State v Max [2020] PGNC 326; N8544 (9 September 2020)

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CRIMINAL LAW - trial - verdict - prisoner charged for rape pursuant to s. 347(1)(2) Criminal Code as amended - followed complainant from market - threatened her with a knife - forced her into a banana patch - removed her clothes - sexually penetrated her - without consent - heavy vaginal bleeding - taken to hospital for treatment same day - the prisoner and complainant related to a common aunt - complainant knows prisoner - prisoner denies knowing complainant's face

John Beng v. State [1977] PNGLR 115
Luingi Yandasingi v The State [1995] PNGLR 268
John Jaminan v. The State (No.2) [1983 J PNGLR 13
Legislations Cited

Section 347(1)(2) of the Criminal Code as amended
Section 347A of the Criminal Code Act.
Counsel

on one count of rape pursuant to section 347(1)(2) of the Criminal Code, as amended. It is alleged that on the 29 day of April, 2016 at Tokua, East New Britain Province, you sexually penetrated Roselyn Breman without her consent by introducing your penis into her vagina, and in the circumstances, you caused injuries to her vagina.

Facts

5. The State alleged that on 29^th April 2016 between 1 pm and 2 pm, at Tokua, Bitapaka, Kokopo in East New Britain Province, Roselyn Breman was returning from the market, walking along the road heading to her home. Behind her, she did not know that you were walking (she knew you because you both live at the area). To her surprise, you quickly approached her and grabbed hold of her hand. You pulled her into the bushes. She tried to remove your hold off her, but you were too strong. She tried to scream but you covered her mouth with your hand. You pushed her to the ground, removed her clothing and sexually penetrated her by introducing your penis into her vagina. You were rough which thus caused her pain. You left after having sex with her. She laid there on the ground feeling dizzy and weak. She laid there for a while to regain her strength. When she did, she got up, wore her clothes, and walked slowly to her house. She was bleeding heavily so the same night, she was taken to Vunapope Hospital where she was examined and treated.
6. The State alleged that your actions contravened section 347 (1) (2) of the
Criminal Code in that you sexually penetrated the complainant without her consent and in the circumstance, she sustained injuries in her vagina and had to be brought to the hospital.
7. You are charged with aggravated rape pursuant to section 347 (1) (2) of

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

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

(ii) Whether there was a circumstance of aggravation during rape?
Evidence by consent

(i) Statement of Myra Rerevate (Policewoman F/Constable) S1 (Corroborator) dated 10/06/16
(ii) Statement of Veronica Pagur (Policewoman F/Constable) S2

(iii) Affidavit of Dr. Felix Diaku of St Mary's Hospital, Vunapope S3 dated 21 June 2016

(v)	Record of Interview (Pidgin version) dated 19 May 2016	S5
(vi)	Record of Interview (English version) dated 19 May 2016	S6
(vii)	Statement of Cecelia Unia (Pidgin version) dated 5/5/16	S7
(viii)	Statement of Ceclia Unia (English version) dated 5/5/16	S8
(ix)	Statement of Maryanne Ambrose (Pidgin version) 2/05/16	S9
(x)	Statement of Maryanne Ambrose (English version) 2/05/16	S10

13. The State's evidence comprises of documentary evidence tendered into evidence by consent and the oral testimony of the complainant, Roselyn Breman.

14. The victim testified that she is married and has 6 children. She is from Lop in the Wide Bay area in East New Britain Province. She left her village in 2011 and came to live with her uncle and aunt at Tobrutue, at Tokua. She lived there for 7 years.

15. She recalled the 29 February 2016 as a Friday. She was living at Tokua at the time. On that day, she went to the market at Tokua airport. She usually go there to do marketing. The market is about 2 km away from the house she lived in with her uncle and aunt.

16. On that day, she took off to the market at around 6am. She went there on a bus by herself. She did her sales until 2pm and was trying to return home when she saw you following her to the bus stop. You approached her with a short (kitchen) knife in your hand. She wanted to scream but did not when she saw the knife in your hand. You came to her and stood right behind her, almost skin to skin, held onto her hand and led her into the banana patches.

17. In the banana patches, you pushed her onto the ground. You then put a bearing onto your penis and sexually penetrated her by pushing your penis into her vagina. She bled from her vagina as a result of the sexual penetration. She wanted to scream and run away but she did not because of the knife you held. She said there were no houses nearby.

18. After you had had sex with her, you left her. She laid there and then got up and whilst still bleeding, she went home.

19. At home, she was scared and ashamed of telling her uncle and aunt until blood kept flowing from her vagina and she needed to be taken to the hospital. Only then did she tell her aunt about the rape and they took her to the hospital.

20. In cross-examination, the complainant was asked about the number of children she had and the number of men who fathered these children. She answered that she has 6 children from her previous marriage. She was asked repeatedly about this and she replied that she had those six children from her former husband, and she has none from her current husband whom she married in 2019.

21. She maintained her story of how you had followed her from the market on that day of the incident. She said that you followed her to the road with a knife in your hand. You held her hand and you both walked away. She said that there was a distance between the marketplace and the bus stop.

22. When asked by the defence counsel if she had some common understanding with you to walk together with her, she disagreed. She maintained what she said earlier that when her marketing was over that afternoon, you came after her as she was leaving.

23. She maintained that you told her to go with you and at the same time, she saw the knife you were holding so she went with you into the banana patch. She denied that you stood far from her when you told her to go with you into the banana patch. She said that you both stood together, and you pushed her into the banana patch.

24. Defence referred her to paragraph 2 of her statement where she had stated that she did not know that you were following her from behind, when you came and grabbed hold of her hand and you held a small knife at the time but during examination in Court, she gave evidence that you followed her from behind and you held a knife. Defence asked her which version was a true account of what had happened and she responded that you held a knife and followed her. When asked if the story that she told the Court that you held a knife is a lie, she maintained her story and said you did in fact hold a knife and followed her.

25. Defence asked the complainant about paragraph 3 of her Statement, where she stated that after you raped her and left her at the banana patch, she was again sexually penetrated by another man but she could not recognize him because she was dizzy and weak. She replied that she did not say this. She only stated that after you had left her, blood was flowing, and she got up and went home. She was asked which version was a lie and which one was true, and she did not respond.

26. The complainant was also asked about how you put the bearing on your penis before you sexually penetrated her and she responded that after you put the bearing on your penis, he pushed her down and had sex with her. When told it is impossible for you to put a bearing on your penis at that time as such is usually done through surgery, the complainant responded that you had a bearing on because when you had sex with her, you caused thick blood to flow.

27. When asked if she would not have told her aunt and uncle if the bleeding stopped, she replied that she was scared her uncle would assault her if they found out that she was raped so she did not tell them sooner. When asked if she was scared because she had done something wrong by sleeping with a man in the banana patch, she said that she was scared and ashamed because you were her aunt's nephew.

28. When put to her that it was not you whom she saw at the Tokua market and it was also not you who raped her in the banana patch, she maintained that it was you. It was daytime and she saw you at the market, sitting under the frangipani and she recognized you then and you are the same person who raped her at the banana patch.

29. In re-examination, she was asked if she had consented to having sex with you and she said 'no'.

30. The Court enquired about whether she usually walk home alone, and she said that she usually got on a bus. She was asked why she was walking home that day and she replied that she was trying to go to the bus stop when you walked after her and confronted her. She was asked what you said to her and she responded that you told her to walk with you into the banana patch whilst you were holding a knife. She was asked as to when she saw the knife and she said that it was when you followed her to the bus stop.

31. She was asked about the bearing as to whether she saw you put the bearing on your penis and she answered that you turned facing the banana patch and put on the bearing and that she saw you place the bearing on your penis.

32. Finally, she was asked if she saw anyone else after you had raped her and left, and she said 'no' and that you were the only one.

33. Defence evidence consists of your sworn evidence and the prior inconsistent Statement of the complainant tendered into evidence and marked as Exhibit "D1".

34. In your oral evidence, you indicated that you are from Taui No. 2 Village, Bitapaka LLG and you live at Tapo. Apart from Taui, you said that you usually go to Tokua where your block of land is and attend to your tasks there, but you always return home on the same day. You gave evidence that you are married to one Ashwin Billy and apart from your wife, you have no other relationship.

35. You heard the complainant's testimony in Court and denied her story. You said that you usually go to the Tokua market when you need items like tobacco. You denied holding a knife and following the complainant that day. You also deny taking her into the banana patch and placing a bearing on your penis prior to sexually penetrating her.

36. You admitted being related to the complainant's aunt, but you do not know where they live. You further denied knowing the victim by face before the alleged incident, but you said that you knew she was living with your aunt. You also said that you do not know why the complainant would make up a story that you raped her.

37. In cross-examination, the State asked you about the complainant's version of the story of how you led her from the road to the banana patch and you denied all that she said.

38. You also denied being at the Tokua airport market on 29 April 2016. You denied sitting there and watching the complainant and then following her when she was leaving the market that afternoon. You denied holding a knife and placing a bearing on your penis, and you denied raping the complainant in the banana patch.

39. You were referred to your Record of Interview where you stated in Question and Answer no. 27 that you knew the complainant. You responded that you cannot recall saying that. You were also referred to your response at the Committal Court when section 96 District Court Act was applied where you had stated "she consented" but you denied in Court ever making that statement.

40. You were asked by the Court of your whereabout on 29 April 2016 and you said that you were at home at Tapo.

41. Both you and the complainant are related to the aunt with whom the complainant was residing with at the time of the alleged offence. It is unknown as to how each of you are related to that aunt as none of you gave evidence of any blood relationship or otherwise.

42. You denied committing the offence outright. You denied raping the complainant in your evidence-in-chief and you maintained this denial all throughout cross-examination, thus denying being at the scene of the crime and sexually penetrating the complainant with a knife to threaten her at the time.

43. Before we delve any further, let me discuss if you were correctly identified. The State cited John Beng v. State [1977] PNGLR 115, where the Supreme Court held that:

"In proceedings where evidence of identification is relevant, the Court should be mindful of the inherent dangers. There is no rule of law that the evidence of one witness is insufficient, nor is there a rule of law that there must be a police parade for purpose of identification, nor is there any rule of law that in every case warning

ought to be given (to the jury); it all depends upon the circumstances of the case before the Court."

44. As to the quality of identification, the State also cited Luingi Yandasingi v The State [1995] PNGLR 268 where Supreme Court stated various factors that established quality of identification as:

(c) the distance between the witness and the accused at the time of the incident.

(d) Whether there was any object which may have obstructed the view of the witness.

45. To prove the quality of your identification, let me discuss if the above factors are established in this case. Firstly, the complainant in this case knew you before the trouble. You are her aunt's nephew. She lived at Tokua for 5 years before the offence occurred and she often saw you at the Tokua airport market whenever she went there to do her marketing. However, you gave evidence that you knew she lived with your aunt but you do not know her face.

However, in Question and Answer no. 27 of your Record of Interview, you said that you knew the complainant.

46. Secondly, the complainant stated clearly in her evidence, and repeated herself in cross-examination when she was interrogated, that the alleged rape occurred in broad day light. It was about 2pm at the time.

47. In relation to the third and fourth factors, this is an offence which involves physical and intimate contact between the two parties immediately before and during sexual intercourse. The incident occurred in broad daylight and the complainant was neither blind or blindfolded nor her vision impaired in any way. There was little distance and no obstacles between her and you at the time of the alleged rape. There is therefore no issue with identification.

48. Now, onto proving the elements of rape. The complainant testified clearly in her evidence in Court that you pushed your penis into her vagina and had sex with her. She had to repeat herself several times when telling her story in Court. The first 2 elements of the offence of rape are hence, satisfied.

49. As regards the last element, the meaning of consent is free and voluntary agreement pursuant to section 34 7 A of the Criminal Code Act. All throughout her oral testimony in Court, both in examination-in-chief and cross -examination, the complainant gave evidence that you held a knife, when you approached her on the road and when you both proceeded into the banana patch. She did not freely follow you nor did she voluntarily agreed to have sex with you. Thus, the final element of the offence of rape is established.

50. The complainant's lack of consent is supported by the medical report where the injury she sustained was so serious. The doctor concluded that the history presented by the patient of being raped was consistent with the physical examination he did.

51. Because a circumstance of aggravation is pleaded on the indictment, that circumstance must be proven. The complainant sustained serious injury to her vagina. The Medical Report (Exhibit S4) is clear on that. She was seen the same day, examined, and found to have sustained a vaginal tear (5cm long x 0.5-lcm deep), actively bleeding and was immediately taken to the operating theatre. She was diagnosed as having a high vaginal tear/laceration, hypovolemic shock, and anaemia. Amongst other treatment, she was given a blood transfusion and pain killer medications.

52. As to the inconsistency in evidence, in your Record of Interview with the Police in Exhibits S5 and S6, you admitted knowing the complainant and you mentioned where she lived but in Court you said that you did not know her by face and where she resided.

53. In a typical village setting, where family relationships are close and everyone is known by name and face, I find it unusual for you to deny knowing the complainant by face, especially when she is living with your aunt.

54. Further, your response at the Committal Court when section 96 District Court Act was applied was "she consented" but you now deny making that statement.

55. Before trial commenced, you attempted to adduce alibi evidence by serving the State with a Notice of Alibi two days prior to trial but the Court refused your request to call alibi evidence. You alone gave evidence that you were at home at Tapo Village on the day of the alleged offence, which was 29 April 2016. You never mentioned your whereabouts in your Record of Interview nor at the Committal Court when you had the opportunity. You had engaged your counsels since 9 May 2016 when the Record of Interview was conducted but you failed to mention an alibi until two days prior to trial.

56. In John Jaminan v. The State (No.2) [1983] PNGLR 13 regarding a belated claim of alibi, the Supreme Court said:

" ... the alibi was delayed or belated and that reduces the weight to be given to it. The accused failed to give it when questions by the police initially or later at the District Court committal. A trial judge should not infer guilt because the accused remained silent on those earlier occasions. The accused has a right of silence, but mindful of that, a trial judge is entitled to say that the lateness of the alibi reduces its weight."

57. By producing a Notice of Alibi at the eleventh hour, it denotes your last--minute attempt to save you and also shows your consciousness of guilt.

58. Although you appear as a strong witness, the inconsistencies in some of your evidence in Court and from the Committal Court depositions instils doubt as to whether you were truthful or not. There is also no evidence that put you elsewhere on the day the offence was committed.

59. Further, you also did not take any issue with the medical report dated 12/05/16 by Dr Felix Diaku where the victim was diagnosed for high vaginal tear/laceration, hypovolernic shock, anaemia and sexual penetration resulting in virginal tear (my underline). This was consistent with the history presented by the complainant and this evidence remain undisputed.

60. There is however, one part of the complainant's evidence that I will not accept. That is where she said that she saw you placing "bearing" on your penis. The bearing she was referring to is from vehicles. Hence, she testified that the bearing put on your penis caused severe bleeding from her vagina.
61. I accept your submission that it is against common sense for a person to add bearing onto his penis right before sex. It was established during trial that a bearing, or any other substance attached to a penis is done through surgery or other process of body modification, often prior to having sexual intercourse, and cannot be immediately before having sexual intercourse. This piece of evidence is clearly against common sense and is illogical.

62. The other evidence I will not accept is that in her Statement, she said there was another man who sexually penetrated her after you. However, she denied in Court that there was another person. Hence, that part of evidence is disregarded.

63. Based on the analysis of evidence, I find that on 29 April 2016 you were at Tokua, Bitapaka, Kokopo and you sexually penetrated the victim that day without her consent. The reasons for this finding are these. Both you and the complainant have a common aunt. The complainant saw you at Tokua airport market on that day and she also saw you following her before you threatened her with a small knife and then forcefully sexually penetrated her during broad day light at about 2pm. You have not stated in the Record of Interview or anywhere else that you were elsewhere on that day and so your last-minute attempt of an alibi was refused by the Court. You also said in your statement at the Committal Court that "she consented" although you denied saying such comment during trial in this Court.

64. I also find that there is a circumstance of aggravation where the complainant sustained serious injury to her vagina because of a vaginal tear which caused heavy bleeding and she had to be given a blood transfusion with pain killer medications.

65. Therefore, I am satisfied beyond reasonable doubt that the State has proven each element of the offence you committed, and I find you guilty of the offence.
_______________________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused

National Court of Papua New Guinea

State v Max [2020] PGNC 326; N8544 (9 September 2020)