State v Oka [2019] PGNC 300; N7964 (29 July 2019)

N7964

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 79 OF 2018

THE STATE

V

EDWARD OKA

Esa’ala, Alotau: Toliken, J
2019: 22, 23 May & 29 July

CRIMINAL LAW – Particular offence – Aggravated Rape – Trial –Accused sexually penetrated victim without consent – Armed with bush knife –Issues threat to victim before and after the act – Accused need not use or threaten to use offensive or dangerous weapon –Mere possession of offensive or dangerous weapon or instrument sufficient to complete offence –Criminal Code Ch. 262, s 347C.

Cases cited:

Nil

Counsel:

A. Kupmain, for the State
N. Wallis, for the Accused.

JUDGMENT ON VERDICT

29^th July, 2019

1. TOLIKEN J: On 22^nd May 2019, at the Esa’ala sittings, the accused Edward Oka pleaded not guilty to an indictment charging him with the aggravated rape of one Julie Edward on the 16^th of August 2017 in contravention of Section 347C(a) of the Criminal Code Ch. 262.

2. The State had alleged that on the date in question, the complainant was walking back from school along the bush track when she was accosted by the accused. The accused was armed with a grass knife. He grabbed the complainant by the hand and dragged her into the bushes threatening to cut her neck if she resisted. The complainant was crying and begging him to let her go, but the accused pushed her to the ground, removed her clothes and sexually penetrated her by inserting his penis into her vagina without her consent.

3. After sexually penetrating the complainant the accused threatened to cut off her neck if she reported the matter to anyone. The complainant, however, went straight home and reported the incident to her brother.

4. The complainant was 15 years old at the time of the alleged offence.

5. Section 347C of the Code relevantly provides for the offence of aggravated rape in the following terms:

347C. Aggravated rape.

Any person who sexually penetrates the vagina or anus or such other body part of another person with any body part, object or implement, without consent —

(a) whilst armed with a dangerous weapon or offensive weapon or instrument; or

(b) In company of one or more other persons, or

(c) Causes grievous bodily harm to a person before, after or in the cause of the offence, or

(d) If the victim is a child under 10 years,

is guilty of the crime of aggravated rape and shall be sentenced to death.

6. For the State to secure a conviction for the crime of aggravated rape it must prove the following elements beyond a reasonable doubt –

1. The Accused
2. Sexually Penetrated the complainant’s vagina ,anus or mouth
3. With his penis , other body parts or object or implement
4. The complainant did not consent
5. At the time of the commission of the offence the accused was armed with the dangerous weapon or offensive weapons or instruments.
   

7. The accused in this case traversed or generally denied the charge hence, the issues for my determination are:

1. Whether the accused sexually penetrated the complainant’s vagina with his penis
2. Whether the complainant did not consent
3. Whether the accused was armed with a grass knife.
   

8. The State’s case consisted of the oral testimonies of the complainant and her brother Sylvester Edward, the accused record of interview, and the statement of the Arresting officer, Chief Sergeant Iapeta Natapu and Corroborator Wendy Amokos which were tendered by consent.

9. The accused testified on oath but did not call any other witnesses.

10. I have heard the evidence and heard submissions by counsel and I’m convinced by the evidence of the complainant.

11. I find that on the afternoon of the date in question, about 3:30pm, the complainant, who was 15 years of age, was returning home from school. She was doing Grade5 at Bwayobwayo Primary school. She was travelling alone.

12. The accused met her on the road. He was armed with a grass knife. He grabbed her by the hand and told her not to run away and threatened to cut her with the grass knife if she tried to. He took her into the bushes where he undressed her, mounted her and sexually penetrated her vagina with his penis. The complainant put her clothes back on and the accused told her not to report the matter to anyone. He then threatened the complainant telling her to ensure that he does not meet her anywhere because if he did, he’d cut off her neck. The complainant, however, went home and told her brother Sylvester what the accused had done to her. I find that Sylvester noticed mud and dirt on the complainant’s clothing when she arrived and reported to him crying.

13. I accept and find that Sylvester wanted to retaliate, but was discouraged by the village constable Donald who advised him to go and report the matter to the police at Esa’ala. The complainant’s father eventually reported the incident to the Esa’ala police after a week.

14. I find that no medical examination was done immediately after the assault on the complainant. I accept that while there was a local Aid Post at Bwayobwayo, the Health Worker there had fled after a murder incident in the area. No medical examination was done at Esa’ala Health Centre either as the complainant presented herself a week after the assault on her.

15. The accused gave a story which I, however, do not believe. He said he had been husking coconuts some meters from the main road with his wife when the complainant passed by. He had heard people passing by and he left his wife and went to the road to check. The complainant saw him and fled.

16. The accused said that there were other students on the road that time who could have seen or heard what happened.

17. He said that the complainant had earlier that morning gone to his village to buy something at the local canteen. The complainant, however, denied this and I believe her.

18. The accused further said that he has been falsely accused of this offence because he had been disputing the over land with the complainant’s father and brother on which the complaint’s family were living on. He said therefore that there is a conspiracy between the complainant and her family members to keep him away from the land.

19. Sylvester Edward and the complainant denied that there is such a dispute, but even if there was one, and there may very well be, I am not convinced that the complainant would readily agree to such a scheme. I must therefore reject the accused’s theory of a conspiracy between the complainant and her family to manufacture a crime against the accused.

20. I am satisfied that the complainant did not consent to being sexually penetrated.

21. “Consent” according to Section 347A of the Code means “free and voluntary agreement.”It cannot be said that there was free and voluntary agreement in the circumstances under which the accused sexually penetrated the complainant. He grabbed her by the hand and threatened to cut her with his grass knife if she tried to run away. The complainant did not physically resist, but the threat by the accused effectively prevented her from doing so. Apart from the threat, I noticed that the complainant was of very slight built at the time of trial and would have been a lot smaller a year before when she was assaulted. The accused was of course bigger and stronger and would have, and indeed, easily overpowered her.

22. I have found that the accused was armed with a dangerous or offensive weapon – a grass knife and that is sufficient to complete the elements of aggravation for the charge of aggravated rape under Section 347C of the Code.

23. This is a new offence which was recently added to the Code by the Criminal Code (Amendment) Act 2013 (No: 6 of 2013) s.2) as Parliament’s response to an alarming increase in offences of violence, including sexual violence.

24. As we have seen, Section 347C provides that a person who sexually penetrates the vagina, anus or such other body parts of another person with any body parts, object, or implement without consent whilst armed with a dangerous weapon or offensive weapon or instrument, or whilst in company of one or more other persons, or causes grievous bodily harm to a person before, after or in the cause of the offence, or if the victim is a child under 10 years, commits aggravated rape.

25. It appears that where a person is armed with an offensive or dangerous weapon, nothing more than the mere act of possession of the offensive or dangerous weapon or instrument, is required to complete the offence. In other words, the accused need not even have to threaten to use it on the victim.

26. In this case the accused not only was armed with an offensive weapon – a grass knife – but also threatened to use it against the complainant.

27. I am satisfied therefore that the State has proven its case beyond reasonable doubt and I accordingly return a verdict of GUILTY.

Ordered accordingly,
_____________________________________________________
P Kaluwin, Public Prosecutor: Lawyer for the State
L B Mamu, Public Solicitor: Lawyer for the Accused