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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO 157 OF 2006
THE STATE
v
POLIKAP LAKAI
Kimbe: Cannings J
2007: 25, 26 July
16 August
CRIMINAL LAW – Criminal Code, Section 347 – trial – whether the complainant consented to sexual penetration by the accused.
A man was indicted for rape of a woman, his cousin-sister. He pleaded not guilty. It was the State’s case that the incident happened in a garden near their village. The complainant, who suffers from a degree of mental retardation, gave oral evidence that the accused sexually penetrated her on four occasions over a period of several years. The State also relied on the accused’s record of interview, a confessional statement, two medical reports and two witness statements. The accused gave sworn evidence, admitting that he had sex with the complainant but claiming that it was consensual.
Held:
(1) The central issue is consent or lack of it.
(2) The complainant’s evidence was generally credible but key aspects of it, in particular the train of events that led to the accused being charged, were difficult to follow and there was no clear evidence of a recent complaint.
(3) There is no longer any requirement for the court to warn itself as to the danger of convicting based on the uncorroborated testimony of a complainant.
(4) There was sufficient evidence for the court to be satisfied beyond reasonable doubt that the accused sexually penetrated the complainant. However, there was a reasonable doubt as to lack of consent.
(5) The accused was found not guilty of rape.
Cases cited
The State v James Yali (2005) N2988
The State v Jimmy Aiyo CR No 147 of 2005, 28.09.06
The State v Alex Matasol Hagali CR No 928 of 1997, 28.09.06
TRIAL
This was the trial of an accused charged with rape.
Counsel
F Popeu, for the State
B Tanewan, for the accused
VERDICT
16 August, 2007
1. CANNINGS J: Polikap Lakai, the accused, is a 31-year-old married man from Banaule village in the Hoskins area of West New Britain Province. He is charged with one count of rape of the complainant, a 20-year-old woman, also from Banaule. The complainant is his cousin-sister. The accused was also charged with incest but that charge has been dropped. The accused has pleaded not guilty to rape, the only charge before the court.
2. The offence was allegedly committed at a garden near Banaule in January 2005. It was the State’s case that the accused followed the complainant, threatened her with a knife then sexually penetrated her without consent.
3. The accused gave sworn evidence admitting that he had sex with the complainant but claiming that it was consensual.
THE OFFENCE
4. The accused has been charged under Section 347 of the Criminal Code (definition of rape) which states:
(1) A person who sexually penetrates a person without his [or her] 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.
5. The indictment does not allege any circumstances of aggravation so the State only has to prove two elements: sexual penetration and lack of consent. The first is a non-issue. The accused agrees that he had sex with the complainant. That leaves lack of consent as the key issue.
EVIDENCE FOR THE STATE
6. The State’s case was based on the following evidence:
THE COMPLAINANT’S ORAL TESTIMONY
7. She said that she is of mixed Oro and Banaule parentage and has been living at Banaule since she was a child. She recalled an incident in which she was in the garden and the accused took her into the bushes. That incident was in 2005 or 2004, her answers to questions about the date of the incident being unclear.
8. In 2006, there was another incident. She was returning from the creek and the accused took her into the bushes again. In 2007, when she was urinating near her home, the accused took her into the bushes again.
9. Asked about the incident in the garden, she said that the accused pulled her by the hand into the bushes and did bad things to her. He laid her on the ground, removed her trousers and put his penis into her ‘thing’. The complainant was embarrassed when giving this part of her evidence. She said the name for her thing in Tok Ples was pipi and in Tok Pisin, kapipi.
10. Asked again where and when the incident happened, she said it was in Hubert Drako’s garden and it happened in January 2004. She did not consent to what he did. She did not know the accused was there. He just came from behind and pulled her into the bushes. The incident near the river happened in 2006.
11. In cross-examination, the complainant denied that the accused had asked her for sex. He just approached her from behind and scared her as he had a knife. She denied removing her clothes by herself. He took her trousers off. There was no agreement to have sex. She struggled but he held on to her hand.
12. When she told him that she would report him to her parents he said he would stab her. Mr Tanewan suggested that she only told her parents about having sex with the accused when they found out that she was pregnant. She agreed that her parents got angry when she was pregnant and that is when she told them the story of what happened.
13. Asked by Mr Tanewan if it was in 2005, not 2004, that the accused had sex with her in the garden, the complainant replied yes.
THE ACCUSED’S RECORD OF INTERVIEW AND CONFESSIONAL STATEMENT
14. Both were dated December 2005.
15. In his police interview the accused agreed that he had sex with the complainant, but it was only once and with her consent. He denied threatening her with a bushknife.
16. His signed confessional statement was to similar effect. He had sex with the complainant only once. He was in the garden collecting dry coconut leaves when the complainant asked him to make love to her. He initially said no but she insisted so he took her into the bushes and had sex with her.
THE MEDICAL REPORTS
17. The first is dated 3 February 2005. It was prepared by a health extension officer, Ismael Robert, and concerns the complainant’s mental status. It says that the complainant has been mentally retarded since the age of 10 years, following a malarial attack. On 20 January, 2005 she was admitted to Valoka health centre (in the Hoskins area) for an "incomplete abortion". The complainant was examined in the following areas: central nervous system, thought content, mood, cognitive status, perception and insight. After full examination with a psychiatry sister, Mr Robert concluded that the complainant was "mentally retarded with partial mental impairment".
18. The second is dated 10 November 2005 and states that the complainant was on that day 16 weeks pregnant. On examination, she was conscious and not in distress.
THE WITNESS STATEMENTS
19. One statement is by a 29-year-old Banaule woman, Margaret. The other is by the complainant’s mother. Both concern an incident on a Saturday in July 2005.
20. Margaret says she saw the complainant come out of the bushes with dry leaves and soil on her back and her hair and suspected that someone had had sex with her.
21. The mother says that she questioned her daughter about what happened to her as she had dirt on her hair and body. When it was clear that she was pregnant, the complainant told her that the accused had sex with her several times.
THE DEFENCE CASE: THE ACCUSED’S SWORN EVIDENCE
22. The defence case consisted solely of the accused’s sworn evidence.
23. He is married with four children. There was an incident in January 2005. He went to the garden to collect dried coconut fronds to make a fire. He met the complainant, asked her for sex and she said "that’s OK". She walked ahead of him to a spot where no one could see them, they took off their clothes, then they had sex. He had no knife. After that, they each put on their clothes. She went to her garden and he went to his garden.
24. In cross-examination, Mr Popeu put it to him that if he was collecting coconut leaves he would have had a bushknife with him, to break off the bottom part of the leaves. He replied that he was collecting the whole leaves.
25. The accused agreed that he is closely related to the complainant and by custom forbidden from having sex with her; that he is married; that the complainant is mentally retarded; that she would know what she was doing; and that he just wanted to have sex with her.
26. However, he denied not caring whether she consented or not. He repeated his evidence-in-chief: she said it was all right and that’s why they had sex.
THE ISSUES IN DETAIL
27. The nature of the evidence and submissions of counsel give rise to these issues:
28. In light of the answers to those questions, I will address the key issue set out at the beginning of this judgment:
1 WAS THE COMPLAINANT’S EVIDENCE CREDIBLE?
29. The complainant suffers from a degree of mental retardation. This is an undisputed fact, borne out by the first medical report and her demeanour in the witness box. She appears to be a ‘simple’ person. She was embarrassed in giving answers to the personal questions that were by necessity asked of her. There were long pauses before answering some questions but I did not regard this necessarily as an indication that she was not telling the truth. It seemed more a product of her character and personality. Her degree of retardation is not such that she was unaware of the nature and purpose of the court proceedings or of the nature and importance of telling the truth. She was a competent witness and no objection was taken to the admissibility of her evidence.
30. She testified that the accused had sexually penetrated her on a number of occasions but the details of each incident were sketchy, and that included the time they happened. She was asked four times when the incident in the garden took place. Twice she said it was in 2004 and twice she said 2005.
31. Her evidence as the issue of consent was, by contrast, clear and consistent: she did not consent, she struggled and the accused threatened her with a knife.
32. The complainant was neither an obviously unreliable witness nor a very credible witness. The way that she told her story made it believable but not absolutely so.
33. No, not significantly.
34. The accused’s record of interview and confessional statement give roughly the same version of events he gave the court in his sworn evidence: he and the complainant had consensual sex.
35. The report on the complainant’s mental state is general and does not add much to what any reasonable observer would discern from the complainant’s oral testimony. She is a simple, young woman, with a degree of mental retardation but not so much as to make her incapable of knowing what the court proceedings were about. The other medical report simply states that in November 2005 – ten months after the incident in which the accused allegedly raped her – the complainant was four months pregnant. This suggests that she had been sexually penetrated by a male person in about July 2005, perhaps by the accused. The report does not advance the State’s case that she was sexually penetrated in January 2005.
36. The two witness statements relate to an incident in July 2005, not January 2005 which is when the alleged rape took place. The witness statements do not advance the State’s case, they detract from it. They leave open the inference that the complainant had consensual sex with someone, perhaps the accused, on that occasion. Neither of the persons who made the statements – Margaret and the complainant’s mother – alleged that the complainant had been raped. The concern was more that someone had sex with her and, in the case of the mother, the concern was specifically that the accused had sex with the complainant, his cousin-sister, and made her pregnant.
3 ARE THERE GAPS IN THE EVIDENCE THAT GIVE RISE TO DOUBT ABOUT ACCEPTANCE OF THE COMPLAINANT’S EVIDENCE?
37. Yes. There is no evidence of a recent complaint, ie neither the complainant nor anyone else made a complaint to the police, the hospital or anyone else soon after the alleged rape occurred in January 2005. There is no evidence that the complainant was physically or emotionally distressed at that time or that there were any telltale signs of rape apparent then. Mr Popeu in his closing address submitted that the lack of a recent complaint was explained by the complainant’s evidence that the accused had threatened to stab her if she reported what had happened. It is correct that that was the complainant’s evidence but I thought that that part of her evidence was vague and not entirely convincing.
38. The State presented no circumstantial evidence to corroborate the complainant’s evidence and I thought that this was a case that, in view of the shortcomings in the complainant’s evidence, required corroboration.
