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State v Bariom (No. 1) [2011] PGNC 357; N4433 (24 October 2011)

N4433

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO 15 OF 2011

THE STATE

V

ROLAND BARIOM
(No 1)

Kokopo: Maliku AJ
2011: 17th, 24th October

CRIMINAL LAW - Sexual penetration - Section 347(1) (2) Criminal Code Act.

CRIMINAL LAW - General defence – sexual penetration did not take place – No medical report – uncorroborated testimony of one witness - Finding of guilty of accused after a trial.

Cases cited

State-v- Gabriel Toinara CR.NO:1323 OF 2003
State-v- Pake Eluh, CR.NO: 352 OF 2004
State-v- David Sopane, CR.NO: 818 OF 2005 (N3024)
State-v- Kapi Jas, CR. NO: 895 OF 2008 (N4103)

Counsel

Mr A. Bray, for State
Mr G. Kerker, for the Accused

VERDICT

24th October, 2011

1. MALIKU AJ: The accused is charged that he on the 06th of November

2010 at the New Rabaul Post Office did sexually penetrate Angelica Gamgam by inserting his penis into her vagina without consent there by contravening Section 347(1) (2) of the Criminal Code Act.

2. The State tendered the following documentary evidence with consent:
   
   1. Statement of Constable Paul Bonnio dated 15th November 2010 - Ex A
      
   2. Statement of Constable Ukies Kibale dated 16th November 2010 - Ex B
      
   3. Record of Interview of accused Roland Bariom – Pidgin version- hand written dated 15th November 2010 – Ex C
      
   4. Record of Interview of accused Roland Bariom – English version-typed copy – Ex D
      
3. The defence also tendered the following:
   
   1. A letter requesting withdrawal of sexual penetration against Roland Bariom by Angelica Gamgam dated 29th June 2011 Ex D1
      
   2. Statement of Magdelyn Joe dated 08th November 2010 Ex D2
      

Facts

4. On the 6th of November 2010 the victim with her two colleagues, Madelyn Joe and Nervie Timothy were at work at the New Rabaul Post Office. The accused entered the Post Office at about 11am with a new fax machine to be installed by him.
   
5. After he had installed the fax machine he then told the victim and the other staff to continue working and to remove the locks from the private boxes until 1pm. At 1pm the accused then told Madelyn Joe and Nervie Timothy to leave which they did leaving the accused and the victim Angelica Gamgam behind. The victim was inside in her office when the two officers left doing her stock take.
   
6. After she had finished with her stock taking she then walked out of her office and realized that the two officers had already left. She also realized the main door was closed. At that point of time the accused was standing at the side of the mail room corner calling the victim twice to go to where he was standing.
   
7. The victim enquired from the accused of why he had called her. The accused insisted and went closer to the victim and held her by the hand pulling her to the mail room despite her refusal. The accused then kissed her and then removed the victim's jean trousers.
   
8. The victim insisted in talking to the accused not to do what he was doing to the victim. The accused then pulled the victim to the mail room corner and forced her to lie on the floor.
   
9. While on the floor the accused then removed her pants, opened her legs and sexually penetrated her by pushing his penis into her vagina without her consent.
   
10. After sexually penetrating the victim the accused wore his trousers opened the main door and walked away. The victim went back to her office cried over what happened to her. The victim later locked the office and went home without telling anyone. She finally reported the matter to the Police on the 8th of November 2010 as well as to the Post PNG headquarters.
    
    • (i) Issue 1: Was Angelica Gamgam sexually penetrated on the 6th of November 2010?
      
    • (ii) Issue 2: Who sexually penetrated Angelica Gamgam?
      
    • (iii) Issue 3: Was the sexual penetration without consent?
      

Issue 1: Was Angelica Gamgam sexually penetrated on the 6th of November of 2010?

11. The accused denied any sexual penetration with the victim but admits that he was at the New Rabaul Post Office with the victim Angelica Gamgam, Madelyn Joe and Nervie Timothy on the 6th of November 20110 from about 10.30 am to about 1.30pm to install a new fax machine and to assist with the removal of the locks from the private mail boxes.
    
12. The accused says the victim had made up or fabricated the allegation because she was not recommended by the accused who was her immediate boss/supervisor with Post PNG for permanent appointment as Officer In charge (OIC) of the New Rabaul Post Office after the first three months probation period expired.
    
13. The accused did not adduce any evidence to establish the kind of working relationship he had with the victim Angelica Gamgam during the three months probation period apart from where he claims the victim Angelica Gamgam was not competent with Post PNG system despite repeated instructions or assistance rendered by him to her.
    
14. There is no evidence from the accused that they have had arguments over the affairs of the New Rabaul Post Office since the victim Angelica Gamgam was recruited by Post PNG on the 31st of May 2010.
    
15. There is also no evidence from the accused that when he did not recommend permanent appointment for the victim Angelica Gamgam that he was ever confronted by the victim Angelica Gamgam over the permanent appointment. Having assessed what I have said, this is a ground without weight.
    
16. The victim Angelica Gamgam in her evidence told the Court that she had a good working relationship with the accused during the three months probation period. She told the Court that even though she was not appointed permanently after the first three months she still had a good working relationship with the accused.
    
17. She said: "I was happy working even though I was not recommended for permanent appointment by the accused after the three months probation period expired." The victim Angelica Gamgam maintained that she had respect for the accused because he was her immediate boss/supervisor. There was no evidence from Madelyn Joe that the victim and the accused had argued over the affairs of the New Rabaul Post Office which would show that the working relation between the victim Angelica was one of sour working relationship.
    

Why did Victim not shout for help?

18. The other issue that arises from the accused defence of general denial is the accused says there were people in the Top Kai Supermarket at the time he is alleged to have committed the rape on the victim however the victim made no attempts to seek assistance by shouting, cry or do anything to alert the people that were in the Supermarket when she knew she was in trouble with the accused.
    
19. The accused relied on the case State-v- Gabriel Toinara CR NO.1323 OF 2005 in which the victim had set out from where she was and while out some unknown boys chased her down the road and being so stupid as she was, she did not even raise any alarm by shouting or even call out for assistance. This case does not tell us why the victim did not raise any alarm by shouting or even call for assistance however the victim was later found to have lied about being raped.
    
20. The victim Angelica Gamgam told the Court that she did resist the accused and told him not to do what he was doing to her but the accused insisted. She could not move away because the accused had grabbed or held her and pulled her toward him and kissed her, removed her trousers and forced her to the floor.
    
21. It is common sense that when the accused held the victim by her hand, pulled her toward him, kissed her, and removed her jean trousers he was already sexually motivated. The victim Angelica Gamgam told the Court that the accused forced her to lie down on the floor, opened her legs and inserted his penis into the victim's vagina and sexually penetrated her without consent. This happened in the mail room.
    

The venue of alleged rape not suitable

22. The accused further argues from his defence of general denial that even the mail room was not even suitable to have sexual intercourse in there because it is a very small room. A Court party which comprised of the two lawyers, presiding Judge, the accused, the victim and Madelyn Joe, the informant of the matter, the Interpreter, a good number of Policemen who escorted the Court party did visit the scene of the alleged crime.
    
23. The victim did show the Court party where the accused was standing and calling her to go to him. She also demonstrated to the Court party where she lied down and how she lied down on the floor in the mail room. I am satisfied from the evidence before me and my observation of the mail room where the alleged rape was committed is sufficient in space.
    
24. It is common knowledge that when a man rapes a woman it is immaterial where he lays the victim or even what he does to or with the victim because of the urgency on him to sexually penetrate the victim is beyond his ability to think normally because he thinks sexually.
    
25. The victim Angelica Gamgam and Madelyn Joe told the Court during the trial that the accused was drunk when he entered the New Rabaul Post Office on the 6th of November 2010. The victim Angelica Gamgam told the Court that she feared for her life because she believed the accused could do anything to harm her because he was drunk. This belief was reasonably apprehended by the victim so she did not shout for assistance.
    
26. I accept the evidence that the accused was drunk on the 6th of November 2010 and he entered the New Rabaul Post Office drunk and was in that stage when he raped the victim. It is common sense that it is difficult to reason with a drunken man even a half drunken person. I am satisfied this was the case with the accused.
    
27. The Recent Complaint – Why did the victim not complain immediately to the Police?
    
28. The accused argues that the victim did not immediately report the matter to the Police but did so on Monday the 8th of November 2010 some two days after the alleged rape was committed.
    
29. The question that needs to be asked here is: when does a matter complained about cease to be regarded as a recent complaint? The accused argues that the victim having failed to report the matter to the Police on the same day but did so some two days after shows that the victim lied about being raped and made up the story that the accused raped her.
    
30. It is one thing that the victim was raped and to report to the Police is another things. The victim has a choice of when to report to the Police about being raped however, the victim told the Court that she had to consider what appropriate actions to take against the accused because he was her immediate boss/supervisor.
    
31. She told the Court that she was troubled and was deciding on whether to resign over what the accused did to her or she takes the matter further to the right authorities. She decided to report the matter to the Police and also to the Post PNG headquarters.
    
32. I have read the two cases that I have alluded to above. His honour had dealt with the issue of "recent complains". I have consulted the Webster's Comprehensive Dictionary for the meaning of the word "recent" and this is what it means: pertaining to, or informed, developed or created in time not long past; modern; fresh; new.
    
33. This is not a technical legal word and must be given its literal meaning to be related to an even which occurred not long ago or recently. It refers in my view to a period of time from which an event occurred to the time or moment that event is acknowledged or addressed.
    
34. The accused further relied on the case of State-v- Pake Eluh, CR.NO 352 OF 2004 where the victim was raped on the 6th of September 2003, never reported the matter to the Police even though there was ample time to do so. The victim also never reported the matter to her husband but did so after a few days after she returned to Kerevat Correction Institution Services (CIS).
    
35. In the case of State-v- Gabriel Toinara CR. NO.1323 OF 2003 also cited by Mr Kerker for the accused the victim did not reveal the matter to her mother or any one of her nearest kinship. However, the accused later broke the news to the village elder Mr Emil Kumau some three to four days after he had sex with the victim.
    
36. In the matter before me the victim Angelica Gamgam was raped on the 6th of November 2010 and reported the matter to the Police on Monday the 8th of November 2010 some two days after the alleged rape was committed. In my view it was still recent complaint.
    

Medical Report/Corroboration

37. The other reason that arises from the general denial defence by the accused is the victim did not produce a Medical Report to substantiate her claim of being sexually penetrated. The accused says this is vital to establish the presence of any fluid in the form of semen or sperm in the victim's vagina.
    
38. The accused argued that only such Medical Report would be the only means to prove that sexual penetration did take place as "material particular". The accused relied heavily on the case of The State-v- Kapi Jas CR NO: 895 OF 2008 N4013.
    
39. In that case his honour Canning J said:
    

"though there is no longer any rule or practice that it is unsafe to convict an accused of rape on the uncorroborated testimony of a complainant, this was a case that required corroboration as there was no medical report or other evidence to support the complainant's version of events and she was not an obviously reliable witness"

40. There is no doubt that his honour agrees that there is no longer any rule or practice that it is unsafe to convict an accused of rape on the uncorroborated testimony of a complainant. His honour continues to say: "this was a case that required corroboration as there was no medical report or other evidence to support the complainant's version of the event".
    
41. His honour then states the reasons for his view that case required corroboration. His honour says: " the complainant was obviously not a reliable witness". In short his honour is saying: that was a case that required corroboration because the witness's testimony was not reliable.
    
42. In paragraph 27 of that case his honour continues:
    

"There is no rule of law that prohibits a conviction for rape in the absence of medical report but where a complainant's evidence is not convincing, medical evidence in effect, becomes necessary".

43. I agree with his honour that there is no rule of law that prohibits a conviction for rape in the absence of medical evidence but where a complainant's evidence is not immediately convincing, medical evidence in effect becomes necessary.
    
44. The victim Angelica Gamgam gave oral evidence in Court. I heard and observed her give evidence. She was subjected to cross examination by counsel for the accused. Her answers to the questions put to her during the cross examination were direct response to the questions asked to her.
    
45. I am satisfied that the victim told the Court what happened to her on the 6th of November 2010 in the New Rabaul Post Office. I do not for one moment based on the victim's evidence that she would make up a story about being raped by the accused given that she had adduced evidence that she had a very good working relationship with the accused who was her immediate boss/supervisor. She told the Court that she is a strong Christian and was assessed by me appears to have strong principles about sex outside marriage.
    
46. It is a shameful thing in my view for such a story to be manufactured by the victim about herself being invaded by the accused. Her evidence remained untainted through the trial. I am convinced that her evidence is reliable.
    
47. The accused gave oral evidence too and was subjected to cross examination avoided answering some of the questions and in some cases did not answer the questions put to him by counsel representing the State. For instance he denied that he and his relatives, his Church leaders were the initiators of the reconciliation between him and the victim Angelica Gamgam held on the month of January 2011 and later admitted that it was initiated by him, his Church leaders and his relatives.
    
48. He also denied the reason for the reconciliation between him and the victim Angelica Gamgam was to iron out what he did to the victim Angelica Gamgam but told the Court that he gave K200 to the victim Angelica Gamgam and in return Angelica Gamgam gave him K100. When asked in cross examination: "Why did you give K200 to the victim Angelica Gamgam when you say you did not rape the victim"? The accused took time to answer that question and later said "because of the rumour that I raped the victim Angelica Gamgam." This was after the Court told him to answer the question and not to beat around the bush.
    
49. In the case of State-v- David Sopane, CR NO: 818 OF 2005 – N3024 his honour Lenalia said: "It was not contested by the State that a medical report was not produced by the victim however the State relies on Section 352A of Criminal Code (Sexual Offences and Crimes against Children) Act of 2002".
    
50. Section 229 H says:
    

"On a charge of an offence against any provision of this Division, 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."

51. I read the case of State-v- David Sopane and I conclude and I am satisfied that his honour Lenalia J in fact agrees that Corroboration is not required in Sexual offence under Section 229H of the Criminal Code (Sexual Offences an Crimes against Children) Act however, his honour was not comfortable with the latter part of Section 229H that says "a Judge shall not instruct himself or herself that it is unsafe to find the accused guilty in the absence of corroboration.
    
52. His honour referred to a number of cases both by the National Court and the Supreme Court where corroboration was required as a matter of practice from the Common Law. I note that those cases were decided prior to the new Amendment to Sexual Offences provisions come into operation in April of 2003.
    
53. Therefore in my view the law in regard to corroboration on sexual offences is crystal clear under Section 229H of the Criminal Code (Sexual Offences and Crimes against Children) Act 2002 that corroboration is not required on sexual offences and a Judge need not warn himself of the danger that it is unsafe to convict an accused of an uncorroborated testimony of one witness. That warning to the Judge has been removed by Section 229H of the Criminal Code (Sexual Offences and Crimes against Children) Act by its operation in April of 2003.
    
54. I am also of the view that until this particular provision is challenged in the Supreme Court for its determination whether it is unconstitutional because it is alleged to infringe on the Presumption of Innocent of an accused, the law remains as set out in Section229H of the Criminal Code (Sexual Offences and Crimes against Children) Act 2002 which in my view overrides the Common Law practices regarding corroboration on sexual offences in our criminal jurisdiction.
    

The Record of Interview of accused Roland Bariom

55. The accused gave oral evidence on Oath saying the reason why the victim Angelica Gamgam made up the story against him is because she was not happy with the accused for not recommending her for permanent appointment after the expiry of the three months probation period.
    
56. However the accused was asked the following question Number 32 in his Record of Interview: Q32. Why should Angelica Gamgam lay false allegation to police that you raped her? The accused replied: She looks for ways to put me in trouble. The answer by the accused is saying: the victim is looking for ways to put him in trouble but has not found any however, the accused has found one for the victim which is, the victim was not happy with him for not recommending her permanent appointment as OIC of the New Rabaul Post Office.
    
57. The accused appears to have changed his story on the reason why he says the victim Angelica Gamgam had made up the story against him. This is inconsistency on its face from that which the accused told the Court on Oath and what he told the police.
    
58. I am not prepared to accept the accused story that the victim had manufactured her story against him. I do not believe the accused. I am of the view that the accused is the one lying to this Court. He had seen fit to use the non recommendation by him for permanent appointment of the victim as reason for the victim to manufacture the story of being raped by him.
    
59. I am satisfied from the evidence before me and answer the Issues raised above as:
    
    1. Yes, the victim Angelica Gamgam was sexually penetrated in the New Rabaul Post Office on the 6th of November 2010.
       
    2. Yes, the accused Roland Bariom is the person that sexually penetrated the victim Angelical Gamgam.
       
    3. Yes, sexual penetration of the victim was without her consent.
       
60. Accordingly I find that the accused Roland Bariom is guilty as charged.
    

_____________________________________________________________
Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyer for the Accused