State v Solomon (No 1) [2007] PGNC 148; N3215 (19 April 2007)

N3215

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 855 OF 2005

BETWEEN

THE STATE

AND

ROBERT SOLOMON (No. 1)
Accused

Kimbe: Davani .J
2007: 17, 18 & 19 April

CRIMINAL LAW – 3 counts of rape – accused victim’s half brother – rapes occurred over a period of 5 years – s. 347 of Criminal Code (Sexual Offences and Crimes Against Children Act 2002 (‘CCSOCAC’).

CRIMINAL LAW – Defence of consent by victim – accused’s use of knife and force, proven – not consent – s. 347 (2) of CCSOCAC)

Facts
Accused is the victim’s half-brother. She was taken into accused’s family by accused’s parents when she was very young. After the accused’s parents left the family home, the accused began to mistreat her, finally resulting in him having sex with her. On all the occasions that he had sex with her, he would beat the victim and always had a knife with him. He was very cruel to her, always beating her into submission and treating her as his sex slave. She eventually got pregnant and had a child from him.

Held
1. The victim submitted to the acts of sexual intercourse over the years because of the violence occasioned upon her by the accused;
2. Although she did not report the matter, the surrounding circumstances show that her conduct is neither acquiescence nor consent.
3. Accused is guilty of 3 counts of rape.

Cases cited:

Papua New Guinea Cases
State v Stuart Hamilton Merriam [1994] PNGLR 104;

Overseas cases
R v Lillyman [1896] UKLawRpKQB 126; [1896] 2 QB 167;
Sparks v R [1964] AC 964;
Woolmington v DPP [1935] AC 462;
Thomas v Van Dan Yssl [1976] 14 SASR 205;

Counsel
A. Kupmain, for the State
P. Kapi, for the Accused

VERDICT

19 April, 2007

1. DAVANI .J: On 17th April, 2007, the State presented an indictment alleging three (3) counts of rape with aggravation against the accused. The charges are laid under s. 17 or s. 347 of the Criminal Code (Sexual Offences and Crimes Against Children Act 2002 (‘CCSOCAC’). This provision reads;

"S. 347 DEFINITION OF RAPE

(1) A person who sexually penetrates a person without his consent is guilty of a crime of rape.
(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."

Penalty: Subject to subsection (2), imprisonment for 15 years."

2. &##160;ccu ad pled pleaded aded not guilty to these charges, necessitating a trial.

State’s allegation

3. The indictment tendedeege athe ad rapedraped the the victivictim GS on 3 separate occasions during the following period;

1. Between 1een 1st Just June, 2ne, 2004 a004 and 30nd 30th June 2004 at Kavui Oil Palm settlement, Kimbe, West New Britain Province.
2. Between 1st July, 2004 and 31st July 2004 at Kavui Oil Palm settlement, Kimbe, West New Britain Province
3. Between 1st June, 2004 and 31st August, 2004 at Kavui Oil Palm settlement, Kimbe, West New Britain Province.
   

4. ҈&On all tall these oese occasions, the State alleges that the accused threatened to use a weapon, that he confined the victim before committing the offence, that when committing the offence, he abused a position of trust, authority and dependency and lastly, that he is a member of the same family as the victim. These factors are all specifically alleged on the indictment, now before me.

5. ;&#16presenting ting the inhe indictment, the State presented these facts in support of the indictment.

2. The third incident occurred in the garden where the accused had sexual intercourse with the victim, without her consent;
3. On or about July 2004, the accused had sexual intercourse with the victim in his room, without her consent;
4. Between 1st July, 2004 and August 2005, on a date unknown, the accused had sexual intercourse with the victim in his room without her consent.
   

6. ҈&The Stat State also also put to the court the various circumstances under which it alleged the victim did not consent, as provided in s. 347A (or s. 18) of the CCSOCAC. These provisions a s. 32) (a) (b) (c) (dc) (d) (i)) (i). The State alleges that the victim submitted to the accused because of;

- The use of force upon her (s. 347A (2) (a)).
- Threats and intimidation upon her (s. 347A (2) (b)).
- She was unlawfully detained in the accused’s room (s. 347A (2)(d)).
- Fear of harm to herself (s. 347 A(2)(c)).
- The accused abused his position of trust by inducing the victim to engage in sexual intercourse (s. 347A (2) (i)).

This provision reads;

"347A MEANING OF CONSENT

...

(2) Circumstances in which a person does not consent to an act include, but not limited to, the following:-

(a) the person submits to the act because of the use of violence or force on that person or someone else; or

(b) the person submits because of the threats or intimidation against that person or someone else; or

(c) the person submits because of fear of harm to that person or to someone else; or

(d) the person submits because he is unlawfully detained; or

...

(i) the accused induces the person to engage in the activity by abusing a position of trust, power or authority; or

..."

7. ;&#16n arraignmeignment, tht, the accused pleaded not guilty to all counts including the circumstances of aggravation that were put to him, thus necessitating al.

eliminary

8. &#160 &#160 BeforBefore proceedintrial,rial, Mr Kupmain requested that special measures be put in place in relation to the giving of evidence by the victim because the victim is a witness in proceedings relating to a sexffencis was done by meby means oans of a Special Measures Order taken out under s. 37B (1) (b) of the Evidence (Amendment) Act 2002 (‘EAA’). I ordered;

(a) The use of a screen to prevent the witness from seeing the accused (s. 37B (2) (a) of EEA);
(b) The proceedings to be in camera, whilst the victim was giving evidence (s. 37B (2) (f) of EEA).

Undisputed facts

9. &##160;;Before sore settingtting out the issues for trial, I set out below the various facts which are admitted and which are pertinent towards deciding the guilttherwf the accused. Both Counsel and accused agree thae that thet these facts are admitted. But these do not include facts which the State submits are admissions under s. 589 of the CCA. I cover and discuss the purported admissions later in these reasons. The undisputed facts are these;

1. The accused is the son of Solomon Razuku and Lilly Solomon;

2. The accused left Papua New Guinea in 1980 for the Solomon Islands and returned in 1999 to Kavui block. His father died in 2001 and he was left to care and manage the oil palm block at Kavui. He was also left to care for his father’s children from other marriages. From his natural mother, he had several brothers and sisters. His second mother’s name is Kabilla and she had six (6) children;

3. The victim was already residing with the accused’s family in his father’s home at Kavui Block when the accused returned from the Solomons in 1999. She was taken into the accused’s family by his parents when she was only an infant;

4. Whilst the victim was residing with the accused’s family, the accused’s father paid for her school fees, housed her in his home and gave her pocket money;

5. When the accused returned from the Solomon Islands in 1999, he continued to provide the same care for the victim, as his father did;

6. In 2001, the accused began to mistreat the victim, by beating her and being cruel to her;

7. In 2004, the accused began to have sexual intercourse with the victim;

8. The accused had sexual intercourse with the victim on 5 occasions during the period alleged by the State;

9. Sexual intercourse may have occurred twice in the garden, not once;

10. During the period the acts of sexual intercourse occurred, the victim was residing in the accused’s home at Kavui block, Kimbe;

11. During that period, the accused was married to a Solomon Islander, Janet and she was also resident in the house at Kavui Block, together with their children;

12. The acts of sexual intercourse between the accused and the victim, occurred whilst the accused’s wife and him were living together;

13. The acts of sexual intercourse between the accused and the victim, occurred in the accused’s home in his room and in the garden;

14. The victim recently gave birth to the accused’s child.

Issues for trial

10. &##160; After heer hearing eciden f, I find these to be the issues. Both counsel also agreed that these are the issues for trial;

1. Wr the victim was was forceforced by the accused to have sexual intercourse with him;
2. Whether the victim is the accused’s sister, albeit natural or otherwise.
   

11. ;&#16 issues ares are relevrelevant in understanding Defence Counsel and the accused’s submissions and line of Defence that the victim consented to the acts of sexual intercourse with the accused and further, that the accused had sex with her because he believed she was not related to him.

Analysis of evidence and the law

12. My discussion under phis wirt will commence with the victim’s relationship with the accused, followed by an analysis of the evidence on consent and whether sex was consensual.

13. i. Accused’s relationship to victim

The victim said in evidence that she is the accused’s sister, having been given to his parents by her mother when she was very young. She was taken into the accused’s family as their last born sister. The accused was still in the Solomon Islands when this occurred. She said she does not know of the year and date. She also said that when "our father" died in 2000 (i.e the accused’s natural father), thereafter in 2001, "my mother" (i.e accused’s natural mother) gave her to the accused and his wife to care for as their own. I have emphasised the words "our father" and "my mother" as that is how the victim viewed her relationship with the accused’s parents, that she was their last born daughter and they, the only parents she knew.

14. ـ&#1e accu accused hoed however said that in 2001, the victim was left with his wife and him by his mother, to be their house girl. He said his understanding of what an house girl does is tha doescooking, laundry,ndry, clea cleans the house and does other household chores around the house. At that time in 2001, the victim would have been aged approximately 11 because she told the court during trial that she is now aged 17.

15. Edith Jeffery, witness who gave evidence for the State, told the court that the victim is the accused’s sister. Edith is married to the accused’s half-brother. She said their family were concerned at the excessive and severe beatings inflicted upon the victim by the accused because as her brother, he should care for her as his sister, and not beat her up the way he did. She said she knows the victim is the accused’s sister because she learnt of this when she married into the family some years ago.

16. ټEdlth aavo gave evid evidence of an incident at her home where the victim who had run away to seek shelter in Edith’s home, was finally found by the accused, who severely beat her up in front of Edith. He punched and kicked her, then practically threw her into the back seat of the vehicle he was driving. When they got home, the victim promptly ran away again, to Edith.

17. Mr Kapi for the accuued ss mits that the court should not place any weight on Edith’s evidence because it is all hearsay. I find that evidence not to be hearsay because that is what she saw.
<ـ The vice victim ctim has neas never budged from her evidence that she was taken into the accused’s family by the accu8217;ents ared for as their child. It is not disputed that they put her through sugh schoolchool and and paid for all her expenses. She lived under the same roof and together with all the other children, shared all that they had. The accused did the same when the victim was in his care, until after his mother left for Madang in 2001, when he then began to mistreat her.

19. ـ The evid evidence is that the victim was treated as a member of the accused’s family. If the victim was the ed’s house girl, then she would not be living and could not have lived under the same same roof as his family and received the same care that the other children in the household received. In this case, she had always lived with the accused’s family, in her own room and was a part of their family even to the extent of referring to the accused’s parents as her ‘father’ and ‘mother.’ On that evidence, I can conclude that she could not have been living there as a house girl or a live-in house girl, for that matter.

20. ټ&#efore hore his mots mother left for Madang, the agreed evidence is that his mother told the accused to care for all the children including the victim. I do not believe the accused’ser woave told the accu accused tsed to keep the victim as a house girl because she (his mother,) never treated her as such, at least there is no such evidence. In fact, I think she must have said something to the effect that the victim should assist with the household chores which the accused agreed with when I asked him.

21. The accused is lying. He wants the court to find that the victim is her house girl when the evidence is that it is common knowledge, even amongst his own family members, that she is his sister. As to this I say, witness Edith Jeffery need not have been around when the victim came into the family. 22. When Edith married into the accused’s family, she learnt of this. That is normal. When one marries into a family, you learn of the family history. It occurs everywhere, all over the world.

23. ҈i>T

The victim’s evidence is that after her mother (i.e accused’s mother) ler Madthe ad and his wife began to mistreat her. Ter. The ache accusedcused would severely beat her and scold her. The victim lived in fear because of the beatings she sustained. This is confirmed by Edith Jeffery who spoke for herself and the whole family, that the accused beat the victim as though she were not his sister. She said her husband and the whole family were very concerned about this.

24. ـ&#1thoughhough the athe accused said he only smacked her, the victim’s evidence is that he used sticks to beat her and she was always covered in bruises, some of which she bled from. She showed the court a scar on her collar bone that she sustained from a cut received as a result of a beating she received from the accused. The nature of the beatings she received from the accused is confirmed and verified by Edith Jeffery.

25. ҈ The vict victim is genuineiy frightened of the accused. She lived in his home, her only shelter and she was subjected to this cruel treatment. Tcusednot bt any other evidence to say otherwise. ise. Additionally, the accused’s wifs wife cone contributed to the victim’s life of fear and terror by constantly getting cross with the victim and by telling the accused to hit her. I can only conclude that her life with the accused and his wife was miserable as she was constantly in fear of being scolded and hit by the accused. I accept unreservedly the fact that if the accused told her to do anything she would do it because she did not have a choice. His home was her home and he supported her. She had nowhere to turn to.

26. ـ&#1e vict victim wasm was asked why she did not run away or tell somebody about what she was going through. The victim told the court that she did run away onral oons from the accused’s home but he promptlymptly brou brought her back to his house. There is evidence before me of one occasion she ran away to Edith Jeffery’s home which is not disputed.

27. &ـiv. D Dependependency by victim upon accused

I have already found that the accused was the victim’s sole provider of finance,, clo and shelter. She did not have anybody else. Alth Although ough she had her extended family, she did not go to them because she feared what the accused would do to her if he found her. But she saw him as her big brother and her undisputed evidence is to that effect.

28. ـ v. AlAllegations of rape and consent

There is no dispute that the accused had sexual intercourse with the victim during the periods pleaded in the indictment. He admits that. However he said thtim am had agreed to h to have save sex because of the constant accusations from his wife of him having an affair with the victim. The victim denies that.

39. Soiwho ll te thngtrut here here, the victim or the accused?

30. ҈&There isre is no runo rule of law that says that where two or more persons tell the same story, thory i trutopposed to a single witnesstness. And in a criminal case where there is only one witness in his own town trial,rial, that makes his chances of being believed non-existent. However, the authorities say that 10 people giving the same story who appear to be quite convincing could all be lying. On the converse, an accused may be the only witness in the defence case and may not be as smart or convincing as the prosecution witness, yet he could be telling the truth.

31. &The truth is not so easy tasy to find and the court has to always do the best it can in all the circumstances of a given case to try and strike a balance betweet is al ane pro of human comprehension than than what what is ilis illogiclogical or plain fallacy. That is why there is an added safety valve in the criminal law, which requires that the court must be satisfied beyond reasonable doubt of a guilt of the accused before it can convict. And where there is any doubt the court must give the benefit of the doubt to the accused (see Woolmington v DPP [1935] AC 462).

32. &#here are certain facts thts that arose in the accused’s evidence which he did not put to the victim, for her to respond to. These were;

1. Evidence about the dispute over the block at Kavui - Defence alleges that the State witnesses influenced the victim into reporting him to the police because of an ongoing dispute between the accused and other family members, over the block at Kavui that the accused is resident on. But defence did not ask State witness Edith Jeffery, questions relating to a dispute over the block between the accused and his brothers.
   
2. During the State’s case, there was no evidence of the accused taking the victim to a place called Siti. But in his evidence, the accused said he did that. This was not put to the victim to verify.
   

33. In this ase,ast wt anoase case of surprising the prosecution, but rather Defence counsel did not put to his client rather pertinent and relevant questions, which of course inevitably challenged the accused’s credibility as a witness. In this case, the accused said the victim reported him because she was persuaded by other family members to do so. And this was because of an on-going dispute amongst his brothers and him over the block of land at Kavui. Bray C.J summarised this in Thomas v Van Dan Yssl [1976] 14 SASR 205 at 206 when he said;

"...If it is intended to suggest that a witness is not speaking the truth on a particular matter by cross-examination, his direction must be directed to the matter by cross-examination so that he may have an opportunity of giving an explanation of it upon to him unless he has had notice beforehand that the credibility of his story is impeached, or unless, probably, it is so intrinsically and patently incredible as to be unworthy of examination. With respect, I think the rule is a salutary one. As Lord Herschell said at 70, "it is absolutely essential to the proper conduct of the cause".

The other two members of the Full court of the Supreme Court of South Australia concurred with the judgment of Bray CJ."

34. &ـIn StateState v Stuart Hamilton Merriam [1994] PNGLR 104 N1189, Sakora .J said at pg. 6;

"The second consequence of the defence failure to cross-examinte wies on certain matn matters ters is a tactical one, but no less important for that. Where part of a party’s case has not been put to witnesses for the opposing side, who might reasonably have been expected to deal with it, that party himself will probably be asked in cross-examination why he is giving evidence about matters which were never put in cross-examination on his behalf. The implication of this question is that the party is fabricating evidence in the witness box, because if he had ever mentioned the matter in question to his legal advisers, then they would have been put, on his behalf, at the proper time. There is, therefore, some risk that the defendants credit as a witness may be affected by failure to cross-examine fully on his behalf."

35. ҈Ar theendntended impd implication which emerged from the evidence is that because the victim did not immediately report the incident, that she may have acquiesced and consented. As Sakora .J said in State v. Merriam (supra);

"In rape cases, evidence of what is termed proximate complaint is evidence that the woman had not consented. But it does not necessarily follow that the lack of absence of complaint must be evidence of consent. The two English cases of R v Lillyman [1896] UKLawRpKQB 126; [1896] 2 QB 167 at 170 and Sparks v R [1964] Ac 964 at 797 establish the principle that evidence of a complaint at the earliest possible opportunity is exceptionally admitted only as evidence of consistency in the account given by the woman claiming to have been raped. That is to say, it is admitted as going to her credit".

36. &##160;ece r comt complaintlaint has not been made an issue by the accused. It is whether the victim consented to sexual intercourhat iissuesidering the alleged rapes occurred over a period of time. And I have save sufficufficientliently answered that. Further, that because pertinent questions were not put to the victim’s witnesses by the accused, that the conclusion I will draw is that the accused is fabricating his evidence. He is lying. The elements contained in s. 347 (2) (a) (b) (c) (d) (i) of the CCSOCAC have all been proven,

- that the accused used force upon the victim when he had sexual intercourse with her;

- He threatened and intimidated her;

- He unlawfully detained her in his room;

- She feared for her life and safety;

- He abused his position of trust by inducing the victim to engage in sexual intercourse.

37. v. Admissions

S. 589 of the CCA reads;

"589. Admissions

An accused person may admit on the trial any fact alleged against him, and the admission is sufficient proof of the fact without other evidence."

38. Under s. 589, the undisputed facts more particularly in relation to the elements of the charge of rape are deemed to be admissions. This is where the accused admitted in evidence that;

1. He did have sexual intercourse with the victim on 5 occasions in his house and in the garden;
2. From 2001 to 2004, paid for her school fees and cared for her whilst she was living in his home.
   

39. vi. Letter

Defence continuously referred to a letter which the victim allegedly wrote to the accused, after the occurrence of the rapes. But evidence of the letter was only raised at the trial. The accused did not mention it to the police nor did he tell lawyers at the pre-trial. It was only at the hearing, that Defence counsel led evidence on the letter. In fact, Defence counsel attempted to take the letter from the accused whilst he was in the dock. I put a stop to that on objections from the State because obviously, this was a matter the State was not aware of. I must add that Defence counsel appeared only to learn of the letter at trial because he did not have a copy of the letter with him in court, attempting to get it off his client whilst he was in the dock. I find this to be recently fabricated evidence. Defence counsel accepts this to be the case and did not press the issue.

Conclusion

40. ;There is no ru e of law thaw that says that a party that calls for more witnesses and who gives consistent and almost identical stories must be believed and a party who calls only one witness must not be believed.

41. &##160;;In this this case, ase, I do not find any doubts in the State’s case. The Defence has not shown that the victim was ling,ensual partner in all the acts of sexual intercourse.

42. &#160  t&#fter review of all all the evidence and based on the above discussion, I find the following to have been proven beyond reasonable doubt;

1. Thused the v in his home as a sex slave and used heed her to r to satissatisfy his bodily desires;

2. He inflicted so much fear on her that she could not run away;

3. That the occasions he had sex with her, he did so knowing that she was very fearful of him because of the threats and actual assaults occasioned upon her.

4. That he always had a knife close by him whenever he had sex with the victim and threatened to use the knife if she did not relent to his advances.

43. ҈Tct vinevm never conr consented to the acts of sexual intercourse. Sexual intercourse took place when the victim was threatend in. Cirances of aggravation as pleaded in the indictment, have been proven.

>

44. I find that thr chaofes pe rape have been proven beyond reasonable doubt and that the accused is guilty of the 3 counts of rape.

________________

Public Prosecutor: Lawyer for the Stat Statee
P
Publicublic Soli Solicitor: Lawyer for the Accused