N4786

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 198 OF 2011

BETWEEN

THE STATE

AND:

BEN WAIKO
Offender

Madang: Davani. J
2012: 19th, 20th, 24th, 25th & 27th July

CRIMINAL LAW – offender charged with rape – denies the charge – raises defence of consent - S. 347 (1) (2) of Criminal Code.

CRIMINAL LAW – charge of rape – no eye witnesses- veracity and credibility of witnesses' evidence must be tested in cross-examination – burden rests with the State to establish each element of the charge beyond reasonable doubt.

CRIMINAL LAW – State did not call medical doctor to support earlier medical condition suffered by victim - State's medical evidence very contradictory.

CRIMINAL LAW – offender and victim communicated by the use of text messages sent from mobile phones – victim does not deny text messages sent from her mobile phone – victim continued to send offender, text messages from her mobile phone even after offender was in custody on remand – victims evidence cannot be believed.

Brief facts

The offender and the victim, both in their early teens, reside at the Danip plantation, in Madang. They know each other. They began a sexual relationship which resulted in the victim alleging that on one of those occasions, 11th January, 2011, the offender raped her whilst she was in the bush collecting firewood.

Both the offender and the victim communicated by test messages sent from mobile phones. The victim's mother found out that the offender had had sexual intercourse with the victim that day when she read a text message that evening sent to the victim's mobile phone from the offender, where he mentioned the incident.

When the victim was asked, she said she was raped by the Offender. The Offender was subsequently arrested and charged with the victim's rape.
In evidence, the victim called a doctor and tendered medical reports which stated that she had just had her appendix removed. In one of those reports, it stated that the day she allegedly was in hospital having an infection to her appendix treated, was the day the offender claimed they had consensual sex. However, the earlier medical report issued 3 months before that stated that the sutures were absorbable. The State did not call the doctor who supposedly treated the infected wound to confirm that the victims wound had become infected 3 months later and that her claims of the infection being treated that day, were correct.

Reasons

1.	The task of a judicial tribunal is very onerous and places on the Judge a big responsibility and that is to ensure that all the evidence is weighed and screened and given credence to.

Wilson J in Re Fisherman's Island [1979] PNGLR 202 at pg 210;

"It generally is convenient for a court or judicial tribunal, when preparing reasons for decision, to give an indication of the nature of the dispute mentioning the main issue to be determined and the contentions of the parties, then to proceed to a consideration of the witnesses (making finding as to their credibility and reliability and indicating the weight to be attached to the whole or parts of their testimony) and the documentary and other evidence (making findings as to the extent to which such evidence may be important and indicating the weight to be attached to such evidence), then to proceed to make primary findings of facts, then to proceed to make secondary and any subsequent findings of fact (indicating the method, whether by a process of drawing inferences from proved facts or otherwise, by which the secondary and subsequent findings of fact are arrived at), and finally, after considering at a convenient stage any legal issues that arise in the case, to announce the ultimate decision and make all necessary determinations and orders. I do not intend to convey the impression that there is any hard and fast rule about the matter of preparation of reasons for decision. I realise, of course, that cases differ, circumstances vary, and judicial offices are entitled to approach the task of preparing their reasons for decision independently and as individuals, and they should be permitted a reasonable amount of latitude in expressing themselves."

Wilson J. at pg. 210;

"In any case in which there is conflicting oral evidence the judicial officer should state in his reasons for decision why he rejects the evidence (or part of the evidence ) of one and why he accepts that of the other. Where there is evidence, whether oral or otherwise, tending to prove one side of an issue and there is no evidence on the other side to contradict it, the judicial officer is bound to accept it unless that evidence is in itself so incredible and so unreasonable that no reasonable man could accept it. If, for any reason which recommends itself to the mind of the judicial officer dealing with the matter, he thinks fit not to accept the evidence of the witness who is the only witness before the Court or judicial tribunal and is founding his decision on his disbelief of that witness, he is bound to disclose it. If, for any reason, he thinks fit not to rely on the only documentary or other like evidence (e.g. reports or opinions of experts) that is on his non-acceptance of that evidence, he is bound to disclose it. If he does not disclose these things, then he is deciding in the teeth of the evidence without showing why he does so, and that is not reasonable in any court or judicial tribunal charged with the responsibility of "doing justice to all parties in accordance with the law".

Wilson J at pg. 216;

"So it is the courts and judicial tribunals who must seek to come to some definite conclusions about the facts in issue. This is sometimes an onerous task, but nevertheless, that is a part of the judicial duty that a judicial officer is there to perform and he should not shrink from his duty however difficult the task. In a complex case (and it must be said, in fairness to the Acting Commissioner, that this one was such a case) the tribunal of fact must endeavour "to untie the Gordian knot". It is in rare and unusual circumstances that a Court or Judicial Tribunal is driven to such a counsel of despair as to announce or imply that it cannot choose between conflicting witnesses and conflicting evidence."

2.	The issue of the lack of consent is clouded by contradictory and uncertain evidence given by the State in relation to the alleged infection that set in 3 months later.

3.	The Court prefers the evidence that is logical and in touch with common sense.

4.	The State's evidence is contradictory in many respects and therefore, it has failed to prove the charge of rape beyond reasonable doubt.

5.	Defence Counsel or any lawyer for that matter must never readily consent to documents being tendered until after they have carefully reviewed the document or documents. Lay persons, even a Judge for that matter, should not make assumptions or draw conclusions on reports prepared by experts especially where there are conflicting findings, as in this case. This then makes the report unreliable.

Orders

The orders of the Court are:

1.	The charge of rape is dismissed;

2.	The Offender is acquitted and discharged from custody, forthwith.

Cases cited

State v. Ogadi Minjip [1977] PNGLR 293
Re Fishermans Island [1979] PNGLR 202
State v. Flotyme Sina (No. 1) (2004) N2540
State v. Junior Apen Sibu (No. 1) (2004) N2549

Counsel:
J. Wala, for the State
A. Meten, for the Offender

VERDICT

27th July, 2012

1. DAVANI .J: On 19th July, 2012, the State tendered an Indictment alleging that Ben Waiko (the 'Offender') sexually penetrated FN, the victim, on 11th January, 2011 and that this occurred at Danip village, North Coast, Madang. Upon arraignment, the Offender pleaded not guilty to the charge and the matter proceeded to trial. The Offender was charged under s.347 (1) (2) of the Criminal Code. This section reads:

"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."

States allegations

2. The State alleges that on 11th January, 2011 at Danip village, North coast, Madang, the Offender met the victim in the bush adjoining the village. The victim FN had gone there to collect firewood. She was with her niece.

3. The State alleges that whilst she was collecting firewood, the Offender came out of the bushes. The victim asked him where he was going but instead of replying, he struck her hand and the bush knife she held fell.

4. The State alleges that this was when he grabbed her with both hands and pulled her along the ground. Although she asked him to let her go, he did not. The State alleges that he then pushed her to the ground, then sexually penetrated her without her consent. When he had finished, he left the victim there.

5. The State alleges that the victim did not tell her parents. However, that evening after the Offender bragged about what he had done, the victim then told her mother about what happened that day.

6. On 13th January, 2011, the victim was medically examined and which examination revealed that the hymen in her genitalia was torn and which bled on contact.

7. The accused is appearing from custody.

8. On arraignment, the accused pleaded not guilty and the matter proceeded to trial. The accused told the Court that sexual intercourse between the victim and him was by consent because the victim was his girlfriend.

Offender's Defence

9. As stated above, the Offender said that the victim was his girlfriend and had been for about 2 weeks before the offence occurred.

10. Briefly, he said that when he had sex with the victim on 11th January, that this was the third occasion. He said the both of them had arranged to meet in the bush and that they communicated this by the use of their mobile phones. He said when they met they promptly had sexual intercourse. However, because the victim's family found out about what happened that she is now denying that sex was consensual.

11. Section 347 A of the Criminal Code is the provision on consent and reads:

"347A. MEANING OF CONSENT

(1)	For the purposes of this Part, "consent" means free and voluntary agreement.

(2)	Circumstances in which a person does not consent to an act include, but not limited to, the following: –

(a) the person submits to the act because of the use of violence or force on that person or someone else; or

(b) the person submits because of the threats or intimidation against that person or someone else; or

(c) the person submits because of fear of harm to that person or to someone else;  or

(d) the person submits because he is unlawfully detained; or

(e) the person is asleep, unconscious or so affected by alcohol or another drug so as to be incapable of freely consenting; or

(f) the person is incapable of understanding the essential nature of the act or of communicating his unwillingness to participate in the act due to mental or physical disability; or

(g) the person is mistaken about the sexual nature of the act or the identity of the person; or

(h) the mistakenly believes that the act is for medical or hygienic purposes; or

(i) the accused induces the person to engage in the activity by abusing a position of trust, power or authority; or

(j) the person, having consented to engage in the sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity; or

(k) the agreement is expressed by the words or conduct of a person other than the complainant.

(3)	In determining whether or not a person consented to that act that forms the subject matter of the charge, a judge or magistrate shall have regard to the following: –

(a)	the fact that the person did not say or do anything to indicate consent to a sexual act is normally enough to show that the act took place without the person's consent; and

(b)	a person is not to be regarded as having consented to a sexual act just because –

(i)	he did not physically resist; or

(ii)	he did not sustain physical injury; or

(iii)	on that or on an earlier occasion, he freely agreed to engage in another sexual act with that person or some other person.

Issue

12. Basically, it is not denied that sexual penetration did occur. However, because the Offender contends that sexual intercourse was by consent, that this is the issue to be determined, i.e, whether sexual intercourse was by consent.

Analysis of Evidence and the Law

13. The State called the victim, her mother and tendered several medical reports to prove its case. The victim's evidence is basically that she was physically assaulted before she was raped. Her mother did not see the rape but whose evidence is in relation to the fact that she intercepted a mobile phone message from the Offender which stated in language that is not very clear but which the victim's mother understood to be that he had sex with the victim and used a condom. I review the evidence below, whilst discussing the issue.

(i) First sub-issue: Was the act of sexual intercourse between the Offender and the victim, a consensual act?

14. The victim is an high school student, and was born on 25th April, 1994. She is aged 18 and presently attends the Malala Secondary High School and is in grade 11. She was aged 16 at the date of the incident. The Offender is about the same age as the victim and does not attend school, having dropped out earlier on.

15. The evidence so far is that the alleged act of sexual intercourse between the victim and the Offender is known only to the both of them. There are no eye witnesses. Basically, the Court's task is to decide who is telling the truth. It will generally be the credibility of the victim and the accused that will be assessed and tested by this Court.

16. The method in testing the veracity and accuracy of witnesses is to test their evidence in cross-examination. Prentice DCJ said that in the State v. Ogadi Minjip [1977] PNGLR 293;

"...defence counsels do their clients no good by not opening in cross-examination of the state witnesses' version upon which the defence relies. If it is to be suggested that State witnesses are lying or mistaken or failing in accuracy of recollection, they should be questioned to that effect and given an opportunity to explain. You cannot correctly professionally keep your own case secret until your client gives evidence. Nor can you expect that his story will receive much credit – if this course be taken. I draw counsel's attention to the old case of Browne v. Dunn (1893) 6 R 67 HL (reported in Cockles Cases and Statutes on Evidence in 11th ED at 265) which sets out the duty of counsel in this regard as understood in the United Kingdom and makes comments as to the credibility of the opposing case where this course is not taken. The comments of Lord Hershcell, Lord Morris, Lord Halsbury and Lord Bowen, with respect, appear to me to be of plain common sense suitable to and applicable in our Courts. The cased of RvHart (1932) 23 Cr App R 202 illustrates the converse case – that if the prosecution intends to ask the tribunal to disbelieve a witness – it is right and proper that the witness be challenged by cross-examination in the witness box and it made plain that his evidence is not accepted." (my emphasis)

17. In the State v. Flotyme Sina (No. 1) (2004) N2540, the Court held that evidence that is logical and in touch with common sense, is preferable.

18. And as always, the burden always rests with the State to establish each of the elements of the charge beyond reasonable doubt and it often starts with assessment of the State's evidence (see the State v. Junior Apen Sibu (No. 1) (2004) N2549).

19. So in this case, the Offender said in evidence that the victim responded to a text message that he sent from his phone to meet him and have sex. Should I believe him?

20. The Offender said after he sent the text message, that he saw the victim come out of her house after she received the text message. She had a towel around her with a comb in her hair. She took her niece with her and then according to the Offender, she sent him a text message saying 'sixty' meaning 'hurry up'. The Offender said the victim who was standing outside her house signalled to him and told him she was going to the water well. However, at the water well she saw her aunty so she came back and told him to follow her to the other side of the road. Then she went to her house, left her towel and got the bush knife. The Offender said she did so under the pretext of collecting firewood and headed for the bush or forest.

21. It was whilst they were in the bush, that they had consensual sex. The victim however said that she was pushed to the ground and raped. 

22. She said she was in the plantation or as she said in evidence, 'the other side of the road in the plantation' called Danip looking for firewood. She was with her niece Beatrice. She said the Offender suddenly appeared, hit her hand that held the bush knife, which fell to the ground. When the bush knife fell, she said he grabbed her hands with both hands, and then dragged and forced her into the bush. Using his right hand, he unzipped her trousers then pushed her to the ground. She said when she was on the ground, he spread her legs apart, then sexually penetrated her. She said she was quite sore because she had just had her appendix removed.

23. She said she did not agree with what he did to her. In pidgin she said 'mi no wanbel'.

24. She said she knows the Offender very well because they have all lived together as neighbours at the Danip Plantation for the last seven years. She said he is like her brother because he constantly visits their home and shares meals with them.

(ii) Second sub-issue: Was sexual intercourse by consent?

25. This is when I discuss all evidence put to Court by the Offender, the victim and all her witnesses to then decide whose evidence is more credible.

26. The victims mother, Rebecca Niemberry confiscated the victim's mobile phone after she learnt from her uncle, one Thomas Niemberry that he "had seen some things during the day" (re Mrs Niembery's evidence). Whatever that means or whatever Thomas meant was not clarified in evidence either by Rebecca Niemberry or Thomas Neimberry. However, relying on that, Rebecca said "she asked her" but the victim got frightened because her other family members were there. She went to sleep. However, as to what exactly Rebecca said to the victim, her daughter, is not known.

27. The State did not ask what it was that Thomas Niemberry told Rebecca and what it was that Rebecca told the victim, her daughter. Whether that was intentionally done or not, is not known. But as far as the Court is concerned, that holding back of information does not assist the Court.

28. However, whatever it was that Thomas Niemberry told her, prompted her to take the victim to the doctor 2 days later because in the morning after the incident, Rebecca noticed that the victim was walking very awkwardly, and as she said in evidence, she knew the victim had torn her hymen. How does she know what the hymen is? I find that evidence to very assuming. That it remains assuming unless the victim's mother knew that the victim had just had sex. Or that the victims mother knows what the word 'hymen' means. But she did not say that in evidence. Also she is not a nurse by profession. Which then takes me back to her earlier evidence, of her exchanges with Thomas Niemberry and the possibility that Thomas could have told her that the victim had just come out of the bush with the Offender and that the both of them may have just engaged in consensual sex.

29. The Doctor was called to give evidence. He is Dr. Steven Toraso MBBS DGO, Registrar O & G. His first report is dated 18th January, 2011 on the Modillon General Hospital's letterhead. His report reads as follows;

"Miss Nainberry was seen at the Adult Outpatient on the 13/01/11 after she was sexually assaulted and penetrated by a known assailant 2 days ago.

On examination, she did not demonstrate any sign of physical injury and was very cooperative. There were no physical injuries except for minimal stretch mark on her knee which she sustained while she was dragged and it has healed.

Vaginal examination revealed that she had a torn hymen with minimal laceration around the hymen which bleeds easily on contact. Specimens were collected for laboratory examination of any presence of spermatozoa. The laboratory results showed that there were no presences of spermatozoa (see sexual assault form attached).

Please help her in any way possible.

For your information.

Dr. Steven Toraso – MBBS, DGO
Registrar O & G"

30. He attended Court and was cross-examined on the contents of his report.

31. His evidence basically is that sexual penetration did occur. But he cannot say if it was rape or not because that is not within his knowledge. The sexual assault form attached to his report, marked exhibit 2.2 is a questionnaire which contains several questions which the examining doctor asks the victim. The victim and her mother in a meeting with the Doctor on 13th January, 2011 answered these questions in the questionnaire;

"Q. Name any form of contraception used
A. Yes, not sure but did see packet of condom at the site of incident"

32. That evidence is not questioned or challenged. It is good evidence. I ask myself, why the Offender would use a condom, if his intention is to rape the victim, unless it is consensual sex.

33. It is still not safe for the Court to make a finding. Therefore it means that the Court must now consider all the evidence in their entirety and decide who is telling the truth.

(iii) Third sub-issue: Who can be believed?

34. Rebecca Niemberry is obviously out to protect her daughter. As the victim's mother, it is only natural that she does that. And this cloak of protection commenced from the first day when Thomas Niemberry told Rebecca of what he saw. She did not tell the Court what it was that Thomas told her and which left a lot of questions in the Court's mind about her honesty.

35. The evidence from the victim and the Offender is that the Offender sent the victim a text at about 10:22pm on the night of the 11th January. At that time Rebecca Niemberry had the victim's mobile phone. On seeing the text message, she then questioned her daughter and also told her husband about it. She questioned her daughter, the victim, who then told her about her encounter with the Offender. She said she was raped.

36. I ask, if the victim was raped, why did she not tell her mother immediately after the incident. She said when her mother questioned her the day of the rape, her mother had done so in front of a lot of relatives so she (victim) was too ashamed to say anything.

37. But she had the opportunity to talk to her mother later, in private, but did not do that.

38. Also, if the act was not consensual, did she resist the Offender's actions. She has not given any evidence on that aspect. So I can assume that although she did not consent to the rape, she just allowed the act of forced sexual intercourse to take place.

39. I note her explanation that she did not resist because she had just been operated upon to have her appendix removed. The State tendered into Court medical reports confirming that such an operation was carried out. The original of this report was not tendered however, copies of Modillon General Hospital's Laboratory Request Form, Prescription Form and treatment charts were tendered into evidence and marked as exhibit 1.1 to 1.6 for the State. Although it is marked as an exhibit for the State, it should have been more appropriately marked as 'Tendered by Consent' because Defence Counsel did not object to it being tendered.

40. The medical records show that on 12th November, 2010, the victim was referred from Alexishagen Health Centre, Madang, to Modilon General Hospital, Madang. Laboratory checks were conducted the same day. On 24th November, 2010, she was admitted for an appendicectomy which was conducted on 26th November, 2010. The deceased appendix was diagnosed as 'Acute Appendicitis'. I noted in the treatment chart at page 5 of the exhibit that there was "no need for removal of stitches as they were 'absorbable sutures'.

41. I understood that to mean that the stitches will not or need not be removed because they will be absorbed in the victim's skin. Then on 6th January, 2011, in a different hand writing to that of the earlier hand writing on the treatment chart, there is written there 'STITCH NOMA (STITCH INSTITU...)

(P) REMOVE LA'

42. I do not know what the words 'stitch noma' (stitch institu) means. I have looked up the "largest single volume of 'the New Oxford Dictionary of English" which contains 152 pages and 350,000 words, phrases and definitions and which contains a 'full coverage of Australian and New Zealand English' (1998) Clarendonn Press Oxford, but did not find that word or phrase. The State did not bring any evidence to explain what this meant.

43. The State has made it quite difficult for the Court because if the report had been carefully perused, the State would have noted these clear contradictions in that report. These contradictions are;

a. That on 29th November, 2010, when the victim was discharged, the doctor who treated the victim said that there was 'no need for removal of stitches as they were 'absorbable sutures''.

b. Then about a month later, there is a diagnosis 'stitchnoma' (stitch Institu)'.

44. The State should have called the Doctor(s) who reviewed the victim on 24th November, 2010, 29th November, 2010 and on 6th January, 2011 and who completed the treatment chart. Defence Counsel or any lawyer for that matter must never readily consent to documents being tendered until after they have carefully reviewed the document or documents. Lay persons, even a Judge for that matter, should not make assumptions or draw conclusions on reports prepared by experts especially where there are conflicting findings, as in this case. This then makes the report unreliable.

45. I say this also because the Offender's evidence is that he has had sex with the victim on 2 previous occasions, the 6th January, 2011 and 7th January, 2011. The victim's evidence is that she could not have had sex with the Offender on 6th January, 2011 because she was in hospital then. I would accept that if it were not for the fact that exhibit '1' states that the stitches on the victim are absorbable, meaning they need not to be removed.

46. Furthermore, if the appendix wound was infected, as claimed by the victim, then it is incumbent upon the State to prove that infection had set in considering the earlier report stated that the stitches need not be removed. And that means bringing in the Doctor to give that evidence. The State has not clarified that.

47. For all I know, the diagnosis of 6th January, 2011 may have been manufactured. 

48. I must also say that I did not hear any evidence from Rebecca Niemberry that her daughter the victim was readmitted to hospital because infection had set in to the wound. All I heard from Rebecca Niembery is that they were in hospital on 6th January, 2011. It is only Mr Wala who, in submissions, made reference to an infection.

49. The other evidence tendered by Defence is the Offender's mobile phone. The victim was recalled after the closure of the State's case because the Offender, when examined by Defence counsel, referred to text messages that were sent to him by the victim from her mobile phone sent after the alleged rape. I recalled the victim because it was her evidence that revealed the extensive use of mobile phones. Also, I noted that although Mrs Meten, Defence Counsel, had put this question to the victim in cross-examination, that when the victim denied the existence of these phone messages, Mrs Meten did not pursue that line of questioning any further. I put that to inexperience and did make that known to both counsel when ruling on the objection by Mr Wala when Mrs Meten applied to have the mobile phone tendered into evidence after the Offender had given evidence on the number of text messages sent to him from the victim's mobile phone and after these text messages were read out to the Court. I considered that it was only fair that the victim be recalled and asked about the existence of these text messages.

50. The text messages from the victim's mobile phone to the Offender are;

a. 17.2.2012 "Oi gud nite, na u stap orait?"

b. 21.2.2012 "Ya na u?"

c. 21.2.2012 "Mos m u yt no sa txt osm na mi 2 no sa txt. If u txt ba mi txt coz nogut mi wastim crdts 4 mi lo txt mol mongo marn."

d. 21.2.2012 "Welcme, 4 english, punchim man slp kilos 2 lo u, 4 pigin, gim k sots go lo window bin u. Sory call binum dia 2 mas so 6 na wait likz mipla brukim ass blo l la caller online pastm. Hahaha"

e. 21.2.2012 "Ya wadex mi osm u ya. Maski marn blo Elish lo mediba ya"

f. 21.2.2012 "M ya u kai2x kan blo m na u sap painim m go down lo mediba lo kuapim m na mi arim ya. Nen tok nogut foul."

g. 21.2.2012 "Hnst u just mekim mi strike nw. U save pinis lo strike 4 mi."

