State v Kubbo [2022] PGNC 320; N9839 (12 August 2022)

N9839

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1209 OF 2020

BETWEEN:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA

AND:
RAPPAON KUBBO
Accused

Buka: David, J
2022: 10^th & 12^th August

CRIMINAL LAW - applicant charged with the offence of sexual touching of a child – prosecution called two witnesses one of whom was the female complainant and the other the complainant’s brother – after the close of the prosecution case, the accused made a no case to answer submission – accused relied on both limbs of the principles in The State v Paul Kundi Rape (1976) PNGLR 96 – accused said complainant’s evidence about her age was hearsay as parents would be the appropriate persons to give evidence of her date of birth and age – complainant and brother are twins and have same date of birth – hearsay rules and exceptions form part of common law – Acts of the Parliament superior to underlying law including common law – in criminal proceedings, the Court, having seen the person may determine the age of the person from the person’s appearance – evidence supported essential elements of offence – not a clear case to stop proceedings at this juncture of the trial - application refused - Constitution, s.9, Schedule 2, s.63 Evidence Act, s.229B(1)(a) and (5) Criminal Code.

Cases Cited:

The State v Paul Kundi Rape [1976] PNGLR 96
The State v Lasebose Kuriday (1981) N300
The State v Roka Pep (No.2) [1983] PNGLR 287
Jack Gopave v Francis Kugame & The State (2003) N2482
The State v Simam July Melly (No 1) (2009) N3772
The State v Thomas Narop and Morris Kramer, CR No 355 of 2006, Unnumbered & Unreported Judgment of 21 February 2009

Counsel:

Mercy Tamate, for the State
Fidelis Lugabai, for the Accused

RULING ON NO CASE TO ANSWER SUBMISSION

12^th August, 2022

1. DAVID, J: INTRODUCTION: The accused, Rappaon Kubbo of Matsungan village, Buka, Autonomous Region of Bougainville in Papua New Guinea was indicted with one count of sexual touching of a child in a circumstance of aggravation contrary to s.229B(1)(a) and (5) of the Criminal Code. The State asserts that on 28 November 2019 at Tanaton village, Buka, Autonomous Region of Bougainville in Papua New Guinea, for sexual purposes, touched with his hands, the breasts of a child under the age of 16 years namely, Lensi Lucy Sasin (the Complainant), then aged 14 years and at the time of the offence, there was an existing relationship of trust, authority and dependency between the accused and the Complainant.
   
2. The accused denied the charge so a trial has been conducted to establish his guilt or otherwise. The prosecution relies on documentary and sworn oral evidence to substantiate the charge. At the close of the prosecution case, Mr. Lugabai for the accused made a No Case to Answer Submission which was contested by the State. This is my ruling.
   

BRIEF FACTS

3. In support of the charge and for the purpose of arraigning the accused, the State presented these short allegations to the Court. The accused is 47 years old and is a close relative of the Complainant in that her grandmother is married to a brother of the accused. At the material time, they were living with other family members at Tanaton village, Buka.

4. On 29 November 2019, at midnight between the hours of 12:00 am and 01:00 am, the Complainant and her twin brother namely, Lance Sasin and another child namely, Dian were asleep in the family house when the accused went and called the Complainant’s name about three times. Lance heard the voice and woke his sister up to answer. When the Complainant went out of the house, the accused told her that a woman wanted to see her and was waiting for her down at the beach not far from the family house. The accused was holding a bow and arrow at the time.

5. The Complainant believed what the accused told her so she went down to the beach, but saw no one there. The accused suddenly held her by the hand, threatened her to keep quiet and took her to the verandah of his small house at the beachfront. There, he made her to sit on his lap with her back to him. He then pushed his hand under her shirt and began touching her small breasts with his hands. The Complainant struggled with him and managed to get away from the accused.

6. The Complainant ran back to the family house and immediately told her twin brother about what the accused had done to her. They felt afraid and remained awake until sunrise. The Complainant later told her grandmother who lived nearby of what happened and the matter was reported to the police.

EVIDENCE

7. The documents comprising the documentary evidence are:

1. Statement of Gregory Champania Mongi dated 20 July 2020 (Exhibit “PA”);
   
2. Statement of Vincent Ratsi dated 20 July 2020 (Exhibit “PB”);
   
3. Record of Interview conducted between Senior Constable Gregory Mongi and the accused witnessed by corroborator Constable Vincent Ratsi dated 13 March 2020, Tok Pisin version (Exhibit “PC1”);
   
4. Record of Interview conducted between Senior Constable Gregory Mongi and the accused witnessed by corroborator Constable Vincent Ratsi dated 13 March 2020, English version (Exhibit “PC2”); and
   
5. Photographs (Exhibits PD1 to PD8).
   

8. The State called two witnesses who gave sworn oral testimony. The first witness was the Complainant herself and she was followed by Lance Toria Sasin. The witnesses were subjected to cross-examination.

LEGAL PRINCIPLES

9. The No Case to Answer Submission is premised on both limbs of the principles enunciated in the seminal case of The State v Paul Kundi Rape (1976) PNGLR 96.

10. The first limb is that, where at the close of the case for the prosecution, there is a submission of no case to answer, the matter is a question of law for the judge as a tribunal of law; the test is whether the evidence supports the essential elements of the offence.

11. The second limb is that where the tribunal decides that there is a case to answer, it nevertheless has a discretion to stop a case at the close of the prosecution case in appropriate circumstances. This discretion is exercisable where there is a mere scintilla of evidence and where the evidence is so lacking in weight or reliability that no reasonable tribunal could safely convict on it.

12. The two limbs are quite separate and distinct, but there is a discretion in the trial judge when applying the two limbs in appropriate cases. The burden of proof in a criminal case always rests with the prosecution, i.e., it must prove each element of a particular offence beyond reasonable doubt. In other words, the overall burden of proof remains with the prosecution from the commencement of a trial to the end. However, in a No Case to Answer Submission, after the close of the prosecution case, one does not look to see whether the prosecution has proven its case beyond reasonable doubt as no weighing of evidence is involved at that stage of a criminal trial: The State v Roka Pep (No.2) (1983) PNGLR 287.

OFFENCE

13. It is instructive that I set out in full below s.229B of the Criminal Code which creates the offence of sexual touching of a child, defines the phrases “sexual parts” and “touches another person” and the penalties prescribed for sexual touching of a child simpliciter or under circumstances of aggravation.

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.”

14. The penalty for sexual touching of a child simpliciter under s.229B(1) is imprisonment for a term not exceeding seven years. However, if, at the time of the offence, the child is under the age of 12 years or there was an existing relationship of trust, authority or dependency between the accused and the child, these are circumstances of aggravation under s.229B(4) and (5) respectively which result in the maximum penalty being increased to imprisonment for a term not exceeding 12 years.

ELEMENTS OF OFFENCE

15. The offence of sexual touching of a child which the accused is charged with is created by s.229B(1)(a). The essential elements of the offence are:
    
    1. the accused touches with any part of his or her body;
       
    2. the sexual parts of another person;
       
    3. the other person is a child under the age of 16 years;
       
    4. for sexual purposes.
       

SUBMISSIONS

16. Mr. Lugabai, relying on both limbs of the principles enunciated in The State v Paul Kundi Rape (1976) PNGLR 96, submitted that the State has failed to adduce evidence that supports all the essential elements of the offence of sexual touching of a child particularly the element that the child was under the age of 16 years and asked the Court to stop the case from proceeding any further and acquit the accused. He said the evidence about the Complainant’s age given by herself as being under the age of 16 years at the time of the alleged offence was hearsay and inadmissible and therefore be given no weight at all. He drew the Court’s attention to two National Court decisions namely, The State v Thomas Narop and Morris Kramer, CR No 355 of 2006, Unnumbered & Unreported Judgment of 21 February 2009 and The State v Simam July Melly (No 1) (2009) N3772 which he submitted supported the proposition that parents would be the appropriate persons to give evidence of the dates of birth and ages of their children and a child could not give evidence of her own date of birth and age as that was hearsay.
    
17. In addition, Mr. Lugabai argued that notice under the Criminal Practice Rules of 2022 was not necessary as a defence of general denial has been raised by the accused and therefore all essential elements of the offence are in issue.
    
18. Ms. Tamate contended that the No Case to Answer Submission should be refused as:
    
    1. No notice was given by the defence under Order 6 Rule 4(a) of the recently promulgated Criminal Practice Rules of 2022 to raise the issue of age and she has been completely caught by surprise. Otherwise, she would have called witnesses, apart from the Complainant, to give evidence on the Complainant’s date of birth and age.
       
    2. The defence has raised a defence of general denial which was open-ended.
       
    3. Apart from the Complainant’s own evidence that she was now 17 years old and that she was 13 years old at the time of the offence, the accused himself acknowledged at Question/Answer 31 of the Record of Interview that the Complainant was under the age of 16 years.
       
    4. The Court has power to infer the age of the Complainant having seen and observed her as a witness.
       

REASONS FOR RULING

19. It appears that the defence counsel concedes that there is some evidence before the Court that supports three of the four essential elements of the offence of sexual touching of a child, ie, first, second and fourth elements. He therefore takes issue only with the third element, ie, the Complainant was under the age of 16 years at the time the offence was alleged to have been committed.

20. A completed Pre-Trial Review form in the Court file shows that the defence raised by the accused was a general denial and that means all essential elements of the offence are in issue. The State indicated that all witnesses were to be called. The defence also indicated that they would call about two witnesses. The argument by Ms. Tamate on this point has no basis and is rejected.

21. As to whether there is any evidence before the Court that supports the element that the Complainant was under the age of 16 years at the time the offence was allegedly committed by the accused, I find that there is.

22. I have considered The State v Thomas Narop and Morris Kramer, CR No 355 of 2006, Unnumbered & Unreported Judgment of 21 February 2009 and The State v Simam July Melly (No 1) (2009) N3772 and the proposition advanced in relation to hearsay evidence by a child. I think that is the common law position.

23. Hearsay rules and their exceptions form part of the common law we have adopted and applied in this jurisdiction pursuant to Schedule 2.2 of the Constitution since gaining Independence on 16 September 1975. What is hearsay evidence? This was explained in Jack Gopave v Francis Kugame & The State (2003) N2482 where Davani, J, after referring to a text by Aranson, Reaburn and Weinberg entitled Litigation, Evidence and Procedure, as follows:

“Nonetheless, I will dwell on it because I find the statement is hearsay. The hearsay rule is a common law creation which prohibits witnesses in court repeating out of court statements made by others in order to establish the truth of those statements. This statement is hearsay because it is made by somebody other than the witness and its admission will have a prejudicial effect on the Plaintiff’s case and would have a bearing on the ultimate result. It will not be hearsay if the maker of the statement is brought before the Court and evidence led on the statement with opportunity given to Defence Counsel for cross-examination. As stated by Aranson, Reaburn and Weinberg in their text “Litigation, Evidence and Procedure,” “it is clear that the main justification put forward in support of the hearsay rule today is the fact that the maker of the court statement is not available to be cross-examined by the party opposing the reception of evidence. Cross-examination might serve to expose defects in the perception of the maker of the statement, or his veracity, or his memory, or his capacity to narrate effectively what he wishes to say.” (see par. 30.04, pg 777 1979). Although both Counsel did not submit on this aspect, this is an important part of the Plaintiff’s case that was not “progressed”. When I say the statement may be proof of the First Defendant’s negligence, I refer to the case of Ratten v R [1971] UKPC 23; [1972] AC 378 where Lord Wilberforce, giving judgement for the Privy Council, said at pg. 367;

“The mere fact that evidence of a witness includes evidence as to words spoken by another person who is not called, is no objection to its admissibility. Words spoken are facts just as much as any other action by a human being. If the speaking of the words is a relevant fact, a witness may give evidence that they were spoken. A question of hearsay only arises when the words spoken are relied on “testimonially” i.e. as establishing some fact narrated by the words. Authority is hardly needed for this proposition, but their lordships will restate what was said in the judgment of Subramaniam v Public Prosecutor [1956] 1 SLR 965, 970.”

“Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.”

24. Under the hierarchy of laws established by s.9 of the Constitution, Acts of the Parliament are superior to the underlying law. The underlying law, inter alia, would be that prescribed in Schedule 2 (adoption, etc., of certain laws) of the Constitution which includes the principles and rules of common law and equity in England that applied immediately before Independence Day in 1975 (Schedule 2.2).

25. In matters relating to evidence, the Evidence Act is relevant. Section 63 deals with age and it states:

“63. Age.

In any legal proceedings, if the court does not consider that there is evidence or sufficient evidence to determine the age of a person the court, having seen the person, may itself determine the question.”

26. The phrase “legal proceedings” is defined in s.1 of the Evidence Act and it states:

“"legal proceedings" includes any civil, criminal or mixed proceedings and an inquiry in which evidence is or may be given before a court.”

27. This means that the Court can now decide the question of age of a person from the person’s appearance.

28. The Complainant’s evidence relevant to the issue of age is that she was born on 5 February 2005 and was now about 16 years old. In 2018, she was in Grade 5 at Kahule Primary School. Currently, she is attending Salua Secondary School where she is doing Grade 9. She mentioned the names of her siblings and one of them was Lance whose full name is Lance Toria Sasin.

29. Lance’s evidence was that he was born on 5 February 2005 and he was now 17 years old. He mentioned the names of his siblings and said Lensi was his sister.

30. In the Record of Interview at Question and Answer 31, when the accused was asked if he had anything to say in response to the allegation made against him, the accused, amongst others, said the Complainant’s age was between 14 and 16 years. The last sentence of the answer reads:

Tok Pisin

“As per the first sindaun ol lain putim complain ol tok Lensi em 12 years old tasol she was between 14-16 years old.”

English version

“As to the first sitting the complainants said that Lensi was 12 years old but she was between 14-16 years.”

31. The Complainant looked young. Having observed the Complainant in Court in the witness box, I would determine her age pursuant to s.63 of the Evidence Act to be more than 16 years, but around 17 years. The evidence shows and I find as a fact that Lensi Lucy Sasin and Lance Toria Sasin are siblings and are twins with the same date of birth. I would also make the same determination as to the age of Lance Toria Sasin having also observed him as a young person in the witness box.

32. Consequently, at the time of the alleged offending by the accused, the Complainant would have been under the age of 16 years.

33. Given this, I am satisfied that the evidence supports all the essential elements of the offence of sexual touching of a child. The No Case to Answer Submission under the first limb is refused.

34. As the accused also relies on the second limb, I ask myself whether this is a case where I should exercise my discretion at this juncture to stop these proceedings and acquit the accused? The second limb applies only in a very clear case: The State v Lasebose Kuriday (1981) N300. As the question of proof beyond a reasonable doubt does not apply at this juncture because that will be determined at the conclusion of all the evidence adduced by the prosecution and the defence, I am fortified in finding from the prosecution evidence before me that this is not a very clear case to stop these proceedings at this juncture and acquit the accused as sought by him.

35. Accordingly, I call upon the accused to answer the charge.
________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused