State v Bilak [2018] PGNC 401; N7541 (30 October 2018)

N7541

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. N0. 1812 OF 2016

THE STATE

V

JOEL BILAK

Kokopo: Susame, AJ
2018: 24^th, 25^th, 26^th & 30^th October

CRIMINAL LAW – Offence – Rape – S 347(1) Criminal Code (Sexual Offences And Crimes Against Children) Act 2002 – Issue – Whether Sexual Intercourse Was None Consensual – S 347A Consent Considered

Held:

I consider it is very important that to amount to rape in the various situations prescribed in s 347A there must be evidence of victim taking some real action to escape from the possible rape situation when opportunity became available but was prevented from it or she had attempted to take some action but was in a real tangible way prevented from taking such an action. Just remaining so passive without doing anything to help herself particularly in a similar situation as the one under consideration is not enough.

Cited Cases

Counsels

Miss. Batil, for the State
Mr. Pulapula, for the Accused

DECISION

30 October, 2018

1. SUSAME, AJ: Accused was charged with sexual penetration of Susan Orawiru without her consent pursuant to s 347(1) of Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.
   
2. The offence is commonly known as rape.
   

Offence of Rape

347. DEFINITION OF RAPE.

[110](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.

347A. MEANING OF CONSENT.

[111](1) For the purposes of this Part, “consent” means free and voluntary agreement.

(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 the 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 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.

(3) In determining whether or not a person consented to that act that forms the subject matter of the charge, a judge or magistrate shall 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 on an earlier occasion, he freely agreed to engage in another sexual act with that person or some other person.

Facts

3. The following are the facts alleged. On 2 May 2016 between 12pm and 1pm the accused met Susan Orawiru (prosecutrix) at Elirana Electronic School, Kokopo. The prosecutrix had just arrived in the province to attend the school. It was her first day at the school. Accused was an employee at the school and met her on the school ground. He told the prosecutrix to follow her into Kokopo town in the pretext of touring the place. She refused but the accused insisted and she followed him into town. In town they got on a PMV and went to Warangoi. They got off the bus at Warangoi and accused took the prosecutrix into the bushes near the Warangoi River Bridge. By force he introduced his penis into her vagina and sexually penetrated her without her consent.
   

Evidence

4. State’s evidence comprised of documents, oral testimonies of two witnesses and uncontested documentary evidence tendered by consent tabulated below.
   

NO.	DOCUMENT	DATE	LABEL
1.	Statement of Berlin Tololo	5/6/16	A
2	Statement of Veronica Pagur	5/6/16	B
3	Medical Report	2/5/16	C
4	Dr. Felix Diaku’s affidavit	21/7/16	D
5	Rec. of Interview (Pidgin)	25/7/16	E1
6	Rec. of interview (English)	25/7/16	E2
7	Statement of Elijah Turana	23/5/16	F

5. Defence relies on accused oral testimony. Accused admitted he had drank the other night and odor of alcohol was in his breath. He saw the prosecutrix sitting outside alone and he went sat down and told stories with her. He admitted she was not her girlfriend but had seen her in school on the day of enrollment. He told her to go to class but she was ashamed. She stayed outside because she was a new student. Accused invited her to go to his house and she agreed. So they walked to Papindo Market. From there they got on a bus got into town and were dropped off at the market. There they walked to Echo Trading. Accused walked on ahead and she followed. At Echo PMV stop they got on a bus and went up to Warangoi.
   

Established facts

6. Prosecutrix was quite new to the province and was not familiar with the place. She had arrived from home province of Autonomous Region of Bougainville to enroll at Elirana Electronic School at Takubar in Kokopo Town in February 2016. She came and resided with her elder sister Joyce Donald at Kenabot. She enrolled and classes commenced in April 2016. She was at the school on 2 May 2016. She was waiting for the Director when the accused saw her. He went over to her and struck a conversation with her. Accused was a stranger to her. He asked the prosecutrix to accompany him to Takubar market next to Papindo Supermarket. He told her they will quickly and return back to school. The prosecutrix obeyed and followed him to the market. At the market the accused told her they will continue on into Kokopo town. They got on the bus and went into town. They got off the bus at the main town market and walked over to PMV stop outside Echo Trading. There they got on a bus and travelled to Warangoi. They got off at the market place at Warangoi and walked along the road towards Sikut. They left the main road and took a small track on the left.
   
7. After the alleged act of sexual penetration was committed they walked back. On the way accused went down to wash in the Warangoi River. The prosecutrix went and stood by a certain mini mart when it rained. She left the mini mart and went and took shelter at the market. There an elderly woman who was the mother of accused’s current wife came and got cross at her.

She got on a bus and made her way back alone into Kokopo. She got home late at around 5pm and her sister questioned her. She told her what had happened to her. That evening her sister and husband brought her to Vunapope Hospital where she was medically examined.

Competing versions

8. The Allegation by the State is that accused forced her and took her into Kokopo from the School. He took her to Warangoi. In the bushes the accused removed her clothes and sexually penetrated her without her consent. Then accused told her to go into the bush but she refused. Accused held her hand and took her into the bush. Inside the bush accused removed her clothes. Then he removed his own clothes. There accused sexually penetrated her by introducing his penis into her vagina. She felt pain as it was her first time to have sex. She did not call out but just cried. She could not run away as there were no houses.
   
9. Defence version is that prosecutrix agreed to follow accused to Kokopo and then to Warangoi. As they were crossing the Warangoi River bridge accused told her to have sex and she agreed. They rested under a shade. There they wanted to have sex so prosecutrix removed her skirt and he assisted her and removed it. Accused removed his trousers and as they were about to have sex prosecutrix told her she was scared. Accused told her to put on her skirt. They dressed up again and walked back.
   

Issues

1. Whether prosecutrix by exercise of her free will consented to following the accused?
2. Whether sexual penetration was consensual?
   

Defence arguement

10. Ms. Pulapula advanced these arguments. Firstly, Complainant would have seen the accused at the school. He was never a stranger to her. Secondly, it is not logical for a person in his right state of mind to follow a complete stranger on his own free will to an unknown location being new in the province. Thirdly, complainant was not a credible witness. Her demeanour was that she took long time to answer questions and appeared confused.
    

Prosecution’s argument

11. Miss. Batil’s line of arguments are these. Firstly, accused was under influence of alcohol. He really wanted to have sex with her as he used to tell her he wanted her. Complainant was a vulnerable person, easy to persuade, easy to fool, was new in the Province. Accused took the opportunity to lead her to Warangoi and raped her there.
    
12. Secondly, accused’s demeanor in court was not consistent with someone telling the truth. He spoke in a low voice and pausing at times in answering questions. He had to be guided through questions. Thirdly, most of the versions of the accused’s story was not put to the complainant during cross examination for her to respond. This was in breach of the Browne v Dunne Rule. Accused version should be given less weight.
    

Assessment of evidence

13. Susan Orawiru gave evidence she was waiting for the Director who had gone into town. He told her to wait for him. Court has not been told of the reasons she wanted to see the Director. Accused came and saw her at 12 noon. He came and talked to her asking her to accompany him to go to the Papindo Market. She said the accused told her they will go there quickly and return to the school. She said she had seen the accused once during enrollment. Though he was not her boyfriend. Accused gave similar evidence. She had seen Susan on the school grounds. But they were not friends.
    
14. The inference I draw from this evidence is that both of them were not in a boy girl relationship. They had previously seen each other on the school grounds. They were not really strangers to each other in that sense except that they were not too familiar with each other.
    

When accused invited her to accompany him to the market she refused at first. Accused insisted on her and she agreed and went along with him. Instead of returning to the school accused told her they will continue into town. Accused got on the bus and told the prosecutrix to get on. There were no threats held out to her or force used to get her on the bus.

15. There was no obligation for Susan to follow him into town for two reasons. She could have realized accused was up to something when he deviated from his earlier representation to her and told her to continue into town. She also knew she had an appointment to see the Director and that Director had told her to wait for him. If that meeting was of no importance to her she got on the bus with the accused and came into town.
    
16. They arrive in town and got dropped off at the town market. Again, there was no reason for Susan to continue to follow the accused to Echo. The opportunity was there for her to refuse to follow him and walk back to Kenabot to her sister’s residence where she was living. There was no reason for her to be scared. Members of the public would have come to her aid if accused attempted to use force or threats on her. Instead she followed the accused to Echo bus stop to catch a bus to Warangoi.
    
17. Again when she realized accused was going to Warangoi opportunity was available for her to refuse and stay back. There was force exerted on her or threats held out to her at the bus stop. Instead she obediently got on the bus with the accused and both travelled up to Warangoi.
    
18. At Warangoi Susan did not protest against accused taking her there. She followed the accused all the way to the spot where the alleged sexual penetration occurred. Susan never protested at any time or called out for help.
    

Finding on issue No.1

19. Both accused and Susan have similar attributes. They are soft spoken. They spoke in low voice in answering questions. Both were obviously bashful when giving evidence. That is not uncommon in sexual offences cases.
    
20. Much of the facts were not in contention. Much of accused version of facts were put to the prosecutrix. There may have been omissions by the defence in breach of the Browne v Dunn Rule. But, what is of importance is the onus of proof never shifts to the accused. It remains always with the State to proving guilty. It is therefore incumbent on the State to adduce evidence which is compelling and convincing in obtaining a conviction.
    
21. Evidence before the court is lacking there was force or threats of violence used or applied for complainant to follow the accused from the school to Warangoi.
    
22. Susan was then a young 21 year-old lass. She was not a minor. Accused was a young guy about the same age as her. Accused had a sexual inclination towards her. He approached her and struck up a conversation with her, telling her how he felt towards her. Susan being a young teenage girl realized accused had a crush on her. Without any real protest and refusal, she willingly followed the accused.
    
23. Susan appeared to be a soft spoken timid young lass. That should not be good a reason for her not to do something within her power to help herself. There was nothing stopping her from simply walking off from him when opportunities became available at three different locations in town. In that respect I endorse the defence argument that it would be against logic and commonsense for any young girl of complainant’s age to follow some guy who is almost a stranger to her. Unless she had an inclination towards him and willingly accepted the invitation to accompany him. That was clearly demonstrated by the prosecutrix.
24. The answer to issue one posed above is in the negative. The conclusion reached is that prosecutrix had in the exercise of her free will accompanied the accused from the school to Warangoi.
    
25. Next is consideration of evidence on the act of sexual penetration. Accused gave evidence they rested under a shade. There they wanted to have sex and they entered the bush. There prosecutrix removed her skirt and he assisted her in removing it. Accused removed his trousers and as they were about to have sex prosecutrix told her she was scared. They did not have sex and accused told her to put on her skirt. They dressed up again and walked back. On the way accused went down to the Warangoi River to have bath.
    
26. Prosecutrix gave evidence accused forced her and took her into Kokopo from the School. He took her to Warangoi. Accused told her to go into the bush but she refused. Accused then held her hand and took her into the bush. Inside the bush accused removed her clothes. Then he removed his own clothes. There accused sexually penetrated her by introducing his penis into her vagina. She felt pain as it was her first time to have sex. She did not call out but just cried. She could not run away as there were no houses around the area.
    
27. Joyce Donald (Susan’s sister) gave evidence Susan got home late and was crying. She was questioned by her sister and she told her of what had happened. Later in the evening she took her sister to Vunapope hospital where she was examined by a doctor. The doctor who examined her swore an affidavit and prepared a medical report marked exhibits C & D.
    

Medical Report

28. The report is uncontested and was tendered into evidence by consent. The report states patient was shy and less cooperative but she was in pain. Examination of the genital vulva was done. Significant findings were creamy vaginal discharge but no active bleeding. There was vaginal tear at 6.00 o’clock as evidence of sexual penetration.
    

Finding on Issue No. 2

29. Recent evidence of a sexual complainant goes to credibility of witness Susan in respect of the act of sexual penetration. Findings by the doctor in the Medical Report adds support to the prosecutrix evidence.
30. That said though, evidence before the court is lacking accused had used real threats or force when they rested under the shade and in the bush when they had sex. Susan had willingly followed the accused to Warangoi knowing all along accused wanted her and want to have sex with her. It was a situation where one asks and receives what he had asked for.
    
31. I have considered the definition of rape and consent provided in ss. 347 and 347A. Needless to say prosecution’s evidence does not convincingly establish or prove any one of the situations prescribed in s 347A.
    
32. I consider it is very important, to amount to rape in the various situations prescribed in s 347A there must be evidence of victim taking some real action to escape from the possible rape situation when opportunity became available but was prevented from it or she had attempted to take some action but was in a real tangible way prevented from taking such an action. Just remaining so passive without doing anything to help herself particularly in a similar situation as the one under consideration is not enough. Suffice to say adverse inference can be drawn favourable to the accused.
    
33. Opportunities were available to the prosecutrix at three different occasions for the prosecutrix to make up her mind to flee or simply walk off from the accused and walk home. Members of the public were around. Law abiding members of the public would have come to her aid if the accused became abusive or threatening.
    
34. Complainant was a willing partner to the act which was consensual. The consensual act was made to look like a forced one bordering on rape because of these reasons. Accused mother in law caught them both at Warangoi. She confronted the prosecutrix and scolded her. That the guy she was with was a married man. She had told her she will come with guy’s wife and see her at school. It dawn on her then she was in real trouble. She obviously got home late with mix feelings. When her sister questioned her why she was late, she became emotional and told the sister of what had happened. She did that to shift the blame on the accused and get her sister to sympathize with her and come to her defence.
    
35. The end result of the discussions is that the answer to the second issue is also in the negative.
    
36. In conclusion court holds that evidence is lacking from the State to prove beyond doubt allegation of rape. Evidence in court suggests otherwise sexual penetration was consensual. Accused is entitled to the benefit of doubt. Accordingly, court returns a not guilty verdict for the accused.
    
37. Accused is discharged. His bail monies to be refunded to him forthwith.

_______________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused