N7925
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1205 of 2018

THE STATE

V

GEORGE KULAP

Kerevat:  Anis J
2019:  16, 24, 25 & 30 July

CRIMINAL LAW – verdict - 4 counts of aggravated rape – section 347(1) & (2) of the Criminal Code Act Chapter No. 262 – whether indictment and brief facts consistent with evidence adduced on each counts - whether there was one or more acts of sexual penetration - whether victim did not consent to all 4 instances of sexual penetration –whether there were use of violence or threats on all 4 instances of sexual penetration - whether victim should be believed in relation to all 4 instances of sexual penetration – whether there were serious inconsistencies in the victim’s testimonies

Facts

The accused was charged with 4 counts of aggravated rape.  The alleged incidents were said to have occurred at Kabaira village which is in the Gazelle District of East New Britain.  The accused was the in-law of the victim having married the victim’s elder sister.  The accused denied the allegations.

Held

1.	Evidence adduced in relation to count 1 was contrary to the indictment and its brief facts, and it was dismissed on that basis, and it was noted that the accused should not have been called to answer to it.

2.	The State failed to establish the element lack of consent in relation to counts 2 & 3 of the alleged aggravated rape.

3.	Count 4 was discarded by the State because no evidence was adduced to establish the said count.

4.	The accused was acquitted on all 4 counts of aggravated rape which had been brought under section 347(1) & (2) of the Criminal Code Act Chapter No. 262.

Cases Cited:

State v. Robert Depit: Cr No. 233 of 2019

Counsel:

Ms J. Batil, for the State
Mr A Tunuma, for the Accused

VERDICT

30th July, 2019

1.	ANIS J:	This was a trial on verdict.  It was heard on 16 and 24 July, 2019.  I reserved my ruling to today at 9:30am.

2.	This is my ruling.

BACKGROUND

3.	The accused is charged with 4 counts of aggravated rape under section 347(1) and (2) of the Criminal Code Act Chapter No. 262 (the Criminal Code).  All the alleged incidents were said to have occurred in the village where the accused and the victim (named) come from, that is, at Kabaira village (the village).  It is situated in Reimber/Livuan LLG which is in the Gazelle District of East New Britain.

4.	The accused is the brother in-law of the victim.  He is married to the victim’s elder sister.  The 4 counts of aggravated rape may be summarised as follows.  In relation to count 1, the incident was said to have occurred sometime between 1 January and 31 July, 2018, at night time in the village and at the house of the victim and her family.  It is alleged that the accused called out and woke-up the victim from her sleep.  It is alleged that the victim came out of her room.  It is alleged that the accused grabbed hold of the victim and pulled her out of the house.  Outside the house, it is alleged that the accused forcefully undressed the victim.  It is alleged that he laid the victim on the grass outside the house and sexually penetrated her without her consent by inserting his penis into her vagina.  It is alleged that the accused had threatened the victim that if she reported the matter, that he would cut her with a bush-knife.  Allegations in relation to count 2 are as follows.  On one afternoon, between 1 January and 31 July, 2018, in the village at the victim’s house, the accused forced the victim into a kitchen-hut.  There, he sexually penetrated the victim without her consent by inserting his penis into her vagina.  After that, the accused threatened the victim and told her that he would cut her if she told anyone about the incident.  Allegations in relation to counts 3 and 4 are as follows.  Both incidents occurred in the village inside the accused’s house during the night, between 1 January and 31 July, 2018.  On both occasions, the accused sexually penetrated the victim without her consent by inserting his penis into her vagina.  The victim alleged that the accused had threatened to cut her with a bush-knife at both these occasions.

5.	The State alleges that the offences of rape on all 4 counts were committed under aggravated circumstances, that is, it alleges that the accused had threatened the victim to use offensive weapon, namely, bush-knife, against the victim, and secondly, that he had breached a position of trust, authority or dependency given the fact that he was or is the brother in-law of the victim having married her elder sister.

EVIDENCE

6.	The State called the victim as its only witness.  It also tendered a total of 3 exhibits.  The Defence called the accused as its only witness.  The accused gave unsworn evidence in Court, and as a result, he was not subjected to cross-examination.

ABANDONING COUNT 4

7.	The State has abandoned count 4 of the indictment.  This was revealed by the State when it presented its written submission on 25 July 2019.  It submits that it did not adduce any evidence to prove the facts as alleged under count 4 of the indictment and its brief facts.  I will therefore discard that in my deliberation.  

ISSUE

8.	The main issue of course is whether the State has proven beyond reasonable doubt that the accused had, on all the 3 counts or less, sexually penetrated the victim without her consent by inserting his penis into her vagina.  Subject to that, whether the accused had on all these 3 counts or less, threatened to use weapon, namely, bush-knife upon the victim.

STATING THE EVIDENCE

9.	I think the best way for me to deal with the victim’s testimony is to state what she had said in relation to each of the counts in the indictment.

10.	For count 1 and before going into the evidence, I note the following.  Firstly, in the original indictment, sexual penetration without consent was said to have occurred outside the dwelling house of the accused in the village.  The State had applied before the arraignment to amend the indictment, and leave had been granted forthwith.  As a result, the place of the incident alleged under count 1, was changed from outside the accused’s dwelling house to outside a dwelling house.  In the brief facts that supported count 1 of the indictment, the place where the alleged rape was said to have occurred was outside the house of the victim’s family in the village.  However, when the victim testified in Court, in relation to count 1 and relation to where the incident was alleged to have occurred, she told the Court that the incident occurred outside the house of the accused.  She also testified that the accused’s house was far from her family’s house.

11.	I will make this count an exception in terms of stating the evidence, and I will rule on it now.  I find the flaw to be serious, that is, of what is pleaded in the indictment and its brief facts, to what was adduced in evidence, concerning the location of the alleged incident.  In this case, the accused has already pleaded not guilty upon being arraigned to count 1, that is, to the accusation of aggravated rape outside the victim’s family house.  And now, we have the victim’s evidence which states that the incident occurred somewhere else, and not as alleged in the indictment and its brief facts.  What does this mean? I ask myself.  I will adopt what I have stated in the case of State v. Robert Depit (2019) N7920.  At paragraph 20, I said, and I quote in part:

An indictment is presented with its brief facts before a trial shall commence.  The alleged facts are read out together with the indictment at arraignment.  And with that, an accused person is immediately asked to take his plea, which is based on what has been read out to him or her in Court.  The accused is then trialled based on the indictment and the alleged facts.  If evidence is adduced at the trial and it reveals different facts altogether other than what the accused had been arraigned on, then logically and in my view, the trial cannot continue because the new facts have not been pleaded and put to the accused on arraignment.  I will also say this.  The right to a fair trial or protection of the law under section 37 of the Constitution, would be at stake if such practice (i.e., to rely on a new set of facts as it is later revealed in evidence as opposed to the set of facts that had been originally pleaded together with the indictment) is permitted by the Court.  An accused person has a right to be properly informed of the charges, and he or she shall also be afforded sufficient time to prepare to defend himself or herself.  See section 37(4)(b) &(c) of the Constitution.  

12.	I will dismiss count 1 on preliminary considerations.  This is a count where the accused should not have been called to answer to.

13.	Moving on, this is what the victim said in relation to Count 2.  She said the incident occurred at their family kitchen-hut.  She said it was in the afternoon in July of 2018.  She said she was at their kitchen scraping coconut.  She said there was no one else there.  She said her brother, sister and mother were at the garden about 2 kilometres away from their house.  She said the accused came to her, removed her trousers, laid her on a mat and inserted his penis into her vagina.  She said she did not allow him to have sex with her.  She said before he had sex with her, he threatened her with a bush-knife.  She said when he was having sex with her, she screamed out loud.  She said she also tried to run away but he told her that he would cut her if she did.  She said after he had finished having sex with her, he also used his bush-knife to threaten her.  The victim also mentioned another alleged rape incident near their kitchen sometime in February of 2018.  This alleged incident was not pleaded as a count in the indictment.  I will mention it because I will address it later below in my judgment.  The victim said that she was alone at their house that afternoon.  She said the accused came and pulled her hand and took her to an area next to the kitchen.  There, she said the accused removed her clothes and inserted his penis into her vagina without her consent.  She said the accused told her after having sex with her, that he would cut her with a knife if she reported the incident.

