N5074

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.309 OF 2012

THE STATE

V

AKAS LAKNAIT (N0.2)

Kokopo: Lenalia, J
2012: 21st November
2013: 4th & 7th February

CRIMINAL LAW – Sexual penetration without consent – Plea of not guilty – Trial – Evidence – Charge – Elements – Criminal Code s.347 of the Criminal Code as Amended.

CRIMINAL LAW – Prosecution Evidence on trial – Defence evidence on trial – Assessment of – Evidence of victim shows accused sat on her before sex took place – Prosecution evidence reveals accused is supposed to have set on victim when witness came on them on the scene – Possibility of attempted rape. 

Cases cited

The State v Paul Kundi Rape [1976] PNGLR 96
The State v Delga Puri and Tapri Maip [1982] PNGLR 493
The State v Roka Pep (N0.2) [1983] PNGLR 287
The State-v-Tom Morris [1981] PNGLR 493
Paulus Pawa-v-The State [1981] PNGLR 498
The State v John Kalabus [1977] PNGLR 87
Didei v The State [1990] PNGLR458,
Thomas Arthur McCallum v Gregory Buibui [1975] PNGLR 439
The State-v-Micheal Amuna Koupa [1987] PNGLR 208
The State-v-Peter Kaudik [1987] PNGLR 201 
Thomas Waim-v-The State (1997) SC 519 
 Matagal-v-The State (1996) SCRA NO.95
Lawrence Indemba-v-The State (1998) SC 593

Counsel

Mr. A. Bray, for State
Mr. D. Wapu, for Accused

7th February, 2013

1. LENALIA, J: The accused was charged with one count of rape contrary to sections 347 of the Criminal Code. When he was arraigned, he entered a plea of not guilty. A trial was conducted during which four prosecution witnesses were called. 

Prosecution Evidence

Ruth Ruga (Victim)

2.	The victim of this case, Ruth Ruga was called as the first prosecution witness. The victim is partially mute. Her evidence shows that on 5th January 2012 at Kumaina village on the Duke of York islands, at about 2 pm she was returning from her garden. The garden is situated between Kumaina and Kabilomo villages. 

3.	As she was walking through the bush track returning home, the accused met her. Without saying anything, he threatened her with a bush-knife then grabbed her by her hands and threw her down to the ground. She then started to call out for help. While she was on the ground, the accused used one hand to hold on to her hands and the other to hold on to the knife. They struggled for sometime in the course of which the accused is supposed to have got some soil and put it over her mouth and her facial area. Whilst the accused was doing this, the more she called out for help. 

4.	Her evidence further reveals that, after the struggle, he overpowered her and inserted his penis into her vagina without her consent until he ejaculated. Then the accused ran away.

Simon Arol

5.	Simon Arol is an uncle of the third witness husband. Simon said, about 2 pm that day, he and his auntie were going through his uncle's plantation to collect food when they heard someone calling out ahead of them. The estimated distance given by this witness from where he stood with his auntie when they first heard the victim calling out was from where the witness was sitting in the Court room to the fence at the back of the Courts premises. No estimation was given but the court would estimate that to be either 25 or 30 metres or could be less than that.

6.	He started running and when he got to the scene he saw the accused sitting on top of the victim's belly. He ran back to his auntie and got a bush-knife and returned to the scene and when he almost reached them he saw the accused running away. He described his dressing as the accused had a laplap around his waist and he wore an old maroon shirt with a rakes (westmon) trouser.

Emas Joseph

7.	The next witness was Emas Joseph. She is married to the first witness uncle. She is originally from Takabur village, Kokopo District. She sometimes resides with her husband at Kumaina village on Duke of York islands. After Simon got the knife from her, she ran after him and as she was almost reaching Simon, she saw the accused running away from where the victim was lying down. She assisted the victim and took her to the village where she helped her to get on her decent clothing to go to the Molot Health Center Clinic and to report the matter to the Police Patrol Post at Kibil near Molot village. 

Mrs. Selin Eron

8.	The last witness, was a Nursing Sister Mrs. Selin Eron. She is a Nursing Sister at Molot Clinic in Duke of York. She examined the victim on the afternoon of the date the victim is supposed to have been raped. She made the following findings on the vagina of the victim:

•	Perineum stretch,
•	Semen fluid seen speculum examination,
•	Cervix inflamed/bleeding,
•	Nil others.

9.	She noted at the bottom of the report that, in her opinion, the victim had been sexually penetrated that day.

10.	When the prosecution completed their case, Mr. Wapu of counsel for the accused made a submission of "no case to answer". Counsel based his argument on the principles stated in The State v Paul Kundi Rape [1976] PNGLR 96, then later in The State v Roka Pep (No.2) [1983] PNGLR 287 and The State v Delga Puri and Tapri Maip [1982] PNGLR 493. Having considered the evidence then, the court ruled that there was a case for the accused to answer.

11.	There is evidence from Simon Arol and Emas Joseph of seeing the accused sitting on the victim. In the case of witness Simon, he saw the accused sitting on the victim in the grass. He said, he knows the accused well as they both come from neighbouring village of Kumaina and Kabilomo. Mrs. Emas Joseph's evidence substantiates Simon's evidence of seeing the accused running away from the scene. 

12.	The defence evidence is complete denial. The evidence by the accused is that, on the day the offence was committed, the accused was in his house stringing Tolai shell money for the purpose of a customary ceremony that took place on the afternoon of the day the offence took place. 

Defence Evidence

Akas Laknait

13.	The evidence by the accused wife confirms that of the accused that, the day the offence was committed, the accused was in his house stringing Tolai shell money for the purpose of the ceremony that took place on the afternoon of the day the offence took place.

14.	The accused gave evidence that on 1st May 2012, he was in his house preparing shell money for the custom ceremony that took place later on in the afternoon of that date. The custom ceremony was held to commemorate and honour his in-law's death. While he was preparing the Tolai shell money, his wife gathered firewood and started to prepare food by making an oven or in Pidgin (mumu). Then he was there until he and his wife left to where the ceremony was held. They left about 2pm. 

Lina Benny

15.	This witness is the accused wife. She corroborated the evidence of the accused of what happened on the date the offence occurred. She woke up early and she went to the bush with their buffalo to collect firewood. That was after she had prepared food by making a mumu for the ceremony. She left the accused in their house stringing shell money. She returned about 12 noon and they started to prepare to go to the place where the ceremony took place.

16.	By about 2 pm they started to walk down to the place where they performed the customary feast. She maintained in cross-examination that after they had been to where the ceremony was taking place, they never left that place ubntil the celebration ended. 

Japheth Pakati

17.	This witness is an uncle of the accused. He said, about between 10 am and 12 noon, Japheth came around the accused's house and paid a visit to the accused. He spoke to him briefly for about fifteen minutes then he left for the bushes. Japheth confirmed that he saw the accused sitting on the verandah of his house and when he talked to him he saw him stringing Tolai shell money. In the case of this witness, he did not go for the customary celebration that afternoon. His evidence is that he was doing gardening until 6 pm that day when he returned home. After washing he was told about the news of the accused raping the victim. 

 Defence's submission on verdict

18.	The gist of Mr. Wapu's submission on verdict is that the State has not proven their case to the required standard of proof. Counsel referred to certain inconsistencies in the prosecution case. He referred to the evidence of Simon Arol and that of his auntie Emas Joseph saying the evidence of Simon in particular shows that the person he saw only sat on the abdomen of the victim and when he ran back to get the bush-knife in a distance of 20 or so meters, he returned to see the person running away. 

19.	Counsel also referred to the inconsistent statement made to police regarding the description of the type of dressing worn by the accused and the evidence. In the statement made to the police in the investigation witness Simon's description of the type of dressing is different from what he described in his evidence in court. Counsel said, it is not therefore safe to draw inferences of guilt from the evidence by the prosecution. 

Prosecution's submission on verdict

20.	Mr. Bray of counsel for the State also spoke to his written submission. Counsel briefly stated the law on rape as stated in s.347(1)(2) of the Criminal Code. Counsel referred to the evidence by the prosecution and that by the defence. He correctly identified two issues namely whether there was actual sexual intercourse and whether or not the accused Akas Laknait was properly identified. 

21.	On his summary, counsel addressed the issue of the timing as to when the accused could have gone to the place where the offence took place after going to the place where the customary celebration was to take place. He submitted that the State has discharged its duty and has proven beyond reasonable doubt that the accused committed rape upon the victim and the court should return a verdict of guilty. 

Law

22.	The accused is charged under s. 347(1) of the Criminal Code. The offence of rape is defined as:

"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." 

23.	Subsection (2) applies where there are circumstances of aggravation. Aggravation as those defined by the National Court cases such as that of The State-v-Micheal Amuna Koupa [1987] PNGLR 208, The State-v-Peter Kaudik [1987] PNGLR 201 or the case of Thomas Waim-v-The State (1997) SC 519 or Matagal-v-The State (1996) SCRA NO.95, or Lawrence Indemba-v-The State (1998) SC 593. 

24.	On this trial, there are three issues. The first is that of the timing. The offence is supposed to have taken place between Kumaina and Kabilomo village at about 2pm. The time scheduled to commence the custom celebration was 3pm. The evidence by the accused and his wife show that they got to the place where the custom was conducted before three o'clock. 

25.	When the accused's wife returned from gathering wood with the buffalo, it was about between 12 noon or 1pm and 2pm. By 2 pm, Lina Benny (accused's wife) and the accused were getting ready to go to the custom ceremony. There is no direct evidence from the prosecution pointing to the accused getting out of the custom ceremony to commit the rape against the victim.

26.	For the Court to draw any inferences of guilt there should be evidence showing that, the accused knew the whereabouts of the victim that day. Did the accused go out to the bush or garden to hunt or fish for women? The evidence of the timing (i.e. 2pm) when Simon Arol and Emas Joseph heard the victim calling out clashes with the timing when the accused and his wife were walking down to the place where the ceremony was conducted. 

27.	The second issue is did sexual intercourse take place? Evidence by the two prosecution witnesses, Simon Arol and Mrs. Emas Joseph establish that the distance at which they stood and first heard the victim call out was about 25 to 30 meters. Simon ran to see who was calling out and he is supposed to have seen the accused sitting astride the victim's abdomen holding a bush-knife on one hand and the other holding on to the victim's hands.

28.	Simon Arol made a quick run to his auntie and grabbed a bush-knife and they both got back to the scene and to their surprise they saw the accused from the back of his head running away from the scene. These two witnesses evidence is relevant to the issue of whether or not sex did actually occur. 

29.	From the time Simon and Emas heard the victim, shouted for the first time, Simon ran and saw the man sitting on the victim. He ran back for a few seconds to where his auntie was and got a bush-knife, they both ran to see who was committing the offence. By the time they got back to the distance at which Simon first stood and saw the accused sitting on the victim's belly, they saw the man running away.

30.	In the Court's assessment of all the evidence, there is no evidence of whether the accused was sitting on the victim facing the witnesses. Secondly, the moment the victim started shouting for help, within seconds witness Simon Arol came by and stood a short distance from the accused and victim, when he saw the person sitting on the victim struggling with her. When he returned with his auntie, they saw the person running away. 

31.	This Court is of the view that, the alleged sexual intercourse supposed to have been committed by the accused or another person did not take place with the accused. According to the evidence of the victim, when the accused grabbed her hands and tackled her down to the ground, she started to cry and called out for help.

32.	In order for the rapist to ejaculate, it required a bit more time (5 to10 minutes) for the process to reach orgasm. The time description by the prosecution witnesses as to the time from when witness Simon Arol saw the man sitting on the victim to the time he returned with a bush-knife were matters of seconds or if not a minute or so. 

33.	On the medical evidence, the victim had been out in the morning of that day. She is not married according to her evidence. There is a possibility that the semen fluid found on the private part of the victim may have been from an earlier sexual intercourse had with somebody else other than either the accused or another person on the scene of struggling. 

34.	The principles governing reception of evidence of the nature and manner described by the evidence adduced by the prosecution on this trial have been stated over and over again in this jurisdiction. As was stated in the case of The State-v-Tom Morris [1981] PNGLR 493 and Paulus Pawa-v-The State [1981] PNGLR 498 where there are a number of competing inferences, it is a question of fact for the trial judge to decide which and what inferences should be drawn, which should be rejected, which are reasonable, which are mere conjunctures and which party should the court believe.
 
35. Being a case of sexual nature, I warn myself of convicting the accused on the evidence adduced by the prosecution and more particularly that of the victim. 

36. This is a sexual offence and I must warn myself against the dangers of convicting the accused upon uncorroborated evidence particularly on the evidence of sexual penetration without consent: The State v John Kalabus [1977] PNGLR 87, Didei v The State [1990] PNGLR458, see also Thomas Arthur McCallum v Gregory Buibui [1975] PNGLR 439. 

37. The accused raised an alibi defence. There is sound reason for the rule in sexual offences that it is unsafe to convict an accused person upon evidence of a prosecutrix alone unless such evidence is corroborated in some material particular. I take the evidence of Simon and his auntie as independent witness but the possibility that the person they saw could have been the accused or it could have been a mistaken identity. 

38. In sexual cases, such evidence (i.e. independent witnesses evidence) source which renders it probable that the offence charged has been committed by someone and that the accused was the one who committed it: Didei-v-The State [1990] PNGLR 458 see also Peter Townsend-v George Oika[1981] PNGLR 12 and The State-v-Andrew Tovue [1981] PNGLR 8. 

39. The third issue is one on identification. As I have alluded to earlier, because the evidence by Simon Arol points to the accused being seen in the bushes supposed to be sitting on the belly of the victim, how sure was this witness of the identity of the accused, is the issue. Because he was in a hurry to get the bush-knife from his auntie, I draw the inference that, he saw the person sitting on the victim's belly was a fleeting glance.

40. On his return with his auntie, they saw the person from the back of his head and the court concludes that, the court cannot rely on the identification evidence by the two prosecution witnesses.

41. Supreme Court cases such as Biwa Gete-v-The State [1988-89] PNGLR 153 and John Beng-v-The State [1977] PNGLR 115 established that there are dangers inherent in accepting identification evidence of witnesses who have identified accused on difficult conditions. 

41. Example of such conditions include whether, it was dark or did the witness see an accused in a fleeting instance or whether the witness knows the person or as in this case where the accused is supposed to have been seen through long grasses sitting on the victim first by Simon Arol and when he returned after getting a knife within a few seconds with the auntie with Simon seeing him on the back of his head fleeing. This in my view was fleeting glances. 

42. Due to the above reasons, I must find the accused not guilty on this charge of rape. I have not been addressed on the issue of whether or not this court could come to an alternative finding. There being no address on that issue, I take it that the matter now rests here. This case is dismissed and the accused be discharged with his bail money to be refunded to him.

_______________________________________________________

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