N3943

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1033 OF 2002

THE STATE

V

ELIZAH KENO

Madang: Cannings J
2008: 14, 18, 19, 22 February

VERDICT

CRIMINAL LAW – rape – trial – Criminal Code, Section 347 – whether the accused sexually penetrated the complainant – whether the complainant consented.

A man was indicted for rape of a 15-year-old girl. He was aged 21 at the time of the incident. They lived in the same community and were well known to each other. He denies having sex with her on the day in question. The complainant gave evidence as did a female friend who was accompanying her at the time. There was no medical evidence. The accused gave sworn evidence as did his cousin, who said that the accused and the complainant were 'sex friends'.

Held:

(1)	The complainant's demeanour was generally satisfactory but key aspects of her evidence, in particular that her mother was cross with her and she told her mother that the accused had raped her in order to stop her mother beating her, were irregular and gave rise to significant doubt as to the overall veracity of her evidence.

(2)	The evidence of the complainant's friend, who was in the vicinity of the alleged incident, was not consistent with the complainant's evidence; consequently the complainant's evidence was uncorroborated.

(3)	There is no longer any requirement for the court to warn itself about the danger of convicting on the basis of the uncorroborated testimony of a complainant. Nevertheless, this was a case that required corroboration and there was, in effect, none.

(4)	The evidence adduced for the defence supported the view that the accused and the complainant were on friendly terms and may have had sex before; and that the complainant may have falsely suggested that the accused had raped her in order to pacify her mother.

(5)	There was insufficient evidence to establish either of the elements of rape; therefore the accused was acquitted.

Cases cited

The following cases are cited in the judgment:

The State v Alex Matasol Hagali CR No 928 of 1997, 28.09.06
The State v Douglas Jogioba CR No 1766 of 2005, 24.10.07
The State v James Yali (2005) N2988
The State v Jimmy Aiyo CR No 147 of 2005, 28.09.06
The State v Onjawe Tunamai [2000] PNGLR 234

Glossary 

People
Benny Kenso – the complainant's uncle
Casper Kenso – the accused's father
Elizah Keno – the accused; defence witness No 1
Florence Mathew – the complainant; State witness No 1
Miriam Akuru – complainant's friend; accused's niece; State witness No 2
Pastor Philip – the complainant's uncle
Paul Nambur – the complainant's uncle
Pauline Dambui – complainant's friend
Stephanie – the complainant's cousin

Places
Sisiak – settlement on edge of Madang town
Wagol – river near Madang town

TRIAL

This was the trial of an accused charged with rape.

Counsel

M Ruarri, for the State
A Turi, for the accused

22 February, 2008

1. CANNINGS J: Elizah Keno, the accused, is a 27-year-old Sepik man who has lived all his life at Sisiak settlement on the edge of Madang town. He is charged with the rape of the complainant, Florence Mathew, 15 years old at the time, who was well known to him and also lived at Sisiak. The incident over which he has been charged happened on Christmas Day, 25 December 2001, at Sisiak, when he was aged 21.

2. It is the State's case that the accused met the complainant and two young female companions on the road near the Wagol River bridge. He pulled the complainant into the nearby kunai grass, overcame her resistance and sexually penetrated her without her consent.

3. The accused denies having sex with the complainant on the day in question.

THE OFFENCE

4. The accused has 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.

5. The indictment does not allege any circumstances of aggravation so the State only has to prove two elements: sexual penetration and lack of consent.

THE EVIDENCE

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

•	the oral testimony of the complainant;
•	the oral testimony of one of the complainant's companions; and
•	the accused's record of interview, which is of little evidentiary value as the accused exercised his right to remain silent.

There was no medical evidence.

7. Two witnesses gave evidence for the defence:

•	the accused; and
•	the accused's cousin brother.

STATE WITNESS NO 1: THE COMPLAINANT

8. Florence Mathew said that she lives at Sisiak 2. She has lived there all her life with her parents. She knows the accused, they grew up together. His house is two houses away from her house. He is not her boyfriend and he has never been her boyfriend.

9. On the day in question, 25 December 2001, she was walking down to Wagol about 5.00 pm. She was with her friends, Pauline and Miriam. They were on their way back and there was still light. Elizah came out with a piece of iron, held her by the hand and told Pauline and Miriam to leave. He took her into the bush even though she was struggling against him. He forced her to lie down. He removed her clothes and pushed his penis into her vagina. She resisted all the time but he was too strong and kept doing it. She was wearing trousers, pants and a shirt. He threw her clothes about three metres away.

Pauline and Miriam then went and told her mother.

10. Shortly after the incident she went to the hospital and the doctors examined her but gave her no medicine. After that, they went to the police station.

11. The incident happened about ten metres from the Wagol River bridge. There are houses on both sides of the road. There were not many people around at the time as there were no games being played on the playing field.

12. She did not speak to Elizah and he did not speak to her.

13. The houses are very close to each other at Sisiak 2. But she did not see anyone on the road at the time of the incident. The closest house to the place of the incident is about 150 metres away. In between, there is grass growing on both sides of the road.

14. She had never had sex with Elizah before this incident. She feels very bad about what he did. He paid K200.00 compensation afterwards but she was not present when the money was handed over. Her big brother got it. The money was paid to fix the problem. It was paid after he had been arrested and came out of the cell.
 
15. In cross-examination she denied having a boyfriend/girlfriend relationship with the accused for two years before the incident. She denied that his family and her family knew about this relationship. She denied buying Elizah cigarettes at the time. She denied that her mother had screamed at her not to speak to Elizah or give him cigarettes.

16. She conceded, however, that after the incident her mother hit her and was swearing at her and that other people heard what was happening. It was true that she was sobbing. Her mother was beating her as she thought that she was having a boyfriend/girlfriend relationship with Elizah. Her mother started beating her without asking any questions. Her mother believed that she and Elizah had agreed to have sex. Her mother was a very strict woman.

17. She denied seeing the accused's relatives at the market after the incident and telling them that it was her mother who laid the complaint with the police. She denied saying that it was not her idea but her mother's idea to report the matter to the police.

18. Defence counsel, Ms Turi, asked the complainant if she had told her mother that Elizah had raped her because her mother was hitting her badly. She replied yes, she told her mother that, in order to stop her mother from beating her. Her mother beat her on the same day that she was raped.

STATE WITNESS NO 2: MIRIAM AKURU

19. She is now 21 years old and lives at Sisiak 1. She has lived there all her life. She knows the complainant well as they are good friends. She also knows the accused who she regards as her uncle.

20. On the day in question she was walking down to Wagol, with Florence and her sister, Pauline Dambui. They wanted to go to Sisiak 3 market.

21. Elizah came towards them carrying a carton of beer. He was by himself but there were a number of people on the road when he approached. One was selling betel-nut and three others had bought betel-nut and were standing around telling stories.

22. Elizah came and held on to Florence's hand. He did not do anything. Elizah told her and Pauline that he was not going to do anything to Florence. The men buying and selling betel-nut were about 150 metres away.

23. Florence did not do anything when Elizah grabbed her by the hand. Elizah walked ahead and they went towards another uncle's house. Florence followed behind Elizah. Nothing happened. They just went away. She (Miriam) went back to her house which is next to Florence's house. She did not see Florence again that afternoon.

There was no cross-examination of this witness.

THE DEFENCE CASE: THE ACCUSED'S SWORN EVIDENCE

24. He says he is now 27 years old and his father is Casper Keno.

25. On the day in question he was standing beside his uncle's house telling stories with his brothers and drinking. He went to the store and bought some beer and returned and when he was walking back the three ladies approached him: Miriam, Pauline and Florence.

26. When Florence saw him, she dropped back from the other two and they had a brief conversation and she bought him two loose cigarettes. Then about ten or fifteen minutes later Florence's mother approached and started to get cross and was shouting at Pauline from a short distance away, from a small hill. Later between 7.00 and 7.30 pm when he was at his house he heard Florence's mother beating her. He went over to Florence's house to try and explain. He went with his mother. But Florence's mother kept swearing at him. He told his own mother that he did not do anything but he did not have a chance to explain things properly to Florence's mother as she walked away.

27. It turned into a big issue in the local community so his uncles got some chicken and betel-nut and mustard and got some cash together. They went to Florence's house that same night. They spoke to Florence's father who said there was no problem and that the problem was with Florence's mother.

28. His family gave K200.00 cash to Florence's brother. His uncles gave that money: Pastor Phillip of the Four Square Church, Paul Nambur and Benny Keno. That was just to keep the peace.

29. The spot where he met the three ladies has playing fields on each side of the road. People can see clearly what is going on there.

30. He denies sexually penetrating the complainant on the day in question. They were friends in 1999 and 2000. They used to hang around together and sleep together. His brothers and sisters knew about it and there were no problems between the families. His parents did not, however, know about it.

31. Florence's mother was shouting at Florence and telling her not to talk to "that person" (the accused).

32. Florence's mother died in 2007 and when she died the problems between the families disappeared.

33. Her uncles knew what kind of a woman Florence's mother was. Her uncles went there to talk to Florence's parents to maintain the relationship between the families. For the same reason the cash and other things were given to Florence's family.

DEFENCE WITNESS NO 2: KINGSLEY GEORGE

34. He is 22 years old and works at Papindo Supermarket in Madang town. He recalls the incident of 25 December 2001. He lives at Sisiak 2.

35. Some time after the incident Florence came to where he and Elizah were. She was crying and apologising for the police arresting Elizah. Florence said she was sorry because it was her mother who had had Elizah arrested. That conversation took place at the tuckerbox. Florence was alone.

36. Elizah and Florence use to go around together. They were sex friends. In 2001 he was going to Tusbab High School. He was in grade nine.

37. He is Elizah's cousin-brother. Their fathers are cousins, in the same clan. He lives next door to Elizah.

THE ISSUES IN DETAIL

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

1	Was the complainant's evidence credible?

2	Does the other evidence advance the State's case?

3	Are there gaps in the evidence that give rise to doubt about acceptance of the complainant's evidence?

4	Was the defence evidence credible?

39. In light of the answers to those questions, I will address the key issues set out at the beginning of this judgment:

5	Did the accused sexually penetrate the complainant on the day in question?

6	Was there a lack of consent?

1	WAS THE COMPLAINANT'S EVIDENCE CREDIBLE?

40. The complainant's demeanour was generally satisfactory but key aspects of her evidence, in particular that her mother was cross with her and she told her mother that the accused had raped her in order to stop her mother beating her, were irregular and gave rise to significant doubt as to the overall veracity of her evidence.

2	DOES THE OTHER EVIDENCE ADVANCE THE STATE'S CASE?

41. No. Miriam's evidence was not consistent with the complainant's evidence in the following respects:

•	The complainant said that Miriam reported the incident to the complainant's mother; whereas Miriam did not say that.

•	The complainant said that the accused was carrying a piece of iron; whereas Miriam said he was carrying a carton of beer.

•	The complainant said that the accused dragged her into the bush, where she was raped; whereas Miriam said the accused held her by the hand, then the complainant walked ahead and that "nothing happened".

Miriam's evidence, in fact, supported the defence case: nothing happened.

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

42. Yes. There is no independent evidence of a recent complaint, ie that the complainant or anyone else made a complaint to the police, the hospital or anyone else soon after the alleged rape occurred. There is no evidence that the complainant was physically or emotionally distressed at that time or that there were any telltale signs of rape apparent then.

43. The State presented no medical evidence to corroborate the complainant's evidence and I thought that this was a case that, in view of the shortcomings in the complainant's evidence, required corroboration.

44. In saying that I am mindful of Section 229H of the Criminal Code (corroboration not required) which 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.]
 
45. I am therefore not required and not allowed to instruct myself that it is unsafe to find the accused guilty in the absence of corroboration. I am not giving myself such a warning but pointing out that, in this particular case, corroboration was necessary.

46. I also take into account, as pointed out by Mr Ruarri, that the absence of medical evidence is not necessarily fatal to the State's case. It is possible to enter a conviction for rape in the absence of medical evidence (The State v Onjawe Tunamai [2000] PNGLR 234; The State v Douglas Jogioba CR No 1766 of 2005, 24.10.07).

47. However, the lack of corroboration means that there are gaps in the evidence, giving rise to further doubt about acceptance of the complainant's evidence.

4	WAS THE ACCUSED'S EVIDENCE CREDIBLE?

48. His demeanour in the witness box rendered him neither an obviously reliable nor an obviously lying witness.

49. However, he gave a credible account of why he had been accused of rape. He admitted that money and other things had changed hands. Mr Ruarri labelled this as bel kol, which is probably a fair description of the exchange that took place. But payment of bel kol is not necessarily indicative that a rape had occurred. The complainant's evidence suggested that her mother was a woman prone to quick and harsh judgment, so it makes sense that the accused's uncles were prepared to pay some money just to keep the peace.

50. Kinglsey's evidence tended to support the accused's evidence.

5	DID THE ACCUSED SEXUALLY PENETRATE THE COMPLAINANT ON THE DAY IN QUESTION?

51. 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. An accused cannot be convicted only on the basis of suspicion or belief on the part of the tribunal of fact (the court) that there was no consent. (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.)

52. 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 the accused sexually penetrated the complainant. If there is a reasonable doubt, the court is obliged to acquit the accused.

53. Here, I have weighed all the evidence. I am not entirely convinced that the accused was telling the truth when he said that no sex took place on the day in question. On the other hand I am not entirely convinced, or more relevantly, I am not satisfied beyond reasonable doubt that the accused sexually penetrated the complainant on 25 December 2001.

54. The more likely scenario is that nothing happened, that the complainant's mother was angry that her daughter was liaising with the accused and the complainant made a rape allegation in order to prevent herself being bashed further or to prevent herself getting into more trouble with her mother.

55. The State has failed to prove the first element of the offence of rape and the accused is entitled to an acquittal.

6	WAS THERE A LACK OF CONSENT?

56. If the State had proven the first element of the offence, there would have still been a failure to prove the case as the evidence falls well short of proving lack of consent. If the accused did sexually penetrate the complainant on the day in question, the evidence suggests that it was consensual sex.

The second element of rape has not been proven.

VERDICT

57. The accused is found not guilty of rape.

Verdict accordingly.
____________________________

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