State v Tivat (No. 2) [2019] PGNC 184; N7914 (18 July 2019)

N7914

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 794 OF 2016

THE STATE

V

SYLVESTER TIVAT
(No 2)

Kokopo: Anis J
2019: 18 April, 18 July

CRIMINAL LAW – Sexual penetration of a child under the age of 16 years – Section 229A(1) of the Criminal Code Act Chapter No. 262 – identification – whether the accused was identified – late defence of alibi – whether late alibi unfair or prejudicial – whether the State has established beyond reasonable doubt the elements of the offence under section 229A(1) of the Criminal Code Act

Cases Cited:
Papua New Guinea Cases

State v. Sylvester Tivat (2019) N7863
State v. Tony Emmanuel (No.1) (2012) N5124
State v. John Baimo Kaole (2009) N3842
State v. Richard Minapo (2019) N7861
John Beng v The State [1977] PNGLR 115
State v. Tony Pandau Hahuahori (No. 1) (2002) N2185

Overseas Case

Browne v Dunn (1893) 6 R 67 (H)

Counsel

Ms J. Batil, for the State
Mr R. Asa, for the Accused

VERDICT

18 July, 2019

1. ANIS J: The accused was charged under section 229A(1) of the Criminal Code Act Chapter No. 262 (Criminal Code). He was indicted on 18 April 2019. This is my ruling on verdict.

INDICTMENT

2. The indictment reads, and I quote, SYLVESTER TIVAT of Tavuiliu Village, Central Gazelle LLG, Gazelle District, East New Britain Province, Papua New Guinea, stands charged that he on the 8^th day of January 2016, sexually penetrated a child under the age of 16 years, namely the victim (named but identity is concealed) then 12 years old by introducing his penis into her vagina.

3. The summary of the brief facts is as follows. It is alleged that the incident occurred in a village called Tavuiliu which is situated in the Central Gazelle District of East New Britain. It is alleged that on 8 January 2016, between 5pm and 6pm, the accused abducted the victim, who was then 12 years old, to a house. The house where the incident allegedly took place is traditionally known in tolai custom as a sacred house. It is called taraiu or tolai men’s dwelling area. Inside the taraiu, it is alleged that the accused used a bush-knife to threaten the victim to undress herself. It is alleged that the accused later pushed the victim to the ground where he sexually penetrated her by inserting his penis into her vagina. After the sexual act, it is alleged that the accused threatened the victim with the bush-knife and told her that he would cut her if she reported the incident to her mother. That afternoon, the victim reported the incident to her mother.

4. The accused denied the charge and a trial was conducted. At the conclusion of the prosecution’s case, the defence made a no case to answer application on 10 May 2019. I delivered my ruling rejecting the application on 16 May 2019. The decision is published as State v. Sylvester Tivat (2019) N7863.

EVIDENCE

5. The State called 2 witnesses and tendered a total of 5 exhibits. The defence called 3 witnesses including the accused. It tendered 2 exhibits to establish its arguments on prior inconsistencies.

ISSUE

6. The main issue is identification. But I also note this. The defence did not give a formal notice of alibi so the question was asked whether the defence could raise an alibi belatedly. Subject to my finding on this issue, I may consider the defence’s alibi. If I allow the defence to raise its alibi, the next issue of course would be whether the prosecution has negated the alibi, and if so, whether it has also established beyond reasonable doubt that the accused was liable for sexual penetration of the victim who was 12 years old at the material time, that is, contrary to section 229A(1) of the Criminal Code.

NO NOTICE OF ALIBI

7. The defence did not give a formal notice of alibi as required by Order 4 Rule 4 of the Criminal Practice Rules. Can the accused then raise an alibi belatedly in Court? I think the answer to this question is better answered by His Honour Justice Kirriwom in the case, State v. Tony Emmanuel (No.1) (2012) N5124. His Honour stated at paragraphs 57 and 58, and I quote in part:

.....These witnesses gave alibi evidence although no notice of alibi was filed and served as required by the Criminal Practice Rules. Failure to give alibi notice is not critical to defence raising alibi defence or calling alibi witnesses. Some judges have refused to entertain defence of alibi where no notice is given. See The State v Sei Nakiking Kubol and 8 Others [1994] PNGLR 378. I don't think this is correct. Accused is entitled to say whatever he wants in his defence during his trial and if his defence hinged on alibi but he failed to give alibi notice under the Rules, what else is he to tell the court if he can't tell the court that he was not where the prosecution alleged he was and committed the crime? In my view if the accused gave no alibi notice he is entitled to raise that defence and call evidence of alibi and the judge must consider the evidence in the light of all the evidence in the trial to determine whether the alibi is strong and sustainable. However, it is trite law that a surprise alibi defence must be treated with caution and the court must give such weight as it sees fit.

58. Criminal Practice Rules are subject to the Constitution which guarantees right to fair trial under section 37(3) and (4) of the Constitution and that right is paramount. To deny an accused right to call alibi evidence where no notice of alibi is given is tantamount to denial of right to a fair trial.

8. I adopt these as my own herein. So, I find that the accused may raise an alibi belatedly. Having said that, I note that that does not resolve the issue that is at hand. I note that the facts of this case on point, are different and perhaps far more extreme in terms of the belatedness of the defence in notifying the State of its intention to raise its defence of alibi and call evidence in that regard. This is not a case where the defence has given a belated written or verbal notice of alibi to the State immediately before the hearing. It is apparent that the prosecution had only learnt of it as the defence was about to call its first alibi witness to testify. I note that I had overruled the objection by the State and had allowed the defence to call its alibi witnesses on the basis that it will be addressed in the submissions. The State submits as follows. It says permitting the alibi defence would be unfair because the defence had breached the rule in Browne v Dunn (1893) 6 R 67 (H). The State submits that the defence had failed in its cross-examinations of the State witnesses, to assert facts to the witnesses which it would later rely on in its defence of alibi.

9. I accept as a fact that even after no notice of alibi was filed and served, the defence also failed to notify the prosecution of its intention to raise a defence of alibi informally until well after the prosecution had closed its case. To me, I find this error by the defence as fundamentally detrimental. I think that any Court that is faced with this type of situation should have no hesitation in exercising its discretion to refuse the defences’ alibi. To proceed on and overlook the breach of the rule of Brown and Dunn is, in my view, to disregard observance of justice or observance of the principle of natural justice. See case State v. John Baimo Kaole (2009) N3842. Had the defence notified the prosecution earlier at the start of the hearing, after it had failed to comply with Order 4 Rule 4 of the Criminal Practice Rules, I would have no hesitation and would have allowed the alibi defence, that is, by following the view as held in State v. Tony Emmanuel (supra). However, in this case, the defence was already in default under Order 4 Rule 4. The said default had already prevented the State from having the time to call witnesses to answer to the alibi defence. But that aside and even at the last minute, the defence still failed to inform the State of its intention before the State opened and as well as after it closed. And the State only learnt of that when the defence was about to call its alibi witnesses.

10. On these basis, I dismiss or disregard the defence’s alibi.

COMMON GROUND

11. The defence does not dispute the sexual assault upon the victim. Its main argument is that he was not at the crime scene or the location of the crime scene, at the material time alleged. He argues that someone else other than him could have sexually assaulted the victim.

12. The parties are also at common ground in relation to the age of the victim, that is, the victim was less than 16 years old at the time of the alleged incident.

DATE OF THE INCIDENT

13. The defence adduced evidence during cross-examinations, to show prior inconsistent statements made by both the victim and her mother. This was after both State witnesses had stated in their examinations in chief that the incident occurred on 6 January 2016. In the indictment, the date of the incident is stated as 8 January 2016. The defence submits that it does not challenge the date in the indictment, but it challenges the State’s evidence which it says do not support the date in the indictment.

14. The State does not deny this inconsistency. However, it submits that the date of the incident as pleaded, namely, 8 January 2016, remains as the correct date. The State submits that the inconsistency is minor because the date of the incident is not a required element of the offence that is to be established. Secondly, it submits that the inconsistency is explainable. It says the offence occurred about 3 years ago which was why the witnesses could not quite recall the exact day of the incident. It also submits that there are other evidence that corroborates each other concerning the date of the incident as 8 January 2016. The State refers to the tendered record of interview, that is, Exhibit P1, whereby the allegation that was put to the accused refers to the alleged incident that occurred on 8 January 2016. The State also refers to the tendered evidence of the corroborating police officer, that is, Exhibit P3. There, the corroborating officer makes reference to the date of the allegation as 8 January 2016.

15. I find this error to be minor. There is no issue on the month or the year of the allegation except the day. A better illustrative case where an accused was acquitted because of serious errors in the evidence on the date of the alleged incident, would be the case of State v. Richard Minapo (2019) N7861. In that case, the sole State witness that testified, who was also the victim of an alleged assault, had insisted that the date of the incident was on Tuesday 2 June 2016 and not 6 March 2015, the latter being the date of the incident that was alleged in the indictment. There was a big date gap or difference there, that is, differences on the day, the month and the year. The accused was acquitted as a result. However, in the present case, the only error is the day of the month.

16. I also refer to the tendered medical report which is marked Exhibit P5. The report was prepared a day after the alleged incident and it makes reference to the alleged incident, that is, to have occurred on 8 January 2016. When I consider the evidence in totality including exhibits P1 and P3, I find as a fact that the incident occurred on 8 January 2016.

17. I dismiss the defence’s argument in this regard.

IDENTIFICATION

18. The main issue is identification. Let me remind myself of the dangers in a case where conviction may be dependent entirely on the identity of an accused. I refer to the case of John Beng v The State [1977] PNGLR 115, and quote in part:

“In proceedings where evidence of identification is relevant, the Court should be mindful of all the inherent dangers, the need for caution before convicting in reliance on the correctness of identification, the possibility that a mistaken witness could be a convincing one and that any number of such witnesses could all be mistaken; the Court should examine closely all the circumstances in which the identification by each witness came to be made bearing in mind that recognition may be more reliable than identification of a stranger, but that even where the witness is purporting to recognize someone he knows mistakes can be made.

When the quality of the identification evidence is good the matter should proceed to a verdict, when the quality of identification evidence is poor, unless there is other evidence which goes to support the correctness of the identification, an acquittal should be entered.”

19. I will consider the evidence of the State. The victim was called to testify in Court. This is what she said. She said she is 16 years old. She said the accused is a relative of hers and that he lives at Tavuiliu village. She said on the afternoon in question, she was nearby her house with a cousin sister who was chopping firewood. She said she left her cousin and walked over to her house to check if her family had arrived. She said when she arrived at the front gate of their house, she saw the accused standing in front of the door of their house. She said when the accused saw her at the bamboo gate trying to get in, he ran away. She said she also ran back to where her cousin was. A short while later, she said she returned back to her house. She said she wanted to leave some store goods and firewood at the house. She said she left everything at the house, and she walked to the gate. She said she closed the gate, and as she was about to leave, she said she was surprised to see the accused at her back. She said it was day time around 2 to 3 O’clock in the afternoon. She said the accused closed her month, lifted her and carried her on his back. She said he threatened her that if she shouted, he would cut her with a knife. She said he carried her and ran down the hill to a drain and into the taraiu. She said he undressed himself first. She said he then placed his knife beside her and forced her to undress. She said she did not listen to him so he removed her T-shirt and shorts. She said she tried to shout but he told her that if she did, that he would cut her with the knife. She said he then gave her 2 betel nuts and told her to give one to her mother when she gets home. She said he laid her down and penetrated her by inserting his penis into her vagina. She said she tried to push him aside or away but that he was too strong for her. She said after having sex with her, the accused threatened her by telling her that he would cut her mother if she reported the incident to her. She said she wore her clothes and left for her house. She said she reported the incident to her mother when she returned that afternoon.

20. The victim’s mother Dorothy Tigai was called to testify. She said the victim was born on 14 January 2003 at the Nonga Based Hospital. She also said that when she arrived that afternoon on the date of the incident, she saw the victim crying and was in distress. She said from there, she arranged to report the matter to police and she also took the victim to the clinic for medical check-up.

DEFENCE

21. The accused gave evidence in Court. He denied the allegation. He said he was elsewhere at the material time of the incident. He denied the facts in relation to the incident of 8 January 2016 when he was interviewed by police. This is evident in the record of interview which is marked Exhibit P1.

22. According to the accused, his house is in Tavuiliu village within the vicinity of the crime scene. When he was asked about what he did on 8 January 2016, this is what he said. He said at that time, he was assisting his sister to build her house at Navunaram, which is about 5km away from Tavuiliu. He said on that morning at about 7:30am, he left his house and went work on her sister’s house at Navunaram. He said he finished work at around 6pm on that day. He said some boys got a laptop and they watched movies until about 12 midnight where he left them and returned home.

23. The defence called 2 other witnesses namely Fidelis Micah and Francis Tarue. They both gave evidence on the defence’s alibi. I have ruled against the defence raising the alibi defence so I give no regard to their evidence.

CONSIDERATION

24. The only relevant evidence before me in relation to the issue of identification, are the evidence of the victim and the accused. It comes down to the question of whom I should believe. I must say that I do not find this difficult to assess. In my view, I find the victim’s evidence to be credible. I find that she gave her evidence with ease during examination in chief. I do note that the victim had difficulty answering quite a number of questions that were put to her during cross-examination. Given the victim’s tender age, I find her difficulty which she had experienced during cross-examination, not unusual. I note that the questions that were asked were not simply put to her in a manner that she would understand. So let me say this. I think that all counsel have a duty to ensure that questions that are put to witnesses of tender ages are easy to understand and follow. That duty should not only be owed by counsel to their clients but also to the Court, that is, the duty to ensure that justice is fairly observed, maintained or dispensed in Court proceedings. With respect, I found that wanting at times from counsel for the defence.

25. The accused in this case is not new to the victim. They reside in the same village. And the victim said that he is related to her. Her evidence of close relations with the accused is corroborated by her mother’s testimony. Witness Dorothy said that the accused is related to her as a cousin from her father’s side. Now, the strong evidence of identification I see are as follows. The incident occurred at broad day light at around 2pm to 3pm in the afternoon on 8 January 2016. The victim saw the accused not once, not twice, but at 3 separate occasions. The first occasion was when she went to her house to check on her family that afternoon. The second occasion was when she realised that the accused was standing next to him at the gate, that is, after she had gone to the house and left her things. And the third occasion was inside the taraiu before, during and after the time the accused was sexually assaulting her. And finally this. The assault on the victim in the taraiu took a long while, and as such, the victim has had a good opportunity to recognise and identify the accused. At one time, the accused was conversing with her and instructing her about what to do with the betel nuts that he gave to her inside the taraiu.

26. I did not find witness Dorothy’s testimony as good evidence. Except where she had testified (i) as to the date of birth of the victim, (ii) of the moment when she had returned back to their house to find the victim in distress and (iii) as to her family ties she had with the accused, all her other evidence were confusing and inconsistent. I have observed this witness. To me, she appeared as a witness who wanted to give more or say more then what she may have actually known. She also appeared to express her hate of the accused. I found her to be quite agitated in Court. I also observed that she did not also listened to the questions, particularly in cross-examinations, that were put to her. But I must say this. Her inconsistencies were not relevant to the material issues before this Court. And some of the things she said were obviously not true. For example, she said she took the victim the very same day to lodge police complaint and to do the medical check-up. These occurred a day or so after the incident. Evidence of that was corroborated by other State evidence that were tendered such as the medical report.

27. I reject the evidence of the accused. I did not find him convincing. I find that what he told the Court was not what had happened on 8 January 2016. I also find that his belated attempt to raise an alibi as his defence, is suspicious and consequently weighs against him and his credibility. See cases: State v. John Baimo Kaole (supra) and State v. Tony Pandau Hahuahori (No. 1) (2002) N2185.

ELEMENTS OF THE OFFENCE

28. Section 229A(1) of the Criminal Code reads, and I quote in part:

(1) A person who engages in an act of sexual penetration with a child under the age of 16 years is guilty of a crime.

(Bold lettering mine)

29. There is no issue with the age of the victim under 16 years. Having said that, I note that the prosecution has nevertheless established this element. I refer to Exhibit P2 which is a statutory declaration by witness Dorothy which states that the victim was born on 14 January 2003. She also re-affirm that in her oral testimony in Court. The date when the incident occurred was 8 January 2016. If we compute time, the victim would have been 12 years old then.

30. In regard to the elements a person and engages in sexual acts, I have found these to have been established by the State, that is, through the evidence of the victim. I am satisfied beyond reasonable doubt that it was the accused that sexually penetrated the victim at the taraiu at Tavuiliu village at Central Gazelle in East New Britain, in the afternoon of 8 January 2016.

VERDICT

Verdict: Guilty as charged
_____________________________________________________________
Office of the Public Prosecutor: Lawyer for the State
Warner Shand Lawyers: Lawyer for the Accused