State v Agen (No 5) [2022] PGNC 593; N10292 (14 July 2022)

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

CRIMINAL LAW – No case to answer application – Charges of Assault occasioning bodily harm, Rape and Grievous Bodily harm - Principles of law in Paul Kundi Rape considered – Whether evidence is sufficient to make out prima facie case

1. GANAII AJ: This is a ruling on a no-case to answer application at the close of the state’s case. State presented an indictment against the accused, alleging the following counts:

“Count 1
.... on 30^th day of April 2018 at Owers Corner, Sogeri Road, Kairuku Hiri

District, Central Province unlawfully assaulted one AHJ and in doing so caused her bodily harm, contrary to section 340 of the Criminal Code

... on the 30^th day of April 2018 at Owers Corner. Sogeri Road, Central Province sexually penetrated one AHJ by inserting his penis into her vagina without her consent, contrary to section 347 of the Criminal Code and

..... on the 15^th of September 2018 at Waigani, NCD, unlawfully did GBH to one AHJ contrary to section 319 of the Criminal Code

... on the 15^th of September 2018, at Waignai, NCD, unlawfully assaulted one AHJ and by so doing caused her bodily harm, contrary to section 340 of the Criminal Code”.

2. The elements of the charges as contained in the offence provisions are stated below.

4. Section 1 of the Criminal Code Act (CCA) on the interpretation of “bodily harm” says any bodily injury that interferes with health or comfort. According to the Merriam Webster Dictionary, ‘injury’ means being ‘hurt’ or ‘harmed’.

5. The offence of rape is defined under ss 6 and 347 of the CCA in the following terms:

When the expression “sexual penetration” or “sexually penetrates” are used in the definition of an offence, so far as regards that element of it, is complete where there is –

(b) the introduction, to any extent, by a person of an object or a part of his or her body (other than the penis) into the vagina or anus of another person, other than in the course of a procedure carried out in good faith for medical or hygienic purposes”.

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

(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.

6. The meaning of consent under the CCA is provided in sections 347A and 347B in the following terms:

(1) For the purposes of this Part, “consent” means free and voluntary agreement.

(2) Circumstances in which a person does not consent to an act include, but not limited to, the following: –

(a) the person submits to the act because of the use of violence or force on that person or someone else; or
(b) the person submits because of the threats or intimidation against that person or someone else; or
(c) the person submits because of fear of harm to that person or to someone else; or
(d) the person submits because he is unlawfully detained; or
(e) the person is asleep, unconscious or so affected by alcohol or another drug so as to be incapable of freely consenting; or
(f) ...
(i) the accused induces the person to engage in the activity by abusing a position of trust, power or authority; or
(j) ....

(2) In determining whether or not a person consented to that act that forms the subject matter of the charge, a judge or magistrate 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 –

(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”.

It is not a defence to a charge under this Part that the accused person believed that the person consented to the activity that forms the subject matter of the charge where –

(a)the accused did not take reasonable steps, in the circumstances known to him at that time, to ascertain whether the person was consenting”.

7. The offence of Grievous Bodily Harm under s 319 of the CCA is defined in the following terms:

A person who unlawfully does grievous bodily harm to another person is guilty of a crime.

8. In the case of State v Fasean [2014] PGNC 68; N5596 (13 May 2014), the Court referred to the definition of "grievous bodily harm" in Section 1 of the Criminal Code which is “any bodily injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health”.
State’s case
9. Defence objected to all the documents being tendered to Court at the start of trial. During evidence, several documents were tendered by consent and others were ruled admissible and received into evidence. These are listed in the table below.

10. Sworn oral testimonies were given by witnesses, complainant AHJ; Margaret Olaba, Joshua Kraip and Dr Lenturut-Katal. A summary of their evidence is stated below.

AHJ
1. Witness is the complainant. For Count 1 on the charge of Assault occasioning bodily harm, she said: after the forced act of SI (without consent), the accused made me to sit down in the haus win and repeatedly asked me if I understood that I had brought shame to him and his family. He then took out his belt and whipped me several times on my back.
2. When asked to describe the belt, the witness said it was a leather belt that had a silver buckle and it was the one he wore frequently. She felt that leather against her body and assumed he held the buckle and whipped her. She wore a silk top and didn’t wear her sweater at that time. There were more than three instances of whipping. As how to many times exactly, she could not recall.
3. As she was being whipped by the accused, the complainant said she felt pain, her back was hurting, and it lasted 10 minutes. She visited the clinic of her grand-father and was treated for pain and bruising. There was no medical report made at that time. She did not tell her grandfather, who is a medical practitioner) about the rape. She also did not tell her colleagues or report to anyone as she was threatened by the accused not to tell anyone or she would be killed. She said the only person she later talked about the assault and the rape was her sister in Jaya Pura.
4. For Count 2 on the charge of Rape, the complainant’s said “He (Mr Agen) demanded sex. I cried and refused. He said I didn’t have a choice. I was his property and he owned me. He forced himself on me and we had sex at Ower’s Corner at that point”. When asked where the act of sexual intercourse took place, the witness said” right there where we were standing”. She said, “He turned me around, put me in a bent over position, unbuckled his pants, took out his penis and forced himself into me from behind”. When asked what is meant by ‘forced himself’, the witness said, “he penetrated my vagina with his penis, it did not take longer than a couple of minutes”. When asked how she felt, the witness said “I was terrified. I felt fearful that at any time he would change his mind and they would kill me and dump my body”. When asked ‘Did you consent?’ The witness said “No, I did not”.
5. For Count 3, on the charge of GBH, alternatively, Assault Occasioning Bodily Harm, the complainant said: it was at Mr Kamasuga’s residence, after a night out at Red Rock, the accused threw her on the floor, dragged her, continuously punched, and kicked her with his boots all over her body and face and she lost consciousness. She realised she was bleeding profusely from the face as she gained consciousness. Her cousin Margarete had come and had taken the complainant to her grand-father’s clinic. She was treated there by him for pain and for the bruising. There was no Medical Report made. She then went to Dr Poyap of the Korobosea Medical Centre for an x-ray as she complained of a painful jaw. She said the x-ray results showed fracture on the left side of her jaw. She had to take time of work to recover and heal. Other injuries sustained to her face were a cut on the nose, black eye, bruising and swelling. The fracture on the left side of jaw caused her not to be able to eat solid food. She took pain killers till the fracture had healed.
6. On the night of 29th April 2018, she agreed that the accused dropped her off. Later in the night when he called her, she did not answer his call. She was with a person called Richard Sios. On the next day, the accused was furious and picked her up. He demanded answers as to her whereabouts. He then picked up two men who were armed with bush knives. They sat on either side of the complainant in the vehicle. They drove to Ower’s corner. She said he punched her as they were driving to Sogeri.
7. She also said the accused demanded for her phone and password and she gave them to him. He then saw her messages in the phone and saw what he wanted to see.
8. When it was put to her that there were people at the Ower’s Corner market, she said she did not see any persons at the market.
9. When put to her that the ranger’s office was 10 metres away, she said she did not look around and did not see the ranger’s office. She agreed there were no obscurity or trees in the way.
10. When asked if the rangers were visible to her, she said she did not see them. She said the accused was punching her and she was protecting her face and head.
11. She agreed she did not report the rape incident till September of that year, which was 5 months after the incident. Her reason was that she was unaware that he had committed a serious criminal offence. She also agreed that there were no medical reports for both incidents.
12. The witness agreed that after the incident at Ower’s Corner, there were consensual sexual activities with the accused. It was only after the Waigani incident, which was five months later that she reported the Sogeri incident to the Police. She said there were no non-consensual sexual activities with the accused after she reported to the Police to date.
13. She recalled the accused was in a relationship with a woman called Joan but she was not upset and took it as normal for him to do that.
14. When put to her that the criminal complaints were laid against the accused because they were calculated by her as she was angry with him, she said no.
15. When asked why the charges were laid, she said because her rights and peace were breached and she did not consent to sex.
16. When put to her that the case was brought maliciously against the accused, she said that was the accused’s own opinion.
17. In re-examination the witness she said she got out of her office at Gordon and met accused because he said to talk. She did not agree for him to drive away on the vehicle but reluctantly hoped on. She was terrified as she did not know where they were going. At Ower’s Corner, she felt that her life was in great danger and she was terrified and unsure about what was going to happen. She did not care to focus her attention on anything else except to try to stay alive.
18. After State prosecutor re-examined the witness, Mr Napu for the accused realised he had oversighted and had not cross-examined the witness on the Waigani incident, in Count 3. He sought leave to recall the State witness to cross-examine her. There were no objections by the State. The witness was told that the defence counsel would continue to ask questions in cross- examination about the allegations at Waigani, and the State would be allowed to re-examine her. She understood. Mr Napu cross-examined the witness.
19. In cross-examination, where the defence asked about what happened earlier on at the Red Rock Bar, the witness said the accused was aggressive.
20. The witness agreed that Mr Kamasuga drove them to his house at Waigani. She went in and laid on the couch in the living room. The accused pulled her and she struggled to get away from him. Her reason for resisting to go with him was because he was drunk and was violent towards her earlier on at Red Rock Bar. The accused pulled her off the couch. He dragged her outside. She managed to escape from his grip and went to Mr Kamasuga. They both drank and so the accused was too drunk. She had drunk 8 glasses but she said she was aware of what was happening and aware of her surroundings.
21. The witness agreed there was a tussle because the accused wanted her to go and she refused to go. He stood up and assaulted her and she fell. She was able to get back up on her feet. She recalled telling him to leave her alone.
22. She recalled when she regained consciousness, her cousin Margret Olaba had already arrived and had taken her to her grand-father’s Medical Centre.
23. An x-ray was done later at the hospital which showed a fracture to the complainant’s left jaw. She was not able to eat until later she had regained use of her jaw. She had also sustained a cut to her nose and bruises om her face and body.
Margaret Olaba
Witness is the cousin sister of the complainant who on 15th of September 2018 said she had gone to assist the complainant when the complainant was assaulted. The witness saw the complainant beaten and bleeding and took the complainant to her grand-father’s clinic and later to the hospital. The witness also said she reported to the Police. She took photographs of the injuries.
Stanley Billy
Witness is a Police Officer attached to CID Minor Crimes at the Gordons Police Station. He is a Constable by rank. He assisted the Investigating Officer Mr Kraip in corroborating in the conduct of the Police interview with the accused. He explained what transpired by stating where the interview took place The interview was regarding the charge of Assault on the 15th of September 2018.
Joshua Kraip
1. Witness is a police officer involved in the investigations, arrest and charge of the accused. He was tasked to investigate this case. He received the complaint and obtained a statement from the complainant. He explained why he did not initially charge the accused for Rape. He also said he was informed by the Public Prosecutor that the additional charges will be laid. He then informed the accused of the additional charge. He however, had not kept a record of this meeting with the accused and informing him of the additional charge.
2. The Record of Interview of the accused Robert Agen dated 20/09/2018, which is the only preferred English version was ruled admissible through this witness and received into evidence, marked as State exhibit “S1”.
3. Documents marked for identification as “MFI 1 and 2”, which are photographs of the complainant were tendered through this witness into evidence and marked as State exhibits “S4”and “S25”.
Dr Lenturut-Katal
1. Witness is a senior specialist medical officer by profession. She is the Chief Radiologist and is employed by the NDOH attached to the PMGH. She was shown two of her affidavits and stated that Dr Poyap referred the complainant’s case to the x-ray Department. An x-ray was done and results were produced in a report. She explained the report. She also stated she referred the complainant to Dr Rooney for clinical assistance.
2. She explained the contents of her report to Dr Runny and stated that there was a “hairline’ fracture, which was not dispatched and was described as a ‘good fracture’ meaning it will heal up over time.”
3. Through this witness, the following documents were tendered and marked as State exhibits: Affidavit of Dr Lenturut – Katal, dated 9/12/2021; annexing the Medical Report of Dr Lenturut-Katal, dated 21/09/2018 which is “S2” and the affidavit of Dr Lenturut- Katal, dated 9/12/2021 annexing the Medical Report of Dr Rooney dated 22/09/2018 which is “S3”.

11. At the close of the State’s case, the defence counsel made a no-case to answer submission.

12. For Count 1(Assault causing bodily harm), defence argued that the charge cannot be sustained as there is no evidence of the complainant suffering from any permanent injury or injury that is life-threatening. Counsel submitted on the elements of the offence of Grievous Bodily Harm (GBH) and said the evidence so far did not support the charge.

13. For count 2, on the charge of rape, Mr. Napu submitted that the charge cannot stand as there is no corroborating evidence and further the incident was reported after lapse of five months since the date of the alleged incident. Counsel relied on the case of State v Ugwalubu [2009] PGNC 70; N3657 (22 May 2009). In that case, the Court acquitted the accused after a no case application was upheld, where the court did some weighing up of the evidence but kept it at an absolute minimum. In the end the court was of the view that the victim’s evidence was discredited and cannot be relied on. Mr Napu submitted that the Court cannot rely on the complainant’s story as it was fabricated.
14. Mr Napu also argued on the validity of the charge of Rape, submitting that the accused was never initially charged with the offence of Rape. He submitted that the Public Prosecutor cannot add new charges.
15. For Count 3, on the charge of GBH, and alternatively Assault causing bodily harm, Mr Napu argued that the charge of GBH will not stand as there is no evidence of any grievous bodily harm on the victim due to there being no permanent injury suffered by the victim or the injury sustained was not to an extent where it had threatened her life.
State’s response
16. Ms Suwae argued that there is sufficient evidence to make out a prima facie case against the accused on all of the charges. The Court need not weigh up the evidence at this juncture. The accused should be called to answer to his charge.
17. The State restated the charges on the indictment and submitted that the evidence of the complainant was sufficient to make out the charges. On the charge of assault occasioning bodily harm, State submitted that the bodily harm, as defined by section 1 of the CCA is any bodily injury that interference with health and comfort. There is evidence that the injury suffered by the complainant due to the assault did interfere with her health and comfort.
18. State prosecutor urged the Court to consider the definition of the offence of rape and find that there is sufficient evidence to make out a prima facie case against the accused.
19. For the charge of Grievous Bodily Harm, under s 319, alternatively s340, State submitted that the Court will consider the s 1 CCA definition of GBH to mean any bodily injury to endanger or likely to endanger life or likely or cause permanent injury. State submitted there is sufficient evidence on the element of the offence of GBH to make out a prima facie case against the accuse.
20. In the case of State v Paul Kundi Rape [1976] PNGLR 96; N34, on the question of whether the accused could be lawfully convicted, State submitted that the Court need not concern itself whether the State had proven its case beyond reasonable doubt. The test is whether there is a prima facie case on the evidence as it stands.
Consideration
21. The leading case principle in an application on a no-case to answer application is the seminal case of Paul Kundi Rape [1976] PNGLR 96. Mr Napu relied on both the first and the second limps for all the charges.
22. For the offence in Count 1 of Assault occasioning bodily harm, Mr Napu wrongly submitted on the elements of GBH, which is a s 319 offence and not on the elements of the charge of Assault occasioning bodily harm, under s 340 (1) of the CCA. Consequently, his submission has no bearing on this charge.
23. I am satisfied on the evidence of the complainant, at this stage that it is sufficient to make out a prima facie case of Assault occasioning bodily harm against the accused. The complainant said she was whipped at least more than three times for ten minutes and felt pain. Although there is no medical report, she stated that she was treated with pain killers for bruising and pain. The court need not assess the credibility of the witness at this juncture but will do so at the end of trial. The witness was not discredited to an extent where her evidence cannot be relied on.

24. For the offence of Rape, in Count 2, on whether the accused can lawfully be convicted, the Court is mindful that it can convict on the uncorroborated testimony of one witness alone. That is the law in section 352A of the CCA, where it is entitled ‘Corroboration Not Required’. This provision reads: “On a charge of an offence against any provision of this Division, 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”.

25. I therefore reject the defence argument that the absence of corroboration for this charge should taint the complainant’s evidence and that the accused should not be called to answer.

26. The state’s case is one that relies solely on the evidence of the complainant. Her evidence thus far is that she had not consented to the act of sexual intercourse and was in fear of her life at that time the alleged act of intercourse was forced on her. She said she was threatened. As to whether that is the truth or not, is a matter for consideration on the credibility of the witness and her evidence after trial.

27. In the case of Ugwalubu (supra), that defence relied on, the Court had done some weighing up and decided that the sole testimony of the complainant was insufficient based on the evidence in that case. In the present case, the complainant’s evidence was not discredited to the extent that the court cannot rely on. This court will do the weighing up of the evidence at the end of trial.

28. In response to defence submission that this charge should not stand given the passage of five months since the alleged acts are said to have occurred, and that it goes to the credibility of the complainant, I say this. Under the provisions of the Criminal Code and any other law, there is no time bar for the mounting of a criminal complaint against a person. Unlike summary offences, s 69. of the Summary Offences Act^[1] provides for the time limit for laying criminal complaints. This provision says: “No charge for an offence against any provision of this Act shall be laid in any court after six months after the offence took place”. The Criminal Code does not have similar provisions placing a time limit for the laying of indictable criminal complaints against a person.

29. I also reject the submission that there is no-case to answer on this charge as the complainant had laid the complaint 5 months after it is said to have occurred, as there is no legal basis for raising this argument at this juncture.

30. On submissions by the defence on the validity of the charge of Rape, where the defence argued that there is no-case to answer as the accused was never initially charged with the offence of Rape and submitting that the Public Prosecutor cannot add new charges, I reject this argument for the reasons stated below.

31. At the outset, I say this, the law governing the procedure for making a no-case to answer application is one that requires the strict application of the principle in the case of Paul Kundi Rape (supra), and that is on the evidence as it stands on the elements of the charge whether the accused has a case to answer based on the two limbs.

32. For this charge of rape, there is sufficient evidence from the complainant to make out a prima facie case against the accused. Her evidence had not been discredited to an extent where the court cannot rely on it. Any weighing up of the evidence will be left to the end of the trial.

33. The Arresting Officer Mr. Kraip had given his explanations as why he did not initially charge the accused for the offence of rape and that an additional information was presented to the committal court. I take judicial notice of the Committal Notice that the accused was committed to trial for this offence. The Public Prosecutor had presented an indictment for the charges. These actions by the Police and Public Prosecutor were found to be proper and valid in a previous ruling on the same issue raised by Mr Sebby in The State v Robert Agen (No 2) (2022) N10276). That ruling has never been challenged and is intact to date.

34. In that case, I adopted the reasoning in State v Robert Agen (No 1) [2021] PGNC 620; N9652. I also do the same here. The laying of the information against the accused at the District Court containing charges under the Criminal Code Act was within the powers of the police. (State v Dau [2020] PGNC 278; N8611 (9 October 2020)). It was for the police at that stage to choose the appropriate charge(s).

“As for the National Court proceedings, it is well established that the Public Prosecutor is responsible for controlling the exercise and performance of the prosecution function of the State pursuant to s. 176 and 177 of the Constitution. As explained by the Supreme Court in Review Pursuant to Constitution Section 155(2)(b); Application by Herman Joseph Leahy (2006) SC855 at [141]:

“These provisions establish the office of the Public Prosecutor and provide for the functions of the office, one of the most important of which is "to control the exercise and performance of the prosecution function ... before the Supreme Court and the National Court". The Public Prosecutor (Office and Functions) Act fleshes out that function. Section 526 gives effect to it. It facilitates the exercise and performance of the prosecution function. It allows the Public Prosecutor to control it. It allows the Public Prosecutor to decide what cases are prosecuted in the National Court.”

36. The decision by the Public Prosecutor to refuse to elect to prosecute a matter summarily is well within law and is a control of his exercise to prosecute in the National Court. It is not an abuse of his powers.

37. This power is also essential to ensuring that accused persons are indicted on charges that appropriately reflect the nature and extent of criminal conduct which is disclosed by the evidence: The State v Douba (2018) N7627. Per Kandakasi J in The State v Louise Paraka (2002) N2317, s. 525 proceeds on the basis that the Public Prosecutor, or a State Prosecutor for that matter, “is in a better position to consider the interest of the people and the mechanics of proving a charge against an accused person and then proffer the charge he considers sustainable".

38. In this case the accused was committed for trial to the National Court after the advice from the Public Prosecutor based on the same evidence in the one and same committal file that contained an initial charge against him. The State has decided to proceed on two additional charges pursuant to its powers under s. 525 of the Criminal Code Act. I am mindful of the exercise of the powers of the Public Prosecutor under s 4 of the Public Prosecutor’s (Office and Functions) Act^[2].

39. In the defence no-case application, Mr Napu argued about the lack of conduct of police interview on the accused for the additional charges. The conduct of the police interview, out of which a written record of that interview is produced is known as the accused’s Record of Interview (ROI). The police interview process is an investigative tool used by the Police to gather evidence. Such is the essence of a ROI to gather evidence that may be used by the State or the defence. Conducting a Police interview also gives the accused an opportunity to be promptly informed of his rights and his charges. It gives them the opportunity to respond to the charges at the earliest time possible. The conduct of a police interview is not legislated in any law but is a process that was developed as best practice to aid in police investigations.

40. In considering the defence argument that the opportunity was not given to the accused to respond to the charge of rape, at the earliest, I go in to say this. Not conducting a ROI does not take away the opportunity for the accused to be explained his charges. The accused still has the opportunity to be informed of his charge and to make his response during the committal process and if committed, during the trial processes.

41. Having said these, the charge of Rape has been properly laid and brought to Court through the presentation of an indictment in the hand of the Public Prosecutor, pursuant to proper legal basis giving the Police and the Public Prosecutor the powers and the discretion to amend the information at the Committal Court and to lay appropriate charges on an indictment at trial in the National Court as the evidence warrants.

42. This argument does not support the application for a no-case to answer application, based on the principles of law in Paul Kundi Rape (supra) and is hereby rejected.
43. I do find that there is sufficient evidence on the elements of the charge of Rape to make out a prima facie case against the accused at this juncture. Any weighing up of the evidence is left to after trial.

44. For the offence of GBH in Count 3 and alternatively Assault occasioning bodily harm, in Count 4, if the evidence on the charge of GBH is lacking on the question of the permanency of the injury sustained to the complainant’s jaw, as I do note that the complainant did say the fracture had healed, there is sufficient evidence on the elements of the alternate charge of Assault causing bodily harm to make a prima facie case against the accused at this stage. The weighing up of the evidence will be considered at the end of trial.

45. For all the charges, in cross-examination of all state witnesses, they all responded to questions asked. Any assessment on their credibility and any real weighing up of their evidence against the totality of the evidence will be left to after trial. Where the witnesses have not been discredited to such an extent that their evidence is tainted and so unreliable that the Court cannot rely on, there is sufficient evidence on all the charges to make out a prima facie case at this juncture.

46. Based on all of the above, I refuse the application for no case on all the charges (and the alternative count) on both legs of Paul Kundi Rape (supra).

________________________________________________________________
Public Prosecutor: Lawyers for the State
Napu and Company Lawyers: Lawyers for the Defendant

No.	Document Title	State Exhibit Number
1	Record of Interview of the accused Robert Agen, dated 20/09/2018, Preferred English version, 4 pages	“S1”
2	Affidavit of Dr Lenturut-Katal, dated 9/12/2021, attaching to it a Medical Report dated 21/09/2018 for Ms AHJ	“S2”
3	Affidavit of Dr Lenturut-Katu, dated 9/12/201, attaching to it the Medical Report of Dr Poyap Rooney dated 11/09/2018, for Ms AHJ	“S3”
4	2 x A4 pages of printed photographs of the complainant. 2 photographs on each page, totalling to 4 photographs.	A4 page 23 - “S4” A4 page 24 – “S5”
5	Statement of Joshua Kraip	“S6”

National Court of Papua New Guinea

State v Agen (No 5) [2022] PGNC 593; N10292 (14 July 2022)