Queen v Vakela-Api [1955] PGSC 6 (1 November 1955)

IN THE SUPREME COURT OF THE
TERRITORY OF PAPUA AND NEW GUINEA

JUDGMENT NO.75

THE QUEEN –v- VAKELA-API

JUDGMENT OF HIS HONOUR MR JUSTICE E.B. BIGNOLD
DELIVERED AT 10 a.m ON TUESDAY, 1st NOVEMBER, 1955

In this case the accused VAKELA-API is presented to the Court upon a charge that on the 2nd day of October, 1955 in the Territory of Papua he attempted to commit rape upon one JOYCE MARY WALLACE, a European woman, contrary to the provisions of section 3 of the White Women's Protection Ordinance 1926-1934.

Having regard to the gravity of the charge, the Court entered a plea of "Not Guilty.:" Mr Sturgess of Counsel appeared for the Defence and Mr Greville Smith of Counsel appeared for the prosecution.

There are some preliminary matters of law to be considered before attempting to consider the facts of the case.

IN the first place, it is essential to understand what constitutes an attempt.

An attempt is defined by Section 4 of the Criminal Code as follows:-

"when a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfilment and manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence, he is said to attempt to commit the offence.

"It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complet fulfilment of his intention is prevented by circumstances independent of his will, or whether he desist of his own motion from the further prosecution of his intention.

"It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.

"The same facts may constitute one offence and an attempt to commit another offence."

The offence alleged to have been attempted, namely rape, is defined by Section 347 of the Criminal Code as follows:-

"Any person who has carnal knowledge of a woman car girl, not his wife, without her consent, or with her consent, if the consent is obtained by force, or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false and fraudulent representations as to the nature of the act, or, in the case of a carried woman, by personating her husband, is guilty of a crime, which is called rape."

In the definition, the words "without her consent" should be construed as "without her free and conscious permission."

Carnal knowledge, a term used in the definition of gape,' is defined by Section 6 of the Criminal Code as follows:-

"When the term 'carnal knowledge' or the term 'carnal connection' is used in defining an offence, it is implied that the offence, so far as regards that element of it, is complete upon penetration."

It should be understood that the meanings are imported from the Criminal Code into the White Women"s Protection Ordinance 1926-1034 by reason of Section 2 of that Ordinance, which reads as follows:-

"In this Ordinance unless the context otherwise indicates the terms used respectively shall have the same meanings as are assigned to identical terms by the Criminal Code."

Finally, it should be noticed that by virtue of Section 7(2)(a) of the White Women's Protection Ordinance 1926-1934 a person charged as at present might, if the evidence did not support the charge, be found guilty of unlawfully and indecently assaulting the European woman, if the evidence was found to substantiate such a verdict.

Coming now to the question of evidence, there are two matters peculiar to this class of charge, which should be remembered, namely, that it is unsafe in practice to convict upon the uncorroborated testimony of the complainant. The nature of uncorroborated testimony has been defined in the Code, and that definition, whilst not imported by virtue of Section 2 abovementioned, will serve admirably to form a proper understanding of those words. That definition is as follows:-

"The term 'uncorroborated testimony' means testimony which is not corroborated in some material particular by other evidence implicating the accused person;"

Finally it should be remembered also that the evidence of the complaint by the complainant and its terms are admissible merely as a guide to the credibility of the complainant and not at all in proof of the facts.

In this particular case, it is to be observed that the complainant was too distraught to recall the terms of her complaint, and in these circumstances, the Court, in the very exercise of its discretion, allowed the evidence to be adduced by the persons to whom she made it upon the basis abovementioned.

Dealing now with the question of proof, the plea of "Not Guilty" obliges the Crown to prove every element of the offence, so that each is established beyond reasonable doubt. There is no burden upon the accused at all. In this case, the accused has elected, as he has every right to do, not to offer any evidence at all and so whatever decision the Court arrives at must be judged on the evidence adduced by the prosecution.

The prosecution must satisfy the Court beyond a reasonable doubt that an offence of the kind alleged took place and that it was certainly the accused and no other.

If the Crown falls below that high standard of proof, the accused is entitled to his acquittal. Subject however, that if his acquittal were in respect of the charge as framed, it would still be its duty to further consider whether or not the facts established with that high standard of proof the lesser offence of unlawfully and indecently assaulting the European woman.

Coming now to the facts, which are in a small compass. On the 2nd October, 1955 the complainant, a single woman, occupied a single man's hut No. 15 in the not highly imaginatively named suburb of Port Moresby, Newtown. She occupied it with another single woman, Beryl Twomey. Miss Twomey, in the early morning of Sunday, 2nd, left Hut 15 to see a friend off by aircraft at Jacksons' Strip, thus leaving the complainant alone in the Hut.

Both women occupy the only bedroom in the Hut which gives on to a small lounge-dinging-room. Access to the bathroom and toilet (which are combined) is through a small kitchen annexe.

After the departure to the Strip of Miss Twomey, the complainant described how she had occasion to visit the toilet, which she did clad in a dressing gown and some briefs. When she made the visit, she saw nobody in the house.

Upon her return to the bedroom, she closed the door and got into bed, but whether she took off her dressing gown or not, she cannot remember.

There is only one door giving access to the Hut, and it is the practice of the occupants of the Hut to leave the key in the Yale lock so that the accused, their employee for domestic work, can enter the Hut to do kitchen work, etc.

The complainant described to the Court that having dozed off to sleep, she was awakened by someone pulling the sheet and blanket off her and she was suddenly confronted with the accused bending over her. The time then was about 7.15 in the morning.

She noticed that the fly buttons of the accused's shorts were undone, though she says that she could not see his privates and did not at any time do so.

She says that he grabbed her about the middle and struggle ensued, whilst she called out – "Let me go," and screamed. The accused was, she says, all the time trying to get her briefs off, and she was resisting him. The struggle was quite prolonged because, says, she felt herself becoming exhausted. At no time did the accused get on the bed.

Doctor May, to whom she was taken about 9 o'clock examined her and found that she had two bruises on each of her buttocks and scratches on her legs about 5 or 6 inches above the ankle, as might be made by finger nails. His evidence leave me in no doubt that there was a serious struggle, and she says that she did not consent to anything that the accused did, and did nothing to give him any idea that she did. I believe her in this. Doctor May found her in a highly nervous state, so much so that he prescribed a sedative. Doctor May also testified that he could find no marks of any kind upon her external genitals.

The complainant then managed to get up from the bed, but cannot say whether the accused desisted so that she could do so or whether she got up of her own efforts, and moved into the lounge, where she realised that she was stark naked, and to cover herself, she re-entered the room and got Miss Twomey's dressing gown from behind the bedroom door, and in doing so, saw the accused doing up the buttons of his shorts.

Apparently the accused made no further attempt to molest her, and she ran barefooted to Mr Caldwell's Hut No. 13, about 30 - 40 feet away, and Mr Caldwell awoke to the screaming of a woman in his lounge, which, upon instant investigation, he found to be Miss Wallace. She told Mr Caldwell that she had been attacked; she was in a hysterical condition. Mr Caldwell at once went towards Hut No. 15 and saw accused outside tht Hut, but as he approached, the accused, in an unhurried way, entered, closing the door.

Mr Caldwell thereupon telephoned the Police, and it is a strange feature of the case that the accused, himself, before the Police could leave, telephoned the Police, saying "The Sinabada gave me some shorts and shirts to wash and said she would pay me. She did not pay me. I asked her for the money and she would not pay me. I am ringing up because I do not want any trouble." The Officer, Sub-Inspector Mycock, spoke to the accused, who had waited near Hut 15, as instructed, and he admitted that the telephone call was from him, but from which telephone it was made does not appear. The accused waited near the Police car whilst the Stab-Inspector went with the complainant into Hut 15 where he found some torn briefs on the ground near the bed, and the bed clothing in a tangle at the foot. There was also a dressing gown belt on the floor and a dressing goon of matching material on the foot of the bed. After a proper warning, and I was impressed with the capable and fair way that the Sub-Inspector has handled the case for the Police, the accused admitted that he had attacked Miss Wallace and gone into her room, and he repeated what he had said on the telephone about the washing and the pay for it, adding - "My heart was strong and I went in to Sinabada's room to make trouble."

The Sub-Inspector then, after further warning, spoke to the accused through the Motuan Interpreter Hirembi (A.C.)

When the accused again admitted being in the bedroom, and the Sub-Inspector says that he said - "I wanted to have the Sinabada" - I am satisfied that this is a mistake in interpretation, that Hirembi's account is correct, that he said that he wanted to make trouble (Kerere) for the complainant. The accused went on to admit that he took his trousers down about his knees and tried to pull her briefs off, when the fight ensued.

Miss Wallace also made a confirmatory complaint to the Police Officer, i.e., confirmatory of her credibility, and told him that her house-boy had attacked her, coming into her bedroom and taking all her clothes off.

Now, upon the facts as found, it is clear beyond any reasonable doubt that the accused did, without authority, enter Miss Wallace's bedroom. He removed her briefs after a struggle and on his own admissions, had taken his trousers down to the knees, and on the Crown evidence, had all the fly buttons undone. I am satisfied that there was a prolonged and violent struggle, not only from the complainant evidence, but from the medical testimony.

I do not feel, upon that evidence, that a Jury could come to any other conclusion that the accused was seeking sexual intercourse with the complainant, and knew quite well that it was against her wish, and started to put his intention into practice without regard to her wishes. In the view of the Court, the tearing off of the pants and the undoing of his own, and his presence in the bedroom beside the bed from which he bad drawn the bed-clothing from off the recumbent female, come within the definition of attempt, and I find him Guilty, as charged.

The Crown offered no evidence that the complainant was a European woman, but having had her before me, she is so obviously of that descritpion that I so find her, although it does not, of course, follow that upon a view every complainant's status could be determined in this manner.