State v Benson [1996] PGNC 33; N1549 (18 September 1996)

Unreported National Court Decisions

N1549

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR 96 OF 1996
THE STATE
v
BONNY YAKA BENSON

Waigani

Passingan AJ
9-10 September 1996
17-18 September 1996

CRIMINAL LAW - rape - prosecutrix not called to give evidence - evidence of witnesses accepted - Medical evidence - adverse inference drawn from the accused’s failure to give evidence - Inferences available - determined by common sense.

Sentence:

Rape of victim 11 years by an adult.

Cases Cited:

The State v Suguevi Sipi [1987] PNGLR 357

Paulus Pawa v The State [1981] PNGLR 498

John Aubuku v The State [1987] PNGLR 267

Trial

The accused pleaded not guilty to an indictment charging him with one count of rape pursuant to s. 347 of the Criminal Code. He has also pleaded nilty ilty to the alternative charge of having unlawful carnal knowledge of a girl under the age of 16 years pursuant to s. 216 of the Criminal Code.

Cl:

L Maru for the State

D Sakumai for ther the Accused

PASSINGAN AJ: The offence is alleged to have been committed on the 21st day of October, 1995, at the Gateway Hotel at 7 Mile, Port Moresby.

The State case comprised the oral evidence of Leonie Bartley, the Investigating Officer, who was present when a statement was taken from the victim by Constable Wenge. She made somervations and and conducted a record of interview with the accused on the 21st day of October 1995 at 1.00 pm. The record of inew was thes the subject of a voir dire in which I made a ruling that in the exercise of the Court’s discretion, the document was inadmissible in evidence.

The second witness was Willie Ropa, a security guard at the Hotel. He was on duty on tht day day of October 1995 at about 2.00 am. Whilst manning the-gate hete he was checking the poolside area when he found a small girl (the victim) crying. Sh asked why she was cryincrying and that she answered in therds “a man in Room No. 227 brought me there and rapedraped me”. The witness continued.&#He0; He called out to her.& He noticed blood flowing fing from her legs and trousers. He gave hme toilet tissuesssues and then brought her to the Receptiore the 6 Mile Police were contacted. When Police arri arrived, Room No. 227 was locked. A key was tfrom the Recepteceptio the room was opened. #160; The witness obd bloodblood on the floor and the accused fast asleep on the bed naked. Attemptsake h failed ann when when ice-water was poured over him, he woke woke up. He hen handed over to the the police.

The third witnes Constable Michael Geketa, who attended at the scene (Hotel Room) with the other police meme members between 1.00 am and 2.00 am on tst day of October 1995.&#16. Onval, he saw the victim wtim with the security guards and that ss crying. She had bhad bruises r necr neck, shoulder and sides. That she was in a state of shock. When Room No. 227 was opened he saw blood onfloorthat the accused’s bed was in disorder.&#16. The CID Police took sootoghotograpographs and then the accused woke up.&#160was sing and mumbling.ling. That the accuas drunk.

The fourth witness was Sergeant Luke Kupundu, the Police Photogr. Hecalled to thto the scenescene and took a number of photographs of the room and the accused. On al he saw the accused sed naked and fast asleep on his bed. H blood stains on the floo floor near the bed.&#16. He took phoths of the room room inng the blood stains.

The final witness was Dr David avid Inaho of the Port Moresby General Hospital. On the 21st day of Octob95, about 7.15 am he examined the victim. Among otherother findings, the Doctor’s Report shows:

“There were t fresh laceration seen at the vaginal fourchette, valva and vagina - meaning that there ware was external manipulations to the privarts recently.”

On the basis of the above findings, I conclude that:

(a) the victim had been sexually assaulted;

(b) &ـ the vice victim waim was sexually assaulted at the time she wasged te beeed.A tof five (5) photographs were tendered in evidence (Ece (Exhibixhibit A1 t A1 - A5)- A5).&#16. Exhibits A1,nd A4 show a vw a very young girl with obvious bruises on the right shoulder and neck area. Cones Michael and Leonie enie estimated her height to be just one metre. The Doctor’s affidaoit does not refe refer to the age of the victim, but in his evidence, he estimated her agee about 11 years.

I

I have not had the opportunity to observe the victim as she was not called to give evidence. However, hotographs clearllearly show a very young girl in school uniform and in my view with a height of not much more than one metre.&#I am satisfied that 11 years is a reasonable estimate. That is vidence for the Sthe Sthe State.

At the close of the State case a submission of no case to answer was made by Mr Sakumai, Counsel for the Accused. I maduling that the Accuseccuseda case to answer.

DEFENCE CASE

The accused elected to exercise his rights to remain silent. And no otitnesere called.

THE ISSUES

The iThe issues before me on this trial are:

(a) ; Firwhet er the State has has proved the elements of both counts beyond reasonable doubt;oubt;

(b) &##160;onas sued sued bydefbydefence, that in the absence of the oral testimony of the vice victim, tim, therethere is n is no evidence either of rape or unlawfulal knge, and therefore, the accused be acquitted; and and

(c) s w i Cohet tortreat the wthe whole evidence in light of the accused’s exercise of his right of silence.

On the first issue, I am satisfied on the nce the ac had ht thsecutrix, a young gung girl oirl of abof about 11ut 11 year years to Room 227 at the Gateway Hotel on the 21st day of October 1995. That at the relevant time they were alone in the room. Fur the accused then had uhad unlawful carnal knowledge of the prosecutrix without her consent. I lack of consent on the fthe following basis:

(a) &##160;; the pute putrix waix was a child of 11 yea1 years as compared to the accused a full mature adult;

(b) ـ the prorecutri on h on hy home from school when tricked by the accused aned and kepd kept in a hotel room, a form of imprisonment or against her will;

(d) ; the prosecutrmx demonstranstrated her disapproval by escaping from the hotel room and making a complaint to Willie Ropa, the security guard.

On the whole of the evidence before me, I am satisfied beyond reasonable doubt that the accused, Bonny Yaka Benson, had unlawful carnal knowledge of the girl Saina Joseph aged 11 years without her consent.

The second issue arises out of the fact that the Prosecutrix was not called to give evidence in the trial. The reasons were not disd osed by the State.

Mr Sakumai for the accused submits that in the absence of the oral testimony of the prosecutrix therno evidence either of rape or unlawful carnal knowledge, and therefore his client should beld be acquitted.

In my view, this is an unusual course taken by the State in a rape trial. Inabsence of any reason gion given why the Prosecutrix is unable to give evidence and the fact that she is only a child of about 11 years of age, the Court will proceed and deal with the matter the Prosecutrix was found ound unfit to take the oath or affirmation. That even if she was pre bnt, because of her age she could not or would not speak.

I adopt the case of the State v Sugueri Sipi [1987] PNGLR 357 as my authority for taking this ach. On a charge of attempting to have unlawful carnacarnal knowledge of a girl under the age of 10 years, the victim aged 8 years did not give evidence. The r of the victim gave eave evidence of what she had seen which was accepted by the Court. The ac’s evidence dece denying the charge was rejected. At page His Honour King, Ang, AJ said:

“As to the matf corroboration, despite Mr Wenge’s submission, I regard the evidentiary rule about cout corroboration as going no further than, that in a sexual case thee the evidence of the victim should not in most instances be acted on without corroboration. Here thtim did not give evve evidence but an eye witness, her mother, did...

I cannot as a matter of law accede to Mr Wenge&#821ubmission that in this there must be corroboration of the mother before a conviction can bean be recorded.

Finally, it seems to me that the mother’s evidence, which I have accepted and which describes the position in which she saw her daughter and the accused when naked and when the accused had an erection really leaves open no other inference than that he was about to engage in some form of carnal knowledge of the girl...”

On the basis of the evidence of Willie Ropa, the security guard, Constable Michael Geketa and the Sergeant Luke Kupundu (that the victim was found crying and made a complaint of rape against the accused, she had injuries and blood was seen flowing down her both legs, there was bloodstains on the floor tiles in Room No. 227, and the accused was asleep naked on his bed and supported by the medical evidence I am satisfied beyond reasonable doubt that the evidence leaves no other inference than the accused had just had unlawful carnal knowledge of the girl Saina Joseph without her consent. The imme attention by the the witnesses to be in Room No. 227 strengthens the State case, even in the absence of the oral evidence of the Prosecutrix.

Finally, a consideration of the whole evidence in light of the Accused’s exercise of his right to remain silent.

On this point, I refer to the Supreme Court case of Paulus Pawa v The State [1991] PNGLR 498 as to what inferences the court is entitled to draw when an accused person fails to give evidence or to call evidence to support his case. Thition is set out clearlyearly in the headnotes at p. 498:

“Where an accused person fails to give evidence or to call witnesses to support his case, any inferences to be drawn and the weight to be attached thereto must be determined by common sense having in mind that:

(1) The faioure a ansedcuersoperson is not an admission of guilt and no inference of guilt may be drawn therefrom;

(2) Failureyttifevhow atlln edan ed person in that ihat it mayt may stre strengthengthen then the State case by leaving it uncontradicted or unexplained on vital matt/p> <ـ҈& Failure to testifystify only only beco becomes ames a rele relevant consideration when the State has established a prima facie case;

(4) ҈ eie w toht to be atbe attached to failure to testify depends on the circumstances of the case. Signit circumstances incluinclude:

(a) &#160therethe truth is not not easily ascertainable by the Stat probably well known to the accused;

(b) ټ whetherether the ethe evidence implicating the accused is dior citanti”

On

On the the whole of the evidence before me I am satisfied that the State has proved the charge of rape laid against tcusedond reasonable dole doubt.&ubt. And I enter a verdict of guilty of rape pursuant to s. 347 of the Criminal Code.

VERDICT

Guilty of Rape.

REASONS FOR SENTENCE

This Court has convicted you of a serious charge of rapsuant to s. 347 of the Crim Criminal Code. The facts and circumes ares are set out in the judgment I delivered on the 17th September, 1996.

It appears from the evidence that you knew the victim and she also knew you because you come from the same a#160; I have found on the ethe evidence that she was about 11 years old and she was a school girl.

There is no doubt that on the 20th of October 1995, about 2.00 pm, she was at the Port Moresby Bus Stop waiting to catch a bus to Morata. She was alrin Bus No. 8 wh 8 when you callr out. It was atas at your suggn tion that she went with you to the Lamana Motel Pokeb and finally the Gateway Hotel. Now, the no suggestion than that physical force was was used early on the trip.

Your case wtrial case. After ther the verdict oltguilty was recorded you still maintained your innocence in your allocutus.

I take into account the following mitigating factors as submitted by your counsel:

(a) &##160; yoatare are a firs first offender at the age of 45 years;

(b) that you have been in cusfody for almost 11 months;

(d) ҈& that inat inspite pite of the age of t of the vihe victim (11 years) from the medical evidence, she suffered no permanent injuries to her private part.

On the whole it is submitted on your behalf that the Court be lenient with you.

On the other hand this is a serious crime which attracts the maximum punishment of life imprisonment, depending on the types of rape.

It is very prevalent and much more serious in the case where the victim is so young. You ard 45 and the victim ctim was aged about 11 years. She did sustasome injuriesuries to her body and bleeding from her privatt. Sll have to live with the the painful memories of what you did to her.

I cp>I consider that yours is a case of rape tted adult without anut any other aating or mitigating featufeatures apart from those sete set out above.

According to the guidelines set out in the Supreme Court case of John Aubuku v The State [1987] PNGLR 267, a figure of five years should be taken as the starting point.

My conclusion on sentence is that a sentence of 8 years imprisonment is appropriate. You are ther sentenced to d to eight (8) years imprisonment in hard labour, less 11 months in custody. You o serve the balance ofce ofars 1 month imprisonment in hard labour.

Lawyer for the State: Public Prosecutor

r

Lawyer for the Accused: Public Solicitor