N5238
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 864 OF 2012

THE STATE

V

RUPERT ANTON STOCKER

Kokopo: Lenalia, J.
2013: 5th, 7th, 8th, 11th, 12th & 19th March

CRIMINAL LAW –Rape simpliciter & alternative charge of attempted rape – Plea of not guilty – Trial – Criminal Code s.347 (1 & (2).) 

EVIDENCE – On trial by the victim and other witnesses – Evidence of recent complaint – Consideration of such evidence – Credibility of the victim's evidence. 

CRIMINAL LAW – Practice and procedure – Submission of "no case to answer" – Submission up-held

Cases Cited.

The State-v-Paul Kundi Rape [1976] PNGLR. 96
The State-v-Lasebose Kuriday (1981) N300
The State-v-Delga Puri & Anor [1982] PNGLR 395
The State-v-Roka Pep (N0.2) [1983] PNGLR 287
The State-v-Jimmy Kipma [1997] PNGLR 178

Counsel

Mr. L. Rangan, for the State
Mr. Wapu, for the Accused

19th March, 2013

1. LENALIA, J: The accused is charged with one count of rape contrary to s.347 (2) of the Criminal Code. The body of the indictment also provides an alternative charge of attempted rape. After being arraigned, the accused entered a plea not guilty. The State called four witnesses. Before they were called to give sworn evidence, the following documents were tendered by consent: 

•	Statement by Senior Constable Ukies Kibale – Ex. 1
•	Statement of PWS/C Eshter Butinga – Ex. 2
•	Record of interview – Ex. 3.

2. The accused comes from Vienna in Austria and he is a permanent resident of Australia. He is married to a woman from Taranga village North Coast Road, East New Britain Province. At the relevant time the accused was working with Pacific Industries Ltd as the General Manager in Rabaul town. The victim of this case, Regina Anton gave evidence that on the evening of 3rd March 2012, at Bay Road in Rabaul town, she was in the house of the accused and his family because she was engaged and employed as a house-girl and baby sitter for the accused and his wife. The victim also comes from the same village as that of the accused's wife.

3. The victim's evidence is that, on the relevant date, it was a Saturday and her sister was not in the house because she came to town in Kokopo. About 3pm, the accused returned from work and they cooked some food and ate. After eating, the accused left to the store and when he returned got some beer with him. He sat out on the verandah and started to drink his beer. That after the accused got drunk, he came into the house and got a cup or mug and threw it at the victim's heard. 

4. Then after that, he walked towards her and pulled her by her hands into the master bed room where he pushed her down to the bed then took his clothes off and sexually penetrated her. After that, she got up and cried and when the accused heard her cry, he went and unlocked the door of the bed room and she ran out of the house.

5. After she ran out, she found a security personnel and told him about what the accused did to her. The security guard was Channel Mutia. The two of them called the ABLAZE Security company for assistance. Soon an ABLAZE security vehicle came with a number of persons including Dickson Suku who is the Security Supervisor for ABLAZE Security Services in Rabaul town. They then arrange for her to go to the hospital at Nonga where she was medically checked. She said, after being medically examined, she was admitted into the hospital and on Sunday morning she was discharged.

6. In cross-examination, the witness revealed that, while the accused and this witness were baking some bread, the accused had an argument with his wife over their mobile phones. She was asked if it was true that, after the accused had argued with his wife, he then asked the victim to clean the kitchen. She said, it was true. She was asked if the accused smacked his boys too. She answered in the positive. She also revealed that, while the accused was frustrated, he asked the victim to look for his wife. 

7. She was asked if it was true that, the accused got frustrated because, the kitchen and plates had not been washed and clean and the accused swore at her saying "fuck". She answered, it was true. It was further put to her if it was true that, when the accused threw the cup at her back and swore at her, she got frightened she started to cry and ran out from the house. She answered in the positive.

8. She was also asked if it was true that as soon as she ran out, she informed Channel Mutia that, the accused swore at her and threw a cup at her as a result she ran out. She answered "Yes". A host of other questions were put to this witness where she answered in the positive. 

9. At the end of cross-examination, the victim's statement was tendered as a 'previous inconsistent' statement. It is marked Ex. "A" for the Defence.

10. The doctor was called as the second witness. Doctor Osiat Baining examined the victim on 4th of March 2012. The doctor's findings appear on Exhibits "4" and "5". In Exhibit "4" which is the medical report, the doctor sets out the following findings in paragraph 2, 3, 4 and 5:

 "She was clinically depressed during examination. General examination of the body revealed no obvious signs of physical injury.

 Vaginal examination done at 11:15 am (4/3/2012) revealed;
-	Normal vulva
-	No bruises/lacerations/injuries
-	Obvious open hymen
-	Normal vaginal walls
-	Normal cervix
-	No bleeding.

 A High Vaginal swab for sperm/semen analysis: reveals the following;
-	No spermatozoa
-	Wet prep
-	++ epithelial cells
-	 + Puss cells.
 
 Vaginal examination has clearly indicated that there was obvious vaginal penetration." 

11. In chief and cross examination the doctor revealed that, the private part of the victim was normal and the hymen was obviously open. Because, there were no signs of any physical injuries he could not really confirm if there was actual rape since the hymen was obviously open. 

12. Questions and suggestion were put to the doctor on this issue as to the status of the opened hymen. The doctor said, the fact that the hymen was normal and had been opened, the allegation of rape may have happened, but at the same time, his findings on the report shows that, the vagina was normal with no bruises, scratches or other injuries. It was possible that the torn hymen may have been due to previous sexual intercourse encounters. 

13. In chief the doctor was asked what did the doctor mean in the report when he said, the victim was "clinically depressed". The doctor said, she looked worried and sad. He was asked in this case where the victim's vagina was normal and found to have no blood, no bruises or scratches, would this be normal in a rape case like in this case. The witness said, it depends on persons who are affected. For some women, if there is the mood for sexual intercourse, no injuries would be incurred. But if there is no mood for sex, the female sexual organs cannot and would not allow for penile entry. In such circumstances, the victim's private part will develop certain injuries as a sign of forceful intercourse.

14. The third witness, Channel Mutia confirmed the victim's story that when the victim came out from the house she cried. This witness was a private security employed by the accused and his family to provide security services to their house. That after he was informed about the rape, he contacted ABLAZE Security Services and requested for assistance from them.

15. In cross-examination the witness was asked a series of questions about what the victim is supposed to have told him when she came out from the house. The witness said, she told him that, the accused raped her in the family bed-room. He said immediately after this, he contacted ABLAZE Security Services and their vehicle to take the victim to the hospital.

16. The final witness was Dickson Suku. He is the Security Supervisor for ABLAZE Security Services. He said when he came with another two or so witnesses to the accused's house, he found the accused and the victim arguing while the victim was crying outside in front of the accused house. He then suggested to those arguing that that it would be best if the victim was medically checked at the Nonga Base Hospital. They agreed and the victim was taken to the hospital to be examined by a doctor. 

17. In cross-examination, the witness confirmed that after the company driver took the victim to the hospital, they left the victim there and he left for his place of work. He also informed the Court after being asked about the statements of Channel and Bunbun Meli saying he was told by Police woman S/C Esther Butinga to compile the story of the two security officers. The prosecution rested their case here.

"No Case To Answer" Submission.

18. After Mr. Rangan closed the State's case, Mr. Wapu of counsel for the accused made a submission of no case to answer. Counsel submitted that in practice, where the prosecution has not proven essential elements of the charge, instead of prolonging the trial, he elected to make the submission of no case to answer. Counsel relied on the two principles enunciated in the case of The State-v-Paul Kundi Rape [1976] PNGLR 96. 

19. The principles enunciated in the above case which have been adopted and followed in many National Court cases say that at this stage of this trial the issue is as the evidence now stands could the two accused be lawfully convicted? A submission of "no case to answer" raises a question of law. The general principle of law is that at this stage of the trial the Court should not weigh up the evidence until all evidence is before the Court both for the prosecution and defence: The State-v-Lasebose Kuriday (1981) N300, see The State v Roka Pep (No.2) [1983] PNGLR 287 and many subsequent cases.

20. In a no case submission as in the current case, the issue for the court to decide is, whether on the evidence so far adduced by the prosecution, the accused could be lawfully convicted. It is not the question of whether the accused ought to be lawfully convicted. If the answer to the earlier issue is no then that is the end of the matter and the accused is acquitted: The State-v-Roka Pep (No.2) [1983] PNGLR 287). 

21. At this juncture, I am only required to determine if there is sufficient evidence on which the two accused could be lawfully convicted. It is established law that when a submission like this is made at the end of the prosecution case, it is the issue of law. The second question is about the issue of facts which is usually asked at the end of all the evidence both for the prosecution and the defence. Such question deals with the assessment of all the evidence for all the parties in a criminal trial. The second question is 'whether on the evidence as it stands the defendant ought to be convicted.

22. The question of 'proof beyond reasonable doubt' does not arise at this stage of this trial. Such consideration is only considered after all evidence has been called. That is the evidence by the prosecution and defence has been called: The State-v-Delga Puri and Tapri Maip [1982] PNGLR 493. 

23. On this trial, the prosecution called four witnesses including the doctor. Cross-examination of the victim revealed glaring inconsistencies of the victim's evidence and her statement that was made to the police on 24th April 2012. That statement was tendered as a prior inconsistent statement. Ex. "A". There is evidence of recent complaint by Channel and Dickson. However, another issue is the credibility of the evidence by the victim. 

24. The Court observed the demeanor of the victim and despite the fact that the screen was put across where the accused was sitting to stop the victim from seeing the accused when she was giving her evidence, the victim spoke very softly and most of the time, she was looking into the witness stand. She contradicted herself a number of times. During cross-examination, it was put to her the reason why she ran out from the house was because, the accused swore at her, then hit her with a cup, she then ran out from the house crying and told Channel about the accused being cross with her. She said, 'yes'. 

25. During the course of examination in chief and cross-examination, the lawyers repeatedly warned her to speak up and look to the Court and the lawyers, she kept looking down. Obviously she had mixed up her evidence when asked by counsels about how the offence was committed. The principles in the above cases say that at this stage of the trial this Court has discretion to stop the case at this stage of the trial because, I find that "….. the evidence is so lacking in its weight and reliability that no reasonable tribunal could convict on it". 

26. The second principle in the Paul Kundi Rape's case is "could the defendant be lawfully be convicted" is the issue before this Court now. I have expressed my sentiments about the behavior and the inconsistencies of the victim's evidence and her statement tendered as a 'prior inconsistent statement'. (See Ex. "A" for Defence). The question this Court is faced with is if the Court allows the trial to go past this stage, could the defendant be lawfully convicted? I answer this question in the negative. I rule that there is no case to answer. The case is dismissed and defendant be discharged. His bail money shall now be refunded together with his Passport. 

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