State v Katimo [2011] PGNC 63; N4327 (9 June 2011)

N4327

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR 230 OF 2008

STATE

V

RAPHAEL KATIMO
Accused

Wewak: Ipang AJ
2011: 8 & 9 June

CRIMINAL LAW – Practice and procedure –No case submission – Evidence of complainant (prosecutrix) incredible – State's case depended on prosecutrix's evidence – Prosecution's case will not improve – Case dismissed and accused acquitted

Cases Cited

State v Paul Kundi Rape [1976] PNGLR 96
State v Aige Kola [1979] PNGLR 620
R v Galbraith (1981) 2 ALL.ER 160
State v Roka Pep [1983] PNGLR 19

Counsel

Mr. F. Popeu, for the State

Mrs. A. Meten, for the Accused

DECISION

9 June, 2011

1. IPANG AJ: This is a No Case Submission by Mrs. A. Meten of Counsel for the accused. At the close of the case for the prosecution on a charge of sexual penetration, counsel for the accused submitted that there was no case to answer and that as the case stood the Court should be satisfied that the evidence for the prosecution is insufficient and therefore should acquit the accused.
   
2. The law on the No Case Submission is settled in this jurisdiction. The Court in the case of State v Paul Kundi Rape [1976] PNGLR 96 held that;
   

"Where there is a submission of no case to answer at the close of the case for the prosecution, the question to be asked is not whether on evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully convicted. This is a question of law; to be carefully distinguished from the question of fact to be asked at the close of all the evidence whether prosecution has proved its case beyond reasonable doubt."

3. In another case of State v Aiga Kola [1976] PNGLR 620 the Court had held that;
   

"Where there is submission of no case to answer at the close of the case for the prosecution there are two questions to be determined;

(1) Whether there is sufficient evidence on which the accused could lawfully be convicted; and

(2) Whether there is sufficient evidence on which the accused ought to be convicted; i.e. whether the evidence is so insufficient that the accused ought not to be called upon to answer it."

4. Mrs. Meten's submission was two fold. First leg of her submission was that in so as far as the evidence adduced by the prosecution, they (the evidence) are insufficient. She submitted that the essential elements for the offence has not been established and/or alternatively she submitted that in the event this Court does not accept or rule in favour of her first leg of submission then the second test to be applied is that though there may be some evidence or elements of the offence present, it will not be sufficient to sustain the conviction. Counsel referred this Court to the case of State v Paul Kundi Rape (supra).
   
5. It is appropriate at this juncture to re-visit the evidence presented by the prosecution so far. However, prior to doing that the indictment presented by the State against the accused is one of sexual penetration. The State alleged that the accused had on the 21st of December, 2007 at Kiarifu village, sexually penetrated one 'SK' by inserting his penis into her vagina. The State further alleged that at the time of the alleged offence, the accused (Raphael Katimo) breached an existing relationship of trust, authority and dependency namely that of a father to his daughter. The accused was charged under section 347(1)(a) of the Criminal Code Act (as amended).
   
6. The State alleged that on the 21st of December, 2007, the complainant 'SK' being the adopted daughter of the accused was sleeping in the house. The State alleged that it was between 10pm to 11pm and the accused's wife was not in the house. The accused as alleged by the State, armed himself with a knife and went to where the complainant was sleeping. It was alleged that the accused woke the complainant up, threatened her with the knife, forced her to remove her clothes, which the State alleged she did it out of fear. State further alleged the accused laid on top of the complainant and inserted his penis into her vagina. After the act, the complainant got out of the house and reported the matter to her aunty who is Janet Sunguru, the second witness.
   
7. The prosecution tendered the Record of Interview conducted on the 21 December 2007 by consent. The ROI in pidgin was marked as Exhibit "A1" and ROI in English was marked as Exhibit "A2". The prosecution called two witnesses. The complainant 'SK' herself and her aunty Janet Sunguru.
   
8. Prosecution's first witness 'SK' gave evidence that she resides with her grandparents at Kiarifu village, Yangoru for three (3) years now. Prior to that she said she lived with her uncle Sunguru for one year. Before staying with her uncle, she said she resided with her parents Helen and Raphael Katimo.
   
9. Complainant said she left her parents to live with her uncle Sunguru in 2007. She told this Court that some problems arose with her so she left. She clarified that her father did some wrong with her. Complainant continued on that there was a custom work at home and her mother did not bring some money home. She said her uncle Sunguru got "bad thoughts" so he went to the police.
   
