N3919

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 147 OF 2009

THE STATE

V

JEFFERY SUPUNAU

Madang: Cannings J
2010: 8, 9, 11 March

VERDICT

CRIMINAL LAW – trial – rape – Criminal Code, Section 347(1) – whether the accused sexually penetrated the complainant – general denial: alibi.

The accused, a man aged in his late-20s, was charged with the rape of a mature-aged woman, who was well known to him. The State's case was based on the sworn testimony of the complainant and her husband, to whom the complaint of rape was made the following day. There was no medical evidence. The accused made an unsworn statement, denying sexual penetration and raising an alibi, in accordance with a notice of alibi. Two witnesses gave evidence in support of the alibi.

Held:

(1)	Under Section 347(1) of the Criminal Code, the crime of rape consists of two elements:

•	the accused sexually penetrated the complainant;
•	without her consent.

(2)	The evidence of the State witnesses was not devoid of credibility. However, the lack of a prompt complaint and the lack of any evidence of physical or emotional distress are important factors to take into account when deciding whether the complainant's evidence should be accepted.

(3)	The alibi evidence was reasonably strong and consistent.

(4)	There was a reasonable doubt about whether the accused sexually penetrated the complainant. The first element of the offence was not proven and the accused was found not guilty.

Case cited

The following cases are cited in the judgment:

John Jaminan v The State (No 2) [1983] PNGLR 318
The State v Alex Matasol Hagali CR No 928 of 1997, 28.09.06
The State v Elizah Keno CR No 1033 of 2002, 22.02.08
The State v James Yali (2005) N2988
The State v Jimmy Aiyo CR No 147 of 2005, 28.09.06

TRIAL

This was the trial of an accused charged with rape.

Counsel

A Kupmain, for the State
A Meten, for the accused

11 March, 2010

1. CANNINGS J: Jeffery Supunau, the accused, is aged in his late 20s. He comes from Kairuru Island, East Sepik Province. He is a resident of Madang town and he is charged with rape.

2. It is alleged that he committed the offence against a mature-aged woman, the complainant, "C", who is well known to him, outside her house in Modilon Road, Madang, at 10.00 pm on Friday 19 October 2007. The State's case is that the accused pulled her out of the house, took her to a nearby chicken house and sexually penetrated her by introducing his penis into her vagina, without her consent. The State's case was based on the sworn testimony of the complainant and her husband, to whom the complaint of rape was made the following day. There was no medical evidence.

3. The accused made an unsworn statement, denying sexual penetration and raising an alibi, in accordance with a notice of alibi. Two witnesses gave evidence in support of the alibi.

ELEMENTS OF THE OFFENCE

4. Rape is an offence under Section 347 of the Criminal Code, 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.

5. To obtain a conviction the State must prove the two elements set out in Section 347(1) beyond reasonable doubt:

•	the accused sexually penetrated the complainant;
•	without her consent.

6. The indictment does not allege any circumstances of aggravation.

ISSUES

7. The issues are:

•	Did the accused sexually penetrate the complainant?

•	Did the complainant consent to having sex with the accused?

DID THE ACCUSED SEXUALLY PENETRATE THE COMPLAINANT?

8. Determination of this issue requires:

•	a summary of evidence for the State;
•	a summary of evidence for the defence;
•	a preliminary assessment of the State's case;
•	a summary of defence counsel's submissions;
•	assessment of defence counsel's submissions; and then
•	final determination of the question whether the accused sexually penetrated the complainant.

Evidence for the State

9. Two witnesses gave evidence for the State: the complainant and her husband. The only other evidence was the accused's record of interview, in which he denied sexually penetrating the complainant. He said that he used to live with her and her husband. The complainant was a good mother to him and he did not have any problems or arguments with her. The only problem was that her husband used to get angry with him. There was no other evidence – no medical evidence, no exhibits, no witness statements.

10. (1) 	The complainant, Cathy, is a mature-aged woman, married with four children, aged 10 to 15 years at the time of the incident. She is from Kubalea, East Sepik Province. She was sleeping in her house at the Rural Water Supply Yard, Modilon Road, Madang, on the night of Friday 19 October 2007. Three of her children were in the house with her, sleeping in a separate room. There was no one else in the house. Her husband, Jerry, was away for work at Walium, on the Madang-Lae Highway.

11. At 10.00 pm she heard the voice of the accused, Jeffery, outside the house. She knows him very well and could easily recognise his voice. He had previously lived with her and her husband for four years. He was treated as a member of the family and she regarded him as an adopted son. He sang out for money. He knew that she might have money as she and her husband 'sell' money to people for profit, ie they lend money and charge interest. She replied that she had no money as Jerry had taken it all away with him.

12. He then pushed open the door of the house. The lock on the door was broken. He came into the bedroom and pulled her out of the house. He closed her mouth with a face towel, took her to the chicken house about ten metres away, tackled her to the ground, removed her laplap and pants, spread her legs and sexually penetrated her by pushing his penis into her vagina, without her consent. It was dark, as they had no power connected at that time, and raining heavily, but he came face-to-face with her in the house and also outside when he was raping her. She told him that she would report him to her husband, which she did when he returned from Walium the next day.

13. She did not report to anybody that night what happened to her. She wanted to wait until her husband returned. She did not go to the hospital at any time.

14. In cross-examination she confirmed that she did not report the matter that night, not even to her neighbours. There had never been problems in the past between the accused and her or her husband, she said.

15. (2) 	The complainant's husband, Jerry, is also from East Sepik Province. He has worked as an artisan for the Rural Water Supply for the last 16 years. He had gone to Walium when the incident happened. He had driven some teachers there from the Lutheran School of Nursing. He returned the day after the incident and his wife told him that Jeffery had raped her the night before. He was angry and took her to the CID and made the report.

16. In cross-examination Jerry said that he had not had any trouble in the past with Jeffery. He and his wife looked after Jeffery for four years so he knew him well. He was not jealous of Jeffery. He confirmed that he came back from Walium on Saturday 20 October and reported the matter to the police on Monday 22 October.

That was the close of the State's case.

Defence witnesses

17. The accused made an unsworn statement from the dock and there were two other witnesses.

18. (1)	The accused, Jeffery Supunau, said that in October 2007 he had a job as a handyman with the Lutheran School of Nursing, Madang. On 18 October he had a fight with Jerry, in the middle of the day. Later that day Jerry bashed Cathy who then came around to the house at Nabasa, in Madang town, where he (Jeffery) was living with his cousin-sister and her husband (the defence witnesses). Cathy told them that Jerry had bashed her. This was because Jerry suspected that something was going on between her and him (Jeffery). Jerry was getting jealous for no good reason.

19. The next day, on the morning of Friday the 19th, Jerry came to Jeffery's workplace and again fought with him, threw a rock at him and threatened to kill him.

20. That night he stayed at the house at Nabasa. His cousin-sister and her husband were hosting a function for grade 10 Nabasa High School students. It was also their wedding anniversary. They told him to look after the yard so he stayed there. There was no rain until the morning.

21. (2)	The accused's cousin-sister, Scholar Bogg, is from the same place as the accused, Kairuru Island, East Sepik Province. She is married, with six children. She and her husband, Benny Bogg, live at Nabasa. The accused, Jeffery Supunau, lives with them and has done so for the last four years.

22. On Friday 19 October 2007 Jeffery was with them at the house. They were hosting a party for grade 10 Nabasa High School students. Her daughter, Ursula Jane, was in a graduating class, so about 30 students came. It was also her (Scholar's) wedding anniversary. The students started arriving at 4.00 pm. The party didn't finish until 7.00 am the next day. Jeffery and her eldest son, Francis, were looking after the gate and ensuring that no outsiders came in.

23. In cross-examination Scholar said that some of the students were drinking alcohol, some had been drinking before they came to the party, but she and her husband were not drinking. They gave instructions to Jeffery that he was not to drink. She did not go to sleep until after the last of the students left at 7.00 am.

24. (3)	The accused's in-law, Benny Bogg, aged in his late-40s, a former journalist, from the Bogia District of Madang Province, has been married to Scholar for 24 years. He was at their home at Nabasa on the night of Friday 19 October 2007. He gave similar evidence to that of his wife about the party. He went to sleep at 2.00 am, after ensuring that the noise had died down by midnight. He is sure that Jeffery was there as he had tasked him with something to do.

That was the close of the defence case.

Preliminary assessment of the State's case

25. In the absence of medical evidence and corroboration of the complainant's version of events (apart from the husband's evidence), the State's case is heavily reliant on the credibility of the complainant's evidence. In saying that, it must be acknowledged that corroboration is not essential in view of Section 352A (corroboration not required) of the Criminal Code, which states:

On a charge of an offence against any provision of this Division, [Division V.7, (sexual offences and abduction)] 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. [Emphasis added.]
 
26. I am therefore not required and not allowed to instruct myself that it is unsafe to find the accused guilty in the absence of corroboration. Nevertheless, in any criminal trial where the State's case is based on the uncorroborated testimony of one witness, caution needs to be exercised.

27. Mr Kupmain submits that the most likely scenario is that Jeffery was at the party at the Boggs' residence, that he consumed alcohol, that he had some underlying grievance against the complainant's husband, Jerry, and that he walked around to their house, which is close by, and took out his frustrations against the complainant, who he was also frustrated with as she refused to lend him any money. As for the alibi evidence, it was weak, Mr Kupmain submitted, as the two alibi witnesses were not convincing and Benny Bogg, in particular, was evasive.

28. The accused elected not to give sworn evidence, which meant that much of what he said could not be tested in cross-examination; and in this case the failure to testify was significant as the complainant's direct evidence of what actually happened was left uncontradicted.

Defence counsel's submissions

29. Mrs Meten submitted that the State's case should fail for a number of reasons. There was no medical evidence and there was only unreliable evidence of a complaint being made to the police. The complainant, though she may have been raped, was not in a position to identify the perpetrator as it was too dark. The alibi evidence was strong. The State witnesses had a motive for lying.

Assessment of defence counsel's submissions

1	Lack of medical evidence

30. Mrs Meten highlighted that there is no medical report before the court. I agree that this was a significant aspect of the State case. It is not essential that there be medical evidence in a rape case but its absence is something to take into account in determining whether a rape allegation is truthful, especially in a case as this where the alleged incident happened in a town, in fact just a short distance from Modilon General Hospital. The complainant said that she did not go to the hospital at any time, which seems unusual.

31. It also seems unusual that she did not report the matter to anybody other than her husband. She did not wake her children to tell them what happened. She did not alert the neighbours; and they evidently heard nothing. She did not, it seems, scream or struggle. There is no evidence that she was physically or emotionally distressed or that there were any telltale signs of rape such as torn clothing. The absence of this sort of evidence tends to suggest that the complainant was not in fact raped.

2	Identification evidence

32. I have great difficulty with the defence counsel's concession that the complainant was raped by someone; when there was also a submission that the complainant's evidence that it was the accused who raped her should not be believed because she would not have been able to identify him.

33. I would have thought a more logical submission for the defence counsel to make would have been that the complainant's evidence was a concoction: that she was not raped at all; that she made up the story for some reason. If, in fact, she was raped, then I consider that it would have been very easy for her to identify who the perpetrator was, even though it was dark. She said that she recognised the accused's voice when he was calling out from outside the house; he then came in, pulled her out of the house, took her to the chicken house and was face-to-face with her when he penetrated her. She knew him very well. He had lived with her for four years and called her 'mother' in his police interview. The chances of this allegation being a case of mistaken identity are next to zero.

34. The argument about the poor quality of the identification evidence is ill-conceived. I reject it. I also reject the defence counsel's concession that the complainant was raped by some other person. The court is obliged to afford the accused the full protection of the law and that includes, in my view, disregarding contradictory and damaging submissions made by a defence counsel.

3	Alibi evidence 

35. Mrs Meten submitted that the accused could not have been involved in an incident at the complainant's yard as he was elsewhere at the time. This submission calls for an examination of the principles surrounding alibi evidence arising from the leading Supreme Court case of John Jaminan v The State (No 2) [1983] PNGLR 318.

36. If an alibi is raised the burden of proof does not shift from the prosecution. The onus is never on the accused to prove an alibi or prove innocence. However, in practical terms, the accused must lead some evidence of an alibi and it must be sufficiently convincing to create a reasonable doubt in the mind of the tribunal of fact. How strong or convincing the alibi evidence must be, depends on the strength of the evidence of the prosecution witnesses. If their evidence is very strong, the alibi evidence needs to be reasonably strong to raise a reasonable doubt in the mind of the Judge as to the guilt of the accused.

37. Unlike the defences of self-defence and provocation, there is no rule of law that says that once an alibi is raised it is up to the prosecution to disprove it. If an alibi is rejected it does not necessarily follow that the court should enter a conviction. The court must still be satisfied that the prosecution has proven its case beyond reasonable doubt. An alibi that is determined to be false may, depending on the circumstances, amount to corroboration of the complainant's evidence. Great caution should be exercised before drawing an inference adverse to an accused, as a result of the accused's failure to call a witness that might reasonably be expected to support the accused's alibi. A belated alibi, not revealed on any earlier occasion prior to trial, should be given less weight than an alibi consistently given over a long period, eg since the beginning of the police investigation, in a record of interview or in committal proceedings. The court should consider whether the alibi evidence contains convincing detail or whether it is vague and short on detail. The court should also consider the demeanour of any alibi witnesses and whether there are any inconsistencies in their evidence.

38. Having considered the above matters, I record the following relevant considerations:

(i)	A notice of alibi was provided to the State. Names of alibi witnesses were provided, so the State was given the opportunity to investigate the worth of the alibi and adduce evidence contradicting it. The alibi notice provided a solid foundation on which the alibi witnesses gave their evidence.

(ii)	The accused's story, though given in an unsworn statement, was consistent with the version of events set out in the alibi notice.

(iii)	Two witnesses gave evidence in support of the alibi. Mr Kupmain submitted that they gave inconsistent and unreliable evidence and attacked their demeanour, especially Benny's. But I don't agree. The inconsistencies in their evidence (what time did the party start? how many students were there?) were minor and unremarkable. They were both reasonably impressive and intelligent witnesses. They were not obviously lying.

In light of the above, I cannot conclude that the alibi evidence was false.

4	A motive for fabricating evidence

39. Though not a lot of emphasis was put upon it in the defence counsel's submission, it would seem that there is some evidence that there is a history of ill-feeling between the accused and the complainant's husband and that this would have provided a motive for a false complaint of rape being made. The accused raised this in his record of interview and repeated the claim in his unsworn statement from the dock. Both State witnesses denied the claim but I consider that their denials were unconvincing.

Final determination of whether the accused sexually penetrated the complainant

40. As I pointed out in a case decided in Madang, The State v James Yali (2005) N2988, in any criminal case, including 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) about who is telling the truth. (Also see the Buka cases, 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, and another Madang case, The State v Elizah Keno CR No 1033 of 2002, 22.02.08.)

41. The court's task is, rather, to determine, having weighed all the evidence and considered that there are reasonable grounds for believing the complainant's evidence, whether it is satisfied to the required criminal standard of proof – beyond reasonable doubt – that the accused sexually penetrated the complainant. If there is a reasonable doubt, the court is obliged to acquit the accused.

42. Here, I have weighed all the evidence. The complainant was not obviously giving false evidence when she said that the accused raped her. Her demeanour in the witness box seemed satisfactory. Her husband did not give the impression that he was obviously lying. I am not entirely convinced that the accused was truthful in everything he said. Nor am I entirely convinced that the alibi witnesses were truthful. On the other hand, they did not obviously give false evidence. They were reasonably impressive witnesses.

43. After weighing all the evidence, I consider that there is some doubt about whether the accused sexually penetrated the complainant on 19 October 2007; and indeed whether any rape incident at all occurred on that night. It is quite possible that the evidence of the State witnesses has been fabricated. In these circumstances I am not satisfied beyond reasonable doubt that the accused sexually penetrated the complainant. The State has failed to prove to the required standard the first element of the offence of rape.

44. It is not necessary to consider the issue of consent. The accused is entitled to an acquittal.

VERDICT

45. Jeffery Supunau is found not guilty of the crime of rape under Section 347(1) of the Criminal Code.

Verdict accordingly.
____________________________

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