Unreported Supreme Court Decisions
SC356
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
S.C.A. NO. 48 OF 1987
BETWEEN
ARON NARAMPAN
APPELLANT
AND
THE STATE
RESPONDENT
Waigani
Kidu CJ Los Cory JJ
2 June 1988
4 November 1988
KIDU CJ LOS CORY JJ:  We entertained this appeal against conviction and sentence on 2nd June 1988, allowed the appeal against conviction and quashed it. As indicated we now publish reasons for our decision.
On 9th September 1987 the Appellant was convicted of the crime of rape and sentence to 8 years imprisonment with hard labour. At the trial the issue was whether the Appellant had sexual intercourse with the Complainant with or without her consent.
On the night of Sunday 18th January 1987 the Appellant went on duty at the Boroko Police Station at 11 a.m. His shift was from 11 p.m. to 7.a.m. He was on cell duty with Constables Sede Kure and Yop Elias. They checked the cells and in Cell 10 (reserved for females) there was one female the (prosecutrix or complainant - Mary Kale).
Mary Kale had been arrested during the day and was refused bail. (Her husband had tried to bail her out at about 6.30pm). She went to sleep in Cell 10 at about 8 pm and was awakened about 11pm or thereafter when the Appellant took over the 11 pm - 7 am. Shift. She said she awoke at 12 midnight and the Appellant “opened the main door to the cell and then he put one of his legs into the cell and the other leg still outside and he was starring at me “while I was still sleeping”. (How could she have seen anything if she was sleeping?). “Then he went around again a second time and peeped in again”. She sat up and could see day light coming and knew it was about 5 am. She went out of the cell and sat on the cement slab or seat outside. One of the Policeman (Constable Sede Kure) was sleeping on this with his legs stretched out on a chair - chair was placed in the centre of passage between cells (1 metre in diameter). The other Constable (Yop Elias) was sleeping in the duty room. The Appellant said Constable Sede went to sleep around 5 am and Constable Yop was not feeling well and went to sleep earlier in the fingerprint room. He (Appellant) was seated at the reception area preparing his situation report for the cells. After he prepared it he ran the Operations room and the report was collected about 5.30am. He then went outside and saw Mary Kale sitting on the cement bench on which Constable Sede Kure was sleeping. (From here his story and Mary’s story vary).
Mary said while she was sitting outside the cell the Appellant went to where she was:
“...he sat down beside me and he said, ’Mary are you alright?’ I thought because he was a policeman he said that, I said “Yes, I am all right”. Then he placed his right arm around my waist used his left arm to turn my face towards him with the intention to kiss me. Then I told him, “I am not a street lady, I am married and I have 2 children and I was involved in trouble outside and I came in here and you are the police and you are supposed to look after m. If they think of something I don’t want that? When I say (sic) that he doesn’t (sic) take my word and he did it again, put his right hand around my waist and then he put his left hand around my waist and used his right hand to open my legs, and then he pushed his fingers to my body and tried to spoil me. I put my legs straight and stood up. When I stood there, I shouted 2 times ’police help, help? When those Police were still asleep, I got up and swung my right hand on his shoulder 2 times. But the other two police were very fast asleep. I tried to run into the female cell block but he followed me and tore my dress. Then he tried to pull me into a small room where they set the food for cell people. I tightened my muscles and swung both elbows against him and he fell down. I shouted but the other two police didn’t hear me, then I ran into the cell block and stopped there and the accused followed me into the cell block. Then I went and stood in the middle of the female cell block between the and the cell. When I was standing, I got frightened of that man and I used my hand to cover my front. I stood at the centre of the cell and turned my back to him and he came and put his 2 hands on my side and tackled me. I felt that he was trying to me to fall of the fall and get me down. Then I told him that I am a married woman, I am not a K2 meri. He put his hand into my pants and broke them, he opened my legs then he had sexual intercourse with me.
Q.       When he opened your legs on the concrete bench, in what part of your body did he push his hands (sic)?
A.       He opened my legs and pushed his hand into my vagina.
Q.       How far did he push his hand into your vagina?
A.       He pushed his hand right into my vagina.
Q.       Where were the two policeman when you shouted the first two times?
A.       When I shouted the first time saying ’help, help’. the other policeman slept on the cement slab outside the cell and the other slept in the cell guard.
Q.       Was one policeman sleeping on the same bench that you sat on?
A.       Yes, but when I shouted they didn’t wake up so I thought that they must have planned it.
Q.       When he had sexual intercourse with you, did you ask him?
A.       It was my desire I would not have come out and slept near the other two policeman.
Q.       He had sexual intercourse with you, what did he do?
A.       I was at the centre of the cell and he unzipped himself and he had sexual intercourse. He put his penis into my vagina and I felt it. He put his penis right inside and then he ejaculated and when I felt him ejaculate I tore his shirt and trousers and I hit him.
Q.       How many times did you have sexual intercourse?
A.       He went in and he pushed and shoved against me 4 times and after that he ejaculated.
Q.       Did you agree with him to have sexual intercourse with you?
A.       I have no desire for him to have sexual intercourse, but because he is a man he overpowers me.
Q.       After he had sexual intercourse what happened?
A.       After that I grabbed his shirt and trousers and tore it and pulled him out and I came to the policeman who was sleeping and hit his leg twice and then he woke. Then I said to the Policeman ‘this man did all this to me and had sexual intercourse with me, I shouted but you did not hear me...”
The medical evidence was given by Dr. Nad. He examined the Complainant on 19th January 1987 (same day of the alleged offence). When the doctor saw her she was not in a distress condition; there were no injuries, scratches or bruises on her body. So the medical evidence afforded no corroboration to the Complainant’s assertion of the Appellant having sexual intercourse with her without her consent.
Constable Sede Kure was on duty with the Appellant at the time of the alleged offence. Between 5 am and 6 am he went to sleep on the cement bench about 3 metres from Cell 10. He was fast asleep and about 6 am was awakened by Mary.
“Q.     How did she wake you up?
A.       By holding onto my leg and shaking me.
Q.       How vigorous a shape was it?
A.       I was very fast asleep and (she?) shake (sic) my body to wake me up.
When I woke up I saw a woman standing in front of me saying “You policeman or you come to work or what?” and said ‘I’m no K2.00 meri, yu panlim mi’/ Then I was surprised to hear that so then next thing Aron was standing beside her where the fan is and later I asked what’s wrong and as soon as she said “I’m not K2 meri” he held onto my shirt......
I asked her what had happened then and she said she was really hot and came out of the cell to drink some water and she came onto the bench where I was sleeping and she said to me, the defendant from where he was sitting he left the place where they register charges and he came to me and he kissed me and used his fingers in my private part. Then she said she left where she was sitting and came back to the cell and the accused followed her and she said the defendant came to where the female is now and she stood up and facing the wall she said giving her back away and the defendant lowered her underpants and had intercourse with her. After she came to where I was sleeping and woke me up.
Her clothes were normal. She was not crying. She was angry. Her clothes in good condition she didn’t shout or fought with Appellant.
After went to cell - nothing in the cell (N/B no pants on the floor).
YOP ELIAS
He was with Sede and Aron on 11pm-7am Shift. He was sick and went to sleep about 1 a.m. He saw no tears on the woman’s clothes.
He was awakened by her shouting.
SGT. JOANNE ONA
She spoke to Mary on 19.1.87 at the Boroko District Court. As a result of a ‘phone call’. Then took her to Taurama Hospital for medical examination. After Dr. Nad examined Mary she took her to the S.O.S. at Badili Police Station for interviewing.
The Interview was suspended at lunch time and Mary was taken home to shower and the interview continued at 1.30pm.
Mary told her during the intercourse her pants were pulled off. She didn’t see the pants as they were not shown to her. Before taking Mary to hospital they went to cell 10 and Mary showed her she was pushed against the wall!!
SGT. ANDOP WARRINGA
He talked to Mary at the CID Office at Boroko on the 19th. Mary gave her a pair of pants - between Orange and in pink colour. The pants were clean as evidenced by Sgt. Warringa’s testimony:
Pants were clean.
“Q.     You asked her to give you the pants then?
A.       Yes and she said she had the pants.
Q.       Did she tell you where the pants were?
A.       Yes, she said that she left the pants at home.
Q.       When did she speak to you?
A.       I asked her why she left them at home and she said: “I left them at home” or maybe they were in the bilum and she found it in her bilum”
The evidence adduced by the State very clearly shows two things:
1.       There was no corroboration of the Complainants’ evidence that sexual intercourse took place without her consent and
2.       Her evidence contained many inconsistencies.
The Appellant gave sworn evidence and he was extensively cross-examined by Counsel for the State. When his situation report had been picked up about 5.30am he went to check the cells. He found the complainant sitting on the cement bench.
“I came to the cement bench where Constable Sede was asleep on, then a female detainee was sitting at the far end of the cement bench and she called out, ‘Hey Sepik, you come here’. And I asked her, “Are you all right” and she said ‘I am all right’ and she asked ‘Now you are wire lus’. Then I told her to talk straight. That time I walked towards her and stood by her left side, then she said “Your workmate is sleeping close by, he might wake up and see us” and I told her ‘It is all right let him sleep’. Then she said, “Okay, I go in first to the Cell No. 10 and then you come out”. She went in first and took off her pants and was holding it while she was waiting for me. When I went inside, she was standing there waiting, When I went closer to her she said ‘I don’t want to lie down on the cement, I wan tot stand up. Then she was standing up facing the wall and she bent down and supported herself with her two hands on the cement wall. Then after that I had sexual intercourse with her.”
He did not sit down with her on the cement bench and he said there was no fight with her. After they had sexual intercourse in the cell he pulled up his trousers, zipped it up, buckled his belt and they both walked out of the cell.
“As I was trying to walk out the woman say (sic) ‘wait for a while’. She said “are you going to let me bail out or not?” and I said ‘You cannot be bailed out, you must go to Court first and if they say you can bail out, then you can bail out’ After that I was trying to go and open another cell block and check it, at the same time the woman came out to where Constable Sede was sleeping. She went over to him and woke him up. When I saw her wake up Constable Sede I walked towards her. As I walked close Constable Sede was already awake and then she got up and shouted up against me. She said ‘I’m not a K2 meri and you have had sexual intercourse with me.’ She grabbed me on my shoulder on the strip of the shirt and she tried to fight me but I evaded her hit. After that time Constable Yop was also woken up from the other room and separated us and opened the door and let me out.”
When he was interviewed by Sergeant Major Waruingi on 20th January 1987 the Appellant made no mention of the Complainant asking to be granted bail after he had sexual intercourse with her. The interview was short because he complained to Sgt. Major Waruingi that he was tired. No further interview took place afterwards. The failure to mention this matter of bail at the time of the interview caused the learned trial Judge to disbelieve the story.
That the Appellant was convicted on the evidence of the Complainant is clear. As the only issue was non-consent the learned trial Judge was only obliged to look for corroboration of the Complainant’s assertion of absence of consent. The State was required to prove beyond doubt that there was non-consent.
It is clear from the judgement appealed from that no thought whatsoever was given by the learned trial Judge as to whether there was corroboration by independent evidence of the complainant’s testimony that she did not consent to the Appellant having sexual intercourse with her. As far as the court is concerned neither the evidence called by the State nor by the Appellant afforded corroboration to the complainant’s story. In this jurisdiction the practice is that in rape cases (and other cases involving sexual charges) the courts must be mindful of the dangers of convicting an accused when the complainant’s testimony is uncorroborated in a material particular by independent evidence: Peter Townsend v George Oika [1981] PNGLR 12; The State v Andrew Tovue [1981] PNGLR 8; McCalhum v Buibui [1975] PNGLR 439.
In Townsend v Oika the failure to advert to this was considered to be fatal to the validity of the conviction:
“To fail to note such factor in the judgement is fatal to the conviction unless the Appeal Court can apply the proviso (i.e. proviso to s 22(2) of the Supreme Court Act)”.
Substantial miscarriage was done in that the complainant’s story which was full of inconsistencies and lies even was used to convict the appellant.
On the evidence, set out in full in this judgement, no reasonable tribunal could have been satisfied beyond a reasonable doubt that the complainant did not consent.
Appeal allowed and conviction quashed.
Lawyer for appellant: Mr Bray
Lawyer for respondent: Mr Unagui