N10803

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 523 OF 2021

BETWEEN:
THE STATE

V

MICHAEL EARLEY DAURE
Accused
of
BUTIBAM VILLAGE, LAE, MOROBE PROVINCE

Lae: Polume-Kiele J
2021:	30th July, 1st September, 1st October
2022:	1st March, 9th May, 3rd October
2023:	7th February, 8th, 15th March, 11th April, 5th, 9th, 13th June, 17th July, 7th August, 5th, 7th, 8th, 19th, September, 3rd October, 6th November, 5th December
2024:	6th February, 18th March, 3rd & 19th April

PRACTICE & PROCEDURE - Trial – Three (3) counts of Aggravated Rape, s347 (1) (2) – Criminal Code Act - No Case Submission – Principles governing no case submission –Identification uncontested- Issue is whether on the basis of the evidence as it stands can the accused be lawfully convicted- Accused has a case to answer.

Cases Cited:

Papua New Guinean Cases
Paul Kundi Rape [1976] PNGLR 96
The State V. Roka Pep (No.2) [1983] PNGLR 287
The State v Misimb Kais [1978] PNGLR 241
Maiyau v The State (2017] SC1644
Balbal v The State [2007] PGSC 16; SC860 
The State v Pasika [2005] PGNC 178
The State v Ipai [2010] N3972 
State v Moro [2011] N4906
State v Manak [2022] N10339
State v Undamu [1990] PNGLR 151
The State v Angela Colis Towavik [1981] PNGLR 140

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

Counsel
Ms. S Joseph, for the State 
Mr. E Mambei, for the Accused

RULING ON “NO CASE TO ANSWER”

19th April 2024

1.	POLUME-KIELE J: An indictment was presented against the accused MICHAEL EARLEY DAURE on the 9 of June 2023 charging him with three counts of aggravated rape contrary to Section 347 (1) (2) of the Criminal Code (as amended).

The Charge

2.	The penalty provisions under s 347 (1) (2) of the Criminal Code are: 

"347. 	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. "

"347A 'MEANING OF CONSENT.

(1) 	For the purposes of this Part, consent means free and voluntary agreement.

(2) 	Circumstances /11 which a person does not consent to an act include, but not limited to, the following'-

(a) 	The person submits to the act because of the use of violence or force on that person or someone else; or

(b) 	The person submits because of the threats or intimidation against that person or someone else; or

(c) 	The person submits because of fear of harm to that person or to someone else; or

(d) 	The person submits because he is unlawfully detained; or

(e) 	The person is asleep ,unconscious or so affected by alcohol or another drug so as to be incapable of freely consenting; or

(f) 	The person is incapable of understanding the essential nature of the act or of communicating his willingness to participate in the act due to mental or physical disability; or 

(g) 	The person is mistaken about the sexual nature of the act or identify of the person; or

(h) 	The mistakenly believes that the act is for medical or hygienic purposes: or

(i) 	The accused induces the person to engage in the activity by abusing a position of trust, power, or authority; or

(j) 	The person, having consented to engage in the sexual activity. express, by words or conduct, a lack of engage to continue to engage in activity; or

(k) 	The agreement is expressed by the words or conduct of a person other than the complainant.

(3) 	In determining whether or not a person consented top that act that forms the subject matter of the charge. a judge or magistrate shall have agreed to the following: 

(a) 	The fact the person did not say or did not do anything to indicate consent to a sexual act is anally enough to show that the act took place without the person’s consent; and

(b) 	A person is not to be regarded as having consented to a sexual act just because –

(i) 	He did not physically resist; or

(ii) 	He did not sustain physical injury; or

(iii) 	On that or on an earlier occasion. he freely agreed to engage in another sexual act with that person or some other person.

"349A.	INTERPRETATION

For the purposes of this Division, circumstances of aggravation include, but not limited to, circumstances where-

(a) 	The accused person is in the company of another person or persons; or 

(b) 	At that time of, or immediately before or after the commission of the offence, the accused person uses or threatens to use a weapon; or

(c) 	At the time of, immediately before or after the commission of the offence, the accused person tortures or causes grievous bodily harm to the complainant; or

(d) 	The accused person confines or restrains the complainant before or after the complainant commission of the offence; or

(e) 	The accused person, in committing the offence, abuse a position of trust, authority or dependency; or

(f) 	The accused is a member of the same family or clan as the complainant: or

(g) 	The complainant has a serious physical or mental disability; or

(h) 	The complainant was pregnant at the time of the offence, or

(i) 	The accused was knowingly infected by Human Immunodeficiency Virus (HI V) or knowingly had Acquired Immune Deficiency Syndrome,

"6. 	SEXUAL PENETRATION

When the expression "sexual penetration" is used in the definition of an offence, so far as regards that element of it. is complete where there is –

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

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

The Elements

3.	The elements of the offence of rape are as follows:

(i) 	The accused

(ii) 	Sexually penetrates

(iii) 	Another person

(iv) 	Without that person’s consent
Allegations

4.	The allegations raised against the accused Michael Earley (Daure), an adult male of Butibam Village, Lae, Morobe Province is that on Saturday, 18 May 2019 at around 5.00 p.m., he had offered to pick up the complainant who had left her Butibam Village and was walking from her family home towards her big sister’s house at Chinatown. During that relevant period, the accused offered her a ride in his car as it was getting late. It is alleged that at the relevant time, the accused has had some beers when the complainant got on to the vehicle.

5.	The complainant, an adult female named Shyanne Ahi, suffers from (diagnosed) both speech and hearing impairment since childhood. At the time of the alleged offence, she was a student at the Morobe Inclusive Education Centre. 

6.	The State also alleged that although the accused had stopped on the street to her sister’s house, he however prevented the complainant from alighting by holding on to her hand and drove away from the complainant’s sister’s house and towards the Market and from there to Lunaman Mountain onto a vacant piece of land. 

7.	At Lunaman Mountain, the accused drove through a gate and stopped the vehicle. It was already dark at this time. The accused then told the complainant to get out of the vehicle and she did so. She got out of the vehicle and was walking around the area. In the meantime, the accused returned into his vehicle and removed his clothes. It is alleged further that whilst at the Lunaman mountain, the accused forced the complainant to remove her clothes also but when she refused, the accused became aggressive towards her, and she then removed her clothes as she was told. The accused upon forcing the complainant to remove her clothes he then forced himself on the complainant and sexually penetrated her mouth by holding her head and pushing her head down on his erected penis to suck it. This continued until the complainant nearly chocked, and the accused lifted her head. The accused then pushed the complainant onto the back of his vehicle and again without her consent inserted his penis into the complainant’s vagina. He went on to pull out his penis and inserted it into the complainant’s anus; the complainant felt pain and cried out in pain. This caused the accused to withdraw and inserted his penis into the complainant’s vagina until he ejaculated in her.

