N3552

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 651 OF 2005
(NO. 1)

THE STATE

V

ELIMO NASON
Accused

Alotau: Davani .J
2008: 12th, 13th, 17th September

CRIMINAL LAW – Rape – trial - consent, an issue - s.17 of Criminal Code (Sexual Offences and Crimes Against Children) Act 2000 ('CCSOCAC')

CRIMINAL LAW – Discrepancy in dates of sexual intercourse - confirmation of rape in medical report - elements of consent not proven - s.18 of CCSOCAC

Facts

The victim was alone in her house in her village when she was abducted, attacked and raped. The accused is a stranger to the victim, although they are from neighbouring villages. The accused claims the victim consented to the sex. However, the medical report showed there to be injuries to the victim's private part together with evidence of a sexually transmitted disease.

Issue

Whether sexual intercourse between the accused and the victim, was consensual?

Held

1.	The medical evidence shows that sexual penetration was forced.

2.	The accused's evidence is contradictory in certain respects and also contradicts that of his own witnesses.

3.	The accused cannot be believed. He is guilty of the offence of rape.

Counsel:

P. Kaluwin, for the State
R. Yayabu, for the Accused

VERDICT

17 September, 2008

1.	DAVANI .J: On 11th September, 2008, the trial in this matter commenced because Elimo Nason (the 'accused') pleaded not guilty to one count of rape under s.347 of the Criminal Code Act (as amended) or s. 17 of the Criminal Code (Sexual Offences and Crime Against Children) Act (2000) ('CCSOCAC') . This reads;

"17. REPEAL AND REPLACEMENT OF SECTION 347

Section 347 of the Principal Act is repealed and is replaced with the following –

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.

(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."

State's allegations

2.	The State alleges that on 29th September, 2004 at East Cape, Milne Bay Province in Papua New Guinea, the accused engaged in sexual intercourse with Desma Simala (the 'victim') without her consent.

Accused's Defence

3.	The accused says that the victim consented to the act of sexual intercourse on that fateful night.

Analysis of evidence and the law

4.	Several documentation were tendered into Court by consent. These are;

•	The accused's Record of Interview with the Police conducted on 17th November, 2004, here in Alotau.

•	Medical Report from the Alotau General Hospital dated 28th January, 2005 prepared and signed by a Dr. Noel Yaubihi MBBS, DA, M/Med (Anaesthesia), Director of Medical Services, Alotau General Hospital. 
 
5.	Both counsel agreed that the issue is one of consent. However, during evidence by both parties, it became obvious to the Court that apart from consent, the credibility of both the accused and victim was a matter to be also assessed by the Court. The issue of credibility is important because the accused maintains there was consent by the victim whereas the victim is adamant that sexual intercourse between the accused and her was not consensual. I will deal with each component of the events that led to the rape and what followed thereafter, after which I will form my conclusions. I do this by discussion of the evidence from all parties.

6.	First, in terms of evidence, the victim called her mother. The accused called his cousin. 

i.	Events leading to rape – The victim states that she was in her house cooking bananas when the accused came upon her, placed his hands over her mouth, dragged her out of the house to where the village well is located where he forcefully removed her clothes, then had sexual intercourse with her. 
 
 The accused however said the victim willingly had sexual intercourse with him. Because the evidence from both parties differentiate to a very large extent, it is necessary that I discuss the evidence of the other witnesses, to then ascertain what actually happened.

 The victim said she was in the kitchen cooking bananas when the accused came upon her, placed his hands over her mouth and dragged her out of the house by force. The accused, on the other hand, in his Record of Interview with the Police, said that the victim was asleep in her house where he then woke her up and asked her for sex. He was asked as to whether the victim was cooking bananas when he went and asked her and he said 'no'. In his evidence in chief, he said the same thing. He said the victim cooked bananas after she returned from the bush with him. He also said that at that time, she gave him a mat to sit on. 
 
 His witness Dubolu, never said that. Witness Dubolu said both the accused and him went to the victim's house, stood outside, whilst he asked for the victim's cousin to go with him and the accused asked for the victim to go with him. He said the victim came out willingly and went with him.

 However, Dubolu did not tell the Court that he saw the accused seated on a mat when he arrived from his foray with the victim's cousin.

