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State v Robin [2008] PGNC 308; N3584 (16 October 2008)

N3584

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 1674 OF 2005

THE STATE

V

RONALD ROBIN

Kokopo: Lenalia, J
2008: 16th June, 13th & 16th October

CRIMINAL LAW – Sexual penetration without consent – Not Guilty Plea – Criminal Code (Sexual Offences and Crimes Against Children)
Act s.347 (1) Ch. No. 262.

CRIMINAL LAW – Rape – Plea of not guilty – Trial – Evidence of a long
sexual relationship with accused.

CRIMINAL LAW & PRACTICE – Submission of no case to answer – Principles – If there is some evidence to support essential elements of the charge, the accused should be called upon to answer – However if the prosecution case does not establish some elements of the charge, an accused should be acquitted.

Cases cited.

The State v Paul Kundi Rape [1976] PNGLR 96
The State v Delga Puri & Anor [1982] PNGLR 395
The State v Roka Pep (N0.2) [1983] PNGLR 287
The State v Jimmy Kipma [1997] PNGLR 178

Counsel

Mr. J. Done, for State
Mr. B. Sumsuma, for Accused

16 October, 2008

1. LENALIA, J: The accused is charged with one count of rape which reads 'RONALD ROBIN of NODUP, RABAUL, EAST NEW BRITAIN PROVINCE stands charged that the said RONALD ROBIN between the 1st day of June 2004 to 31st December 2004, at VUDAL BLOCK in Papua New Guinea sexually penetrated DINAH RERESI, without her consent.' This is an offence contrary to s.347 (1) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. On arraignment, the accused entered a not guilty plea. Sexual intercourse is not denied. The defence case is that sexual intercourse took place with the consent of the victim.

2. Documentary evidence tendered by consent consisted of the following documents. Statements made by Constable Joe Martin and the other by his corroborator Constable Lazarus Kaigula both dated 30th August 2005 (see Exhibits 'A' and 'B'), the medical report dated 20th June 2006 and the record of interview dated 23rd August 2005. They are marked Exhibits 'C' 'D.1' & 'D.2'.

3. The trial on this case commenced on 16th June 2008 and it could not be completed because the defence wanted to tender through the victim a number of love letters written by her to the accused. Mr. Done objected to them being tendered and after having heard the lawyers a consensus was reached for the court to give directions for those letters to be examined by a hand writing expert in the Forensic Science Centre in Gordons.

4. Oral evidence came from the victim and one other. The victim's evidence relates to how she developed her relationship with the accused and she recalls that in June 2004 she started getting use to the accused through church activities. Before that, she was a member of the United Church but she gave up because, she felt she was guilty of gossiping. She did not attend church services on Sundays and she remained in the house while her mother and other members of the family went to church. She stayed home until the accused invited her to attend church with his family in the Christian Revival Church (C.R.C.). Dinah said, she was welcomed with open arms in the new church and her parents allowed her to participate in programmed activities in the new found church because they trusted the accused to look after her. The victim's evidence also shows that the accused is a cousin brother of the victim's mother as well as a church elder of the C.R.C Church. She became a more dedicated youth and attended almost all youth camps and conventions.

5. The victim gave a brief background history of the number of camps she attended since she became acquainted with the accused. She attended a camp at Namatanai in November 2003. That trip also took her as far as Kavieng. In that same year, she also attended another camp held at C.R.C church at Kokopo. Early in 2004, she also attended one at Vunalaka and another one in Vunamami. Dinah said all travelling expenses were paid and met by the accused. In the course of going through those religious camps, both the accused and his wife would encourage the victim to be strong and vigilant in faith.

6. This continued until around about the month of June 2004 when one day, the victim was assisting in the bakery. Dinah's evidence shows that, the accused and his wife run a bakery at their block at Vudal. Sometimes she would help out with the baking of bread and carry out other in-house work responsibilities.

7. Then one Saturday morning after the wife of the accused had gone to the market to sell bread she left the accused with his children and the victim baking. The victim said when the children were outside, the accused invited her to watch a pornography C.D. She said, she resisted and refused to watch. Asked in chief how did she resist. The victim said, she resisted by standing a fair distance away from the screen and covered her eyes with her hands. The film did not take long and after looking at it she stood up to leave. But according to the victim the accused held on to her and kissed her. She opened the door and got out and ran down to her house.

8. The victim said, the accused followed her to her house and called to her to let him in but, he was disturbed by a girl who came to buy bread so the accused walked back to his yard to serve customers. Dinah recalls that on a Monday, while her mother was away in school teaching, the accused came to her house and walked right in through the open door while she was doing the dishes in the kitchen. She said, the accused held on to her and kissed her. She resisted by pushing the accused away but the accused offered money to her and pushed her onto the bed resulting in sexual intercourse. This was the start of their long sexual relationship between the victim and the accused.

9. In cross-examination, the victim was asked why she did not report the rape or rapes to her parents in June 2004. She explained that, she did not tell her parents or any one until December 2004. She gave the reason why she reported. It was because the wife of the accused was getting suspicious about the two of them so she thought it would be good to report the relationship she was having with the accused. It was only after the accused and his wife argued when she decided to reveal her predicament. She also revealed that, sexual intercourse took place throughout the period stated in the indictment. That is to say between the months of June and December 2004.

10. This piece of evidence is substantiated by question 22 and its answer in the record of interview where the accused said, between June and December 2004, he estimated he could have had sex with the victim about 11 or 12 times. Part of her evidence is that sexual intercourse was induced by the accused offering money and relaxing kits. As to how many relaxing kits were given to her is not clear from her evidence.

11. When the trial resumed on 13th of this month, the victim completed her evidence. The last witness called was Senior Constable Felix Rayabrum. He is an hand writing expert with the Forensic Science Centre attached to Document Examination Section at the above centre at Gordons. He gave evidence that, the two disputed handwritten letters do not share common authorship with the hand writing of Dinah Reresi. (See Exhibits 'E.1', 'E.2' and 'E.3'). This means the author of the hand-written letters is not known.

12. At the end of the prosecution case, Mr. Sumsuma of counsel for the accused applied to make a submission of "no case to answer". He relied on the first and second legs of the principles stated in the cases of The State v Paul Kundi Rape [1976] PNGLR 96 and that of The State v Roka Pep (N0.2) [1983] PNGLR 287. At this stage of the current trial, I have to satisfy myself about only one question. That question is would the accused be lawfully convicted upon the evidence so far adduced by the prosecution. This question can be differentiated from the second question that is usually asked at the end of the trial of all the evidence both for the prosecution and the defence. That question is on the evidence as it stands can the accused be
convicted?

13. The essential question in a 'no case' submission is whether on the evidence as it stands, the accused would be lawfully convicted. This is a question of law. Thus I am only required to assess whether the evidence produce thus far, either directly or indirectly make out all the elements of the charge of sexual penetration without consent. For this reason I am not required to examine the evidence in detail and apply it on the high standard of proof. To do that would be erroneous as warned by late Kidu, C.J in The State v Delga Puri & Anor [1982] PNGLR 395. In that case the late Chief Justice said that it is erroneous for a judge to decide after the prosecution's case whether or not he or she is satisfied beyond reasonable of the guilt of the accused before all the evidence is before him. (See also The State v Jimmy Kipma [1997] PNGLR 178).

14. Having considered the prosecution evidence, there is evidence that, the sexual relationship between the accused and the victim lasted for 6 months. There is evidence by the victim that sexual intercourse with the accused continued from June to December 2004 and at least that is supported by the accused in the record of interview where he was asked in question 22 and its answer in which the accused was asked about how many times he had sexual intercourse with the victim. His reply was 11 or 12 times.

15. I note the indictment states that 'between the 1st day of June 2004 to 31st December 2004' the accused sexually penetrated the victim without her consent. The length of time during which sexual penetration took place gives this court a problem. The situation would have been deferent had the indictment drafted and contained itself to say for instance a date or a month so as to enable the court to determine the character and behaviour of sexual approaches between the accused and the victim. Generally speaking, if there was such a long lasting sexual relationship between the accused and victim, any reasonable man would not consider such as rape.

16. If the circumstances leading to each act of sexual penetration were in fact rape, why wait until December for the matter to be reported to either the police or the parents of the victim. After all, the entire affair between the accused and the victim was only reported after the accused wife suspected the accused of having a love relationship with the victim. Why not raise a hue on the first instance or second instance in the month of June 2004 rather than waiting until late December of that year. How credible is the victim's evidence of the allegations of rape when she provided her body for sexual pleasure and expected the accused to give her relaxing kits and money.

17. Evidence by the victim that, she was induced into sex by the accused giving her money and relaxing kits does not prove essential elements of the charge of sexual penetration without consent particularly when observed or seen from the perspective of the long period of time during which the victim and accused engaged in sexual intercourse. What the evidence presents is a glaring picture of a young woman who had offered herself for immoral purposes in return for money and kind. I uphold the submission of 'no case to answer' and find that there is no case for the accused to answer. The court orders the case to be dismissed and the accused be acquitted with orders for the accused bail to be refunded.

_____________
The Public Prosecutor: Lawyer for the state
Sumsuma Lawyers: Lawyer for the accused.