N5269
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1064 of 2010

THE STATE

V

GEORGE JOSHUA

Lorengau:Batari, J
2012: 11, 12, 13 December

CRIMINAL LAW – Rape – meaning of – Consent – defence of – complainant did not say or do anything to indicate consent – whether sufficient to show the act took place without consent – non-consent – mental or physical disability - circumstances where the person is incapable of understanding nature of the act or communicating unwillingness due to mental or physical disability – indictment – alternative - requirement to charge element of mental or physical disability - s.347 (2)(f) Criminal Code as amended considered and applied.

Facts

The accused was charged with rape. The issue at trial was whether the act of sexual penetration was consensual, as alleged by the accused. The evidence from the victim was equivocal.

Held

1. Where the case for the State relies on circumstantial evidence the Court must acquit unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than the guilt of the accused, at [5];

2. Where there is no direct evidence that the act of intercourse did not result from free and voluntary agreement, that fact may be inferred from the whole of the evidence, at [21];

3. If the complainant is suffering from a mental disability, which may affect her reliability, the court may act on that evidence alone, but only after scrutinising it with great care, at [27];

4. The requirement for corroboration of the complainant's evidence is vital in the interest of justice where the complainant has or is suspected of having a mental disability, at [29-32];

5. A guilty verdict can be sustained on the basis of the victim having a lack of understanding of the act of intercourse or an inability to communicate willingness to participate in the act, but only if those circumstances are charged in terms of Criminal Code s 347(2)(f) so that the accused is informed, as required by s 528(1), of the nature of the charge against him, at [34-39];

6. Criminal Code s 347A (2) and s 349A (g) together require that a physical or mental disability be "serious" and proven by the State to be such, at [40-41];

7. The State has not proven its case beyond reasonable doubt, accused acquitted.

Cases Cited:
Papua New Guinea Cases

John Jaminan v The State (No 2) [1983] PNGLR 318
John Peng v The State [1982] PNGLR 331
Paulus Pawa v The State [1981] PNGLR 498
The State v Jeffery Supunau (2010) N3919
The State v Lucas Benjamin Urareo (No. 1) (2005) N3086
The State v Moses Tenta (2009) N3684
The State v Tom Morris [1981] PNGLR 493

Overseas cases cited

Bromley v R; Karpany v R (1986) 161 CLR 315
R v El Adl [1993]2 Qd R 195

Counsel

C. Sambua, for the State
C. Kaleh, for the Accused

VERDICT

13 December, 2012

1.	BATARI, J: The accused George Joshua, stands charged that on 17/2/10 he sexually penetrated one, Delilah Gilboth without her consent. He denies the charge and has maintained all along, that the act was consensual. 

2.	The evidence before the Court consisted of both oral and documentary evidence. The latter comprised; a record of interview between the police and the accused; medical report of a Dr. Francis Pulsan and witness statements. The complainant and the accused gave sworn testimony.

Undisputed Facts

3.	The common facts are that, on the afternoon of 17/2/10 George met Delilah on the road between Sapon 1 and Sapon 2 villages. She was on her way to Sapon 1village. He took her into the nearby bushes and sexually penetrated her. Shortly before that Delilah was in the company of her older relatives, Grace Kataka and Barbara Silas. When the two relatives arrived at Sapon 1 village they realized Delilah was not with them. They raised the alarm and a search party located her around 10.00 pm near her grandmother's home. 

4.	Delilah did not initially volunteer or say anything when questioned. Her aunt Hilda Belden then took her aside and according to Hilda's Witness Statement, Delilah responded that, "George came from behind her and pulled her by her 'T-Shirt into the nearby bushes and forced her to lay down raping her." This statement is contested by the accused on assertions that the act followed a pre-arranged meeting between him and the complainant.

Case for the Prosecution

5.	The evidence against the accused is partially circumstantial. It is trite, that if the case against the accused depends entirely on circumstantial evidence, the Court must acquit unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than the guilt of the accused: Paulus Pawa v The State [1981] PNGLR 498; John Peng v The State [1982] PNGLR 331; The State v Tom Morris [1981] PNGLR 493.

6.	There is some evidence pointing to non-consensual sexual penetration. Inferences from proven facts may establish guilt of the accused. The story by the complainant is that on the date in question, she accompanied her aunt Grace Kataka to harvest sago. They returned to her aunt Pondris' (Barbara Silas) home and continued onto her grandmother's house where they left the sago. She also spoke of staying awhile at her aunt's house before returning to the road where the accused met and sexually violated her. 

7.	In cross-examination, the complainant retracted and agreed that her aunt Grace had accompanied her to see relatives off at Sapon 2 village. The relatives in return gave them two sago wrappings. On their way back, they met Barbara Silas on the road and Barbara assisted to carry her sago. While her two aunts walked ahead, she followed behind them. 

