The State v Robert Agen (No 5)

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Ganaii, AJ.
• Judgment Date: 14 July 2022
• Neutral Citation: N10292
• Citation: N10292, 2022-07-14
• Hearing Date: 14 July 2022
• Date: 14 July 2022
• Docket Number: CR. NO. 1029 OF 2019
• Counsel: Ms M Tamate & Ms S. Suwae, for the State,Mr J Napu, for the Defendant,Counsel

N10292

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 1029 OF 2019

The State

v.

Robert Agen (No 5)

Waigani: Ganaii, AJ.

2022: 14^th July

CRIMINAL LAW — No case to answer application — Charges of Assault occasioning bodily harm, Rape and Grievous Bodily harm — Principles of law in Paul Kundi Rape considered — Whether evidence is sufficient to make out prima facie case

Cases Cited

State v Fasean [2014] PGNC 68; N5596

State v Paul Kundi Rape [1976] PNGLR 96; N34

State v Robert Agen (No 1) [2021] PGNC 620; N9652

State v Robert Agen (No 2) (2022) N10276

Counsel

Ms M Tamate & Ms S. Suwae, for the State

Mr J Napu, for the Defendant

Public Prosecutor: Lawyers for the State

Napu and Company Lawyers: Lawyers for the Defendant

RULING ON A NO-CASE TO ANSWER APPLICATION

14^th July, 2022

1. Ganaii AJ: This is a ruling on a no-case to answer application at the close of the state's case. State presented an indictment against the accused, alleging the following counts:

“Count 1

…. on 30th day of April 2018 at Owers Corner, Sogeri Road, Kairuku Hiri District, Central Province unlawfully assaulted one AHJ and in doing so caused her bodily harm, contrary to section 340 of the Criminal Code

Count 2

… on the 30th day of April 2018 at Owers Corner. Sogeri Road, Central Province sexually penetrated one AHJ by inserting his penis into her vagina without her consent, contrary to section 347 of the Criminal Code and

Count 3

….. on the 15th of September 2018 at Waigani, NCD, unlawfully did GBH to one AHJ contrary to section 319 of the Criminal Code

Alternatively to Count 3 is Count 4

Count 4

… on the 15th of September 2018, at Waignai, NCD, unlawfully assaulted one AHJ and by so doing caused her bodily harm, contrary to section 340 of the Criminal Code”.

Elements of the Charges

2. The elements of the charges as contained in the offence provisions are stated below.

Count 1 Assault occasioning bodily harm

3. The offence of Assault causing bodily harm is in the following terms:

“340. ASSAULTS OCCASIONING BODILY HARM.

(1) A person who unlawfully assaults another and by doing so does him bodily harm is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding three years”.

4. Section 1 of the Criminal Code Act (CCA) on the interpretation of “bodily harm” says any bodily injury that interferes with health or comfort. According to the Merriam Webster Dictionary, ‘injury’ means being ‘hurt’ or ‘harmed’.

Count 2 Rape

5. The offence of rape is defined under ss 6 and 347 of the CCA in the following terms:

“6. SEXUAL PENETRATION.

When the expression “sexual penetration” or “sexually penetrates” are used in the definition of an offence, so far as regards that element of it, is complete where there is –

(a) the introduction, to any extent, by a person of his penis into the vagina, anus or mouth of another person; or

(b) the introduction, to any extent, by a person of an object or a part of his or her body (other than the penis) into the vagina or anus of another person, other than in the course of a procedure carried out in good faith for medical or hygienic purposes”.

“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.

6. The meaning of consent under the CCA is provided in sections 347A and 347B in the following terms:

“347A. MEANING OF CONSENT.

(1) For the purposes of this Part, “consent” means free and voluntary agreement.

(2) Circumstances in which a person does not consent to an act include, but not limited to, the following: –

(a) the person submits to the act because of the use of violence or force on that person or someone else; or

(b) the person submits because of the threats or intimidation against that person or someone else; or

(c) the person submits because of fear of harm to that person or to someone else; or

(d) the person submits because he is unlawfully detained; or

(e) the person is asleep, unconscious or so affected by alcohol or another drug so as to be incapable of freely consenting; or

(f) …

(i) the accused induces the person to engage in the activity by abusing a position of trust, power or authority; or

(j) ….

(2) In determining whether or not a person consented to that act that forms the subject matter of the charge, a judge or magistrate shall have regard to the following: –

(a) the fact that the person did not say or do anything to indicate consent to a sexual act is normally enough to show that the act took place without the person's consent; and

(b) a person is not to be regarded as having consented to a sexual act just because –

he did not physically resist; or

(ii) he did not sustain physical injury; or

(iii) on that or on an earlier occasion, he freely agreed to engage in another sexual act with that person or some other person”.

“347B. WHERE BELIEF IN CONSENT IS NOT A DEFENCE.

It is not a defence to a charge under this Part that the accused person believed that the person consented to the activity that forms the subject matter of the charge where –

(a) the accused's belief arose from his –

(i) self-induced intoxication; or

(ii) reckless or wilful blindness; or

(a) the accused did not take reasonable steps, in the circumstances known to him at that time, to ascertain whether the person was consenting”.

Count 3 Grievous Bodily Harm

7. The offence of Grievous Bodily Harm under s 319 of the CCA is defined in the following terms:

“319. GRIEVOUS BODILY HARM.

A person who unlawfully does grievous bodily harm to another person is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years”.

8. In the case of State v Fasean [2014] PGNC 68; N5596 (13 May 2014), the Court referred to the definition of “grievous bodily harm” in Section 1 of the Criminal Code which is “any bodily injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health”.

State's case

9. Defence objected to all the documents being tendered to Court at the start of trial. During evidence, several documents were tendered by consent and others were ruled admissible and received into evidence. These are listed in the table below.

No.	Document Title	State Exhibit Number
1	Record of Interview of the accused Robert Agen, dated 20/09/2018, Preferred English version, 4 pages	“S1”
2	Affidavit of Dr Lenturut-Katal, dated 9/12/2021, attaching to it a Medical Report dated 21/09/2018 for Ms AHJ	“S2”
3	Affidavit of Dr Lenturut-Katu, dated 9/12/201, attaching to it the Medical Report of Dr Poyap Rooney dated 11/09/2018, for Ms AHJ	“S3”
4	2 x A4 pages of printed photographs of the complainant. 2 photographs on each page, totalling to 4 photographs.	A4 page 23 — “S4” A4 page 24 – “S5”
5	Statement of Joshua Kraip	“S6”

10. Sworn oral testimonies were given by witnesses, complainant AHJ; Margaret Olaba, Joshua Kraip and Dr Lenturut-Katal. A summary of their evidence is stated below.

AHJ

1. Witness is the complainant. For Count 1 on the charge of Assault occasioning bodily harm, she said: after the forced act of SI (without consent), the accused made me to sit down in the haus win and repeatedly asked me if I understood that I had brought shame to him and his family. He then took out his belt and whipped me several times on my back.

2. When asked to describe the belt, the witness said it was a leather belt that had a silver buckle and it was the one he wore frequently. She felt that leather against her body and assumed he held the buckle and whipped her. She wore a silk top and didn't wear her sweater at that time. There were more than three instances of whipping. As how to many times exactly, she could not recall.

3. As she was being whipped by the accused, the complainant said she felt pain, her back was hurting, and it lasted 10 minutes. She visited the clinic of her grand-father and was treated for pain and bruising. There was no medical report made at that time. She did not tell her grandfather, who is a medical practitioner) about the rape. She also did not tell her colleagues or report to anyone as she was threatened by the accused not to tell anyone or she would be killed. She said the only person she later talked about the assault and the rape was her sister in Jaya Pura.

4. For Count 2 on the charge of Rape, the complainant's said “He (Mr Agen) demanded sex. I cried and refused. He said I didn't have a choice. I was his property and he owned me. He forced himself on me and we had sex at Ower's Corner at that point”. When asked where the act of sexual intercourse took place, the witness said” right there where we were standing”. She said, “He turned me around, put me in a bent over position, unbuckled his pants, took out his penis and forced himself into me from behind”. When asked what is meant by ‘forced himself’, the witness said, “he penetrated my vagina with his penis, it did not take longer than a couple of minutes”. When asked how she felt, the witness said “I was terrified. I felt fearful that at any time he would change his mind and they would kill me and dump my body”. When asked ‘Did you consent?’ The witness said “No, I did not”.

5. For Count 3, on the charge of GBH, alternatively, Assault Occasioning Bodily Harm, the complainant said: it was at Mr Kamasuga's residence, after a night out at Red Rock, the accused threw her on the floor, dragged her, continuously punched, and kicked her with his boots all over her body and face and she lost consciousness. She realised she was bleeding profusely from the face as she gained consciousness. Her cousin Margarete had come and had taken the complainant to her grand-father's clinic. She was treated there by him for pain and for the bruising. There was no Medical Report...