N7954

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 933 OF 2017

THE STATE

V
NIGEL ASABONA

Alotau:  Toliken, J
2019:  19th, 24th July, 13th August 

CRIMINAL LAW – Particular offence - Rape simpliciter – Trial – Defence of consent – Alleged rape in heavily populated compound – Opportunity to escape and call for help – Failure to do so, against logic and common sense – A lie by accused in record of interview not enough to vitiate doubt in State’s case – Verdict – Not Guilty – Criminal Code Ch. 262.
 
Cases Cited:
Papua New Guinea Cases

The State v Elvis Sixtus: CR NO. 737 of 2014 (unnumbered and unreported judgment dated 24th March 2017 at Esa’ala.)

Overseas Cases Cited:

Browne v Dunn (1893) 6 R 67

Counsel:

J. Apo, for the State
N. Wallis, for the accused 

JUDGMENT ON VERDICT

13th August, 2019

1.	TOLIKEN, J:     On the 19th of July 2019, the accused pleaded not guilty to an indictment, charging him for one count of rape (simpliciter) contrary to Section 347(1) of the Criminal Code, Chapter 262.

ALLEGATIONS

2.	The State alleged that on the 29th day of October 2016, at Alotau, the accused sexually penetrated one Dinna Septinius by inserting his penis into her vagina without her consent. It is alleged that on the date in question, the complainant was walking home from a school graduation ceremony.  On the way, she met a boy by the name of Jacob. When they came to Sanderson Bay, the accused who was with some other boys approached her.  As the boys surrounded them, the complainant called each of the boys and the boys left. The accused, however, did not.  He grabbed the complainant by her arm.  She resisted but he maintained his grip on her and told her to follow him and she did so out of fear.

3.	The accused took the complainant forcefully to a house where he forcefully had sexual intercourse with her without her consent. It is alleged that the complainant submitted to the accused’s demands because he forced her to do so, and, he also had a knife which he used to threaten her.

PLEA

4.	The accused did not deny that he sexually penetrated the complainant but said it was consensual.

ISSUE

5.	Hence, the issue for my determination is whether the complainant did not consent to being sexually penetrated by the accused.

THE OFFENCE

6.	Section 347 of the Code provides for the offence of rape in the following terms:-

“347 – Definition of Rape
(1)	A person who sexually penetrates a person without his/her consent is guilty of a crime of rape.

Penalty:  Subject to Subsection (2), imprisonment for 15 years.

(2)	…

7.	“Consent” is defined by Section 347A (1) of the Code as “free and voluntary agreement”. Subsection (2) of Section 347A enumerates some circumstances which will not constitute consent. These are exhaustive but include situations where the complainant submits to the act because of the use of violence or force, or because of threats or intimidation, or because of fear of harm or because he or she is unlawfully detained.

EVIDENCE

8.	The State called only the complainant but also tendered the following documents by consent:

(1)	The accused’s Record of Interview (Exh.“A”).
(2)	Affidavit of Dr Grace Kariwiga aiming her Medical Report – “B”.
(3)	Statement by the Arresting Officer – Sheila James “C”.
(4)	Statement by the Corroborator Wendy Amakos – “D”.

9.	The accused for his part gave sworn evidence but did not call any witnesses.

10.	I have heard the evidence and find that there is indeed no dispute that the accused met the complainant at Sanderson Bay on the night of 24th October 2016.  There is, however, some dispute as to the time they met.  The complainant said it was around 7 pm.  She said she was with a boy named Jacob – a former class mate of hers whom she had met returning from his graduation – when the accused arrived with some other boys namely Kati, Sam, Tony, Joshua and Junior.

11.	The accused on the other hand said that he met the complainant much later that night.  He had been with relatives at the Informal Market from around 7.00 p.m. to 9.00 p.m. when the market closed.  His relative left but he had to wait for his mobile phone which was on charge.  When his mobile phone was charged, he left and met the complainant at the Marine Wharf.  This was after 9.00 p.m.

12.	There was no other witness to verify or confirm what time it was that they met, but it can perhaps be safely inferred that it would have been sometime between 7.00 pm and 9.00 pm.

13.	The complainant said she was with Jacob when the accused and the other boys met them.  The boys dragged Jacob into the dark while the accused held her by the hand and told her that another boy by the name of Raphael wanted to see her and that he was to take her to him.  She protested telling him that it was late and that her parents would be expecting her.  The accused, however, insisted that she follows him.  She tried to get away but his grip was too strong.  

14.	He then told her to follow him up the shortcut (track) at JIT to where Raphael was.  The accused walked ahead of the complainant and on the way up, she made a dash to escape by running back down to the main road.  The accused, however, managed to stop her.  He then told her to walk ahead while he followed.  The complainant said that she noticed the accused had a small knife and an umbrella.  It was raining at the time and they were wet.

15.	When they arrived at the accused’s house, the complainant asked for Raphael.  The accused told her that he was in the other house telling stories.  The complainant then sat on the doorway while the accused went over to the house next door.  When he returned, he told her to remove her shirt and skirt as it was wet and to hang it up on the line.  He then told her to remove her trousers leaving only her bra and tights on.  This happened inside the house.  He then told her to move in and lie down on the bed while he forcefully removed her bra and tights. He then climbed over her and had sex with her.  

16.	She said he was rough with her.  This is consistent with the Medical Report by Dr Grace Kariwiga who noted in her examination of the complainant, the next day that the complainant’s genital area showed 3 superficial tears – one measuring 1x3 mm and the other two measuring 3x2 mm just below the opening of the vagina on either side of the midline in the perineum.  There were minor bruises nearby as well.  The Medical Report was not contested.  

17.	The complainant said the accused lasted a while, but after he was spent she stayed with him for about 2 hours.

18.	In cross-examination, she said after the accused had ejaculated, she turned around giving her back to him and lay beside him for 2 hours before the accused’s girlfriend came and found them in the house and assaulted her (complainant).  The accused told his girlfriend to leave them alone.  She left and reported the matter to the complainant’s family.  Her brother later came up and took her away.

19.	The complainant said that the accused did not threaten her with the knife physically but the presence of the knife in the room prompted her to submit to him. She said the accused had placed the knife next to bed.

20.	The accused on the other hand testified that after he met the complainant, he asked her to follow him to his place.  He walked ahead while she followed behind.  He said he was carrying only an umbrella and not a kitchen knife.  He also denied being drunk.

21.	The accused said that he had asked the complainant if he could take her out and she agreed.  He denied that he threatened her.  There were a lot of people around according to the accused. 

22.	It was raining and as they were going up the track. He slipped and slid backward bumping into the complainant and they both fell down.  He apologised to her and they continued on.

23.	They came to a place below Middle Town where there are oil palm trees.  He told the complainant to wait for him under the palm trees while he went off to buy betel nuts and smoke.  When he returned, he gave her the betel nuts and they went down to the house.

24.	When they arrived, he told her that she needed to change as it had been raining and her clothes were wet.  She went into the room, removed her clothes and lay down on his bed.  She then invited him to lie down with her which he did. She then asked him to get on top of her and they had sex.

25.	As they were having intercourse, the accused said the complainant kept on telling him how good she felt. She then climbed on top of him and continued having sex with him, pushing her buttocks up and down while he reciprocated.  When he ejaculated, he went weak and dozed off while the complainant lay awake beside him.  This would have been around 10.30 pm. Soon after this, his girlfriend arrived and found them together and assaulted the complainant.  The accused told her to leave them alone and she left and reported the matter to the complainant’s family.

26.	The accused said he asked the complainant if she wanted to leave but she said she’ll stay with him until morning.  Her brother, however, came and belted her up very badly and took her away.

27.	The accused said that there were about 5 – 6 houses nearby.  One was about 8 – 9 metres away, 1 about 15 metres away and 2 were about 2 metres away.  And people were in their houses at that time.  

28.	The accused maintained in cross-examination that he did not forcefully have sex with the complainant.  He also denied that he had a knife with him, or that the complainant followed her to his house out of fear.

29.	He was referred to Q & A 27 of his Record of Interview where the following exchange is recorded –

27. 	Around 11.00 pm that same night, Diane’s big brother
     came and took her away from you, is that correct?

Ans. 	Not true, we stayed till morning.  We walked down and She was walking to her house while I went back to the house.

30.	The accused denied giving the recorded answer saying that he had in fact told the Arresting Officer that her brother had come up that night and took her down after his girlfriend had reported the matter to them.

31.	At this point, I must say that parts of the accused’s evidence were not put to the complainant and hence breached the rule in Browne v Dunn (1893) 6 R 67.

32.	For instance, it was not put the complainant that the accused took her up to the oil palm trees below Middle Town to buy smoke and betel nut.  Nor was the way she is alleged to have actively participated in the act of sexual intercourse put to her.  It was not put to her she invited the accused to lie with and that she climbed on top of him pushing herself up and down while telling her how nice she was feeling. That part of the evidence is therefore disregarded. 

SUBMISSIONS

33.	Mr Wallis submitted that this was a case of consensual sex and that the complainant was never in anyway threatened.  If she was taken against her will up that track at JIT and then sexually penetrated against her will, it defies logic and common sense that she did not raise alarm, or shout for help given the fact that  there were people down by the Bay when the complainant was allegedly grabbed by the accused.  There were houses nearby and there was even an opportunity for her to make an escape as she was following the accused as they were climbing the track up.

34.	Mr Apo strongly submitted that the complainant could not have called for help because the accused was armed with a knife, which he did not use or threaten her with, but which presence nonetheless created fear in the complainant.  Mr Apo relied on my ruling in the case of The State v Elvis Sixtus, CR NO. 737 of 2014 (unnumbered and unreported judgment dated 24th March 2017 at Esa’ala).  There, the accused had gone to the complainant’s house at night and asked for the complainant to assist him and his friends with his dinghy.  The accused was not armed but the complainant noticed that the accused’s friends were armed though they did not openly display the arms or use them. On a charge of armed robbery, I held that a constructive threat of violence existed and was established by the State.  The case, however, was dismissed when the State did not establish prima facie evidence of an intention to permanently deprive the complainant of his property.

DELIBERATIONS

35.	The outcome of the current case must depend on whose version is to be believed on a couple of crucial matters.  These are –

1.	Whether the accused forcefully took the complainant up to his place. 
2.	Whether he was armed with a kitchen knife which he is said to have stood beside the bed as he sexually penetrated the complainant.
3.	Whether the complainant had the opportunity call out for help or escape.

36.	I must say here that both the complainant and the accused gave evidence confidently.  They were both very collected, though I must say that the accused at times appeared to be too enthusiastic and prone to exaggeration such as when he was describing the act of sexual intercourse.

37.	There is no doubt that the accused had contradicted himself in respect of his answer to Q27 of his Record of Interview.  He sought to explain himself away by shifting the blame to the Arresting Officer for not recording his answer correctly.  Be that as it may, the Record of Interview was tendered by consent and so it stands to be taken at its face value.

38.	So, was the complainant taken up to JIT track against her will?

39.	There is no other evidence about this except that of the accused and the complainant.  The boy Jacob whom the complainant said she was with and witnessed what the accused did to her was not called.  His evidence was crucial to the case because it would have confirmed that the complainant was indeed taken against her will.  If this was indeed the case, then it would have set a sound and solid foundation for the State’s case.  Unfortunately, in the absence of any independent evidence on this point I cannot find either way. 

40.	Was the accused armed with a kitchen knife?

41.	Again, this is a matter of whom to believe.  The complainant said the accused did, while the accused denied having a knife that night.  The complainant said that the accused took the knife into the room and stood it beside the bed as he undressed her forcefully and then sexually penetrated her.

42.	However, this incident happened at night.  The main road would have been dark.  There may have been lighting there from street lights but the Court was not told if indeed there was.  Furthermore, the track up at JIT would have definitely been dark unless there were lights there and again the Court was not told of what the lighting was like up that track.

43.	Finally, the complainant said the accused stood the knife beside the bed in the room where the accused penetrated her.  What was the lighting like?  The complainant did say there was light, but how lighted up was the room?

44.	I am, therefore, again not in a position to find either way. The evidence does not leave me in a position to believe either the complainant or the accused.

45.	Now, did the complainant have the opportunity to call for help or escape from the accused?

46.	I find that from the very beginning of their trek up JIT to the accused’s house, the complainant not only had the opportunity to call out for help but also run away from the accused.  There were people around the Bay as both the complainant and the accused said.  They could have easily responded to any call for help from the complainant.

47.	At one stage, the complainant was walking behind the accused.  She said she did try to dash for freedom, but was quickly blocked off by the accused.  I do not believe her.  It is more likely that the accused collided into her as he slid down the muddy path when he slipped.

48.	The complainant had a further opportunity to escape, or call for help when they came to the accused’s house.  The accused had left her in the house briefly to go to the next house.  Why didn’t she make a dash for it or call for help?  She said she could not because the accused had returned very quickly and beside no-one would have come to her aid because the boys around there were all friends of the accused. Regardless of that, she had the opportunity to flee and to call for assistance but she did not.

49.	The complainant, therefore, had more than one opportunity to escape from the accused and/or call for help.  She did not and this will have a huge impact on the central issue here – whether she did not consent.

50.	In short, her failure to escape and call for help flies in the face of logic and common sense.  This was not the action of someone who was being held against her will let alone an unwilling partner in what was to happen shortly after.

51.	The act of sexual intercourse itself and what preceded it is very much disputed with the complainant saying that the accused forcefully removed her bra and tights while the accused said she did that herself.

52.	What is clear though is that the accused did have rough sex with the complainant.  That is evident from the Medical Report which showed some minor lacerations to the complainant genitals.  That, however, is not evidence of forced sex or rape because rough sex, consensual or not, can cause bruises to a woman’s vagina including the vulva, particularly if she is not well lubricated.  Here, it was not put to the complainant how lubricated she was, because if she wasn’t then this would have contributed to the lacerations noted on her genitals by Dr  Kariwiga.

53.	And a final intriguing part of this case is that after the act of intercourse, the complainant said (and she was corroborated by the accused) that she turned her back to the accused and laid there awake for close to 2 hours.  What woman who had just been raped would lie be next to her assailant for almost 2 hours?  Would not a reasonable woman in such circumstances want to get away from her assailant as soon as possible? 

54.	 Here, the accused was spent and went to sleep.  The complainant did not grasp the opportunity to finally escape.  The door wasn’t lock as the complainant herself said. So, instead of quickly escaping, the complainant chose to lay there besides the accused until the accused’s girl friend happened upon them.  And even after the accused’s girl friend had assaulted her, the complainant did not leave.  She stayed on until her brother came for her and took her away. 

55.	Now, that to me is not the behaviour of someone who had been raped.  Everything that the complainant did defies logic and common sense.

56.	But what about the accused apparent lie about the complainant spending the whole night with him until morning?  People tell lies all the time for different reasons.  For some, it is evidence of a consciousness by guilt and an attempt to conceal the truth.  For some, and it frequently happens to those detained by the police, the lie might be a defensive reaction to a potentially unpleasant situation.  Be that as it may, I do not think that what the accused said in his Record of Interview is sufficient enough to corroborate any of the State’s evidence or remove, if not, vitiate the doubts I have expressed.

VERDICT

57.	I conclude, therefore, that the State has not proven beyond a reasonable doubt that the complainant did not consent to being sexually penetrated by the accused.

58.	I return a Verdict of Not Guilty.

Ordered accordingly.

________________________________________________________________
P Kaluwin, Public Prosecutor:  Lawyer for the State         
L B Mamu, Public Solicitor: Lawyer for the accused