N4415

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO 15 OF 2011

THE STATE

V

LAULAU CASPAR ILA

Kokopo: Maliku, AJ
2011: 14th September

CRIMINAL LAW - Rape - Sexual Penetration- Section 347(1) Criminal Code Act.

CRIMINAL LAW - Submission on Verdict – Use of threats - Consent alone is the issue before the Court - Use of threats and weapons- knife- Prior statement inconsistent with oral evidence – the nature of inconsistency and degree of inconsistency on evidence – Accused guilty of rape.

Case Cited: 

Andrew Palili-v- The State (2006) SC 848
The State-v- Paul Pakits Toapala (1993) N1191

Counsel: 

Mr A. Bray, for the State
Mr G. Kerker, for the defendant

14th September, 2011

1.	MALIKU AJ: The accused was charged with two counts of rape contrary to Section 347 of the Criminal Code Act which I have set out below. The accused pleaded not guilty to both Counts of rape. At the end of the Prosecution case I heard a No Case Submission from the defence and the response by the State. I ruled that the defendant had a case to answer on Count No1but had no case to answer on Count No 2. The defendant was discharged from Count No 2 but gave sworn evidence on Count No1.

Count One 

2.	Laulau Caspar Ila of Watom Island, Rabaul, East New Britain Province 
stands charged that he on the 22nd February 2010 at Vunapalading No.3 Block sexually penetrated Rosalia Lar without her consent by inserting his penis into her vagina and at that time Laulau Casper Ila immediately before the commission of the offence, threatened to use a weapon, namely a bush knife on Rosalia Lar.

Count Two 

3.	Laulau Caspar Ila of Watom Island, Rabaul, East New Britain Province 
stands charged that he on the 22nd of February 2010 at Vunapalading No.3 Block sexually penetrated Sabel Ian without her consent by inserting his penis into her vagina and at that time immediately before the commission of the offence used a weapon, namely a stick to hit Sabel Ian. 

4.	Prior to the State calling its witnesses, it tendered the following 
documentary evidence with consent of the defence counsel.

(i)	Statement of Policewoman Elma Limlibur of Kerevat Police Station dated 04th of March 2010 – Ex A.

(ii)	Statement of the Arresting Officer Policewoman Sila Charles of Kerevat Police Station dated 10th of March 2010 – Ex B.

(iii)	Record of Interview in Pidgin Version of Laulau Caspar Ila dated 04th of March 2010 – Ex C.

(iv)	English Version of Record of Interview of ToLaulau Caspar Ila dated 04th of March 2010 – Ex D.

(v)	Affidavit of Margaret Tavui of Kerevat Rural Health Centre dated 30th of March 2010 – Ex E.

(vi)	Medical Report of Rosalia Lar by Margaret Tavui of Kerevat Health Centre dated 28th of February 2010 – Ex F.

(vii)	Medical Report of Sabel Ian by Margaret Tavui of Kerevat Health Centre dated 28th of February 2010 – Ex G.

5.	Also tendered on behalf of the defence are the following:

(i)	Statement of Rosalia Lar –Pidgin and English versions dated 02nd of February 2010 Ex D1.

(ii)	Statement of Sabel Ian – Pidgin and English versions dated 04th of February 2010 – Ex D2.

6.	The elements of rape charge:

(i)	Identification 
(ii)	Sexual penetration
(iii)	Another person
(iv)	Without consent

7.	The State called two witnesses, namely Rosalia Lar and Sabel Ian who 
are victims of the alleged aggravated rape. 

8.	The evidence of Rosalia Lar is:

" On the 22nd of February 2010 her mother had asked her and Sabel Ian to collect some mushrooms for her. 

On the way to where the mushroom patch was they walked pass the defendant Laulau Caspar Ila and Bernard Gabriel who were roasting bananas on a fire. 

Having arrived at the mushroom patch known to Rosalia Lar they could not find any mushrooms so they decided to go home. On their way home they met the defendants on the road. 

The defendants Laulau asked them for the reason of being in the bush. Rosalia told him that they were looking for the mushroom patch. 

The defendant Laulau told them to go to the mushroom patch, pointing to the direction where the mushroom patch was. 

Rosalia and Sabel followed the direction from the defendant Laulau and eventually found the mushroom patch and were collecting mushrooms putting them in the basket they had brought with them. They were 2-3 metres away from each other.

Rosalia Lar was picking mushrooms between two logs. It is at this point of time the defendant Laulau Caspar Ila approached her from her back and placed a bush knife on her neck, around her throat.

Rosalia said to the defendant "Yu brata blong me" (you are my brother). The defendant Laulau then put the knife down and removed Rosalia's underpants and the laplap upward and laid her on the ground. 

The defendant then lied on top of Rosalia and inserted his penis into her vagina and sexually penetrated her without her consent. 

After she was sexually penetrated she put on her pant calling to Sabel Ian telling her that they were to go home. Rosalia immediately reported the matter to her mother and later told her husband and her cousin."

9.	 The evidence of Sabel Ian is as follows:

"On the 22nd of February 2010 she was with Rosalia at Vunapalading Blocks. I was present when Rosalia's mother told us that she wanted some mushrooms. 

We left to look for mushrooms at about 10am. On the road to the mushrooms patch we met the defendant and Bernard Gabriel. 

They were together cooking bananas on the fire. We kept walking to where the mushrooms patch was when the defendant asked us of where we were going. 

Rosalia told them that we were going to collect mushrooms at the mushroom patch. The defendant told us where the mushrooms were and pointing to the direction where the mushroom patch was. 

We then walked following the instruction from the defendant. The defendant and Gabriel followed us to the mushroom patch later. 

We were then picking mushrooms putting them in the basket we had brought with us. While picking mushrooms I saw the defendant came from the back of Rosalia and grabbed hold of Rosalia. 

I then saw him place a bush knife on Rosalia's neck around the throat. The defendant while doing that then told Rosalia to lie on the ground. 

I then screamed and cried because I was afraid and I was new to that place. I took a few steps running away when Rosalia called out to me stopping me from running away. 

I stopped and was standing when Gabriel who was with the defendant hit me with a piece of stick. I felt pain and fell down when I was hit by Gabriel. Gabriel then pulled me into the bush not far from where he hit me with the stick.

He removed my pant and laplap and inserted his penis into my vagina and had sex with me without my consent. 

After having sex with me he told me to put on my pant and laplap. He then told me to go and look for Rosalia. 

I picked up my basket and went to where Rosalia was. We then left the mushroom patch and were going home. 

When we arrived at home Rosalia told her mother about what happened at the mushroom patch. I also told my husband about the incident. 

The defendant and Gabriel were taken to Rosalia's mother's house where they were questioned about the incident. The matter was then reported to the Police at Kerevat. We were then taken there to give our story to the Police."

Evidence of Defendant

10.	The defence called one witness, the defendant whose evidence is briefly 
in the following:

(i)	On the last week of January 2010 Rosalia came to me while I was in my garden. She then called out to me. At first I ignored her. After several times of calling I complied with her calling me and so I went over to where she was calling from and we had consensual sexual intercourse. This meeting occurred before this allegation.

(ii)	On the afternoon of Sunday Rosalia told me to meet her at the same location where we previously met.

(iii)	Rosalia chose to meet me the next day because it was a Monday when everybody would be attending to Community work, so it would be good time for us to meet at the usual place, defendant's garden next to the mushrooms patch.

(iv)	On Monday morning at about 9am I went ahead to my garden and waited for Rosalia. When I arrived at my garden I met Gabriel working on his block where my garden was. I told Gabriel that my girlfriend will be coming to meet me. Gabriel and I then waited and while waiting we roasted bananas on the fire. It was not long that Rosalia came with another lady. When I saw the other lady with Rosalia I told Gabriel saying "our plan would not work out".

(v)	Rosalia then called out to me to accompany them to look for mushroom. I knew in my mind that she knew where to look for mushrooms. I told Rosalia and her girlfriend to go and look for mushroom them self. They went into the bushes and returned to where Gabriel and I were and asked me to accompany them to look for mushrooms which I did and Gabriel followed us.

(vi)	We went to where the mushroom patch was. Rosalia and Sabel went in further when Rosalia called out and laughing at the same time for me to go to her and show them where the mushroom was. Rosalia called out again for me to go to where she was. I then went over to where she was calling from to attend to what she had called out to me for.

(vii)	I went over to where Rosalia and Sabel Ian were to attend to Rosalia. At this point of time Sabel saw them and she walked away. I asked Rosalia of why she called me over. I was afraid of Sabel Ian reporting the two of us. 

(viii)	Rosalia told me that she and Sabel were going to go to Tavui village. Rosalia then told Sabel to wait for her at a distance. Rosalia and I then had oral sex. At that point of time Rosalia's laplap fell to the ground. Rosalia did not wear an under pant. I sat down and removed my trousers. Rosalia then sat on me holding on to my penis and had sexual intercourse with me.

(ix)	After having sex Rosalia then told me to help her collect mushrooms. Whilst collecting mushrooms, Sabel came to us and told us that Gabriel raped her. Soon after we had collected mushrooms we had betel nuts and then Rosalia and Sabel went home. 

11.	The defence tendered two documentary evidence marked Ex D1 and Ex 
D2. These are the Statements made to the Police by Rosalia Lar and Sabel Ian which the defence alleged to contain inconsistencies on what Rosalia and Sabel told the Police and what they told the Court on their oral evidence.

Submission on Verdict – Counsel for defendant

12.	The defence does not contest the elements 1, 2, 3 but contest the 4th 
element which is the element of consent. 

13.	Mr Kerker submits that there was a girl/boy friend relationship that had 
existed between the defendant and Rosalia. This relationship led to a prior sexual intercourse between the defendant and Rosalia and continued on to the 22nd of February 2010.

14.	Mr Kerker submits that the mother of Rosalia should have been called to 
rebut the allegation by the defendant that Rosalia had planned with the defendant to meet at the mushroom patch so they could have sexual intercourse and was never told by her mother as claimed by the victim Rosalia. 

15.	Mr Kerker also submits that because Rosalia says in her evidence that she 
had reported the matter to her mother after she was sexually penetrated on the same day which is a recent or fresh complaint, her mother should have been called to corroborate that the matter was truly reported to her. Mr Kerker relied on the case of The State-v-Paul Pakits Toapala (1993) N1191.

The Inconsistencies of State Evidence

16.	Mr Kerker also submits that there is inconsistency on Rosalia's 
Statement made to the Police and her oral evidence given in Court. He submitted that in her Statement to the Police she said the defendant held her on her neck with his left hand and held a bush knife on his right hand, however in her oral evidence to Court she said the defendant pressed his bush knife against her neck. This is inconsistency on the prior evidence of the witness to her oral evidence.

17.	Mr Kerker also submits that there is inconsistency on the Statement of 
Sabel Ian given to the Police. In her statement to the Police she said that she saw the defendant hold a small knife against Rosalia's neck, however in her oral evidence to the Court she said the defendant pressed a bush knife against Rosalia's neck. 

18.	Mr Kerker relied on the case of Andrew Palili-v- The State (2006) 
SC848. The Supreme Court said "that where the witness is shown to have made previous statements inconsistent with the evidence given by the witness at the trial, the Court must regard and treat that evidence unreliable and similarly disregard that previous statement, whether sworn or unsworn, as it does not constitute evidence upon which the judge can act. In other words both the sworn testimony and his/her statement given in Court are discredited and both are no longer reliable evidence." 

19.	Mr Kerker submits that because the prior statements of both witnesses are 
inconsistent to their oral evidence the Court must regard and treat that evidence unreliable and similarly disregard that previous statement, whether sworn or unsworn, as it does not constitute evidence upon which the Judge can act. In other words both sworn testimony and his/her statement given in Court are discredited and both are no longer reliable evidence.

Lack of Corroboration on Evidence

20.	The requirement of corroboration was raised by the defence counsel 
during his submission as necessary. In respect to corroboration on sexual offence the law is precise that corroboration is not required and the Judge need not warned himself of the danger of uncorroborated evidence before him being unsafe to find the defendant guilty. 

21.	Mr Kerker submits that Sections 229H and 352A of the Criminal Code 
Act refers to corroboration not required only on sexual offence against children. I agree with counsel for the defendant that corroboration is not required on sexual offences against children pursuant to Section 229H of the Criminal Code (Sexual Offences and Crime Against Children) Act 2002, however there is Section 352A of the same Act that provides for corroboration not required. In my view Section 352A relates to corroboration not required from children and adults who are victims of sexual offences.

22.	The recent Amendments of the Criminal Code Act covers both children 
and adults who are victims of sexual offences that they need not call evidence to corroborate being sexually penetrated. The argument by counsel for the defendant that corroboration is not required on children only but required from adult victims is not correct in law.

23.	To summarize the argument of the defence is to put it in the following:

"The State has failed to prove beyond reasonable doubt that the defendant had sexually penetrated the victim Rosalia without her consent because there was existing boy/girlfriend relationship between the defendant and Rosalia and that the sexual penetration that took place on the 22nd of February 2010 at the mushroom patch at Vunapalading Block No3 was planned or arranged by the defendant and the victim Rosalia to take place. 

Response by State – Submission of Verdict

24.	The State agrees that the issue in this case is whether there was consent or 
there was no consent by Rosalia for the defendant to sexually penetrate her. The State submits that it is not disputed that sexual penetration did take place and that it was the defendant as the person that sexually penetrated Rosalia. The Medical Report of Rosalia Lar tendered to this Court marked Ex "F" confirms that sexual penetration did take place.

25.	The State submits that there is no inconsistency on the prior statement of 
Rosalia and her oral evidence to the Court. The oral evidence of Rosalia is a clarification of her prior statement where she said that the defendant held her neck with his left hand and the bush knife with his right hand and pressing it against her neck. 

26.	The pressing of the knife against Rosalia's neck is corroborated by the 
evidence of Sabel Ian. This is the very act that she saw done on Rosalia and was immediately filled with fear and had taken steps to run away but was stopped by Rosalia. The State submits as such it is not inconsistent statement but evidence to clarify what actually happened on the scene of the crime.

27.	To summarize the submission of the State is put it in the following: 

(i)	That the evidence of the State as it stands proves that the defendant did sexually penetrate Rosalia on the 22nd of February 2010 at Vunapalading Block No3 without her consent. 

28.	I had the benefit of listening to the oral evidence given by the two State 
witnesses, Rosalia Lar and Sabel Ian. Their evidence corroborates each other's evidence except for the inconsistency raised by the defence counsel which I will discuss later.

29.	 I also had the benefit of listening and observing the defendant give his 
oral evidence and read his Record of Interview. The defendant called no other witnesses.

30.	Even though the mother of Rosalia and the husband of Sabel were not 
called I am satisfied that Rosalia did report being raped to her mother on the same day. This is corroborated by Sabel Ian. 

31.	The evidence shows that the defendant was caught and brought to 
Rosalia's mother's house where he was questioned and even assaulted which he denies. The evidence of Rosalia and Sabel is consistent and corroborates each other on this issue.

32.	This is consistent with the oral evidence of the defendant to the Court 
that while making his statement to the Police during the Record of Interview he was still feeling pain on his body because he was assaulted by those he called "them" had assaulted him.

33.	Given my observation and upon hearing the defendant giving his oral evidence I am not convinced at all by what the defendant said in his oral evidence to the Court on what took place on the 22nd of February 2010 at the mushroom patch. 

34.	There are two reasons which caused me not to believe the defendant: The 
first reason being that in his evidence he says that "I told Gabriel that my girl friend will be coming to meet me here." The second reason being that in his evidence the defendant also says "when I saw the other lady with Rosalia, I told Gabriel saying our plan would not work". 

35.	Bearing in mind that he says in his evidence that he and Rosalia met, 
discussed and agreed that they were to meet at where he called the "usual place" which shows that according to his evidence the two met secretly, secretly agreed for the secret meeting to secretly take place and secretly chose Monday to be the best secret day for the secret meeting at the usual secretl place and that the arrangement was indeed a secret one, if indeed a meeting between him and Rosalia did take place. 

36.	I find it very unusual for such a secret to be disclosed by the defendant 
when the desire for them to meet was high hence the defendant's mind was pre occupied with nothing else except to meet Rosalia and complete the motive of their meeting at the usual place that is to have sexual intercourse. There is nothing in his evidence that suggests the reasons why he disclosed his secret with Rosalia with Gabriel Bernard.

37.	In fact the circumstance shown by the evidence is that the defendant and 
his friend planned to rape Rosalia and Sabel Ian. This is clearly shown on the evidence that took place at the mushroom patch.

38.	A careful consideration of the evidence reveals that the defendant took 
on Rosalia by approaching her from her back armed with a knife while Gabriel Bernard took on Sabel Ian by positioning himself (by standing) at a position where he was able to take on Sabel Ian armed with a stick. 

39.	They both used the weapons which they had armed themselves with. 
They both achieved their plan to sexually penetrate Rosalia Lar and Sabel Ian.
 
40.	Even after what happened at the mushroom patch was over, the evidence 
shows that the defendant and his friend went into hiding until the defendant was caught later. It seems the co defendant to this defendant- Gabriel Bernard is still at large.

41.	The sexual penetration between Gabriel Bernard and Sabel Ian was not an 
unfortunate one as submitted by defence counsel. It did not happen because Gabriel Bernard saw the defendant and Rosalia Lar having sex and was sexually motivated as submitted by the defence counsel. It happened following what they planned to do to Rosalia Lar and Sabel Ian. It was part of the whole episode.

42.	The defendant as further observed by me while giving his evidence is a 
smart talker, very good at creating or making up stories such as he did on this matter. He twisted the story to suit his lies. He is but a liar. I do not for one moment believe that Rosalia had betel nuts with the defendant after being raped. This is obviously from a person who has no remorse for what he did and the defendant falls in that category.

43.	The evidence of Rosalia on what happened at the mushroom patch is very 
simple and clear. She said that she was picking mushrooms when the defendant approached her from the back grabbed her on her neck with his left hand while holding a bush knife on his right hand telling Rosalia Lar and Sabel Ian not to run away. 

44.	Although there may be inconsistent on whether it was a bush knife or a 
small knife it was nevertheless a knife and was an offensive weapon in my view capable of causing injuries if used. 

45.	In his (defendant's) Record of Interview the defendant was asked: 

(i)	Q21. You threatened her with a small knife, she was frightened and you raped her. What do you say? 

A. I did not use a knife, we agreed together and did it.

(ii)	Q22. Whose knife did you use to threaten Rosalia?

A. My own knife, at the block we carry knife. I did not threaten her.

46.	The answer to Q22 by the defendant clearly shows that the defendant did 
have a knife with him and was still in possession of it even to the moment he approached Rosalia when she was picking mushrooms. It is also noted that the defendant did not say he had a bush knife or a small knife but said he had a knife. This was in Pidgin language. Generally speaking a knife in pidgin language includes a bush knife or even a small knife of any shape and size unless they are categorized. 

