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State v Irie [2019] PGNC 312; N7973 (21 August 2019)

N7973

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 1089 OF 2018

STATE

V

AUGUSTINE IRIE

Kiunga: Manuhu, J
2019: 14, 15, 21, August

CRIMINAL LAW – Particular Offence – Rape – Accused a policeman – Complainant a detainee – Consideration of the evidence

Case Cited:

NIL

Counsel:

J. Apo, for the State
E. Sasingian, for the Accused

21^st August, 2019

1. MANUHU J.: The accused, Augustine Irie, was charged with rape. The indictment pleaded that on 31^st March 2018, at Kiunga, he sexually penetrated Lettica Gorgom by inserting his penis into her vagina without her consent.
   
2. It was alleged that Lettica was taken to the police station upon her mother’s request to be locked up in the cells to teach her a lesson for stealing from her. She was placed in the cells and in the early hours of 31^st March, the accused took her out for her to go home but instead, after walking around town, they eventually returned to the police station where the accused grabbed her, took her to the roadside bushes and sexually penetrated her.
   
3. The accused denied the charge.
   
4. The prosecution evidence comprises of Lettica’s oral testimony, recent complaint evidence by her mother, the medical report and the record of interview. The accused gave evidence and tendered his written statement.
   
5. The complainant was medically examined on 4^th April 2018 so the result of the examination doesn’t help that much. I note however that corroboration is no longer required in a rape case. It was tendered by consent and a doctor was not called to explain the findings in the medical report. What is however clear from it is that the complainant had an infection from a recent or previous sexual encounter.
   
6. The evidence of the complainant on the alleged rape is that she was placed in the cells by the accused on instructions by her mother at about 7:30PM on 30^th March. The cell gate was not locked. She spent the night there until the next day. While there, the accused was occasionally checking on her. At one stage, the accused gave her a green can but she refused. The accused insisted that she drink it so she pretended to drink. When the accused was out of sight, she poured the contents out and hid the can.
   
7. Then at about 4:00AM, the accused came to her. He was drunk. He said he was leaving so if she wanted to go home, she could go with him. She followed him out. There were two other policemen at the station, one of whom was Isaac. They told the accused not to take her out but he didn’t take heed. The accused and the complainant went to buy buai and then they went to a location where the accused asked the complainant whether she wanted beer. She said she drank Warrior only so he bought a Warrior for her but she didn’t drink. She poured out the contents when the accused was not looking.
   
8. While they were walking around town, he told the complainant that he risked his job by taking her out so she should give him K500 to share with the other 2 policemen at the station. She didn’t have any money. Then instead of going to Parama Kona where she lived, the accused told her to return to the police station. Somewhere near the market, the accused called to the complainant who was walking ahead to go back to him. He then told her that since she didn’t have any money, they should just have sex instead. The complainant refused and told him to just take her to the cells.
   
9. On the way to the police station, the accused pulled the complainant to the nearby grasses and started touching her. Then he pulled off her trouser with one hand while the other hand was on her mouth. He bit her neck and kissed her – her trousers fell off and he put her on the ground. He bit her tummy, thighs and then he licked her vagina. Then he put his penis into her vagina and had sex with her. He then turned her over to penetrate her from the rear but she pushed him away. He then told her to get up and get dressed and they returned to the station where she was placed in the cells.
   
10. The accused doesn’t deny the reason for the detention of the complainant and does not deny that he took the complainant out of the cells and that they walked around town. He denied giving the green can to the complainant. He said he was on duty until 5-6:00AM on 31^st March. He went to the Police Station at 6-6:30AM and saw that no policeman was there. He went to the cells and told the complainant to get up. He told her that he would walk her home. They followed the road towards Lagoon Kona but at the end of the police barracks road, he realised that he could land himself in trouble for aiding a prisoner to escape so they returned to the police station. As they walked in, PPC, Michael, and Sergeant Keai were washing a vehicle. He then placed the complainant in the cells.
    
11. The complainant’s story is materially different to that of the accused. One said there was sexual intercourse and one said there was no sexual intercourse. It is obvious that one of them is not telling the truth. Who would that be?
    
12. I have considered the submissions by both counsel and the evidence. I have reached a conclusion as to who is truthful and who is not. That conclusion was reached after considering the following matters.
    
13. It was raised by defence counsel that the conversation between the complainant and her mother on the second time the mother visited the complainant on 31^st March while she was in the cells is not clear. It is not clear whether the complainant told the mother that she was sexually assaulted; or that she was hurt; or that a policeman played with her. I am of the view that the mother is not a sophisticated woman. It is not necessary to be precise about the words they used during their conversation. What matters most is that the complainant told her mother something which prompted her to immediately lay a complaint with the police. Her complaint led to the arrest of the accused.
    
14. It was also contended that on 31^st March, the mother went to see the complainant twice but the complainant did not say anything the first time the mother went to see her. Therefore, she could have made up the story to secure her release from custody. I am of the view that because the complainant knew the reason for her detention, she must have realised and accepted that she deserved to be in the cells. In any case, if she was angry with anyone, it would be her mother, not the accused. There is evidence that the accused belted the complainant when she was brought in but I don’t think it was enough for the complainant who was only 17 to manufacture such serious allegation against the accused when she was still in the police cells, and the accused was a policeman.
    
15. It was pointed out that the complainant had been stealing from her mother and had been lying to her mother. Therefore, she cannot be accepted as a witness of truth. I am of the view that as a 17 year old girl, it would be easier to steal and lie to her mother. It would be harder for a 17 year old girl to make a false allegation against a policeman.
    
16. The other point raised by defence counsel related to how the complainant’s trouser was taken off. She said the button fell off and the trouser fell down. It was the mother who restored the button. However, the mother gave evidence that she did not do anything to the trouser. I have examined the trouser. It is made of strong material. It is possible that the button could have fallen off and if that was so, it was easy to push the button back into its original position. I have also examined the photographs of the trouser. In one photograph, the button was clearly out of position and was hanging by a few threads. From the photograph which is more reliable that the actual trouser, it is clear that some force was applied for the button for it to be dislodged as shown in the photograph. This corroborates the complainant’s story that the accused pulled her trouser and it fell down.
    
17. Furthermore, the accused said the time was 6-6:30AM when he took the complainant out of the cell. The complainant said it was 4:00AM when he took her out of the cell. What I do not understand is that it was already daybreak if the accused released her at 6:00AM. Kiunga is a small town. Why couldn’t the accused let the complainant go to her house by herself? It was not necessary for him to walk her home. I am of the view that the complainant’s timing is right. Her timing is supported by the evidence of Sergeant Mark Keai who said that at about 6:00AM, he saw the accused and a young girl coming into the police station. It is clear therefore that the accused and the complainant left the station well before 6:00AM. On the complainant’s evidence, I find that they left the station at around 4:00AM.
    
18. The accused said that while they were out, he realised that he could be in trouble for aiding an escape so he took the complainant back. The accused had been a policeman for seven years. He could have figured that out before she took the complainant out. He was told by Isaac Mogia and the other policemen not to take the complainant out. I am of the view that he chose to take the complainant out at 4:00AM in defiance of the advice from the two policemen because he had other motives.
    
19. The accused denied giving the complainant a green can but the discovery of a green can in the cells by Senior Sergeant Degoe Sopela corroborates the complainant’s story that the accused told her to drink a green can in the cells.
    
20. The complainant’s story that the accused was drunk in the early hours of 31^st March is also supported by the uncontested evidence of Sergeant Keai. When Keai went to work at around midnight both Isaac Mogia and the accused “were drunk”. And when he was under the under the influence of liquor, like everyone else under the influence of liquor, what is hard when you’re normal becomes possible.
    
21. The accused said that after he was served the committal file, he noticed that the complainant’s medical report showed that she had a vaginal infection. To prove that he was innocent, he went for a medical check-up and the result was that he did not have an infection. I have never come across an accused person in a rape case in my 30 years of criminal practice undergoing a medical examination to prove his innocence. If the accused was that intelligent, he would have known that it was wrong for him to take the complainant out at 4:00AM. It is more likely that he subjected himself to medical examination to see if he was infected, after sexually penetrating the complainant.
    
22. It can be argued that if he was not infected, that means he could not have sexually penetrated the complainant. In the absence of a medical explanation, I am unable to say whether the complainant’s infection was transmittable. In any case, the accused was examined in July of 2018 which was 4 months after the event. The health of the accused from March to July is unknown. Therefore, the result of his examination does not exclude him from the alleged rape.
    
23. In a case like this, one of the most important question to ask is if the complainant is making up the story, why would she come up with such a lie that has very serious consequence for the accused? She was only 17 at the time of the offence. She first made the claim to her mother on 31^st March when her mother visited her in the cells. The claim to her mother was within the police station. The accused was a policeman. The accused is related to her father. The accused is married to her mother’s cousin. In all the circumstances, it is very unlikely for her to be make up the story to secure her release from the cells on 31^st March.
    
24. In the end, in all the circumstances, I have reached the conclusion that the accused is not telling the truth. The complainant is telling the truth. I accept the version of facts as recounted by the complainant, especially that the accused did sexually penetrate her and it was without her consent.
    
25. Accordingly, I find the accused guilty as charged.
    

Verdict: Guilty as charged.
______________________________________________________________
Pondros Kaluwin, Public Prosecutor: Lawyer for the State
Leslie Mamu, Public Solicitor: Lawyer for the Accused