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State v Rabu [2021] PGNC 429; N9200 (10 September 2021)

N9200

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1155 OF 2020

THE STATE

V

VICTOR TAETAE RABU
Kwikila: Sambua, A J
2021: 09^th & 10^th September

CRIMINAL LAW – No case to answer application – charge – sexual penetration without consent section 347(1) of the Criminal Code Act Chapter 262 – first limb – whether all elements have been established – second limb – whether evidence is tenuous and unreliable and case to be stopped – date of offence not established by evidence-accused deny sexually penetrating victim in Record of Interview – No case to answer application upheld- accused discharged forthwith.

Cases Cited:
State v Paul Kuni Rape [1976] PNGLR 96
State v Roka Pep (No 2) [1983] PNGLR 287

State v Stanley Willie [2012] N4711

Counsel:
Miss T Aihi and Ms G Gunson, for the state
Mr F Kirriwom and Mr F Timbi, for the Defendant

RULING ON NO CASE

10^th September, 2021

1. SAMBUA, AJ: The accused Victor Taetae Rabu was indicted to stand trial on a charge of sexual penetration without consent under section 347(1) of the Criminal Code Act chapter 262.
   
2. The trial commenced at 10.00 am on Thursday the 9^th of September 2021. At the end of the State’s case the defence made a no case to answer application on the 9^th of September 2021 saying that the evidence adduced by the State so far does no establish the date the offence was committed. I heard submissions from both parties and reserved my ruling to today (Friday 10^th September 2021) and here is my ruling.
   

Background of the case

3. The accused is the stepfather of the victim Angela Rabu. It was alleged that between 10.00pm and 11.00pm on the night of the 30^th day of November 2019, the victim was asleep in her room at the family home when the accused entered the room and slowly undressed her by removing her shorts and panty. The accused then undressed himself and laid on top of the victim and penetrated her vagina with his penis.
   
4. The victim woke up and tried to push the accused off from on top of her, but he hit her several times on her hips and covered her mouth with his hands when the victim tried to call for help. The accused continued to have sex with her until he ejaculated his sperm into her vagina. After that he got up, put on his clothes and left.
   
5. Early next morning the victim reported the incident to her grandmother resulting in the accused’s arrest.
   

No Case to Answer

6. The principle of No Case to Answer is stated in the case of State v Paul Kundi Rape [1976] PNGLR 96. There are two principles laid out in the case of the State v Paul Kundi Rape (supra). In first principle is where a submission of no case to answer is made, the judge examines the evidence as a question of law to determine “whether the evidence supports the essential elements of the offence”.
   
7. The second principle is where the question to be asked is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands, he could lawfully be convicted. This is a question of law to be carefully distinguished from the question of fact to be asked at the close of all the evidence namely whether the prosecution has proved its case beyond reasonable doubt.
   
8. In the case of the State v Roka Pep (No 2) [1983] PNGLR 287, it was stated that:
   

“The second principle is where a judge decides there is no case to answer, it has a discretion to stop the case at the close of all the evidence in appropriate circumstances, this discretion is exercisable where there is a mere scintilla of evidence and where evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it”.

The State’s Evidence

9. The State’s evidence consists of sworn oral and documentary evidence.
   

Sworn Oral evidence

10. Angela Rabu (victim) was the only State witness who gave sworn oral evidence in court. She told the court that she was in court to give evidence about an incident where she was raped by her stepfather Victor Taetae Rabu. She pointed to the accused Victor Taetae Rabu who was sitting in the dock as her stepfather who raped her.
    
11. She was able to give detailed account of how she was raped by her stepfather. She told the court that that night sometime between 10.00pm and 11.00pm she was asleep in her room inside their house at Rapa village in Kairuku when her stepfather entered the room and raped her. However, could not recall the date when her step father raped her by having sex with her that night.
    
12. When asked what she meant by being raped, she told the court that he put his penis into her vagina and ejaculated his sperm into her vagina.
    
13. In cross-examination when it was suggested to her that since her stepfather was a good man who raised her up since she was two years old and it was not possible that he would rape her and that it was her biological father who told her to make up a story that she was raped by her stepfather and she answered in the affirmative. However, that was clarified in re-examination that she did not understand the questions when she gave the answers.
    

Documentary Evidence

Record of Interview dated 23/01/20 – Pidgin and English. Pidgin version Exhibit “A”

and English version Exhibit “A1”.

14. The record of interview was tendered by consent and marked as Exhibit “A” for the Pidgin version and Exhibit “A1” for the English version. In the Record of interview, the accused denied raping the victim so it’s not much of a help.
    

Photographs, Exhibit “B1” to “B6”

15. The six photographs were tendered by consent and marked as Exhibits “B1”- “B6” depicting the scene of rape.
    

Issue

16. There are two issues here to be determined as per the principle of No Case No Answer is concern as stated in the case of State v Paul Kundi Rape (supra) and the case of State v Roka Pep (No 2) (supra).
    
17. The first one is whether the evidence adduced by the state from its witness and the documentary evidence establishes all the elements of the charge of sexual penetration without consent under section 347(1) of the Criminal Code Act and the second one is whether the evidence so far adduced by the state is insufficient and lacking in weight that the court should exercise its discretion to stop the case here and not to call upon the accused to give evidence.
    
18. To answer the first issue, let’s look at the elements of sexual penetration without consent. The crime of sexual penetration without consent is created by section 347 (1) of the Criminal Code Act as amended chapter 262.
    

19. In State v Junior Apen Sibu (No 1) [2004] PGNC 209; N2549 (17 March 2004) Vanimo: Kandakasi, J. said that:

“The Criminal Code as recently amended by the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002[1] creates and defines the offence of rape in these terms:

"347. Definition of rape.

(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."

The amendments seek to clarify and introduce a new definition for rape and a penalty regime. However, in practice and in reality, it has always been clear and it continues to be so, that the offence of rape has a number of elements. These are:

1. A person who has;
   2. carnal knowledge or sexual intercourse or sexual penetration with a;
3. women or a girl;
4. without her consent

is guilty of the crime of rape.

The prosecution always has the burden to prove beyond any reasonable doubt every element of an offence in all cases that is prosecuted. The Supreme Court in SCR No. 1 OF 1980; Re s. 22A (b) of the Police Offences Act (Papua)[2] confirmed this. What this means in your case is that, the State had the burden to prove each of the elements outlined above beyond any reasonable doubt. The question for this Court to resolve then is, has the prosecution proved all of the elements of the charge of rape against you?”

20. Although the date of offence is not an element of the charge of sexual penetration without consent under section 347(1) of the Criminal Code as amended as stated by Kandakasi (as he then was) in the case State v Junior Apen Sibu (No 1) however it is still an essential ingredient of an offence or a crime for the State to proof the date of the offence or the crime was committed. The State cannot allege a date the allege offence or the crime was committed on the indictment without calling evidence to prove that this offence or crime was committed on this date.
    
21. In the case of State v Stanley Willie [2012] N4711 (11 June 2012), Waigani: Maliku AJ (as he then was) stated that:
    

“it has been said over and over by the courts that in any criminal matters tried before the court, the State must prove its case beyond reasonable doubt. One of the ingredients that the prosecution must proved beyond reasonable doubt is the date the alleged offence was committed or where the date of the commission of the offence was between such and such a date the State must adduce evidence to clearly show that the offence was committed between such and such a date, month and the year.

I do not agree because the element of the date the offence was committed is an essential one which evidence must be adduced to not only show but must prove. Furthermore, where the State alleges that the offence was committed between a such and such a date, evidence must also be adduced to prove that also.

In the present case, there is no evidence that the offence was committed on specific date nor there is evidence that the offence was committed between the 6th of January and the 26th of August of 2009 as alleged in the Indictment before the court. The acts of persistent sexual penetration alleged against the accused must be linked to the date it was committed or to period of dates it was committed.

I do not dispute that the child Xavier Francis Smith was six years old at the time the alleged offence was committed. I also do not dispute that the child's memory as regards to the specific date of the commission of the offence was fallible. Given the standard of proof required of the State in any criminal trial, which is beyond reasonable doubt, the State must satisfy the court of the essential elements of the offence including the date that the offence was committed”.

21. In this case it is very clear from the victim’s evidence that she cannot recall the date in which her stepfather raped her. She appeared to be a courageous young lady who was not afraid but honest in her evidence. She agreed and acknowledged that her stepfather was a good man who raised her up since she was two years old.
    
22. However, having observe her giving evidence in the witness box, I am of the view that she was not prepared well to give evidence in court. Prosecutors or any lawyer for that matter must prepare their witness well before they come into court to give evidence.
    
23. Applying the second principle or the limp of no case to answer in State v Pauul Kundi Rape and State v Roka Pep where a judge decides there is no case to answer, it has a discretion to stop the case at the close of all the evidence in appropriate circumstances, this discretion is exercisable where there is a mere scintilla of evidence and where evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it, I am satisfied that the evidence adduced by the State thus far does lack evidence on the date the stepfather raped the victim.
    
24. In my view there is no doubt that there is evidence that the accused did have sex with the victim, but the question is on what date? Even if I were to find that there is a case to answer against the accused and the accused is called upon to give evidence it will not improve the State’s case. For this reason, I am inclined to accept the no case to answer application by Mr Kirriwom on behalf of the accused that the State’s evidence thus far does not establish the date the offence was committed.
    

Order of the Court.

25. The no case to answer application is upheld and find the accused has no case to answer. Court further order that the accused be released from CS custody forthwith.

________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender