N6401
                                         
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1397 OF 2015

BETWEEN

THE STATE

V

ODA HARO

Kerema: Koeget, AJ
2016:10th, 11th & 16th March

                     RULING ON NO CASE TO ANSWER SUBMISSION

CRIMINAL LAW: - 	Indictable Offence – section 347(i) of the criminal code Act (as amended) – Sexual Penetration – Accused pleaded not guilty – trial – victim the only witness – submission of no case to answer at close of prosecution’s case - application that case should be withdrawn from the tribunal of facts – principle in The State –v- Paul Kundi Rape and The Sate –v- Roka Pep – second limb of the principle of no case to answer  submission whether there is sufficient evidence on the basis of which the court ought to convict the accused – elements of offence – application of principle in the State –v- Paul Kundi Rape’s case – ruling in relation to the accused – acquittal.  

Cases Cited:

Joshua Yapi and Planide Nony Acosra –v- The State [1997] PNGLR 212
The State –v- Paul Kundi Rape [1976] PNGLR 96
The State –v- Roka Pep (No.2) [1983] PNGLR P287

Counsel:	

D. Mark, for the State
B. Popeu, for the Defence

INTRODUCTION

16th Match, 2016:

1.	KOEGET, AJ: This is the ruling of the Court on no case to answer submission at the close of the State’s case in the trial before me at Kerema in the Gulf Province.  The State contended that the accused had sexual intercourse with the victim Agatha Sauka Lari on 10th September, 2014 in an office at Kerema Airport Terminal without consent.  The charge is brought pursuant to Section 347 (1) of the Criminal Code Act chapter 262.

FACTs
2.	The accused Oda Haro is charged that on 10th September, 2014 at Kerema in Papua New Guinea, he had sexual intercourse with Agatha Sauka Lari without her consent by inserting his penis into her vagina contrary to section 347(1) of the Criminal Code Act (as amended).
 
3.	On that day between 10 o’clock in the morning and 12 midday, the victim Agatha Sauka Lari, a national adult entered the Kerema Airport Terminal Office to see Kelly Kaes about a business arrangement.  When she enquired at the office, he was not present.  As she was leaving the office, the accused Oda Haro called her into his office, located in the same Kerema Airport Terminal building.  She went into that office and sat down in the chair.  

4.	Both had conversation and the accused asked the victim, if he could kiss her, she refused.  The accused asked the victim for sex, but she refused so he grabbed her and both struggled in the office.  The accused removed the victim’s clothes and removed his down to the knees.  The accused then bent the victim forward and inserted his penis into the victim’s vagina from the rear and had sexual intercourse with her without consent.  

5.	After the sexual intercourse, the victim wore her clothes, then went to the Kerema Police Station and reported the incident to the policemen at the duty counter.  The victim was taken to Kerema General Hospital for medical examination by a medical practitioner.

ARRAIGMENT 

6.	The accused admitted having sex with the victim that day in his office with her consent.  He denied the allegations of engaging in sexual intercourse with the victim without consent.  So a trial was conducted to determine the allegations.  

EVIDENCE 

7.	The following documents were tendered by the State with consent:  

-	Record of interview between the accused and the police investigator dated 20th January, 2015.
-	Medical report dated 25th September, 2015.

8.	The victim stated in examination - in - chief that she is an adult and resides at Section 11 Allotment 15 Kerema town. 
 
9.	She attended Sogeri National High School and completed Grade 12 in 1977.  After leaving school, she was employed in the Public Service Selection Unit at Waigani and in 1979. She left employment and returned to live at Moveave village after marriage.  She operated a family trade store with her husband.  She came to Kerema town and lived there for some time after the death of husband in 1989. 

10.	In Kerema she was employed by Department of Education as a reception clerk for a year and then she resigned and returned to live at Moveave Village with her family.  In 1994, she remarried and returned to live in Kerema town and since then has lived in town.  She is a volunteer, engaged by Department of Transport, Division of Maritime.  

11.	She is engaged to co-ordinate the operation of outboard motors and motorised canoes operating in the waters of Gulf Province. 

12.	She recalls on 10th September, 2014, between 10 0’clock in the morning and 12 midday she attended the Kerema Airport Terminal to see Kelly Kaes to discuss some business proposals.  He was not present at his office so she was leaving the Kerema Airport Terminal office when the accused Oda Haro called her into his office.  

13.	As she walked into the office and sat in the chair, the accused locked the door behind her. The accused said; “Puma Energy will control this province.”  She replied and told the accused to provide her with company profile for Puma Energy so she can work closely with him. 

14.	She suspected the accused might do something to her so she stood up and was about to walk out of the office when the accused held her around the hips and said “we have sex”. She replied; “no.”  

15.	The accused told her to remove her clothes and bend down forward.  He then inserted his penis into her vagina from the rear.  He had sex with the victim for a long time and she experienced aches and discomfort, felt dizzy and weak.  She said she screamed but no one was around to assist her.  

16.	Then she told the accused; “I will lie down and you have sex with me.”

17.	The learned State Prosecutor asked following questions in examination in chief:

Q	:      “What did you do?”  

A         :     He let me.  I then lay on the floor on my back face up and he had sex with me until he ejaculated sperm into my vagina.”  

The victim stood up, wore her big trousers and pants but not tights then she went to the Kerema Police Station to report the incident to the policemen on duty at the counter.  She was taken by the CID to the Kerema General Hospital for medical examination and the medical report confirms that the victim had sexual intercourse shortly before the examination as there were sperm cells present in her vagina. 

18.	She denied giving consent to the accused to have sexual intercourse with her on that date in his office.  She maintained that she was struggling and screaming for help but there was no one around to assist her.  She further denied the suggestion that accused was her boyfriend.  

19.	At the close of the State’s case, defence counsel made a no case to answer submission.  The no case to answer submission was made pursuant to the second limb of the principles in the case of The State –v- Paul Kundi Rape reported in [1976] PNGLR 96 and the case of The State –v- Roka Pep (no. 2) reported in [1976] PNGLR 287.  The principle is quoted as;

“Where the tribunal decides that there is a case to answer, nevertheless, has discretion to stop a case to the close of all the evidence in appropriate circumstances.  This discretion is exercisable where there is a mere scintilla of evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on.”

20.	I note the victim gave contradictory evidence on oath at the trial of the accused Oda Haro.  For example in examination in chief, the victim stated that she did not give consent to the accused to have sex with her that day in his office.  She was screaming but there was none to assist her.
   
21.	However, in the middle of examination in chief, the victim stated “he let me, I then laid on the floor on my back face up and he had sex with me until he ejaculated his sperm into my vagina.”  

22.	In cross examination she further contradicted herself when answering the following questions:-

Q:	“You pulled your trousers down?

A:	“No.”

Q:	“You bend down forward and then Oda Haro inserted his penis from the rear?”

A:	“No.”

Q:	“Suggest you told Oda Haro to wait and try another position?”

A:	“No.”
Q:	“Suggest you lay down on your back face up?”

A:	“I don’t know.”

Q:	“Then Oda Haro came on top of you and inserted his penis into your vagina again?”

A:	“I don’t know.”
Q:	“You did not scream when Oda Haro had sex with you in the office?”
A:	“I was screaming.”

Q:	“You never struggled?”

A:	I struggled to free myself from the pains and I hurt my kneecap.”

23.	At the conclusion of the cross examination I asked the witness the following question:

Q:	“You told the court that you were struggling to free yourself from the grip of the accused, Oda Haro, but during the intercourse from the rear, you told Oda Haro that you will lay down on the floor on your back face up, you permitted him to lay on top of you, insert his penis into your vagina and allowed him to have sex with you until he ejaculated his sperm into your vagina.  What do you say,”

A:	The witness remains silent for more than 5 minute so no answer was recorded.  

24.	I observed her to be selective in answering the questions asked by counsels for the State and the defence.  She gave answers that contradicted her own evidence in the trial and so I found her to be unreliable and she was concocting tale in court. 
 
25.	She did not answer an important question asked by the court.  Her silence is inferred as admission of the truth that she consented to have sexual intercourse with the accused that day in his office. Her demeanour was so poor, she was very evasive, not concentrating on questions asked and she gave contradictory evidence. Much of her time was spent fiddling around with her fingers and looking outside the court room.  She was uneasy inference drawn is that she was lying and for that reason she was uneasy when giving evidence in the trial.

26.	The answers she gave to questions were incredible and unreliable and this confirms my view that she was deliberately manufacturing evidence in court whilst on oath in the trial of the accused.  

ISSUE

27.	The issue for determination by the court is whether she consented to have sex with the accused in his office in Kerema on 10th September, 2014.  

28.	In cross examination she stated when the accused had sex with her from the rear in his office, she was struggling and screaming for help but there was no one around to assist her.  Then she told the accused “I will lie down and you have sex with me”.  

29.	The learned State Prosecutor asked her:

Q:          What did you do?

A:	He let me.  I then laid down on the floor on my back face up and he had sex with me till he ejaculated sperm into my vagina”.

30.	This evidence is crucial in determining whether she consented to have sex with accused in his office on 10th September, 2014. 

31.	This evidence is consistent with her response to the question: I asked, that is,

Q:	“Your told the court that you were struggling to free yourself from the grip of the accused, Oda Haro, but during the intercourse from the rear, you told Oda Haro that you will lay down on the floor on your back face up, you permitted him to lay on top of you, insert his penis into your vagina and allowed him to have sex with you until he ejaculated his sperm into your vagina.  What do you say.”

A:	No answer

32.	The victim was lying on oath and so did not answer a crucial question asked by the trial Judge. 

33.	The finding of the court after analysing the evidence for the State is that the victim consented to have sex with the accused in his office on 10th September, 2014. 

34.	In my view no reasonable tribunal such as this will safely convict the accused on the evidence presented by the State in the trial.  

VERDICT

35.	Therefore, I find the accused has no case to answer. 

ORDER

36.	The order of the court is that the accused has not case to answer and he is discharged from the indictment forthwith.  

37.	His bail money is to be refunded to him.

Accordingly ordered.

________________________________________________________________ Public Prosecutor	: Lawyer for the State		
Public Solicitor	: Lawyer for the Accused