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State v Kuman [1996] PGNC 64; N1511 (30 December 1996)

Unreported National Court Decisions

N1511

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR 954 OF 1996
THE STATE
v
PAUL BEN KUMAN

Mount Hagen

Lenalia AJ
24 December 1996
30 December 1996

CRIMINAL LAW - Rape - Not guilty plea - Trial - Criminal Code S. 347 (1) (Ch No 262).

CRIMINAL LAW - Rape - Defence of a valid subsisting marriage - Insufficiency of such evidence.

CRIMINAL LAW - Practice and procedure - Evidence in sexual cases - Corroborated as a matter of practice - A requirement.

The accused was charged with one count of raping the prosecutrix who has since been deceased and whose death was unrelated to this offence. His defence was that of a validly subsisting marriage between him and the victim at the time and date of the offence.

Held:

(1) ـ Where mere marriage to the prosecutrix was r as a defence to a charge orge of rape, the defence must prove on the balance of probability that there exists a valid subsisting mar betwhe ac and prnd prosecutrix.

(2)  Thereg nonevidence to supp support a customary nor a general law marriage, the accused must subsequently be found guilty of the charge of rape.

(3) &#Incircuces os a custodialodial senl sentencetence is a is appropriate but should be suspended.

Cases Cited:

The following cases are cited i judg:

Petp>Peter Toer Townsenwnsend v George Oika [1981] PNGLR 12

Andrew Tovue v The State [1981] PNGLR 8

Deidei v The State [1990] PNGLR 458

John Aubuku v The State [1987] PNGLR 267

Materials referred to:

“The Principles of Family Law in Papua New Guinea” by Owen Jessep & John Luluaki see pages 17-18

Counsel:

S Carter for the State

B Aipe for the Accused

JUDGEMENT ON VERDICT

30 December 1996

LENALIA AJ: The accused stands ed rged that on the 6th of May 1996, he raped Rose Tom a female person not being his wife. He ed a not guilty plea onea on the basis that there was a subsg marriage between him and the prosecutrix. There is e is no disputeo s to whether or not sexual intercourse took place. ccused thee alleged thed thed that sexual intercourse was a consensual act. It is very unfortunate that the victim is now deceand shnot exactly retelretell to the Court what occurred to her and whether there was any subsistbsisting valid marriage between her and thused. The State mainly relied o the evidence adducedduced by the cousin sister of the prosecutrix Peter Rose who accompanied the victim to the main bus stop on the morning of the relevant date. She was the only witness called by the State.

Peter Rose’s evidence is that on the date of this offence, the victim and herself walked up to the main bus stop to wait for a P take them to Kundiawa in the Simbu Province. While tile they waiting thng the accused approached them and enquired if the two girls had sufficient monies for their PMV fares. This witness ece is that that the accused suggested to them that the prosix should go back with him him to pick some more money. They agreedthe accused askd asked the witness to stay at the bus stop Rose Tom and the accused wsed walked towards Warakum holding their hands together.

After waiting for a long time (estimated tmore than one hour) the proe prosecutrix returned crying. Peter asked the victim whym why she was crying and the prosecutrix said the accused had done something bad to her. Later in cross extion she she qualified “something bad” to meanaccused had sexual intercouercourse with the victim against her will. The prosecutrix immediately asked this witness to accompar to the police station when where she laid her complaint and in the afternoon of the same date the accused was arrested and charged ape.

Part of Peter Rose’s evidence is that, alt, although she had been with the prosecutrix’s father for some five months, she never knew anything about any relationship between the accused and Rose Tom. ven denied any affair betw between them. She had never seen thesed used and the prosecutrix walking alone or being together in the prosecutrix’s fat8217;s house. She did not even know m Room Rose and tand the accused were married.

Just to reiterate again sexual intercourse is not denied. The accused&#82evidence isce is that in the morning of the date in question he took the victim to his house in Warakum and while they were in the house they hugged and kissed each other after which consensual sexual intercourse took place. As I have said, it is rather an unfortunate situation where the prosecutrix cannot either refute or confirm any martial relationship between her and the accused. A statement by Veronica Otto Wike was tendered and which I accepted as part of the State’s evidence despite objection by the defence counsel that if the Court was to accept that piece of evidence it would offend at the hearsay rule. T60; The baf the defence once objection is mainly that such evidence if accepted would basically be hearsay. It is my view that there is no harm if I were to accept that part of her statement as it is not hearsay. The particular piecevidencidence contained in Veronica’s statement relates to her knowledge of no existence of any valid marriage between thesed and the prosecutrix. The stnt is that the accusaccused is her relative living witg with them at the same Gumini Settlement Camp at Warakum and she denied the accused was ever married to the prosecutrix at the time of the offence. She also denies seeie pros prosecutrix prior to this incident suggesting that if there was any relationship at all between the accused and the prosex, she would have known of it. ays it was her first time time to see the prosecutrix.trix.

Her evidence is suggestive of two factors. First, if the accwas ever ever married to the prosecutrix their custom may demand some sort of public celebration. For instance payment of a bride price or something of that nature. Secondly, that piece of ecidence may have some bearing in the evidence by the accused that they come from the same village with the prosecutrix. The evi shows that the acce accusees from Gumine while the prosecutrix comes from Sinasina Dina District.

The defence evidence it that when the accused saw the cutrix and the State witness at the bus stop, he invited thed the victim to go with him to his house at Warakum so they could take extra money with them to Simbu. His evidence is that the prosecutrix could not be satisfied with an amount of K14.00 he had offered her. She wanted K30 or o be give given to her. That afexual intercourse arse an argument developed during whhe accused said he slapped pped the victim very hard on the road and that was the reason why the victim started to cry. When cross-eed, tcused admd admitted thed that the victim started to cry in the house because he had first assaulted her in the house. The d timhit her was on thon the road. Pf his evidence is that heat he had maintained thid this relationship with the victim from tvillage. As I said it is not clear from the evidence whether the victim and the accusaccused come from the same village.

I am of the view that where marriage to a prosecutrix is relied on as a defence to a charge of rape, the existence or otherwise of a subsisting valid marriage must be proved see Kaina v The State [1990] PNGLR 292. In that case the Supreme Court said that where marriage to a victim is raised as a defence to a charge of rape, a trial judge must satisfy himself or herself about an existing marriage and that the verdict of guilty in that case was unsafe and unsatisfactory on the basis that the material upon which the question of the existence or otherwise of a subsisting valid marriage might have been determined was not identified nor were there findings as to the relevant custom made.

In chief the accused was asked how was he married to the prosecutrix. He y replied that the vict victim was to him a “girlfriend”. I must say that marriage ts not the same thing as be girl and boy friends. Being a boy f of the proseprosecutrix did not in any way give give the accused the right to have sexual course with the prosecutrix by force.

It is evident dent from the facts of this case that there is no evidence of any subsisting valid marriage either by custom or by general law. There is finition of ̶“customary marriage” to be found in the Marriage Act Ch No 280 nor in the Customs Recognition Act Ch 19. Section 3 (1) of the MarrAage Act, a native other thnative who is a party to a to a subsisting marriage under Part V of the Marriage Act may enter and is capable of entering into a cust marriage according to prevailing customs in the tribe or g or group to which the parties belong. Sub-section (2) of that Act recognizes a customary marriage to be valid and effectual for all purposes.

Far from setting out any requirements nor formes to be observed the statute simply says that to be valid, the marriage must comply with tith the custom of the tribe or group to which the parties “or either of them” belong. Whe custom of the parties ties is in a particular case, therefore, is a question of fact. Under tstom Recognition Acon Act (Ch 19), a Court is not bound by strict rules of evidence in consng the nature and meaning oing of custom and may in addition to any oral evidence receive information from books, District Officer reports or other sources. If therconflicting evidencidence, the court may choose to adopt the version of custom which it thinks more appropriate and which the justice of the case requires: see SS. 2, 7 - Customs Recognition Act.

A customary marriage unlike in the case of a marriage by statute inevitably creates great difficulties for persons seeking to prove existence of hiser marriage in the lega legal context. Professors Owen Jessep ahn John Luluaki describe how a customary marriage is establ in the following terms:

“The nature of customary marriage inevitably producesduces difficulties for persons seeking to the evidence of a marriageriage in a legal context. Customary age in Papua Newa New Guinea are established in different ways in different places, variously involving bride price or marriage payments, prior betrothal arrangements, consent and negotiation rents or relatives, facts octs or other ceremonial aspects, common residence, birth of a child or gradual acceptance by the parties’ kin groups and relatives, and the community in which they live. Moreover to speak of essential requirements or “formalities” for a customary marriage can be misleading, especially if the formalities are not necessarily observed in practice, or only after a long period of delay, or if there are alternative ways in which a marriage may be established. Ev cust rules one breachreachreached (e.g. a prohibition on marriage between persons in a particular relationship), a couple may sometiersist and eventually gain community acceptance or at least tolerance for their marriage.&#ge.” “Principles of Famiwy Law in Papua New Guinea” pp. 17 & 18.

In the case before me, I find there is no such proof of any such subsi valid marriage between the accused and the victim. At least thused should prod proveprove to this court that there was some kind of existing marriage relationship between him and the victim and such relationship was then recognised by custom. The ad may relatives in Moin Moun Mount Hagen who could have been called to prove if there was a subsisting marriage between him and the cinant. This case being a sexualncffence I must warn myself of convicting an accused psed person upon uncorroborated evidence of the complainant alone: Peter Townsend v George Oika [1981]PNGLR 12; The State v Andrew Tovue [1981] PNGLR 8. The Supreme Courtsaid that that the trial judge must specifically make note and mention of this warning in his transcript and findings: Deidei v tate [1990] PNGLR 458. In the it case there is evis evidence of recent complaint firs first being made to the State witness then to the police station. There idence of the prosecrosecutrix distressed - condition to Veronica Otto then to the State witness.

The defence rely substantially on allegation that the accused was married to the victim at the time of the offence. I from the evidence that that there is no evidence to support this view. The accused has a duty tveprove to the Court that h married validly to the complainant either by custom or statute. Theing no evideevidence ofce of a subsisting marriage I must ithat the reason why the victim cried in the house was becaubecause she was raped. At least the evidehows thas that the victim sd crying from inside the hohe house. I must therefore find the accused guilty of the charge of rape and convict him accordingly

15/1/1997 - SENTENCE

When I administered ered the allocutus to you, you said you are very sorry you have committed offence but that you did itid it on the understanding that the victim was married to you. You also said you have spent much money giving it to the complainant.

Both Counsels submitted on sentence that the prisoner must have some kind of relationship with the victim. This is sugge of two thingthings. First therht have been exin existence of a de facto relationship or simply as I have found just the boy and girl friend relationship.

Counsels have also indicted that this case should be an approe one where the Court shoulshould impose a non custodial sentence. Mr Aipe in particular referred me to the sentencing guidelines set by the Supreme Court in the case of John Aubuku v The State [1987] PNGLR 267. In that ca was held that that the offof rape is serious and an offender should be punished by anby an immediate punitive custodial sentence unless there were shown except circumstances. Aubuku’s also lays days down thwn the principle that where an offence of rape is committed by an adult and where there are no aggravating factors or mitigating features a sentence of five years should be taken as the starting point.

Quite apparently there are no aggravating factors involved in the case before me. I muste with Mr Aipe that,that, the only person who would confirm aggravation would be the complainant who is now deceased.

Aggravating factors would normally ve such factors like a pack rape, a rape committed after a er a complainant has been abducted, or the person who committed the rape is in the position of respoliibility. Where violence was uo comm commit the rape or where the complainant was threatened and the rape was repeated. Was tpe carefully planned nned or was the victim subjected to sexual indignities or perversions.; These are all matters thas that the sentencing court must take into consideration.

In favour of the prisoner is his clean record with the police. He has shemorse when I admI administered the allocutus to him. He said hsorry he had comm committed the offence. You are a young man anadedeaded not guilty to the charge exercising your constitutional right until you were founlty. You have been in custody since the date you comm committed this offence namely 6th May 1996. Te you will have been in c in custody for eight months one week three days. The penalty for thisnce isce is a life sentence subject to S. 19 of the Criminae.

I am of the view that a custodial sentence of thrf three and half (3 1/2) years is an appropriate penalty less the time you spent in custody. Th0; This lea balance of t of two (2) years nine (9) months three (3) weeks and four (4) days. I further orhat the balancalance be suspended upon you entering into a recognition to be of good behaviour for a period of three (3) years.

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: The Public Solicitlicitor