8.	This version is more probable. It is consistent with the statement evidence of Grace and Barbara. Their statements also described the manner they walked on the road; Barbara walked ahead followed by Grace and Delilah in that order.

9.	The evidence of the complainant continued that while walking alone, George met and pulled her into the bushes. At this point, she showed reticence and when prompted with the question, "what did George do to you in the bushes," she responded that George took her trousers off and raped her. When asked to explain what she meant by 'rape,' she answered after some prompting, that George put his penis into her vagina, and repeated, "he raped me". 

10.	Prosecuting Counsel, Mr Umpake aptly asked her to explain how she felt when George put his penis into her vagina but she fell silent. I asked whether she has an answer and received a resounding, "No." Her evidence improved a little when she added that George fled the scene without saying anything to her.

11.	The evidence of the complainant is clearly riddled with inconstancies. It is imprecise, incoherent and wanting in material particulars on the issue of consent. The State's case depends entirely on her oral evidence. As it is, she is quite clearly unreliable. Standing alone, the evidence is such that no reasonable tribunal of fact is likely to convict on it. 

12.	The prosecution case may however improve; first, if other independent evidence exists to support her story and second, if the accused is disbelieved in his evidence, his false denials may amount to corroboration: John Jaminan v The State (No 2) [1983] PNGLR 318. 

Defence Case 

13.	In his oral testimony, George spoke of Delilah being his girl friend for over a year and that they have had sexual relationships on other occasions in the past. On the date in question, he was unwell and had gone to an Aid Post at Sapon 1 village for treatment. Upon his return, he met Delilah on the road as pre-arranged. She told him to do whatever he wanted with her so; they entered the nearby bushes and had sexual intercourse. He then left her to return home. Relatives of the complainant then came looking for him armed with bush knives in the middle of the night. In fear of his life, he fled to the Police Station for his own safety.

14.	I am not impressed with the accused as a witness of truth. Like the complainant, he was similarly inconsistent, also calculating and shifty. His denials however, almost got unstuck in cross-examination of the complainant. His lawyer, hopelessly lacking in experience and competence, pointlessly asked, "I put it to you that he did not leave you at your grand mother's house but he left you in the bushes and ran away, what you say?" Delilah answered "yes". Counsel again asked, "Have you ever struggled with the accused?" She answered, "No because he was holding me very tight, very strong." 

15.	As a golden rule of the thumb, one does not ask in cross-examination, questions that you do not know the answer to or questions that will likely draw adverse response or inference against your case. Secondly, one does not put a question that implicates the accused person in cross-examination unless you have a good reason or intend to show a reasonable explanation or a more probable version for the conduct that implicated your client.

16.	In this case, the complainant said nothing about struggling in her evidence in-chief. That evidence came from an unlikely source in cross-examination. And the version of fleeing from the scene not only reinforced Delilah's version, but it also draws the adverse inference, that the accused had fled the scene due to guilty conscious and to avoid detection. This also raises the question; if it was a consensual sexual intercourse, why would the accused flee, leaving the complainant in the bushes, exposed to all manner of risks and elements of danger in the night?

17.	But then, the accused said nothing about fleeing from the bushes in his testimony. His version is that he fled his home when angry relatives of the complainant came to attack him. He cannot have it both ways. It may be inferred that the accused had shifted from his instructions to his lawyer to a new version and hence, he is being untruthful.

Whether the act of sexual penetration was with or without consent?

18.	Returning to the issue of consent, the act of sexual penetration is not contested. There is however no direct evidence that the act was forced upon the complainant against her will or consent. The term 'consent' is defined as, free and voluntary agreement under s 347A (1) of the Criminal Code as amended. Under Subsection (2), circumstances in which a person does not consent to an act include but not limited to, the following: 

"(a)	the person submits to the act because of the use of violence or force on that person or someone else; or

(b)	the person submits because of threats or intimidation against that person or someone else; or

(c)	the person submits because of fear of harm to that person or to someone else; or

(d)	the person submits because he is unlawfully detained; or

(e)	the person is asleep, unconscious or so affected by alcohol or another drug so as to be incapable of freely consenting; or

(f)	the person is incapable of understanding the essential nature of the act or of communicating his unwillingness to participate in the act due to mental or physical disability; or

(g)	the person is mistaken about the sexual nature of the act or the identity of the person; or

(h)	the person mistakenly believes that the act is for medical or hygienic purposes; or

(i)	the accused induces the person to engage in the activity by abusing a position of trust, power or authority; or

(j)	the person, having consented to engage in the sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity; or

(k)	the agreement is expressed by the words or conduct of a person other than the complainant."

19.	Subsection (3) provides, that in determining whether or not a person consented to that act that forms the subject matter of the charge, a judge or magistrate must have regard to the following:

"(a)	the fact that the person did not say or do anything to indicate consent to a sexual act is normally enough to show that the act took place without the person's consent; and

(b)	a person is not to be regarded as having consented to a sexual act just because—

(i)	he did not physically resist; or

(ii)	he did not sustain physical injury; or

(iii)	on that or an earlier occasion, he freely agreed to engage in another sexual act with that person or some other person."

20.	The issue is then whether the complainant freely and voluntarily agreed to be sexually penetrated by the accused. 

21.	Because there is no direct evidence that the act did not result from free and voluntary agreement, that fact may be inferred from the whole of the evidence. The testimony of the complainant that she could not struggle because she was restrained by the accused and the evidence that the accused fled from the scene imply non-consent. But are these enough to sustain a lawful conviction? The answer is 'no' because of two other crucial aspects of the complainant's evidence.

22.	The first is that Delilah appeared to be suffering from some mental disability. The second relates to charging the circumstance of non-consent under s. 347A (2). The fact of the witness's mental state was not alleged and charged by the prosecution on the Indictment.

Non-consent due to mental disability 

23.	I had the opportunity to observe the complainant in the witness box. She appeared to be labouring under some mental infirmity. She was slow and paused long to answer questions. At times, she seemed lost. The difficulty of her testimony manifested in her inconsistencies, incoherency and inability to give detailed and accurate account of events leading up to, during and after the act. It was only upon a perusal of the documentary evidence during the lunch-break that my suspicion on her mental capacity was confirmed.

24.	The witness statement of her mother, Carol Gilboth, states, Delilah was born a normal child but suffered a debilitating condition at early childhood. She became paralysed from the waist down but recovered overtime from local treatment to be able to walk normal again. She was however, left with some residual abnormality. She takes time to talk and only does things she is told to do. 

25.	When examining the complainant, Dr. Pulsan observed her appearance to be generally good and she responded to questions asked. He also observed that she, "looked handicapped, otherwise normal." The mental state of the complaint was put to the accused in the record of interview in Q 16: "You klia tu olsem dispel liklik yangpela meri ya em Delilah Rena Gilboth igat sik na i save paul o slow long tingting na wokim samting?" Ans. Nogat."

26.	This aspect of the evidence is crucial to the State's case. It sets the tone and guide for the nature of the evidence to be adduced in the prosecution of the case. This is not a normal case of rape involving the usual allegations of non-consent due to force, intimidation, etc. As it turned out, the crucial witness for the prosecution appeared to be labouring under some form of mental disability that may seriously affect her reliability.

27.	Where the Court is faced with such situation, the evidence of the witness must be treated with great caution. The court may act on the complainant's evidence alone, but only after scrutinising it with great care and upon being satisfied of its truth and accuracy. 

28.	And this is where one must take heed of the maxim, it is dangerous to convict on the uncorroborated evidence of the complainant alone. This caution, in my view, remains valid as it was under the amended provisions despite the requirement for corroborative evidence having been removed in regard to current sexual offences by s. 352A of the Criminal Code (as amended).

29.	The requirement for caution in this case is, absolutely necessary and vital in the interest of justice where the complainant has or is suspected to have mental disability. I find the following passage from Carter's Criminal Law of Queensland, Twelfth Edition most pertinent and persuasive in dealing with such case situations as it now arises. The learned authors state at page 651: 

"Where a witness is suffering from a mental disorder the trial judge should warn the jury of the possible danger of acting on that witness's evidence if it was not confirmed by some other evidence. See, Bromley v R; Karpany v R (1986) 161 CLR 315;...See also, R v El Adl [1993]2 Qd R 195 where it was held that if it appeared at a criminal trial that a witness whose evidence was important had some mental disability which might affect his or her capacity to give reliable evidence the jury should be given a warning, appropriate to the circumstances of the case, of the possible danger of basing a conviction on the testimony of that witness unless it was confirmed by other evidence. The warning should be given even though there was partial or fragmentary confirmation of the witness's evidence."
 
30.	The effect of s. 352A of the Code (as amended) is simply, that if a person gives credible evidence that he or she was sexually penetrated, the court will find accordingly: The State v Lucas Urareo (No. 1) (2005) N3086, per Manuhu AJ. Conversely, if the complainant's evidence is tainted in some material particulars but may improve upon independent corroborative evidence, a conviction may result. In my view, Paliau AJ correctly stated the effect of s. 352A on the burden of proof when he stated in The State v Moses Tenta (2009) N3684: 

"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) SC 860."

31.	And in The State v Jeffery Supunau (2010) N3919 Cannings J with whom I agree, acknowledged, that in any criminal trial, where the State's case is based on the uncorroborated testimony of one witness, caution needs to be exercised. In my view, it must be borne in mind always, that criminal offences are such a serious matter that the guilt or innocence of the accused person should only result from a fair trial. With respect, this truism, underlines the deep-seated paradigm of a constitutional right to a fair trial, that is so often lost to unqualified view of the correct application of s. 352A of the Code (as amended). 

32.	In this case, the complainant's story is the only most important evidence before the court. Because of questions imputing her mental disability, the stakes are raised higher for independent credible evidence to support her story, and thus the necessity for corroborative evidence. 

33.	The medical evidence is crucial on this aspect. However, it does not support the complainant's story that the act was the first experience ever in her life to be sexually penetrated. The medical examination indicated she looked normal with no signs of physical or mental trauma. The doctor did not clarify the observation that Delilah looked 'handicapped.' This generic description does not go enough far to support a finding on the mental capacity of the witness. The evidence is lacking in weight and sufficiency. The essence of such proof is that the accused had refuted any prior knowledge of the complainant's disability, in the record of interview and also in his oral testimony. 

34.	Can a verdict of guilty be sustained under s 347A (2) (f) on the basis of lack of understanding of the nature of the act or an inability to communicate willingness to participate in the act due to mental disability?

35.	The answer is 'yes'. However, to sustain a lawful conviction under that provision, the prosecution must charge and adduce evidence on the particular circumstance of non-consent alleged under s 347(2) (f) Criminal Code as amended that, the complainant either did not consent, or she was incapable of consenting because she did not understand the essential nature of the act or that she was incapable of communicating willingness to participate in the act due to mental disability. The charging of that element is also relevant for the circumstance of aggravation under s 349A (g). Where these factors are alleged, the State has the onus to prove their existence on the standard of proof beyond reasonable doubt. 

36.	In this case, these essential factors were not alleged and charged on the indictment. That omission means that, the prosecution is only obliged to prove beyond reasonable doubt that the complainant did not consent because of use of violence or force (s 347A (2)(a), or due to threats or intimidation (s 347A(2)(b), or because of fear of harm (s 347A(2)(c).

37.	The evidence before the Court bore directly on those circumstances of non-consent. This trial essentially hangs on that issue. There was no evidence called to show that the complainant has a mental disability and that she was sexually violated in that circumstance. 

38.	In my view, in order for a lawful conviction to be sustained, the facts alleged must be specifically charged and proved as a matter of law. Circumstances of non-consent applicable to this case are specified under s 347A (2) (f). The accused must know in a case where consent is an issue, what he has to answer to. In order to prepare his defence, the accused is entitled under s. 528 (1) of the Code as well as the Constitution, to know the nature or circumstances under which the complainant is said to have not consented. 

39.	In this case, the circumstance of rape under s 347A (2)(f) is not charged and relied on by the prosecution. The accused cannot be convicted on allegations he has not been charged with. Section 528 of the Code reads:

"(1)	An indictment shall be intituled with the name of the court in which it is presented, and must, subject to the succeeding provisions of this Division set forth the offence with which the accused person is charged – 

a.	in such a manner; and

b.	with such particulars as to – 

(i)	the alleged time and place of committing the offence; and

(ii)	the person (if any) alleged to be aggrieved; and

(iii)	the property (if any) in question, 

as is necessary to inform the accused person of the nature of the charge."

40.	Even if the facts or circumstances of non-consent are alleged but the evidence shows existence of one or a number of other situations under s 347(2), that evidence ought to have high degree of probability in order to sustain a lawful conviction. 

41.	 The evidence on the level of mental disability must be specifically proven. When s 347A (2) (f) is read together with s. 349A (g), the complainant must be proved to have "a serious physical or mental disability." So, the level of mental disability as for this case must be proved to be "serious." There is no such proof. The evidence of the complainant's mother and Dr. Pulsan is too general to satisfy the required onus of proof in a criminal case. For myself, I have some difficulty forming a firm view of her mental capacity as she appeared to know and understand why she was in court with apparent slowness and reluctance.

42.	Besides, there has been no explanation as to how the two relatives of Delilah would have proceeded on along the road without even realising her absence. Or was it intended that Delilah would be left to walk home alone?

43.	On the whole of her evidence, traits of her story leave a clear impression of being coached. Her repeated use of the word "rape" leaves an uncanny impression of being told to use that word without it being explained to her what she meant or what happened as a matter of fact.

44.	The accused need not prove his innocence. It is sufficient for him to raise a defence of consent on the balance of probability before the onus shifts to the prosecution to disprove the defence and prove his guilt beyond reasonable doubt. 

45.	I am not satisfied that the State has discharged that onus on the standard of prove beyond reasonable doubt. The accused is found not guilty and acquitted of the charge. He is discharged forthwith.

________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused