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State v Jerry [2020] PGNC 490; N9221 (4 December 2020)

N9221


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR NO. 1262 OF 2018


THE STATE


V


RODNEY JERRY


Alotau: Toliken, J.
2019: 08th November
2020: 04th December


CRIMINAL LAW – Trial – Spousal rape – Three counts – Consent – Whether grudging consent constitutes effective consent – Whether principle of grudging consent is applicable in light of 2002 amendments to Criminal Code – Consent freely and voluntarily given – Verdict – Not guilty on all three counts - Criminal Code Ch. 262, s 229A (1)(2)(3).
Cases Cited:
Papua New Guinea Cases


The State v Michael Rave & Ors [1993] PNGLR 85
The State v Kapi Jas (2010) N4013
The State v Yali (2005) N2932


Overseas Cases


Holman v The Queen [1970] WAR 2
Black v Corkery (1988) 33 ACR 134


Counsel:


A Kupmain, for the State
N Wallis, for the prisoner


JUDGMENT ON VERDICT


4th December, 2020

  1. TOLIKEN J: The accused Rodney Jerry was indicted with three counts of raping his de facto wife, an infraction against Section 347 (1) of the Criminal Code (the Code). These are:

Count 1: On 30th June 2013 at Kitava Compound, Alotau, he sexually penetrated Sharon Kadada without her consent by inserting his penis into her vagina.

Count 2: On an unknown date in 2015 at Kitava Compound, Alotau, he sexually penetrated Sharon Kadada without her consent by inserting his penis into her vagina.

Count 3: On an unknown date in 2016 at Kitava Compound, Alotau, he sexually penetrated Sharon Kadada without her consent by inserting his penis into her vagina.


THE ALLEGATIONS


  1. The complainant Sharon Kadada was an Elementary School teacher. The accused is employed by the Department of Education as a Standards Officer with the Milne Bay Division of Education in Alotau. They lived together at the Kitava Compound, Alotau. In 2010, they started a relationship which developed into a de facto marriage. The relationship lasted about 6 years. They had two children from the relationship.
  2. The allegations of rape stem from three instances of sexual intercourse between them which the complainant allegedly did not consent to.
  3. The first incident allegedly happened on 30th June 2013, three days after the complainant was discharged from the hospital after giving birth to their first child. It is alleged that she was still bleeding and sore when the accused had sexual intercourse with her without her consent.
  4. In respect of the second incident, the State alleged that it is the accused’s practice to ask for sex from the complainant whenever he bought presents or gifts for her. And it so happened that on a date unknown in 2015, the accused bought her a suit. Before he gave it to her, he uttered the following words, “You know the payment for this on the bed.” The complainant gave in to him and had sexual intercourse with him because at the time she was without a job and was completely reliant on him.
  5. The last incident allegedly happened on an unknown date in August 2016 at around 11.00p.m. The accused had wanted to have sex, but the complainant refused so he held her head down against the floor. Out of fear the complainant gave in and had sexual intercourse with him.

PLEA

  1. The accused did not deny that he had sexual intercourse with the complainant on the dates in question. He, however, denied that the complainant did not consent. Hence, pleas of Not Guilty were entered for each count.

ISSUES

  1. The issue to be tried is whether the complainant consented, and if she did, whether consent was freely and voluntarily given.

THE LAW
9. The offence of rape is provided by section 347 as follows:


347. Definition of rape.


(1) A person who sexually penetrates a person without his consent is guilty of a crime of rape.

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

(2) Where an offence under Subsection (1) is committed in circumstances of aggravation, the accused is liable, subject to Section 19, to imprisonment for life.


10. Section 347A of the Code defines "consent" as "free and voluntary agreement." Hence, for a person to have consented to an act of sexual penetration, or any sexual activity for that matter, he or she must have freely and voluntarily or willingly agreed to being sexually penetrated or to the sexual activity. Section 347A goes on to say that the following circumstances will not constitute consent:


  1. the person submits to the act because of the use of violence or force on herself/himself or r someone else; or
  2. the person submits because of the threats or intimidation against that person or someone else; or
  1. the person submits because of fear of harm to herself/himself or someone else; or

d) the person submits because she or he is unlawfully detain; or

e) the person is asleep, unconscious or so affected by alcohol or another drug so as to be incapable of freely consenting; or

  1. the person is not capable of understanding the essential nature of the act or of communicating his or her willingness to participate in the act due to mental or physical disability; or
  2. the person is mistaken about the sexual nature of the act or the identity of the person; or

h) 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

  1. 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.
11. In determining whether a person consented or not, this provision also says that the court shall have regard to the following:


(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.
12. Section 347B further provides that it is not a defense that the accused person believed that the other person consented to being sexually penetrated where the accused person's belief arose from his self-induced intoxication, or reckless or willful blindness, or where the accused person did not take reasonable steps, in the circumstances known to him at that time, to ensure that the person was consenting.


13. Corroboration is no longer required to convict a person on a charge of rape or any other offences under PART IV – Division 7 of the Code. Section 352A of the Code provides that 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.


14. This, however, does not deprive the court of the duty to require corroboration in matters which are not that straight forward. For instance, corroboration may be required where the complainant is very young or mentally challenged, or the alleged offence took place at night or in poor lighting where the assailant is not known to the complainant or in the absence of a medical report. (The State v Kapi Jas (2010) N4013)


ELEMENTS OF OFFENCE
15. To secure a conviction the State must prove the following beyond a reasonable doubt:


1. The accused.

2. Sexually penetrated with his penis or other body parts or object.

3. The complainant's vagina or anus or mouth.

4. Without her consent.


THE EVIDENCE
16. The State called only the complainant and tendered the following documentary exhibits by consent:


  1. Accused Record of Interview dated 03rd July 2018 – Exhibit A.
  2. Statement of Arresting Officer Wendy Amokos dated 13th July 2018 – Exhibit B.
  3. Statement of Corroborating Officer Amos Peter dated 13th July 2018 – Exhibit C.

17. The Defence called the accused only.


FINDINGS OF FACT
18. From the evidence I find the following. The complainant, an Elementary School Teacher and the accused a Standards Officer with the Milne Bay Division of Education, met in 2010 and formed a de facto marriage. They had two children and were living at Kitava Compound on the outskirts of Alotau Town until about 2016 when the complainant left and moved to Port Moresby. The accused had a first wife and attempts by him to get the complainant to cohabitate with him and the first wife were unsuccessful.


19. The accused does not deny that he had sexual intercourse with the complainant on the dates alleged in the indictment. He admitted that he asked the complainant for sex on 30th June 2013, 3 days after she had given birth. The complainant for her part does not dispute that she did not protest verbally or physically resist.


20. The accused also admitted that he had sexual intercourse with the complainant on an unknown date in 2015. On that occasion he had bought her a suit. He gave the suit to her and told her that she knew what the payment or reward for it was (i.e., “You know the payment for this on the bed.”) – words she understood to mean that the accused wanted sex in return. Again, she simply agreed without any verbal protestations, nor did she resist physically.


21. And on the last occasion, in August 2016, the accused had returned from one of his inspection rounds in the schools. The complainant was agitated about certain things including issues with the accused’s first wife. The accused was not in the mood to argue and so he held the complainant’s head and pressed it down against the floorboards. After that he asked for sex, and they had sexual intercourse.


22. Sometimes after that the relationship turned sour and the complainant left the accused taking her children with her. During the time they were separated the accused did not regularly support the complainant and her children financially. The complainant in fact admitted in cross-examination that she decided to lay these complaints against the accused because of his neglect of her and her children.


ISSUES
23. It appears to me that the complainant’s - and ultimately the State’s case - is that she reluctantly, if not grudgingly consented to the alleged acts complained of – which did not constitute free and voluntary consent.


24. So, against these, the questions for me are:


(1) Did the complainant consent to the acts of intercourse complained of, and if she did, was it given freely and voluntarily?

(2) Is the State’s evidence on all three counts sufficient to prove beyond a reasonable doubt that the sexual intercourse was not consensual?


DELIBERATIONS AND CONCLUSIONS
25. I have heard submissions from counsel and considered them against the evidence before me.


26. The defence essentially argued that the State had not proven its case beyond a reasonable doubt for all three counts. The complainant did not physically or verbally protest or express in any way or form that she did not consent. There was no intimidation or force other than the fact that the accused nagged his wife for sex on those three occasions and she grudgingly consented to sex which is consent, nonetheless. There is no evidence of force, threats, intimidation, or fraud, hence this could not have been rape.


27. Mr. Wallis relied on two Australian authorities for his proposition that consent may be reluctant or grudging. First in Holman v The Queen [1970] WAR 2, the Criminal Court of Appeal of Western Australia said:


“A woman’s consent to intercourse may be hesitant, reluctant, grudging or tearful. But if she consciously permits it, providing her permission is not obtained by force, threat, fear or fraud, it is not rape.”

Then, in the New South Wales case of Black v Corkery (1988) 33 ACR 134, Young J said:
“The mere fact that pressure is put on the person consenting is not of itself sufficient to invalidate the consent or to make it other than a voluntary choice ... a reluctant consent or a grudging consent is nonetheless a consent ... However, pressure may get to such a degree that the act will lose its voluntariness ... Just where the point is, is a question of fact.”
28. Mr. Wallis submitted that the principle in Holman had been applied by Doherty J in in The State v Michael Rave & Ors [1993] PNGLR 85 and by Cannings J in The State v Yali (2005) N2932. Valid consent was given on all three occasions and had the accused not neglected the complainant during those 6 years in which they were separated, she would not have laid these complaints against him.


29. The State submitted that the principle of grudging consent is no longer applicable in this jurisdiction since the 2002 amendments to the Criminal Code, with reference to Section 347A (Definition of consent). Mr. Kupmain cites a passage by Cannings J. in The State v Yali (supra) where his Honour relevantly stated that the following factors must be considered when deciding whether consent was given freely and voluntarily:


30. When discussing the accused’s submissions in that case, his Honour said:


Defence counsel’s submission was that even if the complainant indicated by words or conduct, express or implied, that she was hesitatingly, reluctantly, grudgingly, or tearfully consenting, that was enough to signal consent. That is the principle that emerges from Holman’s case, a decision of the Western Australian Court of Appeal, applied in PNG, for example, by Doherty J in The State v Michael Rave and Others [1993] PNGLR 85. It is a moot point whether that principle should be applied any longer in light of the detailed statutory guidelines introduced by the 2002 amendments to the Criminal Code. (Underlining mine)


31. Mr. Kupmain submitted that in the instant case, the complainant was suffering from an after birth medical condition and therefore she did not freely and voluntarily consent to that first act of sexual intercourse, despite of the fact that consent may have been grudgingly given. Furthermore, counsel submitted that according to medical experts or doctors, having sex right after birth was a health risk. It is to be noted, however, that no medical experts were called to confirm this. And the same applies to the other two occasions alleged in the indictment.


32. I do agree with Cannings J, that the principles of grudging or reluctant consent may not now be applicable in this jurisdiction since the 2002 amendments and in the face of Section 347A which provision appears to have made the principle nugatory.


33. Applying the factors identified by Cannings J in The State v Yali to the case before me, I find that there was no evidence of force, threats, intimidation, or violence, physical or otherwise, on the complainant on the first and second counts.

Count 1


34. What happened there was that in respect of the first count the accused asked for sex three days after the complainant was discharged from hospital after giving birth and the complainant agreed and they had sex. Yes, the complainant may still have been bleeding and may have been in discomfort, even in pain, but she did not tell the accused that. There was evidence by the accused that she in fact said she understood his desire for sex as he had not had sex with her for a long time. This was not negatived by the State. If that were the case, then it cannot be said that her consent was grudgingly or reluctantly given.


34. But what about the suggestion by the State that it was against medical or expert advice to have sex so soon after birth? Despite his assertion to that effect, Mr. Kupmain unfortunately did not call expert evidence to support his contention. This was probably a case that required medical evidence, but none was forthcoming which is understandable because the complaint was laid some 6 years after the event, obviously motivated by other considerations other than a genuine desire for criminal prosecution. It appears to me more a case of getting back at the accused for deserting her and her children. A recent complaint would have also assisted the State’s case but there was none.


34. Hence in respect of the first count, I find that the State has not proven beyond a reasonable doubt that the complainant did not freely and voluntarily consent to being sexually penetrated by the accused.



Count 2


35. As to the second count, I am not similarly satisfied that the act of sexual intercourse was not consensual. On that occasion the evidence was that the accused had bought the complainant a new suit. He gave it to her and said “You know, payment is on the bed” or words to that effect. It appears that the accused often does that whenever he gives the complainant a present. That night they had sex. There is no evidence of threats, violence, intimidation, or force of any sort. If the complainant did not consent or reluctantly consented at that, she did not show it overtly in any manner or form.


36. Section 347A (3) of the Code says that 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 that a person is not to be regarded as having consented to a sexual act just because she did not physically resist or did not sustain physical injury or that she consented to a sexual act on a previous occasion.


37. That is clear enough. However, this does not relieve the State of its duty to prove its case on criminal standard. This proviso does not reverse the burden of proof in any way. If it does or if it is argued that it does, then it runs against the presumption of innocence provided under Section 37 (4) of the Constitution.


38. On this count, the statement by the accused that he will get his payment on the bed cannot be interpreted in any way other than the accused requesting for his marital due. It cannot objectively (or even subjectively) be interpreted as a veiled threat or anything of that sort.


30. The State has not proven this count beyond a reasonable.


Count 3


31. Finally, to the third count. This happened on a night after the accused had returned from one of his school visits and was obviously stressed and tired. The complainant complained to him about family issues including some raised by his first wife. She kept on pestering him until he got frustrated and pressed her head down on to the floorboards with force. They ended up having sex.


32. It may be true that the accused had asked for sex before this, but I am not convinced that he did what he did to the complainant because she refused his request for sex. Rather he was frustrated by the complainant pestering him over family issues. In any case, the complainant said that it was their normal practice to make peace after an argument by having sex. And that night that is exactly what they did. That leads me to the inevitable conclusion that the act of sexual intercourse on that third occasion was freely and voluntarily consensual.


33. I must reiterate that I am satisfied that the complainant was motivated by malice to bring criminal prosecution against her de facto husband because he had neglected her and her children. If it were a genuinely criminal complaint, then she ought to have acted promptly and not wait 6 years. She was not impeded in any way whatsoever from pursuing criminal prosecution.


VERDICT/ORDERS


34. For those reasons I find the accused NOT GUILTY on all three counts of rape. The accused is acquitted and discharged forthwith and his bail monies shall be refunded to him as will any cash sureties paid by his guarantors.


Ordered accordingly.


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


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