State v Mai [2016] PGNC 392; N6627 (29 November 2016)

N6627

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.No.1090 OF 2015

THE STATE-

V

JOHN MAI

Kokopo:Lenalia, J
2016: 8^th, 11^th, 16^th, 17^th&29^th November

CRIMINAL LAW –Sexual Touching of underage girl – Plea of not guilty – Trial - Criminal Code s.229B (1).

CRIMINAL LAW – Sexual Touching – Elements of – Evidence of accused being around on the scene about the estimated time by victim and accused himself.

CRIMINAL LAW – Warning in sexual cases where there is credible evidence by Victim and other witnesses on corroboration – Didei v The State [1990] PNGLR 458.

Cases cited:

Biwa Geta v The State [1988-89] PNGLR 153
Didei v The State [1990] PNGLR 458
McCallum v Buibui [1975] PNGLR 439
Paulus Pawa-v-The State [1981] PNGLR 498
Peter Townsend v Goerge Oika [1981] PNGLR 12
The State v John Kalabus&Aita Sanang kepe [1977] PNGLR 87

Counsel:

Mr. L. J. Rangan, for State
Ms. J. M. Ainui, for the Accused

29^th November, 2016

1. LENALIA J: The accused is charged with one count of sexual touching an offence against s.229B (1) of the Criminal Code (Sexual Offences and Crimes Against Children Act) 2002.
   
2. The charge on the indictment reads:
   

“John Mai of Laita Village, Maprik, ESP stands charged that he on the 7^th day of May, 2015 at the ToGuata Police Barracks, Toma, Gazelle District in Papua New Guinea, engaged in an act of sexual penetration with Lillian Wanjik by introducing his finger into her vagina while Lillian Wanjik was being a female – child age 9 years and about 1 month old AND that Lillian Wanjik was then in a relationship of trust with John Mai.”

Lillian Wanjik

3. After the accused was arraigned, he entered a plea of not guilty. The victim was the first witness to be called. Lillian Wanjik’s evidence is that on the date in issue, she was playing with her sister Natasha Wanjik in the boys’ room at their parents’ house. Their father Mr. Wanjik is a policeman and they reside at ToGuata Police Barracks, Toma, Gazelle District, East New Britain Province.
   
4. While they were playing she was also removing the boys’ clothes and when the accused whom she referred to as her uncle, came into the room he touched her vagina. She immediately called out in a loud voice because, she felt pain in her private part so she called out loudly. She said that, due to her feeling of great pain she shouted loudly. She revealed that, her sister Natasha is her twin sister and they were both inside the boys’ room when the accused sexually touched Lilian.
   
5. Asked in chief about where the accused lived at the relevant time. She revealed that the accused was living with them in their parents’ house as he had nowhere to stay. She said, when the accused sexually touched her, her twin sister Natasha was with them in the same room and her sister saw what the prisoner was doing to L. W.
   
6. Asked in cross-examination about what game was being played by her and her sister. She said, it was water game. Asked to confirm if the accused was sleeping at the time she was playing with her sister. Lilian answered that, when he came in he wanted to sleep in the boys’ room but because, he saw them playing, he came and sexually touched her vagina. It was put to her if the accused never at all touched her on her vagina. She replied that, the accused sexually assaulted her by inserting his fingers into her vagina.
   

Natasha Wanjik

7. The next witness, Natasha Wanjik. She confirmed that Lilian Wanjik is her twin sister and the two of them were in the boys’ room at their father’s house at To-Guata Police Barracks on the relevant date, when the accused came into the room where they were playing and he sexually assaulted the victim in her vagina. Then that after Lillian was sexually assaulted, she called out alerting neighbors and their auntie she named as Grace came and they met under the victim’s father’s house where they revealed the story of what the accused did to Lillian.
   
8. This witness revealed in cross-examination that the version by the defence that the accused was sleeping is not true as the accused came into the room while the Lillian and her were playing. She was asked to confirm if the accused actually touched Lillian’s vagina. Natasha said, they were all in the same room when the accused touched her vagina.
   

Boas Grace

9. The next witness was Boas Grace. She is the wife of Inspector Boas who is the O.I.C of the Prosecution Division. She recalled that about 12 noon on 7^th May 2015, she was sitting under their house at the barracks talking with neighbors. At the same time her daughter Victoria Boas was with them.
   
10. While they were talking, she overheard her daughter called out and said, what kind of lifting did John Mai was doing to the victim. The witness inquired with Victoria as to what did she mean. Victoria told her and those who were there that, the accused lifted the victim up with his hand between her legs. When she looked up to the house where the victim, her sister and the accused were, they were walking down the steps and they stood under the house of the victim’s father. She estimated the distance from where they were standing to where the victims and the accused were to be 20 meters. By this time Victoria had ran up to the house where the victim shouted from and stood under the house before the victim and her sister came down.
    
11. She confirmed in her evidence that, when the victim shouted, she heard her called out. She said after talking to the victim and her sister, they wanted to report the matter to the police. She then sent a message to the O.I.C of the C.I.D office and soon after that, the police came and arrested the accused. The witness revealed that, since the victim’s mother was not home, she felt responsible to report the incident so she took it upon herself to report the matter.
    

Victoria Boas

12. This witness is the daughter of Grace Boas. Her evidence is that, on the date in issue, she was with her mother and other women under her father’s house telling stories. When she looked to the victim’s father’s house, she saw the accused lifted up Lillian by one of his hands being placed between Lillian’s legs.
    
13. She than called out and said “What type of carrying a child is John Mai doing to Lillian.” That her mother heard her say this, she inquired and this witness told her mother that the accused placed his hand between the victim’s legs and lifted her up. After alerting her mother, she heard Lillian screamed and her mother sent her to check what had happened.
    
14. As soon as she arrived at the victim’s father’s house, she met Isaiah and they sat under that house and heard the accused telling the victim to touch their private parts. When they were talking, Natasha came out from the house and this witness inquired with her what had happened and Natasha said, the accused had sexually touched the victim on her private part.
    
15. The witness was asked in cross-examination as to where exactly she met Isaiah. She said, under the house where the victim called out from. It was put to this witness if she did not hear what the accused said to the two victims to play with their private parts. Victoria said, she heard the accused telling the victim and her twin sister to touch their vaginas. It was further put to her if there was so much noises that she could not hear what the accused is supposed to have said to the victim and her sister. She said, she stood under the house and heard what the accused was saying.
    

Isaiah Banagunan

16. The final witness was Isaiah Banagunan. Evidence of this witness is similar to that of witness Victoria Boas. During the day the incident happened, he was sitting on the steps of his father’s house. He did not give the rank of his father but referred to him as Policeman Joe Banagunan. His father’s house is next to the victim’s father’s house. While he was sitting on the steps, Victoria Boas came to him and told him that there was something wrong in Inspector Wanjik’s house and she invited him to go with her.
    
17. They then walked to where the victim, her sister and the accused were. They stood under the house and while they were standing, he heard the accused spoke to the twin sisters and told them to hold or fiddle with their private parts. Not long after that, he heard the victim screamed and called out. He said, when he heard this call, he did not want to stay there. He left Victoria Boas under the house and returned to his house. He later learnt that the accused had been arrested for sexual touching of Lillian.
    
18. In cross-examination, it was put to this witness that at that time there were a lot of noises so he could not properly hear what the conversation was about in the house where the victim, her sister and the accused were. The witness replied that, while the three (accused, the victim & her sister) were walking around the sitting room there was noise but as soon as they were in the room, Isaiah said, he heard what the accused was saying to the two girls. It was put to him if by the time he and Victoria Boas were under Wanjik’s house, the accused was sleeping. He said, by the time he stood together with Victoria, he heard them walking into the room then hear the accused told the girls to touch their private parts.
    

Defence Evidence

19. The defence case is one of total denial. The accused said in evidence that, although he was in the house with the victim and her sister, he was asleep and he did not hear what happened until he was awoken when police came to arrest him. Asked in chief why, Grace Boas and Victoria Boas would tell the court false stories about him about what he is supposed to have done to Lillian. He replied that he did not know why. Still in chief, it was put to him that Victoria Boas and Isaiah heard him telling the girls to touch their vaginas. The accused denied this. The accused admitted in chief that, he is related to the victim’s father as a brother.
    
20. The accused confirmed in cross-examination that, because, he is related to the father of the victim, he has stayed with them for over two years. He was asked to confirm if it was true he was sleeping in Bernard Wanjiks’ house on 7^th May 2015. He replied in the positive. Asked if he knew or heard the victim and her sister playing in the house. He said, he did not hear them as he was asleep. Asked as to how he was awakened. He said his neighbors woke him up when police came.
    

Counsel’s Submission on Verdict

21. Ms. Ainui, counsel representing the accused made submission on the issue of whether did the accused sexually touch the victim. She discussed the prosecution evidence in brief she asked the court to consider the evidence and submitted that the victim’s evidence differs from that of Grace Boas and Victoria Boas. She asked the court to consider the defence evidence and accept their version as the victim’s evidence was made up against the accused.
    
22. For the prosecution, Mr. Rangan submitted that there is ample evidence upon which the court should return a guilty verdict. Counsel made submission on the birth date of the victim and submitted that, this was a case where the accused breached the trust because, the accused was staying with the victim and her parents. Counsel asked the court to consider all evidence and particularly the evidence of the victim and her twin sister as there was no reasons for them to tell lies.
    

Application of Law

23. There is no issue about whether the accused was present on the scene or not. He admitted in evidence he was sleeping in the boys’ room at the time the incident occurred. The case before me is a sexual case and the court must warn itself about the dangers of convicting the accused because, the principle is that, it may be easy for a girl to make up a sexual allegation against an accused but it is difficult to refute such allegations: Didei v The State [1990] PNGLR 458, Peter Townsend v Goerge Oika [1981] PNGLR 12.
    
24. The evidence is also circumstantial in nature. The accused himself gave evidence of being in the boys’ room while the girls were there. He denied hearing them playing or making noises. On this trial, what inferences should the court draw from the prosecution version of the evidence: The State v Tom Morris [1981] PNGLR 493and Paulus PawavThe State [1981] PNGLR 498.
    
25. The court records the warnings in the above cases and says that this was not the case where the evidence of the victim, her twin sister and other evidence corroborated the victim’s evidence that, she was sexually touched. That the person who touched her was the accused: McCallum v Buibui [1975] PNGLR 439 or Didei v The State [1990] PNGLR 458.
    
26. The evidence is also circumstantial in nature. The accused himself gave evidence of being in the room where the girls were playing. I must warn myself of what inferences the court should draw a case where there are a number of competing inferences. On the instant trial, the accused said in evidence, he was in the room sleeping and he did not hear them playing. In practice, that is a question of fact for the trial judge to decide which and what inferences should be drawn, which should be rejected, which are reasonable, which are mere conjunctures and which party should the court believes: The State v Tom Morris [1981] PNGLR 493and Paulus Pawa v The State [1981] PNGLR 498.
    
27. For the court to be satisfied beyond any reasonable doubt of the guilt of the accused person, it is necessary not only that an accused’s guilt should be a rational inference but that it should be “the only rational inference that the circumstances would enable them to draw.”
    
28. I have considered counsels submission on verdict. I consider the evidence by the victim. On the issue of identification, I consider the evidence by Victoria Boas seeing the accused lifting the victim by placing his hand between the victim’s legs and lifted her up corroborates the victim’s evidence.
    
29. This evidence is corroborated by the evidence of Victoria’s mother and of course the evidence of Isaiah standing with Victoria under the house where the victim was being assaulted and they heard the accused told the two girls to touch their private parts. I hold that the evidence of the prosecution witnesses corroborate each other and having warned myself about the dangers of the need for corroboration in sexual cases as stated in Didei v The State(supra) and The State v John Kalabus & Aita Sanangkepe [1977] PNGLR 87.
    
30. This Court is sure beyond reasonable that the accused committed the offence of sexual touching of the victim. The only rational inference the court must draw is the guilt of the accused. He is therefore found guilty and convicted on the crime of sexual touching with breach of trust under s.229B (5)of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.
    

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