N3135

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1508 OF 2005

THE STATE

v

RUAP GEMUNG (No. 1)
Accused

Madang: Davani, J
2007: 15, 16 & 28 March

CRIMINAL LAW – verdict – sexual penetration of a child and rape of a child – victim aged 14 – accused, a District Court magistrate – breach of trust – s. 17 of Criminal Code (Sexual Offences and Crimes Against Children) Act of 2002 (‘CCSOCAC’) or s. 347 of the Criminal Code Act (‘CCA’) – s. 229A (1) of CCSOCAC.

CRIMINAL LAW – verdict – corroboration – no longer applicable – s. 22 of CCSOCAC or new s. 352A of CCA

CRIMINAL LAW – trial process – before cross-examination, Defence counsel to make brief opening – desirable for a party to put its case to the opposing party in cross-examination.'	

Cases cited 

Papua New Guinea Cases

The State -v- Ogadi Minjipa [1977] PNGLR 293
The State -v- Saka Varimo [1978] PNGLR 62 (N125)
State -v- Simon Ganga [1994] PNGLR 323 (N1232)

Overseas Cases

Browne –v- Dunn (1893) 6 R 67 HL
Thomas -v- Van Dan Yssl [1976] 14 SASR 205 at 206
Allied Pastoral Holdings Pty Ltd -v- Commissioner of Taxation [1983] NSWLR at 16

COUNSEL

J. Wala, for the State
B. Waipek, for the Accused

VERDICT 

28 March, 2007

1. DAVANI. J: The State presented an indictment charging Ruap Gemung (the ‘accused’) with one (1) count of rape under s. 17 of the Criminal Code (Sexual Offences and Crimes against Children) Act 2002(‘CCSOCAC’) and one (1) count of sexual penetration of a child under s. 229A (1) of the CCSOCAC.

2. These provisions read;

"S. 347 DEFINITION OF RAPE"

(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."

"S. 229A. SEXUAL PENETRATION OF A CHILD.

1.	A person who engages in an act of sexual penetration with a child under the age of 16 years is guilty of a crime.

Penalty: Subject to subsections (2) and (3), imprisonment for a term not exceeding 25 years."

States allegations

3. The victim, a female, was at that time, aged 14 and was with the accused that evening at the Lutheran Guest House Madang when the offence allegedly occurred on 3 February, 2005.

4. The accused, an adult male, is presently aged 55. At the date of the offence, he was aged approximately 53 years. He was a district Court Magistrate, based at Karkar, when the offence allegedly occurred. He is presently on suspension. 

5. The State alleged that the accused sexually penetrated the victim, which caused her to bleed. That apart from penetrating her with his private parts, he also used his fingers.

Evidence for the Defence

6. The accused and his wife gave evidence. In his defence the accused through his lawyer when asked, said his defence was that of a general denial, that he never committed the act of rape or sexually penetrated the victim, effectively, that the offences never occurred.

Evidence for the State

7. The victim N.K. (‘the victim’), her mother and a Medical Orderly, gave evidence for the state. The victim said she was asked by the accused to accompany him to town to pick up his wife who was arriving from Lae. He also promised to purchase her some second hand clothes. He sought permission from her parents before taking her.

8. The victim’s mother said they were good family friends of the accused and his family. Her husband is the security guard and cleaner of the Karkar District court so their relationship with the family was not only professional but personal being that the victims family were good friends of the accused’s family. This was because when the accused first arrived at Karkar, the accused, being from another province and his wife, also from another province were total strangers to and at Karkar. The victim’s parents took them into their care and the accused’s family welcomed that relationship, wholeheartedly. She said that was why when the accused asked to take their daughter for the day, and because her husband and her wholeheartedly trusted him, they let her go with him.

9. The next witness, a Disease Control Officer (‘DCO’) employed at Karkar Health Centre, gave evidence of his examination of the victim. He, Sual Kulang, together with 2 female nurses, medically examined the victim and diagnosed that the victim had been raped. He said also that for the last 29 years in his capacity as DCO, he had conducted physical examinations of many rape victims. He has also physically examined and treated murder victims and victims of domestic violence.

10. He told the court that in his opinion, the victim had been raped. He said his conclusions were reached after an examination of the victim’s internal and external genital area. In his opinion, he said the victim’s private parts had been penetrated by a foreign object. This was because the vaginal walls were bruised, bleeding and inflamed.
Analysis of evidence and Law

11. Before proceeding to discuss the evidence, I should point out that when giving evidence, the accused was haughty and did not co-operate with counsel for the State. He did not properly answer the questions and responded by asking the Counsel for the State, questions related to the questions he was asked to answer. I had to put a stop to this.

12. The court heard the evidence and noted that although the victim and her witnesses were adamant that the accused had raped the victim, he said otherwise. He relied very much on the common law principle of corroboration to say that the court must be cautious when relying only on the victims’ evidence, that it is not safe to convict on the uncorroborated testimony of the victim. However, counsel for the accused, it appears, had not perused thoroughly, the CCSOCAC which states, clearly, in no uncertain terms, at s.22, the following;

"22. New section 352 A

 The Principal act is amended by inserting after section 352 the 	following new section:-

"352A. CORROBORATION NOT REQUIRED

On a charge of an offence against any provision of this Division, 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."

13. Defence Counsel failed in his duties because, not only did he not peruse the CCSOCAC, he did not have a copy with him in court. That provision is in mandatory terms that "…… a judge shall not instruct himself that it is unsafe to find the accused guilty in the absence of corroboration." Although Defence Counsel referred me to certain National Court decisions where the trial judges found that this provision was unconstitutional, with respect, I am not bound by those decisions.

14. Without the benefit of parliaments Hansards, I am unable to state the reasons why the CCSOCAC was passed containing the various provisions that I now refer to. But it is law and law relating to sexual offences of the kind the accused is charged with.

15. Apart from Defence counsels failure to consult the CCSOCAC, he also raised matters in examination in chief of the accused, that were not put to the victim in cross- examination. I set out a detailed discussion on this below.

16. In refuting the allegations, the accused said nothing happened on that fateful night. He said that in evidence in chief, and raised matters which were not put to the victim or her witnesses in cross-examination, and which were also, not mentioned or raised in his opening, prior to proceeding to cross-examination. I discuss the relevance and importance of this practice, later below. The accused said these in examination in chief;

i.	The victim asked to accompany him to Madang;
ii.	His family and him were not close friends with the victims family;
iii.	That the victim’s parents laid the rape charges against the accused out of revenge because the accused, in his capacity as magistrate, had convicted the victims mother for playing cards. She was convicted, to pay a K40.00 fine, in default, 1 month imprisonment;
iv.	The victim’s parents had approached the accused on at least 5 occasions, after the charges had been laid, to settle the matter out of court, by the accused paying them some monies. In his evidence in chief, he told the court that he was asked to pay K6000.00 and K3000.00 on all these 5 occasions. But he always refused to pay and on all these occasions, told the victims parents to see their lawyer;
v.	That the charges laid against the accused were all because the victim’s parents wanted revenge on the accused, for convicting the victim’s mother.

17. The accuseds wife also supported his story, even to the extent of giving evidence on the court decisions he made, more particularly, the case against the victims mother. Furthermore, his wife, although not at the scene of the crime, was adamant that her husband did not do what he did and that the victim was only saying that out of revenge for her mother.

18. Is it important that the accused put his case to the victim and her witnesses? That is an important procedure that must be complied with and which accused persons must do. To do that, before commencement of cross-examination, accused’s lawyer must make a brief opening on what his or her client’s case is about. This principle or practice was discussed in The State v Saka Varimo [1978] PNGLR 62 (N125) Prentice CJ, 3 March 1978.

19. In that case, on a trial on a charge of Dangerous Driving Causing Death, after the conclusion of prosecutions’ case, the accused made a statement from the dock in which an explanation of sudden emergency was raised for the first time in the course of the trial. The trial judge held there;

1.	" It is desirable that Defence Counsel open in cross-examination of State witnesses, the version of facts or explanation of conduct upon which the defence relies:

Brown -v- Dunn [1893] 6 R 67 HL and 
The State -v- Ogadi Minjipa [1977] PNGLR 293 followed.

2.	Failure to cross-examine with a view to surprising the prosecution may be taken into account in assessing the credibility of a witness."

20. In Thomas v Van Dan Yssl [1976] 14 SASR 205 at 206 Bray CJ stated the principle in these words:

"….. If it is intended to suggest that a witness is not speaking the truth on a particular matter by cross-examination, his direction must be directed to the matter by cross-examination so that he may have an opportunity of giving an explanation of it open to him unless he has had notice beforehand that the credibility of his story is impeached, or unless, probably, it is so intrinsically and patently incredible as to be unworthy of examination. With respect, I think the rule is a salutary one. As Lord Herschell said at 70, ‘It is absolutely essential to the proper conduct of the cause."

21. The other two members of the Full Court of the Supreme Court of South Australia concurred with the judgement of Bray CJ.

22. The order of events in this case, more particularly the manner in which Defence Counsel presented his case, leaves a lot to be desired. I say this because apart from not putting his clients case or Defence to the States witnesses, and to the Court, he did not know of the authority, Browne v Dunn [supra]. This is a similar situation to the case State v Simon Ganga [1994] PNGLR 323 (N1232), matter decided by Sevua. J on 7 June, 1994. In that case, his honour emphasized on compliance by the court with the principles on corroboration. The court also pointed out the requirement by counsel for accused to put his or her case to the State witnesses and compliance with the rule in Browne v Dunn [supra]. Simon Ganga [supra] was cited to me by the Defence Counsel in support of his submission on corroboration. But Simon Ganga was decided before the enactment of the CCSOCAC, and those principles no longer apply in this jurisdiction. I am surprised he did not take note of the well established principles on cross-examination and opening addresses by Defence Counsel, as pointed out by Sevua. J. in Simon Ganga.

23. In this case, the evidence is that, the victim told the court that the accused had asked her to accompany him. In her evidence, she referred to the accused as "uncle". Even in his evidence, the accused stated that the victim called him ‘uncle’. I can conclude that this was because the victim’s family including the victim and the accused’s family had a close relationship. This is common in a lot of Papua New Guinean towns and villages were children refer to family friends as "uncles" and "aunties" because of their close relationship with each other. Although I accept the accused’s evidence that because he is a magistrate, he must keep his distance from the public, it does not apply in this case because the victim’s father is the accused’s colleague. I can assume that he may be the only courthouse worker on Karkar Island, apart from the accused and the registry clerk, which means the State witnesses evidence that their families were very close, is accurate and correct. It would not be normal if, on a small place like Karkar Island, the resident magistrate does not get on with his security guard/cleaner and does not even know his family.

24. I accept that the accused asked the victim to accompany him. 

25. The victim’s mother and the accused said the trip was for the day only to pick up the accused’s wife, who was travelling in from Lae, then for them to return to Karkar Island, in the afternoon. However that did not happen. They spent the day in Madang town sight seeing and shopping. The victim said they did not look for the accused’s wife. At about 4 pm, they returned to the Lutheran Guest House where the accused booked a self-contained unit with 2 bedrooms. The victim said that after dinner, whilst she was playing cards, the accused asked her if she had a boyfriend to which she said no. She said it was whilst she was sitting on the chair, that the accused pulled at her shoulders and took her into the room. She said she struggled to remove his hands but he was too strong for her. She screamed for help but nobody heard her. She said there were no other guests at the guest house at the time. He dragged her to the room, removed her clothes and pushed her down on the bed. But he did not tear her clothes. He then fondled her breasts then pushed two fingers into her private parts. She cried out because of the pain but he continued. That was when he retrieved his fingers and sexually penetrated her. She said she struggled but he was too strong for her. He penetrated her once and because she cried, he left her. She sat up on the bed and cried. She said she was bleeding She said he returned and gave her K50.00 but she did not accept it, because of the bad things he did to her. She also said she could not run away because he locked the doors from the inside.

26. The next day, they went to town where they found the accused’s wife and daughter at the bus stop. Although the victim went to carry the baby, the accused’s wife hit her with an umbrella accusing her of having an affair with the accused. This was when she left them without telling them and ran away to her uncle at Melebe Street, Newtown. She said she was "found" by the accused’s wife at Newtown and taken to the accused’s wife’s relatives’ home, against her will. She was forced into going with them. Both the accused and his wife agreed that they did pick her up on the road.

27. The accused’s evidence is that none of the things the victim said ever occurred. He raised other matters in examination in chief, but which were not put to the victim or her mother. 

28. He said it was the victim’s parents who asked if the victim could accompany the accused to Madang after the victim’s father learnt of this trip from a meeting the accused had called with the court house staff, the day before.

29. He also said that he slept in another room in the guest house and the victim slept in another room. He said when he awoke the next day the victim was still sleeping because her door was locked. But these were not put to the victim, for her to respond to. There is good reason for this practice. These are that apart from what I have already said, Hart J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983], NSWLR at 16 said this;

"It has in my experience always been to rule of professional practice that, unless notice has already clearly been given of the cross-examiners intention to rely upon such matters, it is necessary to put to an opponents witness in cross-examination, the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with the other evidence, or the inferences to be drawn from it and to allow the other party to call evidence either to corroborate the explanation or to contradict the inference sought to be drawn. That rule of practice follows from what I have always believed to be rules of conduct which are generally regarded as being established by the decision of the House of Lords in Browne v Dunn (1893) 6 R 67"

30. Sevua. J, in Simon Ganga (supra) set out a detailed discussion on this well established principle, by reference to other authorities, that the fundamental essence of the rule is that, it is desirable for a party to put its case to the opposing party in cross-examination so that the opposing party can afford an opportunity to refute or explain the matters that are being put forth in cross-examination.

31. In this case, both the court and the State did not know of the accused’s Defence until the court asked Defence Counsel who said it was one of ‘General denial’. Such a defence is non-existent. I gathered the accused was saying that he never committed the alleged wrong. As it was, the victim/prosecutrix never had the chance to refute or explain the matters raised by the accused in his examination in chief. It was or is apparent, that the accused concealed his version until he gave evidence. I consider that very unfair for the victim.

32. Again in his evidence, the accused said the victims parents had asked for money in return for the withdrawal of charges. He said they did this on 5 occasions. He said they asked for K6000.00 and later, K3000.00. This is very new material which was never even put to the victim’s mother in cross-examination. Again, these were materials that the accused only raised, at the trial. In my view, they are all recent fabrications, the accused having had time to think them up. I should add here that the accused’s wife also said the same things, being accurate in every detail with the story given by her husband. It appears the both of them have discussed the evidence to be given in the accused’s Defence.

33. The medical report describing the victim’s condition, was tendered through the medical officer who examined the victim. It was done after evidence was led by the State, that although the OIC of the Health Centre signed the report, that it was the medical officer Sual Kulang and 2 nurses, who physically examined the victim.

34. Mr. Kulang said in his 29 years experience as a medical officer, that he medically examined approximately 50 to 60 rape victims. He said the conclusions in the medical report are his and not that of the person who signed it. Defence Counsel did not raise any objection when the report was sought to be tendered. It was tendered and marked exhibit ‘B’ for the State.

35. Mr. Kulang’s evidence is that nurses ethics require that 2 female officers must be present when physical examinations are conducted on female victims. That it is the female officers who examine and the male officer witnesses the examination, so their records are accurate as to what is observed and the diagnosis and conclusions. The victim’s mother was also present throughout the whole process. He also explained that the OIC of the clinic signs reports. The OIC of the hospital signed the report now before me.

36. The medical examination of the victim was conducted on 11 February 2005 and a written report prepared. The report was typed on 30 March 2005 because the clinic did not have the necessary typing materials. Mr. Kulang explained that although the report made references to the rape, as told to them by the victim, that his own observations confirmed that the victim had indeed been raped. He said in evidence that the victim’s whole genital area, the vaginal mouth and wall were inflamed and bruised. He diagnosed that there was infection in the genital area so treated the victim with Amoxycillin. The witness also said in cross-examination that the victim’s hymen was torn. He said in cross-examination that the cause of the inflammation in the vaginal area was that it had been penetrated by a foreign object.

37. Clearly, the medical report confirms the victim was raped. The victim did not have the opportunity to see a doctor until 2 weeks after the rape when she told her parents. This was because she was still in Madang. On arrival at Karkar Island, after she told her parents of the rape, her parents immediately reported the matter to the Police and took her to the doctor. 

38. The overwhelming evidence is that it is the accused who committed the acts of rape upon the victim. The victim’s story is supported by her mother and the medical report. The accused presented a story that, although was well thought out, was fabricated, the issue being that why would a young girl lie to the court that a man of the accused’s standing and status i.e. a magistrate, had raped her. If there were inconsistencies in the victim’s evidence then I would have some doubts. But there are no inconsistencies. Apart from the fact that the medical report was signed by a person other than the person who examined the victim, the medical report was tendered into evidence with no objections and the examining medical officer himself gave sworn evidence in court on the victim’s condition, thus clearing any doubts the court may have had.

39. The accused, a magistrate, committed this act upon the victim, whilst she was with him, alone, in his room. There are 2 reasons why I will not accept his evidence. These are;

1.	He lied in evidence by giving a fabricated story, on the eve of trial, without giving the victim and her witnesses, the opportunity to properly respond.

2.	The medical report, supported by verbal medical evidence, confirms that the victim was raped. The only person who could have done this is the accused. There is no other evidence to the contrary.

Conclusion

40. I find that the following have been established beyond reasonable doubt;

1.	That the accused sexually penetrated the victim without her consent;

2.	That the accused sexually penetrated a child aged under 16 years, in this case a 14 year old, female.

41. This crime was committed by a magistrate, a person representing the law and holding a position of trust. This Court finds him guilty on the both counts as charged.
____________________________________________

Public Prosecutor: Lawyer for the State
Kunai Lawyers: Lawyer for the Accused