State v Bade [2011] PGNC 181; N4460 (15 November 2011)

N4460

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 150 of 2010

STATE

V

YASEI STANLEY BADE
Lorengau: Manuhu, J 2011:7 & 15 November

CRIMINAL LAW – Particular offence – Rape – Sexual penetration of girl under 16 – Mute victim – Admissibility of medical report – consideration of evidence.

Cases cited:

Papua New Guinea cases
Nil

Overseas Cases
Barca v The Queen [1975] HCA 42; (1975) 50 ALJR 108 Brown v Dunn [1894] 6 R 67 HL

Counsel:
P. Kaluwin & S. Collins, for the State. A. Minei, for the Accused.

15 November, 2011

1. MANUHU, J: Stanley Yasei Bade was indicted on one count of rape and in the alternative one count of sexual penetration of a girl under the age of 16 years.

2. The victim was a 14 year old mute daughter of Ham Dereku, a civilian worker at the Lombrum Naval Base. Stanley was a 21 year old man of Madang and Manus parentage and he knows the victim's family quite well as the victim's father is also from Madang. The alleged offence took place on 6 October 2009 in Ham's house in Lombrum when the victim was alone. It is alleged that Stanley went into the house at or around 10:30 am and had sexual intercourse with the victim without her consent. For the purpose of the alternative count, it is alleged that the victim was 14 years at the time of the sexual assault.

3. The issues for consideration are whether the victim was sexually penetrated; whether Stanley sexually penetrated the victim; and whether there was consent. The first issue depends on how the Court determines the argument against the medical report on the victim.

4. The medical report was tendered into evidence through Dr Leonard Kaleh, who is a senior medical officer at the Lorengau General Hospital where Valerie Mu-uh, Clinical Health Extension Officer and author of the medical report, also works. Its admission was in accordance with section 61 of the Evidence Act which provides that a writing purporting to be a record of an act is admissible in evidence in a court as proof of the facts stated in it if it appears to the court that the record was made in the regular course of a business; and the source of information, and the method and time of the preparation of the record, were such as to indicate its trustworthiness.

5. In this case, the trustworthiness of the medical report is not in question. It was duly signed and stamped. It was tendered through a senior medical officer because the author could not be located.

6. This case involves a mute victim who for that reason was unable to give evidence. Exclusion of the medical report on account of the author being absent would have denied the victim, as a mute, the right to the protection of the law. Indeed, exclusion of a medical report on a mute victim of a sexual assault could result in a miscarriage of justice. This consideration should however be weighed against any miscarriage of justice against an accused person.

7. The medical examination revealed presence of sperm in the victim's vagina. The medical report does not state that the sperm cells belong to Stanley. Stanley claims that he did not have sexual intercourse with the victim, which essentially means that the sperm cells belonged to another male person. He is therefore not in a position to challenge the findings in the medical report. This is a case where the medical report should have been tendered by consent.

8. For these reasons, the medical report on the victim has been properly admitted and the Court will give due weight to its contents.

9. Acceptance of the medical report means that sexual penetration is not in question. Genital examination revealed a torn hymen which was raw and tender to touch. Vaginal examination showed presence of sperm cells. I am satisfied beyond reasonable doubt that the victim was sexually penetrated.

10. Stanley is alleged to be the person responsible for the sexual assault. He was seen by the victim's father and Luke Konah inside the house immediately before the victim complained to her father that she had been sexually assaulted. The victim's father was shocked to see Stanley in the house and demanded an explanation from Stanley. Ham then went to see if anything had happened to her daughter. That was when he learnt of the sexual assault. The victim was taken to the hospital where sexual assault was confirmed.

11. Stanley denied being in the house when Ham and Luke arrived. He claimed he was outside the house where he had been for 10 to 15 minutes. He went to Ham's house initially to buy spear but Ham's shop was closed. So he picked up an empty container and was still there when Ham and Luke arrived.

12. An accused person's defence or version of facts ought to be put to the prosecution witnesses. Stanley's claim that he never entered the house, which was a crucial part of his testimony, was never put to Ham and Luke. Stanley's claim that he left Lombrum and went into hiding in Bunai because he was threatened was never put to Ham. The failure is a breach of the rule in Brown v Dunn [1894] 6 R 67 HL. It discredits the defence evidence and strengthens the prosecution's version of facts.

13. I find therefore that Stanley was in the house when Ham and Luke arrived.

14. The evidence is nonetheless circumstantial. The statement of the principle on circumstantial evidence in Barca v The Queen [1975] HCA 42; (1975) 50 ALJR 108 is also the applicable principle in this jurisdiction. At page 117, the High Court of Australia said:

"When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than guilt of the accused'; Peacock v The King [1911] HCA 66; (1911), 13 CLR 619 at p 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only rational inference that the circumstances would enable them to draw': Plomp v The Queen [1963] HCA 44; (1963), 110 CLR 234, at p 252; see also Thomas v The Queen [1960] HCA 2; (1960), 102 CLR 584, at pp 605-606."

15. In this case, Stanley was the only male person that was in the same house as the victim immediately before the complaint of sexual assault was made to Ham. No other male persons were mentioned or seen. The shop was closed because Ham was at work. Ham and Luke did not see anyone else on their way to the house. Likewise, Stanley did not see any man when he went to Ham's house and did not see anyone else when he was there for 10 to 15 minutes.

16. Stanley knew the victim's family quite well. He knew that the victim's mother was away in Kabwum. He knew that Ham's other children were in school. He knew that Ham was at work. He knew that the victim was mute. He knew that the victim was alone at home. He knew that the shop was closed and nobody would be around Ham's premises.

17. In these circumstances, the only rational inference that can be drawn is that Stanley was the male person that sexually penetrated the victim and the sperm cells in the victim's vagina were deposited by Stanley. A DNA test, in the circumstances, is not necessary. I am satisfied beyond reasonable doubt that Stanley sexually penetrated the victim.

18. Consent or lack of it is the only difficulty that the prosecution has not overcome. The victim, while mute, was a competent witness and, under section 17 of the Evidence Act, could have given direct evidence on any force or threats by Stanley. The evidence given by Ham and Luke that Stanley pushed the victim down against her will is hearsay evidence. I am therefore unable to find that sexual penetration took place without consent.

19. Accordingly, I find Stanley not guilty of rape.

20. Sexual penetration of a girl under the age of 16 years is the alternative count in the indictment. I have found that Stanley sexually penetrated the victim. The victim, according to her father, was born on 11 July 1995. She was 14 years of age at the time of the sexual assault. The evidence on her age was not challenged.

21. I am satisfied beyond reasonable doubt that Stanley sexually penetrated the victim who was 14 years old on 6 October 2009. Accordingly, I find him guilty of sexual penetration of a girl under the age of 16 years contrary to section 229A(1) of the Criminal Code.
_____________________________________

Camillus J. Sambua, Acting Public Prosecutor: Lawyer for the State
Kaipu and Associates Lawyers: Lawyer for the Accused