 Additionally, although, Dubolu said that he said 'goodnight' to the victim's mother and apologized to her for disturbing her at her home, when she was asked the question in cross-examination by the accused's lawyer, she denied that. She said she arrived in the morning. She was never in her home that night.

ii.	Date of rape – The victim said that the rape occurred on 29th September, 2004. The Record of Interview tendered into Court also states that. However, the medical report tendered into Court by consent states that the rape occurred on 6th October, 2004. The medical report states further that the victim was then taken to the hospital on 12th October, 2004, 6 days after the rape. If the information on the medical report was generally incorrect, more particularly in relation to when the alleged rape occurred, then the report should not have been tendered into Court by consent. However, I note Defence counsel's reliance on the date in this report for the reason that whether it was the 6th October, 2004 or 29th September, 2004, that the victim did not report the incident to her mother until about several days later when she began to feel a lot of pain in her private part and noticed sores there which then made her tell her mother.

 In relation to this, the victim's mother was also very unsure or was confused as to when her daughter was taken to the hospital. First, although she said her daughter told her a day after the rape, and what the accused had done to her, that she was not sure as to when exactly the victim was taken to the doctor. In her verbal evidence, she said it was on 30th September, 2004 that the victim was taken to the doctor. Whereas in her statement, she said it was on 11th October, 2004. Is she a witness to believe?

 Her evidence is that on the night of the rape, she was not at home. I say she was not home because she denies having spoken to Dubolu on the night of the rape. She did not speak to any body that night because she was at the teashop, which is her usual practice, and returned the next day. 

 It is for that reason that I find the accused and Dubolo may have conspired to give this evidence. They may have put together a story which they now have given to this Court but which is full of contradictions.

 I accept the fact that the victim's mother may have been confused about the dates. However, I do not accept that she was at her house on the night of the rape. She did not know about the rape until she was told about it. When she learnt about it, that was when she belted her daughter.

 As for the victim, I accept that she was too frightened to tell her mother. It could have been some days later that she told her mother about the incident. 

 All this does not go towards the issue of consent.

iii)	Consent – What actually happened that night? Sexual intercourse did occur. As to when it occurred is irrelevant as sexual intercourse is not denied. Consent is the element that must be proven.

 Why did the accused have sexual intercourse with the victim? Did he have an ongoing relationship with her? That evidence is not before me. 

 Why of all nights, did the accused come to the victim's house on this particular night? Is this an activity that he carried on regularly with her? That is not in evidence before me.

 As to whether the victim consented or not, the evidence from the State is that the accused placed his hands over her mouth, dragged her outside, then removed her clothes. The accused said, the victim went willingly with him and removed her clothes herself. Why would she do that? Because she knows him? Because they have an ongoing relationship? Because she is her boyfriend and vice versa? That evidence is not before me.

 The accused should have spoken more about his relationship with the victim. Why would a young girl leave the sanctuary of her home to venture out with a total stranger? If the accused was known to her or they were in an intimate relationship, then I will accept that she willingly went with the accused. Or, if the accused and Dubolu knew her to be a promiscuous female, one who would readily have sex with a willing partner, even a complete stranger, then I will accept what the accused is saying. But none of that is in evidence before me.
 
7.	Therefore, based on the above reasoning, I make the following findings;

i.	The victim was alone in the house that night, her mother having left for the teashop, an activity she regularly conducts.

ii.	The victim's cousin also left the house.

iii.	The victim's cousin may have told the accused that the victim was home alone.

iv.	Using that as an opportunity, the accused then went into the house, dragged the victim out, forcefully removed her clothes, then sexually penetrated her.

8.	I find that these are the events that occurred that night.

9.	As a result, the victim was too frightened to tell her mother. I also accept that she would not have told her mother if it were not for the infection in her private part.

10.	I note also that the findings in the medical report showed that there was laceration in her vaginal wall, meaning that sexual penetration was forced. That in itself tells me that sex was not consensual. 

11.	I find also that the defence of consent under s. 347A of the CCA as amended or s. 18 of the CCSOCAC, has not been made out.

12.	Therefore, I find the accused guilty of rape under s. 347(1) of the CCA, as amended.

13.	I also find that the circumstances of aggravation under s. 347(2) of the CCA has not been made out.

___________________________
Public Prosecutor: Lawyer for the State 
Public Solicitor: Lawyer for the Accused