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State v Susuat [2019] PGNC 283; N8002 (6 September 2019)

N8002

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 886 OF 2017

THE STATE

V

AUGUST SUSUAT

Kokopo: Susame AJ
2019: 21^st, 23^rd August, 6^th September

CRIMINAL LAW – Offence - Sexual Touching – s349 (1)(a)(4) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 -

Cases cited:

Nil

Counsels:
Mr G. Tugah, for the State
Ms Pulapula, for the Prisoner

DECISION

6^th September, 2019

1. SUSAME AJ: Accused is a police officer of the rank of Chief Sergeant based at Kokopo Police Station. It is alleged on 14 November 2016 he sexually touched a female complainant who had gone to seek police assistance to search for her husband who had fled with their infant child.

2. Accused was in a position of trust, authority or dependency and he breached that position when he committed the offence under circumstances of aggravation. He was indicted for the offence prescribed in section 349 (1)(a)(4) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.

3. The following are the facts alleged. Complainant had fronted up at Kokopo Police Station between 7am and 8am on 14 November 2016. She had gone to seek police assistance to search for her husband who had left her and fled with their infant child the night before on 13 November 2016.

4. Accused took the complainant into a small room to take her complaint. While in the closed room accused made sexual advances at her. He kissed her and shoved his hands under her blouse and fondled with her breasts. He went on further and pushed his hand down the complainant’s jeans attempting to touch her vagina. However, complainant pushed him away and exited the room.

Evidence

5. State’s evidence came from witnesses Tracey and her cousin Michaelyne Kauba.

6. According to Tracy’s evidence that morning she was at the duty counter. The accused took her and two other men into a room. Three of them took their seats. One other policeman attended to one of the two men while she and the other guy remain seated. Accused entered the room and asked the two of them who he will see first. Tracey asked to be seen first. So accused took her into a small office. Therein Tracey gave her statement. And that accused had made representation to the effect she should have retaliated to mean in retaliation she should go out with another man.

7. Accused told her he was on night shift and was knocking off and the morning shift will assist her. Tracey got up from her chair and was about to walk out of the office when accused walked over and blocked her from exiting. He grabbed her towards him and started kissing her. Same time he shoved his two hands up under her blouse and fondled her nipples. She gave in to him as she was scared. Accused moved his hand down to her trousers to touch her vagina. That was when she told him that is enough and she pushed him away. She opened the door and exited from the room.

8. Under cross-examination when asked why she never raised any alarm Tracey said accused was in police uniform and respected him. She was scared of him and never struggled or called out; she just stood still.

9. She walked straight to PNG Power office where the husband works and reported the incident to her husband. She said he does not know the accused by his name. A month after the incident Tracey came to the police station and identified the accused with the help of policewoman Elizabeth.

10. Michaelyne gave evidence Tracey came up to her house around midday. She looked unhappy. She asked her what was the matter and Tracey told her what had happened to her. She told her to report the matter. So the next day she accompanied Tracey to the station and a policeman told them to go and report complaint to police at Ralum. Under cross-examination she agreed one month after they came to the station and saw policewoman Elizabeth. She was present when Tracey showed her the accused as the policeman involved.

11. Accused gave evidence he was at the police station with some other policemen. He was their supervisor. That time there were other complainants at the station. One of them was the complainant in this case. Complaints’ table was full. Complainant offered to go first so accused took her into the supervisor’s office.

12. Her complaint was she wanted to get her child back and insisted for police to assist with a vehicle. Accused told her no vehicles were available. The police car had gone to the barracks to pick up the morning shift. The morning shift supervisor will take over from him and attend to her complaint. She kept on insisting and said if they did not assist her she would report them to their bosses she personally knew.

13. Complainant left the office and that was the last time he saw her. He was off duty for four days. A note was left informing him to see the OIC of Internal Investigation Unit at Ralum. When he reported investigation commenced and he was arrested and charged for unlawful assault under section 6 (3) of the Summary Offences Act. He was released on K100.00 bail. The charge was later withdrawn at the District Court and fresh information charging the accused with the current charge was presented to court.

14. Accused was under intense cross-examination. He denied sexually touching the complainant. If he had complainant should have called out as other policemen and complainants were present.

Facts

15. The following facts are established from the evidence. Accused is a police officer with 30 years of service and holding the rank of Chief Sergeant. He is based at Kokopo Police Station. He was roosted for duties from 12 midnight to 8 am. Complainant, Tracey Valaur Tako had fronted up at the Police Station between 7am and 8am on 14 November 2017. She had gone there to seek police assistance in search of her husband who had fled with their infant child the previous night. Accused attended to her and took her into a small office to take her complaint. They both sat down and Tracey made her complaint and insisted for police to assist her with a vehicle.

Issue: Whether accused had sexually touched the complainant inside the office?

16. I must remind myself onus of proving guilt rests with State all throughout. That the court must be left with no shadow of doubt to enter conviction from the evidence heard.

17. What then is the strength of evidence adduced by the State?

18. Evidence before this court is that the offence was committed right inside the Police Station but in an enclosed room. It was not in an isolated location. Other policemen were present and receiving complaints from other persons. They were inside the main complaints room just outside the room where the accused and complainant were in.

19. There is evidence before this court complainant did not put up resistance or struggled when accused held her. She just allowed him to kiss her and fondle her breasts. She gave in and stood still. She said that is enough and pushed him away when accused attempted to touch her vagina.

20. She said the reason she never resisted and called out was out of respect for the accused as a policeman; also she was scared of him. Without raising any alarm complainant walked out of the room and left the station.

21. At about 12 midday she went up to see her cousin Michaelyne. Michaelyne gave evidence complainant did not look happy and told her of what had happened. Complaint was made at the station next day which was 15 November 2016. The arresting officer whose statement dated 15/2/2017 (marked exhibit S2) was tendered into evidence stated he received the complaint from Tracey on 16 November 2017. The year was 2016 and not 2017. That was an obvious error.

22. Complaint must have been laid at the station a day or 2 after the alleged offence was committed on 14 November 2016. No immediate arrest was made until after a month when the accused identity was made known with the help of police woman Elizabeth.

23. It was argued for the State there was recent complaint made. That is to mean evidence of recent complaint is good and credible to be accepted by the court.

24. While I concur evidence of recent complaint of sexual nature is good evidence, I am not prepared to place much weight. I treat the evidence with caution considering the circumstances of the case for the following reasons.

25. First, accused had stated in evidence in examination in chief arresting officer had a relationship with Tracey and that she had given birth to a child. Implying that arresting officer had a personal interest in the case. That evidence was unchallenged by the State and cannot be ignored as it is vital as far as I am concerned.

26. If the matter was that serious investigations should have commenced immediately and complainant taken to the station to identify the concerned police officer. Information as to identity of the accused would have been provided by other members of the night shift under the supervision of the accused early. Why wait one month and decide to arrest the accused.

27. Secondly, complainant was at the police station when she was allegedly abused sexually. There were other policemen and members of the public at the Station.

28. What amazes me is that complainant raised no immediate alarm against what accused did was without her consent and against her will. She said she had respect for him as a police officer. There was no reason for her to be scared of him particularly when no threats were used on her. So why remain silent and do nothing in her defence. She had every opportunity to raise alarm to get the attention of other persons present outside of the room.

29. These questions are raising in view of the accused evidence which seems convincing against the accused. Accused is therefore entitled to the benefit of doubt.

30. Accordingly court shall return a Not Guilty verdict for the accused. Charge is dismissed. I order that accused shall have his bail refund forthwith.
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Office of the Public Solicitor : Lawyers for the State
Office of the Public Prosecutor : Lawyers for the Accused