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State v Tachik (No. 1) [2013] PGNC 347; N5115 (25 February 2013)

N5115

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 1615 of 2010

THE STATE

V

FRANCIS TACHIK (No.1)

Lorengau: Geita AJ
2013: 12, 13.14,25 February

CRIMINAL LAW – Rape – Not guilty plea – Trial – Two counts of Rape-Section 347 Criminal Code – Issue for trial-general denial and consent.

CRIMINAL LAW – Rape – Evidence – Corroboration not a requirement – State witness no reason to testify falsely against the accused –weapon used - No evidence of consent – Corroboration not necessary – Guilty verdict returned – Section 347 of Criminal Code.

Cases Cited:
Papua New Guinea Cases

The State v James Yali [2005] PGNC 191; N2988
The State v Varimo [1978] PGNC 52;
The State v Kewa Kai [1976] PNGLR 481,
The State v Anton Kumak (1990) N835,
The State v Bikhet Nguares Paulo [1994] PNGLR 335

Overseas Cases

Browne v Dunn [1893] 6 R 67 (HL)

Counsel

Mr. Camillus Sambua, for the State.
Mr. Tom Kaleh & Ms Emma Wurr, for the accused.

DECISION ON VERDICT

25 February, 2013

1. GEITA AJ: The accused pleaded not guilty to two counts of rape of a 17 year old girl without her consent contrary to s. 347 (1) of the Criminal Code Act. Section 347 (1) is prescribed in the following terms:

(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.

Upon arraignment the accused entered a not guilty plea and trial ensued.

2. The State’s evidence consisted of the victim herself. Two pieces of documentary evidences were also tendered by consent. They include the following:

Exhibit "1 (a) " Record of Interview English (27.04.10)

Exhibit "1 (b) “Record of Interview Pidgin (27.04.10)

Exhibit "2" Medical Report by Dr Otto Numan (29.04.10)

3. The brief facts are these. On the evening of 29th February 2010 at Tulu village, Lorengau, Manus Province the victim was on her way to wash when someone attempted to grab her from behind and she shouted for her mother. Since it was dark she could not recognise that person. When the incident surfaced it was confirmed that the accused was involved and the matter resolved by shaking of hands as it was within the family.

4. Again on 4 March 2010 at Tulu Village, as the victim was harvesting kaukau in her garden not too far away from the accused’s house, the accused, her aunt’s husband grabbed her from her back and when she screamed for help the accused threaten to kill her with a knife. The accused than took her into a nearby bush, forced her to remove her clothes but she refused and he threaten to kill her with a bayonet. The victim got scared and removed her clothes and the accused penetrated her. Whilst they were having sex her aunt Alice Tachik began calling out for her but was forced to remain quiet by the accused. After having sex with her the accused went into the bushes leaving the victim behind and was later found at the scene by her aunt Alice Tachik. When questioned why she failed to respond to her call she told Alice Tachik that her husband had raped her and threaten to kill her if she called out. After having penetrated the victim the accused fled into the bushes. Alice than told the victim that she would scold her husband about what he had done to her and so the victim left for her grandmother’s house. She did not stay at her own house that night.

5. On 12 March 2010 whilst in the company of her friends Donna Eric and Rosevite Eric, Alice Tachik came and invited her to a private location to sort out the 1st rape incident. The victim went along with her grandmother Terry Likutu and waited but when the accused failed to turn up she left, leaving the victim behind. Not very long the accused appeared from the bushes and sat next to his wife under a big tree. Since nothing was being talked about the victim decided to leave but was called back. She returned and sat next to both of them when the accused moved further into the bush and called out to the both of them to go to him. Alice Tachik was than told by her husband to return to her house. By than the victim was scared and held onto Alice’s hand and cried. The accused threaten to kill his wife if she remained behind and so in fear she left leaving the victim alone with the accused. The accused than forced the victim to remove her clothes but she refused so he removed the victims clothes and he penetrated her again. The victim cried and shouted but was threatened to keep quiet or else she would be killed with a knife. After having sex with her the victim went through the accused area down to the river. Along the way she saw Alice Tachik attempting to strangle herself on a guava tree nearby but was stopped and she accompanied her to the beach. Alice than told the victim that it was up to her to report her husband, the accused to the police and be brought to court.

Medical Report

6. The medical examination conducted on the victim on 29th of January 2010 does not assist much since it was done almost 7 weeks after the date of the offence. The report however highlights that the victim had lost her virginity sometimes back. She was brought to the hospital for confirmation whether she was still a virgin and for possible prosecution. The medical doctor was of the view that penetration of the vagina had already occurred at some stage earlier and not within a week of examination.

Defence case

7. The accused and his wife gave evidence. His evidence relates to an incident of consensual rape between him and the victim on the 4th of March 2010 in the garden nearby his house. The victim came to his house and told him to follow her to the garden where she was gardening to have sex with her. At that time his wife had gone to the village. After about two hours in the garden the accused’s wife came looking for the victim and called out her name. The accused escaped further into the bushes leaving the victim behind. He later returned to his house got his knife and went to check his traps for animals.

8. The accused’s evidence further relates to another incidence of consensual sex between him and the victim between mid afternoon on 12 March 2010 in front of their house under a coconut tree. By than the accused’s wife had gone to the village to buy soap and other food stuff and returned home around 4pm & 5pm the same day. She also bought a packet of rice for their two children. She then went into the bush looking for dry coconuts and found the accused and the victim having sex and walked away angry and shouting. By than the accused and the victim had separated and gone their separate ways. During examination in chief the accused said they both had sex earlier on three occasions, twice during a cuscus hunting trip in the bush and on the beach. The accused denied empathically using force and threats prior to having sex with the victim on those occasions.

9. Defence witness Alice Tachik Francesca gave evidence relating to her marriage to the accused for almost 16 years and recalls being at home with her husband and children on 4th March 2010. Around 8 am in the morning she left for the village to buy noodles for her two children. When she returned to the house she found the two children alone in the house without their father. Upon seeing a basket belonging to the victim hanging in the house she became suspicious and went out looking for her in the nearby bushes. Along the way she heard whispering and called out to the victims name but no one replied so she went down to the small creek hoping that someone would show up. From the creek she saw the victim planting kaukau in her garden and approached her and questioned her why she failed to respond to her calls earlier to which the victim said she was in the bush toileting due to a stomach ache. She noticed dirt and other rubbish in the victim’s hair.

10. The witness evidence relates to another incident on12 March 2010 when she returned from the village after buying some foodstuff for her children and found her husband and the victim having sex in the bush nearby. She had gone there looking for dry coconuts and found the both of them sitting together happy after having sex. She called out to the husband and told him that her suspicions of him having an affair with the victim had come true. She cried and returned home with a lot of sadness. The accused and the victim both ran away into the bushes.

Submissions for the Defence

11. Although sexual intercourse is not denied by the defence team they maintained that the sexual penetration between the accused and the victim was consensual and that there were two prior acts of sexual intercourse between them. The first two acts of sexual intercourse took place around January 2010 while they were on the pretext of hunting for “cuscus” in the bush alone. This piece of evidence surfaced during cross examination and when questioned why it was left out the victim said she had forgotten about the incident.

12. The defence team submitted that the State had not proven their case beyond reasonable doubt and based their submission on these factors. The first alleged rape took place at the invitation of the victim in the victim’s garden and it was consensual sexual intercourse. The second alleged rape, also consensual, took place in front of the accused’s house under a coconut tree and there was an ongoing sexual relations between the accused and the victim. It was not until the wife caught them having sex red handed under some coconut trees that her suspicions materialised.

13. The defence team submitted that defence witnesses to be believed in that their evidence remained consistent even during cross examination whereas the victim’s evidence was at variance and not to be believed. On the element of consent defence submitted that the onus of proof was on the State and it was their duty to discharge that duty. However since they have failed to discharge that duty beyond reasonable doubt they submitted that a verdict of not guilty be returned in favour of their client.

Submissions for the State

14. Mr. Sambua of counsel for the State replied that the prosecution had proven its case beyond reasonable doubt and the accused should be found guilty as charged. He submitted that the court make assessment of the demeanour, consistency, credibility and believability of defence evidence and referred me to the case of The State v James Yali [2005]PGNC 191; N2988 in which Cannings J employed the process. I take judicial notice of his Honours systematic analysis of evidence in his judgment and adopt same in parts here.

15. The State submitted that the accused and his wife’s evidence are so incredible that their version of events should not be believed. Their evidence was tailored to exonerate the accused and that the wife had ulterior motives to come to court and give fabricated evidence for fear of her husband being found guilty and imprisoned. There were inconsistencies in their evidence. For instance timing of events, the wife going to the village and returning, the time the accused and victim spent in the bush (2 hours) before the wife returned to the house and found him missing, the accused version of the victim coming to his house around 10am and inviting him to the garden to have sex again is inconsistent with the wife’s version of events. Had she returned to the house within the hour she stated she would be home by the time the victim turned up at their house. Furthermore Alice Tachik said she saw the victim planting kaukau after searching for her whereas the accused said the victim was left behind at the scene of their sexual encounter, consistent with the victim’s version of being left behind at the scene after sex where she was located by Alice Tachik.

16. The state further submits that the wife’s actions in looking for her husband on the 4th March during the alleged rape incident instead of calling out for the victim defies logic and common sense in that a suspicious wife returning home to find his husband missing would obviously go searching for him rather than looking for someone else. In this case she was determined and focused on looking for the victim. How she came to know that her husband was with the victim defies logic. The defence attempts to water down this piece of evidence by linking the victims basket found in their kitchen was immediately objected too and ruled out as it offended the rule in Brown v Dunn in that the defence did not put this piece of evidence to the state witness. The case of Saka Varimo v State was referred to the court in support by Mr. Sambua in his submissions. I have taken judicial notice of two other cases referred to me by Mr Sambua however since no proper citations were presented it was difficult for me to locate. In any event they relate to the proposition in the Brown v Dunn rule. According to the State the evidence of Alice not reporting her husband, having caught them having sex red-handed in the bush defies logic. Despite defence assertion that women caught in such situations behave differently and their witness was no different in that she showed signs of frustration and anger and kept the matter within herself. Another discrepancy in defence evidence is that Alice Tachik maintained throughout examination in chief and cross examination that on 4 March the accused was left behind in the house with their two children when she left for the village to buy some food. Her version of events was not improved by the accused’s version when he also maintained that he was alone in the house that morning whilst his wife and their two children went to the village.

17. Mr Sambua submitted that the presence of inconsistencies in defence witness statements as opposed to state evidence where the accused’s evidence corroborated the victims evidence in parts save for the inconsistency in the first sexual encounter during the “cuscus” hunting trip in January. The state submitted that although the victims evidence was not corroborated the recent amendments to the law s.229 H of the Criminal Code removed the element of the need for corroboration in rape cases. Hence persons charged with the offence of rape may be convicted on uncorroborated evidence or testimonies. (James Yali case).Here is what Justice Canings said on the issue of uncorroborated statements:

“Prior to 2003 the general practice was that the court was required to warn itself of the dangers of entering a conviction for rape based on the uncorroborated testimony of the complainant. The practice was consistent with the position at common law, the rationale being that rape is a serious charge, easy to allege and difficult to refute. (The State v Kewa Kai [1976] PNGLR 481, National Court, Prentice DCJ; The State v Anton Kumak (1990) N835, National Court, Ellis J; The State v Bikhet Nguares Paulo [1994] PNGLR 335, National Court, Doherty J.) (See generally D R C Chalmers et al, Criminal Law and Practice in Papua New Guinea, 3rd edition, Lawbook Co, © 2001, pp 333-335.)

Nowadays the opposite is the case: not only is the National Court not required to warn itself, it is not allowed to. Section 352A of the Criminal Code (corroboration not required)..." I too endorse and adopt his pronouncement in this case."

18. The upshot of states submission is that they have discharged the onus beyond reasonable doubt and the court should return a verdict of guilty on the accused on both counts of rape.

What is the Law of Rape than? Counts 1& 2: Rape

19. Section 347 (Definition of rape) of the Criminal Code states:

(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.

To obtain a conviction under count 2 the prosecution must prove the following matters beyond reasonable doubt:

- the accused sexually penetrated the complainant;

- without her consent.

"Sexually penetrates" is defined by Section 6 (sexual penetration), which states:

When the expression "sexual penetration" or "sexually penetrates" are used in the definition of an offence, the offence, so far as regards that element of it, is complete where there is—

(a) the introduction, to any extent, by a person of his penis into the vagina, anus or mouth of another person; or

(b) the introduction, to any extent, by a person of an object or a part of his or her body (other than the penis) into the vagina or anus of another person, other than in the course of a procedure carried out in good faith for medical or hygienic purposes.

"Consent" is defined by Sections 347A (meaning of consent).

Section 347A states:

(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 [are] 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 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 person 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 an earlier occasion, he freely agreed to engage in another sexual act with that person or some other person.

20. The accused is charged with two counts of rape, an offence under s.347 of the Criminal Code Act 2002. For the State to prove that the accused raped the victim, they must prove that the accused sexually penetrated the victim without her consent. The prosecution always bears the burden of proving their case beyond reasonable doubt.

Was Consent Obtained?

21. The victim gave evidence that she was grabbed from behind, dragged into the bush and raped by the accused on the first occasion. Her attempts to shout for help were stifled by the accused with threats of killing her with a bayonet. However, there was no evidence to support that part of her story apart from the evidence of the accused that he left her behind at the crime scene after having sex with her. I am satisfied on the strength of the victim's evidence that a reasonable degree of force was used by the accused. He forced her into the bush, then he forced her to undress which she refused, then he raped her. I draw the inference from the evidence that the victim submitted to being sexually penetrated, as there was nothing else she could do. She was overpowered by a physically stronger person. These facts tend to fall within Section 347A (2) (a) of the Criminal Code: a person does not consent if she submits to penetration because of the use of force on her.
22. As regards the second count of rape the victim testified that she was lured to a secret location by the accused's wife on the pretext of resolving the first incident of rape. As it turned out that meeting did not take place but rather turned out to be another opportunity for the accused to rape the victim with the wife's full knowledge. Again I draw the inference from the evidence that the victim submitted to being sexually penetrated, as there was nothing else she could do. She was forced into a precarious situation in that if she refused to have sex with the accused the accused would harm her aunt. She testified of crying and holding tightly onto her aunty not to leave her alone with the accused. Hence I can safely infer that she was overpowered by a physically stronger person. Again these facts tend to fall within Section 347A (2) (a) of the Criminal Code: a person does not consent if she submits to penetration because of the use of force on her.

23. I have already indicated that I found the complainant to be a fairly convincing and credible witness; much more so than the accused. The victim's evidence is to be given much more weight than the accused. In light of the above I am satisfied beyond reasonable doubt that the victim did not give free and voluntary agreement to be sexually penetrated by the accused. She did not consent. I consider that all of that evidence supports the conclusion that what the accused did amounted to rape without consent.

Witness Demeanour

24. I observed the demeanour of witness Alice Tachik to be timid and unsure of her herself and at times under some apprehension when giving evidence. On the other hand the victim appeared to me to be calm and collected and focused in giving her evidence. This is despite the allegation of rape on her. The same cannot be said for the accused. My attempts to make direct eye contact with him during evidence all failed as the accused kept looking away from the court. I noticed him to be a very strong built stocky man as opposed to his wife who appears to be slim, frail looking women. She had obvious signs of fear and stress all over her face. To this end I make allowance of her being a villager and this could be her first time in court hence the fear. I draw inference of her apparent stress on the evidence that she has been under constant suspicion over her husband's unfaithfulness to her and his failed attempts to develop sexual relations with the victim who is much younger than her. Furthermore soon after being told by the victim that she had been raped by the accused the news became so overbearing she attempted to commit suicide but was rescued by her son with the victim's assistance.

Motive

25. Michaelyn Levers-Victim. Her motive in my view is to see that justice is done and she be freed of the shekel of abuse and harassment brought upon her life by the accused. She is doing this with the full knowledge that the accused is her uncle by marriage to her aunt. Similarly she is fully aware of the consequences of her actions in that her aunty would be hurt most and denied the presence of her husband if found guilty. I am of the view that she had no ulterior motive save to see justice done.

26. Francis Tachik-Accused. His motive in my view is to be exonerated from the two counts of rape hence his passion and vigour to shift blame on to the victim and plead "consensual rape". His failed attempt to get close to the victim, coupled with his sexual desire and lust for a much younger sexual partner in the victim has blinded him to commit the two acts of rape. A situation he cannot reverse and now finds his marital relationship with his wife for over 15 years now at the cross roads and on the verge of a downhill drive, hence the push to shift blame onto the victim.

27. Alice Francisca Tachik-Accused's wife. This witness is the one most affected and disturbed by this whole affair. In my view she has been dragged unwillingly into testifying in favour of her husband. She came to court with the full knowledge of her husband's past sexual advances against her niece, the victim. She is fully aware of the outcome of her testimony in that her husband and father of her two children would be deprived of their father if she gives adverse testimony. Similarly she is fully aware of the consequences that she is giving adverse testimony against her niece and her wider family. I draw inference on her testimony that because the victim was her "blood" she decided against assaulting her when caught red handed having sex with her husband.

28. Alice Tachik has instead chosen to protect her husband hence her motive to give fabricated and concocted testimony in favour of her husband appears real. In my view her testimony and that of her husband appears to be tailored. Again I draw inference on evidence before this court; her absence from the house on the two occasions of alleged rape appears to be highly suspicious; her testimony of stumbling on her husband and the victim having sexual intercourse (caught red handed) under a coconut tree appears in my view too good to be true. Put differently Alice Tachik had a motive to make sure that her husband Francis Tachik be exonerated on the two counts of rape.

Application & Observation

29. The State in its submission is seeking a conviction on both counts of rape on the basis that the victim's evidence although uncorroborated is credible and must be believed. The witness was raped without her consent and with threats of harm being inflicted on her body if she refused sexual intercourse.

30. The complainant was the only witness to testify that she was raped by the accused on two occasions and bravely told court what happened on those two occasions, reliving the trauma and stress in the witness box. The accused may be the other person present however there is very strong inference that his wife was also present on those two occasions. He gave evidence but it contradicts, rather than corroborates, the victim's evidence as to lack of consent. However pertinent parts of his evidence corroborates the victim's evidence. The accused wife also gave evidence in support of her husband. The court has to decide who to believe: the accused and his wife or the victim. The victim's evidence of being left behind at the sex scene after the first sexual encounter and found by the wife is corroborated by the evidence of the accused; the evidence that the victim came to their house and chewed betel nut with both of them before going to her garden nearby; the evidence of being raped with force and threat of harm; the evidence of the second rape with the wife's knowledge appears to be credible; the evidence of the wife attempting to commit suicide after the second rape incident is testament to this animalistic behaviour of her husband, the accused. I regard all those evidence as relevant.

31. Having carefully considered all the circumstances leading up to the two acts of rape, one in the garden and the other under the teak three in the bushes I am satisfied that sexual penetration was not consensual and the victims version of events is to be believed. I reject the accused evidence that sexual penetration was consensual. I also reject the accused wife's evidence that she was not around during those two sexual encounters. I draw inference from evidence showing that she had prior knowledge of her husband's unfaithfulness to her despite being married to her for more than 15 years. She also had prior knowledge that her husband had previously attempted to rape the victim. That incident was resolved by shaking of hands as they were all related.

32. I now turn to the victim's earlier testimony during cross examination of being sexually penetrated twice by the accused during a "cuscus" hunting trip in January 2010. It could be argued and has been suggested to her that she had an on- going sexual relations with the accused and that her testimony of the two alleged rapes should not be believed. Be that as it may, I hold a different view. The defence attempts to discredit the victims testimony in my view has back fired on the accused. The cunningness and ease in which the accused fulfilled his sexual desires over an unsuspecting 16 year old girl (his niece) during the "cuscus" hunting trip drove the accused to his failed sexual related attempted attack on the victim as she was on her way to bath. The accused's lust and greed in fulfilling his sexual desires over a teenage girl earlier on and old enough to be his daughter might I add, in my view is inference enough to draw conclusions that culminated into raping the victim with the full knowledge of his wife. He was out to get the victim and rape her despite obstacles in his path. His actions in my view are analogous to domesticated animals urge and instinct to kill after being fed with warm blooded flesh. I reject his evidence and found him not to be a witness of truth.

DETERMINATION OF COUNT 1: RAPE on 4 March 2010.

33. This charge has two elements:

1. the accused sexually penetrated the victim;

2. without her consent;

The victim submitted to the act of rape because of use of violence and threats.
I am satisfied beyond reasonable doubt as to both elements.

I therefore return a verdict of guilty on the accused on count 1.

DETERMINATION OF COUNT 2: RAPE on 12 July 2010.

34. This charge has two elements:

1. the accused sexually penetrated the victim;

2. without her consent;

The victim submitted to the act of rape because of use of violence and threats.
I am satisfied beyond reasonable doubt as to both elements.

I therefore return a verdict of guilty on the accused on count 2.

VERDICT

35. I find that the accused, Francis Tachik is:

1. Guilty of count 1,
   
2. Guilty of count 2
   

I convict him each and severally on both counts.

Verdict accordingly.

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