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State v Kukurena [2012] PGNC 265; N4593 (3 February 2012)

N4593

PAPUANEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO.667 OF 2011

THE STATE

V

GIBSON KUKURENA

Arawa: Maliku AJ
2012: 02nd - 03rd February

CRIMINAL LAW- Sexual touching – under the age of 16years - Section 299 B (1) (a) Criminal Code Act.

CRIMINAL LAW- Not guilty plea – General denial by accused – Trial - verdict of guilty after trial.

Cases cited:

Nil

Counsel:

Mr Kuvi, for the State
Mr Misil Yawi, for the accused

VERDICT

3rd February, 2012

1. MALIKU AJ: The accused is charged that he on the 13th of February of 2011 at Tugiogu village, Buin District, Bougainville Region, in Papua New Guinea touched the breasts for sexual purposes of one Esther Matuku a child under the age of sixteen (16), then fifteen (15) years thereby contrary to Section 299 B (1) (a) of the Criminal Code Act.
   
2. Prior to the State calling its witness, Mr Kivu for the State tendered the following documentary evidence with consent which were accepted and marked accordingly:
   
   1. Record of Interview in Telei language dated 25th of February of 2011 – Ex A.
      
   2. English translation of Telei language dated 25th of February of 2011 – Ex B.
      
   3. Statement of Constable Martin Ouka – Corroborator dated 21st of February of 2011 – Ex C.
      
   4. Statement of Investigating Officer- Constable Michelin Kouro dated 21st of February of 2011 Ex D.
      
3. During the trial the following were tendered by Mr Kuvi for the State:
   
   1. Statement of Thaddeus Kogiau marked Ex E.
      
   2. Statement of Michael Karai marked Ex F.
      

The elements

1. Date the offence was committed.
   
2. Place the offence committed.
   
3. The accused is the person that committed the offence.
   
4. Did touch the breasts of the victim.
   
5. Touching for sexual purposes.
   

Matters not in disputes

4. Both counsel agreed that the followings are not in dispute:
   
   1. The victim was 15 years old at the time the offence was committed.
      
   2. The accused and the victim come from the same village and know each other well.
      
   3. The accused and the victim met on the date the offence was committed between 6pm and 7pm on the bush track between Tugiogu village and Taragamuni village while the victim was returning from Taragamuni village.
      

Major issue in contention

Whether the accused sexually touched the victim on the 13th of February in 2011 at Tugiobu village?

Other Issues in contention

1. Whether the accused was under the influence of liquor?
   
2. Whether the accused was armed at the time the offence was committed
   
3. Whether there was a boy/girlfriend relationship between the accused and the victim at the time the offence was committed
   

The central issues in contention

Has the State proved that Gibson Kukurena touched the victim's breasts for sexual purposes?

5. In his evidence in chief and throughout the trial the accused told the Court that he had known the victim for a long time, related to her as a cousin and they are from the same village. He also told the Court that he and the victim had a boy/girl friend relationship. He further told the Court that on the 13th of February of 2011 he was on the main road with Thaddeus telling stories and was waiting for the victim.
   
6. He also told the Court that when the victim had walked past him and Thaddeus he followed her to the bush track and told her to wait for him. The victim then stopped and so they were telling stories. While they were telling stories he saw a torch light splashed toward where they were telling stories. The accused then told the victim to run away while he too walked away.
   
7. He denied touching the victim's breasts and said the victim had made up a false story about him to his uncle Michael Karai and her other relatives. He denied being armed with a knife but had a sling shot in his hand. He denied being under the influence of liquor at the time he met the victim. The accused adduced no other evidence beside his oral evidence. His evidence is uncorroborated.
   
8. The victim told the Court that she was 15 years old when this trouble occurred on the 13th of February in 2011 and will turn 17 years old in 2012. She told the Court that she had known the accused very well because they are from the same village. She also told the Court that the accused is Gibson Kukurena and is the person in the dock.
   
