State v Siba [1980] PGNC 30; N261 (18 September 1980)

Unreported National Court Decisions

N261

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
-V-
PETER SIBA

Waigani

Narokobi AJ
18 September 1980

NAROKOBI AJ: This is a rape case in which there is no dispute as to sexual intercourse having taken place. The only issue isher therethere was consent.

The prosecutrix was dropped off on the main road at Moitaka by friends. She was making ay torara wara when the accused met up with her and there followed sexual intercourse.

Sexual intercourse took place nearain, some 40 feet away from the road, under tall grass. The roaelf is a private,vate,vate, bush track, although ordinary vehicles can easily go on the road.

Following the explanation of the charge, the accused was asked to plead. He said he utood harge "mie "mi klia" aia" and said:

"Prior to this incident, I gave the lady K2.00. I haual intercourse with hith h/p>

I took this to mean the accused was denying the charge and entered a plea of not guit guilty against him. Thereupon the went ial.

The State case consists of the evidenvidence of the prosecutrix and a police investigation officer, Mr. Timoapa.

THE STATE'S CASE.

The State case is that sexual intercourse trse took place without the consent of the prosecutrix. The prosecutrevidence on c on consent is very clear. She says, she was forcehavo have sexual intercourse at a knife point. There was a dog , she beli believed it to belong to the accused.

She claimed that she was forced to round with the accused's shoes and was held down by a man sman she described as the brother of the accused. She went further and ass tted that after the accused had sexual intercourse with the prosecutrix, three other men "goapim me" which I take to mean "wentop of me", which in Melanesian Pisin means "having had sexual intercourse with me".

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Following the incident, the prosecutrix went on to Mourata and reported the matter to the police at Morata. She was taken to thpital wtal where she was examined medically, that same day.

By coincidence, the accused was also at the hospital that day, taking a child in for treatmen60; There he was identified by the prosecutrix and was arre arrested by the police that same day.

The police investigation officer testified to the worried looks on the accused, the sad expressions of the prosecutrix and cuts on the woman. He couldrecall the nature ture of the cuts or on what part of the body he saw the cuts.

THE DEFENCE CASE.

The defenmits to sexual intercourse but submits that this occurred with the express consent of the pthe prosecutrix. The defence conducts defendefence on the basis, as I understand it, that the prosecutrix was a woman of bad reputation. In particular it was ed that she had previously had sexual intercourse with the accused for a fee.

In plen pleading to the charge, the defendant sthe had given the prosecutrix K2.00 before he had intercourse with her. This was not rnot reveal t in the record of interview. id the accused claim in thin the record of interview that he had any previous intercourse with the prosecutrix.

The ce cas therefore a case of putting the prosecutrix to x to trial on the element of consent, havi having conceded to sexual intercourse. Defence relied on several inconsistencies of state case and imputed bad character to render her unbelievable.

EVALUATION OF EVIDENCE

On the whole, I agree that the prosecutrix tended to be evasive and inconsistent. But I find thatespect of e of evasion, this was more consistent with her general character - namely that she was basically interested in tellint she knew and saw rather than to answer questions put to her. nconsistencies, ies, in myin my view do not show her as a lying witness.

In any case, much of the inconsistencies relate to the issue of character, rather than to the central issue of ct. The vagueness of t of the prosecutrix relating to events, during the week and the weekend before the incident, in my view do not assist the accused. I placgreat reliance whatswhatsoever on circumstances relating to what happened over the weekend.

The next point relates to the tear in the dress, the underpants and the bra. Only the dress roduced in d in Court. It lookete normal, with a th a lace on the bottom, slightly loose. The cutrix stated her husb husband had patched it up, but she it was her "mama", or mother. Her suenequent evidence isce is that she has never been been married except for an association sh with a European. In ; In looking ove evidenvidence and on listening to the prosecutrix, I am of the view that the reference to "husband" came about because of my misunderstanding. The prosecutrierred to hero her "mama" which I took and the official interpreter took to mean "man" or husband.

In point of fact, looking over my evidence I had not written in my note book anything tgest at the time the blouselouse was produced that "my husband mended my blouse". What happenedthat when then the prosecutor sought to produce the blouse the defence objected on the basis that the blouse was not in its original form. I admitted the e on asis tsis that it was the blouse she wore at the time time of alleged rape.

The upshot on the question of the blouse is tt is the blouse the prosecutrix wore on the day of the affair and it has minimal of tear onar on it.

The prosecutrix also alleges that her pants and the bra were torn. These were not ped in the the Court. Defence a this is fatal toal to the State case. Taken with the absence oicmedical evidence, so argues the defence, this suggests consent on the part of the prtrix.; It was not a pa a part of State case that the woman was iwas injured or hurt upon her sexual organs.

The defence also submits that lack of evidence as to the condition of the prosecutrix and lack of evidence on the condition of the dress means that the State has not negatived consent beyond a reasonable doubt. Deffurther alleges that that there is no evidence of a recent complaints nor is there evidence as to who she complained to.

When we went to the scene of the alleged rape, the prosecutrix sat or near a drain and said said that that was where she was dragged to. Later she said, she waer tver taken there. However, other examinationation by the Court, she said, she was at the road, 40 feet away from the point where intercourse took place0; Sh pulled or dragged to the drain and later, she sahe said "he pulled me down there".

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This point was later clarified on State Prosecutor's re-examination. She was asked - "Did he pull you from over there", pointing to the spot on the road where she stood. She replied - "That he fire first time".

On close examination of all the evidence, this is the picture tmerges, in the facts as I fs I find them.

FACTS AS I FIND THEM.

The prosecutrix was dropped off at Moitaka Wild Life Centre so that she could take a short cut across to Morata. This occurred between 6 am and 8 am, but it is more probable that this happened at 8 am. The ence to 6 was suggestegested by defence counsel and later adopted by the prosecutrix. did not su 6 am in the firs first place.

On her way way across the track, after she had gone past a gate, the accused and three otan saw she was alone and followed her. There was a dog among thp>.

The accusedcused intercepted the girl, soon after she had crossed a drain and pulled her to the drain. She resisted as eventuallyually subdued near a tree, away from the drain 40 feet. There, the the intercourse took place. One man, the prosix referreferred to as the brother of the accused helddown and the accused had sead sexual intercourse with her. Thereafter thrher man also also had sexual intercourse with her.

Tosecutrix resisted, and wasd was subdued. In fact, she was wounded with a knife. The wound was refeto by thby the police, though no medical evidencedence was available to substantiate the point. I make no positive finding that the accused wounded hven t she claimed he d he did it.

I hold too that the come complaint was recent. Just how recent ient is a is a question of f#160; It is well known that in P.N.G., women tend to be shye shy and would normally not make complaints unless encouraged.

In case, I hold that the complaint was definitely recent.&#160 Theecutrix reported the mahe matter to the police the same day. Ithours before the police lice could interview her, but the complaint was made at the first opportunity, when she arrived at a.

Delay in complaint may be evidence of consent when twith other circumstances.&#es. Likewimmediate complaint iint is, on its own, no proof of lack of consent. It may support a finding that the prosecutrix is a liar.

In rape cases where consent is the only issue, recent complaint must be seen in the lightime, opportunity, the scene of the alleged rape, previous or subsequent relationship betweeetween the parties, events prior to sexual intercourse, events immediately after intercourse, condition of the prosecutrix, force, if any used and other relevant matters.

The absence of the bra and the pants, in my view are not critical to the State's case. I reach this conclusion simply because I cannot see how their absence would assist the defence when I am satisfied beyond a reasonable doubt that there wasonsent given in this case. I rehis view on the whole hole of the evidence as I evaluavaluate it.

CORROBORATION

Defence Counsel argues there was no corroboration in this case by an independent person. Imyself what is corroboratboration? To me, it simply means to make strong, to strengthen or to confirm. Is there evidence in thse case to make strongstrengthen the prosecutrix's story? Of co as it s it has oftenoften been decided, that strengthening of evidence must be in some mat way, and it must normally come from an independent source.urce. It come from the prosecutsecutrix's own evidence or even from the police investigators.

I also hold the view that the accused's own evidence whether it is from his record of interview or a false or an unsubstantiatntiated piece of evidence from the witness box, or from the dock may also corroborate the State's case. A lie may also be corroborative, when taken with other circumstances, provided it is of a material evidence.

In this case I find sufficient corroboration and thus the uncertainty I have in relying on the prosecutrix's story is removed.

Since sexual intercourse has been admitted to, the only issue to be corroborated is the issue of consent. This issue must be judgjecobjectively in all the circumstances of the case.

I refer to the following factors. F is the question of prs rprs relationship between the prosecutrix and the accused. It was put iss-examinatiinatiination to the prosecutrix that on a previccasion, two months prior to this incident, the accused hadd had sexual intercourse with the prosecutrix. He offered her K2.00.; The question was incriminriminating. She chose to answer it, following my careful explanation of possible consequences. answer of l is final.

There is no mention of this prior affair whatsoever in thin the record of interview. The accu own tion he had had had intercourse with the prosecutrix after he gave her K2.00 was flatly dtly denied by her and was not mentioned atin the record of interview.

When asked if he knew where the prosecutrix comes from, rom, he replied, he did not know. Whked how he came to know know the girl he replied "they got a car and came". There is no mention previorevious association.

Here there is sexual intercourse between two strangers. The evidef the accuseccuseccused in the record of interview is that rosecutrix saw him and laughed as she went. This evid evidence is at wdds with the factual situation. The Moitaka track rlong the foot of the hills.ills. There arses some distance,ance, 10-50 feet away from the road. It is at with the prtrix'deix'dence that she dihe did not see the accused until he held her. In any caslaugh iugh if thif the prosecutrix had laughed, as suggestethe accused, is hardly an invitation to sexual intercourse,urse, on its own.

Secondly, in the record of interview, the accusedasked -

"Taim em ilam ilap yu mekim wanem?"

The English translation is -"when she laughed, what did you do?"

The answer, in pidgin reads -

"Mi bihainim em igo", meaning, "I followed after her". H asked "what was the next next thing", to which he answered - "Mi bihainim em igo na mi holim em" which translates as "I followed after her and I held her".&#16e next question in English (my translation) - was -

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"What part of her skin or body did you hold"

and the answer was

"I held half or part of her hand".

He was next asked what the woman did, to which he answered

"She continued to laugh".

His next answer is significant. He s

"Mi kisim em i em igo long bus" which translates as "I took her into the bush".

He was next asked -

"Yu mekim wanem long bus" - which translates as "what did you do in thh?"

His answer was -was -

"Mi go koapim em" which I take to mean "I went on top of her" or "I went and had sexual intercourse with her".

He was asked who took off the pants and he replied that the woman removed the pants in part, but the pants were still on the woman when he had sexual intercourse with her. He says she did not sut.&#ut. He was asked -

i oi i oraitim yu long koapim wantaim em", meaning,

"Did the woman consent to or permit you to have sexual intercouith h#160; The answer was a simple "yes".

ThirdThirdly, the next question and answer is q is quite telling, against the accused in my view. He was asked quitply "Em b"Em bin askim yu long sampela moni?" Which translates /p>

"D

"Did she ask you for some money", and his answer was "Nogat" or "No".

He was later asked how many men had sexual intercourse with her and he ed that he was the only one. Buer when asked abod aboutabout three men making bad fashion with the woman, he admitted it, saying "Yes, mi lukim wanpela man igo long meri islap long gen". I this to mean - "yes, I s, I saw one man go to her and stood with her". While this answer suggesto a non sexual association as a possible interpretation, I find that in the context in whicwas used, and the question tion it was in answer to, it suggests sexual association. This to me is ccorroboratioration of lack of consent.

The accused admitted to the presence of a dog in his record of interview but says it belongs to another man. accuss not sure if that mant man had sexual intercourse wite with the prosecutrix. Here again, is an importanortant link in then of events which in my view adds to the overall truthfulness of the State's case.

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In his record of interview the accusednces the theory that the woman took him to court probably bbly because the man with the dog saw them. While this suggestion is sonsistent with the accused's defence of consent, it, in my view has no ring of credibility about it when I take it against all vidence.

In a rape trial such as this one, the only relevant point about corroboratioration is whether there is corroboration in some material way relating to lack of consent. In my vie accused's own rewn record of interview, though it denies use of force, when taken in the light of prosecutrix's own evidence, corroborates lack of consent. Tcused took the woman t bu t bush. He did not sayt say she walked me to the bush or that we walked to the bush. He also denied asked of m of money.& The place where intercourse took place, under tall grass, ass, within reach of the people, who could see them or hear any sobs if they waon that road, and the evidence of Constable Timothy Rapa, cpa, concerning a wound, corroborates the evidence of the prosecutrix.

I am fully aware of the dangers involved in complainant's uncorroborated evidence. In mw, this is not one of e of that kind of a case. It is true, thaen may lie. lie. It is equally that men maen may suggest or invent consent.

Iview, the accused has invented the story that the woman conn consented. Hunsel's cross examinationation alleges previous sexual know of the woman with her cons consent. The accused himself in answer to the charge following arraignment said he had sexual intere with her after she acceptccepted K2.00. None of these matters are mentioned in the record of interview. The accused dida single "ies" in the recorrecord of interview claim consent. He chose nogive evidence.

Even if the accused did havual iourse with the ache accused on a previous occasion for a fee, this may be proof of an act oact of prostitution, but it, on its own isvidence of consent in this this rape trial in my view. Of coursken with other matr matters, it may well lead to a view that there was consent in a particular case.

CHARACTER OF COMPLAINANT

Whether the woman was of a promiscuous or of stitute's nature, is an issn issue I am quite unable to answer. One years' association with a European man in my view is not prostitution. It could be promisc but thut this seems to be well in line with current urban morality, even some respectable rs of the society would indulge in.

I cannot find annd anything to suggest the woman was a prostitute. It is true she has beemploemployed for 2 years - but there are many unemployed people in Port Moresby. Many are beingorted by they their relativder the wantok system. However wantotem is regardegarded by some members of the sociesociety, it is still being used by Melaneseople for mutual support.

In this case, the prosecutsecutrix says her brother owns and operates a store at Badili and she has been supported by him. It seems their relationshionship is a close one, as it was he who got her to part company with the European man.

The point here is that the accused is not merely alleging consent, he is doing more. He is challenging the complainant's own character. No doue accused would have have worked it out that if he could show the woman to be a common prose or a "K2.00 bush girl", he could have more readily alleged consent.

The accused, hed, has raised the question of character of the complainant. I look at hiord of interviterview and find nothing to support that allegation. I therefore reach the conclusion that the accused well knew that the complainant did not consent to sexual intercourse.

In the course of his final ad, defence counsel referred to the case of The State v. Kewa Kai ⁽N261.html#_edn363" title="">[ccclxiii]¹¹⁾ as affirming ommon law rule rule of procedure that it is dangerous to convict in rape cases where there is no corroboration. As I have indic I find ampd ample corroboration and that happened to have from the most unlikely plac place, the evidence of the accused in the record of interview. There is corroboration by n by policestigation officer and of c of course the overall situation of the alleged rape.

Defence counsel also referred to Kelly J.'s pdependence decision in affirming the same principle in T The Queen v. Yoka Kiok ⁽N261.html#_edn364" title="">[ccclxiv]²²⁾. That was a 1970 decision. In in that case the accuseccused was convicted, even though he argued consent on the basis that the prosecutrix had looked him in the eye which he took to be vitato consentual sexual intercourse. The case aase againsgainst the accused in this case is even stronger. All there is, is an allon tion by accused of a laugh.

Defence counsel also referred to standard directions jury are addressed in rape caseshe Soustralian case ofse of R. v. Kalitzudazig ⁽N261.html#_edn365" title="">[ccclxv]³³⁾

While I agree entirentirely with the direction, I need only add that any reference to jury in this country is fast becoming a fiction. There is no jury is jurisdurisdiction. I sit as ae to decide all all issues of law, of fact and of procedure.

All I have to do is satisfy myself on criminal standard that the State has establishedcase d any doubt or anor anxiety in my own mind. Has the Sthe State lished shed that the intercourse took place without the prosecutrix's consent? In my view, that has been been discharged.

The inconsistencies are in my view peripheral to the centssue of consent. The The prosecutrividencedence is that she never consented. This evidence, in spi stre strenuous, but fair and able cross examination by defence counsel, did not break the prosecutrix's evidence. Consent, I has been negatiegatived beyoasonable doubt, by the State Prosecutor.

I thereforeefore find the accused guilty of rape as charged.

Solicitor for thee: A/Public Prosecutor, L. Gavara-Nanu

Counsel: V. N V. Noka

Solicitor for the Accused: A/Public Solicitor, D. McDermott

Counsel: N. Kirriwam

<63">N261.html#_ednref363" title="">[ccclxiii]^{(1) (1976) P.N.G.L.R. 481}
N261.html#_ednref364" title="">[ccclxiv]^{(2) orted Supreme Court Judgmendgment N607 of 17 December 1970}
N261.html#_ednref365" title="">[ccclxv]^{(3) 20 S.A.S.R. 87}