N5646

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 703 OF 2013

THE STATE

V

STANLEY TALAD

Madang: Cannings J
2013: 25 October,
2014: 13, 19 May, 11, 25 June

CRIMINAL LAW – offence of rape – Criminal Code, Section 347 – trial – whether the complainant consented to sexual penetration by the accused

The accused was charged with the offence of rape, contrary to Section 347(1) of the Criminal Code. He was aged 25 at the time of the incident. The complainant was a 17-year-old girl. The accused pleaded not guilty so a trial was held. The complainant gave evidence that the accused sexually penetrated her, without her consent. The accused agreed that he sexually penetrated the complainant but claimed that it was with her consent. The central issue was whether the State had proven beyond reasonable doubt that the complainant did not consent.

Held:

(1)	Under Section 347A of the Criminal Code "consent" means free and voluntary agreement.

(2)	The State proved beyond reasonable doubt that the complainant did not freely and voluntarily agree to being sexually penetrated as: (a) the complainant was assessed as an honest witness; (b) the complainant's mother, to whom the complainant made a prompt complaint, was assessed as an honest witness; (c) there was evidence of a prompt complaint; (d) the accused was assessed as a dishonest witness.

(3)	The accused was convicted of rape under Section 347(1).

Cases cited

The following cases are cited in the judgment:

Michael Balbal v The State (2007) SC860
The State v James Yali (2005) N2988
The State v Junior Anton Johannes (2014) N5599
The State v Polikap Lakai (2007) N3153
The State v Stuart Merriam [1994] PNGLR 104

TRIAL

This was the trial of an accused charged with rape.

Counsel

M Pil, for the State
A Meten, for the accused

25th June, 2014

1. CANNINGS J: The accused, Stanley Talad, is charged under Section 347(1) of the Criminal Code with committing the crime of rape against the complainant, a 17-year-old girl, "W". The State alleges that the accused, aged 25 at the time, committed the offence at Nobnob village, Madang Province, on the morning of Thursday 9 May 2013. He pleaded not guilty so a trial was held.

2. The State's case is based on the oral testimony of the complainant and her mother, to whom the allegation of rape was made. A medical report and the accused's record of interview were also admitted in evidence. The accused gave sworn evidence. That was the only evidence for the defence apart from a witness statement of the complainant, which was relied on a prior inconsistent statement. The accused agreed that he sexually penetrated the complainant but said that it was with her consent.
UNDISPUTED FACTS

3. A number of undisputed facts have emerged from the evidence:

•	The complainant has an unspecified form of impairment that affects her speech, which is slow and halting. She has had this condition since she was two years old and it is due apparently to her suffering from cerebral malaria at that time. She has had virtually no education. She is, however, able to communicate effectively. She is not suffering from any obvious psychiatric condition.

•	The complainant is from Nobnob and was living with her parents at Nobnob at the time of the incident.

•	The accused is from Finschhafen. He had been living at Nobnob for about a year before the incident and stayed with the complainant and her family. He has an uncle, to whom he is very close, who has been living at Nobnob for a long time; and his father used to work with the complainant's father, so that is how he came to be living with the complainant's family. He is also a good friend of one of the complainant's brothers. He was unemployed. He was living as a villager.

•	The incident that led to the accused being charged happened on Thursday 9 May 2013. The indictment incorrectly stated the date as 9 April 2013.

•	The incident took place at a place called "Drum Water", 30 metres from the complainant's home. It is a bushy area where village people go to bathe. The complainant went there to bathe. The accused went there at the same time and sexually penetrated the complainant, by inserting his penis into her vagina.

•	The complainant did not return in a timely manner, so her mother went looking for her; when she found her, the complainant said that the accused had 'done a bad thing' to her.

•	The complainant's mother immediately took the complainant to the local aid post, where she was regarded as a rape victim. The matter was then reported to the Police.

ISSUES

4. Section 347 of the Criminal Code (definition of rape) states:

(1)	A person who sexually penetrates a person without his [or her] consent is guilty of a crime of rape.

Penalty: Subject to Subsection (2), imprisonment for 15 years.

(2)	Where an offence under Subsection (1) is committed in circumstances of aggravation, the accused is liable, subject to Section 19, to imprisonment for life.

5. This offence of rape under Section 347(1), sometimes called 'rape simpliciter', has two elements:

•	sexually penetrating another person; and
•	doing so without the other person's consent.

"Consent" is defined by Section 347A(1) (meaning of consent) of the Criminal Code. It means free and voluntary agreement. If an offence under Section 347(1) is committed in circumstances of aggravation the maximum sentence is increased by Section 347(2) from 15 years to life imprisonment (The State v James Yali (2005) N2988). No circumstances of aggravation are alleged in this case.

6. It is undisputed that the accused sexually penetrated the complainant. The only contentious issue is whether she consented.

DID THE COMPLAINANT CONSENT?

7. Resolution of this issue requires a:

•	summary of evidence for the State;
•	summary of evidence for the defence;
•	formal determination of the question whether the State has proven that the complainant did not consent.

Evidence for the State

8. Three witnesses gave evidence for the State, as summarised in the following table.

No	Witness	Description	
1	"M"	The complainant's mother, villager, Nobnob village	
Evidence	
The incident happened between 10 and 11 am. She was in the house, preparing to go to a mothers' fellowship meeting. W was with her in the house. The accused was also there. She told W to go to Drum Water and have her bath and get ready to go with her to the fellowship meeting. W went away but was taking longer than expected, so she went looking for her.

She called out twice before W emerged from the bush, naked and crying, saying that the accused had pulled her into the bush and done a bad thing to her. She did not see the accused. W told her that he had run away. She took W to the house and they prayed. She later that day took W to the aid post. She did not want to rush things. She was concerned about the accused's safety once the village people found out what had happened.

In cross-examination, she denied being cross with her daughter. She denied that W was crying because of the way she was talking to her. W told her that she did not agree to have sex with the accused. She knows nothing about her daughter and the accused having previous sexual relations. She had accepted the accused into her family and treated him as a son. She is angry with him for what he did. That is why she reported the incident to the Police.	
2	Yaria Daik 	Community Health Worker	
Evidence	
He has 30 years of experience as a community health worker. He has been working at Nobnob since 2012. He knows W well and is aware of her condition. W's mother brought W to the aid post on the morning of the incident. He examined W in the presence of her mother and confirmed the presence of sperm in the vagina.

In cross-examination he said that both W and her mother told him that W had been raped.	
3	"W"	The complainant	
Evidence	
She said that when she went to Drum Water to bathe, the accused came and dragged her away to a place behind her brother's house and did a 'bad thing' to her, which she did not agree to.

In cross-examination she said that she does not have a boyfriend and does not want one as she is a "sick girl". She never had sex with the accused before this incident. She does not like him. She heard her mother calling her, so she came out – with her clothes on – and told her what had just happened. She did not agree to sex. Her mother was not angry with her – she was not crying due to her mother being angry with her.

Shown a statement in her name, she said that the police had prepared it and given it to her to sign, which she did by putting her "X" mark on it; however, she cannot read.	

9. Two exhibits were admitted into evidence by consent:

•	The record of interview of the accused (exhibit P1): he stated that the complainant agreed to have sex with him as they had had sex together on ten previous occasions. He knew that she was of 'unsound mind but he was excited about having sex with her and did not consult her mother. He knew he was doing the wrong thing but she gave him permission to have sex.

•	A health service referral form (exhibit P2). This is the form completed by Mr Daik, referred to in his evidence. It is further evidence of sexual penetration and it shows that the matter was reported to the aid post as a complaint of rape.

Evidence for the defence

10. The accused was the only defence witness.

No	Witness	Description	
1	Stanley Talad	The accused, aged 25 at time of the incident	
Evidence	
He was very good friends with W – they were living in the same house – they had had sex together on three previous occasions – on the morning of the incident they were in the house together and they agreed in the house that they would go outside and have sex in secret – he followed her into the bush and they had sex together.

In cross-examination the accused said that though many people think that the complainant has a mental disability, she is not really sick in the head – she knew what she was doing – she liked him – he agrees that he told the police that she was of unsound mind, but that is what the police wanted him to say; he was scared when the police were interviewing him – he agrees that what he did was wrong: it was wrong because he was living with the complainant's family at the time; it was not wrong because of her condition, as she is not 'sick in the head' – she always agreed and she understood what she was doing.	
 
11. The only other evidence relied on by the defence was the complainant's witness statement to the Police, dated 21 August 2012 (exhibit D1). This was tendered by the defence as a prior inconsistent statement on the basis that, though the account provided of what happened appears to be consistent with her oral testimony, it contains details that the complainant did not give in her oral testimony.

Has the State proven beyond reasonable doubt that the complainant did not consent?

12. Having weighed the competing evidence and the submissions of counsel I have concluded that the State has proven beyond reasonable doubt that the complainant did not freely and voluntarily agree to being sexually penetrated. The Court finds that she did not consent for the following reasons:

(a)	The complainant was assessed as an honest witness.

13. The complainant impressed me as a person who was telling the truth. Her demeanour was sound. Her evidence was clear and credible. In the absence of scientific evidence as to her mental state, based on my observations of her giving oral evidence, it appears to me that she is not so much suffering from a mental disability as a physical disability. She is slow talking and sometimes slow responding to questions but she appeared to fully understand the purpose of the court proceedings and why she was being asked to give evidence about what happened. I tend to agree with the accused who said in his evidence that she is 'not sick in the head'. She was adamant that she did not agree to the accused sexually penetrating her. I accept that evidence. She has a proper appreciation of sex. I find that she was mentally capable of consenting but did not do so.

14. Mrs Meten submitted that there were material inconsistencies between the complainant's evidence and her mother's evidence, especially about whether the complainant was naked when she met her mother. I agree that there was some confusion in the evidence on that issue but I do not accept that it is such a significant inconsistency that it makes the complainant's evidence not credible.

15. Mrs Meten submitted that the complainant's oral evidence did not match the statement she gave to the police (exhibit D1) but I think that this is a weak argument. The complainant cannot read or write. She just signed the statement with an X. The police officer who took the statement was not cross-examined. In any event, there are no major discrepancies between the signed statement and the complainant's oral testimony.

(b)	The complainant's mother, "M", was assessed as an honest witness.

16. She was subject to vigorous cross-examination: it was put to her that she was angry with her daughter as she had gone missing and come out of the bush naked and that is why the complainant started crying and made up the story of being raped. M denied being angry and I accept that evidence. She gave the impression of being a person who was calm and composed in a crisis. She did the right thing by taking her daughter to the aid post. She even had a concern for the welfare of the accused. Her evidence that her daughter was upset and crying and made an immediate claim that the accused had 'done a bad thing' is therefore credible.

(c)	There was evidence of a prompt complaint.

17. The prompt making of a complaint by a person who alleges rape is a relevant consideration to take into account by the Court when determining the genuineness of the allegation; just as the absence of a prompt complaint can cast doubt on the genuineness of the allegation. These are relevant but not determinative considerations (Michael Balbal v The State (2007) SC860, The State v Stuart Merriam [1994] PNGLR 104, The State v Polikap Lakai (2007) N3153, The State v Junior Anton Johannes (2014) N5599).

18. The train of events that occurred in the hours following the incident are consistent with a girl making a genuine allegation of rape. The complainant made the allegation as soon as she saw her mother, and the allegation remained the same when she was taken to the aid post and when the matter was reported to the Police.

(d)	The accused was assessed as a dishonest witness.

19. His demeanour in the witness box was the opposite of that of the complainant and the other State witness. He gave the clear impression that he was not telling the truth.

20. Though his evidence was generally consistent with the story he told the Police, reported in the record of interview, that he and the complainant had had consensual sex on a number of previous occasions, that version of events is not believable. He told the Police that they had sex on ten previous occasions. He told the Court that they had sex on three previous occasions. It is too difficult to believe that this would have been happening in close proximity to the family home in the village without anyone knowing about it or at least suspecting that something of that nature was happening.

21. It is noted that there was no corroboration of the accused's version of events. There did not as a matter of law have to be corroboration. The accused is never obliged to prove his innocence. He does not have to prove that the complainant consented. But in a case such as this where the evidence of the key State witness – the complainant – as to absence of consent is strong, the accused had to be either a very good witness (which he was not) or have some corroboration (which he does not have) to create doubt in the mind of the Court on the question of consent.

Conclusion: did the complainant consent?

22. No. The State has proven beyond reasonable doubt that:

•	the complainant did not freely and voluntarily agree to being sexually penetrated by the accused; and accordingly

•	the accused is guilty of rape under Section 347(1) of the Criminal Code.

VERDICT

23. Stanley Talad, having been charged with one count of rape, is found guilty of rape contrary to Section 347(1) of the Criminal Code.

Verdict accordingly.
___________________________________________

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