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State v Kapinias [2016] PGNC 75; N6281 (31 March 2016)

N6281

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.1208 OF 2014

THE STATE

V

MAGUGU KAPINIAS

Kokopo: Lenalia J

2016: 22^nd, 23^rd& 31^stMarch

CRIMINAL LAW– Rape – Plea of not guilty – Trial – Evidence – Charge –
Elements – Criminal Code s.347 (2) of the Criminal Code as Amended.

CRIMINAL LAW– Evidence on trial – Whether there is sufficient evidence to

prove the allegations by the victim – Evidence by the prosecution – Defence did not give evidence nor call witnesses.

CRIMINAL LAW – Sexual offences – Inferences to be drawn – Evidence

Circumstantial in nature – Sexual intercourse not denied – Whether the two acts of sexual intercourse were rape?

Cases cited:

Didei v The State [1990] PNGLR 458
Garitau Bonu & Rossana Bonu v The State (1997) SC.528
Paulus Pawa v The State [1981] PNGLR 498
R v Namiropa Kopinbodi [1969-1970] PNGLR 194
The State-v-Jacob Dugora (2007) N3137
The State v John Kalabus & Aita Sanangkepe [1977] PNGLR 87
The State v Marava Kanaio [1979] PNGLR 319
The State v Tom Morris [1981] PNGLR 493

Counsel:

Mr. L. Rangan, for State
Ms. J. M. Ainui, for Accused

31^st March, 2016

1. LENALIA J: The accused is charged with two counts of aggravated rape contrary to section 347(2) of the Criminal Code as Amended. After he was arraigned, he entered a partial guilty plea by saying that he admitted he had sex with the victim two times but he did not rape her. The court entered a not guilty plea. The trial of this case was short. Only the complainant was called and the following documents were tendered by consent.

➢ Record of interview – Ex. “1” & “2a” Pidgin and English,
➢ Statement of interviewing officer Ex. “3”,
➢ Statement of corroborator Ex. “4”,
➢ Stat Dec by the victim’s mother Ex. “5”,
➢ Medical report and attached affidavit Ex. “6”& “6a) and the
➢ The statement of the mother Ex. “7:

2. The victim’s evidence (Elmah Vunuvung) is that between 1^st and 31^st December 2013 at Napapar No.5 village, Toma in this Province, the accused is alleged to have sexually penetrated her without her consent for two (2) times.

3. According to the victim’s evidence, on the first occasion, the victim recalled that, during day time her mother and father went to work at their garden at the back of Kerevat National High School. She was told by her parents to stay in the house to look after her younger brother and wash dishes at the creek. She left her brother and went to the creek to do the dishes and when she returned she saw the accused sitting on the bed outside their house. She put the plates on the bed outside and entered the house to get some change.

4. She was on her way into her room, she heard the accused said, he wanted to have sex with her. When she heard this, she immediately ran out from the house and fled along the road wanting to run to her aunt’s house. On her way, when she looked back, she saw the accused running after really fast with a bush-knife on his right hand. She said, when the accused was running after her, he threatened to cut her if she continued to run. Having heard the threatening words, she stood still and when the accused came to where she stood, he held her left hand so tightly that she started to cry.

5. While she was crying, the accused told her to shut her mouth up and he threatened to cut her if she continued crying. He pushed her aside into the bushes and pulled her trousers and pants out and she struggled with the accused. She said, the accused over-powered her and pushed his penis into her vagina. She said, in the process of the accused pushing his penis in and out of her vagina, she could feel sperm oozing from the accused penis into her vagina. After he released himself, he told her not to tell anyone and if she did, he would cut her with his bush-knife.

6. On the second occasion, it was during day time. She was caring for her smaller brother and she felt tired and went into the room to take a nap. When she was asleep, the accused came to where she was sleeping and hit her back. When she got up, she realized that it was the accused.

7. She stood up and wanted to run out from the house but the accused closed the door and locked them in. He pushed her down to the floor and sexually penetrated her against her will. She also felt that the accused released his sperm into her vagina.

8. In chief, Elmah was asked, a series of questions as to how is it that, the accused is from Rapitok No.3 village and he came all the way to Napapar No.5 to stay with the victim and her parents? She replied that, her mother is from Rapitok No.3 and she got married to her father and they now reside at Napapar No.5. She was asked, what is the nature of such relationship? The victim replied that, the mother of her mother is the sister of the accused’s father.

9. The victim was asked in cross-examination as to why she did not make a recent complaint to her mother and father after the accused did what he did to her? The witness said, after the first time, because the accused lived with her family, the accused kept threatening her by saying that, if she reported to her parents or anyone, he would cut her. Counsel asked her if she trusted her parents to provide her security and safety. The victim said, because the accused is very closely related to her mother, their custom does not allow such practice. As well, the accused kept on threatening her while he was living with them. The victim said, that was why she did not want to report the matter.

10. Asked why wait until she got pregnant and when her mother noticed this she asked her and she told her she was pregnant. She answered that, she did not tell anyone until she was pregnant because, the accused kept threatening her. Whenever, the family was sitting around for meals, the accused would look to her dinner in threatening manner.

11. The court has read all the documents tendered by consent. The record of interview, Ex. “1” & “1a”, the accused admitted sexually penetrating the victim on two occasions. The mother of the victim in her statement, said, the accused is her cousin brother as her mother’s sister gave birth to the accused and the accused is the victim’s uncle. According to Fidelma Dilong, the accused is her family’s close blood relative. (See Ex. “6a”). The mother declared in her Statutory Declaration the date of birth of the victim was 10^th October 1996.

12. Mr. Rangan, counsel representing the State announced closure of the prosecution’ case. The court gave the accused warning to give evidence, make a statement from the dock or remain silent. The accused indicated that, he wanted to remain silent. The court enquired with Ms. Ainui and she confirmed that, the accused did not want to give evidence or call any witnesses.

Submission on Verdict

13. Mr. Rangan addressed the court first. Counsel submitted that sex is not denied. The only issue is was sex consensual? He submitted that, the prosecution evidence is clear that on both occasions the accused sexually penetrated the victim sexual intercourse was nonconsensual. He asked the court to consider the evidence of the victim and the reason why she did not wish to report the matter quickly because, by their custom, such relationship is not allowed.

14. Ms. Ainui replied by saying that, the victim’s evidence is not credible as why would she wait until she got pregnant when she eventually reported the allegations. Counsel asked the court to consider the fact that the accused had lived together with the family of the victim for some time. That she did not at all report until she got pregnant. Counsel asked the court to find the accused not guilty.

Application of Law.

15. The State has the onus to prove their case beyond reasonable doubt. This means, this court must not have any doubts about the guilt of the accused. If there is any, the court must give the benefit of such doubt to the accused and acquit him. The issue of truthful and lying witnesses has been discussed in many case law authorities. The case of The State-v-Jacob Dugora (2007) N3137 gives the warning about lying and truthful witnesses’ evidence.

16. Pursuant to s.347(2) of the Criminal Code (Sexual Offences and Crimes Against Children)Act the prosecution ought to prove the case beyond reasonable. On the standard of proof in criminal cases, the accused on this trial is innocent until proven guilty, s.37 (3) & (4) of the Constitution. “Proven guilty” in my view refers to the criminal standard of proof being that of “proof beyond reasonable doubt.” In this jurisdiction, the criminal standard of proof has been expressed in different ways. For instance, in order for the court to satisfy beyond the standard, on the current trial, this court “must feel an actual persuasion on the occurrence “of what is alleged against an accused in any criminal trial: R v Namiropa Kopinbodi [1969-1970] PNGLR 194.

17. In sexual cases like the instant one, the court must have actually felt the persuasion about the occurrence of an alleged crime that the person is charged with. The issue here boils down to the question of whether has the State adduced sufficient evidence to convinced this court that the accused committed the two instances of rape with circumstances of aggravations in terms of Subsection (2) of the Section charged?

18. In order for the State to secure a conviction under this provision, three or four elements must be proved. First sexual penetration must have been achieved. Secondly, that sexual penetration must have been acquired by force that is “without consent”. In other words, there must have been lack of consent. Thirdly, the State must prove that the person who committed the rape is none other than the accused. There is no issue about having sex with the victim. Fourthly was the crime committed with circumstances of aggravations?

19. The second issue on this trial is, I must consider the warning stated in sexual cases which say that it is easy to make up a complaint about sex but it is hard to refute such allegations: Didei v The State [1990] PNGLR 458 or that of The State v John Kalabus& Aita Sanangkepe [1977] PNGLR 87. For records purpose, I record that warning here that, sexual intercourse of the instant trial is not denied. The only issue is, did the two acts of sexual intercourse be accepted as rape? The victim of this case gave evidence that the reason she did not report the two instances of rape was because, the accused lived with them and he kept threatening her not to tell her parents or anyone. The second reason was that, due to their custom, the accused is a close blood relative and thirdly, the accused lived with the victim’s family for a long time and he was treated as a member of the victim’s family.

20. There is no issue about the accused being a member of the same clan as the victim. The victim would refer to the accused as uncle and the accused refers to her as a niece. According to the statement of the mother and the evidence of the victim, the victim’s parents treated the accused as their own son and the accused lived with the family for some time because of such relationship.

21. The next issue is should the court accept the victim’s evidence that the accused raped her twice? The victim vividly recalled that on the first occasion, she was chased by the accused when she ran away from the house to her aunt’s house. Obviously if it was consensual sex, she could not have run away and sex on that first time could have been done in the house. On the second time she was sexually penetrated, was in the house. Again here, the victim alleges it was rape.

22. The court accepts the prosecution evidence that, the reasons why the victim did not tell her mother quickly was she being very young, was continuously threatened by the accused. The situation could have been different if the accused was not living with the victim and her parents and other siblings. The victim used to address the accused as uncle. According to the prosecution evidence, the victim and the accused are close blood relatives.

23. The warning sounded in the cases referred to is that, if the court is satisfied that the victim was telling nothing other than the truth, then the court should proceed to conviction It has also been long recognized that while a court is entitled to accept the evidence of the complainant and convict on that evidence alone, without corroboration, according to Didei v The State (supra).

24. On the instant trial, the accused was given the opportunity to give evidence and call any witnesses if he wanted to. The accused chose to remain silent and call any witnesses. That is his right under s.37 (10) of the Constitution. No adverse inferences can be drawn from the above circumstances on the choice of the accused to remain silent: The State v Marava Kanaio [1979] PNGLR 319, (see also Paulus Pawa v The State [1981] PNGLR 498&R v Lupalupa Sisarowe [1967-1968] PNGLR 455).

25. It is trite law that where the evidence in a criminal trial contains circumstantial evidence, the court cannot convict an accused unless the evidence is ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’: The State v Tom Morris [1981] PNGLR 493. On the current trial, I heard the victim gave evidence and observed her demeanor on the witness stand. She answered questions immediately and when she was asked a series of questions in cross-examination on why she did not immediately report to her mother after each of those acts of sexual intercourse took place, the victim gave explanation as to why she did not report. (See also Garitau Bonu & Rossana Bonu v The State (1997) SC.528).

26. The court reaches the conclusion that, the only reasonable hypothesis the court is left with on this trial is the guilt of the accused. The Court finds the accused guilty on the two charges of rape with aggravations pursuant to s.347 (2) of the Criminal Code. The accused is found guilty and convicted on the two charges of rape.

____________________________________________

The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused