State v Vakaian [2018] PGNC 279; N7395 (3 August 2018)

N7395

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 465 of 2016

THE STATE

V

ISIDOR VAKAIAN

Kokopo: Higgins, J
2018: 5^th – 6^th July & 3^rd August

CRIMINAL LAW – allegations of rape and incest – onus of proof on the State – lack of cross-examination of defence witness – effect thereof – Defence counsel not complying with Rule in Browne v Dunn – effect thereof – contrast with prosecution failure to cross-examine

Cases Cited:
Papua New Guinea Cases

Nil

Overseas Case

Browne v Dunn (1893) 6R 67, H.L.

Counsel:

Ms J. Batil, for the State
Ms C. Pulapula, for the Accused

3^rd August, 2018

1. HIGGINS, J: This is the determination of serious criminal charges laid by the State against the accused.
   
2. The primary charge is that he:
   

“... on two or more occasions between the 1^st day of January 2014 and the 31^st day of December 2015 at Takabur Village and Ulagunan Village in Papua New Guinea engaged in persistent sexual abuse of a particular child namely Shelly Kukubur then 15 years.

AND in the course of the persistent sexual abuse, [the accused]

1. on an unknown date in 2014 in the bushes at Takabur Village, engaged in an act of sexual penetration with Shelly Kukubur, then 15 years old, by introducing his penis into her vagina,
   
2. on an unknown date in 2014 inside his family-house at Takabur Village, engaged in an act of sexual penetration with Shelly Kukubur, then 15 years old, by introducing his penis into her vagina,
   
3. on an unknown date in 2014 in the cocoa and coconut plantation at Tatavui Block, Ulagunan Village, engaged in an act of sexual penetration with Shelly Kukubur, then 15 years old, by introducing his penis into her vagina.
   
4. on an unknown date in 2015 in a garden at Ulagunan Village, engaged in an act of sexual penetration with Shelly Kukubur, then 15 years old, by introducing his penis into her vagina,
   

AND in the course of the persistent sexual abuse [the Accused] breached a position of trust, authority or dependency in that he is the grand-uncle of Shelly Kukubur.”

3. In the alternative, the accused was charged with 4 counts of sexual penetration reflecting each of the 4 occasions referred to in the primary count.
   
4. To each charge, the accused has entered a plea of not guilty.
   
5. It is important to note that for the accused to be found guilty of any of the above alleged offences, each and every essential element thereof must be established by the State beyond reasonable doubt. That burden and standard of proof never diminishes or shifts to the accused at any time whether or not the accused chooses to give evidence whether by way of sworn testimony or dock statement. No adverse inference can be drawn from the fact, if it be so, that the accused remains silent. Even if it appears that the accused has told lies concerning the matter an adverse inference can be drawn only if, first, the lie was deliberate and (2) stemmed from a consciousness of guilt and not otherwise. The same test applies to evidence tendered on behalf of an accused which seems false.
   
6. In this case Ms Batil, for the State, called 4 witnesses.
   
7. First was the complainant, Shelly Kukubur. She deposed that in 2014 and 2015 she was living with her grandparents, that is a grandaunt and uncle, being the accused and his wife as well as Roberta and Brian Voyvoy, also granddaughters of the accused and her cousins.
   
8. The first occasion complained of, she said, occurred when the accused gave her some money, took her to his block where cocoa and betel nut were grown for sale. Roberta was also there. He told Roberta to climb a betel nut tree and took the Complainant to the side.
   
9. Before this, at the house, he had shown the three girls a pornographic movie on his phone.
   
10. At the block, he ordered the complainant to lie down and undressed her. He then pushed his penis into her vagina.
    
11. She did not tell anyone of this because he told her not to.
    
12. Three days later, she said, at the house in Takubar, at night he came into the bedroom where she and her two cousins were sleeping. He laid on top of her, told her to be quiet and not to scream. He pushed his penis into her vagina and then left.
    
13. She felt blood flowing but told no one, again, because he said not to.
    
14. The 3^rd occasion she was similarly assaulted, she said, was at Takubar, on her grandmother’s block. He gave her K10 and took her to the coconut plantation where he removed her shorts and pushed his penis into her vagina. She said he had a small knife and for her to be quiet. It was, she said, in a hand basket he had beside his left hand.
    
15. She was also concerned, she said, that if she complained her grandmother Christine and her aunt Linda would assault her. She said that they had done so when they found out she had been shown the pornographic video by the accused.
    
16. The last occasion, was, she said, in 2015. The accused came to Ulagunan Village and took her to grandmother Christine’s garden to harvest betel nut. Instead he gave her K10, took her shorts off and pushed his penis into her vagina.
    
17. The next day, a Saturday, she went back to the garden. There, near where that had happened, she found an envelope and gave it to grandmother Christine. It contained a packet of condoms and some documents. The latter included an invitation addressed to the accused to go to the Ralum showground in Kokopo. His name was on the back of the envelope.
    
18. Her grandmother questioned her about what happened and threatened her, so she told her that the accused had taken her to the garden and must have dropped the envelope after he had sex with her.
    
19. The village councillor was informed, apparently, so as to arrange for customary recompense.
    
20. She returned to live with her mother. After that it was found she was pregnant. She told her parents that the accused had made her pregnant.
    
21. The child was born in February 2016 but died in 2017. It had been severely disabled. Only after she was obviously pregnant was a complaint made to police.
    
22. In cross-examination, she agreed that the accused was a Ward Member for the village and, hence, a respected elder.
    
23. Referring to the occasion, the accused came into the shared bedroom, she said, that neither of her cousins woke up. She knew it was the accused who came into the room because he had a torch which illuminated him. Her grandmother was not in the house at the time.
    
24. Despite the envelope containing condoms, she stated the accused did not use a condom when having sex with her.
    
25. Alice Niruk is the mother of the complainant. She deposed to the complainant’s date of birth being 21 August 1999. She had 12 children, the complainant was the 6^th born.
    
26. The complainant, from 2002, lived with grandmother Christine. However, in May 2015 she arrived home to live with her mother. She appeared to be gaining weight. At first, Ms. Niruk thought she was simply eating well but about a month later suspected a pregnancy. The complainant was examined at Butuwin Health Centre and found to be 6 months pregnant.
    
27. Her mother took her to police. At the station, the complainant said the accused was responsible for her condition.
    
28. I note, of course, that the latter statement is not evidence of its truth. It is hearsay. The baby was not tested in any way to indicate paternity. A suggestion was made that a photograph of the child at two weeks resembled the accused. This is also of no evidentiary value. Nevertheless, it is evidence consistent with, but not corroborative of, the complainant’s accusations against the accused.
    
29. The child was born on 8 February 2016 and died on 28 November 2017.
    
30. This witness was not cross-examined.
    
31. Linda Kubura was the next witness. She is the aunt of the complainant who is the child of her elder sister.
    
32. In 2014, she deposed, the complainant said to her and grandmother Christine that she and two other girls, her cousins, had been shown a movie of people having sex. She went on to say that they assaulted the complainant for watching. They did not confront the accused with this accusation out of respect for his position in the family.
    
33. Later on, the complainant brought to her a yellow envelope containing condoms and an invitation addressed to the accused to attend a meeting at Gazelle International Hotel. She could not recall who it was from.
    
34. That envelope has not been produced in evidence.
    
35. When the complainant was questioned about the envelope, she said the accused must have dropped it when he had sex with her. The complainant pointed out some leaves on the ground where she said it happened. That was, she thought, in August 2015.
    
36. That evidence was not challenged in cross-examination. It needs to be borne in mind, however, that this evidence was hearsay as to the movie and as to what allegedly happened in the plantation. It is not capable of supporting any adverse inferences against the accused.
    
37. Policewoman Constable Myrah Rerevate interviewed the accused following the accusations levelled against him. The Record of Interview was not challenged. It is dated 14 December 2015.
    
38. In it the accused stated that he had no prior convictions and was the Ward Member for Ulaulatava Ward. That is not disputed.
    
39. Though the accused answered the questions put to him, the answers he gave do not enable any adverse inference to be drawn. He did deny that he had sex with the complainant as alleged. He did decline to sign the record of interview. Again, no adverse inference can be drawn from this.
    
40. The State having closed its case, the accused elected to give sworn evidence.
    
41. He stated that he was 64 years of age, a Ward Member for Ulaulatava. He denied all the charges against him. He was asked to comment on why there might be a false accusation levelled at him. He did refer to a land dispute between his family and that of the complainant but pointed out that he was not contesting the claim and didn’t really know why the allegations were made.
    
42. Of course, this question, inviting an accused to speculate on why a false accusation might be made against him or her only very rarely will elicit something favourable to the prosecution. To expect an accused to answer it, effectively, would, if any adverse inference was suggested, reverse the onus of proof upon the State.
    
43. The accused further denied that his phone was capable of showing pictures or videos. The phone has not been tendered by either party.
    
44. Under cross-examination the accused again denied the charges. He said that the girls used to lock their bedroom door, as he did, to protect against possible intruders.
    
45. He had never seen and knew nothing about the envelope referred to.
    
46. There was nothing about the accused’s evidence that would cause it to be disbelieved.
    
47. Roberta Voyvoy, cousin of the complainant, deposed that in April 2015, she was with the complainant who was meeting with a Grade 7 student called Augustine Ulugolin. The complainant told her and her sister Brian that she was seeing him.
    
48. In August 2015 she learnt that the complainant was pregnant. She only knew of Augustine as a boy with whom the complainant had associated. The inference from this was that it was possible that he was the father of the complainant’s child and not the accused, and that the denials by the complainant of sex with anybody other than the accused were false.
    
49. Surprisingly, the State did not choose to cross-examine this witness. This was notwithstanding the fact that counsel for the accused had not suggested to the complainant that she had been associating with Augustine nor that it was possible he, and not the accused, had fathered her child. However, that was the clear inference this evidence tendered to support. Despite the breach of the rule in Browne v Dunn (1893) 6R 67, H.L. such evidence, if favourable to an accused, cannot be ignored.
    
50. Brian Voyvoy, Roberta’s older sister also gave evidence. She said that the complainant did tell her about her boyfriend and that she was secretly meeting with him.
    
51. This witness was cross-examined by counsel for the State. She agreed that she loved the accused as her grandfather and would not want him to go to gaol. Though she denied that the story was made up, she was extraordinarily reluctant to say so. I was left with no confidence that this witness was telling the truth.
    
52. The final witness was Josepha Bilak, aged 28 years, from Ulagunan Village. She was a daughter of the accused and gave character evidence in his favour. She said that he helped people and was always available in the village for that purpose.
    
53. Counsel each addressed the court urging that their case be accepted.
    
54. So far as the defence case is concerned, it is a complete denial of any sexual misconduct and some evidence to support an alternative hypothesis. The accused, of course, bears no onus of proof or persuasion. The evidence for the accused supports a reasonable doubt, though the evidence of Brian Voyvoy must be discounted. Nevertheless, the fact that her evidence is apparently contrived does not enable an inference of guilt of the accused to be drawn, particularly as Roberta was not challenged as to the alternative hypothesis of paternity.
    
55. The prosecution case has some inherent defects. The accused’s mobile phone was not seized or examined. The envelope referred to was not seized or even searched for, so far as I can tell. Whilst verification of paternity of the child borne by the complainant might be challenging without access to DNA testing, a blood test could possibly have been attempted. On the other hand, without the alternative paternity hypothesis, having been raised it is not fair to discount the prosecution case absent that hypothesis being suggested to the prosecution witnesses.
    
56. Evidence of good character, whilst not of great weight in a case of this kind must, nevertheless, be given some weight in lessening, to some extent, the likelihood of the accused engaging in the alleged misconduct and also supporting the likelihood that he would not give false evidence.
    
57. I do not need to be persuaded that an accused person is innocent in order to find him or her not guilty, it suffices for that purpose that I am not satisfied of the guilt of the accused beyond reasonable doubt. It does not imply that a complainant is being untruthful. It simply means that all reasonable doubt has not been dispelled.
    
58. In the present case, I find that the guilt of the accused is not proved beyond reasonable doubt. There being a doubt as to the occurrence of any of the alleged offending behaviour, a verdict of acquittal must be entered on all counts including the alternative charges.
    
59. The accused is to be refunded his bail money.
    

Public Prosecutor’s Office: Lawyers for the State
Public Solicitor’s Office: Lawyers for the Accused