N2540

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 640 of 2003

THE STATE

-V-

FLOTYME SINA
(No.1)

GOROKA:	KANDAKASI, J.
2004: 11th and 18th May

CRIMINAL LAW – PRACTICE & PROCEDURE – Need to caution accused before he goes into evidence – Accused choosing to give unsworn statement from the dock – Credibility and Weight of – Court duty bound to consider credibility of. 

CRIMINAL LAW - Verdict – One on one rape against married woman – Consent only issue for trial– State’s evidence logical, in touch with commonsense and given under oath found credible and accepted – Guilty verdict returned – Criminal Code ss. 347(1). 

EVIDENCE – Sworn testimony verses unsworn testimony – Unsworn testimony not tested under cross-examination - Court duty bound to consider credibility of both evidence – Whether evidence sworn or not goes to credibility of witness - Evidence that is logical and in touch with commonsense preferable.

Cases Cited:
SCR No. 1 of 1980; Re s. 22A (b) of the Police Offences Act (Papua) [1981] PNGLR 28.
The State v.Ben Noel & Ors (Unreported judgment delivered on 31/05/02) N2253
Rolf Schubert v. The State [1979] PNGLR 66.
The State v. Cosmos Kutau Kitawal & Anor (No 1) (Unreported judgment delivered on 15/05/02) N2266.
The State v. Kevin Anis and Martin Ningigan (Unreported judgment delivered on 7/04/03) N2360.
The State v. Eki Kondi & Ors (Unreported judgment delivered on 23/03/04) CR NO.1451 of 2003 & Ors.
The State v. Amoko-Amoko [1981] PNGLR 373.
The State v. John Kasaipwalova (1976) N80.
The State v. Kindung [1996] PNGLR 355.
The State v. Raphael Kimba Aki (Unreported judgment delivered 26/01/01) N2039.
Jimmy Ono v. The State (Unreported judgment delivered on 04/10/02) SC698
State v. Julius Ombi (No.1) (Unreported judgment delivered on 27/04/04) CR No. 342 of 2004.
The State v. Garry Sasoropa & 2 Ors (Unreported judgment delivered on 27/04/04) CR NO.261 of 2004.

Counsels:
N. Miviri for the State 
M. Aipe’ei for the Prisoner 

18th May 2004

KANDAKASI J:	You pleaded not guilty to one charge of raping a married women (named but referred to only as the victim) at Napamogona, in the Bena District of this Province on 30th December 2002. A trial therefore took place on 11th of May 2004 and a decision on your verdict reserved to this week. This is now the decision of the Court on your verdict.

In addition to admitting into evidence, a number of documentary evidence with your consent, the State called the victim and another witness who gave sworn oral testimonies against you. The documentary evidence consists of your record of interview with the police in both the English and Pidgin versions, exhibits "A1" and "A2" respectively; Medical report by Dr. Graham Haina, exhibit "B", and the Statements of Joe Mangre dated 15/01/03 and Gaindia Metia dated 15/01/03, exhibits "C" and "D" respectively. On your side, only you gave an unsworn statement from the dock. 

The Offence

The Criminal Code as recently amended by the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 creates and defines the offence of rape in these terms:

"347.	Definition of rape.

(1)	A person who sexually penetrates a person without his consent is guilty of a crime of rape.

Penalty:	Subject to Subsection (2), imprisonment for 15 years.

(2)	Where an offence under Subsection (1) is committed in circumstances of aggravation, the accused is liable, subject to Section 19, to imprisonment for life."

The amendments seek to clarify and introduce a new definition for rape and a penalty regime. The definition is only in respect of who could be a victim of rape. Previously it was females only. Now, there is no gender indication. It defines the offence, as a person sexually penetrating another without the latter’s consent. Otherwise, it has always been clear and it continues to be so, that the offence of rape has a number of elements. These are:

1.	A person who;
2.	sexually penetrates;
3.	another person;
4.	without that person’s consent.

The prosecution always has the burden to prove beyond any reasonable doubt every element of an offence in all cases that is prosecuted. The Supreme Court in SCR No. 1 OF 1980; Re s. 22A (b) of the Police Offences Act (Papua) [1981] PNGLR 28 at page 34, per Greville Smith J confirmed this: See The State v.Ben Noel & Ors (unreported judgment delivered on 31/05/02) N2253 for quotation of relevant part and application. What this means in your case is that, the State had the burden to prove each of the elements outlined above beyond any reasonable doubt. The question for this Court to resolve then is, has the prosecution proved all of the elements of the charge of rape against you?

Given the issue for trial, you do not dispute that there was a sexual intercourse or penetration of the victim by you on the day, date and place alleged. The only issue is whether, this was a free and or consensual sexual intercourse between you and your victim? Both the prosecution and the defence as noted, went into evidence on that issue. Accordingly, I turn to the evidence and facts emerging from them now, starting with a consideration of the evidence called by the State. 

The Evidence

The first State witness was the victim. This witness’ evidence is very brief. She testified that she is a married woman. She is married to a man from Nasare village. On the day of the offence, she was on her way to visit a brother in-law at Napamagona village following a domestic problem with her husband. It was around 5:00pm and she was on her way to her destination. On the way, she passed you after returning you greeting her in terms of saying good afternoon. She continued on her way for a little while and then she realized that you had turned around and followed her and stood in front of her. You faced her and told her that you want to get a chance with her, which I take to as asking for a sexual intercourse with her. 

At that time, she said you had a bush knife with you. She said you used that bush knife to threaten her and said to her, "if you say no, I will kill you" and you insisted or were determined on getting what you asked for. This developed into a struggle between you and her and you eventually over powered her and put her down on the ground. You then proceeded to have forceful sexual intercourse with her. At that stage, she did not struggle with you as she was fearful of you killing her as you threatened her already with a bush knife.

After you satisfied yourself, you got away from her. She then continued to the village. There, she found Gibson Forokave and she reported what you did to her. Gibson came to the police station the following day and reported the incident to the police as it was late on the day of the incident for him to do that. Following that reporting, the Police eventually arrested you and had you charged with rape of the victim.

Under cross-examination, you asked the victim amongst others, if she felt compelled to tell his brother that you raped her because she was married and that she could not admit to consensual sexual intercourse. She answered that question in the affirmative. There was serious difficulty in the interpretation requiring at times the Court’s intervention, including this question. This misunderstanding was apparent when she answered in the negative the subsequent question of, "Did you agree to have sexual intercourse with Flotyme?"

The only other area in which there appears to be some problem with the victim’s evidence is in relation to her medical examination. She only speaks of the doctors doing something to her hand and nothing more. The medical report is in evidence with your consent. This report speaks about examination of her vagina and taking of swabs from the high vaginal area. Neither counsel nor the Court is in any position to tell of the relevant procedure, whether this is after applying anesthetics to render a patient temporarily, unconsciousness to avoid pain or while the patient is fully conscious. Accordingly, we cannot make much out of this.

Gibson Forokave, corroborates, the victim’s evidence particularly, in relation to her reporting to him immediately after the alleged rape on her by you. He also confirms having reported you to the police and your eventual arrest by police. Further, he testified that he saw the victim with her blouse freshly torn.

In your defence, you chose to give a statement from the dock. You made that choice after, the Court advised you of the two ways in which you could give your evidence; (1) evidence under oath or; (2) an unsworn statement. This was in accordance with authorities like that of Rolf Schubert v. The State [1979] PNGLR 66. The Court advised you particularly in relation to the consequence that would follow on the choice you make. The Court took the trouble of advising you even though your counsel informed the Court that he had already advised you in those terms. Following that advice, you decided to give an unsworn statement from the dock.

In your statement from the dock, you confirm most of what the victim said in her sworn testimony. However, you differ from her account in a number of respects. You said, after you had exchanged your greetings by saying good afternoon and passed her a little, she made signs to you by whistling and signalling you to go to her. Therefore, you turned around, went to where she was, and asked her of the reasons for her calling you. She said she just called. When she said that, many things went into your head and you said to her, "you could not have called me for nothing." Then you said to her there are two of you there, she must have had something in mind. Her response was "I know, you be at ease". Thereafter you walked a little and then asked her if you could have a chance with her, meaning sexual intercourse with her. She did not respond immediately, so you repeated your request, and she agreed. She then put her bilum away and took off her cloths while you undid yours. You then proceeded to have consensual sexual intercourse, with her laying on the ground and you sleeping on top of her. After that, you laid on the ground while she went on top of you and you continued in the act of sexual intercourse until you were both satisfied, after which you went your separate ways, after exchanging thank yous with her taking the lead.

On the way, you saw Gibson Forokave talking with the victim. Nothing happened and you went home and stayed there.

The next day, however, the victim and her relatives accused you of having raped the victim. You responded to that by saying, you had consensual sexual intercourse with the victim. There was then an exchange of some arguments and later the victim’s relatives reported you to the police. Police acted on that and had you arrested and charged. You said the victim claims your sexual intercourse with her was rape because of some animosities between her people and yours. 

Assessment of Evidence

There is neither any evidence nor do you argue that the State’s case is incredible. You did not cast any doubt in the evidence the State produced against you. Your cross-examination only elaborated on the victim’s evidence. The only exception there is the suggestion that because she was married she reported your sexual intercourse with her as rape. However, she clarified this when under further cross-examination she denied agreeing to have sexual intercourse with you. Given that, the prosecution’s case remains unbroken.

I observed her demeanour in the witness box. I failed to get any impression that she was lying under oath. Additionally, the victim does not know of any prior animosity or differences you and your relatives or people might have had against her brother and his relatives or line, which might have caused her to come up with a false rape story. The evidence clearly shows her being married to a man from Nasare and living there. On the day of the offence, she was on her way to seeing her brother following a marital problem with her husband. Was this sufficient to cause her to initiate and have two rounds of sexual intercourse with you on what appears to be along the roadside, in the way you describe in your unsworn statement?

This requires a testing of the two different versions in terms of which of the version of the evidence is logical or is in keeping with logic and commonsense. It is trite law that, commonsense and logic does play a major role in determining whether a witness and therefore his evidence are credible. I noted that in these terms in The State v. Cosmos Kutau Kitawal & Anor (No 1)(Unreported judgment delivered on 15/05/02) N2266:

"Logic and common sense does play an important part in either the rejection or otherwise of evidence before a court of law and whether or not an accused person should be found guilty. In The State v. Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48, applying a logical and common sense approach, the National Court found the defendants guilty of murder even when there was no evidence directly showing that the defendants had killed the deceased. The Court proceeded to convict them, when the defendants’ failed to provide a reasonable explanation for the appearance of the badly wounded deceased body in their house. On appeal, the Supreme Court affirmed the National Court’s approach and dismissed the appeal: see Garitau Bonu & Rosanna Bonu v. The State (24/07/97) SC528 and Paulus Pawa v. The State [1981] PNGLR 498 for an earlier authority on point." 

I adopted and applied these principles in many other subsequent cases. Recent examples of these are my judgments in The State v. Kevin Anis and Martin Ningigan (Unreported judgment delivered on 7/04/03) N2360 and The State v. Eki Kondi & Ors (Unreported judgment delivered on 23/03/04) CR NO.1451 of 2003 & Ors and many other cases as well.

Your Case

The first thing I note in this case is that, the prosecution’s side of the story is in sworn testimony whilst your response is a mere statement from the dock. In this way, you avoided the rigorous test of cross-examination, after having cross-examined the victim over her testimony at some length. This is why the law has developed in the way it has for a tribunal of fact to place little or no weight to such statements when in competition with sworn testimonies. There are numerous cases on point. Some of the cases representing this principle of law are for example; The State v. Amoko-Amoko [1981] PNGLR 373; The State v. John Kasaipwalova (1976) N80; The State v. Kindung [1996] PNGLR 355 and The State v. Raphael Kimba Aki (unreported judgment delivered 26/01/01) N2039.

A recent statement and application is by the Supreme Court in Jimmy Ono v. The State (Unreported judgment delivered on 04/10/02) SC698 in these terms:

"In your case, you presented no sworn evidence to rebut the sworn evidence against you. You were only prepared to give an unsworn statement. Whilst that was your right to do so and that no inference of guilt can be drawn against you because of that, it means that you were left with sworn evidence against you without any rebuttal from you. You were not able to present any reason to compel the trial judge not to accept the sworn evidence against you."

At the same time, these authorities also say that the Court should consider an unsworn statement when considering the material before it to see if there is any truth in such a statement, which I hereby do. In this regard, the question is, is the version of the facts given by the State’s witnesses credible, or the one given by you is?

This leads me to the next factor to note. There is no evidence of any prior relationship between you and the victim. It therefore seems you and the victim were strangers meeting for the first time. Given that, is it reasonable to infer that, the victim asked you to have sexual intercourse with her? In The State v. Julius Ombi (No.1) (Unreported judgment delivered on 27/04/04) CR No. 342 of 2004, I recently observed that in most communities in our country, man normally takes the lead in boyfriend and girlfriend relationships as well as any sexual relations. I repeated that in The State v. Garry Sasoropa & 2 Ors (Unreported judgment delivered on 27/04/04) CR NO.261 of 2004.

There is no evidence before me that in this Province, women or girls take the lead in initiating boyfriend and girlfriend relations and eventually sexual relations. Given that, if indeed your version is what in fact happened than, she must have been a very brave person to overcome the usual or normal conduct. Then she must have also had the courage to get you into the sexual acts as you speak of, knowing that she was married and had some problems with her husband and that a sexual intercourse with you could worsen the problem with her husband. Further, if your account is correct than, she must also have had the courage to be involved in a prolonged sexual encounter in the way you describe beside a road, where there was the risk of other people passing by and them finding the two of you out in the sexual acts you describe. Further, if this was a consensual sexual intercourse than why was her blouse, freshly torn, going by the most logical explanation that cloths do not get torn in a consensual sexual intercourse in the way you described.

Given this, your story does not sound right. I cannot possibly believe your version that says, it was two rounds of consensual sexual intercourse between you and the victim on the victim’s initiative for a number of reasons. Firstly, if your claims are true, why did you not take the stand, give a sworn testimony, and allow a testing of that by cross-examination as did the victim. I take it that you were afraid of undergoing the usual tests of cross-examination for fear that you might incriminate yourself, after having rigorously cross-examined your victim.

Secondly, I cannot possibly believe that the victim would come out of nowhere and suddenly ask you to have sexual intercourse with you and have that prolonged. This is particularly so given a number of factors too. Firstly, she was a married woman who just came to see her brother following problems with her husband. A normal thinking human being would not want to get into another problem and worsen the one already existing particularly in the domestic setting whilst on her way to see her brother. Secondly, she had no prior sexual or boyfriend and girlfriend relationship with you. As such, if indeed she did as you claim, then she must have been out of her mind. She did not give me any impression in Court that she was someone capable of losing her mind and or was in fact out of her mind at the relevant time. Logic and commonsense dictate that no total strangers passing each other for the first time on the road would easily end up in a consensual sexual intercourse on the side of the road. Thirdly, I cannot possibly believe that given her, being a married woman who just had a problem with her husband could afford to get into a prolonged sexual intercourse when there was a serious risk of discovery by other users of the road. Fourthly, I have come to deal with a few sexual offence cases. Damage to clothing or physical injury to a female is consistent with a forceful sexual attack as opposed to a consensual one. Given that, in your case, I find it hard to believe that the victim could have had her blouse torn in the process of your claimed consensual sexual intercourse with the victim. In any case, if that is what happened, you do not say that in your statement. Finally, you admit to carrying a bush knife. This confirms the victim’s evidence of you using a bush knife against her to commit the offence on her.

In view of the foregoing, I find that, your story per your unsworn testimony is incredible. I therefore reject it. This leaves me with the testimony of the victim supported in part by your own statement, the second State witness and other evidence before the Court. I find the version of the incident presented by this evidence credible, because it is logical and is consistent with an act of rape rather than a consensual affair. No sworn testimony is before me rebutting this story. In these circumstances, I find that the State established beyond any reasonable doubt that, you forcefully had sexual intercourse with the victim. Consequently, I find that the State established the charge of rape against you. Accordingly, I return a verdict of guilty against you on the charge of rape contrary to s. 347 of Criminal Code. I therefore order your remand in custody pending your sentence, and order an appropriate warrant of commitment in those terms.
______________________________________________________________________
Lawyers for the State:			Public Prosecutor
Lawyers for the Accused:		Public Solicitor