N5957 

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 476 OF 2010

THE STATE

V

IMIUI ANDY WILSON

Alotau: Toliken, J.
2014: 3rd, 19th November
 
CRIMINAL LAW – Trial – Rape – Complainant mentally retarded – Whether accused sexually penetrated complainant – Whether complainant capable of consenting - Medical Report - Medical doctor's conclusion that complainant was sexually penetrated, without foundation – Victim Impact Statement by counsellor not reliable – Both Doctor and Counsellor not called to give evidence – Evidence of principal witness contradictory – Evidence unreliable – Verdict – Not guilty - Criminal Code, s 347

PRACTICE AND PROCEDURE – Section 589 Admission - Statement not tendered into evidence – Effect of – Remains outside the evidence and cannot be relied upon – Criminal Code, s 589; Criminal Practice Rules, Order 4, Div.1.

Cases Cited

Nil

Counsel

H Roalakona, for the State
P Palek, for the accused

VERDICT

19th November, 2014

1.	TOLIKEN, J: The accused Imiui Andy Wilson was indicted with one count of rape contrary to Section 347 of the Criminal Code. He was charged with sexually penetrating Sin Norman on the 13th day of July 2009 at Porotona village, without her consent.

2.	The State alleged that on the date in question, the victim Sin Norman was at Porotona village at about 12.00 p.m. weeding grass around her house. The accused signalled to her and she walked to the accused. The accused held her hand and then led her into the bush where he removed the victim's clothes and his own and then sexually penetrated the victim's vagina with his penis without her consent. The accused was lying on top of her when the victim's sister saw him. When the accused saw the victim's sister, he pulled up his trousers and ran away. The victim was later taken to hospital for medical examination the next day. The State further alleged that the victim was incapable of communicating her unwillingness to partake in the act because of her mental and physical disability.

3.	 The accused pleaded not guilty, generally denying the charge.

4.	The trial then proceeded on the following two issues:

1.	Whether the accused sexually penetrated the victim.

2.	Whether the victim was incapable of consenting to the act because of her mental as well as her physical disability.

5.	The State's case consisted of the following exhibits which were tendered into evidence by consent.

1.	Record of Interview dated 10/1/10 English translation – Exhibit "A".
2.	Statement of Detective Constable John Kelebi dated 10/1/10 – Exhibit "B".
3.	Statement of Detective Constable Rhema Luckey dated 10/01/10 – Exhibit "C".
4.	Medical Report dated 17/08/2009 by Dr Freda Wari – Exhibit "D".
5.	Victim Impact Statement by Alice Bailasi of Milne Bay Counselling Service dated 30/07/09 – "Exhibit "E".

6.	The State also called two (2) witnesses. These were:-

1.	Helen Norman
2.	Emmanuel Balegawa

7.	The defence made a no case submission after close of the State's case. I ruled against them. 

8.	I then advised the accused of his rights to either remain silent or to give sworn or unsworn evidence and to call witnesses. The accused exercised his rights to remain silent and did not call any witnesses. The case was then closed. 

9.	 I must mention, however, that the defence did file a Section 589 Statement of admission but this was not formally tendered into evidence. While a statement of admitted facts is sufficient proof without other evidence of the facts so admitted (Section 589 of the Code, Order 4, Div.1, Criminal Practice Rules 1987) such admission or a statement of such admission must be tendered into evidence by the prosecutor. If it is not tendered, it remains outside of the evidence and the Court is not to have regard to it. That being the case, the Statement filed by the defence remains outside of the evidence and no reference or reliance ought to be had on it either by the State or the defence.

10.	Ultimately then, all that the Court has before it is the evidence of the State. It does not follow, however, that because the State has made out a prima facie case that this automatically will result in a conviction. On the contrary for a conviction to be entered in this scenario, the State's evidence must meet the required standard – proof beyond reasonable doubt. So, has the State proved beyond reasonable doubt that the accused sexually penetrated the alleged victim without her consent?

11.	At this juncture, I must say that there is some evidence from the Medical Report and the Counsellor's Report that the alleged victim is indeed mentally and physically impaired. While the Medical Report indicated that examinations revealed that she was sexually penetrated, I fail to see from the Report how Dr. Freda Wamin came to that conclusion when despite a speculum examination being carried out on an unco-operative patient, there is no mention of the presence of spermatozoa in the patient's vagina nor is there any observation of trauma or injuries around her genital area or even a freshly torn hymen. It appears therefore that her conclusion that there had been sexual penetration was made without foundation. I do accept though that the Doctor did examine her only a day after the alleged rape, that is, on 14th August 2009.

12.	The so-called Victim Impact Statement by Alice Bailasi is at the very least hearsay. I cannot see how it can fall outside the exceptions to the rule against hearsay. The Report starts off with the sweeping statement "Sin Tobudi was first presented us on Thursday July 17th after being raped by Any Wilson of Porotona". (Underlining mine) The authors of the Report were obviously only reporting what they were told by the alleged victim and those who brought her to them. That, however, does not prove that the accused in fact raped the alleged victim. All it proves is that such a Report was made to them during the counselling session.

13.	While Dr. Freda Wemin observed the alleged victim as intellectually and physical handicapped in her Medical Report, the authors of the Victim Impact Statement record what seems to be very intellectual statements by the alleged victim. For instance, she is quoted as saying "Will I be safe when I return to my village";" I want to feel safe and secure in my own home. I want to be accepted and loved by my family and community...I want to be a normal human being like everyone else".

14.	This sounds like a very normal conversation so why wasn't the alleged victim brought to Court so that the Court can observe her first-hand? Dr. Wemin and Alice Bailasi were not called so their Reports are lacking to say the least. But what about the issue of sexual penetration? Is the State's evidence as it stood at the close of its case sufficient to secure a lawful conviction?

15.	The only evidence that directly touched on the issue of penetration is that of Helen Norman.

16.	Without belabouring everyone by reciting her oral testimony in any great detail, it would suffice to say that she completely blew the State's case, giving oral testimony that was completely inconsistent with her prior written statement to the police. In her oral evidence, she said that the date in question, she was with the alleged victim. They were on their way to the market where she saw the accused coming up. He went ahead and climbed a tree and was watching her. She caught sight him and then heard him tell the alleged victim saying "let us go down to the beach". He quickly came down from the tree and took Sin away. The witness said she left her children at a house at the bottom of the hill and returned to their house to look for Sin. She found them having sexual intercourse with the accused lying on top of Sin. When they saw her the accused quickly got up, carried his backpack and trousers and walked away. She shouted after him that it was him who had been doing this to her sister.

17.	Now, this is completely different to what she had told the police in her written statement which was tendered as a prior inconsistent statement by the defence. She stated that on that day in question, she and her children were walking from their house to the beach some 4 kilometres away. They had left the complainant at their house. As they were walking away, she saw the accused some 40 metres away from their house spying at their house. She became suspicious because the accused lived far from them so she told her children to hide as soon as they went out of his sight. From there, they could clearly see their house. About an hour later, she saw the accused through the kunai grass making signs to the alleged victim who was then weeding around at the edge of the kunai grass. She then saw the alleged victim walk towards the accused and they walked further into the bush. She approached them and saw them having sex. When he saw her, the accused picked up his trousers, quickly held his glasses in his other hand and ran away into the bush.

18.	As we can see nothing can be more inconsistent and contradicting than these two versions from the same witness. When asked which one of these was the true version she said her oral testimony was. There is simply no way any court or tribunal of fact could rely on such evidence. The ultimate result and conclusion therefore is that the State's case must failed.

19.	I, therefore, return a verdict of Not Guilty and order that the accused be discharged forthwith and that his bail and money sureties by his guarantors be refunded.

Orders accordingly.
________________________________________________________________
The Public Prosecutor: Lawyers for the State
The Public Solicitor: Lawyers for the Accused