N4013

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 895 OF 2008

THE STATE

V

KAPI JAS

Madang: Cannings J
2010: 13, 17, 19 May, 22 July

VERDICT

CRIMINAL LAW – trial – rape – Criminal Code, Sections 347(1), (2) – whether the accused sexually penetrated the complainant – whether the complainant consented.

The accused was charged with one count of aggravated rape. The State's case rested solely on the oral evidence of the complainant. There was no corroboration and no medical or other evidence. The accused gave evidence that the complainant was his girlfriend and denied sexually penetrating her at the time alleged.

Held:

(1)	Though there is no longer any rule or practice that it is unsafe to convict an accused of rape based on the uncorroborated testimony of a complainant, this was a case that required corroboration as there was no medical or other evidence to support the complainant's version of events and she was not an obviously reliable witness.

(2)	The accused's evidence was not entirely convincing but nor was it devoid of credibility.

(3)	Weighing the two pieces of evidence against each other, the State failed to prove that the accused sexually penetrated the complainant at the relevant time. It was unnecessary to consider the element of consent.

(4)	The accused was accordingly found not guilty.

Case cited

The following cases are cited in the judgment:

The State v Alex Matasol Hagali CR No 928 of 1997, 28.09.06
The State v Elizah Keno CR No 1033 of 2002, 22.02.08
The State v James Yali (2005) N2988
The State v Jeffery Supunau (2010) N3919
The State v Jimmy Aiyo CR No 147 of 2005, 28.09.06

TRIAL

This was the trial of an accused charged with one count of rape.

Counsel

A Kupmain, for the State
E O Thomas & J Kolkia, for the accused

22 July, 2010

1. CANNINGS J: Kapi Jas, the accused, is aged in his early-40s. He comes from the Laiagam area of Enga Province. He has lived in Madang since 2003. He is charged with one count of rape, committed in circumstances of aggravation. The State alleges that he committed the offence against a 28-year-old woman, "S", at the PLP (People's Labour Party) compound, adjacent to the harbour, in Madang town, in December 2007. The State's case is that the accused threatened the complainant with a knife and sexually penetrated her by introducing his penis into her vagina, without the complainant's consent, and that he then confined her against her will. The accused gave evidence that the complainant was his girlfriend and denied sexually penetrating her at the time alleged and denied any non-consensual sex.

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.

3. Both elements are disputed. If the State fails to prove either element the accused will be found not guilty. If the State proves both elements, the accused will be found guilty of rape under Section 347(1); and if the State is then able to prove the circumstances of aggravation alleged, the accused will be found guilty of aggravated rape under Section 347(2). The significance of a conviction for aggravated rape is that the maximum penalty is increased from 15 years to life imprisonment.

4. The issues for determination are:

1 Did the accused sexually penetrate the complainant at the time alleged?

2 If yes, did the complainant consent?

3 Have the circumstances of aggravation been proven?

1 DID THE ACCUSED SEXUALLY PENETRATE THE COMPLAINANT AT THE TIME ALLEGED?

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. Only one witness gave evidence for the State: the complainant, S. There was no other evidence – no medical evidence, no exhibits, no witness statements.

7. The complainant, S, is now aged 30. She is also from Laiagam. She arrived in Madang in 2007. She said that the accused is a member of her tribe and she regards him as a brother. The accused was at the time of the incident living at PLP with a Chimbu woman called Maria and she, S, had become friends with Maria.

8. Maria asked her to go to PLP on Sunday afternoon, 23 December 2007, so she went there. During that night the accused had bad thoughts about her, forced her away from Maria, and told her that he wanted to get her for sex. She struggled against him and during the struggle she fell into the water and then he threw stones and bottles at her. This went on for some time during the dark until about 4.00 am when the accused told her that she could come out. She did as she was told but then as she was getting changed he came inside and again became violent with her, forcing her outside. She again went into the water and stayed there until 9.00 am. A Bundi man saw what was going on and persuaded her to come out of the water by telling her that they had removed the accused from the area.

9. In fact, he had not been removed. He was still there and was still pursuing her. She still resisted, this time holding on to a tree. Another man, Las, was present and told him 'There's a lot of woman's vagina around, what sort of vagina are you looking for? Let her go, she's your sister!' The accused chased Las then resumed his efforts to overcome her, so that he could have sex with her. He dragged her back into the house. She was still struggling and berating him for attacking her as she was his sister. He told her to shut up and if she did not comply he would cut her with a knife. Eventually she gave up. Her face was swollen and there were bruises all over her body. She told him 'just do what you want to do'. He then sexually penetrated her – and raped her until daybreak.

10. Maria was there, crying, and saying 'why are you doing this to your sister?' She, S, called out for help but no one answered her. When he finished he went outside and lit a fire. She, S, picked up her clothes, put them in a small bag and jumped into the water and swam away from his house, to the wharf. She got onto the shore near the Mobil depot and then realised that he had followed her around there so she ran for her life. She ran to the main road, stood in the middle of the road near Redscar, hailed down a bus and then ordered the driver to close the door and take her to the police station. The police could not attend to her straightaway so she hid at the back of the station; but then she was attended to. Her story was taken and then the police took her to the hospital as her legs were swollen, she was weak and unable to walk properly.

11. In cross-examination S said that at the time of the incident she was living at Sisiak, in a rented room, but spent a lot of time at PLP, helping the accused and Maria with their betel nut sales. The accused was helping her pay the rent at Sisiak. He did that, she said, as he was part of her extended family. They were not lovers. They had no boyfriend-girlfriend relationship. That would not have been proper as they are from the same clan and tribe.

12. Asked when the alleged rape incident actually occurred, S said that it was on Tuesday morning, 25 December 2007. He had tried to rape her on Sunday night but she repelled him.

13. She denied being kicked out of her room at Sisiak and denied that the accused was angry with her for having affairs with other men. She denied that she was telling lies about jumping into the water and swimming to the wharf. Asked why Maria did not raise the alarm, S said that Maria was sometimes drunk and was afraid of the police and also afraid of the accused. Asked why the men who she named as being present did not help, S said that they were PLP residents, probably the accused's friends, so they did not want to intervene. Asked why she had no medical report, S said that she did not have the money for a report.

14. That was the close of the State's case.

The defence case

15. The accused, Kapi Jas, gave sworn evidence. He said that he had been living at the PLP compound for several years. He had a part-time job with a surveying company for a while but otherwise was earning income from the sale of betel nut and cigarettes. He denied belonging to the same clan as the complainant, S. They come from different villages. He met her for the first time in June 2007 when she came to Madang. They befriended each other and she moved into his house at the PLP compound and stayed there a couple of months. His house was very small, however, and it was not safe for her to stay there so he rented a room for her in a house at Sisiak.

16. He agreed that S had come to PLP on the evening of Saturday 22 December but denied having sex with her then or on the, 23rd, 24th or 25th. He was angry with her on the 22nd as he heard that she had been kicked out of the house at Sisiak for bringing men into her room. He had spent a lot of money on her and he did not think he deserved to be treated in this way. When he saw her come to the house, he gave K10.00 to Maria to buy some food and then he went off to do some gambling, to cool himself down. That worked for a while but then he went back to the house and argued with her for 15 minutes. He shouted at her but did not hit her. He was very angry, however, and she fell into the water. He told Maria to look after her and he went away to do some more gambling and sell some betel nut near a local kai bar run by a Hagen man. He went back to the house in the morning. S was still there, nursing some wounds as she had been bitten by sea urchins while she was in the water.

17. In cross-examination the accused maintained that S was his girlfriend but he said he did not have sex with her at the time in question and did not want to have sex with her as he was angry with her for sleeping around with other men. He denied chasing her into the water or assaulting her.

18. That was the close of the defence case.

Preliminary assessment of the State's case

19. Mr Kupmain, for the State, submitted that there was strong evidence from the complainant that the accused sexually penetrated her without her consent in the early hours of Tuesday 25 December 2007. I agree that if her evidence is accepted it is sufficient to support a conviction.

Defence counsel's submissions

20. Mr Thomas submitted that the State's case should fail for four reasons. First, there was evidence that the accused and the complainant were in a relationship. Secondly, the complainant's evidence was not credible. Thirdly, there was no corroboration of the complainant's version of events. Fourthly, there was no medical evidence.

Assessment of defence counsel's submissions

1 The accused and the complainant were in a relationship

21. This evidence came only from the accused and I agree with Mr Kupmain that it should be rejected. There was no corroboration of this version of events and the credibility of the accused's evidence was not obviously stronger than the complainant's.

22. 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

23. 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 Mr Thomas's submission that much of her evidence did not ring true. Her evidence about when the alleged rape incident actually occurred was confusing. She appeared to be saying in examination-in-chief that it happened on the Sunday night and early Monday morning. She ended up saying that the incident occurred early on Tuesday morning. If that is so, why did she not escape from the PLP compound between Sunday evening (when she says that she went there from Sisiak) and Tuesday morning? She did not say that she was confined against her will during that period or that any attempts to escape were thwarted by the accused or anyone else. Another problem with her evidence is that she is saying that the intimidation and assaults continued over a long period – a number of hours were involved – yet no one was able to help her. The woman Maria was mentioned several times in the evidence as being present. Why didn't she help? At one stage the complainant said that Maria was crying and imploring the accused to stop what he was doing. At another stage, S said that Maria was too drunk to do anything. This is not a satisfactory explanation. It is also difficult to believe that, given the commotion that was occurring and the scene being created in what appears to be an open – not secluded – location, no one at all would come to the aid of the complainant or at least raise the alarm with the police or security guards.

24. I therefore accept the defence counsel's submissions that the credibility of the complainant's evidence is questionable.

3 Lack of corroboration

25. The State presented no evidence to corroborate the complainant's evidence and I thought that this was a case that, in view of the shortcomings in the complainant's evidence, required corroboration. In saying that I am mindful of Section 229H of the Criminal Code (corroboration not required) which states:

On a charge of an offence against any provision of this Division, [Division V.7, (sexual offences and abduction)] 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 the absence of corroboration. 
 
26. I am therefore not required and not allowed to instruct myself that it is unsafe to find the accused guilty in the absence of corroboration. I am not giving myself such a warning but pointing out that in this particular case, corroboration was desirable. The lack of corroboration means that there are gaps in the evidence, giving rise to doubt about acceptance of the complainant's story.

4 No medical evidence

27. I agree with Mr Thomas's submission that the complainant's explanation for not obtaining a medical report is unsatisfactory. She said that the police took her to the hospital soon after she reported the matter as she was in a bad way. It is difficult to believe that no record at all would have been made of this. There is no rule of law that prohibits a conviction for rape in the absence of medical evidence but where a complainant's evidence is not immediately convincing, medical evidence, in effect, becomes necessary.

Final determination of whether the accused sexually penetrated the complainant

28. As I pointed out in a case decided in Madang, The State v James Yali (2005) N2988, in any criminal case, including a rape case, it is not a simple matter of deciding who to believe. An accused cannot be convicted only on the basis of suspicion or belief on the part of the tribunal of fact (the court) about who is telling the truth. (Also see the Buka cases, The State v Alex Matasol Hagali CR No 928 of 1997, 28.09.06 and The State v Jimmy Aiyo CR No 147 of 2005, 28.09.06, and other Madang cases, The State v Elizah Keno CR No 1033 of 2002, 22.02.08 and The State v Jeffery Supunau (2010) N3919.) The court's task is, rather, to determine, having weighed all the evidence and considered that there are reasonable grounds for believing the complainant's evidence, whether it is satisfied to the required criminal standard of proof – beyond reasonable doubt – that the accused sexually penetrated the complainant. If there is a reasonable doubt, the court is obliged to acquit the accused.

29. The accused's evidence was not entirely convincing but nor was it devoid of credibility. Weighing the two pieces of evidence against each other, neither could be said to be clearly preferable. Bearing in mind the lack of corroboration and the absence of medical evidence I consider that there is considerable doubt about whether the accused sexually penetrated the complainant at any time from 23 to 25 December 2007. In these circumstances I am not satisfied beyond reasonable doubt that the accused sexually penetrated the complainant. The State has failed to prove to the required standard the first element of the offence of rape.

30. It is not necessary to consider the issue of consent or the issue of whether the accused threatened or confined the complainant. The accused is entitled to an acquittal.

VERDICT

31. Kapi Jas is not guilty of rape on the indictment presented on 13 May 2010 and not guilty of any other offence.

Verdict accordingly.

____________________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the accused