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State v Ukia [1984] PGNC 14; N484 (17 October 1984)

Unreported National Court Decisions

N484

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V
OMARO UKIA OF KINIPO

Waigani

Kaputin J
3-4 October 1984
17 October 1984

JUDGMENT

KAPUTIN J: The accused has plenot guit guilty to a charge that he, on the 9th day of August 1983, at Port Moresby, Papua New Guinea, unlawfully and indecently dealt with one Salea Noko, a gider the age of 12 years old, and a trial was held forthwithhwith. The charge is laid under s.217(3) of the Criminal Code.

The State alleges that at the material time the accused was using his fingers to touch the girl’s vagina. The victim was aged 2 years. The State called three witnesses to give evidence in support of this case. They are: Mrs. Kavoi Kapiri, who was the mother of the victim, the Medical Doctor, and a Police Investigator. The defence called one witness who is the accused himself, who gave sworn evidence.

The case really hinges on who is to be believed from the two main witnesses of substance. They are, the witness for the State, Mrs. Kapiri and the one from the defence, who is the accused. I observed these witnesses very closely in regard to their appearances and demeanours and the substances of what they said. Mrs. Kapiri struck me as a truthful witness not only from her appearance and demeanour but from the fact that she withstood strong cross-examination from the defence. And I know that for a simple woman like her, if she were telling lies, she would have collapsed under pressure in cross-examination.

As far as the defence witness is concerned, I need not waste time describing his position. He was visibly nervous at the witness box and was rather pathetic in the way he spoke. I would not accept his evidence.

My finding of facts are as follows: both sides agreed that the accused and the little girl were in the house at the relevant time while the mother was away at the store. This was during day time. When the mother returned from the store and was a couple of yards away from the house, she heard her daughter cried. The cry was a cry of distress. She was worried about it and rushed into the house. As she was alighting the steps she heard the second cry. She quickly went into the room where the accused and the victim were, and she saw the whole affair visible to her eyes. The girl was lying downward with her pants half-way down while the accused was sitting on the floor fingering her private part while his other hand was on her shoulder. At this time the accused was facing away, which means that his back was towards the door and as he was busy doing his stupid act, the mother of the child could see what he was doing, in full view. The mother was furious. She yelled at the accused to get off and asked him what he was doing. She grabbed her child, carried her away and cried. For this kind of situation as described by the mother is indicative of truth of the matter.

There is no greater divergency between the evidence by the State and that of the accused. The only difference is that the accused said that she was merely trying to put on her clothings. However, the defence never explained how the clothings had been taken off her in the first place. What the accused said was that he was lifting the girl up by holding her with one hand on the shoulder and with the other hand on the surface of the vaginal area between the legs to put her clothings on. This appears to me to be the most unnatural way of carrying or lifting a child up. In any case, he probably found that to be the best way of carrying the child to suit whatever purpose he was trying to do at the time. However, as I said, I have found the statement of the mother to be the true facts of the case.

As far as the medical evidence is concerned it does not confirm either way. However, the fact that there was no injuries could be consistent with the situation that if he was merely touching her private area with his middle finger that would not cause any injuries to her.

I have come to the conclusion therefore that all the elements of the charge have been proved and I am satisfied beyond reasonable doubt that the accused is guilty of the charge and convict him accordingly.

Lawyer for the State: L. Gavara-Nanu, Public Prosecutor

Counsel: G. Tawaluta

Lawyer for the Accused: N. Kirriwom, Public Solicitor

Counsel: D. Liosi