State v Madi [2004] PGNC 156; N2619 (17 June 2004)

N2619

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 884 of 2001

THE STATE

v.

THOMAS MADI

Kimbe: Sevua, J
9th & 17th June 2004

CRIMINAL LAW – Particular offences – Rape - Consent – Over view of case to assess issue of consent – Victim alone with accused – Accused refused to drop her off – Accused diverted vehicle to another direction instead of victim’s village – Accused’s request for sexual intercourse refused – Victim taken to secluded location – Sexual intercourse took place as darkness fell – Whether these circumstance enable Court to conclude that victim consented.

No cases cited in the judgment.

Counsel:
F. Popeu for State
O. Oiveka for Accused

17th June 2004

SEVUA, J: The accused pleaded not guilty to a charge that he raped one WP on 2nd May 2001 at Hoskins, in Papua New Guinea.

The State alleges that on 2nd May 2001, the accused picked up the victim and another female student MM who were students of Hoskins Secondary School outside the school whilst en route to Kavutu village in Hoskins. After the accused dropped off passengers at Kavutu, he turned around and travelled with the two students towards Kimbe. At Buluma, between Kimbe and Hoskins, the accused dropped the other female student, MM off whilst he and the victim drove on towards Bolavolo village, where the victim is from. At the intersection of Kimbe-Hoskins-Bialla Roads, the accused turned towards Bialla, however took another road leading back to Buluma village and stopped at an isolated location where he alighted and walked over to the other side of the vehicle where the victim sat and forcefully removed her clothes and raped her. By this time it was getting dark so the accused drove the victim to Bolavolo village however, on the way, the victim jumped out of the vehicle and ran away to the village.

The victim gave sworn evidence in a very embarrassed and shameful manner, especially when it came to the part where the victim said the accused was touching her vagina and had actually had sexual intercourse with her. She was unable to say "vagina" and found it very difficult to give evidence at certain stages of her evidence as she hung her head in shame and could not get words out of her mouth. She had great difficulty in talking at times and she would hang her head in shame and took time before she would say something.

Her evidence is that she is from Bolavolo village, Hoskins, and was 18 years old doing Grade 10 at Hoskins Secondary School at the time of this offence in 2001. She and the other female colleague were standing outside the school on the afternoon waiting to catch a PMV home when the accused drove the community vehicle along the main highway towards Hoskins Station and stopped and told them that he would pick them up on his way back. However, he turned around and picked them up and drove towards Hoskins Station. He stopped at Hoskins Station where he bought some biscuits for them. They continued to Kavutu village where they turned around and headed back towards Kimbe. At Buluma, they stopped and the other female student got off. The accused and the victim continued towards Bolavolo village. On their way the accused told the victim that they would take the Buvussi Highway as he had to tell her parents that he was dropping off other students as well.

However at Kavui, Section 10, they stopped and the accused told the victim they would kiss, but she refused so the accused drove on further then he stopped the vehicle again and this time the accused told the victim he wanted to touch her vagina. He then pushed his hands into her vagina. After touching the victim’s vagina, the accused came out of the vehicle, went to where the victim sat and then removed her shorts and pants and removed his trousers and then went on top of the victim and "he raped me". She said she did not consent to sexual intercourse. By this time it was getting dark so he put on his clothes and told the victim to put her clothes on then they left that location en route to Bolavolo village. She refused suggestions that she consented to sex.

The victim and the accused are not strangers as they knew each other. At the time of the incident, the victim knew the accused was married and knew his wife. The victim was not the accused’s girl friend. When the accused suggested that they go to Bolavolo via Buvussi, the victim refused and told him to drop her off at her house; however the accused refused and said they would go to Buvussi. At the place where the act of sexual intercourse took place, there was no house and no one lived nearby.

The evidence of Theodore Pagara corroborated the victim’s evidence, although this is not relevant as the issue is consent. Nevertheless, his evidence is also material as it relates to the condition and appearance of the victim at the time she arrived at home. He said she was upset and crying and said Thomas had "raped" her.

The accused also gave evidence on oath. He said as he was driving to Kavutu, he heard voices called out to him opposite the Hoskins High School. He stopped and saw the victim with another girl standing on the road side. He called out to them and said the vehicle was full so he would drop off passengers at Siki Road then come and pick them later. However he turned around and picked them up so they drove towards Hoskins Station. They went to the school at the Station and the victim asked him for money so he gave her K20.00 to buy their biscuits and drinks. They drove to Kavutu village and dropped some passengers then turned back and travelled towards Buluma. At Buluma, the other girl got off then only the accused and the victim drove on.

Near the Buvussi junction, the accused stopped the vehicle near the main road and asked the victim if they could have sex. The victim said it was alright however there might be bad guys around there so they should go to a secluded spot to have sex. He then kissed her and pushed his hand into her vagina before they drove off. The victim said she was afraid of being observed so they drove to a secluded spot at Kavui Section 10. The accused stopped the vehicle and undressed while the victim undressed herself. He then spread her legs apart and had sex with her. He did not threaten her in anyway. They both got dressed then left that area as it was already dark. The victim said she should be dropped off on the main road so she could walk to her house, but the accused insisted on driving her to her house because it was already dark.

As they were approaching a curve on the road to Bolavolo village they were surprised to see the victim’s elder brother approaching with a bush knife and stones and threw a stone at the lights then another stone on the bumper before he swung the bush knife at the door on the accused’s side and smashed the windscreen making him ducked the blow. They drove on a little further then the victim got off as they slowed down on some pot holes. The accused then drove to Kapore Police Station and reported the incident then went home.

In essence that is all the evidence. There is no dispute that sexual intercourse did take place. The accused admitted that, but said it was a consensual intercourse since the victim was her girlfriend, although they had never had sex prior to this incident. Since the issue is one of consent, the demeanour and credibility of each witness is important in determining whose evidence is credible and who to believe.

Having observed the demeanour of both the victim and accused on oath, I will not hesitate to say that I do not believe the evidence of the accused. He is much much older than the victim, perhaps old enough to be her father. Yet he seemed to say that the accused was consenting to sexual intercourse. As far as the accused was concerned, it was the victim who stopped him near Hoskins Secondary School and asked for a lift. It was the victim who asked him for money to buy lunch at Hoskins Station. It was her who willingly wanted sex at the turn off at Buvussi but because it was near the main road she was afraid of being caught.

I find all these things very strange when between Kavutu and Buluma, the accused and the victim never discussed sex, until they were turning off to Buvussi and suddenly, the victim was consenting to sexual intercourse. According to the accused, they were boy/girl friend although they have never had sex before. There is no evidence of how long they had had this relationship, and there is no evidence that thy have been together in the car or at other places any time before this incident. All of a sudden, at a lonely or isolated location at Kavui Section 10 where no one lives, and at night, the victim is consenting to sexual intercourse. Under such circumstances, I do not believe the accused’s evidence at all. I find that he was a good liar and did not tell the truth. He lied on oath and this was evident from his facial expressions and the fact that in some questions he evaded the correct answers.

As I alluded to earlier, the accused is old enough to be the father of the victim. He was a mature adult and he try to have the Court believe that this 18 year old Grade 10 student was seducing him into a sexual relationship. What a lot of garbage! I do not believe the evidence of the accused and in fact, I find him to be a liar on oath. He wanted the Court to believe that this young virgin was consenting to sex when he had never discussed sex with the victim until they were alone in a secluded spot and at night with no one around.

Where the evidence by the victim differed to that of the accused, I prefer that of the victim. I observed her to be a witness of truth, soft spoken and quiet, perhaps, because she was not comfortable telling a Judge, lawyers and a packed court room what the accused did to her. And this was quite evident when she had to pause for long periods of time, and looked shamefully down before answering questions from the prosecuting counsel leading her in examination in chief.

After a careful consideration of the evidence of both the victim and the accused, I was not impressed at all with the accused. He did not impress me at all as a truthful witness and I reject his evidence of consent outright. Having observed his demeanour and credibility, I am of the view that he was not telling the truth. I find that under the circumstances as revealed by the evidence, the victim could not have consented to sexual intercourse.

I therefore find that the accused had sexual intercourse with the victim on 2nd May 2001 without her consent.

Accordingly, I am satisfied beyond reasonable doubt that the accused did rape the victim, and I find him guilty of rape and convict him.

Verdict: Guilty

Lawyer for State : Public Prosecutor
Lawyer for Accused : Public Solicitor