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State v Baps [2011] PGNC 340; N4535 (18 June 2011)

N4535
PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 1303 OF 2010

THE STATE

V

SIMON BAPS

Bialla: Kawi, J
2011: 16th, 17th & 18th June

DECISION ON VERDICT

CRIMINAL LAW – Criminal Code (Sexual offences and Crimes Against Children's) Act 2002 – Section 229B(1)(4) – Accused kissed and touched vagina of a six year old victim inside the toilet – Presence of red betelnut spittle and human saliva on the lips and face of the victim – Victim 6 years old girl – Most reasonable and logical inference to draw is that accused kissed the victim and left behind betelnut spittle and human saliva on the victim's face and lips – Accused guilty of sexual touching contrary to Section 229B (1) & (4) of the Criminal Code.

The accused followed a young 6 years old girl into a toilet and once inside the toilet, he kissed the young girl and touched her vagina with his fingers. He then ordered the girl not to follow him outside, but to come out after the accused has gone outside and well and truly out of the toilet premises. He then came out of the toilet first to be followed by the victim a few seconds later. When the victim was questioned about the betelnut spittle and human saliva on her face, she admitted that the accused had kissed her in the toilet and touched her vagina with his fingers.

Held:

(1) As the presence of red betelnut spittle and human saliva present on the lips and face of the victim, it is reasonable and logical to draw an inference that the accused kissed the victim leaving behind the red spittle and human saliva on her face.

(2) There is nothing stopping a child from giving evidence, as long as the child understands the implications of giving sworn evidence and being cross-examined. It is also important for a child to understand the implications of giving false evidence on oath.

(3) In the circumstances, the accused is found guilty and convicted of sexual touching contrary to Section 229B(1)(4) of the Criminal Code.

Cases cited in judgement:

No cases are cited in this judgement.

Counsel:

Mr Anthony Kupmain, for the State
Mr Chris Emmanuel Thomas, for the accused

18th June, 2011

1. KAWI, J: An indictment was presented this morning charging the accused Simon Baps of Maprik, East Sepik Province, with one (1) count of Sexual Touching of a young girl one NB, contrary to Section 229B(1)(4) of the Criminal Code (Sexual Offences and Crimes Against Children's) Act 2002. When the accused was arraigned he pleaded not guilty and the State had to call evidence to substantiate the allegations.

THE STATE ALLEGATIONS

2. The allegations against Simon Baps is that on Tuesday the 13th April 2000 about 3.00 pm, the victim, NB then a 6 year old girl of Mort lock parentage was playing with her friends. She wanted to relieve herself so she went to the toilet which was nearby, about 7-8 meters away from the house.

3. The State further says that the accused who saw the victim going into the toilet came and then followed the victim into the same toilet. Once inside the toilet, the accused then grabbed the victim and started kissing her on her lips and it was there that the accused touched her vagina with his fingers.

4. To prove the allegations, the State called the following four (4) witnesses. They are:

(1) Mrs Ulamilla Kilala

(2) Mrs Susan Penny

(3) NB (the victim)

(4) Mrs Joycelyn Bruce (the mother of the victim)

All four (4) witnesses opted to give evidence on oath.

5. The first State witness is Mrs Ulamilla Kilala who is from Rabaul in the East New Britain Province. She gave evidence that on Tuesday the 15th April 2010, about 3.00 pm she was raking mango leaves near her house. She continued raking the mango leaves when she saw young NB, the victim, walk into their toilet. About 2 minutes later she saw the accused, Simon Baps walk into the same toilet. When Ulamilla saw this, she walked straight into the kitchen of the victim's house, where her aunty, Mrs Susan Penny was.

6. An on sight crime scene visit by the court revealed that from underneath the mango tree where Ulamilla was raking to the toilet door is a distance of just about 9 meters. There is no physical objects from the mango tree to the toilet door that would block off or distract the views of seeing people walk into and outside from the toilet.

7. From where Ulamilla was raking to the kitchen of the victim's house is about 5 meters away. She alerted Susan and told her to keep watch to see who will come out of the toilet door.

8. During strenuous cross-examination, she maintained and was quite dogmatic that the accused Simon Baps followed the victim into the same toilet. Despite suggestions by the defence, that the accused went into a different toilet, (ie Toilet No: 2,) she maintained that the accused followed the victim into the same toilet No. 1.

9. Mrs Ulamilla Kilala also drew a sketch plan of the crime scence, featuring where she was raking, the victim's house, the kitchen and her own estimate of the distance from these places in relation to the toilet. A subsequent crime scene visit by the court confirmed the sketch plan drawn by Mrs. Kilala as being almost an accurate description of the crime scene.

10. Furthermore, it was suggested that the accused had gone into the toilet first and the victim followed later. Despite these suggestions, this witness maintained and was adamant that the victim had gone into toilet No. 1 first, and was followed by the accused into that same toilet and not a different toilet. She further stated that both Susan Penny and herself saw the accused walking out of the toilet first and the victim followed him some seconds later.

11. The witness Mrs Susan Penny lives in the adjoining duplex with the victim and her parents in a duplex type accommodation at the Hargy Mill. A distance of about 6 meters separates their house from the house of Mrs Ulamilla Kilala. About 3.00 pm on the 15th April 2010, she was preparing to cook, when Mrs Ulamilla Kilala approached her and enquired as to where Simon Baps had gone to.

12. Ulamilla then told Mrs Susan Penny to keep watch from the kitchen to see who would come out of the toilet door first. Susan kept a lookout and sure enough she saw Simon Baps came out of the toilet first. A few seconds later she saw the victim NB followed him out.

13. When the victim came out of that same toilet, Susan then approached her and saw betelnut spittle and human saliva all over her face. She described betelnut spittle and human saliva as "covering her face".

14. In cross-examination, she maintained that both the victim and the accused came out of the same toilet door. She stated that she was standing in their kitchen and she saw Simon Baps walk out of Toilet No. 1 door first, and some seconds later the victim NB followed Simon and came out of the same Toilet No. 1 door.

15. When Susan asked the victim as to how the human saliva and betelnut spittle were present on her face, she (victim) told Susan that "Simon Baps kissed me in the toilet." Finally she told the court that the accused was seen in the victim's house some minutes before he went into the toilet.

16. The mother of the victim, Mrs Joycelyn Bruce also gave evidence. She told the court that she was at the market when she got a call on her mobile phone from Susan Penny. Susan then told her of the incident involving young NB. When she heard this she immediately returned to her house.

17. Upon arriving at the house, she noticed betelnut spittle on NB's face. She carried her daughter in her arms and asked her to tell her what happened. NB then told her mother that the accused Simon Baps had "kissed her and touched my vagina in the toilet." When she was cross-examined, she again told the court what NB had told her. "Simon Baps kissed me and touched my vagina in the toilet." Asked if she got cross and belted young NB, she denied belting her daughter with a broom.

18. Further she gave evidence that she eventually took her daughter to see the Health Extension Officer after one week. She said that she and her daughter couldn't see the Health Extension Officer immediately after the incident, as he (ie the Health Extension Officer) was always out of the office.

19. The young victim, NB was also called. Before she started giving her evidence, I asked the State Prosecutor, if this witness would understand what it means to give evidence on oath and the consequence of lying under oath. To confirm her understanding of giving evidence on oath, the learned State Prosecutor asked her a few simple questions as follows:

Quest: What is the name of your school?

Ans: United Church.

Quest: What do your teachers talk about?

Ans: Teachers, mum and dad.

Quest: Do you go to church?

Ans: Yes.

Quest: Which church?

Ans: I go to SDA.

Quest: In church who do they talk about?

Ans: We talk about Jesus.

Quest: Is Jesus a good man or is he a bad man?

Ans: Jesus is a good man.

Quest: If you tell lies, will Jesus be happy or will he be cross?

Ans: Jesus will be cross.

Quest: If you get a biscuit in the store without paying, is that good or bad?

Ans: That is bad.

Quest: If you tell lies in court; is that good or bad?

Ans: That is bad.

20. I was quite satisfied with how this very young six year old answered these questions. I had no hesitation at all in allowing her to give sworn evidence in court. Consequently I allowed her to give evidence on oath, and be subjected to cross-examination. She told the court that she went into the toilet and was relieving herself. Then the accused Simon Baps went into that same toilet where she was. When she finished, Simon Baps then kissed her and touched her vagina with his fingers. After kissing her and touching her vagina, Simon Baps told her to come out of the toilet after he had gone outside.

21. In cross-examination, she was asked whether she told Susan of Simon Baps kissing her and touching her vagina. She answered that "I told aunty Susan that, Simon Baps kissed me and touched my vagina."

22. She also said that her mum went to the market and her daddy was asleep in the house. She was further asked whether she was beaten up by her mum with a broom, after she returned from the market.

23. She answered that her mummy did not get cross when she came back to the house, neither did she hit her with a broom. She further denied ever chewing a betelnut in her life as her parents are SDA and wouldn't allow her to chew.
In re-examination, she was asked this question:

"You said Simon Baps kissed you and touched your vagina. Is that true or false? It is true."

24. The accused Simon Baps gave sworn evidence in his own defence. He told the court that he knows the family of the victim well as himself and the victim's father are workmates. They are both welders with the Hargy Oil Palm Limited. Being workmates he would often walk up to the victim's house to have his meals every now and then.

25. He recalled that on Tuesday the 13th April 2010, he was in his house and during the day about 3:00 pm in the afternoon, he decided to walk up to the victim's house. While he was sitting on the verandah, on the kitchen side of the house facing the toilet, he felt the desire to go to the toilet. Earlier he was still sitting on the verandah, and NB came and sat with him. She asked Simon Baps for a betelnut, which the accused gave her, before he (ie accused) went into the toilet.

26. When he came out of the toilet, he saw the victim, NB go into the same toilet where he had gone into moments earlier. At that time he was sitting on the verandah and he saw Susan Penny sitting on the steps of her house, facing the kitchen. When he came out of the toilet, he did not see her there anymore.

27. Furthermore, when Simon Baps came out, Mrs Ulamilla was still raking the mango leaves. When NB came out he saw betelnut spittle all over her face.

28. In cross-examination, he maintained that he went into the toilet 1 first and it was only after he had came out that the victim went in to use Toilet 1. He also claimed that the victim's mother belted her with a broom, and then forced her to tell the story of Simon kissing her and touching her vagina while in the toilet.

ASSESSMENT OF EVIDENCE

29. I have heard and considered all the oral evidence. This includes oral evidence of various witnesses of the State and as well as the statement in the record of interview of the accused.

30. In my view, one of the key evidence is the presence of betelnut rubbish and the red betelnut spittle on NB's face as well as the presence of human saliva on her face and lips. How did the betelnut spittle and the red rubbish got onto the face of NB? And how did human saliva got onto her face?

31. The accused Simon Baps says that he gave her betelnut when she came and sat on the verandah next to him before the allegations of the toilet incident. But he did not give evidence of either her chewing betelnut, or even giving her lime and mustard to chew the betelnut.

32. For it is the mixture of mustard or daka as it is universally known here in PNG, that makes the substance go red. If there is evidence given to show that, she was chewing betelnut, with lime and mustard, then this may have offered some possible explanation on the presence of red betelnut spittle on the victim's face. For chewing betelnut alone does not make the betelnut substance go red. The added difficulty with this theory is that the victim and her family are members of the Seventh Day Adventist Church (SDA) whose doctrine forbids its members from ever chewing betelnut. I will therefore, dismissed this theory of the victim chewing the betelnut and then decorating her face with its spittle as being preposterous and misconceived. The other question is how did human saliva got into NB's face? During the entire evidence, no explanation was ever given by the accused as to how human saliva got on the little girl's face.

33. If the accused did not give explanation of this, then I draw logical inferences to draw a conclusion. And the most logical inference I draw is that an elder human being left the human saliva there by kissing the girl on her lips and cheeks. And who is that human being? In absence of any evidence to the contrary, that human is none other than Simon Baps who went into the same toilet as the victim.

34. Still the other issue relates to the toilet allegedly used. The State evidence is that there are two toilets in the building which has a common shower and the 2 toilets annexed to adjoining rooms. The State alleged and called evidence to show that the accused followed the victim into toilet one (1). The accused on the other hand says that he was the first one to go into the toilet and later the victim NB went to use that same toilet. Accepting this theory would discount and render the evidence of two people, Mrs Ulamilla Kilala and Mrs Susan Penny as lies and therefore not worthy of belief.

35. I do find that there is nothing to casts serious aspersions and doubts on the credibility of these two women's evidence. While there were some minor inconsistencies between the evidence of these two state witnesses, such inconsistencies did not cast serious aspersions on the credibility of their evidence.

36. In fact I find them to be honest witnesses. Mrs Ulamilla Kilala drew with some precision the sketch of the premises where the incident happened. She described in detail where she was and where the toilet was and when Mrs Penny gave evidence she too did the same by making reference to where she was, on the sketch drawn by Mrs Kilala. Both witnesses are witnesses of truth.

37. I do accept Mrs Ulamilla Kilala's evidence that she spotted Simon Baps go into the same toilet that the victim NB had gone into some minutes earlier.

38. The evidence of Mrs Susan Penny corroborates that of Mrs Ulamilla Kilala when she spotted Simon Baps came out of the same toilet that the victim had earlier gone in to use minutes earlier. I also find that Simon Baps had followed NB into the same toilet. (ie Toilet No. 1). Once inside the toilet, he kissed her all over her face and in the process used his fingers to touch NB on her vagina. The unavoidable and irresistible conclusion to be drawn here is that the red betelnut spittle and the human saliva on NB's face were left behind by Simon Baps' kisses.

39. I also find that the red betelnut spittle and human saliva found on NB's were left by Simon Baps when he kissed NB inside toilet No. 1.

40. I am therefore satisfied of this beyond any traces of reasonable doubts. When he kissed her and touched her vagina, he did so for a sexual purpose.

41. Consequently, I will find the accused Simon Baps guilty as charged and convict the said Simon Baps of Sexual Touching contrary to Section 229B(1)(4) of the Criminal Code, (Sexual Offences and Crimes Against Children's) Act 2002.

__________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused