N4171

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No OF 2010

THE STATE

V

FABIAN DYSON BELBET

Buka: Kawi, J
2010: 8th &18th September

CRIMINAL LAW- attempted rape- section 348 of the criminal code elements to prove include accused intended to have carnal knowledge of complainant without her consent- accused put his intention into execution by means adopted to its fulfillment- the accused manifested his intention by overt acts-Running up to the victim and grabbing her with both hands on her waist and stomach areas.- Accused covering his face with a piece of cloth to conceal his identity- Struggling with her and over powering her resistance and pushing her down to the sand - Trying to lift her up and run with her to the bushes - Ripping of her blouse- ripping the elastic of her skirt off- pushing his hands into her pants and touching her vagina and inserting his fingers into her vagina- Ripping off her pants from her body.

Cases cited:

R-v- Kopi Kami [1965-1966] PNGLR 73,77,79 
R-v- Joseph Kure [1965-1966] PNGLR 161, 166
State –v- Raphael Kuanande[1994] PNGLR 512 at 514

Counsel

Mr Lukara Rangan, for the State 
Mr Philip Kaluwin, for the Accused 

18th September, 2010

1. KAWI J: INTRODUCTION: Fabian Belbet of Tanhum, hamlet, Lemankoa Village, Haku, Autonomous Region of Bougainville, stands charged that he on the 21st day of July 2007, at Tanhum village, Buka attempt to commit rape upon one, CG, contrary to Section 348 of the Criminal Code. 

ARRAIGNMENT

2. When the charge was put to him upon arraignment, he denied that he tried to rape CG. Consequently, a plea of not guilty was entered. 

STATE ALLEGATIONS 

3. The State alleges that on the 21st day of July 2007 at Tanhum village, between 8:00 and 9:00am the victim, one CG was walking from Lemankoa village to Lontis village. She was walking alone along the beach. When she arrived at the half way point between Lemankoa and Lontis Villages she saw the accused walked down from the direction of the main road, towards the beach. She was still walking alone along the beach when she saw the accused Fabian Belbet, come down and lied down under a tree pretending that he was fast asleep. The victim CG had walked well past the accused for about some 100 meters away when the, accused ran up to her and grabbed her from her rear. with both his hands on her waist. and stomach areas . Simultaneously he blocked her two arms as well. He tried to lift her and carry her, but failed in his efforts. She struggled with him to free herself from his grab. But he overpowered her resistance with him and eventually forced her and the two of them fell onto the sand on the beach. Having overpowered her, the victim, was now lying with her back on the sand and her face up. This position presented the accused with a perfect opportunity to sleep onto of her in a missionary position and advanced his carnal desires. The accused then grabbed the blouse she was wearing and then broke it right in the middle. And then tearing it off from her body. This exposed the victim's breast. Then he put his hands on the elastic of the skirt that she was wearing and tore of the elastic. Thereafter the accused pushed his hands inside the victim's pants and touched her vagina. He then inserted his hands into her vagina. She resisted this and bit his hands which made him to release his hands from her vagina. This was immediately followed by him pulling off her pants and then tearing it off from her. 

4. Two eye witnesses who witnessed this whole episode unfolding were Ms Bigail Koman and Bruno Kiha. Both of them were fishing nearby at different locations. Bigail was fishing nearby on the beach and collecting sea shells while Bruno Kiha was diving in the sea. 

5. During the struggle the victim CG was screaming and calling out for help and this attracted the attention of Bigail, who in turn shouted to Bruno Kiha for help. Bruno had in the meantime seen what was happening and his immediate reaction was that, a man and his wife were fighting over domestic issues. But when Bigail shouted across to him to come and help, he sensed that something was very wrong and he started swimming across towards the spot where the accused was lying on top of the victim. He was shouting at the same time as he was swimming across. 

6. The accused, saw Bruno Kiha swimming towards him decamped leaving the victim there lying on the sand. He ran into the nearby bushes and disappeared. 

7. The State called the victim CG whose evidence was very consistent with and verified and corroborated much of the State allegations. Her evidence was not contradicted nor discredited in any material way during cross-examination. Neither was her demeanor impeached during cross-examination. She spoke with honesty and was candid and very frank in describing her ordeal. I find her to be witness of truth. 

MATERIALS TENDERED IN BY CONSENT

8. Other evidentiary materials were tendered in by consent of both parties and they include the following; 

 1) Record of Interview

 (a) Original pidgin version – State Exhibit 1(a) 

 (b) English translation – State Exhibit 1(b)

2) Statement of Police arresting Officer, Police woman Constable Lorraine Billy. State Exhibit 2.

3) Statement of Police woman Constable Casilda Karapan – State Exhibit 3

4) Statement of witness Bigail Koman – State Exhibit 4

5) Statement of Bruno Kiha – State Exhibit 5 

DEFENCE CASE

9. After the close of the case for the prosecution, the accused opted to give sworn evidence. He denied even making any attempt to rape the victim who was his grandmother. He did however admit the following material and pertinent facts; 

(a) He pretended to sleep under a tree at Tanhum beach when he spotted the victim CG walking in his direction towards Lontis village. He was also drunk at that time.

(b) He immediately recognize that it was her grandmother CG

(c) When CG had walked passed him and walked on for some 100 meters, he woke up and ran after her. 

(d) When he caught up with her, he grabbed he around her waist and stomach areas using both his hands. In the process he also blocked both her hands.

(e) When CG fell to the sand as a result of their struggle, the accused ripped of the elastic to the skirt that she was wearing. 

(f) the accused saw two other persons nearby who were fishing nearby namely Bigail Koman and Bruno Kiha. 

(g) The accused was drunk at the time of this incident. 

10. These admissions are contained in the Record of Interview, especially Questions and Answers N0 20,22,23,24,25,26,27,29. 

11. In his sworn evidence given in court, the accused confirmed and corroborated his own admission. The accused gave me the impression that he is someone who could not be readily believed on his words. He did struggle to give evidence suggesting that apart from his admissions he was also hiding a lot of information. Certainly he could not be described as a witness of truth or someone who was honest and frank in his response to questions in evidence in chief and cross examination. Many aspects of what he said were discredited in cross examination. 

THE CHARGE 

12. The accused is charged with attempted rape under Section 348 of the Criminal Code. Section 348 is stated in the following terms; 

 S.348 Attempt to commit rape

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

Penalty; Imprisonment for a term not less than five years and not exceeding 14 years. 

THE LAW 

The law of attempt to commit offence is comprehensively defined in Section 4 of the Criminal Code; Section 4 States; 

 S.4 – Attempts to commit offence; 

 (1) when a person, intending to commit an offence-

 (a) begins to put his intention into execution by means adapted to its fulfillment; and 

 (b) manifest his intention by some over act, 

 but does not fulfill his intention to such an extent as to commit the offence, he is said to attempt to commit the offence.

 (2) It is immaterial, except so far as regards punishment whether – 

 (a) the offender does all that is necessary on his part for completing the commission of the offence; or. 

 (b) the complete fulfillment of his intention is prevented by circumstance independent of his will; or. 

 (c) he desist of his own motion from the further prosecution of his intention. 

(3) It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence. 

(4) the same fact may constitute one offence and an attempt to commit another offence. 

13. It has been held that this section does not nor merely require that the intention be manifest by some over act; it requires that the intention itself be begun to be put into execution. The cases will draw the distinction between a mere act of preparing an act of the character required to satisfy section 4. see R-v- Kopi Kami [1965-1966] PNGLR 73,77,79. 

14. In R-v- Joseph Kure [1965-1966] PNGLR 161, 166 it was stated that the requirement that the accused has begun to put his intention into execution by means adopted to it fulfillment, provides a rule which the common law has expressed in the terms that " the actus reus of an attempt must be sufficiently proximate to the crime attempted. The act must be something more than mere preparation for the commission of the offence". 

15. The crime of rape is defined in Section 347 (1) of the Criminal Code. It is defined as "a person who sexually penetrate a person without his consent is guilty of a crime of rape."

16. Here the accused is charged not for raping but only for attempting to commit rape. 

17. Reading both Section 4 and Section 348 together it is clear that in order to establish attempted rape, the prosecution must prove beyond reasonable doubt the following elements; 

 a) the accused intended to have carnal knowledge of the complainant without her consent, or obtaining her consent by force, or by means of threat or intimidation or by fear of bodily harm etc…

 b) the accused had began to put his intention into execution by means adopted to it fulfillment; 

 c) the accused had manifested his intention by some overt acts – See R--v- Joseph Kure [1965-1966] PNGLR 161,166

18. In that case it was further held that "when the victim is physically resisting the fulfillment of her assailant's proved intention to rape her, one thing needed for its fulfillment is the overcoming of her resistance, so that force used for that immediate purpose is most obviously a means adopted to the fulfillment of the ultimate and compound purpose of achieving penetration without consent. There is nothing in the definition of "attempt" requiring that the act said to constitute the means of executing the intention should be directed towards the performance of one rather than another element of a compound offence" the other element being penetration. 

19. Let me now discuss the elements which are required to be proven beyond reasonable doubt by the prosecution in cases of attempted rape. 

FINDINGS OF FACT BY THE COURT. 

20. The court makes the following findings of fact; 

1) The accused walked down from the main road at Tanhum village to the beach where upon seeing the victim CG walking he lied down under a tree and pretended to sleep under a tree. 

2) The victim had walked past him for about 100 meters when he saw her and then ran after her and upon reaching her grabbed her with both his hands on her waist and stomach areas. He blocked off her two hands completely to stop her from fighting back. The accused then tried to lift the victim so that he could carry her into the nearby bushes to satisfy his carnal desires. 

3) The victim resisted his grabbing her and started to struggle with him and at the same time screaming for help. Eventually her resistance was over powered when the accused pushed her and she fell onto the white sand.

4) Having overpowered her, the victim, was now lying with her back on the sand and her face up. This position presented the accused with a perfect opportunity to sleep onto of her in a missionary position and advanced his carnal desires. The accused then grabbed the blouse she was wearing and then broke it right in the middle. The accused in an effort to subdue her slept on top her in the missionary position to make sure that the victim GC does not wake up and run away from him. 

5) Advancing his carnal desires the accused then put his hand to the blouse she was wearing and tore it down the middle thereby exposing her breast in the process. 

6) The accused next held the elastic of her skirt and tore it off with his hands. 

7) He than pushed his hands under her pants and touch her vagina. In the process he then inserted his fingers into her vagina and was fondling her vagina when she bit her hands. Having touched and inserted his fingers into her vagina, he grabbed her pants and tore it off her.

8) Ms Bigail Koman and Bruno Kiha who were also fishing nearby saw what was happening. Bruno saw the accused and victim struggle with the victim and falling down into the sand. He saw the accused lying on top of the victim.

9) Bigail Koman shouted to Bruno Kiha to help the victim CG, upon her call for help, Bruno Kiha saw towards the direction of the accused and the victim. 

10) Bigail Koman shouted to Bruno Kiha to help the victim CG, upon the call for help, Bruno Kiha show towards the direction of the accused and the victim. 

11) ) Upon seeing this the accused left the victim and ran away, still covering his face to conceal his identity. 

21. Let me now discuss the elements required to be proven in light of the proven facts. 

(1) The accused intended to have sexual intercourse with the victim without her consent
 Intention is a matter which goes to the state of mind of an accused person. It may be proven by direct evidence of the accused's expression of intention followed by the act itself or by circumstantial evidence. In either situation, it is necessary to examine the course of conduct of the accused prior, at the time and subsequent to the act constituting the offence. See State –v- Raphael Kuanande [1994] PNGLR 512 at 514.

22. In this case the whole proven facts of the case demonstrate beyond reasonable doubt the intention of the accused was to have carnal knowledge of the victim without her consent. The accused was pretending to sleep under a tree after being drunk when she spotted the victim walking alone the beach. The formation of his intention to carnally know her occurred when he was pretending to sleep and watch her walk past him. Being alone the accused though that she would fall an easy prey to his advances and so she ran behind her, grabbed her on the waist and began to struggle with her. He had wanted to carry her into the nearby bushes to effect his lust for the flesh and effect his carnal desires. The victim put up resistance which he overpowered by pushing her to fall down on the sand. When a victim is physically putting up resistance such as the victim in this case, which resistance was overcome by the accused, the court finds that the force used for that immediate purpose is most obviously a means adopted to its fulfillment. Above all this is the fact that the accused hid his face with a piece of cloth to conceal his identity.

23. These proven facts no doubt establish beyond reasonable doubt that the accused had intended to have carnal knowledge with the victim CG without her consent. 

(2) The accused had begun to put his intention into execution by means adopted to its fulfillment
 The accused formed the intention to have carnal knowledge of the victim when he saw her walking alone on the beach towards Lontis village. He put his intention into action by running after her and grabbing her and struggling with her. When she put up physical resistance, he over powered her and pushed her to the sand. He tore the victim's clothing more specifically her blouse, and the elastic of the skirt, she was wearing, and her pants. He manifested his evil desires for her flesh by touching her vagina and inserting his fingers into her vagina. Moreover he manifested that lustful intention by the overt act of subduing her and sleeping on top of her in a missionary sexual position. In all this overt actions he covered his face with a cloth to conceal his identity. In all likelihood he could have sexually penetrated her without her consent but for the timely intervention of Bruno Kiha and Bigail Koman The State has thus proven beyond reasonable doubt, that the accused has began to put his intention into execution by means adopted to fulfill it. 

(3) The accused manifested his intention by some over acts. 
 There is more than sufficient evidence to prove that the accused had manifested his intention by some over acts. The overt acts included the following: 

1) Running up to the victim and grabbing her with both hands on her waist and stomach areas. He covered his face with a piece of cloth to conceal his identity.

2) Struggling with her and over powering her resistance and pushing her down to the sand. 

3) Trying to lift her up and run with her to the bushes. 

4) Ripping of her blouse, ripping the elastic of her skirt off, pushing his hands into her pants and touching her vagina and inserting his fingers into her vagina.

5) Ripping off her pants from her body. 

24. The vagina of a woman is a very holy and sacred part of her physiological anatomy. To touch it and insert one's finger into it and fondle it as if it were a toy to be played around with, amounts to a gross violation of a women's liberty, and her dignity as a human being. Touching a woman's vagina or breast by any other persons other than her lawfully wedded husband, or spouse is a very clear and unequivocal demonstration and expression of a man's lustful intentions and wicked carnal desires for her flesh. Rape or attempted rape constitutes an invasion of privacy of the most intimate and sacred part of a woman's body. Women are treated as sex objects. They are entitled to be respected and treated equally. Persons like the prisoner here who prey on defenseless woman, to perpetrate their carnal desires and lust for the flesh, must be told in no uncertain terms, that our women whether in towns and cities or in small isolated villages enjoy the same inalienable rights and freedoms as men to live and move freely wherever they wish to go. Their movement cannot be restricted and made subject to the pleasures and mercy of sexual perverts like the prisoner. 

VERDICT

25. The court is fully satisfied beyond reasonable doubt that the actions of the accused Fabian Belbet can be best described as shameful and devilish. It is the actions of a morally sick animal who could not careless whether the victim was her mother, or her biological sister, or her aunty, let alone, her grandmother. All that he craved for and lustfully desired was the flesh of a woman. The court is satisfied beyond reasonable doubt that all the elements have been proven. It follows that the accused will be found guilty and convicted of attempted rape as charged. 

The accused, Fabian Belbet of Lemankoa village, Haku in the Autonomous Region of Bougainville did make an attempt to rape the victim CG at Tanhum hamlet, Lemankoa village, Buka Island on the 21st July 2007. 

The Court therefore finds the accused Fabian Belbet guilty as charged and accordingly convicts him of the offence of attempted rape contrary to Section 348 of the Criminal Code. 

______________________________________________________________
Public Prosecutor: Lawyers for State 
Public Solicitor: Lawyers for Accused