N5923

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 212 OF 2014

THE STATE

V

RICHARD NOHU

Buka: Kawi-iu, AJ
2014: 07th & 08th October

CRIMINAL LAW – Particular offence – Sexual Penetration (rape) –Plea of Not Guilty – Trial on issue of consent – Victim's admission of sexual penetration and that such act was consensual – Criminal Code Act Ch. 262, s 347. 

CRIMINAL LAW – Particular offence – Sexual penetration (rape) –Trial on issue of consent - Submission on no case to answer at end of prosecution's case – Prosecution failure to establish by credible evidence element of consent – Accused no case to answer – Verdict not guilty

Cases Cited: 

The State v Paul Kundi Rape [1976] PNGLR 96
The State v Roka Pep (No 2) [1983] PNGLR 287

Counsel:

J. Waine, for the State
Mr Lugabai, for the accused

VERDICT

08th October, 2014

1.	KAWI-IU, AJ: The accused Richard Nohu is charged that he did on the 11th of August 2013 sexually penetrated one Lorenza Kiha without her consent under circumstances of aggravation. The accused is charged under Section 347(1) of the Criminal Code Act Ch. 262 (the Code). 

BRIEF ALLEGATIONS

2.	The State alleges that the accused Richard Nohu and the victim Lorenza Kiha knew each other prior to the alleged rape. In the late hours of 11th August 2013, both were passengers on a vehicle travelling from Buka town after dance on the way home. At the time the accused was drunk after taking some beer that evening at the dance. It was early morning when they were travelling home. On the way home they were dropped off at Supunkakil Elementary School. There the victim's house was not too far from the drop off. They sat on the bench at the PMV bus stop shed. Whilst there the accused insisted and demanded sex from the victim. Victim refused saying that she was still a virgin and had her menstruation at the time. Accused then forcefully took off victim both shorts she was wearing. At the time he threatened to kill or hurt her if she did not willingly cooperate with his demand. He forced her to lie on the bench and sexually penetrated her. Victim had suffered severed vaginal tear and laceration resulting in her bleeding heavily. The next day she was taken to the hospital for treatment and test. State alleges that the accused sexually penetrated the victim without her consent. 

PLEA

3.	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

4.	Both counsels agree that the issue is one of consent, and further agreed that the following facts are not at issue. 

•	The accused and the victim are both adults.
•	That the two are acquainted with each other.
•	That both travelled towards home together in a PMV.
•	Both were together at the Malasang Bus/PMV Stop,
•	No dispute that sexual penetration did occur.
•	That it occurred at Malasang Bus Stop.
•	Victim bled heavily during and after sexual intercourse.

5.	Although counsels agree that the issue is one of consent the indictment also alleged that the offence was committed with circumstances of aggravation, which I think must also be proven by the State if it intends to secure a more aggravated penalty under subsection (2) which is imprisonment for life subject to section 19 of the Criminal Code. 

6.	Thus the issues for trial are:

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

2.	Did the accused threaten the victim immediately before the commission of the offence?

3.	Did the accused cause grievous bodily harm to the victim? 

4.	Did the accused in committing the offence, abused a position of trust, authority or dependency?

THE EVIDENCE

State

7.	The State's case consisted of the Pidgin and English versions of the accused Record of Interview, Medical Report of Doctor Martin Gelo, Statement of Senior Constable Sheena Cook and the photographs all tendered by consent. The State then informed the Court that it will call the victim which will be the final witness for the prosecution.
 
8.	The victim testified that on the date in question in the late hours of 11th August 2013 she accompanied the accused in a PMV to be dropped home after a dance at Buka Town. On the way home the PMV stopped at Supunkakil Elementary School not far from the victim's house. They got off the vehicle and were sitting on the bench at the PMV Stop shed. It was during this time that the accused proposed to the victim to have sex with her. She finally gave in to his craving and the accused sexually penetrated her.
 
9.	Counsel for the State in a series of questions in examination in chief sought to solicit evidence from the victim respecting the issue at hand, that is whether the sexual intercourse was consensual or not.

10.	After giving her evidence the witness/victim finally admitted that the alleged act of sexual penetration was consensual. The State then informs the court that it has no other witness to call and now rest its case.

11.	At this juncture counsel for the accused proposed to make a No Case to Answer Submission.

12.	The principles of a No Case Submission are well settled in this jurisdiction. That is to say when the State has given its evidence and closes its case but fail to establish all or any of the necessary elements of the charge or even if it did, the evidence has been so discredited by cross-examination or so lacking in weight that no court could lawfully convict the accused.

13.	The question for the court here is not whether the accused ought to be convicted but whether he can be lawfully convicted on the evidence as it stands. The State v. Paul Kundi Rape [1976] PNGLR 96; The State v Roka Pep (No 2) [1983] PNGLR 287.

14.	This simply calls on the court to consider the prosecution's case to ascertain if the state has established a prima facie case. This is done by considering elements of the charge/offence.

The elements of the charge of rape are:
1.	Sexual Penetration as defined in s.6 of the Criminal Code
2.	Sexual Penetration took place by force.
3.	Sexual Penetration took place without consent of the victim

15.	So on charges of sexual penetration the State's first hurdle is to adduce and prove by credible evidence that the accused sexually penetrated the victim. Once this is proved then it will be necessary to proceed to establish the other two elements.

16.	In the present case it is an agreed fact that sexual penetration took place. Thus the State is only required to prove the elements of consent and force. That is to say the act of sexual penetration was occasioned without consent and the act of sexual intercourse was committed by use of force.
SUBMISSIONS

17.	At the close of State's case counsel for the accused submits that the accused have no case to answer as the State failed to prove the essential element of the charge namely consent. 

18.	In response the State concede to the submission of the Defence. This being the case there is no need to consider the evidence of other witnesses and the circumstances of aggravation alleged in the indictment against the accused.
 
19.	The principal witness is Lorenza Kiha who gave evidence for the prosecution on the issue of consent. It is now apparent that in her evidence she admitted the accused sexually penetrated her; however it was consensual thus contradicting all allegations by the State in the indictment. 

20.	Thus one of the crucial elements to sustain a charge of rape is lacking, which is the element of consent. The witness/victim admitted that she has consensual intercourse with the accused which in effect defeats the State's allegation of rape on the victim. 

21.	This brings the submission within the first limb of Paul Kundi Rape (supra) and Roka Pep (No 2) (supra). Where a submission of no case to answer is made, the judge examines the evidence as a question of law to determine whether the evidence supports the essential elements of the offence. There is no evidence before the court to disprove consent. Further the State had conceded to the defense submission of no case to answer.

VERDICT

22.	Thus in the final analysis, as it turned out to be, the sexual penetration alleged by the State on the victim was consensual and that the accused has no case to answer, and accordingly order the discharge of the accused. 

23.	Further order that any bail so paid is to be refunded to the accused forthwith.

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