N6894
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR No. 1004 OF 2013

THE STATE
V
ROY DUJAMBI
KIMBE	:	Miviri AJ
2017		:	28th June
CRIMINAL LAW- PRACTISE & PROCEDURE - Trial-Rape S347 & 347A no consent -victim mentally disabled-tried to give evidence but mentally incapable - eye witness accused naked compromising position on top of victim also naked -medical evidence sperm gonorrhoea –penetration established- whether with consent- no other reasonable hypothesis other than no consent-guilty of rape.
Facts 
Defendant was seen naked on top of victim a mentally disabled person-she was naked he had his trousers half-way to his knees. 
Held
That the Defendant had sexually penetrated SD a mentally retarded person, no reasonable hypothesis other than not consenting, she was incapable of consenting or giving her consent due to her disability. Defendant committed rape upon SD a mentally retarded female.
Guilty of rape.

Cases Cited
Beng v The State [1977] PNGLR 115 
Geta v The State [1988-89] PNGLR 153 
Counsel:
D.Kuvi, for the State
D Kari, for the Defendant
					VERDICT
7th September, 2017 
1.	MIVIRI AJ: This is the verdict after trial of a man who was seen with his pants to his knees sleeping on top of SD a mentally retarded female who was also naked. I will refer to her as SD to protect her identity throughout the judgement.
Short facts
2.	Roy Dujambi had his trousers to his knees and was having sexual intercourse of SD who was mentally retarded female on the 10th June 2013. He was seen in the act, “em wok long kuapim Scholar” he was having sexual intercourse with Scholar, by a witness who came to the house on an errand. She reported the matter.
Law
3.	The charge was contrary to section 347 1) of the Criminal Code that;-
Section 347 DEFINITION OF RAPE.
(1) 	A person who sexually penetrates a person without his 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.
4.	The State pleaded Section 347A in that the victim was incapable of consenting because of her mental incapacity to understand and to apprehend what was sexual intercourse and of consenting freely to it. Section 347A is as follows:-
347A. MEANING OF CONSENT.
(1) 	For the purposes of this Part, “consent” means free and voluntary agreement.
(2) 	Circumstances in which a person does not consent to an act include, but not limited to, the following: –
(a) 	the person submits to the act because of the use of violence or force on that person or someone else; or
(b) 	the person submits because of the threats or intimidation against that person or someone else; or
(c) 	the person submits because of fear of harm to that person or to someone else; or
(d) 	the person submits because he is unlawfully detained; or
(e) 	the person is asleep, unconscious or so affected by alcohol or another drug so as to be incapable of freely consenting; or
(f) 	the person is incapable of understanding the essential nature of the act or of communicating his unwillingness to participate in the act due to mental or physical disability; or
(g)	 the person is mistaken about the sexual nature of the act or the identity of the person; or 
(h) 	the mistakenly believes that the act is for medical or hygienic 	purposes; or
(i) 	the accused induces the person to engage in the activity by abusing a position of trust, power or authority; or
(j) 	the person, having consented to engage in the sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity; or
(k)	 the agreement is expressed by the words or conduct of a person there than the complainant.
(3) 	In determining whether or not a person consented to that act that forms the subject matter of the charge, a judge or magistrate shall have regard to the following: –
(a) 	the fact that the person did not say or do anything to indicate consent to a sexual act is normally enough to show that the act took place without the person’s consent; and
(b) 	a person is not to be regarded as having consented to a sexual act just because –
(i)	 he did not physically resist; or
(ii) 	he did not sustain physical injury; or
(iii) 	on that or on an earlier occasion, he freely agreed to engage in another sexual act with that person or some other person. 
5.	What the State has to discharge are on evidence on the following elements of the offence:- 	
•	a person
•	Sexually penetrated
•	A person
•	Without consent.
State evidence by consent
6.	The evidence by consent before me comprise ; (a) Exhibit S1 the medical report for SD female 29 years with rape or sexual penetration, and (b) Exhibit S2A was the pidgin version of the record of interview between ROI Dujambi and police and Exhibit S2B was the English translation of that record of interview.
Sexual penetration proved
7.	Exhibit S1 established that SD a person was sexually penetrated. On examination she was in obvious distress and her vagina hymen looks bruised and tears on the labia’s. Her cervix was closed. There were discharges of bad odour. Higher vaginal swab was taken. Therefore she was sexually penetrated or assaulted and was treated and advised for VCT screening to exclude HIV and Spermatozoa were seen within. The author the HEO confirmed in her sworn evidence on oath.
8.	This evidence established that SD was sexually penetrated by a male person who caused injury to her hymen which was bruised and there were tears on her labia. She was assaulted.
Issue
Who had sexually penetrated SD without consent?
Witness on oath
9.	First prosecution witness was Sylvia Sakuk who was 10 years old in 2013. At the time of giving her evidence 22nd June 2017 she was a grade 7 student at Kimbe Primary School aged 15 years old. It was her evidence that she had come on the day in question to pick up a bag to be used to fill the sago that they were making with her grandparents.  As she was looking for the bag her eye sight caught Roy Dujambi with his trousers to his knees lying onto of SD who was naked. SD is her first cousin their fathers are blood brothers. Her father is the younger. Roy Dujambi is an uncle from her mother’s side and she knew him for a long time. He was raping Scholar he was sexually penetrating Scholar, “em wok long kuapim Scholar”. Scholar is a “sense” person, a disable person since her childhood growing up. She does not give intelligent answers if one questions her. She is a person of disabled mentally as she does not converse intelligently or of a person who is of sound mind.
10.	The witness was looking through a 30 cm open gap between the door and the floor of the house. She saw the face of both Scholar and Roy Dujambi. Both were directly in front of her 7 meters from where she saw them. And the posts of the house were short and she could see. She was not identifying a stranger but both her immediate relatives. And she saw both at close quarters in the early morning light at 10 am to 11.00am. She saw them directly frontal about seven meters away from her.  And she spoke to Roy and said, “Roy yu wok long wokim wanem long Scholar?” And he replied, “Mi wok long wokim wanem?” Roy what are you doing to Scholar” And what am I doing?
11.	This evidence on identification in accordance with Beng v The State [1977] PNGLR 115 (2 May 1977) “Where the identification relied upon is that of a single witness it is proper that the jury should be informed that the identification ‘was critical, and that mistakes have in the past occurred in regard to identification, thereby occasioning a miscarriage of justice’, and that they should be satisfied that the witness was not only honest but also accurate in the evidence he gave. Matters to be taken into account are ‘what opportunities the person identifying had to form a judgment of the identity of the person who committed the crime ... the position of the parties when the identification was made, the lighting, the opportunities to form a judgment, and generally the circumstances in which the identifying witness formed his judgment as to identification.’
12.	And her identification was critical. And that mistakes had been made in the past leading to miscarriage in justice. I did not find any motive for the evidence that she gave in court. She gave particulars as to how she was able to make the identification as opposed to just a general assertion, in particular her position how far she was the condition of the lighting, and the fact that the persons she saw were her relatives. That she had conversed with Roy Dujambi. She was not attempting to recognize strangers in a crowded street but immediate relatives the defendant from her mother’s side and the victim from her father’s side. The identification was not a fleeting glance situation or a masked hood in a dark night or alley. It was more recognition of immediate relatives than of strangers. 

SD victim
13.	SD was called she could not be affirmed or sworn in to give evidence. She did not appear to understand the nature of making an affirmation or oath nor could she with intelligence and common sense apprehend to properly be affirmed or sworn to give evidence. Her mental capacity could not go beyond the following excerpt that I took down, her name as SD. She replied that she was from here. And was taken with her mother in a vehicle from home. She said she had not being to school. She said she used to go to church, but said she did not know God. She did not know about the truth. And that was the highest that counsel prosecuting got to in trying to get her to be affirmed or sworn.
14.	She was a disabled person mentally and in no position to give evidence. I observed her very closely when she was produced by the State in its endeavour to have her give evidence in the matter.  Despite skilful questioning by the learned state Prosecutor she could not give comprehensible evidence that would have given the impression to the court that she knew or appreciated what she was talking about let alone where she was and of the requirement to tell the truth the consequences of not adhering. She was silent most of the time and simple questioning did not draw intelligent answers back. To persist and preserve would not have been fruitful to the State case. 

15.	As a tribunal of fact, I observed her in the witness box and adjudged that she was incapable of communicating as a normal sane person of sound, intelligent and common sense and understanding would. She was mentally weak and lacking to fully communicate and maintain mutual conversation or give answers making sense or meaning to the conversation. She was asked about her religion and I could not make out what her answer was to the question that was posed by counsel. Accordingly when counsel prosecuting did not proceed further and elected to disengage further with the witness that was the highest that the court saw of her as a witness in the matter. My views were supported by exhibit S1 medical evidence by Health Extension officer Sandra Kura dated the 25th June 2013 who wrote, “Pertaining to the above is a victim being sexually penetrated by known guys at section 11. This particular victim was a bit mentally psychosis and also mutes”. She was not composed intellectually and had mental infirmity lunacy or phobia or obsession. 
16.	Her evidence established she did not know and was incapable of understanding the essential nature of the act or of communicating her unwillingness to participate in the act due to mental or physical disability. But what came out of her silence and incapability was the fact that when she was medically examined she was in obvious distress and her vagina hymen looks bruised and tears on the labia’s. Her cervix was closed. There were discharges of bad odour. Higher vaginal swab was taken. Therefore she was sexually penetrated or assaulted and was treated and advised for VCT screening to exclude HIV and Spermatozoa were seen within. 
17.	This evidence was independent of her by a medical professional who was trained in that field. It could not have been made up to add to the case. There was no motive or relationship between the victim and the health Extension officer therefore the medical evidence established that she was sexually penetrated by a male person who caused bruises and tears to her labia including presence of spermatozoa. And that she contracted a sexually transmitted disease as a result of that act. 
18.	That she did not know the act as sexual intercourse and did not consent to the male person who did this to her.
Defence 
19.	Roy Dujambi gave evidence in defence on oath denying that he had sexual penetration of the mentally retarded girl SD. He said he had washed then had gone to the community meeting that was called. He was at the meeting and could not have committed the offence. 
20.	He called no one from that meeting to support that he was at the meeting. In cross examination he never gave evidence as to who he was with at the meeting nor did he give any names of possible witnesses who may have been at the meeting. The alibi was not made out and therefore did not create any doubt in the identification that was made by Sylvia Sakuk. 

Findings 
21.	Accordingly, I find as a fact that the person who was seen by the witness Sylvia Sakuk on the 10th June 2013 in the house is the defendant Roy Dujambi who had his pants to his knees and he was having sexual intercourse with SD who was at that time incapable of consenting or knowing what Roy was doing to her.
22.	Accused took advantage of her vulnerability as a disabled person mentally and the fact that she was alone penetrated her by inserting his penis into her vagina and had sexual intercourse with her without her consent she being a person who was incapable of consenting or knowing what the act was and therefore not consenting.
23.	I find that accused committed rape upon SD and is guilty as indicted.
24.	Verdict guilty of rape
Ordered Accordingly.
_____________________________________________________________________________________
Public Prosecutor	:	Lawyer for the State
Public Solicitor: 		Lawyer for the Defendant