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Republic v Agir [1975] NRSC 12; [1969-1982] NLR (C) 25 (26 August 1975)

[1969-1982] NLR (C) 25

IN THE SUPREME COURT OF NAURU

Criminal Case No. 5 of 1975

THE REPUBLIC

v

PALIK AGIR

26th August, 1975.

Rape - corroboration - distressed condition - when it is corroborative.

The accused was charged with forcibly raping a girl aged 15 years. He admitted having intercourse with her but said that she consented to his doing so. She denied having consented. She was distressed and sobbing immediately after the intercourse. The accused could not explain the reason for her distress. A doctor who examined the girl gave evidence that there was no injury or bruising to the girl’s external sexual organs, as is usually present where forcible rape has occurred, but that there was bleeding from the upper part of the vagina, possibly due to excessive penetration. Apart from the girl’s distressed condition there was no evidence corroborative of her evidence of lack of consent.

Held: Although in some circumstances an alleged rape victim’s distressed condition immediately after the alleged rape may be adequate corroboration of her evidence of absence of consent, it is not adequate corroboration where there is a reasonably possible explanation, other than absence of consent, for her distress.

Accused acquitted of rape but convicted of defilement of a girl under the age of 17 years.

Mrs. M.L. Billeam for the Republic
K. Aroi for the accused

Thompson C.J.:

Although at law corroboration of the evidence of prosecutrix in a rape case is not required, in practice it is regarded as unsafe to convict a person of such a serious offence on such uncorroborated evidence. Evidence of complaint made shortly after an alleged rape is not corroboration. The distressed condition of the prosecutrix may be corroboration but has to be viewed with varying degrees of caution according to the circumstances of the case.

In this case the accused has given evidence admitting the intercourse. Only the element of consent is in dispute. The prosecutrix has given evidence of forcible rape; the accused has stated that she consented at first and helped to remove her underpants, hesitated when told by the accused to have intercourse outside the car but then lay down and was a willing party to the intercourse. The accused has admitted that the girl was sobbing after the intercourse but has said that he does not know the reason.

In the circumstances of this case the evidence of the doctor who examined the prosecutrix and the accused on the following day is of great importance. First, the doctor has stated that there was no injury to or bruising of the hymen, the vulva or the lower part of the vagina as would have been expected if the accused had had intercourse with the prosecutrix, a young girl, by force. Second, he has stated that blood was coming from the upper part of the vagina. He was unable to say whether this was a menstrual discharge or caused from injuries higher up in the vagina caused by excessive penetration. Such injuries would be an explanation for the distressed condition. While it is by no means certain that that was the cause, this is a reasonably possible explanation which goes against the inference that the prosecutrix’ distress was due to the intercourse being had without her consent.

While there is undoubtedly strong suspicion that the intercourse took place without the prosecutrix’ consent, the evidence which might be accepted as corroborating her evidence does not support it so unequivocally that it would be safe to convict the accused of the very serious offence charged. He will, therefore, be acquitted of that offence.

However, on his own admission he had sexual intercourse with the prosecutrix. There is undisputed evidence that she is 15 years old. He has given evidence that he believed her to be 15 or 16. It is thus established beyond all reasonable doubt that he is guilty of the offence of defilement of a girl under the age of seventeen, contrary to section 215(1) of the Criminal Code of Queensland (applied). Under the provisions of section 135 of the Criminal Procedure Act 1972, which I drew to the attention of the parties at the beginning of the trial in this case, the accused, being charged with rape, may be convicted of an offence against section 215(1). Accordingly I find the accused guilty of the offence of having unlawful carnal knowledge of the prosecutrix, a girl aged 15 years.

I acquit the Accused of rape and convict him of defilement of a girl under seventeen contrary to section 215(1) Criminal Code of Queensland (First schedule of the Criminal Code Act 1899), (applied).