N5266

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 366 of 2007

THE STATE

V

JUVENILE G A

Vanimo: Batari J
2010: 12 & 16 March

CRIMINAL LAW– rape – evidence – general denials – juvenile accused – special measures – assessment of evidence – general denials – sufficiency of evidence – onus of proof – state discharged onus on required standard.

Cases Cited

No cases cited 

Counsel

F. Popeu, for the State
A. Turi, for the Accused

VERDICT

16 March, 2010

1.	BATARI J: This is a trial on the charge of rape. The State also charges in the alternative, one count of attempted rape. It is alleged that the accused, a juvenile (GA to protect his identity) abducted a young girl from the road at Bewani Station, Sandaun Province and raped her. In the alternative, he attempted to commit that offence.

2.	The State relies on the evidence of the complainant, (DD to protect her identity) and her mother to demonstrate the accused committed the principal offence or an attempt as alleged. It also relies on corroborative evidence from a medical report together with oral evidence from the author of the report to show penetration or an attempt thereof occurred. For his version, GA admits being present with the complainant but denies raping her. He generally denies sexual contact with the complainant.

3.	The principal issue is therefore whether sexual penetration or an attempt occurred between GA and DD and if so, whether it was without DD's consent.

4.	First, I make some observations on the ages of GA and DD. The hearing was held in camera following application by defence because of GA's young age. The complainant was similarly of young age. On 28/8/05 being the date of the alleged incident, DD was said to be aged 13 years and in Grade 2 in Community School. GA attended the same school and was in Grade 5. His lawyer Ms Turi, when applying for protective orders for his trial under s. 23 of the Juvenile Courts Act 1989 said GA is now 17 years. That would make him, 12 or 13 years old in 2005. On those assertions, both GA and DD would be around 13 years as submitted by Ms. Turi. It would then not be unusual for a student of 12 or 13 years of age to be in Grade 5 in 2005 assuming he or she started schooling at the age of 7 of 8 years.

5.	The complainant, DD possibly started school much later in her life to be still in Grade 2 in 2005 at age 13 years. I had the opportunity to observe her in Court. She is small in built. She presents a deceptive appearance for a girl who would now be 17 or 18 years old. Her diminutive stature and appearance is that of a 12 or 13 year old girl. Without advantage of background information on her age, one may be shocked into disbelief that she is now married with one child. I did not for once think she was serious when she gave evidence of being married and I still wondered whether she is underage. GA on the other hand looks his age of 17 years at the time of trial.

6.	The uncontested facts which form the primary findings of facts are very brief. On the afternoon of 28/8/05, both GA and DD were at Bewani soccer field watching soccer games possibly from different locations on the field. At some point while the games were still in progress, the two met and were together for sometime, some distance away from the soccer field and the spectators. They then left their different ways. GA returned to the soccer games, DD returned to the road where she met her aunty Titibi and her husband. She then told her aunty GA had just raped her. Her own mother was also informed and she was taken to Bewani Health Centre for examination.

7.	A medical report presented by one, Christina Trintemnok a nursing officer/midwife who conducted the examination at Bewani Health Centre noted in her findings:

•	Perineum without any lacerations, bruises or blood stains, 
•	Mons pubis (hair) not developed yet.
•	Vulva, labia majora and minora intact, no bruises or lacerations,
•	Small lacerations and bruises around vagina,
•	Visible wetness around the vagina
•	No blood spots or stains around the vaginal opening.

8.	She noted in general, the areas surrounding the perineum appeared normal except for the small lacerations and bruises around the vagina. In her oral evidence, the nursing officer stated that upon admission to the health centre, DD looked normal, she was not in distress, she spoke freely and confidently. The medical officer did not see any dirt or blood on the skin or the clothes DD wore at the time of the incident except for the wetness found on the under parts of the trousers and pants. She did not detect any physical signs of trauma like lacerations or bruises on general external examination on DD's body and her clothes were described as intact with no tear.

State's Evidence of Non-consensus Sexual Penetration 

9.	In her evidence, DD spoke of feeling hungry while watching soccer games, she decided to return home. Unbeknown to her, GA had waylaid her along the road. When she approached, he came out of the bushes and grabbed her hands. GA then forced her into the bushes where he removed her clothes, pushed her to the ground and had sexual intercourse with her. She testified that the sexual penetration was effected by pushing his penis into her vagina against her consent. He then fled the scene while she returned to the road and related the story of rape to her aunty.

10.	Linda Yamap is DD's mother. She too was at the soccer field watching the games. Her evidence is that, DD's aunty, Susie Francis told her, DD was in trouble. When she left to investigate, DD came to her crying and told her without any prompting on her part, GA had raped her. Linda then took her daughter to Bewani Health Centre. Following that, the matter was referred to the police.

11.	I am not sure and there is no evidence if a Susie Francis who Linda mentioned in her evidence is the same person DD named as Titibi in her evidence. It is however, obvious that Linda had first learned of the rape complaint from a second or third source. In cross-examination, defence counsel also attempted to show her unreliability when questioned on her prior inconsistent statement to the police that she was in the village when told of the alleged incident involving DD. She had then asked DD and DD responded that GA had raped her.

Defence Evidence of General Denials

12.	The story told by GA in his defence is that, in 2005 DD was his girl friend. On the date in question, they were both at the soccer field watching the games. He met up with DD and they proceeded to a secluded spot at the back of school teacher, Job Baun's house. They sat talking for some time before leaving on their separate ways. He vehemently denied the allegations of rape.

13.	I think his denials extended to any form of physical contact or inappropriate advances of sexual nature towards DD. To that extent, I think GA lied in his oral testimony. The complainant he claims was his girl friend. He was alone with her for sometime at a secluded place. At their youthful ages, GA and DD would be lacking the capacity expected in adults to make rational choices. They would be more likely to be careless, adventurous and experimenting in sexual activity without really thinking about the consequences. So, it is likely, the wetness on the under part of DD's clothes together with the lacerations and bruises found around the vagina were the result of some sexual activity between GA and DD. Whether that proves rape or an attempt thereof is matter to assess on the evidence. It is sufficient at this juncture in assessing the demeanour of GA to say that he was most probably untruth in saying he and DD only talked.

Did sexual penetration occur?

14.	The evidence of the State is that, GA sexually penetrated DD by inserting his penis into her vagina. Her evidence is supported to some extent by the medical evidence of "small lacerations and bruises around the vagina." That finding of fact is not disputed or clarified during the oral evidence of the examining nursing officer. Because small injuries were noted around the vagina, it raises the issue of whether the evidence is sufficient to constitute "sexual penetration" in law.

15.	Section 6 of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 defines "Sexual penetration" as follows:

"6.	Sexual penetration

When the expression "sexual penetration" or "sexually penetrates" are used in the definition of an offence, the offence, so far as regards that element of it, is complete where there is —

(a)	the introduction, to any extent, by a person of his penis into the vagina, anus or mouth of another person; or

(b)	the introduction, to any extent, by a person of an object or a part of his or her body (other than the penis) into the vagina or anus of another person, other than in the course of a procedure carried out in good faith for medical or hygienic purposes." 

16.	 It is clear from this definition; the element of sexual penetration is complete upon the introduction of penis, an object or part of a body (other than penis) into the vagina, anus or mouth of another person. Penetration can be to any extent and includes the slightest introduction of the penis, or any other part of the body, or a foreign object into the vagina. Only the slightest penetration is necessary to sustain the element of penetration.

17.	In this case, the injuries were found around the vagina. Injuries being found around the vagina imply injuries being located on the outer and to the exclusion of the inner or slightest inner part of the vagina. That is made certain by the medical findings that, "Vulva, labia majora and minora intact, no bruises or lacerations. …. No blood spots or stains around the vaginal opening." These findings are in direct contradiction of the oral evidence of "sexual penetration" from DD and her mother. Besides, the medical examination was conducted possibly within an hour of the incident. The distress condition DD's mother spoke of is unsupported by the medical officer who observed DD to be normal and not in any state of pain or suffering. In fact one would reasonably expect to find obvious external signs of distress on a girl traumatised by physical sexual violation or rape. In this case, the independent evidence of the examining nursing officer shortly after the incident found none.

18.	But more decisively against the States' case, is the exclusion by the medical evidence of the essential element of sexual penetration. Mr. Popeu of Counsel for the State concedes and I conclude that the evidence fails to establish an essential element of rape charged on the indictment. The accused is acquitted on that charge. This leaves the alternative charge of attempted rape.

Did GA attempt sexual penetration, if so, was the attempt non-consensual

19.	The accused denies having any form of sexual contact with DD. I think he had some form of sexual contact with DD which he was unprepared in his oral evidence and conduct, to admit. Earlier on in his record of interview with the police, GA admitted a consensual relationship with DD. The admission in question and answer 38 read either way can mean an admission to mere relationship or it can mean an admission to actual sexual contact. Having found that there was no sexual penetration, it could be that there was attempted sexual penetration and the evidence thus far point to that possibility.

20.	To constitute the offence of attempt charged on the indictment, there must be proof of an act sufficiently proximate to the offence attempted. In this case, the prosecution must prove beyond reasonable doubt, the accused had begun to put his intention to rape DD into execution by means adapted to the fulfilment of that offence. The evidence and the reliability of witnesses with or without corroboration are essential for the purpose of proving attempted rape.

21.	The complainant appeared certain GA accosted her on the road and pulled her into the bushes where he sexually penetrated her. However, in view of the medical findings, she was simply unreliable in her assertive story of actual sexual penetration. Mr. Popeu submitted that due to her youthful age, she could be honestly mistaken as to the sexual penetration element. But her evidence that GA pushed his penis into her vagina was explicit. It left no doubt as to what she meant. Having found DD unreliable on this aspect, it is possible she might be unreliable on other parts of her evidence.

22.	Most notably, DD did not speak of any physical resistance like struggling or putting up a fight except to say GA covered her mouth with his hands when he grabbed and pulled her from the road. There were occasions when GA no longer restrained her mouth and further that she did not speak of any threats by GA before, during or after the incident. Furthermore, the incident occurred during broad light and only some 20 to 30 metres from the road. There is evidence of presence of others on the road. I think the incident was also in the vicinity of houses and public amenities where presence of others was expected. She did not however give any evidence of shouting or screaming or calling at any stage of her alleged ordeal.

23.	It is also critical to the State's case that no evidence was led to show why or what prevented GA from achieving his intention. There is no evidence of any intervening event like the girl putting up a fight or someone intervening that may have caused GA to desist from fulfilling his intention. He and DD were alone in a secluded place. Having rubbed his penis around the vagina which I think he did, the situation was conducive for him to achieve penetration. What prevented GA from going that far? One possibility that is open on the medical evidence is that the sexual act of rubbing the penis around the vagina and ejaculating was consensus.

24.	A further crucial omission in the State's case is the evidence from DD's aunty. Unspecific, broad suggestions from the defence line of cross-examination are that, DD was forced to make up the rape story. The detail and extent of the allegations were not put to the state witnesses.

25.	It would however seem logical to infer, that DD's auntie Titibi and her husband had seen DD when she emerged from the road side. They were only some 20 to 30 metres from her and she was possibly caught unaware by their presence. She had come out from the bushes, an unlikely place for her to be and her relative would have enquired what she was doing. The story of rape would have then been volunteered or manufactured. The auntie could then have thrown some light on this aspect and possibly supported DD's evidence. She was not called. I am hesitant, in the light of DD's unreliability and the medical report, to accept on face-value, her evidence of voluntarily complaining of rape to her auntie Titibi. I do not think DD volunteered the story of rape. Neither do I believe DD volunteered her story to her mother who gave two conflicting versions on this aspect.

26.	I find the evidence of DD and her mother generally wanting on a number of aspects raised. It follows that there is insufficient evidence to sustain a conviction on attempted rape.

27.	There is a possible case for attempted sexual penetration of a girl under the age of 16 years. That alternative is however not specifically charged. Even if a conviction may be open under s 541 (Charge of rape and like offences) or s. 546 (Conviction for attempt to convict offence) of the Criminal Code as an alternative verdict on the proven facts, it may not stand because of the age compatibility between GA and DD at the time of the incident and the defence of consent open to GA under s. 229F of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. This provision permits sexual penetration of a girl of 12 years or older by a person who was no more than 2 years older than her, if the act did not involve abuse of trust, authority or dependency.

28.	In the end result, the State has not proven on the requisite standard, the guilt of GA on the charge of rape or on the alternative charge of attempted rape. I return a verdict of not guilty. GA is acquitted on both charges and discharged forthwith. 
____________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused