N3844

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 685 OF 2007

THE STATE

V

ERWIN MARENGE KILALA

Kimbe: Cannings J
2009: 17, 18, 19, 23 March

CRIMINAL LAW – trial – rape – Criminal Code, Section 347 – whether the complainant consented.

The accused, a young man, was charged with the rape of a young woman. He agreed that he sexually penetrated her but claimed that she consented. He said that they had met the previous evening and agreed to meet and have sex in the morning. The complainant was left alone at her house in a village on the morning of the incident. She did not complain of being raped until it was confirmed three months later that she was pregnant. There was no evidence that she was physically or emotionally distressed as a result of the incident or that the accused threatened to harm her if she reported that they had had sex.

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 her consent.

(2)	Though the complainant appeared to be a credible witness, the circumstances in which she was left alone leave open the possibility that she planned an assignation with the accused. The lack of a prompt complaint and the lack of any evidence of physical or emotional distress on the part of the complainant also create doubt as to the veracity of her evidence.

(3)	The defence evidence did not dent the State's case in any significant way.

(4)	The verdict turns on the strength of the evidence for the State and in particular on the oral evidence of the complainant, which is uncorroborated.

(5)	The State failed to prove lack of consent beyond reasonable doubt. Accordingly the accused was found not guilty.

Case cited

The following cases are cited in the judgment:

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

Abbreviations

The following abbreviations appear in this judgment:

CR – Criminal
J – Justice
N – National Court judgment
OIC – Officer-in-Charge
PNGLR – Papua New Guinea Law Reports
v – versus

Dates

The events referred to in this judgment occurred in 2006 unless otherwise indicated.

TRIAL

This was the trial of an accused charged with rape.

Counsel

A Kupmain, for the State
T Gene, for the accused

VERDICT

23rd March, 2009 

1. CANNINGS J: Erwin Marenge Kilala is a young man of mixed West and East New Britain parentage who lives at Kilu village in the Talasea area of West New Britain. On the morning of Saturday 29 July 2006, when he was 17 years old, he was involved in an incident at nearby Tamare village, with a distant cousin, a 16 year old girl, Lyn Otto, which has led to him being charged with rape.

2. It is alleged that Marenge (the accused) approached Lyn (the complainant) in a garden near her house when she was alone, between 10.00 and 11.00 am. He 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 this was done in accordance with a plan they had made the previous evening. It was entirely consensual, he maintained.

THE OFFENCE

4. Rape is an offence under Section 347 of the Criminal Code, which states:

(1)	A person who sexually penetrates a person without his 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.

5. To obtain a conviction the State must prove the two elements of the offence beyond reasonable doubt:

•	the accused sexually penetrated the complainant;
•	without her consent.

6. The indictment charges that the accused 'abused a position of trust, authority and dependency', and that this is a circumstance of aggravation (see Sections 347(2) and 349A(e)). If, in addition to the two elements outlined above, the State proves that the accused abused a position of trust, authority and dependency (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 the two elements of the offence but not the circumstance of aggravation, he will be subject to a maximum sentence of 15 years imprisonment.

UNDISPUTED FACTS

7. It is agreed that the accused sexually penetrated the complainant on the morning of Saturday 29 July 2006 at Tamare. He was aged 17. She was 16 years and seven months old. They had not had sex together previously. They are distant cousins in that their fathers are cousins. The complainant was alone at the time, as was the accused. The complainant's family and other people living in the vicinity had gone to the main village, three or four kilometres away, for a funeral. The complainant did not make any complaint of rape until three months later, when she was taken to Kimbe General Hospital and diagnosed as pregnant.

ISSUES

8. The contentious questions of fact will be addressed by examining the following issues:

1	What is the nature and quality of the evidence of the State witnesses?

2	What is the nature and quality of the evidence of the defence witnesses?

3	What is the result of weighing the defence evidence against the State evidence?

4	Has the State proven the elements of the offence beyond reasonable doubt?

1	WHAT IS THE NATURE AND QUALITY OF THE EVIDENCE OF THE STATE WITNESSES?

9. Two witnesses gave oral evidence: the complainant and her mother. The only medical evidence was a report and affidavit by the OIC of the Kimbe town clinic stating that the complainant attended the clinic on 25 October and was confirmed to be pregnant. There were two other exhibits admitted into evidence without objection. The complainant's clinic book, showed her date of birth as 16 December 1989. The accused's record of interview, dated 3 April 2007, showed that he maintained from the beginning of the police investigation that he had consensual sex with the complainant.

10. The complainant, Lyn Otto, said that she was alone on the morning of the incident and went to the garden to do some weeding and while there she went to the toilet. She felt someone throw an object in her direction. She stood up and saw the accused standing, watching her. He disappeared so she headed back to the house but met him again on the way. He pulled her to the side of the track she was walking on, pushed her to the ground, pulled down her trousers then sexually penetrated her by inserting his penis into her vagina. She called out for help but there was no one around. They had gone to the funeral. Her mother had told her to stay at home. The incident happened at a place 150 metres from her house. She knew the accused but she was not his girlfriend. She did not talk to him before the incident. She did not ask him to have sex with her and she did not consent to sex.

11. Her parents and family returned from the funeral at about 4.00 pm. She said nothing to them or anyone else about the incident as she was ashamed and scared. She thought her parents would get angry with her. A few months later she felt something move in her stomach. She told her mother, who took her to the hospital for a check up.

12. In cross-examination she denied meeting with the accused the previous night and agreeing to have sex with him. She denied being at a video show that night. She denied smiling at the accused immediately before the incident. She denied taking off her own clothes. She said it was her first time to have sex and she cried and was angry with the accused for what he did to her. She stayed at the house when it was all over.

13. The complainant's mother, Lydia Otto, said that she first found out about what happened after she took her daughter to the clinic on 25 October and it was confirmed that she was pregnant. She asked her who made her pregnant and how. That is when the complainant told her it was the accused and that he had raped her on the morning of 29 July.

14. Lydia said all the family except the complainant had gone to Kilu that day for the funeral of a cousin of her father-in-law. She normally takes her daughters with her when she goes away but on this occasion she told the complainant to stay at home as it was too far for her to walk.

Defence counsel's submissions

15. The defence counsel, Mr Gene, argued that the evidence of the State witnesses is unreliable and deficient in a number of respects.

(a)	Inconsistencies between the evidence of the complainant and her mother

16. Mr Gene submitted that though on the surface both the complainant and her mother were impressive witnesses, they did not give consistent evidence about the circumstances in which the complainant came to be alone on the morning of the incident. He suggested that the complainant's evidence was that her mother told her to stay home and weed the garden whereas her mother said that the reason the complainant did not go to the funeral was that it was too far for her to walk.

17. I agree that the complainant appeared to be a fairly impressive witness and that her mother was quite an impressive witness also. But Mr Gene's analysis of the evidence of the complainant is incorrect. She said her mother told her to stay at home, not to weed the garden. Her mother's evidence was consistent with the complainant's evidence. There was no inconsistency in that regard.

18. However, there is one part of the mother's evidence which seemed irregular. On the one hand, she said that she always takes her daughters wherever she goes. On the other hand, she did not do that on this occasion, the reason being that she thought it was too far. I find it hard to believe that that was really the case. The main village was only three or four kilometres away. It obviously was not too far for the rest of the family to walk. If it was not too far for the mother, a middle aged woman, to walk, why would it have been too far for her 16-year-old daughter to walk?

19. Though she was in all other respects an impressive witness, I am sceptical about this part of the mother's evidence. It does not ring true and this opens the possibility that the complainant actually asked to stay back at the house.

20. Another question that arises is: if her mother told her to stay at the house, why did the complainant go to the garden?

(b)	No evidence of force or distress

21. Mr Gene highlighted that there was no evidence that the accused used aggravated force against the complainant or that she was injured or distressed.

22. I agree that this is a significant feature of the evidence. There is nothing to suggest 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.

(c)	No prompt complaint of rape

23. Mr Gene also stressed that the rape allegation only arose after it was confirmed that the complainant was pregnant. Almost three months passed after the incident and the complainant said nothing about being raped. There was also no evidence that the accused threatened to harm her if she reported the matter.

24. 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). If no complaint is made until after pregnancy is confirmed, the court should exercise caution when deciding whether the complaint of rape is genuine.

Assessment of the evidence of State witnesses

25. Overall, the complainant appeared to be a credible witness and her mother was quite an impressive witness also. However, the circumstances in which the complainant was left alone leave open the possibility that she did plan an assignation with the accused. The lack of a prompt complaint and the lack of any evidence of physical or emotional distress also have the effect of creating doubt as to the veracity of the complainant's evidence.

2	WHAT IS THE NATURE AND QUALITY OF THE EVIDENCE OF THE DEFENCE WITNESSES?

26. The accused, Erwin Marenge Kilala, gave sworn evidence. He was the only witness for the defence. He said that he met the complainant at a video show near the village the night before the incident. She told him to meet her at the garden in the morning. He went to the garden as agreed. He saw her on the road. She smiled. They kissed. They went into the bush. They had consensual sex. Then they went their separate ways.

Prosecutor's submissions

27. Mr Kupmain asserted that the accused was not an impressive witness and the defence evidence failed to significantly dent the State's case.

Assessment of evidence for the defence

28. I consider that the accused was neither an impressive nor an obviously dishonest witness. The evidence he gave was consistent with what he told the police in his record of interview. There was no evidence to corroborate his claim about meeting the complainant at a video show the previous evening or about agreeing with her to meet in the garden the next morning. I agree that the defence evidence did not dent the State's case in any significant way.

3	WHAT IS THE RESULT OF WEIGHING THE DEFENCE EVIDENCE AGAINST THE STATE EVIDENCE?

29. This is a case in which the defence evidence has no tangible effect on the State's case. So the verdict turns, really, on the strength of the evidence for the State and in particular on the oral evidence of the complainant, which is uncorroborated.

30. In remarking that the complainant's evidence is uncorroborated, I am mindful of Section 352A of the Criminal Code (corroboration not required) which states:

On a charge of an offence against any provision of this Division, [Division V.7, (sexual offences and abduction)] a person may be found guilty on the uncorroborated testimony of one witness, and a Judge shall not instruct himself that it is unsafe to find the accused guilty in the absence of corroboration. [Emphasis added.]
 
31. I am therefore not required and not allowed to instruct myself that it is unsafe to find the accused guilty in the absence of corroboration. I am not giving myself such a warning but I point out that in this particular case, corroboration was desirable.

32. The reason it was desirable, and in the ultimate analysis necessary, is that:

•	There was no clear and sufficient reason that the complainant was left alone on the morning of the incident, and this gives rise to the possibility that there might have been – as contended by the accused – a plan in place for the accused and the complainant to meet and have sex.

•	There was no evidence that the complainant suffered any physical or emotional distress or that she behaved in any irregular or unusual way as a result of the incident.

•	The complaint of rape was not made promptly and was only made after it was confirmed that the complainant was pregnant.

This all gives rise to doubt about whether the complainant consented.

4	HAS THE STATE PROVEN THE ELEMENTS OF THE OFFENCE BEYOND REASONABLE DOUBT?

33. No. 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

34. Erwin Marenge Kilala 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