State v Tenta [2009] PGNC 86; N3684 (4 June 2009)

N3684

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No 1212 OF 2007

THE STATE

V

MOSES TENTA

Waigani: Paliau, AJ
2009: May, 06th, 08th, 12th, 18th, 25th & June, 4th.

CRIMINAL LAW – Verdict - Sexual Penetration and engaged in sexual penetration of a child under the age of 16 years – No dispute as to age of victim – Victims evidence not corroborated – s. 352A Corroboration not required – State still bears the onus of proving all the element of offence beyond reasonable doubt - State not discharged that onus – Verdict, not guilty on doubts created.

Cases cited:

The State v. Jacob Dugura Roy (2007) N3137
R v Sapule Masuve (1973) N732
The State v. Keko Aparo (1981)
The State v. Verancius Waima and Martin Kinu (2004) N2598
The State v. Pennias Mokei (No.1) (2004) N2606
Michael Tenaram Balbal v. The State (2007) SC860

Counsel:

Ms. L. Wawun, for the State
Mr. S. Sam, for the Accused

DECISION ON VERDICT

4 June, 2009

PALIAU, AJ: The accused is indicted for one count of sexual penetration pursuant to s.347(1)(2) and for an alternative count of sexual penetration of a child under the age of 16 years pursuant to s. 229A(1) of the Criminal Code. He pleaded not guilty.

The case proceeded to trial and at the close of the State’s evidence, the Defence made a no case submission. The Court rejected the no case submission and the Defence called evidence.

The Facts

The State alleges that on or about the 25th May 2007, the victim Nancy Stanley got on a taxi which was owned and driven by the accused, Moses Tenta. The victim got on the taxi at Erima Wildlife Service Station.

She got on the taxi because her neighbour Leke Mori told her that they were going home. However, the accused did not bring the victim home but drove to some parts of the city and bought food and alcohol. The victim was offered alcohol but refused and demanded to be dropped home.

The accused then drove to Magila Hotel with the victim. At the hotel he asked the victim to go with him to buy soft drinks. The victim followed the accused into the hotel and she was ordered into one of the rooms. The victim moved away but the accused forcefully pulled her into the room.

The accused then forced her onto the bed removed her clothes and laid on top of her. He then forced her legs apart and inserted his penis into her vagina.

After that the victim walked out of the hotel and refused to board the taxi and started walking to Erima. The accused threatened her to have the street boys attacked her. This was when she boarded the taxi and was dropped off at Erima.

THE EVIDENCE

State’s Evidence

The State called two witnesses. The victim herself and Stanley Koi. It relied also on certain documentary evidence tendered by consent. They were the Record of Interview (ROI) dated the 10th August 2007, both in Pidgin and English and marked as exhibits "A" and "B" respectively and the Statement by Michael Haihe in English dated the 11th August 2007 and marked as exhibit "C".

Defence’s Evidence

The Defence on the other hand called two witnesses as well. They were the accused, Moses Tenta and Leke Mori. There were no documentary evidence tendered as exhibits by consent. At this juncture, I would mention that even though the victim was cross-examined about her statement to the Police, this statement was not tendered as evidence as prior inconsistent statement.

ISSUES

The issues are:

Whether there was sexual penetration?
If there was sexual penetration, whether there was consent?
Whether the victim was under the age of 16 years at the time of the offence?

THE LAW

Section 347(1) of the Criminal Code stipulates that:

"347. Definition of rape.

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

And consent is defined under s.347A(1) as free and voluntary agreement. Subsection (2) of s.347A deals with circumstances in which a person does not consent to an act. For the present case, Subsection (2)(a) is applicable and it states that a person submits to an act because of the use of violence or force on that person.

The indictment pleaded a circumstance of aggravation, in that the accused confined or restrained the victim before or after the commission of the offence. (See s.349A (a)).

The accused was also indicted for sexual penetration of a child as an alternative count. Section 229A states:

"229A. Sexual penetration of a child.

(1) A person who engages in an act of sexual penetration with a child under the age of 16 years is guilty of a crime."

The State has the burden of proving beyond reasonable doubt these essential elements of the offences of sexual penetration (Rape) and that the victim was a child under the age of 16 years. And they are:

Sexual Penetration (Rape);

a. The accused,

b. Sexually penetrated,

c. The victim,

d. Without her consent.

Sexual Penetration of a child under the age of 16;

a. The accused,

b. Engaged in Sexual Intercourse,

c. With the victim,

d. Who was under the age of 16 years.

It is not in dispute that the accused picked up the victim and one Leke Mori in his taxi from Erima Wildlife Service Station and drove to Magila Hotel. There is also no dispute that the victim was under the age of 16 years.

Basically, one has to determine first whether there was sexual penetration or sexual intercourse. I am of the view that sexual penetration and sexual intercourse are of the same meaning. They involve the act of a person’s penis being inserted into another person’s vagina. The act only becomes unlawful if it was done without consent or if it was with consent, the other person was under the age 16 years, a minor.

If there was no sexual penetration or if there was no proof of sexual penetration beyond reasonable doubt, then the accused must be acquitted. That is the end of the matter. The issues of consent or the victim being a minor becomes irrelevant.

But if there was proof beyond reasonable doubt that there was sexual penetration, then the State has to further prove beyond reasonable doubt that sexual penetration did occur without the complainant’s consent. As there is no dispute as to the age of the victim, prove is not required.

It is really the evidence of the complainant and the accused that need to be carefully considered and weighed.

In order for the Court to be satisfied beyond reasonable doubt as to the guilt of the accused, the weighing and reviewing of all the evidence must be undertaken. At times it is difficult to ascertain the truth and the court must do its best to accept the story that a human being is capable of understanding it. In the case of The State v. Jacob Dugura Roy (2007) N3137, Her Honour, Davani J. said:

"The truth is not so easy 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 between what is logical and more probable of human comprehension than what is illogical 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)."

State’s Case

NANCY STANLEY

Nancy Stanley, the complainant, is the main witness for the State. Her evidence relates to her boarding the accused taxi at Erima Wildlife Service Station. She together with Leke Mori and Leke Mori’s two children. According to her they were the only passengers.

From Erima Wildlife Service Station the accused drove them to Erima shops where the accused gave K 50.00 to Leke to buy a packet of smoke and told Leke to keep the change.

They left Erima shops and went to a Kaibar at Waigani where the accused gave K 50.00 to Leke and she bought food for them.

The victim said the accused later drove them to Baret Club at East Boroko and the accused bought a carton of Ice Beer can. The accused asked her and Leke to drink but she refused because she does not drink. Leke drank the beer and the accused drove them to Magila Hotel at 6 Mile. On the way to Magila Hotel the victim asked Leke where they were going but Leke told her to shut up.

The victim said the accused parked the taxi at Magila Hotel’s car park and told her and Leke to wait in the taxi. When he returned he asked the victim to follow him into the hotel to buy soft drinks. As Leke was drunk she followed the accused into the hotel.

The accused went ahead and she followed him. She asked the accused where they were going but he kept walking and she kept following him until they reached room 3B.

When the accused went into the room, the victim tried to run away but the accused forced her by pulling her into the room. She then asked him what he was trying to do. He replied by saying that "I have cars, money and what more do you need." She said she did not need those things. He said, "It was because of you I spent money on food and beer."

The accused then pushed her onto the bed and pulled her trousers off, took off her shirt, opened her legs and had sex with her. She said she pleaded with the accused not to have sex with her but to no avail.

The victim ran out of the room and the accused followed her and gave her a business card which she tore and threw it away.

The accused jumped into the taxi with Leke but the victim decided to walk but was threatened by the accused that he will tell the street boys to rape her. She too got into the taxi with them. She was dropped off by the accused at Erima field and she went to her grandparent’s house and slept. The victim told her parents on Sunday and they reported the matter to the Police.

STANLEY KOI

Stanley Koi is the victim’s father and comes from Chuave in the Chimbu Province.

He told the court that on the night of the 25th May 2007, he heard that his daughter went with the accused in his taxi. He sent the campaign vehicle with the youths to check his house if the victim was already dropped at the house. The youths came back and reported that the victim was not at home. He sent the youths to locate the accused’s taxi around Port Moresby. They reported that they were unable to locate the taxi.

The next morning on Saturday he enquired with the accused at the accused’s house as to the victim’s whereabouts. The accused denied seeing or picking her up. The next day on Sunday the victim went home and told him about what the accused had done to her. They then reported the matter to the Police.

Defence’s Case

MOSES TENTA

The accused Moses Tenta said that on the night of 25th May 2007, he was at Erima Service Station at Andrew Mald’s campaign area. He picked up a client, a landowner who wanted to see the campaign area.

Whilst there Leke Mori approached him to see if he was able to assist with her two children who were already asleep by going with him if he was going home. Leke is the accused’s in-law as his sister is married to Leke’s husband’s brother.

Leke brought one child and the victim brought another child to the taxi. When they boarded the taxi, Leke was sitting at the back of the driver’s seat and the victim sat at the back of the accused’s client or customer.

From Erima Service Station, the accused drove to Baret Club at East Boroko. At Baret Club the accused’s customer bought a carton of can beer. The accused told the victim and Leke not to drink in the taxi. From Baret Club, the accused drove to Magila Hotel at 6 mile to drop off his customer.

The accused said at Magila Hotel, he was not allowed by the security to go into the Hotel’s car park. So he parked his taxi outside the main gate and his customer got off as well. Both the victim and Leke were in the vehicle at that time. None of them drank beer in the taxi. His customer gave K 100.00 to the accused for service rendered.

The accused later drove to Erima round about and bought food for all of them. They ate and he drove to Cement Block where they all reside and dropped the victim and Leke with her children. He then went to his house.

The accused said that at Magila Hotel, he never went inside the hotel with the victim. They stayed outside the hotel at the main gate. The security at Magila Hotel told him that taxi’s were not allowed to go into the hotel’s car park.

LEKE MORI

Her evidence confirms the accused evidence that when they left Erima Wildlife Service Station, the accused had a customer in the taxi and their first stop was at East Boroko where the customer bought a carton beer. And no one drank beer in the taxi.

Their next stop was at Magila Hotel where they were not allowed by security to go into the hotel’s car park. They parked outside the hotel’s main gate where the customer got off. They then went back to Erima and the accused bought food for them. The accused later dropped them off at the Cement Block. She said the victim and herself shared the carton of beer equally between themselves, 12 cans each.

ANALYSIS OF EVIDENCE

The examination of all the evidence is required to determine whether the State has proven beyond reasonable doubt that there was sexual penetration. If the court is left with a doubt, the accused must be acquitted. I am of the view that it is not a question of: who to believe? The question is, after weighing all the evidence: Is there still doubt that the accused did have sexual intercourse with the victim?

The most crucial evidence in this case is the victim’s evidence on behalf of the State and the accused evidence for the Defence.

Counsel for the accused Mr. Sam submitted that the evidence of Stanley Koi should be disregarded by the Court as it is hearsay.

The evidence given by the victim should be considered with caution. He submitted that there were a lot of inconsistencies or contradictions. They relate to the time they left the Erima campaign area. She said it was 10:00pm. Stanley Koi, his father said it was 9:00pm.

In her oral evidence, examination-in-chief, she said they stopped first at Erima shops to buy cigarette. In her statement to the police, she did not mention stopping at Erima shops to buy cigarette.

The victim said that after Erima they drove to 4 mile then to Waigani Kai bar to buy food and then to Baret club and later to Magila Hotel. In her statement to the Police she said after Erima they went to East Boroko to buy beer and then to Waigani Kai bar.

In her statement to the Police she stated the accused gave her K80.00 after he penetrated her. In her sworn evidence, she did not mention that.

In her statement to the police, she said she was dropped off at Erima and went home. In her oral evidence she said she was dropped off at Erima field and went to her grandparent’s house.

DEFENCE’S SUBMISSION

The Defence submitted that the court should not place much weight on the victim’s evidence as there are inconsistencies and contradictions.

Further, the Defence submitted that the victim’s evidence of sexual penetration has not been corroborated by Stanley Koi. There is no medical evidence as well. The victim had the opportunity to run away or report the matter to the security at Magila Hotel. She did not do that because she knew the road.

The victim was 15 years of age at the time of the offence. If she was sexually penetrated she would have experienced pain, sustained injuries in her vagina, there would be blood and would not have walked properly and would have attracted the attention of securities at Magila hotel, because she left the Hotel room first.

The Defence submitted that the taxi would not have been parked in the Hotel’s car park because it would have been against the Hotel’s policy or regulations. And if Leke was drinking in the taxi, she would have been removed from the premises. This would create doubt as to the victim’s credibility.

The Defence further argued that the evidence by the accused should be considered and accepted by the Court. He denied committing the offence and his oral evidence were consistent with his record of interview. He maintained his demeanor in the witness box and was not shaken when being cross-examined.

The accused had a medical condition in existence. In examination-in-chief he showed to the court that he had an operation with big scars evident in his stomach. He stated that he is unable to do hard physical work and cannot carry heavy load. He normally sleeps with his back down and his stomach facing upwards. He was therefore not capable of performing sexual intercourse by lying on top of the victim as alleged.

STATE’S SUBMISSION

The State submitted that the evidence given by the State’s witnesses should be accepted. The victim’s demeanor showed truth in her story and was genuinely upset when giving evidence. She was not evasive when answering questions. There were no inconsistencies in her answers.

She maintained her story that the accused penetrated her at Magila Hotel on the 25th May 2007.

Stanley Koi’s evidence was to the effect that he tried to investigate the matter when he learnt that his daughter got on the accused’s taxi on the night of 25th May 2007.

When he was told by his daughter on the 27th May 2007, he immediately reported the matter to the Police the same day. He said he had no conflict between him and the accused before the alleged offence.

On the other hand the State submitted that the accused evidence should not be accepted. He appeared to be dishonest and untruthful. He was deliberately avoiding answering questions. He had long answers for simple questions and was evasive.

There are also inconsistencies in the accused evidence. First, he stated that their first stop was at Baret Club. However, Leke Mori in cross-examination admitted that their first stop was at Erima shops to buy cigarettes.

Secondly, he stated that his customer bought the beer. Leke Mori in cross-examination maintained that the accused bought the beer.

Finally, he stated when cross-examined that he did not ask his client where he was staying. This is because of his client’s safety. However, Leke Mori in her evidence stated that at Andrew Mald’s campaign house, the accused told her that he was going to Magila Hotel to drop his client.

As to Leke Mori’s evidence, it was submitted that she knew the accused as he was the brother of her in-law’s wife and they live in the same Cement Block. Although she was all the time in the vehicle, she was not telling the truth.

In analyzing the evidence, I find that there are inconsistencies in both the State and the Defence evidence.

In pointing out the inconsistencies in the State’s evidence, the Defence relied on the Statement by the victim given to the Police as compared in her sworn evidence. The Defence however did not tender this statement as prior inconsistent statement. That being so it cannot be admitted into evidence and cannot be relied upon.

Even if it was tendered into evidence and admissible the witness must convince the Court that the evidence at the trial should be accepted and her prior statement disregarded. This was not put to the victim in examination-in-chief, cross-examination or re-examination. (See The State v. Jacob Dugura Roy (supra); R v Sapule Masuve (1973) N732; The State v. Keko Aparo (1981) N333. Indeed the only logical version of the story to accept is the story given to the Police as she was able to remember better than.

Be that as it may, I still find it difficult to accept whose version of the story. So what I have to do is to try my very best to strike a balance between what is logical and more probable of human comprehension, as compared to what is illogical or accepting a story that is not true: See The State v. Jacob Dugura Roy (supra).

THE LAW IN RELATION TO THE ISSUES

From the evidence, it is clear that the central issue is, was there sexual penetration. Did the accused insert his penis into the victim’s vagina?

The offence of rape is defined in Section 347(1) of the Criminal Code. It says that a person is guilty of a crime if he sexually penetrates another person without his consent.

Sexual penetration is defined under s.6 of the Criminal Code. It says that when the expression "sexual penetration" or "sexually penetrates" are used in the definition of an offence, so far as regards that element of it, is complete where there is – the introduction, to any extent, by a person of his penis into the vagina, anus or mouth of another person.

The victim is the only witness that the State is relying on to prove this element. In her evidence, the victim said the introduction of the accused penis into her vagina happened at Magila Hotel. The State has the burden of proving this beyond reasonable doubt.

She stated that the accused drove his taxi and parked it inside the car park at Magila Hotel. Leke Mori was in the taxi drinking beer, whilst she reluctantly followed the accused into room 3B. In room 3B, the accused inserted his penis into her vagina by forcing her onto the bed and he laid on top of her after removing her trousers and opening her legs. After that she was the one who came out first from the room.

On the converse, the accused testified and corroborated by Leke Mori that he parked his taxi outside the main gate of Magila Hotel. This was because taxis are not allowed into the Hotel’s parking lot. Leke Mori was not drinking in the taxi. They dropped off the accused’s client and drove off.

The most logical and more probable story to accept is the accused’s version. By the Hotel’s policy or regulation, taxis are not allowed to go into the hotel’s premises. In most, if not all hotels in Papua New Guinea, you are not allowed to bring liquor to the premises from outside, let alone, consuming it. If Leke Mori was drinking in the taxi, in the car park, the securities would have removed her there and then. As testified by Leke Mori, the carton of beer was shared equally amongst herself and the victim, when they were dropped off at Erima, Cement Block by the accused.

The accused gave evidence that due to his physical condition, it would have been impossible for him to insert his penis into the victim’s vagina. He would have to lie on top of her. When he sleeps, he normally lies on his back. He had an operation on his stomach and the scars are clearly visible. My observation was that it would have been uncomfortable and practically impossible for the accused to sexually penetrate the victim given his physical condition, in the position described by the victim.

The victim was the first to run out of the room at Magila Hotel. At that time she could have alerted or reported the matter to the Hotel’s securities and they in turn would have referred the matter to the Police. She did not do this. This creates a doubt as to whether there was sexual penetration in room 3B of Magila Hotel.

The victim at the time of the offence was 15 years of age. At that tender age if she was a victim of a forced sexual penetration, she would have been bleeding and in great pain and would not have been able to walk properly when she came out of room 3B. This would have also attracted the attention of the securities or the Hotel staff. She stated that as soon as the door was opened, she ran out without any difficulty.

Further, if she was sexually penetrated or raped there would have been signs of sexual intercourse by traces of tears, bruises and abrasion in the vaginal area. There was no evidence of such tears, abrasions and bruises in the vaginal area. And there was no medical report to corroborate the victims assertion that she was sexually penetrated: See The State v. Verancius Waima and Martin Kinu (2004) N2598.

The State argues that corroboration is not required in sexual offences. It referred to s.352A of the Criminal Code which states as follows:

"352A. Corroboration not required.

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 that it is unsafe to find the accused guilty in the absence of corroboration."

In my view s. 352A is simply saying that I am not required to warn myself that it is unsafe to find the accused guilty in the absence of corroboration. But this does not mean that the State has discharged its obligation or the onus of proving the elements of the offence beyond reasonable doubt. The State still bears the onus: See Michael Tenaram Balbal v. The State (2007) SC860.

There was evidence that a Dr. John Bolna was to have conducted the medical examination on the victim. This was not produced and Dr. Bolna did not testify. The State was not able to convincingly assist the court as to reasons why no such report was tendered. There were no good reasons for the Report not being tendered as evidence. The offence was alleged to have taken place in the National Capital District, where you have all available resources present to conduct and provide the medical report. I will accept such a situation if the offence had taken place in one of the outlying rural areas of the country: See The State v. Pennias Mokei (No.1)(2004) N2606.

For all the above reasons and the doubts I have expressed I am not satisfied beyond reasonable doubt that the accused sexually penetrated the victim at Magila Hotel. The State has failed to prove beyond reasonable doubt that the accused inserted his penis into the victim’s vagina at Magila Hotel. The State has not discharged the onus placed on it to prove the elements of the offence beyond reasonable doubt. This is the end of the matter. I will not deal with the issues of consent and the act of sexual intercourse with a child under the age of 16 years.

I therefore find the accused not guilty of both counts of sexual penetration and engaged in an act of sexual penetration of a child under the age of 16 years.

The accused is acquitted and discharged forthwith. His bail monies are to be refunded to him upon presentation of receipt.

Ruled accordingly.

_________________________________________________

Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Accused