State v Urareo (No 1) [2005] PGNC 173; N3086 (13 April 2005)

N3086

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 793 of 2004

THE STATE

-v-

LUCAS BENJAMIN URAREO (NO. 1)

Goroka: Manuhu, AJ
2005: l 7, 8 & 13 April

JUDGMENT ON VERDICT

CRIMINAL LAW – Particular offence – Rape – Credibility of witnesses – Corroboration not required – Failure to put version of facts to witness in cross-examination – Vagueness of defence of general denial.

CRIMINAL LAW – Practice and procedure – Circumstances of aggravation – Rape –Maximum penalty where aggravation - Need to plead circumstances of aggravation.

Cases cited:

Papua New Guinea Cases:
The State v Ogadi Minjipa [1977] PNGLR 293.
Anna Max Marangi v The State (2002) SC702.
The State v Miseal Butemo Jiregari [1984] PNGLR 62.

Overseas Cases:
Browne v Dunn [1894] 6 R 67 HL.

Counsel:
Mr. K. Umpake, for the State.
Mr. P. Palme, for the Accused.

13 April 2005.

1. MANUHU, AJ: The Accused, Lucas Benjamin Urareo, of Toma, Kokopo, East New Britain Province, was indicted on one count of rape. It is alleged that on 26 November 2003, at Faniufa, Goroka, the Accused sexually penetrated one B. L. without her consent.

2. It is not disputed that the victim, B.L., who was fourteen years old at the time of the alleged crime, is the daughter of the Accused. Her evidence is that in the evening of 26 November 2003, she and her three brothers were in their house at Faniufa. Her mother had left the house at about 6:00pm. She also thought her father was out of the house.

3. However, while she was in her bedroom, her father crawled out from underneath her bed and confronted her. She was naturally intimidated by her father’s approach so she became defensive and thought of screaming. However, her father took a cup from the floor and threatened to smash it on her head. The Accused then pushed her onto her bed, removed her top and licked her breasts. He then removed her shorts and pant, and licked her vagina. He then removed his trousers and proceeded to have sexual intercourse with his daughter.

4. After sexually assaulting the victim, the Accused disappeared from the house. The victim experienced pain at the time of sexual intercourse. She also saw blood stains on her underwear after she dressed up. She went out of the house and reported the matter to her mother who was at the family store, which was about 15 to 20 meters from their house. The victim then proceeded to her grandmother and reported the matter. She mentioned to both women that her father had sexually assaulted her.

5. The victim’s grandmother, Miriam Opu, gave evidence in support of her grand-daughter. She was standing with Doreen under the lights from Miriam’s brother’s house when the victim appeared to them. The victim appeared frightened. Miriam saw that the victim had blood stains on her trousers and was crying. She and Doreen attended to her and she revealed to them that her father had sexually assaulted her. At that instant, the victim’s mother went to them, and was scolded by Miriam over the incident.

6. The victim stayed at Miriam’s brother’s house whilst Miriam, Doreen and the victim’s mother went to the nearby Service Station where a police vehicle was parked. The victim’s mother spoke to Selot, the policeman driver, about the incident. Selot responded by telling them that the Accused had just got off the vehicle at the Service Station after picking him up at Mambu market, which is about 300 to 400 meters from the Service Station. Selot drove the police vehicle to where the victim was and the boys searched for the Accused but he could not be found. Selot suggested that the victim be brought to Goroka General Hospital for medical attention. The victim got on the vehicle. Miriam, Doreen and her husband, and Miriam’s brother also got into the vehicle and they went to the hospital. The victim’s mother did not want to go to the hospital.

7. A doctor attended to the victim at the hospital. The victim was uncooperative as she was experiencing severe discomfort from the pain. The doctor instructed Miriam and Doreen to assist. They held the victim’s legs for the doctor to examine her. When the victim’s legs were set apart, Miriam saw lots of blood around her vagina. Miriam emotionally explained that the victim’s private parts appeared to her to be scratched and reddish all over. With the assistance of Miriam and Doreen, the doctor proceeded with and completed his examination. They then returned to the house.

8. The State decided not to call the doctor who examined the victim. I was advised from the bar table that the doctor was no longer employed by the hospital. The State then closed its case.

9. The Accused was the only witness for himself. He gave evidence in support of his defence of general denial. He said that he was at his store between 7:00pm and 8:00pm when his wife went with food for him and the other store assistant. After eating, he left for Mambu market to see a boy who plays snooker there. The boy was not there so he got on a police vehicle and returned to the store. At the store, his wife questioned him about the incident and he denied. His wife then left for Miriam’s house.

10. The Accused stayed at the store with the store assistant. They later closed the store and went to bed in the store. In the morning of the next day, he woke up and, as usual, opened the store. That was when CID officer Judy Girua and the Police Task Force went to the store and apprehended him.

11. It can be ascertained from the evidence given by the Accused that he does not deny that the victim was sexually assaulted in the evening of 26 November 2003. In any event, leaving the question of identity aside, I am satisfied on the evidence that the victim was sexually penetrated without her consent on the day in question. Such finding is based on the following considerations.

12. First, evidence given by the State witnesses was credible. The victim appeared to me to be shy and was not comfortable when she gave her evidence. I am of the impression that her discomfort was due to the seriousness and immorality of the allegations, and her father’s presence in court. She started slowly but progressively became confident and spoke with reasonable ease. It was a gutsy performance on her part. Witness Miriam is a mature and an educated grandmother. She is a person you can rely on and trust. She demonstrated a clear recollection of what happened and spoke with ease.

13. Secondly, the days when corroboration is necessary to prove sexual offences are gone. Under s. 352A of the Code, "a person may be found guilty on the uncorroborated testimony of one witness, and a Judge shall not instruct himself that it is unsafe to find the accused guilty in the absence of corroboration." The effect of this provision is that if a person gives credible evidence that he or she was sexually penetrated, the court will find accordingly.

14. In this case, on the evidence given by the victim and Miriam, I find that the victim was sexually penetrated without her consent as alleged, and in the manner described by the victim.

15. What remains to be determined is the identity of the person who is responsible for the crime. Is there any evidence which show beyond doubt that the Accused is responsible? In that regard, the following matters are relevant.

16. First, the Accused explanation of his whereabouts at the relevant time is inconceivable. The victim sighted the Accused when she came out looking for help but he then hid himself from them. He was not around when the boys looked for him. The Accused said he was at the store at that time. If he is telling the truth, it is unacceptable that at all material times, he showed no concern at all for the victim. If he did not commit the crime, how could he be so indifferent to her only daughter, who had just been sexually assaulted in his house, was bleeding and was in severe pain? The Accused did not see the victim at all until the very next day when he opened his shop as if nothing had happened. Such hollow evidence can only come from an untruthful witness.

17. Secondly, the Accused person claims that the allegation is false but his explanation is incredible. The Accused claims essentially that when they moved to Faniufa, the victim was with her aunt at Kama. Sometimes, her aunt gets angry over him not helping her with food. When the victim comes to him at Faniufa and asks for money, he refuses to give her money. Then in October, 2003, the victim moved to Faniufa when her aunt scolded her over food shortage. While at Faniufa, the victim’s request for the Accused to pay for her school fee was refused. The victim made up these allegations, the Accused claims, to punish him for his neglect.

18. Unfortunately, the Accused did not put his theory to the victim during cross-examination. It is logical and sensible for the defence version of facts and explanations to be put to the appropriate State witnesses during cross-examination. Failure to do so is detrimental as it affects the credibility of the defence case. In the case of The State v Ogadi Minjipa [1977] PNGLR 293, Prenctice, DCJ, referred to the old but oft-cited English case of Browne v Dunn [1894] 6 R 67 HL, and said:

"...I should again mention, as other judges and myself have many times done before, that defence counsel do their clients no good by not opening in cross-examination of State witnesses the version upon which the defence relies. If it is to be suggested that the State witnesses are lying or mistaken or failing in accuracy of recollection, they should be questioned to that effect and given an opportunity to explain. You cannot correctly professionally keep your case secret until your client gives evidence. Nor can you expect that his story will receive much credit – if this course be taken."

19. In this case, the Accused opted not to confront the victim with his theory of her motive for falsely accusing him until he gave evidence.

20. In addition, the victim was living with the Accused at the time of the crime. It is inconceivable that a shy fourteen year old girl, happily living in his father’s house, could make an allegation of such magnitude against her own father. Furthermore, if the Accused is to be believed, how does he explain the bleeding from the victim’s private parts?

21. In the circumstances, either the Accused has a low IQ or is telling lies. It has to be the latter. I am of the view that his explanations are recent inventions. I, accordingly, reject his claim that the victim has falsely accused him.

22. Thirdly, the Accused generally denies committing the offence. General denial, unless the State witnesses are lacking in credibility, is not usually an effective defence. The Accused could have raised the defence of alibi which goes hand in hand with the defence of identification. If the Accused was somewhere else at the time of the offence, he has to put to the victim that she must have seen someone else. Unfortunately, the Accused has not asked anyone to confirm that he was somewhere else when the crime took place. In addition, the victim’s identification of the Accused at the crucial time, in her bedroom, was never challenged in any manner. Her evidence that her father crawled from underneath her bed and sexually assaulted her is, thus, very much intact. There is, therefore, a huge vacuum in the Accused person’s defence.

23. In the end, the only course open to me is to accept the victim’s evidence that it was her father, the Accused, who sexually penetrated her in the evening of 26 November 2003.

24. There is another aspect of the case that deserves to be discussed. This relates to the issue of circumstances of aggravation and how it impacts on the drafting of a charge. Circumstances of aggravation is defined under s. 1(1) of the Criminal Code, Ch. No. 262 (Code) as including "any circumstances by reason of which an offender is liable to a greater punishment than that to which he would be liable if the offence were committed without the existence of that circumstance."

25. It seems, however, that there are two types of circumstances of aggravation. The first type is that which is not specifically prescribed under the Code. It may also be referred to as aggravating factors or seriousness of the crime. Such circumstances of aggravation are not usually accompanied by a separate penalty provision. The Supreme Court case of Anna Max Marangi v The State (2002) SC 702 is a classic example of how the superior court considered various circumstances of aggravation, which are not specifically prescribed, and determined the corresponding sentencing guidelines.

26. The other type of circumstances of aggravation is one that is specifically prescribed and is usually accompanied by a separate penalty provision. In relation to the offence of robbery, which carries a maximum penalty of fourteen years, such circumstances of aggravation is found under s. 386(2), which attracts a maximum sentence of imprisonment for life. In relation to rape, circumstances of aggravation prescribed under s. 349A, in conjunction with s.347 (2), increases the sentence for rape from fifteen years to imprisonment for life.

27. Whatever the case may be, the charge, pursuant to s. 528(1) (Code), must be specific "to inform the accused person of the nature of the charge." Consistently, the wordings of a charge on the indictment must include the statutorily - defined circumstance of aggravation, which may or may not be proved, and, if proved, subsequently relied upon in identifying the applicable penalty provision.

28. Under s. 528(2) (Code), relevantly, "if any circumstance of aggravation is intended to be relied upon it must be charged in the indictment." In the case of The State v Miseal Butemo Jiregari [1984] PNGLR 62, on a charge of misappropriation under the old provision, it was held that matters constituting circumstances of aggravation under the Code, "must be laid in the indictment where the prosecutor intends to rely upon them as a major matter raising the penalty from a maximum of five years to a maximum of ten years."

29. In relation to the crime of robbery, therefore, where appropriate, various circumstances of aggravation, such as the offender being in the company of others, are always included in the indictment. Similarly, in relation to rape, as well as sexual penetration of a child (s. 229A) and sexual touching (s. 229B), and any other similarly defined offences, if any circumstances of aggravation is relied upon, such allegation must be included in the indictment. See also s.538 concerning the power of the court to convict in relation to offences involving circumstances of aggravation.

30. The rationale for demanding specificity of the charge may be traced to, among other things, s. 37(3)(4) of the Constitution. It is not necessary to set out those provisions except that compliance or lack of compliance with constitutional provisions is a serious matter.

31. In this case, the State alleges and has adduced the appropriate evidence to the effect that the Accused is the victim’s father, which is a specifically defined circumstance of aggravation (s. 349A(f)), but the State has omitted to include it in the indictment. Consequently, the Accused, who is about to be convicted, cannot be subjected to the higher penalty of life imprisonment. Due to the State’s failure, the Accused only faces a maximum sentence of fifteen years.

32. Be that as it may, I am satisfied that all the elements of the crime of rape have been proved. I, accordingly, find the Accused guilty of raping B.L. on 26 November 2003, and I convict him.

Verdict: Guilty as charged.

________________________________________
Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyer for the Accused