SC2362

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO. 4 OF 2020

BETWEEN:
WILSON FUNIL
-Appellant -

AND:
THE STATE
- Respondent -

Kokopo:  Mogish, Kaumi and Kassman JJ
2020:  23rd & 27th November

CRIMINAL LAW – appeal from conviction and sentence – rape – armed with a bush knife – victim “a person experiencing intellectual difficulties” – deemed unable to consent to an act of sexual penetration – deemed unable to communicate her unwillingness to participate in the act of sexual penetration – factors in mitigation and aggravation considered – comparable sentences considered – no identifiable error in conviction and sentence – conviction and sentence confirmed

Facts

The Appellant was convicted on the charge of rape with circumstances of aggravation pursuant to section 347(1) and (2) of the Criminal Code and sentenced to imprisonment for eighteen years with time in custody deducted.  The Appellant argued there is in all the circumstances a reasonable doubt as to the safeness or satisfactoriness of verdict and there is an identifiable error in the learned trial judge’s exercise of his sentencing discretion that has the effect of vitiating the sentence. 

Held:

 (1) trial judge correctly relied on an expert’s report determining the victim was a person experiencing intellectual difficulties 

(2) the victim being a person experiencing intellectual difficulties, it is deemed the victim was unable to consent to an act of sexual penetration and unable to communicate her unwillingness to participate in the act of sexual penetration - Section 347A(2)(f) of the Criminal Code applied
		
(3) there being no identifiable errors in the conviction and sentence, the appeals are dismissed.  

(4) Obiter - A person with a physical impairment should be described as “a person with difficulty in mobility or physical impairment” and a person with a mental impairment should be described as “a person with a learning disability” or “a person experiencing intellectual difficulties”.

Cases cited:

John Beng v. The State [1997] PNGLR 115
Bernard Touramasong and Others v. The State [1978] PNGLR 337
William Norris v. The State [1979] PNGLR 605
John Vali v. The State [2007] SCRA 61 of 2004 (29 June 2007)
Gimble v The State [1988-89] PNGLR 271 at 272

Legislation cited:

Supreme Court Act Section 23(1) 
Criminal Code Section 347A(1) and (2) 349(A)(b) 

Counsel:

Leslie Mamu, Public Solicitor, for the Appellant
Pondros Kaluwin, Public Prosecutor, for the Respondent

DECISION

27th November, 2020

1.	BY THE COURT:  Wilson Funil (“the Appellant) appeals his conviction of 29th November 2019 and sentence of 10 December 2019 by the National Court in Kokopo on the charge of rape with circumstances of aggravation pursuant to section 347(1) and (2) of the Criminal Code.  The Appellant was sentenced to imprisonment for eighteen years with time in custody deducted. 

Grounds of appeal 

2.	The Appellant filed his Notice of Appeal in person on 3 January 2020 and his grounds of appeal are stated as “I APPEAL AGAIN CONVICTION AND SENTENCE.  THE REASON THE SENTENCE OF 17 YEARS 11 MONTHS 18 DAYS IS HEESH FORE ME”.  The Appellant is simply saying he is aggrieved with his conviction but does not state why he makes that statement.  Further, the Appellant is simply saying the sentence imposed is harsh or excessive.  In submissions, counsel for the Appellant argues the main issues are whether there is in all the circumstances a reasonable doubt as to the safeness or satisfactoriness of verdict and whether there is an identifiable error in the learned trial judge’s exercise of his sentencing discretion that has the effect of vitiating the sentence. 

Law on appeals from conviction

3.	Section 23(1) of the Supreme Court Act provides that in in the determination of appeals in ordinary cases “… on an appeal against a conviction the Supreme Court shall allow the appeal if it thinks that – (a) the verdict should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; or (b) the judgement of the Court before which the Appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or (c) there was a material irregularity in the course of the trial, and in any other case shall dismiss the appeal.”  The Supreme Court in John Beng v. The State [1997] PNGLR 115 said at page … “On appeal against conviction, … the Supreme Court must be satisfied that there is in all the circumstances a reasonable doubt as to the safeness or satisfactoriness of verdict before the appeal will be allowed.”  This was followed in Bernard Touramasong and Others v. The State [1978] PNGLR 337. 

Law on appeals from sentence

4.	We agree with counsel for the Appellant that the principles to be observed in determining sentence were stated in William Norris v. The State [1979] PNGLR 605 and were concisely outlined in John Vali v. The State [2007] SCRA 61 of 2004 (29 June 2007) provides a concise outline of these principles:  “On an appeal against sentence the Appellant must show that there was an error by the trial judge which permits the appellate court to interfere with the sentencing discretion of the trial judge.  Errors which might be made by the trial judge are: Mistake of fact; Acting on a wrong principle of law; Taking into account irrelevant matters; Failing to take into account relevant matters; Clearly giving too much or not enough weight to matters taken into account. Even if no error can be identified, if the sentence is out of all proportion to the crime, error will be inferred:  See Norris v The State [1979] PNGLR 605 AT 612-613 PER Kearney J. and Gimble v The State [1988-89] PNGLR 271 at 272.”

The Indictment and Brief Facts 

5.	At commencement of the trial the State Prosecutor presented the indictment stating “WILSON FUNIL of Yawakaka Village, Balanataman LLG, Rabaul District, East New Britain Province stands charged that he on the 19th day of April 2015 at Kereba Block, Gazelle District, East New Britain Province in Papua New Guinea sexually penetrated Girit Tiut without her consent by introducing his penis into her vagina AND at immediately before the commission of the offence, the said WILSON FUNIL threatened to use a weapon namely a bush-knife on Girit Tiut AND the said WILSON FUNIL committed the offence against Girut Tiut who has a mental disability.”  The indictment was presented pursuant to section 347(1) and (2) of the Criminal Code.  The brief facts presented by the State that were recited to the Appellant by the learned trial judge were that “On 19 April 2019 between 2pm and 3pm, the accused was at Kereba block, Gazelle District, East New Britain Province.  The complainant is the sister-in-law or “tambu”.  The State says that – alleges that on that date, time and place; the accused raped the complainant, who was collecting vegetables and was on her way home.  The accused met her and asked her to climb mustard, ‘daka’.  After she got mustard from the tree and came down, the accused grabbed he hand, pulled her to the nearby bushes and pointed a bush knife at her, and ordered and stopped her from screaming.  He then removed her laplap, pants and inserted his erected penis into her vagina.  After sexually penetrating the complainant, the accused left the complainant who went home and told her family about what the accused had done to her. …”  In response to the charges and brief facts, the Appellant admitted having sex with the victim but said “we agreed to have sex”.  A plea of not guilty was entered. 

Issue at trial

6.	From the Appellant’s response, the issue at trial was whether the victim gave her consent to having sexual intercourse with the Appellant in circumstances where the victim was apparently suffering a mental condition that raised doubts as to whether she had the ability to understand and agree to the act of sexual intercourse with the Appellant.  

Evidence adduced at trial for the State

7.	At trial, the evidence for the State comprised documents tendered by consent, oral evidence of the victim’s brother George Tiut and oral evidence of the victim herself Girit Tiut.  Both witnesses gave evidence under oath and were cross-examined by the Appellant’s lawyer. 

8.	George Tiut (“George”) was the eldest brother of the victim.  He worked as a security guard at a nearby high school.  His evidence was that he was the eldest brother of the victim who was the eighth born in the family and although she could do most things like everyone, she would ask for help in some simple day-to-day things like asking that we feed her as one would for an infant and when she chewed betelnut she would speak loudly.  He recalled that on the day of the incident he was home after he had finished work and returned to the house.  The victim was at home and immediately told him that she had gone to the bush to search for “kumu mosong” or greens to cook and eat when the Appellant followed her and “forced her with a knife – forced her to the bush and then sexually penetrated her”.  She told George the Appellant had said to her if she told anyone, he will cut one of her legs.  The Appellant then told her to climb a mustard tree which she did and when she descended the tree, she came crying to the house and told him the Appellant “forced me with a knife and sexually penetrated me”.  George then took her to the hospital and to the police station to report the matter.  In cross-examination, George confirmed “She said he had forced her with a knife”. 

9.	Girit Tiut (“the victim”) was then called to give evidence and the court allowed an adult to accompany her in the witness box.  He was identified as a security supervisor who worked with George.  The victim gave evidence in her local dialect Kuanua.  The victim pointed at the Appellant when identifying him by name.  The prosecutor then asked “The accused, this person sitting in court is telling the court that two of you had sex in the past with your consent.  What do you say?  Both of you agreed” to which the victim answered, “That is true, your Honour”.  It then became obvious to the court the victim was uncomfortable giving evidence when the learned trial judge said “Looks like she is timid and that is why she is holding back, it appears because of the presence.  And she probably might have a – might have special order measure – measure orders issued, especially the partitions so she can be free.  She is like a bot timid to give her evidence.  Yes, the way she is sitting back and you know, looking at the victim – the accused.  We can put up a partition.”  A partition was then put up shielding the victim from the view of the Appellant in court.  The victim then said the Appellant did a “bad thing” to her.  She used the term or phrase in local kuanua language “purpuruan”.  She then appears to contradict her own evidence somewhat.  When asked “Did you agree first to for him to have sex with you or not?” to which she answered “No, your honour.  He removed his laplap”.  When asked again “Did both of you agree to have sex or it was only Wilwil that wanted to have sex with you?” and she answered “Yes, your honour, both of us wanted to have sex.”  The victim then goes on to tell the court the Appellant was carrying a bush knife and the Appellant told her he was going to cut her, and she believed he would cut her with bush knife.  When asked again whether she agreed to have sex after she saw he was holding a knife and after he threatened to cut her, she said “no, your honour” and when pressed “You still did not want to have sex with him?” she answered “No, your honour.  I still – I did not want to have sex with him”.  The victim then confirmed telling her brother about the ordeal when she arrived back at the house.  In cross-examination, at first, she denied agreeing to have sex with the Appellant although she admitted she had removed her own clothes but then she maintained she never agreed to having sex with the Appellant.  This was reinforced in re-examination when she said the Appellant had forced her to have sex.
         
10.	Six documents were tendered with the consent of the Appellant and marked as exhibits including the record of interview and associated statements of police officers but a document, critical to the issue raised, was not included in the Appeal Book and that was Exhibit S4 which was a Statement of Pius Norugua.  We have been denied the opportunity to consider for ourselves the contents of that report as to the victim’s mental condition however we note from the transcript at page 25 of the Appeal Book that counsel for the Appellant specifically said she consented to the document being tendered by the State.  On presentation of this document by the State Prosecutor, the author of the report Pius Norogua is described as being an officer from Callan Services which is commonly known to be a non-government organization and service provider for persons with disabilities with operations in various parts of the country including Rabaul.  We address this evidence relying on the discussion of the learned trial judge who had before him the original report by Pius Norogua and that document was also referred to by counsel for the State and for the Appellant. 

Evidence adduced at trial for the Accused/Appellant

11.	The Appellant gave evidence under oath saying they both planned, met and had sex.  The Appellant denied he forced her to have sex and maintained she agreed to have sex with him. The Appellant admitted he was holding a bush knife at the time but said he was returning from the garden when they met and had sex.  The Appellant also denied knowing the victim had an intellectual disability.  No other evidence oral or documentary was presented for the Appellant. 

The Appellant’s arguments at trial

12.	Counsel for the Appellant argued sex between the two was planned and consensual.  The Appellant did not force or threaten the victim who willingly undressed herself and engaged in the act of sexual intercourse with the Appellant. 

The State’s arguments 

13.	Counsel for the State argued the court take note of Section 347A(1) which provides that “consent” means free and voluntary agreement and subsection (2)(f) which provides for the circumstances in which a person does not consent to an act and that includes where the person is incapable of understanding the essential nature of the act or of communicating his unwillingness to participate in the act due to mental or physical disability.   

Findings and comments of the Trial Judge on the evidence

14.	Firstly, the learned trial judge described and found the victim was an adult woman aged 35 years with intellectual impairment or mental issues and this was based on the report of Pius Norogua, coordinator of Callan Services, Rabaul.  The learned trial judge then referred to the apparent inconsistencies in the victim’s evidence but said “all throughout the rest of the examination-in-chief and cross-examination, the complainant maintained that she never agreed to have sex with the accused.  He threatened her with a bush knife and forced her into having sex with him.” 

15.	The learned trial judge went on to say “I have observed closely the complainant’s demeanour.  At times, because of the kind of person she is, she went off track in answering questions.  She was slow and took time in answering questions.  Her behavior was consistent with the report from the coordinator of Callan Services of the kind of behavioural pattern of a person suffering from intellectual impairment disability. But she picked up – in my observation, she picked up well and able to answer questions or, if the act on the issue of whether the act was consensual with some degree of sincerity during cross-examination and re-examination, she was sincere.  She went and reported – she went and reported the rape to her brother when she got home.  Because of this kind of – it is my observation and my personal view, I caution myself of mistakes that can be made by witnesses suffering from such intellectual disability.  Such persons can go off track and easily become emotional when hurt.  My assessment of this particular witness is that she was truthful.  She was emotional when she got home and reported the alleged rape to her brother when she got home late, because she consciously knew that accused had done something wrong or something bad upon her.  Her brother confirmed her sister reported the alleged rape to him.  He gave evidence of the appearance of the sister, she looked worried, and cried.  He then took her immediately to Kerevat rural hospital where she was medically examined – not – just after that, on that day.  …Furthermore, the accused had confirmed the exact location where the act was committed during cross-examination.  It was by the ‘gorgor’ plants, that is what he said.  He also confirmed he had in his possession a bush knife, because he said he went to the garden, but he denied threatening the complainant with it.  In my view, these are evidence corroborating the complainant’s evidence which the court is entitled to hold against the accused person.  Conclusion reached from the discussion is that sexual penetration was never consensual.  The complainant was threatened and forced into having sex with the accused person.  The State has discharged the onus of proving guilt of the accused person.  Accordingly, the accused is guilty of the charge.”

Assessment of the appeal from conviction

16.	The learned trial judge correctly identified the principal issue raised on the evidence adduced at trial and that is whether the victim knowingly gave her consent to engage in the act of sexual intercourse with the Appellant.  We find no error in the learned trial judge’s assessment of the evidence and the demeanor of the victim when she gave evidence under cross-examination with appropriate protection.  The learned trial judge correctly accepted into evidence and relied on the report of Pius Norogua of Callan Services. That report was tendered with the consent of counsel for the Appellant and so it is taken that the Appellant did not dispute the qualifications and experience of Pius Norogua to assess the victim and offer his opinion to the court as to her mental or intellectual disability. 

17.	Although the learned trial judge did not refer to the specific submission on this point by counsel for the State, we are satisfied and apply the provisions the Criminal Code in Section 347A(1) which provides that “consent” means free and voluntary agreement and subsection (2)(f) which provides that the circumstances in which a person does not consent to an act include where the person is incapable of understanding the essential nature of the act or of communicating his unwillingness to participate in the act due to mental or physical disability. In this case, the learned trail judge in reliance on the expert evidence essentially found the victim, at the time of the incident, was suffering from an intellectual or mental disability. Therefore, we go on to say the victim was incapable of understanding the essential nature of the act of sexual intercourse she participated in with the Appellant and did not give her free and voluntary agreement to have sexual intercourse with the Appellant within the meaning of section 347A(1). 

18.	We are not satisfied that there is in all the circumstances a reasonable doubt as to the safeness or satisfactoriness of verdict. 

Assessment of the appeal from sentence 

19.	The Appellant was sentenced to eighteen years imprisonment in hard labour.  By section 347(1), a person found guilty of rape is liable to imprisonment for fifteen years.  If the offence of rape is committed in circumstances of aggravation, the accused is liable to imprisonment for life. 

20.	The learned trial judge found the Appellant threatened the victim with a bush knife and then raped her.  The learned trial judge correctly found that was a circumstance of aggravation within the meaning of that phrase in section 349(A)(b) as at the time, or immediately before or after the sexual penetration, the Appellant used and threatened to use a weapon. In this case, the Appellant admitted he had possession of a bush knife.    

21.	At trial, counsel for the Appellant argued, among other matters, the only aggravating factor was that the complainant had a mental disability.  That is a misunderstanding of the application of section 347A(2)(a) which we have quoted above.  A victim’s mental or intellectual disability renders her incapable in law of consenting to an act, in this case an act of sexual intercourse or sexual penetration. Sexual penetration is all that needs to be established.  In this case, the Appellant admitted he sexually penetrated the victim. He said that was done with the victim’s consent but that was irrelevant.  The Appellant raped the victim.

22.	The learned trial judge correctly found the Appellant was liable to be imprisoned for life and gave careful consideration of the factors in mitigation and aggravation.  The learned trial judge referred to comparable decisions on sentence and we find no issue with considering a range of 14 to 18 years in the circumstances of this case.  We also echo the sentiments of the learned trial judge that persons with physical and mental or intellectual disabilities must always be treated with utmost care and dignity.  They are vulnerable to acts of physical and emotional abuse and ignorance on the part of any member of society is no excuse.  As the learned trial judge said in his decision on sentence, the Appellant “… showed no empathy towards the complainant.  He took advantage of her mental condition threatened her and raped her.  His apologies in court comes at the eleventh hour….”   

23.	The Appellant has not shown that there was any error by the trial judge. This court will not interfere with the sentencing discretion of the learned trial judge.

Describing persons living with a disability (mental, intellectual or physical)

24.	We must also comment on how nearly all participants in this proceeding offensively described the victim who we understand was born with an intellectual disability. The terms or phrases used started with a question “whether she was a normal human being like us in this courtroom or she had a problem with her brain or?” and continued “is she normal or she has got some mental issues or like half sense” and “she is not normal in the brain” and “she had sick in her head” and “not normal in the brain”. When discussing who should sit with the victim when she was giving evidence, the proposed person had “to be a normal person”.  Judges, magistrates, lawyers, interpreters and persons in the courtroom must stop using these disparaging and insensitive words when referring to a person living with a mental, intellectual and physical disability. Such terms are degrading and demoralizing. Persons living with a disability deserve our respect, care and support. 

25.	It is important to understand that disability is the result of negative interaction between an individual’s impairment (absence of, diseased or malformation of part or parts of a body) and the environment. The environment in this case is people’s attitudes, physical man-made barriers and policies. Disability is therefore not what the person considered disabled is suffering from. but the result of barriers created by the mainstream community. 

26.	With respect, we suggest the appropriate terms should always be the following. A person with a physical impairment should be described as “a person with difficulty in mobility or physical impairment” and a person with a mental impairment should be described as “a person with a learning disability” or “a person experiencing intellectual difficulties”.

27.	Our ignorance is our disability. Our ignorance is the cause of disability for the people with impairments whom we refer to as being “disabled”. Our attitudes and stigma are the barriers that create the disability

Conclusion 

28.	We have found there were no errors in the learned trial judge’s conviction and sentence of the Appellant.  The appeal from conviction is dismissed.  The appeal from sentence is dismissed. 

Order 

29.	The Court orders:

1.	The appeal from conviction of 29 November 2019 is dismissed.

2.	The appeal from sentence of 10 December 2019 is dismissed.

3.	The conviction of Wilson Funil of 29th November 2019 by the National Court in Kokopo on the charge of rape with circumstances of aggravation pursuant to section 347(1) and (2) of the Criminal Code is confirmed.

4.	The sentence of Wilson Funil of 10 December 2019 by the National Court in Kokopo on the charge of rape with circumstances of aggravation of eighteen years in hard labour with time in custody deducted is confirmed. 

Judgment and orders accordingly:

Office of the Public Solicitor:  Lawyer for the Appellant			
Office of the Public Prosecutor: Lawyers for the Respondent