|
|
Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NOS 912, 916 & 920 OF 2002
THE STATE
V
GEORGE TOMEME
Kimbe: Cannings J
2007: 16, 18 July
CRIMINAL LAW – trial – abduction, Criminal Code, Section 350 – rape, Criminal Code, Section 347 – consent
A man was indicted for (1) abducting a woman with intent to carnally know her and (2) raping the same woman. He pleaded not guilty. It was the State's case that shortly before meeting the accused the complainant was raped by six other men and that the accused led her away from them on the pretext that he was saving her, then proceeded to rape her himself. The complainant gave oral evidence and the State relied on the accused's record of interview and a confessional statement. The accused remained silent and offered no evidence.
Held:
(1) The real issue was not identification, as the accused's record of interview and confessional statement put him at the crime scene, having consensual sex with the complainant after she was raped by other men. The real issue, in both charges, is consent or lack of it.
(2) The complainant's evidence was credible and key aspects of it in particular the train of events that led to her meeting the accused were consistent with the accused's version of events set out in his record of interview and confessional statement.
(3) There is no longer any requirement for the court to warn itself as to the danger of convicting based on the uncorroborated testimony of a complainant.
(4) There was sufficient evidence for the court to be satisfied beyond reasonable doubt that the accused sexually penetrated the complainant without her consent. However, the complainant's evidence as to the circumstances in which the accused led her away, before penetrating here, was vague and insufficient to support a conviction for abduction.
(5) The accused was found not guilty of abduction but guilty of rape.
Cases cited
The following cases are cited in the judgment:
The State v Alex Matasol Hagali CR No 928 of 1997, 28.09.06
The State v James Yali (2005) N2988
The State v Jimmy Aiyo CR No 147 of 2005, 28.09.06
The State v John Ritsi Kutetoa (2005) N2814
The State v Moses Jafisa Winga (No 1) (2005) N2952
The State v Thomas Angup (2005) N2830
TRIAL
This was the trial of an accused charged with abduction and rape.
Counsel
F Popeu, for the State
B Tanewan, for the accused
18th July, 2007
1. CANNINGS J: George Tomeme, the accused, pleaded not guilty to two charges: (1) abducting a woman with intent to carnally know her and (2) raping the same woman. The offences were allegedly committed at Gigo Beach in Kimbe, around 6.00 pm on Monday 17 September 2001. It was the State's case that shortly before meeting the accused the complainant was raped by six other men and that the accused led her away from them on the pretext that he was saving her, then proceeded to rape her himself. The complainant gave oral evidence but there was no other eyewitness evidence and the State relied on the accused's record of interview, a confessional statement and a medical report. The accused remained silent and offered no evidence.
NON-ISSUES
2. At the outset it is important to explain two matters of fact that I have concluded are not in issue. First, the complainant's claim that she was raped by six other men, or youths, before the time she was allegedly abducted and raped by the accused, is not disputed. Secondly, questions about the accused's presence at the place the complainant was raped by others, whether he led her away to another place and whether he sexually penetrated her, are not in issue, even though the defence counsel, Mr Tanewan, suggested that they are. He submitted that the key issue was identification. This was consistent with his cross-examination of the complainant, which challenged her identification of the accused, given that it was about 6.00 pm when the incident happened, it was getting dark, and the ID parade in which she identified him was not conducted until three months after the incident. However, I reject this part of Mr Tanewan's submission outright. The accused stated in his police interview and in a separate confessional statement that he was in the general vicinity when the other men raped the complainant. He came to her rescue, fought against those who had raped her, chased them away, then escorted the complainant home. The version of events he gave the police was that on the way home, he asked her for sex as he had helped her out of trouble. She said yes, they had consensual sex, then he took her home. Both the record of interview and the confessional statement were admitted into evidence without objection. No suggestion was made that the statements were made involuntarily. Their veracity has not been challenged. I regard them as strong evidence that the accused was present in the vicinity, that he fought with and chased away six other men who had raped the complainant and that he himself had sex with the complainant. I therefore agree with the prosecutor, Mr Popeu, who argued that identification was a non-issue and that the real issue, in both charges, is consent or lack of it.
THE KEY ISSUES
3. They are:
4. The first relates to the abduction charge. It is laid under Section 350(1)(a) of the Criminal Code (abduction) which relevantly provides:
A person who ... with intent ... to carnally know a woman takes her away ... against her will ... is guilty of a crime.
Penalty: Imprisonment for a term not exceeding seven years.
5. If the accused did not take the complainant away from the place she was previously raped against her will, an element of the offence will be missing and he will not guilty of the charge.
6. The second issue relates to the rape charge. It is laid under Section 347 (definition of rape) of the Criminal Code which states:
(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 imprisonment for life.
7. The indictment does not allege any circumstances of aggravation so the State only has to prove two elements: sexual penetration and lack of consent. The first is, as I have already said, a non-issue. It has been proven beyond reasonable doubt. That only leaves consent. Before considering the evidence and the issues in more detail, there are two other matters of law to mention. The first is that the alleged offences were committed before the law on sexual offences changed significantly. The second is about the State's case being based on the uncorroborated testimony of the complainant.
DATE OF ALLEGED OFFENCES
8. They were allegedly committed on 17 September 2001. The abduction charge was laid under Section 350(1)(a) of the Criminal Code, which was unaffected by the changes to the law made by the Criminal Code (Sexual Offences and Crimes Against Children) Act No 27 of 2002, which commenced operation on 10 April 2003. However, the rape charge was laid under a provision, Section 347, that was affected by those changes. The current Section 347 is a new provision. It replaced the old Section 347, which also dealt with the offence of rape. The alleged offence was committed in September 2001, well before the new Section 347 commenced operation. However, it was proper to draft the indictment under the new law because:
(See The State v John Ritsi Kutetoa (2005) N2814; The State v Thomas Angup (2005) N2830; The State v Moses Jafisa Winga (No 1) (2005) N2952.)
UNCORROBORATED TESTIMONY OF COMPLAINANT
9. Prior to 2003 the general practice was that the court was required to warn itself of the dangers of entering a conviction for a sexual offence based on the uncorroborated testimony of the complainant. The rationale was that rape is a serious charge, easy to allege and difficult to refute (see D R C Chalmers et al, Criminal Law and Practice in Papua New Guinea, 3rd edition, Lawbook Co, © 2001, pp 333-335). Nowadays the opposite is the case: not only is the National Court not required to warn itself, it is not allowed to. Section 352A of the Criminal Code (corroboration not required) states:
On a charge of an offence against any provision of this Division, [Division V.7, (sexual offences and abduction)] 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. [Emphasis added.]
10. Both of the charges against the accused are for offences under Division V.7, which consists of Sections 347 to 352A. Therefore the principles regarding uncorroborated testimony are the same for both charges. "Uncorroborated testimony" is defined, in relation to an accused person, by Section 1(1) to mean "testimony that is not corroborated in some material particular by other evidence implicating him". The principles of evidence to apply perforce of Section 352A are:
11. In the present case the State is seeking convictions based on the uncorroborated testimony of the complainant. The complainant is the only person to testify that she witnessed what happened. I therefore remind myself, in accordance with Section 352A, that a conviction is still possible and that the prosecution still bears the onus of proving the elements of each offence beyond reasonable doubt. I do not instruct myself that it is unsafe to find the accused guilty in the absence of corroboration.
EVIDENCE FOR THE STATE
12. The State's case was primarily based on the following evidence:
THE COMPLAINANT'S ORAL TESTIMONY
13. She testified that she went to the beach at about 5.00 pm with her boyfriend, Paul, and two other people who later left them there. On the way to the beach they passed the accused who was with two other people. She was sitting at the beach with Paul when three men approached them, held them up and assaulted them. Paul fought with one of them but the others took her inside the bush, threatened her with knives and raped her. Then another three came along and also raped her. The accused then came on the scene. He chased the others and pulled her away from them. She was naked at the time. The accused held on to her clothes and said that he was going to save her. He told her his name was George. This happened at about 6.00 pm and it was getting dark. She clearly saw the accused's face. He took her away and slept on her twice, while threatening her with a knife. The accused penetrated her vagina with his penis after taking off his trousers. She did not consent to the accused sexually penetrating her. He was the seventh man to rape her that evening. None of the men who first raped her or the accused was her boyfriend. The only boyfriend she had at the time was the person who accompanied her to the beach, Paul. The accused later took her to her cousin-sister's house on the other side of Laleki beach and left her there. She stayed there that night and the next morning the incident was reported to a police officer who lived across the road. She was taken to the hospital and the police station. She was then escorted back to Laleki where the accused lived and he was brought to the police station. In court, the complainant identified the person who rescued, then raped her, as the accused.
14. In cross-examination she was adamant that she could recognise all the people who raped her including the accused. Though it was getting dark, it was not completely dark. She did not know the accused before this incident.
15. In re-examination she said that when she was taken into the bush Paul was still fighting with one of the first group of three. When the accused took her from the group that had raped her he was some distance away from her, about 100 metres.
THE ACCUSED'S RECORD OF INTERVIEW AND CONFESSIONAL STATEMENT
16. The accused's version of events was that he had rescued the complainant. He then took her home and on the way asked her for sex which she agreed to, as he was the one who had saved her from the trouble.
MEDICAL REPORT
17. The medical report by a health extension officer at Kimbe General Hospital was admitted into evidence without objection. It shows that the complainant was examined at 3.00 pm on 18 September 2001, the day after the alleged rapes. She was observed to be depressed, sobbing and very emotional. Her symptoms were consistent with penile penetration.
THE ISSUES IN DETAIL
18. The nature of the evidence and submissions of counsel give rise to these issues:
19. In light of the answers to those questions, I will address the key issues set out at the beginning of this judgment:
1 WAS THE COMPLAINANT'S EVIDENCE CREDIBLE?
20. The complainant was a credible witness. She gave her evidence calmly and with precision and her demeanour was not of someone who was lying. The claim that she was pack-raped by six men before the accused came on the scene indicating that he would rescue her, was unchallenged. She did not appear to be exaggerating the story, I conclude that she was a reliable and honest witness and her evidence was credible.
2 WAS THE OTHER EVIDENCE CONSISTENT WITH THE COMPLAINANT'S EVIDENCE?
21. Yes. The medical evidence was uncontested and was consistent with her version of events, that she had been pack-raped the day before she was examined. The accused's record of interview and confessional statement is also consistent with her evidence, apart from the issue of consent.
3 ARE THERE GAPS IN THE EVIDENCE THAT GIVE RISE TO DOUBT ABOUT ACCEPTANCE OF THE COMPLAINANT'S EVIDENCE?
22. No. Nothing the defence counsel referred to in his submission exposed any gaps in the evidence, at least in regard to the rape charge.
4 WAS THE COMPLAINANT TAKEN AWAY AGAINST HER WILL?
23. This is the key element of the abduction charge and I find that the prosecution has not proven it beyond reasonable doubt. The evidence is that the accused came upon the scene where the complainant had been pack-raped by six men; he fought with them, chased them away and led the complainant away from that scene, indicating by his actions that he was saving her.
24. Mr Popeu tried to elicit from the complainant in her oral testimony that she was perhaps dragged away from the scene of the pack-rape against her will. She was asked confusing questions about how far away from the accused she was when he was leading her away from the rape scene. She indicated that she was a considerable distance away from the accused, perhaps 100 metres.
25. It might be that the proper version of events is that the complainant was naked, that the accused had her clothes, that she was following him from a distance feeling that she had little choice but do so because she was naked. Perhaps she did follow 100 metres behind him through the bush. But that is conjecture. This aspect of the evidence is unclear and is insufficient to result in a finding that she was taken away from the pack-rape scene against her will. This element of the offence has not been proven so the accused will be found not guilty of abduction.
5 DID THE COMPLAINANT CONSENT TO SEX WITH THE ACCUSED?
26. Consent is defined by Section 347A(1) of the Criminal Code. It means free and voluntary agreement. Circumstances in which a person does not consent include where a person submits because of threats or intimidation (Section 347(A)(2)). As I pointed out in The State v James Yali (2005) N2988, in a rape case it is not a simple matter of deciding who to believe. An accused cannot be convicted only on the basis of suspicion or belief on the part of the tribunal of fact (the court) that there was no consent. (Also see The State v Alex Matasol Hagali CR No 928 of 1997, 28.09.06 and The State v Jimmy Aiyo CR No 147 of 2005, 28.09.06.) The court's task is, rather, to determine, having weighed all the evidence and considered that there are reasonable grounds for believing the complainant's evidence, whether it is satisfied to the required criminal standard of proof – beyond reasonable doubt – that there was no consent. If there is a reasonable doubt about lack of consent, the court is obliged to acquit the accused. Here, I have weighed all the evidence. I agree with Mr Popeu's closing submission that the version of events the accused gave to the police – that the complainant agreed to sex as a token of gratitude for his rescue of her – is too incredible to believe. I believe the complainant's evidence that she had just been through a terrifying ordeal in which she had been pack-raped by six men. It is fanciful to believe that she would in the process of recovering from that ordeal and being led home by her rescuer agree to have sex with him.
27. The complainant gave credible evidence. She was an impressive witness. The State has proven, in my assessment, beyond reasonable doubt, that the complainant did not freely and voluntarily agree to have sex with the accused. To the extent that she submitted, I am satisfied beyond reasonable doubt that she did so because of threats against her by the accused. There was no consent, which means that the accused will be found guilty of rape.
VERDICT
28. On count 1, the accused is acquitted of abduction.
29. On count 2, the accused is convicted of rape.
Verdict accordingly.
________________________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the accused
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2007/216.html