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State v Murray [2012] PGNC 354; N5185 (23 November 2012)

N5185

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 998 OF 2008

THE STATE

V

INOK MURRAY

Popondetta: Toliken, AJ.
2012: 13th, 14th, 15th & 23rd November

CRIMINAL LAW – Particular offence – Aggravated Rape – Trial – Complainant suffers dizziness – Collapses on roadside – Falls unconscious - Accused alleged to have carried her off into the bush and sexually penetrates her – Complainant regains consciousness, kicks accused off and flees – Accused alleged to have ran after her hitting her with stick – Criminal Code Act Ch. 262, ss 347 (1), 349.

CRIMINAL LAW – Evidence – Expert medical evidence – Phenomenon of seizures – Different types of seizure, causes and their characteristics – Different phases of a seizure and effects or manifestations - Epileptic seizures – Recurring seizures suggestive of epilepsy – Examination needed for proper diagnosis.

CRIMINAL LAW – Evidence – No examination on complainant to confirm whether epileptic – Complainant's evidence of having fallen unconscious suggestive of a Complex partial seizure – Post-ictal confusion, amnesia and disorientation, inability to respond appropriately or recollect events during ictal phase - Casts doubt on credibility of complainant's recollection of events – Tests of logic and common sense considered.

CRIMINAL LAW – Evidence - Alibi Defence – Not convincing - Inconsistencies in State witnesses' evidence cast serious doubt on State's case – Accused acquitted and discharged.

Cases Cited:

The following cases are cited in the judgment:
John Jaminan (No.2) [1983] PNGLR 318
Gibson Gunure Ohizave –v- The State (1998) SC 595)
The State -v-Tauraru Avaka (2000) N2024
The State –v- Cosmas Kutan Kitawal (2002) (No.1) N2245
The State –v- Raphael Kewangu (2002) N2189
The State –v- Malihombu (2003) N2365
The State -v- Okata Talangahim (No.1) (2004) N2581
The State –v- Pennias Mokei (No. 1) (2004)
Saperius Yalibakul –v-The State (2006) SC 890
Kitaval –v-The State (2007) SC 927
The State-v-Alois Dick (2007) N3219
The State –v-Warpidik (No.1) (2009) N3776
Waranaka –v- Dusava (2009) SC 980
The State –v- Amos Jonathan (2009) N3764
The State –v- Onjawe Tunamai [2009] PNGLR 234
Browne –v-Dunn (1863) 6 R 67 (HL)

Counsel:

M Ruari, for the State
M Kak, for the accused

VERDICT

23rd November, 2012

1. TOLIKEN AJ: One accused Inok Murray pleaded not guilty to one count of aggravated rape. The State alleged that he:
   

...On the 29th day of November 2007, at Kipore, Oro Province, in Papua New Guinea, sexually penetrated one VIOLA KIONE, without her consent by inserting his penis into her vagina.

AND at the aforesaid time immediately after the commission of the offence, the said INOK MURRAY caused grievous bodily harm to the said VIOLA KIONE.

2. He is charged under Sections 347(1) and 349A of the Criminal Code Act, Chapter 262.
   

THE ALLEGATIONS

3. The State's allegations are that on 29th November 2007, the complainant was walking along the main Kipore road to visit her relatives at the main Kipore village. Along the way she felt dizzy and laid down on the roadside.
   
4. She briefly fell unconscious but as she was laying down she saw the accused approach her and carried her into the bushes. There the accused removed his and her clothes and under-garments. He then inserted his penis into her vagina and had sex with her.
   
5. The complainant regained consciousness while the accused was penetrating her. She kicked him off and ran away. The accused got up, put on his clothes and chased after the complainant. He hit her twice on her back with a stick. At that moment the complainant saw her sister-in-law and ran to her. Seeing this, the accused stopped chasing her and went his own way.
   
6. The State alleged that accused sexually penetrated the complainant without her consent by inserting his penis into her vagina and that immediately after that he caused her grievous bodily harm when he hit her on the back with a stick.
   
7. The accused denied these allegations raising the defence of alibi, the notice of which he duly filed.
   

THE EVIDENCE

The State

8. The State called 3 witnesses, the complainant, Nancy Ronald and Gordon Kione. The accused's Records of Interview and Medical Report were also tendered by consent.
   

1. Evidence of complainant
   

9. The Complainant testified that the 29th of November 2007, she was on her way to the main Kipore Village to visit her mother. She, however, fainted and fell into unconsciousness on the road side. As she laid there, the accused who she referred to as her uncle came and carried her into the bush.
   
10. In her state of unconsciousness, she felt being penetrated in her anus and vagina. She felt that someone was there and when she came to her sense, she saw her uncle on top of her.
    
11. She then quickly wore her tights, kicked the accused off from her, got her dress and ran off back onto the road. The accused, however, ran after her with a big stick hitting her on her back down to her legs.
    
12. On the road, she ran into her in-law. The complainant said that the accused only stopped hitting her when he saw Nancy Ronald.
    
13. After that, the accused left the scene by taking another road and she didn't see him again.
    
14. When asked in examination in chief to describe the stick, the accused used to hit her, she indicated that it as being the size of a fluorescent tube casing.
    
15. When further asked whom she reported the matter first, she said she reported it to her sister-in-law who later told her parents when they came.
    
16. In cross-examination, the complainant said she had been experiencing episodes of fainting. She agreed when it was put to her that this started in 2007 after his brother Ronald had assaulted her with a big stick.
    
17. She further agreed to the following when put to her. That she fainted on 12th of October 2007. On that occasion, she told her parents to bring the accused to her and further that they should pay him his money. She denied that the accused came to see her that same day but agreed that he did come the following day i.e. 13th October 2007 and washed him with water. I take this to be part of some kind of a healing ritual.
    
18. She further agreed that on 22nd November 2007, she experienced another painting episode. On the occasion, she went to the block where the accused was staying and slept in a haus win over night. The next day, her parents came and took her home.
    
19. On a prior occasion in October 2007, the complainant agreed that he had also fainted. She agreed that Nancy found her running into the bush and took her home. On the way, they met her aunty, Julius who assisted her.
    
20. She finally on the 29th November 2007, she had another episode. She agreed when asked that on that occasion, she had followed the river up at Kipore naked and she was assisted by Annie Pires and Dicla Ronald who covered her with a laplap. She agreed that on that day, there were alot of people around that time making preparations for the Church Opening on the 31st November 2007. She agreed that Delta and Annie took her to the church ground and kept her there until her parents came and took her home.
    
21. In cross-examination, the complainant was referred to the Statement she made to the police. The Statement was later tendered into evidence as a prior inconsistent Statement as regard firstly her description of the distance from the village to where she fainted which the defence sought to be accepted as inconsistent with her oral evidence.
    
22. The complainant was referred to 1st and 2nd paragraph of her Statement which read:
    

"As I was going down to the ground, I think the suspect who came over to me and then carried me. While under the tree in the bush, the suspect had made the bed from the leave of Golgel Leaves".

23. She said that this was true.
    
24. The complainant was further referred to the 2nd last paragraph of her Statement where she says that she and Nancy arrived at Kipore, they saw the accused coming out of the village and taking the road that they had come in. She was asked to explain the inconsistency between this Statement and her oral evidence where she said she never saw her again. The complainant said that was true, her uncle was there but when he saw her parents, she went away. But to a question immediately after this, she agreed that on 29th November 2007, she never saw the accused.
    
25. The complainant was then asked if she can think properly or recognize close family members when she faints or gets dizzy. She answered affirmatively.
    
26. But when asked further if she agreed that during those times of dizziness and fainting, she is usually not aware of what she does. She answered that when she faints, she loses her senses and when she regains consciousness, it takes a while before she is fully conscious.
    
27. When asked if she is aware running naked into the bush she says she does not know whether she is naked or not.
    
28. When asked that on the 22nd November 2007, when she went and slept at the accused block, she didn't know how she got there because of her illness, she said "I wasn't normal at that time when I went. I was like half sense". She agreed that this abnormality comes on immediately after she experiences headaches and dizziness.
    
29. The complainant was also asked about some money allegedly owed by her fallen to the accused. To this, she made denials. When questioned further, she agreed that her parents believed that he was the cause of her illness because of the money owed to him.
    
30. In re-examination, the complainant said that she recalled that she was sick and was walking up the river. She said that this was on 29th November 2007. She, however, corrected herself saying that what actually happened on that date was that he was walking along the road when she felt dizzy and fell unconscious, that her uncle picked her up and carried her into the bush and had sex with her.
    
31. The complainant admitted that Annie and Delta did help her but this was on 27th of November 2007. She then reiterated her oral evidence that she never again saw the accused after the alleged incident. She finally made some admission that she in fact knew about the money owed by her father to the accused.
    

ii. Evidence of Nancy Ronald

32. Nancy Ronald testified that on 29th November 2007, she was on her way to visit her family when she came across her sister in-law, the complainant. She said that she had mud on her body and was wearing tights only and a small top. She took her back to the village, washed the mud off her body and gave her clothes to put on. She said the complainant's body was swollen.
    
33. When asked in chief, whether she saw anybody else around that time, she said she saw her uncle, the accused with the complainant. She said she saw the accused with a stick – a shade tree branch – hitting the complainant. She also said that the accused followed them back to Kipore.
    
34. In cross-examination, the witness agreed that the complainant was a sick person who sometimes "dies" (faints) and runs into the bush and on occasions she removes her clothes and runs around naked.
    
35. The witness also agreed that in October 2007, she had another one of this bouts removed her clothes and ran into the bush and that she and the accused captured her and took her home. She agreed, when put to her that this is the incident she had just mentioned in her evidence in chief.
    
36. When re-examined, though, she said that incident was the same she had previously told Court about. i.e. as happening on same date i.e. 29th November 2007.
    
37. When asked to tell the Court what happened in October, she said that it was during the time of the disaster and they had moved to Kipore that was when this problem happened. Pressed to explain what problem she said the problem about her sister-in-law, the complainant. She said that they had moved to the main village and that on that day when on the way to visit her family, she saw her uncle and the girl (complainant) on the road.
    

iii. Evidence of Gorden Kione

38. Gorden Kione, the complainant's father testified that he had gone into town on the date in question. On his return to the village, the complainant told him what happened so on the next day, he followed the accused down to town and reported the matter to the police.
    
39. He said that his daughter told him that she had fainted and the accused raped her and hit her arms and legs. Said he was worried about her so he reported the matter to the police.
    
40. When asked in chief to tell about his daughter, he said that she sometimes fall unconscious and that sometimes the accused would assist by washing her with warm water. He said that this condition only developed when the accused – a cousin of his wife – moved to Kipore in 2007.
    
41. In cross-examination, he agreed when put to him that on 29th November 2007, he and his wife were at the church ground with other villagers making preparations for a church day (opening), when his daughter, the complainant experienced her illness again. He agreed that the complainant had been with Delta and Annie and that he had gone and got her from them.
    
42. He, however, denied having been told by these two girls – whom he said lived in town – that they had brought the complainant up from the river. He then said he didn't know them and when it was put to him that he was lying, he said he was confused and that was why he answered yes to questions put to him. Hence he said that at that time, he saw her daughter and went to the police.
    
43. He said he reported the matter on 29th November 2007. He was adamant that it was on that date in the face of suggestions that he actually reported the matter on 30th November 2007.
    
44. When asked if he and wife were with the rest of the villagers at the church ground making preparations for the church opening, he said they were but this incident did not happen on that day. He said that this thing happened two days before the church opening.
    
45. When asked if this was on the 29th, he said it must have been on the 7th of November 2007. He then answered in the affirmative when asked if he and his wife were with other villagers on 29th November 2007 preparing for church day. He, however, denied that it was on that day that Annie and Dicta assisted his daughter until he and his wife took her home.
    
46. The witness agreed that the accused had used his bank account to have some of his money from harvesting palm oil fruits. He, however, denied that he retained K110.00 from the K430.00 that was paid. He said that he gave the accused K300.00 leaving K20.00 to hold the account.
    
47. He said he suspected the accused of causing his daughter's condition because he was the only one who "washes" her when she experience her illness.
    
48. He denied that his daughter had called the accused by name and asked him and his wife to pay his money on the 12th October 2007 in one of her bouts. He, however, agreed that the complainant went to see the accused on the 13th of October 2007.
    
49. The witness denied making up the entire allegation out of his and his wife suspicion that the accused was responsible for their daughter's illness.
    
50. The witness was finally referred to his Statement to the police (later tendered into evidence ( Exhibit 2 for Defence) where Counsel point out to him a couple of paragraphs which he said were inconsistent with his oral testimony.
    
51. In particular, he was referred to the third paragraph of his Statement (dated 10/1/2 008) where he said that on the morning of 30th November 2007, he and his wife went to Kipore Village, where they saw the daughter at Nancy's house. Seeing them, the complainant cried and told them that the accused had raped her.
    
52. It was put to him that this is consistent with his oral evidenced that the complainant reported the matter to him on the same date as the incident. He answered that her daughter told him on the 29th November 2007.
    
53. The witness finally said in cross examination that he had never taken his daughter to see a doctor about her condition.
    
54. On re-examination, the witness said that he returned home very late on the 29th of November and that was when he saw his daughter.
    
55. When asked to explain his Statement to the police, he said he had to wait until the next morning as there was no way he could have brought her in.
    
56. When asked whether the incident took place before or after the church day, the witness said it happened 2 days after the church day.
    
57. The witness confirmed that the accused had his money for harvesting oil palm paid into his (witness) account but says that in regard to the sum in contention only K3 20.00 was paid in and he retained K20.00 to hold the account while the rest (K300.00) he paid gave to the accused.
    

iv. Medical Report

58. The Medical Report by Health Extension Officer (HEO), Wendy Dunstan dated 28-1-08 was tendered by consent. The Report noted the following:-
    
    • The complainant, Viola Kione was brought in to the General Outpatients Department on 30th November 2007.
    • She complained of having been sexually assaulted by a man on the 29th November around 2.00 pm, of being hit with a stick on her back as she was struggling to escape.
    • She was in great pain and said that the victim had vaginal and oral sex with her.
      

ON EXAMINATION

• Body: Right shoulder - swelling +

- tenderness +

Joint - swelling +

- Tenderness +

• RE + SPECULUM
  

Anus - Laceration on the anal orifice

Vaginal Examination - Offensive discharge

- Cervical OS eroded
- Bruises on Vaginal Orifice
- Tenderness +
- Pus Swab taken

Pus Swab taken for spermatozoa and microscopy

The result is: - No spermatozoa

- Bacteria +
- Pus Cells ++

59. The examining officer concluded that from her findings, she can confidently say that the complainant suffered from sexual assault.
    

CASE FOR THE ACCUSED

60. The defence called the accused himself, Dr Towai Giara, Annie Piris and Joyce Piris.
    

1. Evidence of the Accused
   

61. The accused testified that on the 23rd of November 2007, he had come into town from Kipore. He left his bag at Javane Compound and then walked to the Micro-bank and made a deposit of K170.00 into his passbook account. He produced the passbook and Court was shown the appropriate credit in the passbook – (Passport, however, not tendered into evidence).
    
62. He then went to her sister's house where he stayed for 3 weeks fixing her house and helping with her gardens which were recently destroyed by cyclone. He did not go anywhere else during those three weeks until he was arrested.
    
63. The accused testified that he had a harvesting contract which allows him to help oil palm block holders to harvest their crops for a fee. He said that payments were normally deposited into his cousin's bank account.
    
64. However, in September 2007, he asked his in-law, Gorden Kione to use his account instead as his cousin lives far from Kipore. Gorden Kione agreed but when the payment came through Gorden paid him K320.00 only. The accused said he had calculated that he would have received K430.00. Gorden Kione thus retained K110.00 which he refused to pay despite requests by the accused. This directly led to differences between the two of them.
    
65. The accused said in chief that prior to that, they did not have any differences and he often came to the Kiones for meals though he never stayed with them. However, he never returned to their house after that.
    
66. The accused knew about the complainant's condition - that when it comes on she would run off into the bush.
    
67. On the 12th of October 2007, the accused said that she suffered again from the condition and he was fetched by her parents from Onge hamlet. He was told that his niece i.e. the complainant was calling his name and telling her parents to pay him his money.
    
68. He followed them to their house where he found them and sat with the complainant in the 'haus win'. He told her parents that if he were responsible for her condition, it will end if they paid his money. If it does not, then the problem would be elsewhere. He then washed her with a herbal preparation.
    
69. Then on another date in October 2007, the complainant had another bout or attack. She walked all the way to the accused's hamlet at night.
    
70. Her parents went down very cross, shouting and accusing the accused of sorcery. The accused said they had no idea the complainant was there after they found her sleeping in the 'haus win'. The parents, however, returned to their block. The complainant spent the night there and left the next morning.
    
71. On another occasion, on 22nd November 2007, she had another attack – and ran into the bush. Her in-law, Julie came to the accused's block and asked him to help her find the complainant. They went out and located the complainant and brought her back to the village but then she ran off again to the main Kipore Village. The accused summoned Nancy Ronald and the whole family and they all went into the bush looking for her. They found her and brought her back.
    
72. The next day, 23rd November 2007, the accused said he went up and saw Nancy and Ronald. He greeted them and went to town to do his banking.
    
73. The accused said that the complainant's parents suspected him of her illness because of the money. Asked how he knew this, he said that on that night, the complainant came up to his place, her father had threatened to sue him if anything happened to her or if she dies. He then repeated this threat on 22nd October.
    
74. In cross-examination, the accused said that he had been living at Ongi for about 1 1/2 years with her sister Jerana until the disaster. (Cyclone Guba).
    
75. When it was put to him that he returned to Kipore after he did his banking on 23rd November 2007, the accused said he could not because the flood had destroyed everything and his sister had moved and was staying with others.
    
76. The accused flatly denied the events of the 29th November 2009. He denied finding the complainant unconscious on the road, carrying her into the bush and sexually penetrating her and then hitting her with a stick, even when it was put to him that Nancy Ronald saw him at the scene of the crime.
    
