Kalabus and Sanangkepe, The State v [1977] PNGLR 87 (22 March 1977)

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CRIMINAL LAW - Particular offences - Rape - Intent not element of offence - Consent - Need for honest and reasonable belief in consent - Availability of intoxication as defence - Penetration - Penetration not achieved through intoxication - Criminal Code s. 375, s. 24 and s. 28.

Upon a charge of rape under s. 357 of the Criminal Code, where the two accused alleged that they believed that the prosecutrix had consented and further that they were so intoxicated as not to be able to achieve sufficient erection to achieve penetration:

(1) No element of intent to cause a specific result is involved in a charge of rape under s. 357 of the Criminal Code.

(2) Accordingly where an accused on a charge of rape alleges a belief that the prosecutrix consented, the matter comes within s. 24 of the Criminal Code, which requires the formation of an honest and reasonable but mistaken belief that the prosecutrix was consenting, and the State may negative the existence of such a belief.

(3) On the evidence the prosecutrix did not consent and the accused did not believe on honest and reasonable grounds that she was consenting.

(4) Further, where an accused on a charge of rape alleges intoxication as a defence under s. 28 of the Criminal Code, such a defence will not be available to the extent that an “intention to cause a specific result” is not an element of the offence of rape.

(5) Penetration being an element of the charge of rape, and there being on the evidence sufficient doubt as against each accused that penetration was effected because of lack of capacity through intoxication, the charge had not been proved.

This was the trial of two accused on a charge of rape under s. 375 of the Criminal Code.

WILLIAMS J: These men are charged with rape on the night of the 27th/28th December, 1976.

The alleged crimes took place near the side of a road adjacent to Waigani Lodge in the grounds of the University of Papua New Guinea. Waigani Lodge consists of six individual units each with a bedroom, a work area, a refrigerator, shower and toilet. It appears that the building also contains a community dining room. At the time of the events with which this trial is concerned two only of the units were occupied, one by the prosecutrix (Room 6) and another by one Thomas Nakinch (Room 4).

Late in the afternoon of the 26th December, 1976, a mumu was held adjacent to Waigani Lodge. Following the conclusion of the mumu a social gathering was had in the dining room at the Lodge. At this gathering the participants were engaged in drinking and dancing. It appears that there were approximately thirty people at the social gathering including the prosecutrix. The gathering consisted mainly of men, a substantial proportion of which were Highlanders. It appears that there was one other European woman present in addition to the prosecutrix. The prosecutrix said that she left the party at about 1 a.m. on the Monday morning and then attended another party. She said that she returned to her home, Room 6, at about 4 a.m. in company with an African man who had coffee in her room. She said that she spent Monday resting, reading, writing letters and doing a jigsaw puzzle and that about 10 p.m. that night went to bed. In the meantime it appears that others, including the two accused, continued drinking throughout the Sunday night, throughout Monday and that this activity was carried on until about 11 p.m. Upon the evidence a considerable amount of liquor, including beer, spirits and some wine, was consumed.

It further appears that the prosecutrix had met neither accused before the party on the Sunday night and that her contact with them at the party was merely casual.

[His Honour then dealt at some length with the facts which are summarized in parts:

At about midnight the prosecutrix was awakened by the accused John Kalabus outside her front window, who was apparently making advances of a sexual nature to her, and she fled from him to Room 4 to seek the protection of Thomas Nakinch only to find the accused Aita asleep in his bed and apparently in a heavily intoxicated state. The accused John Kalabus then entered the room together with another man Joseph and after some conversation she fled the flat, followed by the accused Aita, believing at that stage that Aita was trying to protect her.] After an argument with Aita as to where she should go, she realized Aita was not going to protect her and that he probably wanted to have intercourse with her. At the same time she was aware that the Highlanders had all been drinking and was further aware that Aita was very strong. She said that she did not scream at this stage because if she did that Aita might do her some serious physical harm. She thought this because he was “somewhat drunk — because he was a Highlander and I am aware of the reputation Highlanders have for violence”. She said that Aita then started feeling her above the waist and that she pleaded with him and said something like “If you continue with this this is rape and if I tell the police this you will ruin your teaching career”. She also told him that her husband was in Australia and that he was a very violent man so that there would be trouble when he came back. She said that she was not married but was referring to a man with whom she had previously been living and who had gone to Australia and that she hoped Aita would believe what she had said. She also told Aita she would buy him as much beer as he wanted if only he would stop. Aita replied that he did not like beer and then pulled down the two zipps on her jeans and started feeling her between the legs saying “feel only, feel only”. She said that she did not consent to this. Aita then started pulling her jeans down. She also said, and I quote her answer at this point, “I cannot quite remember whether it was me or whether — it is hard for somebody else to take one’s jeans off — I cannot remember how they came down. He then pulled his jeans down and penetrated me”. By this she meant that he penetrated her vagina with his penis. At this stage she was wearing a T shirt only. She added that she did not consent to the penetration. About two minutes later, according to the prosecutrix, John Kalabus arrived. At the time of the arrival of Kalabus Aita was still on top of her and penetrating her. She said that at this stage she was feeling intense fear and “a fair amount of repulsion at what was happening”. Kalabus came up and lay down beside them.

[The accused Aita’s version of events in a statement to the police and in a statement from the dock, was that once outside his room they started telling stories, they kissed and he asked the prosecutrix “Can we have sex” to which she did not reply but took off her trousers, that he got on top of the prosecutrix but as he was drunk his penis was not fully erect, that John Kalabus then arrived, and he left, returned to his room and went to sleep.]

I now take up the sequence of events as related by the prosecutrix following the arrival of John Kalabus upon the scene. She said that whilst Aita was still on top of her John Kalabus arrived and lay down beside them. He put his hand up her T shirt and started sucking her breast whereupon she screamed very loudly. Aita then rolled off her whereupon Kalabus removed his shorts and pentrated her vagina with his penis. She said that she had not consented to this. She said that Kalabus repeatedly penetrated her but had difficulty in maintaining an erection and at one stage told her to have oral sex with him which she refused. She said that when she screamed initially she was stopped from further screaming by Kalabus putting his hand over her nose and mouth. At this stage she was not crying but shaking. She said that the time during which Kalabus was having intercourse with her seemed like about forty-five minutes, over most of which time she was lying there placidly. She said that this was because she was scared that if she tried to fight back he would become angry and harm her. At one stage Kalabus told her to rub his penis and insert it in her vagina which she did because she was frightened of what he would do if she did not do so and the further reason that the idea of oral sex with him disgusted her so much that she wanted to divert his mind from that. She said that although Kalabus penetrated her repeatedly he could not maintain an erection or achieve orgasm but would not accept that he could not achieve orgasm so he continued his activities. At this stage Thomas Nakinch arrived on the scene, lay down beside them and put his hand under her T shirt. Another man, whom she did not recognize, also came up and stood a short distance away. She said she tried to persuade Kalabus to go but that he said he would have one more try to achieve an orgasm. He and Thomas exchanged a few words in their own language whereupon Kalabus got off her and went and lay down about ten yards away. Thomas then suggested that they might go back to the Lodge whereupon she said to Thomas that she thought he was her friend and thought that he would protect her. At this time she observed a car draw up in the car park at the base of the steps leading up to Waigani Lodge. She observed that it was being driven by a European man and ran off to the car. At this time she was dressed only in a T shirt. The European man was a stranger whom she had not seen before but whom it transpired was one Dr. Murray Bathgate, who gave evidence at the trial. She said that she asked Bathgate for assistance because she had been raped. He said he would help her. At this stage Thomas arrived on the scene, and handed her her jeans through the window of the car which she then put on. Bathgate, the prosecutrix and Thomas then left in the car and proceeded to Gerehu to a friend of the prosecutrix’, one Glen Hopper. Hopper then took her to the Boroko Police. They then returned to Waigani Lodge where she indicated a number of things to the police. They then returned to the Police Station whereupon she was taken to the hospital for a medical examination.

Dr. Bathgate and Mr. Hopper gave evidence for the State. [Dr. Bathgate’s evidence corroborated the evidence of the prosecutrix in addition to which he stated that she appeared agitated and distressed though not hysterical, and was trying to get away from John Kalabus as fast as possible and was obviously frightened of him.

Mr. Hopper’s evidence was to the effect that the prosecutrix arrived at his door saying “I have been raped” and appearing extremely upset.]

Dr. Alemaena was called for the State. He said that at about 3.30 a.m. on the 28th December, 1976, he made a physical medical examination of the prosecutrix. He said that at that time she was conscious and alert but not in distress. There were obvious scratch marks on her face, her back, thighs and arms. No blood stains or lacerations were observed by him. Neither did he see any bruises or find any marked tenderness. There was no evidence of any fractures. A vaginal examination showed dirt in the area extending to the region of anus and buttocks. There were no bruises, blood or lacerations to the vaginal canal. He found in the vaginal canal foreign materials described by him as ground particles and dead grass. He also took a vaginal swab. He did not notice any odour on the woman’s breath. In cross-examination it was put to him that the foreign material found in the vaginal canal could be attributed to sitting on the ground without pants. He said that he did not think this was so as the foreign matter was too deeply situated in the vaginal canal.

The accused John Kalabus was interviewed by the police. This interview commenced at 12.43 p.m. on the 28th December, 1976. Its admission in evidence before me was objected to on the ground that at the time of the interview the accused John Kalabus was still affected by alcohol. After hearing evidence on the voir dire I admitted the record of interview.

[The accused John Kalabus gave evidence that after a friendly conversation concerning Papua New Guinea men with the prosecutrix in Room 4, she, the prosecutrix, took Aita’s hand and went out of the door. After some five minutes he followed to see what was going on and there he saw the prosecutrix naked and Aita getting dressed.] The prosecutrix was lying on the ground naked with her legs open “so I thought she was inviting me”. He said he sat beside her and took off his trousers but did not have an erection. He asked if she could assist him, which she did by playing with his “private parts”. He still did not have an erection. Then the prosecutrix said “you come on top of me that might help you get an erection”. He tried to penetrate her and she helped him to do so but he was drunk and was unable to effect sufficient erection to penetrate her. His statement goes on: “We stayed for some time and Thomas Nakinch arrived. Thomas spoke in English and said ‘John is this a rape or is she willing’ ”. He said he told Thomas it was not rape “she wanted it”, to which Thomas replied “I am sorry to disturb you I had better go home.” He said that shortly thereafter he saw the prosecutrix run towards a car in the car park with Thomas running after her.

It appeared clearly from her evidence that the prosecutrix is an educated and intelligent woman. In the main I thought her evidence was coherent and she related many intimate details without any apparent inhibition before a large gallery of onlookers. In substance it seems that her evidence was consistent with her evidence given in the committal proceedings.

On any view of the matter she went through a difficult experience. This in itself may well tend to impair a precise recollection of many details and may cause her to have been mistaken to some extent. In the main, however, she left me with the impression that she was endeavouring to give a truthful recollection of events. Had it been otherwise she could easily have denied her admitted vagueness in her recollection of the extent (if any) to which she assisted Aita in removing her jeans and she could easily have denied that whilst with John Kalabus she had at one stage assisted him to obtain erection. Features of the evidence of this nature lead me to accept that she was endeavouring to give a truthful account of her recollection of events. I also think that it is inherently improbable, that she was a willing participant in the events that occurred on the night in question. On the uncontradicted evidence she was awakened by the actions of John Kalabus who was apparently making advances of a sexual nature to her and she fled from him. That, a few minutes later, she willingly submitted to the two accused seems to be highly improbable. Had she done so it seems to be even more improbable that this submission would have taken place on hard ground on the road-side when the facilities of several rooms in Waigani Lodge were available for the purpose. To infer otherwise would be to impute to the prosecutrix the character of an abandoned or wholly immoral woman. Whilst the prosecutrix admitted that she was not a virgin at the time of the incidents with which this case is concerned the evidence as a whole does not reveal her in the light of an abandoned or wholly immoral woman.

I accept that she was throughout in a state of real fear and a feeling of revulsion and was concerned to extricate herself from the position in which she found herself with as little physical injury as was possible.

The accused John Kalabus in his statement to the police, his evidence in the District Court and his evidence in this Court asserted in effect that the prosecutrix freely consented to his actions without demur. I accept the uncontradicted evidence of the prosecutrix that she was awakened by John Kalabus, that he threw a bottle through the louvres of her room and generally indicated at that time that he was making advances of a sexual nature to her. That she fled from her room was known to him together with the fact that she sought protection from him in Room 4 and that she fled from the room with Aita. I am also disposed to accept the prosecutrix’ evidence that the conversation concerning the shyness of Papua New Guinea men alleged by John Kalabus to have taken place in Room 4 did not in fact occur. But assuming that it did occur then I think that certain answers given by John Kalabus in cross-examination are pertinent. I quote (at p. 152 of the transcript):

“Q. And you are telling the Court that the only thing that made you think that she might want sex was this alleged statement of her saying ‘you blacks are all right but too frightened to talk’?

Q. At no stage did she appear to be inviting you to have sexual intercourse with her?

It appears from the foregoing that the accused John Kalabus was asserting that the basis for his belief that the prosecutrix was a consenting party to his subsequent actions lay in some implied invitation contained in the alleged statement by the prosecutrix to the effect that Papua New Guinea men were shy. It does not seem to me that the statement of the prosecutrix even if made was reasonably susceptible of that construction a proposition to which, having regard to the accused’s second answer above quoted, the accused appears to have agreed. I cannot see that the statement attributed to the prosecutrix could be the basis of any reasonable belief on the part of the accused that the prosecutrix was a willing party to his subsequent actions.

In the case of Aita it appears both from his statement to the police and from his statement from the dock that he was aware that the prosecutrix was fleeing from John Kalabus and seeking his protection. The prosecutrix was obviously upset at this stage and yet according to Aita’s version, within a few minutes of leaving the room, she succumbed to his advances without protest or remonstration. Indeed on his version given in his statement from the dock she actively encouraged his activities. Again, I find this inherently improbable and, again, I think the version given by the prosecutrix is a far more credible account of what occurred.

It is said for both accused that there is no corroboration of the prosecutrix’ version. Whilst it is not a requirement of law that her version be corroborated it is nevertheless the general rule of practice that in cases of this kind that there should be evidence corroborating that of the prosecutrix. In R. v. Colless (a case before the New South Wales Court of Criminal Appeal)[lxxxii]¹, it was said:

“For there to be corroboration there must be some evidence, independent of the complainant, which confirms in some material particular not only the evidence that the crime was committed but, also, that the prisoner committed it. (R. v. Baskerville, [1916] 2 K.B. 658, at p. 667;) .... To look separately at each element said to constitute corroboration may lead to error, particularly as corroboration need not be, and rarely is, direct evidence that the accused committed the crime, but may be merely circumstantial evidence of his connexion with the crime (ibid., at p. 667). While it is true mere opportunity to commit the crime does not provide corroboration, yet, taking the circumstances surrounding the opportunity, they may be ‘of such a nature as to lead to the inference that it was probable that advantage would be taken of the opportunity’ ...

External evidence concerning the nature of the place and circumstances, under which sexual relations admittedly occurred, may provide corroborative evidence, of a circumstantial type, of lack of consent, although the only direct evidence thereof be of the complainant (R. v. Davy; R. v. Edwards, [1964-65] N.S.W.R. 40).” (The underlining is mine).

In R. v. Davy; R. v. Edwards[lxxxiii]² (another case before the Court of Criminal Appeal of New South Wales) it appears that the trial judge directed the jury that certain statements of the accused amounting to admissions to having intercourse or attempting to do so were capable of corroborating the prosecutrix’ evidence in circumstances where the real issue was consent or no consent. As to this the Court of Criminal Appeal in a joint judgment at p. 44 said:

The broad rule requires that in sexual cases there be some testimony independent of that of the prosecutrix which affects the prisoner by tending to connect him with the crime; that is evidence direct or circumstantial which implicates him, which confirms, in some material particular, not only the evidence given by her that the crime was committed but also evidence that the prisoner committed it. But confirmation is not required of everything she relates, as her evidence would be then unnecessary: R. v. Baskerville, [1916] 2 K.B. 658; [1916-17] All E.R. Rep. 38.

If the parts of the statements by the appellants as to consent are read alone, there may be something to be said for the argument. But when they are looked at in light of all the facts and are taken as a whole and read with the facts proved in evidence, the argument fails. The unnatural place where the intercourse took place is an important factor and photographs in evidence before the jury were revealing indeed. The facts that four men were together in this place during acts of intercourse (later three were present) and the fact that a girl, not suggested to be an abandoned woman, or wholly immoral, in such a place was practically naked lying on the ground, would, to any reasonably minded man, tend to negative consent. In any case this was a matter for the jury. The scene described in the statements of the appellants may have appealed to the jury as abnormal and fantastic and not disclosing a set of circumstances in which a young woman would be likely to yield to three strange louts.”

It seems to me that there is corroboration of the prosecutrix’ version. On any view of the version given by each accused there was at least an attempt at intercourse. There is thus corroboration of the prosecutrix’ evidence as to the identity of the two accused as her assailants on this particular occasion and of the scene of her alleged assaults. Further, the nature of the place and the circumstances under which sexual relations admittedly occurred provide corroborative evidence of a circumstantial type of lack of consent (see R. v. Colless[lxxxiv]³; R. v. Davy; R. v. Edwards[lxxxv]⁴). Additionally, there is the evidence of Dr. Bathgate of the prosecutrix’ flight from the scene semi-naked, and in a condition of some distress. There is also the evidence of Mr. Hopper concerning the physical appearance of the woman a very short time after the event. There is also the evidence of Dr. Alemaena concerning his findings upon his examination of the vaginal canal of the prosecutrix.

As I have indicated, each accused has admitted facts which clearly show that at least an attempt was made to have intercourse with the prosecutrix. Her evidence as to lack of consent, which I find credible, is also, in my view, corroborated in the manner that I have indicated.

Reliance was also placed upon a decision of the House of Lords in Director of Public Prosecutions v. Morgan[lxxxvi]⁵. In that case it was held by a majority that the crime of rape consists in having sexual intercourse with the woman with intent to do so without her consent or with indifference whether or not she consented. It could not be committed if that essential mens rea were absent. Accordingly, if an accused in fact believed that the woman had consented, whether or not that belief was based on reasonable grounds, he could not be found guilty of rape.

In that case the House was concerned with the common law concerning the crime of rape. Rape in Papua New Guinea is defined in s. 357 of the Criminal Code. The definition contains no words indicating that intent is an ingredient of the crime. The second paragraph of s. 23 of the Code provides that unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an Act or omission is immaterial. It has been held in Holman v. The Queen[lxxxvii]⁶, a decision under the Criminal Code of Western Australia containing provisions similar to that of the Papua New Guinea Code, that upon a charge of rape no element of intent to cause a specific result is involved. See also Reg. v. Thompson[lxxxviii]⁷. Belief in the fact of consent is a matter which is dealt with by s. 24 of the Code in terms of which a person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such a she believed to exist.

It, therefore, seems to me that the accused derive no assistance from Morgan’s case[lxxxix]⁸. Under the Code mistake of fact must be brought within the terms of s. 24 of the Code, which requires the formation of an honest and reasonable but mistaken belief. It is, of course, for the State to negative the existence of such belief.

The case for each accused in this matter is that whilst there were attempts at acts of intercourse the prosecutrix freely submitted herself to them. As I have already indicated, I do not think that the prosecutrix did in fact consent. I am also of the opinion that the evidence, which I have accepted, negatives the proposition that either of the accused so believed.

A defence of intoxication was also raised. Section 28 of the Code makes provision for this defence. The section, however, does not apply to the case of a person who has intentionally caused himself to become intoxicated whether in order to afford excuse for the commission of an offence or not. The section further provides that when an intention to cause a specific result is an element of an offence intoxication whether complete or partial and whether intentional or unintentional may be regarded for the purpose of ascertaining whether such an intention in fact existed. As I have previously stated, it is my view that an intention to cause a specific result is not an element of the offence of rape as defined by the Code. Additionally, whilst the evidence shows that each accused had over a period of time prior to this incident consumed a considerable amount of liquor the fact is that each accused sought to give a detailed account of events which to my mind is wholly inconsistent with the proposition that at the time each was so befuddled as to be unaware that he was making a sexual assault upon the woman in their admitted actions. Their claim is that she was a willing participant. Further I did not understand either accused to allege any lack of capacity to form any intention, the claims being confined to the lack of capacity through alcohol to achieve erection and in the case of John Kalabus that his subsequent statement to the police should be disregarded on this ground.

I come finally to the question of penetration without which, of course, the crime of rape is not complete. Both accused denied effecting penetration. Each maintained that by reason of the prior consumption of alcohol he was unable to achieve sufficient erection to achieve penetration. This has been consistently maintained and was first asserted when interviewed by the police later on the same day of the events with which this case is concerned and apparently before there was any opportunity for discussion amongst themselves or with anyone else. There can be no doubt that at the time of the incident each was affected by alcohol and it seems to me that their evidence in this respect is not improbable. The finding by the doctor of foreign material deeply seated in the vaginal canal supports the view that some degree of penetration was effected by someone but is not evidence of penetration by any particular person. The prosecutrix was adamant that penetration was effected by both accused. Whilst I have been disposed to accept her evidence on other matters I feel that on this issue the claims of the accused, made as they were at an early stage to the police, cannot be lightly discounted. In so saying I am not suggesting that the prosecutrix was deliberately giving an untrue account but in the light of all the circumstances surrounding the incident including the scene of the incident, the condition of the accused and the prosecutrix’ stated fear and revulsion there may be room for mistake on her part. Whilst I have no doubt that each accused endeavoured to effect penetration and whilst the medical evidence suggests that someone achieved some penetration I am left in some doubt as against each accused that he actually effected his purpose. I must give the benefit of this doubt to the accused.

I am, however, satisfied beyond reasonable doubt that each attempted intercourse without the consent of the prosecutrix and without entertaining any belief based on honest and reasonable grounds that she was consenting.

[lxxxii] [1964-65] N.S.W.R. 1243 at p. 1244.

[lxxxiii][1964-65] N.S.W.R. 40.

[lxxxiv][1964-65] N.S.W.R. 1243.

[lxxxv][1964-65] N.S.W.R. 40.

[lxxxvi][1975] 2 All E.R. 347.

[lxxxvii][1970] W.A.R. 2.

[lxxxviii] [1961] Qd. R. 503 at p. 516.

[lxxxix][1975] UKHL 3; [1975] 2 All E.R. 347.

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Papua New Guinea Law Reports

Kalabus and Sanangkepe, The State v [1977] PNGLR 87 (22 March 1977)

Papua New Guinea Law Reports - 1977