14.	In relation to court 3, this is what the victim said.  She said the incident occurred in the village in January of 2018.  She said the incident occurred at night time inside the house of the accused.  She said she was asleep in a room on her own.  She said her sister’s room was next to hers.  She said she was sleeping inside her room when the accused entered her room and called her.  She said he laid her on a mat and sexually penetrated her without her consent by inserting his penis into her vagina.  She said she remained sleeping when he was having sex with her.  She answered “no,” when she was asked whether she protested when the accused was having sex with her.  When she was asked why she did not protest, she said that the accused had a bush-knife with him at that time which he had used to threaten her with.

15.	As for the defence, the accused was called to give his testimony.  He gave an unsworn testimony in Court, in answer to the 4 counts of aggravated rape.  He denied all the allegations alleged in each of the counts.  He also gave unsworn evidence in relation to an incident in January of 2018.  He said at that time, he, his wife and the victim had gone to watch a movie which was shown at a neighbour’s house.  He said his wife was tired and left early to sleep at their house.  He said he and the victim continued to watch the movie.  He said the victim told him that she would go first to the house to sleep.  He said she told him that when he comes to the house, that he should wake her up.  He said when he later went to his house and called the victim, he said she came out of her room.  He said they both went outside the house next to a water tank.  He said the victim removed her clothes and laid on the grass.  He said they both had consensual sex there.  He said after that, they both went in the house and slept.  

16.	During cross-examination of the victim, the defence put to her the allegation that would later be raised by the accused and as stated above.  The victim said that she could recall the event.  She confirmed that incident and said it occurred on 16 January 2018.  She firstly denied that she had told the accused to wake her up when he returned to the house on that night.  She said the accused had forced himself upon her and that she did not consent to having sex with him at that time outside his house next to the water tank.  

CONSIDERATION

17.	I note that counts 1 & 4 have been determined.  

18.	To me, I find that the State has adduced evidence in regard to the elements of the offence of aggravated rape under counts 2 & 3.  It really now comes down to the question of whether I should believe the story of the victim or whether the evidence was tenuous.  That is, whether she has told the truth to the Court; whether the Court should believe her story in regard to counts 2 and 3 of the indictment.  I observe that corroboration is not required in these instances, and I refer to section 352A of the Criminal Code.  It states, and I quote:

 On a charge of an offence against any provision of this Division, a person may be found guilty on the 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.

19.	I have observed the demeanour of the victim.  During cross-examination, when it was put to the victim that the accused only had sex with her once which was at his house next to the tank, the victim looked upset and almost angry to the question, and in a forceful voice, she said and I quote, “no, 4 times, one was at the kitchen.”  To me, that was the only time where I observed that the witness had reacted with much interest, intensity and directly to the questions that were asked by the defence.  But in almost all occasions, and this goes as well for the State when it was adducing evidence from the victim, I observed that the witness was slow in her response; she kept looking downward.  At one point, she was asked by the defence counsel to speak up aloud and to look up to counsel when giving her answers.  I observed that she did not do that as per the said request.  I take note of the State’s explanation for the victim’s behaviour in Court, that is, in its written submission.  The State concedes that the victim’s demeanour may not be impressive in Court.  But it submits that the accused is a known person to the victim in that he is married to the victim’s big sister.  The State submits that the alleged offence has violated a “taboo” and there was a feeling of shame by the victim which explained her behaviour in Court.  

20.	I find the explanation by the State to be valid and reasonable, and I take note of that.  But at the same time, I also observed this from the victim.  She did not look serious in her testimony.  In fact, I observed that she looked uninterested; she was or looked absent minded at most times in the witness box; simple questions had to be repeated to her because she did not listen or follow.  She did not give her evidence following logical sequence according to her own story.  

21.	This brings me to this point in relation to count 2.  In examination-in-chief, the victim referred to 1 instance of aggravated rape at her kitchen area.  She said it occurred in July of 2018.  However, during cross-examination, the defence put to the victim that the other incident had occurred at the kitchen in February of 2018.  The victim answered, “Yes,” and the defence proceeded to adduce evidence of the said incident.  And it was during cross-examination that the victim said that there were 4 instances of aggravated rape and she said that one of them occurred at their kitchen-hut.  At that moment, the victim appeared to have given 2 instances of aggravated rape at her kitchen area, one in July of 2018 which she had testified in her examination in chief, and the other in February of 2018, which she had revealed in her cross-examination.  The victim also appeared to state clearly that the incident of February of 2018 was the only kitchen incident out of the 4 instances of aggravated rape alleged, which of course contradicted her earlier evidence she gave in-chief. The prosecution, I note, did not clarify these in re-examination, that is, of whether there were 2 instances of aggravated rape at the kitchen area of the victim’s family’s house that had occurred in February of 2018 and July of 2018, or whether it was just 1 instance of aggravated rape in her family’s kitchen which was in July of 2018 and whether the victim had gotten the month of the year wrong in cross-examination.  The State, when presenting its written submission, submits on point that there were 2 kitchen incidents, one as alleged under count 2 which occurred in July of 2018, and the other was not pleaded but which was adduced in evidence which occurred in February of 2018.  The defence on the other hand submits that the kitchen incident was the same incident and therefore it submits that it had many inconsistencies from the accounts as recalled by the victim in her cross-examination.  

22.	I have considered the evidence in chief.  There is no clarity there as to whether the 2 incidents were different or whether it was just one kitchen incident.  The variance in the accounts recalled by the victim in both instances is not big and it could therefore infer to mean that these incidents were separate as alleged by the State in its submission, or it could also be inferred as the same incident and therefore show inconsistencies in the accounts as alleged by the defence in its submission.  Without clarity, I cannot therefore contemplate whether there were 2 alleged rape incidents in the kitchen area of the victim’s house or whether it was just one incident as alleged in the indictment and the brief facts, which was in July of 2018.

ELEMENTS OF THE OFFENCE

23.	The elements of the offence, aggravated rape, under section 347(1) & (2) of the Criminal Code are, (i) a person, (ii) who sexually penetrates, (iii), another person, (iv), without his or her consent, and (v) under aggravated circumstances.

FINDINGS

24.	These are my findings.  I am satisfied beyond reasonable doubt that the accused and the victim may have had sexual intercourse on 1 or 2 occasions under counts 2 and 3 of the indictment.  I am however, not satisfied that the State has established beyond reasonable doubt that there was lack of consent by the victim at the time of the sexual encounters between the accused and the victim under counts 2 and 3.  

25.	I also find the evidence adduced on each elements of the offence by the State in relation to the counts 2 and 3, to be tenuous.  I find the evidence to be weak, shaky, fragile as well as questionable.   And I have much doubt in my mind as to whether the victim was telling the truth about these incidents, and in particular, where she has said that she did not consent to instances of sexual penetrations under counts 2 & 3 of the indictment.

26.	I am also not satisfied that the State has established beyond reasonable doubt that the accused had used violence or force to rape the victim under counts 2 and 3 of the indictment.

27.	I have given more weight to the poor demeanour of the victim during the course of her testimony in Court.  I have also given more weight to the vast inconsistencies and lack of clarities in the evidence of the victim.

ORDERS OF THE COURT

28.	Verdict:	Not guilty
________________________________________________________________
Office of the Public Prosecutor:	Lawyer for the State
Office of the Public Solicitor:	Lawyer for the Accused