State v Ugene [2016] PGNC 223; N6421 (15 April 2016)

N6421

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1626 OF 2015

THE STATE

V

ANTHONY UGENE

Misima: Toliken, J
2016: 06th &15th April

CRIMINAL LAW – Trial – Rape – Penetration of victim’s vagina with a knife – Two stabs to the vagina alleged – Injury to vaginal wall – No pain or bleeding until after 3 days – Whether possible in circumstances – Not possible – Medical impossibility – Post offence behaviour of accused not consistent with one who had just committed a horrendous assault on victim – Against common sense and logic – Allegation of evil spell cast upon complainant – Inadmissible as proof of guilt – Verdict – Not Guilty – Criminal Code Ch. 262; ss 6, 347.

Cases Cited:

The State v Francis Ino (2013) N5184

Counsel:

H Roalakona, for the State

C Kambua, for the Accused

JUDGMENT ON VERDICT

15^th April, 2016

1. TOLIKEN J: The Accused Anthony Ugene was indicted for one count of rape pursuant to Section 347(1) of the Criminal Code Ch. 262. He was charged that on 20th May 2015 at Pumba village, Milne Bay Province, he sexually penetrated one LUCY JOE by inserting a knife into her vagina without her consent.

2. The State alleged that on 20th May 2015, the complainant and her baby had gone to a nearby river to bathe. The complainant carried her baby and also carried a small knife in her hand. At the river the complainant saw the accused standing nearby, and as if she was possessed by some evil spell, she approached him. The accused told the complainant that her husband and her families were the only ones benefiting from funds and projects from the Governor. He then grabbed the complainant and the complainant struggled with him. In the process she slipped and fell to the ground. As she was on the ground the accused came on top of her, grabbed the knife off her hand and spread her legs. He then lifted her skirt and pushed the knife through her underwear and into her vagina. He told the complainant that she would not feel any pain until after three days when she would feel pain in her vagina.

3. The complainant fell ill and started to feel pain in her vagina so she asked her husband to take her to her parents. She reported the matter to her parents a couple of days later who then reported the matter to the police. The State alleged that when the accused inserted the knife into the complainant's vagina he sexually penetrated her without her consent.

4. The accused generally denied the charge.

5. The elements of the offence of rape are:

1. The accused;

2. Sexually penetrated;

3. Another person;

4. Without his or her consent.

6. Sexual penetration is defined by Section 6A of the Code as follows:

6. Sexual penetration.

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.

7. The issues for determination by the Court are;

1. Whether the accused sexually penetrated the complainant's vagina with a knife

2. Whether the complainant consented.

8. The State's case consisted of the following:

1. The evidence of the complainant;

2. The evidence of Chris Guwe;

3. The accused's Record of Interview dated 26/10/15;

4. The Statement of the Arresting Officer John Kelebi dated 26/10/15;

5. The Statement of John Kelebi dated 27/10/15;

6. Statement of Corroborator Justus Eroro dated 26/10/15;

7. The Medical Report of the complainant by Emmanualla Kembwa with the following annexures:

(i) Admission Chart,

(ii) Drug Chart,

(ii) Nursing Notes,

(iv) Diagram of the injury.

9. The defence called the accused only.

UNDISPUTED FACTS

10. The complainant and the accused live on two separate hamlets outside of the main village of Pumba, East Point on Rossel Island. The complainant and her husband and their baby had been living with Chris Guwe (the complainant's husband's uncle) in his hamlet. The accused lived with his wife and infant daughter in a separate hamlet some 250 meters from Chris Guwe's hamlet across a big river. It appears that they had lived peacefully until the alleged incident on the 20th May 2015, which is the subject of this trial.

11. On the morning of 20th May 2015, the complainant's husband had gone to Jinjo village leaving the complainant and her baby with Chris Guwe. Some times after 8.00a.m. Chris Guwe went to the main village to charge his phone leaving the complainant alone in the house. Soon after that the complainant took her son and they went down to the river to bathe.

12. What happened at the river - that is to say the alleged assault and penetration of the complainant - is disputed and I will come to this later.

13. But when the complainant returned to the hamlet from the river, she was sitting beside the fire cooking some chestnuts which she had picked up earlier down by the river when the accused arrived. He wanted to borrow an axe. He took the axe and left. This was around 10.00a.m. Sometimes later, around 3.00p.m., he returned the axe. He must have startled the complainant because the complainant said "he shocked" her and so she began crying. This attracted Chris Guwe who had by then returned and was working in his garden. Chris Guwe went over and asked the complainant why she was crying and she told him that the accused "shocked" her. Guwe scolded the accused and told him to give a sign when coming into heir hamlet. The accused then left for his hamlet.

14. Three days after the alleged assault on her (Saturday 23rd May 2015) the complainant started to feel pain. On Tuesday night the 26th May 215 the pain got worse to the extent that the complainant could not sleep. She was with high fever and was severing. Her husband offered to steam her, but she refused because she could not tolerate water. She told her husband that she did not want to stay at the hamlet and asked him to take her to her parent's village. They set out for her parent's village on Thursday. On the way she took her infant to a Health Centre before they continued with their journey. They arrived at her parent's village around midnight on Friday (27th May 2015). Sensing that her daughter was not well her father gave her some herbs to drink. The complainant slept all day on Saturday (28th May). Her mother noticed her condition and asked the complainant's husband to check her. Her husband observed her injuries and asked her if they were caused by a knife.

15. The complainant finally sought medical attention at the Jinjo Health Centre on 11th June 2015 some 12 days after the alleged incident. Community Health Worker Emmanuella Kembwa who attended to her reported that the complainant was brought to the Health Centre with a history of laceration on the labia minora. Her examination revealed a wound measuring 0 .4cm (W) x 1.5cm (L) x 1cm (D) on the right side of the vaginal wall which was still bleeding during examination. The complainant was put on a course of antibiotics for 13 days and admitted to the Health Centre. She was discharged on 07th July 2015. It is accepted that the wound would have been caused by a sharp object such as a knife.

DSIPUTED FACTS

Did the accused sexually penetrate the complainant by stabbing her twice with a small knife?

16. To answer this question it is important to consider the competing evidence of the complainant and the accused as to what allegedly happened at the scene of the crime, and what happened after that at Chris Guwe's hamlet. It is to be noted, however, that what happened at Chris Guwe's house is not disputed as I have noted above. There were some discrepancies about certain aspects of the times mentioned by the witnesses, but that can be expected because the witnesses did not have watches on them and were merely reckoning time by the sun.

17. The complainant testified that after Chris Guwe left for the main village to charge his phone, birds flew into the hamlet and she took her baby into the house. She said did not want to stay in the house, though, and said she could sense that something was going to happen. So he carried her son and she walked down to the river to bathe. She carried with her a small knife. Arriving at the river she put her son down some meters away from the river bank.

18. At that moment he saw the accused. The accused grabbed her and said "I am doing this to you. If not you, it would be your brother-in-law." As he grabbed her he further said "The Governor had made many empty promises for the piggery, the chicken raising and the cocoa and coffee fermentries. All are going to one side."

19. The accused then forced her to the ground and she fell onto a rubbish heap. The complainant said she told the accused that he can't do this to her because he was not her husband. He then grabbed her knife and stabbed her two times on her vagina and left. The complainant said she did not feel any pain. She picked up three chestnuts, took her son and they returned to the house where she cooked them.

20. In cross-examination the complainant agreed that she walked some 10 meters into bush where she saw the accused standing. She further said that her mind was under the control of something, that is, some sort of an evil spell. She agreed when it was put to her that black magic is widely practiced on the island by both old and young people. She also agreed when put to her that one such practice is where someone would take on the face of another person to hide one's true identity, but maintained that it was the accused that she saw. She agreed that the accused had no reason to attack or rape her, though. She said that the accused was wearing a pair of black jeans.

21. She told the court that she begun feeling pain on Saturday and that the pain got worse the following Tuesday. She could not sleep that night. And that night the accused came and spent the night with Chris Guwe.

22. Chris Guwe testified that he had left the complainant and her son at the hamlet that morning around 8.00a.m. to go and charge his phone at the main village. He returned around 1.00pm and was working in his garden when he heard a shout. He ran back to the house and saw the accused there. He also noticed the complainant crying. He asked her why she was crying and she said "Anthony made us shock." He said he scolded the accused for startling the complainant. He said in examination in chief that the accused had come to get an axe. When asked if he was around when the accused returned the axe, Guwe said he was not as he was already out.

23. In cross examination Guwe said that the accused had gone to his house for the axe before he left to charge his phone. He did not know when the accused returned the axe. When asked in re-examination what time the accused came for the axe he said he could not tell the time and when asked further if it was in the afternoon or morning he said it was in the morning. He corroborated the complainant that the accused was wearing a pair of black jeans.

24. In cross-examination Guwe said that accused spent the night at his place on 26th May 2015. He said the accused does that often as he is well known to him.

