N5902
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1203 OF 2013

THE STATE

V

HENRY LEVO
Defendant

Madang: Cannings J
2015: 6, 11, 13, 17 February, 19 March

CRIMINAL LAW – Criminal Code, Section 347(1) trial – whether the complainant consented to sexual penetration by the accused.

The accused was charged with one count of rape, contrary to Section 347(1) of the Criminal Code. The accused is a middle-aged man. The complainant is a woman aged about 30. The accused pleaded not guilty so a trial was held. The complainant gave evidence that the accused sexually penetrated her, without her consent. The accused agreed that he sexually penetrated the complainant but claimed that it was with her consent. The central issue was whether the State had proven beyond reasonable doubt that the complainant did not consent.

Held:

(1)	Under Section 347A of the Criminal Code "consent" means free and voluntary agreement.

(2)	The State proved beyond reasonable doubt that the complainant did not freely and voluntarily agree to being sexually penetrated as: (a) the complainant was assessed as an honest witness; (b) there was evidence of a prompt complaint; (c) the accused was assessed as a dishonest witness; (d) corroboration of the complainant's evidence was not required due to the quality of her evidence.

(3)	The accused was convicted of rape under Section 347(1) of the Criminal Code.

Cases cited

The following cases are cited in the judgment:

Michael Balbal v The State (2007) SC860
The State v Anton Kumak (1990) N835
The State v Bikhet Nguares Paulo [1994] PNGLR 335
The State v Elizah Keno (2008) N3943
The State v James Yali (2005) N2988
The State v Kapi Jas (2010) N4013
The State v Kewa Kai [1976] PNGLR 481
The State v Polikap Lakai (2007) N3153
The State v Stuart Merriam [1994] PNGLR 104

TRIAL

This was the trial of an accused charged with rape.

Counsel

M Pil, for the State
J Morog, for the accused

19 March, 2015

1. CANNINGS J: The accused, Henry Levo, is charged under Section 347(1) of the Criminal Code with committing the crime of rape against the complainant, a 30-year-old woman, "R". The State alleges that the accused, aged in his 40s and a member of the Royal Papua New Guinea Constabulary holding the rank of First Constable, committed the offence while he was on duty as shift supervisor at Jomba Police Station, Madang on the night of Tuesday 20 November 2012. He pleaded not guilty so a trial was held.

2. The State's case is based on the oral evidence of the complainant. There is no direct corroboration of her evidence. There is no medical evidence. The accused and another member of the Constabulary gave sworn evidence for the defence. The accused agreed that he sexually penetrated the complainant but said that it was with her consent and that the incident took place on the night of 21 November, not 20 November, 2012.

Undisputed Facts

3. A number of undisputed facts have emerged from the evidence:

•	On 20 and 21 November 2012 the complainant was detained in custody at Jomba Police Lock-up on a charge of misappropriation. She spent several months in custody around that time, most of it at Beon Jail, some of it at the Jomba Police Lock-up.

•	There are no separate detention facilities for female detainees at Jomba. Whenever a female is detained there, logistical issues arise.

•	The complainant was granted permission by the accused and other Constabulary members on several occasions to stay and sometimes sleep outside the main Lock-up, but within the police station, as she felt uncomfortable about staying inside the main Lock-up with the male detainees.

•	The accused at the time of the incident was a married man. The complainant was also married.

•	On the night of 20 or 21 November 2012 the accused sexually penetrated the complainant, at least once, by inserting his penis into her vagina. That occurred while he was on duty as shift supervisor for the 3 to 11 pm shift at Jomba Police Station. The incident occurred at a dark area near the car park at the back of the Police Station.

•	The complainant reported the matter to the officer-in-charge of the female compound at Beon Jail soon after 20-21 November 2012, and this led to a formal Police complaint being lodged. A police investigation followed.

•	The accused was subject to a formal Police interview on 29 July 2013 conducted by Inspector Leo Kaikas and corroborated by Snr Const Edward Tamuti. He admitted to having sex with the complainant at Jomba Police Station but said that she consented.

Law

4. Section 347 of the Criminal Code (definition of rape) states:

(1)	A person who sexually penetrates a person without his [or her] 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.

5. This offence of rape under Section 347(1) has two elements:

•	sexually penetrating another person; and

•	doing so without the other person's consent.

"Sexually penetrates" is defined by Section 6 (sexual penetration), which states:

When the expression "sexual penetration" or "sexually penetrates" are used in the definition of an offence, the offence, so far as regards that element of it, is complete where there is—

(a)	the introduction, to any extent, by a person of his penis into the vagina, anus or mouth of another person; or

(b)	the introduction, to any extent, by a person of an object or a part of his or her body (other than the penis) into the vagina or anus of another person, other than in the course of a procedure carried out in good faith for medical or hygienic purposes.

"Consent" is defined by Section 347A(1) (meaning of consent) of the Criminal Code. It means free and voluntary agreement.

6. If an offence under Section 347(1) is committed in circumstances of aggravation the maximum sentence is increased by Section 347(2) from 15 years to imprisonment for life (The State v James Yali (2005) N2988). In this case no circumstances of aggravation are charged in the indictment.

Issues

7. It is undisputed that the accused sexually penetrated the complainant by introducing his penis into her vagina. The first element of the crime of rape has been established. The only issue in dispute relates to the second element: Did the complainant consent? If the State proves beyond reasonable doubt that she did not consent the accused will be guilty of rape under Section 347(1). If the State is unable to prove absence of consent the accused will be acquitted and discharged from the indictment, there being no alternative charge preferred against him.

Did The Complainant Consent?

8. Resolution of this issue requires a:

•	summary of evidence for the State;
•	summary of evidence for the defence;
•	formal determination of the question whether the State has proven that the complainant did not consent.

Evidence for the State

9. Four witnesses gave evidence for the State, as summarised in the following table.

No	Witness	Description	
1	Insp Leo Kaikas	Police investigating officer	
Evidence	
He confirmed that he conducted the interview on 29 July 2013 at Jomba Police Station. It was that the accused told him that there was no incident on 20 November 2012, but it was on 21 November 2012 that the accused had sex with the complainant. The witnesses maintained that the date put to the accused was 20 November. He agreed with that. He did not contest the date. He understood the question and signed the record of interview showing the date as 20 November 2012.	
2	"R"	The complainant	
Evidence	
She was in custody at Jomba Police Station on 20 November 2012. Some friends brought her food between 8.30 and 900 pm – she sat outside the cell to have her dinner then was told to return to the cell, which she did – around 9.30 to 10.00 pm the accused asked her to stand outside so she came outside and talked to him – he gave duties to other officers – he was drinking alcohol – he told her that he was stressed and needed to relax – she told him that she wanted to go back to the cell but he moved closer to her and asked her personal questions such as where she was from – she replied that she was mixed Sepik and Kerema and he said that they were wantoks as he is from Gulf – he told her he was desperate to hold her hand and have sex with her – she repeated that she wanted to go back to the cell.

He then forced her to the back of the police station to a dark, secluded, grassy area, with some concrete slabs on it – told her to be quiet and pulled her to a sink – forced her to bend down, then stripped her of her clothes – he penetrated her on more than one occasion – she tried to resist him and run back to the cell but he was too strong – when he finished he gave her a face towel and told her to wash and clean herself – she went back to the cell but she was frightened as she was the only female detainee – she tried to escape the next morning but was caught – she then insisted on getting a warrant for her to be detained at Beon and was transferred there three days later.

In cross-examination she denied knowing the accused before the incident – she said that she was brought to Jomba Police Station on 19 November 2012 – she denied sharing the food that was brought to her with other police officers – she denied spending time in an office with a policeman called Walter – she said that she was taken to the District Court on Wednesday 21 November but her case was not listed and she was taken back to Jomba – the day shift supervisor gave her permission to sleep in the public complaints area of the police station, and the accused agreed to this also.

She denied being friendly with the accused on the night of the 21st – she denied telling him of her experiences at Beon and how the female detainees were desperate for sex – she denied instigating the sexual encounter with the accused or following him to the back of the police station. She admitted making similar complaints of sexual abuse against three other police officers at Jomba – she complained to the female OIC at Beon, Sgt Kanawi – she absolutely denied having any consensual sex with the accused.	
3	Sgt Janet Kanawi	A member of the Correctional Service, OIC, female compound, Beon Jail	
Evidence	
She said that the complainant while a detainee at Beon Jail in late November 2012 raised complaints about a certain incident at Jomba Police Lock-up involving male police officers – she (the witness) regarded the complaints as very serious and took the complainant to the Jail Commander who listened and instructed that the complaints be reported to the Police – that was subsequently done. She (the witness) reported the matter to Inspector Kaikas who came to Beon to interview the complainant. While telling her and other detainees what had happened to her, she was distressed and crying.
	
4	Const Bill Mohe	Police investigating officer	
Evidence	
He explained that he was the officer who arrested the complainant and her husband on 25 September 2012 and detained them at Jomba Police Lock-up – she was refused bail – she remained in custody at Jomba and Beon until January or February 2013.	

The only exhibit admitted into evidence was the accused's record of interview in which he stated that he had consensual sex with the complainant.

Evidence for the defence

10. Two witnesses gave evidence for the defence, as summarised in the following table.

No	Witness	Description	
1	Henry Levo	The accused	
Evidence	
He said that he had sex with the complainant on the night of 21 November 2012 – he had no sex with her on the night of 20 November as on that night he was drinking on duty, starting at 8.30 pm when the night shift driver, John Yama, came to Jomba Police Station and gave him six white cans of beer; then he went out to handle a complaint; then some other members came in and gave him some more beer – at one stage an off-duty member, First Constable Tracey Malang came in and got cross with him for leaving the complainant alone in an office with a young policeman.

The next day he came to work, again for the 3 to 11 pm shift – around 8 pm he went into the cell and that is when the complainant approached him and asked to go outside. He brought her outside and then it was busy in the complaints area so he told her that she could go to the back of the station and sit on the concrete – he sat with her for a while, she was very talkative then she started to talk about sex, saying that the female detainees at Beon are desperate for sex – his mobile phone rang at that point, he excused himself as it was his wife ringing from Port Moresby – then he returned to the concrete and they mutually agreed to have sex – he suggested that they go further away from the station near the condemned barracks – they both took off their clothes – then he lay down, face-up, allowing her to sit on his penis – after a few minutes he told her to stand up, then he penetrated her anus – she then washed herself at the sink – they walked side by side back to the station – she asked if she could sleep in his office, so he allowed her to do that – his shift finished at 11.00 pm and he was dropped off.

The next day the complainant rang him early at about 7.00 am and complained that the 11-7am supervisor had put her back in the cell at 2.00 am – he told her that he would sort it out that afternoon.

In cross-examination he said that he only had sex with the complainant and it was on 21 November, not the 20th – he admitted that it was wrong to drink on duty and he had probably had 16 cans of beer on the night of the 20th but he did not think that that was a lot – it was the complainant who started talking about sex, so he offered himself to her – she wanted sex, she was smiling a guilty smile – she was the instigator.	
2	First Const Tracey Malang	Police officer, based at Jomba Police Station	
Evidence	
She was off-duty on the night of 20 November 2012 but went through the police station around 9 or 10 pm with another female officer, to look for cigarettes – she observed that no one was on the counter – then a complainant came in so she got cross and called out for attention – she went looking and found a junior policeman, Constable Walter, in an office, talking to the complainant, telling stories – she and her colleague then went back to their barracks – they saw no one at the back of the Police Station except for the accused – she berated him for leaving one of his juniors in the office with a female detainee – she told him this was wrong and dangerous – she did not notice the accused drinking alcohol.	

Has the State proven beyond reasonable doubt that the complainant did not consent?

11. This is the critical issue and I approach it by taking two important principles into account. First, as I pointed out in The State v James Yali (2005) N2988, in a rape case it is not a simple matter of deciding who to believe. The accused cannot be convicted only on the basis of suspicion or belief on the part of the court that the accused sexually penetrated the complainant without consent. Likewise, the court is not to decide guilt or innocence simply on the basis of whether the complainant's evidence is believed. The court's task is, rather, to determine, having weighed all the evidence and considered whether there are reasonable grounds for believing that there was no consent and whose evidence is to be believed, whether it is satisfied to the required criminal standard of proof – beyond reasonable doubt – that each element of the offence exists. If there is a reasonable doubt as to an element, the court is obliged to acquit the accused. In this case, the question to ask is whether the prosecution has proven beyond reasonable doubt that the complainant did not consent.

12. Secondly, there are special rules to apply arising from the fact that the evidence of the complainant is not directly corroborated. Prior to 2003 the general practice was that the court was required to warn itself of the dangers of entering a conviction for rape based on the uncorroborated testimony of the complainant. The practice was consistent with the position at common law, the rationale being that rape is a serious charge, easy to allege and difficult to refute (The State v Kewa Kai [1976] PNGLR 481, The State v Anton Kumak (1990) N835, The State v Bikhet Nguares Paulo [1994] PNGLR 335).

13. Nowadays the opposite is the case: not only is the Court not required to warn itself, it is not allowed to. Section 352A of the Criminal Code (corroboration not required) states:

On a charge of an offence against any provision of this Division, [Division V.7, (sexual offences and abduction) a person may be found guilty on the uncorroborated testimony of one witness, and a Judge shall not instruct himself that it is unsafe to find the accused guilty in the absence of corroboration. [Emphasis added.]

14. The accused has been charged with an offence under Section 347, which falls within Division V.7. Therefore Section 352A applies." Uncorroborated testimony" is defined, in relation to an accused person, by Section 1(1) to mean "testimony that is not corroborated in some material particular by other evidence implicating him". The principles of evidence to apply perforce of Section 352A are:

•	if the complainant's evidence is regarded as uncorroborated, it is still possible to find the accused guilty;

•	the State still bears the burden of proving the elements of the offence beyond reasonable doubt;

•	the judge is not required to instruct himself or herself that it is unsafe to find the accused guilty in the absence of corroboration;

•	the judge must not give an instruction of that sort;

•	if such an instruction is given, an error of law will be committed.

15. The complainant is the only witness to testify that she witnessed what happened. The only other person present was the accused. The charge is therefore based on the uncorroborated testimony of one witness, the complainant. I remind myself, in accordance with Section 352A of the Criminal Code that a conviction is still possible and that the prosecution still bears the onus of proving the elements of the offence beyond reasonable doubt. I do not instruct myself that it is unsafe to find the accused guilty in the absence of corroboration.

16. Having applied those two sets of principles and weighed the competing evidence and the submissions of counsel, I conclude that the State has proven beyond reasonable doubt that the complainant did not freely and voluntarily agree to being sexually penetrated. The Court finds that she did not consent for the following reasons:

(a)	The complainant was assessed as an honest witness.

17. The complainant impressed me as a person who was telling the truth. Her demeanour was sound. Her evidence was clear and credible and straight forward. There was no equivocation in her answers. Defence counsel Mr Morog cross-examined her vigorously but she did not waver. Mr Morog highlighted that she did not allege that the accused physically harmed her. He was not violent. He was not armed and did not threaten her. I consider that the complainant adequately explained why aggravated physical force was not used. The accused pulled her away. It was no use resisting as there was no one else around. She adequately explained why she did not immediately report the incident. She was scared. It would have been risky to report it to a police officer at the Police Station. She waited until she was in the safety of Beon Jail, when she was in the female compound, separated from male detainees. I find that the incident occurred on 20 November 2012, as charged in the indictment.

(b)	There was evidence of a prompt complaint.

18. The prompt making of a complaint by a person who alleges rape is a relevant consideration to take into account by the Court when determining the genuineness of the allegation; just as the absence of a prompt complaint can cast doubt on the genuineness of the allegation. These are relevant but not determinative considerations (Michael Balbal v The State (2007) SC860, The State v Stuart Merriam [1994] PNGLR 104, The State v Polikap Lakai (2007) N3153). I consider that this was a case of a prompt complaint.

(c)	The accused was assessed as a dishonest witness.

19. The demeanour of the accused in the witness box was the opposite of that of the complainant and the other State witness. He gave the clear impression that he was not telling the truth.

20. Though his evidence was consistent with the story he told the Police, reported in the record of interview, that version of events is quite unbelievable. Though his evidence was that he had sex with the complainant on 21 November 2012, which was indirectly corroborated by the evidence of First Const Malang, I find the complainant's evidence much more persuasive. 

(d)	Corroboration of the complainant's evidence was not required.

21. Though as a general rule, as explained earlier, corroboration of the complainant's evidence was not required, there are sometimes cases in which the quality of a complainant's testimony is not that high, and in such cases corroboration is in fact required. I expressed that view in The State v Elizah Keno (2008) N3943 and The State v Kapi Jas (2010) N4013 in the course of finding each of the accused not guilty due to the State's failure to prove lack of consent. The complainant's testimony was not high in those cases, the facts of which are in marked contrast to the present case where the quality of the complainant's evidence was particularly high.

Conclusion: did the complainant consent?

22. No. The State has proven beyond reasonable doubt that the complainant did not consent to being sexually penetrated by the accused. The accused is therefore guilty.

Verdict

23. Henry Levo, having been charged with one count of rape, is found guilty of rape contrary to Section 347(1) of the Criminal Code.

Verdict accordingly
____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused