N2306

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE AT WAIGANI]

CR 488 of 2001

THE STATE

V

PETER BAGLE KAMANE
(the ‘Accused’)

Waigani: Davani, .J
2002: 18, 19, 22 November

EVIDENCE – Cross-Examination – Need to cross-examine on case which Defence relies on – Rule in Browne v Dunn – Principle of fairness applied

PROCEDURE – Trial, when Defence counsel can open – Principle of fairness applied

Cases cited:
Browne v Dunn [1893] 6 R 67 (HL)
State v Minjipa [1977] PNGLR 293 
State v Terry Charles [1990] PNGLR 63
State v Simon Ganga [1994] PNGLR 323
State v Benny Moiri Kairi CR 487 of 2002, 22nd November 2002

Counsel:
M. Zurenuoc for the State
S. Maliaki for the Accused

22 November 2002

DECISION
(on verdict)

DAVANI .J:	The Accused pleaded not guilty to one count of Rape upon one female RB (the ‘Victim’) which allegedly occurred at Gerehu in the NCD on 5 November 2001.

Undisputed facts

These are that the Accused and the Victim are related. They are both from Gobme Village in the Simbu Province and are both from the same clan or haus line. The Accused was then unemployed. The Victim was then an employee of the Gerehu Country Club. She still works there. Both the Accused and the Victim resided at the home of Fred Martens at the Rainbow Estate, Gerehu. However prior to that, they had both resided with the family of one Joseph Onguglo at the Nine Mile Settlement. It was the Accused who took the Victim to Joseph Onguglo’s home and later Fred Martens home. It was also the Accused who had suggested to Fred Martens to employ the Victim. The Victim no longer resides in Fred Martens home having moved to a girls’ hostel five months ago.

On the night of 4 November 2001, about 12 midnight, the Accused was at the Country Club, drinking. The Victim, having completed her shift, then asked the Accused to walk her home to Fred Martens house. They took a short cut by the Gerehu back road, to Rainbow village. On the way, the Accused had sex with the Victim.

Evidence

The State tendered by consent the pidgin and English version of the Accused’s Records of Interview with the Police on 25.2.02. Other statements of policewomen were tendered by consent and which confirm the Record of Interview having taken place and the crime scene visited.

Defence only called the Accused.

At the commencement of trial, Defence informed the court and the State that the issue was one of general denial. Midway through evidence, it transpired that the issue was one of lack of consent. Defence had not advised Prosecution of this as is the procedure. I will address this anomaly in detail, at a later stage.

Both the Accused and the Victim left the Gerehu Country Club about 12.00 midnight on 4th November 2001. The act of sexual intercourse allegedly occurred on the road or short cut leading to the Rainbow village. The Victim claims the act of rape occurred on 5 consecutive occasions. When asked in cross-examination whether all these acts involved penetration, she stated that they were not acts of penetration only but other sexual acts which were:

1.	the Accused masturbating and subsequently ejaculating over her breasts;
2.	the Accused forcing her to perform oral sex on him;
3.	the Accused attempting anal intercourse.

The Victim said the ordeal lasted from about 1.00am in the morning of 5th November to 4.00am of the same morning. She said she was punched in the mouth and her face and was also punched on other parts of her body. She said she was thrown physically onto the ground whereupon the Accused then sat on her and performed these sexual acts described above. She said he used his shirt to cover her mouth to stop her from screaming. She said her jeans were forcefully removed of her including her black underwear. She also said the Accused did not use any condom. 

She described in vivid details the acts leading up to sexual intercourse. She said the Accused forcefully opened her legs and brought them up to her hips. She also said he had at one stage searched for an object to shove into her vagina. She had to fight and struggle with him to prevent that from happening. The next stage she said was when he sat on her whilst she was on the ground. This was when he masturbated and ejaculated on her body. Then he lay her on her stomach face down, and attempted to have anal intercourse with her. She had to fight him to push him away. He then started punching her in her face. Throughout these acts, he continuously punched her on her arms, her legs, her thighs and as a result she was gradually weakened. He was then able to pin her to the ground and performed the acts he performed on her. She said she was helpless.

She said she was very weak and was only able to walk to her residence at Rainbow village after the Accused left her, and after she had had a short rest. She said when she arrived at her residence at Rainbow village, she called out to a boy by the name of Simon to open the gate. He did so. Other people were there also with Simon when he opened the gate.

She said she could not walk for about two days and it was not until Tuesday that the matter was reported to Police by the people who reside in the same house with her. Both the Accused and her were taken to the Police Station by the police who obtained their statements. 

The Accused in his evidence said that the Victim had consented to the acts of sexual intercourse. 

It was at that stage that I questioned defence counsel as to why this was not put to the Victim in cross-examination. I asked if counsel was familiar with the rule in Browne v Dunn to which she answered in the affirmative. However, even then, the Accused’s evidence on consent was not put to the Victim. I will discuss this in further detail, below.

Witness Constable George Kumun attached to the Gerehu Police Station gave evidence that the complaint of rape on the Victim was reported to him between 9.00 and 10.00pm on the evening of Monday 5th November 2001. He said the Victim was accompanied by male persons who reported the complaint. He said he noticed that the Victim was very distressed. She was crying and that she had a lot of difficulty in walking. She also had a very swollen face. The complaint he said was one of rape by Peter Kamane the accused. He said that he could not obtain a statement from her as she was crying so he only got particulars and a brief of the incident. He said that apart from not being able to walk properly, he noticed that the Victim could not stand up and had to be supported to stand up. 

Witness Simon Kosa for the State is also resident in the house the Victim resides in. His older sister is married to the owner of the house, an expatriate man. He said that on the morning of 5 November 2001 at about 3.00am in the morning he heard banging at the gate and his name called. He said he then opened the gate and saw the Victim. He said at first he could not recognize her because her body was covered in black ashes. He also saw that although she was wearing her jeans, she was holding onto it at the waist to prevent it from falling. He saw that her lips and face were swollen. His aunt Mary was with him and she assisted the Victim up to the house. It was also whilst at the gate that the Victim told him and his aunt Mary that she had been raped by the Accused. 

He said he reported the incident to the police about 7.00pm on Tuesday evening. He said he had to do that because the Victim was not able to walk to the Police Station. He also said that the Accused came in after the victim, had gone into the house. He had ashes on his pants, the same that he saw on the Victim’s clothes and body. He said that the Accused had arrived 20 minutes after the Victim had come to the house. He was still drunk and also argued with his mother. He said his mother had argued with the Accused because his mother had blamed the Accused for hitting the Victim and raping her. The Accused denied having raped the Victim.

Analysis of Evidence and the Law

The issue as raised above is whether the Victim had consented to sexual intercourse. In the State v Terry Charles [1990] PNGLR 63 Doherty A.J as she then was said:

"Consent (either expressed or implied) to sexual intercourse may be given in such a way that it is dependent on certain conditions, non-fulfilment of which will imply revocation of consent. Accordingly, in circumstances where the prosecutrix agreed to go with the accused to his parents’ house for the night but was taken instead to a broken down and deserted house nearby where sexual intercourse was forced upon her by the accused and four others, any implied consent to sexual intercourse in the safety of the parents’ house was revoked when the accused sought to take her to a place that exposed her to danger".

In this case, the Victim said the Accused was her ‘brother’ and whom she had known for several years. Therefore, there is a general degree of trust between the parties. However, along the way the Accused had sexual intercourse with her, and based on the evidence, by force. It is a matter of commonsense and reasonable inference that if no force was used, then it follows that there was no resistance, and if there was no resistance then there was consent. In this case, the Victim was severely beaten. On her arriving at her residence, she was found to have a very swollen face. She could not walk properly for at least two days. She was also observed by the Policeman to be very weak and unable to properly stand or walk. Clearly, with these obvious physical disabilities, there cannot have been consent by the Victim to the acts of sexual intercourse.

There is a discrepancy in the evidence of when the offence was reported. The Policeman said the offence was reported on Monday whereas the Victim and Simon said it was on Tuesday. There is always the possibility of dates being mixed up and this is what may have occurred. I will accept that the incident was reported on the Tuesday.

In relation to the medical evidence, the Doctor said that he was unable to perform the spermatazoa test on the Victim, as infection had already settled in. The Doctor’s report dated 13th November 2001 stated that on examining the Victim, her face had bruises, her face, neck and thighs had abrasions and her thigh muscles were very tender on palpation. His report stated that, "On clinical grounds, she was obviously assaulted and raped…". He was not swayed in cross-examination. In any event, this statement was not negatived by the Defence, and is therefore, confirmed independent evidence of rape.

In relation to the infection, the doctor said that he noted this to be Syphilis. However, he said he could not tell, if Syphilis was contracted before or after the rape.

Another matter to be raised at this time is the manner in which the Accused’s supposed defence was presented. The State was not told of the Defence of lack of consent (to be raised by the Accused) until the middle of the Accused’s examination in chief by Defence Counsel, when I raised it. This clearly breaches the rule in Browne v Dunn [1893] 6 R 67 (HL). The essence of this rule is that the accused’s case should be put to the prosecution witness in cross-examination. In other words, it is desirable that what the accused relies upon be put or suggested to the prosecution witnesses so that they can refute or explain. 

This principle has been upheld in many cases and which I refer to and discuss in detail in the case the State v Benny Moiri Kairi CR 487 of 2002, 22nd November 2002. The importance of putting one’s case to the opposing party’s witnesses has repeatedly been emphasised in Papua New Guinea. In the first reported case, Prentice DCJ, held in State v Minjipa [1977] PNGLR 293 that it is desirable that the defence counsel open in cross-examination of the State witnesses, the version on which the defence relies and that defence counsel do their clients no good by not opening on cross-examination of State witnesses, the version upon which the defence relies. If it is to be suggested that State witnesses are lying or mistaken or failing in accuracy or recollection, they should be questioned to that effect and given an opportunity to explain. A lawyer cannot correctly professionally keep their own case secret until his/her client gives evidence. Nor can the lawyer expect that this story will receive much credit if this course be taken. (Also, see State v Simon Ganga [1994] PNGLR 323). I adopt this same reasoning and apply it in this case.

Clearly, the Accused does not have a Defence. I must say here also that it is counsel’s negligence that has resulted in this blunder. Defence Counsel will be chastised by the Bench where such ‘blunders’ occur. Defence Counsel or any counsel for that matter, must accept ‘lessons’ from the Bench, if the ‘blunder’ is of their making. In no uncertain terms, these ‘blunders’ that I refer to, portray professional negligence of the worst kind. This should not be allowed to happen. 

I find that the acts of sexual intercourse occurred without the Victim’s consent and that the State has proven beyond reasonable doubt, the offence of rape.

Verdict

Having found that the State has proved beyond reasonable doubt the charge of rape, I find the Accused guilty of the crime of Rape.
_____________________________________________________________________
Lawyer for the State		:	Public Prosecutor
Lawyer for the Accused	:	Public Solicitor