Pung v Independent State of Papua New Guinea [2016] PGSC 28; SC1510 (28 June 2016)

SC1510

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA NO.36 OF 2002

BETWEEN

PETER PUNG

Appellant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Wiagani: Lenalia & Sawong; JJ

2014: 27^th February

2016: 28^th June

CRIMINAL LAW – Conviction – Appeal – Rape – Consent – whether verdict unsafe and unsatisfactory – Appeal against conviction dismissed.

Cases Cited.

Amet vs. Yama [2010] SC 1064
Guest vs. Norminal Defendant [2006] NSW CA 77.
John Beny vs. The State [1977] PNGLR 115
Rage Augerea vs. The Bank of South Pacific Ltd [2007] SC 869

Overseas Case.
Suvaal v Sesnok City Council [2003] HCA 41; (2003) 77 ALJR 1449 at 1455,

Counsel:

L. Mamu, for the Appellant
J. Kupmain, for the Respondent

28 June, 2016

Introduction

1. LENALIA & SAWONG, JJ: The Appellant appeal against its conviction on 26^th November 2012 on two counts of rape of 1 Elizabeth Peter on 22^nd April 2010 at Gerehu stage 2, National Capital District, contrary to section 347(1) Criminal Code. He was sentenced to 12 years imprisonment on each of the counts, but the sentences were to be served concurrently.
   

The Brief Facts

2. On the 22^nd of April 2010, between 5pm and 6pm after finishing work at a bakery at Sabama, the complainant got into a bus and went to 4 mile or Boroko where she went down. She waited for another bus to continue her journey to Morata No.1. It got dark as she waited. As she waited she saw a bus no.17 which was driven by the accused and knowing the accused she went into the said bus. The bus dropped off passengers at Gordons then proceeded to Morata No. 2. The victim tried to get off at Morata No.2 but the accused told her to stay on and that she would be dropped off later at her house. Instead of taking the Morata No.1 road, the accused drove straight to the bus owner’s residence at Waigani to leave the day’s taking. After that, as they drove out of that residence, the accused ignored the victim’s request to drop her at her house at Morata and drove the bus to Gerehu.
   
3. On the way to Gerehu, the victim pleaded for the accused to drop her at an alternative place, being her sister’s place at the Gerehu police barracks but again he ignored her. The accused then drove to Gerehu stage two and drove into a yard where the accused lives and there he sexually penetrated her twice.
   
4. Upon arraignment the appellant pleaded not guilty and a trial was therefore conducted.
   
5. The State’s evidence consisted of the complainant’s sworn oral evidence, a medical report and Doctor, Professor Amoa’s sworn evidence, the complainants husband’s sworn evidence and in addition, the Record of Interview between the appellant and the police investigating officers.
   
6. The defence evidence constituted of the sworn evidence of the Appellant and two other witnesses.
   
7. The only issue at trial was whether the sexual intercourse was consensual.
   
8. The appellant was convicted on two counts of rape and sentenced to a sentence of 12 years IHL to be served concurrently.
   
9. He is now appealing against his convictions on the sole ground that the verdict is unsafe and unsatisfactory.
   

Grounds of Appeal

10. The ground of appeal as set out in the Notice of Appeal is in the following terms:
    
    1. That the convictions are unsafe and unsatisfactory in that:-
       

(i) The Trial Judge erred in law in not considering the facts and evidence of the victim relating to the alleged dragging of the victim into the house at Gerehu Stage 2, by the Prisoner on the night of 22^nd April 2010 immediately before the alleged rape occurred and whilst committing the offence; and

(ii) The Trial judge erred in fact and in law in not giving weight to the medical evidence of the Doctor Professor Bediako Amoa who gave expert opinion explaining the Medial Report, particularly how long a cut or scratch remains as “fresh cuts”; and

(iii) The trial judge erred in law in finding that defense witnesses were not truthful and in not giving weight to their evidence in the absence of any basis in law such as a finding of inconsistency or irrationality; and

The claim that the verdicts are unsafe and unsatisfactory.

11. It is now urged that the conviction should be set aside as being unsafe and unsatisfactory for a number of reasons, all relating to the evidence of consent. The appeal is therefore brought under section 22(1) (a)(b) of the Supreme Court Act, in reliance upon section 23(1)(a) thereof which states:

“Subject to sub-section (2), on an appeal against a conviction the Supreme Court shall allow the appeal if it thinks that –

(a) the verdict should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory....”

