N3621

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.411 OF 2006

THE STATE

V

VARPIN TOKAU

Kokopo: Lenalia, J.
2009: 4th – 5th & 12th February

CRIMINAL LAW – Charge of rape – Plea of not guilty – Trial – Evidence – Criminal Code s.347.

CRIMINAL LAW – Evidence – Sexual intercourse not denied – Issue of 
consent – Evidence of consensual sex – Inferences to be drawn – Several inferences open – Finding of not guilty.

Cases cited.
R v Paiovi Aravapo (1954) No.60
S.C.R. No. 1 of 1980, Re s.22 of the Police Offences Act, [1981] PNGLR 28
S.C.R. No.2 of 1980; Re s.14 of the Summary Offences Act [1981] PNGLR 50)
The State v Tom Morris [1981] PNGLR 493
Paulus Pawa v The State [1981] PNGLR 497 
The State v David Sopane (28.2.06) N3024

Overseas Cases.

Woolmington v DPP [1935] A. C. 462

Counsel:
L. Rangan, for the State
P. Kaluwin, for the Accused.

12 February, 2009

1. LENALIA, J: The accused was arraigned on one charge of rape an offence under s.347 of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. He pleaded not guilty and a short trial was conducted.

Prosecution Evidence

2. To prove the State's case, the prosecution tendered the following documents by consent of both counsels:

•	Medical report Exhibit "A".
•	Record of interview Pidgin & English translation Ext. "B1" & "B2").
•	Statement of witness No.5-Harry Dale, Corroborator-Ext. "C".
•	Statement of witness N0.6-Francis Munap, Investigator- Ext. "D".

3. On the evidence tendered, the investigator First Constable Francis Munap and his corroborator Senior Constable Harry Dale say in their statements that when the accused was interviewed, he admitted to having sexual intercourse with the victim Joan Warkaul. He however denied raping her on the date the offence took place namely 3rd September 2005.

4. Only two witnesses were called. The victim Joan Warkaul told the Court in her testimony that, on the above date, she was sent by her uncle John Mattan with a message to Willy's house. After being at Willy's place, she returned on the track where the accused was sitting down cutting galip nuts and eating them. When the accused saw her coming, he asked her where she had been to. She replied that she had been to Willy's house and walked passed him. After she walked a few metres away from the accused, the accused came behind her and pulled on to her merry blouse. 

5. She asked the accused what he wanted and he replied that he wanted to have sex with her. She refused and the accused is supposed to have grabbed her and pushed her into the bushes about 3-5 metres away from the road and forcefully penetrated her. After they finished, the accused wanted to shake hands with her but she refused. She then walked to her house by walking past the accused's house and reported the rape to her auntie, the second witness Betty Wurungut. 

6. After she left the accused she started to cry until she reached her auntie's house. Part of her evidence is that, when the accused was pulling her merry blouse, a truck load of people went past them on the main road which was estimated to be some 30 to 50 metres away from where the two of them were when the accused was pulling on to her merry blouse. She heard people saying in Pidgin 'olim em olim em', in English 'hold him, hold him'. That Pidgin word 'olim em' can be used interchangeably to also describe holding onto a woman as was the case in the instant trial. 

7. In cross-examination, the victim was asked about her relationship with the accused. She confirmed that, she is related to the accused as an uncle or niece or distant cousin brother. She explained that, she knew of the relationship before she entered into the relationship with the accused prior to 3rd September 2005. She admitted also that, before this date, she had had sexual relationship with the accused a number of times. She was asked as to how many times had the two of them had sex before the date of this incident and she said she can not now recall but she remembers well that, their relationship continued for some months and had stopped before 3rd of September 2005. 

8. The second witness, Betty Wurungut is an auntie of the victim. She gave evidence of "recent complaint" being made to her by the victim. The victim came crying to her and told her about what the accused had done to her. She observed her to have a torn merry-blouse. She had dead leaves and grass on her body and she appeared so distressed. This witness asked the victim what happened to her. She did not reply and she asked her the second time what was her problem. The victim told her that, the accused had raped her.

9. After receiving this news, she asked the victim to go down to Mr. John Mattan's place. After talking to the victim, Mr. Mattan asked the victim and her auntie to go and report to the Ward Councilor. They got on a vehicle and drove to the Councilor's house. After seeing him, they were told to come to the police station here at Kokopo. In fact, they were told to go to the hospital first. When they returned that same date, policemen investigating the matter obtained their statements. That was the end of the prosecution case. 

Defence Case

10. The accused alone gave evidence. The accused does not deny sexual intercourse. He admitted in his evidence that, on Saturday 3rd September 2005, the victim came back from her uncle's house and came on the track where he sat down cutting galip nuts. He asked her where she had been to and the victim informed him that, she had been to Willie's house. When she was about to pass him he walked up to her then they walked side by side along the road. He then asked her if they could have sex. She consented and after they had sex, they shook hands and the victim left him. 

11. In examination in-chief and cross-examination, the accused was asked if he knew about the close relationship that exists between him and the victim. The accused seemed to be lost and it appears that the accused does not know if there is any close relationship between him and the victim. He admitted in chief and cross-examination that, there was an existing love relationship between him and the victim. Something common about such relationship was that, they had had repeated sexual intercourse before the date the rape occurred. He was asked if he knew that, such relationship had stopped before the date of the incident. He answered that he did not know. 

12. In cross-examination, he was asked why would the victim report him if they had stopped be-friending each other. The accused said, he did not know why she reported. He was asked if someone had seen the two of them struggling or seen the accused pulling her merry-blouse or even seen them having sex. The accused said, no one saw them on that day. 

13. He was asked if he heard the people calling out on the truck which past them. The accused said he did not hear them. No other witnesses were called. He was asked if it was true he had in possession of a short bush/knife. The accused admitted holding a small bush/knife but denied using it to threaten the victim. He was asked if the reason why the victim reported was because the boys who shouted at them had seen the accused pulled the victim into the bushes for sex. The accused said, he did not pull the victim on her merry-blouse as they walked into the bushes to have sex and he did not use the bush/knife to threaten her.

Address on Evidence by Defence

14. The defence submission on evidence relates to the issue of consent. The basis of Mr. Kaluwin's submission is if the accused and victim had previously engaged in sexual intercourse before 3rd of September 2005 what would make the incident on this date a rape. Counsel submitted that despite evidence by the accused that no body saw the two of them having sex, there was a high possibility that, someone might have seen the accused and victim in the act or seen the accused holding on to the victim when they went into the bushes to have sex. 

15. Counsel attributed the above proposition to the evidence by the victim that, when the accused was struggling with the complainant trying to push her into the bushes, a truck load of boys shouted to the two of them. Either that or someone had seen the two of them going into the bushes before sex took place. Counsel submitted that, circumstances such as the time, locality, the mode of dress and the evidence given by the victim on how she was undressed did not seem logical or propitious for such an offence to have occurred. 

16. In the victim's evidence, she said, she only wore a merry-blouse and panties. The second witness estimated the length of the merry-blouse. It is a pity the merry-blouse was not produced in court as exhibit. Counsel submitted, the accused should be believed as the prosecution evidence is lacking in weight and credibility such that the accused should not be found guilty.

Address on Evidence by Prosecution

17. Mr. Rangan of counsel for the State replied by saying that sexual intercourse is not in dispute. Counsel submitted that the issue involved is whether sex was forced upon the victim by the accused. He urged the court to accept the prosecution evidence because there is evidence that the accused walked up behind the victim, grabbed her by her merry-blouse and pushed her into the bushes where sex took place. 

18. When the two were about to have sex or were having sex, the victim could not shout because she was being threatened. He submitted there were inconsistencies in the evidence by the defence and there is evidence of 'fresh complaint'.

19. Counsel asked the court to believe the evidence of the victim as she was a credible witness and although the two had previous sexual encounters, their relationship had stopped before the alleged rape. Counsel referred to the accused evidence that, no body saw what they did except for those people on the back of the passing truck and the fact that, after the rape, the victim ran up to her auntie's house crying was and is evidence of a distressed complainant. 

Law

20. The offence of rape is defined in the section charged in the following terms:

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

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

(2) Where as offence under Subsection (1) is committed in circumstances of aggravation, the accused is liable, subject to Section 19 to life imprisonment."

21. There are two issues in this case. The first one is the defence case is one of consent. The defence raised by the accused is one of consent. What the accused says is, when he had sex with the victim, she consented to have sex with him. The accused himself gave evidence to substantiate his claim. The next issue is one of who to believe and whose evidence is credible. Mr. Rangan referred to s.229H of the Act which reads:

"On a charge of an offence against any provision of this 'Division', a person may be found guilty of the uncorroborated testimony of one witness, and a Judge shall not instruct himself or herself that it is unsafe to find the accused guilty in the absence of corroboration." 

22. I do not agree that, this case contains or is one of uncorroborated evidence although it may touch on the weight of the evidence to be place on whichever party this court wants to accept as credible. There is no uncorroborated evidence before me as the evidence of the victim is corroborated by that of Mrs. Betty Wurungut. 

23. The second issue is whose evidence the court should believe. I heard evidence from both the prosecution and defence. There was evidence by both the victim and the accused of a prior sexual relationship between them. The question I must ask is what made the incident on the 3rd day of September 2005 a rape? There was evidence by the victim that, such relationship had stopped before the above date. 

24. The reason given for this was that, when the victim found out that she was related to the accused she then stopped from contacting the accused. The accused however denied this and said, he was not aware of the allegation that their relationship had stopped. 

25. This is a criminal case and the standard of proof required is 'proof beyond reasonable doubt'. This means all elements of non-consent must be proved. I find there was opportunity for the victim to shout and give a hue. There was evidence by the victim that the people on the truck had seen the accused holding on to her. 

26. Two inferences can be drawn from such piece of evidence. First, the victim may have made up her mind, that because people had seen the accused holding on to her she feared she could be reported to her parents. Secondly, there might have been a possibility that the accused forcefully had sex with the victim. 

27. The requirement both in law and practice is that the prosecution must prove its case beyond reasonable doubt. An accused person is presumed innocent until he is proven guilty. The right to the protection of law is available under s.37 of the Constitution. In that section, Subsection (1) (3) and (4) (a) states:

"(1) Every person has the right to the full protection on the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, specially to persons in custody or charged with offences.

(2)…

(3) A person charged with an offence, shall unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court.

(4) A person charged with an offence – 

(a) shall be presumed innocent until proved guilty according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would be, peculiarly within his knowledge; and.."

28. The rule in criminal cases is that, the legal burden of proving every element of the offence charged lies from first to last on the prosecution. This means that the prosecution must disprove any defence or explanation properly raised by a defendant. In Woolmington v DPP [1935] A. C. 462, Viscount Sankey LC speaking about the standard of proof in criminal cases expressed the rule at 481 to 482 in the following words:

"Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt... If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained".

29. In a number of leading cases in this jurisdiction, the Supreme Court had on occasions discussed the constitutionality of s.37 (4) (a) of the Constitution. In S.C.R. No. 1 of 1980, Re s.22 of the Police Offences Act, [1981] PNGLR 28, the Supreme Court said, 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, (see also S.C.R. No.2 of 1980; Re s.14 of the Summary Offences Act [1981] PNGLR 50).

30. In the instant case Mr. Kaluwin cited an old case of R v Paiovi Aravapo (1954) No.60 to support the proposition that the prosecution case should fail because it had not proved beyond reasonable doubt that sex was had without the victim's consent due to factors such as, the time the offence occurred, the location where sex took place, the possibility of escaping from the accused when the victim was being undressed and no alarm or hue was raised to warn nearby neighbours about the rape. 

31. In the defence case the defendant denied knowing if their love relationship had ceased. If the accused did not know that fact or that such stand had not been communicated to him then, the possibility is that the accused had sex with her in the mistaken belief that, his relationship with the victim still existed by 3rd September 2005. Given the fact that there had been earlier sexual encounters existing between the accused and the victim, what should make the incident on 3rd September 2005 a rape? 

32. The principle in criminal cases say that to enable the court to be satisfied beyond reasonable doubt of an accused's guilt, it is necessary not only that his or her guilt should be a rational inference, "but that it should be the only rational inference": The State v Tom Morris [1981] PNGLR 493 or the case of Paulus Pawa v The State [1981] PNGLR 498, (see also The State v David Sopane (28.2.06) N3024). Is the accused guilt the only rational inference that the court could infer from the circumstances of the evidence in the instant case? I do not think so.

33. There are a number of inferences open to the court from the evidence to which I must say the guilt of the accused is not 'the only rational inference'. First there is an inference that, the victim might have been frightened of those who saw the accused and the victim going into the bushes. The victim was the only person who heard those on the passing truck shouting. Secondly, why did she not shout? In fact sex took place at day time and it was next to the accused's premises. 

34. When the accused was undressing her, why not run away from the accused. At least according to the victim's evidence, the accused had put that short bush knife away to undress her. Why stand still if there was an opportunity to run instead of waiting there to be raped if it was in fact a rape. In cases like this where a judge would have more than two inferences, there is likelihood of doing injustice even where one of the inferences was more probable than the other. 

35. It is for this reason that the principle has been developed in the above cases (see The State v Tom Morris and Paulus Pawa v The State supra) which in my view is correct that 'the guilt of the accused should only be the only rational inference'. In the circumstances of the instant case there are more than two inferences or conclusions reached as earlier mentioned and therefore, I find the accused not guilty and acquit him. His bail money of K300.00 be refunded to him immediately.

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