N9239

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 155 OF 2015

THE STATE
V
PRESTON PAULUS
(NO 1)

Alotau:  Toliken, J
2018:  26th, 27th March, 13th July

CRIMINAL LAW – Rape – Circumstances of aggravation – Trial – Identification – Whether accused positively identified – Penetration – Whether accused penetrated the complainant – Vagina – Meaning of – Criminal Code Ch. 262, s 347(1)(a); s 6A.

Facts

The accused pleaded not guilty to one count of rape with circumstances of aggravation.  He raised the defence of identification and hence involvement. The complainant testified that the accused penetrated her vagina and two witnesses testified of seeing the accused having sex with the victim from a few meters away where they were being held up by an accomplice of the accused. The accused did not give evidence or call any witnesses, but in cross examination it became apparent that he was denying that he penetrated the complainant. The case therefore turned on the issue of whether or not he sexually penetrated the complainant’s vagina with his penis. The State’s case was that the accused only “slightly” penetrated the complainant’s vagina. It became necessary therefore to consider the meaning of the term “vagina”.

Held:

(1)	While identification is an issue, it appears from cross-examination of the State witnesses that the accused identity was not an issue at all and that what was in contention was whether the accused penetrated the complainant’s vagina. Notwithstanding that, I must still warn myself of the dangers of identifying the accused in the prevailing circumstances.
(2)	Full penetration is not required, the slightest insertion of the penis into the complainant’s vagina is sufficient to constitute penetration.

(3)	The term vagina is not defined by the Criminal Code, but I do not think that it should be ascribed the technical medical meaning which the Concise Oxford Medical Dictionary, 8th Edition defines as – “the lower part of the female reproductive tract: a muscular tube, lined with mucus membrane, connecting the cervix of the uterus to the exterior.  It receives the erect penis during coitus…”

(4)	Reference to the “vagina” in the Criminal Code is a reference generally to the female genitalia including the external part called the Vulva which comprises the labium - the labia majora and labia minora.  Hence, the insertion of a penis, or object, or other body part, to any extent, into the outer part of the female genitalia is sufficient to constitute penetration, and that is because the vagina as we laymen understand it does start from the vulva itself.

(5)	While the accused denied penetrating the complainant and there is no corroborating medical evidence, the complainant would have felt the entry of the penis into the outer genitalia, i.e., the vulva and that is all that is required to constitute penetration. I am satisfied that the accused penetrated the complainant’s vagina, however, slightly.

(6)	There is no doubt that the complainant did not consent to say sexually penetrated by the deceased.

(7)	Verdict of guilty returned.

Cases Cited:
	
The State v Alois Dick (2007) N3219
The State v Daweia (2014) N5958

References:	Concise Oxford Medical Dictionary, 8th Edition.

Counsel:

A Kupmain, for the State
P Palek, for the Accused

VERDICT
 13th July, 2018

1.	TOLIKEN J:  The accused Preston Paulus was charged with one count of rape with circumstances of aggravation pursuant to Section 347(1)(2) of the Criminal Code, Chapter 262 (the Code).
2.	The State alleged that on Friday 29th March 2013, a Good Friday, at around 10.00 p.m., the complainant Sheba Anderson was asleep with her family at their house at Denewa Compound, Top Town, Alotau.  The complainant was sick, hence at around 12.00 a.m., her brother and aunt boiled hot water and steamed her. Then they all went back to sleep.
3.	At around 2.00 a.m., on Saturday morning, the accused, accompanied by one Teddy Kenneth and others came to the complainant’s house.  They knocked on the door and the complainant’s aunt and uncle came out and they held them up at gun point and they took the complainant out of the house with threats of violence and death.
4.	The accused took the complainant down to the back of the house, forced her to the ground and inserted his penis into her vagina and had sexual intercourse with her for a short while.  The complainant shrugged the accused off and then ran back into the house.
5.	As this was happening, the complainant’s aunt and uncle were being held at gun point by Teddy Kenneth close by. The accused raped the complainant in the full view of her uncle and aunt who had been ordered to sit down and observe. The complainant did not freely and voluntarily consent to the act of sexual intercourse.
6.	The accused generally denied the charge.
7.	The issues for trial were initially identification and involvement but penetration was also raised and as we shall see became the main issue. 
8.	For this offence the State needs to prove the following elements: 
1.	The accused.
2.	Sexually penetrated the complainant’s vagina.
3.	The complainant did not consent.
4.	The accused was armed and in the company of others.

9.	Section 6 of the Code which defines “penetration”, provides that penetration involves the insertion, to any extent, by a person of his penis or other body part or object into the vagina, anus or mouth of another person.  The introduction or insertion of an object other than a penis into the vagina or anus of another person is excused only if it is for hygienic or medical purposes.
10.	It follows, therefore, that there need not be full penetration, the slightest entry into the vagina or anus is sufficient to constitute penetration. (The State v Alois Dick (2007) N3219; The State v Daweia (2014) N5958)
11.	The evidence in this case is from the State only - the accused having exercised his right to remain silent.

12.	The State called the complainant and two others namely Ginsy Enele and his wife Dinais Ginsy.

13.	The State’s evidence is essentially that on the night in question, the complainant and his aunt and uncle were asleep at their house at Denewa Compound.  The complainant was sick and had earlier that night been steamed and then returned to sleep.

14.	In the earlier hours of the next morning (about 2.00 a.m.), they were awakened by somebody knocking on their door and demanding that they open the door and threatening to burn the house down if they did not.  The complainant’s uncle Ginsy was fast asleep and had to be awoken by his wife Dinais.  They reluctantly got out of bed.  Dinais opened the main door and they stepped out into the veranda.  As soon as Ginsy opened the outer veranda door he was held up by Teddy Kenneth with a gun.  Teddy Kenneth told Ginsy to sit down on the 3rd rung of the steps and not to do anything otherwise he will burn the house down and blow his joints off.  Teddy Kenneth stood about a metre away from Ginsy while Preston Paul (the accused) stood in the kitchen a further metre or so away, armed with a shotgun.

15.	Teddy Kenneth then ordered Ginsy to bring the complainant out. Dinais reluctantly went into the house and brought her out.  The accused grabbed the complainant and took her to the kitchen and then to the back of the house where he removed her tights and pants and then sexually penetrated her, while Ginsy and Dinais observed under the watchful eyes of Teddy Kenneth.
16.	 The complainant was struggling as the accused was penetrating her.  And as he was doing so, Teddy Kenneth walked up to where they were and said that he will take his turn when the accused finished.  Hearing this, the complainant struggled more and managed to shrug off the accused and ran straight back up into the house leaving her panties and tights behind.  Ginsy and Dinais then immediately followed her in and closed the door.  Through the veranda window, Ginsy and Dinais saw two other persons come out from the side of the house.  One of them was Dinais’ nephew - Livingstone Liosi – her cousin sister’s son. After a while, the accused and his friends left.  
17.	It was a bright moonlit night hence the witnesses said that they could see things very clearly. The accused and his friends were not strangers to Ginsy.  They have known themselves for quite a while.  The complainant, however, did not know them well as she had just recently moved into town from the village after completing school.

18.	While the complainant went back to bed, Ginsy and his wife stayed up until daybreak.  In the morning, they recovered the complainant’s tights and panties and a small knife and a SIM Card from the spot where the complainant was assaulted.

19.	They then took the complainant down to the Police Station and laid a report.  After that, they went to the hospital where the complainant was examined.  The Medical Report which was marked for identification only did not show the presence of spermatozoa in the complainant’s vagina on examination nor were any physical lacerations noted on her genital area or other parts of her body.

20.	I accept without evidence to the contrary all that the State witnesses have told the Court about the complainant being called out of the house and taken to the back of the house where she was forcefully undressed off her tights and panties.  I accept that her aunt and uncle were held up at gun point by one Teddy Kenneth while his accomplice (the accused) was struggling with the complainant not too far away from them.  I accept that the complainant left her tights and panties behind when she shrugged off her assailant and fled after hearing Teddy Kenneth tell her assailant that he will take his turn when he finished.  I accept that the tights and panties with a small knife and SIM Card were recovered from the scene the next morning by Ginsy and his wife Dinais.  I accept also that Teddy Kenneth and his accomplices were armed with firearms and that they issued threats of physical violence on Ginsy before the complainant came out of the house.  I accept that it was a bright moonlit night and that Teddy Kenneth, and his friends were joined by two others including Livingstone Liosi after the complainant and her aunt and uncle were safely back inside the house.  And I accept that the Medical Report did not reveal the presence of spermatozoa in the complainant’s vagina or injuries to her genital area or other parts of the body.  I accept also that both the accused and Teddy Kenneth are known to Ginsy and his wife Dinais as they lived in the same area together.  I accept that the complainant did not know them well as she had just recently moved in with her aunt and uncle after completing school.

21.	So, was the accused positively identified as the person who came with Teddy Kenneth on the morning in question to Ginsy’s house and assaulted the complainant?

22.	Mr Palek submitted that this is a question of who to believe.  I do not think so.  There are no two versions of facts here.  The only version here is from the State and since the accused chose not to testify, all that I am left with is the State’s evidence.  This, however, does not mean that I will accept the evidence without assessing its reliability on the important question of identity.

23.	The accused is known to Ginsy and his wife.  It was a bright moonlit night and things happened in an area where everyone was pretty much in close proximity to each other.

24.	While identification is an issue, it appears from cross-examination of the State witnesses that the accused identity was not an issue at all and that what was in contention was whether the accused penetrated the complainant.

25.	Notwithstanding that, I must still warn myself of the dangers of identifying the accused in the prevailing circumstances.  This is not a case of identification at all, but that of recognition of a known person by State witnesses – by sight and by voice.

26.	But having said that, there is no shadow of a doubt that the complainant’s assailant was the accused Preston Paulus.

27.	The next question is did he penetrate the complainant’s vagina?

28.	Again, the only evidence worth considering and in the absence of corroborating medical evidence, is that of the complainant and to some extent those of Ginsy and Dinais.

29.	There is now no need for corroboration in sexual offences and the trial judge is no longer required to warn himself of the dangers of convicting an accused person on the uncorroborated evidence of the complainant. (Section 352A of the Code) This, however, does not mean that the Court will convict indiscriminately, or on flimsy evidence, uncorroborated or otherwise. Hence, in a case where the complainant is very young, there may still be need for corroborating evidence, be it by a medical report or a recent complaint, as the case may be.

30.	The law is also clear that all that is required to prove penetration is the slightest entry of the penis or other body part or object into the complainant’s vagina or anus or mouth.  There need not be full penetration. 

31.	The term “vagina” is not defined by the Code, but I do not think that it should be ascribed the technical medical meaning which the Oxford Concise Medical Dictionary, 8th Edition, defines as – “the lower part of the female reproductive tract: a muscular tube, line with mucus membrane the cervix of the uterus to the exterior.  It receives the erect penis during coitus…”

32.	The other parts of the female genitalia are the labia majora and labia minora which collectively form the labium which the Oxford Concise Medical Dictionary again defines as –

“A lip-shaped structure, especially either of the two pairs of skin folds that enclose the vulva.  The larger outer pair are known as the labia majora and the smaller inner pair the labia minora”.

33.	And ‘Vulva’ is defined again by the same dictionary as “the female external genitalia.  Two pairs by fleshly folds – the labia majora and the labia minora – surround the openings of the vagina and urethra and extend forward to the clitoris.”

34.	I am of the view that reference to the vagina by the Criminal Code is a reference generally to the female genitalia including the external part called the Vulva which comprises the labium - the labia majora and labia minora.  Hence, the insertion of a penis, or other body part, or object, to any extent, into the outer part of the female genitalia is sufficient to constitute penetration, and that is because the vagina as we laymen understand it does start from the vulva itself.

35.	Coming back to the instant case, the complainant said she was penetrated by the accused.  Dinsy said he could tell that he was having sexual intercourse with the complainant by his movement.  Dinais reached the same conclusion but went a little further by saying in cross-examination that she saw the accused penis entering the complainant’s vagina.  Dinais claim, however, is preposterous to say the least, but it does not anyway contradict the complainant’s evidence.

36.	The Medical Report is not supportive of penetration, but that does not necessarily mean that there was no penetration for there could indeed have been.  There was no suggestion that the complainant was a virgin in which case she would have sustained a ruptured hymen.

37.	Here, the accused undressed the complainant.  He took off her tights and panties and commenced the act of penetrating her.  The complainant said that he did penetrate her, and I do not think, given what I have said about the definition of the vagina or female genitalia that it matters whether he fully penetrated her vaginal orifice or just a part of the external part of the genitalia.  The complainant obviously would have felt the entry of the penis into the outer genitalia, i.e., the vulva and that is all that is required to constitute penetration. So, despite the absence of corroborating medical evidence, I am satisfied that the accused penetrated the complainant’s vagina, however, slightly.

38.	Finally, there is no doubt in my mind that the complainant did not consent to be sexually penetrated by the deceased.

39.	I am, therefore, satisfied beyond a reasonable doubt that the State has proved its case and I return a Verdict of Guilty.

Ordered accordingly.
_______________________________________________________________________
The Public Prosecutor:	Lawyers for the State
The Public Solicitor: Lawyers for the Prisoner