N4170

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1207 OF 2008

THE STATE

-V-

HUBERT RUBEN

Madang: Kawi, J
2010: 10th, 15th & 25th June

CRIMINAL CODE - Rape of a person under 18 years- Rape of a Child - Section 347(1) – indictable offence – s.347A – Meaning of Consent –– Penetration and lack of consent – No real dispute as to act of sexual intercourse –Previous sexual act of intercourse does not amount to consent- No case Submission – Principles of – Two distinct test – Visual identification of accused – Principle – Voice identification of the accused – voice matched that of accused-Principle – Victim identified accused and called him by name –Voice matched that of the person who first had sexual intercourse with accused No physical injuries sustained and no physical injuries to vaginal areas – No evidence of physical struggle-Not indicating consent – Victim offered no resistance during sexual intercourse – Does not amount to consent- Accused has a case to answer.

Cases Cited:

Papua New Guinea Cases

State –v- Paul Kundi Rape [1976] PNGLR 96
The State -v- John Beng [1976] PNGLR 471
John Beng -v- The State [1977] PNGLR 115
The State -v- Misimb Kais [1978] PNGLR 241
The State -v- Roka Pep [1983] PNGLR 19
The State -v- Roka Pep No.2 [1983] PNGLR 287
The State –v- Daniel [1988-89] PNGLR 580
The State -v- Ludwick Jokar (No 1) (2008) N3361

Overseas Cases

R –v- EJ Smith [1984] 1 NSWLR 461
R -v- Raymond Turnbul (1976) 63 Cr App R 132

Counsel:

Mr A. Kupmain, for the State
Mr B .Meten, for the Accused

RULING ON NO CASE TO ANSWER SUBMISSION

25th June, 2010

1. KAWI, J: Hubert Ruben is charged with one count of rape of the prosecutrix, one Ms LA, a thirteen year old female on the 10th April 2008 at Furan Village Madang Province. The State alleges that this is contrary to s.347(1) of the Criminal Code.

2. Upon arraignment he pleaded not guilty and the trial commenced with the victim LA being called to give sworn evidence. She gave evidence of going to the toilet and when she was coming out the accused allegedly grabbed her by her hand and led her to the back of the toilet and forced her to lie on the ground when the accused allegedly penetrated her vagina by inserting his penis into her vagina.

3. This alleged rape incident occurred at about 10:00 p.m. in the night. The prosecutrix gave evidence that although it was dark, she could clearly identify the accused, firstly by his voice when he grabbed her and then ordered her not to call out or scream for help. Secondly the victim called the accused by name after he grabbed her hand and told her not to scream for help. Thirdly she said that the lighting from her grandmother's house which was about nine (9) meters away was sufficient for her to recognize him as after all he was not a total stranger, but an uncle who likes to hang around at the Furan Village Resource Center to take part in the village band. 

4. The next State witness was one Manoa Timbi who gave evidence of being at the Furan Village Resource Center that night playing musical instruments and drinking beer when they were ordered to stop by the victim's grandmother as they were making a lot of noise and also the musical instruments were consuming a lot of electricity. 

5. After they stopped he went to the nearby canteen and bought some biscuits and tinned meat to eat. He was still hanging around the Resource Center, when the victim's uncle one, Noah Ariku went and fetched him. He was brought to the home of the victim's grandmother. There he was questioned about the rape incident and assaulted after he was suspected of raping LA. He escaped when police arrived that night to investigate the rape incident.

6. In cross-examination he vehemently denied raping LA.

7. The final State witness was Ruth Ariku, the biological mother of the victim LA. She gave evidence of hearing her mother call out the victim's name several times that night.

8. Suspecting that something was wrong, herself and her husband walked out of their house to investigate. On their way they bumped into the prosecutrix who had only a shirt on. The mother questioned her as to where she was to which she replied that she went to have her shower and her uncle Noah chased her away. When the mother saw that she was not wet, she became more suspicious. 

9. Upon flashing the torch on her body, she realized that there were dirt and leaves on her back and her shirt. She then asked her mother (the victim's grandmother) a qualified registered nurse, to check her which she did. Upon checking her, the grandmother confirmed that the victim has had sexual intercourse that night.

10. The victim LA was questioned as to who penetrated her. She was slapped and hit several times by her uncle Noah. At this point, a relative, one Job Sogasog came to her rescue, and took her away. As they were walking away he put his hands around her neck and they walked towards the toilet. As they were walking away, Job Sogasog told LA to say that she was raped by one Manoa Timbi. Job then shouted back to the others saying that it was Manoa Timbi who raped her. When they came back to the grandmother's house where the others were, she told them that it was Manoa Timbi who had raped her. The accused Hubert Ruben was never arrested, until two days later, while she was in town watching a game of soccer. 

11. During cross-examination she was questioned as to why it had taken her two days to identify the accused. She replied that the trauma of the rape incident and the fear of being assaulted by her uncle Noah Ariku, made her afraid and so she withheld giving away information and identifying Hubert Ruben as the alleged rapist.

12. The State then closed its case after tendering other documents and witness statements by consent. At the close of the prosecution case, the defence then mounted a no case to answer submission on both legs of the tests expounded in the case of State –v- Paul Kundi Rape [1976] PNGLR 96.

PRINCIPLES OF LAW ON A NO CASE TO ANSWER SUBMISSION

13. In the Paul Kundi Rape case two distinct but related tests or principles were expounded and they may arise at the close of the State case or indeed at any stage of the trial. See also The State -v- Misimb Kais [1978] PNGLR 241. 

14. The first test is this; whether on the State evidence as it stands the accused could be lawfully convicted.

15. The second test is this; whether there is a no case to answer, the accused may as a matter of law be called upon to answer it. Where there is a case of insufficiency of evidence, an accused person may as a matter of law be called upon to answer it, but there is a discretion vested in the Judge either to take the case away from the jury or a tribunal of fact or not.

16. Two relevant authorities on a no case to answer submission decided after Paul Kundi Rape are The State -v- Roka Pep [1983] PNGLR 19 a decision of the National Court, where the court expressed the two principles in this way:
 
A submission of no case to answer at the close of the case for the prosecution is a question of law for the Judge to decide, the question being whether there is evidence, which if accepted by the jury would establish the elements of the offence.

Where there is a case to answer, but the judge is of the view, on the facts, that no matter what the evidence may be called by the accused, the prosecution case will not be proved beyond reasonable doubt, or the prosecution case will not improve, is hopeless or intrinsically weak, then the judge has a discretion to acquit the accused on the no case submission.

17. Perhaps a better understanding of the principles is the summary in the decision of the Supreme Court in The State -v- Roka Pep No.2 [1983] PNGLR 287 which adopted and applied the principles in The State -v- Paul Kundi Rape.

18. The Supreme Court (per Kidu CJ, Kapi DCJ, Andrew J and Kaputin J) summarized the two tests as follows:

 "Where in criminal proceedings at the close of the case for the prosecution, there is a submission of a no case to answer, the question is for the Judge as a tribunal of law, the test is whether the evidence supports the essential elements of the offence. 

Where a tribunal decides there is no case to answer the accused is acquitted and that is the end of the matter.

Where the tribunal decides there is a case to answer, it nevertheless has a discretion to stop a case at the close of all the evidence in appropriate circumstances; this discretion is exercisable where there is a mere scintilla of evidence and where the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it.

(Per Pratt J) "A tribunal should make a finding of no case to answer where (a) there is no evidence to answer an element of the offence charged or (b) there is some evidence covering the elements of the offence charged, but it is so tenuous or inedible or discredited that it amounts to only a scintilla, and thus could not be accepted as persuasive by any reasonable person." 

19. In cases of rape the prosecution bears the burden of proving the following elements:

a)	There was sexual penetration of the victim;
b)	The sexual penetration of the victim was effected without the consent of the victim.

20. The defence mounted the no case submission on two fronts; first it argues that the sexual penetration was by consent. In this regard, it points to the following facts as implying consent:

(a) The prosecutrix and the accused had sexual intercourse on a previous occasion something to which the prosecutrix admitted.

(b) The medical evidence does not show any vaginal injuries. This in turn indicates that no physical force or restraints were used to subdue or restrain the victim in order for the penetration to be effected

(c) It took the victim two days to eventually identify the accused as being the alleged perpetrator.

(d) She did not call out for help when the accused first penetrated her.

(e)	Her behavior does not indicate that she was raped. Immediately after having sex she did not go back to her grand mother's house but walked straight to the road. There she bumped into her parents and told them lies twice about being chased away by her uncle Noah when she went to have her shower.

21. On this basis it is argued that the first test in the Paul Kundi Rape Case, has not been satisfied. In other words the evidence of the victim has not established that the sexual intercourse occurred without her consent. That is to say that the main element of consent has not been established by the State's evidence as it currently stands.

22. The defence also submits that the accused could not be positively identified by the victim. It is argued that first someone else was identified. Then it took two days for the victim to identify the accused as the alleged perpetrator. Compounding all this is the fact that the alleged offence occurred at about 10.00pm in the night where the accused could not be positively identified. And so as the State evidence stands, it is so tenuous or lacking in weight and reliability and is hopeless that it only amounts to mere scintilla that the court ought to exercise its discretion to stop it at this stage.

23. In relation to the issue of consent, Section 347A defines consent in this way:

 "S.347A Meaning of Consent

 (1) For purpose 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 some-one else; or 

 (b) the person submits to the act because of the use of violence or force in 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 value 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 indices 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 a 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."

24. Section 347A(3)(b)(i), (ii), (iii) are very instructive here and provides some answers to the defence submission. 

25. Corroboration is also not required in cases involving sexual offences. This is specifically provided for in Section 22 of the Criminal Code (Sexual Offences and Crimes Against Children's) Act, (CCSOACAC) which is also the new s.352A of the Criminal Code.

26. Section 352A is stated as follows:

 "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 absence of corroboration."

27. In the present case Section 347A(3)(b)(i)(ii)(iii) is quite instructive here, and provides the answers to the first leg of the Defence submission. For avoidance of doubt, I re-state the law here:

(1) The fact that the accused and the victim previously had sexual intercourse does not mean and cannot be taken to mean that the victim freely consented to having sex with the victim on the night of the 8th April 2008.

(2) Similarly the fact that there were no vaginal injuries or physical injuries suffered by the victim is no indication of her free consent;

(3) The fact that she did not physically resist when the accused grabbed her by the arm is not an indication of free consent.

28. In The State -v- Ludwick Jokar (No 1) (2008) N3361, Davani J found that the accused who was a village councilor virtually used his position as a councilor to induce the victim into having sexual intercourse with him. At the time of trial the accused and the victim had been living together as husband and wife and had a child out of that relationship. On both occasions of having sex with her, he used his position to threaten her into submission.

29. Her Honour Davani J made the following comments in relation to his evidence that it was consensual sex:

 "In my view Section 347A(3)(a)(b)(i)(ii)(iii) of the Criminal Code 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 may have freely engaged in the acts of sexual intercourse. But that is not consent.

30. The victim's evidence is that she feared for her life and submitted into his perverted sexual lusts. 

31. Similarly in this case, the victim did not offer any physical resistance. She did not suffer any other physical injuries, let alone vaginal injuries. The evidence of her biological mother that she noticed dried leaves and dirt on her hair and her back may give some explanation of being forced to the ground.

32. The State evidence as it stands does establish the elements of penetration and lack consent from the victim. The State case at this stage cannot be described as so lacking weight and reliability, that it is hopeless and amounts to a mere scintilla.

33. This court finds that the opposite is true. Hence the no case to answer submission mounted as it is on the first leg of the principles in Paul Kundi Rape is hereby dismissed. 

34. The second leg of the Defence submission is that the accused could not be positively identified by the victim. Consequently it argues that the State's evidence as it stands is that while there is some evidence of the offence charged, such evidence is so tenuous and unreliable, or discredited and lacking in weight that it amounts to a mere scintilla and thus could not be accepted as persuasive by a reasonable person or tribunal. It would not be safe to convict on the state of such evidence as they stand.

35. The victim's evidence on identity is that the accused is a relative, an uncle. He was identified as an uncle, who normally would hang around her grandmother's house, where the Furan Village Resource Center is located. Young people including the accused would congregate around here to engage in entertainment activities or play musical instruments. On the night in question as soon as the victim was alighting from the toilet entrance, he grabbed her by her hand and ordered her not to scream or call for help. She obliged as she feared for her life. When the accused ordered her not to scream or call for help, she immediately recognized the accused by his voice and in fact called his name. She is not a stranger to his voice. 

36. Then when he was penetrating her, she could put the voice to his face and clearly see his face. According to her there was ample lighting provided by two fluorescent tubes, one hung from the kitchen and the other from the grandmother's house. The kitchen is attached to the main house and both are about 9 meters away from the toilet. According to the victim the lighting from the two florescent bulbs were sufficient and adequate for her to recognize him. She says there was sufficient visual recognition of him after initially identifying him by voice.

37. Both counsels failed to cite to me any case authorities dealing with identification either visual or oral identification when identity of a person is in issue. On my own limited research, I came across the case of The State -v- John Beng [1976] PNGLR 471 which deals with visual identification. In that case on a trial of an accused person who was charged with unlawfully wounding a young woman, the identification of the accused person by the young woman was the only real matter in issue after the accused denied criminal responsibility. The court held that; (from the head note.)

(1) where evidence of identification is relevant, the court should be mindful of the inherent dangers. There is no rule of law that the evidence of one witness is insufficient, nor is there any rule of law that there must be a police parade for purposes of identification, nor is there any rule of law that in every case a warning ought to be given (to the jury); it all depends upon the circumstances of the case before the court.

(2) where the identification relied upon is that of a single witness, it is proper to be mindful that the identification "was critical, and that mistakes have in the past occurred in regard to identification, thereby occasioning a miscarriage of Justice", and the court must be satisfied that the witness was not only honest but also accurate in the evidence given. Matters to be taken into account are, what opportunities the person identifying had to form a judgment of the identity of the person who committed the crime, the position of the parties when the identification was made, the lighting, the opportunities to form a judgment and generally the circumstances in which the identifying witness formed his judgment as to identification."

38. On appeal to the Supreme Court on the issue of identification, the Supreme Court dismissed the appeal. In dismissing the appeal the Supreme Court said this:

"It has long been recognized that there are dangers inherent in eye witness identification evidence. The court was referred to a number of authorities, the latest of them being a decision of the House of Lords in R -v- Raymond Turnbul (1976) 63 Cr App R 132. For that case guidelines were laid down as to the manner in which identification evidence should be treated. The following points (as set out in the head-note to the report) were made:

 "Whenever the case against the accused person depends wholly or substantially on the correctness of one or more identifications of the accused which the defence allege to be mistaken, the trial Judge should warn the Jury of the special need for caution before convicting in reliance on the correctness of the identification. He should make some reference to the possibility, that a mistaken witness could be a convincing one and that a number of such witnesses could be mistaken. Provided such a warning given, no particulars, form, of words need to be used. Further, the trial judge should direct the Jury to examine closely the circumstances in which the identification by each witness came to be made.

 Recognition maybe more reliable, than identification of a stranger; but even when the witness is purporting to recognize some-one whom he knows, the Jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made. All these matters go to the quality of the identification evidence. When the quality is good, the Jury can be safely left to assess the value of the identifying evidence even though there is no evidence to support.

Provided always however, that an adequate warning has been given about the special need for caution. When the quality of the identifying evidence is poor i.e., a fleeting glance or a long observations made in difficult conditions – the Judge should then withdraw the case from the Jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification." John Beng –v- The State [1977] PNGLR 115.

39. This court is very mindful that the victim was only 13 years old at the relevant time and that she may be mistaken as to the identity of the accused when he is a relative which in turn may lead to a miscarriage of justice. I will therefore warn myself of the possibility of mistaken identity inherent on accepting her evidence and will treat her evidence very carefully. I propose to consider the identification evidence of this one single witness who is not only a child but the victim herself under the different criteria proposed in the John Beng case to assess its credibility and cogency.

(1)	Was the Witness Honest and Accurate in Her Evidence

40. Young as she was, the victim was quite frank and honest in describing in minute detail her traumatic sexual experience of that night. It is the judgment of this court that she was honest and clearly accurate in her evidence. Her evidence was never discredited nor her demeanor impeached during cross-examination. 

41. Although there were some very minor inconsistencies in her evidence, that alone does not render her as an untruthful witness. I find her to be honest and quite frank and accurate in re-living her traumatic experience of that night. It is the court's judgement that she is a witness of truth.

(2) Opportunities the Victim Had to Form a Judgement of Identity of the accused- Voice Identification

42. The victim gave evidence that she had opportunities to identify the 
 accused as the perpetrator of the alleged rape.

43. First when he grabbed her by her hand at the entrance as she was just about to alight from the toilet. She immediately identified his voice although it was in the dark. Identifying him by his voice, she called his name. But he ordered her not to scream or call for help. She was quite familiar with his voice as after all he was a family member and the uncle of the victim. Secondly she identified his voice as the voice of the person who had previously penetrated her vagina with his penis. This brings into question the issue of identifying an accused person by means of his voice as opposed to visual identification. 

44. In the case of The State-v- Daniel [1988-89] PNGLR 580, Doherty AJ dealt with the admissibility of the evidence of a telephone conversation between the accused and the defendant. Her Honour dismissed objections to the admissibility of the witness' evidence identifying the defendant through a telephone conversation they had previously. In admitting the evidence of voice identification of the defendant, the court said that in voice identifications there are two groups: 

(a)	 First, those whose voice is known by the witness and recognized by the witness; and

(b)	 Secondly that voice not previously known by the witness but which is of such distinctive features that it leaves a clear mental impression in the mind of the witness enabling the conclusion to be drawn that they are the same.

45. In that case her Honour referred to and applied the NSW case of R-v EJ Smith [1984] 1 NSWLR 461, [1984] 12 A Crim R 439 Where the following passage is quite instructive:

" Since an early period, witness' testimony of identification of a person by having heard his voice has been regarded as legitimate and competent to establish identity in both criminal and civil cases. Such evidence is not the Statement of a mere matter of opinion, but is the statement of a conclusion reached directly and primarily from an operation of the sense of hearing. It is direct and positive proof. The infrequency in which the witness heard the voice before the time in question is not a reason for the exclusion of his testimony, although it may affect the probative value thereof……

Voice identification testimony has been received in a good many criminal cases as going to identify the defendant as the person who committed the crime for which he is on trial. Particularly where the crime was committed in darkness, or out of sight of witnesses, or by a person masked or otherwise disguised or where the witness is blind, testimony based upon a witness's recognition of the voice of the defendant as being that of the offender may be important in making out a case". 

46. In the present case the accused is not a total stranger to the victim. He is a family member. In addition she identified the voice as that of the person who penetrated her vagina for the first time, such that it left her with a clear and lasting mental impression of who the person whose voice it was. This is strengthened by the fact that being a family member she is quite familiar with the voice of the accused who would often hang around the Furan Village Resource Center which is located right next to her grandmother's house. Thirdly when the accused grabbed her and ordered her not to call out or scream for help, she recognized him by his voice and called his name. Fourthly when he was lying on top of her to effect his penetration of her vagina, she could clearly see his face and identify him due to the lighting provided by the light from her grandmother's house and kitchen. The Court finds that lighting provided by the two fluorescent tubes from her grandmother's house was sufficient and adequate. Hers was not a fleeting glance of a total stranger. Neither did he wore a face mask or tie a laplap around his face to conceal his identity or to camouflage his face and therefore disguise his identity.

47. It is the judgement of this court that evidence that the voice of a person involved in a crime is the voice of an accused person is admissible to prove identification of an accused person. And in this case this court finds that the accused was positively identified by the victim.

(3) Position of the Parties When the Identification was Made

48. A rape was being perpetrated by the alleged accused upon a victim who did not offer much physical resistance nor did she physically struggle with the accused, such that she would not know who her assailant was. Given her fear of being assaulted, she succumbed to his lustful and perverted sexual advance of the alleged accused. Initially she recognized the accused by his voice when he grabbed her hand. Upon recognizing him she called his name. Then she could match this voice with his face when he laid on top of her to effect the penetration of her vagina. Again her identification of him cannot be said to be fleeting glance of a total stranger.

(4) The Lighting

49. Generally the lighting was sufficient and adequate. The court considers and accepts her evidence that the two fluorescent tubes from her grandmother's house and kitchen provided good and adequate lighting for her to go to the toilet without a torch. I accept her evidence of the adequacy of lighting. In the court's judgment, visibility was good for the identification to take place.

(5) The Opportunities To Form a Judgement
 
50. In this case, apart from threatening her, there was no other physical violence inflicted upon her in person. Neither did she physically resisted his lustful advances. Hence the court finds that she had good opportunities to form a Judgment of the accused person starting with her recognition of his voice.

(6) The General Circumstances in Which Victim Formed Her 
 Identification

51. I have no doubt in my mind that the general environment and the circumstances she found herself to be in where conducive for her to form a Judgment of the identity of the accused.

52. Hence it is the Judgement of this court that the accused Hubert Ruben of Furan Village, Madang Province, was positively identified by the victim, Ms LA as the person who allegedly penetrated her vagina by inserting his penis into her vagina at about 10:00 p.m. or hereabouts on the night of the 8th April 2008.

53. Accordingly the court makes further findings as follows:

(a) there is sufficient evidence to satisfy all the essential elements of the alleged offence; and 

(b) 	The accused was clearly identified as the alleged perpetrator of the rape incident.

(c) The State evidence as they stand cannot be simply described as hopeless or intrinsically weak, or cannot improve the State case, or is so unreliable and tenuous that it is intrinsically weak. In fact it was never discredited in cross-examination such that it was rendered unsafe or unreliable to convict upon it.

54. For all these reasons, the no case to answer submission mounted by the defence on both legs of the rule in Paul Kundi Rape's case is hereby dismissed and the accused Hubert Ruben of Furan Village is hereby ordered to answer the allegation of rape preferred against him.

Orders accordingly.
_________________________________________

Public Prosecutor: Lawyer for the State 
Narokobi Lawyers: Lawyer for the Accused