Unreported National Court Decisions
N1511
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
CR 954 OF 1996
THE STATE
v
PAUL BEN KUMAN
Mount Hagen
Lenalia AJ
24 December 1996
30 December 1996
CRIMINAL LAW - Rape - Not guilty plea - Trial - Criminal Code S. 347 (1) (Ch No 262).
CRIMINAL LAW - Rape - Defence of a valid subsisting marriage - Insufficiency of such evidence.
CRIMINAL LAW - Practice and procedure - Evidence in sexual cases - Corroborated as a matter of practice - A requirement.
The accused was charged with one count of raping the prosecutrix who has since been deceased and whose death was unrelated to this offence.  His defence was that of a validly subsisting marriage between him and the victim at the time and date of the offence.
Held:
(1)      Where marriage to the prosecutrix was raised as a defence to a charge of rape, the defence must prove on the balance of probability that there exists a valid subsisting marriage between the accused and prosecutrix.
(2)      There being no evidence to support a customary nor a general law marriage, the accused must subsequently be found guilty of the charge of rape.
(3)      In all circumstances of this a custodial sentence is appropriate but should be suspended.
Cases Cited:
The following cases are cited in the judgement:
Kaina v The State [1990] PNGLR 292
Peter Townsend v George Oika [1981] PNGLR 12
Andrew Tovue v The State [1981] PNGLR 8
Deidei v The State [1990] PNGLR 458
John Aubuku v The State [1987] PNGLR 267
Materials referred to:
“The Principles of Family Law in Papua New Guinea” by Owen Jessep & John Luluaki see pages 17-18
Counsel:
S Carter for the State
B Aipe for the Accused
JUDGEMENT ON VERDICT
30 December 1996
LENALIA AJ:  The accused stands charged that on the 6th of May 1996, he raped Rose Tom a female person not being his wife.  He entered a not guilty plea on the basis that there was a subsisting marriage between him and the prosecutrix.  There is no dispute as to whether or not sexual intercourse took place.  The accused therefore alleged that sexual intercourse was a consensual act.  It is very unfortunate that the victim is now deceased and she cannot exactly retell to the Court what occurred to her and whether there was any subsisting valid marriage between her and the accused.  The State mainly relied on the evidence adduced by the cousin sister of the prosecutrix Peter Rose who accompanied the victim to the main bus stop on the morning of the relevant date.  She was the only witness called by the State.
Peter Rose’s evidence is that on the date of this offence, the victim and herself walked up to the main bus stop to wait for a PMV to take them to Kundiawa in the Simbu Province.  While they were waiting the accused approached them and enquired if the two girls had sufficient monies for their PMV fares.  This witness evidence is that the accused suggested to them that the prosecutrix should go back with him to pick some more money.  They agreed and the accused asked the witness to stay at the bus stop while Rose Tom and the accused walked towards Warakum holding their hands together.
After waiting for a long time (estimated to be more than one hour) the prosecutrix returned crying.  Peter Rose asked the victim why she was crying and the prosecutrix said the accused had done something bad to her.  Later in cross examination she qualified “something bad” to mean the accused had sexual intercourse with the victim against her will.  The prosecutrix immediately asked this witness to accompany her to the police station where she laid her complaint and in the afternoon of the same date the accused was arrested and charged for rape.
Part of Peter Rose’s evidence is that, although she had been with the prosecutrix’s father for some five months, she never knew anything about any relationship between the accused and Rose Tom.  She even denied any affair between them.  She had never seen the accused and the prosecutrix walking alone or being together in the prosecutrix’s father’s house.  She did not even know if Tom Rose and the accused were married.
Just to reiterate again sexual intercourse is not denied.  The accused’s evidence is that in the morning of the date in question he took the victim to his house in Warakum and while they were in the house they hugged and kissed each other after which consensual sexual intercourse took place.  As I have said, it is rather an unfortunate situation where the prosecutrix cannot either refute or confirm any martial relationship between her and the accused.  A statement by Veronica Otto Wike was tendered and which I accepted as part of the State’s evidence despite objection by the defence counsel that if the Court was to accept that piece of evidence it would offend against the hearsay rule.  The basis of the defence objection is mainly that such evidence if accepted would basically be hearsay.  It is my view that there is no harm if I were to accept that part of her statement as it is not hearsay.  The particular piece of evidence contained in Veronica’s statement relates to her knowledge of no existence of any valid marriage between the accused and the prosecutrix.  The statement is that the accused is her relative living with them at the same Gumini Settlement Camp at Warakum and she denied the accused was ever married to the prosecutrix at the time of the offence.  She also denies seeing the prosecutrix prior to this incident suggesting that if there was any relationship at all between the accused and the prosecutrix, she would have known of it.  She says it was her first time to see the prosecutrix.
Her evidence is suggestive of two factors.  First, if the accused was ever married to the prosecutrix their custom may demand some sort of public celebration.  For instance payment of a bride price or something of that nature.  Secondly, that piece of evidence may have some bearing in the evidence by the accused that they come from the same village with the prosecutrix.  The evidence shows that the accused comes from Gumine while the prosecutrix comes from Sinasina District.
The defence evidence it that when the accused saw the prosecutrix and the State witness at the bus stop, he invited the victim to go with him to his house at Warakum so they could take extra money with them to Simbu.  His evidence is that the prosecutrix could not be satisfied with an amount of K14.00 he had offered her.  She wanted K30 or K40 to be given to her.  That after sexual intercourse an argument developed during which the accused said he slapped the victim very hard on the road and that was the reason why the victim started to cry.  When cross-examined, the accused admitted that the victim started to cry in the house because he had first assaulted her in the house.  The second time he hit her was on the road.  Part of his evidence is that he had maintained this relationship with the victim from their village.  As I said it is not clear from the evidence whether the victim and the accused come from the same village.
I am of the view that where marriage to a prosecutrix is relied on as a defence to a charge of rape, the existence or otherwise of a subsisting valid marriage must be proved see Kaina v The State [1990] PNGLR 292. In that case the Supreme Court said that where marriage to a victim is raised as a defence to a charge of rape, a trial judge must satisfy himself or herself about an existing marriage and that the verdict of guilty in that case was unsafe and unsatisfactory on the basis that the material upon which the question of the existence or otherwise of a subsisting valid marriage might have been determined was not identified nor were there findings as to the relevant custom made.
In chief the accused was asked how was he married to the prosecutrix.  He simply replied that the victim was to him a “girlfriend”.  I must say that marriage is not the same thing as being a girl and boy friends.  Being a boy friend of the prosecutrix did not in any way give the accused the right to have sexual intercourse with the prosecutrix by force.
It is evident from the facts of this case that there is no evidence of any subsisting valid marriage either by custom or by general law.  There is no definition of “customary marriage” to be found in the Marriage Act Ch No 280 nor in the Customs Recognition Act Ch 19.  Section 3 (1) of the Marriage Act, a native other than a native who is a party to a subsisting marriage under Part V of the Marriage Act may enter and is capable of entering into a customary marriage according to prevailing customs in the tribe or group to which the parties belong.  Sub-section (2) of that Act recognizes a customary marriage to be valid and effectual for all purposes.
Far from setting out any requirements nor formalities to be observed the statute simply says that to be valid, the marriage must comply with the custom of the tribe or group to which the parties “or either of them” belong.  What the custom of the parties is in a particular case, therefore, is a question of fact.  Under the Custom Recognition Act (Ch 19), a Court is not bound by strict rules of evidence in considering the nature and meaning of custom and may in addition to any oral evidence receive information from books, District Officer reports or other sources.  If there is conflicting evidence, the court may choose to adopt the version of custom which it thinks more appropriate and which the justice of the case requires: see SS. 2, 7 - Customs Recognition Act.
A customary marriage unlike in the case of a marriage by statute inevitably creates great difficulties for persons seeking to prove existence of  his or her marriage in the legal context.  Professors Owen Jessep and John Luluaki describe how a customary marriage is established in the following terms:
“The nature of customary marriage inevitably produces difficulties for persons seeking to prove the evidence of a marriage in a legal context.  Customary marriage in Papua New Guinea are established in different ways in different places, variously involving bride price or marriage payments, prior betrothal arrangements, consent and negotiation by parents or relatives, facts or other ceremonial aspects, common residence, birth of a child or gradual acceptance by the parties’ kin groups and relatives, and the community in which they live. Moreover to speak of essential requirements or “formalities” for a customary  marriage can be misleading, especially if the formalities are not necessarily observed in practice, or only after a long period of delay, or if there are alternative ways in which a marriage may be established.  Even if customary rules one breached (e.g. a prohibition on marriage between persons in a particular relationship), a couple may sometimes persist and eventually gain community acceptance or at least tolerance for their marriage.”  “Principles of Family Law in Papua New Guinea” pp. 17 & 18.
In the case before me, I find there is no such proof of any such subsisting valid marriage between the accused and the victim.  At least the accused should prove to this court that there was some kind of existing marriage relationship between him and the victim and such relationship was then recognised by custom.  The accused may have relatives in Mount Hagen who could have been called to prove if there was a subsisting marriage between him and the complainant.  This case being a sexual offence I must warn myself of convicting an accused person upon uncorroborated evidence of the complainant alone: Peter Townsend v George Oika [1981]PNGLR 12; The State v Andrew Tovue [1981] PNGLR 8.  The Supreme Court has said that the trial judge must specifically make note and mention of this warning in his transcript and findings: Deidei v The State [1990] PNGLR 458.  In the instant case there is evidence of recent complaint first being made to the State witness then to the police station.  There is evidence of the prosecutrix distressed - condition to Veronica Otto then to the State witness.
The defence rely substantially on allegation that the accused was married to the victim at the time of the offence.  I find from the evidence that there is no evidence to support this view.  The accused has a duty to prove to the Court that he was married validly to the complainant either by custom or statute.  There being no evidence of a subsisting marriage I must infer that the reason why the victim cried in the house was because she was raped.  At least the evidence shows that the victim started crying from inside the house.  I must therefore find the accused guilty of the charge of rape and convict him accordingly.
15/1/1997 - SENTENCE
When I administered the allocutus to you, you said you are very sorry you have committed this offence but that you did it on the understanding that the victim was married to you. You also said you have spent much money giving it to the complainant.
Both Counsels submitted on sentence that the prisoner must have some kind of relationship with the victim.  This is suggestive of two things.  First there might have been existence of a de facto relationship or simply as I have found just the boy and girl friend relationship.
Counsels have also indicted that this case should be an appropriate one where the Court should impose a non custodial sentence.  Mr Aipe in particular referred me to the sentencing guidelines set by the Supreme Court in the case of John Aubuku v The State [1987] PNGLR 267.  In that case it was held that the offence of rape is serious and an offender should be punished by an immediate punitive custodial sentence unless there were shown exceptional circumstances.  Aubuku’s case also lays down the principle that where an offence of rape is committed by an adult and where there are no aggravating factors or mitigating features a sentence of five years should be taken as the starting point.
Quite apparently there are no aggravating factors involved in the case before me.  I must agree with Mr Aipe that, the only person who would confirm aggravation would be the complainant who is now deceased.
Aggravating factors would normally involve such factors like a pack rape, a rape committed after a complainant has been abducted, or the person who committed the rape is  in the position of responsibility.  Where violence was used to commit the rape or where the complainant was threatened and the rape was repeated.  Was the rape carefully planned or was the victim subjected to sexual indignities or perversions.  These are all matters that the sentencing court must take into consideration.
In favour of the prisoner is his clean record with the police.  He has shown remorse when I administered the allocutus to him.  He said he is sorry he had committed the offence.  You are a young man and pleaded not guilty to the charge exercising your constitutional right until you were found guilty.  You have been in custody since the date you committed this offence namely 6th May 1996.  To date you will have been in custody for eight months one week three days.  The penalty for this offence is a life sentence subject to S. 19 of the Criminal Code.
I am of the view that a custodial sentence of three and half (3 1/2) years is an appropriate penalty less the time you have spent in custody.  This leaves a balance of two (2) years nine (9) months three (3) weeks and four (4) days.  I further order that the balance be suspended upon you entering into a recognition to be of good behaviour for a period of three (3) years.
Lawyer for the State: Public Prosecutor
Lawyer for the Accused: The Public Solicitor