8.	After the alleged act of offending, the accused dropped off the complainant outside her big sister’s street and drove off. The complainant felt great pain and was ashamed of herself, she went straight to bed.

9.	The next morning after 6 00 a.m., she left her sister’s house and went to her family home at Butibam and reported the alleged offending to her mother. The complainant was taken to the hospital for medical examination and treatment by her mother and immediately after that they went to the police station and reported the matter.

10.	The State therefore say that when the accused sexually penetrated the complainant without her consent by inserting his penis into her vagina, mouth and anus, his actions contravened s 347 (1) and (2) of the Criminal Code (as amended). 

Arraignment

11.	On arraignment on 9 June 2023, the accused’s responses to the indictment are recorded as follows:

(1)	One count of Rape by oral penetration by insertion of accused penis into the complainant's mouth without her consent:  Not true 

(2)	One count of Rape through vaginal penetration by insertion of the accused penis into the complainant's vagina without her consent: 
Not true

(3)	One count of Rape through anal penetration by insertion of the accused penis into the complainant's anus without her consent: Not true

12.	The matter proceeded to trial on 13 June 2023. Due to difficulties relating to finding an interpreter, the trial concluded on 7 September 2023.

No case to answer

13.	At the close of the State's case, the accused through his counsel opted to make a no case to answer submission. The no case to answer submission is mounted on the second limb of the test in The State v Paul Kundi Rape [1976] PNGLR 96 case. 

14.	The No case to Answer was heard on 19 September 2023.

15.	This is my ruling on the no case to answer submission.

The Issue

16.	The issue for determination before the Court is whether the accused has a case to answer?

Uncontested Facts

17.	The accused MICHAEL EARLEY DAURE did engage in several acts of sexual nature with the Complainant SHYANNE AHI on Saturday,18 May 2019 between the hours of 5.00 p.m., and 7.00 p.m.

Contested Facts

18.	The defence contested the allegation that it was non-consensual. 

19.	The Defence contended that the complainant consented to the sexual acts of insertion of the accused penis into the complainant's mouth, vagina, and other several sexual acts in nature.

State’s Case 

20.	During trial, the State called three witnesses out of the eight initially identified as potential witnesses. These witnesses all gave oral evidence under oath in the Pidgin Language, and it was translated to English. 

Evidence In Chief 

(1)	Shyanne Ahi

21.	Shyanne Ahi is the first witness called by the State. She is the complainant in this matter. She gave oral evidence under oath through an interpreter, Ms Louise Etepina a teacher based in Mainyanda Primary School, Bulolo and skilled in Inclusive Education (vision and hearing-impaired persons) with special educational needs. Ms Etepina was also sworn under oath. 

22.	Trial was conducted by sign language and interpreted into English.

23.	Shyanne Ahi testified that she lives at Butibam Village with her mother. She is in court this morning to tell the Court her story of what had happened to her.  She states that she went to Butibam market, saw her mother and was walking along the road to Chinatown when Michael came and stopped. She did not see anyone else. Michael was calling me, but I did not hear him because I am deaf and continued walking. He asked me to go to the car and I went to the car and sat down in the vehicle.

24.	She also gave evidence that the accused, Michael drove the vehicle to the Soccer Stadium, and stopped under a tree and asked a security guard to open the gate. She didn’t see the guard’s face clearly.  When they stopped under the tree, the accused picked up her hand put it on his zipper to open it, but I was frightened and told him that ‘you are my brother’. He told me to eat his bol/penis. She pleaded ‘please you are my brother’ we are family but that did not make him stop. 

25.	Whilst at the Stadium, an old man came so Michael took me to lift my head and got a cap to wear and he pulled his zipper up. He sat up and told story with the old man. When the man left, he drove out and said thank to the security guard and we left.

26.	She also gave evidence that from there, they drove to the mountain and went to the security guard at the gate. Michael took off his shirt, spoke to the security guard, got out of the car, and looked around. He came back to the car, moved the seat back, took out his phone and then he asked me to remove my clothes and he started to drink his beer. I however did not remove my small trousers.

27.	There he asked me to stand up (there was moonlight). He told me to turn and sleep down and he slept on top of me. He held my head and slept with me, had sex with me. He had more than one sex with me. At this stage, I said “no”. you are my brother. He put my head down and had sex with me, but I told him that he has a Tolai wife and a married man.  No clothes on me and him. He put his clothes and told me that he likes me and kissed me. He wore his shirt and went and left me at Nestle factory. He asked me to see him in the morning at 7 am to give me some toea and not tell anyone else.

28.	 She testified further that when she got home, her sister asked where she had been, and she told her that she had been out for a walk and came back. The white man came and asked, where have you been, and she said out and came back. So she did not say nothing to them.

29.	In the morning, she went to Butibam and saw her mother telling stories with Michael’s wife and she went and stood at the back.  Her mother than asked, where did you come from. I told her that I was not feeling well. Stomach is aching and head is aching and not feeling well and told her of what happened.

30.	My mother was very upset, screaming and everyone heard and came running. Mother told me to get shower and go to Angau Hospital to get me checked.

31.	 When questioned as to whether she can recall the day, she replied that she could not recall. When questioned as to whether she can identify Michael, the accused, she answered yes. When asked if the accused, Michael is in court, she answered, yes and pointed to the accused sitting in the dock.

32.	She was also questioned to the type of vehicle that he was driving, she replied, a little white car.

33.	As to the question of whether she knew the reason, she was picked up by Michael, she replied she did not know. Michael himself wanted sex so had sex with me. 

34.	When questioned as to having sex in the car, she replied ‘yes’.

35.	When asked to say what Michael did to her, she replied, Michael, himself had sex with me.

36.	She was then asked, what is sex, do you know, she replied ‘yes’. She gave evidence that she was forced to remove her clothes and when she removed her clothes, Michael removed his clothes.

37.	 She also gave evidence that she gave her story to the police.

38.	She told the Court that Michael pushed her head into his penis and to put his penis into twice in her mouth and her backside (twice).

39.	When questioned as to whether Michael put his penis anywhere in vagina, she replied ‘yes’. 

40.	In relation to whether there was any relationship with Michael, she answered ‘no’, It is the first time that Michael took her out. There is no current relationship.

Cross-examination

41.	‘In cross-examination the witness was asked as to what time of the day did, she leave for her sister’s house at Chinatown, she replied ‘in the afternoon’. She was walking along the road at Butibam Village when Michael came stopped car, at Butibam Village Cemetery.
 
42.	She states that she was walking and saw him driving car, vehicle parked at Yamo Club? She replied yes, he threw a stone at me because I did not hear so another person caught my attention. I turned around and he motion for me to go across. 

43.	He asked where I was going, and I told him that I was going to Chinatown. He asked that he drop me off. He asked me to sit in the car whilst he finished his beer. So I stayed in the car and waited.

44.	When he finished his beer, the two of us then left the Yamo Club. 

45.	It was put to her that whilst driving towards Chinatown, Michael asked her to have sex? She replied, he himself asked me.

46.	It was put to her that she giggled and looked away? She replied, no, did not say anything and look away. 

47.	It was then put to her if they drove from Butibam to Chinatown, she replied ‘no’.  She said that they stopped at Chinatown, but Michael stopped her and held on to her hand and stopped her from getting out of the vehicle and then they drove towards the market.

48.	When put to her if she agreed to go to the market, she replied although, could not recall exactly what was uttered. From there, left Chinatown and stopped at Sir Ignatius Kilage Stadium, she replied ‘yes’ stopped at the swimming pool area by the big tree.

49.	When put to her if the main gate was locked, she replied ‘no’ main gate was closed, and one security guard opened the gate, so Michael drove into the stadium and parked under a rain tree. 

50.	Michael and security guard chatted for a bit and then he drove in. 

51.	It was put to her if she did indicate to the security guard that she did not feel safe with Michael, she replied, no, Michael and security guard talking.

52.	When asked how long they were parked under the rain tree, she replied, short time. 

53.	It was put to her that she pulled Michael’s zipper down and started sucking his penis, she replied, he himself pulled down his zipper and pulled his penis out.

54.	It was also put to her that at the stadium, Phillip Lavatue, one man walked towards them in the car, she replied yes, and Michael told me to stop and put my head down whilst he spoke to the men.

55.	When put to her that the conversation took about 30 minutes, she replied yes.

56.	When put to her if she put her head up and saw the men? She replied yes. 

57.	When put to her if the two men greeted her, she replied ‘no’. 

58.	It was also put to her that that was the opportunity to alert the men of her predicament, but she did not, she answered ‘true’.

59.	Put to her that the two men left, she answered ‘yes’.

60.	It was put to her that after the two men left, Michael asked her to suck his penis, she replied ‘yes’. 

61.	After that, left the stadium, she replied ‘yes’ and drove towards town? she replied, ‘yes’ towards the property at Lunaman mountain? She replied ‘yes’.
 
62.	In her testimony, she said that the car drove up and when put to her that Michael got out to open the gate, she replied that it was the security guard who opened the gate.

63.	When put to her that whilst waiting for the security guard to open the gate, there was also a police car at the location? She replied ‘no’. She states that they entered the property and parked at a distance away from the road.

Re-examination

64.	 In re-examination, Counsel put to the witness to recall back to the time when the security guard came to open the gate, Now was it, afternoon, or night? She replied in the night. 

65.	Do you know the security guard? No, I don’t know him. When Michael parked the car, he came out, looked around and asked you to look around? She replied ‘no’.

66.	He parked the car, started kissing? She replied 'no’. 

67.	Put to you that you started to undress? She replied 'no’. Michael removed his clothes. She replied 'yes’. After sex, got dress and then left. 

68.	The security guard opened the gate. I don’t know him. The same security guard that opened the gate to let us in.

69.	Afterwards, I was dropped off at Chinatown. When I arrived, I was scolded by my sister for coming home late, do you know what time, she replied 7 pm at night. 

70.	She states that she was angry because they are family.

71.	She also said that she is now married to Josaiah.

72.	When put to her as to the time that she sought medical attention, she replied it was on the next morning, she checked. Also asked if a complaint was put to the police, she replied yes, after she went to Angau Hospital with her mother. 

73.	Overall, a summary of her re-examination evidence is that Michael picked her up when she was on her way to her sister’s house at Chinatown, side of Nestle factory. Michael stopped at roadside to Nestle and when she wanted to get out, Michael held her hand and stopped her from getting out and drove towards the market. They drove to the Stadium. At the stadium, Michael pulled her hand and put it on his zipper and told her to open his zipper and suck his penis. She refused to suck his penis, but Michael forced her to do so. 

74.	When asked as to why, she did not tell the guard at the Stadium of her situation, she replied, I do not know him.  Similarly, I do not know the other two men at the stadium. 

75.	When asked to confirm the timing of the incident, at the stadium, she replied in the afternoon, clear enough to see things. At Mt Lunaman? There was moonlight so was able to see.

76.	When put to her if she wanted to have sex with Michael? She replied, ‘no’. Did you tell him to stop? Yes, told him to stop because he is my brother. He did not stop.

77.	Did the sexual intercourse take place in the car? She replied ‘yes’ at the far end from the gate. Where the security could not see you? Yes

78.	You were communicating through sign language? She replied ‘yes’. 

79.	Put it to you that Michael was drunk and forced you to have sex with him? She replied ‘yes’. It is fair to say that you were afraid. She replied ‘yes’.

(2)	Monica Aihi

80.	Monica Aihi gave oral sworn evidence under oath and was subject to cross-examination. 

81.	She testified that she is the mother of the complainant. She is from Madang and is married to Josaiah Aihi from Butibam Village. She states that Shyanne Aihi when she was born became very sick and because of her medical condition, she now cannot speak. She is deaf and dumb.  She says that she is in Court today to tell the Court of the ‘heavy’ incident that Shyanne went through. The incident is that on May 18, 2019, Shyanne encountered. She said that on 19 May 2019, Sunday morning, I left the house doing some meditation on the road. I met Michael Daure’s wife who was selling her flower and asked for buai, so gave her buai and looked towards the main road and saw Shyanne walking down looking worried and I was thinking, what is she doing here? She was wearing tight long trousers, long sleeves shirt and a cap. I walked towards her she started crying and I could tell that she was looking at Michael’s house and I knew that Michael had done this to her. I told them that I will take Shyanne to hospital but there was no bus, so we walked to the hospital.  We went to the emergency and asked, and the doctor referred to the Family Support Centre. At the family support centre, Shyanne told them her story and asked for permission to check her.