12. The prosecution case was one of two counts of rape pursuant to s.347 of the Criminal Code Act.
    
13. Section 347 of the Criminal Code reads:
    
    • (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 life imprisonment.

Consent

14. “Consent” is defined by Sections 347 A (meaning of consent) and 347 B (where belief in consent is not a defence).
    
15. Section 347 A reads:

“347 A – MEANING OF CONSENT

(1) For the purposes of this Part, “consent” means free and voluntary agreement.

(2) Circumstances in which a person does not consent to an act include, but not limited to, the following: –

(a) the person submits to the act because of the use of violence or force on that person or someone else; or

(b) the person submits because of the threats or intimidation against that person or someone else; or

(c) the person submits because of fear of harm to that person or to someone else; or

(d) the person submits because he is unlawfully detained; or

(e) the person is asleep, unconscious or so affected by alcohol or another drug so as to be incapable of freely consenting; or

(f) the person is incapable of understanding the essential nature of the act or of communicating his unwillingness to participate in the act due to mental or physical disability; or

(g) the person is mistaken about the sexual nature of the act or the identity of the person; or

(h) the mistakenly believes that the act is for medical or hygienic purposes; or

(i) the accused induces the person to engage in the activity by abusing a position of trust, power or authority; or

(j) the person, having consented to engage in the sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity; or

(k) the agreement is expressed by the words or conduct of a person other than the complainant.

(3) In determining whether or not a person consented to that act that forms the subject matter of the charge, a judge or magistrate shall have regard to the following: –

(a) the fact that the person did not say or do anything to indicate consent to a sexual act is normally enough to show that the act took place without the person’s consent; and

(b) a person is not to be regarded as having consented to a sexual act just because –

(i) he did not physically resist; or

(ii) he did not sustain physical injury; or

(iii) on that or on an earlier occasion, he freely agreed to engage in another sexual act with that person or some other person.

16. Section 347 B reads:
    

“347 B WHERE BELIEF IN CONSENT IS NOT A DEFENCE

It is not a defence to a charge under this Part that the accused person believed that the person consented to the activity that forms the subject matter of the charge where –

(a) the accused’s belief arose from his –

(i) self-induced intoxication; or

(ii) reckless or wilful blindness; or

(b) the accused did not take reasonable steps, in the circumstances known to him at that time, to ascertain whether the person was consenting.”

17. The appellant’s submission is that, the convictions are unsafe and unsatisfactory for three reasons. Counsel for the appellant has cited authorities from cases involved in civil matters in support of his submissions. Those authorities are not exactly on point.
    
18. Distilled to their essence, as we understand them, counsel for the appellant advanced three principle submissions. First he argues that the learned trial judge did not address the issue of allegations of the complainant of being dragged, pulled and struggling, which are said to be material to the issue of consent. It is also submitted that the trial judge did not give any reasons why he did not address his mind to this aspect of the allegations and the state evidence. Secondly, it is submitted that the trial judge did not give any good reasons and basis for rejecting the medical evidence. Thirdly, it is submitted that the trial judge gave no reason why he reject the evidence of the two defence witness.
    
19. We would reject each of the submissions.
    
20. The test to be applied when the ground of appeal is founded on the ground that the convictions are “unsafe or unsatisfactory” is to be found in John Beng v The State [1977] PNGLR 115. There the Supreme Court, after discussing and analyzing decisions in the United Kingdom, relating to the expression “unsafe or unsatisfactory” in that country’s statute held that on an appeal against conviction pursuant to S.22 (1) (a) of the Supreme Court Act, 1975, the Supreme Court must be satisfied that there is in all the circumstances a reasonable doubt as to the safeness or unsatisfactoriness of the verdict before the appeal will be allowed. This test has been applied in many other subsequent cases. See Bernard Touramasong & Others v The State [1978] PNGLR 337.

21. It was consent or no consent. Intercourse was not denied, nor identity, nor the presence of the accused at the scene, nor many of the events leading up to the matters complained off.
    

Ground 1

22. In our view the way submission has been framed and submitted is such that in our view the submission is misconceived. The allegations that were raised by the prosecutor are not the evidence on which the Court convicted the Appellant. The allegations are just that – allegations – the allegations are not the proof of the matters in dispute between the parties.
    
23. The evidence must be considered in its totality. The trial judge was faced with slightly different versions or variations coming as it did from the complainant and her witness and from the appellant and his witnesses. However there were important and crucial facts which were not in dispute. There is no dispute that the complainant was in a bus driven by the appellant on that afternoon. There is no dispute that the complainant knows the appellant. She had seen him before, the complainant’s husband knows the appellant. There is no dispute that the complainant lives at Morata No.1. There is no dispute that the appellant drove the bus to the bus owner’s residence which is along the road to Tokarara. The appellant then drove out to the Waigani junction leading to the road to Morata but instead of going to Morata he drove all the way to Gerehu where the incident took place. There is no dispute that the appellant had sexual intercourse with the complainant in a room and the next morning they drove out together. The complainant in her evidence stated that as soon as the appellant was heading towards Gerehu, she was fearful and shaken. She asked to be dropped off at the Gerehu Police Barracks but the appellant did not listen to her. When they eventually arrived at Gerehu stage 2, she resisted his advances. She was at a new and strange place, a place where she had no relatives. She was fearful of going out. Her evidence from the beginning to the end was consistent in that she did not consent to having sexual intercourse with the appellant. Her evidence of the lack of consent was not destroyed in cross-examination.

Her evidence is supported by her husband. She complained to him the next morning of the incident.

24. On the other hand the appellant and his witnesses gave varying versions and details regard to the movements and so forth. That is why the trial judge said this:
    

“The Court has assessed and weighed all the evidence”.

25. Then he says the Court notes at the outset that this case is plagued by false hood. [At pages 158-160]. In these pages the learned trial judge points out to examples of false evidence given.
    
26. Whilst it maybe said that the leaned trial judge did not address his mind, in our view a careful reading of his Honour’s decision reveals that his Honour did in fact considered and accepted the evidence of the Complainant including that of the matters complained off. These are set out in the learned trial judgment on the verdict.
    
27. After setting out many and considering many of the different issues raised his Honour said this [At page 161]: “and the truth is that, the accused took the victim to Gerehu against her will and had sex with her twice without consent”.
    
28. In our view the matters complained off in this ground are covered by his Honour’s decision at page 161 of the Appeal Book.
    
29. Whilst the trial judge might not have expressly addressed his mind to the aspect complained of by the appellant, in our view this is not fatal to the conviction. In our view, reading his Honour’s judgment, we are of the view that his Honour did consider these aspects in his reasons.
    
30. For those reasons we dismiss this ground.
    

Ground 2

31. Here the complaint is that the learned trial judge erred in fact and in law in not giving weight to the medical evidence of Dr Amoa who gave expert opinion explaining the medical report particularly as to how long a cut or scratch remains as “fresh cuts”.
    

The appellant contents that there was absolutely no good reasons and basis for not giving weight to the medical evidence even after it had been properly admitted into evidence. Here the appellant submits that the learned trial judge did not consider the evidence of the doctor who stated that “if you sustained stretches and bruises we would expect the healing would be far advanced”. During the trial it was put to her that she had lied to the doctor and the Court that she had suffered or sustained the injuries set out in the medical report from the rape incident when in fact she sustained those injuries when her husband assaulted her when the prisoner admitted having consensual sex with his wife. It was submitted that when her husband gave evidence he was cross-examined and put to him that he assaulted her resulting in her suffering injuries and that the injuries described by the doctor was not sustained during the sexual intercourse with the appellant.

32. The respondent submits that the learned trial judge did not make any error in rejecting the doctor’s evidence and the medical report. It was submitted that the learned trial judge had weighed out all the evidence for the state and the defence, and the learned judge acted properly in rejecting the medical report.
    
33. During the trial in examination chief the doctor was asked:
    

“Professor, on page 2 of the medical report of the complainant there are some – report of – has suffered some injuries to her hands and legs; that is her elbow and her knees and to her back also. In your profession as a medical – professor can you read..... answer: you are referring to paragraph four.

Question: Yes Professor.

Answer: ok, second page.

Question: Yes, of the medical report. Take time to look through it and then

Answer: yes I have looked through it.

Question: Professor in your medical opinion, what do you think would have been the likely cause of these injuries?

Answer: It could be anything. We need to take the report as part of the painting of the whole scenario.

According to the patient, the survivor of the sexual assault that is Elizabeth Peter, she was pulled and dragged into the grudge and so all the injuries that have been described here; scratches on her right elbow and left elbow, right knee and left knee and the posterior aspect of her right upper arm and right flank at the back side of the lumber region, that is the lower back, this would be consistent with what the survivor, Elizabeth Peter, described as to what happened to her”.

34. In cross-examination by Mr Mamu the following question and answers are recorded.
    

“Question: When you – first scratch, could you explain a first scratch. What do you mean when you report – write a report and say that.

Answer: I have no doubt Sir that you have on an occasion or two experienced a scratch mark on your own body and you have noticed the nature of the injury. It is sometimes maybe accompanied by a little oozing of blood, a little loss of skin here and there. If it is fresh it is usually show quiet painful, quiet tender, the surface area there is no show of evidence of healing. So, you can make a shrewd judgment as to how long the injury has occurred when healing has already started and it is obviously show then you can hardly described the injury as fresh. It may have happened several days earlier. Exactly as to the terms of hours or days when there is an obvious change from fresh injury to a healing injury one cannot be exact. Human injuries are not exact science and it is difficult.

But, from the experience of the clinician there can be an easy judgment as to how fresh the injury is. As we have said before this description has to be taken in totality. In conjunction with the totality of the events that were described by Elizabeth Peter to the doctor who was recording the event.

After further question and answers Mr Mamu asked the following questions.

Question: Doctor if I – is it possible that the victim might have received those injuries from another incident apart from the rape.

Answer: You are asking me to speculate”

35. Then further on he is asked by Mr Mamu...“from your assessment of the injuries, the assessment of the report is it possible that those injuries must have, is there a possibility that such injuries are also sustained from a fight.
    

Answer. Anything is possible but to the balance of the probability based on the narrative would have to dwell on the fact as described.”

36. The complaint here by the Appellant is that the learned trial judge did not give good reasons for not giving weight to the medical evidence after it had been properly admitted into evidence. This case involved two conflicting theories as to the cause of the prosecutrix injuries. Each party submits that the theory advanced by the other is improbable. In a case such as this the appellate Court must bear in mind that a trial of fact, confronted with divergent of versions being advanced by the parties, may decline to accept either case. See Suvaal v Sesnok City Council ([2003] HCA 41; 2003) 77 ALJR 1449 at 1455, See also Guest v Norminal Defendant [2006] NSW CA 77.

37. In his judgment the trial judge said:
    

“The Court has also considered the medical report and the Court has decided to give no weight to it because questions raised was not satisfactorily answered by the medical witness. The doctor who examined the victim and wrote the report is no longer in the country”.

38. In our view it was open to the trial judge to accept or reject either in part or wholly the medical evidence including the medical report. The mere fact that the trial judge had allowed the medical report to be admitted into evidence did not necessarily mean that the trial judge was duty bound to accept either in part or in the whole the evidence contained in the medical report. He chose not to rely on the medical report and rejected it on the basis that the author of the report had not been called to give evidence and be cross-examined. He also chose not to give weight to the Dr’s evidence. He has given reasons why he rejected this piece of evidence.
    
39. We find no error on this aspect. We dismiss this ground.
    

Ground 3

40. Here the submission is that the trial judge gave no reasons for the conclusions that he arrived at when he said:
    

“In all the circumstances I have decided to reject the evidence given by the accused and his version of facts as they consist of untruth evidence. The two witnesses who came to Court to testify for the accused and promote his untruth evidence must suffer the same fate for the same reasons. In addition, they were unimpressive, they gave calculated answers”.

41. In so far as this ground is concern, we have read the evidence given by the Appellant and his two witnesses. We have also considered carefully the evidence given by the Appellant and his two witnesses.
    
42. The trial judge has assessed the witnesses as they gave evidence. The reasons why he did not accept their evidence is set out above. There is no merit in this ground. We would dismiss this ground also.
    
41. We would dismiss the appeal and confirm the convictions and sentences.
    

_____________________________________________________________
Public Solicitor : Lawyer for the Appellant
Public Prosecutor : Lawyer for the Respondent