47.	There may be inconsistency on the manner or how the knife was used on 
the evidence of Rosalia Lar and Sabel Ian. In Rosalia's statement to the Police she said the defendant held the knife in his right hand while his left hand was around her neck, however in her oral evidence she told the Court that the defendant pressed the knife against her neck with his right hand while his left hand was placed on her neck.

48.	 I am satisfied that the defendant approached Rosalia from the back and 
held her with his left hand on her neck and a knife on his right hand. This took place at the scene of the crime. 

49.	I am satisfied that the approach by the defendant on Rosalia from her 
back, and grabbing her on her neck with his left hand and holding of a knife on his right hand amounted to threats used on Rosalia and caused fear within her which led to her submitting to be sexually penetrated without her consent by the defendant. It also in my view amounted to force used against Rosalia.

50.	In other words, in my view the grabbing of Rosalia on her neck by the 
defendant with his left hand whilst holding a knife with his right hand amounted to threat and was capable of creating fear in the mind of Rosalia. This in my view subsequently led to Rosalia lying on the ground and was sexually penetrated by the defendant without her consent. This is the manner or how the defendant used the knife to exert fear on Rosalia. It also shows that force was used by the defendant on Rosalia and immediately followed by sexual penetration.

51.	I have carefully considered what is alleged to be the inconsistency on the 
evidence of the two witnesses of the State by the defence counsel. It is clear that the inconsistency here is how the knife was used by the defendant. In the prior statement of Rosalia to the Police she says the defendant pressed the bush knife against her neck. In her oral evidence she says it was held by the defendant with his right hand whilst his left hand was around her neck. 

52.	The prior statement of Sabel says that the defendant held a small pocket 
knife against Rosalia's neck. In her oral evidence she says the defendant pressed a bush knife against Rosalia's neck. The inconsistency here is whether it was a bush knife or a small pocket knife and how it was used against Rosalia. 

53.	I do not consider that to be grave inconsistencies that it would upset the 
State case but rather of a very trivial nature. There is no doubt in my mind that the defendant did have a knife in his right hand while grabbing the victim Rosalia on her neck with his left hand. Does this not amount to threat which caused fear to Rosalia even if the knife was not pressed against Rosalia's neck? 

54.	I say YES. It caused fear to the victim Rosalia and it was a 
threat and amounted to force applied onto her.

55.	I am further satisfied that even if the knife was not placed or pressed 
against the neck of the victim, the fact that it was in the right hand of the defendant while holding Rosalia with the left hand is sufficient for me to conclude that it was used against Rosalia and was a threat and amounted to force applied which caused fear in her and in that moment of time she was sexually penetrated by the defendant without consent

56.	I am satisfied that the evidence as it stands proves beyond reasonable 
doubt that the defendant had sexually penetrated the victim Rosalia without her consent. 

57.	There was no existing boy/girlfriend relationship between the defendant 
and Rosalia.

58.	The sexual penetration that took place on the 22nd of February 2010 at the 
mushroom patch at Vunapalading Block No3 was not planned nor was it pre- arranged by Rosalia and the defendant to take place. 

59.	It was in my view having assessed the evidence that the whole episode 
was planned by the defendant and his friend Gabriel Bernard after the defendant had given direction to Rosalia and Sabel on where to find the mushrooms.

60.	Finally, I am satisfied that the defendant did use force and threat to 
Rosalia and sexually penetrate her without consent. I have come to that because he was holding onto a knife in his right hand whilst grabbing the victim Rosalia with his left hand on her neck. 

61.	This amounts to threats to the victim and caused fear in the mind of 
Rosalia and therefore without her consent sexual penetration took place at the mushroom patch on the 22nd of February 2010. 

62.	Accordingly, I find the defendant guilty of aggravate rape on Rosalia 
Lar on the 22nd of February 2010 contrary to Section 347(1) of the Criminal Code Act.

___________________________________________

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