9. She told the Court that she had followed her two aunties to Taragumino village to buy newspapers on the 13th of February in 2011. She returned home walking on the bush track on the left side of the main road when she saw the accused standing on the same track with Thaddeus Kogiau. She kept walking until she reached where the accused and Thaddeus Kogiau were standing and telling stories.
   
10. She told the Court that she had just walked past the accused and Thaddeus Kogiau when the accused said good night to her. She kept walking when the accused came and grabbed her from the back telling her to go to the nearby bushes under the cocoa trees, told her not to shout and to take her clothes off. She refused to take off her clothes. The accused swore "kakani" in Telei language which means "kan yu" in pidgin while still grabbing her and touching her breasts and tearing her shirt.
    
11. She told the Court that she struggled with the accused to get herself off him until the accused saw the torch light flashed toward where they were. The accused ran away when he saw the light. She also told the Court that the accused was under the influence of liquor and was armed with a grass knife which he threatened to cut her mouth with if she shouted.
    
12. She told the Court that she never had any boy/girlfriend relationship with the accused and she never made any plans with the accused on the 13th of February of 2011 to meet her in the dark at night. She told the Court that the accused is a cousin to her on her mother's side. She told the court that the accused had never asked her for sex before this trouble.
    
13. Beside the oral evidence of the victim the State tendered written statements of one Thaddeus Kogiau marked Ex E and of Michael Karai marked Ex F.
    
14. The evidence of Thaddeus Kogiau and Michael Karai show that the accused had gone to where they were and asked for Awogi which the accused did not tell the court about. It also shows that the accused was under the influence of liquor which the accused denied. This evidence (the evidence of Thaddeus Kogiau and Michael) corroborates the evidence of the victim who told the court that the accused was under the influence of liquor. This evidence (the evidence of Thaddeus Kogiau and Michael Karai) also shows the accused had a grass knife with him which the accused denied. This also corroborates the evidence of the victim who told the court that the accused was armed with a grass knife and which he used to threatened the victim with.
    
15. As regard to the evidence by the accused that he and the victim had a boy/girlfriend relationship which the victim denied, I do not accept this piece of evidence after weighing the evidence of both the accused and the victim. I regard that piece of evidence as a recent invention by the accused and do not place any weight on it.
    
16. The accused was asked the question I have set out below during cross examination:
    

Q. What did you plan to do when you met at that night?

A. Just to see her and not to do anything to her.

17. I do not believe the accused because he told the Court that he and the victim met during the day and planned to meet in the dark at night on the road. The accused told the Court that there was a boy/girlfriend relationship between him and the victim. The accused told the Court that the reason for having met at day and planned to meet in the dark at night with the victim was just to see her but not do anything to her. This is unbelievable. No one in his right mind would believe that a person who has a boy/girlfriend relationship would meet that girl friend or boy friend in the dark at night only for the reason to just see her but not do anything to her in the dark at night alone such as in this present case at the small track under the cocoa trees.
    
18. I also do not believe the accused because there is strong evidence that he was under the influence of liquor and his capacity to properly reason and to know what he was doing was affected or tainted even though he denied being under the influence of liquor. I also conclude that the evidence by the accused that there was a boy/girlfriend relationship between the accused and the victim is a recent invention.
    
19. I conclude, the entire evidence of the accused was a recent invention or a made up story by him, is totally untrue and does not carry weight.
    
20. Lastly even if there was indeed a boy/girlfriend relationship between the accused and the victim I would still find the touching of the victim's breasts wrong in law hence the law protects a child under the age of 16 years old from being sexually dealt with which includes sexual touches such as in the present case hence consent by a child under the age of 16 years old is immaterial.
    
21. Be that as it may, in my view after I have assessed the evidence in totality, I answer the central issue in contention before me in the affirmative. The accused did touch the victim's breasts on the night of the 13th February of 2011 for sexual purposes.
    
22. Accordingly, I enter a verdict of guilty against the accused Gibson Kukurena.
    

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