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State v Magum [2009] PGNC 102; N3725 (17 August 2009)

N3725

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 849 OF 2009

THE STATE

V

RUDDY MAGUM

Buka: Cannings J
2009: 13, 14, 17 August

VERDICT

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

The accused, a man aged in his early-30s, was charged with the rape of a 22-year-old woman, his niece. The State’s case was based on the sworn testimony of the complainant. There was no medical evidence. The complaint of rape was not made until the complainant became pregnant, claiming that the accused had made her pregnant and that he had raped her. There was no evidence that she was physically or emotionally distressed as a result of the incident. The accused gave sworn evidence and denied sexually penetrating the complainant and said that he had never had sex with her. He said that he was at work on the day in question but presented no evidence to corroborate his alibi. The main issue was whether the accused had sexually penetrated the complainant.

Held:

(1) Under Section 347(1) of the Criminal Code, the crime of rape consists of two elements:

- the accused sexually penetrated the complainant;

- without his or her consent.

(2) The complainant was a credible witness and was not shown to have any motive for lying. The lack of a prompt complaint and the lack of any evidence of physical or emotional distress are important factors to take into account when deciding whether her evidence should be accepted and were adequately explained.

(3) The accused was not a credible witness. His demeanour was poor and he presented an alibi that was uncorroborated and of poor quality and false.

(4) There was no reasonable doubt about sexual penetration or lack of consent and the accused was accordingly found guilty.

Case cited

The following cases are cited in the judgment:

John Jaminan v The State (No 2) [1983] PNGLR 318
The State v Robert Wer & Others [1988-89] PNGLR 444
The State v Sei Nakiking Tubol & Others [1994] PNGLR 378

TRIAL

This was the trial of an accused charged with rape.

Counsel

N Goodenough, for the State
P Kaluwin, for the accused

17 August, 2009

1. CANNINGS J: Ruddy Magum, the accused, is aged in his early-30s. He comes from Beikut village on Buka Island. He is a member of the Bougainville Police. He is charged with rape. It is alleged that the offence was committed against a 22-year-old woman, who is his niece, at 1.30 pm on Wednesday 28 November 2007 at Beikut. The State’s case is that the accused grabbed the complainant as she was walking near her grandfather’s house and carried her into the bushes. She resisted him, to no avail. He sexually penetrated her by introducing his penis into her vagina, without her consent.

2. The accused gave sworn evidence and denied sexually penetrating the complainant and said that he had never had sex with her at all. He said that he was at work on the day in question.

THE EVIDENCE

3. The only witness for the State was the complainant. There was no medical evidence and no exhibits other than the accused’s record of interview, which was admitted into evidence by consent.

4. The accused gave sworn evidence, which was the only evidence for the defence.

ELEMENTS OF THE OFFENCE

5. Rape is an offence under Section 347 of the Criminal Code, 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.

6. To obtain a conviction the State must prove the two elements set out in Section 347(1) beyond reasonable doubt:

- the accused sexually penetrated the complainant;

- without her consent.

7. The indictment does not allege any circumstances of aggravation.

ISSUES

8. The issues are:

1. Did the accused sexually penetrate the complainant?

2. Did the complainant consent to having sex with the accused?

1 DID THE ACCUSED SEXUALLY PENETRATE THE COMPLAINANT?

The complainant’s evidence

9. She is also from Beikut. She said that at 1.30 pm on 28 November 2007 she was coming back from school and heading to her house. The accused was hiding in the bushes between his house and his mother’s house. As she walked past he held on to her bilum and hands and pulled her off the road and into the bushes. She recognised him as he is her uncle.

10. He made her lie down, then removed her skirt, pants and underwear. She struggled but he was too strong. He said ‘I am already fed up with you’, then he lay on top of her and pushed his erect penis into her vagina. She did not want to have sex with him but did not say anything. It went on for quite a long time and he ejaculated. She did not consent to having sex with him.

11. When she heard a vehicle passing by she kicked him and ran straight home, crying. She did not tell anyone, not even her mother, as she was feeling ashamed as he was her uncle and she was a student at the time. Her clothes were torn and she threw away the skirt.

