State v Johannes [2014] PGNC 73; N5599 (20 May 2014)

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CRIMINAL LAW – Criminal Code, Section 347 – trial – whether the complainant consented to sexual penetration by the accused – whether circumstances of aggravation proven.

The accused was charged with rape in circumstances of aggravation, contrary to Sections 347(1) and (2) of the Criminal Code. He was aged 31 at the time of the incident. The complainant was a woman of similar age. The alleged aggravating circumstances were that immediately before committing the offence the accused threatened to use a weapon, a knife. The accused pleaded not guilty so a trial was held. The complainant gave evidence that the accused sexually penetrated her, without her consent. The accused agreed that he sexually penetrated the complainant but claimed that it was with her consent. The central issue was whether the State had proven beyond reasonable doubt that the complainant did not consent.

Michael Balbal v The State (2007) SC860
The State v James Yali (2005) N2988
The State v Polikap Lakai (2007) N3153
The State v Stuart Merriam [1994] PNGLR 104

This was the trial of an accused charged with rape in circumstances of aggravation.

1. CANNINGS J: The accused, Junior Anton Johannes, is charged under Sections 347(1) and (2) of the Criminal Code with committing the crime of rape in circumstances of aggravation against the complainant, a 30-year-old woman, "H". The State alleges that the accused, aged 31 at the time, committed the offence in the PNG Water precinct adjacent to Panim village, Madang Province, late on the afternoon of Friday 27 July 2012. The circumstances of aggravation alleged are that immediately before commission of the offence the accused threatened to use a weapon, a kitchen knife. He pleaded not guilty so a trial was held.

2. The State's case is based on the oral testimony of the complainant and a cousin of the complainant who says he came to the rescue upon hearing her cry for help, and the police investigating officer. A medical report and the accused's record of interview were also admitted in evidence. The accused gave sworn evidence. That was the only evidence for the defence apart from a witness statement of the complainant, which was relied on a prior inconsistent statement. The accused agreed that he sexually penetrated the complainant but said that it was with her consent.

(1) A person who sexually penetrates a person without his [or her] consent is guilty of a crime of rape.

5. This offence of rape under Section 347(1), sometimes called 'rape simpliciter', has two elements:

"Sexually penetrates" is defined by Section 6 (sexual penetration), which states:

When the expression "sexual penetration" or "sexually penetrates" are used in the definition of an offence, the offence, so far as regards that element of it, is complete where there is—

(a) the introduction, to any extent, by a person of his penis into the vagina, anus or mouth of another person; or

(b) the introduction, to any extent, by a person of an object or a part of his or her body (other than the penis) into the vagina or anus of another person, other than in the course of a procedure carried out in good faith for medical or hygienic purposes.

"Consent" is defined by Section 347A(1) (meaning of consent) of the Criminal Code. It means free and voluntary agreement.

6. If an offence under Section 347(1) is committed in circumstances of aggravation the maximum sentence is increased by Section 347(2) from 15 years to imprisonment for life (The State v James Yali (2005) N2988). "Circumstances of aggravation" are prescribed by Section 349A (interpretation), which states:

For the purposes of this Division, circumstances of aggravation include, but not limited to, circumstances where—

(b) at the time of, or immediately before or after the commission of the offence, the accused person uses or threatens to use a weapon; or

(c) at the time of, or immediately before or after the commission of the offence, the accused person tortures or causes grievous bodily harm to the complainant; or

(d) the accused person confines or restrains the complainant before or after the commission of the offence; or

(e) the accused person, in committing the offence, abuses a position of trust, authority or dependency; or

(i) the accused was knowingly infected by Human Immunodeficiency Virus (HIV) or knowingly had Acquired Immune Deficiency Syndrome (AIDS).

7. The State relies on Section 349A(b): immediately before commission of the offence the accused threatened to use a weapon.

8. It is undisputed that the accused sexually penetrated the complainant by introducing his penis into her vagina. The first element of the crime of rape has been established. Two matters are in dispute:

10. Three witnesses gave evidence for the State, as summarised in the following table.

No	Witness	Description
1	"H"	The complainant, age 30, villager, Panim village
Evidence
She was walking along the road from her house, which is behind the PNG Water area, in the direction of the main village at Panim – there was, she thought, no one else on the road but then she realised that someone was following her – she turned around and saw that it was the accused – he was holding a knife – she continued walking but he came around in front of her, grabbed her and put the knife to her neck, saying 'I want to have sex, I really need sex' – then he dragged her into the bush for about 100 metres. At a secluded spot he stopped, removed her clothes forcibly, took off his clothes, then sexually penetrated her by force, without her consent – she wanted to call out but he poked her in the ribs with the knife – he continued to penetrate her, and when he lost concentration she threw the knife away – the knife looked old, it was about 57 cm long, sharp-pointed, with a rubber handle. When he finished, she tried to get back to the road, but was naked except for skirt/shirt and he chased her back into the bush – then she called out for Lester, her cousin, who lives not far away – Lester came and saw the accused there, then the accused ran to the road – some local boys saw him, and then the boys saw her, and then the boys bashed him and took him away. She and Lester left him there and she went to her house and informed her husband what had happened – they went to the accused's house, by which time the accused had been taken away to the police station – then she went to Modilon General Hospital for a medical examination. In cross-examination she said that she had been wearing a skirt and a tee-shirt – when she tried to leave the scene and walk to the road she could only find her tee-shirt – it was dark and she could not find her skirt – once she got hold of the knife, she could perhaps have used it against him but she was afraid to do that – she did not scream when he was dragging her into the bush as he was holding the knife against her neck – she denied being the accused's girlfriend – she had never been his girlfriend and never had sex with him – she denied signalling to him on the road in a friendly fashion, to get him to follow her into the bush.
2	Lester Oddo	Aged in his 40s, Water PNG employee, cousin of the complainant
Evidence
He went home after finishing work at about 4.00 pm – his house is only a few minutes walk from the treatment plant – he had a sleep on the veranda and was woken at about 6.30 pm by a shout: it was H, calling out his name – he went into the bush, to the area that he had heard H shouting from, it was about 100 metres from his house, at the creek that his family uses for washing – he found her there, semi-naked; the accused was also there – he shouted at the accused, who he knows well – the accused ran away to the road – but when he got there some local boys saw him, held him, bashed him up and then took him to his father – he had no knowledge of H having an affair with the accused. In cross-examination he said he went to the spot in the bush the next day, he found H's clothes – he also found a knife, about 60 cm in length – he later gave the knife to the police, to Const Freda Peter. Answering questions from the bench, the witness said the words he heard the complainant shouting were "Lester, Lest, come quick, help me!" – when he arrived at the spot in the bush the accused was holding on to H – he told him "Leave her" – then he ran away.
3	Const Freda Peter	Police investigating officer
Evidence
She is attached to the Sexual Offences Squad in the Madang CID – she did take a knife into her possession, said to be the knife used by the accused to threaten the complainant – it was about 50 cm long, sharp pointed, wooden handle, tied around with rubber – the complainant presented it to her at the police station, saying that it had been given to her by Lester – she got carried away with the investigation and forgot about putting the knife in the exhibit list – this was only her second case and she realises that it was a mistake. In cross-examination she said that she initially interviewed the complainant on 21 August 2012 – another police officer took another statement from her on 30 August 2012.

On examination she was noted to be tired and anxious but cooperative. Her clothes were unkempt. She had bruises on her eye and hands and a laceration on her left forearm was noted. There were no other injuries of note.

Examination of her genitalia did not reveal any obvious injuries due to her parity, ie she has borne three children. However a high vaginal swab was taken and examined by microscopy. This was positive for sperm.

Conclusion: Her story is consistent with her injuries. There is evidence of sexual penetration with ejaculation.

12. One witness gave evidence for the defence, as summarised in the following table.

No	Witness	Description
1	Junior Anton Johannes	The accused, aged 32 at time of the incident, unemployed, lives at Beon
Evidence
He was walking along the road when he met H – they greeted each other and then she signalled to him that he should go into the bush and she would follow him – he knew that this meant that she wanted to have sex as they had had sex in such circumstances many times in the past, in the period from 2008 to the time of the incident – they would often meet at Beon Junction and he would buy her food and they would play cards together – she was his secret girlfriend – he had been planning to marry her once he got himself settled in his village – she was single when they started their friendship – he realises now that she had married someone else – but he did not realise that she was already married on the day of the incident, 27 July 2012 – so they went into the bush and removed their clothes and had consensual sex – after satisfying themselves they came out on to the road – she reached the road first and realised that there were some Panim boys there – it was getting dark by this stage but there was a light from the Water PNG area that was shining some light on the area where she came out on to the road – then she called out 'Hey, Junior raped me!' – the boys assaulted him and took him up the road to his parents' house and from there he was taken to Jomba Police Station. In cross-examination the accused said that though he had been in a relationship with the complainant for four years and he was a well known person in the local community, the real nature of their relationship was known only to them – he does not understand why she made the allegation of rape; there must have been something in the back of her mind, maybe she was having sex with other men – he agreed that Lester's house was nearby.

13. The only other evidence relied on by the defence was the complainant's witness statement to the Police, dated 21 August 2012 (exhibit D1). This was tendered by the defence as a prior inconsistent statement on the basis that, though the account provided of what happened appears to be consistent with her oral testimony, the complainant made no mention of calling out to Lester or Lester arriving on the scene.

Has the State proven beyond reasonable doubt that the complainant did not consent?

14. Having weighed the competing evidence and the submissions of counsel I have concluded that the State has proven beyond reasonable doubt that the complainant did not freely and voluntarily agree to being sexually penetrated. The Court finds that she did not consent for the following reasons:

15. The complainant impressed me as a person who, though nervous in the witness box, was telling the truth. Her demeanour was sound. Her evidence was clear and credible.

16. Ms Hombunaka argued that she had made up the story about calling out for Lester, as she made no mention of Lester in her witness statement to the Police. I reject that submission for two reasons. First the witness statement was prepared by the Police and the complainant is illiterate. She might not have mentioned to the Police that she called out for Lester. She might have mentioned it, but the Police did not include it. There can be all sorts of reasonable explanations for a witness statement not containing all aspects of the evidence ultimately given by the witness in court. Secondly, and most importantly, the complainant was a convincing witness and the story about calling out for help was credible and it was corroborated by the evidence of Lester Oddo.

17. Ms Hombunaka challenged the credibility of the complainant's evidence about the knife. If the accused really had a knife and threatened the complainant with it when they met on the road, why didn't she sing out to Lester then? Why didn't she call out to Lester before she had sex with the accused? Why did she throw away the knife when she had the opportunity to defend herself with it? The complainant gave convincing answers to these questions. She was instantly scared when the accused put the knife to her neck. He continued to threaten her with it. When later, while penetrating her, he forgot about the knife and she got hold of it she was too scared to stab him, as that would have created more risk.

18. Lester Oddo also impressed me as a witness who was telling the truth. His demeanour was sound. His evidence was clear and credible. He came to the rescue upon hearing the complainant call out for him. He went straight to the place where he found the accused behaving suspiciously. The accused ran away. Lester's evidence corroborates the complainant's evidence that she had been raped. His evidence of his arrival on the scene was not in any material way inconsistent with the complainant's evidence.

19. The prompt making of a complaint by a person who alleges rape is a relevant consideration to take into account by the Court when determining the genuineness of the allegation; just as the absence of a prompt complaint can cast doubt on the genuineness of the allegation. These are relevant but not determinative considerations (Michael Balbal v The State (2007) SC860, The State v Stuart Merriam [1994] PNGLR 104, The State v Polikap Laki (2007) N3153).

20. The train of events that occurred in the hours following the incident are consistent with a woman making a genuine allegation of rape. As soon as she got to the road the complainant screamed to the youths who were on the road, alleging that the accused raped her. The accused was assaulted and removed to his parents' house, where the rape allegation was taken seriously, resulting in the accused being taken to the Police. Later that night the complainant was taken to the hospital for a medical examination.

21. The complainant was examined on the night of the incident. The medical report shows that she had bruises on her right eye and a laceration on her left forearm. Dr Atua concluded that "her story is consistent with her injuries".

22. His demeanour in the witness box was the opposite of that of the complainant and the other State witness. He gave the clear impression that he was not telling the truth.

23. Though his evidence was consistent with the story he told the Police, reported in the record of interview, that the complainant was his girlfriend with whom he had a secret relationship over a period of four years, that version of events is quite unbelievable. How would it have been possible for the accused and the complainant, both of whom live in close proximity to each other in a small community, whose families are close, be able to maintain a secret relationship, involving regular sexual assignations, for four years? Surely in a small community it would be highly unlikely that such a relationship could be kept secret. The accused's evidence became even more fantastic and unbelievable when he testified that on the day of the incident he did not know that the complainant had married someone else. How would he not know that she had become a married woman?

24. He was asked in cross-examination why the complainant would have called out to Lester and then screamed to the boys on the road that she had just been raped by the accused, if in fact she had just had consensual sex, something that had been going on for four years. The accused's response – that she must have had something in the back of her mind and that she was trying to cover up their relationship – was unconvincing. The accused gave no evidence of any past difficulties in what he described as his secret relationship with the complainant. So her conduct is evidence of either a very serious betrayal of trust by her or her being the victim of a serious betrayal of trust by the accused. I have little hesitation in drawing the latter conclusion.

26. The question of whether the accused is guilty of aggravated rape must now be determined.

27. I find that the State has not proven beyond reasonable doubt that the accused threatened, before committing the offence, to use a knife, for the following reasons.

28. Although the complainant's evidence of the accused having a knife and threatening to use it was credible, she and her cousin gave different descriptions of the knife, which did not match the description of it in the indictment (which alleged that it was a kitchen knife).

29. The evidence as to how the knife was allegedly found at the crime scene and passed to the Police was unsatisfactory. Lester Oddo stated that he found the knife at the crime scene on the morning after the incident, but his evidence was unclear as to whether the Police were with him at the time. He later stated that he gave the knife to Const Peter; but Const Peter stated that the complainant gave her the knife. Const Peter also admitted to 'forgetting about the knife'.

30. The State tendered a knife in evidence but its admission into evidence was subject to an objection, which was upheld, the result being that no knife of any description was in evidence.

31. No, it has not proven beyond reasonable doubt that the accused threatened to use a knife. As that was the only circumstance of aggravation charged in the indictment, the State has not proven that the offence was committed in circumstances of aggravation.

32. Junior Anton Johannes, having been charged with one count of rape in circumstances of aggravation, is found guilty of rape contrary to Section 347(1) of the Criminal Code, without circumstances of aggravation.

Verdict accordingly.
___________________________________________________________

Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the accused

National Court of Papua New Guinea

State v Johannes [2014] PGNC 73; N5599 (20 May 2014)