82.	I gave permission and they conducted check, took medication, injection and walked back to the house.  At 3.00 pm., we went to the police station to lay a complaint.

83.	She states that she has 5 daughters. The fifth is Shyanne. The big sister lives at Chinatown and on 18 May 2019, Shyanne left to go to her house at Chinatown.

84.	She also gave evidence that Michael is the son of Shyanne’s father’s big sister. Michael lives at the opposite side of the road to them. She also pointed out that Michael is present in Court and seated on the opposite side of the Courtroom. 

Cross-examination

85.	In cross-examination, she was asked if Shyanne told her straight away about what Michael did to her? She replied, she made sign that she used to refer to Michael and put her hand on her ‘pispis’. It was put to her that she was afraid of her and so made-up story about Michael raping her. She replied, “not true’. When put to her again that the story of Michael raping her is made up because Shyanne was afraid of her big sister? She replied not true. It was put to her again that she is upset when she heard that Michael slept with Shyanne, so you made up a story about Michael raping her. She replied, ‘not true’.

No Re-examination

(3)	Rayleen Uvia – Nurse

86.	Rayleen Uvia gave oral sworn evidence. In her testimony, she states that she is a Nursing Officer attached to the Family Support Centre and has been with the Centre for 9 years. She has however been in the Nursing filed for 27 years.  Whilst with the Family Support Centre she had seen more that 50 patients. She explained the nature of the job with the Family Support Centre in that they deal with intimate sexual violence within family and child abuse cases. In dealing with these cases, they normally would diagnose the patient based on physical evidence of what is seen on the physical appearance of the patient. In terms of her qualification, she possesses a Certificate of Nursing from Angau Memorial Hospital and a Degree in Nursing (Psychiatry) UPNG School of Medicine. 

87.	She was shown a copy of a signature which she confirms as her and also shown a Medical Report dated 5 June 2019. She explained that an examination was done on 19 May 2019 on the patient Shyanne Aihi. 

88.	In her report, she states that she conducted a general physical examination and noted that there were bruising on the face and both arms. An examination was conducted on the genital area where relevant. 

	Genital Examination:

•	Vulvas
Inner – abrasion at 2 O’clock to 1 O’clock position

•	Outer vulva
abrasion at 6 O’clock to 10 O’clock position

She explained that the vulva is describe as a clock face and thus the description above. 

•	Hyman – muscle laceration noted at 1 O’clock, 2 O’clock, 3 O’clock, 4 O’clock and 6 O'clock positions. 

89.	She states that everything is contained in the report. She will not add or subtract from it. The medical report is consistent with the story obtained by the survivor. 

•	Redness around the vaginal opening 
•	Anal examination, unremarkable
•	Perennial bleedings (muscle between vaginal opening and anus)

90.	The Medical Report was tendered into evidence and marked as Exhibit “D”
 
Cross-examination

91.	In cross-examination, Nurse Uvia was asked if abrasions could happen in a consensual sexual encounter? She replied that abrasions/lacerations occurred as a result of a slap or force.

92.	In regard to anal sex, the report says unremarkable. What does it mean. She replied cannot say. It is as stated.

93.	It was then put to her to explain laceration or perennial, could that be the position of sexual intercourse? She replied, ‘yes. How about sexual action from the back? She replied, cannot say anything except for what is relied upon in the medical report.

No re-examination

(B)	Documentary evidence

94.	In addition, the State also relied on several documents which were tendered by consent into evidence. These documents were:

(i)	Record of interview dated 14 August 2019, both Pidgin (original) & English Translation (Marked as Exhibit “A”).

(ii)	Affidavit of Michael Earley dated 17 August 2019 (Marked as Exhibit “B”)

(iii)	State of Constable Mary Watah dated 15 August 2019 (Marked as Exhibit “C”)

(iv)	Medical Report of Shyanne Ahi dated 5 June 2019 (Marked as Exhibit “D”)

(v)	Statement of Joshua Karo Ahi dated 7 June 2019 (Marked as Exhibit "E” )

(vi)	Statement of Constable Alice Gwabiru undated (Marked as Exhibit “F”)

(vii)	Statement of Constable Valentina Kui dated 19 August 2019 (Marked as Exhibit "G”)
Law on no case to answer

95.	At this juncture, I must warn myself that the question is not whether the State has established its case beyond reasonable doubt, but rather on the evidence as it stands can the accused be lawfully convicted?

96.	The tests or principles of law governing ‘a no case to answer submission’ is enunciated in the case of The State –v- Paul Kundi Rape [1976] PNGLR 96. In that case,  the Court held that two distinct but related tests apply and may arise at the close of the case for the prosecution or indeed at any stage of the trial (see The State v Misimb Kais [1978] PNGLR 241): 

“The first test is whether on the evidence as it stands the accused could be lawfully convicted. 

The second test is where the court considers that there is a case to answer, the Court has a further direction to disallow the case where the court considers that there is a mere scintilla of evidence and where evidence is so lacking in weight and reliability that no reasonable tribunal could convict on it”. 

97.	The above principles were adopted and expanded in the case of The State –v- Roka Pep No. 2 [1983] PNGLR 287 where the Supreme Court (per Kidu CJ, Kapi DCJ, Andrew and Kaputin JJ) expanded the principles in this way:

"Where in Criminal proceedings at the close of the case for the prosecution, there is a submission of no case to answer, the question is for the Judge as a tribunal of law; the test is whether the evidence supports the essential elements of the offence."

Where the tribunal decides there is no case to answer, the accused is acquitted and that is the end of the matter. Where the tribunal decides there is a case to answer, it nevertheless has discretion to stop a 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 the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it.

A tribunal should make a finding of no case to answer where: (a) there is no evidence to establish an element of the offence charged; or (b) there is some evidence covering the elements of the offence charged but it is tenuous or incredible or discredited that it amounts to only a scintilla, and thus could not be accepted as persuasive by any reasonable person. (Per Pratt J)

98.	Essentially, the onus is on the prosecution to show some evidence of the existence of the elements of the offence under Section 347 (1) and (2) of the Criminal Code.

The State’s case

The State’s allegation – the accused, identification, s 347 (1) and (2)  

99.	Ms Joseph for the State submits that the question before the Court is not whether the State has established its case beyond reasonable doubt but rather whether on the evidence as it stands the accused could lawfully be convicted in line with the principles set out in the case of Paul Kundi Rape v The State [1976] PNGLR 96.

100.	To establish its case, Ms Joseph submits that from the evidence adduced during trial, the State has established that there is some evidence of each element of the offence, which if accepted, would prove the element directly or enable its existence to be inferred. Hence, Ms Joseph submits that for the charge of rape, the State has established that there is evidence for each of the elements of the offence and she outlines the State’s case as set out below:

(i) 	The Accused, Michael Earley

101.	The identification of the accused, Michael Earley (Daure) is not disputed. The accused, Michael Earley is a known person to the complainant, Shyanne Aihi. She identified the accused, Michael Earley as the person sitting in dock. She also identified Michael Earley, as her cousin brother who picked her up in his vehicle and took her to the Stadium, Lunaman Mountain and sexually penetrated her mouth, vagina, and anus without her consent. 

102.	The State also relied on Exhibit "B”; a document tendered into evidence by consent. The said Exhibit “B” is an affidavit sworn on 14 August 2019. In the said Exhibit “B”, at paragraph 7,  the accused, Michael Earley has admitted to the alleged offending. He has confirmed the alleged offending. Thus the issue of identification of the accused is not in issue. The accused does not dispute that sexual penetration did occur. The accused confirms that there was some act of sexual intercourse between the accused and the complainant. In Paragraph 7 of his Affidavit he confirmed that he did sexually penetrate the complainant by insertion of his penis into the complainant's mouth, except he contended that it was consensual on the alleged date of the offence. Further, paragraph 5 of his Affidavit also confirms that there were several acts of sexual intercourse between himself and the complainant on the alleged date of the offence.

103.	Further and in addition, in the Record of Interview (RIO) dated 14 August 2019 which the State tendered into evidence and marked as State exhibit "A". The accused in that record of interview does not dispute the fact he did engage in several acts of sexual intercourse with the complainant on the date of the alleged offence.

104.	Consequently, identification of the accused, Michael Earley is established.

(ii) 	Sexual penetration

105.	Regarding this element of the offence. This element is also non-contentious. The accused, Michael Earley is a known person to the complainant. She identified the accused on the accused dock as Michael, her cousin brother who picked her up in his vehicle and took her to Mount Lunaman and sexually penetrated her mouth, vagina, and anus without her consent.

106.	Sexual penetration is not disputed. Again, in paragraph 7 of the State Exhibit B"" which is the accused's Affidavit dated 17 August 2019. The accused, Michael Early deposed to the fact that he did engage in sexual intercourse in nature with complainant. Further the accused in paragraph 7 of his Affidavit deposed  that he did sexually penetrate the complainant by insertion of his penis into the complainant's mouth, except he contended that it was consensual on the alleged date of the offence. In addition, paragraph 5 of his Affidavit also affirms that there were several acts of sexual intercourse in nature between himself and the complainant on the alleged date of the offence.

107.	So in essence, the act of sexual penetration is also admitted as disclosed in the State Exhibit "A" (that Record of Interview dated 14 August 2019). In the record of interview the accused does not dispute the fact he did engage in several acts of sexual intercourse with the complainant on the date of the alleged offence.  Therefore, the State says that this element of the offence is established.

(iii) 	Without consent

108.	This element is contested. Therefore, reliance is placed on Section 347A of the Criminal Code as amended which provides that "consent' means “free and voluntary agreement”. 

109.	The Complainant maintains that she did not give consent. During the conduct of the trial and during her evidence her demeanour demonstrates that she was in a lot of frustrations in expressing her story. Her body language did show some shame when giving evidence. She was pained or fearful. Her body language was of anguish, like, saying, she would rather not go through this ordeal again. She repeatedly gave sign that it was he, the accused, Michael Earley who wanted sex. She wanted to distance herself from those encounters and not having to relive the ordeal. 

110.	For instance when the complainant was giving evidence leading to the first stop at Chinatown, her facial expression demonstrated that she was angry when she had to repeat her evidence during cross examination that she did not smile and shy away when accused signed for her to have sex with him. Furthermore. her face show disgust when she relives the ordeal of the acts of sexual penetration that occurred at the Sir Ignatius Kilage Stadium to Lunaman Mountain. 

111.	Ms Joseph for the State submits and urges this Honourable Court to consider and adopt the views expressed and cited the case of Maiyau v The State (2017] SC1644 in support of their submission. In that case, the Court stated: 

"The determination of whether a person is a truthful or an untruthful witness inevitably involves an intuitive assessment of the person's body language, considered in the context of the evidence before the court. It will be in most cases, and was in the present case, a relevant consideration."

112.	Ms Joseph for the State impressed on the Court to also take into account the fact that given that the complainant suffers from both speech and hearing impairment; this is one such case where the State urges this Honourable Court to consider the complainant's body language during her evidence. Ms Joseph submits that the complainant's body language all

"… throughout the State's case clearly demonstrated anger, disgust and fear when she was identifying the accused on the accused dock” 

113.	Further, as State was leading evidence the complainant, she was asked to describe sex and she kept on repeating that the accused had sex with her even though, the complainant signed for the accused to stop and remind him “that they are brothers and sister”, and the accused was married. The accused continued to have sex with her and wanted more. 

114.	The next morning, she went straight to her mother and made a recent complaint, regardless of how many people she passed the previous afternoon including her sister, she waited until first light and walked all the way to Butibam to relay the ordeal to her mother. The Supreme Court in the case of Balbal v The State [2007] PGSC 16; SC860 adopted the view of His Honour Sakora, J in the case of State v Merriam and accepted that "recent is not a question of fact and degree in every case." "On the other hand. complaint must have been made at the first opportunity which reasonably presented itself. Thus, it is not a question of the length of time per se. "

115.	In this case, it is a recent complaint. The complaint was made on the morning after the incident, 19 May 2019. Hence, it was made within the degree of time as enunciated in the cases referred to above: Balbal v The State (2007] PGSC 16; SC860.  Consequently, the complaint was a recent complaint. I find no evidence adduced during trial of this being a complaint of a pass incident.  This element of the offence is therefore established.

116.	 Ms Joseph submits that the complainant's evidence and demeanour during the conduct of giving her evidence clearly displayed signs of refusal, shame, fear,  disgust, and frustrations because she is at pain in having to relive her ordeal and trying her utmost to tell her story as clearly as possible given her speech and hearing difficulties. 

117.	Overall, her evidence can be summarized as follows:

(i)	On the afternoon of Saturday, 18 May 2019, Shyanne Aihi was on her way to her big sister’s house at Chinatown.

(ii)	At the Butibam Village Cemetery, the accused, Michael, offered to give her a lift. She accepted the lift knowing that the accused, Michael is a cousin brother. 

(iii)	However, when they arrived at Chinatown, in front of her sister's house, the accused grabbed her hand and prevented her from alighting from the car. 

(iv)	Instead, he drove off with her in the car towards market road. She was not dropped off. 

(v)	The accused drove his car at the Sir Ignatius Kilage Stadium (“Stadium”). At the stadium, he pulled her hand and put it on his zipper, telling her to unzip his trousers and told the complainant to have a look at his penis, but the complainant signed the accused and reminded him that they are brother and sister. I note that during this testimony, the demeanour of the complainant changed, and her evidence and interpretation stalled a bit. Further, from her evidence of when the accused pushed the complainant's head down onto his penis to suck his penis, the complainant in her evidence, signed and interpreted as "please, you brata. Yumi family' but the accused still insisted that she eat his balls. Her body language displayed shame, pain and disgust, It is her story and only she is able to go through that trauma or experience.

(vi)	Her evidence of the sexual encounters at Mt Lunaman also show shame, pain, and disgust in her testimony. She gave sign language that she did not want to have sex with the accused. It was the accused, Michael himself who wanted to have sex with her. Her evidence is that regardless of how she tried to plead and stopped the accused, he continued to sign 'more'. Again, as alluded to earlier, it is her story and only she is able to feel those pain, shame, disgust and frustrations as to her ordeal of the alleged offending. 

Circumstances of aggravation

118.	Further, this Court is invited to take note that Section 349A of the Criminal Code as amended which specifically provides for circumstances of aggravation. In applying this provision to this present case, Ms Joseph submits that the circumstance of aggravation per Section 349 (g) is undisputed and still suffices. The complainant has a serious physical or mental disability. 

Summary

119.	In conclusion, Ms Joseph submits that it is safe to say that based on the undisputed sworn evidence of all the State witnesses with respect to each and every element of the offence of rape, the State has established a prima facie case. Consequently, the accused, Michael Earley has a case to answer.

Submission for the Defence

120.	Mr. Mambei for the accused submits that in determining whether the evidence adduced by the prosecution establishes a case for the accused to answer on his guilt or innocence, the Court is duty bound to ask and answer the question, whether the evidence adduced by the State establishes the charge presented or any other known to law. 

121.	In his submission to the Court, Mr. Mambei referred this Court to the case of The State v Pasika [2005] PGNC 178 in which his Honour Kandakasi J (as he was then) stated and I quote: 

“A Court when required to determine whether the evidence adduced by the prosecution establishes a case for an accused person to answer or his or her guilt or innocence, the Court is duty bound to ask and answer the question, whether the evidence adduced by the State establishes the charge present or any other known to law. In my view, the Court must discharge that duty before deciding in favour of an accused person by deciding to acquit him or her. An acquittal is usually the ultimate end following either a finding that an accused has no case to answer or a finding that the prosecution has failed to establish the guilt of the accused beyond any reasonable doubt at the end of all the evidence. It follows logically therefore that, that duty must be discharged both at the end of all the evidence. For what matters is the ultimate outcome of the decision particularly where there is a successful no case submission or a return of a not guilty plea and accused is about to be set out into the public free after coming into the corridors of the Court”. 

122.	Mr. Mambei submits that the defence relies on the second leg of the principle of the Paul Kundi Rape (supra) case on its not “no case submission”. The defence say that the evidence presented by the State so far is so lacking in weight and reliability that no reasonable tribunal could safely convict on it, and thus this Court has discretion to stop this case now. 

123.	Mr. Mambei also cited relied on the statement made by his Honour Pratt J in the case of The State v Roka Pep No. 2 [1983] PNGLR 287 in which his Honour Pratt J said: 

“A tribunal should make a finding of no case to answer where: (a) there is no evidence to establish the element of the offence charged; or (b) there is some evidence covering the elements of the offence charged but it is tenuous or incredible or discredited that it amounts to only a scintilla, and thus could not be accepted as persuasive by any reasonable person” 

(underling mine).
124.	Given the above statement, the Court is asked to examine the evidence adduced by the prosecution. If the examination reveals serious weakness or demonstrates unreliability that no reasonable tribunal of fact could safely make a conviction on that evidence, a no case submission should succeed. Hence a consideration of the strengths and weaknesses of as well as the credibility of prosecution evidence.

Inconsistencies

125.	Mr. Mambei submitted that there are inconsistencies in the evidence adduced during the calling of evidence in chief. Firstly in the evidence of the complainant herself and the evidence of Nurse Uvia in regard to the allegations of anal sex. He submits that these inconsistencies do weaken the evidence of the complainant and the evidence of Nurse Uvia with regard to evidence of abrasions consistent with anal sex between the complainant and the accused as alleged. All these matters go to show that the complainant is an untruthful and unreliable witness and also that the medical report does not lie. Consequently, he submits that the accused has no case to answer. 

(Shyanne Aihi) Complainant’s evidence 

126.	Counsel for the Defence, Mr. Mambei submitted that the complainant evidence adduced during trial that the accused sexually assaulted her anus without her consent is inconsistent. The alleged sexual occurrences took place at various locations within Lae city. In that anal sex took place between her and the accused occurred outside his vehicle whilst parked at the accused property at Lunaman Mountain is inconsistent with the medical report. Due to this inconsistency, her evidence cannot be relied upon to arrive at a conclusion that the accused has a case to answer. 

With regard to the allegations relating to vaginal and oral sex between her and the accused which occurred at the defendant’s property at Lunaman Mountain. The alleged sex occurred in the vehicle whilst stationary at the respective locations, both at the Sir Ignatius Kilage Stadium and the Lunaman Mountain property. The accused says that all these encounters occurred with the complainant’s concern in that she willingly got into his vehicle, waited for him whilst he went into the Yamo Club for a beer and then returned to the vehicle and drove off, when he suggested having sex, with her, she smiled, giggled, and looked away, an indication that she gave consent. Further, Mr. Mambei submits that she also volunteers, consented to oral and vaginal sex with the accused.

Medical report – Nurse Uvia 

127.	 Nurse Uvia adduced evidence in Court that she did examine the complainant on 19 May 2019, and she also did a medical report on the same patient, Shyanne Ahi. During her examination she noted that there were general abrasions on the complainant’s face, and both arms. She also did an examination of the genital area where relevant. She adduced evidence that the vulvar had inner abrasions at 2 O’clock to 1 O’clock position, the other vulva also had abrasions at 6 O’clock to 10 O’clock position. As for the hymen, there were muscle lacerations noted at 1O’clock, 2, 3, 4 and 6 position. She gave evidence that written in the medical report is as it is, and she will not add or subtract from it. She confirmed that the medical finding is consistent with the story obtained from the survivor. She confirmed further that there was redness around the vaginal opening and there was perennial bleeding in the muscle between the vaginal opening and the annus.

128.	Mr. Mambei submitted that the medical examination does not confirm any abrasions and lacerations in the complainant’s anus, therefore this should mean that the allegation of anal sex cannot be relied upon by the complainant. Medical reports don’t lie. 

129.	Overall, given that as it may, the complainant in this case has adduced evidence to show that on the afternoon 18 May 2019, at around 5.00 p.m. she was driven off without her consent by the accused, Michael Earley in his small white vehicle, and she was subjected to numerous acts of sexual violations, oral, vaginal, and anal sex by the accused. These alleged offending occurred within and outside the accused’s vehicle at various locations, Lunaman Mountain and Sir Ignatius Kilage Stadium within Lae city. 

I now address the issues of inconsistencies raised by the defence.

(Witness Shyanne Aihi)

130.	The inconsistencies here relate to her recollection of her whereabouts and how she came to being in the car with the accused on the night of the alleged offending. In her examination in chief, she gave evidence that she was walking along the road at Butibam Village to go to Chinatown when Michael came by and stopped. She did not see anyone, and he was also calling her, but she did not hear as she is deaf, and she continue walking. Michael came and stopped and asked her to go with him in the vehicle. She got into the vehicle, and he went and parked, and she sat in the car waiting for him. 

131.	In cross-examination, she confirmed that she was walking along the road to go to Chinatown to her sister’s house. Michael drove by and stopped to offer her a lift to Chinatown, but they did not leave immediately. Michael told her to wait in the car.  Thereafter, they left for Chinatown. On the way, Michael asked to have sex with her, but she did not say anything and looked away. When they got to her sister’s street, Michael stopped the vehicle but when she was getting up to get off the vehicle, Michael held on to her hand and stopped her from getting off the vehicle. He instead drove off towards the Market. 

132.	To address the inconsistencies here, I am led to understand that the inconsistency relates to the recollection of events that occurred between walking along the road at Butibam and the time that she sat inside the accused’s vehicle and waited for the accused to drop her off at Chinatown.

133.	Whilst I note that the complainant had stated in her examination in chief that she sat in the car and waited for the accused; she had not mentioned that she waited for the accused, outside the Yamo Club. I do not find this oversight as inconsistent as she had explained in cross-examination that she sat in the vehicle and waited for the accused whilst he went into the Club and then he was to drop her off at Chinatown. Evidence adduced show that she was not dropped off at her big sister’s house as she anticipated. Hence, I do not find this explanation untruthful and unreliable. The complainant obviously was oblivious to what was to come. 

134.	In addition, to the State calling oral evidence to corroborate the evidence contained in the various statements to substantiate the allegations. The State also relied on statements (documents) which were tendered into evidence by consent of both parties. Once they are tendered and accepted as evidence by the court they are for all intent and purposes evidence which the party tendering them can rely upon them as evidence. A party cannot hark back and argue against their admissibility. Nor can a party argue against relying upon this evidence: See State v Moro [2011] N4906 (18 February 2011), State v Manak [2022] N10339 (14 April 2022)

135.	Here the various statement relied upon by the State clearly show that sexual encounters occurred between the hours of 5.00 p.m. in the afternoon and 7 p.m. at night on 18 May 2019. The sexual encounters activities occurred at various locations within Lae town, (Lunaman Mountain and Sir Ignatius Kilage Stadium) without the consent of the complainant. She maintains in her evidence that all these sexual activities occurred without her consent. Furthermore, I understand that the sexual encounters occurred at night fall and away from her comfort zones. She also gave evidence that the accused was drunk and forceful. 

136.	The complainant subsequently identified the accused. He is a known person. He was also identified as the accused person. Michael Earley sitting in the dock. 

137.	Her recollection of the allegations is substantiated by an affidavit sworn by the accused on 17 August 2020, and which is on the Court file and marked as Exhibit “B” of the State documents which had been tendered into evidence by consent. The matters deposed to by the accused are consistent with the allegations of the rape: See State v Moro [2011] N4906 (18 February 2011), State v Manak [2022] N10339 (14 April 2022).

138.	Defence Counsel submits that there are inconsistencies in the evidence of the complainant adduced during trial therefore she is not a truthful and reliable witness.

139.	In the case of State v Manak [2022] N10339 (14 April 2022), I reiterated at [25]:
“25.	It is also settled law that a party’s case must in fairness be put to the other side’s witnesses in cross-examination. A failure to do so amounts to a conclusion that any evidence introduced which has not been put to the prosecution as one being invented and therefore unreliable. This is based on what is known as the rule in Browne v Dunn (1893) 6 R 67 (HL). A number of cases on these are: see The State v. Francis Natuwohala Laumadava [1994] PNGLR 29; The State v. Gigere Undamu [1990] PNGLR 151 and The State v. Simon Ganga [1994] PNGLR 323.”
(Witness Nurse Rayleen Uvia)

140.	Mr. Mambei for the accused also submitted that is it equally so, for the evidence of Nurse Uvia. He submits that the evidence also does not confirm any abrasions to confirm anal sex and since medical report do not lie, the accused has no case to answer.

141.	Regarding the inconsistencies which is pointed out by counsel for the accused, whilst I note that there is no indication of any abrasions noted on the annus as contained in the Medical Report, I am mindful of the implications inferred and thus must warn myself of the need to not read too much into what is alleged to be the inconsistency complaint of.

142.	However, to address the inconsistency, I must firstly point out that Nurse Uvia in her report does state that there was perennial bleeding between the muscle of the vaginal opening and annus. What this could mean, I am not a medical person to confirm, however, it may mean that there was some pressure on the muscles to cause it to bleed. Thus, given this inference, I am minded accepting that there is interference within that area of the organ, that is, the vagina and the anus. Hence, doubt can arise as to what it means or imply? Is it an inference of anal sex. The medical report here therefore does not lie as put by Mr. Mambei for the accused. But if there is perennial bleeding in the vaginal opening and annus. It can be inferred that there may have been some sexual activity in nature in that part of the body. Consequently, I am satisfied and find that there is no inconsistency here. The medical evidence does show some perennial bleeding within the muscle of the vaginal opening and anus, an inference of sexual activity within that part of the vagina and anus respectively.

143.	Issues of inconsistencies raised by the Defence can be addressed in this way: Although I note that the medical report and evidence adduced during trial do not confirm abrasions of the annus, the State has called oral direct evidence given by the complainant to substantiate and corroborate the allegations. The State can rely on those Statements as evidence in court. Be that as it may, this court finds that there is no rule of law which says that the State can only prove its case by hard credible evidence or direct evidence or oral evidence only. Indeed, the court finds that it is open to the State in a criminal case to prove its case by either direct evidence, or oral evidence or even circumstantial evidence: See State v Moro [2011] N4906 (18 February 2011), The State v Ipai Koivi (2010) N3972), State v Manak [2022] N10339 (14 April 2022).

Analysis of the evidence

144.	In this case, the complainant gave direct evidence of her experiences. She testified that the accused, Michael Earley sexually penetrated her by mouth, vaginal and anal sex. It is her direct evidence of all these sexual acts in nature without her consent. 
 
145.	I accept and adopt the State’s submission that the complainant's evidence and demeanour during the conduct of giving her evidence clearly displayed signs of refusal, shame, fear,  disgust, and frustrations because she is at pain in having to relive her ordeal and trying her utmost to tell her story as clearly as possible given her speech and hearing difficulties.  

146.	Overall, her evidence can be summarized as follows:

(i)	On the afternoon of Saturday, 18 May 2019, she (Shyanne Aihi) was on her way to her big sister’s house at Chinatown. 

(ii)	At the Butibam Village Cemetery, the accused, Michael, offered to give her a lift. She accepted the lift knowing that the accused, Michael is a cousin brother. 

(iii)	However, when they arrived at Chinatown, in front of her sister's house, instead of letting her alight from the vehicle to go to her sister’s house, the accused grabbed her hand and prevented her from alighting from the car. 

(iv)	He drove away from the sister’s house with her in the car towards market road. She was not dropped off. 

(v)	The accused drove his car to the Sir Ignatius Kilage Stadium (“Stadium”). At the stadium, he pulled her hand and put it on his zipper, telling her to unzip his trousers. He told the complainant to have a look at his penis, but the complainant signed the accused and reminded him that they are brother and sister. I note that during this testimony, the demeanour of the complainant changed, and her evidence and interpretation stalled a bit. Further, from her evidence adduced during trial, she states that the accused pushed her head down onto his penis to suck his penis. She also states in her evidence, signed, and interpreted as "please, you brata. Yumi  family'. But the accused still insisted that she eat his balls. Her body language displayed shame, pain, and disgust. Here it is her story and only she is able to go through the  trauma or experience of her ordeal.

(vi)	Her evidence of the sexual encounters in nature at Mt Lunaman also show shame, pain, frustrations, and disgust in her testimony. She gave sign language that she did not want to have sex with the accused. It was the accused, the accused, (Michael)  himself who wanted to have sex with her. Her evidence is that regardless of how she tried to plead and stop the accused, he continued to sign 'more'. Again, as alluded to earlier, it is her story and only she is able to feel those pain, shame, disgust, and frustrations as to her ordeal of the alleged offending. 

(vii)	I do take note of the fact Section 349A of the Criminal Code as amended specifically provides for circumstances of aggravation and I apply this provision to this present case. In this case, the circumstance of aggravation under Section 349 (g) is undisputed and still suffices. The complainant has a serious physical or mental disability. The complainant suffers from hearing and speech disabilities. 

147.	I note that the accused, Michael Earley has in his sworn affidavit of 17 August 2020 admitted the sexual conduct but maintains that these were consensual. 

148.	At the same time, I also take note that the complainant’s evidence adduced during examination in chief disputes that the sexual encounters were consensual. 

149.	Given these differing versions of the sexual conduct, it is my view that this question can only be answered when all evidence is before the court and properly weighed and analyzed. 

150.	At this stage I warn myself that I am not obliged to assess and analyze and weigh all the evidence in detail. I am not looking into the question of whether or not the State has established its case beyond reasonable doubt, but rather the question to be answered at this stage is for the Judge as a tribunal of law, to determine whether the evidence as it stands supports the essential elements of the offence. 

151.	The issue of any defence such as consent is a defence and must be raised by the defendant as part of his evidence in defence: it cannot be argued on a no case submission where it is raised before the court as part of a record of interview and or document tendered by the prosecution: see State v Undamu [1990] PGLawRp 604; [1990] PNGLR 151 (19 April 1990), The State v Angela Colis Towavik [1981] PNGLR 140, Browne v Dunn (1893) 6 R 67 (HL), adopted. State v Manak (supra).

Conclusion

152.	On the strength of the evidence adduced during trial as it stands and the reasons set out in this ruling, I am satisfied and find that the State’s evidence as it stands supports the essential elements of the offence. The State evidence is sufficient and has established all the requisite elements of the offences for which the accused is charged.  

153.	The State evidence cannot be described as being so tenuous or incredible or intrinsically weak that it amounts to only a scintilla, and thus could not be accepted as persuasive by any reasonable person or tribunal of fact. Certainly, the State evidence cannot be described as being so discredited and so lacking in weight and reliability that no reasonable tribunal could safely convict upon it. 

154.	By reasons of all the foregoing, I will dismiss the no case to answer submission mounted on the second leg of the rule in Paul Kundi Rape's case. 

155.	I therefore order that the accused, Michael Earley has a case to answer and that he answers the charges proffered against him, charging him with three counts of aggravated rape contrary to s 347 (1) (2) of the Criminal Code Act.

Orders accordingly.
________________________________________________________________
Public Prosecutor: Lawyer for the State
Mambei Lawyers: Lawyer for the Accused