N2851

PAPUA NEW GUINEA
[In the National Court of Justice]

CR 818 of 2004

THE STATE

v.

ZESIS LAHU

Madang	:	Sevua, J
2005	:	11th, 12th & 15th April

CRIMINAL LAW – Rape – Elements – Penetration and lack of consent – No dispute as to act of sexual intercourse – Issue is consent – Penetration not in dispute - Prosecution need not prove it - No case submission – Principles of – Two distinct tests – No case submission upheld – Accused acquitted.

Cases cited in judgment:
The State v. Paul Kundi Rape [1976] PNGLR 96
The State v. Misimb Kais [1978] PNGLR 241
The State v. Roka Pep [1983] PNGLR 19
The State v. Roka Pep No 2 [1983] PNGLR 287

Counsel:
Mr. Ruarri for State
Ms Turi for Accused

15th April 2005

RULING ON NO CASE TO ANSWER SUBMISSION

SEVUA, J: The accused is indicted with one count of rape contrary to s. 347 of the Criminal Code Act.

The allegations against him are that on the evening of 30th March 2004, the prosecutrix and accused with two others had left the 4 Mile Market in Madang to return to their village at Aiha in Amele in a bus. They were dropped off then set out on foot on a track to their village. At about 7 pm, as they walked to their village, the accused left the prosecutrix and the other person and walked ahead and hid on the road side. As the prosecutrix walked by, the accused grabbed her hand and pulled her into a vanilla garden. He forced her down onto the ground, removed her clothes then had sexual intercourse with her without her consent. The State alleged that there was penetration, but no consent.

On arraignment, the accused admitted sexual intercourse, but said it was consensual. The Court then entered a plea of not guilty.

The prosecution’s evidence came from the prosecutrix herself and a villager, Makai Makun, who had walked the prosecutrix to her family’s house after she went to his house that evening after the alleged incident. The third witness, Lilupain Makai was not called as counsel for the prosecution said his evidence would be the same as that of Makai Makun.

The prosecutrix spoke very softly and was hardly heard whilst giving evidence. However, this cannot be held against her. She said the accused pulled her by her hand into the vanilla garden and then removed her clothes and had sex with her. She did not consent to sexual intercourse. During the act of sexual intercourse, someone flashed a torch at them then the accused got off her and ran away. She then walked to Makai Makun’s house crying and called out to him. Makai Makun later took her to her house.

Makai Makun is a village leader and Village Court Magistrate for Amele No 1 Village Court. That evening, he was bathing in a small creek near his house when he heard the prosecutrix calling out to him. He heard and recognized her voice although it was dark and he could not see her clearly. The prosecutrix told him that she was attacked by a man. After bathing, he and the prosecutrix went to his house. He had a small lamp. As it was dark, he was unable to see the prosecutrix’s face and body very clearly. He asked her what had happened to her and she responded by saying that someone had attacked her. When asked by the Court if she had told him that she had been raped, he said the prosecutrix had told him that someone tried to rape her. He did not check her body. After he had changed his clothes, he walked the prosecutrix to her parents’ house.

After the State tendered the Pidgin and English Record of Interview, which were marked Exhibits "A" and Exhibit "B" respectively, it closed its case.

At the end of the State’s case, defence counsel, Ms Turi made a no case submission based on the first limb of the principle of no case to answer enunciated in The State v. Paul Kundi Rape [1976] PNGLR 76. In essence counsel submitted that the prosecution’s evidence so far did not support the essential elements of rape which are sexual penetration and lack of consent. Secondly, she submitted that the evidence so far is not satisfactory therefore, asked the Court to stop the case at this juncture.

Counsel for the State, Mr. Ruarri submitted that the main elements of rape are penetration and lack of consent and further submitted that the prosecutrix has given evidence of being dragged into a vanilla garden and having her clothes removed by the accused followed by sexual intercourse without her consent. It was further submitted that the accused had made admissions in the record of interview. It is the State’s submission also that lack of consent can be supported by the evidence of the second witness who said the prosecutrix had told him what the accused had done to her. Finally, Mr. Ruarri submitted that there is sufficient evidence for the Court to order that the accused answer the charge of rape.

On the outset, let me say that counsel for the defence has misconceived the element of penetration in her submission. It must be noted that when the accused was arraigned he said, "we agreed to have sex". That statement, in my view, raises the issue of consent and that is the basis of the Court entering a plea of not guilty. Furthermore, in the record of interview the accused admitted to sexual intercourse but said it was by consent. The record of interview therefore supports the plea of not guilty. It is therefore the opinion of the Court that where the issue is one of consent, the element of penetration is not relevant, that is, it is not necessary for the State to prove penetration as an element of rape. This case is one which the accused admits sexual intercourse, but said the prosecutrix had consented to it. Therefore, the issue of penetration is irrelevant as I have alluded to. The only issue left to be determined by the Court is whether or not there was consent, i.e. whether or not the prosecutrix had consented to sexual intercourse.

Unfortunately, the evidence of Makai Makun does not support that of the prosecutrix on the issue of consent. I consider that the evidence of the second State witness is incapable of supporting that issue for it is one issue which the prosecutrix only can give evidence of. Corroboration is necessary to support such issue, especially as to first complaint and the appearance of the prosecutrix. However, in this instance the evidence of Makun Makai is insufficient to corroborate lack of consent. The Court does not say he is an untruthful witness. His evidence is appreciated except that it falls far short as an effective corroboration of the issue of consent.

When one considers that the accused sat with the prosecutrix in the bus on the way home and they were conversing prior to being dropped off and she did not shout as she was being dragged into the vanilla garden, she did not shout when her clothes were being removed, and she did not shout when the accused had sex with her it is difficult to imagine that there was no consent. The third witness, Lilupain Makai who was not called, was with the prosecutrix when she was allegedly pulled by the accused. He would not doubt have assisted had the prosecutrix shouted for assistance, unless he had conspired with the accused. These are matters which make it difficult for the Court to find lack of consent by the prosecutrix, and that is the difficulty in this case. As I have adverted to, penetration is not in issue, but consent is.

She is not a well educated villager and she obviously does not appreciate the importance of a criminal trial and the necessary elements of the crime of rape. I would not go as far as describing her as a liar. I think it is important to appreciate her level of education and degree of sophistication and these are matters which directly contribute to one’s misdemeanour and credibility. It is unfair, in my view, to attack a simple villager who does not have an understanding of the criminal justice system let alone how it functions and the process and procedures in criminal trials. Nevertheless, we have adopted a judicial system which is substantially based on the western concept of justice and therefore, the requisite criminal standard of proof in criminal trials is unavoidable although in the present case, we are not dealing with the standard of proof as it is not really the issue. The tests or principles in Paul Kundi Rape (supra) have been the standard that we apply in a no case to answer situation and therefore, it is rather unfortunate for illiterate village people who have no inkling at all as to what is a no case submission let alone, the tests enunciated in that case. But be that as it may, the legal principles are part of our criminal justice system and are therefore unavoidable. 

In that case therefore, the two tests are distinct although they may arise at the close of the case for the prosecution or indeed at any stage of the trial. See also The State v Misimb Kais [1978] PNGLR 241 at….The first test is, Whether on the evidence as it stands the accused could be lawfully convicted. 

The second one is, Where there is no case to answer, the accused may not as a matter of law be called upon to answer it. Where there is a case of insufficiency of evidence, an accused may as a matter of law be called upon to answer it, but there is a discretion in the judge either to take the case away from the jury a tribunal of fact, or not.

Two other relevant authorities on a no case to answer submission decided after Paul Kundi Rape are The State v. Roka Pep [1983] PNGLR 19, a decision of the National Court where the Court expressed the tests in the following manner.

A submission of no case to answer at the close of the case for the prosecution is a question of law for the judge to decide, the question being whether there is evidence, which if accepted by the jury would establish the elements of the offence.

Where there is a case to answer but the judge is of the view, on the facts, that no matter what the evidence may be called by the accused, the prosecution case will not be proved beyond reasonable doubt or the prosecution case will not improve, or the prosecution case is hopeless or intrinsically weak, then the judge has a discretion to acquit the accused on the no case submission.

Perhaps a better understanding of the principles is the summary in the decision of the Supreme Court in The State v. Roka Pep No 2 [1983] PNGLR 287, which adopted and applied The State v. Paul Kundi Rape. The Supreme Court held (per Kidu, CJ., Kapi, DCJ., Andrew and Kaputin JJ.):

Where in criminal proceedings at the close of the case for the prosecution, there is a submission of no case to answer, the question is for the judge as a tribunal of law; the test is whether the evidence supports the essential elements of the offence.

Where the tribunal decides there is no case to answer the accused is acquitted and that is the end of the matter.

Where the tribunal decides there is a case to answer, it nevertheless has a discretion to stop a case at the close of all the evidence in appropriate circumstances; this discretion is exercisable where there is a mere scintilla of evidence and where the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it.

(Per Pratt, J.) A tribunal should make a finding of no case to answer where (a) there is no evidence to establish an element of the offence charged; or (b) there is some evidence covering the elements of the offence charged but it is so tenuous or incredible or discredited that it amounts to only a scintilla, and thus could not be accepted as persuasive by any reasonable person.

All the prosecution’s evidence before me does not support both elements of the crime of rape. But I need to qualify that finding. I have already determined that the issue of penetration is not material so there is no dispute that sexual intercourse did take place and the prosecution need not prove that element. However, the second element of consent is the difficulty in the case for the prosecution and I have already alluded to the reasons that lack of consent has not been made out by the prosecution.

Therefore on the basis of the test as simplified by the Supreme Court in Roka Pep No 2 (supra), I am satisfied that the accused cannot be lawfully convicted of rape on the basis that the element of consent has not been made out.

That is to say, the evidence does not support the lack of consent. As a matter of law therefore, I find that the accused has no case to answer.

Accordingly, the accused is acquitted of the charge of rape and I order that his cash bail in the sum of K200.00 be refunded to him.

Orders accordingly.

Lawyer for State : Public Prosecutor
Counsel : Michael Ruarri
Lawyer for Accused : Public Solicitor
Counsel : Annie Turi