N4007

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 1001 OF 2007

THE STATE

V

FELIX SENGI

Madang: Cannings J
2010: 24 March, 13 May

VERDICT

CRIMINAL LAW – trial – rape – Criminal Code, Section 347(1) – whether the complainant consented – definition of consent.

The accused was charged with eight counts of rape. The State alleged that the offences were committed against the same complainant, a 23-year-old woman. The accused agreed that he had sex with the complainant but said that she consented on each occasion.

Held:

(1)	The combined effect of Section 347(1) (definition of rape) and Section 347A(1) (meaning of consent) of the Criminal Code is that the State must prove beyond reasonable doubt that the complainant did not freely and voluntarily agree to have sex with the accused.

(2)	Under Section 347A(2) of the Criminal Code circumstances in which a person does not freely and voluntarily agree to have sex include where she submits because of (a) the use of violence or force or (b) threats or intimidation or (c) fear of harm to her or someone else.

(3)	If the State relies on Section 347A(2) to prove lack of consent, it must be proven beyond reasonable doubt that one of those circumstances existed.

(4)	Here, the evidence was insufficient to prove beyond reasonable doubt that any of the circumstances in Section 347A(2) existed; and the State failed to otherwise prove that the complainant’s agreement to have sex with the accused was not free and voluntary.

(5)	The accused was accordingly found not guilty.

Case cited

Papua New Guinea Cases:

Cosmos Kutau Kitawal & Christopher Kutau v The State (2007) SC 927
The State v Kevin Anis (2003) N2360

Overseas cases:

Browne v Dunn (1893) 6 R 67 (HL)

TRIAL

This was the trial of an accused charged with eight counts of rape.

Counsel

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

13 May, 2010 

1. CANNINGS J: Felix Sengi, the accused, is aged in his early-30s. He comes from the Ambunti area of East Sepik Province. He is charged with eight counts of rape. The State alleges that he committed the offences against the same person, a 23-year-old woman, "C", at Sikor village in the Bogia District of Madang Province over a two-month period from June to August 2006. The State’s case is that C submitted to the accused’s sexual advances because of the use of violence, threats and fear of harm to herself and others. The accused agrees that he had sex with the complainant but said that she consented on each occasion.

2. The crime of rape under Section 347(1) of the Criminal Code consists of two elements: (1) sexually penetrating a person and (2) without their consent. The first element is undisputed. The second element is contested. The key issue in this case is consent.

CONSENT

3. There is a definition of consent in Section 347A(1) of the Criminal Code: it means "free and voluntary agreement". Examples of circumstances in which a person does not consent are provided by Section 347A(2), eg where she submits because of (a) the use of violence or force or (b) threats or intimidation or (c) fear of harm to her or someone else. The State relies on each of those circumstances in this case. It does not have to prove that each of (a), (b) and (c) applied. They are expressed as alternatives, so one is sufficient. However, for the State to prove lack of consent under Section 347A(2), the circumstances alleged must be proven to have existed beyond reasonable doubt. If the State cannot discharge that onus, it can still argue (but must, of course, prove beyond reasonable doubt) that in all the circumstances of the case the complainant did not freely and voluntarily agree to have sex with the accused.

4. The precise issues for determination are:

1	Did the complainant submit because of the use of violence, threats or fear of harm?

2	If not, did she freely and voluntarily agree to have sex with the accused?

3	In light of those issues, has the State proven any of the eight charges?

1	DID THE COMPLAINANT SUBMIT BECAUSE OF THE USE OF VIOLENCE, THREATS OR FEAR OF HARM?

5. 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 whether the complainant submitted because of the use of violence, threats or fear of harm.

Evidence for the State

6. Two witnesses gave evidence for the State: C and her mother. The only other evidence was the accused’s record of interview, in which he admitted having sex with C but denied any wrongdoing. There was no other evidence – no medical evidence, no exhibits, no witness statements.

7. The complainant, C, is now aged 27. She was 23 at the time. She is from Sikor village. Her evidence was that the accused, Felix, came to the village on 30 May 2006 regarding the death of his brother-in-law, a Sikor man who was married to the accused’s sister, Mary-Ann (a defence witness). Felix caused a lot of trouble in the village and people were scared of him. He also caused trouble for C. She said that the following events occurred from June to August 2006.

8. On 13 June at 6.00 pm Felix came to her house. She was sitting down telling stories with her small sister. Her mother was also present. Felix told C to get up and follow him out of the house. At first she refused. She was afraid. Felix had chased people and cut them and burned down houses soon after he came to the village on 30 May. Her mother was also afraid of him but told her to follow him as she was scared of what he might do to them. She thought about her safety and the safety of her family and decided to go with him. He took her to his sister’s house where she sat on a bench before eventually falling asleep and then he sent her home.

9. On 19 June at 10.00 pm she was at her house asleep when Felix came and woke her up and told her to follow him. She did not want to go but her mother told her to go with him as she was scared of him. He took her to a vacant house two kilometres away at an abandoned logging camp. The owner of the house, Simon, was away. Felix asked her to sleep with him. She did not want to as she was scared of him but he took her into a room, forced her to remove her clothes, told her to lie on the bed, which she did, and then he removed his clothes, lay on top of her and sexually penetrated her. After that he had a shower, she had a shower and they slept until the morning and then went back to the village.

10. On 23 June he again woke her up when she was sleeping in the house and told her to go with him. He again took her to Simon’s house and asked her to have sex with him. She pointed out to him that he already had a wife, so why should he do this? He replied that that was not her problem, and asked her to remove her clothes and have sex with him. She did not want to, but she was scared and so they had sex; after which they showered and slept until daybreak before returning to the village.

11. At 1.00 am on 4 July he interrupted her sleep and took her to Simon’s house. Again she was scared but again they had sex.

12. At 2.00 am on 10 July he interrupted her sleep and took her to Simon’s house and again asked her to remove her clothes so that they could have sex. She questioned him why he was doing this as she was not his wife and he was not her husband. He replied that he wanted her to bear him a child as people in the village already knew that they were married. She responded that she did not want to have sex with him but he threatened to hit her so she removed her clothes and lay on the bed and they had sex.

13. At 1.00 am on 21 July he interrupted her sleep and took her to Simon’s house. Again she was scared but again they had sex.

14. At 10.00 pm on 10 August he interrupted her sleep and took her to Simon’s house. He asked her for sex but she told him that she was hungry and weak and did not want to have sex. He boiled some rice and gave it to her to eat. Then he said ‘now that I have cooked for you, we can have sex’. She was afraid he would hurt her if she refused, so she did as he said and they had sex.

15. At 12 midnight on 18 August he interrupted her sleep and took her to Simon’s house. Again she was scared but again they had sex.

16. At 2.00 am on 29 August he interrupted her sleep and took her to Simon’s house. He asked her for sex and she told him that she did not feel good about having sex with him. She was scared and felt that he was tricking her. He got cross and was about to hit her so she removed her clothes and lay on the bed and had sex. This was the last occasion on which they had sex. He did not come back to the house again.

17. In cross-examination C said that she had no boyfriend at the time. The only males in the house she was living in were her two small brothers, who were also scared of Felix. There are lots of other houses nearby but Felix had chased people away. She made her complaint to the police in October 2006. Asked how she viewed her relationship with the accused, C said that she felt that he had become her sex partner, in view of the number of times that they had had sex. She denied reporting the matter to the police because she was cross with him. Her motivation for complaining, she said, was that he had forced her to have sex with him. The people in the village were in fear of him, including the men in the village. She did not report the matter to the Bogia police as she did not know where the police station was.

18. In re-examination C repeated that she was at all times scared of the accused. Many people in the village were scared of him as he and other men had chased people away. The accused suspected that the death of his brother-in-law was caused by witchcraft and that is why he had come to the village and caused trouble.

19. Answering questions from the bench C said that Felix had been to the village on a number of previous occasions. He was a married man and used to come to Sikor with his wife, to visit his sister. Simon, whose house Felix used as a place to have sex with her, was one of the men who Felix had chased away.

20. The complainant’s mother, Anna, is also from Sikor village. She is aged 52 and has five children, C being the oldest. The problems between Felix and her daughter started on 13 June 2006 when Felix came to the house and wanted to take C away. He threatened to burn down their house if she did not follow him. She (Anna) was scared of him. She thought he would harm the family so she told C to follow him. He took her away and did not bring her back until the next morning. She (Anna) had no sleep as she was worried about C. Over the next couple of months Felix came to their house on a number of occasions, usually in the middle of the night. He would first wake her up and then she would have to wake up C, and he would take her away. She was always scared of Felix as she had seen him do bad things after he came to the village following the death of his brother-in-law. He cut a number of people, causing blood to flow.

21. In cross-examination Anna said that she had a husband but during the period that Felix caused the trouble with C, he was at Bogia for a councillors’ meeting. None of the trouble in the village that Felix was responsible for, including the cutting incidents, had been reported to the police. She did talk to the men in the village about what Felix was doing but they were scared of him and did not want to get involved.

22. That was the close of the State’s case.

Defence witnesses

23. The accused made an unsworn statement from the dock and there was one other defence witness.

24. The accused, Felix Sengi, said that it was true that he had gone to Sikor in May 2006 concerning the death of his brother-in-law, which was sorcery-related. He just went there to wait for compensation. He did not cause any trouble and was on friendly terms with the village people. He first met C at a dance at Saramung village and after the dance they had consensual sex. He later took her as his girlfriend and then his wife. They had sex on many occasions. He never got cross with her or her family. He used to visit her house and eat with the family, including her mother and father. He helped them build a new house. C had a small baby at the time but the father of the child had deserted C, so he (Felix) was looking after the baby. He remained at all times on good terms with C and her family.

25. The accused’s sister, Mary-Ann, said that she was living at Sikor with her three children when her husband, who is from Sikor, died in May 2006. Her elder brother, Felix, came from the village to help her look after her children. He befriended C and they got married and stayed together with her. Felix was on good terms with C’s family and built a new house for them. Felix helped C look after her baby. Mary-Ann said that she left Sikor and came to live at Sisiak as there was a dispute between her relatives at Sikor and people from Manam Island. Felix and C came also.

26. In cross-examination Mary-Ann denied that Felix and their brothers had caused trouble when they came to Sikor following the death of her husband. All that happened was that they confronted the men who were suspected of killing her husband by sorcery and that those men fled. Felix did not chase them away, assault them, burn down their houses or steal anything. It was true that Felix was married to another woman before he married C but the first wife had left to go back to the village in East Sepik; and it was only after she left that Felix married C.

27. That was the close of the defence case.

Preliminary assessment of the State’s case

28. Mr Kupmain, for the State, submitted that there was strong evidence from the complainant, corroborated by her mother’s evidence, that she had submitted to the accused’s sexual advances because of the use of violence, threats and fear of harm. I reject the submission that there is evidence of the use of violence. The word "violence" in Section 347A(2)(a) of the Criminal Code, means, in my view, physical violence and there is no evidence in this case that the accused committed any act of physical violence against C. There is, however, evidence that she submitted because of threats and fear of harm. This evidence must be carefully assessed.

Defence counsel’s submissions

29. Mrs Meten submitted that the State’s case should fail for two reasons. First, there was evidence that the accused and the complainant were a married couple. Secondly, the complainant’s evidence was not credible.

Assessment of defence counsel’s submissions

1	The accused and the complainant were a married couple

30. This evidence came from both the accused and his sister, however I agree with Mr Kupmain that it should be rejected. The accused’s claim that he took C as his wife was made in his unsworn statement from the dock, which was vague and untested, so it carries little weight. Furthermore, all the evidence from the accused and his sister about how the accused befriended the complainant and how they lived together with the accused’s sister and how he was on good terms with the complainant’s family and built a new house for them, and how they all moved from Sikor to Sisiak and continued to live together, was not put to the State witnesses in cross-examination. This was a breach of the rule in Browne v Dunn (1893) 6 R 67 (HL). This is a rule of fairness that applies in all trials. For the defence case to be considered credible, it must be put to the State witnesses in cross-examination (The State v Kevin Anis (2003) N2360, Cosmos Kutau Kitawal & Christopher Kutau v The State (2007) SC 927). The breach of the rule in this case was extensive and the consequence is that the claim that the accused and the complainant were a married couple is not credible.

31. It does not follow from this, however, that the State’s case should be accepted. The State still has to prove its case beyond reasonable doubt.

2	Complainant’s evidence not credible

32. The complainant was not an obviously unreliable witness. Her demeanour did not give her up as a witness who was obviously lying. However, I agree with Mrs Meten’s submission that much of her evidence did not ring true. It seems difficult to believe that a young woman would submit to having sex with a man on eight occasions over a two-month period, without actually consenting, and not raise the alarm or complain in any way. It seems difficult to believe that someone in her position – a young woman, in her own village – would not report the matter to one of her male relatives so that something could be done about the problem. It is difficult to believe that the accused – who came from another village, in another province – would have so much influence in her village that he would be able to chase away or scare all the male villagers who would reasonably have been expected to be available to assist her. It is difficult to believe that she would allow this situation to continue and that she would remain in her own house and leave herself vulnerable to the accused making numerous unwanted sexual advances to her. It is difficult to believe that her mother would allow this to happen on so many occasions, over such a long period, without doing anything tangible to stop it happening.

33. It might not be so difficult to believe the State’s version of events if there were some evidence to corroborate the claim that the accused was a troublemaker, that he had assaulted and cut people in the village, that the village people were scared of him, that he had burned down houses and stolen property. But there was no corroboration. There was no evidence that the accused had been charged over any such incidents or that anything had been reported to the police. I conclude that the complainant’s version of events is too difficult to believe. Her evidence and that of her mother about her submitting to sex with the accused because of threats and fear of harm is not credible.

Final determination of whether the complainant submitted because of the use of violence, threats or fear of harm

34. The State has failed to adduce any evidence that the accused used physical violence against the complainant and has failed to adduce sufficient evidence that he threatened her or that she genuinely was in fear of harm to herself or her mother or anyone else. To succeed in proving a lack of consent under any of the circumstances spelt out in Section 347A(2)(a), (b) or (c), the State must prove two things: first that one of the circumstances prevailed and secondly that because of those prevailing circumstances the complainant submitted to sexual penetration. The State has failed to prove that any of the circumstances existed. There was no use of violence or threats or fear of harm.

2	DID THE COMPLAINANT FREELY AND VOLUNTARILY AGREE TO HAVE SEX WITH THE ACCUSED?

35. At this juncture it is necessary to weigh all of the evidence and to assess whether – even though the State is unable to prove use of violence or threats or fear of harm – the complainant did not freely and voluntarily agree to have sex with the accused.

36. In addition to Sections 347A(1) and 347A(2) of the Criminal Code, the court must also have regard to the matters in Section 347A(3) when determining whether or not the complainant consented. Thus:

(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 an earlier occasion, he freely agreed to engage in another sexual act with that person or some other person.

37. There are four aspects of the evidence that are significant here. First, the complainant said that on a number of occasions the accused ‘asked’ her for sex, rather than demanding it. Secondly, though she may have been a reluctant sexual partner and did not want to be his wife she seemed to accept that she was properly regarded as the accused’s sex partner. Thirdly, she did not make a complaint to the police until after the eighth occasion, and then not until two months after (in October 2006) the last occasion (29 August 2006). Fourthly, there was the ongoing failure (as detailed earlier) in the period from June to August 2006, when sex was taking place, to raise the alarm or seek protection or assistance from any of the male villagers or the police. The evidence suggests that the complainant consented. It may have been consent granted begrudgingly or reluctantly or with hesitation but it was nonetheless consent in the sense of there being free and voluntary agreement.

3	HAS THE STATE PROVEN ANY OF THE EIGHT CHARGES?

38. The State has failed to prove that the complainant did not consent to being sexually penetrated by the accused on any of the eight occasions charged in the indictment. None of the charges has been proven. The accused is entitled to an acquittal.

VERDICT

39. Felix Sengi is not guilty of all eight counts of rape on the indictment presented on 24 March 2010 and not guilty of any other offence.

Verdict accordingly.
____________________________

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