State v Mett [2022] PGNC 114; N9525 (22 March 2022)

N9525

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CR 842 & 843 OF 2017

THE STATE

V

GODFFREY METT
Waigani: Miviri J
2022: 21^st & 22^nd March

PRACTICE & PROCEDURE – Criminal Law – Sexual Penetration with Consent S 347 (1) CCA – Sexual Penetration no dispute – Consent Raised – No Case Submission – Question of Law – Could the Accused be Lawfully convicted Prima Facie – No Obligation in Law to Prove Innocence –Evidence Of Consent – No Case To Answer – First Count & Second Count – Verdict Not Guilty – Acquitted & Discharged – Bail Refunded Forthwith.

Cases Cited:

Rape, The State v [1976] PNGLR 96
Counsel:

L. Maru, for State

L. Siminji, for Defence

RULING

22^nd March, 2022

1. MIVIRI, J: This is the ruling on the no case submission made by the defendant not to answer the two allegation of sexual penetration without consent, Rape contrary to section 347 (1) of the Criminal Code levelled at him.
   
2. That section is in the following terms:
   

“(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.

3. The Code defines what is consent and what is not consent. This is by section 347 A of the Code; “MEANING OF CONSENT.

(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.

4. The Indictment has two counts charging Firstly, Godfrey Mett of Woginara No.2 village, Wewak, East Sepik Province stands charged that he on the 26^th day of May 2016 at Kimbe in Papua New Guinea sexually penetrated one Glenda Anias by inserting his penis into her vagina without her consent.
   
5. Secondly, Godfrey Mett of Woginara No.2 village, Wewak East Sepik Province stands charged that he on the 26^th day of May 2016 at Kimbe in Papua New Guinea sexually penetrated one Glenda Anias by inserting his penis into her vagina without her consent.
   
6. The brief Facts on arraignment are that on the 21^st May 2016 the Accused who is a correctional Officer at the Lakiemata Corrective Institution compound asked for Glenda Anias mobile number through his in-law one Mathilda Lucas. At that time, he pretended to be one Frankie from Mad Fox boys from Madang. Glenda Anias is the wife of another Corrective Institution Officer. She gave her mobile number to one Mathilda Lucas after she was told that Frankie is a person involved in sorcery activities and was capable of harming her. Including her husband over the death of an inmate who had died at Lakiemata.
   
7. Mathilda Lucas gave the mobile phone number of Glenda Anias to the Accused on the 21^st May 2016. The Accused posed as one Frankie and threatened that she and her husband would die from sorcery, if she did not succumb to what he instructed her via texts that he sent to her to do. Accused used the mobile phone number 795558096 and texted the mobile number of the victim 72710851 between 3.00am and 4.00am. He advised her to switch off the security lights outside. He told her that Frankie would take the physical form of the Accused Godfrey Mett and would be in her kitchen. She went out as he texted her and found him in the Kitchen. Where the Accused forcefully took off her clothes and sexually penetrated her by inserting his penis into her vagina. She did not consent as she was afraid of him and allowed him as he did.
   
8. On that day 26^th May 2016 the accused again texted at about 9.00pm to her posing as Frankie telling her to go out to where he kept his pigs and to find Frankie who was in his physical form as Godfrey Mett there. She did and sure enough after she was escorted there and left midway, accused was there. She met him and the accused inserted his penis into her vagina without her consent having sexual intercourse with her.
   
9. The matter came to light when People at the Corrective Institution compound talked about it and it was reported to Police. Where accused was arrested and charged with offences pursuant to section 347 (1) of the Criminal Code Act of Rape.
   
10. The accused pleaded not guilty to both counts putting the state to task to prove its case. The following evidence were tendered into evidence and marked as Exhibits. Exhibit P1 was the Statement of Glenda Anias dated the 07^th June 2016. She was aged 37 years old then wife of Warder Leo Anias. She recalled that on Saturday 21^st May 2016 she visited Mathilda Lucas who told her that a person, Frankie requested for her mobile phone number. She asked who this person was and was advised that they were Mad Fox Boys from Madang who would be performing tasks in spirit. They assist in well being of who they become associated with. She received a call from an unknown number 79558096 and she texted as to the identity of who had called and got the reply that it was Mad Fox Boys. She asked Matilda Lucas by phone if she had supplied her number to the Mad Fox Boys to which she replied that She had not.
    
11. This commenced texts between her number 72710851 and that of Frankie Alias Godfrey Mett 79558096 which eventually led to sexual intercourse on the 26^th of May 2016 in the Kitchen of her house at 3.00am to 4.00am. This was after a serious of text instructing her to come out put the security lights off at the back of the house and to come out after. And to go into the kitchen where she would see Frankie in the body of Godfrey Mett. There would be a mobile phone light in the kitchen that would be him, Frankie, and she was instructed to go in there. She complied and went in there and saw Godfrey Mett in there. He told her to come and sit alongside her. He was going to speak to her about her street vendor. Then told her that when she bathed herself with lemon grass on their instructions, she should not tell anyone about it. Because once she did, she would face a severe incident and her husband will die. She was really scared.
    
12. Godfrey Mett moved closer to her and said he wanted to have sex with her. I responded No because I had my husband available. But he undone his trousers and came close to touch my body. I was afraid and tried to resist him but he forced and grabbed me. I continue to appeal to him to no avail and did not want to commit adultery. He is a man he grabbed me pressured me down took off my clothes and so I gave in because of his continuous phone threats and intimidations I permitted him and he had sex with me.
    
13. Whilst he was having sex a person came so he stood up and released his sperm outside on the ground inside the kitchen. He then got his clothes on and said we get out from there. We both walked out and stood beside the flowers and at the same time Sergeant David Kambus, same squad member of my husband came straight and detected both of us. From that point I was totally confused and did not know what happened. Sergeant David Kambus than asked me saying, who is that person at the rear? My mind began to clear and I heard a person replied and said, “Godfrey, I then turned to that person and asked who are you? He replied and said, I am Godfrey. He then walked away. Sergeant David Kambus had well identified him and also me and he walked down to his house.
    
14. On that very Thursday morning 26^th May 2016, I realized that I was already in the wrong position but my thoughts and mind not settled properly. I took off following Sergeant David Kambus down to his house. Upon reaching Sergeant David Kambus house I saw his wife Antonia Kambus standing on the veranda when I approached Sergeant David Kambus and apologised to him for what he had seen.
    
15. She deposes the second Act of Sexual penetration with the accused on that day Thursday 26^th May 2016 at night. She was escorted to the pig fence area where there was a mobile light. She went there and saw the Accused because she had received a text message earlier that he would appear in the image of Godfrey Mett. And that was what she saw there. He asked for smoke which she gave to him and he smoked. He assured her not be scared and then asked her for sex. She was scared it was a long way away from her house and she was with him alone, submitted by bending over and he penetrated in her vagina from the rear and had sexual intercourse with her. And told her to sprinkle lime over the neighbours home so that it will cool down their mind’s thoughts. She took the lime as instructed. These are the relevant excerpts of the Statement of the witness.
    
16. Exhibit P2 is the Statement of Sergeant David Kambus dated the 10^th June 2016. On the morning of the 26^th May 2016 between 4.00am and 4.30am he was at CIS Lakiemata. It was in the morning hours and he was returning from the Prisoners compound gate to his house. When he approached warder Leo Anias’s house the security lights at the back were off. Behind the house it was dark. And about 7 meters away from Warder Leo Anias house, I noticed some figures possibly two man standing underneath the betel nut tree. I stopped and clearly saw a man and woman were kissing there. I undoubtedly notice and identify one of them was Glenda wife of Warder, Leo Anias and I called out, who are you? Glenda quickly pushes the man away from her whilst the man held onto her T Shirt tightly and tore it. But Glenda managed to pull away. The man jumped and stood beside the flowers and pulled up the betel nut leaves towards him to cover his face. I shouted out and asked, who are you? Glenda replied and said its me scot. So, I asked her who is the other man hiding besides the flowers? Glenda replied and said I don’t know. Glenda heard the dogs barking and came out to check out.
    
17. I told Glenda you are lying. I saw a man jumped leaving you and hid behind the flowers. So, I called out to the man between the flowers who are you, you watch out, I will slash you with this bush knife. The man heard and in response he replied and said, I Godfrey Mett. Then he walked towards me and said Mendre, its me Godfrey. I told Godfrey Mett, I said, it’s alright I saw both of you already and I continued on walking away to my house.
    
18. After this Glenda followed me to my house and started apologising to me. My wife Anthonia David was awake at that time saw Glenda and told her that you have done wrong already. So, I told Glenda, I have nothing to discus with you, but I have something to tell my scot, Leo Anias husband of Glenda.
    
19. Exhibit P3 is statement of Antonia David wife of Sergeant David Kambus. That on the day 26^th May 2016 at about 4.39am her husband returned from Prisoner’s compound and went straight to the toilet to relieve himself. Five minutes later after my husband’s arrival, I stood at the veranda, I saw Mrs Glenda Anias walking towards my house with broken T Shirt at the top of her shoulder with morning dew dropping off from her T Shirt she wears like rain drops.
    
20. She came and started asking me about my husband David and I told her that he is in the toilet. When my husband came out from the toilet, he saw us, (Glenda and me) outside of the house. Glenda was on the ground; I was on the veranda while my husband was on the steps.
    
21. Glenda talked to my husband, by saying as quoted in pidgin language, (Sori sikot, nogut yu kisim karangi long mi na Godfrey) Sorry Scot, do not be suspicious about me and Godfrey. On the same instance, I saw Mrs Maria Godfrey (Godfrey’s wife) with a torch light walking towards, Leo Anias house so I asked Glenda to leave us (me and my husband) and go to her house and attend to Mrs Maria Godfrey and she left.”
    
22. Exhibit P4 is statement of Jack Pipilak a policeman with the public Safety dated the 09^th June 2016 relating to arrest and detaining of the accused at Sarakolok Settlement on Friday 03^rd June 2016. He was searched and in the course of the search it was found on his body, 4 sim cards, 2 mobile phones plus alcohol. The four sim cards and 2 phones were screened and one of the sim cards bore the number 79558096 which the accused pretended to use as Frankie from Mad Fox boys of Madang. I handed these over to the Arresting Officer Thomas Ombul.
    
23. Exhibit P5 is of Correctional Officer Leo Anias Legal husband of Glenda Daniel Anias of East Sepik Province currently attached to Lakiemata CIS Kimbe. He was in Kandrian on National Court escort duties from 09^th to the 27^th May 2016. Before he left on the circuit the defendant Godfrey Mett asked if I was involved in the shooting of an escapee Simon Aron resulting in his death. I said no and he came back the next day and said I was Okay he had checked with the cult movement in Madang known as Mad Fox Boys confirming that I was okay. And that the relatives of the deceased would retaliate through sorcery or sanguma and that he had informed the Mad Fox Boys who would defend the CIS officers.
    
24. Relevantly he was advised by his wife of Godfrey Mett having sexual intercourse with her. That the Mad Fox Boys came in the image of Godfrey Mett and did have sexual intercourse with her.
    
25. Exhibit P6 Sarah Takania is policewoman who corroborated in the record of interview with the Accused who made no admission to the charges.
    
26. Exhibit P7 was the statement of Thomas Ombul of the 28^th April 2017. He conducted the investigations in the matter and also conducted the record of Interview with the Accused Godfrey Mett.
    
27. Exhibit P8 is statement of Gerega Gerega Billing and VAS Manager with Digicel Port Moresby who gives an account of the texts messages received back and forth between a number of telephone numbers 72710851; 71239972; 73623237; 70752435; and 73370151. He is not interested in whether the Accused had sexual intercourse with the alleged victim Glenda Anias twice and whether they were with or without consent. He is a university graduate employed by Digicel the mobile telephone who gives an account of the texts between the phone numbers held out by the Accused with the victim Glenda Anias. His evidence is independent evidence not swayed in any way as to how the case ends and in whose favour the case should end. He is giving an account of what the electronics and science say in respect of the mobile phone numbers held out by the Accused and the victim.
    
28. And he has produced log that is 25 pages long. In it are very intimate texts between the Accused number and that held out by the victim immediately and leading over a period to when the offences committed hours apart. Intimate sexual texts connotation that does not distil towards sexual intercourse without consent. Particularly when there is reference of being naked and ready for sex in a sexual position. And a complaint that is not initiated by the victim, but because of talk within CIS Lakiemata leading to the investigations that is not immediate there but a year later after the offence on 28^th April 2017. The log is from 19^th May 2016 to 27^th May 2016. It is very extensive coverage of the texts that are going in between the mobile number 79558096 held by the Accused and of the victim Glenda Anais 72710851. Reference such as “Lewa” in pidgin reference to my Darling in English would not naturally be of a rapist and assailant against a non-consenting victim Glenda Anias a wife of a warder stationed with the compound of a prison.
    
29. Relevantly a prison that has rapists, murders, robbers and the likes and convicts of very serious criminal offences who are looked after by the husband of Glenda Anias, whose husband is on that duty escorting the National Court with Prisoners on circuit to Kandrian. Would she a married woman come out of her house with the Security lights off purposely on the instruction of the Accused over the mobile telephone knowing that the location is a compound of a prison in the light of the texts set out by this evidence of this witness. Could she be a non-consenting adult in sexual intercourse here in the light of the texts covered over in 25 pages, lingering from 19^th May 2016 to 27^th May 2016, in instances with the use of the word darling, “Lewa.” In the light of that fact would the case be improved with the evidence of the Accused. Could I call the accused to answer the indictment of the two counts of rape levelled against him?
    
30. Bearing in mind he does not carry the burden or proof because he has the right to remain silent, and it is upon the State to prove that he is guilty as charged in both respects. With the consent of Glenda Anias, he had sex with her at 4.00 am to 4.30am in the morning and then followed that again in the night at 9.00pm is that more than probable that that is indeed the case in view. Because She was escorted for that purpose to accused by his wife. Could a wife bring another woman to his husband for the purposes of sexual intercourse here in Papua New Guinea, let alone any part of the world with peace and love?
    
31. The State sought further to adduce oral evidence from Glenda Anias on oath but was resaying what was already in evidence in the Statement Exhibit P1, Defence objected. It was sustained as the same evidence was already in court and it was cross examination than leading evidence or clarifying what was already in that statement. The objection was upheld and the witness did not continue. A similar situation was the witness Warder Leo Anias who was called by the state and was objected to on the same footing sustained and excused discontinuing. That was the conclusion of the State case against the Accused on the two charges of Rape. They formally closed their case against the Accused in both.
    
32. Defence made a no case submission on both counts urging that the Accused had no case to answer in respect of both sitting the often relied on case of Rape, The State v [1976] PNGLR 96. There are two relevant principles applicable here; “Whether the state of the evidence is such that the Judge ought to withdraw the case from the Jury or at least tell the Jury, that it is open to them to say at any time that they do not wish to hear any further evidence. In these cases, the test is a quite different one. As I understand it, the question there is not whether there is any or some evidence on which a jury could lawfully convict, but whether there is sufficient evidence on which a reasonable jury ought to convict. It was formally considered necessary in all cases to leave the question to the Jury if there was any evidence, even a scintilla, in support of the case; but it is now settled that the question for the Judge (subject of course to review) is, ... not whether there is literally no evidence, but whether there is none that ought reasonably to satisfy the jury that the fact sought to be proved is established.”
    
33. Two questions arise given, (1) Is there some evidence of each element of the offence which, if accepted, would either prove the element directly or enable its existence to be inferred? And (2) Although there is a case to answer, is there sufficient evidence on the basis of which the court ought to convict the accused?
    
34. The burden is always on the Prosecution not the Defence. It is not the Defence who must prove their innocence in the allegation. Without the Accused going into evidence, he can be lawfully convicted of the charges laid. In the case here he can be lawfully convicted firstly of rape, and secondly also of rape, both pursuant to the section charged. Essentially there must be evidence in law that there was absence of consent by Glenda Anias, secondly accused on each occasion penetrated her vagina with his penis.
    
35. In the case here it is undisputed from all the evidence that I have set out above that there was sexual penetration of the vagina of Glenda Anias by Godfrey Mett. This element of the charges of Rape in each case is sustained lawfully here. The second element of the Charges is whether or not there was absence of consent, is there evidence lawfully that there was no consent in the first Act of sexual intercourse by the Accused upon her? Is it the same in the case of the second act of sexual intercourse? On each occasion the accused penetrating her vagina with his penis.
    
36. This is a grown adult woman within a populated area Lakiemata Corrective Institution, a prison Institution where convicted remandees are kept. It is an Institution whose everyday duty is keeping custody of all such persons who have come to breach the law or who have allegedly breached the law. The alleged victim is a wife of a prison guard or warder there. There is evidence of discussion of what will happen with the wife of the Accused, an inlaw of the Accused and even the Accused himself leading on each occasion.
    
37. But the matter has come to the hands of the Police on the 28^th April 2017 when a formal record of interview was conducted with the accused and he was formally charged with the two counts of rape pursuant. It was an allegation that arose on 26^th May 2016 on that day alone, firstly in the wee hours of the morning and is witnessed by Prison officer Sergeant David Kambus. Lights outside are off and they are put off by Glenda Anias on the instruction of Frankie alias ‘Godfrey Mett. She meets the Accused outside, also a prison guard there. He is not a stranger also called to duty there like her husband a fellow Sepik.
    
38. Prison officer Sergeant David Kambus sees a figure of two men. Then he works out that they are a man and a woman both are kissing. Upon seeing him they withdraw with the man holding her T Shirt and pulling it to an extent in his view where it is torn. This is Godfrey Mett who identifies himself to Sergeant David Kambus. Would a non-consenting adult female turn off the lights outside her house where the male counterpart is to meet her. And who are found in a compromising position without showing signs of resistance, effectively by the victim Glenda Anias. And then of her walking up to Sergeant David Kambus and apologising to him on what he saw there. Would it be the other way around, immediate complaint upon sighting him, followed up to his house. That is not what is in the way Glenda Anias goes about here. She walks up to the house of Prison officer Sergeant David Kambus in the presence of his wife Antonia David and apologises for what he saw. And further asks him not to be suspicious about her and Godfrey Mett as he saw them there.
    
39. And would a rapist who has threatened Glenda Anias walk up to Sergeant David Kambus and identify himself, I am Godfrey Mett, Mendre. And walk away from there. Not chased or apprehended there and then because he was caught in the act, victim caught in the act by the assailant distressed and in shock as immediate. Would a house owner go out to investigate dogs barking with the lights to the immediate area put off purposely to go out and check? And especially a woman alone with the husband on duties out of the Institution to Kandrian. Would a rapist and his victim be kissing when seen by the witness as here.
    
40. Then if that is not enough Glenda Anias goes back near the pig fence escorted there by the wife of the Accused and left to go with directions as to where to find him, is that rape, sexual intercourse without consent? And here intercourse is from the rear with Glenda Anias bending forward accommodating. The purpose of escorting her there by the wife of the Accused is so that she can meet him there. In the dark away from sight and help purposely with a man who earlier in the early hours of that day 4.00am to 4.30am had sexual intercourse with her against her will. But seen kissing outside in the dark because she had put the lights off to go out to investigate what the dogs were barking at in the night. All to find the Accused and Glenda kissing him as Sergeant David Kambus comes upon them. And he says I have seen you both, and then She follows and apologises for what he saw and asks him not to be suspicious about her and Godfrey Mett. He answers that he will speak to his squad mate her husband when he comes. There is no animosity even after between the wife and the Victim. The offence is hours apart from the first accusation of the same. Can a married woman go back to the same man she accuses of rape in the early hours of the morning of the 26^th May 2016 at night again escorted by the wife of the Assailant to be raped there?
    
41. There is burden that has not been discharged in the light of all the questions that are posed above. The circumstances are incompatible with sexual penetration without consent in both instances. These create serious lurking doubts which remain after closure of the State case. In my view will not be advanced any further than from where it is left even if the Accused is called to testify. His testimony will not improve the position any further. He is not obligated to prove his innocence. The State at its closure has very serious and grievous lurking doubts in respect of whether or not there is absence of consent. The totality and gravity of the evidence set out above show consenting intercourse on both occasion, in the early hours 4.00am to 4.30am and then at 9.00pm of consensual intercourse between two consenting adults. That is why the preparation to conceal in the first place with the lights turned off and kissing in a dark area out of the house. That is why the texts in the mobile telephone between Godfrey Mett and Glenda Anias referring as “lewa” (darling) and the various texts on sex and sexual positions.
    
42. I am not satisfied after closure of the State case in law, that I should exercise my discretion to call the Accused Godfrey Mett to answer counts 1 and 2 of the Indictment of sexual penetration without consent, pursuant to section 347 (1) of the Criminal Code in both instances charged. And I find so in respect of both legs on the principles of the No case submission set out above.
    
43. Therefore, I uphold the submission of the defence that there is no case to answer in respect of both counts 1 and 2 of the Indictment preferred against Godfrey Mett of Woginara No. 2 East Sepik Province. Accordingly, I find him not guilty of Count 1 and also not guilty of count 2 on the Indictment preferred and laid in this Court dated the 21^st March 2022 of sexual penetration without Consent.
    
44. The verdict is Not Guilty Count 1 and Not guilty Count 2. He is acquitted and discharged on both Counts and his Bail Money is ordered Refunded forthwith.

Orders Accordingly.

__________________________________________________________________

Office of Public Prosecutor: Lawyer for the State

Office of the Public Solicitor: Lawyer for the Defence