State v Hamanu [2019] PGNC 117; N7833 (24 April 2019)

N7833

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 893 & 894 OF 2018

THE STATE

V

RODGR HAMANU

Buka :Toliken, J.
2019: 16^th, 17^th, 18^th, 24^th April

CRIMINAL LAW - Particular offence - Two counts of sexual touching - Teacher and pupils - Very young complainants - No medical examination - Complaint to parents not fresh - Need for corroboration though no longer required - Post offence conduct by accused - Offer for compensation by accused - May be evidence of consciousness of guilt - May corroborate evidence of complainants - Prior inconsistent statements - Not rectified by the prosecution - Failure renders both oral and prior written statement unreliable - Vitiates purpose and value of corroborating evidence - Reasonable doubt raised - Verdict - Not Guilty - Criminal Code Ch. 262, ss 229B, 229H. Cases

Cases Cited:
Papua New Guinea Cases

David Kandakason v The State (1998) SC 558
Michael Tenaram Balbal v The State (2007) SC 860

Overseas Cases

Driscoll v R [1977] HCA 43; (1977) 137 CLR 517

References:

Salamo Injia, Injia on Evidence in Papua New Guinea and the Pacific (Port Moresby, UPNG Press, 2013)

Counsel:

S Dusava, for the State
F Lugabai, for the Accused.

JUDGMENT ON VERDICT

23rd April, 2019

1. TOLIKEN, J: The accused Rodger Hamanu was charged on indictment with two counts of sexual touching pursuant to Section 229B (1)(a)(4)(5) of the Criminal Code Ch. 262. These are:

Count One: "... [O]n an unknown date between the first day of February 2016 and the 06th day of August 2016 at Donatus Mola Elementary School, Lemanmanu, Haku, AROB, in Papua New Guinea [he] did for sexual purposes touched with his finger, the sexual parts of Jorinda R (Jorinda), namely her vagina, a child under the age of 12 years at that time being 10 years old.
Count Two: "... [O]n an unknown date between the first day of February 2016 and the 07th day of August 2016 at Donatus Mola Elementary School, Lemanmanu, Haku, AROB, in Papua New Guinea [he] did for sexual purposes touched with his finger, the sexual parts of Jorindel R (Jorindel), namely her vagina, a child under the age of 12 years at that time being 10 years old.

ALLEGATIONS

2. The State's allegations are that the accused is a teacher at Donatus Mola Elementary School at Lemanmanu, Haku, Buka Island. He is married to the complainants' father's sister, hence he is an uncle to them. The complainants are identical twins.

3. In respect of Count One, the State alleges that on an unknown date between 01^st February 2016 and 06^th February 2016, between the hours of 12.00p.m and 2.00p.m, the accused was at the Donatus Mola Elementary School where he was teaching. The Complainant Jorinda was playing outside the classroom with other children when the accused called her into the classroom where she was to collect her bag.
4. When the complainant entered the classroom the accused called her over to him. He pulled her towards him and then put his hand up her skirt and touched her vagina with his fingers.

5. For Count Two, it is the State's allegation that on a date unknown between 01^st February 2016 and 07^th August 2016, between the hours of 12.00p.m and 2.00p.m, the accused was at the Donatus Mola Elementary School. The complainant Jorindel was playing outside with other children when the accused called her into the classroom to collect her school bag.

6. When the complainant entered the classroom the accused called her over and pulled her over towards him. He then put his hands up her skirt and touched her vagina. He did so for a long time and the complainant began crying. After satisfying himself the accused told her to go away and not to tell anyone about what he had done to her.

PLEA

7. The accused generally denied the charge.

THE OFFENCE

8. Section 22B(1)(a)(4)(5) relevantly provides:

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
(b) 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.
Penalty: Subject to Subsections (4) and (5), imprisonment for a term not exceeding seven years.
(2) For the purposes of this section, "sexual parts" include the genital area, groin, buttocks or breasts of a person.
(3) For the purposes 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.
(4) If the child is under the age of 12 years, an offender under Subsection (1) is guilty of a crime, and is liable to imprisonment for a term not exceeding 12 years.
(5) If, at the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and the child, an offender against Subsection (1) is guilty of a crime, and is liable to imprisonment for a term not exceeding 12 years.
(underlining supplied)

ELEMENTS OF CHARGE

9. The State must prove the following elements of the charge beyond reasonable doubt:

1. The accused
2. For sexual purposes
3. Touched with a part of his body or an object
4. The sexual part (s) of a child under the age of 16 years.

10. In addition, where circumstances of aggravation under Subsections (4) and (5) are alleged, the State must also prove the following on the required standard:

5. The child was under the age of 12years; and
6. There was an existing relationship of trust, authority or dependency between the accused and the child.

THE EVIDENCE

11. The State called the following witnesses:

1. Jorinda
2. Jorindel
3. Doreen R (Doreen).

12. The following documents were tendered by consent:

(i) The accused's Record of Interview (original pidgin and the English translation (Exh. A and Exh. A1)
(ii) Six photographs of the alleged crime scene (Exh. B1 - B6)
(iii) Sketch Maps of the alleged crime scene (Exh. C)

12. The accused exercised his right to remain silent and did not call any witnesses. The defence, however, succeeded to have certain paragraph's of Witness Jorinda's statement to the police tendered into evidence as prior inconsistent statements. (Paragraphs 1, 4 and 5 - marked Exh. 1) Paragraphs 1,3, 4 & 5 of Jorindel's statement to the police were also tendered without objection as prior inconsistent statements. (Exh.2)

THE ISSUES

13. The issues for me to determine are:

(a) Whether the accused touched the complainants' vaginas with his fingers for sexual purposes; and
(b) Whether the complainants were under the age of 16 years and in particular under 12 years of age; and
(c) Whether there was an existing relationship of trust, authority or dependency between the accused and the complainants.

UNDISPUTED FACTS

14. There is no dispute that the accused was an Elementray School Teacher at Donatus Mola Elementary School, Lemanmanu, Haku, Buka Island, AROB and that in 2016 the complainants (Jorinda and Jorindel) were doing Elementary 2 here. Their class teacher was a Mary-Jane. There is no dispute therefore that the accused, being a school teacher at the school the complainants were attending stood in a position of trust, authority and dependency in respect of the complainants.

15. The accused was regarded as an uncle to the complainants because he is married to their father's sister and hence, again there was an existing relationship of trust, authority or dependency between them.

16. The complainants are identical twins. They were 10 years old at the time of the alleged offence, having been born on 11 June 2006. They were therefore under the age of 16 years and more so under 12 years.

17. It is not contested that on an unknown date between the period alleged for both counts the complainants were playing outside their classroom when the accused called them separately over to the classroom where they were to pick up their school bags.

DISPUTED FACTS

18. The second and third issues being essentially conceded, what falls to be determined is whether the accused touched the complainants' vaginas with his fingers for sexual purposes.
19. The State's evidence on this issue essentially comes from the complainant's and their mother Doreen.

20. Jorinda testified that on the day in question, when other students had gone home after Assembly, she went over to her classroom to pick her school bag. She was about to leave when the accused, who was sitting on a chair, called her over. She obliged and as she was standing the accused put his hand up her trousers and touched her vagina with his fingers for about a minute. After that he let her go, but not before telling her not to tell anyone. She, however, reported to her parents some days after the event. In examination in chief she was able to identify the classroom and the spot she said she was assaulted by the accused from photographs shown to her. She said it was the first time for him to touch her vagina.

21. However, in cross-examination Jorinda was referred to her statement to police (taken down in Pidgin) where in paragraph 5 she states that the very first time the accused touched her vagina was when her father had sent her and her little brother to get some batteries. They met the accused in the classroom and as they were about to leave he called her in and put his hand up his trousers and touched her vagina. And in paragraph 4 she states that he touched her vagina the second time she reported the matter to her mother. She admitted when asked in cross-examination that this was very different from her oral evidence.

22. She was referred to paragraph 1 of her statement where she makes reference to 07^th August 2016 as the date of the alleged offence. She was asked if she knew that 07^th August was not a school day but in fact a Sunday. She admitted she did not know it was which is not unexpected for a child her age at the time of the alleged offence.

23. Mr. Lugabai succeeded in tendering Jorindah's undated Statement to the police (particularly paragraphs 1, 4 and 5) as a prior inconsistent statement. The State did not object. I will presently return to consider the consequence of the acceptance by the court of a prior inconsistent statement.

24. Jorindel, the second complainant testified that she was also playing outside the classroom when the accused called her over after he had called Jorinda in. She did not respond at first, but when he called the second time she went over to him in the classroom. He asked her to sit on his laps which she did, and he proceeded to touch her vagina with his fingers. He took a while in touching her vagina and it was painful. After that he released her and told her not to tell anyone, However, after a week she revealed what the accused did to her after Jorinda told their grandmother what had happened to her. She could not recall the exact month or the exact day of the week the offence took place. When asked in examination in chief how soon after the incident did she tell her mother she said she did so within an hour on the same day. This obviously is at odds with what she first said - that the matter came to light after a week when Jorinda reported the matter to their grandmother. Apart from her mother she said that she did not tell anyone else.

25. In cross-examination Jorindel was referred to her undated original Pidgin statement to the police. She was then referred to her oral evidence where she testified that when she came in the accused was sitting on a chair and asked her to sit on his laps. It was put to her that that was not what she originally told the police in her written statement. She maintained that she told the police the true story.

26. She was read paragraphs 3, 4 and 5 of her prior statement. In paragraph 3 she said that when she went into the classroom, the accused was sitting on a chair. He asked her if he heard him call and she said she did. The bell for the Assembly rang the accused prevented her from leaving and that he then touched her vagina.

27. And she continued in paragraph 5 that the accused pushed his hand into her pants and pushed his finger into her vagina. She cried in pain, but he continued to push his finger into her. As she cried he slapped her on the cheek and asked her what she was crying about. She stopped crying and he continued on until the other kids left for home. He finally stopped and sent her home telling her not to tell her parents. Her mother was not home when she arrived and she forgot about the incident until she heard Jorinda report to their mother that the accused had touched her too. That was when she informed her mother about what happened to her.

28. When it was put to her that her oral testimony was completely different from her statement to the police she admitted that it was. The State did not seek to have her clarify her answer, choosing instead not to re-examine her.

29. Jorinda was also asked if she knew that 06^th August 2016 was a Saturday and she could not have possibly gone to school and she agreed. But when it was put to her that the accused could not have gone to school either, Jorindel said it was not true.

30. The defence then tendered her written statement, particularly paragraphs 1,3,4, and 5 into evidence without objection as a prior inconsistent Statement.

31. At this juncture I might say that the mistake in the description of the date of the alleged offence, being 06^th and 07^th August 2016, is not crucial as the date of the alleged offence is not an element of the offence. There is indeed it cannot be disputed that 06^th and 07^th August 2016 were a Saturday and a Sunday but that is of no significance.

32. The complainant's mother testified that after they learned about the alleged assault on her daughters their relatives became quite angry and wanted to retaliate against the accused. To prevent a confrontation she and her husband went to the school to try and sort the matter out. The complainants' class teacher Mary-Jane wanted the incident to be hushed up. The accused, however, offered to pay the girls compensation within a week but never did. This was not challenged in any way by the defence.

33. The State also relied on Q & A 22 and 30 in the accused Record of Interview where the accused admitted that he accidentally touched Jorinda's vagina when he picked her up. He, however, completely denies ever touching Jorindel's vagina.

DELIBERATIONS

Issue: Whether Accused touched the complainants

34. It is not an easy task when dealing with the evidence of child witnesses for even if they have grown up sufficiently they may still have difficulty in remembering things, even horrid experiences from sexual abuse. Or the experience would have been so psychologically harrowing that the child may be so affected to re-live the ordeal.

35. Parliament has recognized this difficulty which is quite common, if not unique, in proving sexual offences. So where as the Courts were previously directed, as matter of practice, not to convict on the uncorroborated evidence of a complainant in sexual offence, the 2002 amendments to the Criminal Code removed that barrier. (Criminal Code (Sexual offences and Crimes Against Children) Act 2002). Section 229H now provides that "On a charge of an offence against any provision of this Division, a person may be found guilty on the uncorroborated testimony of one witness, and a Judge shall not instruct himself or herself that it is unsafe to find the accused guilty in the absence of corroboration."

36. Be that as it may, it does not necessarily follow that the court will blindly convict in every case. There will be cases where corroboration will be needed. Such cases would include those where the complainant is of such a young age. In such cases a medical report will and ought to be tendered. Failing that evidence of recent complaint will go a long way in corroborating the evidence of a very young witness in sexual offences.

37. Of course an admission by the accused will provide the strongest corroboration providing that such an admission is unequivocal, if it is not then it ought to fail the test.

38. Post offence conduct by an accused which shows a consciousness of guilt, though circumstantial, may also provide corroboration. A useful statement of this may be found the text Injia on Evidence in Papua New Guinea and the South Pacific at pp.242-243 . It says:

Under certain circumstances, the conduct of a defendant after the commission of an offence may provide circumstantial evidence of the defendant’s culpability for that offence, referred to as evidence of post- offence conduct.
Such evidence includes:

• a defendant fleeing from the scene of the crime or the jurisdiction in which it was committed;
• a defendant lying to the investigating officers or other persons in relation to an offence;
• a defendant's silence in response to an allegation which he or she might reasonably be expected to deny;
• the destruction of evidence; and
• attempts to influence the evidence of witnesses.

Evidence of such after-the-fact conduct is commonly admitted to show that a defendant has acted in a manner which, based on human experience and logic, is consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person.
Evidence of post-offence conduct is not fundamentally different from other kinds of circumstantial evidence. In some cases it may be highly incriminating, while in others it might play only a minor corroborative role. Like any piece of circumstantial evidence it may be subject to competing interpretations and must be weighed by the Court, in light of all the evidence, to determine whether it is consistent with guilt and inconsistent with any other rational conclusion.

39. If I may, I would say that an offer to compensate the complainant without invitation can also amount to post offence corroboration as it demonstrates a consciousness of guilt. However, such action on the part of an accused must be clearly shown to be an expression or an admission of guilt and not an act to merely avoid embarrassment especially in sexual offences where it is pretty difficult for innocent persons to prove their innocence.

40. The evidence of Doreen, the complainants' mother that the accused had offered compensation was not discredited and therefore may lead the court or any ordinary villager in the parties' village at Haku to believe that the accused knew that he was guilty and hence his offer for compensation. But it may very well be that he just wanted to avoid embarrassment and physical confrontation by the complainants' relatives. We cannot, however, know his real intention because he elected to remain silent, which, in itself is not an admission of guilt.

41. The statements made by the accused in his Record of Interview are, however, equivocal and cannot, in the circumstances, be taken as corroborating the evidence of the complainants.

42. And this leads me to the prior inconsistent statements of both complainants.

43. The Supreme Court in David Kandakason v The State (1998) SC 558 (per Kirriwom J with whom Amet CJ and Los J agreed) adopted a passage from the Australian High Court in Driscoll v R [1977] HCA 43; (1977) 137 CLR 517 that " It cannot be accepted that in a case where a witness has made a previous inconsistent statement, there is an inflexible rule of law or practise that the jury should be directed that the evidence should be regarded as unreliable.”

44. Expounding on this the Supreme Court said " In other words, the existence of a prior inconsistent statement, ipso facto, does not make a victim’s statement unreliable. On the other hand, the prosecution is entitled to call other evidence to verify the correctness or truth of a ... witness’s previous written statement to prove that his subsequent sworn testimony is untrue."

45. The Supreme Court in Michael Tenaram Balbal v The State (2007) SC860 (Sevua, Kandakasi, Gabi JJ) at paragraph 21 reaffirmed this when it said:

“ ... questions of inconsistency does not arise until a witness gives a testimony that directly opposes or contradicts a statement previously given by the witness. Even in that case, that is not conclusive. As long as the court warns itself of the kind of weight it should place on such evidence, it can still consider the evidence. This in our view, a prior statement that omits other evidence, but included subsequently in the oral testimony of a witness, does not amount to a prior inconsistent statement”. [Sic]

46. Kandakason's case involved a situation where two witnesses who had previously gave statements for State turned hostile, while Balbal involved a situation where the witness alluded to something in his oral testimony which he did not mention in his prior statement to the police.

47. The present case is quite different. Here the complainants' prior statements were directly contradictory to their oral testimonies. Be that as it may, it is clear from the above authorities that an inconsistency in a witness' prior statement does not render it completely unreliable, if the witness can show through oral evidence, that he in fact did not make the prior statement, and that his oral testimony is supported by other witnesses.

48. Ms. Dusava consented to the tender of the complainants' statements and did not re-examine the witnesses as she ought to in order to elicit from them which evidence was the correct version and which was not. She did not seek to call other witnesses such as the investigating officer to verify the correctness or truth of the complainants' previous written statement to prove that their subsequent sworn testimony is untrue.

49. Because of that, the inconsistencies remain unrectified and when that happens this renders both the complainants' oral testimony and their prior written statements unreliable and both must be rejected. The net result is that the corroborating evidence of Doreen is vitiated as it loses its corroborative purpose and value.

50. The State bears the burden of proving every disputed element of the offence beyond a reasonable doubt, and when it fails as it did here, the accused must, as a matter of law be acquitted.

51. The State's failure to rectify the inconsistencies in the complainants' respective oral evidence and prior written statements, may have let a potentially guilty person off the hook, in what would have resulted in a conviction, but for that failure.

VERDICT/ORDERS

52. Be that as it may, I am not satisfied beyond a reasonable doubt and accordingly return a verdict of NOT GUILTY and acquit the accused and order that he be discharged forthwith. I further order that his bail monies be refunded together with any cash sureties paid by his guarantors, if any.

Ordered accordingly.
_______________________________________________________________
P Kaluwin, Public Prosecutor: Lawyer for the State
L B Mamu, Public Solicitor: Lawyer for the Accused