Republic v Scotty [2008] NRSC 1; Criminal Case 1 of 2008 (10 March 2008)

IN THE SUPREME COURT OF NAURU

CRIMINAL CASE NO.: 1/2008

THE REPUBLIC

V.

MARCELLUS SCOTTY

Mr. Knox H. Tolenoa for the Republic
Mr. Pres Nimes for the Accused

DECISION

Marcellus Scotty is charged with rape. The particulars –

"On or about the 23rd of July 2007, at Nauru, committed rape upon one Ms. Rorena Bam."

Rorena Bam, a young woman of 19, had been out and about the island all night with friends. There had been drinking. Rorena has lived with her grand parents since infancy but she was embarrassed to go home this morning in her then condition. Instead she went to the house of her aunt, the wife of the accused. She had often done that before. She knew her aunt at this time was off island. Not clear from the evidence what time she went to the accused’s house: it may have been between 6:30a.m and 7:00a.m or it may have been later. The precise time doesn’t matter.

These are my notes of part of Rorena’s cross examination: -

"I lay down in lounge room as power off. Sleeping I felt someone touching me – when I woke. Told him to stop. Marc Scotty. I was leaving the lounge room to go to the girl’s room: in the house. I did not leave at that time as I didn’t believe that he would follow up after me. Surprised that he touched me. I left the lounge because I feared my uncle, but still stayed in the house. No one in girl’s room. I was closing the door of the girl’s room when I noticed my uncle coming. Struggled at door: I trying to close: he pushing open. I told him to stop: knew no one would hear me as no one else at home. About 10a.m. Before that day he’d never made a pass at me. We struggled (after left doorway). He pushed me to the mattress. Didn’t call for help – no one to hear me. Later on called for help. Still struggling when he held me down. I lied to him (go to the toilet) so I can get away from that place. To Salome Harris’ home. Told Salome – to take me to my home at the Location. I did drink with some boys- sat, chatted, parted: 1-2 hours. Only in Boe District, 2 hours.

Rorena went to Salome Harris’ house. Later she and Salome went to Maisie Addu.

Later still the same day Rorena was examined by Dr. Deepti Dapey. The margins of the hymen were red and painful. Dr. Dapey noticed semen stains in the vagina. She is of opinion that the stains were –

"very recent – within 24 hours."

This is confirmation that Rorena had had intercourse with someone but not necessarily with the accused.

The accused gave evidence. That he did so was in his favour but it did not help him much. Marcellus said that starting from 8p.m that night he had been drinking vodka with neighbours. At some time they helped him home. He cannot remember anything: nothing about an incident with Rorena or anything else. On the 26th of July he was interviewed by Inspector Jamie Laeo but declined to answer questions.

At the hearing the victim was most distressed: had to be persuaded to give evidence with Maisie Addu sitting next to her as support. In the circumstances and with the agreement of her pleader, Mr. Nimes and of the prosecutor, Mr. Tolenoa, I admitted her statement at the preliminary enquiry as her evidence-in-chief. Mr. Nimes, who represented the accused at the preliminary enquiry, then cross-examined.

At the preliminary enquiry Rorena had said,

"he penetrated me by inserting his penis inside my vagina."

Mr. Nimes did not challenge her on this in cross-examination. Together with the evidence in cross-examination this evidence, if I accept it, is sufficient to prove that Marcellus had intercourse with Rorena without her consent.

Having seen and heard Rorena I have no reasonable doubt about the accuracy of her account of what happened.

Mrs. Maisie Addu gave evidence for the prosecution. I propose to ignore it: for two reasons. First because she said it was,

"after 12:00"

when Rorena and Salome came to visit and complained about what had happened.

Mr. Nimes made no submission that this was not a recent complaint. Yet I have a duty, independently, to consider whether it is or not. I am doubtful that the complaint was sufficiently recent, to be regarded as "recent". It was several hours later and after Rorena had gone to Salome Harris. Salome Harris did not give evidence.

Secondly Mrs. Addu was in Court supporting the complainant during her evidence.

Better to forget about Mrs. Addu’s evidence when coming to a decision.

There is no requirement at law in Nauru for corroboration of a complainant’s evidence. Nevertheless I should be very careful before convicting on uncorroborated evidence. I may but I must think hard before doing so.

I accept Rorena is telling the truth. Her evidence is unchallenged. Not put to her in cross-examination that she consented. There is no suggestion of consent, a possible defence to the charge.

After careful consideration I have concluded that the prosecution has proven that charge of rape beyond reasonable doubt.

The accused, Marcellus Scotty, is guilty of rape.

10th March 2008