The State v Flotyme Sina (No 1) (2004) N2540

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 18 May 2004
• Citation: (2004) N2540
• Court: National Court
• Year: 2004
• Judgement Number: N2540

Full Title: The State v Flotyme Sina (No 1) (2004) N2540

National Court: Kandakasi J

Judgment Delivered: 18 May 2004

1 CRIMINAL LAW—PRACTICE AND PROCEDURE—Need to caution accused before he goes into evidence—Accused choosing to give unsworn statement from the dock—Credibility and Weight of—Court duty bound to consider credibility of.

2 CRIMINAL LAW—Verdict—One on one rape against married woman—Consent only issue for trial—State's evidence logical, in touch with commonsense and given under oath found credible and accepted—Guilty verdict returned—Criminal Code s347(1).

3 EVIDENCE—Sworn testimony verses unsworn testimony—Unsworn testimony not tested under cross–examination—Court duty bound to consider credibility of both evidence—Whether evidence sworn or not goes to credibility of witness—Evidence that is logical and in touch with commonsense preferable.

4 SCR No 1 of 1980; Re s22A(b) of Police Offences Act (Papua); Biyang v Liri Haro [1981] PNGLR 28, The State v Ben Noel (2002) N2253, Rolf Schubert v The State [1979] PNGLR 66, The State v Cosmos Kutau Kitawal (No 1) (2002) N2245, The State v Kevin Anis (2003) N2360, The State v Eki Kondi (No 1) (2004) N2542, The State v Amoko–Amoko [1981] PNGLR 373, The State v John Kasaipwalova (1977) N80, The State v Kindung [1996] PNGLR 355, The State v Raphael Kimba Aki (2001) N2039, Jimmy Ono v The State (2002) SC698, The State v Julius Ombi (No 1) (2004) N2564, The State v Garry Sasoropa (No 1) (2004) N2565 referred to

___________________________

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 640 of 2003

THE STATE

-V-

FLOTYME SINA

(No.1)

GOROKA: KANDAKASI, J.

2004: 11th and 18th May

CRIMINAL LAW – PRACTICE & PROCEDURE – Need to caution accused before he goes into evidence – Accused choosing to give unsworn statement from the dock – Credibility and Weight of – Court duty bound to consider credibility of.

CRIMINAL LAW - Verdict – One on one rape against married woman – Consent only issue for trial– State’s evidence logical, in touch with commonsense and given under oath found credible and accepted – Guilty verdict returned – Criminal Code ss. 347(1).

EVIDENCE – Sworn testimony verses unsworn testimony – Unsworn testimony not tested under cross-examination - Court duty bound to consider credibility of both evidence – Whether evidence sworn or not goes to credibility of witness - Evidence that is logical and in touch with commonsense preferable.

Cases Cited:

SCR No. 1 OF 1980; Re s. 22A (b) of the Police Offences Act (Papua) [1981] PNGLR 28.

The State v.Ben Noel & Ors (Unreported judgment delivered on 31/05/02) N2253

Rolf Schubert v. The State [1979] PNGLR 66.

The State v. Cosmos Kutau Kitawal & Anor (No 1) (Unreported judgment delivered on 15/05/02) N2266.

The State v. Kevin Anis and Martin Ningigan (Unreported judgment delivered on 7/04/03) N2360.

The State v. Eki Kondi & Ors (Unreported judgment delivered on 23/03/04) CR NO.1451 of 2003 & Ors.

The State v. Amoko-Amoko [1981] PNGLR 373.

The State v. John Kasaipwalova (1976) N80.

The State v. Kindung [1996] PNGLR 355.

The State v. Raphael Kimba Aki (Unreported judgment delivered 26/01/01) N2039.

Jimmy Ono v. The State (Unreported judgment delivered on 04/10/02) SC698

State v. Julius Ombi (No.1) (Unreported judgment delivered on 27/04/04) CR No. 342 of 2004.

The State v. Garry Sasoropa & 2 Ors (Unreported judgment delivered on 27/04/04) CR NO.261 of 2004.

Counsels:

N. Miviri for the State

M. Aipe’ei for the Prisoner

18th May 2004

KANDAKASI J: You pleaded not guilty to one charge of raping a married women (named but referred to only as the victim) at Napamogona, in the Bena District of this Province on 30th December 2002. A trial therefore took place on 11th of May 2004 and a decision on your verdict reserved to this week. This is now the decision of the Court on your verdict.

In addition to admitting into evidence, a number of documentary evidence with your consent, the State called the victim and another witness who gave sworn oral testimonies against you. The documentary evidence consists of your record of interview with the police in both the English and Pidgin versions, exhibits “A1” and “A2” respectively; Medical report by Dr. Graham Haina, exhibit “B”, and the Statements of Joe Mangre dated 15/01/03 and Gaindia Metia dated 15/01/03, exhibits “C” and “D” respectively. On your side, only you gave an unsworn statement from the dock.

The Offence

The Criminal Code as recently amended by the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002

(No. 27 0f 2002) s. 17.

1 creates and defines the offence of rape in these terms:

“347. Definition of rape.

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

The amendments seek to clarify and introduce a new definition for rape and a penalty regime. The definition is only in respect of who could be a victim of rape. Previously it was females only. Now, there is no gender indication. It defines the offence, as a person sexually penetrating another without the latter’s consent. Otherwise, it has always been clear and it continues to be so, that the offence of rape has a number of elements. These are:

1. A person who;

2. sexually penetrates;

3. another person;

4. without that person’s consent.

The prosecution always has the burden to prove beyond any reasonable doubt every element of an offence in all cases that is prosecuted. The Supreme Court in SCR No. 1 OF 1980; Re s. 22A (b) of the Police Offences Act (Papua) [1981] PNGLR 28 at page 34, per Greville Smith J confirmed this: See The State v.Ben Noel & Ors (unreported judgment delivered on 31/05/02) N2253 for quotation of relevant part and application. What this means in your case is that, the State had the burden to prove each of the elements outlined above beyond any reasonable doubt. The question for this Court to resolve then is, has the prosecution proved all of the elements of the charge of rape against you?

Given the issue for trial, you do not dispute that there was a sexual intercourse or penetration of the victim by you on the day, date and place alleged. The only issue is whether, this was a free and or consensual sexual intercourse between you and your victim? Both the prosecution and the defence as noted, went into evidence on that issue. Accordingly, I turn to the evidence and facts emerging from them now, starting with a consideration of the evidence called by the State.

The Evidence

The first State witness was the victim. This witness’ evidence is very brief. She testified that she is a married woman. She is married to a man from Nasare village. On the day of the offence, she was on her way to visit a brother in-law at Napamagona village following a domestic problem with her husband. It was around 5:00pm and she was on her way to her destination. On the way, she passed you after returning you greeting her in terms of saying good afternoon. She continued on her way for a little while and then she realized that you had turned around and followed her and stood in front of her. You faced her and told her that you want to get a chance with her, which I take to as asking for a sexual intercourse with her.

At that time, she said you had a bush knife with you. She said you used that bush knife to threaten her and said to her, “if you say no, I will kill you” and you insisted or were determined on getting what you asked for. This developed into a struggle between you and her and you eventually over powered her and put her down on the ground. You then proceeded to have forceful sexual intercourse with her. At that stage, she did not struggle with you as she was fearful of you killing her as you threatened her already with a bush knife.

After you satisfied yourself, you got away from her. She then continued to the village. There, she found Gibson Forokave and she reported what you did to her. Gibson came to the police station the following day and reported the incident to the police as it was late on the day of the incident for him to do that. Following that...