State v Sopane [2006] PGNC 45; N3024 (28 February 2006)

N3024

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.818 OF 2005

THE STATE

-V-

DAVID SOPANE

WAIGANI: LENALIA, J.
2005: 17th, 18th, 21st 22nd & 23rd. Nov. & 28th Feb, 2006.

CRIMINAL LAW - Rape – Not guilty plea – Trial – Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.

CRIMINAL LAW – Rape – Evidence – Desirability of corroborative evidence – Rule of practice – Evidence of consent – Corroboration necessary – Such evidence may be circumstantial or direct – No chain of circumstances – Finding of not guilty.

PNG CASES CITED:
The State v Eric Gordon Berry [1977] PNGLR 128
SCR. No. 1 of 1980 Re s.22A (b) of the Police Offences Act (Papua) [1981] PNGLR 28
Constitutional Reference No.3 0f 1978 Re Inter-Group Fighting Act 1977 [1978] PNGLR 421
McCallum v Buibui [1975] PNGLR 439
The State v Bike Guma [1976] PNGLR 10
The State v Tovue [1981] PNGLR 8
The State v Peter Townsend [1981] PNGLR 12
The State v John Kalabus [1977] PNGLR 87
Didei v The State [1990] PNGLR 458
The State v Stuart Hamilton Merriam [1994] PNGLR 104
SC. No. 2 of 1980 Re s.14 of the Summary Offences Act [1981] PNGLR 50
The State v Tom Morris [1981] PNGLR 493
Allan Oa Koroka v The State and Mariano Wani Simon v The State [1988-89] PNGLR 131
R v Ulel [1973] PNGLR 24

Other case cited.
Woolmington v DPP [1935] AC 462

Counsel:
Mr. Kupmain, for the State
Mr. Gene, for the Accused

28th February 2006

LENALIA, J: The accused is charged with one count of rape an offence against s 347 of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. Upon arraignment the accused entered a not guilty plea.

The State’s evidence consisted of two witnesses. They were the victim and her husband. A part from them, four pieces of documentary evidences were tendered. They include the following:

Exhibit "A" medical report date 20th January 2005.

Exhibit "B" statement by Paul Sauri- Detective Policeman.

Exhibit "C" record of interview conducted in English.

Exhibit "D" a prior inconsistent by the victim.

Roselyn Norum is the victim in this case. Her evidence relates to an alleged rape which took place in her husband’s house at Konedobu in the National Capital District. On Friday 31st of December 2004, the accused came home from work about 5 pm and suggested to Roselyn that, they should go to do Christmas shopping at Andersons FOODLAND down town in Konedobu. Because Roselyn’s husband was not there she agreed to go with the accused to the shop.

The victim and the accused walked down to Andersons Foodland and did the shopping as they had planned and after buying groceries, the accused asked Roselyn to call a cab for them to take them home with the food staff. While the victim was arranging for a taxi, the accused went to the liquor shop where he bought one carton of beer and four (4) O.Ps. After buying liquor, the accused returned to where Roselyn was to board the cab.

When they were getting ready to go, some of their friends asked if the accused and the victim could assist them take their shopping home as well since they all live in the same suburb. The accused agreed to that idea and one of their friends got into the taxi with their shopping bags and they took off.

After dropping their friend off, the accused and the victim went straight to the victim’s house. On arrival, the victim started to prepare dinner. At the same time the accused started to drink mixed OP and coke. When the food was ready, Roselyn served food. At Roselyn’s suggestion, two of her female friends were invited to join them. While the accused was drinking, he told the victim that, the carton of beer was for her and her friends while, the O.Ps were to be reserved for him and the victim’s husband.

Roselyn’s evidence is that, by about 9pm, her husband had not arrived home from work. So the victim’s friends Catherine Likun and Anita started to drink beer with Roselyn. By 9.30pm, the second witness who is the husband of the victim, Norman Geri arrived home and informed Roselyn to get herself ready so she could accompany him to Lamana Hotel to watch the New Year’s Eve Fireworks. As soon as the victim heard the news about going out she was really delighted to go.

Norman and Roselyn went into the room and started to get change in preparation to go out that night. It is her further evidence that, while the two of them were dressing up, the accused came into their room and grabbed Roselyn’s hand and asked her why did, she (victim) invited the two women friends to join them in their Christmas drinking party and then, only to be left behind with the accused alone.

After the accused, the victim and Norman Geri had come into certain terms, it was agreed between the three of them that, the husband alone should go to Lamana Hotel and Roselyn was allowed to stay. So Norman Geri left living behind Roselyn, the accused and Roselyn’s two female friends. It is Roselyn’s evidence that the four of them continued to drink until about 1 am on 1st of January 2005. About that time one of Roselyn’s friend, by the name of Anita left because she had left an infant at home to care for so she left early.

By about 3 am on the early hours of 1st of January 2005, Catherine Likun and the victim suggested to the accused that, they were to leave to go to Lamana hotel to look for Norman Geri, but according to Roselyn, the accused did not agree with the idea and persuaded them to stay back. So they all stayed back and continued to consume more liquor.

By that time too, some few friends join them and they told stories but after a while they left. They walked down to a tucker-shop where they bought more beer and returned and continued to drink. By that time they were all dead drunk. Roselyn said, she walked into the house, then into the toilet and as she came out, she noticed that the accused had vomited near the freeze. She then got a piece of rag to clean the vomitus up. As she bent over to do that, it is Roselyn’s evidence that the accused came from behind her and grabbed her then started to kiss her.

Roselyn said, she struggled and pushed the accused away, but that, the accused came back this time more vigorously, and he was supposed to have said to her that, she should not do anything nor say something. That from there the accused overpowered her then undressed both of them and then pushed her down to the floor and thereafter had sexual intercourse with her against her will.

It is the victim’s evidence that, after the accused had had forceful penetration of her, the accused left her and she lay down in bed for two hours and when she woke up, she noticed her husband in bed.

In examination in chief, the victim was asked why she did not report the rape to her husband on Saturday morning. The victim said, the reason why she could not report the matter was that, the husband was drunk and asleep the whole day. The court will come to the husband’s evidence latter but for the moment, the court does not accept evidence by the victim that, the husband was drunk and asleep all day since the husband’s evidence shows that, he woke up a number of times during the day being Saturday 1st of January 2005, but the victim never reported the matter to him.

The victim was vigorously cross-examined as to how she was raped and whether or not it was a rape or consensual acts of sexual intercourse. The defence case which I shall come to later will show that, it was not only one act of sexual intercourse but a series of three of four acts of consensual sex had between the accused and the victim. The victim was firm and denied having several acts of sexual intercourse and said it was only one time that sex took place without her consent. She was asked if the incident was one of rape, why she could not call out to warn Catherine Likun who was still outside the house sitting on the verandah. The victim answered that, by then Catherine was dead drunk and asleep. The evidence also shows that there was a security personnel manning the company premises and had the victim shouted, would have alerted the security personal.

Still during cross-examination, the victim was asked if she was scared when the accused first made a sexual approach to her. She answered that she was scared and she was further asked if she was afraid, why not call out for help at the time she pushed the accused away. Her answer to that particular question was because the accused told her to keep quite.

Her evidence does not end there. In the later part of the cross-examination, the victim said, after being raped, the accused is supposed to have seduced the victim into marrying him in the future after he graduated from the University of Papua New Guinea during which conversation the accused said something like this "A drunken person speaks the thought of a sober person". That she asked the accused what that phrase meant and the accused explained to her that, when a person is normal, he cannot do whatever he may want to do, but when he is drunk, he can do whatever he likes.

It is the victim’s evidence that, on Sunday morning 2nd of January 2005, her actions were abnormal and when her husband saw this he asked her what happened in his absence during the New Year celebrations. It was then that the victim cried and reported her ordeal to Mr. Norman Geri. Following that, the matter was reported to the down town police station but that the policemen there were not helpful to the couple.

The second witness was Norman Geri, the husband of Roselyn. Obvious as it was, Norman was not around when the accused is supposed to have raped his wife. His evidence only relates to the news from the victim that she had been raped by the accused. An interesting feature of Mr. Geri’s evidence is that, the accused is his cousin brother who had lived with the couple for sometime. In fact in chief and cross-examination Norman says that, he and his wife have looked after the accused for sometimes providing support in terms of school fees and pocket money during the accused’s school days at UPNG.

Mr. Geri said he never expected the accused to do anything like what the accused did to his wife. Norman’s evidence confirms evidence by his wife that, when he saw Roselyn on Sunday morning, her behaviour was unusual and he suspected that something must have occurred. He called his wife into the room and asked her what occurred. It was then, that his wife told him that the accused had raped her. This is where the victim’s evidence is contradicted by Norman’s evidence. Norman testified that he observed Roselyn’s behaviour to be abnormal then he asked her and she revealed that she had been raped by the accused.

Asked in chief and cross-examination as to why did he not come home on 31st of December 2004 so he could celebrate with his wife and the accused, the witness said, he had been invited to attend a function at East Boroko somewhere and he returned to his house at Konedobu by 9.30 pm to pick up his wife to go to Lamana hotel but because the accused insisted that Roselyn should stay, he left her at the hands of the accused to care and look after her.

Through this witness, a number of documentary evidence were tendered and marked Exhibit "E1 and "E2" are copies of letters written by this witness one to the Metropolitan Chief Superintendent at Boroko Police Station complaining about the rape and the threats from the accused’s relatives to drop the case and settle out of court. Exhibit "E2" was the singed copy while Exhibit "E1" was not signed.

Further in cross-examination, this witness confirmed that, he is employed by KENMOK Security Services and he told the court about certain threats made to him by the accused’s relatives. There was evidence from Norma Geri that, after Roselyn reported the matter to him, he beat his wife up.

The medical examination report conducted on the victim on 20th day of January 2005 does not assist much since it was done almost three weeks from the date of the offence. The report however highlights evidence of both the prosecutrix and her husband on the alleged beating by Norman on the victim.

On documentary evidence, the record of interview, (Exhibit "C") contains nothing less than what the accused raised in his defence that of consensual sex. Then the statement by Detective Constable Paul Sauri a policeman working with the Criminal Investigation Division at Boroko Police station, in the Nation’s Capital, Port Moresby.

Nothing much in his statement except to say he was a corroborator in this case when Sgt Xavier Kakarame conducted the record of interview with the accused on 2nd of January 2005.

Defence case.

The defence case consisted of the accused himself and Constable Vaila Manuma. I discuss the evidence of Constable Manuma first. After the victim informed her husband about the rape on 2nd of January 2005, the pair came to the town police station to lay the complaint. Constable Manuma was one of those policemen on duty when the victim and her husband came to report the rape incident.

After hearing the couple, Constable Manuma formed an opinion that, it sounded to him like it was not a rape and he referred the prosecutrix and her husband to settle the matter out of court where compensation could adequately be paid by the rapist to the husband of the victim.

In cross-examination this witness was asked why did he come to the conclusion that, the case was one of adultery rather then as reported by the rape victim and her husband? The witness said, after listening to the couple, he asked for any evidence of rape and the fact that the matter was reported a day after the alleged rape, it did not look like a rape to him so he told the couple to settle by compensation in terms of the Adultery and Enticement Act 1988.

The accused’s evidence is similar to that of the prosecutrix and for purposes of the defence case, I adopt what I have discussed in the prosecution case particularly the evidence of the victim from the time the accused came home from work to the time the two of them decided to go to Anderson’s Foodland to do shopping then back to the house right to the time the rape took place.

The defence case does not deny sexual intercourse. But it is the defence case that, intercourse was consensual and that it was not only one act of sexual intercourse between the times the first act of intercourse took place to about 6.30 am. I find from the evidence that the first act of sexual intercourse took place by about 4.30 am or thereabout.

The accused said in evidence that, he sat down near the fridge and whilst sitting there the victim came to the fridge and she looked back to the accused and when the accused saw her, she walked to him and kissed him. So they kissed each other for a while.

From there, the accused said they then walked into the room. In the room, the victim undressed herself and the accused did the same. They got on to the bed and when the accused wanted to get on top the victim, she pushed the accused’s head toward her groins and asked him to lick her vagina. Then after licking her, he then got on top her and they had the first act of consensual sexual relationship.

It is the accused’s evidence that when the two of them were having sex, the victim said something of the following nature, ‘don’t you know that, I am 21 years’. That she further told him that after, he completed his studies at UPNG, she would marry him. That after sex, they laid down in bed for sometime after which he vomited. The victim cleaned up the accused’s vomitus. That after she had cleaned the floor, he got out from the victim’s bed and got across to his bed and laid down and slept.

That while he was fast asleep, the victim came on top him and sat on his groins. He woke up and saw that it was Roselyn. That she kissed him over and over again and because he was weak he could not respond well to her. And that while she was doing this to him, he heard Catherine Likun called out to Roselyn to go out to the verandah. The verandah was the place where they sat down and started to drink. It is his further evidence that, when the victim heard Catherine calling, she (victim) responded by saying that she was cleaning the accused’s vomitus.

The accused further evidence is that, Catherine called out quite a number of times, but the victim’s answer was the same as earlier mentioned. Then after a while probably due to the accused inaction, the victim left him and walked out after which the accused went back to sleep. When he woke up a little later, he saw the victim bending over him. That at the same time, he looked out, he saw a security personnel standing some three meters away from where he was sleeping and asked the man about his camera.

The accused was told that, the camera was placed on the table in that house. It is the accused evidence that two other acts of sexual intercourse took place. On the second act of sexual intercourse, the same thing occurred. The victim laid down naked and indicated to the accused that, he should lick her vagina which the accused did.

That on the third time around, the accused suggested to Roselyn if she could suck his penis and the victim said to him ‘come I will show you’. Then after saying that, the accused laid down on the floor and the victim sat astride the accused head positioning herself in such a way that, her vagina was directly in contact with the accused’s mouth and bending over the accused’s belly, she reached down to the accused penis and sucked his penis corresponding to the accused licking her vagina. It the accused’s evidence that they engaged in the act of cunnilingus and fellatio for sometime after which they then had sex.

Part of the defence evidence is that, the reason why the accused did a big shopping that afternoon at Anderson’s Foodland was because, the accused and the victim’s husband had planned to celebrate the new year’s eve between 31st December 2004 and 1st of January 2005. The accused said in chief and cross-examination that because of that plan and to show his appreciation to the couple (victim and her husband), the accused offered to buy groceries together with the carton of beer and strong drinks.

Certain questions were raised to the accused about interfering with the prosecution witnesses. There was no evidence by the State that any of their witnesses were interfered with and if there was evidence of such nature, it was incumbent upon the prosecution to prove that the accused interfered with the State’ s evidence.

It was suggested to the accused in cross-examination that his evidence of him licking the victim’s vagina was much of recent inventions as; he did not mention such behaviour in his affidavit as well as in the record of interview. The accused answered that for moral grounds he wanted to tell the court what he did to the victim a part from sex, see Exhibit "G" for Defence.

Submissions.

For the accused, Mr. Gene submitted that, the State has not proven their case beyond reasonable doubt. The basis of that submission arise from a number of factors. First that, the alleged rape took place when a number of the victim’s friends were there to whom the victim could call out to help. At least Catherine Likun was there on the verandah of the house when the offence was committed. The defence further submitted that the security personnel was around the yard and if called for could come to assist if it was in fact a rape.

They further say, there was no recent complaint as well as the victim was in possession of a mobile phone to contact her husband. Then there is evidence by the State that one, Paul Kai and his wife came to the house where the rape took place on Saturday morning but the victim never reported to them if she feared reporting the incident to her husband. It is for those reasons; Mr. Gene submitted that, the court must have a doubt in its mind as to the credibility of the prosecution’s case.

Mr. Kupmain of counsel for the State replied that the prosecution has proven its case beyond reasonable doubt and the accused should be found guilty as charged. He submitted that, the court should weigh the evidence and qualify such evidence from a normal victim and that, here was the case where the victim’s ability to think soberly was affected by alcohol.

Counsel cited the case of The State v Eric Gordon Berry [1977] PNGLR 128 to support their argument that the physical disability of the victim must be taken into account since the mind of the victim was impaired by excessive consumption of liquor during that night so much so that she could neither shout nor call for assistance.

Law.

The accused is charged with one count of rape an offence under s.347 of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. For the State to prove that, the accused raped the victim, they must prove that the accused sexually penetrated the victim without her consent. The prosecution always bares the burden of proving their case beyond reasonable doubt.

The presumption of innocence is rooted in s.37 (4) (a) of the Constitution which states that where a person is charged with an offence, he is presumed to be innocent until he is proven guilty "according to law": SCR. No. 1 of 1980 Re s.22A (b) of the Police Offences Act (Papua) [1981] PNGLR 28, see also Constitutional Reference No.3 of 1978 Re Inter-Group Fighting Act 1977 [1978] PNGLR 421, SCR. 1A of 1981 Re Motor Traffic Act [1982] PNGLR 122.

In sexual cases prior to the new amendments to the sexual offences provisions coming into operation in April 2003, there was a requirement not in law but in practice that, the judge or magistrate should warn himself or herself of the dangers of convicting an accused on uncorroborated evidence of the victim alone unless such evidence was corroborated in some material particular, (see the following cases for such proposition and further enlightenments): McCallum v Buibui [1975] PNGLR 439, The State v Guma [1976] PNGLR 10, The State v To Vue [1981] PNGLR 8, The State v Peter Townsend [1981] PNGLR 12, The State v John Kalabus & Another [1977] PNGLR 87, Didei v The State [1990] PNGLR 458.

Despite the well defined statement of law in relation to corroboration contained in the above cases and not only the volume of case law authorities but, it is a practice developed from common law rules and cases which require that the warning in sexual case should be observed because when a woman has made a compliant to someone in authority, it is hard to refute such sexual allegations, s. 229H of the Criminal Code (Sexual Offences and Crimes against Children) Act states:

"On a charge of an offence against any provision of this Division, a person may be found guilty on the uncorroborated testimony of one witness, and a Judge shall not instruct himself or herself that it is unsafe to find the accused guilty in the absence of corroboration".

It is my view that the above proviso is unconstitutional in the sense that, it goes against the grains of s.37 (4) (a) of the Constitution which provides for the full protection of law and the right to a fair hearing. Although I agree with part of that section where it says that a person may be found guilty on the uncorroborated testimony of one witness, I am not comfortable with the latter part of the section saying that "a Judge shall not instruct himself or herself that it is unsafe to find the accused guilty in the absence of corroboration".

It is my view that, as a judge of both facts and of law, in a case where corroboration is to be looked for as a matter of practice, the case law authority is clear that there need not be any formula of the kind of warning to be pronounced sufficed it to say that, where there is substantial corroboration, and the trial judge feels that such evidence is sufficient to support the prosecutrix’s evidence, he or she may proceed to make a finding of guilty. The Supreme Court in Didei v The State [1991] PNGLR 458 said that, where there is no corroborative evidence, the warning must be given and it must be recorded, (see also The State v John Kalabus & Or. [1977] PNGLR 87.

In McCallum v Buibui [1975] PNGLR 439, C.J, Frost acknowledged the rule of practice that, in a sexual charge the tribunal of fact and law should warn itself against the danger or risk of acting upon the uncorroborated evidence of the victim in relation to the elements of the offence charged. A similar warning was given by Raine, J. in The State v Bike Guma [1976] PNGLR 10 where the court there held that, the requirement for the judge to warn himself or herself was a rule of practice falling "not far short of a rule of law", see also case of The State v To Vue [1981] PNGLR 8.

In The State v Stuart Hamilton Merriam [1994] PNGLR 104, Sakora, J. expressed his view on the rule of corroboration on two charges of carnal knowledge against the order of nature contrary to s.210 of the old provision on offences against sexual morality. His Honour said the following at page 112:

"It has to be stated that sexual offences, by their very nature, are almost always committed in "secret", in the absence of third parties. This is contrasted with street and traffic offences, which can have any number of eye-witnesses. Thus, reporting or detection of sexual offences, especially of incest and child abuse sexual cases, often occur long after the incidents. It is a truism that the younger the victim the less chance there is of the perpetrator being caught.

So, invariably there are no direct independent witnesses in these offences. But corroborative circumstantial evidence as explained by Cross (supra), will suffice. In the two Queensland cases of R v Witham [1962] Qd. R 49 and R v Walczuk [1965] QWN 63 50 and the High Court of Australia case of Kelleher v R [1974] HCA 48; [1974] 48 ALJR 502 (Barwick CJ at 505), the less rigid rule of practice ensures that in all cases of sexual offences the Court should warn the jury that "it is not safe to convict on the uncorroborated testimony of the complainant but they may do so if satisfied of its truth". Barwick said that a jury "may act on the words of the woman alone but should exercise considerable caution before doing so, because of the ease with which charge is made and the difficulty which may attend its rebuttal".

The requirement both in law and practice is that the prosecution must prove its case beyond reasonable doubt. An accused person is presumed innocent until he is proven guilty. The right to the protection of law is available under s.37 of the Constitution. In that section, Subsection (1) (3) and (4) (a) state:

"(1) Every person has the right to the full protection on the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, specially to persons in custody or charged with offences.

(2)...

(3) A person charged with an offence, shall unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court.

(4) A person charged with an offence –

(a) shall be presumed innocent until proved guilty according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would be, peculiarly within his knowledge; and.."

The rule in criminal cases is that, the legal burden of proving every element of the offence charged lies from first to last on the prosecution. This means that the prosecution must disprove any defence or explanation properly raised by a defendant. In Woolmington v DPP [1935] A.C. 462, the defendant was charged with the murder of his wife. The appellant’s defence was that the gun had gone off accidentally resulting in the killing of his wife. The trial court directed the jury that once the prosecution had proved that the deceased was killed by the defendant, it was for the accused to show that, the killing was not one of murder. This was held by the House of Lords to be a misdirection. The rule on the "standard of proof" in criminal cases was expressed by Viscount Sankey LC at pages 481 to 482 of the judgment in the following words:

"Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt... If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained".

In a number of leading cases in this jurisdiction, the Supreme Court had had occasion to discuss the constitutionality of s.37 (4) (a) of the Constitution. In S.C.R. No. 1 of 1980, Re s.22 of the Police Offences Act, [1981] PNGLR 28, the Supreme Court said, the proof of guilt in criminal cases is that, the onus is on the prosecution to prove each element of the offence charge beyond reasonable doubt. In S.C.R. No.2 of 1980; Re s.14 of the Summary Offences Act [1981] PNGLR 50, the Supreme Court said at page 54:

"The main thrust of the Constitution s.37 (4) (a) is to place upon a prosecutor the burden of proving the guilt of a person charged with an offence.. By the underlying law that burden on the prosecutor is discharged only when he proves beyond a reasonable doubt that the defendant is guilty; that is, that the defendant is criminally responsible for the offence charged."

In the case S.C.R. No. 1A of 1981 Re Motor Traffic Act [1982] PNGLR 122 late former Kidu C. J, said at 127:

"... a person charged with an offence is guaranteed two rights by s.37 (4) (a): first, the right to be presumed innocent of the charge; and second, the right to have the charge against him proved according to law."

(See also Constitutional Reference No.3 of 1978 Re Inter-Group Fighting Act 1977 [1978] PNGLR 421

Due to the foregoing brief reasoning, I am unable to "instruct" myself in terms of s.229H of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 particularly in relation to the uncorroborated testimony of the victim regarding the rape allegation.

The law is clear that, the State must prove its case beyond reasonable doubt before a person can be found guilty. The court cannot speculate from the prosecution evidence and form conclusions based on uncorroborated evidence of the victim alone unless the evidence of the victim is corroborated in some material particular. If the court forms the view that, such uncorroborated evidence is worthy of belief then by all means, it can accept it without any further proof.

Having said what I have said, I now proceed to discuss the evidence in the current trial. There are two legal issues which the court feels bound to address immediately. First, the offence of rape is supposed to have been committed in absence of the victim’s husband. Despite the husband’s absence, the witness whom the State did not call, Catherine Likun was right in front of the house where the rape was supposed to have been committed.

When the victim was asked in cross-examination why was it that, when she was being raped, she could not call out to warn either Catherine Likun or the sole security personnel who was guarding the premises that night. The victim said in answer that, the reason she could not call out was because she knew that Catherine Likun was already drunk. What is clear from both the prosecution and defence evidence is that in the yard there was also a security officer as well as that, the victim herself said in her evidence that, when the accused was raping her, she heard people talking outside the yard somewhere yet she never raised a "hue and cry as a preliminary to an appeal of rape".

The victim’s explanation as to why she could not report to her husband was because the husband was so drunk so she had to wait for him to be sober. One explanation is that, because her husband is always violent when he is under liquor she waited until the next day to tell him. In fact, the evidence by the victim is quite to the contrary to that of her husband who said that on 2nd of January 2005, he noticed that Roslyn was acting abnormally then he asked her, if anything was wrong or whether the drinking party went on alright without any problem.

It was then that the victim revealed her predicament to Norman Geri. In fact the evidence of Norman is that, after he became suspicious of the victim’s actions and behaviour, he inquired with her if anything was wrong, the victim then told him about the news of her being raped by non other than Geri’s cousin brother.

There is another aspect of the rule of practice in relation to corroborative evidence in sexual cases. Sex is an intimate relationship between two individuals and it is supposed to be a secret act of expression of love. If that act is used or obtained by force or applied to a party prevented by law such as under-age children or close relatives then it becomes an offence against law.

There are invariably no independent witnesses. Even if there was evidence by circumstantial nature, such evidence must be cogent to convince the tribunal of fact and law that, the accused committed the offence against the victim’s will. (See the following cases on circumstantial evidence, R v Ulel [1973] PNGLR 24, The State v Tom Morris [1981] PNGLR 493, Allan Oa Koroka v The State [1988-89] PNGLR 131, The State v Waiake Komane [1992] PNGLR 524.

In the circumstances of the instant trial, I am not at all satisfied that, the case was one of rape and therefore I find the accused not guilty of this charge of rape. The charge being one of rape where consent is the issue, I am unable to make a finding of alternative verdict pursuant to sections 541 and 547 of the Criminal Code. As well, the definition or meaning of the term "consent" as defined by s. 347(A) of the Criminal Code (Sexual Offences and Crimes Against Children) Act means "free and voluntary agreement". As I have found, sexual intercourse between the accused and the victim was free and voluntary. The accused is acquitted and discharged with his bail monies to be refunded to him.
________________________________________________________________________
Lawyer for the State: The Public Prosecutor
Lawyer for Accused: PAUL PARAKA Lawyers.