N5028
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 683 OF 2006

THE STATE

V

ELIAS MAUTU

Kimbe: Cannings J
2007: 18, 19, 20 July

CRIMINAL LAW – attempted rape – Criminal Code, Section 348 – trial

A man was indicted for attempting to rape a woman. He pleaded not guilty. It was the State's case that the accused observed the complainant walking back from a creek after bathing, with a towel wrapped around her body, that he grabbed her from behind, hit her and attempted to sexually penetrate her without her consent before she screamed, at which point the accused ran away and the complainant's father rescued her. The complainant and her father gave oral evidence and the State relied on the accused's record of interview and a medical report. The accused gave sworn evidence, admitting that he struck the complainant once as he was angry that she had breached an agreement to have sex with him. He said that the complainant was his girlfriend and they had had consensual sex on five previous occasions.

Held:

(1)	The elements of the offence of attempted rape are that:

(a)	the accused intended to sexually penetrate the complainant without her consent;

(b)	he had begun to put his intention into action; and

(c)	he manifested or revealed his intention by some overt act (R v Joseph-Kure [1965-66] PNGLR 166 applied).

(2)	The complainant's evidence about what the accused intended to do and what he actually did to was credible; and key aspects of it, in particular that the accused wanted to have sex with her and was angry with her for not agreeing to have sex, were undisputed. The medical evidence was consistent with the complainant's version of events.

(3)	The accused was an unreliable witness and his claims about the complainant being his girlfriend, previous consensual sex and an agreement to have sex were uncorroborated and not credible.

(4)	There was sufficient evidence for the court to be satisfied beyond reasonable doubt as to the existence of the three elements of the offence. Accordingly the accused was found guilty.

Cases cited

The following cases are cited in the judgment:

R v Joseph-Kure [1965-66] PNGLR 166
The State v Alex Matasol Hagali CR No 928 of 1997, 28.09.06
The State v James Yali (2005) N2988
The State v Jimmy Aiyo CR No 147 of 2005, 28.09.06

TRIAL

This was the trial of an accused charged with attempted rape.

Counsel

F Popeu, for the State
R Beli, for the accused

20th July, 2007 

1. CANNINGS J: Elias Mautu, the accused, has pleaded not guilty to a charge of attempted rape of a young woman. The offence was allegedly committed at Kilu village, in the Talasea district of West New Britain, around 6.00 pm on Sunday 15 May 2005. Both the accused and the alleged victim, the complainant, come from Kilu. He was aged 19 at the time of the incident and she was 18. It was the State's case that the accused observed the complainant walking back from a creek after bathing, with a towel wrapped around her body, that he grabbed her from behind, hit her and attempted to sexually penetrate her without her consent before she screamed, at which point the accused ran away and the complainant's father rescued her. The complainant and her father gave oral evidence and the State relied on the accused's record of interview and a medical report. The accused gave sworn evidence, admitting that he struck the complainant once as he was angry that she had breached an agreement to have sex with him. He said that the complainant was his girlfriend and they had had consensual sex on five previous occasions.

MATTERS NOT IN DISPUTE

2. The accused agrees that he was with the complainant at the time and place alleged, that he assaulted her (not badly, he says) and left the scene soon afterwards. There is no doubt that there was an incident and an altercation of some sort occurred.

ELEMENTS OF THE OFFENCE

3. The accused has been charged under Section 348 (attempt to commit rape) of the Criminal Code, which states:

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

Penalty: Imprisonment for a term not exceeding 14 years.

4. The State has to prove three things to obtain a conviction:

(a)	the accused intended to sexually penetrate the complainant without her consent;

(b)	he had begun to put his intention into action; and

(c)	he manifested or revealed his intention by some overt act.

5. They are the elements of the offence set out by the pre-Independence Supreme Court in R v Joseph-Kure [1965-66] PNGLR 166. I have modified them to accommodate the definition of rape in the new Section 347 of the Criminal Code. Rape now means sexual penetration of a person without his or her consent. The key issue in this case is whether the State has proven beyond reasonable doubt the existence of the three elements set out above. Before considering the evidence and the issues in more detail, there is an important matter of law to mention. It is about the State's case being based on the uncorroborated testimony of the complainant.

UNCORROBORATED TESTIMONY OF COMPLAINANT

6. Prior to 2003 the general practice was that the court was required to warn itself of the dangers of entering a conviction for a sexual offence based on the uncorroborated testimony of the complainant. The rationale was that offences such as rape or attempted rape are serious charges, easy to allege and difficult to refute. (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.]

7. Attempted rape is an offence under Division V.7, which consists of Sections 347 to 352A. 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". 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.

8. In the present case the State is seeking a conviction based on the uncorroborated testimony of the complainant. The complainant is the only person besides the accused to testify that she witnessed what happened. The evidence of her father is about what he observed on coming to the scene afterwards. I therefore remind myself, in accordance with Section 352A, that a conviction is still possible and that the prosecution still bears the onus of proving the elements of each offence beyond reasonable doubt. I do not instruct myself that it is unsafe to find the accused guilty in the absence of corroboration.

EVIDENCE FOR THE STATE

9. The State's case was primarily based on the following evidence:

•	the oral testimony of the complainant;
•	 the oral testimony of the complainant's father;
•	the accused's record of interview;
•	a medical report.

THE COMPLAINANT'S ORAL TESTIMONY

10. She testified that she was coming back from the creek, which is about 60 metres from her house, around 6.00 pm. The only thing she was wearing was a towel wrapped around her breast and waist. Somebody came from behind and pulled her by the neck. It was the accused, who she knew. He pulled her into a nearby vanilla plantation where he tried to rape her. He did that by holding onto her neck, which meant she was unable to scream. She held onto her towel with one hand while trying to remove his hand from her neck with the other hand. She was eventually able to do that and screamed for help. The accused had hit her on her head and shoulder. His swore at her then took off. The lighting was half-night half-day and she saw his face clearly. He had forced her to the ground and she lying on her back facing up as he was forcing himself on top of her. There was nothing covering his face. The accused was not her boyfriend. Her father recognised her voice and arrived at the place. In the courtroom she identified the accused as the person who had assaulted her and attempted to rape her. She did not consent to have sex with the accused. He was trying to remove he towel so he could have sex with her.

11. Under cross-examination the complainant denied that she was ever the accused's girlfriend, that they had had sex on a previous occasion or that they had agreed the previous day to meet on Sunday afternoon and have sex. She denied carrying anything on her head. She denied talking to the accused immediately before the incident. She said that he did not ask to have sex with her. He just came up from behind and pulled her by the neck. The accused's mother came onto the scene at the same time as her father arrived. The sequence of events was that she screamed, the accused ran away, then her father and his mother arrived on the scene. Her father carried her on his side back to their house. Her father asked her what happened but she was too weak and could not say much. She just told the father that it was Elias.

12. In re-examination she said that she reported the incident as the incident happened as she has said and she did not report the incident because of any fear of her father.

ORAL TESTIMONY OF THE COMPLAINANT'S FATHER

13. George Giru is the complainant's father. He is from Kilu village. He lives and works there as a teacher. He testified that he was at the family home on the evening of the incident. He heard someone screaming and first of all did not recognise the voice. But then he heard it again and realised that it was his daughter, the complainant. So he ran towards where the screaming was coming from and he found his daughter in the vanilla plantation, lying on the ground. When he arrived the accused's mother also arrived. His daughter said: 'Aunty, what Elias did to me is not good'. The accused's mother went back to her house and he carried his daughter to their house. His daughter looked weak so he looked for a vehicle and then took her to Kimbe General Hospital where she was examined and the nurses advised them to report the matter to the police. He knows the accused as the accused's mother and himself have common grandparents. He described the place where he found his daughter as being the same distance from the Kimbe Police station to the first gate of the Kimbe market, which is the same description as the complainant gave in her evidence.

14. In cross-examination he said that when he arrived at the vanilla plantation his daughter was crying. He denied that he was cross as he did not know immediately what had happened to her. He denied that she came and reported the incident to him. He heard her scream and went running to find out what was happening. His daughter was weak and could not talk much when he first found her. He denied talking to his daughter after she had given evidence about the evidence that he should give.

THE ACCUSED'S RECORD OF INTERVIEW

15. He told the police that the complainant was his girlfriend, they had been friends for about a year, they had agreement to meet at the vanilla garden, but then she noticed that there was somebody watching and told him about that, then he pulled her as he was angry and hit her and she cried. His mother heard her crying so she ran over and saw the complainant. He felt ashamed and ran away. He denied lying on top of her. They were just standing and talking.

MEDICAL REPORT

16. It was prepared by a health extension officer at Kimbe General Hospital, dated 19 May 2005. It was admitted into evidence without objection. It shows that the complainant was examined within a few days after the incident in the accident and emergency department. She complained of pains in the neck and mouth and said she was injured when fighting off a man who tried to force her to have sex with him. The report continued:

Examination: adult female in no distress.
Neck - slight swelling and pain bilaterally and posteriorly.
Left mandible - slight swelling and haematoma.

17. The report concluded that the complainant had sustained soft tissue injuries and was treated with Amoxil and Panadol.

THE DEFENCE CASE: THE ACCUSED'S SWORN EVIDENCE

18. The defence case consisted solely of the accused's sworn evidence. He testified that on the afternoon of the incident he was at his house and remembered the plan that he and the complainant had made the previous day, which was to meet at the vanilla garden. So he went to the vanilla garden and saw the complainant go down to the creek and then she returned. When she was coming back from the creek he came straight in front of her. He did not come from behind. They began talking and she indicated that she did not agree to what they had previously agreed on, which was to have sex. That is why he got angry and hit her.

19. In cross-examination he said that the complainant was his girlfriend. He hit her only once on the back of the neck. She did not fall down. The only thing that happened was that a plastic container of water that she was carrying on her head fell to the ground. Asked about his mother, the accused said that she is still alive and still living in the village Kilu. He has been living at Kilu while he has been on bail waiting for this trial.

20. In re-examination the accused said that the complainant had been his girlfriend from about 2002 up until May 2005 when the incident happened. They have had sex before on five occasions. He hit her because she was his girlfriend and they had previously agreed to meet and have sex and she changed her mind. He got angry about that and hit her.

THE ISSUES IN DETAIL

21. The nature of the evidence and submissions of counsel give rise to these issues:

1	Was the complainant's evidence credible?
2	Was the other evidence consistent with her evidence?
3	Are there gaps in the evidence that give rise to doubt about acceptance of her evidence?
4	Was the accused's evidence credible?
5	Did the accused and the complainant have a boyfriend/girlfriend relationship and agree to have sex?
6	Did the accused intend to sexually penetrate the complainant without her consent?
7	Did the accused begin to put his intention into action?
8	Did the accused manifest or reveal his intention by some overt act?

1	WAS THE COMPLAINANT'S EVIDENCE CREDIBLE?

22. The complainant was a credible witness. She gave her evidence calmly and with precision and her demeanour was not of someone who was lying. She did not appear to be exaggerating the story. I reject defence counsel Mr Beli's submission that her demeanour was unsatisfactory. He pointed out that she paused before answering some questions, eg whether she had sex with the accused on previous occasions. I do not consider that the pauses were any longer than would reasonably be expected of a young woman who was being asked direct and personal questions in a courtroom about her sex life. The pauses were not very long and Mr Beli was unable to convince me that she was an untruthful witness. I conclude that she was a reliable and honest witness and her evidence was credible.

2	WAS THE OTHER EVIDENCE CONSISTENT WITH THE COMPLAINANT'S EVIDENCE?

23. Yes. The medical evidence was uncontested and was consistent with the complainant's version of events. The medical report suggested that the complainant was taken to hospital with good reason because she sustained soft tissue injuries and had to be treated. Her neck was swollen, as was her left mandible (ie the lower part of the jaw). This was consistent with her description in evidence of how the accused assaulted her. It is not consistent with the accused's version of events, which was that he struck her only once on the back of the neck. The medical evidence suggests that she had taken severe blows to the neck and jaw.

