N5184 

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 943 OF 2009

THE STATE

V

FRANCIS INO

Popondetta: Toliken, AJ
2012: 25th, 26th, 29th October
2nd November

CRIMINAL LAW – Particular offence – Sexual Penetration (rape) – Trial – Lack of consent – Accused alleged to have dragged complainant into bush, stuffed T-shirt into her mouth – States evidence inconsistent, illogical and nonsensical - Test of inconsistencies, logic and common sense applied – Criminal Code Act Ch. 262, s 347. 

CRIMINAL LAW – Circumstance of aggravation alleged – Accused alleged to have pushed double edged 10 cm x 2 cm knife into complainant's vagina after sexual penetration – Cut to the cervix – Heavy and continuous bleeding – Complainant hospitalized - Circumstance of aggravation denied – Medical evidence – Anatomy and physiology of vaginal wall considered – Injury to vaginal wall and cervix may be caused by aggressive sexual intercourse – No collateral injury to vaginal wall - Injury to cervix caused by aggressive sexual intercourse – Verdict of not guilty – Criminal Code Act Ch. 262, s 349A.

Cases Cited:
Papua New Guinea cases

Giratau Bonu and Rosanna Bonu v The State (1997) SC 528
Gibson Gunure Ohizave v The State (1998) SC 595
The State v Edward Toude (No.1) (2001) N2298
The State v Cosmos Kutau Kitawal (No.1) (2002) N2245
The State v Peter Malihombu(2003) N2365 
The State v Okata Talingahin (No. 1) (2004) N2581
The State v Pennias Mokei (No.1) (2004) N2606
The State v Tauvara Avaka (2004) 2024

Overseas Cases

Browne v Dunn (1863) 6 ER 67

Counsel:

D. Kuvi, for the State
D. Sopane, for the accused.

VERDICT

2nd November, 2012

1.	TOLIKEN, AJ: The accused Francis Ino is alleged by the State to have sexually penetrated one Emna Temae on the 18th of February 2009, without her consent under circumstances of aggravation.

2.	The accused is charged under Section 347 and Section 349A of the Criminal Code Act Ch. 262.(the Code)

BRIEF ALLEGATIONS

3.	The State alleges that between the hours of 5-6 p.m. on 15th February 2009, the complainant was on her way to the Mamba Estate Market, Kokoda, Oro Province when she was approached by the accused and dragged into the nearby bushes.

4.	The accused removed his own shirt forced it into the complainant's mouth thus preventing her from shouting. He then forcefully laid her on the ground, removed her clothes and his own and then sexually penetrated her without her consent.

5.	After having sex with her, he took out a small knife and stabbed her in her vagina. He then left her bleeding on the ground and fled the scene.

PLEA

6.	The accused pleaded not guilty to the charge. He admitted having had sex with the complainant but denies the allegations of lack of consent and the circumstances of aggravation pleaded in the indictment.

ISSUES

7.	The issues for trial are:

1.	Did the complainant consent to have sex with the accused?

2.	Did the accused stab the complainant in her vagina with a knife after he had sexually penetrate her?

THE EVIDENCE

State

8.	The State's case consisted of the Pidgin and English versions of the accused Record of Interview (tendered by consent), a Medical Report from one Sr Margaret Konehe, the evidence of the complainant herself, Sr Margaret Konehe and Winnie Kitave.

9.	The complainant testified that on the date in question between 5.00 p.m. and 6.00 p.m. she was walking along the road to the Mamba Estate Market to buy some lime. Her mother was already at the market.

10.	On the way, she met the accused who grabbed both her hands and dragged her into the bush. He forced her to the ground and sexually penetrated her without her consent. After he penetrated her, he then took out a small knife and stabbed her in her vagina causing her to bleed profusely. He then left her bleeding on the ground and fled the scene.

11.	She then got up and slowly walked home with great difficulty bleeding. Her brother-in-law saw her and went for an ambulance. She was taken to the Kokoda Memorial Hospital where she was hospitalized for a week.

12.	On examination in chief, she described the knife used on her as approximately 10cm long. She further said on cross-examination that the knife was double edged approximately 2cm in width and that he had pushed it slowly into her vagina.

13.	The complainant under cross examination also said that as the accused was pulling her into the bush, he removed his 'T' Shirt and stuffed it into her mouth to stop her from shouting for help.

14.	She denied knowing the accused though she had been living with her sister Fredies and her husband Winnie for some five years since they got married.

15.	She denied that she was a go between or a message carrier between the accused and Fredies, denying also that the two were having an affair or seeing each other.

16.	She also vehemently denied having had interrupted sex the previous day with the accused behind the toilet at her sister's premises and of having pleaded with the accused not to penetrate her too deeply as this was her first act of intercourse since she gave birth to her child. She denied pushing the accused away with both hands as he tried to penetrate her. She also denied suggestions that she and the accused had agreed to meet again the next day to have sex.

17.	Under further cross-examination, she said that she left the village for Mamba Market at 3.30 pm. The alleged rape took place at 6.00 p.m. and the accused left the scene at 7.00 p.m.

18.	At this point, defence counsel referred the complainant to a statement she made to the police on 16/2/12 where she stated that she'd been in the village between 5 – 6 p.m. She stated that she was still dizzy at the time she made the statement to the police. When pressed as to when she went to the market, she said that she in fact went at 5 p.m. and not 3.30 pm.

19.	Because of these inconsistencies i.e. between the oral evidence and her statement to the police defence counsel sought for and was granted leave to tender the statement into evidence as a prior inconsistent statement.

20.	The complainant was then questioned further as to whom she'd reported the matter. She gave deferring versions as to whom she first told of the incident - that she told her sister Fredies first, that she told Winnie and that she didn't tell Winnie at all. Under cross examination she finally said that she had told her brother in-law first that Francis had raped her.

21.	 The complainant admitted in cross-examination that she'd gone to the creek to wash off blood on her body after the alleged rape but denied ever following the accused to his oil palm block let alone to his house out of ever having met the accused nephews.

22.	The complainant was also asked about differences the accused had with her in-law Winnie. She said this was over the accused's visits to her. He had wanted them to be friends but she refused.

23.	The second witness was Sr. Margaret Konehe is the Sister-in-Charge of Kokoda Memorial Hospital. She stated her qualifications as having graduated with a Nursing Certificate from the Lae School of Nursing and of having further gained qualifications as a mid-wife. She had practiced as a Registered Nurse for 34 years.

24.	Sr. Konehe testified of having attended to the complainant on 15th February 2009 and of compiling a report of her examination and treatment of her the next day, 16th February 2009.

25.	When she was brought in the complainant was covered with blood when admitted. She fainted twice. She put her under observations and administered an intravenous drip to control the bleeding.

26.	Sr. Konehe examined the complainant on the next day 16th February 2009 using a speculum – a medical instrument used to examine the vaginal canal. Bleeding had stopped by then. She noticed a cut to the right side of the cervix measuring 2 ½ cm long and 1cm deep. She used a swab stick to measure the injury.

27.	Sr. Konehe prepared a report the next day which was tendered into evidence. She described the injury to the complainant's cervix simply as a cut which, in examination in chief she said could have been caused by a sharp object such as a small knife.

28.	When asked in cross-examination why she thought the cut was caused by a knife she said that this was because the cut was a "straight clean cut, not a rugged cut."

29.	The witness didn't give a straight answer when it was put to her by the defence if a 10 x 2cm double edged knife could cause injury to the vaginal opening, vaginal canal and the cervix except to say that the woman internal reproductive canal (system) is very soft.

30.	The witness said she'd examined two cases of alleged rape – this being the second. She said that a cut or abrasion could not be caused by ordinary sexual intercourse saying that ordinary sexual intercourse couldn't cause such bleeding as was on this case.

31.	She also said that in her experience, she'd never measured a woman's vaginal canal but did agree that all women have same vaginal canal length.

32.	In re-examination, she said that in her training (which to understand to refer to training of nurses), they were never taught to measure a woman's vaginal canal. She also said that she had never come across a case where a cut in the cervix had been caused by a penis.

33.	The last State witness, Winnie Kitave was called after the defence had closed its case because the defence had given notice through their Pre-Trial Statement of their intention to cross-examine him on his statement.

34.	This witness basically stated in his statement (tendered) that on the date in question he was at home at Amanda Village between 6.00p.m – 6.30 p.m.

35.	He was about to climb a coconut tree to fetch coconuts for his sick children and wife when he saw the complainant limping towards him. He talked to her as she approached but she didn't reply but instead slowly walked to the house and sat down. He suspected that something was wrong so he walked back to the house to find out. He noticed blood on the complainant's (his sister-in-law) leg and realised that she was bleeding from her vagina.

36.	He thought that she was having her menstruation period but because the bleeding was continuous, he decided to run to Mamba Estate for assistance. He returned with an ambulance. On arrival back at his house, he was informed by his wife that the complainant was raped by the accused who also pushed a knife into her vagina causing her heavy bleeding. They then rushed her to the Kokoda Memorial Hospital where she was treated and hospitalized.

37.	The witness said in cross-examination that the accused is from Amanda and his house is located some distance from his. He knows the accused well but denied that they have any differences. He said that the accused is known to everyone in the village including the complainant who had moved into his home almost immediately after he had married her sister five years previously. He denied though that the accused ever coming to the house looking for the complainant.

Defence

38.	The defence called the accused himself, Dr. Akule Dunlop and Connie Keno.

39.	The accused testified that on Saturday 14th February 2009, he had gone to a neighbour's house to buy smoke when the complainant and her sister, Fredies Kitave, asked him to scrap coconut for them which he did.

40.	As he was doing this, the complainant's child and Fredies' child started crying so Fredies told the complainant to stay with the accused while she goes with the children to the road.

41.	The accused testified that the complainant who was a go-between for him and Fredies told him that her sister was married so he should go out with her instead. She said that her family was living with their in-laws at Amanda and they might kick them out if they find out about his affair with Fredies.