12. She became pregnant as a result of what the accused did. He has only penetrated her on that single occasion. She had never had sex before this incident.

13. In cross-examination she agreed that it was the teachers, including the headmaster, at her school at Hutjena who asked her if she was pregnant. She denied saying that it was the accused’s brother, Adam, who made her pregnant. She called the accused’s name.

14. She agreed that she had made a statement to the police but denied giving them a different date of the incident. She did not give them a specific date. She just said it happened on the week before school closed. She denied giving the police different information about where the incident happened.

15. Asked whether she would have reported the matter if she had not fallen pregnant she said that she would have reported it earlier if the accused was not her uncle. But he was her uncle and she felt ashamed.

16. She confirmed that this was the first and only time that the accused had sex with her. He had asked her for sex on a previous occasion but she had rejected him.

The accused’s sworn evidence

17. He denied sexually penetrating the complainant on the day in question and said that he had never had sex with her.

18. He believes that the complainant’s people had forced her to call his name to get back at him for things he had said about them in the past. There was a case in the village in which one of her uncles had made one of his sisters pregnant. The problem was sorted out by the chiefs but whenever arguments arise over it he has referred to them as ‘those incestuous people’, which has upset them.

19. He said he has confirmed with two female staff members at the complainant’s school that when the story broke that she was pregnant, the complainant called the names of another man. One teacher said that the name she called starts with "A"; and he thinks that could mean it was one of his brothers. He has two brothers fitting that description: Adam and Abraham. The other teacher said that the complainant called the name "Adam". He later spoke to the principal who said that the complainant had called his (the accused’s) name but she had said that the incident occurred not near the road but in the house and that he had injured her hands and leg.

20. In cross-examination the accused said that he first knew of the allegation when the complainant was withdrawn from school in early 2008. The police commenced their interview of him on 18 April 2008, then it was suspended and did not resume until 11 July 2008. He does not know why there was such a big gap between the start and completion of the interview.

21. He went to the school on 8 March 2008. He agreed that there was nothing in his record of interview about Adam or Abraham or about his going to the school but maintained that he did tell the investigating officer, Senior Sergeant Pio, about those things and he was not making them up.

22. Asked what he was doing on 28 November 2007 the accused said that he was in Buka town. He was rostered on a shift. He was in uniform that day. He pointed out that that was the story he gave the police when he was asked the same question. He referred to answer No 20 of his record of interview where he said:

It was my payday and I was in town.

How strong is the evidence of sexual penetration?

23. Mr Goodenough submitted that the complainant was a credible witness who gave clear evidence of what happened. By contrast the accused was a poor witness obviously trying to cover his tracks. During cross-examination he presented an alibi that was uncorroborated and false. His evidence about going to the school and being told that another person was responsible for the rape was hearsay and a recent invention as it was not mentioned in his record of interview.

24. I consider that at first glance this evidence may be sufficient to warrant a finding that the accused sexually penetrated the complainant. The complainant’s demeanour was sound. She was not an obvious liar. However, this is a criminal case and the court has to be satisfied beyond reasonable doubt. I will now address the submissions of defence counsel and other matters that are necessary to take into account in order to afford to the accused the full protection of the law required by Section 37(1) of the Constitution.

Defence counsel’s submissions

25. The defence counsel, Mr Kaluwin, argued that the State’s case was deficient in a number of respects.

(a) Complainant’s evidence not credible

26. Mr Kaluwin submitted that the complainant did not give consistent evidence and that her oral evidence about where the incident took place differed from what she told the police. In her oral evidence she said that it was between his house and his mother’s house but in her police statement it was next to her grandfather’s house. Asked how far away that was she gave different distances, 40 metres and 100 metres. So there was a real question mark surrounding the place of the alleged incident and this showed that she was an untrustworthy witness.

27. I do not agree with this submission. The complainant’s witness statement was not adduced in evidence so it is difficult to conclude that there was an inconsistency between it and her oral evidence. The general description of the place were the incident took place is similar in both the witness statement and the oral evidence. I cannot agree with the description of the complainant or her evidence as untrustworthy. She stood up well to intensive cross-examination. She did not change her evidence in any material way.

