State v Ila [2011] PGNC 288; N4418 (1 September 2011)

N4418

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 14 OF 2010

THE STATE

V

LAULAU CASPAR ILA

Kokopo: Maliku AJ
2011: 29th, 30th, 01st September

CRIMINAL LAW - Rape - Sexual Penetration- Section 347 Criminal Code Act

CRIMINAL LAW - No Case Submission – Insufficient Evidence – Issue of consent.

Case Cited:

The State-v- Paul Kundi Rape [1976] PNGLR 96
Roka Pep (No2) [1983] PNGLR 487

Counsel:

Mr A. Bray, for the State
Mr. G. Kerker, for the defendant

NO CASE SUBMISSION

1st September, 2011

1. MALIKU, AJ: The accused stands charged with two counts of rape Contrary to Section 347 of the Criminal Code Act. I have set out the two counts of rape charges against the accused below. The accused had pleaded not guilty to the two counts of rape.
   

Count One:

2. Laulau Caspar Ila of Watom Island, Rabaul, East New Britain Province stands charge d that he on the 22nd February 2010 at Vunapalading No.3 Block sexually penetrated Rosalia Lar without her consent by inserting his penis into her vagina and at that time Laulau Casper Ila immediately before the commission of the offence, threatened to use weapon, namely a bush knife on Rosalia Lar.
   

Count Two:

3. Laulau Caspar Ila of Watom Island, Rabaul, East New Britain Province stands charged that he on the 22nd of February 2010 at Vunapalading No.3 Block sexually penetrated Sabel Ian without her consent by inserting his penis into her vagina and at that time immediately before the commission of the offence used a weapon, namely a stick to hit Sabel Ian.
   
4. Prior to the State in calling its witnesses, it tendered the following with consent of the defence counsel:
   
   1. Statement of Policewoman Elma Limlibur of Kerevat Police Station dated 04th of March 2010 – Ex A
      
   2. Statement of the Arresting Officer Policewoman Sila Charles of Kerevat Police Station dated 10th of March 2010 – Ex B
      
   3. Record of Interview in Pidgin Version of Laulau Caspar Ila dated 04th of March 2010 – Ex C
      
   4. English Version of Record of Interview of ToLaulau Caspar Ila dated 04th of March 2010 – Ex D
      
   5. Affidavit of Margaret Tavui of Kerevat Rural Health Centre dated 30th of March 2010 – Ex E
      
   6. Medical Report of Rosalia Lar by Margaret Tavui of Kerevat Health Centre dated 28th of February 2010 – Ex F
      
   7. Medical Report of Sabel Ian by Margaret Tavui of Kerevat Health Centre dated 28th of February 2010 – Ex G
      
5. Also tendered on behalf of the defence are the following:
   
   1. Statement of Rosalia Lar –Pidgin and English versions dated 02nd of February 2010 Ex D1.
      
   2. Statement of Sabel Ian – Pidgin and English versions dated 04th of February 2010 – Ex D2.
      
6. The State called two witnesses, namely Rosalia Lar and Sabel Ian who are victims of the alleged aggravated rape.
   
7. The evidence of Rosalia Lar is:
   

" On the 22nd of February 2010 her mother had asked her and Sabel Ian to collect some mushrooms for her.

On the way to where the mushroom patch was they walked pass the defendant Laulau Caspar Ila and Bernard Gabriel who were roasting bananas on a fire.

Having arrived at the mushroom patch known to Rosalia Lar they could not find any mushrooms so they decided to go home. On their way home they met the defendants on the road.

The defendants Laulau asked them for the reason of being in the bush. Rosalia told him that they were looking for the mushroom patch.

The defendant Laulau told them to go to the mushroom patch, pointing to the direction where the mushroom patch was.

Rosalia and Sabel followed the direction from the defendant Laulau and eventually found the mushroom patch and were collecting mushrooms putting them in the basket they had brought with them.

Rosalia Lar was picking mushrooms between two logs. It is at this point of time the defendant Laulau Caspar Ila approached her from her back and placed a bush knife on her neck, around her throat.

Rosalia said the defendant "Yu brata blong me" (you are my brother). The defendant Laulau then put the knife down and removed Rosalia's underpants and the laplap upward and laid her on the ground.

The defendant then lied on top of Rosalia and inserted his penis into her vagina and sexually penetrated her without her consent.

After she was sexually penetrated she put on her pant calling to Sabel Ian telling her that they were to go home. Rosalia immediately reported the matter to her mother and later told her husband and her cousin."

8. The second witness called by the State is Sabel Ian and her evidence is as follows:
   

"On the 22nd of February 2010 she was with Rosalia at Vunapalading Blocks. I was present when Rosalia's mother told us that she wanted some mushrooms.

We left to look for mushrooms at about 10am. On the road to the mushrooms patch we met the defendant and Bernard Gabriel.

They were together cooking bananas on the fire. We kept walking to where the mushrooms patch was when the defendant asked us of where we were going.

Rosalia told them that we were going to collect mushrooms at the mushrooms patch. The defendant told us where the mushrooms were and pointing to the direction where the mushrooms patch was.

We then walked following the instruction from the defendant. The defendant and Gabriel followed us to the mushrooms patch later.

We were then picking mushrooms putting them in the basket we had brought with us. While picking mushrooms I saw the defendant came from the back of Rosalia and grabbed hold of Rosalia.

I then saw him placed a bush knife on Rosalia's neck around the throat. The defendant while doing that then told Rosalia to lie on the ground.

I then screamed and cried because I was afraid as I was new to that place. I took a few steps running away when Rosalia called out to me stopping me from running away.

I stopped running and was standing when Gabriel hit me with a piece of stick/wood. I fell down when hit by Gabriel. Gabriel pulled me into the bush.

He removed my pant and laplap and inserted his penis into my vagina and had sex with me without my consent.

After having sex with me he told to put on my pant and laplap. He then told me to go and look for Rosalia.

I picked up the basket and went to where Rosalia was. We then left the mushroom patch and were going home.

When we arrived at home Rosalia then told her mother about what happened at the mushroom patch. I also told my husband about the incident."

9. The defendant and Gabriel were taken to Rosalia's mother's house where they were questioned about the incident. The matter was then reported to the Police at Kerevat. They were then taken there to give their story to the Police.
   

No Case Submission on Count No.1

10. Mr Kerker submits: Our submission for a No Case to Answer is based on the principle of law discussed in the case of The State-v- Paul Kundi Rape [1976] PNGLR 96.
    
11. Mr Kerker submits that there are two distinct questions discussed in the case of Paul Kundi Rape.
    
12. The first question is:
    

"Is there is some evidence of each element of the charge to which if accepted either prove the elements directly or enable its existence to be inferred?"

This, Mr Kerker submits is a question of law.

13. The 2nd question is although there is a case to answer: Is there sufficient evidence on the basis of which the court ought to convict the defendant? This is a question of fact.
    
14. Mr Kerker submits that this principle was revisited in the case of Roka Pep (No2) [1983] PNGLR 487.
    
15. Having said this we will now address the two charges which the accused has been charged with in regard to the elements of each charge.
    
16. As per the Indictment presented to this Court it contains two charges being count 1 that the accused being charged for sexually penetrating Rosalia Lar.
    
17. Secondly he was charged for sexually penetrating Sabel Ian. In the 2nd charge the accused is caught under Sections 7 and8 of the Criminal Code Act.
    
18. Mr. Kerker submits that the elements of the charge of rape are:
    
    1. Identity of the person/defendant
    2. Sexually penetrated
    3. Another person
    4. Without her consent
       
19. Mr Kerker submits that we do not dispute elements 1, 2 and 3 but we contest the issue of consent and submit:
    
    1. As to the evidence that has been adduced to this Court, we submit there was an existing relationship between the accused Laulau Caspar Ila and Rosalia Lar.
       
    2. We submit that on the 22nd of February 2010 the victim and accused had earlier agreed that they would meet at the mushroom patch.
       
    3. On the agreement the accused had invited his friend Gabriel to accompany him and wait for Rosalia on the way to the mushroom patch.
       
    4. We submit that when Rosalia came along the accused was surprised that she had also taken the 2nd victim Sabel Ian to the mushroom patch.
       
    5. We also submit that when they came to that location the communication that was had was between the defendant and the victim Rosalia Lar, also before the victims left for the mushroom patch it was the defendant that directed them of where to find the mushroom patch.
       
    6. At this juncture when they were at the mushroom patch we submit there is a lot of contradictory evidence adduced by the State witnesses.
       
    7. There is evidence by Rosalia Lar in her oral evidence that she was threatened by the accused using a knife placed on her neck, where as in her statement given to the police marked Ex D1 for defence she said she was held on her neck by the defendant with his left hand. She also stated the she removed her pants.
       
    8. We submit that there is no evidence at this point of time that there was no struggle by the victim, however there is evidence before this court that she laid down and was sexually penetrated.
       
    9. We submit that this is an indication of consent by the victim. We also submit that Sabel Ian told the court in her oral evidence that they could hear people talking or shouting nearby.
       
    10. We further submit if this was indeed the case of a rape then those people nearby Rosalia could have shouted very loud to attract the attention of those people who were nearby and there by rescued the victims Rosalia Lar from being raped.
        
    11. We submit that that amounted to some kind of consent when Rosalia Lar did not shout for help from those people Sabel Ian said were nearby to where they were picking mushrooms.
        
    12. We also submit there is evidence before this court that Sabel Ian ran away when the accused held Rosalia Lar, however she was stopped by Rosalia Lar.
        
    13. We submit if Sabel Ian had continued running there is a likelihood that she could have called for help or alerted the people she said were nearby.
        
    14. We submit that Rosalia's actions of stopping Sabel Ian from running away is an indication that she consented to being sexually penetrated by the accused.
        
    15. We further submit that there are inconsistencies in the oral evidence and the statements given to the police by the two witnesses.
        
20. These inconsistencies are:
    
    1. Rosalia Lar told the court that she was held by the accused with his left hand and held his bush knife with his right hand.
       
    2. However in her oral evidence she told the court that the accused held his bush knife against her neck threatened her to have sexual penetration.
       
    3. The 2nd witness Sabel Ian told the court that the accused placed his bush knife against Rosalia Lar's neck.
       
    4. In her statement to the police she said that the accused held a small pocket knife against Rosalia Lar's neck.
       
    5. The 2nd State witness told the court that she was about some meters away from the victim Rosalia Lar when she was attacked by the accused.
       
    6. We invite the court to consider the evidence of the two State witnesses regarding the threat used at that time against the victim Rosalia Lar.
       
    7. We further submit that the two witnesses have given totally contradictory evidence to this court as to how the accused had used threat if there was any threat at all.
       
    8. We submit that there was no threat present or used on Rosalia Lar. If there was indeed any threats used then the two witnesses should give the same version on how the threat was used on Rosalia Lar given as they say were not very far apart from each others.
       

No Case Submission on Count No 2

21. In regard to the 2nd charge the State submits the accused is caught under Sections 7 and 8 of the Criminal Code Act. Section 7 refers to Principal Offenders and Section 8 refers to Offences committed in prosecution of common purpose.
    
22. In regard to Section 7 we submit that it is not applicable to our client because if the accused and Gabriel both had sexually penetrated the victim Rosalia Lar then Section 7 would be applicable. From the evidence adduced by the witnesses to the Court the accused had sexually penetrated Rosalia Lar and not Sabel Ian.
    
23. To address Section 8 of the Criminal Code Act which discusses offences committed in prosecution of common purpose, we submit that from the evidence before the court by State witnesses in which they told the court that the place in which the two victims were raped were bushy with grass or shrouds and there for could not see far and did not see the accused communicating with Gabriel which would infer that they were communicating to commit an offence.
    
24. We submit that there is evidence before the court that when the victim was lying on the ground having consensual sexual intercourse with Rosalia Lar the accused was not in any position to see or know what Gabriel was doing to Sabel Ian.
    
25. We submit the act of sexual penetration of Sabel Ian was a remote act from the knowledge of the accused. We further submit that the accused Laulau Caspar Ila was having sex with Rosalia Lar which got Gabriel sexually motivated and decided to go and sexually penetrate Sabel Ian on his own accord.
    
26. We submit that the sexual penetration of Sabel Ian by Bernard Gabriel was an unfortunate one. We submit further that the plan and the agreement of Rosalia Lar and Laulau Caspar Ila to meet at the mushroom patch and to have consensual sexual penetration ended up with Gabriel sexually penetrating Sabel Ian. This is why we say it was an unfortunate one.
    
27. With that we submit and relying on the Paul Kundi Rape case that evidence as it is at this stage is so weak that the matter cannot go past this stage. Therefore the court should uphold our No Case Submission and discharge the accused on the two charges.
    

Response by State on No Case Submission

28. Mr Bray for the State, said before the Court is a No Case Submission by the defence and before the court is evidence from the State witnesses and the defence is yet to adduce its evidence in reply to the charge.
    
29. There are documents tendered by consent which the court had accepted and will consider. The issues raised by the counsel for the accused are based on the Paul Kundi Rape case. We agree with the principles discussed in that case.
    
30. The counsel for the accused had correctly stated the principle in law regarding the No Case Submission at the close of the prosecution's case in the Paul Kundi Rape case that whether the evidence as it stands the accused could be lawfully convicted.
    
31. In regard to the 2nd charge the accused is caught under Sections 7and 8 of the Criminal Code Act. The issue here is whether the accused had formed one common purpose with another person to commit the offence.
    
32. At this stage the State is not required yet to prove beyond reasonable doubt the presence of each element of the charges some evidence if accepted would either prove the elements directly or enable its existence to be inferred.
    
33. In regard to the evidence that is before the court the State called two witnesses and we submit that their evidence is consistent, and corroborates each other on what happened on the 22nd February 2010.
    
34. Both witnesses say that the accused approached Rosalia Lar from her back and placed a knife on her neck around the throat. The witness Sabel Ian was not far away from Rosalia Lar at that point of time. They were picking mushrooms and were a meter apart from each other.
    
35. In regard to the 1st count the issue is one of consent. We submit from the evidence that Rosalia Lar never consented to being sexually penetrated by the accused Laulau Caspar Ila because of the following:
    
    1. Rosalia Lar is a cousin to the accused and we submit that for them to have sexual intercourse with each other would be wrong in the Tolai custom which they have been brought up.
       
    2. A knife was used by the accused. Both witnesses referred to the knife used by the accused when he approached Rosalia Lar from her back.
       
    3. Rosalia Lar attempted to run away but was held back by the accused.
       
    4. Rosalia Lar urinated herself because of the threat from the accused.
       
    5. Rosalia Lar was forced to lie on the ground, if not she laid down to the ground in fear of the threat from the accused
       
    6. Even when she had gone down to the ground the accused placed the knife in reach of his hand or where he could easily reach it should Rosalia Lar struggled and freed herself.
       
    7. Rosalia reported being sexually penetrated by the accused to her mother straight after they arrived at her mother's house.
       
36. This we submit shows that she never consented to being sexually penetrated by the accused.
    
37. We submit that there is evidence before the court that shows that there was no consent on the part of Rosalia Lar to being sexually penetrated by the accused but that she was threatened with a knife by the accused.
    
38. In regard to the victim Sabel Ian the evidence shows that she was hit with a stick by Gabriel Bernard. In fear for her life she surrendered to Gabriel Bernard. This shows no consent on her part.
    
39. In regard to the communication which counsel for the accused raised, we submit that the reasons for Rosalia Lar communicating with the accused is simply he was known to him as a cousin.
    
40. Sabel Ian did not know the accused and therefore could not communicate with him. We submit that based on Rosalia Lar's knowledge of the accused as a cousin, she trusted him.
    
41. In regard to Rosalia Lar's statement to the police in regard to the knife, she told the police that the accused grabbed her from her back with her left hand and was holding the knife with his right hand.
    
42. We submit that even if the accused did not use it on Rosalia Lar or did not place it on her neck, we submit that the holding of the knife and grabbing her from the back was still sufficient to threaten the victim given the manner and how the accused approached Rosalia Lar.
    
43. Sabel Ian said in her statement to the police that the accused used a small pocket knife. In her oral evidence she said it was a bush knife.
    
44. We submit there is no inconsistency here. She still referred to a knife being used by the accused to threaten Rosalia Lar with and eventually sexually penetrated her without her consent.
    
45. In regard to the 2nd count we submit that the accused is caught under Sections 7and 8 of the Criminal Code Act.
    
46. The evidence shows that the accused and Gabriel were always together on the date in question before the incident and after the incident. They cooked the bananas together and ate them together. They were together when the victims met them.
    
47. They were together when the accused gave direction to Rosalia Lar on where to find the mushrooms.
    
48. They followed the victims together and separated on how to approach the victims. The accused approached Rosalia Lar while Gabriel approached Sabel Ian.
    
49. They both used weapons, a knife and a stick and both sexually penetrated Rosalia Lar and Sabel Ian.
    
50. We submit that these clearly show that the accused and Gabriel had formed one common purpose.
    
51. We further submit that the accused and Gabriel succeeded in their common purpose being that they planned and agreed to sexually penetrate Rosalia Lar and Sabel Ian.
    
52. With all these we submit that the accused has a case to answer on the two counts of sexually penetrating Rosalia Lar and Sabel Ian.
    

The Record of Interview of Accused Laulau Caspar Ila

53. I have read the Record of Interview of the accused Laulau Caspar Ila. The accused admits sexually penetrating the victim Rosalia Lar but says the victim Rosalia Lar had consented to him sexually penetrating her. The accused also admits to having a knife at the scene of the crime but denies using it on the victim Rosalia Lar.
    

The Medical Report - Rosalia Lar

54. The Medical Report of Rosalia Lar reveals that sexual penetration did take place. It further showed semen fluid and thick yellowish discharge. The cervix was slightly inflamed and there was tenderness (mild to moderate) when cervix was touched.
    

The Medical Report- Sabel Ian

55. The Medical Report of Sabel Ian revealed whitish, jelly type discharge which is typical of semen fluid. The cervix looks normal with no other fresh tear or abnormalities seen on the vaginal wall and the perineum. This strongly suggests that she was sexually penetrated.
    

Court Ruling on No Case Submission- Count 1

56. The accused Laulau Caspar Ila stands charged that he on the 22nd of February 2010 at Vunapalading No 3 Block sexually penetrated Rosalia Lar without her consent by inserting his penis into her vagina AND at that time Laulau Caspar Ila immediately before the commission of the offence, threatened to use a weapon, namely a bush knife on Rosalia Lar.
    
57. There is no dispute that the accused did sexually penetrate Rosalia Lar on the 22nd of February 2010 at Vunapalading No3 Block.
    
58. The only issue contested here is whether the victim had consented to being sexually penetrated by the accused or not.
    
59. The evidence as it is before me is that the victim together with Sabel Ian went looking for mushrooms after being told by the victim's mother. On the way to the mushrooms patch they met the accused and Gabriel Bernard cooking bananas on the fire.
    
60. The accused enquired with the victim Rosalia Lar of what they were there for. The victim then told the accused that they were looking for the mushroom patch.
    
61. The accused then directed the victim and Sabel Ian to the mushroom patch. The victim and Sabel Ian then proceeded to the direction given them by the accused and eventually found the mushroom patch.
    
62. They then picked or collected mushrooms putting them in the basket which they brought with them. While in the process of collecting mushrooms the accused and Gabriel Bernard then followed later.
    
63. The accused then approached the victim from her back and the following then took place:
    
    1. The accused grabbed the victim around her neck with his left hand while holding a knife on his right hand.
       
    2. During that ordeal the accused told the victim not to shout.
    3. The victim urinated herself in fear of the accused.
    4. The accused removed his trousers and told the victim to hold his penis.
    5. The victim refused to hold the accused's penis.
    6. The accused then lifted the victim's laplap upward.
    7. The accused then held the victim by her legs and laid her down on the ground.
    8. The accused then lifted the victim's legs so as to lie on top of her.
    9. The accused then laid on top of the victim while on the ground.
    10. He then inserted his penis into the victim's vagina
    11. The accused then sexually penetrated her
    12. The accused ejaculated into the victim's vagina.
    13. The victim felt pain while sexually penetrated by the accused.
        
64. It is these acts that the State alleges were done to the victim without her consent.
    
65. Having considered the evidence as it stands and the submissions of the defence and the prosecution I am satisfied that there is evidence before me which I accept in respect of the element of consent which enables its existence (the element of consent) to be inferred. Accordingly the accused has a case to answer on the charge of sexual penetration of Rosalia Lar without her consent.
    

Ruling on Count No.2

66. The accused Laulau Caspar Ila stands charged that he on the 22nd of February 2010 at Vunapalading No3 Block sexually penetrated Sabel Ian without her consent by inserting his penis into her vagina. AND at that time Laulau Caspar Ila immediately before the commission of the offence used a weapon, namely a stick to hit Sabel Ian.
    
67. The State submits that the accused is caught under Sections 7 and 8 of the Criminal Code Act because:
    
    1. The evidence shows that the accused and Gabriel were always together on the date in question before the incident and after the incident had occurred.
       
    2. They were together when the victims met them and were together when Rosalia Lar had a conversation with the accused Laulau Caspar Ila.
       
    3. They were together when the accused gave direction to Rosalia Lar and Sabel Ian on where to find the mushrooms.
       
    4. They followed the victims together to the mushroom patch and approached the victims.
       
    5. The accused approached Rosalia Lar while Gabriel approached Sabel Ian.
       
    6. They both used weapons, a knife and a stick.
       
    7. The accused then sexually penetrated Rosalia Lar while Gabriel Bernard sexually penetrated Sabel Ian.
       
68. Mr Kerker for the accused submits that Sections7 and 8 is not applicable to our client because if the accused and Gabriel both had sexually penetrated Rosalia Lar then Section 7 and 8 would be applicable.
    
69. Having considered the evidence in regards to Count No.2, I agree with Counsel for accused that Section 7 and 8 is not applicable to his client because of the accused and Gabriel Bernard both had sexually penetrated Rosalia Lar, then Section 7 and 8 would be then applicable. The evidence as it is clearly shows that the accused never sexually penetrated Sabel Ian.
    
70. Be that and according to the evidence, the accused does not have a case to answer on Count No.2 and therefore is discharged forthwith.
    

________________________________________________________________
Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyer for the Accuseds