39. In saying that I am mindful of Section 229H of the Criminal Code (corroboration not required) which states:
On a charge of an offence against any provision of this Division, [Division V.7, (sexual offences and abduction)] a person may be found guilty on the uncorroborated testimony of one witness, and a Judge shall not instruct himself that it is unsafe to find the accused guilty in the absence of corroboration. [Emphasis added.]
40. I am therefore not required and not allowed to instruct myself that it is unsafe to find the accused guilty in the absence of corroboration. I am not giving myself such a warning but pointing out that in this particular case, corroboration was desirable. The lack of corroboration means that there are gaps in the evidence, giving rise to doubt about acceptance of the complainant’s evidence.
4 WAS THE ACCUSED’S EVIDENCE CREDIBLE?
41. Not entirely. His demeanour in the witness box meant that he presented neither as an obviously unreliable nor as an impressive witness. He stuck to the story that he had told the police: they only had sex once and it was consensual. There was an inconsistency between his confessional statement and his oral testimony. He told the police that the complainant asked him to make love to her. He told the court that he asked for sex. However, the differences in his stories were not put to him in cross-examination so nothing much turns on them.
5 DID THE COMPLAINANT CONSENT TO SEX WITH THE ACCUSED?
42. Consent is defined by Section 347A(1) of the Criminal Code. It means free and voluntary agreement. Circumstances in which a person does not consent include those set out in Section 347(A)(2):
(a) the person submits to the act because of the use of violence or force on that person or someone else; or
(b) the person submits because of threats or intimidation against that person or someone else; or
(c) the person submits because of fear of harm to that person or to someone else; or
(d) the person submits because he is unlawfully detained; or
(e) the person is asleep, unconscious or so affected by alcohol or another drug so as to be incapable of freely consenting; or
(f) the person is incapable of understanding the essential nature of the act or of communicating his unwillingness to participate in the act due to mental or physical disability; or
(g) the person is mistaken about the sexual nature of the act or the identity of the person; or
(h) the person mistakenly believes that the act is for medical or hygienic purposes; or
(i) the accused induces the person to engage in the activity by abusing a position of trust, power or authority; or
(j) the person, having consented to engage in the sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity; or
(k) the agreement is expressed by the words or conduct of a person other than the complainant.
43. The court also has to have regard to the factors set out in Section 347A(3):
(a) the fact that the person did not say or do anything to indicate consent to a sexual act is normally enough to show that the act took place without the person's consent; and
(b) a person is not to be regarded as having consented to a sexual act just because—
(i) he did not physically resist; or
(ii) he did not sustain physical injury; or
(iii) on that or an earlier occasion, he freely agreed to engage in another sexual act with that person or some other person.
44. Mr Popeu submitted that the court should believe the complainant who was adamant that she did not freely and voluntarily agree to have sex with the accused. Though there were some inconsistencies in her evidence, the court must take into account her mental state; and no adverse conclusions about the veracity of her evidence should be drawn from her peculiar demeanour. If the court is inclined to conclude that there appeared to be some agreement on her part to have sex, it should pay close regard to Section 347A(2)(b): there is evidence that the accused threatened the complainant with a knife. Section 347A(2)(f) is also relevant: the complainant was incapable of communicating her unwillingness to participate in the act of intercourse due to her mental disability.
45. As I pointed out in The State v James Yali (2005) N2988, in a rape case it is not a simple matter of deciding who to believe. An accused cannot be convicted only on the basis of suspicion or belief on the part of the tribunal of fact (the court) that there was no consent. (Also see The State v Alex Matasol Hagali CR No 928 of 1997, 28.09.06 and The State v Jimmy Aiyo CR No 147 of 2005, 28.09.06.)
46. The court’s task is, rather, to determine, having weighed all the evidence and considered that there are reasonable grounds for believing the complainant’s evidence, whether it is satisfied to the required criminal standard of proof – beyond reasonable doubt – that there was no consent. If there is a reasonable doubt about lack of consent, the court is obliged to acquit the accused.
47. Here, I have weighed all the evidence. I have taken full account of the complainant’s mental state. I tend to believe her evidence. However, there is insufficient evidence that he threatened her with a knife. There is also insufficient evidence to conclude that the complainant’s mental incapacity meant that she was incapable of indicating her unwillingness to have sex with the accused. Sections 347A(2)(b) and (f) therefore do not apply. I have considered the matters set out in Section 347B, which in this case favour neither the prosecution nor the defence.
48. Though I tend to believe the complainant’s evidence, the complainant was not an entirely convincing witness. The other evidence adduced by the State did not advance its case significantly. The lack of corroboration of the allegations meant that there were gaps in the evidence. The accused gave sworn evidence and stuck to the story that he told the police. There are reasonable grounds for suspecting that the accused had sex with her without her consent. However, that is not a lawful basis on which to enter a conviction for rape. I conclude that a reasonable doubt remains as to lack of consent. That element of the offence has not been proven beyond reasonable doubt.
VERDICT
49. The accused is acquitted of rape.
Verdict accordingly.
____________________________
Public prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Accused
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