N7920
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 233 of 2019

THE STATE

V

ROBERT DEPIT

Kerevat:  Anis J
2019:  18 & 24 July

CRIMINAL LAW – No case to answer - charge of aggravated rape under section 347(1)(2) – Criminal Code Act Chapter No. 262 - second limb – whether evidence was tenuous – whether the court should exercise its discretion and stop the trial 

Case Cited:

State v Paul Kundi Rape [1976] PNGLR 96

Counsel:

Ms J. Batil, for the State
Mr A. Tunuma, for the Accused

RULING ON NO CASE

24th July, 2019

1.	ANIS J:	The accused was charged with 3 counts of aggravated rape of his biological daughter (victim).  At the end of the prosecution’s case, the defence made a no case to answer application.  The application was made on 18 July 2019.  I reserved my ruling thereafter.

2.	This is my ruling.

BACKGROUND

3.	The indictment, which was presented on 10 July 2019, cites 3 counts of aggravated rape.  The charges are brought under section 347(1) & (2) of the Criminal Code Act Chapter No. 262 (Criminal Code).  

4.	The accused is the biological father of the victim.  He is from Vunaulaiting village (the village) which is situated in the Reimber/Livuan LLG, Gazelle District of East New Britain.  The allegations made against him were said to have occurred between 1 January 2017 and 23 October 2018, in the village.

5.	For the first alleged incident, the State says that in 2017, the accused told the victim to climb a betel-nut tree in the village.  When she climbed down, the accused allegedly told the victim to touch his penis.  The State alleges that the accused in return touched the victim’s vagina and breasts.  It is alleged that the accused then penetrated the victim without her consent by inserting his penis into her vagina.  The second alleged incident is this.  In 2017, the accused told the victim to follow him into the bush to pick greens in the village.  Whilst there, the accused penetrated the victim without her consent by inserting his penis into her vagina.  And the third alleged incident is this.  In 2018, the accused took the victim into a customary sacred house called taraiu, which is known as the tolai men’s sacred place.  There, in the taraiu, the accused sexually penetrated the victim without her consent by inserting his penis into her vagina.

EVIDENCE

6.	The State called 2 witnesses.  The first was the victim and the second was Anna Kinanga.  It also tendered a total of 6 exhibits.

NO CASE APPLICATION

7.	The defence’s oral no case to answer application is based on the second limb.  Counsel referred the case, State v Paul Kundi Rape [1976] PNGLR 96 in support of this proposition.  In summary, the second limb states that even after the State has called in its evidence and has established the elements of the offence to which an accused is charged with, if the evidence is tenuous, vague or insufficient, the Court may exercise its discretion and stop the trial.

ISSUE

8.	The main issue in this instance is whether the victim’s testimony, if considered at its highest and as accurate, would amount to a conviction on one or more of the 3 counts, and if so, whether the Court should not exercise its discretion and stop the trial.

STATING THE EVIDENCE

9.	I firstly refer to the tendered exhibits.  Firstly, I note that the accused has denied the allegations when he was interviewed by police.  Secondly, the tendered medical report shows evidence of possible sexual penetration of the victim’s vagina.  And thirdly, the exhibits show that the victim was born on 22 September 1997.

10.	Let me state a summary of the victim’s evidence.  In relation to the first allegation, this is what she said.  She said in 2017, her father told her to climb a betel-nut tree at the village.  She said after that, he told her to remove her shorts.  She said he told her to touch his penis.  She said he in return touched her vagina and breasts.  She said they did that whilst lying down on the ground.  During examination-in-chief, the victim, despite repeated questions by counsel on whether her father had also sexually penetrated her, said that nothing further had occurred apart from what she had stated.  When she was cross-examined, she also confirmed that there was no sexual penetration at that time.  But later and towards the end of the cross-examination, the victim said that she and her father did had sex at that time.  The defence then asked the victim whether she had consented to having sex with her father.  The victim said she consented because the accused had threatened her that he would assault her mother if she reported the matter.  In re-examination, the victim stated that in 2017, and in relation to the first incident, that the accused had penetrated her by inserting his penis into her vagina.  Counsel then asked the victim to explain why she did not state that when she was asked about it earlier on in examination-in-chief.  The victim remained silent, and later she impliedly told the Court that she has no answer to the question.

11.	The victim said these in relation to the second alleged incident.  She said in 2017, at the village, the accused forced her to accompany him to look for greens (pumpkin tips) in the bush.  She said there, he told her to hold his penis.  She said the accused also forced himself and touched her breasts and told her that he was doing that to stop her from going out with other men.  She said he also told her that he was doing that to stop other men from doing the same to her.  After that, she said he threatened her not to tell her mother or he would hit her and her mother.  She was asked twice whether the accused had done anything else to her after that to which she replied, “no”.  During cross-examination, the victim confirmed that the accused did not have sex with her when they went out to pick greens.

12.	In relation to the third alleged incident in 2018, the victim did not give any evidence of facts to say that the accused had taken her into the taraiu at the village and had sexually penetrated her without her consent by inserting his penis into her vagina.  This is what she said instead.  She said that at one time in 2018, at the village, the accused told her to follow him into the bush to look for a pig.  She said there, the accused sexually penetrated her by inserting his penis into her vagina.  The victim also confirmed that in cross-examination.

13.	I now refer to the evidence of the second witness, Anna Kinanga.  She said she is the sister of the victim’s mother (victim’s aunt).  She said on 23 October 2018, the victim cried to her and told her that her father did some things to her.  She said she told the victim to wait for her mother to return.  She said the victim told her to report her mother about what the accused had done to her.  She said after her mother had returned from the market, she said she told her the truth.  She said the victim had said that her father had asked her to go with him to look for a pig, and that it was on that day, that is, 23rd that the victim had run away and had come to her to report the matter.  She said she had told the victim after that to live with her and to never go back to live with her parents.

ELEMENTS OF AGGRAVATED RAPE

14.	Let me begin by setting out the elements of the offence, rape, under section 347(1) & (2) of the Criminal Code.  They are, (i) a person, (ii) who sexually penetrates, (iii), another person, (iv), without his or her consent, and (v) under aggravated circumstances, is guilty of rape.   He or she may be sentenced to life year imprisonment, or less, that is, if the Court is minded to exercise its discretion under section 19 of the Criminal Code.  

CONSIDERATION

15.	Is the State evidence tenuous on all the 3 charges that are laid against the accused?  In regard to count 1, the allegation is that the accused, sometime in 2017, at the village, sexually penetrated the victim after he had told her to climb a betel-nut tree.  When I consider the victim’s evidence, I note the following.  The victim denied in examination-in-chief that the accused had had sex with her after she had climbed the betel-nut tree in 2017.  During cross-examination, the victim, in the first instance, confirmed that the accused did not have sex with her, but later towards the end of the cross-examination, when she was asked another time, she said that she and the accused did had sex in 2017.  In re-examination, the victim stated that she and the accused did have sex in 2017.  When she was asked why she did not state that (i.e., sexual penetration) in her examination-in-chief, she remained silent and then said impliedly that she has no answer to the question.

16.	In my view, had the victim explained her sudden change of testimony, I could have reached a different conclusion and perhaps find her evidence to be not tenuous in relation count 1 of the charge.  However, in this case, the victim did not give her reason or reasons when she was given the opportunity to do so in Court.  So, given that, plus the fact that the victim had earlier denied sexual penetration in her examination-in-chief, and the fact that she had also earlier confirmed her denial in cross-examination, I find the evidence of facts in relation to count 1 tenuous.  I therefore uphold the defence’s no case to answer application in relation to court 1. 

17.	Let me consider the evidence of facts in relation to count 2.  The allegation is that sometime in 2017, whilst the accused and the victim were picking greens or pumpkin tips in the bush at the village, the accused sexually penetrated the victim without her consent by inserting his penis into her vagina.  The victim has however denied any sexual penetration in this regard or in relation to the second alleged incident.  So in my view, count 2 falls right there.  In fact, want of sexual penetration means that the State has failed to establish all the elements of aggravated rape under section 347(1) & (2) of the Criminal Code in relation to the second count, and in this case, I would be obliged under the first limb to stop the hearing for count 2.  I therefore uphold the defence’s no case to answer application in relation to count 2.

18.	And finally, let me address count 3.  The incident is alleged to have occurred sometime in 2018 at the village of the accused.  The accused was alleged to have taken the victim into the taraiu where he would sexually penetrate her by inserting his penis into her vagina.  The State however did not adduce any evidence to support the count and its alleged facts.  In fact, the victim gave a new or separate encounter.  The victim said that in 2018, the accused went out to search for a pig with her at which time he sexually penetrated her without her consent, that is, by inserting his penis into her vagina.

19.	The State submits on point that all that was required of it was to adduce evidence of sexual penetration within the period as pleaded in the indictment.  And it submits that it has done that, that is, it says that the victim has adduced evidence that in 2018, the accused had sexual penetrated her by inserting his penis into her vagina.  

20.	I will however reject this submission.  The reason is this.  An indictment is presented with its brief facts before a trial shall commence.  The alleged facts are read out together with the indictment at arraignment.  And with that, an accused persons is immediately asked to take his plea, which is based on what has been read out to him or her in Court.  The accused is then trialled based on the indictment and the alleged facts.  If evidence is adduced at the trial and it reveals different facts altogether other than what the accused had been arraigned on, then logically and in my view, the trial cannot continue because the new facts have not been pleaded and put to the accused on arraignment.  I will also say this.  The right to a fair trial or protection of the law under section 37 of the Constitution, would be at stake if such practice (i.e., to rely on a new set of facts as it is later revealed in evidence as opposed to the set of facts that had been originally pleaded together with the indictment) is permitted by the Court.  An accused person has a right to be properly informed of the charges, and he or she shall also be afforded sufficient time to prepare to defend himself or herself.  See section 37(4)(b) &(c) of the Constitution.  

21.	In conclusion, I note that State evidence that has been adduced in relation to count 3 refers to a different occasion or alleged facts which is not the same as what was pleaded in support of the indictment to which the accused has answered to in his plea.  I therefore see no basis for the accused to be called upon to answer to count 3.  

ORDERS OF THE COURT

22.	The defence’s no case to answer application is granted.  The trial shall stop where the accused shall not be called in to answer to the 3 counts of aggravated rape under section 347(1) & (2) of the Criminal Code.  The accused shall be discharged forthwith.
________________________________________________________________
Office of the Public Prosecutor:	Lawyer for the State
Office of the Public Solicitor:	Lawyer for the Accused