N4492

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 147 OF 2005

THE STATE

V

JIMMY AIYO

Buka: Cannings J
2006: 24, 25 August, 28 September

VERDICT

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, befriended the complainant, a young woman, at the house of some friends where they were staying and sexually penetrated her without her consent, twice, during the course of the night. 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 three witnesses – the complainant, the mother of the household and a woman who helped the complainant report the incident to the police the next day. The defence called no evidence. The accused admitted to having sex with the complainant. The only issue was consent. 

Held:

(1)	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.

(2)	Likewise, the court is not to decide guilt or innocence simply on the basis of whether the complainant's evidence is believed.

(3)	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 there was no consent.

(4)	In this case there existed reasonable grounds for suspecting and believing that there was no consent and for believing the complainant's evidence. However, having weighed all the evidence the court was not satisfied to the required standard of proof, because:

(a)	the complainant's evidence was short on detail, having regard to the period of time over which the events allegedly took place; 

(b)	the complainant, though not an obviously dishonest witness, was not, overall, a convincing one;

(c)	the complainant's evidence was not sufficiently corroborated by the evidence of the other witness who was in close proximity to the scene of the events and who would reasonably be expected to give the same version of events as the complainant; 

(d)	there were material inconsistencies between the evidence of the complainant and the other witness in close proximity to the scene of the events; 

(e)	the medical evidence, concerning an examination of the complainant within 24 hours after the events, was not consistent with the evidence of the complainant or the third witness. 

(5)	Accordingly the State failed to prove, on both counts 1 and 2, the existence of the element of lack of consent.

(6)	The court returned a verdict of not guilty and the accused was acquitted of both charges.

Cases cited

The following cases are cited in the judgment:

The State v Anton Kumak (1990) N835
The State v Bikhet Nguares Paulo [1994] PNGLR 335
The State v James Yali (2005) N2988
The State v Kewa Kai [1976] PNGLR 481

TRIAL

This was the trial of an accused charged with rape.

Counsel

R Luman, for the State
E Latu, for the accused

1. CANNINGS J: This is a decision on the verdict for Jimmy Aiyo, a Southern Highlands man who lives in Bougainville, aged about 25 years. He pleaded not guilty to two counts of raping a woman from Gulf Province, aged about 20, called Maria, who had been visiting members of her family on Bougainville. He befriended her when they were both staying the night at the house of some mutual friends at Hangan village, near Buka town. The State alleges that the accused raped the woman, the complainant, twice during the course of the night. 

2. 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 September 2004, 17 months after the current Section 347 commenced operation. Therefore the indictment was properly presented under the new law. The accused pleaded not guilty and was present throughout the trial.

THE STATE'S CASE

Outline

3. The State tendered three exhibits by consent and called three witnesses to give oral evidence.

The exhibits

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

TABLE 1: SUMMARY OF EXHIBITS
 TENDERED BY THE STATE

Exhibit	Description	Content 	
A1,
A2 	Record of interview: 
Jimmy Aiyo, 
04.10.04	Says he is from Southern Highlands Province, age not specified – married with one child – on the day of the incident, 14.10.04, he was drinking with Michael Yop at Michael's house at Hangan village – when they arrived at the house, Michael's wife and two children and the complainant, Maria, were there, playing cards – he asked the complainant to have sex with him – he called for her from the veranda and she responded that he would lie in bed and she would come to see him – he admitted that at one stage he called for the complainant from the door of the bedroom but denied entering the bedroom – admitted that the complainant became frightened and ran away and that he followed her into a coconut plantation – denied grabbing her, pulling her to the ground, removing her clothes, punching her, having sex at the coconut plantation – admits that he had sex with her back at the house but denies that it was without her consent. 	
B	Affidavit:
Dr T Wotsia MBBS, 
medical officer, Buka General Hospital,
03.11.04	States that he examined the complainant at 3.30 pm on 15.09.04 – obviously distraught young female – vital observation showed no form of distress – swelling at the right side of her back, painful when pressed or touched, no bruises seen – left side of back also painful but no bruises or swelling – scratch mark on chest but no bruises – vaginal examination: two bruises on left side of clitoral fold; vaginal orifice and canal revealed no bruises or lacerations; labial folds inflamed/painful – passage of speculum into the vagina was easy but painful; vaginal canal full of discharge, no lesions or semen seen – cervix not bruised or inflamed but painful – spermatozoa present.	
C	Photographs	Shows the complainant in eight photos pointing out places referred to in her evidence.	

Oral evidence

5. 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.

TABLE 2: WITNESSES CALLED BY THE STATE

No	Name	Description	Day	Date (2006)	
1	The complainant	The person against whom the offence was allegedly committed.	1	24 Aug	
2	Elizabeth Michael	Mother of the household at the centre of the incident.	1	24 Aug	
3	Eileen Kapar	Person who accompanied the complainant to the police station, to lay rape complaint.	1	24 Aug	

6. The first witness for the prosecution was the complainant. In examination-in-chief she stated that she is from Gulf Province. She now lives in Port Moresby. In 2004 she was living in Buka, having gone there for Christmas in December 2003 to stay with her brother who is married to a Buka lady. She went to Michael and Margaret Yop's house at Hangan in September 2004. In her evidence the complainant repeatedly and erroneously referred to Michael Yop's wife as Margaret, when her correct name is Elizabeth. The prosecutor, Mr Luman, later conceded that this was an error on the part of the complainant. However, the error was not corrected during her oral testimony, so the following summary of her evidence will record what she actually said – the mother of the household was Margaret – rather than what is factually correct – that the name of the woman concerned, who was the second witness, is Elizabeth. The complainant said that she did not know Michael and Margaret that well, but they invited her to go to their house and she stayed the night. The next day, they all went to Buka town about midday to do shopping. They also went to the place where newspapers were sold. Michael spoke to the accused, Jimmy, who seemed to be his friend. They left Jimmy there, got a PMV and went back to Hangan. The next day, 14 September 2004, they went to town again. Michael was selling newspapers, talking to Jimmy. They left town and got home about 5.30 pm and started to cook a meal while it was still daylight. Asked by Mr Luman whether the lady of the house's name was Margaret, the complainant said yes, and Margaret is from Solas, Bougainville, married to Michael, who is from the Highlands. The complainant said she started playing cards with Margaret's daughter. Then Michael and Jimmy walked in. Michael was drinking beer. Jimmy sat down beside her and whispered to her that he would like to stay the night with her. He pinched her. She got scared. She told Margaret that she would sleep with her and the children in her room, which she did. The room did not have a proper lock on it. She was lying awake in the room when Michael opened the door and called out to his wife. Then Jimmy came in with Michael. Jimmy held her hand. She struggled but he pulled her out, then Michael, Margaret and their daughter walked out. Jimmy asked her about K30.00 cash that, he maintained, he had put into her string bag while she was playing cards but she denied knowledge of that. She cried for help then went out to the veranda but he followed and she struggled with him again, and then ran down the stairs, stood behind Margaret and again called for help. A friend of Michael – Tony, from Sepik – was encouraging her to go along with what Jimmy wanted. Tony said if she kept on resisting she might get herself into trouble. Michael was telling her the same thing. Margaret told the men that her house was not a brothel. When Jimmy had his back turned she ran towards the banana trees. Jimmy ran after her. She kept going, into the coconut plantation, tripped and fell, then Jimmy grabbed her, threw her on to the ground, jumped on her from a great height, kicked her on the back and ribs three times, slapped her, put one hand on her mouth and removed her clothes. He tried to push his penis into her vagina but had difficulty because of the ball-bearings beneath his foreskin. She cried for help and then two people with a torch came into the plantation to check on their fermentery, so he let go of her. She put on her clothes and went back to the house. Margaret saw her at the gate, asked what had happened and Jimmy, who was lying, said that he had brought her back to the house as he was concerned about her safety. The next thing, Michael came out of his room and went to another room, then Jimmy pulled her into the room, laid her on the bed, removed her clothes, held her hands and feet and began to sexually penetrate her. She cried for help and again Margaret made the comment that her house was not a brothel and that he should have respect for the complainant. Jimmy kept penetrating her with his penis in her vagina until he ejaculated, then he put his penis into her mouth. She clamped her teeth on his penis, he felt pain and removed it. Then she cried for help again. By this time it was 5.00 am. Jimmy fell asleep, so she was able to get away from him. She woke up Margaret, who said that her daughter, Angeline Swea, would go with her to the police station in Buka. The two of them went to town and they were walking near the market. A lady, who she described as an 'aunty', saw her walking with the aid of a stick, asked what happened and she, the complainant, told her that Jimmy had raped her. The aunty then flagged down some people in a vehicle and told them that her in-law had been raped and they took her to the police station. She made her statement at the police station. Then she and the police saw Jimmy selling newspapers. He laughed and told the police that the complainant was his girlfriend. She said that he was not her boyfriend, and then the police left him there and took the complainant to the hospital for a medical examination. She was then taken back to the police station for further questioning, particularly about whether Jimmy was her boyfriend. The complainant identified the person, Jimmy, as the accused. 

7. In cross-examination, the complainant said that after she first came to Bougainville in December 2003 she stayed with her brother's family for a month then stayed with various people that she met at the market, for several months. She used to see Jimmy in town but did not know that he was coming to Michael and Margaret's house until he turned up there. She confirmed that Jimmy had sat beside her when she was playing cards, pinched her, asked to spend the night with her and she said no as he had a wife and child. She knew he was married as she had seen him selling newspapers with his wife and child sitting next to him. She agreed that Jimmy had probably slipped some cash into her bilum when he was sitting next to her. She said that there were two bedrooms in the house, which was not big, and that she had firstly slept in Margaret's room, before Michael opened the door and came in, followed by Jimmy. They were all in the room together; Margaret was getting cross with Michael, then Michael, Margaret and their daughter left, leaving her alone in the room with Jimmy. Michael wanted her to sleep with Jimmy. He was saying the same things that Tony had said. She agreed that she did not know Michael and Margaret that well, but had met them before at Malasang. Mr Latu put to the complainant that Jimmy had given her K30.00 as that is what she asked for. She denied that. She also denied asking for more money after the first time they had sex. She denied reporting the matter to the police only after Jimmy could not give her more money. She said that Jimmy had nearly killed her, that is why she reported it. Asked how it was that no one came to her aid though, she said, she cried out for help on a number of occasions, the complainant said that Michael and Margaret's house was the closest to the coconut plantation. Michael had heard her but was on Jimmy's side and Margaret was getting cross with Michael. 

8. In re-examination the complainant said that Tony, who is from the Sepik, also lives at Hangan. That ended the complainant's evidence.

9. The second witness for the prosecution was Elizabeth Michael. In examination-in-chief she stated she is from Yagints, close to Petats. Her husband, Michael, is from the Highlands, she is not sure where exactly. He is Jimmy's wantok, so Michael probably comes from Southern Highlands. She and Michael have two children, Angeline Swei and Richard Tukan. On the day of the incident the complainant came home from town with her and the children. Michael arrived home later, with Jimmy. They played cards then got ready to go to bed. Jimmy was asking for the complainant, Maria. Someone broke the lamp that was providing the light then she, Elizabeth, realised that Jimmy and the complainant had disappeared. Afterwards the complainant returned and told her that Jimmy had got angry with her and beat her. She showed her the left side of her body where he had hit her in the ribs. She, Elizabeth, got cross with Jimmy and reminded him that the previous year he had done something similar to a girl from Solas. Then they went to bed. The next morning the complainant, Maria, asked her if her daughter could accompany her to the police station. They left and later she, Michael and Jimmy went to town too. She knew that the complainant intended to report Jimmy but she is not sure what he did to her in the night. Elizabeth said that she and a female friend caught up with the complainant at the police station, when the complainant gave her story to the police. 

10. In cross-examination Elizabeth Michael said on the afternoon of 14 September 2004, when she and her daughter, Angeline, left Buka town and headed home, they did not know that the complainant was going home with them. The complainant just followed them on to the PMV. Mr Latu asked Elizabeth about the night of the incident. She responded that a game of cards was being played, that the complainant was sitting next to Jimmy and that she was getting a bit cross with him. She could not recall whether Jimmy was pinching or whispering to Maria. She did not notice Jimmy giving any money to Maria. She confirmed that after the card game finished, she, her daughter and the complainant went to sleep in one room. Neither Michael nor Jimmy came into the room but Jimmy called to Maria to come out. So they all went out – Elizabeth, Angeline and Maria. It was at that point that Angeline dropped the lamp. Mr Latu asked Elizabeth if she saw Jimmy pull Maria away. She responded that it was dark and she could not see and does not know where Jimmy and the complainant went. She did not hear anyone cry for help. It was some time later that the complainant came back, She was by herself, with dirt on her shorts. She said that she had tried to go to the toilet but Jimmy hit her so she ran away. Jimmy had scratched her on her side with his fingers. She did not say that Jimmy had had sexual intercourse with her. Maria had a shower then went back to bed. Jimmy did not show up again at the house until the next morning. Elizabeth Michael confirmed that she did not know the complainant very well and had not invited her to stay at her home. The complainant just followed her and her daughter on to the bus and came home with them. 

11. There was no re-examination. That ended Elizabeth Michael's evidence. 

12. The third witness for the prosecution was Eileen Kapar. In examination-in-chief she stated that she is a Buka local, employed by the town council as a collector of market fees. She recalls that at 7.30 am on 15 September 2004 she was standing on the road when she saw a young woman approaching, walking with the aid of a stick, and accompanied by a small girl. She asked if she was OK and the young woman – the complainant – said she was from Kerema and she had been assaulted during the night. She showed Eileen the various parts of her body where she had been beaten, including her sides, breasts, hips and buttocks. The complainant told Eileen that she had followed Elizabeth and Michael to their house and they agreed that she could stay with them. She told her about Jimmy, the fellow who sells newspapers, assaulting her. Eileen helped the complainant go to the police station and told a police officer, Carol, why she was assisting the complainant. 

13. In cross-examination Eileen Kapar said the complainant had shown her the bruises on her breasts, on her left-side ribs and on her thighs. She lifted up her lap-lap to reveal the injuries. They were bruises, not cuts, giving the impression that her assailant had grabbed her hard with his hands. There were also scratches and bruising on her nipples. There was no re-examination. That ended Eileen Kapar's evidence. The State's case was then closed. 

THE DEFENCE CASE

14. No evidence was called, and the accused exercised his constitutional right to remain silent. 

SUBMISSIONS FOR THE STATE

15. Mr Luman submitted that the State only had to prove two elements in relation to either or both of the charges: that the accused sexually penetrated the complainant and that this was done without her consent. The complainant was a credible witness. She made a mistake about the name of the mother of the household where the events took place, calling her Margaret instead of Elizabeth. But her mistake was understandable as she only stayed at Elizabeth's house a few days and she testified that she did not know them very well. The complainant was subject to vigorous cross-examination but never changed her story, which was very believable. She maintained all along that she did not at any stage consent to having sex with the accused; not in the early stages while they were playing cards and the accused was making sexual advances to her; and not at any other time. The complainant gave a graphic account of the two occasions on which she was raped; first in the coconut plantation, when she ran away but tripped; secondly back at the house on the wooden bed. No one was in a position to help her. The accused's friends, Michael (a Highlander) and Tony (a Sepik) were on the accused's side, urging the complainant to accede to the accused's demands. Elizabeth could not do much. She was cross with the men but they obviously held sway; and Elizabeth's children were too young to help. As to Elizabeth Michael's evidence, Mr Luman conceded that there were some problems with it as it was inconsistent with or appears to fail to corroborate the complainant's version of events. Mr Luman urged the court to treat Elizabeth's evidence with caution as her husband, Michael, is implicated in the case and her failure to go into details can be explained by her natural fear of exposing her husband to the risk of prosecution. In the event of conflict between the evidence of the complainant and Elizabeth, the court should prefer the former. The evidence of the third witness, Eileen, was straightforward. She met the complainant for the first time, on the road, the morning after the events. Her evidence was that the complainant was distressed and alleging that Jimmy had done bad things to her and she showed Eileen her injuries. Eileen's evidence was further corroboration of the complainant's evidence that the accused had inflicted injuries in her to overpower her so that he could have sex with her. All of this evidence supported the conclusion that the accused had had sex with the complainant, twice, without her consent. 

SUBMISSIONS BY DEFENCE COUNSEL

16. Mr Latu submitted that the complainant was not a credible witness. Her evidence was radically sensational as even though she could recall nearly everything that happened almost two years ago – the dates and times and the different things that happened – she could not remember the name of the woman she was staying with. There were inconsistencies between what the complainant said happened and what Elizabeth said happened. For example, the complainant initially made no mention of Michael and Tony playing cards; but Elizabeth's evidence had Michael, Jimmy and Tony playing cards also. The complainant said that the accused was pinching her and making sexual advances to her but Elizabeth's evidence did not support that. As to the sleeping arrangements and what happened in the bedroom, the complainant said that Michael and Jimmy entered the room and Jimmy then pulled her outside. By contrast, Elizabeth said that neither Michael nor Jimmy came in to the room. After the accused and the complainant disappeared, the complainant returned to the house. Her evidence was that she complained to Elizabeth of being sexually assaulted by the accused. Elizabeth's evidence was different. The complainant did not mention anything about the accused having had sex with her and nothing seemed untoward. The complainant's evidence was that after the first alleged rape, the accused followed her back to the house and raped her a second time in one of the bedrooms. Elizabeth's evidence did not support that. All that happened, according to Elizabeth, is that the complainant had a shower after coming back from disappearing with Jimmy, then they all went back to bed; and the next thing she knew was that the complainant woke her up in the morning complaining that the accused had assaulted her. The complainant submitted that the court should place little weight on the evidence of the third witness, Eileen, as her observations of the complainant's injuries were not supported by the medical report. Likewise the medical report cast severe doubts over the complainant's evidence as it showed that she was not significantly injured. In any event, her claim that the accused jumped on when she was on the ground, like a waterfall, was too incredible to believe. If he did that, she would have been seriously injured, but the medical report showed that when she went to the hospital the next day she was not injured at all. Mr Latu submitted that the real situation was that the accused had paid the complainant for sex. She was a prostitute and he was a paying customer. She did not get the money she thought she deserved, so she went to the police and laid a rape complaint. 

REPLY BY THE STATE

17. Mr Luman argued that the inconsistencies between the evidence of the complainant and Elizabeth were minor but if the court were minded to regard them as significant, the complainant's evidence should be preferred in view of the fact that Elizabeth's husband, Michael, was implicated adversely in what happened. Michael was aiding and abetting the accused by encouraging him to take the complainant away and then bring her back to the house, for sex. It was significant that a fresh and immediate complaint was made by the complainant to the police, at the earliest opportunity. She went to town early in the morning after the incidents took place. The medical evidence was consistent with the complainant's version of events. As for the alleged exchange of money between the accused and the complainant, even if it were true that the accused paid her K30.00 so that he could have sex with her, that did not give him the right to rape her. Even if she gave consent to start with she was entitled to say no – withdraw consent – at any time after that. 

THE LAW: ELEMENTS OF THE OFFENCE

18. Section 347 (definition of rape) of the Criminal Code states:

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

Penalty: Subject to Subsection (2), imprisonment for 15 years.

(2)	Where an offence under Subsection (1) is committed in circumstances of aggravation, the accused is liable, subject to Section 19, to imprisonment for life.

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

•	the accused sexually penetrated the complainant;

•	without her consent.

"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).

20. Section 347A states:

(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
(d)	the person submits because he is unlawfully detained; 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—

(i)	he did not physically resist; or
(ii)	he did not sustain physical injury; or
(iii)	on that or an earlier occasion, he freely agreed to engage in another sexual act with that person or some other person.

21. Section 347B states:

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—

(a)	the accused's belief arose from his—

(i)	self-induced intoxication; or
(ii)	reckless or wilful blindness; or

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

Circumstances of aggravation

22. 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. 

23. 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.

ASSESSMENT OF EVIDENCE 

24. The following approach will be taken:

1	Comments will be made on the submissions of both counsel, indicating in general terms whether their approach to the assessment of the evidence and identification of the key issues is accepted. 

2	The law on the standard of proof and corroboration of evidence for sexual offences will be set out.

3	The undisputed facts will be laid out. 

4	An assessment will be made of the credibility of the different pieces of evidence that have been adduced: both the oral testimony of the witnesses and the documentary evidence. 

5	The contentious factual issues will be determined, placing them in two categories: 

(a)	those relating indirectly to the elements of the offences; and 

(b)	those directly pertinent to the elements of the offences.

6	I will determine whether the accused has any available defence.

7	I will conclude by addressing whether the prosecution has proven that all elements of the offence have been established beyond reasonable doubt.

COMMENTS ON SUBMISSIONS

25. 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. However, I have some difficulty with his submission concerning the evidence of the second witness, Elizabeth Michael. Mr Latu properly pointed to a number of inconsistencies between the evidence of the complainant and that of Elizabeth. Mr Luman appeared to want the court to gloss over them. He argued that they could be explained away by the fact that Elizabeth's husband, Michael, was implicated in what happened and that Elizabeth would not want him exposed to prosecution. That argument carries little weight as there is no evidence that Michael has been charged. If he were to be charged, it should have happened by now. If there are inconsistencies in the evidence, an assessment will need to be made about how significant they are and whether there is any proper explanation for them. I also agree with Mr Latu that the medical evidence needs to be carefully considered as on the face of it, it does not support the complainant's version of events. 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. 

STANDARD OF PROOF 

26. 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 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. 

CORROBORATION OF EVIDENCE FOR SEXUAL OFFENCES

27. 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.)

28. 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. Therefore Section 352A applies. 

"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".

30. The principles of evidence to apply perforce of Section 352A are:

•	if the complainant's evidence is regarded as uncorroborated, it is still possible to find the accused guilty;

•	the State still bears the burden of proving the elements of the offence beyond reasonable doubt;

•	the judge is not required to instruct himself or herself that it is unsafe to find the accused guilty in the absence of corroboration;

•	on the contrary the judge must not give an instruction of that sort; 

•	if such an instruction is given, an error of law will be committed. 

31. The complainant is the only witness to testify that she witnessed what happened. The only other person present was the accused and he gave no evidence. I will regard both counts 1 and 2 as being based on the uncorroborated testimony of one witness, the complainant. I therefore remind myself, in accordance with Section 352A of the Criminal Code that a conviction is still possible and that the prosecution still bears the onus of proving the elements of the offence beyond reasonable doubt. I do not instruct myself that it is unsafe to find the accused guilty in the absence of corroboration. 

UNDISPUTED FACTS

32. In September 2004 the complainant, a young woman from Gulf Province, stayed for a few nights at Michael and Elizabeth's house at Hangan village. Michael is from Southern Highlands and Elizabeth is from Solas, Bougainville. One night Michael brought his wantok, the accused, Jimmy, home with him. Jimmy lives in Buka. Jimmy befriended the complainant and made sexual advances to her. They had sex on two occasions. The issue is whether there was consent.

CREDIBILITY OF EVIDENCE

Documentary evidence

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, with her consent.

Exhibit B: affidavit of Dr Wotsia. There is no reason to doubt the authenticity of this document and the medical report annexed to it. However, it is significant that the report is inconclusive in that it does not proffer an opinion on whether the complainant had been raped or sexually assaulted and Dr Wotsia was not asked to give oral testimony.

Exhibit C: photographs. Neither counsel referred to them in the evidence, so I attach little weight to them.

Oral evidence

Witness No 1 was the complainant. She was not an obviously honest or reliable witness. I obtained the impression from her demeanour that she was hiding something. The story she told was quite believable but the manner in which she told it and her propensity to skip over details was not convincing.

Witness No 2 was Elizabeth Michael. She was not an obviously dishonest witness, but she was rather vague and not entirely convincing.

Witness No 3 was Eileen Kapar. She appeared at first to be a credible witness and gave the impression of being a good Samaritan who came to the aid of the complainant. However, her evidence about the extent of the injuries she observed when she met the complainant on the road did not accord with what was in the medical report; and this caused me some consternation in assessing the value of her evidence.

CONTENTIOUS FACTUAL ISSUES RELATING INDIRECTLY TO THE ELEMENTS OF THE OFFENCE

33. The main factual issues in this category are as follows:

•	Was there an initial agreement between the accused and the complainant to have sex? Yes, I tend to think that this was the case.

•	Did the accused pay to have sex with the complainant? Yes, I tend to think that this was the case, at least from the accused's point of view.

CONTENTIOUS FACTUAL ISSUES DIRECTLY PERTINENT TO THE ELEMENTS OF THE OFFENCE

34. There is only one issue:

•	Did the complainant consent to sexual intercourse with the accused?

35. 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?

36. In answering this question a number of factors are to be considered:

•	the testimony of the complainant;

•	whether there is any corroboration;

•	whether there are inconsistencies in the evidence;

•	whether force, violence or threats were used;

•	whether there was hesitant or reluctant agreement on the part of the complainant;

•	the circumstances leading up to the time of the incident;

•	the circumstances prevailing at the time of the incident;

•	the medical evidence;

•	whether there are any telltale signs of a rape;

•	whether there was a recent complaint.

37. I will consider each of those factors.

Complainant's testimony: I did not find the complainant to be a convincing and credible witness. 

Corroboration: There was no effective corroboration though this does not prevent a conviction.

Inconsistencies in evidence: I accept Mr Latu's submission that there were material inconsistencies, as itemised in his submission. This causes me to further doubt the veracity of the complainant's evidence.

Force, violence or threats: The complainant's testimony about the degree of force and violence used by the accused is not borne out by the medical evidence. Nor is it corroborated by Elizabeth's evidence about what she observed when the accused and the complainant came back to the house after disappearing for a while.

Hesitant or reluctant agreement: This cannot be ruled out as a likely scenario, in view of the exchange of money that seems to have occurred.

Circumstances leading up to incident: I consider that the evidence shows that the accused was making sexual advances towards the complainant and she did not take the opportunity to clearly and publicly (in front of others present) repel them.

Circumstances prevailing at time of incident: Elizabeth's evidence does not support the conclusion that the accused took the complainant away into the dark, against her will.

Medical evidence: It is inconclusive, which is particularly significant in this case in view of the nature and extent of the injuries said by the complainant to have been inflicted on her.

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? Yes, the complainant went straight to the police at the earliest opportunity and this supports her claim of forced sex, without consent. On the other hand, Mr Latu's proposition that the complainant had not got the money she thought she deserved cannot be ruled out.

Conclusion: In this case there exist reasonable grounds for suspecting and believing that there was no consent and for believing the complainant's evidence. However, having weighed all the evidence I am not satisfied to the required standard of proof, because:

(a)	the complainant's evidence was short on detail, having regard to the period of time over which the events allegedly took place; 

(b)	the complainant, though not an obviously dishonest witness, was not, overall, a convincing one;

(c)	the complainant's evidence was not sufficiently corroborated by the evidence of the other witness who was in close proximity to the scene of the events and who would reasonably be expected to give the same version of events as the complainant; 

(d)	there were material inconsistencies between the evidence of the complainant and the other witness in close proximity to the scene of the events; 

(e)	the medical evidence, concerning an examination of the complainant within 24 hours after the events, was not consistent with the evidence of the complainant or the third witness, particularly having regard to the complainant's evidence as to the extent of violence and injuries inflicted by the accused.

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

DETERMINATION OF THE CHARGE

39. Each charge has two elements:

1	the accused sexually penetrated the complainant;

2	without her consent.

40. As to count No 1 – the first incident – I am not satisfied beyond reasonable doubt as to both elements. 

41. As to count No 2 – the second incident – I am not satisfied beyond reasonable doubt as to both elements. 

VERDICT

42. I find that the accused, Jimmy Aiyo, is:

1	not guilty of count 1, rape, and acquit him accordingly;

2	not guilty of count 2, rape, and acquit him accordingly.

Verdict accordingly. 
____________________________

Public prosecutor: Lawyer for the State
Latu Lawyers: Lawyers for the accused