77. He finally said that he never returned to Kipore until his arrest on 15th of December 2007 and that his bag is still up there at Javane with his brother, Timias Woira.
    

ii. Evidence of Dr. Towai Giara

78. Dr. Towai Giara is a specialist physician specializing in internal medicine and deals with diseases affecting adults such as diseases of the nervous system, respiratory, cardiology and gastro-intestinal diseases.
    
79. Dr. Giara testified that neurological diseases include meningitis, epilepsy, stroke and brain tumours. These diseases affect the Central Nervous System (CNS).
    
80. One such disease is epilepsy, a condition where a person has recurrent seizures due to a chronic underlying process affecting the Central Nervous System.
    
81. According to Dr. Giara seizures are abnormal electrical activities in the brain that cause involuntary manifestations in the body.
    
82. There are many causes for seizures. These include among others, genetic disorders, infections in the Central Nervous System, Intra-Cranial haemorrhage or bleeding in the brain, brain tumours, metabolic disturbances i.e. imbalances in electrolytes resulting in low sugar, potassium or sodium, alcohol withdrawal or illicit drug abuse.
    
83. Dr. Giara testified that there are three (3) groups of seizures. These are:-
    
    • Partial Seizures
    • Generalized Seizures
    • Unclassified Seizures
      
84. Partial Seizures arise from a focal point in the cerebral hemisphere that control senses, movement and everything else that we feel. In other words, they happen in one part of the brain only.
    
85. Partial Seizures are further classified under three sub-categories. These are:
    
    • Simple Partial Seizures
    • Complex Partial Seizures
    • Partial Seizures with secondary generalizations
      
86. Generalized Seizures arise from the cerebral hemisphere simultaneously, in other words, the abnormal electrical impulses arise from both hemispheres of the brain at the same time.
    
87. Generalized Seizures are further classified into five sub-categories. These are:-
    
    • Absence generalized seizures
    • Tonic- Clonic Seizures
    • Tonic Seizures
    • Atonic Seizures
    • Myoclonic Seizures
      
88. Dr. Giara then described the 3 phases of Seizure activity. These are:-
    
    • Pre-Ictal or Aura Stage: Here, the person experiences abnormal sensations in the body before the seizure. For instance, dizziness, headache, strange taste in the mouth or hallucination. This can last for a few seconds or for sometime. The person is fully conscious or awake.
      
    • Ictal Stage: This is the actual seizure stage or activity. Results in loss of consciousness.
      
    • Post Ictal Stage: This is the stage after the seizure.
      
89. According to Dr. Giara, the different types of seizures manifest differently between two extremes – (1) convulsion or (2) the seizure may not be observable at all.
    
90. In a Simple Partial Seizure, the person is fully conscious. The seizure lasts for a very short time or seconds. There may be some loss of consciousness but this may only be for 10 – 20 seconds. A Simple Partial Seizure may cause motor, sensory, autonomic or psychic symptoms. In the Aura Phase the state of unconsciousness may last only a few seconds.
    
91. A Complex Partial Seizure is characterized by focal seizure activity accompanied by loss of consciousness. The patient is unable to respond appropriately to visual or verbal commands. He or she suffers impaired recollection or awareness of the ictal phase. There is complete loss of consciousness and the patient doesn't know what had happened. He can only remember up to the time he has gone into the ictal phase but will not recall the events that had taken place after that. This may last for hours or for a few minutes only.
    
92. The Ictal Phase in a Complex Partial Seizure is characterized by sudden behavioural arrest or motionless stares. There is an onset of amnesia (patient doesn't know what happened and may never recall anything that happened) followed by automatism (abnormal movement, e.g. chewing, lip smacking or swallowing) or aimless walking or running.
    
93. There is post-ictal confusion – the patient will be confused after regaining consciousness. There will be disorientation that can last from seconds to hours on end. There will be confusion and the patient will not know what he or she is talking about.
    
94. A Partial Seizure of Secondary Generalization occurs from focal point but then generalizes involving the first two types of seizures. It starts with simple seizure and generalizes to involve entire brain thus manifestation to the whole body. There is loss of consciousness as well.
    
95. A Generalized Seizure arises from both cerebral hemispheres simultaneously.
    
96. An Absence Seizure on the other hand involves brief lapses of unconsciousness that lasts only seconds. Consciousness returns as suddenly as it was lost. Here there is no post-ictal confusion. There is subtle bi-lateral motor seizure characterized by rapid blinking of eye-lids, clawing movements of hands etc. This is often associated with generalized tonic- clonic seizures (stiffening (clonic) and relaxing (tonic) of limbs.
    
97. In a typical Absence Seizure there is loss of consciousness of some duration. This is usually associated with mental retardation.
    
98. A Generalized Tonic- Clonic Seizure is characterized by the absence of the aura phase. The first stage of this type of seizure is the Clonic stage. It starts with generalized contraction of most muscles. The patient suddenly falls down and goes into clamminess of entire body. The whole body goes into a spasm. This affects the respiratory system resulting in excessive salivation, breathing difficulty, some degree of air-way obstruction. This causes the larynx to spasm and patient gives out very loud cry called the "ictal cry" . This may last 10 – 20 seconds.
    
99. This followed by the second stage – the Tonic stage. This is the relaxation phase. The patient goes into relaxation after 10 – 20 seconds. All muscles all relaxed again. There is excess salivation, incontinence or loss of bladder control.
    
100. In the third phase – post-ictal – there is post-ictal confusion. The patient can develop severe headache or muscle ache because of severe spasms during the seizure. There is impaired consciousness or total unconsciousness that can last for many hours.
     
101. In an Atonic Seizure there is sudden loss of posterial muscle tone which can last for only 1-2 seconds. There some loss of consciousness but there is no post- Ictal confusion. The seizure is very brief and can be demonstrated as a quick head drop or head nodding which lasts for a very short period of time. If longer though the patient will collapse.
     
102. Finally there is the Myoctonic Seizure which is characterized by a very brief muscle contraction on one part or the entire body. This is a common occurrence.
     

91. In cross-examination, Dr. Giara said that a proper diagnosis has to be made by interviewing and examining the patient before it can be ascertained whether he has epilepsy or not.

92. When asked if fainting means a case of epilepsy, Dr. Giara said that it may not be epilepsy but it is still a seizure. If history reveals recurring seizures then that would indicate epilepsy.

93. Dr. Giara was also asked if a beating in August could still be detected in November. He said that could be possible but normally a recent beating could easily show on examination.

94. Dr. Giara also confirmed that a laceration in the anus or vaginal orifice could be evidence of sexual penetration. In re-examination be said though that it is possible for an epileptic person to inflict wounds on himself for instance, he may fall into a fire or bite his tongue.

iii. Evidence of Annie Piris

95. Annie Piris, a niece of the accused testified that she had left her family in town and had gone to Kipore on the 8th of November 2007 after she had faced problems at school. She was in Grade 8 then.

96. She testified that on 29th November 2007, the complainant suffered another of her attacks. She said that they were at the church ground at Kipore where the villagers were making preparations for the opening of the Village Church. She and one Dicta Ronald were playing volleyball with other girls when one Mary Rose informed them that the complainant was running up the river, naked. The witness and Dicta then ran down to where the complainant was. Dicta covered her with a laplap and they took her back to the church ground where they kept her under a house until her parents came and took her away.

97. Annie Piris denied seeing the accused up at Kipore during the time she was up there. She said, that, she was, however, informed by her mother that the accused was with her family in town.

iv. Evidence of Joyce Piris
98. Mrs. Joyce Piris is the sister of the accused. She testified in chief that the accused he had come down to town on 23rd November 2007 and stayed with them for 3 weeks. She said that this was during the disaster and the accused had come to assist in fixing her house and gardens which were destroyed by the floods.

99. Mrs. Piris said that the accused never left them or go anywhere else during the time he was with them. She confirmed that her daughter, Annie had gone up to the village to stay with her grandparents after they ran into school fee problems.

100. In cross-examination, Mrs. Piris said that the accused was always in the house with her helping her around as her husband was always busy at work. She said she called her daughter, Annie on 16th December 2007 to return to town after her uncle, the accused was arrested on the 15th of December. When asked what the accused was doing on the 29th November 2007, the witness said that he had gone down to the river to wash but then spent the whole day mending the sago roof to her house. He then later in the afternoon went to the market to buy vegetables.
101. On re-examination, Mrs. Piris said the accused never left her place. She said they don't go out too much especially in the evenings because their place is not too good. I took this to mean that the neighbourhood was not too safe.

SUBMISSIONS

102. Defence Counsel submitted the State has not proved its case beyond reasonable doubts arising from the numerous inconsistencies and contradiction in the State's evidence. These include:-

1. The complainant said on the one hand that on the 29th November 2007, she had fainted along the Kipore road and was carried off into the bush by the accused and sexually penetrated, but on the other hand that she had been walking up the river a t Kipore naked and that she was assisted by Dicta and Annie. This was on the same day, 29th November 2007.
   

The defence, therefore, says that there are two versions as to what happened on that day so the complainant was either raped or not raped.

Further to that, witness Nancy Ronald's evidence was contradictory in that while she said that she saw the accused hitting the complainant with a stick on the date in question she also referred to a similar prior incident in October where she said she and the accused assisted her in one of her attacks or fits.

2. There is inconsistent evidence as to whom the victim first reported the alleged rape to. She said she reported the matter to her parents. But in her statement to the police, she says she reported to Nancy Ronald. Nancy Ronald on the other hand never mentioned that the victim told her about the alleged rape.
   
3. In her evidence, the complainant repeatedly said "mi dai" when she was allegedly carried off, unconscious into the bush by the accused and sexually penetrated. Counsel argues that this shows that she was not aware of anything.
   

In any event, she said herself that she could not remember anything when she has one of her fits.

Counsel refers to the evidence of Dr. Towai Giara about the stages of an epileptic seizure. During the Ictal phase, the patient loses consciousness and does not know what's happening around her/him.

So, asks Counsel, how could she have known that the accused carried her into the bush when she was unconscious and how could she have identified the accused at that stage?

4. Another inconsistency/contradiction in the State's evidence is that the complainant said that she was able to wear a pair of tights after she had kicked off the accused, grabbed her clothes and ran off onto the road. However, in her statement to the police, she did not mention wearing any tights. On the contrary, she said she was completely naked. Then, there is Nancy's evidence who says that the complainant was wearing tights and a top.
   

Counsel said that it is against logic that the complainant could have managed to wear her tights while the accused was on top of her and then kicked him off, given the fact that she would have been merely 16 years old when compared to a much bigger and stronger man in the accused.

5. Another inconsistent statement Counsel argued is that in oral evidence, the complainant said she never saw the accused again after the incident. However, in her statement to the police, she said she and Nancy Ronald followed him to the village.
   
6. Counsel says further that what the complainant said about still being sick on 17/12/07 when she gave her statement to the police is illogical. She said she had been sick from 29/11/07, so Counsel asks how an epileptic could give a coherent statement to the police in those circumstances.
   
7. The Counsel refers to what he says was another inconsistent/contradictory evidence. He says that the complainant denied having called out the accused name on 12th November 2007 and of having asked her parents to repay the accused's money.
   

However, she admitted that the accused did wash her on 13th of November 2007. Her father, Gorden Kione did in fact confirm in his evidence that the complainant did call out the accused name.

103 Finally, Counsel said that the complainant also gave contradictory evidence as to when the issue about the accused money occurred. He said it happened after the incident but then confirmed that this happened in September 2007.

104. Counsel further submitted that the demeanour of the State's witnesses was not good.

105. They never looked at the Court and that Gorden Kione was evasive. This, he said is indicative of witnesses not being truthful.

106. Counsel submitted that the motive behind this prosecution is that the complainant's parents believed that the accused was responsible for the complainant's condition, a fact admitted by her father, Gorden Kione in evidence.

107. Counsel submitted that the evidence of accused himself was hardly moved by the State – that on the date in question, he had come into town for banking and he had been living with her sister in town until he was arrested.

108. Finally, Counsel submitted that the evidence of Annie and Joyce Piris confirmed the accused alibi. Counsel said that the alibi evidence was hardly moved.

109. Counsel submitted that these contradiction and inconsistencies must be assessed by applying the tests of inconsistency (Okata Talangahim (No.1) (2004) N2581; The State –v- Malihombu (2003) N2365; The test of logic/commons sense (The State –v- Pennias Mokei (No. 1) ( 2004) N2606; The State –v-Cosmas Kutan Kitawal (2002) (No.1) N2245; and the demeanour test (The State -v-Tauraru Avaka (2000) N2024; Gibson Gunure Ohizave –v- The State (1998) SC 595).

110. The State on the other hand submitted that the issue for the Court's determination is whether the accused sexually penetrated the complainant given his defence of alibi.
111. Counsel conceded that there may inconsistencies in the State's case but argued that these do not go to the material facts.

112. Counsel said that there are not two stories. There is only one – that on the date in question, the complainant fainted along the road at Kipore. The accused came along, carried her into the bush and raped her. Whether she was wearing tights or not is immaterial.

113. Counsel further said that there may have been inconsistencies in Nancy Ronald's evidence but she referred to a problem which she adequately identified as the incident when the accused hit the complainant with the stick. This happened on 29th November 2007, not on any other date. Other immaterial matters are whether the complainant called out the accused name.

114. Counsel said that while these inconsistencies may have caused a "slight dent" to the State's case, the overall evidence is consistent and in line with principles of common sense and logic.

115. He relies on Waranaka –v- Dusava (2009) SC 980, where he said the Supreme Court held that any unexplained inconsistency in the evidence not keeping with commons sense and logic is a basis for rejection of such evidence.

116. This was not a made up charge, Counsel said, as alleged by the defence. Gorden Koine felt sorry for her daughter after hearing that she was raped and hence reported the matter to the police.

117. Counsel said that a most critical part of the State's evidence is the Medical Report which shows that there was sexual intercourse. This was confirmed by Dr. Giara who said that laceration to the anus or vagina is consistent with sexual penetration. The Medical Report is further consistent with the evidence that the accused assaulted the complainant with a stick. Therefore, this cannot be rejected by the Court (Waraka –v-Dusava (supra).

118. Counsel submitted that there was no evidence to show that the complainant was epileptic. No examination had ever been conducted on her to show that she was. But if the Court does accept that she was, then the Court should note the 3 stages of a seizure i.e. the Pre-Ictal Stage, Ictal Stage and Post Ictal Stage.

119. Counsel said that at the Pre-Ictal Stage, the complainant would have been fully aware of her surroundings and therefore, would have known that the accused carried her into the bush.
120. After the Pre-Ictal Stage comes the Ictal Stage and then the Post-Ictal Stage. Counsel referred the Court to Dr Giara's evidence that at the Post Ictal Stage, the patient is fully aware of what is happening around her/him.

121. In this case, the complainant said that as she regained consciousness, she felt a penis in her vagina and anus. It was at this stage, which can last for seconds to hours that she recognized the accused.

122. Counsel, therefore, submitted that the evidence on this point was in keeping with common sense and logic.

123. As to the accused's defence of alibi, Counsel for the State submitted that despite filing the defence according to the rules, the Counsel for the accused never put the State witnesses that the accused was in town on the date of the incident. This, he said was in breach of the rule in Browne –v-Dunn (1863) 6 R 67 (HL). Therefore, the defence cannot stand nor should any weight be placed on it.

124. Counsel referred to The State –v- Raphael Kewangu (2002) N2189, where Kandakasi, J, re-stated the principle on this point in John Jaminan (No.2) [1983] PNGLR 318. There the accused filed a defence but did not put it to State witnesses. Ssuch alibi may be held to be unreliable and may be false (The State –v-Warpidik (No.1) (2009) N3776. Furthermore, while a breach of Browne –v- Dunn may not lead to an automatic rejection of the alibi evidence, it can reduce its weight (Kitawal –v-The State (2007) SC 927)

125. This case, Counsel said, shows that failure by the defence to put their alibi to State witnesses drastically reduces or diminishes the weight of such evidence.

126. In this case, Counsel submitted that the accused himself was shifty and evasive which is reflective of an untruthful witness. He insisted on having remained with his sister since he came to town from Kipore, that he in fact came down to fix his sister's house and gardens. Why then did he leave his bag elsewhere if he were to have come to live at Bangoho Compound? Counsel said his evidence should not be believed.

127. In regard to Annie Piris' evidence, Counsel submitted that her evidence should be rejected in totality as it is hearsay. She never saw the accused at her parents' but only heard about it from her mother.

128. Witness Joyce Piris, Counsel said, was very specific about dates such as 16th of December 2007 when she supposedly called her daughter. However, she was shifty when asked about the 29th of November 2007 but on the other hand, she was very sure about the accused's movement, the three weeks he allegedly was staying with her. Counsel said that she was an unreliable witness and her alibi evidence should not stand.

129. In conclusion, the State argued that even though there may have been some inconsistencies in its evidence, these are immaterial and besides, there is no evidence to the contrary showing that somebody else sexually penetrated the complainant but the accused.

130. The defence of alibi is completely tainted.

131. The State finally said that they had also proved that there was circumstance of aggravation.

132. The State, therefore, asked for a conviction.

THE OFFENCE
133. The crime of rape is provided by Section 347 of the Criminal Code Act. It provides:-

"347. Definition of Rape

(1) A person who sexually penetrates a person without his consent is guilty of rape."

Penalty: Subject to Sub-Section (2), imprisonment for 15 years.

(2) Where are offence under Sub-Section (1) is committed under circumstances of aggravation, the accused is liable, subject to Section 19, to imprisonment for life".

134. Section 349A defines circumstances of aggravation to include among other things causing grievous bodily harm to the complainant.

135. "Sexual Penetration" is defined by Section 6 of the Code as follows:-

"6. Sexual Penetration.

Where the expression "sexual penetration" or "sexually penetrates" are used in the definition of an offence, the offence, so far as regards that element of it is complete where there is –

(a) The introduction, to any extent, by a person of his penis into the vagina, anus or mouth of another person; or

(b) The introduction, to any extent, by a person of an object or part of his or her body (other than the penis) into the vagina or anus of another person, other than in the course of a procedure carried out in good faith for medical or hygienic purposes.

136. So, as we can see from the above definition which came about by way of amendment to the Code by the Criminal Code (Sexual Offences and Crimes Against Children) Act (No. 27 of 2002) S.2, full insertion of the penis or object or body part into the vagina, anus or mouth of the victim is not necessary to constitute penetration.

137. Full penetration is not required. In Saperius Yalibakul –v-The State (2006) SC 890, the Supreme Court said that "... it is not necessary ... that there be "full" penetration. If for example, there is introduction to any extent by a person of his penis into the vagina of another person sexual penetration is complete..." (See also The State –v- Amos Jonathan (2009) N3764).

138. It is not also necessary for the State to prove the presence of spermatozoa to establish that there was sexual penetration (The State –v- Onjawe Tunamai [2009] PNGLR 234).

139. And it has been suggested by Lenalia J. in obita that licking a person's private parts (vagina?) to generate stimulation can constitute sexual penetration. (The State-v-Alois Dick (2007) N3219. To this, I may perhaps just add that whether or not there is actual penetration in such a situation will depend very much on which sexual organ is being orally stimulated. This is because some sexual organs like a woman's clitoris or a person's anal surface area are superficially located and can be stimulated without penetration by the tongue.

140. "Grievous bodily harm" on the other hand is defined by Section 1 of the Code to mean any bodily injury of such a nature as to endanger or likely to endanger life or cause or likely to cause permanent injury to health".

141. This is to be contrasted with "body harm" which the Code (S.1) defines as "any bodily injury that interferes with health or comfort.

FINDINGS OF FACT
142. From the evidence, I find the following are relevant facts:

1. That after the victim was severely assaulted by his brother on 22/8/07, the complainant started experiencing bouts of dizziness and headaches and fainting. On other occasions, she would run naked into the bush and would never recall what happened on those occasions.

2. On at least 3 occasions in the months of October and November 2007, the complainant experienced such episodes.

3. One such occasion was on the 12th October 2007 when the complainant, walked obviously absent – minded to the accused's hamlet, where her parents followed her up and the complainant was found sleeping in a haus win at the accused hamlet. She returned to her hamlet the next day, the 13th of November 2007.

4. On the next occasion which exact date is hotly in dispute – the accused claiming that it was on the 29th of November 2007 while the State witnesses claim it be on a different day – the accused was found naked following the river up at Kipore. Dicta and Annie Piris assisted her. They took her up to the church ground, where villagers were, including the complainant's parents, making preparations for the opening of the local church at Kipore. Her parents later fetched her and took her home.

5. I find that in those occasions the accused administered herbal bath on the complainant and this seemed to have calmed or arrested her condition somewhat.

6. I am satisfied on the required standard that on one other occasion, the one the subject of the charge, the complainant again suffered another attack while she was walking along the Kipore road to visit her relatives at the main village. I accepted that she fainted by the road-side.

7. What happened after she fainted is in dispute which gives rise to issues of fact which I shall return to later. However, I find that sometime after that Nancy Ronald came upon the complainant running out of the bush to the road with the accused behind her with a stick in his hand. Nancy Ronald took the complainant home. The matter was later reported to her parents, whom, I find had gone into town that day.

8. I find that the matter was reported to the police on the 30th November 2007 and the complainant was later subjected to a medical check later that day at the Popondetta General Hospital.

9. I accept the findings of the Medical Report that the complainant's right shoulder and joint were swollen and tender and that she was still in great pain.

10. I also accept that speculum examination of the complainant's vagina revealed laceration to her vaginal orifice or opening into her vagina and examination of the anus also revealed laceration to the anal orifice. No spermatozoa were, however, seen under microscope from the pus swab taken.

11. I accept the examining officer's conclusion that the complainant suffered from a "sexual assault" . I also accept Dr Giara's concurrence that lacerations to the vaginal and anal orifices are suggestive of sexual penetration.

12. I find also that despite her recurring condition, the complainant was never examined by a medical doctor for a diagnosis of her exact condition and for necessary treatment. So while her symptoms as described in the evidence and when viewed against the medical description of seizures including epileptics seizure strongly point to epilepsy, she has never been properly diagnosed as being epileptic. Be that as it may, I am satisfied that the complainant had been having seizures on those occasions referred to above.

13. I also accept the expert evidence of Dr. Towai Giara of the phenomenon of seizures which can be either epileptic or non epileptic, the different classifications of seizures, their causes and manifestations and the stages or phasis of such seizures.

14. I accept too that the accused had come down to town sometime towards the end of November 2007 and that he was staying with his sister's (Joyce Piris) family at Bangoho Compound in Popondetta Town until his arrest on the 15th of December 2007.

15. I also find that Defence witness, Annie Piris had been for sometime from early November 2007 to mid December 2007, at Kipore village after she had fee problems at her school.

142. Now, as I earlier mentioned what happened on the alleged date of the offence give rise to factual issues that directly touched on the central issue of whether or not the accused sexually penetrated the complainant without her consent under circumstances of aggravation.

THE ISSUES
143. The main issues therefore are:-

1. Did the accused sexually penetrate the complainant on the 29th of November 2007 without her consent; and

2. Did he cause her grievous bodily harm immediately after sexually penetrating her?

144. To answer these questions, it is necessary to scrutinize or analyse the relevant evidence on what happened on that date and what date exactly it was that the alleged attack on the complainant happened.

145. Firstly, what date did the complainant faint on the road at Kipore leading to the subsequent sexual attack on her.

146. I have already found that the matter was reported to the complainant's parent on the day that they had returned from their trip to town and the complainant's father took the complainant to the police and later to the hospital on the 30th of November 2007. The incident, therefore, happened on the 29th of November 2007. It follows therefore that the incident described by witness Annie Piris at the Kipore Church ground would have been on another day.

147. This, then, leads me to the next question – the all important question. Did the accused sexually penetrate the complainant on that day in question without her consent?

148. To answer this question, I adopt and apply the considerations applied by Cannings, J. The State v Pennias Mokei (No.1) (2004) N2606. There, His Honour said:

"The Court as a tribunal of fact, has to be satisfied beyond reasonable doubt that the answer to the question is yes, before the accused can be found guilty. Having regard to S.229H of the Criminal Code [Corroboration not required], the following are considerations that seem to me necessary to take into account when determining that question of fact:

(1) Is there direct evidence available?
(2) Is that evidence credible?
(3) Is there independent medical evidence consistent with sexual penetration having taken place?
(4) Is there any other corroborating evidence (bearing in mind that such evidence is not essential but nonetheless relevant)?
(5) Is that corroborating evidence credible?
(6) Was the complainant fresh?
(7) Is there any contrary evidence or material before the Court?
(8) Is that contrary evidence or other material credible?

149. Now, the relevant evidence on the issue of whether or not the accused sexually penetrated the complainant is the complainant's evidence itself, the evidence of Nancy Ronald and the Medical Report.

150. To re-cap the complainant's evidence is that she was walking along the Kipore road on the date in question when she felt dizzy and fainted by the roadside. As she laid there unconscious or semi-conscious, she saw that accused come up and carried her into the bush. In her state of unconsciousness, she felt being penetrated in her vagina and anus. When she came to her senses, she saw the accused lying on top of her. She quickly put on her tights, kicked the accused off from her, picked up her other clothes and ran on to the road where she saw her sister-in-law. The accused ran after the complainant hitting her with a stick and only desisted when the complainant reached her sitter-in-law, Nancy Ronald.

151. Nancy Ronald, as we will recalled also testified that she was on the Kipore road on her way to visit her family at the Main village when she saw the complainant running out of the bushes with only her tights and a top. She also saw the accused with a stick in his hand following the complainant but that he stopped as soon as she saw her. She took the complainant home to Kipore village.

152. The matter was reported to the complainant's parents and they took the complainant to town on the next day, 30th November 2007 and reported the matter to the police and later took her to the hospital for a check up.

153. So, in applying the considerations in Mokei (No.1) (supra), particularly questions 1, 3, 4, and 6, the answer is yes – yes there is direct evidence, yes there is an independent medical evidence consistent with sexual assault found/or penetration having taken place; yes, there is corroboration by Nancy Ronald that the accused was on the scene of the alleged crime as the relevant time and, yes, the complaint was fresh.
154. However, the next question now is: Is the direct evidence and corroborating evidence credible?

155. To assist me in answering these questions, I must necessarily apply the test of logic and common sense, the test of inconsistency and the demeanour test and in that regard, I adopt the pronouncements on these important tests as laid down in those relevant cases cited to me by both Counsel.

156. Let me now analyse the complainant's evidence closely.

157. Based on the expert medical evidence of Dr Towai Giara, on the phenomenon of seizures, it is clear to me that the complainant had a seizure on that date in question.

158. She fell unconscious as she said, and again based on the evidence of Dr. Giara, this would be indicative of a Complex Partial Seizure which is characterized by a focal seizure activity accompanied by loss of consciousness, the person is unable to respond appropriately to verbal or visual commands and there is impaired recollection of what happens at the ictal phase. Because of complete loss of consciousness, (amnesia), the person will not recall what happened at the ictal phase. He will only recall up to the time he went into the ictal phase. The ictal phase, may last for a few seconds to minutes.

159. After the ictal phase is the post ictal phase where there will be post ictal confusion. The person will be confused and disorinted as to time, place or person. The person will not know where he is, what time of the day it is or what he is talking about. This may last for a few minutes to hours before the person fully regains consciousness.

160. On the evidence before me, I discount the possibility that the complainant may have suffered a Simple Partial Seizure because of her claim that she was unconscious. In a Simple Partial Seizure, the person is fully conscious although there may be some motor, sensory, autonomic or psychic symptoms. And while there may be some loss of consciousness, this may be very brief, 10-20 seconds according to Dr Giara.

161. So, what can we say about the complainant's evidence? Is it in keeping with logic when transposed against the medical evidence presented in Court?

162. In her State of unconsciousness, could she have seen everything that she said happened to her? If she had a Complex Partial Seizure which I believe she did, could she have remembered those things given the medical fact that a person goes into a state of amnesia at the ictal phase followed by a state of confusion and disorientation?

163. So, could she have properly identified that accused or anybody for that matter?

164. The accused is a close relative who had previously assisted her in her condition and whose name she had called during one of her previous seizure attack. Now, I warn myself of the danger of identifying close relatives on such matters as this.

165. One other matter of evidence that escaped both counsel can be gleaned from the complainant's statement to the police (Exhibit "1" for the defence). The complainant apart from the inconsistencies attributed to her by the defence, said that the accused carried her into the bush placed her under a tree, made a bed from gorgor or heliconia leaves, placed her on this and then sexually penetrated her. Again, how could she have seen that let alone remember these things given the fact that she was unconscious as she said she was?

166. Now, these things and other inconsistencies in her evidence cast a lot of doubt on her evidence. This ultimately must affect the credibility of her evidence on this central issue -whether she was sexually penetrated by he accused on that date.

167. As to Nancy Ronald's evidence which it corroborated the complainant's evidence about the accused holding a stick when he came after the complainant, her evidence was tainted by her admission that she and the accused had assisted the complainant on another occasion. She wasn't pressed by Counsel what or which occasion that was. There is, therefore, a dent in the credibility of her evidence there.

168. But what about the accused alibi. In short, I was not impressed with the evidence of his alibi witnesses and I am inclined to hold that these was recent invention. I don't believe Joyce Piris that the accused was always at her place since he came down from Kipore on the 23rd of November.

169. Furthermore, the accused testified that he left his bag at Javani on the 23rd of November and that he never went back for it. What prevented him from going back for it? Could it be that he was hiding out at her sister's place for fear of being arrested?

170. This is a major dent to the accused's alibi.

171. Had it not been for the incredibility of the complainant's evidence I have a gut feeling that the accused may have been responsible for some form of sexual assault on the complainant.

172. However, criminal proof is not based on gut feelings but on credible evidence according to the well settled rules of law.

173. Be that as it may, serious doubt had been cast upon the prosecution's evidence and I must unfortunately rule that the State has not proved its case beyond reasonable doubt.

174. I acquit the accused accordingly and discharge him both of the charge and his bail obligations. His bail will be refunded to him.

Orders accordingly.
______________________________________________________________
Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyers for the Accused