3	ARE THERE GAPS IN THE EVIDENCE THAT GIVE RISE TO DOUBT ABOUT ACCEPTANCE OF THE COMPLAINANT'S EVIDENCE?

24. No. Nothing the defence counsel referred to in his submission exposed any gaps in the evidence.

4	WAS THE ACCUSED'S EVIDENCE CREDIBLE?

25. In contrast to the complainant's demeanour in the witness box, the accused was not impressive. He just did not appear to be telling the truth. He appeared to be trying to convince himself that the version of events he had given to the police – which was in any event not entirely consistent with the version of events he gave in the witness box – was the truth. The accused was a nervous witness and did not confidently answer the questions put to him in cross-examination by the prosecutor.

5	DID THE ACCUSED AND THE COMPLAINANT HAVE A BOYFRIEND/GIRLFRIEND RELATIONSHIP AND AGREE TO HAVE SEX?

26. This is very doubtful. I much prefer the complainant's version of her relationship with the accused, which was that they knew each other as they lived in the same village; and as pointed out by the complainant's father, they were distant relatives. I cannot conclude that there was any agreement between the parties to have sex. I reject that version of events. In any event, even if the accused and the complainant had a boyfriend/girlfriend relationship and they had an agreement to have sex it would not be conclusive of the issue of whether the elements of the offence had been proven. Being somebody's boyfriend or girlfriend does not give you the right to sexually penetrate that person without their consent. In light of the answers to those questions, I will address the key issues set out at the beginning of this judgment.

6	DID THE ACCUSED INTEND TO SEXUALLY PENETRATE THE COMPLAINANT WITHOUT HER CONSENT?

27. The natural conclusion to draw from the acceptance of the complainant's evidence is that the answer to this question is yes. The accused's intention is clear from his actions, ie approaching the complainant from behind, pulling her by the neck, forcing her onto the ground, lying on top of her and attempting to remove her towel. He intended to sexually penetrate the complainant and to do that without her free and voluntary agreement (see the definition of consent in Section 347A(1) of the Criminal Code).

7	DID THE ACCUSED BEGIN TO PUT HIS INTENTION INTO ACTION?

28. Yes. When she resisted, he put one hand over her mouth to stop her screaming while at the same time lying on top of her.

8	DID THE ACCUSED MANIFEST OR REVEAL HIS INTENTION BY SOME OVERT ACT?

29. Yes. The whole course of conduct by the accused was a manifestation of his intention to sexually penetrate the complainant and to do that without her consent.

HAS THE STATE PROVEN EACH ELEMENT BEYOND REASONABLE DOUBT?

30. As I pointed out in The State v James Yali (2005) N2988, in a case such as this, it is not a simple matter of deciding who to believe. An accused cannot be convicted only on the basis of suspicion or belief on the part of the tribunal of fact (the court) that all elements of the offence are proven. (Also see The State v Alex Matasol Hagali CR No 928 of 1997, 28.09.06 and The State v Jimmy Aiyo CR No 147 of 2005, 28.09.06.) The court's task is, rather, to determine, having weighed all the evidence and considered that there are reasonable grounds for believing the complainant's evidence, whether it is satisfied to the required criminal standard of proof – beyond reasonable doubt – that each element is present. If there is a reasonable doubt about any element, the court is obliged to acquit the accused. Here, I have weighed all the evidence. I agree with Mr Popeu's closing submission that the manner in which the accused assaulted the complainant means that he assaulted her in order to rape her. That was clearly his intention. He began to put his intention into action before being interrupted and his overt acts manifested that intention. The State has proven the elements of the offence beyond reasonable doubt.

VERDICT

31. The accused is convicted of attempted rape.

Verdict accordingly.
__________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused