The State v Nerius Patrick (2004) N2611

• Jurisdiction: Papua New Guinea
• Judge: Sevua J
• Judgment Date: 13 May 2004
• Citation: (2004) N2611
• Court: National Court
• Year: 2004
• Judgement Number: N2611

Full Title: The State v Nerius Patrick (2004) N2611

National Court: Sevua J

Judgment Delivered: 13 May 2004

1 CRMINIAL LAW—Sexual Assault—Touching of breast—Sexual part—Whether victim invited accused to her house—Whether victim's invitation to accused was invitation to have sexual intercourse. Verdict—Guilty.

2 The State v Paul Kundi Rape [1976] PNGLR 96, Didei v The State [1990] PNGLR 458 referred to

___________________________

N2611

PAPUA NEW GUINEA

[National Court of Justice]

CR 353 of 2004

THE STATE ats. NERIUS PATRICK

Kavieng ; Sevua, J

11th, 12th & 13th May 2004

CRMINIAL LAW – Sexual Assault – Touching of breast – Sexual part –Whether victim invited accused to her house - Whether victim’s invitation to accused was invitation to have sexual intercourse. Verdict – Guilty.

Cases referred to

The State v Paul Kundi Rape [1976] PNGLR 96

Didei v The State [1990] PNGLR 458

L.Rangan for State

A.Turi for Acused

13th May 2004

SEVUA, J : The accused pleaded not guilty to the indictment charging him with one count of sexual assault contrary to s. 349 (1) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.

The State alleges that on 14th January 2004 at Mission Compound, Kavieng Town, the accused went to the residence of Ketis family where the victim, Patrolina Ketis was, and entered the shower room and touched the victim’s breast without her consent. The State says this amounts the sexual assault.

In denying the charge, the accused said it was true he went to the victim’s house however, he went there because the victim had agreed to. The Court noted that the accused did not actually denied that he touched the victim’s breast. Could this amount to an admission of guilt?

The prosecution’s case is based on the evidence of the victim who gave sworn testimony and her sister, Michelle Haroi who also testified on oath. By consent of the defence, the State tendered into evidence as part of its case, the statements of the Investigating Officer, Corroborator and the Pidgin and English version of the Record of Interview.

The evidence of the victim is that on 22nd January 2004, the accused came to their house at Mission Compound around lunch hour to look for her uncle Joe, however Joe was not there so she told the accused Joe was not there. The accused then asked for water and the victim gave him some water. The accused then asked about the victim’s family and she said they were asleep so he should leave. The victim returned to her room and read a book. Later on, she went to the shower room to have a shower and the accused followed her into the shower room. He closed the door and held the victim’s breast and attempted to kiss her, but she struggled and the accused let her go and walked out. He met the victim’s sister outside the shower room door and they went outside the house and talked. After the incident she did not tell her sister that the accused had held her in the shower and touched her breast.

In cross examination, the victim denied that she invited the accused to the house and she also denied she invited the accused to the shower room. It was put to her that the accused did not touched her breasts, but only hugged her to reassure her that she liked her. She denied this. She also further denied the suggestion that she had asked the accused to her house and into the shower room for purpose of having sexual intercourse. But that the accused respected her and did not want to have sex with her that day.

The evidence of Michelle Haroi is that she knew the accused although not very well. On 22nd January 2004, she met him coming out of the toilet door in their house and was shocked to find him there. This was around 12 o’clock midday. She followed him outside and spoke with him. The accused told her he was afraid of what he had dome to Patrolina although he did not say what exactly that he had done to the victim. He then got onto his bicycle and left. She said the victim was 15 years old. Her sister did not tell her what had happened in the shower room.

At the close of the prosecution’s case, the accused made a no case to answer submission based on the second leg of the test in The State v. Paul Kundi Rape [1976] PNGLR 96. The submission was dismissed in a separate ruling. The accused then elected to give sworn testimony.

The accused said he knew the victim for a long time as she is his girl friend and both were members of the Catholic Youth Ministry. He had met the victim at his place of work on a Sunday afternoon and they had both agreed to meet at her house the next day, a Monday. Between 11 am and 12 oclock during his lunch break on that Monday, he went to the victim’s house in accordance with their agreement. The victim was waiting for him in the lounge room. When he arrived, he asked her for some water and she gave him water. She then went to check her father and sister in their rooms. After that, she invited the accused to the shower room to have sex. The accused followed her into the shower room but felt uncomfortable about having sex in the shower room so he only hugged her to demonstrate that he liked her and also respected her. So he did not have sexual intercourse with the victim in the shower room even though the victim had asked him to follow her there specifically for that purpose.

As the accused came out from the shower room she met the victim’s sister and they went out outside and talked. He said that he told the victim’s sister that he was scared of what he had done to Patrolina, but did not mention the exact thing he had done to the victim. The accused then left that premises and returned to work.

Having observed the demeanour of the three witnesses, I am not convinced of the veracity of the accused’d evidence. If I accept that the victim was 15 years old, it is quite strange that a 15 year old was making all the arrangements with a 24 year old adult. As far ast the accused is concerned it was the accused who did everything to facilitae what he had referred to as an agreement to have sexual intercourse. That is, she invited him to the house, she invited him to the shower room to have sex, and before thayt she had ckecked her father...