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State v Tovovo [2013] PGNC 346; N5077 (22 February 2013)

N5077

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO.755 OF 2011

THE STATE

V

DAVID TOVOVO

Kokopo: Lenalia, J.
2012: 3rd, 6th, 25th, 25th September,
4th, 18th October,
5th, 21st, & 28th November
2013: 1st, 14th, 20th & 22nd February

CRIMINAL LAW – Sexual penetration without consent – Plea of not guilty to a charge of rape – Trial – Evidence – Charge – Elements – Criminal Code s.347 of the Criminal Code as Amended.

CRIMINAL LAW – Evidence on trial – Submission of no case to answer –
Principles – No case to answer submission upheld – Case dismissed - defendant discharged.

Cases cited

The State v Paul Kundi Rape [1976] PNGLR 96
The State v Delga Puri and Tapri Maip [1982] PNGLR 493
The State v Roka Pep (N0.2) [1983] PNGLR 287
The State-v-Tobata Sebulon Martin, David Gaulim, Tony Varpin & Solomon Kilala (25.3.08) Cr. Nos. 25, 578, 1675 of 2005)

Counsel

Mr. L. Rangan, for State
Mr. G. Tovaluta, for Accused

Ruling on no case submission

22nd February, 2013

1. LENALIA, J: The accused is charged with one count of rape simplicita against the victim and without her consent contrary to sections 347 of the Criminal Code as Amended. When he was arraigned, he entered a plea of not guilty.

2. To start with, sexual intercourse is not disputed by the defence. In the record of interview, the accused admitted having sex with the victim on the 6th May 2011 in his father's house at their block at Kabaira village on North Coast. What they deny is that sex was not rape as the victim Mary Palina consented to have sex with the accused.

3. The prosecution evidence came mainly from the victim Mary Palina. She recalled that on 6th May 2011, she came to town in Rabaul to attend classes at Malaguna Technical High School. She was doing Grade 9 in 2011. On that date, when she was coming out from a shop, she saw the accused parking his vehicle on the car park along side that store. She said, she saw a youth come out from the accused vehicle.

4. It was there that, the accused is supposed to have called the victim by her name and invited her to board his vehicle. She protested by telling the accused that she was going to school that day. It is her evidence that the accused pressed her to board his vehicle and so she hoped on and got into the front crew seat.

5. They made a number of trips out and into town. First they drove from town to Pilapila village to pick up some women with their copra bags and market produce to sell in the market in Rabaul. They drove back to Rabaul town and dropped of the ladies both in the market and Rabaul Hothot where the ladies sold their copra bags. Whilst in town, they picked up roofing iron belonging to the accused uncle and drove back to Pilapila village.

6. The State's case paints to two scenarios. First the victim's evidence in court and what she told police was that, when they left Pilapila village, they headed towards North Coast Road, then up the road that goes towards Ramalmal until they came to the junction at Rakunai village along the Burma Road. That they came down to Raluana No.1 village where sex took place. According to her evidence, the accused led the way up into the house while she was still seated in the vehicle. The accused then invited her to come into the house after she asked if there was nobody around. In this house sex took place. After having sex, they took off from there and on to the Burma Road. They then drove down the Burma Road to Rabaul.

7. The second scenario comes from the evidence tendered by consent namely the record of interview. When the accused was being investigated and asked as to whether it was true if he actually raped the victim. The accused admitted having sex with the victim but it was not rape.

8. The record of interview shows that, when they left Pilapila village, they proceeded along the North Coast Road then to the accused's father's block at Kabaira where they stopped. The two of them went into the accused father's house and this was where sex took place. Then they took off from there up towards Rakunai Burma Road junction thence along the Burma Road back to Rabaul where she was dropped off.

9. In cross-examination, the witness was asked about her relationship with the accused. In her attempt to cover-up her relationship with the accused, the Court observed the victim looked to the accused then to the lawyers and to the Court and gave answers saying the accused forced her into having sex. She eventually admitted that, a few days before the Kabaira incident, she was together with the accused at Tunnel Hill. She was asked about any possibilities for her to escape when she was unlawfully detained. She answered that the accused had earlier stopped her from telling anyone about he ordeal.

10. She also revealed that, when they came to the house, there was nobody around and she was forced to go into the house where they had forceful sexual intercourse. It was further put to her it appeared from her as though she consented to having various trips with the accused where the women were on board with them in the vehicle and she could have raised an alarm about her abduction by the accused. The witness answered by saying that, the accused stopped her from telling others that she was being abducted or unlawfully detained.

11. It was put to her, why not run away and escape from the accused when they were in town a number of times. The witness said, it was because the accused had threatened her not to tell anyone and so she did not say anything.

Submission of no case to answer.

12. At the end of the prosecution evidence, Mr. Kubak of counsel for the accused made an application for adjournment because, he wanted to make a submission of "co case to answer".

13. The Court could not reach that stage quickly because Mr. Kubak consistently attended to his Election Petition challenging the seating Member for Gazelle Open, Hon. Malakai Tabar. Counsel filled their written submission on the submission of no case to answer on 4th October 2012. Mr. Tovaluta acting for Mr. Kubak managed to take up the matter and it was called on 19th this month. Both counsel addressed the Court on status of the defence submission of no case to answer.

14. Mr. Tovaluta based his argument on the principles stated in The State-v-Paul Kundi Rape [1976] PNGLR 96. The first of those two principles is not whether on the evidence as it stands the accused ought to be convicted? The second question is, whether on the evidence as it stands, the accused could be convicted? The principles stated in the above case were adopted and applied by the Supreme Court in the case of The State-v-Roka Pep (No.2) [1983] PNGLR 287 and many subsequent cases. (See also The State-v-Delga Puri and Tapri Maip [1982] PNGLR 493).

15. Where there is a no case submission as in this case, the issue for the court to determine is whether on the evidence adduced by the prosecution, the accused could lawfully be convicted? This issue is a question of law: The State-v-Roka Pep (No.2) (supra). At this stage of the trial, I am only required to determine if there is sufficient evidence on which the accused could be lawfully convicted. It is established law that when a submission like this is made at the end of the prosecution case, it is the issue of law.

16. Where the court decides that there is sufficient evidence or put it in another way, there is a case to answer, the court nevertheless has discretion to stop the case at the close of all the evidence. This discretion is exercised where "there is a mere scintilla of evidence and where the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it": The State-v-Roka Pep (supra).

17. A number of factors need to be addressed here and now. First, at this stage of the instant trial, this Court is only to decide if there is sufficient evidence to proceed past this stage of the trial. Note here, the Court is not asked to determine the evidence on the guilt or otherwise of the accused person.

18. As properly submitted by Mr. Tovaluta basing on the written submission and comments from the Criminal Law and Practice of Papua New Guinea at page 330, he submitted that the prosecution evidence contains a lot of contradictions. As earlier mentioned, the description of the victim of the place where the offence was committed differs from the evidence tendered by consent on the record of interview. The record of interview points to the place where the rape was committed and that place was Kabaira village on the North Coast in the accused father's block.

19. Mr. Rangan on the other hand referred the Court to page 641 of the same book saying the Court's duty at this stage of the current trial is to assess the evidence of the prosecution to see if there is sufficient evidence upon which this Court should call on the defence to make an answer to the prosecution case.

20. In cross-examination she tried to deny the fact that, the accused was her boy-friend but she admitted that the day after the incident she was with the accused at Tunnel Hill at night. When pressed in cross-examination about her denial of being with the accused a day after the alleged rape, the victim admitted, the two of them were together.

21. In examination in chief, the victim revealed that when the accused parked his vehicle near his father's house, he walked up to the house and when the accused called for her to come up, she asked if anybody was around in the house. Then she proceeded to the house where sex took place.

22. The victim's evidence of her accompanying the accused to various places on the morning of the date in question and her evidence in admission to being together with the accused on the night after the rape incident paints a bleak picture of the prosecution evidence. Concessions made by the victim during examination in chief and cross-examination reveal to this Court that the victim was not a truthful witness. This court is only required to decide if the accused could lawfully be convicted on the evidence as it stands.

23. To have a case to answer there must be some evidence to prove some or all the elements of the charge of rape and from which the court may infer their existence: The State-v-Paul Kundi Rape (supra), see also The State- v-Roka Pep (N0.2) (supra) and The State-v-Tobata Sebulon Martin, David Gaulim, Tony Varpin & Solomon Kilala (25.3.08) Cr. Nos. 25, 578, 1675 of 2005).

24. There being no evidence to go past this stage of the proceedings, I must up-hold the submission of "no case to answer" and order that, the accused case be dismissed and they be discharged. His bail money can be refunded to him.

______________________________________________________________
The Public Prosecutor: Lawyer for the State
Norbert Kubak & Co Lawyers: Lawyer for the Accused.