Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Maika [2021] PGNC 362; N8965 (13 June 2021)

N8965

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1196 OF 2018

BETWEEN:
THE STATE

AND:
HUSUM MAIKA

Aitape: Rei, AJ
2021: 8^th, 10^th, 11^th & 13^thJune

PRACTICE AND PROCEDURE - Criminal Law – Charge of Rape – What is the appropriate sentence – S.347 of Criminal Code Act – Acquitted on evidence of consensual sex.

Cases Cited:
State -v- Aige Kola [1979] PNGLR 620
State -v- Lasebose Kuriday [1981] N300
State -v- Paul Kundi Rape [1976] PNGLR 96
State -v- Roka Pep [1983] PNGLR 19

Legislation:

Section 347(1) Criminal Code Act
Section 37(3) Constitution of Papua New Guinea

Counsel:

Ms. T. Aihi, for The State
Mr. P. Moses, for the Defendant

DECISION

13^thJune, 2021

1. REI. AJ: BACKGROUND: The State through Ms. T. Aihi presented an Indictment on 8^th June 2021 charging the accused Maika Husum from Paiyawa Village Aitape in Papua New Guinea who did sexually penetrate a Damaris Rex Katuwo on 31^st May 2018 without her consent in her garden in the said Paiyawa Village, Aitape, West Sepik Province.
   
2. The complainant returned to her village in the evening. She did not tell anybody of what happened on the day of the event. She kept silent about it until the next day she told her husband what happened. The husband then got a bush knife and went to the house of the accused to take revenge.
   

PLEA
3. The indictment and the brief facts were put to the accused on 8^th June 2021 who said emphatically the allegations were untrue and a plea of not guilty entered.

EXHIBITS

4. The State tendered the record of interview both the Pidgin and English versions and were marked EX A1 & A2. The Defence did not object.

5. The State then tried to tender the statement of the husband of the complainant but the Defence objected to this and stated that the witness appears in Court to be examined and cross examined.

6. Objection by the defence was upheld.

7. The State also presented a medical report prepared by a Health Extension Officer.

8. I enquired whether the complainant has a medical report duly prepared by a registered medical practitioner but Ms. Aihi submitted that; because of high costs of obtaining one, none was prepared.

9. I insisted that, because the medical report as presented was not prepared and signed by a registered medical practitioner, I have doubts about its propriety as forming evidence for the State. I also indicated that, that is not the only evidence the Court can rely on. Oral evidence can be sufficient.

CALL-OVER AND FIXTURE FOR TRIAL

10. A Call-over was held at 1:30 pm on 9^th June 2021 in which this matter was fixed for hearing/trial today 10^th June 2021.

11. The State then indicated one witness will be called. The Defence also indicated calling one witness, the accused.

12. When the matter was to proceed on 10^th June 2021 at 9:30 am or soon thereafter, the State submitted it had no witness to call and asked for a further adjournment to 1:30 pm to enable attendance of its witness Damaris Rex Katuwo.

13. The State indicated that in the event the witness Damaris Rex Katuwo does not appear, the arresting officer will be called to give evidence why the failure.

14. The arresting officer Rodney Malken attended at 1:30pm and explained that there was serious difficulty in bringing the witness to testify. She lives in a remote location and is difficult to contact. This was caused by heavy rain resulting in flooding of rivers making travel almost impossible. He also stated that the Complainant demands compensation.

ADJOURNMENT

15. The State submitted that in the light of what was said by the arresting officer, the matter be adjourned to tomorrow 11^th June 2021 to enable witness to come.She also submitted that in the event there is no attendance, the Court has the discretion to make a decision on any application made by defence to dismiss the matter.

16. Defence objected to this application for reasons that the accused was charged with the offence of rape on the 31^st of May 2018. It has taken more than 3 yrs for him to stand trial and that the State has facilities and manpower to ensure the matter is dealt with within a reasonable time. Section 37(3) of the Constitution of PNG was relied on. As State has failed despite giving an undertaking a trial proceeds today, the matter should be dismissed.

17. I did make remarks in open Court yesterday that should the State not call its witnesses to prosecute the matter, it stands dismissed dependent upon what submissions the Defence makes.

TRIAL

18. The witness who is the complainant herself attended in Court this morning and the trial resumed. She gave oral evidence. After she gave evidence, the State closed its case.

19. At the close of the State’s case, Mr. Moses made a no case submission that although sexual intercourse did take place on 31^st May 2018, it was consented to by the complainant Damaris Rex Katuwo as the accused admitted in cross- examination that he had consensual sexual intercourse with the complainant previously. He relied on the case of State -v- Paul Kundi Rape [1976] PNGLR 96 as basis for his application.

20. Ms. T. Aihi submitted that sexual intercourse was performed without the consent of the complainant and that the accused be called upon to answer the charge.

21. She submitted further that the elements of the charge of rape under Section 347(1) of the Criminal Code Act (“the CCA”) have been proven. Those are:

(i) A person is involved
(ii) Sexual penetration did take place
(iii) With another person
(iv) Without her consent

22. Both the State and the defence do not dispute that elements (i) (ii)& (iii) are present. The issue is whether the complainant in this case consented to having sexual intercourse with the accused. If so, whether the case should be stopped here resulting in the accused not being called to testify.

23. Section 347(1) of the CCA provides inter alia:

“347. Definition of rape

“A person who has carnal knowledge of a woman or girl, not being his wife

(a) without her consent; or
(b) with her consent, if the consent is obtained

• (i) By force; or
• (ii) By means of threats or intimidation; or
• (iii) By fear of bodily harm; or
• (iv) By means of false and fraudulent representations as to the nature of the act; or
• (v) In the case of a married woman, by personating her husband.

“is guilty of the crime of rape.”

“Penalty: Subject to Section 19, imprisonment for life.”

24. The complainant gave evidence in Court which was conflicting. In cross examination, she did agree that she consented to having sexual intercourse with the accused. She also admitted having consensual sex with the accused previously for which she was warned by her husband not to repeat lest problems will arise in the family in the future.

25. This admission is supported by her own evidence that at the time of having sexual intercourse with the accused, she did not call out for help and that after all that had happened, she took her gardening tools, got her kumu and went to the village as if no wrong had been committed.

26. She also admitted she did not tell her husband when she went home. She did not tell anybody else until some 48 hours later that she raised it with her husband.

27. The complainant in my view was not genuine in her representations from the witness box in as far as the element of consent is concerned.

28. I find that the prosecution has not satisfactorily proven beyond reasonable doubt the act of sexual intercourse occurred without the consent of the complainant Damaris Rex Katuwo.

29. The Court has a discretion to weigh the evidence given by the prosecution and to acquit the accused at the end of the prosecution. The case of The State -v- Roka Pep [1983] PNGLR 19 which followed the cases of The State -v- Aige Kola [1979] PNGLR 620 and TheState -v- Lasebose Kuriday [1981] N300.

30. In all the circumstances of the case, I find that there was consent as the complainant admitted in court that she did have consensual intercourse with the accused in the past and did consent to having sexual intercourse with the accused on 31^st May 2018.

31. I therefore find that there is insufficient evidence for me to allow the accused to testify.

32. I order that this case be dismissed and the accused to be released from custody immediately.
________________________________________________________________
Public Prosecutor: Lawyer for The State
Public Solicitor: Lawyer for the Defendant