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State v Balal (No 1) [2005] PGNC 134; N2820 (24 February 2005)

N2820

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. 689 of 2004

THE STATE

-v-

KOMAI BALAL (No. 1)

Madang: Manuhu, AJ

2005: February 22, 23 & 24.

JUDGMENT ON VERDICT

CRIMINAL LAW – Particular offence – Rape – Penetration –Analysis of oral evidence - Analysis of medical findings – Presence of pus and issue of penetration.

No case cited.

Counsel:

Mr. M. Ruarri, for the State.
Mr. L. Vava Jr., for the Accused.

24 February 2005.

MANUHU, AJ: The Accused, Komai Balal, was charged on one count of rape. It is alleged that on 22nd March 2004, the Accused, at Jelso, Madang, committed rape, upon one Jacobeth Komai, who is his own daughter of thirteen years.

The victim recalls that she was in the house with her father on 21st March 2004. The Accused approached her and wanted to have sexual intercourse with her, so she fled to her aunt’s house and over-nighted. The aunt is Margaret Kelti who also gave evidence for the prosecution.

On Monday 22nd March 2004, the Accused came to Margaret’s house. Upon sighting the Accused, the victim got scared and wanted to run and hide. The Accused saw this and ordered her to stop or that she would be killed. The victim stopped running. The Accused approached her and assaulted her. After that, the Accused went to speak to Margaret’s husband. At that time, the victim went into the bushes and hid himself in there.

Sometimes later, the Accused found her in the bushes and had sexual intercourse with her. She feared for her safety and submitted to sexual intercourse with the Accused. During the sexual intercourse, the victim felt pain and bled. The Accused then tied her up around her legs, stomach and hands. She was left in the bushes by the Accused. She was later found and rescued by Margaret and her daughter Serah. When she was found, her skirt had blood stains and soil.

The matter was reported to police on Tuesday 22nd March 2004. She was seen and checked by the doctor on 23rd March 2004 at 10:50 am. (I am ignoring apparent mistakes on date notations in the medical report). The report discloses relevantly that the victim had "washed" since the alleged rape; she had not yet seen her period; she appeared well; her face, neck, trunk, upper limbs and thighs were normal. Her vulva, perineum, mens veneris, hymen and introitus, vagina and fornicers, cervix, and rectum were normal. Samples were taken and observed but no spermatozoa were seen. The test result was negative.

The Accused denies ever having sexual intercourse with the victim. He denies tying her up. He said that he assaulted the victim on Sunday because she refused to cook for her brother. He assaulted her again at Margaret’s place because she might be impregnated by Margaret’s husband, who had done the same to the Accused person’s older daughter who had been adopted by Margaret. The victim fled into the bushes. The Accused said he went back to his house and never saw the victim again until his arrest on Wednesday.

When confronted with evidence of such contrast, that is, where there is disagreement by the only two persons who should know whether they had sexual intercourse, one of them must be telling lies deliberately. Either the Accused is telling lies or the victim is telling lies. I have observed the victim and the Accused. Between them, I am of the impression that the Accused is telling lies. His evidence was unimpressive; he contradicted himself and his explanations are unbelievable.

For instance, he admitted assaulting the victim on Sunday because she did not cook. He said he had never assaulted her in the past. He said he only hit her three times with a branch. If this was the case, the victim would not have fled to Margaret’s house. In addition, she would not have tried to run and hide on Monday when the Accused arrived. And, she would not have fled into the bushes. Something more serious must have happened for the victim to behave in such manner. Her behaviour is consistent with her own story that she was avoiding the Accused who was trying to have sexual intercourse with her.

Furthermore, it is nearly forbidden for a daughter to falsely allege that she was raped by her own father. The victim has just done that and she has done so quite well. She has described the details of what happened very confidently. I believe her story.

During final submissions, however, defence counsel raised a very interesting and important aspect of the evidence which had escaped our attention all the time. This important piece of evidence is crucial to the issue of penetration. The victim gave evidence that when the Accused had sexual intercourse with her, she felt pain and bled. Margaret confirmed her story that she saw blood on her skirt. It is therefore expected that the medical report will contain some information on lacerations or scars in and around the victim’s private parts. It is reported, however, that the victim’s private parts were "normal". One would think that if the private parts were normal, the victim could not be telling the truth about her feeling pain and bleeding at the time of sexual intercourse.

I am of the view however that the medical findings on the private parts can be explained. Firstly, the victim was not a virgin. She has given evidence that the Accused has had sexual intercourse with her in the past. She did not say how many times but that is probably not important. Secondly, she said she felt pain at the time of sexual intercourse but she did not explain how painful it was. I note that when Margaret rescued her, there is no evidence on whether she could walk properly or not. In other words, she may have felt some pain which explains the bleeding but the injuries may not have been very serious.

I am satisfied that there were some injuries but they were not obvious and serious. Such a finding is consistent with pus cells seen amongst the vaginal swab obtained and tested. I note that the victim was not having her period at that time. The existence of pus cells, therefore, can only be associated with vaginal injury. Such injury may not have been obvious to the naked eye at the time of medical examination but the discovery of pus cells speaks for itself. In other words, the existence of pus cells points to prior physical activity or sexual penetration of the vagina. The vaginal smears were collected a day after the alleged sexual penetration. If sexual penetration took place on Monday 22nd March, pus cells would be seen on Tuesday 23rd March.

For all the foregoing reasons, I am satisfied that someone sexually penetrated the victim on 22nd March 2004. The person who sexually penetrated the victim, I am further satisfied, is the Accused. The victim submitted to sexual intercourse with the victim only because she feared the Accused would harm her in the bushes. After the Accused had sexual intercourse with her, he tied her up and left her there to die. It is clear that at the time of sexual intercourse, the victim did not consent. Accordingly, I find the Accused guilty as charged.

Verdict: Guilty as charged.
________________________________________________________________________
Lawyer for the State : Public Prosecutor
Lawyer for the Prisoner : Paraka Lawyers