42.	The accused then asked the complainant what was to happen now and the complainant told him to pretend to go to his house but to go and wait for her at the back of the toilet while she'll pretend to go and throw rubbish there. They had agreed to have sex there.

43.	At the back of the toilet, the complainant got some breadfruit leaves and laid them on the ground. She then slept on the leaves and they prepared to have sex. Just as the accused was about to penetrate her, she pushed him back on the chest with both hands and closed her legs. The accused said she asked her why she did that and she said that she had not had a man since she gave birth to her child. The accused said that he then had sex with her but not penetrating her deeply. Just as he ejaculated the complainant's sister called out. She then told him that there will be plenty of other times and picked up the basket of rubbish and pretended to throw them away. The accused then said that he left for his house.

44.	The next day, Sunday 15th of February 2009, the accused said that he planned to harvest oil palm as the next day would be pick up day. His mother, however, advised him to wait until after the church service at a nearby Apostolic Church. The service normally begins at 9.00 a.m and ends at 10.00 am.

45.	After Service ended, the accused said he went to buy smoke. As he was going past Winnie Kitave's house, the complainant called out to him in pidgin saying "Longlong man, yu laik go we? ("Crazy man, where are you going?)" He told her that he was just going over to buy smoke and will return to his oil palm block. She then gave him a betel nut and told him to stop over after he had bought his smoke.

46.	When he returned after buying smoke, she said he stopped at Winnie's place where the complainant served him a plate of corn.

47.	The accused said that the complainant told her that her mother had gone to the market or they agreed to meet at the market later that afternoon after the accused had completed working at his block.

48.	The accused said that he left for the market between 3.00p.m and 4.00 p.m. He saw the complainant's mother and his elder sister at the market.

49.	Seeing that the complainant wasn't there, he left to look for her along the road. As he was walking back, he met the complainant who told him that he came too early.

50.	The accused said that the only reason they have agreed to meet was to have sex, nothing else. They stood there deciding where to go. On one side of the road was company oil palm while on the opposite side was customary land where there were some bushes. The accused said that they were approximately 100 meters from the hospital junction and another 200 meter from the oil palm mill.

51.	The accused said that there were a lot of people at the market junction and on the road and some of them were looking their way. It was harvest time so there were a lot of company employees there.

52.	The accused said that they thought of going into the bush but feared that they might be seen so they decided to wait for a company truck to pass so that they could slip in under the cover of the dust. So when a truck eventually passed, they went into the bush.

53.	The accused said that the complainant went in first. She removed her home made shorts herself, picked heliconia and banana leaves and made a bed on the ground. She told him that they have to do it quickly because she'll have to go to the market to buy greens and then return home. Then they had sex. The accused said he still had a strong erection after he first ejaculated so he continued to have sex with her and this continued for some time.

54.	After they finished, the accused said he got off the complainant but as he was doing so, he noticed blood on the waste line of the pair of the green shorts he was wearing. At that time, the accused said the complainant had her back to him but he could see blood on her shirt.

55.	When he saw the blood, the accused said he said to the complainant "blut ya" but she replied saying "this is women's sickness, you should not look at it." She turned around and gave her back to him while she sorted herself out. She then asked him to check her back for any grass.

56.	The accused said that the complainant's shirt had blood on it. Seeing that she still had to go to the market, he gave her his shirt, telling her to turn it inside out as his sister might recognize the shirt.

57.	The accused said that the complainant asked him to go out to the road first to check if there were people around which he did. Seeing no one around, he asked the complainant to come out. They then parted. She went to the market and he returned to his oil palm block.

58.	At the oil palm block, the accused said he continued to harvest and gather palm fruits. He was joined there by his young nephews Gilchrist Ino and Connie Keno who had come to cook bananas and corn.

59.	After a while, Connie came running to the accused saying "Uncle, uncle, this girl, Emma wants to see you". He asked him where she was and was told that she was standing on the track that villagers used to go down to the river.

60.	The accused said he went up and saw the complainant and asked her how she had come as she came from the opposite direction altogether from Mamba. He noticed that she had washed and had all her clothes on. She replied saying "look down to my legs" and then told him that he was having her menstrual period. Accused said that this was the first time for her to see such a thing so he began to ask her a lot of questions. He said he saw blood dripping down her legs. At that time Connie was there too watching from a distance of approximately 7 meters.

61.	The accused said that he tried questioning her again but the complainant shouted back at him saying that this was women's sickness and that he should stop talking about it. She then gave him back his shirt and asked him to take her to his house.

62.	The accused said that he was baffled by her request because it's been only two days that he had known her intimately and so he asked her if she has had an abortion. He then told her that he would bring her back to her sister's house. She protested at first but he eventually brought her back leaving her some meters away from Fredies' house. By that time, it was already getting dark. He then returned to his block and went home with his nephews.

63.	On cross-examination, the accused said that the complainant herself took his penis and inserted it into her vagina and that they had sex that Sunday afternoon around 4.00 p.m and that it lasted around 20 minutes.

64.	Under cross-examination, the accused mentioned that the complainant had told him that she was having her monthly period. He also strenuously denied stabbing her vagina with a knife and that he had had sex with her against her will. He also denied stuffing his 'T' Shirt into the complainant's mouth.

65.	The defence then called Dr Akule Dunlop, a Medical Practitioner attached to the Popondetta General Hospital.

66.	Dr. Dunlop had been practicing for seven (7) years after graduating from the University of Papua New Guinea (UPNG) with a MBBS in 2005. He had practiced as a general practitioner for 4years and three (3) years specializing on surgery.

67.	He briefly touched on the prerequisite studies in anatomy, physiology and pathology that he undertook. As a surgeon, he said that he has to have a thorough knowledge of the human anatomy from the skin, fat blood vessels and other parts of the body – both male and female.

68.	He told the Court that he'd dealt with between 100-200 cases involving women. He also said that he has dealt with some 10 – 20 rape cases in his practice in Port Moresby, Mendi and here in Popondetta.

69.	He described the standard procedure applied in cases of alleged rape. This involved taking the victim's history, examining the patient for evidence and signs on the patient's sexual parts, evidence of struggle etc and investigation by conducting tests for evidence of sperm in the vagina, blood test etc.

70.	During examination, the victim is thoroughly exposed (naked). Examination starts from outside for signs of bleeding, brushes on the skin, labia major and the thighs.

71.	The vaginal canal is then examined by the use of a speculum - a medical instrument to examine the birth canal and the cervix. It is inserted slowly into the vagina and the vaginal wall and the cervix can be examined for brushes, other abnormalities and the presence of spermatozoa. Sperm would be collected by using a swab stick – a slender stick the size of a broom stick with cotton or kapok attached to the end.

72.	Dr. Dunlop described the opening of the vagina as very soft and delicate. The vaginal wall is lined with vaginal rugae - little humps found beginning at the opening of the vaginal wall and extending all the way to the cervix. The vaginal tissue is very elastic. The vagina normally stays at a collapsed state but stretches to accommodate the passage of a baby or a penis. The average vaginal canal measures between 7cm – 10cm from the vaginal opening to the cervix. However, during child birth and sexual intercourse this can increase to 14cm – 15cm.

73.	During sexual intercourse, the vagina secretes lubrication or fluids to accommodate the penis. The vagina can accommodate other hard objects but with some hindrance and resistance in the absence of lubrication.

74.	When asked in examination in-chief what it will be like if a 2cm double edged knife was pushed into the vagina, Dr. Dunlop said that because of the collapsed state of the vagina the insertion of a sharp object will definitely cause injury to the vaginal walls all the way up to the cervix.

75.	When further asked if normal penile sexual intercourse can cause injury to the vagina, Dr. Dunlop said this will only happen during aggressive intercourse. He said he had seen a case in Port Moresby where aggressive intercourse had caused injury to the patient's cervix.

76.	When asked how long a woman's menstrual period last, he said it can last only somewhere between 3 – 7 days but blood flow will not be continuous.

77.	Dr. Dunlop was cross-examined on the elasticity of the vagina as between a virgin and a non virgin and as to whether the vagina is still receptive and open immediately after sex. He replied that there is no difference between a virgin and a non virgin and that the vagina immediately collapses after sex but would still be receptive to any object as there would still be lubrication.

78.	When asked for his professional opinion as to whether a woman can faint from normal menstrual bleeding he said that this was possible only if the woman was bleeding profusely.

79.	Finally, as to whether an object can cause injury to the cervix without injuring the vaginal wall he said that this would depend on the type used. If it was sharp only at the head or end, it will injure the cervix only. However, he conceded that it will also depend on the angle on which the object was inserted.

80.	The defence final witness was Connie Keno whose evidence corroborated the accused evidence that the complainant had come looking for the accused at his oil palm block later on that afternoon of 15th February 2009. He testified also to having heard what transpired between them.

SUBMISSIONS

81.	Both counsel agree that the only issues for the Court's determination are whether the accused sexually penetrated the complainant without her consent and whether he committed the offence under circumstances of aggravation as alleged against him.
 
82.	Counsel also agree that given the uncompromising nature and diametrically opposing evidence, the issues must be determined by assessing the evidence through the tests of inconsistency (The State v Okata Talingahing (No. 1) (2004) 2581; The State v Peter Malihombu (2003) N2365); logic and common sense (The State v Pennias Mokei (No.1 ) (2004) N2606;The State v Cosmos Kutau Kitawal (No.1) (2002) N2245) and demeanour (The State v Tauvara Avaka (2004) 2024; Gibson Gunure Ohizave v The State (1998) SC 595).

83.	The defence generally submitted that whilst the principal issue is one of consent the alleged offence happened some 100 – 200 metres from the Mamba Market where a lot of people were. At no time did the complainant shout for help while still on the road when she was being dragged into the bush or when the T' Shirt was being stuffed into her mouth.

84.	Counsel further submitted that she didn't tell her brother in-law who was virtually her guardian that she was raped by the accused seeing that he was the first to have seen her when she arrived bleeding. Thus he said that she had consented to have sex with the accused – something they had planned.

85.	Counsel then pointed the Court to what he said are glaring contradictions and inconsistencies. Firstly she denied knowing the accused and yet she said in cross-examination that the accused had been coming to their house. This is contradicted by Winnie Kitave who said that the complainant had been living with him for 5 years and everyone in the village know each other and that she knows the accused.

86.	Secondly, there is a lot of inconsistency regarding the time in which a lot of important events in this matter happened.

87.	There was also contradiction and inconsistencies on the issue of whom she first raised the alleged rape with. Then she said that she went straight home after the alleged rape but in cross-examination she admitted that she had first gone to the river to wash off the blood.

88.	Counsel further submitted that there were other inconsistencies and contradictions such as the period of her hospitalization, her claim of lack of sophistication when she was in fact educated up to Grade 8.

89.	These, Counsel said, are serious inconsistencies which show that complainant had lied to the police and to this Court.

90.	As to evidence against logic and common sense, Counsel submitted that given the delicate nature of the vaginal wall and its collapsed state, it is impossible for a 10cm x 2cm double-edged knife to be inserted into her vagina without injuring both sides of the vaginal wall.

91.	Counsel also submitted that the complainant's demeanour in Court was unconvincing. At times she answered questions in cross-examination even before they were put to her. She merely answered "em i giaman" without looking at the Court. Her evidence was sketchy and without detail as opposed to the accused evidence which Counsel said was detailed and consistent throughout.

92.	Furthermore, medical evidence showed that the injury to the cervix may be caused by aggressive intercourse. In this case bleeding was not caused by a stab to the complainant's cervix with a knife but by aggressive sex and menstruation.

93.	Counsel therefore submitted that the State has not proved his case on the required standard.

94.	Counsel for the State on other hand agreed with the principles defence counsel cited in regard to inconsistencies and evidence which are against logic and common sense as being unreliable: The State v Cosmos Kutau Kitawal (supra).

95.	He, however, argued that the defence case is quite confusing in itself. It is unclear whether they are saying that the complainant was bleeding from menstruation or because of injury caused by aggressive intercourse. He submitted that a woman who was bleeding heavily would not be standing around on a public road. That would defy logic and common sense.

96.	Furthermore, Counsel submitted the accused didn't say that the scene of the crime was 200 – 300 meters from the market. It was the accused who said that. They could have gone to a more secluded spot but according to the accused they didn't and that is illogical and against common sense.

97.	As to the defence assertion that the complainant's evidence lacked detailed description as opposed to the accused own so-called "detailed and descriptive evidence", counsel asked how else could the events be described – the accused grabbed the complainant by the hands and dragged her into the bush, stuffed his 'T' Shirt into her mouth, had sex with her and then stabbed her. That counsel said is very detailed and descriptive.

98.	The accused's detailed evidence may be fact go against him, so counsel argued. He said it is against nature to remember all details of what happened 3 years ago. In any case, the accused's demeanour in Court was that of someone who was lying.

99.	Counsel also submitted that the matters which the defence said were inconsistent were minor and do not affect crucial issue of consent and the material facts of the case. For instance, the inconsistencies in time are not crucial for it is a known and accepted fact that sexual intercourse did take place.

100.	As to the argument that the complainant didn't shout for help, counsel said that this was never raised in cross-examination, hence, offending the rule in Browne v Dunn (1863) 6 ER 67.

101.	Counsel conceded that there were inconsistencies on the issue of recent complaint –whether she told her brother in-law or sister first. This however does not matter because the fact remains that a report was made.

102.	Turning to what could have caused the cut to the complainant's cervix, counsel submitted that the fact that it was a clear cut and not one with round edge is consistent with infliction by a sharp instrument – a knife. The defence didn't give any evidence to show how the cut would have been caused. And despite the fact that the cut could have been made to the vaginal wall by the knife, Sr. Konehe only saw one clean cut.

103.	Counsel submitted that the theory that the cut could have been caused through aggressive intercourse is inconsistent with the evidence before the Court. The cut, he said, could not have been caused by penile penetration.

104.	Counsel asked the Court not to believe the evidence of Connie Keno. His demeanour was poor and he was not confident. He obviously could have done anything to save his uncle. His evidence contradicted the accused's evidence on one important point – that accused was wearing his 'T' Shirt at the block when the accused himself said he did not as he had allegedly given it to the complainant.

105.	Finally, Counsel submitted that while there may have been inconsistencies in the State's evidence which do not go to material facts, the defence evidence is so illogical and against common sense.

106.	Therefore, the State has proven its cause beyond reasonable doubt.

THE LAW

107.	Section 347 of the Code Act (as amended) both defines and provides for offence of rape. It provides –

 347. Definition of Rape

(1)	A person who penetrates a person without his consent is guilty of rape.

 Penalty: Subject to subsection (2) imprisonment for 15 years.

(2)	Where an offence under subsection (1) as connected in circumstances of aggravation, to accused is liable, subject to Section 19, to imprisonment for life. 

108.	Section 349A of the Code defines what constitute circumstances of aggravation. These include, among other things, the use of or threats to use a weapon, torture or causing grievous bodily harm to the complainant.

109.	Where the State intends to rely on a circumstance of aggravation this must be pleaded in the indictment.

110.	The crime of rape does not require a specific intent or the intention to cause a specific result. All that is required is the sexual penetration of another without his or her consent.

111.	 After the amendments to Section 6 of the Code, brought about by the Criminal Code (Sexual Offences & Crimes Against Children) Act 2002 (No. 27 of 2002) S.2, the expression "sexually penetration" or "sexually penetrate" means "the introduction, to any extent, by a person of his penis into the vagina, anus or mouth of another person or the introduction to any extent of any object or part of his or her body (other than the penis) by a person into the vagina or anus of another person other than medical procedures that are done on good faith."

112.	Apart from penetration, the act must not have been consented to.

113.	Section 347A (1) defines "consent" as "free and voluntary agreement". Subsection (2) then provides for circumstances which do not constitute consent and subsection (3) provides for matters which can assist the Court to determine whether or not a person has consent to the sexual act alleged.

114.	Section 347B provides that it is not a defence that the accused person thought that the other person consented to the sexual act if that belief arose from self induced intoxication or reckless or wilful blindness, or if the accused did not take reasonable steps, in the circumstances known to him at that time to ascertain if the other person was consenting.

115.	Now the amendments to the Code, were I would like to think, without the benefit of reading the Hansard, intended partly to respond to the prevalence and escalating rate of sexual offences against our women folk and children and partly to bring about clarity to areas and aspects on the law on rape and kindred offences that may have hitherto been unclear, such as the issues surrounding what constitutes "consent or "sexual penetration" for instance. 

116.	These amendments, however, do not reverse the onus of proof which still rests on the State.

117.	Let me now move to the issues before me.

ISSUES

118.	As I alluded to at the outset there are two principal issues for me to determine. These are:-

1.	Did the complainant consent to have sex with the accused?

2.	Did the accused stab the complainant in her vagina with a knife after he had sexually penetrate her?

119.	The answers to these issues will turn on the answers to the following disputed facts that have arisen from the evidence.

1.	Did the complainant and the accused agree to meet on the afternoon of the 15th February 2009 and have sex?

2.	If not did the accused grabbed the complainant by her hands and drag her into the bushes, stuffed his 'T' Shirt into her mouth, force her to the ground and sexually penetrated her?

3.	Was the "cut" to the complainant's cervix caused by a knife or by aggressive sexual intercourse?

4.	Can aggressive penile sexual intercourse result in injury to a woman's vagina, vaginal canal or cervix?

120.	At this juncture, I must say that apart from the act of penetration and the injury to the complainant's cervix all material facts and those that may be said to be part of the res gestae are disputed.

121.	Hence the only way the material facts that bear upon the principal issues and the factual ones I have alluded to above is through assessment of the competing evidence. And as agreed by both counsel, this would involve the Court's application of the tests for inconsistency, logical and common sense and demeanour.

122.	The principle of logic and common sense is well stated in Giratau Bonu and Rosanna Bonu v The State (1997) SC 528. There, the appellants were convicted and sentenced to 7 years for the murder of the deceased who was found in their house with multiple wounds to his body. There was evidence that they had tried to revive the deceased or render medical assistance to him in the bedroom and that they had sought assistance from their fellow workers and the local Bishop.

123.	There was no evidence to how the deceased came to be in the appellant's house and they didn't offer any explanation how and why the deceased came to be there.

124.	The Supreme Court found that the trial judge's finding of guilt was a common sense conclusion. It said that "to say that the deceased would most likely have been stabbed by unknown persons and left in the appellant's house, without them knowing anything about it is parting company with reality and commonsense when there is not an iota of evidence suggestive of such hypothesis or possibility".

125.	This statement had consistently been followed in subsequent cases: The State v Peter Malihombu (supra); The State v Edward Toude (No.1) (2001) N2298. In The State v Cosmos Kutau Kitawal (No.1) (supra) His Honour Kandakasi, J; held that logic and common sense play an important role in accepting or rejecting evidence and the guilt and innocence of an accused person and that evidence going against logic and common sense is reliable and when complied with inconsistencies amount to unreliable evidence and sought to be rejected.

126.	On the other hand, where there are serious inconsistencies in the evidence these is a possibility that such evidence may be false.

127.	A persons demeanour in court has always had some bearing on how the courts have assessed the evidence as to its veracity or otherwise. An evasive and hesitant witness may be demonstrating unreliability or consciousness of guilt if he were the accused person. Conversely, a witness who gives spontaneous answers to questions without as much as give thought to the question or who mechanically answers questions may very well be demonstrating the same traitss (Gibson Gunure Ohizeve –v- The State (supra); The State –v- Tauvara Avaka (supra)) 

128.	 I will now turn to the disputed facts and the evidence against the principles discussed above. The first two disputed facts are related and can best be dealt with together. Disputed facts 3 and 4 are also related and I will also deal with them together.

1.	Did the parties agree to meet to have sex on the afternoon of 15th February 2009?; and

2.	If not did the accused grab the complainant by the two hands, dragged her into the bush, stuffed his 'T' Shirt into her mouth, forced her to the ground and sexually penetrated her?

129.	The complainant's evidence on these points as we have seen is that on the afternoon of the date in question between 5.00p.m. – 6.00 p.m. she was on her way to the Mamba Estates Market to buy lime when she was accosted on the main road by the accused who grabbed her by her two hands and dragged her into the bush. As he was doing this, he removed his 'T' Shirt and stuffed it into her mouth obviously to prevent her from shouting for help. He then forced her down on the ground, removed her clothes and his own and sexually penetrated her vagina and had sex with her. After he had ejaculated, he then pushed a double edged 10cm x 2cm knife slowly into her vagina as she laid on the ground and then left.

130.	The complainant then got up and walked slowly home, bleeding profusely form the wound inflicted by the accused.

131.	The accused on the other hand testified that on the previous day, the 14th February 2009, he and the complainant had their first act of consensual sexual intercourse behind the toilet at the back of Winnie Kitave's house. Intercourse was somewhat short and interrupted when the complainant's sister called out to her. 

132.	On the morning of Sunday 15th February, they met at Winnie's place when the accused went to buy smoke at a neighbour's house. They agreed to meet up later that afternoon on the road to Mamba to have sex.

133.	At about 4.00 pm, they met on the road some 100 – 200 metres away from the Mamba Market and Oil Palm Mill. As there were people around at the Market and on the road, they waited until a truck passed by and they went together into the bush, with the complainant leading, under the cover of the dust created by the passing truck.

134.	Once safely in the bush, the complainant made a bed from heliconia and banana leaves, undressed herself and laid down. When the accused got on top of her, she told him to do it fast as she still has to go to the market to buy greens. She took the accused's penis and guided it into her vagina and they had intercourse until the accused ejaculated. The accused said that his penis was, however, still strong so he continued until he ejaculated the second time. The whole episode lasted about 20 minutes.

135.	When the accused stood up to clean herself and got dressed, he noticed blood on the waste line of the green sports shorts that he was wearing. When he looked over to the complainant, she noticed blood on her shirt and alerted her saying "blood ya". He said that the complainant replied saying it was women's sickness and that he should not look at it.

136.	At that stage, the accused said that he gave her his own 'T' Shirt as hers had blood on it. And the complainant was to go to the market where her mother and his sister were he told her to turn it upside down. He didn't want his sister to recognize his 'T' Shirt on the complainant.

137.	They then parted – she to the market and the accused back to his oil palm block where he had been working earlier that day.

138.	Under cross-examination the accused strenuously denied that he stuffed his T-shirt into the accused mouth let alone dragged her into the bush. He denied stabbing the complainant in the vagina with a knife or that he had sex with her against her will or without her consent.

139.	The accused testified further that he was surprised when the complainant turned up later at his oil palm block later that afternoon, all wet obviously from having washed herself in the river. There, he complainant alerted him to her bleeding but maintained it was her monthly period. The complainant had wanted him to bring her to his house but he brought her to Winnie's house instead leaving her about a metre away from the house.

140.	Now in her evidence in-chief and on cross-examination the complainant gave some contradicting statements as to the time of certain happenings that afternoon. For instance, on cross-examination she said that she left the village for Mamba Market at 3.30 p.m., that the alleged rape took place at about 6.00 p.m. and that she arrived back home at 7.00 p.m.

141.	On cross-examination she was referred to her statement to the police dated 16/2/09 a day after the alleged incident where she said that she was in the village between 5.00p.m. – 6.00 p.m. She said that she was still dizzy at the time she made the statement to the police. When pressed as to exactly when to the market she said she in fact went at 5.00 p.m.

142.	There was also some inconsistencies in her evidence as to whom she first reported the alleged rape. At first, she said she told her sister Fredies that then said she did in fact tell Winnie first but then again said that she never told Winnie at all. This I agree is not a major inconsistency. The important thing is that she did report the matter.

143.	But the complainant never told the Court that after the alleged rape, she went down to the river to wash and clean herself. She only admitted this after cross-examination but, interestingly denied having gone to the accused's oil palm block after the incident. How then could the accused have known that the complainant had gone and washed herself in the river if it wasn't for the fact that she did go to the accused's block after their sexual encounter?

144.	Let me now turn to what happened on the road on that afternoon. Did the accused drag the complainant into the bush and sexually penetrate her without her consent? Did he stuff his T- shirt into her mouth? 

145.	Lets assess the competing evidence on this points. The complainant said that as the accused was dragging her into the bush, he stuffed his T-shirt into her mouth. She didn't say, either in her evidence in chief or on cross-examination, whether he was wearing the T-shirt at that time and that he removed it while dragging her into the bush or whether he had removed it prior to grabbing her and then dragging her into the bush.

146.	If the accused had removed his T-shirt while he was dragging the complainant into the bush, this would have taken considerable effort on his part and it is possible that at sometime during the process, he would have let go of the complainant's hands and this would have provided an opening for her to escape.

147.	The complainant said that the accused grabbed both of her hands and dragged her into the bush. She didn't say whether he did that using one hand or both hands. Either way, it would have taken much effort and it is most doubtful that he would have managed to continue to have a strong grip of the complainant's hands while removing his T-shirt at the same time.

148.	Furthermore, the very act of stuffing the T-shirt or part of it into the complainant's mouth would have also taken much effort and time in the face of resistance by the complainant. Was the complainant's mouth open, shouting for help perhaps when the accused was stuffing the T-shirt in or did the accused prise the complainant's mouth open and by what means?

149.	These unfortunately are details that are not apparent from the complainant's evidence.

150.	It is too simplistic and against logic and common sense to accept the complainant's evidence as it was presented on this particular point.

151.	For the accused to have succeeded in stuffing the T-shirt into the complainant's mouth he would have first effectively subdued her. It defies logic he would have done that while trying to drag a resisting complainant into the bush – that is if there was any resistance at all.

152.	Now the market and other buildings at the Mamba Estate where people were, were not too far way. Certainly if the complainant had shouted, someone could have heard her.

153.	These things throw reasonable doubt in my mind about the complainant's version of facts.

154.	So coupled with the inconsistencies and contradictions as to time and fresh complaint – though in not in themselves vital or touch on material facts – the above illogical and nonsensical version of the facts by complainant cannot help the State's case.

155.	I do not believe that the accused dragged the complainant into the bush and forcefully penetrated her against her will. I believe that they had agreed earlier that morning to meet up on the road to the market that afternoon and have sex as per the accused evidence.

156.	Now to the next set of disputed facts.

3.	Was the "cut" to the complainant's cervix caused by a knife or by aggressive sexual intercourse?;and

4.	Can aggressive penile sexual intercourse result in injury to a woman's vagina, vaginal canal or cervix?

157.	There is no dispute that Sr. Konehe had observed a 'cut" measuring 2½ cm long and 1cm deep on the right side of the complainant's cervix. Sr. Konehe described it simply as a "cut" in her report but later said in her testimony that it was a "clean sharp cut" that could have only been caused by a sharp object such as a knife. She said that normal penile sexual intercourse could not have caused such a cut as it was not ragged. Now the good Nursing Sister had only seen two rape cases in her entire working carrier.

158.	On the other hand, there is the expert evidence of Dr. Akule Dunlop whose description of the anatomy and physiology of the vaginal canal was most informative.

159.	He described the vagina as an extremely elastic and delicate organ. It remains at a collapsed state and can accommodate hard objects such as a baby or penis. The vaginal walls are line with vaginal rugae i.e. small humps. On average the vaginal canal measures between 7cm - 10cm from the opening to the cervix but this may increase to 14cm – 15cm during pregnancy. The vagina has its own fluid or lubrication that allows for easy entry of hard objects into the vaginal canal.

160.	Dr. Dunlop also gave a run down on the standard procedure for dealing with alleged rape victims.

161.	When asked what would happen if a double edged 10cm x 2cm knife was inserted into the vagina immediately after intercourse, Dr. Dunlop said that there would definitely be injuries to either side of the vaginal walls and the cervix as the vagina would immediately revert to its collapsed state after intercourse.

162.	Dr. Dunlop also said that injury to the vaginal wall or cervix can be caused by aggressive sexual intercourse. He said that he had seen such a case at Port Moresby General Hospital.

163.	So would it have been possible for a knife to have not cut the complainant's vaginal walls when it was inserted, whether slowly or otherwise? No, a double edged 10cm x 2m knife would definitely have cut or lacerated the complainant's vaginal walls which as we have seen are soft and very delicate.

164.	Hence the only other possible hypothesis or possibility is that the "cut" to the complainant's cervix would have been caused by aggressive sexual intercourse.

165.	I must say here that the accused did testify that the complainant told him to do it fast as she was yet to go to the market. There definitely wouldn't have been time for the complainant's vagina to secrete sufficient lubrication and this may have contributed to the injury.

166.	Now, one final matter. Neither counsel put to Dr. Dunlop what type of injury would result from aggressive sexual intercourse. This was a matter which in my opinion could have had a bearing on the whole question of what caused the "cut" to the complainant's cervix.

167.	But it probably does not have to take expert medical evidence to show that the insertion of a 10cm x 2cm double edged knife would definite cause some laceration or injury to the walls of any woman's vaginal canal. There was no such collateral injury to the complainant's vaginal walls unless of course the knife was extremely blunt.

VERDICT
168.	 So in the final analysis, in regard to the first issue (whether the accused sexual penetrated the complainant without her consent) I am not satisfied that the accused sexually penetrated the complainant without her consent. On the contrary I find that sexual intercourse was consensual. 

169.	Secondly, in regard to the second issue (whether the accused stabbed the complainant's vagina with a knife after he had had sex with her) I find that the State has not proven beyond reasonable that that was the case. On the contrary I find that the injury to the complainant's cervix must have been caused by aggressive sexual intercourse.

170.	Therefore the State has not proved its case beyond reasonable doubt. I return a verdict of not guilty and order that the accused be discharged forthwith.

Orders accordingly.

________________________________________________________
The Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyers for the Accused