N7437
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. N0. 504 - 505 OF 2014

THE STATE

V

KAPUTIN TURPAT

Kokopo:  Susame, AJ
2018:  11, 12, 20 July & 29 August

CRIMINAL LAW – particular offence – sexual penetration of girl without consent – s 347(1) (2) of Criminal Code (sexual offence and crimes against children) act 2002  - rule in browne and dunn  – the necessity for defence to put full defence version of facts to prosecution witness  during cross –examination – effect of failure to do so
CRIMINAL LAW- practice and procedure - evidence of corroboration no longer a legal requirement in sexual offences – s. 352a considered 

Cases Cited:
Papua New Guinea Cases

Touramasong & Ors v The State [1978] PNGLR 337

Overseas Cases

Browne v Dunn (1893) 6 ER 67
Kilby v R [1973] 129 CLR.460

Counsel:

Miss. Batil for the State
Miss. Pulapula for the Accused

JUDGMENT ON VERDICT
29 August, 2018
1.      SUSAME, AJ: On an indictment presented to the court State charged the accused for the crime of sexual penetration of a girl without her consent under section 347 (1) (2) Criminal Code (Sexual Offence And Crimes Against Children) Act 2002. The crime is generally known as Rape.
2.  The indictment alleges circumstances of aggravation that at the time of the commission of the offence accused was in company of another person and threatened to use a knife at the complainant and confined or restrained her in a house. 
3.   In the alternative State is pursuing the charge of sexual penetration of a girl under the age of 16 years. The girl was then 15 years of age. It is also alleged that there was an existing relationship of trust, authority or dependency between the accused and the girl because accused was the girl’s grandfather. For that he is cited for the crime provided in s 229A (1) (3) of the Act. 

ALLEGED FACTS

4.   Accused is the biological brother of the girl’s grandfather. At 4.00 o’clock in the afternoon on 30th June 2011, accused met the girl outside of Anderson’s Supermarket where she was waiting to catch a PMV to Gelegele where she lives with her parents. Accused lured her to his workplace at Takubar under the pretext of picking up his mobile phone from another guy. Accused invited her to accompany him and later they both will travel home as it was getting late for her to be standing alone. 

5.   At Takubar accused and the girl met another guy who was a stranger to the girl. Accused and that guy forced her into the warehouse. She attempted to escape but accused pulled her back and forced her onto the floor. Accused removed her clothes and introduced his penis into her vagina. After accused had had his turn the other guy came to have sexual intercourse with her.  The girl managed to push him off and ran out of the warehouse. Accused ran after her and threatened to cut her with a knife if she told anyone about the incident.  

OFFENCE

“S.347. DEFINITION OF RAPE
(1) A person who sexually penetrates a person without his consent is guilty of crime of rape.  
Penalty: Subject to Subjection (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, imprisonment for life.”

ELEMENTS OF THE OFFENCE

6.   Elements of the offence prosecution bears onus of proving are:

1.	Accused was involved;
2.	Sexually penetrated of the girl by introduction of penis into her vagina.
3.	Sexual penetration was nonconsensual

7.   Further because circumstances of aggravation are alleged the State must prove these additional elements:

4.	Accused was in company of another person
5.	Accused threatened the girl with a knife and restraint her in the house. 

EVIDENCE
8.    For the prosecution evidence consisted of documents tendered by consent and oral statements of two witnesses, Dorcas Noel and Margaret Noel. Documents tendered by consent were: 
DOCUMENT	 DATE	EXHIBIT NO.	
Statement of Sonia Tirang dated 	17/02/14	A	
Statement of Veronica Pagur 	17/02/14	B	
Statutory Declaration of Margaret Noel 	23/06/14	C	
Medical Report by HEO Lute Burangat 	7/07/11	D	
Statement of Lute Burangat	6/03/15	E	
Record of interview of accused pidgin & English versions  	28/01/14	F1 & F2	

Dorcas Noel’s Evidence
9.   She is the complainant. She is 22 years old. She was 15 years old when she was allegedly raped.  She is from Matalau village and lives with her parents at Gelegele resettlement. 
10.   On 30 June 2011 she came into Kokopo to see her cousin. After meeting her, she went to Anderson’s bus-stop at 1.30 pm to catch a PMV back home. At the bus stop the accused (her grand uncle) saw her and asked where she was going.  She told him she was going back home after seeing her cousin. Accused invited her to accompany him to Takubar to get his phone. She refused to follow him as it was getting late that his mother and uncle will get cross if she got home late. The accused insisted she followed her. He swore at her saying fuckin bastard and told her why she cannot trust him as he was her grandfather. The girl eventually gave in and followed the accused. They got on a bus and were dropped off at Papindo Supermarket at Tabubar. 
11.   They walked to the accused work place where he had left his phone. At the workplace accused took out his phone from his pocket and made a call to someone. A guy came out of the house. She told the accused he had lied to her to come and pick his phone when phone was in his hand. 
12.   She tried to shout but the accused shut her mouth with his hand and pushed her.  The accused and the other guy took her into the house. When she struggled the accused hit her two arms and trapped her. Inside the house they forced her to drink glass of alcoholic drink. 
13.   The accused then unzipped her trousers and sexually penetrated her through her vagina. After the accused had raped her, she sat crying. The other guy entered and wanted to rape her. But she pushed him away and ran out of the house. She walked out of the gate crying and the accused came after her saying sorry. She did not accept his apology because of his lie and what he had done to her. 
14.   She walked to Papindo Supermarket and accused followed her. She told him she will report the incident to her mother and uncle. Accused was apologetic and kept following her until they reached Andersons Supermarket. There they got on a PMV bus to Gelegele. As they were travelling on the bus accused kept apologizing and told her not to tell anyone. 
15.   They both got home and her mother served them with food. She never told her mother of what accused had done to her until the morning of the next day. Her mother told her uncle and she was taken to the hospital. Her uncle searched for the accused but he was not around.  Later her mother came and laid complaint at the Police Station. 

Margaret Noel
16.   She is the girl’s mother. She gave birth to Dorcas on 01 July 1995. She stated the accused is her husband’s first cousin. She calls him uncle and Dorcas addresses him as her grandfather. She was at home while her daughter had gone to see her aunt at Kinabot to get some food for the house. Her daughter and the accused got home late in the afternoon between 6 pm and 7pm on a day she cannot recall. She gave them food. Her daughter looked unhappy and did not talk. Accused left after having his meal while her daughter went to bed early. 
17.  Her daughter did not report the incident to her that night until the next morning. She said her daughter told her accused had taken her to Takubar to the warehouse. He called one other guy by phone. The other guy came and they took her daughter in and both raped her. She said when her daughter told her the story she cried. She said she told the other members of the family and they searched for the accused to settle the matter but he had run away. 

DEFENCE
18.   Defence on the other hand relies on accused’s oral testimony. Accused was then working as a delivery boy with Gazelle Management Limited at Takubar. Accused version of facts differs from that of Dorcas. He stated on Friday 30 June 2011 he finished from work and walked to Andersons Supermarket. He wanted to get on a bus and Dorcas approached him at 4.00pm. She told him Wari had called her to go get her phone. 
20.   They got on a bus and went to Takubar and got dropped off at Papindo. They walked to Gazelle Management Limited and he asked the guard at the gate they wanted to see Wari. The guard told him he was around. He opened the gate and allowed them in. The accused called out to Wari as the girl was here. 
21.   He said he left her with Wari and went out to Papindo. They were inside Wari’s boy house. Accused waited for them and decided to check them out at 5.30pm. He asked the guard if they were inside and the guard made a hand signal indicating they were inside. 
22.   The girl came out of Wari’s room. He asked her if she was staying back or they leave. She replied she will go with the accused. Accused said the girl then went in and had her shower and there after they walked to Papindo. 
23.   There was no vehicle so they had to walk back to the Warehouse and asked the guard to help find a vehicle to drop them off at the junction of the roundabout at Kalabon. Guard told them to wait for the vehicle to arrive for the next shift to be dropped off. When the vehicle arrived they got on and were dropped off. A vehicle owned by Ela Motors came along and gave them a lift to Gelegele.
24.   On arrival at the parents’ house accused told the parents their daughter was stranded and he got her home. Then he left. He told court Wari is his fellow workmate. He was in a relationship with Dorcas. None of her family members knew of her relationship with Wari except himself. He said Dorcas had no food items in her possession when he saw her at the bus stop. 
ISSUE
25.   Accused did not raise any known statutory defence to the charge. Generally he denied committing the crime. In his denial he came up with the story recorded in his evidence. Did the accused sexually penetrate Dorcas? 
ARGUMENTS
26.   Arguments heard were on evidentiary aspect of the case. Basically, Ms. Pulapula argued evidence by the prosecutrix contains inconsistencies and is unreliable. Complainant had gone with the accused to see her boyfriend Wari and have sexual intercourse with him.  
27.   Miss. Batil argued otherwise. In a nutshell she argued complainant’s evidence was consistent and plausible. Complainant obeyed her grandfather and had accompanied him to Takubar under the pretext of picking up his mobile phone. Accused had forced her into the warehouse at Takubar and raped her. 
28.   Miss. Batil referred to s 352A of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.  She argued a person may be found guilty on 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. 
29.   There was no argument on corroboration. The position of the current law on corroboration in sexual offences is clear.  
30.   Section 352A of the Act states that “On a charge of an offence against any of this Division, (ie Division V.7) a person may be found guilty on the uncorroborated testimony of one witness, and a Judge shall not instruct that it is unsafe to find the accused guilty in the absence of corroboration.”  
31. Under the current legislative regime corroboration is no longer a requirement. Court may convict on victim’s evidence alone as long as her evidence was credible, trustworthy and reliable, without major discrepancies or inconsistencies that would create any doubt.
ASSESMENT OF EVIDENCE & FINDING
32.   From the evidence received certain facts are clear and are not contention. Accused is the blood relative of the Dorcas. Dorcas calls him as her grandfather. He is the first cousin of the Dorcas’s father. They have always maintained their family relationship. In that respect there cannot be any doubt there is an existing relationship of trust, authority or dependency between the Dorcas and the accused.
33.   At the time the alleged crime was committed Dorcas was 15 years of age. Her mother gave birth to her on 01 July 1995 at Nonga Base General Hospital Rabaul, East New Britain Province. 
34.   In the afternoon of 30 June 2011 accused had met Dorcas at the bus stop outside Anderson’s Supermarket, Kokopo.  They got on a PMV bus and were dropped off outside Papindo Supermarket at Takubar. From there they walked to Gazelle Management Limited property where the accused works.  There they entered the yard and proceeded into a warehouse where the alleged crime was committed. 
35.   Accused and Dorcas got home late in the afternoon. Dorcas’s mother gave them food and after having his meal accused never stayed around. In the morning of next day Dorcas told her mother of what accused had done to her. The mother being emotional and sympathetic of her daughter told other members of the family who searched for the accused. Accused was nowhere to be found. Complaint was then laid with the police but accused had gone into hiding. 
36.   Dorcas was taken to Gelegele Health Centre on 7 July 2011 and medically examined by Health Extension Officer, Lute Burangat who compiled the medical brief of his examination. 
37.   Accused version of facts deferred from that of Dorcas in relation to what transpired at the bus stop outside Anderson’s Supermarket and the reason they had gone to accused work place, what actually happened at the warehouse and how they had got home late in the afternoon. 
