N7281

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 487 OF 2016

THE STATE

V

PETER VEAU

Kimbe: Miviri AJ
2018: 5, 6 June

CRIMINAL LAW – PRACTICE AND PROCEDURE – Attempted Rape s348 CCA– Alternative verdict sexual assault s349 CCA-Trial-Question of credibility-whom to believe - prosecutrix only witness-prior and existing family conflict motive-accused denial of offence - reasonable doubt-acquitted and discharged -bail refunded. 

Facts

Defendant came upon victim who was relieving herself from the call of nature. He followed her and touched her buttocks. She resisted him he was armed with a bush knife he wrestled her to the ground and attempted to rape her but did not succeed. 

Held

Evidence not beyond doubt
Benefit of doubt 
Acquitted and discharged.
Bail refunded forthwith.

Cases: 

Evi v Regina [1975] PGSC 13; [1975] PNGLR 30 
R v Joseph-Kure [1965-1966] PNGLR 161.
The State v Pawa [1981] PNGLR 498 
The State v Beraro[1988-89] PNGLR 562 
The State v Schubert [1979] PNGLR 66 

Counsel:

L Jack, for the State
D Kari, for the Defendant

						VERDICT
6th June, 2018
 
1.	MIVIRI AJ: This is the verdict of the court against the defendant for attempted rape and in the alternative sexual assault after trial.

Short facts

2.	The victim one Gina Morgan was on her way to a school meeting on the 11th September 2015 but felt the need to relieve herself from the call of nature so left her child and went back into some bushes nearby. As she was relieving herself the accused came upon her. Realizing she got up and hurriedly pulled up her trousers in front of the toilet away from the bushes. Then she went underneath the house and informed a relative stayed there for awhile and then proceded to the school. As she did the accused followed her. Along the way he touched her buttocks then kicked her legs she fell to the ground and then got up again, but he repeated and she fell. He was armed with a bush knife and wrestled with her attempting to take her trousers off in the process damaging the button and the zipper. She managed to kick the knife off his hand and got the opportunity to get up and escape from him with her daughter. She sustained minor bruises and abrasions on her lower limb and belly button.

3.	She went and saw her husband and reported the matter to the Police immediately after whereupon the accused was arrested the next day.

Charge

4.	Accused was indicted under Section 348 of Attempted Rape and in the alternative of Sexual Assault pursuant to Section 349 of the Code. He had manifested his intention to carnally know her by overt actions intended in that regard.

5.	Accused entered a not guilty plea on the charge of attempted rape pursuant to Section 348. That is he attempted to commit the crime of rape upon Gina Morgan. He intended to insert his penis into the vagina of the victim without her consent. He had by overt actions intended this upon the victim: Evi, Regina v [1975] PGSC 13; [1975] PNGLR 30.

State Evidence Exhibits

6.	The state tendered into evidence the record of interview of the accused dated the 26th January 2016 and Friday 5th February 2016 tendered and marked as Exhibit S1(a). The English translation was exhibit S1 (b). 

7.	The medical affidavit of the Doctor Sapuri sworn and dated the 1st June 2018 was exhibit S2 (a) for the State. And Exhibit S2 (b) was the medical report dated the 23rd November 2015.

8.	Exhibit S3 was a statement of the witness Vincent Morgan Uyapeso dated the 23rd November 2015.

9.	Exhibit S4 was a statement by Sarah Vitolo corroborating officer in the record of interview.

10.	Exhibit S5 was the arresting officer in the record of interview Wayne Isako dated the 22nd March 2016.
 
11.	The tale of this evidence was that the accused had scolded the victim Gina Morgan because their toilet was on his land and he had repeatedly told them to remove it and they failed. He did not attempt to rape her. There were three other youths who came upon them and he greeted them and they went away. Victim was with the daughter and they went and saw their father after.

12.	There were no witnesses apart from the alleged victim Gina Morgan. She was generally what the matter before the court was about. As such it was important for other evidence to verify the truth and the veracity of her evidence. Corroboration was not the same as the truth and did not alleviate that the truth had to be proved beyond all reasonable doubt. Because the accused did not need to prove that he was innocent of the allegation. The burden of proof was upon the State.

13.	The state needed to prove that the medical evidence in particular the injuries depicted were as a result of the attack by the accused. It was the assertion of the victim but the State needed other evidence to pin that down to the accused. He was the author of the injuries upon her.

14.	What other evidence was there showing that even though there were no other witnesses except the victim Gina Morgan she was telling the truth. The medical evidence exhibit S2 (a) (b) were by themselves not conclusive of what was alleged. Because the victim had immediately reported. She was wearing the trousers which in the course of the attempt to rape had its button and Zipper damaged. It was the evidence that would have shown here is the attempt to rape or to expose my vagina in order for the accused to penetrate his penis into and to commit rape upon me. She did not there and then seeing her minutes later reporting to her husband and then to police. It was fresh and did not prompt Gina Morgan to place that as part of the evidence upon the complaint made. Accepting that she was wearing it she made no mention of it to the Police at all there and then. It would have added together with the medical report confirming the medical report. One was linked to the other. Here it could not be with certainty affirmed that what she sustained as abrasions and bruises immediate to the assault.

15.	She tendered her husband Vincent Morgan Uyapeso’s statement who does not in the statement mention that she had her trousers button and zipper damaged in the course of the attempt by Peter Veau to rape her. This was important evidence for continuity from the scene of the allegation to the police and into the courtroom to confirm or deny her distressed condition at the time that he saw her when she came and reported to him including importantly damage to her clothing.

16.	None of the boys there were three in all according to the evidence were called to give evidence in support that they saw the victim in a distressed condition when they passed her on the road there on that day.

17.	There was also motive for the story that Gina Morgan made in court which she also gave evidence of corroboration by Peter Veau of the long standing dispute over that land between both parties. It was not isolated that that may have prompted what was before the court as attempted rape and therefore effecting its truth and veracity.

18.	In accordance with Pawa v The State [1981] PNGLR 498, the State did not discharge that there were no other reasonable hypothesis other than the guilt of the accused. Why was the bush knife carried by the accused at the time of the allegation and not used to secure the commission of the crime of attempted rape? Could it be expected that a woman alone with a child three years old would resist and stop the advance of a man who was armed with a bush knife intent on raping her? Here she said she kicked the knife out of his hand. Could she be expected to go alone a track unpopulated to a school meeting after being set upon by a man who had sexual intentions exposed upon her? Would she not have secured an adult person to accompany her because she went underneath the house and was conversing with, shouldn’t it not being proper to secure and to have this person along with her in the light of her evidence that the accused had come like a thief? In other words he was intent on mischief and therefore preparedness to avoid? Better still matter was fresh why was the trousers with its button and zipper damaged by the actions of the accused not produced to police immediately there and then and to be tendered into this proceedings?

19.	Given also the fact that in affirmation her three year old daughter then could have been affirmed to determine her veracity and credibility to give evidence in accordance with Beraro v The State [1988-89] PNGLR 562; Schubert v The State [1979] PNGLR 66. It was option open to the State that was not pursued given that she was there at the scene and may have given evidence relevant and admissible to allegation against accused.

20.	Given in my view the State had failed to prove beyond all reasonable doubt that accused had put his intention to rape into manifestation by overt act in that regard. The trouser or clothes of the victim is not removed. There is no evidence that it was removed. There is no evidence that the accused removed his own clothes. He was holding a bush knife and struggling with the victim with the other and with that same hand trying to remove her clothes let alone her trousers. How effective did he have her restraint is not clear by evidence before me. Reading this section with section 4 in order to establish an attempted rape, the prosecution must prove that- 

(a)	The accused intended to have carnal knowledge of the complainant without her consent, or obtaining her consent by force or by means or threats or intimidation, or by fear of bodily harm. Etc;

(b)	The accused had begun to put his intention into execution by means adapted to its fulfilment; and

(c)	The accused had manifested his intention by some overt act, R v Joseph-Kure [1965-1966] PNGLR 161 at 166.

21.	Accordingly,  I adjudge that the State has not discharged the proof beyond all reasonable doubt on the charge of Attempted Rape contrary to Section 348 of the Criminal Code and I find the accused not guilty of attempted rape. It is not necessary to consider the alternative charge sought as that is depended on the evidences and the findings here falling short of Attempted Rape. It is not the case here.

22.	The verdict of the court in all the circumstances is not guilty of Attempted Rape contrary to Section 348 against the accused Peter Veau.

23.	I order that Bail Moneys be refunded forthwith and all obligations relating discharged forthwith.

Orders Accordingly,
__________________________________________________________________Public Prosecutor:  Lawyer for the State	
Public Solicitor   : Lawyer for the Defendant