Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Pala [2021] PGNC 586; N9402 (30 July 2021)

N9402

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1213 OF 2019

THE STATE

V

LANCE PALA

Kokopo: Suelip AJ
2021: 12^th, 13^th, 20^th, 21^st May & 30^th July

CRIMINAL LAW – trial – verdict – 3 counts of rape – s.347(1)(2) – alternative counts of incest – s.223 – accused alleged to be victim’s biological father –– accused denies sexual relationship with victim’s mother – accused took victim in because of curiosity – victim worked for accused – accused barren – no children from marriage of 30 years – witnesses’ credibility – inconsistencies in witnesses testimonies – not guilty – accused acquitted and discharged

Cases Cited

State v. So’on Torah (2004) N2675

Counsel

G Tugah, for the State
S Pitep, for the Accused

VERDICT

30^th July, 2021

1. SUELIP AJ: On 12 May 2021, you, Lance Pala, pleaded not guilty to 3 counts of rape pursuant to section 347(1)(2) of the Criminal Code. You also pleaded not guilty to alternative counts of incest pursuant to section 223 of the Code. Trial was conducted on the same day and concluded the next day with only the victim and you, giving evidence under oath for the State and in your defence respectively.

2. This is my decision on verdict.

Facts

3. The facts to your case are these. The State alleges that between 1^st September 2016 and 17^th September 2018, you, Lance Pala and the complainant namely, Margreth Teval were living together at Vunamami Ward 2, Kokopo, ENB. You are related to the complainant in that you are her biological father. The complainant was 30 years old at that time of the offending. You had a service station and had asked the complainant to help you run the business. The State alleges that during that period, you continuously sexually abused the complainant by having sexual intercourse without her consent. On an unknown date between 1 April 2017 and 30 April 2017, after hours, you allegedly lured the complainant into the store and sexually penetrated her there by inserting your penis into her vagina without her consent. You then ejaculated your sperm outside of her vagina. The second occasion of sexual penetration happened on an unknown date between 1 April 2017 and 30 April 2017, in the complainant’s room. You entered the complainant’s room whilst she was sleeping at night and sexually penetrated her without her consent. The third occasion happened on an unknown date between 1 April 2017 and 30 April 2017, in your office. You sexually penetrated the complainant without her consent in your office room. This happened during the daytime while there was no one around. After that, you sexually penetrated her many times. The complainant got fed up of what you were doing to her and ran away to Rakunai. She later told her partner and then her mother about everything and a complaint was laid, and you were arrested and charged with rape. The State alleged that your actions had contravened s.347(1)(2) of the Criminal Code Act charged you with 3 counts of rape. The State also charged you with alternate counts of incest under s.223 of the Code.

The offence

4. Section 347(1)(2) of the Criminal Code Act provides: -

Section 347 Rape

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

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

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

5. On the alternative charges of incest, section 223 of the Criminal Code provides as follows:

Section 223 Incest

A person who engages in an act of sexual penetration with a close relative is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.

6. For this Court to return a verdict of guilty on the charge of rape, the State must prove all the elements of the offence. These elements are:

(i) a person (identification)
(ii) sexual penetration of another person
(iii) lack of consent

7. For incest, the State must also prove beyond reasonable doubt the following elements:

(i) a person (identification)
(ii) sexual penetration of another person
(iii) who is a close relative

Issues

8. The issues are twofold:

(i) Whether you sexually penetrated the complainant without her consent?

(ii) Whether you sexually penetrated the complainant who is a close relative?

Evidence by consent

9. By consent, the State tendered the following evidence: -
   

Document Exhibit

(i) Record of Interview (Pidgin version) dated 6 May 2019 S1
(ii) Record of Interview (English version) dated 6 May 2019 S2

(iii) Statement of Senior Constable Belin Tololo (Corroborator)

dated 11/06/19 S3
(iv) Statement of Senior Constable Veronica Pagur

(Arresting officer) dated 11/06/19 S4

Summary of the State evidence

10. The State’s evidence comprises of documentary evidence tendered into evidence by consent and the oral testimony of the complainant, Margreth Teval.

11. The complainant testified that she is 34 years old and lives with her stepfather and 2 children at Rakunai village. She said she first met you in 2004 at Malabunga Secondary School and you told her that you were her biological father. When you opened your service station in 2016, she said you asked her to come assist with the operation of the service station. She said all went well until you started acting strange and asked her personal questions about her sexual relationship with her partner. She described the 3 instances of rape as clearly as possible and denied screaming for help or reporting these instances because of stigma and discrimination. She said she was ashamed to report but she never once agreed to having sex with you. She said further that there are other instances of rape up until June 2017 when she left to return to Rakunai because she was fed up with what you were doing to her.

12. In cross examination, she said her date of birth is 24 December 1987. She said her mother, now deceased had told her that she had a sexual relationship with you in 1985. She agreed that she did not scream out for help, nor did she report the matter due to stigma and discrimination. She said you treated her well and the reason she left to return to Rakunai was because she was fed up with what you were doing to her, not because you had bought a PMV bus and asked her to operate it from Rakunai.

13. She agreed that you paid for her school fees at Kokopo Business College and part of her school fees at International Training Institute. She also said there was a compensation of K5,000 and 200 fathoms of shell money paid by you to her family for what you did to her.

14. In re-examination, she said her stepfather and her mother’s sisters knew you were her biological father. She said she did not report the rape until a year later because it haunted her everyday and that is why she had to report the matter.

Summary of Defence evidence

15. You are the only person to give oral evidence in your defence. You denied sexually penetrating the complainant. You also denied that the complainant is your biological daughter. The reason you say that is because you are barren. You do not have any biological children from your 30 year marriage. You say you had a medical report done in 1987 but do not have a copy of that report now. You say you heard people talking about the complainant being your daughter and you became curious and eventually met her. You knew her mother from Lae when you were a student at the University of Technology in 1985 although you denied you had a sexual relationship with her mother then.

16. In cross examination, you say you were curious to know if the complainant was your daughter and you were keen on establishing that father-daughter relationship even though you knew you were barren. You wanted an heir to your business and thought you would take the complainant in and show her your business. You knew she may not be your daughter but kept her on to assist you with your business.

17. You do not deny paying for the complainant’s school fees at Kokopo Business College and International Training Institute, respectively.

18. You denied contributing to or making payment of compensation to the complainant’s stepfather and said it was your family who did this without your knowledge. You said the compensation was not for the alleged rape but it was for acknowledging the step father’s contributions towards the complainant’s upbringing.

19. In re-examination, you repeated that you were curious to know if the complainant was your biological daughter after you heard rumors that she might be your daughter. You say that although you knew you were barren, it was a human thing to do to get to know the complainant. You also say that the compensation was paid by your relatives without your knowledge because you did not have any children and the complainant was moving into your business too much that they had to pay the compensation, and this was meant to keep her away.

Analysis of evidence

20. The State has adduced evidence from the complainant to prove the elements of the offence of rape. The complainant said it was you who sexually penetrated on 3 separate occasions without her consent. Be as it may, there are some inconsistencies in the sequence of events that unfolded from when the first meeting was between you and the complainant.

21. The first inconsistency is this. She said she first met you whilst she was still at school at Malabunga Secondary School. You denied meeting the complainant at that time as you were in Lihir then. No one else was called to prove or deny that occasion.

22. The second inconsistency is this. The complainant said she was born on 24 December 1987. Hence, she would have been conceived towards the last week of March 1987. You gave evidence that you knew the complainants mother in Lae in 1985. There is no evidence from the State to suggest that you also knew or had a sexual relationship with the complainant’s mother in 1987.

23. Yet another inconsistency is this. You say you had a report in 1987 that says you are barren or sterile, but you no longer are in possession of that report. Being sterile or barren simply means you cannot father any children. To prove this, you say that you do not have any children from your marriage of 30 years. That is why you adopted 2 children. The State did not disprove this.

24. The other inconsistency is this. The complainant said she did not report the rape because she feared stigma and discrimination. Why then did she choose to remain with you after the first instance? She did not give any evidence that she was being threatened by you if she did report you.

25. Further, it took her about 2 years to finally report the matter to her partner and her mother.

26. Similarly, there are also some inconsistencies in your evidence. The first is this. You said you were not aware of any compensation made to the complainant’s stepfather. However, in Exhibit S1 and S2, you admitted that you paid K5,000 cash and 300 fathoms of shell money for this alleged offence. No one else gave evidence to say what this compensation payment was for.

27. The other inconsistency is this. You said you were curious about the complainant after you heard people’s speculations that she might be your daughter. Why would you act on your curiosity when you knew all along that you were sterile and could not bear any children? You could not possibly be fertile at any time prior to 1987 when you were medically checked. It may well be that you did have a sexual relationship with the complainant’s mother, but the time of conception was off.

28. I also note that there is no medical report obtained by the complainant after each occasion to prove that there was forceful or any entry into her vagina between 1 April and 30 April 2017.

29. This brings me to the question of the credibility of each of the witnesses. This will determine whose story I should believe.

Credibility of witnesses

30. Before I discuss the credibility of each witness, I will also adopt the statement of His Honor Justice Kandakasi (as he then was) in State v. So’on Torah (2004) N2675, at page 5 of his judgment where he says: -

“Finding credibility is in turn dependent on matters of logic and common sense as well as the demeanor of the witnesses and consistencies in their evidence”.

31. I have observed the complainant’s demeanor in the witness box to unimpressive. She took long breaths, and she was slow to answer questions directed at her. It seemed like she was second guessing what her response should be and not what did in fact take place or did not take place. There is one too many inconsistencies in her evidence as outlined above. Further, it is unusual for a 30-year-old female to suffer the trauma of being raped by her own father and not report it but continue to stay on with him without any threats from him.

32. On the other hand, you appear confident when you gave evidence in denying all the allegations. You admitted you knew the complainant’s mother in Lae in 1985, not 1987 when the complainant is supposed to have been conceived. You also knew you were sterile since 1987 and therefore, could not possibly father any children at any time. Your current childless marriage of 30 years is proof that you are barren. This is despite inconsistencies that you were not part of your family who paid compensation to the complainant’s stepfather for this wrongdoing and for your curiosity to know more about the complainant when you knew too well that you could not possibly fathered the complainant.

33. The lack of more witnesses on both sides makes it difficult to determine whose story is the most believable one. However, from the evidence presented, there are more inconsistencies in the complainant’s story than there are in your story.

Finding of facts

34. From the analysis above, I have doubts about whether the counts of rape did in fact occur. Thus, I find that you did not sexually penetrate the complainant on those 3 occasions. There are inconsistencies about the time you first met the complainant. If you had a sexual relationship with the complainant’s mother in Lae in 1985, the timing of conception was off. The other inconsistency is that you are sterile and cannot father any children. The most important lack of evidence is any medical report to show the complainant was raped during 1 to 30 April 2017.

Verdict

35. There are inconsistencies in the complainant’s evidence that you committed the offence as alleged. There are fewer inconsistencies in your evidence. I am therefore not satisfied beyond reasonable doubt that the State has made out a case of rape, nor has the State made out the alternative charges of incest against you.

36. I find you not guilty of the offence of rape. I also find you not guilty of incest. You are therefore discharged of the allegations of rape and the alternative charges of incest forthwith. Your bail fees are to be refunded to you.

________________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused