N3687

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 722 OF 2006

THE STATE

V

PHILIP KILA

Madang: Cannings J

2008: 7, 8 May, 4 September, 27 October

CRIMINAL LAW – rape – trial – Criminal Code, Section 347 – whether the complainant consented – whether the accused had an honest and reasonable belief that the complainant consented – whether circumstances of aggravation proven.

A policeman was indicted for the rape of a 19-year-old woman. The State alleged that he committed the offence during the course of a police raid of a village. Two circumstances of aggravation were alleged: that the accused was armed with a firearm and that he was in a position of trust and authority. The accused admitted that he had sex with the complainant but said that he asked her first and she consented. In the alternative, he raised the defence that he honestly believed she consented. 

Held:

(1)	The complainant was a more impressive witness than the accused and it was proven beyond reasonable doubt that she did not consent. 

(2)	For the defence of honest belief in consent to operate, an accused must rely on the defence of mistake of fact under Section 25 of the Criminal Code, which requires that he held an honest and reasonable belief in consent. The State proved beyond reasonable doubt that he neither honestly nor reasonably believed that the complainant consented.

(3)	The State proved the existence of the two circumstances of aggravation charged in the indictment.

(4)	The accused was accordingly convicted of rape committed in circumstances of aggravation under Section 347(2) of the Criminal Code. 

Cases cited

The following cases are cited in the judgment:

DPP v Morgan [1975] 2 All ER 347
Java Johnson Beraro v The State [1988-89] PNGLR 562
R v Nikola Kristeff (1967) No 445
R v Ulel [1973] PNGLR 254
Rolf Schubert v The State [1979] PNGLR 66
The State v Alex Matasol Hagali CR No 928 of 1997, 28.09.06
The State v James Yali (2005) N2988
The State v Jimmy Aiyo CR No 147 of 2005, 28.09.06
The State v John Kalabus & Aita Sanangkepe [1977] PNGLR 87

TRIAL

This was the trial of an accused charged with rape.

Counsel

J Wala, for the State
J Kolkia, for the accused

27 October, 2008

1. CANNINGS J: Philip Kila, the accused, is a 38-year-old police officer based in the Transgogol area of Madang Province. He has been indicted on a charge of rape, committed in circumstances of aggravation. The State alleges that in the early hours of 17 October 2005 he was engaged in a police operation that involved the raid of Garaty village in the Bogia District, searching of premises and apprehension of suspects. He entered a house and found the complainant, a 19-year-old woman, there, threatened her with the firearm he was carrying, then sexually penetrated her without her consent.

2. The accused admits that he had sex with the complainant but denies that he is guilty of rape. He says that he asked her first and she consented. If the court finds that she did not, in fact, consent, he says that he is still not guilty of rape as he had an honest and reasonable, though mistaken, belief that she did consent. 

THE EVIDENCE

3. The State's case was based on the following evidence:

•	oral testimony of the complainant;
•	oral testimony of the complainant's 10-year-old brother, who said he witnessed the incident;
•	oral testimony of a police officer about the location of the complainant's house;
•	six pieces of documentary evidence: a statement by the complainant's father, three pieces of medical evidence, a statement by the police investigating officer and the accused's record of interview.

4. For the defence, the accused gave sworn evidence.

ISSUES 

5. 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.

6. The indictment alleges two circumstances of aggravation: that the accused was armed with a factory-made shotgun and that he was in a position of trust and authority. 

7. To obtain any conviction for rape under Section 347(1), the State must prove two things beyond reasonable doubt:

•	the accused sexually penetrated the complainant; 

•	without her consent.

8. In this case, the accused has given evidence of a mistake of fact (which is his defence, if the State proves that the complainant did not consent). The State must therefore prove one more thing:

•	the accused did not have an honest and reasonable belief that she consented. 

9. To obtain a conviction for aggravated rape under Section 347(2), the State must prove, in addition to those three things, the existence of either or both of the aggravating circumstances charged in the indictment:

•	the accused was armed with a factory-made shotgun; 

•	he was in a position of trust and authority. 

10. The accused does not dispute that he sexually penetrated the complainant by inserting his penis into her vagina. So the issues are:

1 Did the complainant consent?

2 If she did not consent, did the accused have an honest and reasonable belief that she consented?

11. If either of those issues is answered yes, the accused will be acquitted. If the State proves, however, that the answer to both of them is no, the accused will be, at least, convicted of rape under Section 347(1). The final issue will be:

3 Were there aggravating circumstances, as charged in the indictment?

12. If that issue is answered yes, the accused will be guilty of aggravated rape under Section 347(2). If it is answered no, he will remain convicted under Section 347(1). 

FIRST ISSUE: DID THE COMPLAINANT CONSENT?

13. The State bears the onus of proving beyond reasonable doubt that she did not consent, ie that she did not freely and voluntarily agree to have sex with the accused (as per the definition of consent in Section 347A(1) of the Criminal Code). To determine whether that onus has been discharged, I will begin by summarising the evidence adduced by the State and then summarise the accused's evidence. After that, I will make an assessment of the credibility of the witnesses' evidence and then consider the submissions of counsel before drawing a conclusion.

The complainant's evidence

14. She has lived in Garaty village all her life. She is now married. She was asleep in the family home in the early hours of 17 October, 2005. The police came and woke up her father and mother as they were looking for her brother, "S", who was a suspect in a criminal investigation. Her mother and father went away to talk to the police. After that, while she and her small brother, "M", were alone in the house, a policeman knocked on the door of her room. He pointed a gun at her and told her to come out of her room. She was already awake at that stage and had been listening to what was going on. The policeman told her to remove her trousers. Then he had sex with her on the floor. He talked rough to her. She was afraid he might shoot her. Her brother saw what happened. She did not agree to have sex with him. She was frightened as he pointed the gun at her. So she gave her body to him. She had not seen him before the incident. She did not know who he was. He was a complete stranger. After he finished, he left the house and went to the main road. She went into her room and cried. Her brother was also frightened. She told her parents when they came back. They told their relatives and then they went to the main road and she identified the accused there. He was on the back of the vehicle. The police were wearing police uniforms and carrying guns. By the time they went to the main road, it was daybreak, about an hour and a half after the incident in the house. Later that morning she went to the hospital, the Bunapas Health Centre at Bogia. She was single and 19 years old. She got married in 2006. Nobody else had sex with her that morning. In the courtroom, she identified the accused as the policeman who had sex with her. 

15. In cross-examination she agreed that she was in the house at 4.00 am when the accused knocked on the door. Her small brother was in the room with her. The policeman asked her if she was married or single. She said she was single. He said that he wanted to sleep with her but she did not give him permission. He asked her if she was wearing only trousers. She told him that she was wearing both trousers and panties. She denied telling the policeman to follow her to another room. He told her to go to the other room, so she did that, while she was crying, and that is where he had sex with her. She agreed that she took her trousers off. She did this as he was pointing the gun at her and telling her what to do. There was no light in the house but there was moonlight coming into the house. There are no other houses nearby. Her uncles and aunties live some distance away. Defence counsel, Mr Kolkia, asked her how far her house was from the main road. 16. She had difficulty answering this question. She went to school, to grade 8, but found it hard to calculate distances. When pressed as to how many metres it was, she said 20. She did not scream or shout for help as she did not think people would hear. She was scared. She had all kinds of thoughts going through her mind. She did not struggle against him as she was afraid he might shoot her. This was her first time to have sex with a man.

17. In re-examination she said that she does not know the difference between metres and kilometres. You cannot see her house from the junction where the police vehicles were.

The brother's evidence

18. M is 10 years old. In view of his age, it was appropriate to conduct an inquiry to determine his capacity to comprehend the nature of truth. Upon answering questions from me and the prosecutor, he appeared to clearly understand the nature and purpose of the court proceedings, the reason he was in court and that the lawyers would ask him questions about what happened. He appeared to be a bright and intelligent child. He said that God would not be happy with him if he did not tell the truth. I considered Section 6 of the Oaths, Affirmations and Statutory Declarations Act Chapter 317. I also considered guidelines for reception of evidence by child witnesses given by the Supreme Court in Rolf Schubert v The State [1979] PNGLR 66 and Java Johnson Beraro v The State [1988-89] PNGLR 562. In Schubert the court stressed that the question of whether a child witness's unsworn evidence is admissible is a matter for the "good sense" of the court. In Beraro the court held that the trial judge erred when convicting an accused of wilful murder by shooting an innocent man in the Waigani Swam. Conviction was based on testimony of the victim's five-year-old son. The trial judge had no evidence before him from which he could conclude that the child understood that he could be punished if he told lies to the court. 

19. By contrast, in the present case, such evidence was clearly apparent from the age of the child (twice that of the witness in Beraro), his understanding of the proceedings, his evident intelligence and sharpness of mind and an express warning I gave him about being punished if he did not tell the truth. I was satisfied that he understood the meaning and importance of truth. He understood that he was obliged to tell the truth and could be punished if he did not tell the truth. Mr Kolkia raised no objection to his competence as a witness or the admissibility of his evidence. I concluded that he was a competent witness and his evidence, though unsworn, was admissible. Upon the suggestion of Mr Wala and the consent of Mr Kolkia, I allowed M's father to sit next to him, as a support person, while he was giving evidence. This was done in accordance with Sections 37B(1)(a) and (2)(b) of the Evidence Act. 

20. M said that he is in grade 1 at school. He recalls the incident of 17 October 2005. The police arrived at his house between 4.00 and 5.00 am. They went and picked up the boys. His mother and father had been told by the police to go up to the junction. Later one of the policemen came to the house and knocked on the bedroom door. The policeman pointed the gun at his sister and told her to remove her clothes. He saw what was happening and the policeman told him to go back into the room. He lay down and he felt the house moving. He saw the policeman having sex with his sister. This happened not in the bedroom but in another room. The policeman was wearing a police uniform. He still wore the uniform when he was having sex with his sister. He saw what the policeman was doing to his sister, then went back into the room. He was afraid when he saw the policeman inside the house. He did not clearly see the policeman's face but he could see that he was wearing a police uniform. When the policeman left, he stayed in his room, then his sister came in and started crying. She did not say anything. She was just crying. Daybreak came and he did not go back to sleep. When his father and mother came back, they saw her crying. She told their father what happened.

21. In cross-examination, M said that when his sister opened the bedroom door, the policeman told her to go to the other room. Asked whether the policeman asked his sister whether she was married or single, he said he did not know. He also did not know whether the policeman asked her if he could sleep with her. His sister did not say anything to the policeman. The policeman had knocked on the door and pointed the gun at her and ordered her to come out. Then he told her to remove her trousers. He saw the policeman sleeping on top of her. She did not shout or scream for help.

Sergeant Kursi's evidence

22. Sergeant Edward Kursi is from Bogia District. He knows Garaty village. He is aware of the incident over which the accused is being charged. He estimates that the distance from the complainant's house to the main road, where the police vehicles were, is 400 metres.

23. In cross-examination he said that he had not measured the distance, he was only estimating it. There is a gully between the complainant's house and the main road.

The father's statement 

24. He says that at 4.00 am he was asleep with his family in the house when the police came and woke them. They were asking about his son, S. He told them that S was not living with them, he was staying with his uncle. The police left and soon afterwards apprehended S. Later, one of the policemen came back to the house, holding a gun, saying that he wanted to search the house. He ordered him and his wife to go to where the other police officers were waiting and see them regarding S. He and his wife walked up to the junction. When they got there, there were no other parents present. He told one of the policemen that the other policeman had come to the house and ordered them to come to the road to talk about S. Not long after, the policeman who had come down to the house came to the junction. Then the officer in charge of the operation came to the scene and asked why he and his wife were there. He replied that they had been ordered by one of his colleagues to come and talk to the other policemen about their son. Then they went back to the house. Their daughter was sitting on a box underneath the house, crying. She told her mother why she was crying and what had happened. He went to his brother's house, then they all went to the junction, waiting for the police to come back from Giri village. He waited for a while, then went back to the house and questioned M about what happened. M told him what he had seen. Then he took his son and went back to the junction and waited again for the police. When the police arrived from Giri he told them what had happened to his daughter. His daughter identified the policeman responsible. The officer in charge told him it was a serious matter and he should bring his daughter to the police station. He took his daughter first to Bunapas Health Centre for a medical examination and then he took her to Bogia police station. 

Medical evidence 

25. Nursing sister Francisca Belami, of Bogia District Health Services, prepared a report and an affidavit. She stated that the complainant was upset and crying when she came to the health centre at 11.00 am on 17 October 2005. No abnormalities were detected with her head, chest and back, abdomen and limbs. There were no scratches, bruises or tears to the supra-pubic area and vagina. There was wetness in the vagina and frothy mucous in the cervix. 

The accused's sworn evidence

26. On the day in question he was part of a police contingent on a special operation to the Bogia District. They were conducting raids in and around Garaty, starting around midnight. The contingent was divided into two groups. The group of which he was a member went through Garaty. The message was passed down the line that the complainant's father was required at the main road. He went to the house to pass the message. He had a torch and a police issued firearm. He told the father and mother to go to the junction. He went into the house and knocked on some doors. The first rooms were unoccupied. He knocked on a closed door and called to see if anyone was inside. A female voice replied. He asked for the door to be opened so he could search the room. Upon her opening the door, he entered the room and asked the female occupant to stand at the door so she could witness the search that he proposed to conduct. It was dark and he had to use his torch to find his way around. He proceeded with his search of the room. The police issued firearm that he was carrying as part of his duties was hanging from his shoulder on a sling. He had to use one hand to operate the torch and the other to conduct the search. Firearms are held in a position so that they are ready to use should anything arise. He did not point the firearm at the woman at any time. Upon completion of the search he came out of the room to where the woman was standing at the doorway. He asked her if she was married. She answered that she was single. Then he asked her if he could have sex with her. She replied that she only had sport shorts on, she was not wearing panties. She also told him that she had a younger brother sleeping in the room. Then she walked along the corridor to the other room. He followed her and then she lay on the floor and removed the only piece of clothing that she was wearing. He then had sex with her. He does not believe that the complainant's brother saw them having sex as he was still asleep. All through that time, she did not show any signs of resistance. This made him believe that she was consenting to his request. She did not verbally consent but by her actions he was made to believe that she was consenting. Asked whether she consented because he had a firearm, the accused said 'I would not know and I could not clearly tell because at no point in time did I point the gun at her or threaten her physically or verbally that I would harm her with the gun. Also, I could not tell as it was totally dark. I could not clearly see her facial expressions or her reactions to my request.' When they were having sex she did not speak and she did not physically resist. She did not scream or shout for help.

27. There were other houses in the vicinity of the complainant's house, only 20 to 30 metres away. They were searched before the police split into two groups as they did not know the exact location of the suspects' houses. During the first search the police apprehended some suspects who showed them the houses of other suspects. That is when the police split into two groups. The distance from the complainant's house to the main road is only 30 metres. The complainant's house is just down a small slope from the main road. He only went to the complainant's house on one occasion. After they finished having sex he followed the rest of the police officers up to the road. They went to Giri village to conduct another raid. On the way back from Giri he was surprised to see a group of people standing at the junction making an allegation that a policeman had raped their daughter.

28. In cross-examination the accused was asked whether the complainant was in fear of her life. He said that he could not tell as it was dark. The torch was switched off. He did not turn it off to prevent himself being identified. He was the only police officer present in the house. The complainant was a stranger to him. He believes that she only reported the matter to her parents after she became aware that she had been seen by her brother having sex. He agreed that when he asked her to have sex, she did not say anything. He could not read her facial expressions as it was dark. Asked why he had sex with a woman he did not know, he replied that he went into the house and saw the young lady there and just asked her for sex and he believed that she consented to his request. He could not tell whether she was in fear or not. It was put to him that he had lied to her parents to get them out of the way to go out to the main road. He denied lying to them and said that he was just relaying a message that had come down the line to him. The message was that the parents were required for further questioning. It was not a premeditated or planned thing that happened. He does not know who went to the house when the initial search was conducted. It was put to him that he was never instructed to go and conduct a search. He denied that and said that he had people who can verify that that instruction had been passed down the line.

29. In re-examination he repeated that he had not pointed the gun at the complainant or forced her to have sex. He asked her for sex. When she told him what she was wearing and led her to the other room, this made him honestly and truly believe that she was consenting to sex.

Credibility of witnesses

30. 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). The court's task is, rather, having weighed all the evidence and considered that there are reasonable grounds for believing the complainant's evidence, to determine whether it is satisfied to the required criminal standard of proof – beyond reasonable doubt – that the complainant did not consent. If there is a reasonable doubt, the court is obliged to acquit the accused.

31. Where the court is faced with two competing versions of what happened the best starting point is to consider who the court tends to believe, based on the facts available, the circumstances of the incident, including the physical environment and the time the incident took place and the evidence of all witnesses, including their demeanour in the witness box.

32. The complainant was a more impressive witness than the accused. She gave her answers quietly and calmly and her demeanour seemed to be that of a witness of truth. The accused – who presented as an intelligent person – also gave his answers calmly but his demeanour was not impressive. He seemed more intent in giving calculated answers – those that he thought would show that he had obtained consent or believed that he had consent – rather than answers that were straightforward and truthful. His story – that he was searching a village house in the middle of the night and just happened to knock on the door of a young woman, and that he asked her for sex and that she indicated by her actions that she was agreeable and then they had consensual sex, before he returned to duty – is stretching credibility. The way that he gave his evidence made this unlikely scenario harder to believe. The complainant's version of events was much more credible and I tend to believe that she was telling the truth. I will now consider the specific submissions of the defence counsel and determine whether they create a reasonable doubt about her evidence.

Defence counsel's submissions

33. Mr Kolkia submitted that the State had fallen well short of proving lack of consent for the following reasons:

1	The undisputed evidence that the accused asked the complainant if he could have sex with her, was inconsistent with the allegation of rape. 

2	The evidence was that the complainant walked into the other room of her own free will; and this suggested that sex was consensual.

3	The complainant said in evidence that the distance from her house to the main road, where the police vehicles were, is only 20 metres. She also said that the houses of her uncles and aunties are only 20 metres from her house. She could have easily called for help if she was about to be raped.

4	There are inconsistencies in the evidence of the complainant and her brother, M, which create doubt as to the credibility of the State's case. The evidence was that M was awake and saw what happened but M was unable to recall many details of the evidence. 

5	The medical report and affidavit of the nursing sister showed the complainant suffered no injuries, suggesting that sex was consensual. 

6	The complainant was motivated to make a false report of rape as her small brother had seen her having sex. Alternatively, it is possible that the complaint and her family were seeking vengeance after finding out that the accused was responsible for arresting the complainant's brother, S.

7	The accused admitted that he had sex with the complainant when he could have easily denied it; and this suggests that he is being honest. 

Assessment of defence counsel's submissions

1	It is correct that the evidence of both the complainant and the accused is that the accused asked the complainant if he could have sex with her, but I do not accept that the accused asked her politely or that the fact that a man asks a woman for sex is inconsistent with a rape allegation. I accept the complainant's evidence that the accused pointed the gun at her and spoke to her roughly. One interpretation to put upon this conduct is that the accused was asking her for sex, but the far more likely explanation is that he was demanding that she have sex with him. The accused was engaged in intrinsically threatening and intimidating behaviour: knocking on a young woman's room in the middle of the night, with a firearm over his shoulder. In these circumstances, even if it were accepted that he asked "politely", the apparent consent that followed would not have been real, in view of Section 347A(2)(b) of the Criminal Code, which provides that a woman does not consent if she submits because of threats or intimidation against her. 

2	I do not accept the submission that the evidence shows that the complainant walked into the other room of her own free will. Her evidence was that he forced her – if not directly and physically, than indirectly, by intimidation – to go to the other room. I reject the contention that she went first and motioned him to follow. The complainant's version of events is credible and carries much more weight than the accused's version of how the complainant came to be in the other room. 

3	I do not think there is much to be gained by the defence counsel's submissions pinning down the complainant's evidence about the distance from her house to the main road and to the houses of her uncles and aunties. The complainant appeared to genuinely have little appreciation of quantification of distances. I think that she was confused when she said that the distance to those other two places was 20 metres. I found the evidence of Sgt Kursi that the distance from the complainant's house to the main road was 350 to 400 metres acceptable. Mr Kolkia attacked the credibility of this witness but presented the court with no good reason to doubt the veracity of his evidence. The way that Sgt Kursi described the distance was consistent with the version of events of other witnesses. The accused's evidence about a message being 'passed down the line' – that the complainant's father was required at the main road – is inconsistent with the main road being just 20 or 30 metres away from the house. Obviously, the main road was a fair distance away. As for the distance from the complainant's house to the houses of her uncles and aunties, I accept that it is much more than 20 metres. I find that there were no nearby houses and this means that it would have been pointless for the complainant to scream or shout for help. Even if there were houses nearby, I accept the complainant's evidence that she felt scared for her life and that the accused was behaving in a threatening manner. She reasonably felt that her life would have been in more danger had she screamed.

4	I agree with some aspects of Mr Kolkia's submissions about the evidence of the brother, M. He said he did not know whether the policeman asked his sister whether she was married. And he did not know if the policeman asked her if he could sleep with her. These were, however, relatively minor details. He is a young boy and, as I said earlier, his evidence was generally sound. It is reasonable to infer that this was a traumatic and dramatic incident for him. He gave evidence of the policeman telling his sister to go to the other room and pointing the gun at her. This is a sufficient account of what happened. The fact that he could not remember some details does not mean that his evidence is materially inconsistent with his sister's evidence. 

5	The medical evidence is inconclusive and rather vague. I follow Mr Kolkia's argument that the lack of physical injuries suggests that sex was consensual. However, it is conceivable that the lack of injury was a function of the complainant submitting to the accused's advances, in order to avoid physical harm to herself, rather than an indication that she was a willing participant in intercourse. I have had regard to Section 347A(3)(b) of the Criminal Code: a woman is not to be regarded as having consented to a sexual act just because she did not physically resist or did not sustain physical injury. In assessing the medical evidence I also take into account the nurse's observations that when the complainant came to the clinic she was upset and crying. There was no suggestion that the nurse believed that the complainant was feigning her emotional state. She was treated as a victim of sexual assault. I conclude that the medical evidence is not inconsistent with a lack of consent. 

6	Mr Kolkia's submission about the underlying motivation for the rape allegation being reported to the police and the case being brought to court, is unduly speculative. It is possible that a false report was made because the complainant's brother saw his sister having sex with the policeman. But I consider that this is a remote possibility for two reasons. First, the rape allegation was reported to the police at the main road a very short time after the incident. The complainant had little time to cook up an allegation. Secondly, her brother's evidence was credible and consistent with her evidence. As for the other possible motivation for making a false allegation – that the complainant's brother was apprehended by the police – there is little evidence to support this claim. 

7	The fact that the accused admitted to the investigating officers in his record of interview that he had sex with the complainant does not show that he was being honest in what he said about the incident. The medical evidence suggested that sex took place, so this would have made it difficult to deny that he had had sex with the complainant. From a tactical point of view, the best thing for him to do was to admit that he had sex and to claim that it was consensual. I am not convinced by the terms of his record of interview that he was or is telling the truth about the question of consent. 

34. None of the defence counsel's submissions convince me that the complainant's version of events should not be believed. She was an impressive and credible witness. She made a prompt complaint of rape to her father, which was reported immediately to the police. She went for a medical check-up within a few hours of the incident. I also have regard to the fact that there is no convincing evidence that she said or did anything to indicate that she was consenting to sex with the accused; and per force of Section 347A(3)(a) of the Criminal Code, the reasonable inference to draw from this is that she did not consent. I am satisfied beyond reasonable doubt that the complainant did not freely and voluntarily agree to have sex with the accused. She did not consent.

SECOND ISSUE: DID THE ACCUSED HONESTLY AND REASONABLY BELIEVE THAT THE COMPLAINANT CONSENTED?

35. Mr Kolkia submitted that even if it were proven that the complainant did not, in fact, consent, the accused cannot be guilty of rape if he honestly believed that she consented. He based that submission on the decision of the House of Lords in DPP v Morgan [1975] 2 All ER 347. He submitted that the accused's conduct in asking the complainant if she were married or single and asking her for sex meant that he was making a genuine attempt to seek consent; and if he misinterpreted the complainant's responses to his questions, it should not be held against him.

36. There is a fundamental flaw in this submission. Morgan's case laid down a common law principle – a very controversial one – that it was a good defence to a rape charge that the accused had an honest belief in consent. If the accused was drunk and his faculties impaired by self-induced intoxication, and even if his belief was based on unreasonable grounds, if he honestly believed he had obtained consent, he could not be guilty of rape. However, the principle in Morgan's case does not apply in PNG. The reasons for this were spelt out by Kearney J in The State v John Kalabus & Aita Sanangkepe [1977] PNGLR 87. If an accused claims that he honestly believed that he had the complainant's consent, for that to be a good defence his case must be brought within the defence of mistake of fact under Section 25 of the Criminal Code. Section 25 states:

(1) Subject to Subsection (2), a person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.

(2) The operation of Subsection (1) may be excluded by the express or implied provisions of the law relating to the subject.

37. This means that for the defence to apply, the accused must have an honest and reasonable belief that the complainant consented. As this is a specific defence created by the Criminal Code and the accused has put evidence before the court to support his defence, the onus is on the prosecution to disprove either or both of its elements beyond reasonable doubt (R v Ulel [1973] PNGLR 254; R v Nikola Kristeff (1967) No 445). 

38. I consider that the prosecution has discharged this onus. The evidence does not support a conclusion that the accused honestly believed that he obtained consent. The accused knew what he was doing. Only a stupid policeman would honestly believe that by walking into a house in the middle of the night with a gun and a torch, and pointing his gun at a woman, and asking her for sex and asking if she was single or married, he could obtain consent for sex. The accused is not stupid. I consider him to be an intelligent man. He had full knowledge and appreciation of what he was doing. He knew that the complainant was not freely and voluntarily agreeing to sex. If, by chance, I am wrong in drawing that conclusion, and the accused did honestly believe that the complainant consented, it was, nevertheless, not a belief based on reasonable grounds. The accused's evidence, when he was pressed on the issue of the complainant's response to his request for sex, was that she did not say anything and it was too dark to read her facial expressions. Clearly, he was, at least, reckless about whether he obtained consent. I have already dismissed as not credible his claim that she led him into the other room to have sex. Any honest belief he might have had that she consented, was not based on reasonable grounds. The defence of mistake of fact is therefore rejected. 

THIRD ISSUE: HAVE CIRCUMSTANCES OF AGGRAVATION BEEN PROVEN?

39. Under Section 349A of the Criminal Code, circumstances of aggravation for the purposes of the crime of rape include, but are not limited to, circumstances where:

(b) at the time of, or immediately before or after the commission of the offence, the accused person uses or threatens to use a weapon; or …

(e) the accused person, in committing the offence, abuses a position of trust, authority or dependency. 

40. The State has proven both of these circumstances beyond reasonable doubt. The conduct of the accused – carrying the firearm and pointing it at the complainant – meant that he was threatening to use it. Therefore Section 349A(b) is satisfied. The accused committed the offence when he was on official police duty. He entered a family home and abused the position of trust and authority that he was in by virtue of his being a police officer on official duty. Therefore Section 349A(e) is satisfied.

VERDICT

41. The accused is found guilty of rape committed in circumstances of aggravation contrary to Section 347(2) of the Criminal Code. 

Verdict accordingly.
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Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the Accused