The State v Francis Tigi (2013) N5307

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom, J
• Judgment Date: 18 July 2013
• Citation: (2013) N5307
• Docket Number: CR. 1218 OF 2010
• Court: National Court
• Year: 2013
• Judgement Number: N5307

Full Title: CR. 1218 OF 2010; The State v Francis Tigi (2013) N5307

National Court: Kirriwom, J

Judgment Delivered: 18 July 2013

N5307

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. 1218 OF 2010

THE STATE

V

FRANCIS TIGI

Vanimo: Kirriwom, J

2012: 18 July

2013: 18 July

[NO.1]

CRIMINAL LAW – Particular Offence – Persistent Sexual Abuse – Child victim aged 12 – Alleged offender aged 62 – Sexual touching and penetration of vagina with fingers and penis – Offence perpetrated over one year and three months – No violence involved – Alleged offender befriended victim and maintained friendship with family with his generosity – Victim and sister became totally dependent on the accused – Serious betrayal of trust and friendship – Criminal Code, section 229D.

Facts

The accused stands charged with one count of persistent sexual abuse of a child FT aged 12 years old which spanned over a period of three years when she was only 10 when the accused indoctrinated or groomed her into becoming his sex object when he allegedly showed her blue movies on his mobile phone and as she grew older with breasts developing he moved up to touching her breasts which as time progressed moved to touching of her vagina with his fingers and by the time she had her first monthly period in July 2009 penile penetration of the vagina began and even penetration of the vagina with tongue and continued till April 2010 when he was arrested and charged with this offence.

The accused denied the charge and accused the father of the victim Mr FT of making up the allegations and putting that story in the victim’s mouth which she then told the police and later told the court.

Given the nature of the charge and age of the victim involved in this case, the only issue here was whether the victim can be believed in her evidence?

The court saw no reason to not believe the victim, although no evidence of corroboration was tendered by the State, and found the evidence over-whelming against the accused, none of which was even rebutted by the accused, and returned a guilty verdict against the accused.

Reasons are in the judgment.

Cases cited

The State v Apolo Kesu [2006] Unreported National Court Judgment.

The State v Steven Makai (2009) N3841

The State v Kikia Solowet (2007) N3154

Publications

Megan’s Law- Facts About Sex Offenders (http://meganslaw.ca.gov/facts.htm)

Counsel

T. Ganaii, for the State

A Ninkama, for the Accused

DECISION ON VERDICT

18th July, 2013

1. KIRRIWOM, J.: The accused Francis Tigi from But village, Wewak East Sepik Province was charged with one count of persistent sexual abuse of a child under the age of sixteen over a period of nine months between 1st January 2009 and 30th April 2010, which involved and included sexual touching and sexual penetration of the victim through her vagina and mouth by insertions of tongue, fingers and penis. At all material times of the incidences constituting this offence, the victim was 12 years old.

The indictment

2. The charge against the accused reads as follows:

Francis Tigi of But village Wewak, East Sepik Province stands charged that he between the 1st day of January 2009 and the 30th day of April, 2010 at Vanimo, Sandaun Province in Papua New Guinea, engaged in an act of persistent sexual abuse of a child namely FT who at the relevant times was under the age of sixteen years.

And in the course of persistent sexual abuse of the child, the said Francis Tigi on dates unknown between 1st day of January 2009 and 30th day of April, 2010 on two or more occasions for sexual purposes touched the sexual parts of the said FTwho was then 12 years old by touching her breasts with his fingers.

And in the course of persistent sexual abuse of the child, the said Francis Tigi on dates unknown between 1st day of January 2009 and 30th day of April, 2010 on two or more occasions sexually penetrated the said FT who was then 12 years old by inserting his fingers into her vagina.

And in the course of persistent sexual abuse of the child, the said Francis Tigi on dates unknown between 1st day of January 2009 and 30th day of April, 2010 on two or more occasions sexually penetrated the said FTwho was then 12 years old by inserting his penis into her mouth.

And in the course of persistent sexual abuse of the child, the said Francis Tigi on dates unknown between 1st day of January 2009 and 30th day of April, 2010 on two or more occasions sexually penetrated the said FT who was then 12 years old by inserting his penis into her vagina.

3. The charge as presented in the indictment is a re-draft of the original charge which was much the same or similar in style and content except that the phrase ‘by inserting his penis into the vagina’ appearing repetitively in the indictment pertaining to the various incidences alleged in the original charge were replaced or rephrased with appropriate wordings consistent with the circumstances alleged by the victim. I accepted the re-worded and re-phrased indictment as presented despite objections by the defence.

4. There is still, in my view, room for improvement even in the way the charge was drafted for purpose of clarity and understanding. But this is not to say that the above indictment was defective or that the accused did not appreciate the nature of the charge against him. He is a well educated man and he appreciated the charge brought against him and the nature of the allegations raised.

A suggestion

5. I would have preferred to see the indictment drafted in these terms:

AB of (address))stands charged that between 1st day of January 2009 and 30th day of April, 2010 persistently abused the victim CD (sexually), over a (duration) period, in that:

a. The said AB on more than two occasions sexually touched the victim CD then 12 years old by touching and or fondling with the victim’s breasts with his fingers for sexual purposes .

b. The said AB on more than two occasions sexually penetrated the victim CD then 12 years old by inserting his tongue into the victim’s vagina.

c. The said AB on more than two occasions sexually penetrated the victim CD then 12 years old by inserting his fingers into the victim’s vagina.

d. The said AB on more than two occasions sexually penetrated the victim CD then 12 years old by inserting his penis into the victim’s vagina.

e. The said AB on more than two occasions sexually penetrated the victim CD then 12 years old by inserting his penis into the victim’s mouth or anus.

And at all material times there was in existence relationship of trust, authority and dependency between the accused and the said victim.

6. Anything like this would look tidier and neater and cut out the monologue of repetitiveness.

7. The accused pleaded not guilty to the charge. State called four witnesses. They were the victim, FT, VT ( her young sister), FT (father of the victim and the complainant) and Detective Senior Constable David Akem. I discuss their evidence in the judgment.

8. Defence went into evidence after an unsuccessful no-case to answer submission and called as witnesses the accused Francis Tigi, one Marley Sega and a Ben Kasanda. I also examine each of their evidence in the judgment.

9. The accused has not raised any particular defence in this case except general denial. No medical evidence was tendered. Medical evidence is not a legal requirement just as corroboration is no longer necessary nor required in sexual offence cases (Criminal Code, s.229H).

Evidence in the State case

FT (victim)

10. FT gave evidence in somewhat reserved manner, not wanting to divulge much but otherwise she told the court what exactly happened in the critical times she and her sister were alone with the accused at his home at Amgrim office. She knew the accused when he was living with them at Palai camp. Later he moved out to his place at Amgrim Office and she and her small sister go to his place and spend nights with him. At the time of this trial FT had left school after Grade 7 and she was no longer a small girl.

11. FT described the sleeping arrangement at Amgrim Office as one single room where three of them slept together on one mattress with accused sleeping on one side, FT on the other side and VT in the middle. Despite this arrangement, VT in her evidence said she could not understand why she sometimes found herself sleeping on the floor when she woke up in the middle of the night or in the morning.

12. FT gave evidence of the accused showing them blue movies and when VT has gone to sleep the accused would fondle her breasts and touch her vagina with his fingers. She said he did this many times and told her not to tell her parents. While he did all these he continued to shower them with nice things and money for lunch and shopping.

13. The breasts fondling and inserting fingers into the vagina went on until the victim had her first menstrual period. After this the accused also began inserting penis into the victim’s vagina.

14. I set out verbatim what the victim said in her evidence while talking about their camping at Amgrim Office with the accused:

........

Q. Know when you went and stayed there?

Ans. No

Q. Know what year?

Ans. No

...