State v Hagali [2006] PGNC 186; N4490 (28 September 2006)

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CRIMINAL LAW – indictable offence – Criminal Code, Division V.7, sexual offences and abduction – Section 347, definition of rape – trial on a charge of rape under Section 347 – elements of offence – meaning of "without ... consent" – standard of proof.

The State alleged that the accused, a young man, pulled the complainant, a young woman, into the bushes against her will and sexually penetrated her without her consent, twice. Two charges were laid and the accused pleaded not guilty to both. The State adduced two pieces of documentary evidence – the accused's record of interview and a medical report – and called two witnesses – the complainant and an eyewitness. The accused made a short statement from the dock in his defence but called no evidence. The accused admitted to having sex with the complainant. The only issue was consent.

(a) the complainant was a credible witness in view of her demeanour in the witness box and the detail she provided of the incident;

(b) the complainant's evidence was corroborated by the evidence of the other witness who was in close proximity to the scene of the events;

(c) there were no material inconsistencies between the evidence of the complainant and the other witness in close proximity to the scene of the events.

Kape Sulu v The State (2003) N2456
The State v Anton Kumak (1990) N835
The State v Bikhet Nguares Paulo [1994] PNGLR 335
The State v Dibol Petrus Kopal (2004) N2778
The State v James Yali (2005) N2988
The State v Jason Rihata (2005) CR No 171 of 2005
The State v Jeffery Toapas CR No 24 of 2004, 22.08.06
The State v John Ritsi Kutetoa (2005) N2814
The State v Kewa Kai [1976] PNGLR 481
The State v Moses Jafisa Winga (No 1) (2005) N2952
The State v Thomas Angup (2005) N2830

1. CANNINGS J: This is a decision on the verdict for Alex Matasol Hagali, a Matsungan Island man, aged about 29 years, who lives on that island, off Buka Island, Bougainville. He pleaded not guilty to two counts of raping a woman of similar age from Buin, called Irene, who also lives on Matsungan Island. The incident happened more than nine years ago, in 1996, when the accused and the complainant were aged 19. The State alleged that the accused pulled the complainant off a bush track near the village and into the bushes, against her will, and sexually penetrated her without her consent, twice.

Alex Matasol Hagali of Matsungan, Buka, Bougainville, stands charged that he on 14 November 1996 at Matsungan, Buka, ... sexually penetrated [the complainant] without her consent.

3. The alleged victim is referred to as "the complainant" as that term is defined by Section 1 of the Criminal Code to mean "a person against whom an offence is alleged to have been committed". The indictment was presented under the current Section 347 of the Criminal Code, which repealed and replaced the former Section 347 and commenced operation on 10 April 2003. The alleged offence was committed in November 1996, more than eight years before the current Section 347 commenced operation. However, it was proper to draft the indictment under the new law because:

(See Kape Sulu v The State (2003) N2456, Manuhu AJ; The State v Dibol Petrus Kopal (2004) N2778, Lay J; The State v Jason Rihata (2005) CR No 171 of 2005, Lay J; The State v John Ritsi Kutetoa (2005) N2814, Cannings J; The State v Thomas Angup (2005) N2830, Lay J; The State v Moses Jafisa Winga (No 1) (2005) N2952, Kandakasi J; The State v Jeffery Toapas CR No 24 of 2004, 22.08.06, Cannings J.)

4. When I put the allegations to the accused and asked if they were true he said that they were true. However, it appeared that he was only saying that it was true that he had had sex with the complainant. His defence counsel, Mr Kaluwin, entered a plea of not guilty on behalf of the accused, with the leave of the court, under Section 563 of the Criminal Code. The accused was present throughout the trial.

5. The State tendered two exhibits by consent and called two witnesses to give oral evidence.

6. Column 1 of the table below gives the exhibit number, column 2 describes the exhibit and column 3 summarises its evidentiary content.

Exhibit	Description	Content
A1, A2	Record of interview: Alex Matasol Hagali, 19.05.97	Says he is from Matsungan Island – he is single – knows the complainant, she is from Buin, lives on Matsungan – on 14.11.96 he asked her for sex – 'She willingly removed her pants and skirt and we both had sexual intercourse. After having sex she went home. She later went and lied to her sister, saying that I had raped her.' He agrees that he had a bush knife and agrees that he pulled the complainant but denies threatening her: 'I just tested her and she agreed and she said 'that's OK, you have won'. Asked about the role of the second State witness, Sam, he said it was correct that Sam found him in the bush having sex with the complainant and that Sam wanted to also have sex with her.
B	Medical report: Dr B Sevou, Medical Supt, Sohano Hospital, 04.12.96	States that the complainant was allegedly raped on 14.11.96: 'Examination shows a young girl with well developed secondary characteristics. Vaginal examination shows that the young girl has no hymen present, which means that she is not a virgin.'

7. Table 2 lists and describes the State witnesses in the order that they were called and indicates the days and dates of the trial on which they gave evidence.

8. The first witness for the prosecution was the complainant. In examination-in-chief she stated that she is now 29 years old. She was 19 years old at the material time. She is from Buin but has come to live at Matsungan Island with her sister Theresa. She remembers the afternoon of 14 September 1996. She was on her way back from the garden with an old lady, Nevei Sart, now deceased. They met the accused along the track. He pointed a bush knife at her and said he wanted to have sex with her. She refused. He threatened to cut the old lady and told her to leave. So Nevei went ahead. Then he pulled the complainant into the nearby bushes. When she struggled to run away he grabbed her and kicked her ankle and she fell down. He took off her lap-lap and her panty and penetrated her vagina with his penis.

9. Shortly afterwards, they were disturbed by someone throwing stones in their direction. The accused got up and pulled the complainant to another location. She was still naked and he penetrated her again. She went home later and reported the matter to her sister and they brought the matter to the Police the next day.

10. In cross-examination, the complainant said that it had been a long time but the story she is giving in court is true. The old woman was walking five or six metres ahead of her when they met the accused. He got hold of her hand and threatened the old woman to leave and she moved away because she was afraid. He told her not to sing out or he would hit her then he pulled her into the bushes, kicked her ankle, she fell down, he sat on top of her and stood the knife on the side in the ground. Whilst on top of her he put one hand over her mouth. With the other hand he took off her clothes. That was very easy to do as she was only wearing a lap-lap and underwear. He had sexual intercourse with her, later taking her to another spot. While the accused was penetrating her at the second location they were again disturbed by stones being thrown in their direction. The accused stood up and saw that it was Sam. He called Sam over and told him to also have sex with the complainant. She pleaded with Sam not to, saying the accused had already raped her. She told the accused that she would report him to the Police. He replied that he didn't care, as he was a rascal from Petats.

11. In re-examination the complainant confirmed that she did not consent to having sexual intercourse with the accused on either occasions. She did not really know the accused. That ended the complainant's evidence.

12. The second witness for the prosecution was Sam Tukan. In examination-in-chief he stated that on the day of the incident, about midday, he walked down to the beach after weeding his garden. Two women came to the beach, one old and the other quite young. He followed them, then passed the old lady by herself so he decided to look for the other one. He heard noises in the bush. He saw the accused pulling the young woman and saw that they were struggling. She fell to the ground and the accused slept on top of her. He threw the first stone and this caused them to move to another location about seven metres away. After he threw the second stone the accused called him over and told him to have sex with the complainant, who told him that she did not want him to do that. She was crying. He said the old lady was Nevei and the young woman being pulled by her hands into the bush was the complainant, Irene. The accused had also pulled a bush knife from her. Irene seemed to be having second thoughts and she was being pulled hard by the accused.

13. In cross-examination Sam Tukan said that the complainant did not scream or shout. However, the accused was pulling her and urging her to co-operate. He had taken the knife away from her. He (Sam) was about 20 metres from the second spot but could see that they were having sex. That ended Sam Tukan's evidence.

14. The State's case was then closed. Mr Kaluwin made a no-case submission but I refused it and the case continued.

15. No evidence was called, however the accused made a short statement from the dock to the effect that he sticks to the story he told the police when they interviewed him.

16. Mr Luman submitted that the complainant was a credible witness. She was clearly embarrassed by having to recount the details of this incident and that explains why there were long pauses before some of her answers. Her evidence was clear: the accused caught up with them coming back from the garden and chased the old woman away, threatened her with a bush knife and pulled her into the bush. She did not shout because she was threatened. The accused removed her clothes, placed the bush knife close by and penetrated her. She at no stage agreed to have sex with the accused. After the first act, someone threw a stone and she was pulled to another location where the second act of sexual intercourse took place. When Sam came to her she pleaded with him not to have sexual intercourse with her. Sam corroborates the complainant's evidence: being pulled against her will; the accused had a knife; there was sexual penetration; moving to a second location; and that the complainant was distressed and crying. Mr Luman submitted that the prosecution has proved both elements of the offence. There was sexual penetration and the complainant did not consent.

17. Mr Kaluwin submitted that the defence of consent was clearly made out on the evidence. The complainant did not shout. She was carrying a knife and could have used it to defend herself. She was looking around to see if anyone was watching. She was being pulled into the bush and then to a different location, only because the accused was encouraging her. Sam said she went into the bush first. This all shows that she was not scared, she consented. There were inconsistencies within the complainant's oral evidence, and between her oral evidence and her statement to the Police and the evidence of Sam. She didn't tell the Police she was carrying an axe. She said she was naked when they moved to the second location but Sam said she was dressed when he came up to her. Mr Kaluwin submitted that the court should place little or no weight on the complainant's evidence as her demeanour was not that of a witness of truth.

18. Mr Luman argued that the court should not entertain the defence of consent because the fact that she did not shout does not mean that she consented. Mr. Luman further submitted that in Sections 347A(1) and (2)(b) and2(c) of the Criminal Code, if there was no consent in the beginning, it cannot be obtained by force. As to the demeanour of the complainant, she was understandably embarrassed about having to give evidence in open court. Many of the questions put to her were irrelevant and that being examined and crossed-examined in open court where she is under oath.

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

20. To obtain a conviction the prosecution must prove the following matters beyond reasonable doubt:

"Sexually penetrates" is defined by Section 6 (sexual penetration), which states:

When the expression "sexual penetration" or "sexually penetrates" are used in the definition of an offence, the offence, so far as regards that element of it, is complete where there is—

(a) the introduction, to any extent, by a person of his penis into the vagina, anus or mouth of another person; or

(b) the introduction, to any extent, by a person of an object or a part of his or her body (other than the penis) into the vagina or anus of another person, other than in the course of a procedure carried out in good faith for medical or hygienic purposes.

"Consent" is defined by Sections 347A (meaning of consent) and 347B (where belief in consent is not a defence).

(1) For the purposes of this Part, "consent" means free and voluntary agreement.

(2) Circumstances in which a person does not consent to an act include, but [are] not limited to, the following:—

(a) the person submits to the act because of the use of violence or force on that person or someone else; or

(b) the person submits because of threats or intimidation against that person or someone else; or

(c) the person submits because of fear of harm to that person or to someone else; or

(e) the person is asleep, unconscious or so affected by alcohol or another drug so as to be incapable of freely consenting; or

(f) the person is incapable of understanding the essential nature of the act or of communicating his unwillingness to participate in the act due to mental or physical disability; or

(g) the person is mistaken about the sexual nature of the act or the identity of the person; or

(h) the person mistakenly believes that the act is for medical or hygienic purposes; or

(i) the accused induces the person to engage in the activity by abusing a position of trust, power or authority; or

(j) the person, having consented to engage in the sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity; or

(k) the agreement is expressed by the words or conduct of a person other than the complainant.

(3) In determining whether or not a person consented to that act that forms the subject matter of the charge, a judge or magistrate shall have regard to the following:—

(a) the fact that the person did not say or do anything to indicate consent to a sexual act is normally enough to show that the act took place without the person's consent; and

(b) a person is not to be regarded as having consented to a sexual act just because—

(iii) on that or an earlier occasion, he freely agreed to engage in another sexual act with that person or some other person.

It is not a defence to a charge under this Part that the accused person believed that the person consented to the activity that forms the subject matter of the charge where—

(b) the accused did not take reasonable steps, in the circumstances known to him at that time, to ascertain whether the person was consenting.

23. If an offence under Section 347(1) is committed in "circumstances of aggravation" the maximum sentence is increased by Section 347(2) from 15 years to imprisonment for life. "Circumstances of aggravation" are prescribed by Section 349A (interpretation). They include, eg where the accused uses or threatens to use a weapon or constrains or restrains the complainant before or after the commission of the offence.

24. In the present case, the indictment does not charge the accused with any circumstances of aggravation. None of the prescribed circumstances have to be proven to constitute an offence.

26. Mr Luman was right when he submitted that the State need only prove two things: sexual penetration and lack of consent. Both counsel properly agreed that the critical issue in this case is consent. Two things that neither counsel submitted on in any detail, but which require careful analysis in this case are the standard of proof that is to be applied by the court and the issue of corroboration of the complainant's evidence.

27. As I pointed out in The State v James Yali (2005) N2988, in a rape case it is not a simple matter of deciding who to believe. On a charge of rape, an accused cannot be convicted only on the basis of suspicion or belief on the part of the tribunal of fact (the court) that the accused had sexually penetrated the complainant without consent. Likewise, the court is not to decide guilt or innocence simply on the basis of whether the complainant's evidence is believed. The court's task is, rather, to determine, having weighed all the evidence and considered whether there are reasonable grounds for believing that there was no consent and whose evidence is to be believed, whether it is satisfied to the required criminal standard of proof – beyond reasonable doubt – that each element of the offence exists. If there is a reasonable doubt as to the existence of any one or more of the elements, the court is obliged to acquit the accused. In this case, the question to ask is whether the prosecution has discharged the onus of proving beyond reasonable doubt that the accused sexually penetrated the complainant without her consent.

28. Prior to 2003 the general practice was that the court was required to warn itself of the dangers of entering a conviction for rape or other sexual offences based on the uncorroborated testimony of the complainant. The practice was consistent with the position at common law, the rationale being that rape is a serious charge, easy to allege and difficult to refute. (The State v Kewa Kai [1976] PNGLR 481, National Court, Prentice DCJ; The State v Anton Kumak (1990) N835, National Court, Ellis J; The State v Bikhet Nguares Paulo [1994] PNGLR 335, National Court, Doherty J.) (See generally D R C Chalmers et al, Criminal Law and Practice in Papua New Guinea, 3rd edition, Lawbook Co, © 2001, pp 333-335.) Nowadays the opposite is the case: not only is the National Court not required to warn itself, it is not allowed to. Section 352A of the Criminal Code (corroboration not required) states:

On a charge of an offence against any provision of this Division, [Division V.7, (sexual offences and abduction)] a person may be found guilty on the uncorroborated testimony of one witness, and a Judge shall not instruct himself that it is unsafe to find the accused guilty in the absence of corroboration. [Emphasis added.]

29. The accused has been charged with an offence under Section 347, which falls within Division V.7. I have considered whether the fact that the incident pre-dated the commencement of the new law has a bearing on the application of Section 352A. I have decided that it does not. The accused is being tried under the new law, so it makes sense to apply the rules of evidence and practice and procedure that are incidental to the new law. "Uncorroborated testimony" is defined, in relation to an accused person, by Section 1(1) to mean "testimony that is not corroborated in some material particular by other evidence implicating him".

31. The present case, however, is not one in which the State is seeking a conviction on the basis of the uncorroborated testimony of the complainant. There was an eyewitness, Sam, in addition to the complainant.

Therefore, even if I were wrong in concluding that the new Section 352A applies, I would not be required to warn myself about the dangers of entering a conviction based on the complainant's uncorroborated testimony.

32. The accused sexually penetrated the complainant, by introducing his penis into her vagina, on two separate occasions, on 14 November 1996 off a bush track on Matsungan Island. These events were witnessed by another person, Sam Tukan, who for some reason threw stones in the direction of the accused and the complainant. When the accused saw who was throwing the stones he called Sam over and asked him to have sex with the complainant.

Exhibit A: record of interview. There is no reason to doubt that it was an authentic record of the accused's police interview, in which he maintained that he had indeed had sex with the complainant; but with her consent.

Exhibit B: medical report. The authenticity of this document is not disputed but it has few details and is of little or no use.

Witness No 1 was the complainant. She appeared to be nervous. She was subject to vigorous cross-examination. It was put to her that there were inconsistencies in her story and that she was not telling the truth. At the end of the process of her giving evidence I was not left with the impression that she was lying or unreliable. I do not accept the defence counsel's submission that her demeanour in the witness box exhibited dishonesty. I do not think the defence counsel succeeded in establishing that the complainant's version of events was false. I took into account the fact that at some stages of her cross-examination there were long pauses between the questions and the answers. I sometimes had to ask whether she understood a question and whether she proposed to answer it. However, at the end of the process of her giving evidence I did not draw any adverse conclusion as to her credibility arising from the way she gave her evidence. It is important for the court to form an opinion on the overall credibility of the complainant's evidence. Therefore I state that, in particular having regard to her demeanour in the witness box, I regard the complainant as a convincing and credible witness.

CONTENTIOUS FACTUAL ISSUES RELATING INDIRECTLY TO THE ELEMENTS OF THE OFFENCE

34. I do not think there is sufficient evidence to draw the conclusion that the accused and the complainant had planned to have sex or that he suggested to her and that she agreed, in principle, or that she just needed gentle persuasion to get her interested.

CONTENTIOUS FACTUAL ISSUES DIRECTLY PERTINENT TO THE ELEMENTS OF THE OFFENCE

Put another way, the question to be posed, arising from Section 347A of the Criminal Code, is: has the prosecution proven beyond reasonable doubt that the complainant did not freely and voluntarily agree to have sexual intercourse with the accused?

Complainant's testimony: I found the complainant to be a convincing and credible witness.

Corroboration: Sam's evidence strongly corroborates the complainant's evidence and indicates that she did not consent.

Inconsistencies in evidence: I reject Mr Kaluwin's submission that there were material inconsistencies. It is inconsequential that there were some things said in her police interview that were not mentioned in her oral evidence as the police interview was conducted many years ago. It is inconsequential that the complainant had a knife as, more importantly, the accused had a knife and he was the aggressor, he was stronger than her and there is no suggestion that he was drunk or otherwise incapacitated.

Force, violence or threats: I accept the complainant's evidence that the accused had a bush-knife, that he had threatened the old woman with it before he began his advances on the complainant and that though he did not actually use it against the complainant, the fact that he had it close at hand meant that any consent that he might have thought he had obtained was not real.

Hesitant or reluctant agreement: I have already rejected the notion that the complainant agreed in any way to have sex with the accused.

Circumstances leading up to incident: It seems to have been an opportunistic attack on the part of the accused.

Circumstances prevailing at time of incident: The accused had to pull the complainant into the bush and to the second location.

Medical evidence: It was unsatisfactory as the report was prepared several weeks after the incident and, in any event, did not address the question of whether the complainant suffered any injuries. A medical report in the form of a conventional sexual assault report is not, however, an essential piece of evidence in a rape trial, though, it is of course highly desirable for such a document to be adduced in evidence and for its author to be available for cross-examination. I draw no inference either way regarding the scanty report that was adduced in this case.

Telltale signs of a rape: things in this category might include torn clothing, complaints to village elders or chiefs. There was no evidence of that sort, however I draw no inference either way from the lack of such evidence.

A recent complaint? It is not clear when the complainant reported the matter to the police. The accused was interviewed in May 1997, six months after the incident. I draw no inference either way.

Conclusion: There exists reasonable grounds for suspecting and believing that there was no consent and for believing the complainant's evidence. Furthermore, having weighed all the evidence I am satisfied to the required standard of proof, because:

(a) the complainant was a credible witness in view of her demeanour in the witness box and the detail she provided of the incident;

(b) the complainant's evidence was corroborated by the evidence of the other witness, Sam, who was in close proximity to the scene of the events;

(c) there were no material inconsistencies between the evidence of the complainant and the other witness in close proximity to the scene of the events.

38. I am therefore satisfied beyond reasonable doubt that the complainant did not give free and voluntary agreement to be sexually penetrated by the accused on either occasion. She did not consent.

40. As to count No 1 – the first incident – I am satisfied beyond reasonable doubt as to both elements.

41. As to count No 2 – the second incident – I am satisfied beyond reasonable doubt as to both elements.

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused

No	Name	Description	Day	Date (2006)
1	The complainant	The person against whom the offence was allegedly committed.	1	21 Aug
2	Sam Tukan	Eyewitness	2	22 Aug

National Court of Papua New Guinea

State v Hagali [2006] PGNC 186; N4490 (28 September 2006)