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State v Nai [2011] PGNC 317; N4247 (8 April 2011)

N4247

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1272 OF 2009

THE STATE

V

ANA SAPAN NAI

Mount Hagen: Makail, J
2011: 07th & 08th April

PRACTICE & PROCEDURE - No case submission - Bestiality - Sexual penetration of a pig - Act of sexual penetration - Proof of - Evidence of - Whether safe to convict on evidence presented - Hearsay evidence - Inadmissible - Unsafe to convict - Second leg of The State -v- Paul Kundi Rape [1976] PNGLR 96 applied - No case submission upheld - Accused discharged - Criminal Code, Ch 262 - Section 210(1)(b).

Cases cited:

Paul Kundi Rape -v- The State [1976] PNGLR 96

Counsel:

Mr J Waine, for the State
Mr T Bellie, for Accused

RULING ON NO CASE SUBMISSION

08th April 2011

1. MAKAIL, J: This is a ruling on a no case submission. The accused from Yonge village in Laiagam District of Enga Province was charged with one count of committing bestiality, an offence under section 210(1)(b) of the Criminal Code, Ch 262. He was alleged to have sexually penetrated a female pig on the morning of 06th September 2009 at Warakala near St Paul's Catholic mission station in Mt Hagen. The female pig belonged to one of his relatives whom he had lived with at the time of the alleged offence. He was apprehended immediately following the alleged offence and taken to the police station in Mt Hagen. He was subsequently charged and detained. He denied committing the offence.

THE LAW

2. Bestiality is an offence under section 210 of the Criminal Code, Ch 262. It states:

"210. Unnatural offences.

(1) A person who -

(a) sexually penetrates any person against the order of nature; or

(b) sexually penetrates an animal; or

(c) permits a male person to sexually penetrate him or her against the order of nature, is guilty of a crime.

Penalty: Imprisonment for a term not exceeding 14 years.

(2) A person who attempts to commit an offence against Subsection (1) is guilty of a crime.

Penalty: imprisonment for a term not exceeding seven years.

(3) . . . [Repealed]" (Underlining mine).

THE EVIDENCE

3. The evidence in relation to the circumstances that led to the commission of the alleged offence came from Junior Mai and Margaret Bonny. Both witnesses resided at Warakala. Junior Mai is a neighbour of the accused who lived on the other side of a small creek that separated their houses. Margaret Bonny is an in-law of the accused. She is married to the accused's nephew whose name is Samuel Bonny. The accused lived with them in one house. At the time of the alleged offence, Samuel was away in the village at Yonge.

4. Junior said, he had not seen the accused sexually penetrate the pig on that day. It was a person named Balalai Kipuka who had seen it. It had been Balalai who called him that morning when he was in his house. Balalai said the accused had raped a pig and when he heard that, he ran over to Balalai who was standing near the creek. When he arrived, Balalai told him the accused had raped a pig.

5. He looked across the creek and saw the accused pulled a pig with a rope and coming from the direction of a bamboo tree. He was heading towards the direction of Margaret's house. He and Balalai followed the accused to the house where they observed the pig was in agony. First, it was weak and standing awkwardly as if it had been hurt and secondly, had blood on its anus. He also observed the anus was red. They reported the incident to the police in Mt Hagen and they came and examined the pig. At the same time, they reported the incident to Margaret. After examining the pig, the police were satisfied the accused had sexually penetrated it and arrested him. They took him to the police station and charged him.

6. While all this was happening, Margaret was in the church. She had taken her small daughter and left for the church that morning, leaving behind the accused in the house. She said, the pig belonged to another person named Samuel Maso but because Samuel's mother was a member of the Seventh Day Adventist church whose belief prohibited any association in any shape or form with pigs, she was appointed care taker and that was the reason the pig was living on her premises. It had rained heavily that day and before she had left for church with her daughter, she had locked the pig inside the house.

7. She had not seen the accused sexually penetrated the pig that day. She had been informed of it by Balalai and Junior when she had returned to the house at 4 o'clock in the afternoon that day. She observed the pig lying on the ground and had blood on its vagina. Its vagina was also red. The accused was not in the house because by that time she had arrived, the police had taken him to the police station.

8. She knew the accused had the potential to do such a thing because he was a drug addict and was mentally unstable. He was also a pervert because a couple of weeks prior to the alleged offence, he had terrorised her and her daughter by publicly modeling his naked body in front of her one Sunday morning and on numerous occasions had aroused himself in front of her daughter to the point of ejaculating semen from his penis.

DEFENCE SUBMISSIONS

9. Based on the evidence of these witnesses, Mr Bellie, counsel for the accused submitted it was unsafe for the Court to rely on to convict the accused. This was because first, the witnesses had not seen the accused sexually penetrated the pig. He referred the Court to their evidence in chief where they had openly said they had not seen the accused penetrated the pig and also in cross-examination where they had agreed with his suggestions they had not seen the accused sexually penetrate the pig. They only had been told that the accused had sexually penetrated the pig and that information came from Balalai. In essence, he submitted the witnesses' evidence in relation to the act of sexual penetration was hearsay.

10. Secondly, he submitted there had been a motive to have the accused charged for this offence because in cross-examination, Margaret had openly admitted there had been a family feud between them. She and her husband had despised the accused. It was over the ownership of the house they had lived in. He submitted, this was a case where the accused had been falsely accused and must be discharged.

11. Thirdly, he pointed out there was one important discrepancy in the evidence of the witnesses which go to support the defence theory that the accused was falsely accused. That was in relation to the part of the body of the pig which the accused had been alleged to have sexually penetrated. Junior said it was the pig's anus while Margaret said it was the vagina. He submitted the Court cannot safely convict the accused when the evidence in relation to the penetration of the pig was essential and yet conflicting, especially where there is no independent evidence such as photographs of the injury sustained by the pig to verify the part of the body of the pig the accused had allegedly penetrated.

12. Relying on the second leg of The State -v- Paul Kundi Rape [1976] PNGLR 96, he summed up by saying the evidence as it stood made it unsafe for the Court to convict the accused.

STATE'S SUBMISSIONS

13. Mr Waine, the State prosecutor had submitted the Court should dismiss the no case submission because in a no case submission, the Court is only required to satisfy itself that there is a prima facie case made out by the State against the accused. In a case of this nature, the State must present evidence to establish first, the accused was the perpetrator, secondly, an animal was involved and thirdly, the accused sexually penetrated the animal.

14. In the present case, the evidence in relation to the accused being the perpetrator, the pig and the accused sexually penetrating it came from Junior. The accused had been seen at the location where the bamboo tree was and was with a pig that day. Junior arrived at the scene when he heard Balalai called out that the accused had raped a pig and although had not seen the accused in the act, had arrived at the scene in time to see him leave the location of the bamboo tree with the pig for Margaret's house. That evidence was sufficient to identify the accused, the pig and also to an extent the sexual penetration of the pig by the accused.

15. Taking the last point further, he submitted the evidence was circumstantial but was sufficiently strong to connect the accused to the offence because he was the person seen with the pig on that day, the pig was in agony when it returned to the house, it had a red vagina and was bleeding, and it had rained heavily that day where it would defy logic and commonsense to take a pig out for a walk on such a day.

16. To further strengthen his contention, he pointed to the evidence of Margaret where she claimed the accused was a drug addict and was mentally unstable. He was also a pervert because prior to the alleged offence, he had terrorised Margaret and her daughter by publicly modeling his naked body in front of her one Sunday morning and on numerous occasions had aroused himself in front of her daughter to the point of ejaculating semen from his penis. All these factual matters, he submitted sufficiently established the accused had sexually penetrated the pig.

ASSESSMENT OF LAW AND EVIDENCE

17. From the parties' submissions, and the evidence of the State witness Junior I am satisfied the accused had been identified as the perpetrator and a pig had been involved in the alleged offence. But I am not satisfied the accused sexually penetrated the pig. I am not satisfied because as Mr Bellie correctly pointed out in his submissions, the evidence in relation to the act of sexual penetration was hearsay. Both witnesses Junior and Margaret openly stated in their evidence and also in cross-examination they had not seen the accused sexually penetrate the pig.

18. It had been Balalai who told Junior the accused had sexually penetrated the pig and it was Balalai and Junior who had told Margaret the accused had sexually penetrated the pig. As their evidence is hearsay, they are inadmissible. There was therefore, no evidence establishing the accused had been engaged in an act of sexual penetration of a pig.

19. Even if I take on board Mr Waine's submission that there was strong circumstantial evidence establishing sexual penetration, with respect, I would still reject it because the factual matters he had pointed out in his submission such as the accused had been the person seen with the pig on that day, the pig had been in agony when it returned to the house, it had a red vagina and bleeding, and it had rained heavily that day where it would defy logic and commonsense to take a pig out for a walk on such a day are, to my mind, insufficient for the Court to rely upon to safely convict the accused.

20. Further, Margaret's evidence of the accused being a drug addict and mentally unstable, and also a pervert, are to my mind, also insufficient for the Court to rely upon to safely convict the accused. I reject these submissions because there is one significant discrepancy in the witnesses' evidence in relation to the part of the body of the pig the accused was alleged to have sexually penetrated. As Mr Bellie correctly pointed out, Junior said the accused penetrated the pig's anus and Margaret said the accused penetrated the pig's vagina. None of them said the accused sexually penetrated both.

21. The record of interview of the accused in Pidgin and English of 08th September 2009 tendered by consent as exhibits "P1" and "P2" respectively showed no admission of sexual penetration of the pig by the accused. So it does not advance the State's case any further. That means, there is no evidence or insufficient evidence to establish the cause of the red colour on either the pig's anus or vagina.

22. This is a very important aspect of the case. The accused has been charged with sexual penetration of an animal, namely a pig. The onus is on the State to prove by credible and admissible evidence that he either sexually penetrated the pig's anus, vagina or both with his penis. That is the requirement under the provision under consideration. The evidence on this aspect is conflicting and renders it uncertain whether the accused sexually penetrated the pig's anus, vagina or both.

23. In Paul Kundi Rape's case (supra), it was held "where the tribunal decides there is a case to answer, it nevertheless has a discretion to stop a case at the close of all the evidence in appropriate circumstances; this is exercisable where there is a mere scintilla of evidence and where the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict." This principle is commonly referred to as the second leg of Paul Kundi Rape's case (supra) which has been the basis of the no case submissions of the accused.

ORDERS

24. Applying that test in the present case, I find the evidence of the State unreliable and lacking. It follows, on the evidence before me, I am not satisfied it is safe to convict the accused. I uphold the no case submission and discharge the accused accordingly.

____________________________________
Lawyers for the State: Acting Public Prosecutor
Lawyers for Accused: Public Solicitor