N2952

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1031 of 2003

THE STATE

-V-

MOSES JAFISA WINGA (No.1)

WEWAK: 	KANDAKASI, J.
2005: 07th, 8th and 12th and 13th September

CRIMINAL LAW – PRACTICE & PROCEDURE – Presentation of indictment after change of law creating offence and penalty – Section 11 of the Criminal Code applicable – Effect of s. 11 considered – Indictment can be presented under new law but the penalty is subject to a consideration of maximum prescribed under the old law.

CRIMINAL LAW – PRACTICE & PROCEDURE – Sexual offence committed prior to change in the law – Requirement for corroboration in sexual offences and meeting of same - Recent complaint at the earliest available opportunity sufficient.

CRIMINAL LAW - Verdict –Rape of school girl by a relative - Complaint made some weeks later –Lack of medical report not fatal to prosecution case - Lack of direct corroboration – Need to warn of dangers of proceeding to convict in such circumstances - No reason to doubt victims’ evidence – Return of guilty verdict – Criminal Code s. 347.

CRIMINAL LAW – Sentence – Two rape incidents – Rape of school girl by a relative – Use of bush knife to threaten and secure rape – Conviction after trial – Age difference between offender and victim– First time offender – Prevalence of offence – Cumulative Sentence reduced – Sentence of 26 years in total imposed after applying totality in principle.

Cases cited: 
State v. Thomas Angup (21/04/05) N2830.
The State v. Tom Gaia (1986) N544.
Baza Tadu Avona v. State.
State v. Donald Angavia, Paulus Moi and Clement Samoka (No 2) (29/04/04) N2590.
The State v. Luke Sitban (No 1) (07/06/04) N2572.
The State v Pennias Mokei (No 1) (23/08/04) N2606.
The State v. Donald Angavia, Paulus Moi and Clement Samoka (No 1) (Unnumbered and unreported judgment delivered on 27 April 2004).
Counsels:
Mr. A. Kupmain for the State.
Mr. J. Mesa for the Prisoner.

12th September 2005

DECISION ON VERDICT

KANDAKASI J:	On Tuesday 07th September 2005, the State presented an indictment against you, charging you with two counts of rape contrary to s. 347 of Criminal Code as amended. You pleaded not guilty to the charge, which necessitated a trial, conducted on 7th and concluded on 8th of this instant. 

Preliminary Issue

The trial commenced with Counsel for the State, Mr. Kupmain, seeking to present the indictment charging you under the old s. 347 of the Criminal Code, which the Sexual Offences and Crimes against Children Act repealed and replaced. That law came into operation on 10th April 2003. I asked counsel whether that could be legally done in view of the repeal and replacement. Both the prosecution and defence counsel were of the view that, that could be done, without referring to any authority. I was not comfortable with that so I adjourned the matter to do a bit of research and inform myself.

My research took me to s. 11 of the Criminal Code and s. 63 of the Interpretations Act. These provisions respectively read:

"11.	Effect of changes in law.

(1)	A person cannot be punished for doing or omitting to do an act unless—

(a)	the act or omission constituted an offence under the law in force when it occurred; and
(b)	doing or omitting to do the act under the same circumstances would constitute an offence under the law in force at the time when he is charged with the offence.

(2)	If the law in force when the act or omission occurred differs from that in force at the time of the conviction, the offender cannot be punished to any greater extent than was authorized by the former law, or to any greater extent than is authorized by the latter law."
…
63.	Effect of repeal.

(1)	The repeal of a provision does not—

(a)	revive anything not in force or existing at the time at which the repeal takes effect; or
(b)	affect the previous operation of the repealed provision, or anything duly done or suffered under the repealed provision; or
(c)	affect any right, privilege, obligation, or liability acquired, accrued or incurred under the repealed provision; or
(d)	affect any penalty, forfeiture, or punishment incurred in respect of an offence committed against the repealed provision; or
(e)	affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment, and any such investigation, legal proceeding, or remedy may be instituted, continued or enforced, and any such penalty, forfeiture, or punishment may be imposed, as if the repeal had not been made".
						(Emphasis supplied)

My research also took me to my brother Justice Lay’s judgment in State v. Thomas Angup (21/04/05) N28301, which assisted me greatly. As His Honour pointed out, this Court in The State v. Tom Gaia, discussed s. 11 and s.63 of the Interpretation Act and the question of changes to both the offence and penalty. Again, as His Honour pointed out, the Supreme Court in Baza Tadu Avona v. State discussed the change in the penalty only. For the purpose of this judgment, I need not set out these discussions in any detail. 

However, proceeding on the basis of the discussions in the above cases, I note as did Justice Lay that:

"It is a threshold question to determine whether the charges should have been laid under the forms, which they took before amendment, preserved by s.63 of the Interpretation Act, or the new provisions applied in conjunction with s.11 of the Criminal Code. And in order to determine that issue, the Supreme Court said in Avona’s Case, I must decide if the provision is an amending one or a repealing one, as s.63 of the Interpretation Act applies only to the latter. To do that one looks at the substance rather than the form of the provision, the relevant provision being the Criminal Code (Sexual Offences and Crimes against Children) Act 2002."

In this case the new amended s. 347 reads:

"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."

Its predecessor read:

"347	Definition of rape

A person who has carnal knowledge of a woman or girl, not being his wife –

(a)	without her consent;
(b)	with her consent, if the consent is obtained –
(i)	by force; or
(ii)	by means of threats or intimidation; or
(iii)	by fear of bodily harm; or
(iv)	by means of false and fraudulent representations as to the nature of the act; or
(v)	in the case of a married woman, by personating her husband,
is guilty of the crime of rape.

Penalty:	Subject to Section 19, imprisonment for life."

I noted in The State v. Donald Angavia, Paulus Moi and Clement Samoka (No 2), that the amendment divided the penalty provision into two categories. The first being a simple act of rape whilst the second being aggravated rape attracting different range of sentences. The former attracts a sentence of up to 15 years, whilst the later attracts a sentence from 15 years up to a maximum of life imprisonment. Otherwise, the offence of rape remains the same as before apart from the issue of consent, which section 347A now defines in a manner that would render cases of consent no consent at all and thereby making conviction easier than it was under the old provision. I now also observe that, excluding rape of a wife from the coverage and the protection accorded to women and girls under the old provision has been removed to now cover rape of wives by their husbands.

In your case, I took the view, with both counsel’s concurrence that, because the amendments did not in fact repeal in terms of decriminalizing the act of rape, you could not be charged under the old s.347 preserved by s. 63(1)(e) of the Interpretation Act. Instead, you ought to be charged under the amended s. 347 and that is what happened because that provision has now been varied with the old provision no longer applying. 

The Evidence

In support of the charge against you, the State called two witnesses. These were the victim and her mother, whose names I will not mention for the protection of the victim. The victim was the main witness against you whilst the prosecution called the mother merely to corroborate the victim’s testimony. Their evidence is simple and straightforward.

The victim recalled you going to her parents in Yawasoro, just outside Wewak on two occasions and getting her to come with you to your village, Numbogu, isolated from any of the modern services and the nearest village. The first time was during her school holiday in term two and the second time was over the Christmas holiday period. This was in the year 2002. Before you took her away the second time, she refused to come with you but you managed to persuade her parents to allow her to come with you, by telling them that she could come with you and sell some cocoa and make some money for her school fees.

When she was with you, she says, you raped her twice, the first time was in the night of 26th and the second time during the night of the next day, 27th December 2002. She testified that, on both occasions at the relevant time, 11:00pm to 12:00 midnight, she was asleep in a room with her small brother who went along with her to your village and your small son. You opened the door to the room got in, grabbed her, forcefully removed her trouser and underwear with threats of violence using a bush knife. She tried to resist you but you overpowered her and proceeded to have forceful sexual intercourse with her. She tried to call for help but you shut her mouth and continued to threaten her so she was not able to call for any help.

She further testified that, on both occasions you hurt her causing her to sustain injuries to her vagina, resulting in her bleeding. She used a face towel to clean and prevent the blood from flowing after your first rape on her. She sat up the remainder of the night until the next day when she went to a nearby river and washed herself clean from the bloodstains. As for the second incident, she used a piece of laplap to clean herself and prevent the bleeding.

Additionally, the victim testified that, as your house was located in a very remote and isolated area, she could neither seek and get help nor run away. Furthermore, as she and her brother were of very tender age and vulnerable, they could not escape from your village after your rape of the victim. 

A few weeks later after your rape of her, she said you returned her and her brother to Yawasoro here in Wewak. Upon her return to her mother, who is the sister of your wife, the mother asked her if the victim enjoyed her holiday with you. The victim said she shook her head. This subsequently caused her mother to make further inquiries whereupon the victim told her about your acts of rape upon her. Initially, the victim’s mother did not believe the victim as she did not think you could do that to her because she was a daughter to you. However, when the victim produced a bloodstained piece of laplap (exhibit "E") and showed the injuries she sustained to her vaginal area, her mother believed her. Thereafter, she saw her aunt, a Elizabeth Finumbo, who gave her a course of amoxillian to cure the injuries she sustained and she took them.

The second State witness corroborated the victim on her later part of her testimony. Also the statement of Elizabeth Finumbo dated 3rd March 2003 (exhibit "D") admitted into evidence with your consent corroborates the victim’s testimony in relation to the medication she received from that witness. You did not challenge the truthfulness of these witnesses’ evidence, by consenting to its admission into evidence and thereby failing to establish any convincing foundation for a rejection of the victim’s and her mother’s testimony.

Your testimony without the support of any other evidence is that, you have been having consensual sexual intercourse with the victim from the year, 2001 up to the alleged dates of the offences. You also testified that, because your wife became suspicious of your relationship with the victim and raised the subject with the victim’s mother and the mother of the victim got on the victim, the victim came up with the rape story out of fear. Further, you testified that, the victim is from Madang and is of no relation to you, even though you are married to the victim’s mother’s sister. Other than this, your testimony supports that of the victim as to you going to fetch her from her parents, and your house being remotely located and away from any other home, village or people and you kept a watch over her on 27th December 2002.

Assessment of Evidence and Finding of Facts

I closely observed each of the witnesses’ performance in the witness box. I observed that the victim is a very young girl. She does not give me the impression that she is a mature girl. She appears very timid and shy but bright and having a good ability to recall things. She did not give me the slightest impression that she was making up a story or was lying under oath. Instead, she impressed upon me as a truthful witness giving a credible account of what happened to her, and the difficulties attending her in terms of seeking and getting help and or making a complaint almost immediately after your rape of her. Her account of reporting to the mother at the earliest opportunity of your rape of her and receiving medical assistance from her aunt are corroborated by the mother and the aunt’s evidence. Part of your own testimony as already noted corroborates her testimony in part.

When it came to your testimony and performance in the witness box, you gave the clear impression of someone lying under oath. One thing that immediately struck me was your total denial of the victim being related to you in any way. This obviously goes against the overwhelming evidence that, the victim is the daughter of your wife’s sister. Whether or not the victim was your sister in-law’s natural daughter, she was her daughter. According to our social structure and custom, the victim is clearly related to you. You nevertheless maintained that, she was not related to you.

The next thing that struck me was the appearance of the victim. As I already noted, she impressed upon me as a timid and shy person and very young. Therefore, I have serious doubts as to whether she was in any position to freely consent, if what you claim is correct. My doubts are strengthened by the fact that, you do not describe in any manner where and how you managed to secure the victim’s consent, then a very young, timid and shy schoolchild doing grade 8. Further, at the time, you were married to the victim’s aunt and was the older of the two of you and would appear that you would have persuaded her into having the two counts of sexual intercourse with you. Unfortunately, you do not state how you managed to persuade her to consensually, have sexual intercourse with you. 

In all of the circumstances and comparing and contrasting the credibility of the witnesses called by the parties, I am satisfied beyond any reasonable doubt that the State witnesses were credible witnesses. They therefore, gave a truthful account of what happened. On the other hand, I do not find you as a truthful witness for the reasons already outlined above. I therefore reject your evidence as incredible and unreliable.

In so doing, I note that your main submission against an acceptance of the State’s case is that, there is no medical report corroborating the rape story. The accused in The State v. Luke Sitban (No 1), made a similar submission and I rejected it. There, I found the lack of a medical report was not fatal because the accused after initially denying raping his victim, belatedly sought to blame another person for committing the offence. Recently, Cannings J., in The State v Pennias Mokei (No 1), found that the lack of a medical report was not fatal to the prosecution case, as the State adduced other credible evidence supporting a charge of sexual penetration. Earlier on, I arrived at a similar conclusion in The State v. Donald Angavia, Paulus Moi and Clement Samoka (No 1).

On the basis of these authorities, the lack of any medical report is not fatal to the prosecution’s case in your case. Even if there was a medical report, it would have been of no help because, that would have been obtained long after the occurrence of the offences. Further, the victim was in no position to immediately get to medical services and a report confirming your rape of her because you kept her in your village for a significant period of time after the commission of the offences.

Another submission you make is that, the victim made up the rape story to avoid punishment for having a series of sexual relations with you inclusive of the 26th and 27th of December 2002. There is however no evidence adduced by you or that of the prosecution that offers any support for this submission. Accordingly, I reject this submission.

Decision on Verdict

Before arriving at a decision on your guilt or innocence, I remind and warn myself that, it is dangerous to convict on the uncorroborated evidence of a victim of a sexual offence. In this case, there is some corroboration of the victim’s testimony from the victim’s mother and Elizabeth Finumbo’s statement. Further, all of the evidence of the State, which I have decided to accept as credible, clearly establishes beyond any reasonable doubt that, you raped the victim twice, the first on 26th and the second on 27th December 2002. You secured the rape of her by force using a bush knife to threaten the victim. I therefore, find that the State has established the charges against you on the required standard of proof beyond any reasonable doubt. Accordingly, I return a verdict of guilty on both charges. You will be remanded in custody until a decision on your sentence.
________________________________________________________

Lawyers for the State:				Public Prosecutor
Lawyers for the Accused:			Public Solicitor