The State v Philip Kila (2008) N3687

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 27 October 2008
• Citation: (2008) N3687
• Docket Number: CR NO 722 OF 2006
• Court: National Court
• Year: 2008
• Judgement Number: N3687

Full Title: CR NO 722 OF 2006; The State v Philip Kila (2008) N3687

National Court: Cannings J

Judgment Delivered: 27 October 2008

N3687

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 722 OF 2006

THE STATE

V

PHILIP KILA

Madang: Cannings J

2008: 7, 8 May, 4 September, 27 October

CRIMINAL LAW – rape – trial – Criminal Code, Section 347 – whether the complainant consented – whether the accused had an honest and reasonable belief that the complainant consented – whether circumstances of aggravation proven.

A policeman was indicted for the rape of a 19-year-old woman. The State alleged that he committed the offence during the course of a police raid of a village. Two circumstances of aggravation were alleged: that the accused was armed with a firearm and that he was in a position of trust and authority. The accused admitted that he had sex with the complainant but said that he asked her first and she consented. In the alternative, he raised the defence that he honestly believed she consented.

Held:

(1) The complainant was a more impressive witness than the accused and it was proven beyond reasonable doubt that she did not consent.

(2) For the defence of honest belief in consent to operate, an accused must rely on the defence of mistake of fact under Section 25 of the Criminal Code, which requires that he held an honest and reasonable belief in consent. The State proved beyond reasonable doubt that he neither honestly nor reasonably believed that the complainant consented.

(3) The State proved the existence of the two circumstances of aggravation charged in the indictment.

(4) The accused was accordingly convicted of rape committed in circumstances of aggravation under Section 347(2) of the Criminal Code.

Cases cited

The following cases are cited in the judgment:

DPP v Morgan [1975] 2 All ER 347

Java Johnson Beraro v The State [1988-89] PNGLR 562

R v Nikola Kristeff (1967) No 445

R v Ulel [1973] PNGLR 254

Rolf Schubert v The State [1979] PNGLR 66

The State v Alex Matasol Hagali CR No 928 of 1997, 28.09.06

The State v James Yali (2005) N2988

The State v Jimmy Aiyo CR No 147 of 2005, 28.09.06

The State v John Kalabus & Aita Sanangkepe [1977] PNGLR 87

TRIAL

This was the trial of an accused charged with rape.

Counsel

J Wala, for the State

J Kolkia, for the accused

27 October, 2008

1. CANNINGS J: Philip Kila, the accused, is a 38-year-old police officer based in the Transgogol area of Madang Province. He has been indicted on a charge of rape, committed in circumstances of aggravation. The State alleges that in the early hours of 17 October 2005 he was engaged in a police operation that involved the raid of Garaty village in the Bogia District, searching of premises and apprehension of suspects. He entered a house and found the complainant, a 19-year-old woman, there, threatened her with the firearm he was carrying, then sexually penetrated her without her consent.

2. The accused admits that he had sex with the complainant but denies that he is guilty of rape. He says that he asked her first and she consented. If the court finds that she did not, in fact, consent, he says that he is still not guilty of rape as he had an honest and reasonable, though mistaken, belief that she did consent.

THE EVIDENCE

3. The State’s case was based on the following evidence:

· oral testimony of the complainant;

· oral testimony of the complainant’s 10-year-old brother, who said he witnessed the incident;

· oral testimony of a police officer about the location of the complainant’s house;

· six pieces of documentary evidence: a statement by the complainant’s father, three pieces of medical evidence, a statement by the police investigating officer and the accused’s record of interview.

4. For the defence, the accused gave sworn evidence.

ISSUES

5. The accused has been charged under Section 347 of the Criminal Code (definition of rape) which states:

(1) A person who sexually penetrates a person without his [or her] consent is guilty of a crime of rape.

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

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

6. The indictment alleges two circumstances of aggravation: that the accused was armed with a factory-made shotgun and that he was in a position of trust and authority.

7. To obtain any conviction for rape under Section 347(1), the State must prove two things beyond reasonable doubt:

· the accused sexually penetrated the complainant;

· without her consent.

8. In this case, the accused has given evidence of a mistake of fact (which is his defence, if the State proves that the complainant did not consent). The State must therefore prove one more thing:

· the accused did not have an honest and reasonable belief that she consented.

9. To obtain a conviction for aggravated rape under Section 347(2), the State must prove, in addition to those three things, the existence of either or both of the aggravating circumstances charged in the indictment:

· the accused was armed with a factory-made shotgun;

· he was in a position of trust and authority.

10. The accused does not dispute that he sexually penetrated the complainant by inserting his penis into her vagina. So the issues are:

1 Did the complainant consent?

2 If she did not consent, did the accused have an honest and reasonable belief that she consented?

11. If either of those issues is answered yes, the accused will be acquitted. If the State proves, however, that the answer to both of them is no, the accused will be, at least, convicted of rape under Section 347(1). The final issue will be:

3 Were there aggravating circumstances, as charged in the indictment?

12. If that issue is answered yes, the accused will be guilty of aggravated rape under Section 347(2). If it is answered no, he will remain convicted under Section 347(1).

FIRST ISSUE: DID THE COMPLAINANT CONSENT?

13. The State bears the onus of proving beyond reasonable doubt that she did not consent, ie that she did not freely and voluntarily agree to have sex with the accused (as per the definition of consent in Section 347A(1) of the Criminal Code). To determine whether that onus has been discharged, I will begin by summarising the evidence adduced by the State and then summarise the accused’s evidence. After that, I will make an assessment of the credibility of the witnesses’ evidence and then consider the submissions of counsel before drawing a conclusion.

The complainant’s evidence

14. She has lived in Garaty village all her life. She is now married. She was asleep in the family home in the early hours of 17 October, 2005. The police came and woke up her father and mother as they were looking for her brother, “S”, who was a suspect in a criminal investigation. Her mother and father went away to talk to the police. After that, while she and her small brother, “M”, were alone in the house, a policeman knocked on the door of her room. He pointed a gun at her and told her to come out of her room. She was already awake at that stage and had been listening to what was going on. The policeman told her to remove her trousers. Then he had sex with her on the floor. He talked rough to her. She was afraid he might shoot her. Her brother saw what happened. She did not agree to have sex with him. She was frightened as he pointed the gun at her. So she gave her body to him. She had not seen him before the incident. She did not know who he was. He was a complete stranger. After he finished, he left the house and went to the main road. She went into her room and cried. Her brother was also frightened. She told her parents when they came back. They told their relatives and then they went to the main road and she identified the accused there. He was on the back of the vehicle. The police were wearing police uniforms and carrying guns. By the time they went to the main road, it was daybreak, about an hour and a half after the incident in the house. Later that morning she went to the hospital, the Bunapas Health Centre at Bogia. She was single and 19 years old. She got married in 2006. Nobody else had sex with her that morning. In the courtroom, she identified the accused as the policeman who had sex with her.

15. In cross-examination she agreed that she was in the house at 4.00 am when the accused knocked on the door. Her small brother was in the room with her. The policeman asked her if she was married or single. She said she was single. He said that he wanted to sleep with her but she did not give him permission. He asked her if she was wearing only trousers. She told him that she was wearing both trousers and panties. She denied telling the policeman to follow her to another room. He told her to go to the other room, so she did that, while she was crying, and that is where he had sex with her. She agreed that she took her trousers off. She did this as he...