State v Yama [1990] PGNC 12; N817 (16 March 1990)

Unreported National Court Decisions

N817

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V
PETER YAMA

Waigani

Jalina AJ
8-9 March 1990
16 March 1990

CRIMINAL LAW - Consent - Abduction - Late at night - By four men - Three desisted - Committed by one man - Continuous refusal by victim - Persistence by accused - Submission by victim - No injury to victim - Agreement to marry - Exchange of clothes - Accused accompanying victim - Accused not attempting to escape - Not evidence of consent - Lack of consent established.

CRIMINAL LAW - Rape - Consent - Abduction - Late at night - By four men - Three desisted - Committed by one man - Refusal by victim - Persistence by accused - Submission by victim - No injury to victim - Agreement to marry - Exchange of clothes - Accused accompanying victim - Accused not attempting to escape - Mistaken belief as to consent - Whether honest and reasonable - May have been honest but not reasonable - Criminal Code s 25.

Cases Cited:

The following cases are cited in the judgment.

Bernard Touramasong & Ors v The State [1978] PNGLR 337.

McCallum v Buibui [1975] PNGLR 439.

Paulus Pawa v The State [1981] PNGLR 498.

R v Philip Boike Ulel (1969) No 533.

R v Yoka Kiok (1970) No 607.

State v John Kalabus & Aita Sanangkepe [1977] PNGLR 87.

Counsel:

J Pambel, for the State.

D Sakumai, for the Accused.

Cur adv vult

16 March 1990

JALINA AJ: The accused stands chargei on indictment that he on 3 September 1989 at Moitaka in Papua New Guinea committed rape upon the victim specified in the indictment. The charge is brought pursuant to s 347 (a) of the Code. He has pleaded not guilty to the charge.

The rape is said to have occurred sometime after 2 a.m which is the early hours of 3 September in the bushes between the main Hiritano Highway and the Department of Primary Industry (DPI) Station at Moitaka.

The State case in a nutshell is that the victim who was a stranger to the accused was abducted from her boyfriend and, under a pretext of driving her to a police station to settle an accident which happened some minutes earlier with the accused and her boyfriend’s vehicle, taken to Moitaka by the accused and his friends and raped by the accused without her consent and under circumstances in which consent could not have readily been given.

The versions of the happenings given by the victim in great detail has not been challenged or contradicted by the accused on oath. He only gave an unsworn statement from the dock. He said that he had intercourse with her because of their exchange of words to the effect of marrying each other. In these circumstances the case has been fought on the basis that consent was given. The defence, as will be seen later, also raises mistaken belief as to consent. Penetration having been admitted by the accused, the two issues presented for decision are:

(a) whether lack of consent had been demonstrated to the necessary extent - viz. beyond reasonable doubt - the onus for which lies upon theecutip>

As this is a sexual offence, may I point out before proceeding with this judgment that I have warned myself of the dangers of convicting upon the uncorroborated evidence of the prosecutrix. McCallum v Buibui [1975] PNGLR 439

THE EVIDENCE

Most of the evidence adduced by the prosecution was tendered by consent of defence counsel and I will deal with that later in this judgment. The only evidence given orally on oath was by the victim. The defence therefore appears to be so confident about succeeding on the issue of consent and the accused’s honest and reasonable but mistaken belief that she was consenting that it has not objected to the prosecution tendering most of its evidence without having to call the witness concerned to give evidence orally on oath.

(a) ;ټ < T60; The Victim&#8217idencidence

She said that at about 9 pm on the 2 September 1989 her boy friend Alois Palom and herself gotsed ant toMoonlRestaurant for some drinks anks and dand dance. While they were there her boyfrieyfriendnd’s friend joined them and they had a few drinks and the victim herself had four glasses of bacardi and coke. They were there until about 2 am which was in the early hours of the 3 of September 1989 when the dance ended. They then went to Lahara Avenue to drop off her boyfriend’s friend who lives opposite the Lahara Service Station. After dropping him off they followed the road leading to Boroko Market which is the road near the Lloyd Robson Oval. They then turned left and drove towards the ANZ Bank which is along the Hubert Murray Highway and then turned left again to 4 Mile traffic lights. As they were approaching the traffic lights they saw another vehicle coming down from the Racecourse Road near Big Rooster at 4 mile. As it was green light they did not stop but they put the signal and turned right into Racecourse Road. As they were turning, the other vehicle which should have stopped (as it was then red light on the side facing Racecourse Road) bumped into the side of the back part of the vehicle the victim was in. The victim and her boyfriend did not stop. They kept on driving and at Garden Hills her boyfriend realized that the vehicle that had bumped into them was following them so he accelerated and when they reached the Spring Garden Road they turned left and kept going until they came to Hohola. As they tried to turn the street on the left hand side their car skidded and ended up on the side of the road. They stopped and the car that was following them pulled up on the other side of the road, and at the same time some of the people living nearby came out when they heard the noise of the car.

As soon as the other car stopped the driver and three other guys who were with him walked over to the victim and her boyfriend’s car. As the victim was shocked she opened the door and came out and was standing outside while her boyfriend was in the car. Then the accused and two other guys came and pulled her hand towards the car and as they were pulling the victim towards car the accused was saying “Bai mipala igo long police station na stretim dispela ol toktok.” He was referring to the accident at 4 mile. He also said that when they had the accident he was injured. When they were saying that they tried to carry the victim into their vehicle but she replied that she would go into it herself so the victim got into the car that the accused was in and sat at the back. The vehicle was red in colour. The two guys who were with the accused sat at the back with the victim while the accused sat in front with the driver. Thinking that the accused and his friends were going to take the victim to the police she got in. After the victim got into the car the accused was in, her boyfriend reversed the car and took off in the direction they had come earlier. They then drove down to the main road where Elcom Office is and then turn right to go to Hohola Police Station but as they approached the Hohola Police Station they did not stop. They kept driving and when they came to the roundabout at Islander Hotel they turned right towards Gordons. When they reached Gordons Police Barracks and Gordons Police Station they did not stop but turned left towards Erima. When they came to Erima they turned left and drove up the Hiritano Highway towards Moitaka. While they were travelling to Moitaka the victim asked the man who was sitting next to her where he was from and he replied that he was mix Kavieng and Tolai or Manus; she could not remember. He was telling her that the accused had a pistol with him and that the driver of the vehicle was his father. He told the victim not to panic and that his father and him would help her if the accused and the others were to do anything to harm her. When they came to the road leading to the DPI Station the car turned left and followed the dirt road. Then they came to another junction and turned left again and stopped a little further up. When the vehicle stopped the driver and the other three (3) guys got out of the vehicle and ordered her to get out of the vehicle. She refused and they started pulling her out of the vehicle but she told them that she would get out herself. She then got out and the driver of the vehicle came towards her and was trying to take her clothes off but she refused again. The accused and the other two guys came and they all tried to take her clothes off. She was wearing a pair of jeans and a “T” shirt at that time. She said that she was in a state of sock and she was so scared so she told them that she would take the clothes off herself. So she took off her trousers but still had her “T” shirt on. The driver then told the accused and the other two (2) guys to wait near the vehicle. So the victim and the driver moved away from the other three. The driver held her and she started telling him to get rid of the accused and the other three (3) guys so that she would go with him. He replied that after all of them had had their turn he would let her go. They then sat down and at the same time one of the other guys came up to them. The accused was telling the driver to hurry up otherwise he would shoot them with the pistol. The driver told the accused “Yupela wait, papa pastaim”. The other guy who come up to them was telling the driver that while the driver had sex with her he would kiss her and hold her breast. The driver told the other guy to go away and wait. The accused was asking the driver who was an old man (now referred to as the “old man”) for the keys to the vehicle. By that time the old man was already naked and was with the victim. He told the accused and the other guys to check for the key in his pocket. They did not find it so he left the victim and walked over to the car to look for the keys. Then the accused walked over to the victim. The old man and the other two (2) guys found the keys and they got into the vehicle and they drove further up to turn the vehicle. The victim then told the accused that both of them should run away. So she ran and held the accused’s hand and both of them ran into the nearby bushes. The old man and the other two (2) guys came back and were calling the accused’s name but the victim told him not to answer. The old man and the other two (2) guys drove around for a while and then left as they could not find the accused and the victim. They drove towards the main road. The accused then told the victim to stay where she was while he went and grabbed her clothes (that is her trousers) and returned. The victim refused in case the accused goes and gets the other three. She then requested the accused to wear his trousers because she was wearing just a “T” shirt but the accused replied that he wouldn’t give her his trousers until after he had had sex with her. Then the victim lied to him that she had an aunt who was just living nearby and that they could go and spent the night there. He still insisted that he had sex with the victim before they go to her aunt’s place. The victim again refused and the accused said that if she kept on refusing he would call out to the old man and the other two (2) guys. So the accused and her had a bit of struggle. She asked him where the pistol was and the accused said that he had it in his sox. He then pushed the victim down on the ground on top of the grass. The victim was naked then so he just pull his trousers down and then pushed his penis into her vagina. He was pushing his penis in and out until he was satisfied. When he finished he took his trousers off and gave it to her to wear. She wore his trousers and both of them started walking toward the DPI Station. When they came to the first house the victim told him that that was her aunt’s and uncle’s house. As the gate was locked she told him to wait near the gate while she climbed over the fence. She went up to the house and knocked on the door. While she was knocking the accused also jumped over the fence and went to where she was. The owner of the house heard her knocking and he came out and opened the door. She told him that they wanted help so the owner of the house let her and the accused into the house. He took the victim and the accused to the lounge room and the owner of the house went to ring the police. The victim asked the wife of the owner of the house to use the toilet so the wife took the victim and showed her the toilet. In the toilet the victim explained to the wife everything that had happened. The wife then told the victim to have a shower and change. By that time the husband had rung the police and the police were on their way. The police arrived and she told them the story and then they took her to the General Hospital for medical examination. The doctor examined her. The police then took her to Gordon Police Station. The victim went on to say that the reason why she decided to go in the accused’s vehicle at Hohola was that she thought they were going to go to the police station to solve the problem about the accident at 4 mile earlier on. She also stated that at Moitaka when she was with the accused and his three (3) other friends she did not try to run away or to scream or do anything because it was very late in the night and she was in the middle of nowhere and if she did not cooperate then she would risk her life. That is why she had to do everything to ensure that she got the accused and the others to a place where the police can be contacted. The same reason was also given by the victim regarding the time when she was alone with the accused after the other three (3) men had left.

The victim was cross-examined at length by Mr Sakumai for the accused. In order to see clearly the nature of the case before the court I set out below some of the questions asked and the answers given by the victim during cross-examination:

Q. ҈ Were you affected bted by the four glasses of Bacardi and Coke you had at Moonlight Restaurant?

A. No.

Q. ;&#16t thce whex whexual inal intercntercourseourse took took place how far was the nearest house?

A. It was some dastaw>Q.

A. &##160; Witness indicates dtes distance frone ofnce trest house as distance from the witbox t Australian High Cogh Commissmmission.

Q.&p>Q. &##160; Did the accused appd appear to be drunk at the time?

A. ټ&##160; N60; No.

.

Q. &##160; D60; Did you mellalny ol ohol on the accut thae?

60;#1160;##160;#160; Fr0; From the time you weru were picked up by the accused aree (hers hola to the time youved ataka,the accused speak to you?

A. #160; & < &1600; He&#idn’t. He . He was sitting in front with the driver.

Q. & D60;thed ccusad make any any advances of a sexual nature to you?

A.ـ҈& 160; No. &#1Q. &#W60; yoen rri ad ateMoitaMoitaka did the accused tell you that he wanted to have sexual intrse with you?

A. & N60; No.

Q. & Di the accusedcused make make any threats to you thae?

A. At the time the old man was with me the ache accused told the old man to be quick otherwise the accused will shoot us with the pi

ـ҈&&#160 far was the car from where you and the othe old mald man wern were?

>

A.&#1A. &##160; W60; Witness andicdies ncetance from witness box to left corner of the court room just behind the bench - about 10 to 12 meters.

60;&##160;;ټ When you heard the accuseccused calling out to you and the old man man to beto be quic quick were you and the old man sitting down?

A. &ـ Y6s.

Q

Q. ҈& W60; Was thes the place where you and the old man were sitting down surrounded by tall grass?

A. ټ No. It was on the rthe road.

Q. &
#1160; Wh0; Where yere yere you able to see the car from where youe you and the old man were?

A. ; /60 <#1>0;; ; &#160 Did Did you see thused teed telling ting the old man to be quick or did you hear him saying that?

A.ټ&##160;;&#16 was and I’t see him buim but I ht I heard eard him shim sayingaying that.

Q. &##10;& Af0;r the driver aner and the two men had left, you and the accused were left behind alone?

A. ҈ Y60; Yes.

Q.0##1616;ټ&#When you decided to run into into the bthe bushesushes why why did you pull the accused to go with you?

A. & &ـ I d the acce accused because I thought that I wouldwould have have more more chance of escaping from one person than from the four (4) of them.Q.&##160; Before uou p tled thedaccu accused to go with you into the buhe bushes did you try to escape?

A. &##160;; I60aintmaintain thin that the accused had pistol with him and I did not want to risk my life by trying to escape.

60;&##160;; Did you actually see the pistol with the accused?

>

A.&#1A. < ـ Indid eet see the pistol btol but I maintain that he had the pistol because on the way the others told me he had pistol.

Q. ҈҈& You ved thed the accused had a pistol, why why did ydid you chou choose oose him to escape with you?

A. ҈ t 60;t was not the adcusewoit would have been any one of them beem because as I said earlier I thought that I would have more chance of esg fro than all em.

Q.  & Whe old mand mand man and and and the tthe two (2) others left, how long did it take before the accused had sexual intercourse with you?

A. ; About ar hou>

Q.&#>Q. &##160;; I60it c it correctrrect that during that one hour you had conversation with the accused?

A. ; Yes

Q0; ҈ oud yeckcheck the athe accused if heif he had had his phis pistol on him?

A. ټ&#I60; ndid notk butk butd askwherethe p.

. #160; & I60; Is it s it s it correct that the first time you asked the accused about the pistol wan youe havexual intercourse wim?

A. ; N60 whet he n he was hwas hwas havingaving sexu sexual intercourse with me, it was before that.

Q. &##160;; A60; After tter the accused pushed you to the ground you then ask him about the pistol, is that correct?

A.&ـ &##160; No.

Q. #160; &ـ After yter you you asked sked the accused about the pistol did you checsee if he actually had the pistol on him?

A. No.; Ndi I #82n&;t c7eck.

Q. ⵐ&#1eforeefore thee thee the accused had sexual intercourse with you did he threaten you with the pistol?

A. &##160;;&#p> .ټ&##160;;&#16s

. < &160; & An0;you agreeagreed thad thad that yout you woul would marry the accused, is that correct?

A. ҈& Y60; Yes. I s. I did say that.

Q. ҈ The accused also toso told you that he wantehave l intercourse with you is that correct?

A. &ـ< 160; 160; Yes.

. &160; ټ Au shat touldwould ould be h be had atad at your aunt’s house, is that correct?

A. &##160;; Y60. I s. I did said say that.Q.&##160;; ҈ After the sexuaercotercotercourse,urse, what what was was the accused wearing when you went to your aunt’s house?

60;&##160;; Because the T/se T/shirt Iirt I was wearing was long (I was not wearing anything eing else apart from the T/shirt) I suggest him we exchange so that he wears my T/shirt and I wear his trousers and the T/shirt.

Q. O thetoay ur yont&#u217;s217;s house did the accused make any attempt to escape?

A. &/po.<#11.&;&ɘ
hen 1hen you arrived at the gate to your aunt&aunt’#8217;s ho;s house duse did thid the acce accused make any attempt to escape?

ـ҈&&#160

Q. < #1660 In your auntnt’s 17;s house did the accused know that the owner of the house had gone to contact the police?

A. Yes he was aware of it.

Q. ; D60 thedaccused attempt tmpt to escape at that time?

A. & No.

Q.;#160; &160;ټ&##160; you thed the accused that you woulry hi you think that he t he beliebelieved wved what yhat you toou told him?

A. ;ټ I thinkthink so.

The following are thetions and answers On Re-exae-examination by Mr Pambel for the State.

Q. When you heard thesed sng todriver iver to beto be quic quick otherwise he would shoot you with the pistol what were your reaction to this?

A. 𧝼&#I was scarp>

A.& reeagbeca se I wanted hied hied him to be with me and corporate with me until the police arrived and arrested him.

Q.ټ&##160;;&#16en yoeed to have sexual intercourse with the accused at d at your your aunt&aunt’#8217;s ho;s house why did you agree to have sexual intercourse with him at your aunt’s house? (sic)

A. &#I60; n&did17;82mean to agto agree. The main aim was to get him to the aunt’s house and get the police.

Q. Why du exc yo?rhes.&p>A60;#160; &160; #160;&#160& Bec; Because ause ause I was wearing the long “T” shirt only without any pants. not good.

Thlowin ques asked by the Court and and replireplies gies given by the victim to such questions.

Q.&p>Q. When you said that you exchanged your clothes with the accused because you were wearing only a “T” shirt, where was ywn trs?

Q. ټ Y60; You said you were wieh the accused at the scene of the alleged offence for about an hour, were you haconversation with the accused?

A. ;ټ Y60; Yes.

Q.

Q. What were youitalkbog a

A. ټ&#T60; cce accused wsed was telling me that he would go and get my clothes from the vehicl>

60;&##160;ـ&#1as ittrue that the vehicle hale had takd taken ofen off?

A. #166;&#160&#1 di I did not not see the vehicle going on to the main road. I only saw it drive past me.

Q. B foreothe s lert, dfd youd you scrr cal for

A. &160; #160;&#160 &; No.

Q.

Q. #160; ټ ttervehe vehicle left, dit, did youto scor car help?

A. ـ; No.

Q. &ـ Wa0; Wa0; Was it song long long after you had sexual intercourse with the accused that yot to ouse?

A.;ټ & We went to theo the house just after heer he fini finished.shed.

Q. ҈& y60; you weru were staying there for one hour, were you touching each other’s body; was there fere foreplay?

A. & ;&#16s. Hetryietrying to make me lie down.

Q.&#>Q. &1600; Were yore you kissinh othe other before the sexuaercou/p> <#160; & No.; No.

Q. &160; When you wevingaving sexuasexual intercouras thused p of you or you were on t the accused?

A. ;ټ T60; T60; Th0; The ache accusedcused was was on top of me.

Q. ҈ When yot int car thar that the accused was in at Hohola by yourself after refusing to be dragged iged in to n to it, why did you decide to do that?

60;&##160;;ټ Because they said we are are goinggoing to t to the pohe police station, I believed them that we were all going to the police station.

Q. ټ&##160; H60; Have yove you known the accused before this night?

A. ; N60

.

Q. ҈ Ha0; Have you had anual real relationship with him before?

A. &##160;;ټp>ollowuestiuestiere asked by Mr Pambel for the the StateState as a as a resu result oflt of the the CourtCourt’s questions:

Q: ;&#16y didnRy7;t you scru scream for help both before anre and after the other three (3) had left?

A. ټ&#I didscream because the house was too far and there was no-one around and ifnd if I sc I screamereamed no-one would have heard me.

ollowuestiere asked by Mr Sakumai for the accused as a result of the Court’8217;s ques questionstions.

Q. & When you were told by the the accused and others to go to the police station, how far was your boyfriend?

A.ـ҈&&#160as nee car when they said that.

Q. < &1600 &#160&#1hen When the accuseccused and others said that to you did they speak in a loud voice or did they whisper to you?

A. ـ T60; They spoke inud vo/p> <#160; #160;   &##160& Who took off foff first?

A. My boyf.iend

.&#>Q60;&160;&ـ Du ask boyf toogo to the the the policpolice station?

A.  &; &#160 When I gt of are car Ir spIr spo my bend. Even the accused and tand the othe other three (3) guys didn’t bothebother to go and tell him to go to the police station.

Q. &##160;; You thid yhat you you toou took off your clothes after you got out of the vehicle, how did it get to the vehicle?

A. &ـ҈ on as I tooI took them off one of the guys picked them up and put put them them in thin the vehicle.

Apart from the evidof the victim, other evidence against the accused were tendered by the State by consent of t of Mr Sakumai for the accused. These were from Alois Palom, the victim’s boyfriend, Dr Fred Wurr who examined the victim, Constable Elly Kilingit who conducted a Record of Interview with the accused and Matilda Lahis who the victim complained to.

(b) &#A60; Poism>xceptxcept for the confirmation of the victim’s evidence as to what happened during the early parthe nup topointe theim cat of the vehicle at Hohola, Mr Alois Palo PalomRm’s 17;s evideevidence hnce has lias little relevance to the issue before me.

(c) &##160;;ɘ D60; Dr Fred Fred Wurr

He examined the victim on 3rd September which was after the alleged offence. On examination he saw the victim appeared calm and her breath smelled strongly of alcohol. She was not distressed and had no bruises or scratches. The examination of the perineum revealed no scratches nor were there any tears or cuts to the vulva. It was normal. The vagina and cervix were also normal although there were some white discharge in the vagina. The swab taken showed that a lot of sperm cells were present.

May I mention in passing that although these are among the significant matters commonly but not invariably considered in examining a consent to intercourse, no reliance was placed (in fact it was not mentioned) by Mr Sakumai in his address.

(d) ـ҈< C60; Constable Elly Kit

Constable Kilingit, who is a policewoman attached to the CID at Gordons Police Station, conducted a Record of Interview with the accuse5 Sepr 198 admittdmitted beed being with the others (he did not know know their names) but denied that they took the victim to Moitaka where they were to have turns in having intercourse with the victim.

He admitted having intercourse with her but what he said in his reply to question 22, 23 and 24 are of great significance in that it conflicts with that of the victim. I will consider these further later.

I do not consider it necessary to deal with the statement of Constable Michael Urua the corroborator to the interview with the accused by Constable Kilingit which was also tendered by consent as the Record of Interview is not contested by the defence.

(e) MatildisLah> videnvidence, as stated earlier, was tendered by consent of defence counsel. It is contained in an affidavit sworn on 9 March 1990. Her evidence was the last piecevideeforeState closed its case. Hers Hers is e is evidenvidence of recent complaint.

She said that on 3 September 1989 her husband and her heard a female voice calling “auntie”. Her husband opened the door and a young woman rushed in while a man stood outside. The woman told them to ring the police at once. She (the woman) had dirt on her and looked untidy. She (the woman) then asked Matilda if she (Matilda) could go to the toilet with the woman which she did while her husband went to call the police. At the bathroom the woman pulled Matilda in and shut the door. She (the woman) then told Matilda that the man outside was a rascal who tried to rape her. Matilda gave the woman a towel to wash. Matilda went back to the lounge room where her husband was with the accused. She told her husband about what the lady (who they knew later as Vicky) had said. She gave laplap and “T” shirt to Vicky to wear and later police went and took them away.

No cross-examination was had by defence counsel of any of the above witnesses whose evidence was tendered by consent. Neither were other witness listed in the indictment required by the defence for cross-examination.

With the above evidence the State closed its case. The accused elected to give an unsworn statement from the dock.

THE ACCUSED’S UNSWORN STATEMENT

The accused stated that the trouble happened at Moitaka. He followed her will because she said that she would marry him and his reply that he would marry her. So he followed her to the house which she had indicated earlier as belonging to her auntie. She then jumped over the fence and he followed her and stood at the verandah and she called “auntie, auntie”. While they were there the owner of the house came, opened the curtains and saw them outside. She told the owner that they needed help so the owner opened the door and they went inside and while they were sitting in the lounge room the victim excused herself and went to the toilet while he waited in the lounge room with the owner of the house. She returned and gave his trousers back. She was wearing a laplap. He did not know what they said in the toilet. They then sat down in the lounge room and he explained to the owner how the trouble occurred. While they were talking the police arrived and the victim said to him. “Peter I have to tell the truth to the cops”. He did not do anything. The police then took them away to Gordons Police Station. During that time he was under the influence of liquor and he did not give his statement properly to the arresting officer. Then the arresting officer hit his head and asked if it was true that he had raped the lady and he replied that he did not rape the lady. He said that he did not do anything to that lady and that his thought were to help that lady. If he was thinking of raping that lady he could have run away.

The defence not having any other witnesses to call, closed its case.

FINDINGS

From the evidence of the victim, it can be seen that she was abducted from her boyfriend very late at night by the accused and his friends who were total strangers to her, taken in their vehicle under a pretext of going to the police station to settle matters arising out of an accident involving her boyfriend’s vehicle and the vehicle the accused was in, and then taken to a secluded spot near Moitaka with a view to each of them taking turns at having intercourse with her. Perhaps with a view to frightening the victim (she was in fact frightened) into submitting to the wishes of the accused and his friends, she was told on their way to Moitaka that the accused had a pistol. This fact was later confirmed by his threatening to shot the victim and the old man with it if they did not hurry up. The fact that she believed that he had a gun and was frightened was further confirmed (by the accused to her) when she asked him about the pistol when they were alone and he replied that it was in his sox.

Before she finally submitted to intercourse with the accused, she had on more than one occasion refused intercourse - in other words refused consent. The first occasion was when she requested the accused to wear his trousers because she was wearing “T” shirt only but the accused replied that he wouldn’t give her his trousers until after he had had sex with her. The victim then said to him that she had an aunt nearby and that they could go and spend the night there but he insisted that he had sex with her before they go to her aunt’s place. The victim again refused and the accused said that if she kept refusing he would call out to the others. They then had a bit of struggle after which he pushed her on to the ground and had intercourse with her. Continuous refusal cannot, in my view, be an action of a woman who consents.

During the time the victim was with the accused and three others and then subsequently with the accused alone, she did not scream or try to escape. The reason she gives for this is that it was late at night, in the middle of nowhere coupled with the accused having a gun, she did not want to risk her life trying to run away and also that she acted in the way she did so that she could get them to a place where help could be sought and police could be contacted. In fact that was exactly what she did to the accused. It was through some unknown reason that the others left the scene of the alleged offence. One of the reasons is perhaps the calm and intelligent manner in which she handled the whole situation which was so risky and dangerous from the beginning. I have viewed the scene of the alleged offence and agree with the prosecutrix that the place is secluded and that the DPI Station at Moitaka, is quite a distance from the scene.

The victim was a quiet and intelligent woman with a very good understanding of the English language. She spoke very fluent English. She did not appear to me to be showing anything special against the accused or to be varnishing her story. Nothing in her demeanor caused me to question her veracity or recollection. I did not detect any prevarication in her manner.

CORROBORATION

Corroboration, whilst it is not a requirement of law that the prosecutrix’s version be corroborated it is nevertherless the general rule of practice that in cases involving an issue of consent there should be evidence corroborating that of the prosecutrix. For there to be corroboration there must be evidence independent of the complainant which confirm in some material particular not only the evidence that the crime was committed but, also, that the prisoner committed it. To look separately at each element said to constitute corroboration may lead to error particularly as corroboration need not be, and rarely is, direct evidence that the accused committed the crime. While it is true mere opportunity to commit the crime does not provide corroboration, yet, taking the circumstances surrounding the opportunity, they may be of such nature as to lead to an inference that it was probable that advantage would be taken of the opportunity. External evidence concerning the nature of the place and the circumstances under which sexual relations admittedly occurred may provide corroborative evidence, of a circumstantial type, of lack of consent, although the only direct evidence thereof be of the complainant State v John Kalabus & Aita Sanangkepe [1977] PNGLR 87 at p 94.

Evidence of complaints may enhance the reliability of the prosecutrix’s testimony but it does not constitute corroboration unless it comes from an independent source, McCallum v Buibui [1975] PNGLR 439.

Turning to the present case, there is corroboration of the prosecutrix’s evidence through the evidence of Matilda Lahis which was tendered by consent of defence counsel. There is also corroboration from other evidence as will be seen below.

Matilda Lahis’ evidence, which has not been challenged by the defence through cross-examination, must be left intact. She saw the prosecutrix rush in after her husband opened the door, while a man which later turned out to be the accused stood outside. The prosecutrix had dirt on her and looked untidy and told them to ring the police at once. As her husband was ringing the police she took the prosecutrix to the toilet (at request of the prosecutrix) and the prosecutrix told her that the man outside was a rascal who tried to rape her. All these were done and said by the prosecutrix within a matter of minutes after the prosecutrix had rushed into the house. Those actions coupled with the fact that Matilda’s husband rung the police as soon as the prosecutrix told them to ring the police at once is sufficient corroboration of the prosecutrix’s testimony. What the prosecutrix said is also sufficient evidence of fresh complaint and as such goes to strengthening her credibility. If she consented why would she have rushed in and asked Matilda and her husband to ring the police at once? If she consented as claimed by the accused, why would she take Matilda to the bathroom, shut the door and tell her about what had happened? For me to find presence of consent on the basis that the prosecutrix did not actually mention that the accused had raped her but only said that the accused was a rascal who tried to rape her (my underlining) would, in my view, be going to the extreme bearing in mind the circumstances under which the offence is alleged to have been committed. With regard to a prosecutrix’s failure to make a fresh complaint of rape until she was prompted, the Supreme Court said in Bernard Touramasong & Ors v The State [1978] PNGLR 337 at 342:

“This does not concern us unduly. Here was a girl in a strange place. Matilda was older than she. Emma, if she was raped no doubt felt ashamed. It does not surprise us that she did not initiate what subsequently passed between her and Matilda.”

The same could be said of this case. There is therefore sufficient fresh complaint in my view when the prosecutrix told Matilda Lahis and her husband to ring the police at once bearing in mind that the prosecutrix had done what she did (throughout the time she was out there earlier with the four men and subsequently with the accused) because she wanted to get them to a place where she could easily seek help and contact the police.

Her evidence as to lack of consent is also corroborated by the accused’s reply to question 22 and 23 of the record of interview. In his reply to question 22 he said that she forced him to have sexual intercourse with her. How could he claim that from a prosecutrix who is a total stranger to him, and who was with him late at night in the middle of nowhere? Such behaviour could be said to be consistent with that of a well acquainted couple who were “madly in love” so to say. The same remark could be made of his reply to question 23 where he said that she told him to sleep on the grass and she went on top of him. If that is true how was it that she appeared to Matilda Lahis and her husband to be untidy and had dirt on her? I am of the view that the accused was on top of her during intercourse and that he lied to Constable Kilingit in the Record of Interview.

There is also corroborative evidence of a circumstantial type which goes to support the prosecutrix’s evidence of lack of consent. Here we have a prosecutrix who is abducted from her boyfriend very late at night, taken in the accused’s vehicle under a pretext of going to a police station, taken to a secluded spot where help could not easily be forthcoming and then she (prosecutrix) being in fear for her life and personal safety submits to the accused’s demands for intercourse. In Bernard Touramasong & Ors v The State (supra) the events giving rise to the incident complained of occurred over quite a long period of time. The State’s case was that the young prosecutrix, desirous of obtaining a basket, was overpersuaded into accompanying men to a place well out of Rabaul. She did so accompany them. It was quite a long drive. She was provided with a tin of meat of some sort, and had a portion of it, plus some soft drink. At one place she got out of the vehicle when it stopped, then got back in. On the way it was pointed out that the line (clan) of some of the men who accompanied them killed the late District Commissioner Jack Emmanuel. The State case was that these amounted to threats by implication. The team involved finally grew to five men plus the prosecutrix. Four of the men were alleged to have raped the prosecutrix. The fifth men alleged that he had pity on her and did not attempt intercourse. The prosecutrix said that she was tricked, then put in fear and finally raped.

After the acts of intercourse the appellants did not melt into the darkness or hasten from the scene. They with the prosecutrix, went to Raval Village, where some sort of dance or party was in progress. It was open to the paying public. The prosecutrix’s conduct in going to this party was strongly criticized. Prima facie it was strange that a woman who had been raped by four men, a rape that involved tricking early, verbal threats later, then some physical violence, should have attended the function. But one must remember the hour. It was dark. She was far away from her residential college, Rabaul Secretarial College. At the party she met Matilda who detected that something was wrong and when Matilda enquired as to what she was doing there she told her that four (4) men had taken her and had sexual intercourse with her. Matilda then took her to the police station. While moving around in the car before the alleged offence, she asked several times to be taken to Rabaul without success. She would have got out of the car but was frightened they might kill her.

In their Records of Interview the appellants claimed to the police that intercourse was either freely granted or impliedly granted to them by the prosecutrix. They were convicted and appealed against conviction. One of their major arguments was that there was no mention of physical violence or nervous or psychological effects in the medical evidence and as such there was consent. The Supreme Court had this to say at p 341 regarding consent:

“The prosecutrix was not a virgin and was mature, so presumably would have been capable of receiving the male organ without any difficulty under normal conditions. Of course, conditions were not normal if it was rape. However, assuming it was, it certainly was not one of those hideously wild affairs that we have all heard of, where so often, serious physical injury is caused. And we have no doubt that sensible women, seeing their inevitable fate, give in, and relax at the critical moment, thus reducing the risk of injury. This is not to say that they consent. We have all tried cases of rape and carnal knowledge where serious physical and nervous damage resulted. But we have also tried cases where the undoubted victims emerged unscathed, sometimes even when sexually very immature.”

Applying that passage to the present case, there is no doubt that in the circumstances of this case the prosecutrix has been a sensible woman and as she stated in her evidence, she did not want to risk her life by screaming, or running away and therefore at the end of the whole episode, she gave in to the accused and ended up with no physical injuries both to her person as well as to her private parts. That is not to say that she consented.

In the circumstances of this particular case I do not consider the exchange of words about marriage, the exchange of clothes and the accused not escaping but accompanying her to the house at Moitaka as evidence of consent.

The accused has opted to give an unsworn statement from the dock. Such statement not being on oath, he of course could not be cross-examined by the prosecution. His failure to testify does not amount to an admission of guilt. Other factors to be taken into account upon an accused’s failure to testify are specified in Paulus Pawa v the State [1981] PNGLR 498. From that it seems that the failure to testify may strengthen the State’s case by leaving it uncontradicted or unexplained on vital matters. This appears to me to be the case here. While the prosecutrix has in her evidence stated that there were exchange of words about marriage as well as exchange of clothes and then, after intercourse, the accused accompanied her to the house at Moitaka, most of the prosecutrix’s evidence as to what actually took place before and after they arrived at the scene of the offence remains uncontradicted or unexplained by the accused. Even the vital evidence regarding the several times she refused intercourse but he placed her in a “no win” situation such that when she could not convince him to change his mind she submitted to intercourse has not been contradicted or explained by the accused. Consequently I place little weight on his unsworn statement.

The prosecutrix’s evidence to my mind rings loud and true. She was tricked by a group of men, including the accused, when she honestly believed they would take her to the police station where she thought her boyfriend was heading when he took off first at Hohola. But instead she was driven to a secluded spot at Moitaka. After telling her about a pistol while she was among a group of men who were total strangers to her, and at a time when hardly anyone was moving about and she was placed in a situation of peril and fear so she threw in the towel as it were. I consider that she did all she could to make her lack of consent apparent -first during the time all the men were there and subsequently when she was alone with the accused. I commend her for her intelligence and the calm manner in which she handled the whole episode. If not for such calm and intelligent behaviour she could have been pack-raped, injured or even been killed. I do not accept the accused’s explanation to the police through the Record of Interview that she forced him to have sexual intercourse with her.

I am satisfied beyond reasonable doubt not only that the prosecutrix was not consenting to what was happening (being subjected to threats and intimidation late at night by a stranger or strangers - completely without access to friends or people she might trust until she went to Matilda Lahis and her husband at the DPI Station, Moitaka); and that the accused must have been well aware that she was not consenting - that he was forcing his will upon her for his own gratification - using the whole of the circumstances to frighten her into submission to intercourse and thus raping her.

MISTAKE OF FACT

Did the accused have a honest and reasonable but mistaken belief that she was consenting?

The defence has submitted, in light of the evidence regarding the exchange of words about marriage, exchange of clothes with the prosecutrix, the accused’s accompanying the prosecutrix to Matilda Lahis’s house at Moitaka coupled with the evidence that he did not attempt to run away, that he had an honest and reasonable (though it may have been mistaken) belief that she was consenting and as such he is not criminally responsible. Although not referred to by Mr Sakumai, he appears to be making the submission pursuant to s 25 of the Code.

Mistake under the Code is not a defence but a matter which exonerates criminal responsibility, accordingly the prosecution must negative the existence of honest and reasonable belief, R v Philip Boike Ulel (1969) No 533. If there is some evidence of a mistaken belief the onus is on the State to establish beyond reasonable doubt that the accused did not have such a belief, R v Yoka Kiok (1970) No 607.

To absolve the accused from criminal responsibility the belief though mistaken, must be both honest and reasonable. “Honestly held” belief involves a subjective test and “reasonably held” involves an objective test applying the standard of the ordinary man coming from the accused’s environment, R v Yoka Kiok (1970) (Supra).

From the evidence relied on by the defence he may have had an honest belief that she was consenting but from the fact that she was abducted very late at night by him and his friends who were not known to her and then taken to a secluded spot where she was threatened with a pistol even though she did not see it, and then repeatedly placed under a situation where the accused refused to do what she requested unless she submitted to intercourse, I fail to she how the accused’s belief could be said to be reasonable.

As the State has thus discharged its onus of satisfying me beyond reasonable doubt that the accused did not have a reasonable belief that the prosecutrix was consenting to having intercourse with him, it follows that, it has excluded beyond reasonable doubt the existence of an honest and reasonable but mistaken belief that the prosecutrix was so consenting.

As all the elements of the offence charged have been proved beyond reasonable doubt and as the defence under s 25 fails, I find the accused guilty of rape.

Lawyer for the State: Public Prosecutor.

Lawyer for the Accused: Public Solicitor.