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State v Waima [2004] PGNC 193; N2578 (19 March 2004)

N2578

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1447 & 1448 of 2003

THE STATE

-V-

VENANCIUS WAIMA and
MARTIN KINU

VANIMO: KANDAKASI, J.
2004: 15th and 19th of March

CRIMINAL LAW - Verdict – Rape and attempted rape – Issue for trial consensual sex and total denial respectively - Medical report not supporting rape charge – Victim failing to call for help once free – Relatives reaction to victim immediately after alleged offence suggestive consensual affair – Victim not believed - Sufficient doubt created – Not guilty verdict returned – Criminal Code ss.347 and 348..

Cases cited:
SCR No. 1 of 1980; Re s. 22A (b) of the Police Offences Act (Papua) [1981] PNGLR 28.
The State v Peter Malihombu (unreported judgment delivered on 29/04/03) N2365.
The State v Kevin Anis & Martin Ningigan (unreported judgment 07/04/03) N2360.
The State v. Onjawe Tunamai (unreported judgment delivered on 15/02/00) N1989
Jimmy Ono v. The State. (unreported judgment delivered on 04/10/02) SC698.
The State v Cosmos Kutau Kitawal & Anor (No 1) (Unreported judgment delivered on 15/05/02) N2266.
The State v. Gari Bonu Garitau and Rossana Bonu, [1996] PNGLR 48.
Garitau Bonu & Rosanna Bonu v. The State (Unreported judgment delivered on 24/07/97) SC528
Paulus Pawa v. The State [1981] PNGLR 498
The State v. Tauvaru Avaka & Anor (Unreported judgment delivered on 2/11/00) N2024.
Gibson Gunure Ohizave v. The State (Unreported judgment delivered on 26/11/98) SC595.
John Jaminan v. The State (N0.2) [1983] PNGLR 318.

Overseas Cases Cited:
Browne v Dunn (1893) 6 R 67 (HL)

Counsel:
F. K. Popeu for the State
D. Kari for the Accused

19th March, 2004

KANDAKASI J: Both of you pleaded not guilty to a charge each of rape and attempted rape respectively against a victim, named but I will simply identify as the victim to avoid further, unnecessary shame and hurt. You were alleged to have committed the offences on 16th June 2003 at Issi, Leitre, here in the Sandaun Province. Venancius Waima, you denied the charge against you, claiming that you did have consensual sexual intercourse with the victim. As for you Martin, you denied any knowledge and commission of the charge against you.

This necessitated a trial, on Tuesday (15/03/04) this week. The State called the victim and two other witnesses in a bid to establish the charges against you. In addition, the State tendered into evidence, your respective records of interview in both the Pidgin and English versions as exhibits "A", "B", "D" and "E". Exhibit "C" was a medical report by Bennedine Sissai dated 17th June 2003. In your defence, you both took the stand and gave sworn evidence.

The prosecution always has the burden to prove beyond any reasonable doubt every element of an offence in all cases that is prosecuted. The Supreme Court in SCR No. 1 OF 1980; Re s. 22A (b) of the Police Offences Act (Papua)[1] confirmed this. What this means in your case is that, the State had the burden to prove each of the elements of the respective charges against you beyond any reasonable doubt. The question for this Court to resolve then is, has the prosecution proved all of the elements of the charge of rape and attempted rape against you?

The elements that the State was required to prove beyond any reasonable doubt are respectively set out in s. 347 for rape and s. 348 of the Criminal Code for attempted rape in these terms starting with the offence of rape:

"347. Definition of rape.

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

From the language used by Parliament, the following are the elements that make up the offence of rape:

(1) A person who:
(2) Sexually penetrates;
(3) Another person;
(4) Without that person’s consent.

As for the offence of attempted rape, section 348 provides:

"348 Attempt to commit rape.

A person who attempts to commit the crime of rape is guilty of a crime."

The relevant elements for this offence would include a person who attempts to commit the offence of rape, where the elements outlined for the offence of rape except penetration would exist.

These means, in order to secure a conviction against you on the respective charges against you, the State was obliged to prove beyond any reasonable doubt each of these elements. A failure to do that has to result in your acquittal. Therefore, it becomes necessary now to consider the evidence that the State has produced against you and your response to that evidence.

A decision on your guilt or innocence is thus, dependant on which side’s evidence I accept. That decision can only be arrived at after carefully considering the testimonies of each of the witnesses and testing them against well accepted principles including, logic and commonsense and their demeanour in the witness box. Accordingly, I now proceed to state and consider each of the witnesses and their evidence.

First State Witness – The Victim

I start that process with a consideration of the State’s first witness, the alleged victim of the alleged offences. The witness recalls going to the beach at her village, Issi, Leitre, here in the Sandaun Province on 16th June 2003 between 7:00 and 8:00 pm to urinate. Upon her return, she stood on the beach, when you Venancius came from behind her and grabbed her. You took both of her hands, put them at her back with one of your hands, and used your other hand to shut her mouth. You then took her about 50 to 60 meters away from where she stood and took her into a kunai grass bush. There you pushed her onto the ground. She tried to scream but you shut her mouth with your hand. You then proceeded to remove her clothes and have sexual intercourse with her against her will.

While Venancius was in the act of forceful sexual intercourse, with her, you, Martin Kinu turned up and witnessed the incident. As soon as Venancius finished helping himself, you tried to help yourself as well. When she tried to get up, you pushed her to the ground and tried to forcefully have sexual intercourse with her. However, she was able to fight you off and managed to run away to her house with you following her, until she reached her sister’s house.

Once at her sister’s place, her sister asked her as to what was happening and she told her sister what had happened. Thereupon, her sister belted her up and went to the village police while the victim went to her house. The village policeman reported the incident to the regular Police. The next day, she was taken to the hospital for a medical examination.

You and the victim are not strangers. You all come from the same village and indeed, you are the victim’s cousin brothers. There was no enmity between the victim’s and your families. On the day of the alleged offences, even though there was no light, the victim was able to identify you. The clothes you wore during the day also assisted her in her identification of both of you.

Under cross-examination, it was suggested to the victim that, she had earlier met and agreed with you Venancius to have sexual intercourse. So in line with that, she went and waited at the beach. That is when you Venancius caught up with her and proceed to execute the agreement. She of course denied this suggestion but the following question and answer in cross-examination is interesting:

"Q. The reason you went and reported the matter was because they would find out?

1. I would have felt ashamed.
17. You said rape because your sister would belt you up?

A. Even if I did not tell, they would still belt me up."

Second Witness – Willie Laga

The next State witness was Willie Laga. He is the village peace officer. He recalls being at his house on the day of the alleged offences when the victim, her mother and elder sister saw him about the incident. That was between 7:30 and 8:00pm.

Upon hearing the complaint, he went and took a view of the scene using a torch. He observed that it look like more than two or three people had a struggle. Then he went to both of your residences and found that neither of you were there. The next day, he confirms reporting the matter to the police and taking the victim to the hospital for medical examination.

Third Witness – Paula Takis

The third and final witness called by the State was Paula Takis. She is the elder sister of the victim. She recalls looking for the victim in the evening of 16th of June 2003 and finding her.

Upon finding the victim, the witness asked the victim, where she had been. At that time, she was crying. Notwithstanding her crying, the witness proceeded to belt up the victim. She did that, without allowing the victim an opportunity to answer the question. She did not even bother to ask why she was crying. Even the victim’s mother did not ask the victim to tell them of the reason for her crying.

After having belted up the victim, her mother and the witness took the victim to the village peace officer.

The other State evidence includes your respective records of interview with the police and a medical report on the victim dated 17th June 2003 by a RHEO, Bennedine Sissai, as already noted. Your respective records of interview is consistent with you, Martin’s total denial and you Venancius’ claim that it was a pre-arranged and consensual sexual intercourse with the victim.

The medical report states:

"No bruises or trauma on the body generally. Vulva examination shows no abrasions or tears but there were few sand around the right lateral of labia majora. There was quite tenderness and hymen not intact during examination.

High vaginal swab showed no presence of spermatozoa when taken."

Your Evidence

Both of you took the stand and gave a sworn testimony. Venancius, you admit to being related to the victim. You then state that earlier on during the day of 16th June 2003, you saw the victim with her small sister. At that time, you asked her politely to have sexual intercourse with her. You say, you were able to do that as she was your girlfriend and that you have had sexual intercourse with her two times before.

You went on to state that, the victim agreed to your request and agreed to meet you at the beach later in the night. In pursuance of that agreement, you proceeded to the beach and waited for her there. While you were there, she came and passed her urine at the beach and than came and followed you to the members area. There, the victim removed her own clothes while you removed yours. Then she laid down on the ground and you laid on top of her and proceeded to have consensual sexual intercourse with the victim taking your penis and putting it into her vagina. You released your sperm twice.

After you finished, you both put your clothes back on. You then went to your house while the victim went to hers.

As for Martin, you admitted to being at the village on the 16th of June 2003 and passing the victim on the way as you headed to the village. However, you deny having anything to do with her. You state that the victim has called your name for nothing.

Assessment of the Evidence and Findings of Fact

(i) Principles Applicable

As noted, the prosecution always has the burden to prove beyond any reasonable doubt every element of an offence in all cases that is prosecuted. What this means in your case is that, the State had the burden to prove each of the elements of the offence of the charge of rape and attempted rape beyond any reasonable doubt in order to secure a conviction against you. The question for this Court to resolve then is, has the prosecution proved all of the elements of the respective charges against you beyond any reasonable doubt?

This calls for an assessment of the evidence now before the Court and a decision on the issue presented. A number of well-established principles govern the assessment of evidence and the acceptance or rejection of a witness’ testimony. One of these goes into the credibility or the reliability of witnesses and their evidence. This in turn depends on the witnesses’ evidence meeting a number of requirements, which need not exist all at the same time in any one case.

One of these requirements is the need for consistency in a witness’ own evidence and other evidence called by a party. In The State v Peter Malihombu[2], I found amongst others that there were a number of inconsistencies in the prosecution’s evidence. I found these inconsistencies serious enough to cast a serious doubt on the case against the accused. Accordingly, I found that the prosecution did not establish its case beyond any reasonable doubt. Many other cases have considered and applied this principle. Some of the examples are the judgments in The State v Kevin Anis & Martin Ningigan[3], The State v. Onjawe Tunamai[4] and Jimmy Ono v. The State.[5]

These and other authorities make it clear that, where serious inconsistencies exist, there is the possibility of false testimony and therefore unsafe to act on.

Another requirement is that, the evidence given must be consistent with logic and commonsense. I restated the law in The State v Cosmos Kutau Kitawal & Anor (No 1)[6] in these terms:

"Logic and common sense does play an important part in either the rejection or otherwise of evidence before a court of law and whether or not an accused person should be found guilty."

This was a restatement of the law and its application in The State v. Gari Bonu Garitau and Rossana Bonu,[7] by the National Court and affirmed by the Supreme Court in Garitau Bonu & Rosanna Bonu v. The State.[8] Early statement of and an application of this principle is in cases like that of Paulus Pawa v. The State.[9]

An additional requirement concerns the performance or the demeanor of the witness in the witness box. An application of this principle decided many cases in the past. Examples of these are, cases like that of The State v. Tauvaru Avaka & Anor[10] and Gibson Gunure Ohizave v. The State[11].

It is also settled law that, in order for a party’s claim to be considered credible, he must in fairness put his case or claim to the others’ witness by way of cross-examination. That, I noted was in effect what is meant by a "fair hearing in s. 37 (3) of the Constitution, which I considered is a codification of the rule in Browne v Dunn (1893) 6 R 67 (HL). In that context, I further observed that where a party fails to do that, his or her subsequent claim loses credibility and is therefore not reliable. The Supreme Court in John Jaminan v. The State (N0.2) [1983] PNGLR 318 at pp. 332-333 per Bredmeyer J made that clear in the context of a belated claim of alibi.

Your Case

Applying these principles to your case, I need to first consider and find if the State has established a prima facie case against you before giving any consideration to the case in your defence.

A careful and close consideration of the evidence called by the State reveals a number of factors that creates some serious doubt in the Court’s mind. Firstly, the victim says, she tried to shout but she could not because, Venancius shut her mouth with his hands and took her away to a good 50 to 60 meters away from her aunt’s house. However, after Venancius had finished his alleged rape on her, she was no longer prevented from shouting, calling for, and going for help. Indeed, that is what she says she did when Martin tried to rape her. There is no evidence or suggestion that Martin had a knife or gun pointed at her to prevent her from calling for help. If indeed she was free and was able to struggle and escape successfully from Martin, she could have shouted or screamed and attracted attention or help. Help could have easily come because she was not far away from the village and her aunt’s house. There is no evidence of her shouting or screaming for help the moment she was free to do that. There is no satisfactory explanation as to why she could not do that.

Continuing from that is the second factor. The third State witness was one of the first to meet the victim immediately after the alleged rape and attempted rape on her. This witness did not say that the victim came shouting, screaming, or showed any other sign of being raped, and successfully getting away from a second attempt. It is quite normal in rape cases for there to be evidence of it in terms, for example of, bruises, torn clothes, or some sign of a struggle none of which this witness was able to notice on the victim.

Thirdly, the reaction from the third witness and the victim’s mother is quiet strange. They got on the victim even without asking her any questions. There is evidence that, the mother and the sister had been looking for her but neither this witness nor any of the other witnesses’ state what caused them to do that.

Fourthly, the medical report is not conclusive on the question of, was the victim raped? The report clearly states that, there were no abrasions or tears or the presence of sperm in the victim’s vagina. After having dealt with a number of rape cases already, I could easily say that, it is normal for a victim of rape to show some signs of a forceful sexual intercourse by traces of tears, bruises and or abrasions in the vaginal area. The presence or not of sperm cannot be conclusive because there might well have been a sexual penetration without the release of sperm or sperm might be present because of a consensual sexual intercourse.

Finally, if it is true that Venancius raped the victim by overpowering her, she could have been exhausted and would not have had the energy to fight off Martin. However, her evidence is that, she did successfully do that without demonstrating how she was able to fight of Martin after the rape on her and not Venancius before the rape.

It is trite law that the prosecutions burden to prove a charge against an accused beyond reasonable doubt includes an obligation to negative the existence of any defence raised by an accused. I noted that principle in The State v. Peter Malihombu[12] in these terms:

"It is settled law that the defence can not establish the prosecution’s case. That means the prosecution must first establish a prima facie case against an accused person. That includes an obligation to negative any defence that may be raised by the defence. Once the prosecution has established a prima facie case, only then can the defence be called upon to answer it: R v. Agana Guguna (1965) N364 and The State v. Cosmos Kutau Kitawal and Christopher Kutau (No 1) (15/05/02) N2266. It follows therefore, in my view that, if the defence has gone into evidence, a Court must delay a consideration of that evidence until it is satisfied that the prosecution has discharged its obligations. I believe this is the consequence of the Constitutional guarantee of presumption of innocence until proven guilty."

In the present case, the defence was one of consensual sexual intercourse on the rape charge and not committing the offence in the case of attempted rape. The prosecution was thus under an obligation to not only produce evidence proving the commission of the offences alleged but also evidence negating the claim of consensual sexual intercourse. It was therefore incumbent on the State to produce evidence as to the following:

(1) a reasonable explanation as to why the victim did not show any physical signs of a forceful sexual intercourse;
(2) why the victim could not shout or scream for help as soon as she was able to get her mouth free and struggle free from Martin if indeed there was a struggle with him;
(3) An explanation as to how the victim was able to fight off Martin and not Venancius, especially when she could have been rendered weak and exhausted after the alleged rape on her;
(4) Evidence showing that victim’s big sister and mother looked for her because of the offence alleged and not because she was having a consensual sexual affair with either or both of you; and
(5) Evidence showing that the third witness and the mother’s reaction is logically consistent with a case of rape or attempted rape.

The State has failed to produce appropriate evidence in respect of these areas. These failures leave much room open for a suggestion that the victim and Venancius had a consensual sexual affair. It also casts serious doubts as to the credibility of the witnesses called and hence there evidence. This could mean either that the witnesses were lying or were withholding relevant evidence. It would therefore be unsafe in the circumstances to accept the evidence called as credible and return a guilty verdict.

In the end, I find this lack in the evidence or inconsistencies in the evidence themselves and out of any sense of logic and commonsense accounts is serious enough to cast a serious doubt in relation to the credibility of the case against you two. As the defence can only be called to rebut a prima facie case against him or her, I cannot see any reason or justification for a consideration of the defence evidence. To do so would be unnecessary waste of time and resources. Hence, without any further or do, I find that the respective charges against you have not been established on the required standard of prove. I therefore, order a dismissal of the charges against you and further order that you be acquitted forthwith.
___________________________________________________________________
Lawyers for the State: The Public Prosecutor
Lawyers for the Accused: The Public Solicitor

^[1] [1981] PNGLR 28 at page 34, per Greville Smith J. For a quotation of the relevant passage and application, see The State v.Ben Noel & Ors. (unreported judgment delivered on 31/05/02) N2253.

^[2] (unreported judgment delivered on 29/04/03) N2365.
^[3] (unreported judgment 07/04/03) N2360.
^[4] (unreported judgment delivered on 15/02/00) N1989
^[5] (unreported judgment delivered on 04/10/02) SC698.
^[6] (Unreported judgment delivered on 15/05/02) N2266.
^[7] [1996] PNGLR 48.
^[8] (unreported judgment delivered on 24/07/97) SC528
^[9] [1981] PNGLR 498
^[10] (Unreported judgment delivered on 2/11/00) N2024.
^[11] (Unreported judgment delivered on 26/11/98) SC595.
^[12] Supra note 5.