N3964

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 85 OF 2009

THE STATE

V

JOE MOORE

Kokopo: Sawong, J.
2010: 15, 16, 19 March

CRIMINAL LAW – Particulars of offence – charge of rape with circumstances of aggravation – Trial – s.347(1)(2), s.349A(e) – Criminal Code (Sexual Offences and Crimes Against Children) Act 2002

CRIMINAL LAW – Rape – Finding – Guilty of rape without circumstance of aggravation – s.347 (1) Criminal Code

Counsels

Ms. S. Luben, for the State
Ms. J. Ainui, for the Accused

19 March 2010 

1. SAWONG, J: The Accused stands trial on a charge of rape with circumstances of aggravation. The charge was laid pursuant to s.347 (1)(2) together with circumstances of aggravation laid in the indictment under s.349 A (e) of the Criminal Code (Sexual Offences & Crimes Against Children) Act, 2002.

2. In order to prove its case, the State called evidence. The State’s evidence consisted of the Record of Interview between the Accused and the police investigating officers (s.1 (a) & (b), the Statement of the investigating officer (exhibit "s.3"), the statement of the corroborator (exhibit "s.4), and the Affidavit and annexure thereto of Dr. Hahn (exhibit "s2"). In addition the state called the Complainant and Nicole Habitein who both gave sworn evidence and were both cross-examined.

3. The Accused gave sworn evidence and was also cross-examined.

4. I now turn to consider the evidence for the State. The first piece of relevant evidence is contained in the Record of Interview. The relevant parts are in Question and Answers 19, 23, 24 & 26. For completeness I set out these as follows:

"Q19. I received a report that on Tuesday 18 November 2008, you had sexual intercourse with Ernestine Gisa without her consent. What have you got to say to this?

Ans: No, I asked her properly and she responded, she is a girl friend. 

Q23. I received a report that you found Ernestine Gisa watching CD at her uncle Chris’ house at Kinabot on Tuesday 18 of November 2008 between 9:00 am and 10:00 am. What have you got to say to this report.

Ans: Yes, that is true she was watching CD when I went to drink cold water and I was cracking jokes with her. I asked her to sleep with her. I saw her eye message that she agreed because she was not angry with me. She did not struggle. It was our friendship with her, we normally share things together. I used to give her money and what ever things she request for I give it to her like flex and money.

Q24: I received a report that you yourself put your hands on her chest and pushed her down to the floor and then you did remove her laplap and pants first then you removed your trousers and have sexual intercourse with her. What have you got to say to this.

Ans: Yes.

Q26: Is it true that Ernestine Gisa did not give you the concern (consent) to have sexual intercourse with her.

Ans: Yes.

5. The Complainant was medically examined by Dr. Hahn soon after the incident on the same day. The doctor reports that there was no bruising or injury or inflammation of the genital of the Complainant. However the report does state that spermatozoa was seen in the vagina of the Complainant.

6. The statements of the two police investigating officers are of no probative value. 

7. I now turn to the Complainant’s evidence. She stated in her evidence that she knows the Accused as he is an employee of her uncle. She has known him for some time. On the 18 November 2008, she was inside the lounge of the house, watching CD when the Accused went into the house. According to her, he went and mixed himself a glass of cordial and she scolded him for that. 

8. After finishing his cordial, he went and locked the main door of the house and came to where she was and started touching her body and she kicked him on the stomach. He persisted and pushed her down, quickly removed her laplap and pants and his clothes and sexually penetrated her. Immediately after that she went to her room and cried and she miscalled her aunty Nicole on her mobile phone. Nicole then rang her back and she said she told her aunty that Joe had raped her. While she was talking to her aunty, she heard the Accused telling her to forgive him. She said that she struggled to free herself and also scratched the Accused on the face. She stated firmly that she did not consent to having sexual intercourse with the Accused that day and that the Accused forced himself upon her. Her aunty and uncle then came and took her to the police station where the incident was reported and thereafter they went to the Vunapope Hospital where she was medically examined by the Doctor.

9. In cross-examination, it was put to her that she and the Accused were friends and that is why they had a consensual sexual intercourse. She said that she and the Accused are not friends, in the boyfriend/girlfriend sense. She also denied making any suggestive moves to arouse the accused that morning. She stated firmly that she did not consent to the Accused having sex with her that morning. It was put to her that she did not scream, nor struggle either before or during the intercourse. She admitted she did not scream but said that she did resist or struggled with him, by kicking him on his stomach and also scratching his face.

10. Although, she was hesitated at some stages of her evidence, I don’t treat that as affecting her evidence in the crucial parts. My observation of her is that of young woman, who is shy and soft spoken. But she was firm and did not change her evidence on the main part of her evidence, namely that she did not consent to the accused having sexual intercourse with her that morning.

11. The next piece of evidence came from Nicole Habitein. She gave evidence in English. She told the Court that at 9:51 am on the morning of 18 November 2008 received an SMS from the Complainant to call her. She called the Complainant immediately after receiving the SMS message but the Complainant could not talk and was speechless, because she was crying. Mrs. Habitein disengaged her phone and waited for a while. She then called back the Complainant and she could hear the Complainant was still crying and could not even talk. She again put off her phone. She then rang the Complainant the third time and this time the Complainant told her that Joe had raped her. She then called her husband and they then went up to the house where the Complainant was. Upon arriving at the house, she saw the Accused was still at the house painting. She and her husband questioned the Accused about the incident but he denied it. She said that whilst there she observed that the Accused had fresh scratches on his face with fresh blood. They then took the Complainant to the Kokopo Police Station and reported the matter. She further stated that when she was talking to the Complainant on the phone the Complainant sounded scared and was speechless at times and was crying. And when they went to pick her up, she was still very scared, upset and distraught. In cross-examination she said she didn’t tell the police about seeing the scratches on the Accused face, because it slipped her mind. In any case, counsel for the Accused has not tendered her written statement to demonstrate any prior inconsistent statement in regard to that aspect of her evidence.

12. I was impressed with her evidence. She spoke firmly and spoke very well. Her demeanor was good. In my view she was telling the Court of what she did, saw and observe that day. I don’t think she was creating any new evidence or fabricating her evidence to support the complainant.

13. The Accused gave sworn evidence and was cross-examined. In his evidence, he stated that when he arrived that morning at the house where the Complainant was, he found out that the gate was locked. He then called to her to come and open the gate. She asked him what he was doing back at the house. He told her that the owner of the house had instructed him to paint the stairways. She then went upstairs and he started to do the painting.

14. According to him, as he was painting the Complainant told him to go upstairs and chew some betelnut. He told her that it was not yet time to chew betelnut. However, a short time after that, he went upstairs to get some drink. According to him as he was walking passed her, she held his penis, but he rebuked her. She then told him, in Pidgin, "Wanem you liklik mangi". He then went and made himself a cordial drink. He finished the drink and as he walked passed her, she again touched his penis. He then kissed her on the mouth and asked her to have sex with her. According to him he asked her to have sex, she was smiling at him and she was not angry. He said, he saw her body language which indicated she wanted something. After that he told her to lie down. He then removed her laplap, but she was not struggling. According to him, she then helped him remove her pants and they then had consensual intercourse. He said that the Complainant did not struggle or scream at anytime, either before, during or after the intercourse. However, he confirms her evidence that after intercourse, he heard her crying in her room.

Submissions

15. Counsel for the Accused, Ms. Ainui submitted that the Complainant consented to having sexual intercourse with the Accused because of the way she conducted herself towards the Accused. She submitted that the Complainant touched his penis twice and also helped the Accused to remove her pants which indicated that she was a willing or consenting participant. She submitted that these two acts by the Complainant demonstrated that the act of intercourse was a consensual one.

16. Secondly, she submitted that for the State there is insufficient evidence, to demonstrate the existence of an existing relationship of trust, authority or dependency between the Accused and the Complainant. She submitted that non of the circumstances described in Section 6A of the Act applied between the Accused and the complainant. She submitted that the court should accept the Accused’s version of the incident and return a verdict of Not Guilty.

17. Ms Luben, on the other hand submitted that the State has proved its case. She submitted that the State evidence from the Complainant is consistent, that the Accused sexually penetrated her without her consent. This is so, because there is evidence from the Complainant that she struggled with the Accused, in that she kicked him on stomach, that she scratched him on his face and that immediately after the incident she was crying and in a distraught state. She submitted that secondly, the Accused’s evidence is inconsistent between his oral evidence and the version he gave to the police during the record of interview.

18. She submitted that the Court should accept the evidence of the State witness and not accept the Accused version, much of which were of recent invention by the Accused.

Verdict

19. There is no doubt that the Accused sexually penetrated the Complainant on the morning of 18 November 2008 in her residence. The only issue is whether it was a consensual act. In other words, the State says that the Complainant did not consent to having sexual intercourse with the Accused but the Accused says that she consented. The second issue is whether, at the time of offence, there were any preexisting relationship of trust, authority or dependency between the Accused and the victim.

20. The Accused has been indicted under s.347 (1)(2) of the Criminal Code. The State has also pleaded in the indictment that in committing the offence of rape the Accused had abused a position of trust, authority or dependency. In other words the Accused has been charged with aggravated rape.

21. Section 347 reads:

"347. Definition of rape

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

22. The expression "Consent" has now been statutorily defined. It is defined in s.347 A of the Code. It reads:

"347A. MEANING OF CONSENT.

(1) For the purposes 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 someone else; or

(b) the person submits because of the threats or intimidation against 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 nature 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 mistakenly believes that the act is for medical or hygienic purposes; or

(i) the accused induces 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, expresses, 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 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".

23. The Code has not only defined the expression "consent". It has gone further by describing circumstances in which a person does not consent to an act of sexual intercourse. These circumstance are described in s,347 A (2) of the Code. The circumstances listed therein are not exhaustive. 

24. Further more, by s.347 A (3), a judge is required in determining whether or not a person consented to the act of sexual intercourse to have regard to:

(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 regarded as having consented to a sexual act just because:-

(i) he or she did not physically resist; or 

(ii) he or she did not sustain physical injury…

25. These two sub paragraphs are in phrased conjunctively and so these must be read together.

26. The expression "relationship of trust, authority or dependency is defined in Section 6 A of the Code. It reads: 

"s.6A: 
The Principal Act is amended by adding the following new section after Section 6:-

"6A. RELATIONSHIP OF TRUST, AUTHORITY OR DEPENDENCY.

(1)	When the term "relationship of trust, authority or dependency" is used in the definition of an offence, the offence, so far as regards that element of it, is complete upon proof that there was an existing relationship of trust, authority or dependency between the accused and the victim at the time of the offence occurred.

(2)	A "relationship of trust, authority or dependency" includes but is not limited to, circumstances where –

(a)	the accused is a parent, step-parent, adoptive parent or guardian of the complainant; or

(b)	the accused has care or custody of the complainant; or

(c)	the accused is the complainant’s grandparent, aunt, uncle, sibling (including step sibling) or first cousin; or

(d)	the accused is a school teacher and the complainant is his pupil; or

(e)	the accused is a religious instructor to the complainant; or

(f)	the accused is a counselor or youth worker acting in his professional capacity; or

(g)	the accused is a health care professional and the complainant is his patient; or

(h)	the accused is a police or prison officer and the complainant is in his care or control". 

27. It is clear to my mind that for there to be consent, there must be a free and voluntary agreement between the Accused and the Complainant to have sexual intercourse.

28. Further, I am required by law to have regard to the provisions of s.347A(3) in considering whether a particular sexual intercourse was consensual or not. It is clear to my mind that merely because a complainant did not physically resist or not suffer any physical injury, either before or during the act of intercourse indicated that the complainant consented to the act of intercourse. In other words just because the complainant did not physically resist or did not suffer any injury, does not mean that she consented. For there to be consent, it must be free and voluntary agreement between the parties. Any act which does not demonstrate that, would amount to no consent.

29. I now deal with the two issues. I deal with the second issue first, that is whether the State has proved the pre existence of a relationship of trust, authority or dependency between the Accused and the Complainant at the time of incident.

30. The evidence of this came from all three witnesses. However, in my view the evidence on this aspect is really insufficient to make any firm finding of fact. I say so, because although there is some evidence, that the Accused was employed by the Complainant’s uncle, and although the Accused sometimes gave her flex or money, it is not sufficient to find conclusively that there was in fact a pre-existing relationship of trust, authority or dependency between the Accused and the Complainant. I am not satisfied with the evidence on that particular aspect.

31. I now turn to the main issue. The evidence of the Complainant is clear to my mind. She said that the Accused came into the house, and after drinking cordial came to where she was, removed her clothes and his clothes quickly and have sexual intercourse with her. She said she struggled with him, firstly by kicking him on stomach and secondly by scratching him on his face. Immediately after he finished and left, she went into her room and she cried and sent an SMS to her aunty. In cross-examination she was not shaken on her evidence on this aspect. No motive has been raised to demonstrate why she would make up a story. She reported the incident to her aunty immediately after the incident took place. Not only that she also reported the matter the same day to the police and went to the hospital. All these pieces of evidence demonstrate to me that she did not consent.

32. Her evidence is supported by her aunty’s evidence. Nicole Habitein told the Court she spoke to the Complainant three times. On all occasion, she was crying, and could not talk to her on the first and second occasions. But on the third occasion she told her aunty while still in tears, that the Accused had raped her. When Nicole went to the house to pick her up, she observed that the Complainant was still in fear, distraught and was still crying. She also observed the scratches on the Accused face, which were still fresh and bleeding.

33. In the Record of Interview the Accused admits to having sexual intercourse with Complainant without her consent. See Q & A 26. 

34. Further more, in my view the Accused has not been quite truthful. He tried to improve his version by creating new versions on certain aspects. In so doing he contradicts himself. For instance, he told the Curt that he kissed the Complainant on the mouth. That was not put to the Complainant during her evidence. That aspect was also not given to the police during the record of interview. Secondly, he told the Court that the Complainant touched or held his penis on two occasions that morning. The Complainant denied this had ever occurred. He did not tell the police about this aspect in his record of interview. Thirdly, in his Record of Interview, in Q & A 24 he stated, amongst other things, that he removed her laplap and under wear. But in his evidence in Court, he confirmed removing her laplap but the Complainant helped him remove her pants. Fourthly, in Q & A 26, he admits to having sexual intercourse with the Complainant without her consent and yet he maintained that there was a consensual intercourse.

35. I was not impressed with him as he gave evidence. He was quick to respond to some questions and gave answers that created new versions. His demeanor was not good. In my view he was trying to distance himself. I do not accept his evidence.

36. I believe and accept the evidence of the Complainant and her aunty Nicole Habitein. In my view they have no motive to lie. Why would they lie to have an innocent man convicted of a serious crime, which could attract a heavy sentence of imprisonment? 

37. I was impressed with the Complainant. Although she was shy at some stages of her evidence, in the main she spoke firmly and consistently in describing what the Accused had done to her. Her evidence on the crucial part were neither destroyed nor shaken.

38. Her evidence is also supported by her aunty. In my view, she was an impressive witness. She spoke firmly and confidently. Her evidence of her observations of the state of both the Complainant and the Accused were clear and firm. Her demeanor was impressive.

39. I find that the accused used force to sexually penetrate the complainant. I also accept the State’s evidence that the complainant struggled and physically resisted with the accused as he committed this offence.

40. It follows from what I have said that, in my view the Sate has proven its case. I am satisfied that the State has proven beyond reasonable doubt that the accused sexually penetrated the complainant without her consent.

41. I find the Accused guilty of sexually penetrating the Complainant Ernestina Gisa, without her consent, without aggravating circumstances under s. 347 (1) of the Code.

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