[1997] PNGLR 185

PAPUA NEW GUINEA

[national court of justice]

THE STATE

v

BONNY YAKA BENSON

waigani: passingan aj
9, 10, 17, 18 September 1996

Criminal Law - Rape - Prosecutrix not called to give evidence - Evidence of witnesses accepted - Medical evidence - Adverse inference drawn from the accused’s failure to give evidence - Inferences available - Determined by common sense.

Facts

The accused was indicted with one count of rape (s 377) and another of unlawful carnal knowledge (s 216 of the Criminal Code Act (Ch 262)). It was alleged that on 24 October 1995, the accused picked up the prosecutrix at the Port Moresby Bus Stop in the pretext of taking her home. The prosecutrix who was an 11-year-old schoolgirl from the same area as the accused got into the car with.

The accused then took her to the Lamana Hotel and later to the Gateway Hotel. The accused proceeded to rape the prosecutrix at the Gateway Hotel.

At the trial the prosecutrix was not called to give evidence. The accused also exercised his right to remain silent.

Held

1.	The absence of the prosecutrix at the trial does not diminish the weight of the prosecution case where the prosecution has been able to establish a strong case.

2.	Where the victim of the offence is a 11 year old child who is not present in Court as a witness the Court can proceed to hear the case as if the child, if he or she had been called and administered the oath and that he or she could not speak: State v Sugueri Sipi [1987] PNGLR 357 followed.

[Editor’s note: His Honour did not deal with the issue of unlawful carnal knowledge. If His Honour had considered this issue the sentence might have been different.]

Papua New Guinea cases cited

John Aubuku v The State [1987] PNGLR 267.
Paulus Pawa v The State [1981] PNGLR 498.
The State v Suguevi Sipi [1987] PNGLR 357.

Counsel

L Maru, for the State.
D Sakumai, for the accused.

18 September 1996

Passingan AJ. The offence is alleged to have been committed on the 21st day of October 1995, at the Gateway Hotel at 7 Mile, Port Moresby.

The State case comprised the oral evidence of Leonie Bartley, the Investigating Officer, who was present when a statement was taken from the victim by Constable Wenge. She made some observations and conducted a record of interview with the accused on the 21st day of October 1995 at 1.00 pm. The record of interview was the subject of a voir dire in which I made a ruling that in the exercise of the Court’s discretion, the document was inadmissible in evidence.

The second witness was Willie Ropa, a security guard at the Hotel. He was on duty on the 21st day of October 1995 at about 2.00 am. Whilst manning the back-gate he was checking the poolside area when he found a small girl (the victim) crying. She was asked why she was crying. She answered in these words "a man in Room No. 227 brought me there and raped me". The witness continued. He called out to her. He noticed blood flowing from her legs and trousers. He gave her some toilet tissues and then brought her to the Reception where the 6 Mile Police were contacted. When Police arrived, Room No. 227 was locked. A key was taken from the Reception and the room was opened. The witness observed blood on the floor and the accused fast asleep on the bed naked. Attempts to wake him up failed. When ice water was poured over him, he woke up. He was then handed over to the police.

The third witness was Constable Michael Geketa, who attended at the scene (Hotel Room) with the other police members between 1.00 am and 2.00 am on the 21st day of October 1995. On arrival, he saw the victim with the security guards and that she was crying. She had bruises on her neck, shoulder and sides. That she was in a state of shock. When Room No. 227 was opened he saw blood on the floor. The accused’s bed was in disorder. The CID Police took some photographs and then the accused woke up. He was shivering and mumbling. That the accused was drunk.

The fourth witness was Sergeant Luke Kupundu, the Police Photographer. He was called to the scene and took a number of photographs of the room and the accused. On arrival he saw the accused lying naked and fast asleep on his bed. He saw bloodstains on the floor near the bed. He took photographs of the room including the bloodstains.

The final witness was Dr David Inaho of the Port Moresby General Hospital. On the 21st day of October 1995, about 7.15 am he examined the victim. Among other findings, the Doctor’s Report shows:

"There were recent fresh laceration seen at the vaginal fourchette, valva and vagina - meaning that there was external manipulations to the private parts recently."

On the basis of the above findings, I conclude that:

(a)	the victim had been sexually assaulted;

(b)	the victim was sexually assaulted at the time she was alleged to have been raped".

A total of five (5) photographs were tendered in evidence (Exhibit A1 - A5). Exhibits A1, A3 and A4 show a very young girl with obvious bruises on the right shoulder and neck area. Constables Michael and Leonie estimated her height to be just over one metre. The doctor’s affidavit does not refer to the age of the victim, but in his evidence, he estimated her age to be about 11 years.

I have not had the opportunity to observe the victim, as she was not called to give evidence. The photographs however clearly show a very young girl in school uniform. In my view with a height of not much more than one metre. I am satisfied that 11 years is a reasonable estimate. That is the evidence for the State.

At the close of the State case a submission of no case to answer was made by Mr Sakumai, counsel for the accused. I made a ruling that the accused had a case to answer.

The accused elected to exercise his rights to remain silent. And no other witnesses were called.

The issues before me on this trial are:

(a)	First, whether the State has proved the elements of both counts beyond reasonable doubt;

(b)	Second, as submitted by the defence, that in the absence of the oral testimony of the victim, there is no evidence either of rape or unlawful carnal knowledge, and therefore, the accused be acquitted; and 

(c)	How is the Court to treat the whole evidence in light of the accused’s exercise of his right of silence?

On the first issue, I am satisfied on the evidence that the accused had brought the prosecutrix, a young girl of about 11 years to Room 227 at the Gateway Hotel on the 21st day of October 1995. At the relevant time they were alone in the room. The accused then had unlawful carnal knowledge of the prosecutrix without her consent. I find lack of consent on the following basis:

(a)	the prosecutrix was a child of 11 years as compared to the accused a full mature adult;

(b)	the prosecutrix was on her way home from school when tricked by the accused and kept in a hotel room, a form of imprisonment or against her will;

(c)	the accused inflicted a number of injuries on the victim, namely; bruises on her neck, shoulder and sides; and

(d)	the prosecutrix demonstrated her disapproval by escaping from the hotel room and making a complaint to Willie Ropa, the security guard.

On the whole of the evidence before me, I am satisfied beyond reasonable doubt that the accused, Bonny Yaka Benson, had unlawful carnal knowledge of the girl Saina Joseph aged 11 years without her consent.

The second issue arises out of the fact that the prosecutrix was not called to give evidence in the trial. The reasons were not disclosed by the State. Mr Sakumai for the accused submits that in the absence of the oral testimony of the prosecutrix there is no evidence either of rape or unlawful carnal knowledge, and therefore, his client should be acquitted.

In my view, this is an unusual course taken by the State in a rape trial. In the absence of any reason given why the prosecutrix is unable to give evidence and the fact that she is only a child of about 11 years of age, the Court will proceed and deal with the matter as if the prosecutrix was found unfit to take the oath or affirmation. That even if she was present, because of her age she could not or would not speak.

I adopt the case of State v Sugueri Sipi [1987] PNGLR 357 as my authority for taking this approach. On a charge of attempting to have unlawful carnal knowledge of a girl under the age of 10 years, the victim aged 8 years did not give evidence. The mother of the victim gave evidence of what she had seen which was accepted by the Court. The accused’s evidence denying the charge was rejected. At page 300, His Honour King, AJ said:

"As to the matter of corroboration, despite Mr Wenge’s submission, I regard the evidentiary rule about corroboration as going no further than this, that in a sexual case the evidence of the victim should not in most instances be acted on without corroboration. Here the victim did not give evidence, but an eyewitness, her mother, did...

I cannot as a matter of law accedes to Mr Wenge’s submission that in this there must be corroboration of the mother before a conviction can be recorded.

"Finally, it seems to me that the mother’s evidence, which I have accepted and which describes the position in which she saw her daughter and the accused when naked and when the accused had an erection really leaves open no other inference than that he was about to engage in some form of carnal knowledge of the girl..."

On the basis of the evidence of Willie Ropa, the security guard, Constable Michael Geketa and the Sergeant Luke Kupundu (that the victim was found crying and made a complaint of rape against the accused, she had injuries and blood was seen flowing down her both legs, there was bloodstains on the floor tiles in Room No. 227, and the accused was asleep naked on his bed and supported by the medical evidence I am satisfied beyond reasonable doubt that the evidence leaves no other inference than the accused had just had unlawful carnal knowledge of the girl Saina Joseph without her consent. The immediate attention by the witnesses to be in Room No. 227 strengthens the State case, even in the absence of the oral evidence of the prosecutrix.

Finally, a consideration of the whole evidence in light of the Accused’s exercise of his right to remain silent. On this point, I refer to the Supreme Court case of Paulus Pawa v The State [1991] PNGLR 498, as to what inferences the court is entitled to draw when an accused person fails to give evidence or to call evidence to support his case. The position is set out clearly in the headnotes at p. 498:

"Where an accused person fails to give evidence or to call witnesses to support his case, any inferences to be drawn and the weight to be attached thereto must be determined by common sense having in mind that:

(1)	The failure of an accused person is not an admission of guilt and no inference of guilt may be drawn therefrom;

(2)	Failure to testify may, however, tell against an accused person in that it may strengthen the State case by leaving it uncontradicted or unexplained on vital matters;

(3)	Failure to testify only becomes a relevant consideration when the State has established a prima facie case;

(4)	The weight to be attached to failure to testify depends on the circumstances of the case. Significant circumstances include:

(a)	whether the truth is not easily ascertainable by the State but probably well known to the accused;

(b)	whether the evidence implicating the accused is direct or circumstantial..."

On the whole of the evidence before me I am satisfied that the State has proven the charge of rape laid against the accused, beyond reasonable doubt. And I enter a verdict of guilty of rape pursuant to s 347 of the Criminal Code.

[Editor: After convicting the accused the court went on to consider sentence.]

It appears from the evidence that the accused knew the victim and she also knew him because they come from the same area. I have found on the evidence that the prosecutrix was about 11 years old and she was a school girl.

There is no doubt that on the 20th of October 1995, about 2.00 pm, the prosecutrix was at the Port Moresby Bus Stop waiting to catch a bus to Morata. She was already in Bus No. 8 when the accused called her out. It was at his suggestion that she went with him to the Lamana Motel Poker Club and finally the Gateway Hotel. There is no suggestion that physical force was used early on the trip.

The accused’s case was a trial case. After the verdict of guilty was recorded he still maintained his innocence in his allocutus.

I take into account the following mitigating factors as submitted by the accused’s counsel:

(a)	that he is a first offender at the age of 45 years;

(b)	that he had been in custody for almost 11 months;

(c)	that he had a record of employment as a Policeman, a patrol officer and involvements in politics and employment with the Simbu Provincial Government; and

(d)	that in spite of the age of the victim (11 years) from the medical evidence, she suffered no permanent injuries to her private part.

On the whole it was submitted on his behalf that the Court should be lenient with him.

On the other hand, this is a serious crime that attracts the maximum punishment of life imprisonment, depending on the type of rape. It is very prevalent and much more serious in the case where the victim is so young. The accused is aged 45 and the victim was aged about 11 years. She did sustain some injuries to her body and bleeding from her private part. She will have to live with the painful memories of what he did to her.

I consider that this is a case of rape committed by an adult without any other aggravating or mitigating features apart from those set out above.

According to the guidelines set out in the Supreme Court case of John Aubuku v The State [1987] PNGLR 267, a figure of five years should be taken as the starting point.

My conclusion on sentence is that a sentence of eight years imprisonment is appropriate. The accused is therefore sentenced to eight (8) years imprisonment in hard labour, less 11 months in custody. The accused is to serve the balance of 7 years 1 month imprisonment in hard labour.

Lawyer for the State: Public Prosecutor.
Lawyer for the accused: Public Solicitor.