State v Sibu (No 1) [2004] PGNC 209; N2549 (17 March 2004)

N2549

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1450 of 2003

THE STATE

-V-

JUNIOR APEN SIBU
(No.1)

VANIMO: KANDAKASI, J.
2004: 10th and 17th March

CRIMINAL LAW – PRACTICE & PROCEDURE – Witness of tender age - Need to caution such witnesses of the risks of giving false evidence under oath – Need for Court to warn itself of the dangers of proceeding to convict on evidence of tender aged children.

CRIMINAL LAW - Verdict – Rape of 10 year old girl – Absence of hymen - Immediate complaint to parents – Medical examination 3 days later – Accused giving different whereabouts on date of offence – Admitting to lying under oath - No reason to doubt victim’s evidence – Return of guilty verdict – Criminal Code ss. 347(1) and Sexual offences Against Children Act s. 2.

EVIDENCE - Evidence of tender aged witness – Credibility of – No indication of lying– No break down under cross-examination - No reason provided to doubt or find witness making up a story – Evidence accepted as credible and reliable.

Cases cited:
SCR No. 1 of 1980; Re s. 22A (b) of the Police Offences Act (Papua) [1981] PNGLR 28.
The State v.Ben Noel & Ors (unreported judgment delivered on 31/05/02) N2253.
Rolf Schubert v. The State [1979] PNGLR 66.

Counsel:
K.F. Popeu for the State
D. Kari for the Prisoner

17th March 2004

KANDAKASI J: You pleaded not guilty to one charge of raping a 10 year old female (named but withheld for her protection) at Musu here in Vanimo on the 24th of March 2003. A trial was therefore conducted on 10th March 2004 and a decision on your verdict was adjourned to today.

The State called the victim and her brother as well as Dr. Lawrence Warangi in a bid to prove the charge against you. All of these witnesses gave oral evidence. In addition to the oral evidence, a medical report countersigned by Dr. Warangi and your record of interview with the police were admitted into evidence for the State. On your side, only you gave a sworn testimony in your own defence.

The Offence

The Criminal Code as recently amended by the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002[1] creates and defines the offence of rape in these terms:

"347. Definition of 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."

The amendments seek to clarify and introduce a new definition for rape and a penalty regime. However, in practice and in reality, it has always been clear and it continues to be so, that the offence of rape has a number of elements. These are:

1. A person who has;
2. carnal knowledge or sexual intercourse or sexual penetration with a;
3. women or a girl;
4. without her consent
   

is guilty of the crime of rape.

The prosecution always has the burden to prove beyond any reasonable doubt every element of an offence in all cases that is prosecuted. The Supreme Court in SCR No. 1 OF 1980; Re s. 22A (b) of the Police Offences Act (Papua)[2] confirmed this. What this means in your case is that, the State had the burden to prove each of the elements outlined above beyond any reasonable doubt. The question for this Court to resolve then is, has the prosecution proved all of the elements of the charge of rape against you?

The evidence called both for and against you will help us to resolve that question. I therefore, turn to the evidence and facts emerging from them now, starting with a consideration of the evidence called by the State.

The Evidence

The first State witness was Ryan Krake, a young boy of very tender age. The law requires such witness to be informed of the two ways in which they can give their evidence; (1) evidence under oath or; (2) an unsworn statement. Thus, this Court in line with that requirement, and the case of Rolf Schubert v. The State[3], the Court informed the witness of this and the administered the appropriate caution. The witness indicated an understanding of these two ways and decided to give his evidence under oath and he did so.

This witness’ evidence is very brief. He is the brother of the victim. He testified that on 24th March 2003, the victim with other children were at the beach cutting fish. Whilst they were there, you went and told the children to go with you to the bush and collect dry coconuts. The children, which included the witness and the victim, followed you into the bush. After the collection of coconuts, you and the children headed back. On the way, you let the other children go, but grabbed the victim, and shut her mouth with your hand. You then took her into the bush and played with her. Upon realizing that, he went and reported the matter to both of his parents.

The second state witness was the victim. The Court administered the same advice and warning of the witness as with the first witness because of her tender age.

This witness’ evidence is also very brief. She corroborates most of the first witnesses account. However, she does not say that you grabbed her and took her into the bush with your hand shutting her mouth. In addition, she stated that you asked her to go and have sexual intercourse with her after the collection of the coconuts and you had sexual intercourse with her. Under cross-examination, she said she did not agree to you having sexual intercourse with her, after which she was able to walk home and report to her mother.

The third witness was the victim’s father, Peter Krake. He did not witness the incident in any respect so his evidence about the commission of the offence is hearsay. I will therefore disregard it. The rest of his evidence is on how he dealt with you and taking the victim to the hospital three days after the date of the alleged offence.

The fourth and final witness is Dr. Lawrence Warangi, a medical doctor with the Vanimo General Hospital. He is the doctor that has counter signed the medical report following a referral and examination of the victim. He gave evidence in terms of samples being taken from the victim’s genitals and that being tested. The tests and examinations produce evidence of an absence and some bacteria indicative of an infection. However, it did not show any signs of spermatozoa, that is sperm cells. Both under examination in chief and cross-examination, this witness confirmed that the hymen in a young female of the victim’s age should be present but in this case, it was missing. This can only come about because of a trauma, which is some forceful entry of the vagina including the insertion of the male penis.

In your defence, you alone went into evidence. You gave a similar account as the evidence of the first and second State witnesses but differ only by denying the suggestion that you took the victim into the bush and having sexual intercourse with her without her consent. The rest of your evidence concerns how you were treated by the victim’s father and eventually your arrest and charging by the police.

Under cross-examination, you admitted to giving a different story in relation to your whereabouts on the day of the alleged offence. You told the police that you were in your village, and in particular working in your garden, on the day of the alleged offence. You also told the police that after gardening, you went to the river and had your bath. After your bath, you went home and stayed in your house. Based on these, you were further cross-examined, and you admitted to telling lies about your whereabouts and your activities on the day of the offence.

At the end of the evidence, both you and the State addressed the Court. Both you and the State agreed that the only issue for the Court to resolve is the credibility of the witnesses and their evidence. That means, whichever side of the story the Court finds credible, that will determine your guilt or innocence on the charge against you. Nothing else is therefore in issue in this case.

Assessment and Finding of Facts

As the burden always rests with the State to establish each of the elements of the charge against you beyond any reasonable doubt, the assessment of the evidence will have to start with the evidence called by the state.[4]

There was no serious challenge to the credibility and or the reliability of any of the State’s witnesses and their evidence. I could not detect nor did your lawyer demonstrate any evasion, a serious inconsistency in their evidence or any thing like that to doubt the credibility of the States witnesses. They all gave me the clear impression that they were telling the truth.

There is no evidence of any reason the witnesses might have against you to come into Court and falsely testify against you. Instead, the evidence is that you come from the same village as the victim and the first and third witnesses come from. In your record of interview’s question and answer number 43 and 44, it is clear that the victim is related to you and that you would call her a child. Usually, people in the same village would not falsely accuse one of their own without a serious crime such as rape. I therefore, find all of the State’s witnesses and their evidence credible and I accept them.

A close consideration of the victim’s own testimony gives the impression that her evidence is not as detailed as it should be. A clear indication of this is that she does not describe how the act of sexual intercourse took place against her, whether, she felt any pain, or attempted to escape and how you persuaded her to have sexual intercourse with her. This is understandable because the victim is very young and is a very shy person, as such, I am of the view, and did note that, she did not easily have the courage to recall and describe what happened to her in detail.

The duty was on both the prosecution and defence counsel to elicit the relevant evidence but both did not do that. I consider this was in appreciation of the observations I have just made of the victim. This does not mean however, that there is nothing against you. There is at least the evidence of you grabbing the victim and taking her into the bush with your hands on her mouth. There is also the evidence of you asking and having sexual intercourse with the victim and that was without her consent.

Based on these witnesses’ evidence, I find that on 24th March 2003, at Musu, here in the Sandaun Province, you were at the beach with the victim, her small brother and other children cutting fish. You then asked the children including the victim and her brother to go with you to collect dry coconuts and they did come with you. After doing that, you were returning and on the way, you let the other children go, grabbed the victim, and shut her mouth with your hands. You then took her into the nearby bush, put her on the ground and proceeded to have sexual intercourse with her without her consent. The medical report confirms sexual penetration because of the absence of the victim’s hymen, which was abnormal. There is no evidence of how that came about except the act of sexual intercourse you had with her according to her own testimony.

In the absence of any evidence directly on the point, it is reasonable to infer that, given that the victim who I observe, to be very small even for a 10 year old child, she could not have appreciated, that what you were doing to her was wrong and so she could have participated freely and knowingly. Of the two of you, you were much older and that she would call you a father or an uncle according to your record of interview, thereby strengthening the inference that she could not have known that what you were doing to her was wrong.

On these facts therefore, I find that the State has made out each of the element of the offence of rape as I have outlined above. Accordingly, I find that there is a strong prima facie case of you having committed the offence of rape against the victim.

I now need to find whether you have by your own evidence cast any doubt on the State’s case. As noted, your oral testimony in chief supports most of the State’s case except for the act of sexual intercourse with the victim in the way described by the prosecution evidence. However, the story you gave to police, particularly as to your whereabouts and activities on the day of the offence, contradicts your oral testimony. Under further cross-examination, you admitted that the story you gave in Court is a lie. Clearly therefore, you have shown yourself to be an untrustworthy person in that you were prepared to give false testimony under oath. On this account, I do not find you and your evidence reliable. Accordingly, I reject your evidence.

This leads to only one conclusion and that is, the State has established each of the elements of the offence against you beyond any reasonable doubt. Before arriving at that finding, I have warned myself of the possibility that it may be unsafe to convict you on the evidence of the victim and her brother who are of tender age. In so doing, I noted that, there is other evidence supporting their testimonies and that there has been no challenge on their credibility and reliability. In addition, I noted that, you decided to give evidence in your defence and the evidence you called is unreliable. In the circumstances, I find it safe to and do return a guilty verdict against you on the charge of rape contrary to s.347 of Criminal Code.

Consequently, I order a revocation of your bail and a refund of your bail money. Additionally, I order the issuance of an appropriate warrant for your commitment pending a decision on your sentence.
________________________________________________________________________
Lawyers for the State: Public Prosecutor
Lawyers for the Accused: Public Solicitor

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^[1] (No. 27 0f 2002) s. 17.
^[2] [1981] PNGLR 28 at page 34, per Greville Smith J. For a quotation of the relevant part see The State v.Ben Noel & Ors (unreported judgment delivered on 31/05/02) N2253.
^[3] [1979] PNGLR 66.
^[4] See The State v. Ben Noel & Ors (supra note 2 second part).