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State v Kindung [1996] PGLawRp 741; [1996] PNGLR 355 (26 April 1996)

PNG Law Reports 1996

[1996] PNGLR 355 - The State v Michael Kowih Sipopoi Francis Pangih Kindung

[1996] PNGLR 355

N1428

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

MICHAEL KOWIH SIPOPOI FRANCIS PANGIH KINDUNG

Lorengau

Jalina J

23 April 1996

24 April 1996

25 April 1996

26 April 1996

CRIMINAL LAW - Rape - Evidence - Accused alleges that penetration was effected by finger and not penis - Whether penetration of the victim�s vagina was effected by the accused�s fingers or by his penis.

CRIMINAL LAW - Evidence - Rape - Penetration victim did not feel sperm being released inside vagina - Accused claim to have released sperm outside vagina - Whether presence of spermatozoa inside victim�s vagina essential to sustain the charge of rape or is merely corroborative evidence.

WORDS AND PHRASES - Pidgin lingua franca - words - �kuap�, �kuapim�, �puspus� - meaning of.

Facts

N1>1.������ The accused followed the victim along the beach after the victim spent a night at a video show and was returning to her house, and assaulted and eventually effected penetration of her vagina from her rear. Victim did not feel sperm released inside her vagina. Accused alleges that he effected penetration of the vagina with his fingers only and ejuculated sperm only rubbing against her thighs well outside the victim�s vagina.

Held

N1>1.������ Penetration of the vagina is one of the essential elements of rape. Not the presence of sperm. Presence of sperm is merely corroborative evidence. A person can still be convicted if penetration is proved even though there is absence of sperm.

N1>2.������ Found on the evidence that the accused effected penetration of the victim�s vagina by his penis since the extent of injury inflicted on the victim�s vagina were only capable of being caused by a fully erect adult male penis.

N1>3.������ On the issue of consent, victim�s evidence of forced sexual intercourse is corroborated by the medical evidence of torn hymen and bleeding in the vagina.

Counsel

N T Sios, for the State.

N Motuwe, for the accused.

26 April 1996

JALINA J: This accused has pleaded not guilty to a charge of rape. The victim gave sworn evidence and was vigorously cross-examined by Mr Motuwe, Counsel for the accused. The accused gave an unsworn statement from the dock and in accordance with established practice in this jurisdiction, he was not subjected to cross-examination. The rest of the evidence for the prosecution, including the medical reports and the record of interview, were tendered by consent of defence counsel.

From the evidence, it appears that at about 5 am on 2 September 1995 after an all night video show at Lahapau Village, Manus mainland, the victim decided to return to her village, Kokou and followed the road along the beach. She was accompanied by a female, Josephine Thomas, as far as a Mr Saun�s house. Josephine then returned leaving the victim to walk home alone. At Lukis Point the accused came from behind her (unknown to her), grabbed her around her waist with both his hands and they started struggling. The victim called out twice to the accused to stop as she regarded him as her uncle but without success. In the course of the struggle the accused assaulted her on her shoulder, back, thigh and other parts of her body with his clenched fists. She escaped once and tried to run away but he caught her and continued his assault. She said in her evidence that twice he carried her with one hand, between her thighs and his other hand over her shoulder and threw her down on the sand. She became weak and fell face down and he removed her black laplap and then removed her black underwear down to her ankles as she was lying face down. He tried to penetrate her from her rear but she crossed her legs tightly. He then hit her on both thighs and she relaxed and he opened both her legs with his hands and entered her vagina from the rear and had sex with her. She did not however feel him release his sperm inside her vagina. He then stood up and moved some distance away behind her. She got up, pulled her underwear up and with the laplap in her hand, ran towards her village.

On the way she met Genevieve Kuve. Genevieve was also on her way home after attending the video show at Lahapau village. Genevieve said that when the victim met her she told her �Sipopoi follow me and then fought me on both shoulders and took me into the bush�. Genevieve noticed that the victim appeared angry and had tears in her eyes and the victim told her that she was going to report Sipopoi to her mother. Genevieve also noticed some white sand on the victim�s back.

At about 5.15 that afternoon, the victim was taken by her mother to the Bundralis Catholic Mission Health Centre and was seen by Nursing Officer Anthonia Ndrakara. On examination, Antonia found that the victim was still bleeding and she had scratches which appeared to be scratches from finger nails on her left neck. She was still wearing her black pants. When she asked the victim to move both her hands, Antonia noticed that she appeared to be in pain. Antonia also noticed that the victim was not walking well because of the blow she received when the accused hit both her thighs. Because she was bleeding quite heavily Antonia referred the victim to the Lorengau Hospital for a doctor to examine her further.

Dr Otto Numan examined the victim at the Out Patient Department (OPD) of the Lorengau General Hospital at about 10.00 pm on the same day (2^nd September 1995). The victim was still wearing the same pants but she had changed her other clothes. The pants had blood on it. The following was revealed in the examination by Dr Numan.

N2>�1.����� Tender posterior neck and back of head

N2>2.������ Graze x 2 on the left neck

N2>3.������ Fresh blood on her vulva and perineum

N2>4.������ Tender introitus and perineum

N2>5.������ Hymen torn at 5 o�clock and was still bleeding.�

A swap was taken for microscopic examination but only showed red cells and epithelial cells and no spermatozoa was present. The patient had just completed her normal period three (3) days prior to the incident. The grazes on the neck are consistent with finger nail marks and the genital findings are strongly suggestive of a forced sexual intercourse. Except for one aspect where she agreed on cross-examination that one time the accused asked her to go to Family Life Programme and she refused and called him �long long� she was not shaken on cross-examination.

The accused gave an unsworn statement from the dock and maintained that he did assault her and wanted to have sex with her but she closed her legs tightly so he had sex with her outside from the rear but only between her thighs. He did not penetrate her vagina with his penis and that because she closed her legs tightly he only inserted his finger into her vagina.

There is no dispute about what happened to the victim up to the point when she was lying face down and her pants having been pulled by the accused down to her ankles.

The main issue is whether or not the tear to the hymen which resulted in bleeding was caused by the accused�s penis or by the finger he says he pushed into the victim�s vagina. To clarify my own mind over the possibility of the hymen being torn by a finger inserted into a virgin�s vagina, I reopened the case after final submissions by counsel and called Dr Numan to give oral evidence to enable me to put some questions to him to clarify his medical report.

After he explained aspects of his findings on the victim�s genital area, hypothetical questions were put to him by myself and both counsels as to the injuries that may be caused by a penis or some other object such as a finer being inserted into a virgin�s vagina and in the instant case what was it that caused the hymen to tear. He said that it was most likely caused by the penis. Asked whether the tear could be caused by something other then a penis, he said that the girl was a 15 year old virgin and it would take a big object to tear her hymen. He did not think that a finger inserted into her vagina could tear it because the diameter of an adult finger is smaller than the diameter of an adult fully erected male penis. He did however agree that a number of fingers inserted into the vagina could tear the hymen.

There are two basic issues that I have to consider in this case. The first issue is whether or not there was penetration of the victim�s vagina by the accused with his penis and if so whether it was done without her consent.

It has been submitted by Mr Motuwe, lawyer for the accused that because she was lying facing down and could not be sure whether the accused inserted his penis or his finger into her vagina coupled with her saying that she did not feel him release his sperm inside her as well as the doctors evidence that insertion of about three fingers could cause the hymen to tear, the torn hymen and the bleeding found by the doctor could have been caused by the accused�s fingers and not by his penis.

I reject this submission for a number of reasons. Firstly on the meaning of the pidgin words �kuap�, �kuapim� and �puspus�. These words must be given their natural meaning in pidgin. From my understanding of those words as a pidgin speaker they all mean the same thing. They mean sexual intercourse. That is sexual intercourse takes place between a male and a female with the male inserting his penis into the female�s vagina. As early as his answer to questions 37 up to question 55 he was answering questions about �kuap�, �kuapim� and �puspus�. It was when the police pointed out in Q56 of the difficulty he might have had in inserting his penis into the victim�s vagina from the rear when she was lying face down, that he said that he inserted his finger twice. When the police started asking him about him having sex using those pidgin words he could have easily and simply told them that �mi no kuapim em� or �mi no puspusim em, mi suvim finger bilong mi tasol ingo insait long kan bilong em�.

The second reason I reject the defence submission is based on normal human behaviour. Here is a man who is out in a secluded spot very early in the morning with a young girl assaulted and weakened lying naked face down on the sand and whom he tells the police in Q. 52 of the record of the interview was consenting, all of a sudden crosses her legs tightly, and he with his penis fully erect ready to enter her from the rear, decided to have sex with her between her thighs and release his sperm outside. That is unbelievable. He said he followed her and assaulted her because of the curse he claims she placed on him when she called him �longlong�. Why didn�t he assault her at the video show? If he followed her all the way to Lukis Point to assault her, why did he not assault her and go away but instead went further and stripped her by pulling her pants down to her ankles when she was lying face down weak and helpless?

The third reason relates to the submission that there was no penetration because she did not feel him release his sperm inside her vagina. Whether or not a woman feels a man releasing his sperm inside her vagina is a secret God has given to women only. I have heard many sexual offences in court in which some female victims have said that they felt sperm being released and some have said they did not. Women therefore have feelings. She did not feel his fingers inside her vagina for if that was the case she could have said so. She felt his penis but she did not feel him release his sperm. He probably withdrew his penis before ejaculation. May I also point out here that as to the point when a man is about to release his sperm is a secret that God has given only to men, thus giving the man an option to release his sperm inside or outside the vagina. He probably withdrew his penis before releasing his sperm which is why the victim did not feel it which is probably why he released it between her thighs. This brings me to the fourth reason. If he released his sperm between her thighs there is no evidence from her seeing sperm on her thighs. She was not cross-examined as to whether she saw the sperm on her thighs.

As the law stands, penetration of the vagina is one of the essential elements of rape. Not the presence of sperm. Presence of sperm is merely corroborative evidence. A person can still be convicted if penetration is proved even though there is absence of sperm.

The victim was subjected to a very vigorous cross-examination by one of the most experienced defence counsels in the Islands region and she was not shaken. I consider her as a witness of truth. Her demeanour impressed me. I place little weight on the unsworn statement of the accused which he made from the dock. Because of his statement being unsworn, the accused could not be questioned as to how many fingers he inserted into the vagina to determine the possibility of the hymen being torn by the fingers. Furthermore, he has told the police that she crossed her legs tightly and he denied hitting her thighs. That means that she still had her legs crossed. If so, how then did he insert his fingers accurately into the vaginal opening. It would have made it difficult for him to find the hole and in trying to find the hole with his fingers, his fingers could have caused scratches to her vulva or vaginal opening. The doctor did not find any injury to the introitus and the perenium. He found only tenderness there. The injury or tear he found was on the hymen which was right inside her vagina.

On the evidence as it stands, I find as a fact that the accused penetrated the victim�s vagina with his penis and the tear to the hymen with the resultant bleeding was caused by the accused�s penis.

As regards the issue of consent, there is more than ample corroborative evidence. The accused himself corroborates the victims evidence right up to the point that he is sitting naked on top of her. The victim�s evidence of forced sexual intercourse is corroborated by the medical evidence of torn hymen and bleeding which was seen by Dr Numan on the afternoon of the same day. Her failure to actually tell Genevieve Kuve that the accused raped her is of no consequence to me because she went to the doctor the same day and also to the police. She would not have done so if she was not raped.

The accused says in Q. 52 of the record of interview that she consented. This is unbelievable. I cannot see a woman who is assaulted consenting to sexual intercourse. If she consented then why did she cross her legs? If she consented why did she not lie down properly and let him have sex with her properly. If she consented why did she take the matter to the police and subject her body to medical examination? No sinister motive has been shown for her bringing this serious allegation against the accused which she regarded as her uncle.

On the evidence as it stands, on these issue of consent I find that the victim did not consent. I am accordingly satisfied beyond reasonable doubt that the accused had sexual intercourse with the victim on the day in question without her consent.

I find him guilty of rape.

Lawyer for the State: Public Prosecutor.

Lawyer for the accused: Public Solicitor.