25. The accused testified that on the morning of the day in question he and his wife had cooked food for their daughter. After feeding their daughter, he told his wife that he will go over to Chris Guwe's house to get an axe as he wanted to split some logs to search for grubs. This was around 8.00a.m. When he arrived at Chris Guwe's hamlet, he greeted the complainant and Guwe and sat down on a stone under the house. Chris Guwe asked him if he wanted something and he said he came for the axe. He showed him where the axe was - under the kitchen - and then gave him some betel nut to chew. After chewing his betel nut, the complainant got the axe and returned to his hamlet. After arriving back at his hamlet, he and his wife and daughter went the garden where he started looking for grubs by splitting logs. After they had collected enough they returned to their house. His wife cooked the grubs and then they had their breakfast.

26. After breakfast the accused said he went to cut logs in his garden, accompanied by his wife and daughter. His wife put their daughter under a banana tree with her toys and she started to weed the garden. After sometime, when it became too hot, he stopped work. He called to his wife and they returned to the house, and then went down to the river to bathe. They returned to the house, had their lunch and then rested.

27. At around 3.00p.m. the accused said he went to Guwe's house to return the axe. When he arrived he could not see anyone so he called out and the complainant answered from the kitchen where she was with her baby. He told her that she had come to return the axe. She told to put the axe in the same place where he had picked it up from. He thanked her and then returned to his hamlet.

28. In examination in chief and cross examination the accused vehemently denied attacking the complainant. He denied having any grievances against the distribution of funds and projects by the Governor whom he said is related to him. He acknowledged the common practice of black magic which he said is practiced mostly in secret by the elderly. He agreed that people can be put under a spell and someone can take on another person's identity. He said that he did not have any grievances against the complainant nor did she have any against him. He said he was wearing a pair of brown sportswear that day without a shirt.

29. He also denied spending that night at Chris Guwe's house on the 26th May 2015. He said that was the day he was bashed up at his hamlet and taken down to the Village Court at Jinjo. He appeared in the Village Court on 27th May 2015 for mediation and eventually brought to Misima Police Station on 04th June 2015.

30. So did the accused assault the complainant by the river and did he stab her twice in her vagina?

31. The State alleged that the accused stabbed her vagina through her underwear. No evidence was, however, led to that effect so that allegation remains unproven. Notwithstanding that, is the complainant's evidence that it was the accused who attacked her in the manner she described sufficient to lawfully convict him?

32. Apart from the complainant's evidence and that of the accused, there was no eye witness to the alleged crime. There is no dispute that the complainant sustained a laceration to the inner wall of her vagina - the labia minora. There is therefore no question of penetration because as we have seen from the definition of "penetration" all that is required for penetration to be complete is the slightest entry into the vagina by any body part or object.

33. Now, there are certain aspects of this case that seem out of the ordinary. First, the complainant said she was stabbed twice on her vagina. Merriam-Webster Dictionary defines the verb "stab" as "to wound (someone or something) with a pointed weapon (such as a knife)” or "to quickly or suddenly push a pointed object into or toward someone or something." (www.merriam-webster.com) A stab is therefore a quick, jerky thrust at someone or something with a weapon.

34. To stab a delicate organ such as a vagina will definitely cause some serious wound depending on the amount of force and the instrument used. I have had the occasion to hear expert evidence on the delicate nature of the vagina in The State v Francis Ino (2013) N5184, a case involving similar circumstances as the current case. There, it was alleged that the accused had pushed a 10cm x 2cm double-edged knife into the complainant's vagina after he had sexually penetrated her with his penis, thus inflicting a wound to her cervix from which the complainant immediately and profusely bled.

35. Expert evidence was led attesting to the delicate nature of the vagina and the vaginal walls. The vagina is in a collapsed state, which, with its own lubrication can accommodate objects like a penis or a baby.

36. In that case the knife was allegedly inserted right in to the vagina and into the cervix. Despite the fact that there was in fact a laceration in the cervix, I dismissed the matter because, among other things, I found it hard to believe that given the collapsed state of the vagina even after intercourse, and the fact that a 2cm wide double-edged knife was used, no collateral injury was caused to the vaginal walls.

37. In the present case, the accused is said to have stabbed the complainant twice on her vagina with a knife, inflicting a laceration on her labia minora. The labia minora or the inner lips of the external female genitalia, is very delicate and the slightest application of force there with a sharp object such as a stab with a knife, would definitely cause some laceration and bleeding. If the complainant was stabbed twice, as she says, we would naturally expect two stab wounds or lacerations. The medical report, however, showed one laceration only.

38. This brings up two possible hypotheses - first, there was only one stab wound inflicted, and, second, the second stab was delivered with such precision that the tip of the knife entered the same wound that was inflicted by the first stab.

39. The second hypothesis is hardly plausible given the fact the attacker would not have had the time, but even if he did, he would have had the skill of a trained surgeon to execute such an act with such precision. In all probability, the laceration would most like have been caused by a single stab or cut by a sharp instrument.

40. The complainant also said that she was under some sort of a spell. This began at the house when the birds flew in and when she immediately sensed that something was going to happen. And she said she was under some sort of evil spell when he saw the accused down by the river. While, this is not evidence that is admissible as proof of the accused's guilt, it is nonetheless, a belief that the complainant had, and given the society from which she comes, which believes in the supernatural and sorcery, such a belief would have obviously influenced her mind into believing what she said she saw. That, however, does not prove that it was the accused who attacked her by the river that morning. She said she did not feel any pain whatsoever after she was stabbed and that she only started feeling pain after three days.

41. For the sake of argument, if we were to say that she was under that spell, was it possible that she was still spell-bound when she returned to the house. If she was, then, there is a possibility that the first person she would have seen when she regain her senses, was the accused when he came around to return the axe.

42. So having come out of the state she was in, and seeing the accused, is it possible that she would have immediately assumed that it was the accused who had attacked her? If I am to believe the complainant, I would say that for some reason she was disillusioned that morning and her recollection of events may have been blurry and inaccurate.

43. Now, the most puzzling thing about the complainant's evidence is that for someone who was stabbed twice on her vagina, she did not feel pain or bleed at all at the time she was attacked. This, as I remarked during submissions, seems to be a medical impossibility. The laceration was 0.4cm wide, 1.5cm long and 1cm deep. That to me is quite a big wound and obviously for a wound that size, it would have bled instantly at the very least. How the complainant did not bleed or feel pain is beyond me.

44. Chris Guwe did not see anything abnormal about the complainant or her behaviour that day. He did not see her in a distressed state as one would expect from someone who had just been attacked and stabbed in her vagina. The distressed state of a complainant, in sexual offences, has always been held as corroborating her evidence of having been sexually assaulted. And even though corroboration is no longer required for offences of this nature, the complainant's behaviour after the alleged event would have gone a long way into bolstering her case.

45. But, what about the complainant's and Chris Guwe's evidence that she was shocked by the accused's sudden appearance at their hamlet, and that she started crying because of that? She said when asked by Guwe why she was crying that the accused "shocked" them, that is, her and her child. Did she mean that the accused startled them? And why was she shocked? This point was not taken any further when she was examined in chief.

46. On this point it is worth noting that Guwe was not present when the accused returned the axe at around 3.00p.m. that afternoon. So, if Guwe was indeed present when the accused arrived at his hamlet unannounced, and thus startling the complainant, it would follow that this would have been in the morning before Guwe left to charge his phone. The accused testified that Guwe was present when he went over to get the axe that morning. Guwe was, however, not around when he returned the axe. There is a possibility then that this incident happened before the complainant was attacked down by the river.

47. Taking the arguments a little further, was the accused's behaviour that of somebody who had just committed a horrendous assault on the complainant? Why would he show his face at Guwe's place so soon after committing the offence? Why did he come to spend a night at Guwe's place on Tuesday 26th May 2015, if we are to believe the complainant and Guwe?

48. A reasonable man who had just committed a crime in these circumstances would have kept his distance or kept well away - at least for some time - from the complainant, her husband and Chris Guwe. It is against logic and common sense that a guilty man would have behaved in the manner that the accused did after his alleged attack on the complainant.

49. There is no doubt that the complainant sustained a laceration on her labia minora. There is no question that the laceration was caused by a sharp object. And there is no question that there was penetration of the vagina - the female genital tract which extends from the vulva to the cervix and outer and inner labia (labia majora and labia minora). Hence the slightest entry of any object (penis included) into the vaginal tract or organ is sufficient to complete penetration.

50. What is unclear, though, and not proven on the required standard, is that it was the accused who sexually penetrated the complainant with her own knife. Based on the above and the many unanswered questions surrounding the circumstances under which the accused could have committed this crime, I must unfortunately find that the State has not proven its case beyond reasonable doubt.

51. Therefore I return a verdict of Not Guilty, acquit the accused and order that he shall be discharged forthwith.

Ordered accordingly.
_________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor : Lawyer for the Accused