State v Ben [2019] PGNC 211; N7941 (17 June 2019)

N7941

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. N0. 1026 0f 2017

THE STATE

V

PATIMOS AHU’U BEN

Lihir: Susame, AJ
2019: 11, 17 June

CRIMINAL LAW – Offence Of Rape –S347 (1) Criminal Code

Cases Cited:

Nil

Counsels:

Mr. L. Ragan, for the State
Mr. A. Tunuma, for the Accused

DECISION ON VERDICT

17 June, 2019

1. SUSAME, AJ: Accused, Patimos Ahu’u Ben is accused of sexual penetration of a woman named Seri Peni without her consent. The alleged rape occurred on 29 November 2016 in the bush when she went to gather food items from the garden at Hurtol village.

Offence

2. The offence is found in s 347(1) of the Criminal Code. For the court to find Patimos guilty of the offence State is required to prove beyond all reasonable doubt that:

• Patimos sexually penetrated Seri
• By inserting his penis into her vagina
• Seri never consented to the act.
  

3. State relied on Seri and husband Ephraim Melshar sworn statements and other documentary evidence including record of interview and photographs of the victim tendered by consent. Accused relied on his own unsworn statement taken in the dock.

4. There is no issue with respect to the act of sexual penetration. Patimos had admitted to sexually penetrating Seri. Court therefore finds that he had sexually penetrated Seri Peni by inserting his penis through her vagina. The only remaining issue to determine is whether the act was consensual. Court has heard and considered the oral submissions from the counsels.

Findings

5. Seri gave her account of how the rape occurred. She was going to the garden alone and Patimos followed her. He asked her to have sexual intercourse with him but Seri refused him because both of them were married and it was against her conscience to do such a thing. Patimos grabbed her and placed his knife over her body and wrestled her to the ground. He slapped her and sexually penetrated by her inserting his penis through her vagina. Photographic evidence show Seri with injury to her right eye and scratch marks below her neck.

6. She told Patimos he will report what had happened to her husband. Patimos left after raping her. She was sad and cried and went back to the house after gathering her food items from the garden. The husband was away at Lipuko village.

7. When the husband returned 3 days after on Friday night Seri reported the incident to her husband. The next day the couple reported the matter to village policeman Peter Marum.

8. Patimos gave unsworn statement in the dock. His brief version is that Seri sent her small son Ellison Karabu to go tell him to follow her. He then followed her into the bush and both had sexual intercourse by consent. After having sex both chewed betelnut and they separated. His unsworn statement will be given such weight as it appears in comparison with the prosecution evidence. However, unsworn statement from the dock does not have the same weight as sworn testimony because an unsworn statement is never tested through cross-examination. (R v Ulel [1973] PNGLR 254.
9. I also took particular attention of Patimos’ explanations in the record of interview. His explanation in court was completely different from what he told the police investigators. (Answers to questions 11-17). In questions 44, 47 & 52 he actually made admission of his guilt and was quite apologetic in committing the offence.

10. State witnesses were subject to cross-examination. Their evidence was tested. Seri decided against reporting the matter to the leaders and policeman in the village because she was ashamed. As a married woman and the mother of 07 children one could imagine the emotional pain and embarrassment she had to go through of having been raped. The only person she trusted and felt an obligation to report the incident was her husband other than other persons. That is what she exactly did when the husband returned on Friday 03 days after the day the alleged offence was committed. I am sure had the husband been present Seri would have immediately reported the rape to him. The next day the couple reported the matter to village policeman Peter Marum. I consider that as a recent complaint more reliable. Had the act been consensual Seri would have kept it secret and not tell her husband.

11. There is no plausible reason for Seri to just make up a case against Patimos. Being a married woman she was hurt and felt bad about the rape committed on her when the husband was away.

12. As the husband Ephraim was angry when the wife related to him the incident. Natural tendency of most Papua New Guinean husbands would be to immediately go look for the perpetrator. If Ephraim had taken that course there may have been a possible confrontation. He decided against that and reported the matter to the village police for the law to deal with the conflict. And the law encourages people to do that rather than people taking the law into their own hands.

13. There may have been some discrepancies in the Seri‘s evidence. I consider the inconsistencies are not crucial and fatal on the issue of consent. I do not hold Seri as an unreliable and untruthful witness. I have observed her demeanour. There is more credibility in her evidence. I have also observed the demeanour of the accused person. He was never confident and impressive. His unsworn evidence does not carry any weight at all. He was merely fishing around for reasons to justify the wrong he knowingly committed.

14. It follows from the discussions Seri never consented to Patimos sexually penetrating her. Rather, it was a forced act against her will.
15. State’s evidence is convincing for me to safely enter conviction against the accused person. Accordingly court returns a guilty verdict.
__________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner