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Joseph, Regina v [1965-66] PNGLR 161 (14 October 1965)

Papua New Guinea Law Reports - 1965-66

[1965-66] PNGLR 161 - Regina v Joseph-Kure

[1965-66] PNGLR 161

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V.

JOSEPH-KURE

Port Moresby

Frost J

11-12 October 1965

14 October 1965

CRIMINAL LAW - Rape - Assault with intent to commit rape - Alternative count of attempt to commit rape - Putting intention into execution by means adapted to its fulfilment - Manifestation of intention by overt act - Proximate acts - The Criminal Code (Queensland adopted), ss. 4, 340, 347, 349.

The accused, a domestic servant, entered the room of his employer, a single woman, who at the time was sick and resting on the bed in her room. The accused closed the door of the room and suddenly sprang at her, holding a small pointed knife and stabbing at her. A struggle ensued, in the course of which the knife was wrested from the accused. The accused then took up a position near the door and undid his trousers, which fell to his ankles. At this stage the screams of the accused�s employer had caused a friend living in the same building to run up the stairs and call out that she would ring the police. The accused immediately opened the door and ran off.

On the trial of the accused on a charge of indecently assaulting his employer with intent to rape and on an alternative count of attempted rape;

Held:

(1)����� Under s. 4 of The Criminal Code (Queensland adopted) in order to establish attempted rape the Crown must prove that: (a) The accused intended to have carnal knowledge of the complainant without her consent or by obtaining her consent by force, or by means of threats or intimidation; (b) the accused had begun to put his intention into execution by means adapted to its fulfilment; (c) the accused had manifested his intention by some overt act.

(2)����� In order to show that the accused had begun to put his intention into execution by means adapted to its fulfilment, it is not necessary for the Crown to prove that the steps taken by the accused must have reached the point when they indicate beyond reasonable doubt the end to which they were directed. It is necessary only to show that the accused had taken action of the kind described in para. 1 (b) above.

(3)����� Assuming that the Crown led evidence establishing the intent of the accused to have carnal knowledge of the complainant without her consent and the putting of his intention into execution by means adapted to its fulfilment, the accused will be shown to have manifested his intention by some overt action if the acts of the accused, in the light of any intention confessed to by the accused, or any intention to be inferred from all the facts, should plainly indicate the accused�s intention to commit rape. It is sufficient if the act relied upon is consistent with the intention to commit rape. It is not necessary that the actus reus relied upon should be referable, independently of any intention confessed by the accused, unequivocally to an intention to commit a particular crime.

(4)����� On the evidence the accused was guilty of an assault with intent to commit rape.

Cases Cited:

R. v. Barker, [1924] N.Z.L.R. 393; R. v. Moore, [1936] N.Z.L.R. 979; Orija v. Police, [1957] N.R.N.L.R. 189 (not followed).

Cases Referred To:

Brennan v. The King [1936] HCA 24; (1936), 55 C.L.R. 253; R. v. Page, [1933] ArgusLawRp 61; [1933] V.L.R. 351; R. v. Yelds, [1927] NZPoliceLawRp 9; [1928] N.Z.L.R. 18; R. v. Mackie [1957] NZPoliceLawRp 6; [1957] N.Z.L.R. 669; Campbell v. Ward, [1955] NZHC 4; [1955] N.Z.L.R. 471; R. v Williams, ex p. The Minister for Justice and Attorney-General (1965) Qd.R. 86.

Trial on Indictment.

The facts and argument of counsel appear sufficiently from the judgment.

Counsel:

Shaw, for the Crown.

Ley, for the accused.

14 October 1965

FROST J:� The charges in this case arise out of incidents which occurred on 17th August, 1965, at Touaguba Hostel. Miss Hillman, who lives at the hostel, was in her room that afternoon, sick. The accused is a Chimbu servant who had been employed by her and another girl for about a year. His work was mainly laundry work.

To enable the accused to enter the room and clean it, Miss Hillman used to leave a key for him. However, he had been to her room whilst she was there only on rare occasions, mostly on Saturday mornings, as she left for work before he arrived, and he had done his work and gone by the time she arrived home in the afternoon. On these occasions she always had the door open.

On the 17th August after lunch, being sick Miss Hillman had taken a sleeping pill and a pain capsule, and was lying down on her bed dressed in blouse and Bermuda shorts. Fortunately for her there was another girl in the hostel also that day, Miss Carol Bradshaw. At about 2.15 p.m., whilst she was lying on her bed, half asleep, the accused came to her room, gaining access by means of the key. He asked if she was sick, and she said just a little, and he showed some concern for her. However, she told him to do the washing and he left the room, shutting the door.

He again returned about an hour later and put back the ironing. He said he was going home, but then came over to where she was lying on the bed, grasped her hand and before she could stop him, kissed her quickly twice on the wrist. She said she was cross and for him to go home, but he said he would go and get the laundry basket. In fact, several weeks before, the accused man had tried to kiss her wrist in gratitude for some extra payment she had made for his services, but she prevented him from doing so. Perhaps if she had not been sick and dazed on this afternoon, she might, lying there in the deserted hostel, have thought of taking the precaution of retrieving his key from him and dismissing him for the day. Mr. Ley in cross-examination asked Miss Hillman did she think of leaving the room after he kissed her wrist. She said, no, she was asleep and it had not occurred to her that anything was going to happen.

When he came back Miss Hillman was seated on the side of her bed, and she noticed that he did not have the basket with him. He closed the door and said he was going to leave his bag in the room until the next day. He went over to the table, picked up his bag and showed it to her. Then suddenly he sprang at her, holding a small, pointed knife in his hand and stabbing at her. She immediately put her arms up to stop him and held him by both wrists, and started to scream out. As she struggled to try and obtain the knife from him, they moved about the room, a table and chair were pushed aside, and a vase was knocked from the table to the floor and shattered. She kept trying to get the knife from him and to get to the door. She was screaming to her friend, Carol, all the time. She eventually succeeded in getting the knife from him, and then the accused stood near the door, undid his trousers and they fell to his ankles. This was apparently a change of tactics on his part.

At this stage Carol Bradshaw ran up the stairs and called out that she would call the police. Immediately the accused unlocked the door, left the room, scarcely paused to pull up his trousers, and ran off. Before he did this, both the accused and Miss Hillman were endeavouring to unlock the door.

This attack had a serious effect upon her. She was found shortly afterwards by Dr. Larkin to be in a shocked state, agitated and quite hysterical, and crying uncontrollably. Although given sedatives she was unable to sleep that night, and she remained under treatment for about a week until she was able to go back to work.

The accused man gave himself up on the same day to the police, and made a confession to Inspector Henney. In the course of this interview he mentioned to Inspector Henney that Miss Hillman had previously wanted him to kiss her on the legs and arms, and on the day in question under the arm. I am quite satisfied that these were quite wicked lies made by the accused man, and unfortunately they have added to her great mental distress.

He told Inspector Henney that he thought he would have intercourse with Miss Hillman. He said, �I got a knife so I could frighten her and have intercourse with her.� Indeed, his story gives a good picture of the girl�s terror. He said he went to the ironing room and got a knife. He went to the missus� room, the missus called out when she saw the knife, she trembled or, to use his Pidgin, �skin i-guria�.

I accept the evidence of Miss Hillman and of the inspector, so I am satisfied beyond reasonable doubt that the accused man, armed with a knife, made a sudden attack upon Miss Hillman, which in the locked room in the deserted hostel was for her a terrible experience. I do not believe that he intended actually to stab her, but am satisfied that he sprang at her with the knife in such a threatening manner with the intention of putting her into a state of terror, and of thus making her submit to him. I am thus satisfied beyond reasonable doubt that he attacked her with the intention of raping her.

He believed that he would overcome what he expected to be only a slight resistance on her part, but in the face of her determination to protect herself in the fierce struggle in the room, he gave up, and in a deluded way exposed himself, and finally fled when Miss Bradshaw arrived.

Fortunately for her she suffered no external bodily harm, nor was she touched in any sexual manner.

It is upon these facts that the accused man is charged with assaulting Miss Hillman with intent to commit rape upon her, or, alternatively, attempting to commit rape upon her. I propose now to consider the charge of attempted rape.

Mr. Ley submitted that on the evidence I could not reasonably convict the accused upon this charge. The Criminal Code defines �attempt� as follows:-�4. Attempts to commit offences. - When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfilment, and manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence, he is said to attempt to commit the offence.

It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfilment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention. It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.

The same facts may constitute one offence and an attempt to commit another offence.�

The offence of rape is defined in s. 347 of The Criminal Code as follows:-�Any person who has carnal knowledge of a woman or girl, not his wife, without her consent, or with her consent, if the consent is obtained by force, or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false and fraudulent representations as to the nature of the act, or, in the case of a married woman, by personating her husband, is guilty of a crime, which is called rape.�

Any person who attempts to commit the crime of rape is guilty of a crime, ibid., s. 349. Now Mr. Ley submitted as follows:

(1)����� Whilst it was clear that the accused wanted to have sexual intercourse with the complainant, I should not be satisfied that he intended to have intercourse with her against her will, or, if necessary, by overcoming her resistance. He had no firm intention, he was undecided whether he would do any more than, for example, kiss or indecently deal with her.

(2)����� As the accused had not committed any act which was referable to the specific offence of rape, or in itself sufficient evidence of the intent to commit rape, he could not be found guilty of an attempt. He argued that the action of the accused in threatening the complainant with the knife, struggling with her when she attempted to obtain possession of it, and later dropping his shorts, could be equally referable to an intention on his part, for example, of dealing indecently with the girl, or of some act of familiarity stopping short of intercourse. He relied on the New Zealand decisions of R. v. Barker[cxliii]¹; R. v. Moore[cxliv]²; which established the so-called �equivocality� rule.

I should add that Mr. Ley conceded that on the evidence the complainant did not consent to the actions of the accused in any way.

Now the Criminal Code of the Territory is to �be construed according to its natural meaning and without any presumption that it was intended to do no more than restate the existing law. It is not the proper course to begin by finding how the law stood before the Code, and then to see if the Code will bear an interpretation which will leave the law unaltered.� Brennan v. The King[cxlv]³. Thus under s. 4 of the Code, in order to establish an attempted rape the Crown must prove:

(1)����� The accused intended to have carnal knowledge of the complainant without her consent, or obtaining her consent by force or by means of threats or intimidation, or by fear of bodily harm, etc.

(2)����� The accused had begun to put his intention into execution by means adapted to its fulfilment.

(3)����� The accused had manifested his intention by some overt act.

Considering each of these elements in turn, it is, of course, sufficient for the Crown to prove the accused�s intention by means of any confession by him. The element of the crime referred to in para. (2) provides a rule which the common law has expressed in the terms that �the actus reus of an attempt must be sufficiently proximate to the crime attempted�. See authorities referred to in Archbold, 35th Edition, para. 4104. The act must be something more than mere preparation for the commission of the offence (ibid.). See also R. v. Page[cxlvi]⁴. In New Zealand the �equivocality� theory of proximity has been adopted. See R. v. Yelds[cxlvii]⁵; R. v. Barker[cxlviii]⁶; R. v. Moore[cxlix]⁷; Reg. v. Mackie[cl]⁸. �This suggests that an act is proximate if, and only if, it indicates beyond reasonable doubt what is the end towards which it is directed. For this purpose confessions are excluded.� See Glanville Williams� Criminal Law, the General Part, 2nd Edition, p. 629. (See also Russell on Crime, 10th Edition, p. 1790.)

Professor Williams� criticism of this rule seems to be well founded (ibid., pp. 629-30). To take his illustration of a man wearing a mask apprehended in an enclosed yard at night, can it be doubted that, if the accused had confessed to attempted arson, that he could be found guilty of that crime, or, in the absence of such a confession, of attempted burglary, although his actions are equivocal as to each of these crimes? (Cf. Campbell v. Ward[cli]⁹.) A similar rule seems to have been adopted in Nigeria, where the Criminal Code is based upon that of Queensland, and the definition of �attempt� is in identical terms with the Queensland Code. See Orija v. The Police[clii]¹⁰, where the test adopted was �the prosecution must prove that the steps taken by the accused must have reached the point when they indicate beyond reasonable doubt what was the end to which they were directed.� Cited The Criminal Law and Procedure of Lagos, Eastern and Western Nigeria, Brett & McLean, p. 454.

However, I have reached the conclusion that this test cannot be read into the terms of the Code. The second element I have referred to provides the definition of what acts are regarded as sufficiently �proximate� to constitute an attempt. Provided that the first and second elements are then made out, the third element will be proved, that is the accused will be shown to have manifested his intention by some overt act if the acts of the accused, in the light of any intention confessed by the accused, or any intention to be inferred from all the facts, should plainly indicate the accused�s intention to commit rape. It is sufficient if the act relied upon is consistent with that intention. In my opinion, the Code does not require that the Crown should go further and show that the acts relied upon should be referable, independently of any intention confessed by the accused or to be inferred from his actions or from all the facts, unequivocally to an intention to commit the particular crime.

Returning to the second element, in a case of attempted rape, I would adopt the following statement of the law by Wanstall J. in R. v. Williams, ex p. Minister for Justice and Attorney-General[cliii]¹¹. �For myself I point out that the crime of rape is a compound, and that two of the ingredients were relevant in this case, namely penetration and consent obtained by force, more precisely described as unwilled submission. There being evidence of intention to achieve penetration without consent, i.e., to rape, I think the definition of attempt to rape could have been satisfied by proof of the use of means adapted to overcome the declared and manifest resistance of the woman. In the circumstances of this case the accused�s bashing her violently whilst sitting astride her supine body, which he had already stripped naked, was undertaken in the course of putting into execution his intention to rape her; it was a means adapted to the fulfilment of that intention and was part of the overt acts manifesting that intention. When the victim is physically resisting the fulfilment of her assailant�s proved intention to rape her one thing needed for its fulfilment is the overcoming of her resistance, so that force used for that immediate purpose is most obviously a means adapted to the fulfilment of the ultimate and compound purpose of achieving penetration without consent. There is nothing in the definition of �attempt� requiring that the act said to constitute the means of executing the intention should be directed towards the performance of one rather than another element of a compound offence.�

In that case, as the above passage indicates, the accused, after declaring his intention to have the complainant whether she liked it or not, proceeded to strip her and then to bash her into submission. The Full Court held that he was properly convicted of an attempt to commit rape.

Now from the facts of this case it would be open to me, as a jury, to find that the accused man intended to have intercourse with the complainant against her will, or to use force or threats of force, or fear of bodily harm to obtain her consent. It would be open to me to find that this intention was plainly indicated by his actions in threatening her with a knife and struggling with her whilst she tried to obtain possession of it, and his confession to the police inspector, whose evidence I accept, that the accused man told him on the day of the offence that he thought he would have intercourse with her, that he got the knife to frighten her and have intercourse with her. When he threatened her with the knife and struggled with her, it would be open to me to find that he began to put his intention into execution by means adapted to its fulfilment, by attempting to overcome her resistance, and also to find that his intention of having intercourse with her against her real consent, was thus also manifested by these overt acts.

However, in all the circumstances of this case, upon full reflection, I have decided that the proper verdict is that the accused was guilty of assault with intent to commit rape, and I so convict him.

Verdict of Not Guilty of attempted rape but Guilty of assault with intent to commit rape.

Solicitor for the Crown: S. H. Johnson, Crown Solicitor.

Solicitor for the accused: W. S. Lalor, Public Solicitor.

[cxliii][1924] N.Z.L.R. 393.

[cxliv][1936] N.Z.L.R. 979.

[cxlv][1936] HCA 24; (1936) 55 C.L.R. 253, at p. 263.

[cxlvi][1933] V.L.R. 351.

[cxlvii][1928] N.Z.L.R. 18.

[cxlviii][1924] N.Z.L.R. 865.

[cxlix][1936] N.Z.L.R. 1979.

[cl][1957] N.Z.L.R. 669.

[cli][1955] NZHC 4; [1955] N.Z.L.R. 471, at p. 476.

[clii][1957] N.R.N.L.R. 189.

[cliii] [1965] Qd.R. 86, at p. 95.