N9932
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 294 0F 2020

  THE STATE

V

NILES JAMES
Accused

Tabubil: Sambua, A J
2022:   18th, 21st, 22nd & 24th February
CRIMINAL LAW – rape – accused in position of trust, authority and dependency to victim - accused raises defence of consent – accused and victim have a sexual relationship and had sexual inter course 6 times previously. 
CRIMINAL LAW – No case to answer application – first limb – whether all elements of the charge have been established – second limb – whether evidence is tenuous and unreliable and case to be stopped – evidence of victim is unconvincing - her demeanour is wanting – the corroborating evidence is assumptive – no case to answer application upheld- accused acquitted & discharged forthwith.
Cases Cited:
State v Paul Kuni Rape [1976] PNGLR 96
State v Roka Pep (No 2) [1983] PNGLR 287

Counsel

Mr A Kaipu, for the State
Miss R Mangi, for the Accused

RULING ON A NO CASE TO ANSWER APPLICATION

24th February, 2022

1.	SAMBUA, AJ:   The accused Niles James through his Lawyer, Miss Mangi from Public Solicitor’s office made an application for a no case to answer based on what is commonly known as the second limb or leg of the principle of No Case to Answer stated in the famous case of State v Paul Kundi Rape [1976] PNGLR 96.

2.	 The accused Niles James was indicted with one (1) count of rape contrary to Section 347(1) & (2) of the Criminal Code with allegations of circumstances of aggravation pursuant to section 349A(e) of the Criminal Code as amended.

3.	The indictment read:

“NILE JAMES of Dipanap Village, Telefomin, West Sepik Province stands charged that he on the 24th day of March 2019 at Tabubil Township, Western Province in Papua New Guinea, sexually penetrated JULITHA HANZ YANGAHA, by inserting his penis into her vagina without her consent.

Circumstances of Aggravation
AND at the time there was an existing position of trust, authority or dependency in that the accused was a fellow church member and close family friend.
Dated this     18        day of   February   2022

PONDROS KALUWiN
Public Prosecutor
4.	Section 347 states: 

(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.
5. Section 349A states that for the purposes of this Division, circumstances of aggravation include, but not limited to, circumstances where –
(a) …….
(e) the accused person, in committing the offence, abuses a position of trust, authority or dependency; or…….
Background of the case

6.	The brief facts were that the victim was eighteen years old while the accused was twenty-eight years old at the time of the alleged offence. The accused was a family friend of the victim and her family since they attended the same church and sometimes the accused would bring his family over and have meals with the victim and her family. 

7.	It was alleged that at around 2.00 am in the early morning hours of the 24th of March 2019, the victim and her two aunties, Nayaku Kilep and Nancy Kilep heard the accused calling underneath their house asking for the laundry room key. Since the accused was a family friend the complainant did not hesitate to bring to him the laundry room key.

8.	The victim went downstairs and asked the accused why he had come. The accused told her that he was wet and wanted to dry his wet clothes in the laundry dryer. The victim opened the laundry door and was walking away when the accused grabbed her from behind and pulled her into the laundry room and shut the door. She screamed and struggled unsuccessfully to get away from him, but he was too strong for her. He then forced her onto her back on the floor and shut her mouth and pulled down her trousers. He then inserted his penis into her vagina and had sex with her. The victim was confused and was in shock, but struggled even more and managed to escape out through the laundry door. 

9.	As she ran out of the laundry door, her two aunties were already standing outside the laundry room door. The accused then shut the door and locked himself inside. He tried to escape by smashing the laundry louvre blades, but the window iron bars prevented him from escaping. He had cut himself while smashing the louvre blades. The mother of the victim came downstairs and demanded the accused to come outside. When he came outside, they questioned him and he replied that he had a big problem with his wife so he came to sleep in the laundry room. The victim’s family were angry with him so they assaulted him and he ran away.

10.	Therefore, the State said that the actions of the accused in sexually penetrating the victim without her consent contravened section 347(1) & (2) and section 349A(e) of the Criminal Code as amended that the accused person abuses his position of trust, authority or dependency in that he was the Christian Revival Church (CRC) Leader and the victim being the member of the same CRC church.

11.	On arraignment, the accused pleaded not guilty, and a trial was convened. The State’s evidence consisted of oral sworn evidence and documentary evidence which I will allude to in the course of this ruling.

No Case to Answer

12.	The principle of No Case to Answer is stated in the case of State v Paul Kundi Rape [1976] PNGLR 96. There are two principles or limbs laid out in the case of the State v Paul Kundi Rape (supra). The first principle or the limb, is where a submission of no case to answer is made, the judge examines the evidence as a question of law to determine “whether the evidence supports the essential elements of the offence”.

13.	The second principle or limb is where the question to be asked is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands, he could lawfully be convicted. This is a question of law to be carefully distinguished from the question of fact to be asked at the close of all the evidence namely whether the prosecution has proved its case beyond reasonable doubt.

14.	In the case of State v Roka Pep (No 2) [1983] PNGLR 287, it was stated that: 
“The second principle is where a judge decides there is no case to answer, it has a discretion to stop the case at the close of all the evidence in appropriate circumstances, this discretion is safely exercisable where there is a mere scintilla of evidence and where evidence is so lacking in weight and reliability that no reasonable tribunal could convict on it”.

The Evidence

15.	The State’s evidence consisted of sworn oral evidence and documentary evidence 

Oral Evidence
16. The State’s Oral evidence was elicited from two state witnesses: 

a) Julitha Hanz Yagaha
She is the victim and gave sworn evidence in mix Tok Pisin and English languages although she was sworn in tok pisin. 
She told the court that at about 2.00 am on the early morning hours of the 24th day of March 2019, she and her aunties Nayaka Kelip and Nancy Kelip were watching TV in the lounge room when they heard the accused Niles James, calling her name and asking her to bring down the laundry room key to him.
Without any hesitation, she got the laundry room key and brought it down to him as they knew each other and attend the same church, the CRC Church here in Tabubil.
When she went down, she asked him why he had come to their house, and he told her that his clothes were wet, and wanted to dry them using the laundry drier.
She then opened the laundry room door, and he went inside and as she turned to go upstairs, he grabbed hold of her hand from behind and pulled her into the laundry room and closed the laundry room door.  He then pushed her down to the cement floor and he laid on top of her and removed her shorts and panty and inserted his penis into her vagina and had sex with her. 
She told the court that at the time she felt completely confused and didn’t know what was happening to her and what to do and struggled to free herself from him but he covered her mouth with his hand to prevent her from calling out. 
She also told the court that as the accused was sexually penetrating her, she hit the side walls of the laundry room, and continued to struggle and forced him off and she ran to the laundry room door and opened it and went outside. 
When she went outside, she saw her two (2) aunties Nancy and Nayaka standing at the doorway of the laundry room. After that the accused closed the laundry room door and locked himself inside.
Later, her mum came down and the accused was asked to open the laundry room door and when he opened the laundry room door, he came outside and was questioned and he told them that he had a big problem with his family and had came over to sleep in the laundry room.
By then it was already daybreak and the accused left.  Later she and her mother went to the hospital where she was medically examined and then reported the matter to the Police.
In cross-examination she tried to maintain her oral evidence in Chief, but it slowly begun to change.
The first one related to watching TV with her aunties in the lounge room or was she inside her room where she was listening to music from a laptop when the accused called her name to bring the laundry room key down to him. It is also not clear whether she used a headphone or an earpiece to listen to the music on the laptop.
The second instance is from grabbing her hand from behind or grabbing her shorts and pulling her into the laundry room.
The third instance was her answers about timings. She was not able to recall any timing at all of the things that happened to her. And this was someone who was well educated. At the time of the incident, she was doing grade 11 and when she was giving evidence in court, she was in a Tertiary institution and found it very hard to comprehend. 
She denied having sexual relationship with the accused and that they had been communicating to each other via mobile telephone. She also denied having sex with the accused previously and the wife of the accused suspecting them of the relationship, and they were brought before the Head Pastor to settle the issue.
b). Nayaka Kelip
She was the second witness called by the State who gave sworn oral evidence in Tok Pisin. She told the court that she lives here in Tabubil with her big sister at Migal street, house number 12, the same house with the victim
She told the court that Julitha, Nancy and herself were watching T.V and Julitha told them that she wanted to sleep and she went into the room. She was not able to say what time.
However at 2:00am in the morning they heard Niles calling Julitha’s name to bring the laundry room door key down to him. They know his voice as he and his family are regular visitors to the house.
Julitha then took the laundry room key down to him while she and Nancy continued watching the T.V. Not long they heard Julitha shouting from underneath the house and she and Nancy rushed down and saw Julitha coming out of the laundry room looking confused and her face was black but did not say a thing to them.
She said when she saw Julitha in that way, she thought Niles may have raped her. However, when cross-examined on it she can only say that she thought Niles raped Julitha. Then the mother came down and hit Julitha with a long thin piece of timber.
In re-examination she told the court that it is not normal for a mother to hit her daughter like that.
Documentary Evidence
16.	The State’s documentary evidence consisted of the Medical Report by Wagi Paulus Exhibit S1, the Statement of Police woman Constable Maria Naur Exhibit S2, the photographs of the inside of the laundry room Exhibit S2a-d, the sketch map of scene of crime ( Laundry room) Exhibit S3, Record of Interview Exhibit S4 and the so called confessional statement of the accused, Exhibit S5,
The Medical  Report 
17.	The Medical report stated the following: 

This patient Julitha Hanz was brought into the Emergency Department by her mother at 6.30pm on 24/03/2019 with alleged history of being sexually assaulted by a known person at around 2.00 - 3,00 am, the early hours of 24/03/19 in a laundry room under their house at Migal Street.
Upon examination, she was fully conscious and alert but looks anxious. The vital signs were Temp 36,2d'C, PR 83/min, Resp Rate 20/min, BP 130/75mml-Ig and SP02

Systemically her thighs revealed no bruising or tenderness and per genital examination (clone upon patient and her mother's consent) revealed normal vulva with no stains of blood or semen or bruises seen, and the hymeneal membrane was torn and the vaginal orifice remained visible. The speculum passed revealed normal vaginal wall and the cervix with no erosions and the vaginal swab revealed epithelial and pus cells with no spermatozoa.

The mons pubis as well as the perineum remained intact and the VDRL for syphilis, HIV and the HB surface Antigen Test remained Negative.
Other systems remain unremarkably normal.
 She was diagnosed with Alleged Sexual Assault and treated for Sexually Transmitted infection, Morning after pill to avoid pregnancy and advised to return for review in 2 weeks time at the STI/HIV/AIDS Clinic,
     Photographs and the Crime Scene sketch Map
18.	The Photograph’s of the laundry room depicts a big laundry room which find support with the measurements of the sketch map of the scene of crime. This actually creates doubt about the victim hitting the laundry room walls as she was struggling to push off the accused when he was raping her.

Record of Interview and the Confessional Statement

19.	In both the Record of Interview and the confessional statement the accused says that when he went over and had sex with the victim Julitha it was arranged, and they both agreed to have sex. It was consensual. He did not force her as the victim says. Just because she was caught by her aunties and that’s why she said it was rape. Because when the aunties went down they saw her coming out of the laundry room and they suspected her of having sex with someone.

20.	This was not the first time they have had sex. They have had sex about six times before. It started in January 2019. They had a sexual relationship and had been communicating through mobile telephones. And when they found out that it was him (accused), the mother came down and hit her with a long thin piece of timber.

Issue
21.	There are two issues here to be determined as per the principle of No Case No Answer is concern as stated in the case of State v Paul Kundi Rape (supra) and the case of State v Roka Pep (No 2) (supra).

22.	The first one is whether the evidence adduced by the state from its witness and the documentary evidence establishes all the elements of the charge of rape under section 347 (1) & (2) of the Criminal Code as amended and the second issue is whether the evidence so far adduced by the state is insufficient and/or lacking in weight that the court should exercise its discretion to stop the case here and not to call upon the accused to give evidence.

23.	To answer the first issue, let’s look at the elements of rape. The crime of rape under section 347 (1) & (2) of the Criminal Code as amended. The elements of rape are:

 i. a person
ii. who sexually penetrates a victim
iii. without consent

24.	The State in its endeavour to prove its case had called two witnesses, Julitha Hanz Yangaha and Nayaka Kelip. Their evidence is similar in all aspects but varies in some material aspect form each other. 

25.	The first variance was Julitha going into the room to sleep but Julitha said that she went into the room and listen to the music on a laptop. If she said she was listening to the music from the laptop with a headphone or a hear piece, how did she hear the accused call out her name to bring the laundry room key to him?

26.	One piece of evidence that fascinated me was that it was not the accused’s house, so what right or authority did he go there to order Julitha to bring down the laundry room key to him, unless there was an arrangement between Julitha and the accused.

27.	In my view Julitha is hiding the truth. My observation of her giving evidence is that she was not serious and concerned about what had happened to her but was evasive with her answers. I observe her demeanour to be wanting. 

28.	The second thing I noted from her evidence that she did not tell her aunties of what the accused James Niles did to her when she came out, she said nothing, Nayaka told court that when Julitha came out she did not mention anything to them nor did they ask her what happened to her. Later when they heard the noise of the louver blades breaking, she told them that it was Niles.

29.	If the court is to believe Julitha’s evidence that she pushed off the accused and she ran to the laundry door, opened it and ran out, she would have ran out naked and Nayaku would have seen her naked and told the court about it. She didn’t. So the question is when did she put on her panty and shorts and she ran out through the laundry door. Her evidence does not add up.

30.	Julitha in her evidence did not mention that her mother hit her with a timber, but Nayaka said that her mother hit her with a thin piece of timber which is corroborated by the accused in his ROI and the so-called confessional statement.

31.	Nayaka Kelip in re-examination stated that was not normal for a mother to hit her daughter. This can only happen when there is something going on between victim and the accused. Which tend to support the evidence of the accused that there is an existing sexual relationship between the victim Julitha and the accused which the mother was aware of and that’s why she re - acted in that way by hitting her daughter with a long thin piece of timber.

32.	I am therefore of the opinion that the evidence adduced by the State thus far was lacking in weight and reliability as I have alluded to the evidence of the victim and her aunty Nayaka. There is variance in their evidence that created doubt as to its reliability. Especially that of the victim Julitha. I find that she was not truthful and was hiding facts. 

33.	Applying the principle or the limbs of no case to answer in State v Paul Kundi Rape, I find that the elements of the charge of rape especially the element of non-consent is lacking and has not been established by the State thus far. Even if I were to accept the submission by Mr Kaipu to find that the accused has a case to answer, I am of the view that the State’s case will not improve when the accused is called upon to give evidence.

34.	 Accordingly, I find on the first limb of no case to answer principle in State v Paul Kundi Rape that the accused Niles James has no case to answer and therefore acquit him of the charge of rape under section 347(1) & (2) of the Criminal Code as amended.

Order 

35. The Court orders that:

1. No Case to Answer is upheld.
2. Accused is acquitted and discharged from the Charges of rape.
3. Bail monies if any to be refunded.

________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender