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State v Tuka [2021] PGNC 631; N9702 (10 November 2021)

N9702

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 240 0F 2017

BETWEEN:
THE STATE

AND:
RAYMOND TUKA

Vanimo: Rei, AJ
2021: 8^th, 9^th & 10^th November

CRIMINAL LAW – practice & procedure – no case submission – sexual penetration of a woman without her consent – corroborative evidence – Section 347(a) of the Criminal Code Act – accused acquitted.

Cases Cited:

Didei -v- The State [1990] PNGLR 458
The State -v- Anton Kumak [1990] N835
The State -v- Kalabus & Another [1977] PNGLR 87
R v Finch (1959) N146
Paul Kundi Rape - v - The State [1976] PNGLR 96

Legislation:

Section 347(a) Criminal Code Act

Counsel:

Ms. T. Aihi, for the State
Mr. P. Moses, for the Defence

DECISION ON NO CASE SUBMISSION

10^th November, 2021

1. REI AJ: This is a case involving the charge of rape laid onto the accused Raymond Tuka pursuant to Section 347(a) of the Criminal Code Act that he sexually penetrated a Jenny Godfried without her consent on the 5^th of April 2016 between 12 noon and 1 pm at Maka Camp Vanimo Forest Products premises.

2. The State called the only witness, the complainant and after she gave evidence the State closed its case. Mr. Moses made a no case submission saying that whilst she was asleep in her house at Maka Camp Vanimo Forest Product premises, the accused went into her house and sexually penetrated her without her consent.

3. She also gave evidence that the accused had sexual intercourse with her on two (2) occasions and on the second occasion she did not resist.

4. After allegedly having sexual intercourse with her, he wiped his penis with a piece of cloth and left and the complainant went to sleep without raising any alarm as to what happened to her.

5. She did not take steps to report the matter to the Police nor did she make any attempt to seek medical attention to corroborate her allegations of sexual intercourse without her consent.

6. She gave evidence that no threat or violence was used by the accused nor did he use any dangerous weapon at any stage of the alleged proceedings except that upon entering the house she said he covered her mouth with his hand stripped her and had sexual intercourse without her consent.

7. It was at 3 pm, some 2 hours later, when the husband returned from work and asked what had happened upon noticing traces of semen on the piece of cloth left which he found lying on the floor that she spilt the bean on him by saying that she had sexual intercourse with the accused earlier on in the day.

8. Then at 6 pm on 5^th April 2016; some 5 hours later, the complainant and the husband decided to report the matter to the Police.

9. The complainant did not of her own choice or volition went and make a report to the Police nor did she seek assistance either when the incidents unfolded nor after the incidents of sexual intercourse had taken place.

10. Although the complainant gave evidence that her mouth was shut by the accused to stop her from shouting or yelling for help, she did not resist the advances of the accused in any other way.

11. The house they lived in was built by the employer of her husband and many employees lived in that house.

12. But the complainant did not report the matter to even the other residents or tenants until the husband arrived and discovered the cloth which had marks of semen and enquired of her.

13. In all of the evidence she gave, there is no clear evidence that she did not consent to having sexual intercourse with the accused, as she said in her evidence.

14. From all the evidence adduced in Court, I am of the opinion that the complainant did consent to having sexual intercourse with the accused in the light of the following evidence she gave in Court:

• she allowed the accused to enter her house
• she had sexual intercourse with the accused on two (2) consecutive occasions on that day
• she did not resist the advances of the accused on the second occasion
• between the first and second sexual intercourse, she had ample opportunity to escape to alarm the neighbors but she did not
• she said she was weak, but even so, if she knew she did not consent, she should have raised the alarm immediately after the accused left but she did not do so and slept until her husband arrived
• even if she was weak, she had enough strength to have second sexual intercourse
• after the whole affair, she went to sleep and did not report to either the neighbors or the Police or medical practitioners
  

15. It was only when the husband raised issues that she report the matter to the Police some 5 hours later after the incident.

16. Although medical evidence is not the sole evidence which goes to prove the element of consent and should not be regarded as conclusive it is an important piece of evidence that goes to corroborate allegations of rape. It was not produced as one was not obtained.

17. These conclusions derived from the evidence given by the complainant demonstrate that there was consent.

18. The law relating and involving the charge of rape as provided for under Section 347 (a) of the Criminal Code Act is that, in order for it to be proven, there must be some evidence of force used by the accused resulting in the complainant submitting to the act of sexual intercourse amounting to unwillingness on her part to so submit herself.

19. The complainant did state clearly in evidence that the accused did not use any dangerous weapon to threaten her to submit. What she said was that he inserted his penis into her “market” and sexually penetrated her.

20. Evidence of corroboration is absent in this case. And the evidence of the complainant alone is insufficient: Didei -v- The State [1990] PNGLR 458 per Kapi DCJ, Sheehan and Salika JJ and The State -v- Anton Kumak [1990] N835 per Ellis J where the Court said that :

“Sexual offences of [this] kind represent a category of cases where there is a general rule of practice and there should be evidence corroborating that of the victim. This arises from the fact that the rape is a serious charge; easy to allege and difficult to refute: see The State -v- Kalabus & Another [1977] PNGLR 87 and R v Finch (1959) N146.....”

21. Applying the principles in the case of Paul Kundi Rape -v- The State [1976] PNGLR 96, I find that there is insufficient evidence for me to have the accused testify.

22. I therefore dismiss this case and acquit the accused of the charge of rape laid under Section 347 (a) of the Criminal Code Act.

23. The Court therefore makes the following orders:

• That the charge is dismissed
• That the accused is acquitted of the charge of rape under Section 347(a) of the Criminal Code Act
• That the accused be forthwith discharged from Vanimo CIS
• That bail of K1,200 is forfeited to the State on the basis that the accused jumped bail.

________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defendants