State v Atua [2009] PGDC 3; DC692 (23 February 2009)

DC692

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE SITTING IN IT'S CRIMINAL (COMMITTAL) JURISDICTION]

COM NO. 18, 22 & 16, 19 of 2008

THE STATE

V

PATTERSON ATUA & VINCENT MALAGA

Tabubil: P. Monouluk, SM
2009: 06, 23, February

RULING

CRIMINAL LAW – Rape – Sexual intercourse without consent – Section 347(a) – Deprivation of liberty – Section 355(a) – Criminal Code Act Chp. 262 – Prima facie case ruling – Rape – Evidence of sexual intercourse – No evidence of threat or resistance – No evidence of lack of consent – Deprivation of liberty – No evidence of such but of possible abduction – Charges of deprivation misconceived – Insufficient evidence of rape – Doubt in State’s case – No prima facie case established.

COMMITTAL PROCEEDING – Prima facie case ruling – Charges of rape and deprivation of liberty – Regard to evidence – Whether on the evidence as it stands the defendant can be lawfully convicted should the matter proceeds to the end – State to call sufficient evidence that touches all elements of the charges – Particular offences – Rape and deprivation of liberty – No evidence of lack of consent on rape charge – No evidence of deprivation of liberty – Doubt in State’s case – No prima facie cases established.

Cases:

1. The State v. Paul Kundi Rape [1976] PNGLR 96.
2. The State v. Andrew Kawung [2008] PGDC 16; DC677
3. The State v. John Lauriston Birch [1978] PNGLR 79

References:

1. Criminal Code Act ss. 347(a) 355(a)
   

Counsel:

First Constable PW Mary-Stellar Warmanai for the State
Defendants in person

23rd February 2009.

1. P. Monouluk, SM: The defendants were each arrested and charged with one count of rape and deprivation of liberty contrary to Sections 347(a) and 355(a) Criminal Code Act Chp. 262 respectively. The incidents happened on the same date and time, at the same location and involved the same prosecutrix thus this one ruling.

2. The defendants and the cutrix were all work colleagues at a local security company here in Tabubil, WP. The first Defendant Patterson Atua from Karkar Island, Madang was its general manager, the second defendant Vincent Malaga from Rigo, Central Province was its security supervisor and the cutrix Neville Wensen, a 20 year Morobean lass was its office administrative assistance, so they all know each other.

3. On Wednesday 24th December 2008 (Christmas Eve) Atua through Malaga invited the cutrix for a dinner at the Tabubil Golf Club that evening. At about 5:15 pm she was picked up by Malaga and later joined by his girlfriend, Atua and another couple. After some changes to the plan they ended up at a dwelling house and continued drinking well into the early hours of the next morning. The cutrix was subsequently kept in the dwelling house for a further 48 hours in which time the instances of rape and deprivation of liberty took place up until the early hours of Friday the 26th of December 2008 when she was rescued by OTML securities and her relatives.

4. The court today is asked to review the evidence by the State and decide whether the evidence offered is sufficient enough for the court to rely on to commit the defendants to stand before the National Court for the charges of rape and deprivation of liberty. This is a significant question that is being asked time and time again by the courts that decide on the issue of prima facie case ruling whether the evidence as it stands a defendant could lawfully be convicted should the matter is allowed to proceed to the end, The State v. Paul Kundi Rape [1976] PNGLR 96.

5. This is a question of law, however to answer it I must look at the facts surrounding the whole incident. Because this is strictly the State’s evidence that the court has to rule on, any failure by the State to call in relevant evidence to substantiate the respective elements of the charge will leave the court no choice but to dismiss the charges and accordingly discharge the defendants. Therefore the State carries a greater responsibility to harness in all material evidence that is relevant to the issue at hand.

6. The State’s case today is essentially based on the hand-up briefs tendered to the court on the 11th February 2009. In my review of the evidence therein I am unable to find any evidence of acts of sexual intercourse between the cutrix and Malaga however there is clear evidence of such between the cutrix and Atua. The cutrix said that she was kept inside the dwelling house against her will and subjected to acts of sexual intercourse by Atua which were obtained through intimidation and force, on the other hand, Atua insisted in his record-of-interview dated 12th January 2009 that the acts were done with the cutrix’s consent, so who should I believe?

7. Before I can answer that may I first address the issue of deprivation of liberty under s. 355 of the Code. The fact that the cutrix said that she was kept against her will and subjected to rape raises issue whether the second charges of deprivation of liberty against the defendants are the appropriate ones? It is obvious from the evidence that the cutrix, apart from being held a prisoner was subjected to acts of sexual intercourse. Whether consent was obtained is another matter to be discussed later, however for our purposes it would appear that the fact that she was kept for sexual gratification, to me, is an act of abduction under s. 350 of the Code (supra) and not deprivation of liberty under s. 355 of the same.

8. The former charge firstly, deals specifically with women who have been kept against their will and secondly, the motive of their captivity was sexual in nature. The latter charge however applies mostly to the police and other law enforcing authorizes who generally have the authority to take persons into custody but may have exceeded those powers thus become ‘unlawful’ as worded in the charge. The State in this instance cannot rely on the evidence of abduction to secure a favourable ruling for a charge of deprivation of liberty. I believe the charge of deprivation of liberty under s. 355 of the Code was misconceived by the State, something I have difficulty trying to comprehend especially when the accusations leveled against the defendants are serious and may have gone to raise issues concerning their integrity and standing in the community.

9. What is now left for me to consider are the charges of rape against the defendants. May I first refresh my mind of the requirements of the law on rape because the State must now be able to call evidence to satisfy each element of the charges to gain a favourable ruling from the court. The charge of rape under s. 347(a) of the Code is as follows:

"347 Definition of rape

A person who has carnal knowledge of a woman or girl not his wife –

1. without her consent; ...
   

is guilty of the crime of rape.

Penalty: Subject to Section 19, imprisonment for life."

10. For the court to make a finding of prima facie case on a charge of rape it must be able to identify from the materials tendered all relevant and appropriate evidence sufficient enough to touch all important elements of the charges against the defendants. In this instance, and apart from the usually identification of the defendant, date, time and the location of the incident, the State must be able clearly show act(s) of sexual intercourse or penetration and was done without consent or the consent was obtained through intimidation or under false pretence. In this case all aspects of the charge are not being denied except for the lack of consent bit that Atua insisted was given by the cutrix freely.

11. In order to answer the question I first posed as to who I should believe let me begin by looking at the part the cutrix had played in the whole episode of their encounter. It is evident that the whole dinner/beer party went well until the early hours of Thursday morning (25th December 2008). According to the cutrix, the unlawful acts began at about 1:30 am when Malaga and his girl friend went out of the house onto the veranda and locked her inside the house with Atua. At this point Atua walked up to the cutrix who was at the living room and grabbed her by her hands and dragged her into one of the rooms. She managed to scream but to no avail and was too weak to struggle as a result of the alcohol. She said that once inside the room Atua pushed her onto a bed next to the window and sat on her legs preventing her from getting up. He then undressed her before taking off his clothes and then went on to wear a condom before separating her legs and penetrated her. After he had finished he got off the bed put on his clothes and then returned to lie next to her. The cutrix said that she was weak and tired after the act so she went off to sleep.

12. At about 10 o’clock the next morning (Thursday 25th December 2008) she was woken up by Atua whispering into her ears wanting to have sex once more. She said she refused and turned away from him but Atua persisted and began seducing her with complementary remarks of her and his intention to eventually marrying her. She said that while saying all these Atua was caressing her breasts and kissing her before separating her legs and penetrated her once more, again using a condom. After that she went out to use the toilet before having her bath and returning to sleep. She said she was again woken up by Atua between 3 – 4 pm who gave her something to eat. Later she asked to go home but Atua insisted that she remain with him for two more nights before she can go. She said she was not happy but went back to sleep. At about 8pm and whilst asleep she felt Atua undressing her. She said she refused and tried to resist but Atua was forceful and managed to undress her then lifted her legs over his shoulder before penetrating her using a condom once more. After that he went off and the cutrix put back her clothes and, as usual, went back to sleep.

13. Later in the evening the cutrix was woken up by Atua and Malaga who informed her that she will be returned home by Malaga since the OTML security officers were out looking for her. It was at this point that she remembered her handbag which was at the living room so she went out of the room and returned with it. Once inside the room she retrieved her mobile phone and noticed that her elder sister namely Saka had tried calling her 25 times earlier but each time her attempts were in vain because the phone was switched off. At this point the cutrix received a text message from Saka who asked her why she was not responding to her earlier calls. In respond the cutrix texted in pidgin "bai mi kam" meaning that she will come home. She did not say when she will return and where she was. Few minutes later Atua returned to the room and advised her that the OTML securities were outside the house in search of her and left to speak with them. She said that from the inside of the house she could hear Atua lying to them that she was not in, however an officer who happened to be an uncle to the cutrix namely Abraham Masia insisted and entered the house and found her inside the room. He was not happy with her and consequently assaulted her before taking her out of the house to her elder sister Saka who also showed her frustration and displeasure by assaulting her further.

14. What can I deduce from this evidence may I ask? It is obvious from the evidence by the cutrix and Atua that the acts of sexual intercourse did take place between them but none between the cutrix and Malaga or any evidence of any attempt by Malaga. As for Atua, the State insisted that these acts were obtained without consent; however that is not what it seems as seen from the cutrix’s evidence. Apart from what she had to say, I am able to visit the crime scene and was able to visualize and appreciate the surrounding under which the State says the crime was committed.

15. To me there appears to be no evidence that the cutrix had made any attempt to call out for help to the neighbouring residents although there was possible of being easily heard outside and despite numerous opportunities to do so on the part of the cutrix. My observation of the houses at the crime scene shows that houses were fairly close to each other. From the drive way in, a neighbouring house across the road was about 10-15 meters away. The adjacent houses on either side were about five meters apart and the house behind was about 10-12 meters away. The only time the cutrix made any attempt at all to scream for help was when she was dragged by Atua from the main door towards the bedroom and that was the only attempt she made for the next 48 hours. In fact my observation of the room in which she was held captive and raped shows that the room window opens towards the windows of an adjacent house, which I have said was a mere five meters away. Any genuine scream for help or struggle within the room area would have been easily heard by the neighbours. There is no other evidence to indicate that the cutrix has had her mouth bound to prevent her from screaming had she wanted to.

16. Neither is there any evidence that the cutrix made any genuine attempt to fight off Atua or escape from her captors. The door to the room had no lock from either the inside or the outside, neither was she bound in any form or manner to prevent her escaping through the main door or through the fire escape in the neighbouring room. What is apparent though is that every time Atua finishes having sex with her she simply rolled over and, interestingly, went back to sleep instead of making any real attempt to scream for help or escape through the bedroom door. It is absurd and baffles me how a raped victim can find comfort to sleep in total peace in the company of her captor and rapist.

17. Evidence do show that on one occasion the cutrix made her way out of the room to use the toilet and then had her bath before returning to the room without attempting any escape. On another she went out to the living room to retrieve her hand bag. I am made to believe that the cutrix may have been allowed to move freely inside the house and those unrestricted movement were perfect opportunities for her to escape to freedom yet she passed them by for a life of a prisoner instead. Furthermore, she had the opportunity to inform her relatives of her location to rescue her using her mobile phone; however for reasons only known to her she told them to wait for her return and did not even bother to tell them that she was a captive, who were her captors and where she was held. Furthermore, when the relatives and the security guards came to the house in search of her she made no attempt at all to indicate to them of her presence in the house. Instead she stayed quietly inside the room and an officer had to force his way in to find her sitting on the bed. It is rather strange to note that the cutrix showed no sign of relief when first found. It seemed to me she was disappointed at being rescued.

18. Although the cutrix said Atua had used force upon her she was not able to elaborate further the nature of the force. I am not able to find any evidence that Atua and Malaga may have used force or undue influence to hold the cutrix against her will and for Atua to have sexual intercourse with her. This issue of force or undue influence is an important consideration that goes to show how sexual intercourse may have been obtained and without such then it may not be convincing that rape had taken place.

19. I have said in May 2008 in an earlier case of The State v. Andrew Kawung [ 2008] PGDC 16; DC677 citing the case of The State v. John Lauriston Birch [1978] PNGLR 79 where Justice Greville Smith said in Kavieng that:

"... as a matter of common sense and reasonable inference, if no force was used then it follows that there was no resistance, and if there was no resistance then there was consent".

20. It is imperative upon the State to exhibit evidence to show that sexual intercourse was obtained under circumstances that go to show that the consent so obtained was made under tremendous stress leaving the cutrix with no option but to submit in order to preserve her life or limp or that of another. What is evident from the cutrix’s own evidence was that Atua had seduced her with a gift, then a promise for more and an opportunity to marry him. In this case the cutrix has had the choice to refuse sexual intercourse by refusing those promises as opposed to having no choice at all in a typical rape case.

21. May I reiterate what I have said in the Kawung case that:

"this common sense view of the case is applicable to the case at hand; however we must not loose sight of the fact that there are instances whereby no resistance was offered maybe because of threat or for reasons other than sexual without realizing that the accused was in fact acting under false pretence as was in the case of The State v. Andrew Tovue [1981] PNGLR 8 where the cutrix was led to believe that she was undergoing traditional ‘treatment’ for some medical disorder. When that happens then consent in that type of scenario cannot be interpreted as such under law with respect to sexual intercourse therefore the court must make a finding against the defendant".

22. In answering the question I first posed, I must say that I believe what Atua had said concerning consent. While there is obviously no evidence, whether direct or indirect, of sexual intercourse between the cutrix and Malaga, there is however an abundant of it between the cutrix and Atua however the State cannot show that those instances of intercourse were obtained without consent. To me it was a planned outing by the cutrix and the defendants which went horribly wrong when she over stayed and to cover up her mistake she lied to her relatives and the authorities that she was held against her will and subjected to raped. The relatives knew the cutrix was hiding something because when they first located her they proceeded to assault her instead of comforting her. They knew she was not a prisoner or a victim but a girl who ‘just wanna have fun’ but had gone beyond their expectations. It is clear from the evidence or the lack of it that there was no reason to have had the defendants arrested in the first place. I believe the cutrix owes a lot of people an apology and the defendants may have a good case of malicious prosecution.

23. I hereby dismiss the charges of rape and deprivation of liberty and discharge the defendants forthwith.

Orders accordingly.