State v Sikai [2023] PGNC 214; N10363 (2 May 2023)

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CRIMINAL LAW – Trial – sexual assault contravening s.349(1)(4) – rape contravening, s.347 (1)(2) – circumstances of aggravation.

Counsel:
Ms. Elsie Kariko, for the State
Mr. Bernard Popeu, for the Accused

(a) touches, with any part of his body, the sexual parts of that other person; or

Penalty: Subject to Subsection (4), imprisonment for a term not exceeding five years.

3. The respective provisions for the charge and the penalty for rape are stipulated in the Criminal Code and reads:

4. When the expression “sexual penetration” or “sexually penetrates” are used in the definition of an offence, so far as regards that element of it, is complete where there is-

5. The accused Elvis Solo Sikai is the eldest biological brother of the complainant, Sharmaine Sikai. At the alleged time of the incident, they both resided at Hohola in a 1-bedroom house, along with their two (2) uncles.

6. On the 3 of June 2020 at around 2:00am, the complainant was at home in the room when the accused who was drunk entered the room. He lay down beside her and touched her breasts without her consent and then fell asleep. The complainant was afraid and moved away. The complainant did not tell anyone as she felt ashamed and afraid.

7. On the 7 June 2020 during the early hours of the morning, the complainant was asleep and woke up to the accused touching her waist. She struggled to get free, but the accused hit her and then used one hand to squeeze her vagina and inserted his finger without her consent. The accused further inserted his penis into her vagina until he ejaculated. He did so without her consent. The complainant was afraid of the accused. Soon after, the accused again forced his penis into the complainant’s vagina without her consent until he ejaculated in her vagina. The complainant struggled to free herself but was overpowered by the accused and was afraid of him.

8. When the accused went off to sleep, she escaped to the laundry room outside and later escaped to Hohola Market where she met a neighbour and told them about what happened. The accused was confronted by the neighbours and then taken to the police where the matter was reported.

9. The State says that the conduct of the accused against the complainant was non-consensual, unlawful and contravenes section 349 (1)(a), section 347 (1)(2) and section 349A(f) of the Criminal Code.

10. The accused pleaded not guilty to both charges of sexual assault and rape during the arraignment.

No.	DOCUMENT	EXHIBIT NUMBER	COMMENT
1	Record of Interview of Elvis Solo Sikai (Tok Pisin and English version) (4 pages) dated 11^th June 2020	S1	Tendered by Consent
2	Statement of Corroborator Constable Cathy Peter (English version) (1 page) dated 12^th June 2020	S2	Tendered by Consent
3	Statement of Investigating Officer Constable Adrianna Kamasunga (English version) (1 page) dated 12^th June 2020	S3	Tendered by Consent
4	Statement of Constable Samuel Koi, (English version) (1 page) dated 12^th June 2020 including Photographs marked 1 – 5.	S4	Tendered by Consent
5	Affidavit of Dr. Thomas Aiyaka dated 8^th July 2020 annexed with Medical Report by Dr. Aiyak dated 8^th July 2020	S5	Tendered by Consent
6	Statement of Biso Wani dated 16^th June 2020	S6	Tendered by Consent
7	Statement of Kiso Wani dated 16^th June 2020	S7	Tendered by Consent

12. The State called the complainant Sharmaine Sikai who gave sworn evidence in English with special measures allowed under s.37B of the Evidence Act. The following is the summary of her evidence.

13. The complainant, Sharmaine Sikai from the Autonomous Region of Bougainville (AROB) and Southern Highlands Province, and now resides at Manu and not working. She told the Court that she knows Elvis Solo Sikai, her oldest biological brother out of 6 siblings. She told the Court that following their father’s death in 2003 the family moved to AROB but then in 2007 she moved to Melbourne, Australia and stayed with her uncle George Sikai until 2015. Upon returning to the country, she went to stay with her mother in AROB until 2019 when she was sent to Port Moresby because her life was threatened as a result of her speaking to a married man named Christus. She told the Court she did not know he was married and did not continue anything with him after she came to Port Moresby. In 2019 the complainant stayed with accused at 8 mile and in 2020 they both moved to Hohola to live with their two uncles. They lived in a concrete-built house with 1-bedroom and a living room. She slept in the one room with the accused separated by a cupboard in the middle. The two uncles slept in the living room.

14. She told the Court that her brother was abusive and controlling since she came over to Port Moresby from AROB in 2019. She gave evidence of an award of A$5,000.00 given by a Victorian Court which caused a bit of friction between herself and the accused. She gave evidence that the money was in her account, but the accused was the custodian and controller. She told the Court that she was only given K100 and a pair of shoes out of that money.

15. She gave evidence that on the 3 June 2020 she was asleep when the accused came home at about 2 am and laid down beside her and touched her closer around her waist and then fell asleep. He was drunk. The complainant was afraid and moved away. The complainant did not tell anyone as she felt ashamed and afraid of the accused.

16. On another occasion on the 7 June 2020 between 4am – 5am she gave evidence that the accused came home entered the room and forced himself onto her, threatened her and squeezed her throat. She told the Court that she told the accused to stop but he got angry and squeezed her vagina. She felt that he scratched her. She said she felt pain. She told the Court that when the accused started touching her breasts, hands and moved it down to her pants he told her that he would hurt her if she made noise. She said she was crying and begging for him to stop but as he was drunk and smelt of alcohol and ignored her. She gave evidence that said she struggled but could not free herself. She told the Court she was afraid of him because of his abusiveness when not drunk and in his then drunken state, he could have hurt her or even worse. When asked if he asked for permission from her to do what he did, she said “No,”. She gave evidence that the accused then told her “Because of me you are where you are, and before you go to your man’s house, I’ll get your first’. He laid on top of her forced his penis into her vagina without her consent twice and he ejaculated twice. In her evidence in chief, she stated that after the accused penetrated her, he said “I did this because I am angry with you”. She told the Court that she was overwhelmed, shocked and disgusted.

17. It is her evidence that after the ordeal, the accused went out to have a smoke and then came back. She waited for the accused to fall asleep. She said she felt uncomfortable and sticky between her legs, so she went to rinse herself in the toilet outside and then she ran to the freeway to seek help. She told the Court the complaint was laid that day at the police station, that she went to the hospital for a medical check and later gave her story to the police. She told the Court she did all of that on the same day and felt many emotions while writing her story. She told the Court that when writing her police statement, she felt shocked, confused, disgusted, and betrayed.

18. In cross examination defence counsel questioned her about inconsistency in her prior Statement given to the Police. She answered in response that the accused called his wife’s name Vali through the window and not when he penetrated her. She also clarified that while in the Statement she mentioned 3 incidents, she only reported 2 to the police. She was asked why she said accused swore and slapped her in the Statement and not in evidence, and she responded that that she was slapped on the cheek the accuse swore “kan” to her when she was asleep. She was adamant that Elvis Solo Sikai lied about coming home at 5. She confirmed that it was Elvis who called her name at or near the Freeway in the morning following after the rape on the 7 June 2020.

19. She told the Court that her family wanted her to drop the case, but she went against them. She said the rape did not happen to them it happened to her and why would she lie and ruin their relationship. To them they think it’s not a big enough matter. She said she feels betrayed by her own mother, family and brother and in tears she asked, “how can anyone be like that”. She said she was ashamed, and her dignity ruined. She also gave evidence of an incident before the date of the offences where she slashed her left arm with razor blade. She told the Court that she had enough of the physical assaults and over controlling behaviour of the accused and wanted to end her life.

20. Defence called the accused Elvis Solo Sikai who gave sworn evidence in the Pidgin language. He basically denied both allegations against him.

21. In relation to Count 1 he said on the 3 June 2020 he was not at the residence as he had worked night shift from 8pm-8 am at Vitis company. He denied that he called out to her from the window and that he did not sleep next to her nor touched her “bottom part”.

22. As to Count 2, the accuse told the Court that on the 6 June 2020 he rested then woke up and drank till daybreak. He said he was on the street with the boys some 1,000 meters away at Hohola 3. He told the Court that he did not return home until between 5 am on the 7 June 2020 and went to sleep.

23. He gave evidence of how he was supposed to have gone to live with his paternal uncle in Melbourne but had to give it up so in his stead the complainant went.

24. Bulk of his evidence however was about the complainant’s trouble past and her being untruthful and needed to be disciplined. He told the Court that he had to control her movements and her money. His evidence is that physical discipline was necessary against the complainant because she never listened to simple instructions. He gave evidence of physical violence upon the complainant by hitting her for not preparing food and “whipping” her after he got her back from the overhead Tunnel near Central Waigani. He also gave evidence that he even threw her out of the house and told her she was a liability. He confirmed that after that assault on her, the complainant slashed her left arm with a razor.

25. When asked in cross examination whether he cared for the complainant and why she did not take her to hospital after she slashed her left arm with a razor, he responded that he did not think it was a serious wound. Relating to the $500.00 awarded by the Australian Court the accused stated in his evidence that it was compensation money for their late paternal aunt Miriam Sikai.

26. The elements of the charge of sexual assault contravening s.349 (1) (4) of the Criminal Code, are:

(i) A person who- the complainant gave sworn evidence that Elvis Solo Sikai was identified as the complainants’ biological brother and the offender. He confirmed his identity in his sworn evidence and in his Record of Interview.

(ii) without a person’s consent - the complainant told the Court that when the accused placed his hands around her waist, she felt shocked and scared. She did not consent to the accused lying down beside her. She told the Court that she felt shocked because the accused actions were unexpected. She told the Court that she was scared because he was drunk and if she said no, he would get mad or angry and unwanted as the accused told the Court she moved away.

(iii) touches, with any part of his body, the sexual parts of that other person – the complainant’s evidence is that the accused laid down beside her and put his hands around her waist and pulled her close and went to sleep.

26. The elements for the charge of rape and supporting evidence are as follows:

(ii) who sexually penetrates a person - the complainant gave sworn evidence that the accused on the 7 June 2021 between 4am – 5am came home and forced himself on her without her consent. She gave evidence that after the accused had touched her body all over, including her breasts, he then put his hands down her pants and scratched and squeezed her vagina. She felt that he scratched her. She said she felt pain. Then without her consent, the accused removed her shorts and his shorts and raped her. She said he put his penis into her vagina not once but twice.

(iii) without their consent – the complainant gave good and clear evidence that on the 7 June 2020, the accused entered the room and forced himself onto her. She said she was crying and begging for him to stop but he was drunk and smelt of alcohol and ignored her. She told the Court that when the accused started touching her breasts, hands and moved it down to her pants he told her that he would hurt her if she made noise. She told the Court that she told the accused to stop but he got angry and squeezed her vagina. She gave evidence that the accused then told her “Because of me you are where you are, and before you go to your man’s house, I’ll get you first’. He then forcefully penetrated her and then pulled out and then penetrated her a second time. She said he ejaculated on both occasions. When asked if he asked for permission from her to do what he did, she said “No,”.

27. The issue before the Court is whether or not the accused sexually assaulted the complainant on the 3 June 2020 and further whether he raped the complainant on the 7 June 2020.

28. The evidence comes directly from the complainant as the offences were perpetrated upon her by the accused. Her evidence is direct and clear as she told the Court in relation to the sexual assault and rape.

29. Her evidence pertaining to the 3 June 2020 incident is that the accused laid down beside her and placed his hands around her waist and slept. She did not consent to the accused lying down beside her and touched her as described. She said she was shocked and scared as the accused actions were unexpected. She told the Court that she was especially scared because the accused was drunk and if she said no, he would get mad and unwanted as the accused told the Court. She told the Court that after he fell asleep, she moved away.

30. The evidence of the 7 June 2020 is that the accused had squeezed and scratched her vagina to get her to submit and touched her breasts without her consent. The accused removed her shorts and his shorts and raped her. She said he put his penis into her vagina two times and ejaculated with seconds or minutes apart. She said she did not consent to his penetrating her. That accused was drunk and she was scared and shocked.

31. Section 6 (a) (b) of the Criminal Code are both satisfied in terms of this provision in that penetration is complete upon mere introduction -

(a) to any extent, by a person of his penis into the vagina, anus or mouth of another person; or

(b) to any extent, by a person of an object or a part of his or her body (other than the penis) into the vagina or anus of another person, [ other than in the course of a procedure carried out in good faith for medical or hygiene purposes.]”

32. The scratching and squeezing actions on the vagina involve element of digital penetration no matter how small it may be. Here penetration is complete both in terms of s. 6 (a) & (b) of the Criminal Code. Canning J in State v Kulami [2009] PGNC 273; N3632 stated:

“sexual penetration which is defined by the Criminal Code to include the introduction to any extent,,,”

33. The complainant’s testimony followed a timeline of when she was young and lost her father up to living in Melbourne with her father’s brother. Her returning to Port Moresby at 15 years of age and on to AROB and then moving to Port Moresby as a 19-year-old in 2019 and the sexual assault and rape in 2020. Her evidence illustrated a build-up of abuse against her by her brother, the accused. She told the Court that they initially resided at 8 Mile and that her brother was strict and controlling in terms of her socialising and her finances. She told the Court of the controlling behaviour of the accused including barring her from socialising in the neighbourhood, particularly the market table and the physical assault for talking to a male neighbour, for not preparing food for the table and assault upon her following her hold up at Central Waigani in early 2020.

34. The complainant was able to give evidence of two distinct instances involving one of sexual assault the other one of rape respectively on the 3 June 2020 and the 7 June 2020 consistent with the allegations contained in the Brief Facts prepared by the State. She gives detailed accounts of those alleged instances, about the date, time and the crime scene.

35. Even during cross examination when she was questioned about her past associations, she did not lie about it, she admitted it, even though it has no relevance to the indictment. Defence went through great length to try to establish a case of her troublesome background and about her propensity to lie and to discredit her.

36. The complainant remains steadfast in her evidence of what happened to her. She shows an unwavering strong character to give evidence of intimate details of what she says the accused did to her. I ask what does it profits her to lie?

37. This brings me to how the Courts have dealt with credibility of testimonies of victims of sexual assault, rape and the like. Courts have been consistent in its views which I will not depart from. The complainant in this case was the alleged victim of the sexual abuse and so she was able to give her account of what the accused did to her. As stated by His Honour Kirriwom in The State v Francis Tigi [2013] PGNC 114; N5307, only the victim can relate to what occurred to her:

“Only she was qualified to reveal them from her own experiences. Personal experiences cannot be made up by somebody else and planted in someone’s mouth.”

38. This view is affirmed by Berrigan, J in State v Lolo Belami [2021] PGNC 73; N8821 at paragraph 53:

“Only the victim knows the horror of the crime itself, and only she fully appreciates its terrible legacy”.

39. It does not make sense for her to put herself through the trouble and pain of reliving the painful events. She told the Court how she felt and what she was thinking at the time, despite being under distress when giving sworn evidence.

40. The accused has an air of aloofness about himself sitting with his hands folded. He was the star attraction the Court was merely the orchestra if I may use the pun. He did not look directly at the Judge in his answers. He was taking forever to answer simple questions. When asked about the rape and how abusive he was, he was evasive and at one point delved into Bible verses to proclaim his innocence and not, caring to answer the questions put to him. During cross examination, he became very defensive and evasive and started asking the bar (State) questions instead of answering. I interjected a few times to remind him to answer questions.

41. He denied both allegations of the 3 June 2020 and 7 June 2020 and said that he was not at home. He told the Court that on the 3 June 2020, he was on night shift from 8 pm to 8 am. In relation to the 7 June 2020 incident, the accused gave evidence that on the 6 June 2020 he was drinking with friends about 1000 meters away from the house and came home to sleep at about 5 am on that morning of 7 June 2020. He said he was asleep when people came around and told him about the rape allegations against him and got him arrested.

42. Defence went to great length to illicit evidence of the complainant’s past behaviour and to paint a picture of a troublesome girl prone to lying. These are irrelevant evidentiary materials but illustrate the extent to which the accused went to discredit the complainant’s evidence and to play a blame game upon her.

43. In considering the credibility and weight of evidence the test is one of weighing the evidence of the complainant against that of the accused. Credibility is assessed on the basis of common sense and logic which is the litmus test in determining whether a witness is credible and therefore his or her evidence is truthful or credible, see State v Niningan [2003] PGNC 136, N2360; State v Cosmos Kutau & Or (no.1); N2266.

44. The complainant was shy and nervous when giving her evidence. In her evidence in chief, she gave direct evidence of what happened to her on the two occasions. She did not deviate, even during cross examination. During her testimony I observe that she became emotional and appeared hesitant to recount the details of the actual sexual abuse, but she answered the questions properly and honestly. Clearly, she was revisiting past traumatic experiences and was recounting intimate details of her sexual abuse and violation. Despite all these she was steadfast to her story of the sexual abuse. In State v Francis Tigi [2013] PGNC 114; N5307, His Honour Kirriwom stated: “Only she was qualified to reveal them from her own experiences. Personal experiences cannot be made up by somebody else and planted in someone’s mouth”.

46. Her testimony is the primary evidence of the sexual assault and rape comes from the complainant as she was the very person whose body was violated by the accused. The accused on the other merely denies but did not rebut the testimony by the complainant about allegations of rape and sexual assault. This means in this case that the Court must only assess the complainant’s story whether it is credible based on the weight of the evidence.

47. Did she lie and made the whole story up? What would be the motive or in other words, were there enough reasons to cause her to lie the about sexual abuse and rape, thereby laying bare in public the violation of her personal liberty and dignity. There is no logic and common sense in a person to lie and no evidence have been led by the accused as to any motive.

48. Apart from his alibi evidence which I will deal with later, the accused main evidence is cantered around proving that the complainant has a propensity to lie. It must be said that in answer to the reason for leaving Melbourne she did say that the uncle was overbearing, bias in favour of his children and was selfish. In respect of the AROB incident she did admit to talking to a Kristus once and that she did not know that he was married. About the razor blade slashing of her left hand, the complainant said that she had enough of the physical violence and hard discipline by the accused and thus she wanted to end her life.

49. The answers given to these questions posed to her by the defence illustrate to me that she possesses a character of a person who is confident of her actions and can assess what is right from wrong. She did not try to cover up or lie when answering questions dealing with her perceived negative character.

50. As a general rule, evidence of the character and prior behaviour of a rape victim are inadmissible. Where it is raised by the accused it is for the Court to consider its relevance and adds to the question of credibility and weight of evidence. As the Court is a tribunal of truth, it is incumbent upon me to consider the evidence in light of common sense and logic. Just because somebody may have a questionable character it does not follow that he or she is a liar. My view is that it does not follow. The danger for the accused to use that kind of logic is that therefore he is justified to have committed the physical assault and rape.

51. Section 37G of the Evidence Act states, “In a proceeding with respect to sexual offence, evidence of the sexual reputation of the complainant whether general or specific, is not admissible.”

52. The demeanour of a witness which often indicates whether a witness is telling the truth or lying: Balbal v State PGSC 16; SC860.

53. My observation of the demeanour of complainant throughout her oral testimony shows a person who has undergone traumatic experience. She cried at instances where she had to recall the traumatic experience she was recounting to the Court. Otherwise, she gave her evidence at a steady pace and spoke with confidence. The accused on the other hand was evasive, aloof and tries to distance himself from the incidents.

54. In considering those two factors, it is for the Court to consider and accept whose evidence is truthful and credible. I am satisfied that the complainant’s evidence is more convincing because of her honesty, the details of her story and her demeanour.

55. I find the evidence of both Weni Biso and Kiso Weni to lack probative value. They both said they were drunk that night and came home and slept. Both assumed the complainant was asleep. Kiso Weni said when he came home at about 11-12 am on the 7 June 2020 he saw the accused drinking “on the road” but did not talk to him but pass by and came to the house.

56. Section 352A of the Criminal Code specifically states that on a charge of an offence against any provision of this Division, (Division 7) a person may be found guilty on the uncorroborated testimony of one witness, and a Judge shall not instruct himself or herself that it is unsafe to find the accused guilty in the absence of corroboration.

57. The evidence of the complainant alone is credible, and it is further corroborated by the Medical Report by Dr. Aiyaka that there were obvious bruises on the neck where he pressed to choke her that was tendered in as States evidence by consent. I consider the issue of wrong date not crucial in light of the complainant’s evidence that she went to for medical check soon after 7 June 2020 after reporting the rape to the police. Also, the evidence of “sperm/ semen like stuff” raised by defence as not conclusive, is not vital in a charge of rape . Proof of ejaculation and sperm are not vital to prove penetration.

57. It is in evidence that the complainant and accused are related by blood having the same mother and father. The accused is the first born and the complainant is the fourth born in their family. This blood relationship is a circumstance of aggravation in the language of Section 349A (f) of the Criminal Code, “the accused is a member of the same family or clan as the complainant;”

58. The accuse failed to file his Notices of alibi for both occasions. Order 8 Rule 3 of the Criminal Practice Rules 2022 requires such filing within 14 days of trial. Secondly, he did not call any alibi witnesses. His alibi evidence was brief and unconvincing. If he really wasn’t there on the two occasions of rape and sexual assault, and really cared about proving his alibi and defending his innocence, he should have adduced evidence in his support from one of his friends he says he was drinking with on the night of 7 June 2020. Also, he did not provide any evidence before the Court about his purported night shift on the 3 June 2020 or his arrival at the residence in the morning to corroborate his alibi. I reject his purported statement of alibi.

59. The elements of the charge of rape are proven. Consent under s.347A of the Code means free and voluntary agreement. The State has proved beyond reasonable doubt that the complainant did not freely and voluntarily agree to being sexually penetrated: State v Levo, [2015] PGNC 23; N5902.

National Court of Papua New Guinea

State v Sikai [2023] PGNC 214; N10363 (2 May 2023)