38.   Firstly, accused had told the court that Dorcas met him at Andersons Supermarket bus stop and told him Wari had called her to go and get her phone. Secondly, he said after Dorcas had her shower they walked out to Papindo to look for a vehicle. There was none so they returned to the warehouse and asked the guard to assist them. They were assisted by the company vehicle and were dropped off at Kalabon traffic roundabout. A certain vehicle owned by Ela Motors came by gave them to Gelegele. 
39.  Should this court accept the accused version of facts as credible and reliable? I am reminded of the rule in Browne v Dunn (1893) 6 ER 67. The rule is that if a party is intending to challenge evidence of a witness, the reason for the challenge must be put to the witness during cross-examination. 
40.   In other words party challenging must put his full version of facts he will lead evidence later to establish, to the witness to give him or her, an opportunity to respond in agreement or otherwise.
41.  Failure to do so can be considered as acceptance of evidence in chief which cannot be impugned or challenged by the party challenging in his or her final address. By that omission or failure court is entitled hold the evidence as unreliable and having less weight or no weight at all.  
 42.   Accused told court the boyfriend Wari had called Dorcas by phone to go and see him and get her phone. It is not known how long they both have been in that relationship. If both had been in a boy/girl relationship Dorcas would have proceeded by herself to see her boyfriend without even asking the accused to escort her. Any act of sexual intercourse then between the two would have been out of mutual consent.    
43. In the record of interview (Qs 18-24 & answers) accused gave an explanation he just left his job in 2011 and went away to Kavieng. Then he went over to Duke of York and lived there for 2 years. He was apprehended 19th January 2014 by other family members and taken to Kokopo Police Station (refer to last paragraph summary of facts) and arrested and charged. That was three years after the alleged crime was committed. 
44.  Why would he suddenly leave his job for no apparent reason without giving a serious thought about the welfare of his wife and children who were in school and needed his support? He left his family behind and stayed away from them for three years at Kavieng and Duke of York Island. Could it be that he fled from some wrong he had committed and was in hiding from being easily apprehended and prosecuted? 
45.   Defence had during cross-examination failed to put across to Dorcas full version of facts it relied on to later lead evidence to establish those facts. The facts that defence omitted to put across to her were; the purported representation accused made to Dorcas at Anderson’s Bus Stop, facts of what transpired at Takubar prior to, at the time and after the crime was committed and how they both got back to Gelegele.  
46.  Applying the Browne and Dunn rule I consider accused’s evidence as unreliable and place no weight in accepting his evidence. The story accused came up with was far from the truth.  It was a recent invention in an attempted to evade criminal prosecution of the crime he had no doubt committed.  
RECENT COMPLAINT OF SEXUAL OFFENCE
47.  At Common Law, evidence of recent complaint made at the earliest reasonable opportunity is admissible in sexual assault cases. Such evidence goes to the credibility and demeanour of complainant as of a truthful person of the fact that she had been sexually assaulted. It is however, not admissible of the facts in issue such as consent is it is a central issue. (See Kilby v R [1973] 129 CLR.460 That Common Law principle has been recognized and adopted by the Supreme Court in Touramasong & Ors v The State [1978] PNGLR 337. 
48.   In the case before me there was no lengthy passage of time complaint was reported. Complaint was made to the mother in the morning, day after the alleged crime was committed which was immediately reported to police for their intervention. Police could not apprehend the accused sooner as he went into hiding until 19 January 2014 when he was apprehended.   
49. The recent complaint made by Dorcas is favourable evidence for the prosecution. Dorcas is a credible and truthful witness. There is no evidence from the defence for the court to find otherwise. 
50.   The facts court accepts are these. The accused had met Dorcas at the bus stop outside Anderson’s Supermarket at about 4.00pm on 30 June 2011. He persuaded her to accompany him back to Gazelle Management Properties Ltd premises where he works at Takubar under false pretence to pick up his mobile phone he had left behind. His hidden motive was to sexually penetrate her.  
51.   When they got to his work place he contacted Wari over. Accused forced Dorcas to have a glass of alcoholic drink. Then she was sexually penetrated by the accused through her vagina against her will and without her consent. 
52.   After the accused had had his turn and left the building his colleague attempted to sexually penetrate Dorcas but she pushed him away.  When accused returned and opened the door Dorcas seized that opportunity and fled out of the building. Accused went after her.  He was apologetic and begged her not to tell anyone of what had happened. He even issued threats on her though there is no evidence of a knife being used. Dorcas got home and in the morning of the following day she told her mother of what had happened to her. 
53.   The conclusion reached from all of the discussions is that there is no doubt in my mind to enter conviction against the accused. He is guilty of the charge. Following this finding it is not necessary to consider the alternative charge that was pursued. 

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