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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 611 OF 2019
BETWEEN:
THE STATE
AND:
SAURIK PISE
CR NO. 613 OF 2019
BETWEEN:
THE STATE
AND:
BADE UFRAFO
(Co-Accused)
Vanimo: Rei, AJ
2021: 18th, 19th & 22nd July
CRIMINAL LAW - S.347(1) – Rape – Co-accused involved – Consent not an issue – Identification of accused – Whether rape took place – Prosecutrix drunk – bought liquor to house of one of the accused person – Saurik Pise.
Cases Cited:
R -v- Paivori Aravapo [1954] N60
Legislations cited:
Section 347(1) Criminal Code Act
Counsels:
Mrs. T. Aihi, for the State
Mr. K. Masket, for the Defendants
22nd July, 2021
1. REI AJ: BACKGROUND: The State alleges that on the 1st of January 2018 the two accused persons sexually penetrated the prosecutrix Madonna Opewui in the house belonging to one of the accused persons: Saurik Pise.
2. The two accused persons were later arrested by the Police in Vanimo WSP upon the laying of a complainant by the prosecutrix on the 2nd of January 2018.
3. According to the information laid by the Police on the two accused persons, both accused persons were charged on the 1st of January 2021 and remanded in custody awaiting their records of interview to be conducted.
4. A record of interview for the accused Saurik Pise was conducted on the 10th of January 2018 and the record of interview for the accused Bade Ufrafo was conducted on 11th January 2018.
5. Both accused persons vehemently and voluntarily denied any involvement in the matter.
6. Resulting from the record of interview, both accused persons were charged under Section 347(1) of the Criminal Code Act (“CCA”). The State also invoked Section 7(b) & (c) of the CCA.
7. After the commencement of the trial on 20th Tuesday July 2021, Ms. Aihi for the State submitted that the only issue before the Court is one of “identification”. Consent is not in issue. She then tendered by consent the following documents:
Record of Interview for Saurik Pise (Pidgin Version) Ex “A”
(dated 10th January 2018)
Record of Interview for Saurik Pise (English Version) Ex “B”
(dated 10th January 2018)
Record of Interview of Bade Ufrafo (English Version) Ex “C”
(dated 11th January 2018)
Record of Interview of Bade Ufrafo (Pidgin Version) Ex “D”
(dated 11th January 2018)
Medical Report dated 1st January 2018 Ex “E”
STATE WITNESS – MADONNA OPEWUI
9. The State called the prosecutrix: Madonna Opewui who gave evidence. She was the only State witness. No other witness was called.
10. She gave evidence that on the 31st of December 2017 she bought 4-5 cartons of beer and started drinking them with some friends at 4:00 pm on that day into late night going past 12 midnight into the early hours of the 1st of January 2018.
11. The beer finished sometimes in the night whereupon she got a 40-ounce Brandy and went to the house of the accused Saurik Pise.
12. Upon arrival at the house she stood at the pavement whilst in a drunken mode and asked Saurik Pise if she could join himself, the other co-accused Bade Ufrafo including Neimani Kasanda and others.
13. She also gave evidence that there were a number of other men in the residence of Saurik Pise at that time.
14. It could appear from her evidence that she was the only female amongst that group of men who were involved in the revelry welcoming the 2018 New Year, as no evidence of the presence of other woman was given by this witness.
15. She said when she became overly drunk, she went in the living room and after went into a bedroom which did not have a door (to it) and slept, heavily intoxicated.
16. While sleeping in the bedroom under the heavy influence of liquor, she said two young men had sexual intercourse with her. No evidence was given she desisted though she said she was very drunk.
17. At this juncture, I wish to point out that both Counsels adopted the view that the prosecutrix was then “raped”.
18. I disagree with this as no proof of rape had been established on evidence thus far.
19. The prosecutrix however stated in evidence that she did have sexual intercourse with several men one of whom was Neimani Kasanda whom I note is the son of the Senior Probation Officer here in Vanimo WSP, Ben Kasanda.
20. No evidence was given by her that she objected to such advances in any way.
21. She then gave evidence that both Saurik Pise and Bade Ufrafo took turns between the hours of 4 am and 5 am on the 1st of January 2018.
22. During the sexual intercourse with Saurik Pise and Bade Ufrafo, again she did not give evidence that she protested or tried to struggle free. It was after all that is alleged to have happened that she went, sat at the verandah of Saurik Pise and with tears in her eyes asked Saurik Pise why he did this to her that morning.
23. The accused Saurik Pise said he did not do anything to her and got a knife and threw it onto the floor and chased her out of the house.
24. During examination in chief when asked whether she actually saw the co-accused persons: Saurik Pise and Bade Ufrafo, having sexual intercourse with her, she responded in the positive.
25. She said she saw Saurik Pise and Bade Ufrafo get on top of her, saw them in the face whilst having sexual intercourse with her.
26. She said she knows them both as permanent residents of Transmitter Community for quite some time and that they are neighbors and shared food and other necessities of life to help make ends meet.
27. Her version of evidence was not changed during cross-examination.
DEFENCE WITNESSES – SAURIK PISE & BADE UFRAFO
28. The accused persons gave evidence agreeing with the prosecutrix on all the evidence she gave except the evidence that they had sexual intercourse with the prosecutrix.
RAPE
29. The issue before the Court is not of consent. The issue is whether in all the evidence, the two co-accused had sexual intercourse which amounted to the offence of rape recognized under Section 347(1) of the CCA.
30. Further or alternatively whether the actions of the prosecutrix and that of the co-accused persons amount to rape under Section 347(1) of the CCA. If I am to assume the story of the prosecutrix that both co-accused had sexual intercourse with her without her consent, then there is rape. If not, there is no rape by definition.
31. Section 347 (a) or (b) of the CCA provides inter alia the definition of rape:
“A person who has carnal knowledge of a woman or a girl,
not being his wife –
(a) without her consent; or
(b) with her consent, if the consent is obtained –
(i) by force; or
(ii) by means of threat; or
(iii) by means of intimidation; or
(iv) by means of false and fraudulent representation
as to the nature of the act; or
(v) in the case of a married woman, by her husband
is guilty of a crime.
“Penalty: Subject to Section 9, imprisonment for life”
(Emphasis added.)
32. The offence of rape is a very serious offence the penalty for which can be equated with the offence of wilful murder as it is the trespass of a woman’s sexual organ without her explicit voluntary consent with the use or application of any of the unlawful means provided for under Section 347 (a) or (b) (i), or (ii) or (iii) or (iv) or (v) above.
33. The State submitted at the commencement of the trial which was agreed to by the defence that consent is not in issue in the matter except identification.
34. If indeed I am to believe the evidence of the prosecutrix Madonna Opewui that she identified the co-accused as having sexual intercourse with her which amounts to the offence of rape under Section 347(1) of the CCA, do the actions or otherwise of the co-accused amount to rape considering the strict provisions of Section 347 (a) or (b) (i), (ii), (iii), (iv) or (v) of the CCA?
35. In the criminal charge of rape, the evidence of ‘consent’ is an essential element.
36. If consent is not an issue, the question remains whether if consent was given or not, there is the presence of force, threats or intimidation or fear of bodily harm or personation involved prior to or after the alleged act(s) of sexual intercourse.
37. The evidence adduced in Court is that the prosecutrix was very drunk at the time she went to the house of the accused Saurik Pise, stayed there until the morning during which time acts of sexual intercourse were performed by several men during the night and in the early hours of the morning between 4 am and 5 am. She said the co-accused also had sexual intercourse with her.
38. According to the evidence of Bade Ufrafo, two young men who had sexual intercourse with the prosecutrix were not charged by the Police because they had paid compensation to the prosecutrix of K6200 and himself and Saurik Pise were arrested and charged because they did not meet the compensation demands of the prosecutrix. This evidence was not contested by the State either in cross examination or submissions.
39. Although the State says consent is not an issue, I tend to think that it is still an essential element in this case. That if the prosecutrix agreed or consented to the sexual acts, then there is no reason to believe that the sexual acts amounted to the offence of rape.
40. If, however, the prosecutrix did not consent then anyone or more of the criteria provided under Section 47(1)(b) must be proven.
41. There is no evidence before the Court that consent was not given or was obtained by force or personation involved.
42. The case of R -v- Paivori Aravapo [1954] N60, the evidence given in that case by the prosecutrix failed to prove beyond reasonable doubt that the act of sexual intercourse occurred without the consent of the prosecutrix.
43. There are matters which the Court should consider as to whether consent was given or not; matters such as time and place (when and where) the acts of sexual intercourse occurred, removal of clothes to allow intercourse, evidence of protests of the victim, such as cries or hisses from her.
44. The background of this complainant involves a time of celebration and revelry for the New Year 2018 and that the prosecutrix bought liquor and took them to Surik Pise’s house at the odd hour of 4 am on 1st January 2018, where the alleged acts of sexual intercourse occurred in a house. The prosecutrix did not give any evidence that she resisted the approaches. Additionally, when this matter was reported to Police a total of 4 men were reported two of whom were not arrested and charged as, according to the evidence of Bade Ufrafo, they paid compensation of K6200.00 each to the prosecutrix and that himself and Saurik Pise were arrested and charged because they did not pay any compensation.
45. He stated in Court he did not comply with those demands because he said, “I did not rape her.”
46. I find therefore that, even if the two accused persons penetrated the prosecutrix for which, she says she perfectly identifies, I cannot find that such was against her consent as the State maintains that consent is not an issue.
47. If consent is not in issue here, should I draw the conclusion that the prosecutrix was in any event, raped by the co-accused persons by definition of rape under Section 347 of the CCA because Section 347(b) says that ‘consent’ must be obtained by force or by means of threats or intimidation or by fear of bodily harm or by means of force or by nature of act or by personating her husband. This evidence is not before the Court.
48. It is difficult to draw any such conclusion of rape in that the element of consent as defined in Section 347 has not been satisfactorily proven let alone identification. Even so, should I lean towards the contention of the State that no consent was given and that consent was obtained by force for which there is no iota of evidence.
49. I do not agree with this contention.
50. As a consequence of my above reasons, it is not safe that a verdict of guilty be returned.
51. I therefore find that a case has not been made out and that both accused be acquitted and discharged. All bail monies be refunded.
________________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyer for the Defendants
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