State v Sasoropa (No 1) [2004] PGNC 203; N2565 (27 April 2004)

N2565

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 261 of 2004

THE STATE

-V-

GARRY SASOROPA
JOHN AREMEIKO and
MATHEW MELTON
(No. 1)

POPONDETTA: KANDAKASI, J.
2004: 16th, 19th, 20th, 21st, and 27th April

DECISION ON VERDICT

CRIMINAL LAW - Verdict – Gang Rape of girl friend and relative – Issue for trial consent for one and total denial by others - Medical report supporting rape charge – No serious inconsistencies in State’s case – No reason to reject prosecution evidence – Defence evidence not entirely put to prosecution witnesses and illogical accounts – View of scene supporting prosecution’s witnesses account – Prosecution case accepted - Guilty verdict returned – Criminal Code ss.347

Cases cited:
SCR No. 1 OF 1980; Re s. 22A (b) of the Police Offences Act (Papua) [1981] PNGLR 28 at page 34, per Greville Smith J.
The State v.Ben Noel & Ors. (Unreported judgment delivered on 31/05/02) N2253.
The State v. Ben Noel, Philip Noel and Richard Erekue (Unreported judgment delivered on 31/05/02) N2253.
The State v. Emmanuel Bais and Felix Fimberi (Unreported judgment delivered on 11/06/03) N2416.
The State v Tony Pandau Hahuahori (Unreported judgment delivered on 19/02/02) N2185.
The State v. Kevin Anis and Martin Ningigan (Unreported judgment delivered on 07/04/03) N2360.
The State v. Juluis Ombi (Unreported and unnumbered judgment delivered today) CR 342 of 2004.

Counsel:
P. Kaluwin for the State
P. Kumo for the Accused

27th April, 2004

KANDAKASI J: The three of you pleaded not guilty to a charge of rape against a victim (named), on 8th November 2003 at Ahora viallage, here in the Oro Province. Garry Sasoropa, you denied the charge because you claim that you had consensual sexual intercourse with the victim. As for Mathew Melton and John Atemeiko, both of you generally denied committing the offence.

This necessitated a trial, which commenced on Friday 16th and ended with your submissions on 21st April 2003. The State called the victim and two other witnesses in a bid to prove the charge against you. In addition, the State tendered into evidence, your respective records of interview in both the Pisin and English versions as exhibits "A1" and "A2" for Garry Sasoropa,"B1 and B2" for John Atemeiko, and "C1 and "C2" for Mathew Melton and Exhibit "D" was a medical report by Larry Nasa Yakom dated 11th December 2003. In your defence, three of you took the stand and gave sworn evidence.

The prosecution always has the burden to prove beyond any reasonable doubt every element of an offence in all cases. The Supreme Court in SCR No. 1 OF 1980; Re s. 22A (b) of the Police Offences Act (Papua) [1981] PNGLR 28 at p. 34 per Graville Smith J., confirmed this. I quoted the relevant passage and applied it in The State v.Ben Noel & Ors. (Unreported judgment delivered on 31/05/02) N2253. What this means in your case is that, the State had the burden to prove each of the elements of the respective charges against you beyond any reasonable doubt. The question for this Court to resolve then is, has the prosecution proved all of the elements of the charge of rape against the three of you?

The elements that the State was required to prove beyond any reasonable doubt are as set out in s. 347 of Criminal Code in theses terms:

"347. Definition of rape.

(1) A person who sexually penetrates a person without his consent is guilty of a crime of rape.

Penalty: Subject to Subsection (2), imprisonment for 15 years.

(2) Where an offence under Subsection (1) is committed in circumstances of aggravation, the accused is liable, subject to Section 19, to imprisonment for life."

From the language used by Parliament, the following are the elements that make up the offence of rape:

(1) A person who:
(2) Sexually penetrates;
(3) Another person;
(4) Without that person’s consent.

These means, in order to secure a conviction against you, the State was obliged to prove beyond any reasonable doubt each of these elements. A failure to do so, should inevitably result in a dismissal of the charge against you and result in your acquittal. Therefore, it becomes necessary for the Court to consider the evidence the State produced against the three of you first. If that results in a finding that the State has discharged its obligation, it will then become necessary for the Court to consider your evidence in response.

At that stage, it will become a question of which version of the evidence should the Court accept. All of these require a careful consideration of the testimonies of each of the witnesses and testing them amongst others, against logic and commonsense, consistency and the demeanour of the witnesses in the witness box. I now proceed to state and consider each of the witnesses’ evidence, starting with that of the State first.

A. State’s Case

(1) The Victim

The first State witness was the victim. Her testimony is that, in the morning of 8th November 2003, around 7:00am, she went to the village trade store at Ahora village here, in the Oro Province to buy a laundry soap and Omo. On her way back, she met you, Mathew Melton. At that time, you asked her if she would do what you were going to ask her. She said she did not want to do it. You then grabbed her hands and took her into the nearby bush, putting your hands on her mouth to prevent her from shouting as you continued. Soon Garry, you appeared and helped Mathew to take her further into the bush. As you did that, she started to cry and you told her to stop and continued to pull her into the bush.

Whilst in the bush, Mathew you undressed her and Garry had sexual intercourse with her. Once you satisfied yourself, you gave way to Mathew and you took your turn in having sexual intercourse with her. You both had sexual intercourse with her four times. Then John, you appeared and had sexual intercourse with her. Thereafter, the three of you took her to another location and took turns in having another four round each of sexual intercourse with her, starting with John and finishing with Garry. Then you took her to yet another location and again had four rounds each of sexual intercourse with her in the same order or turns. On each of these occasions, she did not consent and as one of you was raping her, the other two held onto her legs. Also throughout these rounds of the rape on her, she was naked and caused to walk naked.

After the third round of raping her, you returned her clothes minus her underwear and bra and left after taking her to the road and leaving her there. Meanwhile she went to her aunt’s house and hid herself out of fear of her father (other evidence shows this reference relates in fact to her uncle) hitting her. As soon as it was nightfall, she came out of her hiding and told her aunt what had happened to her. Her aunt then went and brought her dad (uncle) and sometime later, they took her to the hospital for medical examination. The father (uncle) was angry over what had happened to her.

She said, you are all from the same village, Ahoro. Mathew Melton, you are the victim’s cousin brother while Garry Sasoropa, you were the victim’s boyfriend. You wore no masks or anything like that to make your identification difficult. Similarly, nothing covered her face and eyes to make her identification of the three of you difficult. Further, it was already daybreak with the sun up and that made it easy for the victim to identify you three as her sexual assailants. Given these and the close physical encounter, she demonstrated no difficulty in correctly identifying the three of you in the accused box.

She did not suffer any serious injuries but did suffer scratch injuries to all over her body. A medical report by Larry Nasa Yakom, confirms these and states further that she sustained some injury described as grazed to the lower aspect of he labia minora (vaginal orifice). It found the hymen disturbed by a large male penis. As she was having her menstruation period at the time of the medical examination taking a specimen for presence or not of spermatozoa was not possible.

You all through counsel put a number of things to the victim under cross-examination. Firstly, you suggested that Mathew Melton used to set up meetings and or contacts between Garry Sasoropa and the victim. Secondly, because Garry Sasoropa was her boyfriend, she agreed and did have consensual sexual intercourse with him and only him. Thirdly, her father (uncle) and aunt forced her to give a statement against you three to the police. Fourthly, when Garry Sasoropa was in Correction Service custody, she sent through Penias Sasoropa a face washer, a necklace, two earrings and K20.00 in two K10.00 notes. Fifthly, on one previous occasion, she went to Garry’s house in the night and slept there and that you will call witnesses to confirm that and show that her father found out and got on her.

She denied all of these suggestions. In relation to the third suggestion, she said, after she told her aunt and eventually her dad of what happened to her, the father took her to the police station. I find that if there was any force, it is not force in a way of forcing someone to tell a lie but to encourage someone to tell the truth.

(2) Albert Hungapa

The second State witness was Albert Hungapa. He is the elder brother of the victim’s father and is the one referred to as the father or dad by the victim in her evidence, which is usually the description many people in the country give to paternal uncles.

He says on the day before the incident, his elder brother Gideon Hungapa left the care of the victim and others in his (witness) hands as he left for some other estate. During that night, he was at a coffee night to raise funds for the local school until 11:00pm when he went to the house and slept. Then in the morning of the day of the incident, he confirms that the victim went to the village store after he gave her K10.00. He did not see the victim again until about 6:00pm.

Prior to that, his sister, Joyce Hungapa reported to him of she seeing you three men taking the victim away and possibly raping her and so she was coming to get him. Therefore, he followed her and they tried to trace the track they had taken with Joyce identifying the place where offenders started taking the victim into the bush. Evidence of disturbances of the vegetation and the surrounding environment generally, indicated three possible rape locations as they continued to look for the victim. Their search eventually led them back onto the main road.

At the second location, he found and picked up a bra and underwear with blooded stains. He did not see the victim until late in the even as noted above. At that time, he received the full story including her naming you three men as her assailants. On hearing the story, he was angry over what had happened to the victim. He felt a lot of pain and hurt as the rape took place on the victim, whilst the victim was under his care. He tried to hit her, but did not in fact do that, as he felt sorry for her. He felt he failed in his responsibility especially when she was in his care. His anger was aggravated to some extent in that, the victim had not come out quickly and told him what had happened to her. However, upon seeing the victim, he noticed that she looked weak with blood all around her legs and buttock; he felt sorry for the victim and took her to the hospital.

(3) Joyce Vira Hungapa

The third and final State witness was Joyce Vira Hungapa. She is the victim’s aunty. She recalls being at her house on the day of the alleged offence when the victim walked pass her house trying to return to her (victim’s) block after returning from the trade store. That was early in the morning at 7:00am. Prior to that, she saw the three of you walking towards the main road from the village drunk and under the influence of alcohol, beer and home brew as well.

Thus, when she saw the victim, she stopped her and told her not to walk by herself as it was not safe for her until the place is clear. However, the victim told the witness that it was all right for her to walk to the block by herself. She then saw the victim walked towards the main road. Then out of concern for the victim’s safety after having seen you three men, then as drunkards, she followed the victim to see how she was going. Then she stood and watched as the victim went along.

After the victim had travel a far distance away from where the witness was standing and watching, she saw Mathew approached her and held the victim by her hand and pulled her into the palm block followed by the two of you, Garry and John. Upon seeing that, the witness thought of following the victim but she felt not safe for her so she went to Albert Hungapa’s house and notified him of what was happening.

Then she and Albert walked over to where the spot where you took the victim into the bush. They then started tracing the track going by footprints and disturbances in the vegetation and surrounding environment. The rest of her evidence corroborates the victim and Albert Hungapa’s evidence.

Under cross-examination, you through counsel tried to create some doubt in the witness’s ability to properly stand and see the things she told the Court, she saw. The Court party took a view of the scene. This presented a clear case of the witness being in a position to clearly see you three men walk down to the main road and then later watched the victim go and thereafter, your grabbing and pulling of the victim into the bush. You tried raising some doubt in the witness’ ability to clearly see and witness the event she spoke of due to more people. She however, testified that although there were other people at the relevant times when she saw you, she could clearly see you as the only ones and that she had seen you at the village coffee night.

You continued your line of questioning that Albert and this witness forced the victim to give a statement to the police. The witness maintained that, yes, Albert was angry because of what happened to the victim and more specifically, her failure to report to him quickly but did not force the victim to make up a story. Instead, he encouraged her to tell the police what really happened.

(4) Others

The other State evidence includes your respective records of interview with the police and a medical report on the victim dated 11th December, 2003, by a HEO/OPD, Larry Nasa Yakom, as already noted. Your respective records of interview are not entirely consistent with each other. John, you say you briefly met your co-accused when you send them to buy beer and no more, while Garry says he was on his own and Mathew says he was with the two of you.

B. Assessment of State’s Evidence

I cannot find any trace in the evidence for the State of any serious inconsistency as I did in The State v. Ben Noel, Philip Noel and Richard Erekue (Unreported judgment delivered on 31/05/02) N2253. Similarly, I cannot find anything illogical and or out of touch with commonsense coupled with a demeanor that is reflective of untruthful witnesses. These things do play a key role in determining whether to accept the testimonies of any witness. In The State v. Emmanuel Bais and Felix Fimberi (Unreported judgment delivered on 11/06/03) N2416, I noted the principles as follows:

"A number of factors or principles assist in the task of determining whether or not a witness and his or her evidence should be believed and accepted. One of these principles is that the evidence given must be tested against logic and commonsense. I restated the law in The State v Cosmos Kutau Kitawal & Anor (No 1) (15/05/02) N2266 in these terms:

‘Logic and commonsense does play an important part in either the rejection or otherwise of evidence before a Court of Law and whether or not an accused person should be found guilty. In The State v. Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48, applying a logical and commonsense approach, the National Court found the defendants guilty of murder even when there was no evidence directly showing that the defendants had killed the deceased. The Court proceeded to convict them, when the defendant’s failed to provide a reasonable explanation for the appearance of the badly wounded deceased body in their house. On appeal, the Supreme Court affirmed the National Court’s approach and dismissed the appeal: see Garitau Bonu & Rosanna Bonu v. The State (24/07/97) SC528 and Paulus Pawa v. The State [1981] PNGLR 498 for an earlier authority on point.’
...

The demeanor and or the performance of a witness in the witness box is also a relevant consideration. Numerous cases have been decided upon a consideration and application of this factor. Examples being done are cases like that of The State v. Tauvaru Avaka & Anor (2/11/00) N2024 and Gibson Gunure Ohizave v. The State (26/11/98) SC595."

In the circumstances, I accept all of the State’s witnesses as credible and reliable. Consequently, I accept their evidence. This evidence establishes the essential elements of the charge of a rape against each of you. The witnesses clearly identified each of you as the offenders. The opportunities for your identification were very good. This was a close physical encounter. You wore no masks. The victim, and her witnesses know you well enough as people coming from the same village and even closely related, for Mathew she is your cousin, for John you are her uncle Garry you were her boyfriend. The victim clearly speaks of several acts of non-consensual and repeated sexual intercourses against her by each of you.

Commonsense dictates and is usually the case that, close relatives are and would be slow to accusing one of their own for an offence such as rape, which carries a serious consequence of life imprisonment as its penalty. I witnessed no exceptions in my short experience in cases where close relatives have in fact committed whatever the offence alleged against them. In this case, Mathew, you are the victim’s cousin brother, while John you are an uncle to her and Garry you are her brother-in-law through your elder brother’s marriage to the victim’s bigger sister. Accordingly, she and her relatives as well as your own would not have allowed this matter to come this far if it was not true but it has and this can mean only one thing. You did commit the offence alleged.

At the same time, I appreciate that, you could rightly argue that, as a close relative, you could not and did not in fact commit this offence. If there was no other evidence, this might be a valid argument. However, there is evidence also that, you all took in alcoholic drinks, beer and steam. This could have enabled you to act senselessly as you did. Further, in this circuit alone most of the cases dealt with are sexual offences against younger girls by older close relatives, namely cousin brothers. I therefore find that, in this Province at least based on what I have seen on this circuit, there seem to be a tendency of sexual attacks by males on close and younger female relatives. Hence, I conclude that, in this Province, this is a common offence.

For these reasons, I find that the State has made out a prima facie case against you three men. It is thus necessary to consider whether your evidence casts any serious doubt over the case established against you thus far. This requires a careful examination of the evidence you called in your defence.

C. Defence Case

(1) Garry Sasoropa

Garry Sasoropa, you went into evidence first. Your evidence is that, at the time of the alleged offence, you were at the snooker place. Whilst there, the victim came and wanted to see you and she called out to her cousin brother, Mathew Melton to pass the message. Mathew was aware of your friendship with the victim for three years. She wanted to come and see you but was scared of her father, uncle and aunties who were at the snooker place. Given that, her brother, Mathew took her and left her at your junction for you to meet up with her. The view of the scene confirmed that this junction was in fact in front of your house.

You followed them and met Mathew on the road and he told you that she was left at your junction. Therefore, you continued to walk over to your junction and met her there. It thus seems she waited for you to join her. Whilst you were there, your brother, Soni Sasoropa met both of you on his way to work. According to you, you said he merely said good morning and he went on his way. However, Soni’s evidence is not precisely in these terms. He said he told you to go to the house to avoid people seeing you and her because it was not right for you and her to be seen together as you were his brother and that the victim was his wife’s small sister.

You go onto state that, you and the victim then walked into the oil palm plantation and told stories there. Whilst there, the victim said to you, the longer you stay around, a lot of people will come and would see you and her, so she asked you to quickly have sexual intercourse with her. You obliged her with the requested sexual intercourse once after putting her down on a good place and removing her clothes. You said, because she was your girlfriend and it was a consensual sexual intercourse, you did not spoil her. This is inconsistent with the medical report as already noted above.

After having satisfied yourselves, both of you came onto the road. You left the victim there and you went to your house. Later under cross-examination, you told the Court that, you and the victim were friends for three years. In the first year, you only talked without any sexual contacts. However, in the last two years, you did have sexual intercourse with her. This resulted in the victim getting pregnant and terminating it after two months of pregnancy. You did not tell the police about this in your record of interview. You did not put this part of your evidence to the victim and any of the other State witnesses. Hence, the Court allowed the prosecution to recall the victim to respond to that. She maintained that she has never had any sexual intercourse with you at any time during her friendship with you.

You raised this part of the evidence for the first time. Similarly, you did not raise your claim of the victim wanting to see you and Mathew taking her to your junction in the record of interview and put that to the prosecution witnesses. The law requires defendants to put their case to the prosecution in cross-examination first before going into evidence. A failure to do so renders the evidence as recent inventions and therefore unreliable.

In this regard, I consider what I said in The State v Tony Pandau Hahuahori (Unreported judgment delivered on 19/02/02) N2185, in a case where the defendants failed to put their case to the prosecution in cross-examination and not place their claims in the record of interview relevant. There I said:

"... if indeed, what you say is correct, I do not see what was the reason for you choosing not to place your claims on the record. You could have done that in your record of interview or during the committal hearings or anytime prior to coming into court and give such evidence in court following a rejection of a no case submission. Of course, I note that, whilst you have the right to remain silent and that no negative inference should be drawn from that, as a matter of law, as a matter of fact however, your side of the story should be placed on record at the earliest opportunity. This could have been easily done if indeed what you have just claimed in Court was true.

It is also settled law that a party’s case must in fairness be put to the other side’s witnesses in cross-examination. A failure to do so amounts to a conclusion that any evidence introduced which has not been put to the prosecution as one being invented and therefore unreliable. This is based on what is known as the rule in Browne v Dunn (1893) 6 R 67 (HL). For examples of authorities on this see The State v. Francis Natuwohala Laumadava [1994] PNGLR 29; The State v. Gigere Undamu [1990] PNGLR 151 and The State v. Simon Ganga [1994] PNGLR 323."

I repeated this in part in the subsequent case of The State v. Kevin Anis and Martin Ningigan (Unreported judgment delivered on 07/04/03) N2360. There I said:

"It is also trite law that, in order for a party’s claim to be considered credible, he must in fairness put his case or claim to the others’ witness by way of cross-examination. This is in effect what is meant by a "fair hearing in s. 37 (3) of the Constitution, which is in turn in my view, a codification of the rule in Browne v Dunn (1893) 6 R 67 (HL). Where a party fails to do that, his or her subsequent claim losses credibility and is therefore not reliable."

Further, your evidence contains some illogical and out of commonsense accounts. For example, you said it was the victim’s idea for you and her to be friends even though custom could not permit it. However, as I have just observed in The State v. Juluis Ombi (Unreported and unnumbered judgment delivered today) CR 342 of 2004, "in most of our society, men normally take the lead in boyfriend and girlfriend relationships as well as any sexual relations. In your case, you are quick to blame it on the victim. This is rather illogical and most uncommon." It is more so when considering the fact that the victim was much younger than you were.

An additional factor is that, the viewing of the scene revealed that the snooker house where the coffee night took place was further in from the road. So if indeed the victim, you or Mathew wanted to hide from the victim’s aunt and father (uncle), Mathew could have easily walked her down to the road and leave her somewhere along the road in the nearby bushes hiding if need be. It was not necessary to walk all the way to your junction, which was quite a distance and long walk away. Further, if indeed your brother and other relatives considered it not right for you and the victim to have a relationship, it was necessary to hide from them as well but the evidence is to the contrary. Only drunkards or people out of their minds could have done what you and Mathew did. This therefore confirms or supports the prosecution’s evidence.

Further, you put to the victim under cross-examination that you would call witnesses to confirm that the victim went to your house on one occasion and slept there. This made the father angry on finding it out. You made no mention of that in your evidence. None of the witnesses called for the defence confirm any of this. This was an unfair question put to the witness. It is an established practice that, the defence can put suggestions to the prosecution witnesses’ only matters the defence is able to prove. In other words, the defence cannot put suggestions to the prosecution witnesses under cross-examination suggestions they are not able to prove.

Further, I carefully took note of the demeanour of each of the witnesses as they gave their evidence from the witness box. You failed to give me an impression of a truthful witness, in the way you expressed yourself and your responses to questions put to you. This includes the fact that your father was making obvious signs of approval and disapproval of various parts of your evidence. At one stage, it became so obvious and destructive to the Court proceedings that I considered it necessary to have him locked up.

For these reasons, I do not find you as a credible and reliable witness. I therefore reject your evidence and your claims. This now leads me to consider the next witness and accused Mathew Melton’s account.

(2) Mathew Melton

Mathew Melton, you were the second witness in your defence. You admit to being a cousin brother to the victim. The rest of your evidence corroborates Garry’s evidence particularly in relation to the victim wanting to see Garry and you taking her to Garry’s junction. Hence, the observations I made in relation to Garry’s evidence as to the need to take her all the way to Garry’s junction rather than a few distance away and out of sight for the victim’s relatives apply in your case.

The only additional consideration is the lack of any explanation from you as to why and how you were able to facilitate the friendship and the meeting between Garry and the victim on the day in question. This is particularly important when considering the fact that, the friendship and any sexual relationship between the two of them was against custom and that your relatives were against their friendship.

Your evidence ends with your claim that after having set up Garry and the victim, you went to Napoleon’s house and slept there for the rest of the day. You came to learn of the allegations later. Given the allegations against you, it was necessary to call witnesses to support your claim of sleeping in Napoleon’s house but you did not.

I carefully observed your demeanour in the witness box as you gave your evidence. You failed to impress upon me as a truthful witness, given the way in which you gave your evidence, responses to questions put to you and your conduct generally in the witness box.

Taking all of these, including what I already said about your conduct and the victim identifying you as one of her assailants into account, I do not find you as a truthful and reliable witness. I therefore, also reject your evidence. I now need to consider John Atemeiko’s evidence.

(3) John Atemeiko

John Atemeiko, you were the third witness called for the defence. You admit that the victim is your niece. Your evidence is that, on the morning of the day of the offence, you were at the snooker place with Mathew and Garry. Whilst you were all there, in the earlier part of the night, you sent them to buy beer. However, after that, you do not know what happened to them. The coffee night and dancing had come to a stop and most of the people had left for their respective houses. You stayed there for a while with another person namely, Robrey Asari. You then decided to leave for your house. On your way home, you saw only your cousin brother namely, Pestus Gasaripa along the road. As you passed through the village, you saw other villagers in their respective homes. You then went to your house and slept.

You did not see the victim at the dance place but you did see other people including Joyce Vira Hungapa and Albert Hungapa who were drinking with others at the snooker house. Under cross-examination, you told the Court that you did consume some alcohol during the early part of the night. You said you did not see Garry and Mathew drinking any beer that night. You learnt about the alleged rape when Albert came and told your family about the stories and you were shocked.

Because of your relationship with the victim, I note what I observed in the context of the evidence against Mathew equally applies to your case. In this regard, I note also that, you do not know why the victim called your name as one of her assailants. You also testified that, there is no animosity or anything like that between you and her or your respective families. Added to this is your demeanour, which is similar to your two colleagues. Further, just like Mathew, given the serious allegations against you, it was necessary for you to call witness to confirm your claim of going straight home and sleeping. In these circumstances, I do not find you as a truthful and reliable witness. I therefore also reject your evidence.

(4) Soni Sasoropa

Your fourth witness was Soni Sasoropa. I notice that he was in Court as Garry Sasoropa went into evidence. Therefore, I need to approach his evidence with caution.

Soni’s evidence is that in the morning of 8th November 2003, he came out of his house and onto the road on his way to work. He saw you, Garry his brother and the victim who was his sister in-law standing on the road. He said good morning to the two of them and then told them to go to the house to avoid other people seeing them together, as Garry was his brother and the victim was his sister in-law and that it was not right for them to be together.

He said Garry and the victim were befriending each other as boyfriend and girlfriend. At times, he has seen them in his house as friends normally the victim comes around. This was much to his and the other relatives’ objection and displeasure. Under cross-examination, he told the Court that he was guessing as he suspected them of being friends. Upon re-examination, he said he did not know the meaning of guessing. This is despite having completed grade six. I find this surprising given that he has completed grade six and during his testimony, he gave me the clear impression of understanding some of the difficult English words raised in Court, although he was giving his evidence through an interpreter.

Also under cross-examination, this witness said Garry and the victim were boyfriend and girlfriend for seven (7) years. This is in direct conflict with Garry’s own evidence, which speaks of a three years relationship. Further, this witness did not confirm the suggestion the defence put to the victim under cross-examination that the defence would call witness to testify that the victim spent one night at Garry’s house, which caused her father to be angry. He also did not confirm any knowledge of the matters the next witness was going to adduce in Court, namely the allegation of the victim passing on certain items to Penias to pass on to Garry. This is important because the defence of Garry was and still is the concern of the entire Sasoropa family as evidenced by the active attendance of the father and others.

In these circumstances, I do not find this witness truthful and reliable. If anything, he has given contradicting evidence rather than supporting the defence case. Accordingly, I reject his evidence. This now leaves us to consider the evidence of the last and final defence witness.

(2) Penias Sasoropa

The final witness you called in your defence was Penias Sasoropa. His evidence is that he knew the victim as a sister-in-law because of his brother, Soni’s marriage to the victim’s sister.

He said on 21st January, 2004, the victim came to his block and signalled him to follow her to the junction close to her house where she was waiting. As he approached her, she gave him K20.00 in two ten kina notes, a necklace and a pair of earrings and asked him to deliver them to his brother Garry. He further claimed that she also told him to tell Garry that it was not her wish but her father Albert Hungapa that reported the matter to the Police.

Penias said he then went and told the family members about the items given by the victim and agreed to use them in Court. He also said he consulted a person called Israel who holds himself out as a lawyer, informed Garry about them and put the items away for use in Court. He therefore, put them away with an entry on a yellow piece of paper a list of the items, the date and time. At no stage did he or anybody inform the police about this until the day or eve of the trial. The Court allowed these items in only for identification purposes only and marked as MFI as follows:

1. "A" for necklace
2. "B" for pair of ear rings
3. "C" for K10.00 Notes 2X
4. "D" for piece of paper stating contents, date and time.
   

The Court refused to admit these items into evidence, because it was not satisfied as to the safety and the appropriateness of allowing evidence from the kind of custody from which they came. The Court was also of the view that, these evidence should have been drawn to the attention of the police or the State in sufficient time so that, if it wished, carry out appropriate investigations and if need be, produce evidence in rebuttal. Further, I was not satisfied that the handwriting on the yellow paper was exactly that of the witness, when compared with his handwriting in Court. In these circumstances, and those mentioned below, the Court was of the view that it would be unsafe and most unfair to the State to admit the evidence.

Further, I note that, even though this witness said these, he discussed these facts with his family, Soni Sasoropa did not make any mention of it. In addition, Garry Sasoropa did not say a word about these things, even though under cross-examination, Penias said he informed Garry about these things. Further, I note that the witness gave conflicting evidence about his recording of the times. He said initially he had a watch. Later he changed that to say the battery was flat so he left it at the house.

Furthermore, when the defence cross-examined the victim, there was a specific mention of a face washer or towel. The Court therefore expected this witness to include that on his list of things he claims the victim gave to him. He however, made no mention whatsoever of this towel or face washer. What I said in the context of the other witnesses’ evidence equally applies here.

In addition to the above, I noted carefully his performance in the witness box as were the case with the others. I got the clear impression based on the way he was expressing himself, response to questions and his conduct in relation to this part of the evidence for the defence, that he was not telling the truth. Instead, I got the clear impression that, he had in consultation with his family and an Israel set out to create this part of the story. Given all of these, I do not find this witness truthful and reliable. I therefore also reject his evidence.

In short, I have rejected all of your own and that of your other witnesses’ evidence because they are untruthful and unreliable for the various reasons I have spelt out above. This leaves only the evidence produced by the prosecution. Based on that evidence, I already found that the State established a prima facie case against you. I also find that you have failed to rebut the prima facie case against you. Hence, I am satisfied beyond any reasonable doubt that you committed the repeated acts of rape against the victim as described by her own evidence and supported by that of Albert and Joyce Vira Hungapa. These evidences establish all of the elements of the offence of rape. I find this offence was committed after committing the other offence of abducting the victim from the road. Accordingly, I return a verdict of guilty against each of you on the charge of rape. I order that you be remanded in custody awaiting your sentence.
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Lawyers for the State: Public Prosecutor
Lawyers for the Accused: Public Solicitor