The State v Michael Kowih Sipopoi Francis Pangih Kindung [1996] PNGLR 355

• Jurisdiction: Papua New Guinea
• Judge: Jalina J
• Judgment Date: 26 April 1996
• Court: National Court
• Citation: [1996] PNGLR 355
• Year: 1996
• Judgement Number: N1428

Full Title: The State v Michael Kowih Sipopoi Francis Pangih Kindung [1996] PNGLR 355

National Court: Jalina J

Judgment Delivered: 26 April 1996

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

MICHAEL KOWIH SIPOPOI FRANCIS PANGIH KINDUNG

Lorengau

Jalina J

23 April 1996

24 April 1996

25 April 1996

26 April 1996

CRIMINAL LAW — Rape — Evidence — Accused alleges that penetration was effected by finger and not penis — Whether penetration of the victim's vagina was effected by the accused's fingers or by his penis.

CRIMINAL LAW — Evidence — Rape — Penetration victim did not feel sperm being released inside vagina — Accused claim to have released sperm outside vagina — Whether presence of spermatozoa inside victim's vagina essential to sustain the charge of rape or is merely corroborative evidence.

WORDS AND PHRASES — Pidgin lingua franca — words — "kuap", "kuapim", "puspus" — meaning of.

Facts

1. The accused followed the victim along the beach after the victim spent a night at a video show and was returning to her house, and assaulted and eventually effected penetration of her vagina from her rear. Victim did not feel sperm released inside her vagina. Accused alleges that he effected penetration of the vagina with his fingers only and ejuculated sperm only rubbing against her thighs well outside the victim's vagina.

Held

1. Penetration of the vagina is one of the essential elements of rape. Not the presence of sperm. Presence of sperm is merely corroborative evidence. A person can still be convicted if penetration is proved even though there is absence of sperm.

2. Found on the evidence that the accused effected penetration of the victim's vagina by his penis since the extent of injury inflicted on the victim's vagina were only capable of being caused by a fully erect adult male penis.

3. On the issue of consent, victim's evidence of forced sexual intercourse is corroborated by the medical evidence of torn hymen and bleeding in the vagina.

Counsel

N T Sios, for the State.

N Motuwe, for the accused.

26 April 1996

JALINA J: This accused has pleaded not guilty to a charge of rape. The victim gave sworn evidence and was vigorously cross-examined by Mr Motuwe, Counsel for the accused. The accused gave an unsworn statement from the dock and in accordance with established practice in this jurisdiction, he was not subjected to cross-examination. The rest of the evidence for the prosecution, including the medical reports and the record of interview, were tendered by consent of defence counsel.

From the evidence, it appears that at about 5 am on 2 September 1995 after an all night video show at Lahapau Village, Manus mainland, the victim decided to return to her village, Kokou and followed the road along the beach. She was accompanied by a female, Josephine Thomas, as far as a Mr Saun's house. Josephine then returned leaving the victim to walk home alone. At Lukis Point the accused came from behind her (unknown to her), grabbed her around her waist with both his hands and they started struggling. The victim called out twice to the accused to stop as she regarded him as her uncle but without success. In the course of the struggle the accused assaulted her on her shoulder, back, thigh and other parts of her body with his clenched fists. She escaped once and tried to run away but he caught her and continued his assault. She said in her evidence that twice he carried her with one hand, between her thighs and his other hand over her shoulder and threw her down on the sand. She became weak and fell face dwn and he removed her black laplap and then removed her black underwear down to her ankles as she was lying face down. He tried to penetrate her from her rear but she crossed her legs tightly. He then hit her on both thighs and she relaxed and he opened both her legs with his hands and entered her vagina from the rear and had sex with her. She did not however feel him release his sperm inside her vagina. He then stood up and moved some distance away behind her. She got up, pulled her underwear up and with the laplap in her hand, ran towards her village.

On the way she met Genevieve Kuve. Genevieve was also on her way home after attending the video show at Lahapau village. Genevieve said that when the victim met her she told her "Sipopoi follow me and then fought me on both shoulders and took me into the bush". Genevieve noticed that the victim appeared angry and had tears in her eyes and the victim told her that she was going to report Sipopoi to her mother. Genevieve also noticed some white sand on the victim's back.

At about 5.15 that afternoon, the victim was taken by her mother to the Bundralis Catholic Mission Health Centre and was seen by Nursing Officer Anthonia Ndrakara. On examination, Antonia found that the victim was still bleeding and she had scratches which appeared to be scratches from finger nails on her left neck. She was still wearing her black pants. When she asked the victim to move both her hands, Antonia noticed that she appeared to be in pain. Antonia also noticed that the victim was not walking well because of the blow she received when the accused hit both her thighs. Because she was bleeding quite heavily Antonia referred the victim to the Lorengau Hospital for a doctor to examine her further.

Dr Otto Numan examined the victim at the Out Patient Department (OPD) of the Lorengau General Hospital at about 10.00 pm on the same day (2nd September 1995). The victim was still wearing the same pants but she had changed her other clothes. The...