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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO 953 OF 2008
THE STATE
V
PAUL MAGEL
Bialla: Cannings J
2009: 13, 14, 18 May
Kimbe: 26 May 2009
VERDICT
CRIMINAL LAW – trial – rape – Criminal Code, Section 347 – whether the complainant consented.
The accused, a man aged in his mid-20s, was charged with the rape of a middle-aged woman, his aunty. He agreed that he sexually penetrated her but claimed that she consented. He said that he went to her garden as she had asked him to go there. It was her idea to have sex, he said. The complainant did not complain of being raped until one month later. There was no evidence that she was physically or emotionally distressed as a result of the incident.
Held:
(1) Under Section 347(1) of the Criminal Code, the crime of rape consists of two elements:
- the accused sexually penetrated the complainant;
- without his or her consent.
(2) Though the complainant appeared to be a credible witness, the circumstances in which she came to be alone with the accused leave open the possibility that she planned an assignation with him. The lack of a prompt complaint and the lack of any evidence of physical or emotional distress on her part also create doubt as to the veracity of her evidence.
(3) There was thus a reasonable doubt about lack of consent and the accused was found not guilty.
Case cited
The following cases are cited in the judgment:
The State v Erwin Marenge Kilala CR 685/2007, 23.03.09
The State v Jacob Seigu (2005) N2852
The State v Merriam [1994] PNGLR 104
The State v Moki Lepi (2002) N2264
The State v Polikap Lakai (2007) N3153
Dates
The events referred to in this judgment occurred in 2008 unless otherwise indicated.
TRIAL
This was the trial of an accused charged with rape.
Counsel
A Kupmain, for the State
R Awalua, for the accused
29 May 2009
1. CANNINGS J: Paul Magel, the accused, is aged in his mid-20s. He comes from Marivu village in the Pomio district of East New Britain. He lives in the Navo area, near Bialla, West New Britain. On the morning of Saturday 16 February 2008, he was involved in an incident at Navo, with his aunty, "A", which has led to him being charged with rape.
2. It is alleged that the accused approached A (the complainant) in a garden near her home when she was alone, at about 10.00 am. He grabbed hold of her, removed her laplap, pushed her to the ground and sexually penetrated her by inserting his penis into her vagina. It is alleged that he did so without her consent.
3. The accused agrees that he had sex with the complainant but says that she consented.
THE EVIDENCE
4. The State's case was based on the following evidence:
5. For the defence, two witnesses gave sworn evidence:
ELEMENTS OF THE OFFENCE
6. Rape is an offence under Section 347 of the Criminal Code, which states:
(1) A person who sexually penetrates a person without his [or her] consent is guilty of a crime of rape.
Penalty: Subject to Subsection (2), imprisonment for 15 years.
(2) Where an offence under Subsection (1) is committed in circumstances of aggravation, the accused is liable, subject to Section 19, to imprisonment for life.
7. To obtain a conviction the State must prove the two elements set out in Section 347(1) beyond reasonable doubt:
8. The indictment charges that the accused 'abused a position of trust, authority and dependency'. This is a circumstance of aggravation (see Sections 347(2) and 349A(e)). If, in addition to the two essential elements, the State proves that the accused abused such a position (defined inclusively by Section 6A(2)), he will be guilty of aggravated rape and subject to a maximum sentence of life imprisonment. If the State proves only the two essential elements but not the circumstance of aggravation, he will be subject to a maximum sentence of 15 years imprisonment.
UNDISPUTED FACTS
9. It is agreed that the accused sexually penetrated the complainant on the morning of Saturday 16 February 2008 at Navo. The complainant was alone at the time, as was the accused. The complainant did not make any complaint of rape until one month later, when she told her husband.
ISSUES
10. The principal issues are:
DID THE COMPLAINANT CONSENT TO HAVING SEX WITH THE ACCUSED?
11. The State bears the onus of proving beyond reasonable doubt that she did not. Consent is defined by Section 347A(1) of the Criminal Code to mean "free and voluntary agreement".
The complainant's evidence
12. She is employed as a fruit picker by Hargy Oil Palms. On Saturday 16 February she went to her block to do some weeding in her kau kau garden. When she was weeding the accused came from behind and grabbed her, threw her to the ground and removed her laplap. She tried to push him away but he was too strong. He held her down and pushed his penis into her vagina. She did not call out for help as the accused covered her mouth. At no stage did she give him permission to have sex with her. There was no one else around at the time.
13. When he had finished he talked strongly to her and stressed that she must not tell her husband about it.
14. She did not report the incident to her husband until some time later as the accused is her husband's nephew. The accused was embarrassed by what he did. Her husband reported it to the company security officers and from there the matter was reported to the police.
15. In cross-examination she denied planning to meet the accused in the garden or making eye contact with him, indicating that he should go with her into the garden. She denied any previous sexual relationship with him. She went to work early in the morning but was given permission by her supervisor to leave early, at about 9.00 am, as the family had no food and she needed to go to the garden.
16. She denied removing her clothes herself. The reason she did not scream was that there was no one else around. He did not put his hands over her mouth. She felt pain when he penetrated her.
17. She went to the Navo health centre after the incident as she sustained a scratch on her back when the accused was on top of her. However, she did not report that she had been raped to the medical staff. She felt uncomfortable about telling anyone as her husband is a church leader and the accused is also a church leader.
18. Her husband realised that something was wrong and that is when she told him what happened.
The complainant's husband's evidence
19. He is a security guard employed by Hargy Oil Palms at Navo Estate. He is a leader of the South Sea Evangelical Church. During March he noticed his nephew, Paul, the accused, behaving suspiciously, as if he were embarrassed about something. So he asked his wife if she knew why Paul was behaving strangely. Then she told him what had happened.
20. He reported the matter to company security officers and the matter was then taken to the police. He was very angry but he knows that there are laws to deal with such things so he decided that the law should take its course.
21. In cross-examination he explained that Paul is his sister's son. It was true, he said, that on the day of the incident, 16 February, they had no food in the house.
22. He did not notice his wife behaving abnormally on 16 February. She remembered that she had a back injury but could not say that he asked her how she got it. He remembers that she went to the clinic but she did not tell him why she went.
23. It was on 19 March that she told him that Paul had raped her. It was on that day that he asked her if she knew why Paul was behaving suspiciously. The matter was reported to the company security officers the next day.
The accused's record of interview
24. The accused told the same story to the police as he told the court: it was the complainant's idea that they meet in the garden and it was her idea that they have sex.
The accused's sworn evidence
25. He also works for Hargy Oil Palms at Navo Estate. He went to the garden as the complainant asked him to go and meet her there. She was making eye signals to him. When he arrived she was pleased to see him. They stood and talked for a while then she suggested that they go in to the bush. They went there and she removed her laplap and shirt. She lay down and spread her legs and he lay on top of her and they had sex.
26. After they finished she asked for some money and he gave her K20.00. They went back to the garden and she split a watermelon and they shared it and stood telling stories for 20 minutes.
27. He does not agree that he was behaving suspiciously on 19 March but when the matter was reported to the security officers he told them that it was true that he had sex with the complainant but not true that he raped her.
28. In cross-examination he denied pushing her to the ground or removing her clothes or injuring her in any way. She agreed to everything, he said.
The accused's in-law's evidence
29. He is the accused's in-law. He is the brother of the complainant's husband. He said that he knows what has been going on between the accused and the complainant. They had been having a sexual relationship for some time before this incident, he said.
30. In cross-examination he admitted that he was not in the garden on Saturday 16 February and he did not see what happened. But he knows what had been happening between the complainant and the accused. Under their Pomio custom, it might not have been right but it was happening.
How strong is the evidence of lack of consent?
31. Mr Kupmain submitted that there was a strong body of evidence, showing that there was no consent:
32. I consider that at first glance this evidence appears to be sufficient to warrant a finding that there was no consent. The complainant's demeanour was sound. She was not an obvious liar. However, this is a criminal case and the court has to be satisfied beyond reasonable doubt. I will now address the submissions of defence counsel and other matters that are necessary to take into account in order to afford to the accused the full protection of the law required by Section 37(1) of the Constitution.
Defence counsel's submissions
33. The defence counsel, Mr Awalua, argued that the evidence of the State witnesses is unreliable and deficient in a number of respects.
(a) Complainant's evidence not credible
34. Mr Awalua submitted that the complainant did not give consistent evidence and that her story about being let off work early in the morning was not believable.
35. Her evidence that she did not shout (as there was no one around who could help her) differed from what she said to the police in her witness statement (that she did shout for help). Also, when she gave her evidence in court she at one stage said that he covered her mouth whereas she later said she did not cover her mouth.
36. I do not find these discrepancies, by themselves, to be very significant. What I found to be more contentious is the complainant's evidence that she was given permission to leave work at 9.00 am. I really find this hard to believe. It puts a question-mark over her evidence.
(b) Accused gave credible evidence
37. Mr Awalua submitted that the accused's evidence was credible and I tend to agree with that. His demeanour was sound. He was not an obviously unreliable witness.
(c) No evidence of force or distress
38. Mr Awalua highlighted that there was no credible evidence that the accused used aggravated force against the complainant or that she was injured or distressed, apart from her story about being injured on the back.
39. I agree that this is a significant feature of the evidence. The complainant said that she went to the clinic but there is no medical report or other medical evidence to support what she said. Her husband appeared to have only a vague recollection that she went to the clinic.
40. There is nothing to show that the complainant behaved abnormally or showed any signs of distress at any time after the incident. There were no torn clothes or undergarments or any evidence to give rise to a suspicion that the complainant had been raped.
(d) No prompt complaint of rape
41. Mr Awalua also stressed that the rape allegation only arose after her husband asked her why the accused was behaving suspiciously. And that was more than a month after the incident.
42. I agree that this is another significant feature of the evidence. To sustain a rape conviction it is not necessary that there be a prompt complaint. However, it is a factor to take into account when assessing the strength of the State case. If a prompt complaint is made, this will usually add weight to the genuineness of a rape allegation (The State v Merriam [1994] PNGLR 104; The State v Moki Lepi (2002) N2264; The State v Jacob Seigu (2005) N2852; The State v Polikap Lakai (2007) N3153, The State v Erwin Marenge Kilala CR 685/2007, 23.03.09).
43. Mr Kupmain submitted that the complainant gave a good explanation for saying nothing until more than one month later. She was embarrassed and did not tell her husband. I do not agree. If the accused had really raped her, and even though she said that he threatened to harm her if she told her husband, surely she would know that her husband would protect her if she did report the matter.
44. In the final analysis the failure to make a prompt complaint is not adequately explained and this leads to the conclusion that the complaint of rape, when it was eventually made, was a false complaint.
Conclusion as to the issue of consent
45. I consider that the matters highlighted by the defence counsel give rise to considerable doubt about whether the complainant consented. It has not been proven beyond reasonable doubt that the complainant did not consent. The accused is entitled to an acquittal. It is not necessary to consider the issue of whether he abused a relationship of trust, authority or dependency.
VERDICT
46. Paul Magel is found not guilty of the crime of rape under Section 347 of the Criminal Code.
Verdict accordingly.
____________________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the accused
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