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State v Kera (No.1) [2016] PGNC 321; N6539 (19 July 2016)

N6539

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.183 OF 2014

THE STATE

V

ULELO KERA (N0.1)

Kokopo: Lenalia, J

2016: 4^th, 5^th, 6^th, 10^th, 11^th& 18^th May& 19^th July

CRIMINAL LAW– Rape x 8 counts – Indecent acts x 3 counts – Assaults x 2 counts – Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 s.347 (2)

CRIMINAL LAW– Sexual offences, Rape, Indecent acts, & Assaults – Not Guilty Pleas – Trial – Evidence by the two victims – Both victims daughters of accused – Evidence by other State witnesses’ oral and tendered documents.

CRIMINAL LAW – Defence evidence – Accused gave evidence on allegations of grudges between himself and two police officers one of whom was the interviewing officer.

CRIMINAL LAW & PRACTICE – Consideration of evidence both for the State and Defence –Cogent evidence adduced on trial by State witnesses – Issue of whether accused could be found guilty for alternative charge – No alternative charge pleaded on indictment – Accused found guilty of six counts of rape, one count of indecent act and one count of common assault.

Cases cited.
Devlyn David v The State (2006) SC881

Didei v The State [1990] PNGLR 458,
Garitau Bonu & Rossana Bonu v The State (1997) SC.528
Michael Rave, James Maien& Phili Baule [1993] PNGLR 85
Obed Jelis v The State (2012) SC1184
Paulus Pawa v The State [[1981] PNGLR 498
Reference No.1 of 1980, Re Section 22A (b) of the Police Force Act (Papua) 1912 (repealed), & s.37 (4) of the Constitution v Biyang v Liri Haro[1981] PNGLR 28
The State v David Sopane (28.2.06) N3024
The State v Jacob Dogura Roy (2007) N3137
The State v KikiaSolowet (2007) N3156
The State v William Lakuna, Jack Matalau& Robert Tiotam (3.3.2015) (No.2) Cr.Nos.279, 511 & 643 of 2014
The State v Samuel Kawar(2011) N4234

Other case cited

Holman v R [1970] WAR 2

Counsel:

Mr. L. Rangan, for State
Mr. P. Yange, for Accused

19^th July, 2016

1. LENALIA J: The accused is charged with eight (8) counts of rape, three (3) counts of indecent acts and two (2) counts of assaults contrary to and s.347(2),s.349 and s.335 of the Criminal Code. The accused entered pleas of not guilty to all charges necessitating a trial.
   

Relationship

2. On the brief background of these cases, the accused is a police officer with the rank of Senior Constable in the Papua New Guinea Constabulary. The two victims Joy Kera (J. K) and Rachael Kera (R. K) are biological daughters of the accused.

Prosecution Evidence

3. The prosecution evidence consisted of the two main witnesses, the two victims and one other. The accused and his family were staying at Toguata Police Barracks, Kokopo E. N. B. P when the offences were committed. The first victim J. K testified on oath that before her mother got sick in 2011, the accused started to sexually penetrate her. As soon as her mother passed on in September 2011, the accused treated her like his wife. Sometimes he sleeps with the girls in their room. Sexual penetration and physical abuse became more prevalent after the mother died.

4. She said, the accused often come to the girls’ room and have sex with her. She recalls one night, she cannot recall the date but during the period of her abused, the accused came into the girls’ room where the two complaints were sleeping both were still awake, he raped R. K first. This was done while J. K was watching them in action.

5. After doing that, the accused came across to J.K who was sitting and got on top her and sexually penetrated her. According to this witness, this was the beginning of the long series of sexual penetration and physical abuse by the accused against her and her sister Rachael.

6. Her evidence is that, the accused was and is a Senior Police Constable in the Papua New Guinea Police Force. They were residing at Toguata Police Barracks, Baliora. The accused became so possessive of her and her sister. He was so violent and aggressive toward both of them. According to J. K’s evidence, the accused impregnated her and she gave birth to a child. As the School Board of Baliora Primary found this out, she was terminated.

7. In cross-examination, the victim was asked why was it that, since the crimes were committed in family house at the police barracks, and she never reported to those in the house or even the policemen and policewomen. Asked if in the house where the crimes were committed, any persons were living with them. She answered that, she could call out for assistance as sometimes two of her brothers were around but because the accused was so violent, she feared for her life and she kept quiet about what the accused was doing to her and her sister. She revealed in her evidence that, the accused had even tried to kill her because she got pregnant out of that relationship.

8. Asked why not report to her brothers or their mother’s relatives at
Takekel village? The witness said, if she reported, that would have been the end of her life. Asked about the date of her mother’s passing, she said, it was in September 2011. Asked if she wants her father to be imprisoned for life for the crimes she alleges against her father. She said, she does not wish their father to go to prison for a long time.

9. The second victim R. K gave evidence of similar abuses caused to her as that of her sister. She recalls that, one night the accused came into the girls’ room where J. K and this witness sleeping, the accused came into their room. He went directly to R. K and he undressed himself and while J. K was watching, the accused got on top her and started to have sex with her. According to this witness, the accused did this in full view of her sister. Then after the accused withdrew, he proceeded to her sister’s bed and also sexually penetrated J. K. She said, this was an experience she will never forget in her life span. Due to the fact that their father was so violent, so oppressive and possessive of the two of them, she feared revealing such what the accused was doing to them.

10. She also revealed that one time she went into the toilet and while using the lure, the accused peeped in and saw her using the lure. She said she was really shy and fell so sad that, about what her daddy was doing to her and her sister.

11. This witness was asked many questions in cross-examination. She was asked if what she told the court was the truth of what is being alleged against the accused who is her biological father. The witness said she gave her evidence on oath and what she told the court is truth. Asked, why did she not report to her brothers or any of her mother’s relatives. The witness answered that, the accused is a very violent man and when the accused was having sexual intercourse with her and J. K she could not report as her life was at risk.

12. It was put to the witness if someone had told her to make up the false allegations against her father. R. K said, the story she told police and what she told the court is the truth of what the accused did to her. She further revealed that, when the accused had sex with her while her sister was seeing them she was so shocked and she could not believe her eyes and just kept quiet due to fear of threats and intimidation used by the accused threatening them not to reveal the abuse to anyone.

13. Asked about the incident that occurred on 15^th August 2013, if it was true that the accused had locked them into the house after beating them up. The witness answered that, the accused beat them up with a stick that morning and locked them into the house and started to cut trees and flowers around their yard.

14. She was asked why they were assaulted that morning. The witness said, it was due to someone had spit betel nut on to their loan which caused the accused to get so cross with them. Asked if she wants her father to be sent to jail for the false allegations she had made up against their father. R. K said, she does not want the accused to go to jail but, what the accused did to her and her sister was true and no one could have made up such false stories against his or her biological parent.

15. The next witness was Sergeant Paul Wapinan. He is attached to the Public Safety Unit as a Shift Sergeant at Kokopo Police Station. He resides at Toguata Police Barracks, Baliora. His house is next to that of the accused and his family. Their houses are one or two steps away from each other. The witness gave evidence about what happened on 15.8.2013. He said, he was at home at the time when the accused physically beat up J. K and R. K and thereafter he locked them up in their house. The accused came down to their loan and started to cut flowers and trees around the loan.

16. The witness said, as a neighbor and a senior police officer, he wanted to report the abuse caused by the accused to his daughters that morning to the Family and Sexual Violence Unit (FSVU). It is clear from this witness evidence that this was not the only time he had witnessed such violence but even before the accused wife passed away in 2011, the accused had been so violent to the two girls. He said, the accused was so possessive of the two girls depriving them of their rights to socializing with peer groups.

17. Paul even prior to reporting the matter to the FSVU, he had spoken to the accused about the manner the accused was treating his daughters. After he noticed that J. K was pregnant, in the presence of another policeman he named as Chris, Paul suggested to the accused if the victim could be taken to the hospital. The accused quickly brushed aside the suggestion and said “forget it, it is her problem.” Because, Paul’s house is next to the accused’s house, the witness said, he often see the accused abuse the two victims by beating and sometimes he threatens them using an axe and knives and he commonly used stick to hit the victims.

18. According to this witness, he said that soon after the passing of the victims’ mother, the accused was so possessive of the two victims and physical violence was so prevalent. He said, because of the accused attitude to the two victims, he decided to report the matter to the Family & Sexual Valence Unit. So he called Senior Policewoman Constable Edina Timmie to intervene with what the accused was doing to his two biological daughters.

19. The witness was asked if he had any grudges with the accused prior to him reporting the abuse to the Family and Sexual Violence Unit. Asked in cross-examination, how was the accused cruel to the two victims? Paul said, the evidence he just gave was what he had seen prior to the incident on 15.8.2013 and what he told court in evidence is about the accused exercised violence against the two complainants even prior to making a report to police.

20. He was asked if he made up the story after talking to the victims. He answered that, the story he told the court and what he got down on his statement were real stories which he witnessed as he lives close to the accused’s house. He was asked how often he used to warn the accused about such abuse. Paul said, prior to 2013, he witnessed what the accused used to do to his daughters.

21. He was asked if he recalled an incident in Rabaul Police Station where the accused reported to the Station Commander in Rabaul about him (witness) about disciplinary matter. The witness said, what happened then had gone and he has no grudges against the accused as they work and live together. The statement of this witness was tendered as inconsistent statement and marked Ex. “1” – D.

22. Other evidence consisted of the following documents:

➢ statement by Senior Policewoman Constable Edina Timmie Ex. “A”,
➢ corroborating officer’s statement Sylvia Weiba Ex. "B”,
➢ record of interview, Ex. “C” & “C1” Pidgin & English,

23. The court has read and considered the statements which have now been accepted as part of the State’s evidence. The statement by Policewoman Constable Edina Timmie who is the O.I.C of the East New Britain Family & Sexual Violence Unit in Kokopo. She was the Interviewing Officer on this case. She says no force, threats or intimidations were applied toward the accused during the record of interview. The statement by Policewoman Constable Sylvia Weiba was the corroborator during the record of interview. (See Exhibits “A” & (“B”). The record of interview contains total denial. (See Ex. “C” & “C1”).

24. Mr. Rangan closed the prosecution case.

Defence Evidence

25. The accused gave evidence that the allegations made against him of raping his daughters were made up by two police officers. He said, because Police Constable Paul Wapinan had two grudges against him (accused). The first of allegations made against Paul Wapinan is that Mr. Wapinan had misused a police vehicle sometime back and he (accused) made a statement against Paul and reported to the Rabaul Station Commander.

26. The second allegation made by the accused is that, it could be due to him (accused) cutting down flowers and trees around the house on the date the matter was reported to police and the accused was arrested. He said, Paul had since the report made to the Station Commander not been good to him and that was the reason why Paul made up the stories against him.

27. The second accusation made by the accused is against Edina Timmie. He said, because, of a dispute over gardens which, they used to farm planting garden vegetables, Edina made up the stories against him when the allegations were reported to the Sexual Offences Squad at the Police Station here at Kokopo.

28. Asked in chief why cut the flowers and trees around his house. The accused said the flowers and trees are his and because, he was frustrated about the matter being reported to police he cut the flowers down.

29. The witness was asked a long series of questions in cross-examination as to when did he report the prosecution witness Paul Wapinan to the Rabaul Station Commander. The witness said, he cannot recall the date and year. He was asked about, the issue about the gardens as what was the nature of the dispute. He said, they had disputed the boundary of their gardens. Further asked, the serious allegations made against him is or are very serious because it concerns his two biological daughters and he himself as a father and the alleged relationships with the two victims are intimate relationships. He said, he did not know why.

30. Asked in cross-examination why would the two girls make up stories against their biological father. He repeatedly nodded his head and said, he did not know why. He was asked if he can recall the time Paul made up the stories against him (accused) because, the accused made a statement against Paul for the misuse of such vehicle when the matter was reported to the Police Station Commander in Rabaul. He was asked in cross-examination as to when he reported to the Station Commander in Rabaul. He answered that, he cannot recall the date and year. The defence then closed their case.

Counsels Submission on Verdict

31. I consider the defence counsel’s submission on verdict on the issues raised in pages 18 to 19 of their written submission. On his address on verdict, Mr. Yange submitted that, the prosecution evidence was totally destroyed during cross-examination as there were a lot of inconsistencies and there is lack of medical report to confirm if sexual intercourse actually occurred, that there was no evidence of date of births of the two victims.

32. Counsel referred to the Supreme Court case of Obed Jelis v The State (2012) SC1184 where the Supreme Court heard an appeal from the decision of this Court and the Court on its decision commented that, where an offender is charged with specific offence and where not all elements of it are proved, elements of a lesser offence are proven, the trial court can enter a conviction for the lesser charge.

33. Mr. Yange further argued that, his client cannot even be found guilty of any lesser charges as the indictment does not contain pleadings of any alternative charges because, the Amended provision of the Criminal Code does not contain any provision for alternative findings. On the issue of the age of the victim Rachel Kera, counsel argued that, the prosecution ought to strictly prove the victim’s ages at the time of sexual touching/penetration of the victim Rachel Kera. He argued that, based on all such inconsistencies, it is unsafe to convict the accused and he should be acquitted of all charges: The State v Samuel Kawar (2011) N4234.

34. Mr. Rangan replied by saying that, the State had proven their case beyond the criminal standard that is “proof beyond reasonable doubt). He argued that, the two victims are not ordinary complainants. They are the accused’s biological daughters and the defence did not give any reasonable evidence to show why the victims could have made up false allegations against their own father.

35. Counsel referred to parts of the victim’s evidence which revealed that on the trial that, at the occasion on which, he raped the two girls together, it was a shameful action as Rachel Kera watched in horror when the accused raped Joy Kera and after that, he turned to Rachel and also raped her in the full view of the Joy.

Application of Law

36. The offence of rape is defined by s.347 (1) (2) of the Criminal Code in the following terms:

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

Penalty: Subject to Subsection (2), imprisonment for 15 years.”

(2) Where as offence under Subsection (1) is committed in circumstances of aggravation, the accused is liable, subject to Section 19 to life imprisonment.”

37. The standard of proof in criminal cases is “proof beyond reasonable doubt”. The prosecution bears the onus to prove a case beyond reasonable doubt. The court now has great task of weighing all evidence adduced by both the prosecution and defence. The issue is whose evidence should this court accept and whose it should reject: The State v Jacob Dogura Roy (2007) N3137.

38. The trial before this court involves 8 cases of rapes, two indecent acts, one sexual touching and two unlawful assault cases. I do remind myself of the risks involved in convicting the accused without corroborative evidence of the two victims. This is due to the fact that, convictions in rape or any sexual cases are always serious.

39. And due to escalating gradation of maximum penalties in some sexual cases and the existing life imprisonment for the crime of rape, uncorroborated evidence in any sexual cases must be closely scrutinized: Didei v The State [1990] PNGLR 458, The State v David Sopane (28.2.06) N3024.The question earlier posed about the credibility of evidence is entirely dependent on the credibility of the witness or witnesses.

40. The Supreme Court expressed comments about the rule in practice in sexual allegations in Didei v The State (supra) where it said that it is easy to make complaints about sex in rape cases, but it is difficult for an accused to refute such allegations. The Court said on second paragraph at page 460:

“The reason is easy to understand. Allegations of this nature are easy to make but difficult to refute. It may be relatively easy for a girl to implicate a man in an allegation of rape and often so very difficult for a man to do anything but deny it. Therefore a rule of practice had developed , one falling short of the rule of the law, which requires that the court should give due warning of the danger of acting on uncorroborated evidence in sexual cases. In fact failure to advert properly and clearly to this rule of practice has been found to constitute an error of law sufficient to ground an appeal against conviction.”

41. On the issue of credible and untruthful witnesses, the Supreme Court in Devlyn David v The State (2006) SC881, expressed the following comments on the issue of credible and lying witnesses:

“do the proven facts lead reasonably to only one conclusion – that the

accused did all the things constituting the elements of the offence? If yes,

the accused is guilty. If no, the accused is entitled to an acquittal.”

42. The warning is now recorded and I do warn myself sitting as a jury and Judge of both facts and law that the accused cannot be convicted unless this court is convinced about the two complainants’ evidence. Obviously, s.37 (4) of the Constitution places the burden of proof upon the prosecution to prove the guilt of an accused person” beyond reasonable doubt” that like on the instant case, the accused is criminally responsible for the offences charged Reference No.1 of 1980, Re Section 22A (b) of the Police Force Act (Papua) 1912 (repealed), & s.37 (4) of the Constitution v Biyang v Liri Haro [1981] PNGLR 28.

43. The evidence of the two complainants corroborates each other. A part from that, the evidence by Sergeant Paul Wapinan further provides corroboration of the physical abuse of the two victims. Sgt. Paul Wapinan shares common boundary with the accused in the police barracks, he observed that such abuse exhibited by the accused toward the two complainants, could be more than physical violence. Such aggressive violence commenced before the passing of the victims’ mother.

44. The two complainants of these cases were and are non-other than the accused’s biological daughters. In the court’s view, it is against common sense and logic for the two complainants to make up false allegations against their biological father.

45. J. K’s evidence reveals that prior to raping the two of them together, the accused had been sexually penetrating her even before her mother died in 2011. Then on the night, the accused had sex with the two of them in their full view, he first sexually penetrated Rachael first, while Joy was watching them in action. Then he went over to Joy’s bed and sexually penetrated her.

46. The accused in his evidence alleges that Sergeant Paul Wapinan and the interviewing officer Senior Policewoman Constable Edina Timmie made up the allegations against him. He gave reasons that, because of certain grudges between him and the two police officers, they made up these false allegations against him. No other witnesses were called by the defence to prove that the interviewing officer and Mr. Paul Wapinan made up these bad stories about the accused.

47. The statement by Policewoman S/C Edina Timmie and that of the corroborator Policewoman Constable Sylvia Weiba were tendered by consent. (See Ex. “A” & “B”). The court notes from these documents, not force or threats were used against the accused. I have also read the record of interview conducted with the accused on 21^st August 2013. I quote 3 questions and their answers where the accused was asked why should the victims make up false allegations against their biological father. In question 33, the accused was asked:

Q33: Why would Joy blame you that you are the father of her child?
Ans: I don’t know anything.

Q34: Can you tell me the reason why Joy and Rachael would give a false story to the police about you?
Ans: As for me I don’t know anything.

Q43: Why would Joy and Rachael accuse their biological father for taking turns in having sexual intercourse with them in their room?
Ans: I will answer, No.

48. The court notes that nowhere in the record of interview did the accused raised the allegations he made against the two police officers about grudges between him and Sergeant Paul and S/C Edina. As earlier mentioned, the accused blamed the two police officers for making up false allegations against him because in case of Sergeant Paul Wapinan, he (accused) had made a statement against him for misuse of a police vehicle in Rabaul sometime back. Secondly in case of S/C Edina Timmie, she had grudges over a garden boundary on a piece of garden farm land at Toguata Police Barracks at Baliora.

49. The issue on this trial is one of credibility of the evidence of witnesses. Those of prosecution and the defence by accused Ulelo Kera. With the above considerations in my mind, I now apply the principles enunciated in the above cases to decide if this court can find the accused guilty and enter convictions against him for the 8 counts of rape, two indecent acts, one sexual touching and two assault cases. The question I now ask is do the proven facts reasonably lead to only one conclusion that the accused committed offences alleged against him? Paulus Pawa v The State [[1981] PNGLR 498, see also Devlyn David v The State (supra).

50. To this court, considering the issue of credibility of the State’s, I raise the same questions I asked in a similar case involving the father and his two biological daughters in cases of incest, indecent acts and two other co-accused on charges of sexual penetration in The State v William Lakuna, Jack Matalau& Robert Tiotam (3.3.2015) (No.2) Cr.Nos.279, 511 & 643 of 2014. The questions I raised in that case at paragraph 21 were: “Why or what is the logic of making up false allegations against their biological father? Secondly, if the allegations were not true, why would the two complainants make up such allegations?”On the current trial, the defence case, does not answer these questions.

51. Should this Court accept and believe the evidence of the two biological daughters of the accused as credible. The accused is a Senior Policeman and he knows the law well. Calling the two victims to give evidence against their father in my view caused further embarrassment, humiliation and shame to the victims and the accused himself. What would be the logic or reasonable inference would any ordinary person draw from the nature of the evidence of the current trial?

52. As in other criminal charges, extreme caution must be exercised when the Judge is dealing with the issue of lying and truthful witnesses. In criminal practice on this stage of the current trial, I must make sure that any inference this Court ought to draw must be more than “mere conjuncture”: Paulus Pawa v The State (supra). The two complainants of this case came to court and gave oral testimonies of what their biological father was alleged to have done to them. They are this year married women now. It is settled law in this jurisdiction that the court can accept whose evidence it considers as credible: Garitau Bonu & Rossana Bonu v The State (1997) SC.528.

53. Under this head, the court must observe the witnesses’ demeanour and use common sense and tell whether the witness or witnesses was or were telling the truth or not. On the current trial, the two sisters came to court and gave evidence against their biological father for committing shameful things to them. I observe them testified. Although they are married now, they spoke well and narrated full stories of what the accused is supposed to have done to them.

54. Both in cross-examination and re-examination, the victims further revealed that, the charges alleged against their father were not one off incident. In case of the J. K she maintained in chief and cross-examination that, the accused had sexually abused her five (5) times and not seven (7) times.

55. On the defence case, the allegations made by the accused against Sergeant Paul Wapinan and Senior Policewoman Senior Constable Edina Timmie are very serious allegations. Consequences in both criminal and civil liability would be much if the court finds otherwise. The court finds that, the defence evidence is more of recent fabrications to evade the complaints laid against the accused.

56. A legitimate issue was raised by the defence counsel. The issue is since sexual intercourse on the instant case occurred more than once, it could not be rape. Counsel referred to the case of Obed Jelis v The State (2012) SC1184 where the Supreme Court commented on a number of issues including the issue of whether an alternative verdict could be returned on a rape case and strict proof of required by the Criminal Code Amendment. Counsel also referred to two other cases I will refer to later.

57. Case law authorities in this jurisdiction and other common law jurisdictions like Australia say that in a sexual intercourse case where “consent may be grudging, tearful, hesitant, or reluctant, but is still consent.”Michael Rave, James Maien &Phili Baule [1993] PNGLR 85. In that case Justice Doherty quoted the Australian case of Holman v R [1970] WAR 2 where the Court in that case said: “a woman’s consent to intercourse may be hesitant, reluctant, grudging or tearful but if she consciously permits it (providing her permission is not obtained by force, threats, fear or fraud) it is not rape.”

58. There is evidence that the accused is a very aggressive person. He usually beats them when things in the house were not in order. There is evidence by the State that, the two victims submitted to sexual penetration be it rape or otherwise, in case of R. K sexual penetration with her was not consensual because, she feared that if she reported she would be beaten up.

59. In fact J. K gave a similar version of the accused being so aggressive to the two of them. There was evidence by Senior Sergeant Paul Wapinan that the accused’s house at Toguata Police Barracks is next to his house and he used to see how the accused used to mistreat and abuse the two victims physically, being so possessive of the two girls and after seeing the accused cut down the flowers on 15^th August 2013, he suspected that there might be something going on in the accused house. He in fact suspected incest and he decided to expose the accused’s actions to the Family Sexual Violence Unit here in Kokopo.

60. The definition of what constitute rape is conveniently set out in s.347Aof the Criminal Code (Sexual Offences and Crimes Against Children) Acton what is meant by consensual sex and what is not consensual. This section states:

“MEANING OF CONSENT.

(1) For purposes of this Part, “consent” means free and voluntary agreement.
(2) Circumstances in which a person does not consent to an act include, but not limited to, the following:-

• (a) the person submits to the act because of the use of violence or force on that person or someone else; or
• (b) the person submits because of the threats or intimidation against that person or someone else; or
• (c) the person submits because of fear of harm to that person or to someone else; or
• (d) the person submits because he is unlawfully detained; or
• (e) the person is asleep, unconscious or so affected by alcohol or other drug so as to be incapable of freely consenting; or
• (f) the person is incapable on understanding the essential nature of the act or of communicating his unwillingness to participate in the act due to mental or physical disability; or
• (g) the person is mistaken about the sexual nature of the act or the identity of the person; or
• (h) the person mistakenly believes that the act is for medical or hygienic purposes; or
• (i) the accused induces the person to engage in the activity by abusing a position of trust, power of authority; or
• (j) the person having consented to engage in the sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity; or
• (k) the agreement is expressed by words or conduct of a person other than the complainant.

(3) In determining whether or not a person consented to that act that forms the subject matter of the charge, a judge or magistrate shall have regard to the following :-

• (a) the fact that the person did not say or do anything to indicate consent to a sexual act is normally enough to show that the act took place without the person’s consent; and
• (b) a person is not to be regarded as having consented to a sexual act just because –
  • (i) he did not physically resist; or
  • (ii) reckless or willful blindness; or
  • (iii) on that or on an earlier occasion, he freely agreed to engage in another sexual act with that person or some other person.”

(Emphasis added).

Findings

61. Having considered all the evidence both by the prosecution and defence and the submissions by defence and prosecution counsel, the position of law in regard to the charges that the accused is charged with and apply such factors to the appropriate law, I make the following findings:

(a) The accused is a Policeman by profession in the rank of Senior Constable.
(b) He was working with Department of Police, in Rabaul and Kokopo at the time the offences were committed.
(c) There is evidence of sexual abuse by the accused on his own two biological daughters.
(d) Such abuse commenced with complainant Joy Kera first in August 2011.
(e) It commenced at the time the complainants’ mother was still alive.
(f) There was sexual abuse as well as physical abuse.
(g) Such abuse took place at the Toguata Police Barracks, in the family house owned by the Police Department.
(h) In case of Joy Kera, she revealed in evidence that, the accused had even tried to kill her because of her pregnancy.
(i) The first victim as well as the second one could not raise any alarm because, the accused is a violent person.
(j) Victim Rachel Kera felt that if she reported to her brothers and relatives, her life was at risk.
(k) The first victim was sexually penetrated five (5) times and not seven (7) times as indicted in the indictment.
(l) There were threats of violence used against both victims.
(m) After the accused wife passed away in September 2011, the accused commenced sexual abuse of Rachel Kera.

• (n) On the night, the accused took turns in raping the two victims, the girls were really shy and they watched the accused sexually penetrating them one by one.
• (o) The abuse on the first victim started in 2011 and continued until January 2013.
• (p) Out of such sexual abuse, Joy Kera got pregnant.
• (q) The accused blamed a man from Kavieng for the pregnancy.
• (r) She admitted to having sex with the boy from Kavieng.
• (s) In the morning of 15^th August 2013, the accused locked the two victims in their house and cut all flowers and trees around their yard at Toguata Police Barracks.
• (t) On this date, the matter was reported to police and the accused was arrested and charged.
  

62. The court finds that, the accused raped J.K five times and the second victim one time. On the indictment, there are eight (8) counts of rape laid pursuant to s.347 (2). Two (2) counts of indecent acts,s.227, one (1) count of sexual touching, s.229B and two (2) charges of common assault, s.335 of the Criminal Code. The total charges are 13 counts altogether.

63. Mr. Yange argued in submission on verdict that the Amended provision of the Criminal Code does not provide for alternative findings. He further argued that, there is no prove of the date of births of the two victims and there is no medical evidence to prove that sexual penetration took place. On this issue, I have some difficulties with the language used in s.541of the Criminal Code. On the heading of that section and its introduction the term “rape” is referred to. However, I note the language on the section used is only applicable to cases involving complainants who are under the age of 12 years. The above section is worded in the following terms:

“541. Charge of rape and like offences.

On an indictment charging a person with the crime of rape or having unlawful carnal knowledge of a girl under the age of 12 years, he may be convicted of any offence –

(a) of which the unlawful carnal knowledge of a woman or girl, whether of a particular age or description or not, is an element and blood relationship is not an element; or
(b) of which procuring the woman or girl to have carnal connection with any man is an element; or
(c) of administering to the woman or girl, or causing her to take any drug or other thing with intent to stupefy or overpower her in order to enable any man to have unlawful carnal knowledge of her; or
(d) of unlawfully and indecently assaulting the woman or girl; or
(e) of unlawfully or indecently dealing with a girl under the age of 12 years or of a girl under the age of 16 years.

64. The above provision is not applicable to the instant charges for reasons expressed in the Supreme Court case of Obed Jelis v The State (29.6.2012) SC 1184. I have also read the judgments in the cases of The State v Kikia Solowet (2007) N3156 and that of The State v Samuel Kawar (2011) N4234 and agree with discussion in relation to the Amended provision of the Criminal Code particularly Division IV 2A, sexual offences against children and Division 2B.
65. I agree with discussions on the law in the above case. The issue now is what happens in cases like the current one where sexual and physical abuse has been to proven to the required criminal standard. Obviously offenders cannot be just be released from criminal responsibility where evidence clearly reveals that like in the current trial, the accused abused his biological daughters. The court finds that, the accused repeatedly raped J. K. Though it can be a case of persistent abuse, under the sections I have referred to it may not be possible. The prosecution has proven their case beyond reasonable doubt.

66. With J.K the abused commenced at the end of November 2011 and ended in January 2013. In case of R.K she was raped once but there is possibility it could be more according to the evidence of the first victim. I cannot accept the two versions of the argument by Mr. Yange that because there is no proof of the victim’s ages and there are no medical reports to show if rapes actually took place, the court should return verdicts of not guilty.

67. Unlike the former section for rape which provided that “a person who has carnal knowledge with a woman or girl, not being his wife”, the 2002 Amendment is totally worded differently. That section specifically referred to “woman” and “girl”. So if an offender was charged with raping an underage girl, his case was well covered.

68. However, the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 merely refers to a “person”. Unlike sections 229A, 229B, 229C, 229D, and 229E where age limits are referred to, s.347 (1) of the Amended provision, there is no reference to an age limit. On this trial, there are two possibilities.

69. One is either to find the accused guilty of rape or secondly, could be for persistent sexual abuse. In my opinion, a guilty verdict cannot be returned for persistent sexual abuse as the definition under s.229J it is clear that the term “child “or “children “means a victim under the age of 18 years.

70. Having discussed my opinion on the position of law, I find the accused guilty for the crimes of rape under s.347 (2) by virtue of s.347A (2)(a)(b)(c) because the victims submitted to sexual abuse because of threats and intimidation or fear of being harmed as the accused was so violent to the victim during the period of abuse. Five counts against the first victim and one count against the second victim.

71. On the charges of indecent acts and sexual touching, in Counts 9and 10, those events took place at the times the accused was sexually penetrating the victims. He cannot be found guilty for those counts. He is also found guilty of one count of indecent act and one count of common assault. The court makes the following orders:

Count 1. Found guilty & convicted.
Count 2. Found guilty & convicted.
Count 3. Not guilty.
Count 4. Not guilty.
Count 5. Found guilty & convicted.
Count 6. Found guilty & convicted.
Count 7. Found guilty & convicted.
Count 8. Found guilty & convicted.
Count 9. Not guilty.
Count 10. Not guilty.
Count 11. Found guilty & convicted.
Count 12.Not guilty,
Count 13.Found guilty and convicted.

72. Verdicts of guilty entered for counts 1, 2, 5 – 8, 11 and 13. The court finds accused not guilty on counts 3, 4, 9, 10 & 12. Judgment entered accordingly.
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Public Prosecutor : Lawyer for the State
Islands Legal Services : Lawyer for the Accused