10. Complainant said her father had sexual intercourse with her. She later said her uncle brought her to the police station and told her to see the police. Otherwise, she said it is only a suspect case. She said sexual intercourse is not true. She said her uncle lied. She said her uncle forced her.
    
11. The prosecution's second witness is Janet Sunguru. She gave evidence that she is a house-wife and lived with her husband in Kiarifu village for 10 years. She said on 21 December, 2007, she went looking for betel-nut at the accused Raphael Katimo's premises but saw that no one was there. She said whilst there, she heard people talking softly in the house, a voice said "inap ya! inap ya! She told the Court that she left for her house and later 'S' cried and went over to her house.
    
12. This witness said 'S' cried and told her that her father used a condom and sexually penetrated her. She told this Court that after she heard 'S', she looked for her husband and told him what happened. The next morning 'S', the witness and her husband went to Yangoru Police Station and reported the matter.
    
13. She said her husband reported the accused, the accused fled East Yangoru to West Yangoru but police arrested him and locked him up at Maprik police cell. The witness said the accused paid K1000 as compensation to her husband and her husband distributed the money with his brothers and 'S's brothers. She said her husband died last year, 2010.
    
14. Mrs. Meten's submission was based or premised around the prosecution's first witness, the complainant herself. Mrs. Meten of counsel for the accused submitted that the evidence given by the complainant is all made-up or fabricated. She said it was based on custom work at home where 'S's parents did not contribute so the K1000 was given in this regard. She also submitted that 'S's statement was dated 21 December, 2007 whereas it should have been 22 December, 2007.
    
15. A part from what the prosecution told this Court, the prosecution's first witness, the complainant did not mention that her father threatened her with a knife, forced her to remove her clothes and sexually penetrated her. The evidence by the complainant herself did not go well and is not corresponding well with the prosecution's case theory or as the allegations raised.
    
16. Mr. F. Popeu of State prosecution submitted that this Court is faced with only one question and that is; "what value, can this court place on the evidence of prosecution's second witness Janet Sunguru?" Mr. Popeu said the Court should take this approach as the first witness may not be telling the truth. He said through the evidence of the second witness, inference can be drawn especially on the payment of compensation. Because of the aforesaid reason, the State Prosecutor submitted that the court should rule that rape possibly took place and so, there is a primie-facie case established.
    
17. If I decide to take the approach, as suggested by Mr. Popeu, I would first weigh the evidence of Janet Sunguru and decide how much value should be given to her evidence and this should lead me to decide whether there is a "primie facie" case established. From the outset, my task has been a difficult one as there is no medical report on the issue of sexual penetration and the denial by the complainant that sexual penetration never took place as her uncle Sunguru fabricated the whole story.
    
18. My task at the end of the prosecution's case when a No Case Submission is made is not to asses the individual prosecution's witnesses and to decide on which of the evidence of witnesses should I rely on and give value to their evidence as presented. My task when a no case submission is made is to follow the approach in Paul Kundi Rape case (supra) and Aige Kola case (supra). In that the Court has to take in to account all of the evidence adduced by the prosecution and decide on sufficiency of the evidence whether the accused could or ought to be lawfully convicted. In this present case, the credibility of the prosecution's case lies on the complainant. She is the author of this case. It is her evidence that will lay a foundation for the prosecution's case.
    
19. In the case of State v Roka Pep [1983] PNGLR 19, Kapi DCJ (as he then was) stated that;
    

"The evidence is such that the State case depended on the credibility of one State witness. I can not stop the case on the authority of R v Galbraith [1981] 2 All ER 160. However, having regard to the whole of the State case, the State relied only on one key witness out of three other witnesses. Her evidence was incredible. The State case could not stand without her evidence. I consider that is not an appropriate case in which to exercise the discretion in State v Aige Kola [1979] PNGLR 620 and acquit the accused."

20. My view is that this present case with absence of a medical report can not stand without the evidence of the complainant 'SK'. Even if I am to hold that there is some evidence (or elements) of rape in Janet Sunguru's evidence given in Court it will still not improve the prosecution's case. I take the view in Roka Pep's case (supra) where it was held that;
    

"Where there is a case to answer but the judge is of the view, on the facts, that no matter what evidence may be called by the accused, the prosecution case will not be proved beyond reasonable doubt or prosecution case will not improve, or prosecution case is hopeless or intrinsically weak, then judge has a discretion to acquit the accused on a No Case Submission."

21. For these reasons as alluded, it is my ruling that I will now uphold the No Case Submission by the Defence Counsel and in doing so, I dismiss the case and acquit the accused accordingly.
    

____________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Accused