N2852

PAPUA NEW GUINEA
[In the National Court of Justice]

CR 816 of 2004

THE STATE

-ats-

JACOB SEIGU

Madang: Sevua, J
2005 : 6th, 20th, 21st & 22nd April

CRIMINAL LAW – Rape – Practice and Procedure – Submission of no case to answer – Relevant principles – No case distinguished from discretion to withdraw case from jury.

Cases cited in the judgment:
The State v. Roka pep No 2 [1983] PNGLR 287
The State v. Paul Kundi Rape [1976] PNGLR 97

Counsel:
Mr. Ruarri for State
Mr. Wadau for Accused

22nd April 2005

SEVUA, J: The accused is indicted with two counts of rape. On the first indictment, he is charged that on a date in June 2003, he committed rape upon one JB . On the second indictment, he is charged that on 23rd January 2004, he committed rape upon the same prosecutrix.

The State called and adduced sworn evidence from the prosecutrix, her parents and a Health Extension Officer.

At the close of the case for the prosecution, the defence made a no case to answer submission. As I understood, the submission is based on what is normally called the second limb of the test in a no case to answer submission, which involves the exercise of the Judge’s discretion.

In essence, the evidence from the prosecutrix on the first charge is that she was a student at Saussi Primary School in 2003 and was residing at a domestic quarter near the accused’s house at Koroba, Walium District with five other girls, all of whom were attending school. That arrangement was entered into because the girls’ villages were quite far to walk to the school. In relation to the prosecutrix, she said the accused went and talked with her parents to allow her to live with or near the accused to attend school because Nere, the usual place of residence of the prosecutrix and her parents was far from the school and so the parents agreed to that arrangement. The accused is related to the mother of the prosecutrix as a nephew. On an unknown date, but sometime during a night in June 2003, the accused called the prosecutrix out from the house. As she also wanted to urinate, she came out. The accused pulled her down from the steps and onto the rear of the house and raped her. She did not tell any one until January 2004, when she told her parents after the alleged incident of rape, the subject of the second indictment. She did not go to the nearest clinic or to Madang Hospital for medical examination. She said the accused threatened to kill her if she told anyone and his wife would beat her up.

It may have been true that the proseciutrix was raped by the accused however I am not impressed with the prosecutrix and her sworn testimony. I observed that she started well in her evidence in chief and I thought she was doing well in her evidence although she hung her head down most of the time. I do no measure that against her. It is not unusual in a rape trial that a victim feels embarrassed and uncomfortable telling the Judge, lawyers and members of the public in Court what had happened to her. 

However that aside, I am not sure if she was indeed raped by the accused. By her own evidence, she would have been 12 or 13 years then as she said she is now 15 years old although her father said in his evidence that she is 14 years old. Rape is a very serious sexual offence which often involves a degree of force and violence to achieve the desired result. For a girl of tender age, one would have expected that she would have reported the incident to her parents or the school principal or a teacher. But in this case, she did not complain to any one let alone her parents, who in my view, should have been the first people to receive a complaint, in normal circumstances. Whilst the Court acknowledges that she was living near the school that she attended, which was approximately 3 to 3½ hours walking distance each day, she normally visited her parents at weekends. Therefore, the opportunity to complain about the rape to her parents existed. However, I am quite surprised that she did not complain. Even if she was afraid because she said she was threatened by the accused, I am sure that had she reported or complained to her parents, they would not have allowed her to return to live near the accused and most likely, the parents would have reported the matter to the police. As it were, a serious allegation of rape had gone by without a complaint and I find this quite unusual for a young girl of her age.

In the final upshot, it is the prosecutrix’s evidence against the accused, which if believed and accepted as true, would result in a conviction for rape. In my view, the credibility of the prosecutrix and most importantly, the veracity of her evidence are relevant considerations in this trial. The Court will have to determine this matter in the light of the fact that there is no evidence of a recent complaint, no evidence of corroboration although not required as a matter of law and no medical evidence. All these and other matters are important in a sexual allegation, for it is easy to make, but sometimes hard to prove.

In relation to the second charge, it is the prosecution’s case that on 23rd January 2004, the prosecutrix had gone to the garden not very far from their house to collect some banana and greens between 9 and 11 am when she was accosted by the accused who grabbed her by her right shoulder and forced her onto the ground then raped her after removing her clothes. Later she took her bilum and went home crying to her father who was under their house. The father, who also gave evidence, said he was still in the vanilla garden when the prosecutrix cried to him and he had observed that the prosecutrix had dirt and grasses on her clothes on the back, and also there were dirt and grasses on the back of her head. After calling his wife from another garden and telling her, he took the prosecutrix to the Madang General Hospital the same day in the afternoon for medical examination, which was conducted late evening on the same day. They also went to Yomba Police Station to report the matter and this was prior to going to the hospital.

At the hospital, the prosecutrix was examined by a medical staff, who as it transpired from the evidence, was a graduate Health Extension Officer, then undergoing his residency training under the supervision of his tutor, and who gave sworn evidence as well. Of the many cases of rape that are brought to hospitals, I find it difficult to understand why a medical doctor did not conduct the examination as is usual in most cases except where the examination is carried out in a Rural Health Centre or Clinic, and usually by an experienced Health Extension Officer or a registered Nursing Sister. As it were, the medical examination was carried out by a trainee HEO whose evidence is quite pathetic and unreliable to say the least.

The Health Extension Officer said he conducted a general examination of the prosecutrix and then carried out an examination of her vagina. He observed that the victim’s hymen was torn although the size of the tear was not given, and from my experience in many rape trials that have come before me, an examining doctor would have measured the size of the tear or give an estimate size of it. The HEO also gave evidence that he observed some spots of blood on the vagina. He took a swab and sent it to the laboratory for a test to determine the existence of spermatozoa in the vagina. The result of the test is not in evidence. The HEO’s written report of his examination and findings is not in evidence. He also observed that the prosecutrix had dirt and dust on the back of her clothes and also observed dirt and grasses on the back of her hair. These aspects of the HEO’s testimony support the evidence of the prosecutrix’s father. However, on cross examination, the HEO said he did not find any foreign matter around the anus and vagina area. The observation I make here is that if there was mud and dirt on the clothes of the prosecutrix, one would have expected mud and dirt on her buttocks as well because she said she was striped naked and was laid face up on the ground. But if there was mud or dirt, there is no evidence of that.

At this juncture, the Court wishes to express some concerns at the manner in which the medical examination was conducted resulting in the absence of written reports of the examinations and the findings and the necessary medical opinion in this case. There is no confirmation of any significant finding and no opinion as to whether there was penetration and sperm found in the prosecutrix’s vagina to support her evidence of penetration. These are very important aspects of evidence in a rape trial however, that is a matter for the prosecution because it has the onus of proof, and if there is lack of essential medical and other evidence, the Court will have to make the necessary findings and draw the relevant inferences to reach a conclusion. I say no more on my concerns.

There is one aspect of the evidence which will become important when all the evidence for the prosecution is considered together with the law on no case submission. That is, in cross examination, the prosecutrix admitted that she had sexual intercourse with Sean Seigu who is the accused’s son. They were boy/girl friend. Upon being asked by the Court, she confirmed that she had had sexual intercourse with Sean Seigu sometime in 2003, after the alleged rape incident in June 2003.

In essence that is all the evidence in the State’s case. And as I alluded to earlier, the defence has made a no case to answer submission at the close of the case for the prosecution. In that submission, Mr. Wadau, counsel for the accused, relied on the principles of a no case submission in the Supreme Court decision in The State v. Roka Pep No 2 [1983] PNGLR 287. Those principles are:

Where in criminal proceedings at the close of the case for the prosecution, there is a submission of a no case to answer, the matter is a question of law for the judge as a tribunal of law; the test is whether the evidence supports the essential elements of the offence.

Where the tribunal decides there is no case to answer the accused is acquitted and that is the end of the matter.

Where the tribunal decides there is a case to answer, it nevertheless has a discretion to stop a case at the close of all the evidence in appropriate circumstances; this discretion is exercisable where there is a mere scintilla of evidence and where the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it.

The State v. Paul Kundi Rape [1976] PNGLR 96 adopted and applied. (Per Kidu, CJ., Kapi DCJ., Andrew and Kaputin JJ.)

A tribunal should make a finding of no case to answer where (a) there is no evidence to establish an element of the offence charged; or (b) there is some evidence covering the elements of the offence charged but it is so tenuous or incredible or discredited that it amounts to a scintilla, and thus could not be accepted as persuasive by any reasonable person. (Per Pratt, J.)

On the basis of these principles, counsel for the accused submitted that whilst there may be some evidence against the accused, such evidence is inconsistent and unreliable that it amounts to a scintilla therefore no reasonable tribunal could convict on it. The accused should accordingly be acquitted of both charges.

In this case, I have considered the evidence of the prosecutrix and the other three prosecution witnesses. I find that there is some evidence against the accused which the Court could call on him to answer both charges. However, it is my view that the accused’s evidence will not improve the State’s case. On the basis of what is commonly known as the second limb of the test in Paul Kundi Rape (supra) the question is whether the accused should be called upon to answer the charges.

I consider that the prosecution’s evidence in respect of the first charge is a mere scintilla. As I have observed, there was no complaint, no medical examination and no corroboration, although corroboration is not required as a matter of law. To my mind, the prosecutrix’s evidence on the first count is a mere assertion that she was raped. Can the Court believe and accept her evidence? In my view, the evidence on the first count of rape is so lacking in weight and reliability that it would be unsafe to convict on it.

In relation to the second count, the medical evidence or rather the oral evidence of the Health Extension Officer which seems to lend some support to the evidence of the other three State witnesses on the aspect of the dirt, grasses etc. clearly suggest that there is some evidence against the accused. Indeed the prosecutrix said that the accused pushed his penis into her vagina and told her he was ejaculating. So there is some evidence of penetration. The evidence of the father and Health Extension Officer of the dirt and grasses found on the clothes of the prosecutrix and on her hair supports the prosecutrix’s own evidence that she was forced onto the ground and raped.

However, there is one very important medical aspect of the evidence of penetration that makes the whole case for the prosecution unreliable and I will refer to that issue now. It is the prosecutrix’s own testimony on oath that sometime after June 2003, she had had sexual intercourse with Sean Seigu, the accused’s son. She did not say how many times, but she did admit to having sex with the accused’s son after she said she was raped by the accused in June 2003. She would have therefore had sexual intercourse, at least, on two separate occasions, one when she said she was raped by the accused, and once after that incident when she had sex with the accused’s son. No doubt her hymen would have been torn during the first act of sexual intercourse in 2003. How then could the Health Extension Officer have found that on 23rd January 2004, he observed that the prosecutrix’s hymen was torn. I presumed it was a fresh tear because there is evidence of blood as well. From my experience in dealing with rape cases, or sexual penetration for that matter, the hymen is torn on the first act of sexual intercourse and not on subsequent acts of sexual intercourse. Although the defence counsel failed to pursue this issue, this is one medical issue that the Court finds it difficult to reconcile with the evidence of the prosecutrix.

The implication of that issue here is that it makes it difficult for the Court to rely on the evidence of the prosecution. It therefore goes to the question of the exercise of discretion which these authorities speak of.

It is therefore the opinion of the Court that the prosecution’s evidence in respect of both charges is such that it lacks weight and is unreliable that it is not safe to convict on it. Some aspects of the evidence are incredible that I cannot accept them as persuasive. In the exercise of my discretion, I will take the case away from the jury, a tribunal of fact, and not call upon the accused to answer the two charges.

Accordingly, I consider that the accused has no case to answer, and should be acquitted of the two charges of rape, and I so order. I further order that his cash bail of K200.00 be refunded to him.

Orders accordingly.

Lawyer for State : Public Prosecutor
Counsel : Michael Ruarri
Lawyer for Accused : Young Wadau Lawyers
Counsel : Young Wadau