State v Ron [2019] PGNC 221; N7933 (25 July 2019)

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CRIMINAL LAW – trial of two charges of rape, in circumstances of aggravation – Criminal Code, Sections 347(1, (2) – denial of incidents by accused – whether accused sexually penetrated the complainant – whether complainant consented – circumstances of aggravation

The accused was charged with two counts of rape, in circumstances of aggravation, under Sections 347(1) and (2) of the Criminal Code. He was an off-duty police officer and the complainant was an adult female detained in custody at the police station at which the accused is based. The State alleged that on two occasions over a period of three or four hours in a secluded part of the police station, the accused sexually penetrated the complainant without her consent. The complainant gave evidence of the incidents, which was supported by that of another female detainee who said that she saw the accused take the complainant away and that the accused made threatening statements. There was also evidence of a prompt complaint being made by the complainant to her uncle and a visit to the hospital with a report of rape and a medical report. The accused gave evidence and denied that such incidents took place. His evidence was supported by a police colleague who was on duty, and the accused’s wife who said that she was with the accused at the relevant time and a medical report suggesting that no spermatozoa were present in the complainant’s vagina, suggesting that sexual penetration had not taken place. The central issues were whether the State had proven beyond reasonable doubt in respect of each alleged incident that the accused sexually penetrated the complainant, without her consent, and if those matters were proven, whether the offences were committed in circumstances of aggravation.

Michael Balbal v The State (2007) SC860
The State v Anton Kumak (1990) N835
The State v Bikhet Nguares Paulo [1994] PNGLR 335
The State v James Yali (2005) N2988
The State v Kewa Kai [1976] PNGLR 481
The State v Polikap Lakai (2007) N3153
The State v Stuart Merriam [1994] PNGLR 104

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

1. CANNINGS J: The accused, Frank Ron, is charged with two counts of rape, in circumstances of aggravation, under Sections 347(1) and (2) of the Criminal Code. He was an off-duty police officer at Jomba Police Station, Madang, at the time of the alleged offences on Friday 4 August 2017, while the complainant, M, was an adult female detained in custody at the police station. The accused pleaded not guilty so a trial was held.

2. The State alleges that on two occasions in a period of three or four hours in a secluded part of the police station, the accused sexually penetrated the complainant without her consent. It is alleged that the first incident occurred at about 3.00 pm, the second incident occurred at about 6.00 pm. The complainant gave evidence of the incidents, which was supported by that of another female detainee who said that she saw the accused take the complainant away and that the accused made threatening statements. There was also evidence of a prompt complaint being made by the complainant to her uncle and a visit to the hospital with a report of rape and a medical report.

3. The accused gave evidence and denied that either incident took place. His evidence was supported by a police colleague who was on duty, and the accused’s wife who said that she was with the accused at the relevant times and a medical report suggesting that no spermatozoa were present in the complainant’s vagina, suggesting that sexual penetration had not taken place.

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

“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.

7. 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). In this case, the indictment alleges that there were in respect of each count circumstances of aggravation: the accused “was in a position of trust and authority in that he was a police officer and [the complainant] was a detainee in police custody”.

“Circumstances of aggravation” are defined by Section 349A (interpretation) of the Criminal Code:

For the purposes of this Division, [Division V.7, (sexual offences and abduction)] 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).

8. A relationship of trust, authority or dependency (referred to in Section 349A(e)) is defined by Section 6A(2) (relationship of trust, authority or dependency):

A "relationship of trust, authority or dependency" includes, but is not limited to, circumstances where—

(a) the accused is a parent, step-parent, adoptive parent or guardian of the complainant; or

(c) the accused is the complainant's grandparent, aunt, uncle, sibling (including step sibling) or first cousin; or

(f) the accused is a counsellor or youth worker acting in his professional capacity; or

(g) the accused is a health care professional and the complainant is his q patient; or

(h) the accused is a police or prison officer and the complainant is in his care and control [emphasis added].

9. As the accused denies that the alleged incidents took place, both elements of the offence in each count on the indictment need to be proven beyond reasonable doubt. The defence does not concede that if either offence is proven, the offence was committed in circumstances of aggravation. So the issues are, in respect of each count, whether the State has proven beyond reasonable doubt:

If either (a) or (b) is not proven, the accused will be acquitted and it will be unnecessary to consider (c). If (a) and (b) are proven he will be guilty of, at least, rape under Section 347(1). If (c) is also proven he will be guilty of rape in circumstances of aggravation under Section 347(2).

11. Four witnesses gave evidence for the State, as summarised in the following table.

No	Witness	Description
1	Merolyn Steven	The complainant
She was locked up in the police cell at 2.30 pm – there were two other ladies detained with her – the accused came to her and told her to come outside the cell, which she did, then he led her to an unused toilet room – he told her to sit on the toilet bowl – he instructed her to suck his penis, which she did as she was scared – he then told her to lie on the floor, which she did even though it was wet – he penetrated her vagina with his penis – he told her to stand up and keep quiet, and not to say anything, then he left – she did not agree to any of those acts. She stayed in the room for about 3 hours, she stayed quiet as she was afraid, there was no electric lighting in the room, only a small window through which natural light came – then he returned – he instructed her to bend over and hold on to a piece of iron, which she did – he again penetrated her vagina with his penis – she gave in to him as she was scared – he told her she was free to go – he left, then she left the room. She went outside, taking with her the accused’s mobile phone, which he left behind in the room – she reported the incidents to a policeman (she does not know his name) outside the police station, and gave him the accused’s phone – he told her she would be given a lift to Sisiak, where her work supervisor lived – she went to Sisiak in a police vehicle, reported the incidents to her supervisor – she stayed the night at Sisiak – she went to her uncle’s house the next morning – she told her uncle (Michael Maburau, State witness #3) what happened – then on the same morning she went to Modilon General Hospital and got a medical report. She identified the accused, Frank Ron, as the person who raped her twice. In cross-examination she denied asking to use the accused’s phone or using it – she denied seeing other police walking past the cell, to collect their electoral allowances – the accused ejaculated inside her vagina, on both occasions – the room she was in did not have a lock that was working, the door had to be pushed hard to open it – she denied making up a story to cover up her escape from custody. In re-examination: she tried to open the door after the accused left her but it was too strong – the accused walked into the room first and she followed him, as that is what he told her to do.
2	Jerina Alex	Female detainee
She had been detained in the lockup for about two weeks by the time that the complainant was brought in – she met her there – she (the witness) was washing her hands and the complainant was inside the cell, standing at the gate, when the accused Frank (who she already knew as he would often come to her market to buy betel nut) came and opened the gate and took the complainant out – she saw the two of them walk in the direction of a toilet room – she did not see the complainant again – after a while Frank came towards her and told her that he had ‘taken her from the back’ and she had gone out, and he could do the same with her – from those statements the witness inferred that the accused was telling her that he had had sex with the complainant and so he had released her from custody, and that if she (the witness) had sex with him, she would also be released – when he said that to her, she called out to the “Bossman” [the station-in-charge], Alex. In cross-examination she stated that she did not know the complainant before she was brought into the cell that day – when she called out to the Bossman, he came down from his office upstairs – she told him what Frank had just said to her – she did not see Frank give the complainant his mobile phone.
3	Michael Maburau	Complainant’s uncle
He was at his house in Madang town, preparing to go to church, on the morning of Saturday 5 August 2017 when his niece, the complainant, came, looking worried – she told him that she had been locked up in the police cell the previous afternoon when one of the policemen took her out of the cell and into a dark room in the police station and raped her – he told her she should go to the hospital for a medical check, but not to wash first – he met her later that day and she said that she had been to the hospital and would go back on Monday to pick up her report. In cross-examination he explained that when his niece had come to see him she had her supervisor with her, and they had come from Sisiak.
4	Dr Wendy Sapau	Modilon General Hospital, Obstetrics & Gynaecology Dept
She did not prepare the medical report, prepared by Dr Verave that was adduced in evidence (exhibit P2), nor had she examined the complainant at any time – she explained the terms used in the report – it was only a preliminary report – the absence of tears and abrasions is common for women who have given birth or who are sexually active – an inflamed vagina could also be due to an infection – the absence of sperm does not necessarily mean that penetration has not occurred: it could mean the male was using a condom or was sterile or had another similar defect of some sort – semen-like fluid can sometimes be a vaginal discharge.

12. Two exhibits were admitted into evidence as part of the State’s case: the accused’s record of interview (exhibits P1A (Tok Pisin original) and P1B (English translation)) and a medical report (exhibit P2).

13. In his police interview, the accused answered all questions. He denied having sex with any female at the police station on 4 August 2017. He said that he was at the police station at various times that day, as he had been into town in the morning and called in at the station on his way back to his residence at the police barracks. While he was there, a female detainee called out to him and asked if she could borrow his mobile phone to ring her relatives. He gave her the phone and went to the barracks, where he heard that the police were being paid their electoral allowances (for extra duties during the 2017 general election) so he went back to the station. He got the keys from a colleague and went inside the cell to retrieve his phone from the female detainee. When he saw her she asked to come out so she could use the toilet. He led her to the toilet inside the police station. He went upstairs to collect his allowances. He got angry when he realised the amount of deductions made, and went back to the barracks. He added: “I didn’t get my phone from this suspect; she brought it with her into the toilet.”

14. The medical report was by Dr Ovoi Verave, Obstetrics & Gynaecology Registrar, Modilon General Hospital. It was reported that the complainant presented at the hospital at midday on 5 August 2017 for a medical examination and report, alleging that she had been sexually assaulted by a police officer at Jomba police station the previous day. The report stated:

On examination, 20 yrs old Melanesian female, appeared kempt but very anxious and depressed. There were no signs of any external injuries.

On vaginal examination, the vagina, vulva and perineum appeared slightly inflamed. There was semen-like fluid at the vaginal introitus and perineum. She had not washed after the incident. A high vaginal swab specimen was taken to test and confirm for presence of spermatozoa. There was no tears, no abrasions and no bruises. On the anus, it was intact and there were no abrasions, no tears nor any lacerations.

To conclude, the history and physical examination findings are consistent with recent sexual penetration.

15. Five witnesses gave evidence for the defence, as summarised in the following table.

No	Witness	Description
1	Frank Ron	The accused
He was not on duty on 4 August 2017 but he called into the police station at various times – when he went there between 10.00 and 11.00 am the complainant called out to him from the cell and asked if she could use his phone to call her parents – he lent her his phone and told her he would go to the barracks and come back and pick it up – he went to the barracks and came back 20 or 30 minutes later to collect his electoral allowances – he got the key to the cell door from his colleague, Constable Ryell Mangrave, and opened the door and signalled to the complainant to bring his phone – instead of giving him his phone, she asked to go outside the cell to use the toilet (as there is no separate toilet for women in the police cell) so he let her come outside and then she went to the toilet, which was inside the police station near the duty counter – he stood there waiting almost 45 minutes for her to come out of the toilet – then he went upstairs to collect his electoral allowances. He stood in the queue for 20 or 30 minutes, then when he saw what he had got he noticed some big deductions – he was very angry about that and rushed home, forgetting about his phone – he saw his wife Daphne, gave her K600.00, and kept K100.00 to buy beer – he purchased 18 cans at Mildas Market and went back home – he drank 12 cans over a period of several hours while his wife cooked – he got drunk and then slept to the next morning. He did not realise that his phone was missing until he awoke the next morning and his wife asked him where it was – he told her that he had lent it to a female detainee. In cross-examination he said that his wife asked him a lot of questions about the missing phone – he collected his allowances between 1.00 and 2.00 pm, by 3.30 pm he was at home – he denied sexually penetrating the complainant.
2	Ryell Mangrave	Police Constable
He was on duty, on the 8.00 am to 4.00 pm shift, manning the duty counter with his colleague, Constable Jessie Mon, when another colleague, the accused, Frank Ron, approached him and asked for the cell key so he could get his phone – he gave Frank the key – this was at 1.35 pm, he knows that was the time as he was on Facebook at the time – he did not go with Frank to the cell but he observed him going into the cell – he then saw a female detainee walk out and go to the toilet – this was not unusual as there is no separate toilet for females in the cell and females often come out into the main part of the station and use the toilet that is used by police officers – Frank returned the key after three or four minutes and went upstairs to collect his allowances. In cross-examination he stated that although it was a Friday and the police station was very busy he saw the complainant go to the toilet by herself and he saw the accused go upstairs to collect his allowances – he denied that he was too busy attending to complaints and too busy on Facebook to notice whether the accused had gone with the complainant into the toilet or any other room in the station.
3	Daphne Mela	The accused’s wife
On the day in question her husband went into town early – he came back between 10.00 and 11.00 am and stayed for 30 minutes and then left again – he came back in the early afternoon, after getting his election allowances, and gave her K600.00 – they went to the market together, she went to the store and bought food and he went to the bottle shop and bought beer – they went back to their room and he started drinking – they remained in the room for several hours, telling stories – they did not go out – she prepared a meal, they ate, she watched a movie on her computer – he drank 12 to 14 cans of beer and went to sleep around 9.00 pm. The next morning she asked him where his phone was and he replied that he had left it with a female detainee at the police station. In cross-examination she agreed that she asked her husband many questions about the missing phone and was angry with him – she denied giving false evidence about the times that her husband was with her on Friday afternoon – she denied that he arrived home after 8.00 pm and that before then he was at the police station.
4	Gibson Winston	OIC, Pathology Laboratory, Modilon General Hospital
He has been in charge of the pathology laboratory since 2011 – sexual assault cases are given priority – records of all tests and lab results are kept in a log book – results are sent back to the clinician requesting the test – he checked the log book [which the witness had with him when giving his evidence, but it was not adduced in evidence] which revealed that test results for a high vaginal swab, registered in the name of the complainant, were made available on 14 August 2017 – however, there is no record of when the request was submitted – Dr Toraso is authorised to have access to all the lab results – however, he notes that the report produced by Dr Toraso (exhibit D1) does not cite any lab number. In cross-examination the witness stated that test results for a high vaginal swab usually have a 24 to 48 hours return time, so it seems that the request in this case would have been made around 13 August 2017 – the results would have been sent back to the clinician – he does not know when Dr Toraso asked for the results. In re-examination the witness was asked whether it was proper for Dr Toraso, an emergency specialist, to produce the report (exhibit D1) – the witness replied that he thought it was inappropriate in the circumstances.
5	Dr Steven Toraso	Emergency Physician, Modilon General Hospital
He is the senior emergency registrar at the hospital, in charge of the Accident and Emergency (A & E) Department – he prepared his report (exhibit D1) after the accused, Frank, came to see him in January this year, showed him the interim report of Dr Verave (exhibit P2) and asked him if the final results of the lab test on the high vaginal swab could be made available – he noted that the interim report referred to a high vaginal swab, so he requested the lab result, then prepared his report – the police would have been given the lab result if they had asked for it – the normal protocol at the hospital is that rape victims first come through A & E, then they are referred to O & G. Asked to comment on the interim report (exhibit P2), Dr Toraso stated: all vaginas are not the same, inflammations to the vagina, vulva and perineum can happen any time, vaginal secretions are “housekeeping matters”, semen-like fluids can be normal vaginal secretions and it cannot be concluded that because of the inflammations, rape had occurred. In cross-examination Dr Toraso agreed that test results would normally be returned to the requesting clinician within 24 to 48 hours, but it was not unusual for the log number not to appear on the test result as the lab technicians only provide the results requested – he agreed that Dr Verave has more specialist qualifications in O & G than him, but she is junior to him – he agreed that he was not involved in the examination or care of the complainant and that Dr Verave was closely involved, but emphasised that her report was inconclusive without the lab results. Asked where he hails from, Dr Toraso stated that he is from Enga and Jiwaka Provinces – he is not related to the accused, who is also from Enga.

16. The defence adduced one exhibit: the report by Dr Toraso, dated 12 February 2019 (exhibit D1), referred to in his evidence, which states:

Ms Steven was seen at the Accident & Emergency Department on the 4^th August 2017 after she alleged that she was sexually assaulted by a policeman whilst she was at the police cell for a different allegation against her. She was examined by the Gynaecologist and high vaginal swabs were taken from her vagina for laboratory analysis for evidence of sperm. An interim medical report was written at the time of examination dated 6 August by the Gynaecologist pending the laboratory results of the sperm analysis.

In conclusion the laboratory investigation shows there were no evidence of Sperm presence in the High Vaginal Swab taken for laboratory analysis.

This report is for the purpose of explaining the laboratory test results only.

Has the State proven beyond reasonable doubt that the accused sexually penetrated the complainant in the first alleged incident, at about 3.00 pm?

17. This is the critical issue and I approach it by taking two important principles into account. First, as I pointed out in The State v James Yali (2005) N2988, in a rape case it is not a simple matter of deciding who to believe. The accused cannot be convicted only on the basis of suspicion or belief on the part of the court that he sexually penetrated the complainant without consent. The court’s task is, rather, to determine, having weighed all the evidence, whether it is satisfied to the required criminal standard of proof – beyond reasonable doubt – that each element of the offence exists. If there is a reasonable doubt as to an element, the court is obliged to acquit the accused.

18. Secondly, there are special rules to apply arising from the fact that the evidence of the complainant is not directly corroborated. Prior to 2003 the general practice was that the court was required to warn itself of the dangers of entering a conviction for rape based on the uncorroborated testimony of the complainant. The practice was consistent with the position at common law, the rationale being that rape is a serious charge, easy to allege and difficult to refute (The State v Kewa Kai [1976] PNGLR 481, The State v Anton Kumak (1990) N835, The State v Bikhet Nguares Paulo [1994] PNGLR 335).

19. Nowadays the opposite is the case: not only is the Court not required to warn itself, it is not allowed to. Section 352A of the Criminal Code (corroboration not required) states:

On a charge of an offence against any provision of this Division, [Division V.7, (sexual offences and abduction)] a person may be found guilty on the uncorroborated testimony of one witness, and a Judge shall not instruct himself that it is unsafe to find the accused guilty in the absence of corroboration. [Emphasis added.]

20. The accused has been charged with an offence under Section 347, which falls within Division V.7. Therefore Section 352A applies. “Uncorroborated testimony" is defined, in relation to an accused person, by Section 1(1) to mean “testimony that is not corroborated in some material particular by other evidence implicating him”. The principles of evidence to apply perforce of Section 352A are:

21. The complainant is the only witness to testify that she observed what happened. The only other person present was the accused. The charge is therefore based on the uncorroborated testimony of one witness, the complainant. I remind myself, in accordance with Section 352A of the Criminal Code that a conviction is still possible and that the prosecution still bears the onus of proving the elements of the offence beyond reasonable doubt. I do not instruct myself that it is unsafe to find the accused guilty in the absence of corroboration.

22. Having applied those principles and weighed the competing evidence and the submissions of counsel, I conclude that the State has proven beyond reasonable doubt that the accused sexually penetrated the complainant. I draw that conclusion for the following reasons:

23. The complainant impressed me as a person who was telling the truth. Her demeanour was sound. Her evidence was clear and credible and straightforward. There was no equivocation in her answers. Defence counsel Ms Ephraim cross-examined her vigorously but she did not waver.

24. Jerina Alex, the detainee, was an impressive State witness. Her evidence did not directly corroborate the complainant’s evidence (as she did not see what happened when the complainant left the cell in the company of the accused) but it was consistent with the complainant’s evidence and provided indirect corroboration as to the complainant being taken out of the cell by the accused and the complainant being away for a long time and the complainant not being given the accused’s mobile phone. Her evidence that the accused indicated to her that he had had sex with the complainant and let her go and that she should have sex with him also, so he could let her go, was given credibly, and provided further indirect corroboration of the complainant’s evidence.

25. 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 Lakai (2007) N3153).

26. This was a case of a prompt complaint as on the night of the incidents the complainant went to see her work supervisor, and the next morning she reported the incidents to her uncle. He was an impressive witness and his evidence of the complainant reporting to him the next morning on what had happened the previous day, supported the State’s case. There was also uncontradicted evidence that the complainant went at midday that day to the hospital and underwent a medical examination.

27. The initial examination of the complainant by Dr Verave and the report Dr Verave prepared (which was explained by Dr Sapau, a very impressive and helpful witness) were not conclusive evidence of the allegation that the complainant had been raped, or even that she had been sexually penetrated. However, the evidence nonetheless supported the State’s case as it demonstrated that the complainant presented herself to the hospital as a rape victim and that her appearance, demeanour and physical condition supported the allegation that she had been sexually penetrated without consent by a man.

28. The demeanour of the accused in the witness box was the opposite of that of the complainant. He gave the clear impression that he was not telling the truth.

29. Though his evidence was consistent with the story he told the Police, reported in the record of interview, his version of events was not credible. Why would he lend his mobile phone to a detainee that he did not know, allow her to use it, leave it with her while he went home to the barracks, and then forget to get it back from her?

30. Ryell Mangrave was an unimpressive witness. He gave the impression of seeing his role as giving evidence that would exonerate the accused. His evidence of being able to recall the precise timing of events on the day in question, because he was on Facebook at the time, was perplexing, given that he also gave evidence that the police station was busy and he was manning the duty counter.

31. The accused’s wife was another who seemed to see her role as being to give evidence that as far as possible was consistent with her husband’s and to present him with some sort of alibi. Her demeanour was poor. Her evidence was unimpressive.

Gibson Winston, the OIC of the hospital laboratory, was a good witness in that he appeared to be objective and truthful. However, he should have been asked to check his log book more carefully to rule out the possibility that there was more than one test result for a high vaginal swab on the complainant, given that the initial examination of the complainant by Dr Verave occurred on 5 August, and there is usually a 24-48 hours turnaround time, yet the results on which Dr Toraso based his report were made available on 17 August. This seemed an inordinate lapse in time, which was unexplained.

32. The evidence of Dr Toraso was inconclusive. The defence strategy was evidently to demonstrate that when the complainant presented at the hospital on 5 August, the day after the alleged incident, there were no spermatozoa detected in her vagina, and this supported the defence case that no sexual penetration took place, and contradicted the complainant’s evidence that she was penetrated and that the accused ejaculated inside the vagina. However, the evidence of Dr Toraso is problematic as it was not clear (in view of the extended period between when the complainant’s swab was taken, 5 August, and when the results were available, 17 August, and the absence of any cross-referencing between the swab and the test result) that the result on which he based his report was of the swab taken on 5 August. Dr Toraso also did not appear to be an independent witness. He is from the same province as the accused and, although he stated that they are not related, gave the impression, eg by calling him “Frank”, that he knew the accused well. Also it seemed strange that he, the A & E Registrar, would prepare a report 18 months after the event, on such a matter, and this was capable of giving rise to an impression that he was doing it as a favour for a friend or wantok. Furthermore, Dr Sapau’s evidence supports the proposition that absence of spermatozoa neither confirms nor refutes the allegation that penetration occurred. Penetration, and ejaculation inside the vagina, can occur without detection of spermatozoa. It must also be said that the medical and laboratory management of this case, from beginning to end, seems to have been inadequate and slipshod. I consider that Dr Toraso’s evidence is of no probative value.

33. It is conceivable that the evidence of an apparently honest and convincing complainant would be rejected if the complainant were shown (not necessarily proven) to have some motive to lie. Ms Ephraim ran an argument that the complainant made up the rape allegation to cover up the fact that she had escaped from custody. But there was no evidence that she escaped, or even that the accused or his police colleague thought she escaped. There was no evidence that she had any grievance with the accused or that she has any other reason to make up the story and pursue the matter with police and subject herself to cross-examination. There was no plausible explanation for her giving false evidence.

34. I agree with Ms Ephraim’s submission that there were some gaps in the State’s case, which could have been filled by a more thorough investigation and prosecution. Ms Ephraim emphasised that there was no evidence as to which police officer arrested the complainant and detained her in custody and what time she was detained. There was little evidence of what became of the accused’s mobile phone, other than the complainant saying that she gave it to the police officer who gave her a lift to Sisiak after she was released from custody. Who was that police officer? He was not described, named or identified. Who was the supervisor who the complainant went to at Sisiak? This person was also not described, named or identified. Why did Dr Verave not prepare a final medical report? Why was it left to the defence to present Dr Toraso’s report, which suggested that the complainant had not been penetrated? These are valid points but ultimately I have concluded that the State has proven its case beyond reasonable doubt, and that the gaps in its case are not material.

35. Yes. The State has proven beyond reasonable doubt that the accused sexually penetrated the complainant.

36. I accept the complainant’s evidence that she did not give full and voluntary agreement to being sexually penetrated by the accused. Absence of consent has been proven beyond reasonable doubt.

COUNT 1, ISSUE (c): WAS THE OFFENCE COMMITTED IN CIRCUMSTANCES OF AGGRAVATION?

37. The fact that the accused was a police officer who was not on duty when he committed the offence means that there is an argument to say that the complainant was not “in his care and control” for the purpose of the definition of a relationship of trust, authority or dependency in Section 6A(2) of the Criminal Code. I find, however, for all intents and purposes, that the fact that he was a police officer and was in a police station, combined with the fact that the complainant was a detainee at that station, gave rise to a relationship of trust and authority between the accused and the complainant. In any event the definition in Section 6A(2) is inclusive, and I find that in the prevailing circumstances a relationship of trust and authority existed. I am further satisfied beyond reasonable doubt that the accused abused that position of trust and authority.

38. The State has proven that the accused committed the offence of rape in circumstances of aggravation under Sections 6A(1) and (2)(h) and 349A(e) of the Criminal Code.

39. The State has proven beyond reasonable doubt the two elements of rape under Section 347(1) and has also proven beyond reasonable doubt that the offence was committed in circumstances of aggravation under Section 347(2). I find the accused guilty of count 1, as charged.

40. I accept the complainant’s evidence that the accused penetrated her a second time, in the late afternoon, in the same room he penetrated her earlier. Ms Ephraim submitted that identification of the accused by the complainant was questionable as there was no electrical lighting in the room and the complainant would not have been able to see who was in the room with her. This is a weak argument. I accept the complainant’s evidence that she was in no doubt as to who was penetrating her a second time.

41. There is no reason to reject the complainant’s evidence that for the second instance of sexual penetration, she did not consent.

COUNT 2, ISSUE (c): WAS THE OFFENCE COMMITTED IN CIRCUMSTANCES OF AGGRAVATION?

42. Yes, the same circumstances of aggravation have been proven for count 2, as they were proven for count 1.

43. The State has proven beyond reasonable doubt the elements of rape under Section 347(1) and has also proven beyond reasonable doubt that the offence was committed in circumstances of aggravation under Section 347(2). I find the accused guilty of count 2, as charged.

44. Frank Ron, having been charged with two counts of rape in circumstances of aggravation under Sections 347(1) and (2) of the Criminal Code, is found guilty as charged.

Verdict accordingly.
_____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused

National Court of Papua New Guinea

State v Ron [2019] PGNC 221; N7933 (25 July 2019)