The State v Christopher Nawa (No1) (2009) N3731

• Jurisdiction: Papua New Guinea
• Judge: Lenalia, J
• Judgment Date: 24 July 2009
• Citation: (2009) N3731
• Docket Number: CR.NOS.612 OF 2007
• Court: National Court
• Year: 2009
• Judgement Number: N3731

Full Title: CR.NOS.612 OF 2007; The State v Christopher Nawa (No1) (2009) N3731

National Court: Lenalia, J

Judgment Delivered: 24 July 2009

N3731

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR.NOS.612 OF 2007

THE STATE

-V-

CHRISTOPHER NAWA (N0.1)

Buka: Lenalia, J.

2009: 9th, 10th 21st & 24th July

CRIMINAL LAW – Sexual penetration – Plea of not guilty – Trial – Criminal Code (Sexual Offences And Crimes Against Children) Act 2002 S.229A

CRIMINAL LAW – Trial – Evidence by prosecution and defence – Credibility of – Corroboration – Sexual Offences – Corroboration not required by law – Danger of convicting the accused on uncorroborated evidence – Inferences of guilt should not be drawn where there is contradicting evidence given by the State – State evidence corroborate itself – Finding of guilty as charged.

Cases cited:

Papua New Guinea Cases

The State v Andrew Tovue [1981] PNGLR 8

Peter Townsend v George Oika [1981] PNGLR 12

The State v Tom Morris [1981] PNGLR 493

Paulus Pawa v The State [1981] PNGLR 498

Allan Oaka v The State [1988-89] PNGLR 131

Didei v The State [1990] PNGLR 458

Didei v The State [1990] PNGLR 458

The State v Garitau Bonu & Rossana Bonu [1996] PNGLR 48

Garitau Bonu & Rossana Bonu v The State (1997) SC 528

The State v John Wanjil & 3 Ors [1997] PNGLR 64

The State v Nelson Tuli [1997] PNGLR 305

Overseas cases

Peacock v The King (1911) 13 C.L.R. 619

Thomas v The Queen (1960) 102 C.L.R. 584

Plomp v The Queen (1963) 100 C.L.R. 234

Barca v The Queen (1975) C.L.R. 82

Counsel:

C. Sambua, for the State

E. Latu, for the Accused

24th July, 2009

1. LENALIA, J: The accused pleaded not guilty to one count of sexual penetration of an under age girl contrary to s.229A (1) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. A trial was conducted during which two witnesses including the victim were called. In the course of this trial a number of statements and the record of interview were tendered. I will refer to the documentary evidence later.

Prosecution Evidence

2. The victim in this case whom I will only refer to as J. B (Jubilee Bitavi) gave evidence of how the accused sexually penetrated her on 10th November 2006. J. B was a student at Wakunai Primary School on the Autonomous Region of Bougainville doing Grade 7 when the alleged offence occurred. On that date after the school closed at 12.30 pm, the victim and other children from Teokon village were preparing to go home. As she was ready to take off, the head master of the school came to her and asked her which road she was to take to go home. She replied that she was to go along with other children through the main road.

3. When the accused heard this, he suggested to the victim why not take the back road. After this the victim and Delphine Vane left the accused. They took off with the intention of going along the main road. However due to the majority of students going along the beach, the two of them decided to go along the beach with most other students. When they reach the river, they started to swim. While the victim was swimming, the accused sent a boy by the name of John Ponau to the victim to ask where the school treasurer Kevin Tauna was. She told this boy that, she had just been at school and she could not tell where the treasurer was. The first boy was sent back with that message to the accused.

4. A little later, the accused sent another small boy to the victim who was still at the river to fetch her to see the headmaster. The headmaster of the school then was the accused. The victim returned to the school office and the accused told her to go back to the river and tell Delpine that he wanted to go along with the two of them go on the back road to Teokon village so he could see the school treasurer. The victim said, when the accused came to them on the beach he asked them again which track they should follow. J. B suggested they should go along the main track. On hearing this, the accused informed them that, they should take the short cut track.

5. So they began to walk up the track suggested by the accused. On their way, J. B felt that some thing was to go wrong. The victim’s girl friend Delphine Vane led the way, followed by the accused and the victim was the last person. After walking several hundred metres from the beach and with the feeling that something was to happen, J. B without telling her friend and the accused made a U turn and ran back toward the beach. On reaching the beach, she stood and looked around not knowing that the accused had caught up with her. He came and stood a couple of metres away from her and asked her to walk up to him.

6. At first the victim was quite reluctant to do as the accused ordered. The victim said, when she did not move, the accused shouted at her and ordered her to come close to him. She obeyed and the two of them walked some few metres into the bushes and there the accused asked her to remove her clothes. When she was naked, he asked her to lie down on the ground. He kneeled down and commenced to push his fingers in and out the victim’s vagina a number of times. She said, this was done to enlarge her vaginal opening.

7. She said, the accused then laid on top her and tried to sexually penetrate her. When he tried to push his penis into her vagina, he could not penetrate her. He tried the second time, he could not succeed. He tried the third time and it was then that he penetrated her. According to J. B when the accused reached orgasm, he pulled his penis out of her vagina and ejaculated on the ground. He told her to get dress, he also got dressed and they walked away into different direction. In case of J.B she walked up the same track and reached the river where her friend was swimming waiting for them.

8. In cross-examination the witness was asked why was it that the accused wanted to accompany her and her friend to the village. J.B said, she did not know why as the accused did not tell them why he wanted to see the school treasurer. She was asked where was the accused when he spoke to her and Delphine. The victim replied it was at the river when the three of them walked up together. She was asked about certain distances between her village and the river where the offence took place. First she said 20 metres but when she was asked to further clarify, she said, it could be from the court premises to the main wharf which was estimated by counsels to between 200 to 300 hundred metres.

9. She was asked about what type of feeling she had when she decided to run away from the accused and Delphine. She said, she felt that the accused would do something to her. Asked if she ever excused herself before she turned back leaving the accused and Delphine. She was asked if she ever said any thing to the accused in the process of seducing her. The victim said, she did not say anything. Further asked if it was true that it was the first time ever for her to experience sex with the accused, she answered no. It was put to her if it was true the accused did not have sex with her. The witness said it is true that the accused sexually penetrated her.

10. She was asked if it was true when she got home she never told anyone about this trouble. J.B said she did not tell anyone immediately but later, one of the female teachers reported the matter to the police. She named that teacher as Theresa Kamae. She was further asked if it was not the first time for the accused to have sex with her on 10th November 2006 but was one of several occasion of consensual sex. The victim said it was the accused first and last time to have sex with her.

11. The second witness Delphine Vane’s evidence corroborates evidence by the victim on what happened at the beach. She saw their fellow student John Ponau came and talked to the victim in this case. Before they went through that back track, she had seen the accused standing together with the victim talking on the beach. After a while, J.B came to her and while they were together another boy by the name of John Seman came to the two girls and told them that the accused wanted these two girls to accompany him to Teokon village to see the school treasurer.

12. Delphine said, after they were informed this, they went up to see the accused who spoke to them and they took off from the beach following the track not commonly used. This track is referred to by the victim’s evidence as a ‘short cut’ road to her village. The witness said, they had gone into the track some 60 or so metres into the bush track, when the victim turned around and ran back to the beach. She said, not long after J.B had left them that the accused also excused himself to go for nature call. She went ahead to the river and started to swim in the hope that the accused and the victim would come and fetch her to go to the village.

13. After sometime, the victim came and while they were standing on the river bank, the accused came and gave a piece of paper to the victim and asked the two girls to give it to the school treasurer. He left them and walked back through the track. The witness and the victim then walked home. In her statement, the witness said, when they were walking home that afternoon, she noticed that the victim’s countenance fell and she did not talk to this witness until they reached home.

14. In cross-examination, Delphine was asked to confirm the order of their...