State v Bobo (No 1) [2007] PGNC 136; N3262 (13 July 2007)

N3262

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 51 OF 2006

THE STATE

-V-

PETER BOBO (NO.1)

Kavieng: Lenalia, J.
2007: 5, 6 & 13 July

CRIMINAL LAW – Charge of rape – Plea of not guilty – Trial – Evidence – Criminal Code s.347.

CRIMINAL LAW – Alternative charge – Not arraigned on – Alternative finding of sexual penetration reached – Criminal Code s.229A (1).

Cases cited
McCallum v Buibui [1975] PNGLR 439
The State v Tom Morris [1981] PNGLR 493
Paulus Pawa v The State [1981] PNGLR 497
Didei v The State [1990] PNGLR 458
The State v David Sopane (28.2.06) N3024

Counsel:
M. Ruari, for the State
P. Tusais, for the Accused.

DECISION ON VERDICT

13 July, 2007

1. LENALIA, J: The accused pleaded not guilty to one count of rape contrary to s. 347 of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. The second charge contained in the indictment is an alternative count of sexual penetration laid pursuant to s. 229A (1) of the above Act

EVIDENCE

2. The following documentary evidence was tendered by consent:

- Record of interview, Pidgin and English translation
- Pidgin original Exhibit "A"
- English translation Exhibit "B"

3. The record of interview contains clear denials. In answer to question 19 in the record of interview, the accused gave an account of what is supposed to have happened and which also became the basis of the defence evidence later. Nothing much can be said about the record of interview at this stage which could be said to assist the prosecution evidence as the whole record of interview is total denial.

4. There were three witnesses called on this trial. The first witness Frances Lamus is the victim. As it appeared from all evidence, the victim had been out all through the night with Lucas Guno before the rape is supposed to have taken place. The evidence by Melvin Sedun confirms that of the victim that by 7 am in the morning Lucas Guno came with the victim and left her with Melvin in Vincent’s house. As Melvin and the victim were there, the accused came to the house where they were and asked where the victim had been the night before.

5. The victim told the accused that, she had been out with Lucas Guno. The accused told the victim that her mother had been looking for her the whole night and her relatives were anxious to find out her whereabouts as well as they wanted her back. Evidence shows that after she had informed the accused of where she was that night and with whom she was around with, it appears that, the victim was frightened to go back to her house so the accused offered to assist her by taking her to her house. The victim said because she trusted the accused she agreed to go with him.

6. The accused is married to the elder sister of the victim’s mother. From the victim’s evidence, according to their custom the victim can also refer to the accused as an uncle or even address him as "father". With that confidence in her, the victim said they then left Melvin cooking in the house where they were.

7. The evidence does not reveal the reason why, the accused and the victim wanted to take the bush track rather than going along the main road. The pair took the bush track and on the way, the evidence by the State is that, the accused told the victim that he was being fed up with hearing stories about her going around with men and even a teacher at her school had been trying luck on her. He then held on to her hands and the two of them walked side by side to the priest’s house. They left that road and crossed to the other track leading to the oil palm plantation. Francis evidence is that, when they reached an oil palm tree, the accused told her that before he assisted her, he would have sex with her.

8. When the victim heard that she cried. The accused told her not to cry then he put his laplap on the ground, he held her hands and took off her shirt first then her laplap, the bra and panties. She was naked. She said he forced her down to the ground and laid on top of her and sexually penetrated her. After he ejaculated into her vagina, the accused stood up and asked the victim as to how she used to have sex with her boy friends that is to say how her boy friends have sexual intercourse with her. After a while, they had a second round of sexual intercourse.

9. After that they both got dressed up and they started walking toward their houses. A little distance away from their house, the accused asked the victim if she was hungry. She answered that she already had banana during breakfast. She was left under a citrus fruit tree and the accused went to his house and brought a few wheat flour balls and gave them to the victim. She ate it up, then the accused asked her if she wanted some rice. There was no answer given to that question but the accused went away the second time to look for some rice.

10. While the accused was gone the second witness came and started to ask the victim where she had been. Melvin Sedun’s evidence is that when he saw the victim, he asked her where she had been because, he wanted to clear his position. When the accused first came to the house where Melvin and the victim were, Melvin’s evidence is that, the accused looked suspicious at Melvin with the victim being present in his house. So when Melvin saw the victim the second time that morning, he wanted to reveal his innocence not only to the accused but to the victim’s relatives. As the victim and Melvin were talking some other people gathered.

11. The third witness, James Lavenas, is the one who saw the accused and the victim came out from the bushes. He saw them separate, the accused walking up one track while the victim went out the other way. James came to where the victim was and asked her whom she was with. She told this witness that she had been around with Lucas. James said he did not believe what the victim told him and he threatened to hit her if she did not tell the truth.

12. While they were talking, Lucas Guno came and he took over questioning the victim as to where she had gone to and to whom she had been with. It is the victim’s evidence that when Lucas was asking her, she then revealed that, the accused had raped her. She even took Lucas and others to the scene to show them where the accused had raped her.

13. In fact that was unbecoming on the part of Lucas as the evidence shows that, the victim had been around with him the night before the rape occurred. It would seem that Lucas had some suspicion about Melvin Sedum and even James Lavenas. The victim’s evidence shows that, a part from the accused having sex with her that morning, Lucas had had sex with her during the night once. That is why when Lucas saw the victim talking to James, he got so furious. The court shall further highlight the evidence on cross – examination later when I discus the law.

DEFENCE

14. The defence evidence came from the accused alone. The defence case is very similar to the State evidence and there is no need for me to repeat what I have said in relation to the prosecution case. There is no dispute that the accused took the victim from the house where she was together with Melvin. There is no dispute that, the two of them walked up through the bush track then through to the priest’s house. The accused evidence is that on the way, the victim asked him to stand and rest a while. As he glanced at her she smiled at him. He asked her if anything was wrong. She only smiled the more at the accused.

15. As they continued walking, the accused said, the victim asked him if they could have sex. The accused said, he felt a shy of guilt over him as the victim is an uncle to him. He said, the victim then undressed herself and laid down on a laplap naked. He further said, he wanted to have sex with her and she was in a ready position for him to penetrate her.

16. However when he looked at the victim’s private part, he observed that there was semen in her vagina. According to the accused, the sight made him hate what he wanted to do with the victim according to her will.

17. It is the accused evidence that, after this, the two of them walked out and he went away to tell the labourers that he would not go to work with them that day as he wanted to go to his garden. When he got to his house the victim was there. He did not tell his wife about what the victim and him did, but instead, told her about what Lucas did to her. That was the end of the defence case.
    

ADDRESSES ON EVIDENCE

17. Mr. Tusais of counsel for the defence submitted on the status of the evidence saying that, the issue on this trial was one of credibility of the witnesses as to which side should the court believe. Counsel submitted that the court should believe the defence case because the victim did not raise any hue. He submitted that, there was no recent complaint and despite the fact that, there was ample opportunity for her to do so.

18. He cited examples of the distances given by the prosecution evidence to where the victim was left when the accused went to look for food. One such example was the distance from where she was left when the accused went to look for food. The distance estimated in cross – examination was some 200 – 250 meters. Counsel submitted further that, there is a lot of inconsistency in the evidence of the victim and that such evidence should create a lurking doubt in the mind of the court.

19. For the State, Mr. Ruari submitted that the prosecution had proven their case beyond reasonable doubt. He said three witnesses were called and their evidence was consistent with each other. He submitted that, though the accused has denied sexual intercourse, there is evidence from witness James Lavenas seeing the victim and the accused walking out of the bushes together.

20. I gather that, counsel was asking the court to draw inferences that because, the accused and the victim came out from the bushes, forceful sexual intercourse had taken place or that alternatively, sexual penetration had taken place.

21. Counsel submitted why the victim would lie against the accused since she is closely related to the accused. Mr. Ruari cited s.352A of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. The court will return to this section a little later.

LAW

22. The accused is with the offence of rape under s.347 of the Act. That Section says that where a person sexually penetrates another person without his or her consent is guilty of the crime of rape. In order for the State to secure a conviction under this proviso, two elements must be proved. First sexual penetration must have been achieved in terms of s.6 of the Criminal Code (Sexual Offences and Crimes Against Children) Act. The second element is that sexual penetration must have been acquired by force. In other words, there was lack of consent on the part of the victim.

23. Counsels have rightly submitted that, the issue on this trial is one of credibility of the evidence both for the prosecution and the defence. The trial before this court involves a sexual offence and the court must consider the warnings sounded by the Supreme Court in cases such as Didei v The State [1990] PNGLR 458 or that of McCallum v Buibui [1975] PNGLR 439. For records purpose, I record that warning that, there was no corroborative evidence in this case.

23. At the same time I am reminded on s.352A of the above Act a person may be found guilty on the uncorroborated testimony of one witness. It further goes on to say that a Judge must not "instruct himself" or herself for that matter that it is unsafe to find an accused guilty. The following is what I said in The State v David Sopane (28.2.06) N3024

"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."

24. What I have quoted above is in my view a clear statement of good law governing the warning that should be taken into account in sexual cases, particularly where a sexual offence is denied as is the case with the current trial.

25. I now return to the evidence in the instant case. There was evidence from James Lavenas that, he saw the accused and the victim coming out from the bushes. There is also evidence by the accused himself that, the victim actually undressed herself and laid down on a laplap naked exposing her vagina to the accused in readiness for the accused to penetrate her.

26. The question really is, did the accused penetrate the victim given the fact that she was in a ready position to be penetrated with her legs open? Naturally just the sight would have been so enticing and more tempting to anyone. Before I answer the question posed, let the court consider a few other factors.

27. There were a number of opportunities for the victim to raise a hue. The first time was when witness James Lavenas saw the accused and the victim coming out from the bushes. She could have shouted to James saying she was raped. The second and third opportunity for her to make a recent complaint was when the accused left her twice in search of food for the victim. Not forgetting the fact that both the accused and the victim’s houses were just about some 200 meters away from the citrus fruit tree where the victim was sitting down.

28. Why did she wait for someone else to start questioning her before she revealed her predicament? All she said in answer to questions in examination in chief and cross – examination was that she was shy or to put it in better terms ashamed of telling other people of what the accused had done to her.

29. The next consideration is the time taken for the accused and the victim to reach their houses. According to all evidence the accused and victim live in adjacent houses at a distance of 10 – 20 meters between them. It took them so long to reach their destination. According to the evidence of Melvin Sedun, it took him a short time indeed to reach the accused house. He took off from the house where the accused and the victim left him then followed the main road. When he arrived at the accused’s house, the victim and the accused were not there yet.

30. According to Melvin their absence created suspicion in his mind. So when Melvin went to Peter’s house he went with the intention of clearing his name perhaps not only with the accused but also with Lucas Guno since the said Lucas had earlier left the victim with Melvin. He thought if he did not do anything to clear his standing or his position, then he would be blamed for any illicit activities which took place at night.

31. The above evidence leads this court to the conclusion that, there was ample time and opportunity for the accused and the victim to have sexual intercourse. There is no reasonable explanation by the defence evidence as to why it took the accused and the victim that long to reach their houses quickly. There is even evidence before this court from which the court could draw inferences from to infer the accused involvement in this serious crime. It was said in The State v Tom Morris [1981] PNGLR 493 or that of Paulus Pawa v The State [1981] PNGLR 497, that where at the end of the prosecution case there are a number of competing inferences, it is a question of fact for the court to decide which inferences should be drawn, which should be rejected and which are reasonable and which party the court should favour.

32. The reasonable conclusion that the court must reach is that there was in fact sexual intercourse but it might not be a case of rape. I find that, sexual penetration was done consensually. I therefore find the accused not guilty of the charge of rape.

33. I however find him guilty on the alternative charge of sexually penetrating the victim under the age of 16 years pursuant to s.229A (1) of the Criminal Code (Sexual Offences and Crimes Against Children) Act. He is accordingly found guilty and convicted for the alternative charge of sexual penetration under s.229A (1) of the Act.

The court returns a guilty verdict on the alternative charge.

The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for Accused.