51. Mrs Meten asked the victim if ph. No. 71780352 was her mobile no. She answered in the affirmative. Mrs Meten asked the victim if the messages were sent from her mobile phone. The victim answered in the affirmative. Mrs Meten then gave the victim the mobile phone and asked her to read the text messages referred to above which she did.

52. Mrs Meten then reminded the victim of her answers in earlier cross-examination where she told the Court that she had not sent any text messages to the Offender. Mrs Meten asked again if she sent the messages from her phone. She said no.

53. However, when she was asked by Mr Wala after she was recalled to give evidence, she said that she did not know the Offender's phone number and that the message could have been sent by Eddesha Aigil, the Offender's sister. She said Eddesha Aigail attends the same school as her, they are in the same class and that they also reside in the same dorm.

54. To this evidence and during cross-examination, Mrs Meten reminded her that when she was asked in cross-examination before she was recalled, she did not mention Eddesha Aigail's name. Mrs Meten put to her that she was lying to the Court. To that the victim answered that she was not lying and that she did not send the messages.

55. Eddeshal Aigil's name was never mentioned because the victim completely denied ever sending these messages. There is also no evidence on Eddisha Aigal's motives, as to why she would send those messages from the victim's mobile phone, all done in one day.

56. The Offender does not think that Eddeshal would do that because she has her own mobile phone.

Findings of the Fact

57. I have seen above the extent and range of evidence given by both the State's witnesses and the Offender's witnesses. The task of a judicial tribunal is very onerous and places on the Judge a big responsibility and that is to ensure that all the evidence is weighed and screened and given credence to.

58. Wilson J in Re Fisherman's Island [1979] PNGLR 202 at pg 210 said;

"It generally is convenient for a court or judicial tribunal, when preparing reasons for decision, to give an indication of the nature of the dispute mentioning the main issue to be determined and the contentions of the parties, then to proceed to a consideration of the witnesses (making finding as to their credibility and reliability and indicating the weight to be attached to the whole or parts of their testimony) and the documentary and other evidence (making findings as to the extent to which such evidence may be important and indicating the weight to be attached to such evidence), then to proceed to make primary findings of facts, then to proceed to make secondary and any subsequent findings of fact (indicating the method, whether by a process of drawing inferences from proved facts or otherwise, by which the secondary and subsequent findings of fact are arrived at), and finally, after considering at a convenient stage any legal issues that arise in the case, to announce the ultimate decision and make all necessary determinations and orders. I do not intend to convey the impression that there is any hard and fast rule about the matter of preparation of reasons for decision. I realise, of course, that cases differ, circumstances vary, and judicial offices are entitled to approach the task of preparing their reasons for decision independently and as individuals, and they should be permitted a reasonable amount of latitude in expressing themselves."

59. Wilson J. said further in that case at pg. 210;

"In any case in which there is conflicting oral evidence the judicial officer should state in his reasons for decision why he rejects the evidence (or part of the evidence ) of one and why he accepts that of the other. Where there is evidence, whether oral or otherwise, tending to prove one side of an issue and there is no evidence on the other side to contradict it, the judicial officer is bound to accept it unless that evidence is in itself so incredible and so unreasonable that no reasonable man could accept it. If, for any reason which recommends itself to the mind of the judicial officer dealing with the matter, he thinks fit not to accept the evidence of the witness who is the only witness before the Court or judicial tribunal and is founding his decision on his disbelief of that witness, he is bound to disclose it. If, for any reason, he thinks fit not to rely on the only documentary or other like evidence (e.g. reports or opinions of experts) that is on his non-acceptance of that evidence, he is bound to disclose it. If he does not disclose these things, then he is deciding in the teeth of the evidence without showing why he does so, and that is not reasonable in any court or judicial tribunal charged with the responsibility of "doing justice to all parties in accordance with the law".

60. I must come to a conclusion on the issue before me i.e whether sexual intercourse was consensual. It is during the process of making this finding that I will decide on who is telling the truth. As Wilson J said in Re Fisherman's Island (supra) at pg. 216;

"So it is the courts and judicial tribunals must seek to come to some definite conclusions about the facts in issue. This is sometimes an onerous task, but nevertheless, that is a part of the judicial duty that a judicial officer is there to perform and he should not shrink from his duty however difficult the task. In a complex case (and it must be said, in fairness to the Acting Commissioner, that this one was such a case) the tribunal of fact must endeavour "to untie the Gordian knot". It is in rare and unusual circumstances that a Court or Judicial Tribunal is driven to such a counsel of despair as to announce or imply that it cannot choose between conflicting witnesses and conflicting evidence."

61. The Offender has maintained throughout in his evidence that;

(i) the victim and him had arranged to meet at the well;

(ii) However, because that was not possible, they agreed, by text messages, to meet in the bush; and

(iii) there, they had sex.

62. That evidence is undisturbed.

63. However, the victim's evidence that sex was forced upon her and other evidence on treatment received, is contradictory. Also she has continued to contact the victim even after he was arrested and in custody, evidence that is unrefuted.

64. Firstly, as to sexual intercourse;

(i) The victim said she was raped. However, she did not tell her mother about it. Her mother had to question her to get that information.

(ii) The victim's mother did not tell the Court what it was that Thomas Niemberry saw and told her that afternoon on 11th January, 2011 that prompted her to confiscate the victim's mobile phone. Could it be that he saw what both the victim and the Offender did, which was consensual sex? The State has not clarified that.

(iii) There is no explanation as to why a used condom was found at the scene of the crime, as stated in Dr. Toraso's interview with the victim and her mother;

The Court is left with the question as to why the Offender used a condom when he was supposedly raping the victim;

(iv) The treatment chart on the appendicectomy marked exhibit 1.1 to 1.6, more particularly exhibit 1.5 or pg. 5 of exhibit 1, states that the sutures were absorbable. There is no evidence to show why the stitches were removed on 6th January, 2011. If the wound was infected, there is no medical explanation confirming that the wound was infected.

Another fact that needed to be explained is why it had taken so long, from 29th November, 2010 to 6th January, 2011, for the supposed infection to set in and whether that is possible.

So it is not just a case of tendering the report. The Court would have to be satisfied on certain aspects of the report which unfortunately, as I said earlier, were not clarified. Because these aspects remain unanswered, I will not place any weight on those reports.

(v) The other evidence that remains unanswered are the text messages that were sent from the victim's mobile phone to the Offender's mobile phone. It is clear that the messages are confirmed as having been sent from the victims mobile phone. There is also no good evidence before the Court to show that the text messages were sent by another person.

65. Therefore, it leaves only one conclusion and that is that the facts presented by the State are contradictory in many respects meaning that the State has not established their case beyond any reasonable doubt.

Conclusion

66. Obviously, the issue of lack of consent is clouded by the contradictory and uncertain evidence given by the State. I prefer the evidence that is logical and in touch with common sense. I have referred to and discussed that evidence, throughout. Generally, the burden rests with the State to establish each of the elements of the charge beyond reasonable doubt. I find that the State has not proven beyond reasonable doubt, the offence of rape.

67. The charge of rape against the accused will be dismissed. The Offender will be acquitted and discharged.

Orders

68. The orders of the Court are;

1.	The charge of rape is dismissed; and

2.	The Offender is acquitted and discharged from custody, forthwith.

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Public Prosecutors Office: Lawyer for the State
Public Solicitors Office: Lawyer for the Offender