N4432

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. N0 210 OF 2011

THE STATE

V

ROLAND BARIOM

Kokopo: Maliku AJ
2011: 11th October

CRIMINAL LAW - Sexual Penetration – Rape- Section 347 (1) and (2) Criminal Code (Sexual Offences and Crime against Children) Act

CRIMINAL LAW - No Case Submission at the close of Prosecution case – Principles of No Case Submission – Evidence on sexual penetration is lacking – No Medical Report tendered to support sexual penetration – Does the accused have a case to answer?

Cases Cited: 

The State-v- Paul Kundi Rape [1976] PNGLR 96
Roka Pep (No 2) [1983] PNGLR 287

Counsel: 

Mr G. Bray, for the State
Mr G. Kerker, for the Accused

11th October, 2011

1.	MALIKU, AJ: The accused stands charged that he on the 6th of November of 2010 at Rabaul, East New Britain Province did commit rape on one Angelica Gamgam by inserting his penis into her vagina without her consent thereby contravening Section 347(1) and (2) of the Criminal Code Act. 

2.	The accused pleaded not guilty to the charge. I then heard evidence from the State witnesses. At the end of the Prosecution's case counsel for the accused informed me that he would make a No Case Submission. I heard the No case submission from the defence and the reply from the State counsel.

3.	Prior to the State called its witness Mr Bray for the State tendered the following documentary evidence with consent which were accepted and marked accordingly:

i.	Statement of Paul Bonnio of Rabaul Police Station dated 15th of November 2010marked Ex A.

ii.	Statement of Ukies Kibale of Rabaul Police Station dated 15th of November 2010marked Ex B.

iii.	Record of Interview between the accused Roland Bariom and Arresting Officer Ukies Kibale in Pidgin Language (hand written) dated 15th of November 2010 marked Ex C.

iv.	English version of Record of Interview dated 15th of November 2010 marked Ex D.

4.	The defence tendered the following during the trial:

v.	Withdrawal Statement of the charge by the victim Angelica Gamgam dated 29th of June 2010 marked Ex D1

vi.	Statement of Magdelyn Joe dated 08th November 2010 marked Ex 2

No case submission – Defence:

5.	Mr Kerker submits the accused is charged with one count of rape upon one Angelica Gamgam by inserting his penis into her vagina without her consent on the 06th of November 2010. In so doing he had an existing relationship of trust and authority contravening Section 347 (1) and (2) of the Criminal Code Act. 

6.	State called two witnesses and also tendered several documentary evidences with consent. 
 
7.	Our submission is based on the principles stated in the case of Paul Kundi Rape [1976] PNGLR 96 and Roka Pep (No2) [1983] PNGLR 287.

8.	There are two distinct and separate questions. The first one is: Is there some evidence of each element of the offence to which if accepted would either prove the elements directly or enable its existence to be inferred? This is a question of law.

9.	The 2nd question is: Is there sufficient evidence on the basis of which the Court ought to convict the accused? This is a question of fact and is to be determined by the Court when it is considering the evidence in totality after it had heard the evidence of the defence.

10.	Having that in mind the accused had been indicted with a serious crime of rape with aggravating factors. We therefore base our submission on the 1st principle (of law) and we raise a question: Can the accused be lawfully convicted?

11.	The elements of the charge of rape for which the accused had been charged with are:

i.	Identification 
ii.	Sexual penetrated 
iii.	Another person
iv.	Without consent

12.	We submit that the evidence as it stands for the State has not proved all the elements of the charge. 

13.	We further submit that there is no evidence before this Court to prove that there was sexual penetration on the victim by the accused.

14.	We submit that the State had not tendered any Medical Report to support their allegation that sexual penetration did take place. 

15.	We further submit that a Medical Report confirming the presence of semen or fluid on the vagina of the victim would be the best evidence to support or corroborate that sexual penetration did take place. 

16.	We submit that the State had failed to produce one to the Court in its evidence. With this we ask: Can the accused be lawfully convicted? We submit the answer would be No. 

17.	In conclusion, we say the evidence as it stands is insufficient in order for the matter to go pass this stage and therefore the Court must discharge the accused.

Reply by State on No case Submission

18.	Mr Bray submits that the accused was charged with one count of rape contrary to Section 347 (1) and (2) of the Criminal Code Act.

19.	That the accused had used his position as the immediate boss of the victim and raped her by inserting his penis into her vagina without her consent.

20.	Mr Bray submits that the State's evidence is very clear on what the accused did to the victim on the 06th of November 2010 at the new Rabaul Post Office even though the accused had denied the allegation.
 
21.	In regard to the element of Identification of the accused we submit that the State's evidence clearly shows the accused is the person who sexually penetrated the victim on the 6th of November 2010.

22.	In respect to why the victim did not report the matter to the Police on the same day we submit that the victim had clearly explained that issue. She said that she had to consider what the accused did to her hence he is her immediate boss. This is because she had great respect for the accused as her immediate boss. The matter was eventually reported on Monday the 8th of November 2010 at both the Police and the accused headquarters.

23.	In respect to the Medical Report we submit the victim's evidence is direct evidence and is sufficient to show that she was sexually penetrated by the accused by inserting his penis into her vagina without her consent. The victim further said in her evidence that she experienced some bleeding in her vagina. The victim has no reasons to lie about the accused who was his immediate boss.

24.	In respect to the Medical Report as to corroborate the evidence of the victim we submit Section 352A of the Criminal Code (Sexual Offences and Crimes against Child) Act 2002.

25.	Mr Bray further submitted that the victim never had any extra marital relationship with the accused apart from her work relationship which was very good until the accused raped the victim. 

26.	In respect to issue of consent by the victim we submit that the victim never consented to being sexually penetrated by the accused. The victim's evidence is that the accused grabbed her on her hand and pulled her into the mail room and raped her.

27.	We submit that the accused was drunk at the time he raped the victim in the mail room at the Rabaul new Post Office. Finally we submit the accused has a case to answer.

By the Court

28.	Having considered the evidence and the submissions of both counsels in regard to each element of the offence against the accused, there is evidence before me which I accept proves directly the elements of the offence, or enables the existence of each element to be inferred. Accordingly I find the accused has a prima facie case to answer on the charge of rape.

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