Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Uma [2009] PGNC 154; N3765 (22 October 2009)

N3765

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 884 OF 2004

THE STATE

V

BECHO LALA UMA

Kimbe: Cannings J
2009: 14, 15, 17 September, 22 October

VERDICT

CRIMINAL LAW – rape – Criminal Code, Section 347 – trial – accused indicted on charge of rape committed in company with another person – proof of involvement of accused but no proof of sexual penetration by the accused – whether the accused can be convicted of rape by virtue of Section 7 (principal offenders) of the Criminal Code for having aided or assisted another person to commit the offence – whether alternative convictions of sexual assault or attempted rape available.

The accused, a man aged in his 20s, was charged with the rape of an 18-year-old woman, committed in circumstances of aggravation including that he committed the offence in company of one other person, his brother. During the course of the complainant’s testimony it became apparent that the State would have difficulty proving that the accused sexually penetrated her. She said that his brother had penetrated her without consent and then the accused attempted to penetrate her but was interrupted by her uncle and escaped. The State argued that the accused could nevertheless be convicted of rape by virtue of Section 7 of the Criminal Code as he aided and assisted the person who actually did the act constituting the offence. This also gave rise to the question whether it was open to the court to enter alternative verdicts of guilty of sexual assault or attempted rape. The accused gave sworn evidence that he by coincidence arrived on the scene in the garden where his brother and the complainant were having consensual sex, that she invited him to have sex with her and that the next thing that happened was the complainant’s uncle arrived on the scene and tried to cut him with a bushknife so he ran away before even touching her.

Held:

(1) The complainant’s version of events was proven to be the correct one: the accused’s brother sexually penetrated the complainant without her consent and the accused was preparing to do likewise but was interrupted and escaped.

(2) The accused was, however, not guilty of rape under Section 347, as charged, as he did not sexually penetrate the complainant.

(3) He was also not guilty of rape by virtue of Section 7 of the Criminal Code as, although he aided and assisted the person who actually committed the offence, it had not been put to him on arraignment that he could be found guilty by virtue of Section 7 and it would be unfair to convict him in these circumstances.

(4) He could not be found guilty of sexual assault under Section 349 of the Criminal Code as, although the elements of that offence existed, it was not included as an alternative charge in the indictment, it was not put to him on arraignment that he could be found guilty of sexual assault and there is no provision of the Criminal Code that allows an alternative verdict of sexual assault to be entered on an indictment for rape. Section 541(d) (charge of rape and like offences) does not apply.

(5) The accused could, however, be convicted of attempted rape as, although it was not included as an alternative charge in the indictment and it was not put to him on arraignment that he could be found guilty of attempted rape, Section 546(1) of the Criminal Code allows an alternative verdict of attempted rape to be entered on an indictment for rape and it was not unfair to convict him of attempted rape.

(6) The elements of attempted rape were proven beyond reasonable doubt and the accused was accordingly found guilty of attempted rape.

Cases cited

The following cases are cited in the judgment:

R v Joseph-Kure [1965-66] PNGLR 166
The State v Elias Mautu, CR No 683 of 2006, 20.07.07
The State v Ima Esiko, CR No 1286 of 2004, 23.03.09
The State v John Kalabus & Aita Sanangkepe [1977] PNGLR 87

TRIAL

This was the trial of an accused charged with rape.

Counsel

F Popeu, for the State
R Awalua, for the accused

22 October, 2009

1. CANNINGS J: The accused, Becho Lala Uma, is aged in his 20s and comes from Darava village in the Talasea area of West New Britain. He is charged with the rape of the complainant, an 18-year-old woman, "M", committed in circumstances of aggravation, including that he committed the offence in company of one other person, his brother, Peter.

2. During the course of the complainant’s testimony it became apparent that the State would have difficulty proving that the accused sexually penetrated her. She said that his brother had penetrated her without consent and then the accused attempted to penetrate her but was interrupted by her uncle and escaped. The State argued that the accused could nevertheless be convicted of rape by virtue of Section 7 of the Criminal Code as he aided and assisted the person who actually did the act constituting the offence. This also gave rise to the question whether it was open to the court to enter alternative verdicts of guilty of sexual assault or attempted rape.

ISSUES

3. They are:

1. What actually happened?

2. Is the accused guilty of rape, as charged?

3. Is the accused guilty of rape by virtue of Section 7 of the Criminal Code?

4. Can the accused be convicted of sexual assault?

5. Can the accused be convicted of attempted rape?

1 WHAT ACTUALLY HAPPENED?

4. It is agreed that an incident involving the complainant and the accused occurred at Darava on Monday 15 March 2004. There are two versions of what actually happened.

The complainant’s version

5. The complainant says that it was a Monday morning at about 9 o’clock when she went to the garden to do some weeding. She then went to look for mustard so she could chew betel nut. She was surprised when the accused’s brother Peter approached her and threatened her with a knife and told her to remove her trousers and underwear. She had no choice but do what he said. When her clothes had been removed Peter had sex with her without her consent. When he had finished the accused tried to get on top of her but her uncle Bonifas appeared and Peter and the accused ran away.

6. Peter was the only one to sexually penetrate her. He did that by introducing his penis into her vagina. The accused tried to get on top of her but she struggled and that is when Bonifas came on the scene.

7. In cross-examination it was put to her that she actually was having consensual sex with Peter and when the accused came along she invited him to have sex with her. She denied that.

8. The incident happened about 60 metres from her house. Her mother was in the house at the time but is disabled. Peter came from behind. She did not see him until he was 1.5 metres away. She could not run away as he pointed a knife at her. She was alone. She did not scream as she was afraid. The accused did not threaten her and did not remove her clothes. It was only Peter who did those things. The accused did not say anything to her. He just stood there while Peter was penetrating her.

9. In re-examination she said that the accused tried to penetrate her. When Bonifas arrived, the accused had pulled down his trousers but still had his shirt on.

The accused’s sworn testimony

10. He agreed that he was present but his involvement was accidental and innocent. He had gone to his block and later in the morning he was heading to the creek. Near a road he found Peter and the complainant, naked and having sex. He did not do anything. He just stood there. Then the complainant invited him to go to her. He did not touch her or have sex with her. The next thing that happened, Bonifas arrived on the scene with a bush knife and chased him and tried to cut him. The complainant and his brother Peter were at that stage in a boyfriend-girlfriend relationship. The complainant invited him to have sex with her. He believes that she did that because he had found the two of them having sex and she was afraid that he would tell people in the village, especially her mother.

11. Because he was on his way to the creek to wash he had put his trousers in his basket. So when he ran away he was just wearing a T-shirt and his Westmonts. He ran to the village when Bonifas chased him.

12. In cross-examination he said that he did not know at the time that Peter and the complainant were in a relationship. It was put to him that there was little chance that he would want to report his little brother to anybody so the story about the complainant inviting him to have sex was ridiculous. He stuck to the story, however. He believed that the complainant invited him to have sex with her as she was afraid that he would tell her parents.

13. The prosecutor Mr Popeu pointed out to the accused that in his record of interview which was admitted into evidence by consent he states that he lay on top of the complainant to have sex with her but then Bonifas interrupted him so he escaped. The accused disowned that statement, saying that that was not what he told the police.

Which version is the correct one?

14. The complainant was a much more impressive witness than the accused. She gave her evidence clearly, calmly and directly whereas the accused was evasive. There was a prompt complaint of rape: the complainant was taken to Kimbe General Hospital the day after the incident. The matter was reported to the hospital as an allegation of rape.

15. There was a witness statement by Bonifas made two weeks after the incident which corroborates the complainant’s story. There is also a witness statement by the complainant’s father prepared the day after the incident in which he speaks of his anger over what was reported to him. The matter was dealt with as an allegation of rape against the accused and his brother from the very beginning. This evidence does not by itself prove that non-consensual sex took place or was attempted but it does corroborate the complainant’s story. I reject the accused’s evidence about doing nothing, not even touching the complainant, as not credible. I accept the complainant’s version of events as truthful.

16. I reject the accused’s evidence that the complainant invited him to have sex with her as not credible. However, having regard to the definition of sexual penetration in Section 6 of the Criminal Code, the accused did not penetrate her. He did not to any extent introduce his penis into her vagina and there was no other form of sexual penetration effected by the accused.

2 IS THE ACCUSED GUILTY OF RAPE, AS CHARGED?

17. No. He did not sexually penetrate the complainant and therefore he cannot be convicted of rape in the manner that he has been charged.

3 IS THE ACCUSED GUILTY OF RAPE BY VIRTUE OF SECTION 7 OF THE CRIMINAL CODE?

18. Section 7 provides that when an offence is committed every person who aids another person in committing it is deemed to have taken part in committing the offence and to be guilty of that offence.

19. The State has proven that the accused aided his brother in committing the offence of rape. Though the accused was not the one who penetrated the complainant and not the one who grabbed her or threatened her with the knife, he was present. By his failure to take steps to prevent his brother doing what he was doing he aided his brother in committing the offence of rape. It has been proven that Peter sexually penetrated the complainant and did so without her consent. The proven facts therefore support a conviction for rape under Section 7 against the accused.

20. However, I uphold the defence counsel Mr Awalua’s submission that it is not open to the court to enter a conviction for rape in this case as it was not put to the accused when he was arraigned that he could be guilty of rape by reason of having aided his brother in committing the offence. It was put to him that he had actually sexually penetrated the complainant. He said that that story was not true and indeed it has been established that that version of events was not true. It would not be fair or proper in these circumstances to enter a conviction for rape. I find him not guilty of rape. However the question remains whether he can be convicted of some other offence.

4 CAN THE ACCUSED BE CONVICTED OF SEXUAL ASSAULT?

21. Sexual assault is an offence under Section 349(1) of the Criminal Code. It consists of three elements:

- the accused touched the complainant;

- the area of the body that was touched included the complainant’s sexual parts (eg vagina, groin, buttocks, breasts);

- that was done without the complainant’s consent.

(The State v Ima Esiko, CR No 1286 of 2004, 23.03.09.)

22. All of those elements have been proven in this case. However, there is no provision of the Criminal Code that allows an alternative conviction for sexual assault to be entered on an indictment for rape. Section 541(d) (charge of rape and light offences) comes close. It provides that on an indictment charging a person with rape of a woman, he may be convicted of the offence of unlawfully and indecently assaulting the woman. However, since the amendment of the Criminal Code regarding sexual offences came into operation in 2003 there is no longer any offence of unlawfully and indecently assaulting a woman. That offence, which was created by the old Section 349, has been abolished and replaced by the gender-neutral offence of sexual assault. Section 541 was not amended in the 2002 amendments. It does not apply here.

23. As a charge of sexual assault was not included as an alternative charge on the indictment and it was not put to the accused on arraignment that he could be convicted of the alternative offence of sexual assault, it would not be fair or proper to enter a conviction for sexual assault. I therefore decline to enter a conviction for sexual assault.

5 CAN THE ACCUSED BE CONVICTED OF ATTEMPTED RAPE?

24. Section 546(1)(a) (conviction for attempt to commit offence) of the Criminal Code is the key provision. It states that on an indictment charging a person with committing an offence he may be convicted of attempting to commit the offence. Although attempted rape was not included as an alternative charge on the indictment and it was not put to the accused on arraignment that he could be convicted of attempted rape I consider that Section 546(1) constitutes sufficient notice to an accused that when facing an indictment for rape an alternative conviction for attempted rape is available. In a murder trial an accused does not have to be told on arraignment that if he is found not guilty of murder an alternative conviction for manslaughter can be entered under Section 539(2) of the Criminal Code. It follows that when an accused is arraigned on a rape charge he does not have to be told that an alternative conviction for attempted rape can be entered.

25. I reject Mr Awalua’s argument that there needs to be an express provision in the Criminal Code for a conviction for attempted rape to be available on a charge of rape. In The State v John Kalabus & Aita Sanangkepe [1977] PNGLR 87 Williams J had no difficulty in entering alternative convictions for attempted rape when two accused had been indicted for rape. His Honour accepted the complainant’s version of events generally but found as a fact that the two co-accused were too drunk to get an erection and therefore penetration was not proven. His Honour found, however, that each accused had attempted to have intercourse without the consent of the complainant and convicted them of attempted rape. As a matter of law I consider that it is open on an indictment for rape to find an accused guilty of attempted rape provided of course that the State proves beyond reasonable doubt the elements of attempted rape.

26. Attempted rape is a discrete offence under Section 348 (attempt to commit rape) of the Criminal Code, which states:

A person who attempts to commit the crime of rape is guilty of a crime.

Penalty: Imprisonment for a term not exceeding 14 years.

27. Its elements are:

- the accused intended to sexually penetrate the complainant without her consent;

- he had begun to put his intention into action;

- he manifested or revealed his intention by some overt act.

(R v Joseph-Kure [1965-66] PNGLR 166; The State v Elias Mautu, CR No 683 of 2006, 20.07.07.)

28. All those elements have been proven. First the accused had, by his failure to intervene, aided his brother in sexually penetrating the complainant and clearly intended to sexually penetrate her without her consent. He began to put his intention into action by moving towards her and taking off his trousers. He manifested his intention by the overt act of getting on top of her. In all likelihood he would have sexually penetrated the complainant had it not been for the intervention of the complainant’s uncle. It follows that the accused will be convicted of the offence of attempted rape.

VERDICT

29. Becho Lala Uma is not found guilty of the crime of rape under Section 347(1) of the Criminal Code but guilty of attempted rape under Sections 348 and 546(1)(a) of the Criminal Code.

Verdict accordingly.

____________________________

Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the accused