State v Agen (No 7) [2022] PGNC 598; N10294 (14 December 2022)

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CRIMINAL LAW – Verdict – One count of Sexual Penetration – Section 347 (1) of the CCA - One count of Assault occasioning bodily harm, Section 340 (1) of the CCA– One count of Grievous bodily harm, Section 319 of the CCA - Credibility of witnesses – Who to believe – Definition of consent – Law on corroboration - Reputation evidence

Katie M. Edwards and Christine M. Dardis, “Sexual Activity between victims and perpetrators following a sexual assault: A systematic literature review and critical feminist analysis,” University of Nebraska, Lincoln, 2022;
Cycle of Violence, https://en.wikipedia.org/wiki/Cycle_of_violence

1. GANAII AJ: This is a ruling on verdict. State presented an indictment against the accused. The following counts were preferred against him on the indictment, that Robert Agen:

“Count 1
.... on 30^th day of April 2018 at Owen’s Corner, Sogeri Road, Kairuku Hiri

District, Central Province unlawfully assaulted one [AHJ] and in doing so caused her bodily harm, contrary to section 340 of the Criminal Code

... on the 30^th day of April 2018 at Owen’s Corner, Sogeri Road, Central Province sexually penetrated one [AHJ] by inserting his penis into her vagina without her consent, contrary to section 347 of the Criminal Code and

..... on the 15^th of September 2018 at Waigani, NCD, unlawfully did GBH to one [AHJ] contrary to section 319 of the Criminal Code

... on the 15^th of September 2018, at Waigani, NCD, unlawfully assaulted one [AHJ] and by so doing caused her bodily harm, contrary to section 340 of the Criminal Code”.

2. The elements of the charges as contained in the offence provisions and are stated below.

3. Section 1of the Criminal Code on the interpretation of “bodily harm” says any bodily injury that interferes with health or comfort. According to the Merriam Webster Dictionary, ‘injury’ means being ‘hurt’ or ‘harmed.’

4. The definition of sexual penetration is as per s 6 of the Criminal Code as amended:

[4]When the expression “sexual penetration” or “sexually penetrates” are used in the definition of an offence, so far as regards that element of it, is complete where there is –

(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”.

5. The definition and offence of Rape pursuant to s 347 of the Criminal Code Act as amended is in the following terms:

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

(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.

(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) – (j)...

(2) 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 –

(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.

7. On count 3, the elements of the offence are as contained in the wordings of the offence provision which says:

A person who unlawfully does grievous bodily harm to another person is guilty of a crime.

8. In the case of State v Fasean [2014] PGNC 68; N5596 (13 May 2014), the Court referred to the definition of "grievous bodily harm" in Section 1 of the Criminal Code which is “any bodily injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health”. (Underlined emphasis mine)

9. A trial, the Defence objected to all the documents being tendered to Court at the start of trial. During evidence, several documents were tendered by consent through the state witnesses and others were ruled admissible after objections were raised. These documents are listed in the table below.

10. Sworn oral testimonies were given by state witnesses, AHJ (complainant); Margaret Olaba, Joshua Kraip and Dr Lenturut-Katal. A summary of their evidence is re-stated below.

1. Witness is the complainant. For Count 1 on the charge of unlawful assault occasioning bodily harm, she said: “after the forced act of sexual intercourse (ie sex without consent), the accused made me to sit down in the haus win and repeatedly asked me if I understood that I had brought shame to him and his family. He then took out his belt and whipped me several times on my back.”

2. When asked to describe the belt, the witness said it was a leather belt that had a silver buckle and it was the one he wore frequently. She felt the leather against her body and assumed he held the buckle of the belt and whipped her with the leather. She wore a silk top and did not wear her sweater at that time. There were more than three instances of whipping. As how to many times exactly, she could not recall.

3. As she was being whipped, the complainant said she felt pain, her back was hurting, and it lasted 10 minutes. She visited the clinic of her grand-father and was treated for pain and bruising. There was no medical report made at that time. She did not tell her grandfather, who is a medical practitioner by profession, about the rape. She also did not tell her colleagues or report to anyone as she was threatened by the accused not to tell anyone or she would be killed. She said the only person she later talked to about the assault and the rape was her sister in Jaya Pura.

4. For Count 2 on the charge of rape, the complainant said: “He (Mr Agen) demanded sex. I cried and refused. He said I did not have a choice. I was his property and he owned me. He forced himself on me and we had sex at Ower’s Corner at that point.” When asked where the act of sexual intercourse took place, the witness said, “right there where we were standing”. She said: “He turned me around, put me in a bent over position, unbuckled his pants, took out his penis and forced himself into me from behind”. When asked what is meant by ‘forced himself,’ the witness said, “he penetrated my vagina with his penis, it did not take longer than a couple of minutes”. When asked how she felt, the witness said “I was terrified. I felt fearful that at any time he would change his mind and they would kill me and dump my body”. When asked ‘Did you consent?’ The witness said “No, I did not.”

5. For Count 3, on the charge of grievous bodily harm, alternatively, assault occasioning bodily harm, the complainant said: “it was at Mr Kamasuga’s residence, after a night out at Red Rock, the accused threw me on the floor, dragged me, continuously punched, and kicked me with his boots all over my body and face and I lost consciousness”. She realised she was bleeding profusely from the face as she gained consciousness. Her cousin Margarete had come and had taken the complainant to her grand-father’s clinic. She was treated there by him for pain and for the bruising. There was no Medical Report made by him. She then went to Dr Poyap of the Korobosea Medical Centre for an x-ray as she complained of a painful jaw. She said the x-ray results showed fracture on the left side of her jaw. She had to take time of work to recover and heal. Other injuries sustained to her face were a cut on the nose, black eye, bruising and swelling. The fracture on the left side of the jaw caused her pain. She was not to be able to eat solid food. She took pain killers till the fracture had healed.

6. In cross-examination the witness said she met the accused in 2017 via Facebook and they connected and became friends.

7. On the night of 29^th April 2018, she agreed that the accused dropped her off. Later in the night when he called her, she did not answer his call. She was with a person called Richard Sios. On the next day, the accused was furious and picked her up. He demanded answers as to her whereabouts. He then picked up two men who were armed with bush knives. They sat on either side of the complainant in the vehicle. They drove to Owen’s corner. She said he punched her as they were driving to Sogeri.

8. She also said the accused demanded for her phone and password and she gave the to him. He then saw her messages in the phone and saw what he wanted to see.

9. When it was put to her that there were people at the Ower’s Corner market, she said she did not see any persons at the market.

10. When put to her that the ranger’s office was 10 metres away, she said she did not look around and did not see the ranger’s office. She agreed there were no obscurity or trees in the way.

11. When asked if the rangers were visible to her, she said she did not see them. She said the accused was punching her and she was protecting her face and head.

12. She agreed she did not report the rape incident till September of that year, which was 5 months after the incident. Her reason was that she was unaware that he had committed a serious criminal offence. She also agreed that there were no medical reports for both incidents.

13. The witness agreed that after the incident at Ower’s Corner, there were consensual sexual activities with the accused. It was only after the Waigani incident, which was five months later that she reported the Sogeri incident to the Police. She said there were no non-consensual sexual activities with the accused after she reported to the Police to date.

14. She recalled the accused was in a relationship with a woman called Joan but she was not upset and took it as normal for him to do that.

15. When put to her that the criminal complaints were laid against the accused because they were calculated by her as she was angry with him, she said no.

16. When asked why the charges were laid, she said because her rights and peace were breached and she did not consent to sex.

17. When put to her that the case was brought maliciously against the accused, she said that was the accused’s own opinion.

18. In re-examination the witness she said she got out of her office at Gordon and met accused because he said he said to talk. She did not agree for him to drive away on the vehicle but reluctantly hopped on. She was terrified as she did not know where they were going. At Ower’s Corner, she felt that her life was in great danger and she was terrified and unsure about what was going to happen. She did not care to focus her attention on anything else except to try to stay alive.

19. After State prosecutor re-examined the witness, Mr Napu for the accused realised he had oversighted and had not cross-examined the witness on the Waigani incident, in Count 3. He sought leave to recall the State witness to cross-examine her. There were no objections by the State. The witness was told that the defence counsel would continue to ask questions in cross- examination about the allegations at Waigani, and the State would be allowed to re-examine her. She understood. Mr Napu cross-examined the witness.

20. In cross-examination, where the defence asked about what happened earlier on at the Red Rock Bar, the witness said the accused was aggressive towards her when she tried to help him up after he had fallen over in his drunken state.

21. The witness agreed that Mr Kamasuga drove them to his house at Waigani. She went in and laid on the couch in the living room. The accused pulled her and she struggled to get away from him. Her reason for resisting to go with him was because he was drunk and was violent towards her earlier on at Red Rock Bar. The accused pulled her off the couch. He dragged her outside. She managed to escape from his grip and went to Mr Kamasuga. They both drank and so the accused was too drunk. She had drunk 8 glasses but she said she was aware of what was happening and aware of her surroundings.

22. The witness agreed there was a tussle because the accused wanted her to go and she refused to go. He stood up and assaulted her and she fell. She was able to get back up on her feet. She recalled telling him to leave her alone.

23. She recalled when she regained consciousness, her cousin Margret Olaba had already arrived and had taken her to her grand-father’s Medical Centre.

24. An x-ray was done later at the hospital which showed a fracture to the complainant’s left jaw. She was not able to eat until later she had regained use of her jaw. She had also sustained a cut to her nose and bruises om her face and body.

16. At the close of the State’s case, the defence counsel made a no-case to answer submission.

20. The following persons were called: the accused Robert Agen, Nuana Momoa, Rose Iori and Dr Charles Limbia. A summary of their evidence is this.

1. The accused said he did not use his belt to lash the victim. She had told a blatant lie to the court. He said he was wearing a track pants and did not need to use a belt.

2. On the allegations of rape at Owen’s Corner, he said it was 10:00 am as per the complainant’s statement and it was trekking season. There were trekkers, porters and villagers around. It could not have been possible for that to happened as there were no obscurity there.

3. Defence led evidence on 9 photographs to show that there was no obscurity. The 9 images basically show the same area at different angles. The accused described where he and the complainant were and where the rest of the people were. He said local people, i.e. mothers and people were there at markets, there were rangers and trekkers and they could see them from where he and complainant sat.

4. He said it was not possible for him to do what she alleged he did. He said she made up the story because he had decided to move on and she wanted to ruin his character and his life.

5. The accused went on to speak of the alleged incident at Waigani. Prior to that he described what happened at the party at the Red Rock Bar. His story was that the complainant never had a monogamous relationship with anyone and he was weary of that when they were in their relationship. When she did not want to go home with him, he became suspicions of her. He said it was only after much persuasion that she went with them. He was drunk and not able to drive. He stopped the vehicle and told Mr Kamasuga to drive them to the house.
He denied all the allegations by the complainant. He said he never assaulted her at the Red Rock Bar nor at Waigani, at Mr Kamasuga’s residence.

6. At Mr Kamasuga’s residence, the accused said the complainant went into the house to use the toilet and did not return quickly. He became suspicions that she was talking on the phone to another man. He asked Mr Kamasuga to check her. Mr Kamasuga checked on the complainant and informed the accused that she was asleep. The accused said he was not comfortable for her to sleep in John’s house and so he went to wake her up. He said she continued to swear at him so he lifted her up. He said he did not kick her; he did not punch her and he did not drag her as she stated.

7. He said when he carried her, she kicked his hands so he let go of her and she fell on to a stone. He said: ‘she must have fell and hurt herself on the brick wall’. He did not physically assault her as she stated. When she fell, he said he realised he could not take her away so he went to his vehicle drove away.

8. A week later, the accused said he saw her at the Gordons Police Station where she laid a criminal complaint of assault against him.

9. Under cross-examination, the accused admitted going to the Owen’s Corner with the complainant and that there was no dispute to that. He said she called him to get her because she was being anxious about a vehicle incident regarding to one of her relatives.
State Prosecutor asked if it was made up and a recent invention and he said he swore on oath to tell truth and that he is telling the truth.

10. When put to him that he demanded to know about her whereabouts – he said he never demanded for the complainant to come out of her office. He said he never argued with her and he never forced her out of her office. He said she agreed to go with him because of the news of her relative involved in a motor vehicle accident. He said because of that, she had asked him to pick her up and drive around to cool her head off.

11. The accused said the complainant had lied about them picking up two armed men. There were no armed men. The accused said there was only one boy in the back of the vehicle whom he said is known to them, including the complainant as well.

12. He said the complainant suggested for them to drive out so he drove to Ower’s corner. He said he and complainant had been out there before. He denied the assault with the belt and said there was no sexual intercourse.

13. He drove to Ower’s Corner and he said he goes there to enjoy the scenery. He did not drive her there because it was a secluded spot.

14. When asked if he assaulted her, he denied that. He said there were no reasons to assault her. He said he never wore any belt at that time. He also denied that sexual intercourse took place as there were porters, trekkers, rangers and locals around and there was no obscurity.

15. About the Waigani incident, when the accused discovered that the complainant was asleep on the couch, he woke her up and she refused to go with him. He then carried her as she was struggling to get away from him. She was pushing him away. When she kicked, and he let go, she fell onto the stone or cement next to the door. The accused denied kicking or punching her. He said he told the Arresting Officer Mr. Kraip that he only lifted her and that it was when she kicked him that he let go of her and she fell.

16. The accused said Mr Kraip’s recorded answer in the ROI which is that the accused had punched the complainant is not true. He said he did not punch, they only struggled.

17. The accused agreed that his lawyer was present at the time he signed the ROI. In Question & Answer 18, when asked about the assaults and when shown the photos, he agreed and said yes that is correct.

18. When it was put to the accused that he assaulted complainant, he denied throwing punches and kicking her.

19. The accused said he lifted the complainant off the couch and she refused to go with him. She swore at him. She wanted him to let her go off her and the tussle started. When she fell, it was at that point in time that he decided to leave.

20. When it was put to the accused that at Question & Answer 20 of his ROI, when it was asked, he agreed that he dragged the complainant on the floor, the accused again said that this was not the answer he gave to the Police. He said Mr Kraip had changed his answers in the ROI. He said his lawyers were aware of this.

21. The accused denied being aggressive towards the complainant at the Red Rock Bar car park. The accused said he had no reason to be aggressive and was not aggressive.

22. At the car park of Mr Kamasuga’s house, the accused again denied any aggression towards the complainant.

23. When it was put to the witness that the reason the complainant did not want to go with him was because of his aggressiveness, he said “there were no reason to be aggressive and no reason to assault her.”

24. When it was put to him that when the complainant refused to go with him, he had assaulted her, he said there was no reason to assault the complainant.

25. In re-examination it was put to the accused that during the Police interview, he said he lifted the complainant and when she swore, he punched her. The accused said his story was that that he went into the house to remove her from the situation, i.e. that she was drunk and in someone else’s house.

26. The accused said, at the Police Station the next day, the complainant appeared fine and was talking well. There were no signs of injury and she was not experiencing pain.

27. The accused said his answers in the ROI were changed by the Arresting Officer Mr Kraip. At Sogeri, he denied the allegations, and said it was not possible to for an act of sexual intercourse to take place when there were porters, trekkers and locals.

1. The witness was employed as a Park Ranger by the Kokoda Track Authority and was based at the Owen’s Corner. He said he was present on the day of the alleged incident. He met the accused and the complainant and he greeted them. They sat in a table and the bench which was visible to him. He said on the 30^th of April 2018, at about 10 am the accused and his friend arrived on a Ford Ranger, grey in colour. He saw a man sit at the back of the vehicle. The vehicle stopped and the accused and his friend went out. The man went to buy betelnut and the lady went to sit on the form. The accused sat on the table. The witness said the porters then came so he went to check their permits. He said whilst they stay there, the accused did not hit the lady or rape her. He stood there then he went to his office to leave his files. They sat there for about twenty to thirty minutes then they left. He said that the complainant told lies about the involvement of the accused in the alleged crimes.

2. The witness said Owen’s Corner is not a big area and one can see vehicles parked at the markets, where people sit. At that time, witness said it was tracking season so there were trekkers, porters and village locals selling their items. It was a public area.

3. When asked how he knew about the rape case, he said he read it in the newspaper. It was said that the alleged incident occurred at the date and place where he was working and so he contacted the Police Sogeri to if there were ant reports being made. There was none so when he enquired with a police officer from Simbu, that is how he came to know about the accused.

4. He said he was there and at that time there were no reports received of such incidents on that date, 30^th of April 2018.

5. Under cross-examination he maintained that he was a ranger and at that time, and he worked 24 hours, 7 days a week between March 2016 – March 2020. He was the only one who would man that area. At that time, nothing extra ordinary happened. It was trekking season and there were a lot of trekkers and porters. They would go to his office and he would serve them.

6. He knew the accused because he contested the elections. When he read in the newspaper about the alleged incident, he enquired at the Police Station and that was how he came to meet him. He then obtained the accused’s number and called him. He said he felt obliged to check at the Police Station when he read the news. And that is how he made contact with the accused.

7. When asked why he did not do the same by calling the Police Station that received the complaint, he said he did not check the other police station where the complaint was laid because as far as he was concerned, on that date, he was there and there were no reported incidents.

1. For the alleged incidents of the 30^th April 2018, or referred to as the Sogeri incident, the defence raised general denial, submitting that the complaint is malicious and her story is fabricated.

2. On the second incident of the 15^th of September 2018, or referred to as the Waigani incident, defence submitted that the accused and the complainant were in a struggle, and the complainant fell down and hurt herself. The accused denied assaulting her. The injuries were not serious, life or limb threatening and were not permanent.

3. Further, there was provocation and the fall was a risk taken by the complainant.

4. Defence further submitted that the complainant’s story regarding the alleged incidents both at Sogeri (on 30^th April 2018) and Waigani (on the 15^th September 2018) is not corroborated by independent witness evidence and there were no medical reports. The complainant’s story is that after the incident she went to pick up her daughter and then went to work. She did not go to the hospital nor the Police Station. Defence submitted that the complainant did not report to anyone and there is no corroboration.

5. The fence submitted that the accused wore a track pants which did not require him to wear a belt and did not assault the complainant. The stories of the two defence witnesses corroborate his story that that nothing happened on that day.

6. Defence argues that the alleged incident at Sogeri was reported after 6 months. In the case of State v Ugwalubu [2009] PGNC 70; N3657 (22 May 2009), where a complaint of a sexual assault was reported 5-6 months later, the court said the evidence of the complainant who was the sole witness lacked weight and credibility and state’s case failed at a no case stage. The principle in that case is that the complainant’s evidence must be credible.

7. Defence submitted that even if there were medical reports, and there were some evidences of sexual intercourse, the court would still have doubt as to whether the accused has had sexual intercourse with the complainant as she had admitted having sex with a Mr Sios the night before.

8. Defence submitted that the complainant did not report immediately and any reasonable person would not believe her story.

9. The photographs show there were no obscurity. It was peak trekking period. The complainant did say there were people who passed by. The place was crowded and bustling with activities. The lighting was good, it was not possible for such an incident to occur.

10. The defence submits that the defence witnesses’ evidence was not discredited in cross-examination and their story remain unchallenged.

11. On the third charge, referred to as the Waigani incident on the 15^th Sept 2018, there was no intent to assault and there was no direct assault.
12.

13. Defence submitted that the complainant is promiscuous. On the night before the alleged incident – i.e. on the 29^th April 2018, the complainant was dropped off by the accused at her grandfather’s place. She then rushed off to Holiday Inn and had sexual intercourse with a Mr Sios.

14. In submissions, counsel for the accused said:

“In sexual relationship – every partner is compelled by their inclination, to maintain the attention of the opposite partner to themselves at all costs. Mr Agen was suspicious of complainant and had to secure her company, it was normal human instinct. He also did not trust her. If she complied, she would not have suffered injury. She voluntarily contributed to the risk.”

15. On the injuries, the complainant sought medical help six days after the alleged assault, i.e. on the 21^st September 2018.

16. The injuries were not life threatening because the complainant was able to live without medical intervention at least for six days before she saw a Doctor. In the case of State v Lopulopu, (2016), N6393, the Court said the extent of the injury will assist in determining the question of whether an injury is life-threatening and whether the victim taken to hospital immediately; whether the victim did not die and after the recovery, whether the complainant continued to suffer personal injury.

17. Defence submitted that Dr Limbia, for the Defence said that where the complainant sought help six days later, the injury was not life threatening.

18. Defence submitted that the evidence of the two state witnesses, the Doctors, were inconsistent with each other. Dr Rooney’s finding is that the complainant suffered from an oblique hairline fracture on the body of the mandible whilst Dr Katal’s report says the fracture was a hairline fracture on the left mandible.

19. Defence submitted that these are two distinct parts of the jaw. Dr Katal knowingly and willingly misled the court when she said the body of mandible and left angle of mandible was the same part of the jaw described by different terminologies within the medical and radiological language. This assertion was dispelled by Dr Limbia.

20. Defence submitted that there was no evidence of an x- ray being done. There were no review reports.

21. Defence submits that in the same week following the alleged incident, the complainant had seen het at the Police station with no complaints of any injury.

22. After the Waigani incident and she after she reported, which was six months later, the complaint for Sogeri was also made.

23. On the allegations of unlawful assault, Defence submitted that intent is a necessary element to prove an assault charge. The caselaw of State v Kramer is applicable and involves a charge of grievous bodily harm with intent under 315 of the Criminal Code.

24. The accused also raised provocation, saying the complainant’s actions provoked him and defence cited the case of Yangudau (1980) N278.

25. Defence submitted that there were no Medical Reports and the evidence does not support that there was permanent injury.

26. The defence also submitted that the answers in the ROI were fabricated. The Court will refuse to accept the admissions in the ROI, due to a breach of the Constitutional Rights of the accused to a fair trial.

1. For counts 1 & 2, the undisputed facts are that accused picked up the complainant at her workplace on 30^th April 2018 at around 9 am and drove up to the Owen’s Corner.

2. What is disputed are these: the accused argued with the complainant and wanted to know her whereabouts the night before. The accused forced the complainant into the vehicle. He picked up two armed men. The complainant was assaulted in the vehicle whilst driving up to Owen’s Corner. At the Owen’s Corner, the two men took her to the edge of a cliff and threatened to kill her and dump her body there. The accused then told the men to leave them. He removed his belt and whipped her more than three times on her back. After whipping her, he forced to have sexual intercourse with her. He forced her to bend over and he inserted his penis into her vagina.

3. For count 3, the undisputed fact is that accused and complainant attended to Red Rock Bar on the 15^th September 2018 and stayed on till mid night. They drank alcohol and the accused was drunk that he could not drive.

4. The accused did not deny that there was a scuffle at Waigani at Mr Kamasuga’s house. The complainant did not want to go with him.

5. The accused denies any assault by him on complainant at the Red Rock Bar car park and also, he denied that he was too drunk.

6. The relevant applicable principles of law in assisting this court arrive at a safe verdict are these: onus and standard of proof; intention, credibility, logic and common sense and rule in Browne v Dunn. In applying the, the Court will find that the complainant is credible and reliable. The court will accept her evidence and find the accused guilty as charged for the offences.

27. This case turns on the credibility of the witnesses and more particularly the credibility of the complainant. The court must decide on whether the complainant is telling the truth.

28. On the allegation of assault causing bodily harm and grievous bodily harm, the Court mut be satisfied that the State had proven its case beyond a reasonable doubt that the complainant was assaulted and did suffer from pain, fracture of the left jaw, and that the injury to the jaw was permanent.

29. On the allegations of rape, the State must be able to prove its case beyond a reasonable doubt that the act of sexual intercourse occurred at Owen’s Corner without the complainant’s consent and against her will.

30. In deciding on this, I have assessed the state witnesses’ credibility, demeanour and the content of their respective evidence. I have looked at how much detail they have given in their story and whether it is consistent with common sense and logic. I have considered the level of consistency between each witnesses’ evidence and the evidence as a whole.

31. This is this Court’s assessment and findings on the evidence, firstly, in relation to Counts 1 and 2 of the indictment, the incidents of the 30^th of April 2018, referred to as the Sogeri incident.

32. I must first of all make preliminary findings on what I consider are the relevant facts in dispute.

33. One of the relevant disputed facts is what caused the complainant and the accused to meet up on the morning of the 30^th of April 2018, and to drive to Ower’s Corner, at Sogeri. It is an important fact to determine, as it sets the backdrop to the allegations of assault and rape.

34. The complainant maintained her story throughout her evidence in chief, in cross-examination and in re-examination that the accused called her on the phone, demanded answers as to her whereabouts the night before i.e. on the 29^th April 2018, told her to meet him, and when she reluctantly got in the car, and unknown to her, drove towards Sogeri. Following on from this, she said the act of assault and sexual penetration occurred. The reason for the meeting and the drive to Sogeri is a crucial disputed fact. The Court must make a finding on this.
Credibility of the complainant

35. I find the complainant credible as a witness. Her demeanour was good in the witness box. She answered all questions in a clear and logical way. She made eye contact with the bench and maintained her story right throughout her evidence. She was coherent and not discredited in cross-examination.

36. On the other hand, I find the accused story unconvincing for these reasons. He gave two different versions as to why he went to meet the complainant at her office at Gordons and why they drove up to Ower’s Corner. These reasons were not consistent with each other and makes his story untrustworthy.

37. The first reason was in his evidence in chief. He said the complainant told him to take her out for a drive to clear or cool her head off because she had heard of the news of a relative being involved in a motor vehicle accident. However, in cross-examination, it became obvious that this story had changed and therefore, was not put to the complainant in cross-examination. The defence case then was that the accused was demanding answers as to the complainant’s where abouts, on the night before i.e. the 29^th April 2018, and he wanted to see the complainant in person to confirm that she was really at work the next day.

38. In the defence cross-examination of the complainant, defence continued to put their case to the complainant that on the evening of the 29^th of April 2018, the complainant was dropped off by the accused, at her home at 5:00 pm, and thereafter, she had left her home and had spent the night elsewhere with someone else and that she did not answer Mr Agen’s calls when he called her. In response to that, the complainant said that it was none of his business to check on her as they were separated at that time and he was in another relationship whilst she was with a Mr Richard Sios at the Holiday Inn.

39. The Defence continued to put their case that Mr Sios was the complainant’s sex partner, in which she said she only met him on that night.

40. The complainant’s response to the defence next line of questioning showed that the complainant agreed that on the 30^th of April 2018, i.e. the very next day, Mr Agen was furious when he called her on the phone, demanded answers and said to meet her.

41. The accused’s story that the complainant had asked him to take her out for a drive to clear her head was never maintained and put to the complainant in cross-examination. This was a crucial part of the defence story in examination in chief and they had failed to put to the complainant in cross-examination. This was a breach of the fundamental procedure in trial practice, the principle of putting one’s case to the other party. The rule in Browne v Dunn was breached.

42. The consequence of breaching the rule in Browne v Dunn, where the state witness was not confronted on this and did not have an opportunity to respond, so that was unfair on the State’s case, this court is inclined to find this amounted to fabrication of the accused’s story or a recent invention by him to get away from the truth of the matter. The truth of the matter was that the accused had one main reason for approaching the complainant and that was to deal with their relationship issues. The accused’s story that the complainant had called him to take her out for a drive to cool her head is therefore rejected.

43. In finding that the accused’s story was a recent invention, this has demonstrated that the accused did not tell the truth in his examination in chief about the reason for their meeting on the morning before going to Ower’s Corner. The accused therefore, was not telling the truth and his credibility is affected.

44. Consequently, I make the finding that the accused was upset, angry and demanded answers from the complainant about her whereabouts the night before.

45. Where the accused later put in cross examination, that he wanted answers as to the complainant’s whereabouts the night before, I find that to be the only reason why he went to see the complainant which is consistent with the complainant’s story. I accept the story of the complainant that the accused wanted to interrogate her on her whereabouts on the night before as he was angry with her.

46. Further, in the circumstance, it appeared logical and I accept the complainant’s story that the accused wanted to see her to prove that she was really at work on the morning of 30^th April 2018.

47. I also accept the complainant’s story, that when she agreed for the accused to go to her, he went to her workplace. He then insisted to speak to her privately. He was demanding answers regarding her whereabouts the night before and she reluctantly got on the vehicle with him. She was then driven to Ower’s Corner.

48. Based on this, I find that their meeting and going to Ower’s Corner was because Mr Agen was angry, he demanded to meet with the complainant and he wanted to speak to her in private.

49. Settling on another fact will set another crucial backdrop to the allegation. The question is did the accused picked up two armed men? The complainant’s story is that she reluctantly got on the vehicle and then Mr Agen picked up two armed men who sat on either side of her in the passenger cabin of the vehicle. She was seated in the middle and was within reach of the accused who then assaulted her by reaching out and punching her.

50. Mr Agen’s story is that there were no armed men except for a young boy who sat outside the tray of the vehicle. He said the boy was known to them both, including the complainant.

51. Given the reasons that she was picked up from her workplace to be interrogated, it is common sense and logical to find that she had reluctantly got on the vehicle due to Mr Agen’s demands. At that point in time, it was obvious to them both that all was not well and that there were sensitive issues to be discussed relating to their relationship. The complainant felt threatened as she said she was not aware that she would be driven away to the outskirts of the city limits from her workplace, during working hours.

52. From the events of the night before, it is plausible to find that Mr Agen intended to meet the complainant and interrogate her ‘in private’. It was obvious that the complainant was reluctant and so in the circumstance, the accused would have expected some resistance. Mr Agen thought it necessary to have assistance particularly if the complainant would be in the vehicle that he was driving. This finding is consistent with the complainant’s story that Mr Agen was furious and angry about her whereabouts and doing this would ensure that she was kept in the vehicle whilst he drove so that he would interrogate her. In accepting her story, I find that the two armed men were picked up and did sit on either side of the complainant in the cabin of the vehicle so that she would be prevented from escaping. I find also that the complainant’s head was down in her laps as she said, to prevent being hit from the accused’s punches and she did not realise where they were going until later.

53. I accept her story that the two armed men were picked up and it was only after that, did she realise that they were driving out of the city limits. I find that these two men were picked up purposely to assist Mr Agen take the complainant away. She was seated in between them both so that she would be prevented from escaping if she wanted to. However, according to her evidence, she had her head down to prevent being hit by the accused. He could reach her as she sat in the middle of the back seat of the vehicle between the two armed men and the accused was in the driver’s seat.

54. The other reason why I accept the complainant’s story on this disputed fact is that the accused did not call the young boy whom he said had sat at the back of the vehicle to give evidence. There were no explanations as to why that witness was not called. The accused called his first name, but did not know his surname, although he said the boy was well known to them, including the complainant but yet he did call him as a witness. For this, I am not convinced that the young boy was there at all.

55. Further, the other reason why I reject this story is because it was not put to the complainant in cross-examination that a young boy sat at the back of the vehicle. Again, this is a breach of the fundamental rule in Browne v Dunn. For this, I find the accused’s story that a young boy sat at the back tray of the vehicle and that he did not pick up two armed men to be untrue. I accept the complainant’s story that the two armed men sat on either side of her when they picked them up. This finding is coherent and makes sense in light of the above finding of the reasons why the accused had gone to see the victim in the first place.

56. The accused’s story is therefore not true and is rejected. This court accepts the complainant’s story that the accused drove to a certain location and picked up two armed men.
Was the accused angry when at Ower’s Corner, Sogeri?

57. Whilst driving up to Sogeri, Mr Agen did not dispute the complainant’s story that he took her phone, demanded for her password and checked her messages. She said the accused saw ‘what he wanted to see’ from her phone. Although the complainant did not say what it was in the phone that he saw, given the circumstances, it was plausible, from her answer to find that she had meant that he had seen her phone communications the night before with Mr Sios. For this, I find that the accused was angry about h saw as they continued driving up towards Sogeri.

58. Given this background, when at Ower’s Corner, Sogeri, the accused threatened to kill the complainant by saying that she made him look like a fool because she was with someone else. He told her that she had brought shame to him and his family. He then referred her to the two men, presumably, his relatives. I also accept her story that the two armed men took her to the edge of the cliff and threatened to kill her and dump her body there. The accused then said they would spare her life because she had been good to his family. He also said they would spare her life on the condition that she becomes one of his many wives.

59. After saying those words, I find that whilst still angry, the accused then told the two men to leave them which they did.
Did sexual penetration occur?

60. In relation to the determination of whether the act of sexual penetration did occur, the court must be satisfied that the complainant was telling the truth. Again, I state that I have assessed all the witnesses’ credibility, demeanour and the content of their respective evidence. I have looked at how much detail they have given in their story and whether it is consistent with common sense and logic. I have considered the level of consistency between each witnesses’ evidence and the evidence of all the witnesses as a whole.

61. To be convinced that the act of sexual penetration did occur, the Court must be satisfied of a number of things including that the spot in which the act of sexual penetration had taken place was indeed a secluded place or space at that precise time. That will be consistent with logic, common sense and expected behaviour that in most cases, acts of sexual intercourse do not occur in full view of the public.
Credibility of the complainant

62. Whilst the defence case is that on that morning of the date in question, the Ower’s Corner was bustling with activities involving porters, trekkers, rangers and the locals who went there to sell their produces, wares and goods, I am satisfied on the evidence of the complainant that at the precise time, there had not been any persons. This is because in the way the victim had told her story, she maintained consistency and was not discredited. Further, she appeared credible when she did not try to improve on her story but told it the way it happened. She did not dispute that there was no obscurity. She agreed that the place was clear and they could be seen if there were people within the vicinity, She also said she saw two passers-by. Those evidence would have been detrimental to the State’s case. If she was to fabricate her story to a state of make-belief, as submitted by the defence, she would not have said those evidences as these would have created a scenario that people were expected to appear and disappear, they would have been seen, and it would not have been possible for such an act of sexual intercourse to have occurred in such space.

63. But she did not do that. To me, demonstrated that the complainant was speaking from her own personal experience and she was only recounting what had happened to her from her own personal experience.

64. This Court therefore, accept the complainant’s story was that the two armed men and the two passers-by had gone away and were all out of sight when the act of sexual penetration occurred. Apart from she did not see any other activities, for e.g. locals at the markets, or the rangers doing their business with the trekkers and the porters.

65. The evidence that the act of sexual penetration occurred within a matter of minutes as told by the complainant, is also consistent with common sense and logic and that is that the alleged perpetrator of the crime was aware that the Ower’s Corner was a public arena and that he had to avoid being seen and being detected. It is also consistent with the fact that from the complainant’s story he had to act quickly by sending the two armed men away from sight so that he would immediately demand sex from the complainant which he did. The shorter timing is also consistent with the evidence that because the complainant felt threatened and feared for her life due to assaults, continuous threats and forced against her will to comply with the accused’s demand for sex, she did not put up any resistance, and complied with the accused’s demands which then enabled him to commit the act of sexual penetration in a short space of time.

66. When this evidence is viewed in the context of the timing of the whole of the incident, the accused, the complainant and two armed men were at Ower’s Corner at least for a shorter period of between 1- 2 hours and not longer than that. It is undisputed that they left Gordons for Sogeri at around 8:00 or 9:00 am, and returned to Port Moresby by mid-morning, which is before mid-day, so about 11 am.

67. Given that they would have been there for an hour or so in total, there was less time to have been exposed to more people apart from the two passers-by.

68. On the whole of the complainant’s story about the act of sexual penetration, I find the complainant convincing for the reason that she did not try to improve on that story. She maintained that there was no one in the likes of trekkers, porters, rangers and the locals there. She did not see anyone else there.

69. On the defence submission that the complainant framed the allegations, I find that the complainant did not frame the allegations for the main reason that she appeared honest and truthful as she did not improve on her story to make it more believable.

70. In telling her story this way, the complainant also showed that she was relating her very own personal experience, and according to what had happened to her and how it had happened to her. For these reasons, I accept her as a convincing and credible witness.

71. Whilst the complainant’s story demonstrated that she did not put up any resistance the whole time and more particularly when the act of sexual penetration occurred, she also said she did not consent to the act of sexual penetration. I am mindful that the law in s 347A of the Criminal Code Act is clear in that a person can submit to the act of sexual penetration because of the use of violence or force, threats or intimidation, or fear of harm to that person or the person submits because he/she is unlawfully detained.

72. In accepting the complainant’s evidence that when the two armed men were told by the accused to go away from them, in which they complied and went out of sight, this was so to allow for the act of sexual penetration to occur. But, although they were out of sight, they were still within the vicinity and were still armed.

73. I accept the complainant’s story that the act of sexual penetration occurred in the manner and circumstances she had described.
Credibility of the defence witnesses

74. In light of the defence case, I am not convinced with the evidence from the accused and the defence witnesses that there is some doubt to the State’s case on the act of sexual penetration taking place. These are the reasons.

75. The accused did not appear truthful after this court found that the reason, he gave in examination in chief for picking up the complainant from her workplace was not true. Secondly, what the accused said about a young man sitting at the back of the vehicle was not true.

76. I do not believe the defence story that on the morning of the 30^th of April 2018, the Ower’s Corner was bustling with people and activities.

77. Further, the two defence witnesses did not convince me with sufficient evidence that they were certain that it was on the 30^th of April 2018 that the accused and the complainant visited Ower’s Corner. Their story therefore does not create doubt as to the State’s evidence on this.

78. There is no evidence about what is significant about that day, i.e. 30^th of April 2018, that makes them remember that it was that date, of all the other dates that the couple visited visit the Ower’s Corner.

79. I therefore, have doubts about the certainty of these two defence witnesses’ story about the date and that leads me to make a finding that this story was not true.

80. If the defence witnesses said the accused was a regular at Ower’s Corner, and that would mean that was not the only time and date they would have gone there, it became necessary for the defence to give more convincing evidence as to how or why these two witnesses were able to recall that specific date, the 30th of April 2018, of all the other dates.

81. A specific question was asked by the Court to Rosie Yori as to what it was that made her certain that it was that specific date that she saw the accused and the complainant and not any other dates. Her answer was that “it was because she saw the story in the newspaper”. She did not answer the question and that answer suggested that she was only told about the date. Mr Momoa, the ranger also did not give a logical and convincing explanation.

82. In this circumstance, to my mind, what would be convincing evidence would be records from the rangers’ office about activities of the day. Mr Momoa, who was purportedly the duty ranger, claimed to have been the only ranger on duty at that time. For sure, there would have been some records from the ranger’s office confirming this. That is not the case. Even though the witnesses both mentioned the date correctly, they still failed to show how they were able to remember that particular date of all the other dates. For this, I am not satisfied that the defence witnesses were convincing.
Corroboration

83. The law is clear. Since the amendment to the Criminal Code Act in 2002, corroboration is no longer required to make a finding on the allegations of sexual penetration. Whilst there is no medical report in the present matter, the court can convict on the uncorroborated testimony of one witness alone, i.e. the complainant’s evidence alone, provided her evidence is credible.

84. Section 52A of the Criminal Code Act on ‘Corroboration not required in in the following terms:

^“On a charge of an offence against any provision of this Division, 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".

85. Where the Criminal Code Act stipulates that corroboration is no longer required, it means that the court can convict in the absence of any corroborating evidence such as a medical report, provided the complainant’s evidence is reliable, trustworthy and convincing. There are numerous case laws in this jurisdiction on this. Two of such cases of which I cite are the cases of State v Robert [2019] PGNC 282; N8001; and State v Melly (No 1) [2009] PGNC 164; N3772 (13 July 2009). In the latter, the Court held in its captions that “Whether it is safe to convict on the uncorroborated evidence, evidence of victim must be credible and not contradicted by credible evidence by defence.”

86. Based on the discussions above, even though the complainant’s story is uncorroborated, where the evidence of the complainant was not contradicted in cross-examination, where the Court has accepted her as a truthful and reliable witness, and where the evidence of the accused was not credible, I find her story true and her story is accepted as the truth without the need for corroboration.

87. This Court finds that the complainant had not consented to the act of sexual intercourse in the circumstance where she was threatened and she had feared for her life and safety. She did not or could not have consented because of s 347A of the Criminal Code. The law on consent is clear. I find that the complainant did not resist to the act of sexual intercourse taking place, due to fear as she was assaulted and because she was threatened, and therefore, she did not give her free and voluntary 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: –

89. Further, if the complainant consented to an act of sexual intercourse with the accused on an earlier occasion, before the alleged sexual assault, but did not consent at the time of the alleged sexual assault, she did not consent at all.

“(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.

91. Whilst there is evidence that the complainant continued to engage in consensual sexual intercourse with the accused after the alleged sexual assault, up until the time she reported the incidents to the Police, that would not mean that she consented to sexual intercourse at the time of the alleged sexual assault.

92. There is sufficient research and findings on why women and girls in intimate partner violence related matters do not leave a relationship after a sexual assault, and continue to consent to sexual intercourse, even after an alleged sexual assault.

93. I cite a paper on “Sexual Activity between victims and perpetrators following a sexual assault: A systematic literature review and critical feminist analysis” by Katie M. Edwards and Christine M. Dardis, University of Nebraska, Lincoln. Based on this research material, one reason why women do not leave a relationship after a sexual assault, is that the complainant or victim was not aware of the law or not aware that their intimate partner’s behaviour was criminal in nature.

94. In this present matter, the complainant in her evidence had explained that she was not aware about the accused’s actions as being criminal until after she had told her full story to the authorities, she had then become aware of the full extent of the accused’s behaviours as being criminal in nature. The Public Prosecutor had opted to charge for offence of Rape after the complainant had told her full story. Evidence show that this was explained by the Arresting Officer and the complainant herself.
95. I am mindful that the circumstances surrounding the commission of this offence of alleged sexual assault or abuse is not the usual case of a stranger being the perpetrator where it would be expected that the complainant would usually, and immediately relate her story to someone or report to the Police or a medical officer. Rather, this is a case where the alleged perpetrator of the crime is the intimate partner of the complainant. This circumstance is different, and therefore there had been reasons preventing the complainant from making a report immediately. To assist the Court, the complainant did explain why she did not leave the relationship or did not report the matter quickly. Here, the complainant did say she continued to be in the relationship as she was not aware that the accused’s actions were criminal. She also said she did not report because she was not aware that the accused’s actions amounted to a crime.

96. Further, this Court is aware and mindful also of the research and study on the Cycle of Violence^[1]. In most if not all intimate partner violence cases, phases include the honeymoon phase where couples make up and continue the relationship despite acts of abuse, including sexual abuse. In such circumstances, it is clear that just because the complainant consented to acts of sexual intercourse following on from an alleged sexual abuse, it does not mean that the complainant or victim had consented to sexual intercourse at that prior alleged instant of sexual abuse.

97. Acts of sexual intercourse that were consensual in nature, following on from an alleged sexual assault does not mean that at the time of the alleged sexual assault, there was consent. Whilst the Criminal Code Act as amended, does not specifically state that to be so, in my respectful view, it can be the case based on the circumstances of each case.

98. Whilst it took five months to report the allegations of rape, I find that the complainant had sufficiently explained her reasons why she did not consent at that time and why she continued to be in the relationship thereafter. She said she was not aware that the accused’s actions were criminal in nature until she told her full story to the authorities. She was not discredited in cross-examination on this. This Court is also satisfied of her explanations and accepts her story as credible and is the truth of what had happened to her.

99. For all of the above discussions and reasonings, this court makes the finding that the act of sexual penetration did occur in the manner told by the complainant.
Was the complainant assaulted?

100. Immediately after the act of sexual intercourse, I find that the complainant was assaulted with the belt in the manner she described. I accept her story over the accused’s story because she is credible for the reasons I mentioned above and I find that the accused was angry over what the complainant did the night before. I rejected the accused’s story that he had no reason to and did not assault the complainant. This is because I do not find him convincing for the reasons I summarise below.
Summary of the reasons for finding that the accused is not a credible witness

101. This is why I say the accused is not a credible witness and therefore, cannot be believed when he said he did not assault the complainant:

102. Based on all of the above points in sub para (1) – (6), I make the finding that the accused’s story was untrue and he cannot be believed. I find the complainant’s story consistent and is plausible with common sense and logic in the given circumstance of the case. Where she did not try to improve on her story, makes her story believable and this Court finds her credible.
Alleged motive of the complainant

103. I am not convinced that the complainant had a motive which is to get back at the accused for leaving her or going into another relationship. There was no evidence at all to support this except Counsel putting it once to her in cross-examination and she disagreed. Where no further convincing evidence was led on this motive, I reject it.

104. The complainant had denied that she had a motive to fabricate these allegations. There is no evidence in support of the defence case that there was motive, to raise doubt in the court’s mind that the complainant framed this story to get back at the accused.

105. I accept the complainant’s story that there was no ulterior motive, or improper cause for laying the criminal complaint and giving evidence against Mr Agen on these charges. She told her story as it happened to her and because it happened to her.

106. If the complainant is framing a story, I wonder why she did not choose a scenario where they are alone in a room, where such an act can take place in the absence of the public eye, and where she need not worry about relatives or tribesmen, porters, rangers, passer-by and locals at a public space like Ower’s Corner. It would have been easier for her to tell a make-belief story of rape within closed doors, away from public eyes.

107. Given the defence submission that the complainant had fabricated the charges, I ask myself this question. If I accept the accused’s story that the complainant is making up this allegation against the accused, why did she choose a place like Owen’s Corner? In the light of the relationship issues, the anger, the dominance and the revenge, the answer, that is plausible with common sense and logic in the given circumstance is that this is the truth of what had happened to her in the way she had experiences. She did not try to improve on it and that was convincing.

108. The conclusion I now come to is this. There is no other hypothetical theory that will raise doubt in the Court’s mind as to the accused’ guilt. The story as told by the complainant is told by her according to how it occurred to her, and at the Owen’s Corner, where she was sexually abused and physically assaulted.

109. Where the complainant did not improve on her story by agreeing to the defence that there was no obscurity, I accept that, it was because that was the circumstance of the case. There were no persons at that time and the two passers-by had come and gone. The complainant was forced, threatened and she felt threatened and feared for her life. It was under those circumstances that the act of sexual penetration did occur within a matter of minutes as she described.

110. For all of the above discussions and reasonings, I am satisfied that the State had proven its case beyond a reasonable doubt that the accused had sexually penetrated the complainant against her will.

111. Based on the above, I find that on counts 1 and 2, the accused is guilty as charged, and I convict him accordingly of one count of Assault occasioning bodily harm contrary to s 340(1) of the Criminal Code Act and one count of Sexual Penetration without consent contrary to s 347 (1) of the Criminal Code Act.
Count 3, alternatively Count 4

112. In relation to Count 4, apart from the evidence of the state witnesses, which I find to be credible and coherent, there were admissions in the accused’s Record of Interview (ROI).
Admissions in the Record of Interview (ROI)

113. The ROI was received and admitted into evidence. It is relevant as it contained details of the circumstances surrounding the assault at Waigani, in Mr Kamasuga’s house.

114. These are some relevant parts of the interview, showing answers the accused gave to questions asked during the Police interview.

115. There has not been any challenge to the admissibility of the ROI. There was no voir dire conducted to challenge that. It was too late to raise any objections when the accused through learned counsels had the opportunity to file and give a voir dire notice to the State to challenge the admissibility of the ROI.

117. The Court accept the evidence on the admissions, where the accused admitted to punching with his fist, and dragging the complainant, which is consistent with the complainant’s own story that she was punched and dragged.

118. In accepting the admissions in the ROI, this Court notes that any challenge to the answers in the ROI was not put in cross examination to Mr Kraip the Arresting Officer. This is another breach of the rule in Browne v. Dunn. For that, this Court rejects the accused’s story and find that the story is a recent invention to diverge form the truth of his admissions.

119. In so doing, I find that his stories that in the course of him lifting the complainant, and in the struggle that ensued, she fell, which then caused her the injuries were all untrue. The accused did not tell the truth. The truth this Court finds is that the complainant received the injuries to her nose, jaw and body from punches and kick by the accused. He had used his fist when he punched her on her face as he stated in his admissions in the ROI.
Evidence on the complainant’s past sexual conduct

120. Failure of both counsels in administering ss 37G and 37H of the Evidence Act, makes the evidence of any past sexual conduct of the complainant inadmissible. The court will not rely on those evidence in the absence of compliance with legal requirements.

[7]In a proceeding with respect to a sexual offence, evidence of the sexual reputation, of the Complainant whether general or specific, is not admissible.

(a) the complainant shall not be cross-examined as to his sexual activities; and
(b) no evidence shall be admitted as to the sexual activities of the complainant, except with the leave of the court.

(2) The court shall not grant leave under this section unless the judge determines, in accordance with the procedures set out in Subsection (5), that the evidence –

(a) is of a specified instance of sexual activity; or
(b) is relevant to an issue at trial; or
(c) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

(3) In determining whether evidence is admissible under Subsection (2), the judge shall take into account –

(a) the interests of justice, including the right of the accused to make full answer and defence; and
(b) society’s interest in encouraging the reporting of sexual offences; and
(c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case; and
(d) the need to remove from the fact-finding process any discriminatory belief or bias; and
(e) the potential prejudice to the complainant’s personal dignity and right of privacy; and
(f) any other factor the judge considers relevant.

(4) Evidence that the complainant has engaged in sexual activity, whether with the accused or any other persons, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant –

(a) is more likely to have consented to the sexual activity that forms the subject matter of the charge; or
(b) is less worthy of belief.

(i) detailed particulars of the evidence that the accused seeks to adduce; and
(ii) the relevance of that evidence to an issue at trial; and

(6) The complainant cannot be compelled to give evidence in an application for leave under this section.

(7) If the court grants leave under this section, the judge must state in writing the reasons for doing so.”

122. The above-cited legal procedure was not followed, and consequently, evidence of the complainant’s past sexual conduct cannot be relied upon.

123. If the accused believed it to be the case that the complainant was not monogamous in their relationship, and according to him, that was the reason he was provoked, or became angry, that story is not consistent with what he said in his ROI. In the ROI, he said the complainant used vulgar language and he was provoked. In the ROI, there was no mention of the accused’s suspicions of the complainant. All he said was that ‘there were no reasons to threaten her,’ which I find is untrue. The accused’s answers were not consistent. I find him untruthful and his story cannot be believed.

124. What the accused did say in the ROI was that it was not their home and he wanted to take the complainant home. He said when she swore, that had provoked him. Again these are two inconsistent reasons for saying he was being provoked. Inconsistent with each other, and not put to the complainant in cross-examination is a breach of the rule in Browne v Dunn. The Court, therefore, rejects the accused’s story that he was provoked because of those reasons.

125. This Court accepts the complainant’s story that the accused assaulted her at Red Rock Bar, and then at the car park of Mr Kamasuga’s residence. In light of his own story, he was suspicious of her. She therefore had every reason to believe that if she went with him, she would be subjected to more harm and danger by him.

126. The complainant therefore refused to go with the accused because of the violence perpetrated on her at Red Rock Bar and then later at the car park at Waigani.

127. Whilst the accused said he had no reason to be angry so as to assault the complainant, he did say a lot of things about her that would demonstrate that he would have a reason to be angry. Firstly, at the Red Rock Bar, he said the complainant was not monogamous in their relationship and therefore was not trusted. She had gone missing momentarily at the Red Rock Bar and he was suspicious of her movements. He also did say it took some convincing to get her to go with him after the night at Red Rock Bar. All of this demonstrated that he was suspicious of her having or making communications with someone else.

128. At Waigani, he again said she had the tendency of going off with other men and so he had suspected her of talking to a man on the phone whilst inside Mr Kamasuga’s house. For all of this, I find that there were reasons for the accused to be angry and upset with the complainant both at Red Rock Bar and later at Waigani. The reason was that the accused was suspicious of her. The complainant, therefore, did not want to go with the accused as he was being suspicious and was abusive. The accused would not let her go without becoming physical or violent. I accept the complainant’s story to be true that she was assaulted by the accused both at the Red Rock Bar and also at Waigani.

129. The accused’s actions, therefore, were not justified in the circumstance.

130. To illustrate the point further that the accused had become angry, physical, violent and was dominating, I quote from counsel’s submission on verdict, for the defence. It was submitted that:

“In a sexual relationship – every partner is compelled by their inclination, to maintain the attention of the opposite partner to themselves at all costs. Mr Agen was suspicions of the complainant and had to secure her company, it was normal human instinct. He also did not trust her. If she complied, she would not have suffered injury. She voluntarily contributed to the risk.” (Underlined emphasis mine).

131. This submission suggested that the accused would do anything to get the complainant to go with him.

132. This submission is not based on the law and is no doubt based on the accused’s instructions. The accused convinced himself that he acted out of provocation because of the complainant’s claimed polygamous behaviour and that he can do anything to maintain the complainant’s attention on him. That is not a valid defence in law. But if the accused can show that he was provoked in the non-legal sense, that may be considered a de-factor provocation for purposes of mitigation on sentence.

133. The very act of lifting the complainant off the couch like the accused said he did, when she clearly was able to comprehend things, decide for herself not to go with him, and when she refused to go with him after the assault at Red Rock Bar and then later at the car park of Mr Kamasuga’s house, the accused’s actions were an assault according to the Criminal Code definition of assault.

134. The accused’s admissions in the ROI of punching and dragging the complainant also amounted to an assault.

136. It was the defence submission that due to the belief the accused held of the complainant’s alleged promiscuity, and that the accused was suspicious that the complainant was trying to meet another person, she was putting up a violent and relentless resistance which caused her to fall down and hurt herself. This, however, was not put to her in cross-examination in that specific way. Again this was a breach of the rule in Browne v Dunn. There is no other evidence to support this story. On this basis, the Court rejects the accused’s story that the complainant fell and hurt herself.

137. Cases cited by defence counsel for the accused, i.e. case of State v Meapato [2005] PGNC 200; N7000 (18 April 2005), involves a charge under s 315 of the Criminal Code, i.e. the offence of Grievous Bodily Harm (GBH) with intent. The accused in the present matter is not charged with s 315 GBH with intent but rather s 319 GBH, where intent is not an element of the offence. Arguments on presence or absence of the element of intent therefore are not applicable on a charge under s 319 in the present case. I do not consider those submissions as they are irrelevant.
138. I do find that the accused assaulted the complainant in the manner she described and in the manner the accused admitted in his ROI. She was punched and kicked in the face and all over her body. She was punched on the jaw and did sustain sever bleeding, swollenness and injuries to the face.

139. However, on the element of any permanency of the injury on the jaw of the complainant, this court is not satisfied that there is sufficient proof beyond reasonable doubt in the absence of the evidence of a review report that the injury to the jaw, that is a linear line fracture to the mandible was permanent.

140. I do note that the complainant did suffer from pain, and swollenness of the face and was not able to eat solid food. She was prescribed painkillers which she took until she went for x-ray and was treated for a left jaw minor injury. There was evidence that the complainant had fully recovered and the injury was not permanent. There was no review report to say otherwise.
Conclusion on Counts 3 and 4

141. Consequently, I am not satisfied on proof beyond reasonable doubt and do not find the accused guilty as charged on the indictment on one count of GBH contrary to s 319 of the Criminal Code Act. Alternatively, I find the accused guilty of one count of Assault causing bodily harm, contrary to s 340 of the Criminal Code Act.
Final orders

Orders accordingly.
________________________________________________________________
Public Prosecutor: Lawyers for the State
Napu and Company Lawyers: Lawyers for the Defendant

No.	Document Title	*Exhibit Number*
1	Record of Interview of the accused Robert Agen, dated 20/09/2018, Preferred English version, 4 pages	*“S1”*
2	Affidavit of Dr Lenturut-Katal, dated 9/12/2021, attaching to it her Medical Report dated 21/09/2018 for AHJ	*“S2”*
3	Affidavit of Dr Lenturut-Katal, dated 9/12/201, attaching to it the Medical Report of Dr Poyap Rooney dated 11/09/2018, for Ms AHJ	*“S3”*
4	2 x A4 pages of printed photographs of the complainant. 2 photographs on each page, totalling to 4 photographs.	*A4 page 23 - “S4”* *A4 page 24 – “S5”*
5	Statement of Joshua Kraip	*“S6”*

National Court of Papua New Guinea

State v Agen (No 7) [2022] PGNC 598; N10294 (14 December 2022)