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State v Molmol [2007] PGNC 180; N4966 (11 September 2007)

N4966

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1065 0F 2004

THE STATE

V

LAHIS MOLMOL & RIAMA MOLMOL

Buka: Cannings J

2007: 7, 8, 11 September

CRIMINAL LAW – trial – rape – Criminal Code, Section 347 – no-case submission

Two men were charged with rape. The State relies on the oral testimony of two witnesses, including the complainant, and seven exhibits. The key issue is lack of consent. Defence counsel made a no-case submission at the close of the State's case.

Held:

(1) There is not only a scintilla of evidence of rape. The evidence is not so weak, tainted or unreliable that no reasonable tribunal of fact could base a conviction on it.

(2) The trial must therefore proceed.

Case cited

The following case is cited in the judgment:

The State v Paul Kundi Rape [1976] PNGLR 96

RULING

This was a ruling on a no-case submission.

Counsel

L Rangan, for the State
P Kaluwin, for the accused

11 September, 2007

1. CANNINGS J: This is a ruling on a no-case submission made after the close of the State's case in a trial in which the two accused, young men from Lemanmanu village, Buka Island, are charged with the rape of a young woman from the same village. The defence counsel, Mr Kaluwin, based the submission on what is known as the second limb of the decision in The State v Paul Kundi Rape [1976] PNGLR 96. That means that, though there may be some evidence of the elements of the offence, the question to ask is:

• Is there only a scintilla of evidence?
• Or, put another way, is the evidence so weak, tainted or unreliable that no reasonable tribunal of fact could base a conviction on it?
  

If the answer is yes, I have a discretion to exercise: to enter an acquittal or order the trial to proceed. If the answer is no, the trial must proceed.

THE CHARGE

2. The State's case is that the accused and three others were at a dance at Lemanmanu on the night of 8 January 2004. They left the dance at about 3.00 am the next morning, taking the complainant, a young woman, with them. The two accused, amongst others, had been forcing her to drink home brew and she had become intoxicated. One of their accomplices, Benjamin Kelele, told her that someone was waiting for her at the gate so she went outside. Benjamin then led her to a dark area that led on to a track that went to a nearby cliff. The two co-accused followed and when they got to the cliff area they took turns in sexually penetrating her, which was all done without her consent. The State alleges that because the two co-accused had got her drunk with the intention of raping her and acted in company of a number of others, they are guilty of aggravated rape (ie rape committed in circumstances of aggravation) under Section 347 of the Criminal Code.

WHAT EVIDENCE HAS THE STATE ADDUCED IN THIS CASE?

3. The State relies on the oral testimony of two witnesses and seven exhibits.

4. The complainant, "R", testified about what happened at the dance, what time she got there and the circumstances in which she left.

5. The investigating police officer, First Constable Michael Kukubak, testified about the conduct of the interview of the two co-accused. They each admitted to having sex with the complainant but claimed that it was consensual.

6. Seven exhibits have been admitted into evidence.

A – medical report;

B – photos of crime scene;

C – sketch plan of crime scene and surrounds;

D – a statement by the police officer, Constable Lilian Solas, who corroborated the interviews.

E – a statement by the police officer, First Constable Kukubak, who conducted the interviews.

F – record of interview – Riama Molmol - which was conducted on 23 January 2004, two weeks after the alleged incident – Riama says that he was at the dance but he was not drinking homebrew; the complainant was present and she was drinking homebrew but he did not give her any; she followed them to the cliff of her own free will; she removed her own clothes; he was the third person to have sex with her.

G – record of interview – Lahis Molmol - which was conducted on 23 January 2004, two weeks after the alleged incident – Lahis says that he was at the dance, drinking homebrew; the complainant was present and she was drunk; he does not know who gave her homebrew as he was also drunk; Benjamin was the first person to have sex with her, he (Lahis) was second and Riama was third; the complainant consented to all three having sex with her.

7. To make an assessment that the above body of evidence constitutes only a scintilla (a minute amount) of evidence or is so weak, tainted or unreliable that no reasonable tribunal of fact could base a conviction on it, it is necessary to consider the elements of the offence that the co-accused are charged with committing. The co-accused have been charged under Section 347 of the Criminal Code (definition of rape) which states:

(1) A person who sexually penetrates a person without his [or her] 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.

8. The indictment alleges two circumstances of aggravation: the co-accused acted in company of each other and they caused the complainant to be intoxicated. To sustain a conviction, however, the State only has to prove two elements: sexual penetration and lack of consent. The first is a non-issue as each co-accused agrees that he had sex with the complainant. That leaves lack of consent as the key issue. Mr Kaluwin argues that the complainant is a very unreliable witness who has given contradictory evidence about, for example, the time she arrived at and left the dance; whether she was dragged out of the dance area or followed Benjamin out; and whether she was drunk. He points out that in her examination-in-chief she was asked whether there was anyone in the courtroom who raped her and she replied no; and was only in re-examination that she identified the men in the dock as being amongst the group who raped her. I agree with Mr Kaluwin that there are a number of inconsistencies apparent in the complainant's testimony. However, her evidence was not that bad that it should be dismissed out of hand. I uphold the submission of the prosecutor, Mr Rangan, that there is evidence that the co-accused, by their own admissions, had sex with the complainant and that at least one of them was drunk and perhaps reckless as to whether he had the consent of the person he was sexually penetrating. The key issue of lack of consent is worth a more thorough examination. I conclude that there is not only a scintilla of evidence of rape. The evidence is not so weak, tainted or unreliable that no reasonable tribunal of fact could base a conviction on it. The trial must therefore proceed.

ORDER

9. The no-case submission is refused and the trial will proceed.

Ruling accordingly.
______________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused