N9241

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1255 OF 2016

THE STATE
V
JEFFERY KULA

Alotau:  Toliken, J
2018:   31st July, 7th August
      					       
CRIMINAL LAW – Particular offence – Aggravated Rape - Trial – Accused takes complainant into bushes and sexually penetrates her – Caught in the act by complainant’s father – Lack of consent – Medical evidence – Torn hymen – Blood observed - Report does not state whether fresh tear or that complainant was not having her menstrual period – Defence case – Consensual sex –Boy/girl friendship –  Prior consensual sexual encounter – Consensual sex – Not negatived –   Verdict – Not Guilty – Criminal Code Ch. 262, s 347C(1)(a). 

Cases Cited:

Nil

Counsel:

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

VERDICT
7th August, 2018
1.	TOLIKEN J: 	On 31st July 2018, the accused pleaded not guilty to an indictment charging him with one count of aggravated rape pursuant to Section 347C (1)(a) of the Criminal Code, Chapter 262 and trial ensued.
2.	The State alleged that on 16th November 2015, at around 10.00a.m, the complainant Mary Theresa Bruce was sent home from school by the Headmaster of Gibara Primary School where she was doing Grade 8.
3.	As she was walking past a cocoa block owned by the accused, the accused saw her and threatened her with a bush knife.  He took her into the nearby bushes and had sexual intercourse with her without her consent by inserting his penis into her vagina.  She was struggling and crying when her father – who was looking for her – heard her cries and went to the location and saw his daughter and the accused.  The accused fled and the complainant was taken to the Ulabo Police Station and later to the hospital.
4.	The accused raised the defence of consent.  Hence, the issue for the Court is whether the complainant consented to being sexually penetrated by the accused.
5.	Section 347C created the new offence of aggravated rape and provides:
“347C.  AGGRAVATED RAPE

Any person who sexually penetrates the vagina or anus or such other body part of another person with any body part, object or implement without consent –

(a)	whilst armed with a dangerous weapon or offensive weapon
or instrument; or
(b)	in company with one or more other persons; or
(c)	causes grievous bodily harm to a person, before, after or in
the course of the offence; or
(d)	of the victim a child under the age of 10 years,
is guilty of the crime of aggravated rape and shall be sentence to death.

6.	The accused does not dispute sexually penetrating the complainant but claims that it was consensual.  What then constitutes consent?
7.	Consent is defined by Section 347A (1) to mean “free and voluntary agreement”. Subsection (2) of Section 347A provides that a person does not consent to an act of sexual penetration in the following circumstances:
(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 other than the complainant.
                            
8.	Section 3 then directs the trial court to consider the following when determining whether or not a person has consented to the charged act:
(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.

9.	The State of course bears the onus of proving beyond a reasonable doubt that the complainant in this case did not consent to being sexually penetrated by the accused.

10.	The State called the complainant and her father.  And it tendered the following documents by consent:	

1.	The Record of Interview dated 9/2/16 (“A”).
2.	Medical Report dated 18/11/15 (“B”).
3.	Photograph of complainant (“C”).

11.	The accused for his part testified on Oath but did not call any witnesses.

12.	From the evidence, the following is not disputed. On the morning of 16th of November 2015, the complainant who was doing Grade 8 at Gibara Primary School, was sent home with other students by the headmaster at around 10:00 a.m.  She met the accused as she was passing his cocoa block.  The accused took her into the nearby bushes some 15 – 30 metres from the main road and had sexual intercourse with her by inserting his penis into her vagina.  They were caught in the act by the complaint’s father who had come looking for his daughter.  The accused fled leaving his clothes behind. The complainant’s father chased after him missing him with a spear/crowbar which he was armed with.  The complainant was then taken to the Ulabo Police Station where the incident was reported and referred from there to the Daio Health Centre then to the Alotau Police Station.  She was finally referred to the Alotau General Hospital for a medical check-up, but since it was already late by then she was asked to return the next day.

13.	The next day, she was examined by a Dr. Rodney Talo.  In his report dated 18th November 2015, Dr. Talo, among other things, relevantly observed:

“Abdomen – no distension, no bruising noted, no palpable masses.  Perineal examination noted a tear on the hymen 0.5cm which appeared to be bleeding.  The vaginal walls were normal.  The clinical history and examination was suggestive of sexual assault and penetrative sexual intercourse against the will of the victim”.

14.	The report does not state if a vaginal swab was taken or whether speculum examination for the presence of spermatozoa was done.

15.	At that time of the alleged incident, the accused was carrying a bush knife.  He also had a basket/bag with yellow matured betel nuts and was on his way to help clear the grounds at the recently completed Christ the King Church in preparation for its official opening.

16.	The complainant was 16 years old while the accused was 17 years old.  The accused attended Gibara Primary School the previous year where he completed Grade 8.  Both are from Gamadoudou Village.

17.	I now turn to the disputed facts.  The State’s case is essentially that the accused accosted the complainant as she was passing by his cocoa block. He dragged her into the bushes and there, threatened her with his bush knife and sexually penetrated her without her consent.  And as she was struggling and crying, her father – who had been looking for her - happened to be at the scene and the accused fled the scene.

18.	The defence’s case is that the accused and the complainant were in a relationship.  When they met that morning, the accused asked for sex and the complainant agreed.  They then walked into the bush and had consensual intercourse.

19.	From these, the following factual issues arise:

1.	Were the accused and the complainant in a relationship?
2.	 Did the accused drag the complainant into the bush, threatened
	 her with his bush knife and then sexually penetrate her, or did
	 they agree to have sex?

3.	 Did the complainant resist, struggle, and cry as she was being
	 penetrated by the accused?

4.	 Did her cries attract her father to the scene?

20.	The complainant’s evidence on these disputed facts is that when the accused met her, he attacked her with a bush knife and then dragged her into the bush some 15 – 30 metres from the main road.  He then asked to have sex with her, but she refused.  He, however, kept on forcing her and then pulled her further into the bush where he asked her again for sex and she again refused.  She struggled to get away from him, but he was too strong for her.  After a while, she, however, managed to break free and ran away from him.  He ran after her, blocking her escape and grabbed her very tightly and pushed her to the ground, undressed her and then had sex with her.  As he was penetrating her, he was saying “Kaikai Kan.” The accused continued as the complainant struggled and cried in pain.  It was at that point that her father came onto the scene.  The accused sensed that someone was coming so he ran away.  The complainant’s father chased the accused with a crowbar.  The complainant then reported what happened to her father and mother and she was taken to the Ulabo Police Station and later to the Daio Health Centre then to Alotau Police Station.

21.	The complainant’s father – Bruce Siliki testified that on the day in question, he and his wife had gone to a mediation at Wagawaga, but returned early to their village when the mediation did not eventuate.

22.	He does not say why he was looking for his daughter and how he knew that she had been sent home early from school. However, when she did not come home at 10:00 a.m., he went looking for her.  He heard her crying in the bush and saw the accused standing while her daughter was sitting down.  He chased the accused and missed him with a spear or pipe that he was carrying.  After the accused fled the scene, his daughter told him what the accused did to her.  He then took her to the Police Station and later to the Health Centre and then to the hospital.

23.	The accused on the other hand testified that on the morning in question, he was on his way to the “Christ the King” church grounds to help clean the grounds in preparation for the opening of its new church building.  He carried his bush knife and some matured yellow betel nuts in his bag.

24.	He met the complainant, who was returning from school as classes had been cancelled and students were sent home early, at the junction close to the church and they walked some 200 metres to his cocoa block.  The complainant asked him for betel nut, and he gave one to her.  She was not able to clean the nut herself as it was strong, so he cleaned it for her with his bush knife.  He then gave the betel nut back to her together with lime and mustard and she chewed.

25.	And as they were walking along, the accused asked the complainant for sex.  She agreed and they went into the bushes behind his cocoa patch or block looking for a safe place to have sex.  They then had consensual sex.  He denied threatening her with his bush knife or forcing her to have sex with him.  As they were having sex, he sensed that someone was coming, so he stood up while the complainant sat on a log.  That was when the complainant’s father came in and caught them red-handed.  He attacked the accused and chased him, missing him with a spear.  The complainant’s father then returned to his daughter and beat her up.  He heard her crying.

26.	The accused testified that he and the complainant were in a relationship which started in 2014 when he was doing Grade 8 and she was in Grade 7 at Gibara Primary School. He said that this was not their first time to have sex for in 2014 they had sex in the middle of that year at Enele Village.  He said he could not forget that time as it was his first ever experience with sex.

27.	So, did the accused drag the complainant into the bush threatening her with his bush knife and then forcefully have sex with her against her will?  Did she struggle as she was being dragged into the bush and as she was being penetrated and was, she crying?  And were they in a relationship and hence had consensual intercourse?

28.	The complainant’s evidence that she was crying as she was being sexually penetrated appears to be corroborated by her father who said that he heard her daughter crying as he was searching for her.  And when he arrived at the scene, he saw the accused standing obviously almost completely naked as he left nearly all his clothes behind when he fled.

29.	Now, I have some difficulty with the State’s evidence on this.  First, the incident took place some 15 – 30 metres from the main road.  Other students from Gamadoudou would obviously have been on the road after they were sent home by the Headmaster that morning.  They would have heard any cries for help if the complainant cried out as she was being dragged into the bush by the accused.  She said she could not cry for help as she was frightened.  However, at one point, she said she broke free from the accused and ran off.  Now, why didn’t she cry out or shout for help?  She would have known that some of her fellow students would be on the road, and they certainly would have heard her and come to her rescue.

30.	Her father Bruce Sikili said he went looking for her daughter when she did not return from school.  He did not say how he knew that classes had been dismissed that morning.  However, it’s not hard for the Court to infer that he would have been told by other students.  He also does not say why he went looking for her daughter at the accused person’s cocoa block.  Was it by mere coincidence that he happened to be there to hear his daughter crying in the bush?  Again, the only way he would have known where to look for her daughter was if he was so informed by her school friends who would have seen her, and the accused go into the bush.

31.	I am not satisfied that the accused threatened and dragged the complainant into the bush and forcefully had sex with her against her will.  And that is because if he did, the complainant, who would have known that other students or other persons would be passing by on the main road, would have raised the alarm and people would have responded immediately.  I do not believe her evidence that she broke free from the accused because if she did, she would have called for help.  She did not and that puts a lot of doubt into her story.

32.	But didn’t the complainant’s father go to the scene because of the complainant’s cries?  Now, given what I have said in respect of his evidence, I am led to hold that he was not attracted to the scene by the complainant’s cries at all.  He knew where to find the two and went there and it was only a matter of time before he would come upon them.  And it was not mere coincidence because obviously he was informed of her daughter’s whereabouts, a fact that he withheld from the Court. And there is no doubt that the complainant did cry out there in the bush, but not because she was being raped by the accused, but from the beating he received from her father.  What kind of father would remain cool when confronted with such a situation as this?  That the complainant’s father calmly questioned his daughter and then took her to the authorities is quite remarkable and flies against the normal reaction of a reasonable father.

33.	But was the complaint the accused’s girl friend.  Did they not have a previous sexual encounter in 2014?

34.	Mr. Kupmain for the State takes strong objection to the accused’s evidence that the two first had sex in 2014.  And his objection appears to be bolstered by the medical report which says that there was a tear of 0.5cm of the hymen “which appeared to be bleeding”.

35.	Now, the report does not appear to me to be saying positively that the hymen was bleeding but rather that it “appeared to be bleeding”. It does not state whether the tear that was observed was fresh, which would have been easy to ascertain given that the act of penetration happened only a day before.  The report does not state whether the complainant was not having her menstrual period to dispel any doubt that the tear was from the recent act of penetration.  The medical evidence, therefore, does not conclusively prove that the tear to the hymen was recent and this gives some credence to the accused’s evidence that they had a previous consensual encounter even though this should not in itself be seen as constituting consent. 

36.	Furthermore, no question was put to the complainant whether she was a virgin at the relevant time.  This was a perfectly legitimate and proper question which would have been asked by either side given the medical report and the fact that penetration was not contested.  In the circumstance, questions on the complainant’s virginity would not be scandalous of her.

37.	Finally, it appears that the complainant and the accused were in a relationship which may not have been known to the complainant’s parents but certainly to her peers – her school or classmates.

38.	For the above reasons, the State has not proved beyond reasonable doubt that the accused sexually penetrated the complainant without her consent.

39.	I find the accused not guilty and order that he be discharged forthwith. His bail is to be refunded as well as any sureties paid by his guarantors.

Ordered accordingly.

_______________________________________________________________________
Public Prosecutor:	Lawyers for the State
Public Solicitor: Lawyers for the Accused