.
39. I reject the assertion that admissions in a record of interview cannot be relied on to establish guilt. Such documents are not properly categorised as being hearsay. I do not consider that Lenalia J, who decided both of the cases referred to by Mr Kolkia – Sam and Erick – was saying what Mr Kolkia contends for. Once a record of interview is admitted into evidence it becomes evidence in the trial, the value of which is to be assessed when weighed alongside and against other pieces of evidence that are admitted. In the present case, the question of admissibility was determined after a voir dire. The record of interview was admitted and its probative value cannot be dismissed by categorising it as hearsay.
40. Special care must be taken if the court considers entering a conviction based on an uncorroborated confession. The possibility that it was a false or unreliable confession must be excluded by the court. However it is clear that an accused’s confession (even one made orally in an informal environment) can be used as the basis for a conviction, even if it is uncorroborated (R v Namiropa Koinbondi [1969-1970] PNGLR 174; The State v Ungum Ovohe (1980) N245; The State v Malepo (No 2) [1996] PNGLR 252; Billy Nara v The State SCRA No 27 of 2005, 28.11.07). When an accused makes admissions to the police in a formal interview this is tantamount to a confession and the normal rules about entering a conviction based on a confession should be followed.
41. I reject the submission that an accused’s sworn testimony necessarily must be given more weight than an unsworn admission or confession. The weight to be attached to an accused’s sworn testimony will depend on the normal factors that decide whether any witness’s evidence is believed, such as the witness’s demeanour and the credibility of the evidence in light of other evidence before the court (The State v John Baimo Kaole, Peter Papui & Lucas Papui (2009) N4013).
3 All counts: no evidence of touching for sexual purposes
42. The argument here is that even if it is accepted that the accused touched the complainants’ sexual parts there is no evidence that he did so for sexual purposes, which is one of the elements of an offence under Section 229B(1). Mr Kolkia is justified in highlighting this as an essential element on each count. If it is not proven beyond reasonable doubt that the accused touched the complainant for sexual purposes, he must be found not guilty of that count.
43. There is no definition of the term "sexual purposes" in the Criminal Code. Given its context in Division IV.2A (sexual offences against children) I consider that it means ‘sexual gratification’. It does not, for example, include touching a child’s sexual parts for medical or hygienic or other innocent or proper purposes. In practical terms if an adult touches a child’s sexual parts and the evidence shows that this was not done for any innocent or proper purposes the reasonable inference to draw is that it was done for sexual gratification, ie for sexual purposes. This is the appropriate test to apply to the four counts now to be determined.
FINAL DETERMINATION OF GUILT
44. I now assess the state of the evidence against the accused on each of the four counts.
Count 1: touching M’s vagina with his hand on 23 January
45. The complainant gave direct and reliable evidence that the accused touched her vagina with his hands. I accept that evidence and M’s account of the circumstances of this incident. I reject the accused’s evidence that he did nothing to M and that he was at her house on that day only for the purpose of conducting a fellowship. The accused was not an impressive witness. There was no innocent explanation for the accused touching an eight-year-old girl in this way. The reason he gave to M for wanting to touch her and put oil on her body – that it would give her great knowledge – cannot be regarded as a genuine, proper or innocent purpose. The reasonable inference to draw is that he touched her for sexual gratification. The evidence of the complainant is corroborated by the admissions in the accused’s record of interview and by the evidence of the complainant’s mother (as to the prompt complaint and the suspicious behaviour of the accused).
46. All elements of the offence have been proven beyond reasonable doubt. The accused is guilty of count 1.
Count 2: touching M’s vagina with his penis on 23 January
47. The complainant gave direct and reliable evidence that the accused touched her vagina with his penis. I accept that evidence and M’s account of the circumstances of this incident. I reject the accused’s evidence that he did nothing to M and that he was at her house on that day only for the purpose of conducting a fellowship. The accused was not an impressive witness. There was no innocent explanation for the accused touching an eight-year-old girl in this way. The reasonable inference to draw is that he touched her for sexual gratification. The evidence of the complainant is corroborated by the admissions in the accused’s record of interview and by the evidence of the complainant’s mother (as to the prompt complaint and the suspicious behaviour of the accused).
48. All elements of the offence have been proven beyond reasonable doubt. The accused is guilty of count 2.
Count 3: touching K’s buttocks with his hand on 23 January
49. The accused’s admission to this allegation is contained in the record of interview that has been admitted into evidence. I have carefully considered the evidence about the circumstances in which this admission was made. These issues were raised in the voir dire. I conclude that the circumstances were satisfactory and the admission can be regarded as reliable.
50. The admission is corroborated by M’s evidence about how she and K were alone with the accused and how he offered to fill them with great knowledge by the application of oil and how M and K accepted his proposal and how M went first and when the accused finished with her, K went into the room. M did not see the accused touch K’s buttocks but M’s evidence corroborates the admissions as it put the accused in the place and at the time he is alleged to have committed the offence. M’s evidence is also relevant as it is similar fact evidence, showing that the accused had a propensity to do the acts constituting the elements of the offence in count 3 (The State v Paul Ipor Daniel [1988-89] PNGLR 580, The State v Bill Vevo [2007] PGNC 1).
51. In a similar vein, R’s evidence of what the accused did to her the next day is also similar fact evidence. I reject the accused’s evidence that he did nothing to K and that he was at her house on that day only for the purpose of conducting a fellowship. The accused was not an impressive witness. There was no innocent explanation for the accused touching an eight-year-old girl in this way. The reasonable inference to draw is that he touched her for sexual gratification.
52. All elements of the offence have been proven beyond reasonable doubt. The accused is guilty of count 3.
Count 4: touching K’s vagina with his penis on 24 January
53. The accused’s admission to this allegation is contained in the record of interview that has been admitted into evidence. I have considered the evidence about the circumstances in which this admission was made and conclude that the circumstances were satisfactory. The similar fact evidence by M and R shows that the accused had a propensity to engage in the sort of act alleged by count 4. However, the admission is not directly corroborated by either M’s or R’s evidence.
54. M said that the accused came to the house on 24 January while she was there with K, and that she and K were playing outside while the accused was inside the kitchen with R. M did not say that K was alone with the accused.
55. R gave evidence about what the accused did to her on 24 January but did not say that the accused was alone with K.
56. The failure of M and R to give evidence that the accused was alone with K creates doubt as whether the accused was in a position where he was able to do something to K. I find that count 4 has not been proven beyond reasonable doubt.
VERDICT
57. Stafford Hambo is:
(1) guilty of counts 1, 2 and 3 on the indictment presented on 19 April 2010, of sexual touching of a child under the age of 16 years contrary to Section 229B(1)(a) of the Criminal Code in circumstances of aggravation under Sections 229B(4) and (5) of the Criminal Code on each count, namely that the child was under the age of 12 years and that there was at the time of the offence an existing relationship of trust, authority or dependency between the accused and the child; and
(2) not guilty of count No 4 on that indictment.
Verdict accordingly.
____________________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the Accused
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