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State v Punini [2022] PGNC 581; N10171 (17 June 2022)

N10171

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1325 OF 2021

THE STATE

V

BELE PUNINI

Vanimo: Thoke, AJ
2022: 5^th February, 2^nd & 17^th June

CRIMINAL LAW- Practice and Procedure – Plea of Not Guilty -Section 347(1) of Criminal Code Act-Sexual Penetration without consent- Evidence corroborated- Prosecution witnesses proved beyond reasonable doubt- penetration without medical evidence- Accused convicted and awaiting sentence.

On the 20^th of April 2021, the Complainant Ms. Silvia Papo, who is mildly deaf and mildly dumb, was in the kitchen of her family’s home at Daunda Village in Vanimo, West Sepik Province. It is alleged that as she was trying to prepare family dinner, her cousin, the accused, Bele Punini, came into the house, in the disguise of needing fire to light his smoke, and raped her on the kitchen table.

Held:

1. In cases where the victim is mildly deaf and dumb, and therefore unable to give sworn evidence, a qualified interpreter is needed to interpret oral evidence accurately and comprehensively, as in this case.
   
2. The Complainant’s oral evidence and her sister’s evidence is sufficient to establish all 4 elements of Rape required under section 347 (1) of the Criminal Code Act.
   
3. The Accused denied sexual penetration of the victim, and asserted that he was merely in a normal conversation with her, which clearly dismisses logic, considering that the victim is mildly deaf and dumb, and cannot reciprocate accurately. Thus, I infer that he was there well aware of her disability, with the intention to take advantage.
   
4. The evidence of an eye- witness is suffice. In this case, the victim’s sister, Nomecka, who peeped through the window and witnessed the accused in the act of sexually penetrating her sister for a good 3 minutes, is sufficient to corroborate the victim’s evidence.
   
5. The Supreme Court ruling in the case of Peter Pung –v – the State, SC1510, clearly sets out the principle that the trial judge has the discretion to either reject or accept medical evidence or medical report, depending on the circumstances of the case. Medical evidence proving sexual penetration is not a mandatory requirement in sexual offence cases, hence lack of medical report in this case does not have a significant bearing on the outcome of this decision.
   
6. The State in this case has proved beyond reasonable doubt in proving all 4 elements of rape as required under section 347(1) of the Criminal Code Act.
   
7. As such, the accused is convicted of the offence of rape.
   

Cases Cited:

Papua New Guinean Cases

Peter Pung v The State,(2016) SC1510

The State v Luke Sitban (2004) N2572

The State v Kerehuto Bruce Sefo (2009) PGNC 126; N3744

Overseas Cases
Browne v Dunn (1893) 6 R 67 HL

Legislations Cited

Section 347 (1) of the Criminal Code Act

Counsel:

Ms. Linda Maru, for the State

Mr. Paul Moses, for the Accused

17^th June, 2022

1. THOKE AJ: This matter came before me on the 5^th of February 2022. The Accused Bele Punini of Daunda Village, Vanimo, West Sepik Province was charged under section 347(1) of the Criminal Code.
   
2. I quote section 347 (1) of the Criminal Code states:
   
   • (1) A person who sexually penetrated a person without his consent is guilty of crime of Rape.
     

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

3. The prosecution has the burden to prove beyond reasonable doubt, every element of the offence of rape. This principal is enunciated in the case of The State v. Flotyme Sina (No.1) N2540 and further confirmed by His Honour Kandakasi J (as then he was ) in the case of The State v Luke Sitban [2004] N2572. The elements of rape are:
   
   1. A person who;
   2. sexually penetrates;
   3. another person;
   4. without that person’s consent
      

is guilty of the offence of rape.

INDICTMENT & PLEA

4. The accused’s indictment was presented on the 2^nd June 2022 on one count of sexual penetration. It reads as follows:
   

“BELLE PUNINI of DAUNDA VILLAGE, VANIMO WEST SEPIK PROVINCE stands charged that he on the 20^th day of April 2021 at Daunda in Papua New Guinea sexually penetrated SYLVIA PAPO by inserting his penis into her vagina without her consent.”

5. Accused pleaded Not Guilty
   

BACKGROUND

6. It is alleged that at about 4pm on the 20^th of April 2021, the Complainant Ms. Sylvia Papo, who is mildly deaf and mildly dumb was in their family home kitchen at Daunda Village in Vanimo, West Sepik Province, trying to prepare family dinner, when her cousin, the Accused, Belle Punini came into the house, in the pretense of needing light for his smoke, and raped her on the kitchen table.
   
7. She tried hard to resist numerous times, however, he held her down, pulled off her trouser and covered her mouth with his hands to prevent her from screaming or yelling out for help. As she found herself helpless with her legs stretched out, he advanced into taking off his trouser and sexually penetrated her without her consent. Few minutes later her younger sister, Nomeka Papo, upon hearing strange sounds similar to that of a baby crying, walked in and sighted him penetrating her sister on the kitchen table. She watched in silence for 3 minutes and walked in and confronted him, while he was in the act. He pulled back and acted as if nothing just happened. Nomeka called out to her aunty, the owner of the household and instantly reported to the Police and he was subsequently arrested and charged thereafter.
   
8. The facts which are not disputed are as follows, according to the State’s submission.
   
   1. The Complainant Sylvia Papo is mildy deaf and mild dumb,
   2. Prior to the alleged incident or rape, Bele and his family and Sylvia and her family had a good relationship. They had never had any argument and or disagreement before,
   100. Sylvia and Bele are cousins,
   4. They are both from Duanda Village,
   5. Sylvia was in her kitchen at 4pm making fire to cook the afternoon meal,
   6. She was alone in the house at that time,
   7. The Accused Bele Punini came by while Sylvia was in the kitchen and asked for a burning wood to light up his cigarette,
   8. He was given the burning wood and he did light up his cigarette,
   9. After lighting his cigarette, he did not leave the kitchen,
   10. He was still in the kitchen with Sylvia when Sylvia’s small sister Nomeka arrived from town,
   11. Nomeka upon seeing Bele Punini in the kitchen alleged that Bele Punini sexually penetrated Sylvia; and
   50. The matter was reported to police on the same day; and
   13. Bele Punini was taken to the Police Station for questioning
       
9. Facts in dispute as submitted by State Counsel are as follows:
   
   1. That the alleged act of sexual penetration occurred on the 20^th of April 2021.
   2. The Accused Bele Punini held Sylvia by force and threw her on the kitchen table,
   100. The Accused removed Sylvia’s trouser and removed his own pants as well, and put Sylvia’s legs on his shoulders,
   4. The Accused then proceeded to insert his penis into her vagina and sexually penetrated her,
   5. While he was in the act- sexually penetrating Sylvia, Nomeka the younger sister, came by and caught him in the act,
   6. She questioned the Accused “Bele what are doing to Sylvia?”
   7. The Accused quickly pulled up his trousers and told Nomeka to shut up,
   8. Nomeka called the other relatives and told them that Bele had raped Sylvia,
   9. The Accused got angry and threatened to hit Nomeka’s head with an empty bottle.
      

THE STATE WITNESSES EVIDENCE

10. The Prosecution called two witnesses, the Complainant and her sister. Each gave sworn evidence as per their knowledge of what transpired during the time of offence.
    

1. First State witness- Ms. Sylvia Papo
   
   1. Ms. Sylvia Papo is the Complainant. She is mildly deaf and mildly dumb. She cannot speak or give evidence in trial using her own voice. However, she used the aid of a sign language interpreter, who translated it into English for the Court’s understanding. According to the Sign Interpreter, Sylvia Papo was about 24 years old at the time of rape. On 20^th April 2021, at about 4pm, she was in her family house at Daundu village, Vanimo, cooking sago. At that time, the accused Bele Punini came in the house and asked for ‘fire’ to light his smoke. The victim then handed a burning piece of wood from the fire. The Accused lit his smoke and gave back the burning wood.
      
   2. The Accused did not leave soon after, however continued to stay with her in the kitchen. The Accused then came closer to her and forced her to have sexual intercourse with him. She tried to resist, but he overpowered her and threw her onto the kitchen table and forcefully removed her trousers. He then removed his own trousers and attempted to penetrate her but she strongly resisted. After little bit of struggle, the Accused overpowered her resistance by holding her down. He then lifted her legs and placed them onto his shoulders and managed to put his penis into her vagina, sexually penetrating her. He also put his hands over her mouth blocking her from shouting or making noise, while in the act. She confirmed, she was sexually being penetrated with his penis. After a few minutes into the act, the younger sister, Nomecka Papo’s sudden entrance into the scene, brought that moment to a halt. The Accused quickly withdrew himself from his position and put his pants back on. He pretended as if nothing had just happened and threatened the sister from shouting or yelling.
      
2. Second State witness- Ms. Nomecka Papo
   
   1. Nomecka Papo is the younger sister of the victim. At about 4pm she arrived at her house at Duandu village, when she heard strange noises that seemed to be that of a crying baby. She carefully peeked around the house. When she got near the kitchen, she peeped through the window and caught the Accused, Bele Punini in the act of penetrating her deaf sister. She stayed there watching for about 3 minutes before she showed up right in front of the act in process and asked “Bele what are you doing to Sylvia?”. Without responding, the Accused, suddenly pulled his trouser up and resumed to normalcy. She added, “I will not shut up on what I witnessed”, and walked out of the kitchen, calling out to her aunty Benedette; “You people are in the house and you people did not see Bele sexually penetrating Sylvia.”
      
   2. Her uncle who came back from the beach at around the same time also questioned Bele and he just stood there without a word but guilty of what just happened. Bele got furious and wanted to hit her with an empty bottle. The Village Magistrate and her uncle immediately reported the matter to the police on the same day while the victim and her sister went to the hospital to do a medical check.
      

100. Rocky Kiryer
     
     1. Mr. Rocky Kiryer is the Investigating Policemen who conducted the Record of interview (ROI). He tendered the ROI to this Court to prove that the Record of Interview was properly administered, and the Accused denied committing the offence. Both version of the Pidgin and English ROI were tendered in this court as Exhibit 1 and Exhibit 2.
        

EVIDENCE BY DEFENCE

11. The Defence had only one witness, who is the accused himself.
    
12. Bele Punini, the accused, gave sworn evidence that, he was the only person with Sylvia Papo in the kitchen at the time the offence was committed. He stated he was with Sylvia Papo on the 26^{th of} April 2022 and not 20^th April 2022. He was there to light his cigarette and asked Sylvia for a piece of burning wood. After he lit his smoke, he was there casually just engaging in storytelling before her sister arrived from town and accused her of raping her sister on the kitchen table.
    
13. In cross examination, he maintained his story and that he the sister Nomeka fabricated the story. During the record of interview, he denied that he sexually penetrated Sylvia on the 20^th of April 2022.
    

SUBMISSION BY THE DEFENCE

14. Defence Counsel submitted that, the victim, Sylvia Papo is partly deaf and dumb, and that there is no clarity in her narrative given as evidence. In other words, the interpretation of language was not clearly interpreted by the Interpreter. As such, whether the victim was telling the truth about the Accused sexually penetrating her inside the house is difficult to comprehend.
    
15. The Defence further submitted that there is doubt about the date in which the incident occurred or when the Accused allegedly sexually penetrated her in her house. The victim and her witness said she was raped on 20^th April 2021, while the Accused said he went to the victim’s house on the 26^th April 2021. This is not true, as Record of Interview conducted on the 26^th of April 201.
    
16. The Accused was adamant he was not with Sylvia on the 20^th of April and he did not sexually penetrate her as confirmed in evidence by the victim’s sister, and second State witness, Nomeka.
    
17. The Defence further stated that, both the victim and her sister Nomeka’s evidence are similar in which it can only be believed without medical evidence corroborating or proving sexual penetration. Defence is of the opinion that without a medical report tendered as Exhibit, one cannot establish that sexual penetration actually took place and that the narrative provided by the victim and her sister as witness is questionable.
    
18. Defence Counsel also referred the Court to Division 2A of the Criminal Code which provides for sexual offences committed against children, quoting section 229H
    

“On a charge of an offence any provision of this Division, a person may be found guilty on the uncorroborated testimony of one witness, and a Judge shall not instruct himself that it is unsafe to find the accused guilty in the absence of corroboration.”

19. Defence Counsel added that the provision applies only to victims whose age range from 1-18 years. This provision does not apply to section 347 of the Criminal Code Act, in which victims of rape falling between the age range of 1-18 and that the court must caution itself on the evidences given by the victim and her sister since there is no medical evidence to support penetration.
    
20. Defence also stressed that since the victim and her sister Nomeka went to Vanimo General Hospital to medically prove sexual penetration soon after the incident, a proof of medical evidence supporting sexual penetration should be tendered.
    
21. Finally, Defence Counsel submitted that the State has failed to prove beyond reasonable doubt element of sexual penetration and that the Accused be acquitted and discharged.
    

ISSUES FOR THIS COURT’S DETERMINATION

22. The issues for the Court to consider are:
    
    1. Whether or not the evidence before the Court has established all the elements of the offence of Rape, defined under section 347 (1) of the Criminal Code.
    2. Whether or not the Accused can be convicted of rape without a support of medical evidence of proving the element of penetration.
       

ISSUE 1: Whether or not the evidence before the Court has established all the elements of the offence of Rape, defined under section 347 (1) of the Criminal Code.

23. Whether or not the evidence before the Court has established all the elements of the offence defined under section 347 (1) of the Criminal Code, depends on the evidence of the victim herself.
    
24. Firstly, her demeanor during sworn evidence or cross- examination was consistent with her narrative. She expressed herself with ease and confidence at the same time from a place of fear and having endured a terrifying experience, whereby the Interpreter (sign language interpreter) gave a cohesive recount of what transpired at the scene during the time of offence.
    
25. The defense’s stance on the difficulty of understating the victim Sylvia Papo’s evidence lacks credibility. Her demeanor and sign language during trial gave an exceptional impression that she had a traumatic experience, although she could not fully express herself in words. It was obvious for anyone to understand, as much as I did from the bench. The Interpreter also did a good job in her translation of sign language to words for the Court’s understanding.
    
26. The question that comes to my mind is, why didn’t the accused leave quickly after having his cigarette lit? Why was he still there engaging in a conversation with someone who has a disability that can’t facilitate a conversation of any kind? I am of the opinion that the accused had a hidden motive or found it as an opportunity to take advantage of the victim, being well aware of her disability. If the accused had gone to her home purposely to lit his cigarette, he would have done so and left soon, without finding any reason to stay longer than he did at that time. Given the fact that the victim is a deaf, there was no reason for him to stay, let alone asserting to be engaged in a dialogue with a deaf is utterly frivolous.
    
27. As stated earlier, I accept the evidence of the victim. Her evidence exposes what actually occurred during the time of offence. I am satisfied with her evidence that the accused applied force and coercion to sexually penetrate her, taking advantage of her inability to express herself vocally or give off a scream, despite her physical efforts to resist him. I am also satisfied that the accused, managed to successfully undress her pants and sexually penetrate her, without her consent. Her sister, Nomeka Papo heard strange noises and murmurings from her refrains and struggle to push off the accused from having physical control over her, and peeped through the window to settle her curiosity, and fortunately was able to witness the despicable act taking place in their home.
    
28. This is where the issue of whether the victim, Sylvia’s Papo’s evidence is corroborated by Nomeka’s evidence. I am satisfied with Nomeka’s evidence that, upon hearing strange noises, she peeped through the window and witnessed the accused sexually penetrating her sister. I am satisfied with her evidence that she stood there watching for 3 minutes before interrupting the act. She was able to witness everything and gave a proper recount consistent with her demeanor during trail. She is a key witness here and her evidence suffices to establish that sexual penetration took place.
    
29. It is important to also note that the rule in Brown v Dunn (1893) was not applied in cross - examination, whereby the defence did not put the accused’s version of the story to the state witnesses and give them the opportunity to confirm or deny his version of evidence. This also goes to show the lack of credibility in the accused’s evidence.
    
30. The case of The State v Sitban (2004)N2572, by his Honour Kandakasi J (as then he was ), enunciates the importance of fairly heard trial, that in order for a party’s claim to have credibility, he must in fairness, put his case or claim to the other side’s witnesses by way of cross-examination. Hence, the Defence’s failure to cross- examine Nomeka, also adds to their failure to establish the accused’s innocence.
    
31. This brings us to the second issue; whether or not the accused can be convicted of rape without a support of medical evidence of penetration?
    

ISSUE 2: Whether or not the Accused can be convicted of rape without a support of medical evidence proving the element of penetration.

32. In the State v Kerehuto Bruce Sefo [2009] GNC 126; N3744, His Honor Late Justice Kirriwom enunciated that a medical evidence is not required especially when an eye witness corroborates it with more evidence. I quote paragraph 28 for ease of reference:
    

“28. Absence of medical report is no reason to find no sexual penetration. The victim gave sworn testimony and told the court what the accused did to her. The accused was identified by the victim’s cousin AB who saw him leave with her and the victim never came home until the next morning and there is evidence of recent complaint to the mother. Being alone with the accused in a strange place and away from any form of life nearby to raise alarm gave perfect opportunity for the accused to rape the victim which he did. There is strong circumstantial evidence that supports opportunity for sexual penetration. I accept the victim’s evidence of sexual penetration both of both vaginal and anal sex.”

33. Moreover, late Kirriwom J goes to add that lack of medical report is not fatal to convict an offender for sexual penetration and that often-medical report provides corroborative evidence to the complainant’s allegation but corroboration is not necessary in proving sexual penetration.
    
34. This case is analogous to the nature of circumstances with the above case, and I must say, it goes well in addressing the issue on the insignificance of the medical report in this case, given the evidence of the two state witnesses.
    
35. I also refer to the Supreme Court case of Pung v The State, (2016) SC1510. In this case, the medical report did not necessarily prove beyond reasonable doubt the nature of incident of events that followed suit, during the time of offence. I quote paragraph 37 and 38 of the judgment, in which the court put to the Doctor on whether the medical report would justify the evidence given by the victim.
    

“37. The Court has also considered the medical report and the Court has decided to give no weight to it because questions raised was not satisfactorily answered by the medical witness. The doctor who examined the victim and wrote the report is no longer in the country”.

38. In our view, it was open to the trial judge to accept or reject either in part or wholly the medical evidence including the medical report. The mere fact that the trial judge had allowed the medical report to be admitted into evidence did not necessarily mean that the trial judge was duty bound to accept either in part or in the whole the evidence contained in the medical report. He chose not to rely on the medical report and rejected it on the basis that the author of the report had not been called to give evidence and be cross-examined. He also chose not to give weight to the Dr’s evidence. He has given reasons why he rejected this piece of evidence.”

36. Also, in the case of The State v Luke Sitban (2004) N2572, his Honour Kandakasi, J (as then he was), convicted the accused who was charged for rape without proof of medical evidence or medical report. He further elaborated that, where there is sufficient or overwhelming evidence by the State witnesses. A medical report is not needed to establish the elements of sexual penetration.
    
37. Hence, upon application of the above principles in this case, I am satisfied that there is no need for medical proof, when the State witnesses have given a consistent and thorough recollection of everything that transpired as evidence under oath. That is sufficient evidence proving the act of sexual penetration. The discretion lies with the trial judge in instances where there is overwhelming evidence given by the State witnesses. This principle is expressed in the Supreme Court ruling of Peter Pung v the State (2016) SC1510, as mentioned prior:
    

“In our view, it was open to the trail judge to accept or reject either in part or wholly the medical evidence including medical report.”

DECISION SUMMARY

38. As such, in this case there is no question in the evidence of the victim and her sister Nomeka. The lack of medical report does not have a fatal bearing in proving the elements of penetration, as affirmed in the cases discussed.
    
39. I therefore, accept the evidence of the complainant, Sylvia Papo, and her sister Nomeka Papo. Their evidence proves beyond reasonable doubt that the accused, Bele Punini, did sexually penetrate Sylvia Papo, without her consent contrary to section 347 (1) of the Criminal Code Act.
    
40. Accordingly, the Accused is found guilty.
    

ORDERS

41. The final orders of the court are as follows:
    
    1. The accused is guilty of the charge of Sexual Penetration contrary to s.347(1) of the Criminal Code.
       
    2. Bail money of K2000 shall be refunded.
       
    3. Prisoner shall be remanded at Vanimo Correctional Institute awaiting sentence.

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