State v Kilala [2016] PGNC 372; N6610 (5 August 2016)

N6610

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.1272 OF 2010

THE STATE

V

FAITH KILALA

Kokopo: Lenalia, J.
2016: 27^th, 28^th, 29^th July& 5^th August

CRIMINAL LAW – Sexual offences – Rape – Plea of not guilty – Trial – Criminal
Code (Sexual Offences and Crimes Against Children) Act 2000.Section 347 (1).

CRIMINAL LAW – Rape – Trial – Prosecution evidence alleges rape –
Complainant’s evidence with two differing versions.

CRIMINAL LAW – Evidence – Credibility of witnesses’ evidence for the prosecution
and defence – Evidence of penetration by victim – No recent complaint – Prosecution evidence establishes consensual sex between accused and victim – Accused found not guilty.

Cases cited:

Didie v The State [1990] PNGLR 458
Peter Townsend v Goerge Oika [1981] PNGLR 12
Paulus Pawa v The State[1981] PNGLR.498
The State v Tom Morris[1981] PNGLR 493

Counsel:

Mr. L. Toke, for the State
Ms. J. M. Ainui, for the Accused

5^th August, 2016

1. LENALIA J: The accused pleaded not guilty to three counts of rape contrary to s. 347 (1) of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. On the indictment, there are no alternative charges pleaded.

Prosecution Evidence

2. The prosecution oral evidence came from the victim. The complainant and accused both come from Nonga village, Rabaul District, East New Britain Province. The victim of this case, Gosbil Tulian was at the age of 17 years when she is alleged to have been raped by the accused. She was a student attending the Malaguna Technical High School. Her evidence is that earlier that day, the accused texted her on 22^nd May 2015 with a massage that after she completed classes he was to come and pick her up at the school gate.

3. Then between 3pm and 3.30pm, the accused came to the school gate where she waited and when the accused came she got into the PMV bus that the accused was driving. He took her to Queen’s Park where he parked and they sat there for some time telling stories. In the course of their conversation, the accused asked her if they could have sex. She refused and the accused pushed her down on to the back seat and sexually penetrated her against her will. After having sex, they went for a ride and returned home.

4. On the second and third counts, on 28^th May 2015, the accused again sent a message via her mobile and told her that after she completed classes, he was to come and pick her up between 3 and 3.30pm. The accused came at that appointed time and picked her at the main school gate. They drove around town then on to Matupit hot springs then back to Queen’s Park where they parked and told stories. Somehow, the vehicle got bogged and they tried to take off but they could not.

5. It got dark and they went to the accused’s friend’s house and asked if they could sleep there. There was no space so, they got the vehicle fixed and drove up to Navunaram village. They went to a friend’s house seeking accommodation for that night. There was no space so the two of them returned to Rabaul where they went to a guest’s house where the accused asked if there was a room for them that night. Again there was no space. They returned to Queen’s Park.

6. That night, the victim said, before they slept, the accused raped her the second time. Then early in the next morning on 29^th May, the accused woke up early and woke her up. He asked her if they could have sex. She said, she refused and the accused raped her the third time.

7. In cross-examination, the victim was asked a series of questions. She was asked how she knew about the accused’s mobile number. She confirmed, what she said in chief that, she got the number from the accused’s brother. Asked if the three acts of alleged rapes were not rape as sex was consensual. She replied by saying that, on those three times the accused had sex with her, she refused but the accused forced her into having sex with her.

8. A part from the oral evidence, the State tendered various statements consented to by the defence counsel. They include:

✓ The medical report, Ex. “1”.
✓ Record of Interview – Pidgin and English versions, Ex. “2”&“2a”.
✓ Statement by Aivat Tulian victim’s father, Ex. “3”.

9. I have perused all documentary evidence. The record of interview (Ex. “2” and “2a”) conducted on 2^nd June 2015 contains evidence of an existing relationship between the accused and the victim as boy and girlfriends. The statement of the investigating officer Constable Jeffrey Lanza and Constable Francis Mavoko of Rabaul Police Station say the record of interview with the accused was conducted in an orderly manner without force, intimidation, threats or promise were applied to the accused. On the medical report, it reported absence of the hymen with vaginal and cervix were normal but there was bruising on the bilateral labia.

Defence Evidence.

10. The accused admitted in evidence that it is true he had sex with the victim on those three occasions, but it was consensual sex and not rape as alleged by the complainant. The accused gave similar evidence of what occurred between the two of them and said in chief that, the relationship between the two of them commenced in 2014. His evidence is similar in relation to offences that occurred on 28^th and 29^th May 2015.

11. It was on the morning of 29^th that month when they were on the bus stop at Rabaul town when the victim’s father found them out and he assaulted him (accused). After he had been assaulted, he was told to go to the Rabaul Police Station. The victim’s father came and laid a complaint at the Check Point. (Rabaul Police Station).

12. He said in cross-examination that, their relationship began in 2014 and they were friends, that is he was the victim’s boyfriend and the victim was his girlfriend. He said, the victim made up the allegations about rape because, she feared her father could beat her badly because, the victim was going around with him and due to the fact that her mother had passed on and the step-mother was not treating the complainant properly.

Submission by Defence

13. For the accused, Ms. Ainui submitted that, there is no issue about, whether sexual intercourse took place or not. She submitted that here was the situation where the accused and the victim had entered into a girlfriend/boyfriend relationship.

14. She submitted that, the court can infer from the evidence that, because sexual intercourse occurred more than once, it cannot be rape.

15. She asked the court to consider the evidence of the prosecution and that of the defence and the status of the prosecution evidence as to what was happening between the victim and the accused. She asked the court to consider the victim’s demeanour when giving her evidence. She asked the court to consider certain contradictions in the victim’s evidence where the complainant at stages in her evidence in chief and cross-examination where she answered counsels that what the accused did was rape but switched from there to consensual sex.

Prosecution Submission

16. Mr. Toke of counsel for the prosecution urged the court should return verdicts of guilty to the charges of rape since, the accused forced the victim to have sex on those three times alleged by the State. He argued that, this was the situation where the accused had hijacked the victim to the various destinations where he forced the victim into sex. He asked the court of return verdicts of guilty to the charges.

Law

17. Rape is a serious charge and if found guilty, it carries the maximum imprisonment term of 15 years. If the offence is committed with circumstances of aggravations, the prescribed maximum penalty is life imprisonment.

18. Section 347 (1) and (2) state:

“(1) A person who sexually penetrates a person without his consent is guilty of a crime of rape.

Penalty: Subject to Subsection (2), imprisonment for 15
years.

(2) Where an offence under Subsection (1) is committed in circumstances of aggravation, the accused is liable, subject to Section 19, to imprisonment for life.”

19. The issue on this trial is whose evidence should the court believe or accept as credible and whose is not credible: Paulus Pawa v The State [1981] PNGLR.498, see also Garitau Bonu & Rossana Bonu v The State(1997) SC.528 and The State v Tom Morris [1981] ONGLR 493 or the case of Didie v The State [1990] PNGLR 458.

20. These are sexual penetration cases where rape is alleged. I remind myself about the warnings in sexual case stated in Peter Townsend v Goerge Oika [1981] PNGLR 12, or that of Didie v The State(supra) where they say that, sexual allegations are easy to make but it is difficult to refute. I consider the fact that, the complainant’s evidence is not corroborated and I now warn myself of the danger of convicting the accused on the victim’s uncorroborated evidence.

21. The court observed the victim in court giving her evidence. She is above 17 years of age. She is no longer attending school this year because of this trouble. Looking at the nature of this case, what inferences should the court draw from the contradictory and inconsistent evidence by the complainant.

22. When the lawyer for the prosecution was examining this witness in chief, she said, during those three times the accused raped her, he pushed her down to the seat of the bus and sexually penetrated her without her consent. Then when she was cross-examined, on the first series of questions asked to her by the defence lawyer, she confirmed that, the accused raped her as she did not give her consent.

23. However, when she was further asked more questions, about the manner under which the two took to drive around in town in Rabaul then to the hot springs in Matupit, she admitted that sex was consensual. She was asked a number of times by the defence putting questions in a different way. She said, she had a relationship with the accused as a girlfriend of the accused. She was asked to confirm who gave her the mobile number for the accused. She confirmed, she got it from the accused’s brother.

24. Then in re-examination, when asked to confirm if the allegations put against the accused were made up, the complainant said, sexual intercourse was against her will. The defence evidence shows that, the accused and the victim had been friends since 2014. It is a surprise that, the accused took the victim out on those three times and they had joy-ride through the Rabaul town into the various destinations where they had sex.

25. There is no logic on the version by the prosecution evidence that, the three acts of intercourse were rape. If the first act of sex that took place on 22^nd May last year was rape, why agree to go out with the accused on 28^th to 29^th May 2015. It is not logical, why did she agree to go around with the accused when she already had already been raped? Obviously, the evidence by the victim cannot be believed. The court returns verdicts of not guilty to all the three counts of rape.

26. The accused is found not guilty and the cases are dismissed and the accused be discharged. The Court orders his bail money to be refunded to him.

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