N3361

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 403 OF 2007

THE STATE

V

LUDWICK JOKAR (No. 1)
Accused

Wewak: Davani .J
2008: 17, 23 April

CRIMINAL LAW – Rape – victim from a broken home – accused village councillor – victim resident in same village as accused – accused wielded power – s. 347 (1) (2) of Criminal (Sexual Offence and Crime Against Children) Act 2002 (CCSOCAC’)

CRIMINAL LAW – Rape – victim did not physically resist – no consent – corroboration not required – s. 347A (3) (a) (b) (i) (ii) (iii); s. 352A of Criminal Code Act (as amended)

Facts

The victim and her mother and siblings moved to Karasau Island Wewak, after her mother and father separated. Her mother went to live with a relative on that island. Whilst there, the accused, a village Councillor began to pursue the victim. He confronted her and had sexual intercourse with her on two occasions, once in 2003 and the other occasion, in 2005.

Issue

i.	Whether the accused sexually penetrated the victim;
ii.	If so, was it done without her consent?

Held

1.	The accused being a village councillor was in a position where he wielded power. Using that power and influence, he had sexual intercourse with the victim;
2.	On the both occasions he had sexual intercourse with the victim, he threatened her so she was too scared to report the matter.
3.	The victim came from a broken home. She was caught in a situation where the accused was able to threaten her into submission.
4.	According to s. 347A (3) (a) (b) (i) (ii) (iii) of the Criminal Code Act (as amended), just because the victim did not physically resist, did not mean that she consented.
5.	Although the victim’s evidence is uncorroborated, the court can still convict on her uncorroborated testimony.
6.	The accused is guilty of 2 counts of rape.

Counsel:

L. Rangan, for the State
M. Mwawesi and F. Kirriwom, for the Accused

VERDICT

23rd April, 2008

1. DAVANI .J:   Ludwick Jokar (the ‘accused’) is charged with 4 counts of aggravated rape under the repealed provision of the Criminal Code Act, s. 347 now found in s. 347 (1) (2) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 (‘CCSOCAC’).

2.     I should point out also that although s. 17 of the CCSOCAC states that s. 347 of the Principal Act i.e the Criminal Code Act, is repealed, in my view, its effect is to amend rather than repeal. (see The State v Kaupa Kokia (2005) N3012 per Gavara-Nanu .J)

3.     Additionally, the whole of Division 7 of the Criminal Code Act, under which s. 347 is contained, is also amended, rather than repealed to now read "Sexual Offences and abduction."

4.     This includes the addition of a new provision, s. 352A, the provision "corroboration not required" in "Sexual Offences and abduction" which includes rape. I discuss the effect of this later below.

5.     Section 347 reads; 

"347. Definition of rape

(1)	A person who sexually penetrates a person without his consent is guilty of the crime of rape.

Penalty: Subject to Subsection (2), imprisonment for 15 years.

 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 State also alleges that the offences were committed under circumstances of aggravation, relying on and pleading in the indictment, circumstances under s. 349A (b) of the CCSOCAC. It reads;

"349A.		Interpretation

For the purposes of this decision, circumstances of aggravation include, but not limited to, circumstances where –
…
at the time of, or immediately before or after the commission of the offence, the accused person uses or threatens to use a weapon;
…"

7.     The accused pleaded not guilty to all 4 counts and the matter proceeded to trial.

State’s allegations

8.     The accused is from Karasau Island, in the East Sepik Province. At the time of the commission of the offences in 2005, he was aged approximately 33 years.

9.     The State alleges that the offences were committed between or during the period November 2003 to a date unknown in 2005. The four (4) instances of sexual penetration alleged to have been perpetrated during that period in chronological order are;

- November, 2003;
- A date unknown in 2003;
- A date unknown in 2004;
- A date unknown in 2005.

10.    On all those occasions, the State alleges the accused sexually penetrated the victim without her consent.

Issues

11.    The issue/s to be determined by this court are;

i.	Whether the accused sexually penetrated the victim;
ii.	If so, if it was done without her consent.

Evidence

12.    It is not disputed that the acts of sexual penetration did occur. What is disputed is the issue of consent. The State alleges that sexual penetration was forced with the use of a weapon whereas he (the accused) claims the victim has always consented, even to the extent where he was supporting her financially during the period the acts of sexual intercourse occurred.

i.	Evidence consented to – Several documentation were tendered by consent. These were;

•	Medical Report prepared by Dr Brian Galungim of the Wewak General Hospital dated 14th October, 2005;

•	Pidgin and English versions of the accused’s Record of Interview with 	the police conducted on 4th January, 2007;

•	Statement of the Interviewing Police Officer Magdalen Kavun of the 	Wewak Police Station dated 8th January, 2007;

•	Undated Statement of Corroborator Thomas Wirise, present at the 	Record of Interview;

ii.	State’s evidence – The State called the victim and her father. The victim’s evidence was in relation to the acts of sexual intercourse committed upon her by the accused. Her father’s evidence as I understood it, was about his lack of contact with his children and the fact that he was deprived of their contact and custody by the accused. His children included the victim.

iii.	Accused’s evidence – His evidence was basically that the victim had consented to all the acts of sexual intercourse. That the victim is now his wife but that her parents and family do not approve of his relationship with her.

Analysis of evidence and the law

13.    The victim herself told the court that the accused forcefully sexually penetrated her once in 2003 and once in 2005. That was when she got pregnant. But the accused said the acts of sexual intercourse were consensual. He said they did not have sex once but many times. He said their relationship was more of a marriage because he was supporting her financially. He said she approved of this and never once complained.

14.    The evidence is that after the first act of sexual intercourse in 2003, the victim did not report the matter. She said the accused had threatened her so she was too scared to report the matter.

15.    It is necessary that I also consider the evidence in relation to the victim’s family background. She comes from a broken home. Whilst she was still in grade 1, her parents separated. She left with her mother and other siblings for Karasau Island, where she now lives. Her natural mother’s name is Bernadette Yari Patu or Benadette Patu Yari.

16.    After the separation, the accused who was Village Councillor of Karasau Island at that time and still is, stopped the victim and her siblings from visiting her natural father or even receive things or gifts from him. He has been Village Councillor since 1997.

17.    The only time the victim ever got to see her father and her other half brothers and sister, was when she got pregnant in 2005. It was because they had demanded to see her having learnt of her pregnancy.

18.    Being the Village Councillor, the accused wielded power in his village. The victim was caught in a situation where she was coerced into the sexual relationship portrayed to the court by the victim and the accused himself.

19.    The evidence is also that the victim was sued for adultery by the accused’s first wife and ordered by the Wewak District Court on 6 May 2006 to pay compensation of K500.00 to the accused’s wife.

20.    Is this a situation or scenario where rape was committed?

21.    The victim herself said she was sexually penetrated only on 2 occasions, in November 2003 and in 2005.

22.    On both occasions, she said sexual intercourse was without her consent, that the accused threatened to harm her if she reported the matter. He was in a position where he was able to get away with his actions because he wielded power as a Councillor. Furthermore, the victim came from a broken home and the accused, according to the victim’s father’s evidence, played a large role in stopping her siblings and her from seeing or visiting her natural father and half brothers and sisters. How does that go towards proving or disproving rape?

23.    The rule in criminal cases is that, the legal burden of proving every element of the offence charged lies from the first to the last on the prosecution. This means that the prosecution must disprove any defence or explanation properly raised by the accused. In SCR No. 1 of 1980, Re s. 22 of the Police Offences Act [1981] PNGLR 28, the Supreme Court said that the proof of guilt in criminal cases is that, the onus is on the prosecution to prove each element of the offence charged beyond reasonable doubt. In SCR No. 2 of 1980; Re s. 14 of the Summary Offences Act [1981] PNGLR 50, the Supreme Court said at pg. 54:

"The main thrust of the Constitution s. 37 (4) (a) is to place upon a prosecutor the burden of proving the guilt of a person charged with an offence…By the underlying law, that burden on the prosecutor is discharged only when he proves beyond a reasonable doubt that the defendant is guilty; that is, that the defendant is criminally responsible for the offence charged...".

24.    In the case SCRA No. 1A of 1981 Re Motor Traffic Act [1982] PNGLR 122, the late former Chief Justice Kidu said at pg. 127;

"… a person charged with an offence is guaranteed two rights by s. 37 (4) (a): first, the right to be presumed innocent of the charge; and second, the right to have the charge against him proved according to law." (See also Constitutional Reference No. 3 of 1978 Re Inter-Group Fighting Act 1977 [1978] PNGLR 421).

25.    In this case, the law is as set out in s. 347 of the CCSOCAC. The definition of consent is set out in s. 18 of the CCSOCAC or s. 347A of the Criminal Code Act. It reads;

"347 A.. MEANING OF CONSENT.

(1) 	For the purposes of this Part, "consent" means free and voluntary agreement. 

"(2) 	Circumstances in which a person does not consent to an act include, but not limited to the following:- 	. 

(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 the 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, expressed 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. 

"(3) 	 In determining whether or not a person consented to that act that forms the subject matter of the charge, a judge or magistrate shall have regard to the following:- 

(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 on an earlier occasion, he freely agreed to engage in 	 another sexual act with that person or some other person." 

26.    Corroboration is also not required in sexual offences, as provided in s. 22 of the CCSOCAC, which is s. 352A of the Criminal Code Act. It reads;

"22.	NEW SECTION 352A
The Principal Act is amended by inserting after Section 352 the following new section:- 

 "352A. CORROBORATION NOT REQUJRED. 
On a charge of an offence against any provision of this Division, 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." 

27.    In my view, s. 347A (3) (a) (b) (i) (ii) (iii) of the Criminal Code Act or s. 18 of the CCSOCAC are all relevant in determining whether there was consent or not. The evidence is that the victim did not physically resist the acts of intercourse. The victim also may have freely engaged in the acts of sexual intercourse. But that is not consent. The victim’s evidence is that she feared for her life. This is a girl who was living in an environment where the accused was the sole authority. She could not turn to anybody for help because there was nobody. Her natural father and family members could not visit her or vice versa because the accused prevented that from happening. I need not instruct myself that it is unsafe to convict on the victim’s uncorroborated testimony because I am not obliged to do so by law (s. 352A of CCA (as amended)).

28.    I find that in relation to the two (2) acts of sexual intercourse that occurred in 2003 and 2005, the victim did not freely consent. She was forced under the prevailing circumstances, to have sexual intercourse with the accused.

29.    Therefore, I find the accused guilty of 2 counts of aggravated rape, because there was always the threat of injury or assault from the accused. He is guilty of the first count that occurred in November, 2003 and the second count, on a date unknown in 2005. It was not a "free and voluntary agreement" to have sexual intercourse (s. 347A (1) of CCA (as amended)). I find him not guilty of the two other counts, for rape having allegedly occurred on a date unknown in 2003 and a date unknown in 2004.
_______________________________

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