N9907

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 994 OF 2018

THE STATE

V

VULCAN T. PAULO

Kibil/Kokopo: Suelip AJ
2021: 5th & 8th July & 6th August

CRIMINAL LAW – trial – verdict – rape s.347(1)(2) – witness found prisoner and victim sitting together after alleged rape and chased victim away – victim found the next day – victim assaulted and taken home by family – told family of rape – victim’s testimony shaky, not logical, and inconsistent – not guilty 

Counsel

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

VERDICT

6th August, 2021

1.	SUELIP AJ:	On 8 July 2021 at Kibil, the accused pleaded not guilty to one count of rape pursuant to section 347(1)(2) of the Criminal Code. Trial was conducted soon after arraignment.

2.	This is my decision on verdict.

3.	The facts to this case are these. The State alleges that on 12 May 2018, between 1pm and 4pm, the accused was at his coconut patch at Kumaina village, Duke of York Island. It is alleged that on the said time, date and place, he sexually penetrated a 16-year-old female named Doreen Jackland without her consent. It is alleged that he did it in the circumstances where he approached the alleged victim suddenly, grabbed hold of her, covered her mouth, threatened her with a long bush knife, pulled her into the coconut patch, removed her clothes and forcefully sexually penetrated her. The State now alleges that his actions contravened Section 347(1)(2) of the Criminal Code, and his is charged with one (1) count of rape. 

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.	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)	without consent
	(iv)	in circumstances of aggravation  

Issues

6.	The issues are these: -

(i)	whether the accused sexually penetrated the victim without her consent. 

(ii)	whether he sexually penetrated the victim in circumstances of aggravation.

Evidence by consent

7.      At the beginning of trial, the State tendered the following documents into evidence with the consent of the accused: -

		Document								    Exhibit

	(i)	Statement of Otto Morombo (Corroborator)	dated 10/07/18	S1
(ii)	Statement of Senior Constable Veronica Pagur 
(Arresting Officer) dated 27/07/18					S2
	(iii)	Medical Report by HEO Ruthie Penticost dated 13/05/18	          S3	(iv)	Affidavit of HEO Ruthie Penticost sworn 4/06/18			S4
(v)	Record of Interview (Pidgin version) dated 28/05/18		S5
(vi)	Record of Interview (English version) dated 28/05/18		S6

Summary of the State evidence

8.	Three witnesses were called into court to give evidence for the State. The first witness is the victim herself. In summary, her evidence is that on the morning of the alleged rape, she was at the family house attending to some chores when the accused arrived and asked for some water. She said he then asked for some tobacco but since she could not find it, he told her that if she does find any, she can go and give it to him at his block, which is about 50 meters away. She said after completing the house chores, she left the house after 2pm to go look for some mustard. She said as she was leaving the house, the accused suddenly appeared, held her hand and covered her mouth then threatened her with his tramontina bush knife. She said he pulled her to his block where he forced her to remove her clothes. He then sexually penetrated her without her consent. She said after that, she put on her clothes and sat down not too far from him. She said that was when her uncle Dominic James came and when he saw her sitting (about 6 meters apart) with the accused, he chased her away. She said she did not go home that night. She said she was afraid that her uncle would have reported her being found with the accused at his block to her parents. She said it was not until the next day when her aunt found her on the beach and assaulted her before taking her home. She said her mother also assaulted her at home and that was when she told her family that the accused raped her. After that, she was taken to the health center for a medical check and later, she was taken to Kibil Station to report the matter.

9.	The State second witness is Pauline Samuel who gave evidence that the family was looking everywhere for the victim as she did not return home the night of the alleged rape. She said she was the one who found the victim on the beach and assaulted her before taking her home and to the health center. 

10.	The State’s final witness is the victim’s mother who said the victim did not come home on the night of the incident and it was the victim’s aunt Pauline who took her home on the following day. She said the victim had told her aunt earlier about what you did to her.

Summary of the Defence evidence 

11.	The accused gave evidence that on the morning of the rape, he went to his block and collected coconuts. He then went to the victim’s house to drink water.  He said he asked the victim for tobacco and the victim said she will go look for it in the house. He then told the victim that if she finds the tobacco, she can come to his block and give it to him. The accused then returned to his block. He said the victim came and gave him tobacco and as he was smoking, Dominic arrived. He said when he saw Doreen, he chased her away with a stick. 

12.	The only other witness who gave evidence in his defence is his older brother Malcolm. He said he saw the accused on the morning of the alleged rape just before he left the house to go collect dry coconuts at his block. He said the accused carried a bag and a bush knife. He said the accused returned home by 2pm and he can confirm the time because he was holding his mobile phone at that time. He said he is giving evidence because the accused is his young brother and he does not want to see him go to prison.

Analysis of evidence

13.	The State has adduced evidence that the accused sexually penetrated the victim without her consent and in circumstances of aggravation when he held a bush knife and threatened her. 

14.	No one witnessed the rape, and it was only after it had happened that the uncle of the victim found the accused and the victim sitting side by side, about 6 meters apart at his block. The victim’s uncle then enquired as to why she was at his block and then he chased the victim away. The victim was not seen until her aunt Pauline found her swimming at the beach the next day. That was when she was assaulted, and she told her aunt that the accused sexually penetrated her against her will when he threatened her with a bush knife.

15.	 In the victim’s medical report, after the victim was examined, the HEO noted that the victim was conscious and fully alert with no apparent respiratory distress. The report also shows that there was bleeding on the vaginal opening with minimal bruises along the perineum and the hymen was not seen. It was assessed that the victim was sexually abused in this case.

16.	The victim’s evidence was shaky and at times unbelievable. 

17.	In his defence, the accused denied that he sexually penetrated the victim without her consent, and he also denied threatening her with a bush knife. His evidence is that he drank water at the victim’s house earlier that day before she came to his block to give him tobacco. That was when her uncle came, saw the two of them sitting together at his block, and he chased the victim away with a stick. The accused returned home by 2pm, which time was confirmed by his elder brother.

18.	Counsel for the accused took issue with paragraph 2 line 1 of statement of the victim dated 14/05/18 which contained a prior inconsistency where she says that it was the morning of 12 May 2018 that she had gone to get mustard when the accused threatened her and pulled her to his block and raped her. In her oral evidence however, the victim said she was raped between 2-3pm on 12 May 2018. The time of the alleged rape is therefore inconsistent and this brings her credibility into question.

19.	The demeanor of the accused in Court is observed to be of someone telling some truth but not all. His elder brother’s evidence is of convenience. 

Consideration of the elements of rape

20. 	The State is required to prove all the elements of the offence of rape.  Firstly, the accused is the one who is being accused of committing this offence against the victim. There are no other suspects so there is no issue with his identification. Thus, this element of identification is proven by the State.

21.	As regards the second element of sexual penetration of another person, there is medical evidence to prove that the victim was sexually abused.  This is apart from the victim’s evidence that the accused sexually penetrated her. This element of the offence is also proven.

22.	In relation to the third element that the offence was committed without the victim’s consent, only the victim says she was sexually penetrated without her consent. Her evidence was that she sat with the accused after the event and her uncle also found the two of them sitting side by side apart. This certainly raises some doubt as to whether it was rape or just consensual sex. If indeed, there was lack of consent, it would only be natural for the victim to run away immediately after the rape unless of course, she was unable to walk or she was under some form of threat. Further, if her uncle had found her in her traumatized state, she would have immediately sought safety with her uncle. None of these natural reactions happened and so this element of the offence is not proven.

23.	Regarding the last element where there were circumstances of aggravation, the victim gave evidence that the accused threatened her with a bush knife. When she was first held up, she said he held her hands, mouth, and a bush knife. This is against logic and common sense as it is not normal to hold onto more than 2 items at any one time. One cannot hold another person’s hand, her mouth, and a bush knife at the same time. This element of the offence is also not proven by the State.

Other inconsistencies

24.	The victim’s statement given to the police showed that the rape occurred in the morning. However, at trial, she said she had attended to the chores at the house in the morning and then went to collect mustard after 2pm. That was when the alleged rape took place. Therefore, this is an inconsistency in the victim’s statement.

25.	Further, the victim did not return home that day after the alleged rape occurred. She said she was scared that her uncle Dominic had reported her to her parents when she was seen sitting with the accused at his block and so she was afraid to go home. If the victim was raped, she would be running home which is only 50 meters away to tell her family about the ordeal, not run away from home. She would also be running to her uncle for safety when he first arrived at the block belonging to the accused. This is against logic and common sense.

26.	The other factor not in the favor of the accused is this. He said he did not carry a bush knife that day. However, before he left your house, his older brother saw him holding a bag and a knife. It is very unusual for a person, especially a young village man to go to the bush without a knife. The accused therefore did not tell the truth when he said he did not have a knife that day.

Findings 

27. 	Only the first and second elements of the offence were proven. The State has failed to prove the third and fourth elements of the offence. I find the reaction of the accused and the victim sitting together after the alleged rape indicate that sexual penetration occurred but with the victim’s consent. Further, the victim’s evidence is not logical and is against common sense when she said she was afraid to go home in fear of her uncle reporting her to her parents. If she was raped, she would be running home at the first instant to report it. The medical report also confirms that sexual penetration did take place, but it was with the victim’s’ consent.  I therefore find that the accused sexually penetrated the victim but with her consent on that occasion. I also find that he did not threaten her with a bush knife. 

Verdict

28.	All the elements of the offence have not been made out by the State. Thus, I am not satisfied beyond reasonable doubt that the accused committed the offence of rape in circumstances of aggravation. He is therefore acquitted of the charge of rape in circumstances of aggravation. The accused is to be discharged forthwith.

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