(b) No medical report

28. Mr Kaluwin pointed out that there is no medical report before the court. There is also no evidence of a recent complaint. Neither the complainant nor anyone else made a complaint to the police, the hospital or anyone else soon after the alleged rape occurred. There is no independent evidence that the complainant was physically or emotionally distressed at that time or that there were any telltale signs of rape such as torn clothing apparent then.

29. Mr Kaluwin acknowledged that corroboration was not essential in view of Section 352A 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.]

30. 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. Mr Kaluwin submitted, however, that caution still needed to be exercised as the complainant’s evidence was entirely uncorroborated. I think this is a fair point. In any criminal trial where the State’s case is based entirely on the uncorroborated testimony of one witness, caution needs to be exercised.

(c) No evidence of giving birth

31. Mr Kaluwin stated that the defence did not accept that the complainant had fallen pregnant or given birth. There was no evidence before the court other than what the complainant said in evidence.

32. Mr Goodenough countered this argument effectively by pointing out that the complainant was not cross-examined on this issue and that the accused did not give any contradictory evidence on it. The complainant’s evidence was credible. There was also evidence that she had been taken out of school early in 2008 when it was realised she was pregnant. I find as a fact that she was indeed pregnant around that time and that she gave birth during 2008 and now has a child.

(d) The accused gave credible evidence

33. Mr Kaluwin stressed that the accused has maintained right from the beginning of the police investigation that he did not have sex with the complainant. His sworn evidence confirmed that that was the case, Mr Kaluwin submitted.

34. I agree that the accused’s approach has been to offer a consistent and flat denial, but I do not agree that a lot of significance can be attached to it. What is more significant is whether an accused – if he elects to give evidence in his defence, as this accused has done – has given credible evidence. This is where the defence case has a major deficiency. The accused was a poor witness, not impressive at all. His alibi of being in Buka town on the day in question was poorly articulated and weak. His evidence about going to the school and being told that it was someone else who made the complainant pregnant was stretching credibility as no one came forward to back up this story. He suggested that it could well have been his brother Adam who was the culprit but surely if that were so Adam would have come forward to cop the flak and put a stop to the grave injustice being done to the accused. Likewise his explanation for some significant matters not appearing in the record of interview (that he was in town on the day in question, in police uniform, that he went to the school and was told that it was someone else) – that he had mentioned these things to the investigating officer in his conversations with her – was not believable. If those matters were discussed and the record of interview was inaccurate or misleading why did the defence counsel allow the document to be admitted into evidence by consent? The only reasonable inference to draw is that the accused was making up these stories. They are recent inventions. I reject the accused’s evidence on these matters as not credible.

(e) Anomaly in police investigation

35. Mr Kaluwin submitted that the three month gap in the middle of the police interview was suspicious and cast doubt on the quality of the police investigation.

36. I reject this submission. The gap is clearly explained at question-and-answer 6 by the officer conducting the interview, Senior Sergeant Pio. The officer who was the corroborator when the interview started in April 2008, First Constable Solas, was on maternity leave and not available to continue the interview. Also, the accused did not return after requesting suspension of the interview to consult his lawyer. He had gone to the village and he had to be sent for twice. He was supposed to be in the cells but kept sneaking out and delaying the interview.

37. There was no anomaly in the police investigation.

(f) The State failed to disprove the accused’s alibi

38. Mr Kaluwin acknowledged that there was no evidence apart from the statement in his police interview to corroborate the accused’s claim that he was in town on the day in question, as it was his payday. However, he stressed that any deficiency in the alibi should not be allowed to cover for the State’s failure to disprove the alibi. The accused gave them plenty of notice by making the statement in July 2008. They had not brought evidence to disprove. It is good evidence and undermines the State’s case. Certainly the accused’s failure to corroborate the alibi should not be held against him, Mr Kaluwin submitted.

39. This submission calls for an examination of the principles surrounding alibi evidence arising from the leading Supreme Court case of John Jaminan v The State (No 2) [1983] PNGLR 318.

40. If an alibi is raised the burden of proof does not shift from the prosecution. The onus is never on the accused to prove an alibi or prove innocence. However, in practical terms, the accused must lead some evidence of an alibi and it must be sufficiently convincing to create a reasonable doubt in the mind of the tribunal of fact. How strong or convincing the alibi evidence must be, depends on the strength of the evidence of the prosecution witnesses. If their evidence is very strong, the alibi evidence needs to be reasonably strong to raise a reasonable doubt in the mind of the judge as to the guilt of the accused. Unlike the defences of self-defence and provocation, there is no rule of law that says that once an alibi is raised it is up to the prosecution to disprove it. If an alibi is rejected it does not necessarily follow that the court should enter a conviction. The court must still be satisfied that the prosecution has proven its case beyond reasonable doubt. An alibi that is determined to be false may, depending on the circumstances, amount to corroboration of the complainant’s evidence. Great caution should be exercised before drawing an inference adverse to an accused, as a result of the accused’s failure to call a witness that might reasonably be expected to support the accused’s alibi. A belated alibi, not revealed on any earlier occasion prior to trial, should be given less weight than an alibi consistently given over a long period, eg since the beginning of the police investigation, in a record of interview or in committal proceedings. The court should consider whether the alibi evidence contains convincing detail or whether it is vague and short on detail. The court should also consider the demeanour of any alibi witnesses and whether there are any inconsistencies in their evidence.

41. Having considered all of the above matters, I record the following relevant considerations:

(i) No notice of alibi was provided to the State. Leave of the court was not sought under Order 4, Rule 4 of the Criminal Practice Rules, to adduce evidence of the alibi. Strictly speaking, it should not have been admitted (The State v Robert Wer & Others [1988-89] PNGLR 444, The State v Sei Nakiking Tubol & Others [1994] PNGLR 378). But the prosecutor raised no objection and it was admitted. The admission of evidence and the weight to be attached to it are two different things, however. The lack of an alibi notice significantly lessens the weight to be attached to the accused’ story that he was in town.

(ii) The accused was an unimpressive witness. His demeanour was poor.

(iii) The alibi was entirely uncorroborated. If he really was at work, in police uniform, on a rostered shift, at 1.30 pm on 28 November 2007, this would seem extremely easy to prove. But there was nothing. An accused who gives an alibi but then provides no back-up evidence and gives no explanation for there being an absence of corroboration when it would reasonably be expected to be available, leaves himself exposed to the natural inference that the alibi is a fabrication.

42. In light of the above, I have concluded that the alibi evidence of the accused is not honest or credible. The alibi evidence is poor and I determine that, in fact, it is a false alibi.

Conclusion as to the issue of sexual penetration

43. Of the matters raised by Mr Kaluwin the most significant is that there was little or no corroboration of the complainant’s evidence: no medical evidence, no evidence of a recent complaint, no telltale signs of rape such as the complainant being physically or emotionally distressed. The complaint of rape came late: only when it was realised that the complainant was pregnant. In these circumstances the Court must exercise special caution before accepting the complainant’s testimony. That has been done. I consider that the complainant gave a satisfactory explanation for all those matters. She was ashamed. She did not want to tell anyone about what happened – not even her mother – as the person who raped her was her uncle. He had wanted to have sex with her previously and she did not want anyone to know about what happened. The manner in which she gave this evidence made it believable. She was not shown to have any motive for lying.

44. As to the other issues pressed by the defence counsel, they do not cast reasonable doubt about whether the accused sexually penetrated the complainant. It has been proven beyond reasonable doubt that he did so.

2 DID THE COMPLAINANT CONSENT TO HAVING SEX WITH THE ACCUSED?

45. The State bears the onus of proving beyond reasonable doubt that the complainant did not consent. Consent is defined by Section 347A(1) of the Criminal Code to mean "free and voluntary agreement". Having accepted the complainant’s evidence as to sexual penetration and rejected the accused’s denial of the incident, there is no reason to reject the complainant’s evidence on consent. There was no free and voluntary agreement to sex. It has been proven beyond reasonable doubt that she did not consent.

46. Both elements of the offence have therefore been proven and a conviction must be entered.

VERDICT

47. Ruddy Magum is found guilty of the crime of rape under Section 347(1) of the Criminal Code.

Verdict accordingly.

____________________________

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