N4084

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1766 OF 2005

THE STATE

V

DOUGLAS JOGIOBA

Buka: Cannings J
2007: 18, 19 September, 24 October

VERDICT

CRIMINAL LAW – rape, Criminal Code, Section 347 – trial – general denial – complainant gave evidence, as did her aunty to whom she complained – lack of medical evidence – credibility of complainant's evidence.

The accused, a male schoolteacher, was indicted on two counts of rape allegedly committed against the complainant, a female student. He pleaded not guilty. It was the State's case that the accused, on the first occasion, penetrated the complainant's vagina with his fingers and, on the second occasion, penetrated her vagina with his fingers and penis; on both occasions without consent. The complainant gave evidence, as did her aunty, who had, in separate proceedings in the District Court, commenced a civil action against the accused over the same facts that are the subject of the criminal trial. For the defence, the accused gave evidence, denying the allegations, as did his wife, who was a teacher at the same school.

Held:

(1) The complainant's evidence was generally credible and was corroborated by the evidence of her aunty, to whom the complainant gave details of the alleged rape incidents.

(2) The accused was not a witness of truth.

(3) The State proved the two elements of the offence of rape in relation to both counts on the indictment.

(4) The accused was convicted of two counts of rape.

Cases cited

The following cases are cited in the judgment:

The State v Alex Matasol Hagali CR No 928 of 1997, 28.09.06
The State v James Yali (2005) N2988
The State v Jimmy Aiyo CR No 147 of 2005, 28.09.06

Abbreviations

The following abbreviations appear in the judgment:
 
CID – Criminal Investigation Division
CR – Criminal
J – Justice
K – kina
N – National Court judgment
No – number
v – versus

TRIAL

This was the trial of an accused charged with two counts of rape.

Counsel

L Rangan, for the State
P Kaluwin, for the accused

24 October, 2007

1. CANNINGS J: Douglas Jogioba, the accused, is a Popondetta man, aged in his early 30s, married to a Bougainvillean woman from Buka Island. In 2004 he and his wife were teachers at Wakunai Primary School in Bougainville.

2. The complainant, "L", was a grade 8 student and the accused was her English teacher. Early in 2005 a complaint was made to the police that the accused raped L in 2004 on the school's premises. A police investigation followed and the accused was charged and committed for trial.

3. He is now before the National Court, indicted on two counts of rape. It is the State's case that the accused, on the first occasion, penetrated the complainant's vagina with his fingers and, on the second occasion, penetrated her vagina with his fingers and penis; and that it was done without her consent on both occasions. The indictment alleges that both incidents occurred "between April and the end of June 2004". He pleaded not guilty.

4. The complainant gave evidence, as did her aunty. The only documentary evidence for the State was the accused's record of interview, in which he flatly denied the allegations, and statements by police investigators involved in the interview. There was no medical evidence.

5. For the defence, both the accused and his wife gave sworn evidence in support of his denial of the charges.

6. Rape is a crime under Section 347(1) of the Criminal Code, consisting of two elements: sexual penetration and lack of consent. Sexual penetration is defined by Section 6 to include amongst other things the introduction to any extent by a person of his fingers and/or penis into the vagina of another person. In view of the accused's denial, the State had to prove the existence of both elements of the offence beyond reasonable doubt, in respect of either or both counts, to sustain a conviction.

THE COMPLAINANT'S EVIDENCE

7. The complainant testified in examination-in-chief that she is now aged 19. She is not going to school anymore. She finished grade 10 last year at Hutjena Secondary School. She is now living at her village, Lontis, in the Haku area of Buka Island. She did grades 1 to 6 at Lontis and grades 7 and 8 at Wakunai. She went to Wakunai to live with her aunty, Elizabeth Hatanu, when she was working at Wakunai health centre. She did grade 7 in 2003 and grade 8 in 2004. In grade 7 her English teacher was Mrs Lynette Jogioba (the accused's wife) and in grade 8 her English teacher was the accused, Mr Douglas Jogioba.

8. An incident occurred in 2004. Mr Jogioba asked her to see him after school, around 3.00 pm. She went to his office at the appointed time to see him. He asked her if she could stay with him. She said that she did not want to but he said that she should prepare herself. He locked the door and went away, leaving her alone in the office. He gave her a science book and told her to study the parts on the human reproductive system. She did not run away as he had locked the door.

9. When he came back he told her to take her clothes off. She said that she did not want to do that. But he put her on the table and took her panties off. He pushed his pointer finger and middle finger into her vagina. He told her he wanted her to know the names of pieces of human anatomy. He asked her to tell him what part of the body his fingers were in and she said "vagina". His fingers would not go right in initially as he was using two fingers. But he eventually forced them inside. She felt pain and bled.

10. After he took his fingers out he told her to put her panties back on. He asked her to masturbate him and he ejaculated on to the floor. He wanted her to see his sperm with her own eyes so she could call it by name. He told her that it would help her prepare for her exams on various topics, in particular the human reproductive system. He asked her to study it, in particular, focusing on the male and female parts. He put her blood and his sperm into a waste bin.

11. Asked by the prosecutor if she could remember the month in which this first incident happened, she replied, initially, that it was in November, in the fourth week of the third term.

12. She was scared and she asked him whether she would get pregnant. He told her no, because he knows about such things. That was the first time anybody had ever pushed their fingers into her vagina. She did not report this incident to anyone at first, as she was afraid that people would know about what happened and she was embarrassed. She did not tell her aunty as she was afraid that she would get cross with her.

13. Asked again by the prosecutor about the month in which the incident happened, she said it could have been October. Asked whether it was before or after Easter, she said that she did not recall. She then said that she was guessing it was October as he told her that he was preparing her for her exams, which were in November.

14. He called her into his office on three occasions. Mr Jogioba was her class teacher and patron. The second occasion was during the same week as the first occasion. He whispered to her during an English period that he wanted to see her after class. She went to his office and he told her to come back at 4.00 pm. She went back at 4.00 pm. Asked why she obeyed him when he had already done something bad to her, she said that she did not think that he would do it again. She thought that he was going to give her some school work.

15. He told her to take her clothes off. He left her and went outside, telling her to prepare herself. He came back and saw that she had not taken off her clothes so he forced her clothes off. Then he said that he would put into practice what was in the books and that they would be together. He told her not to be scared. He wanted to help her learn about these things as they would come up in the exams.

16. He told her to masturbate him, and when he was about to ejaculate he laid her down on the table and pushed his penis inside. He told her to call its name in English, which she did. He asked her to name the part of the body his penis was inside, which she did. He pulled his penis out and ejaculated onto the floor. He asked her to call the name of the white substance, which she did. He asked her to get up, put on her clothes and go outside, which she did. Then he left her and she went back to the house.

17. His penis would not go all the way in at first but he forced it and it went all the way in. It was her first time that a penis had been inside her vagina. He pushed his fingers in first on that occasion. He did that just before he pushed his penis inside. She felt a lot of pain when he put his fingers in, and bled.

18. She did not tell anyone about this incident. She was still afraid and he had told her that he was preparing her for the exams. She did not understand what he was doing.

19. He did the same thing on a third occasion, which was in the same term in 2004. Again it was after an English period. She went to his office and he told her to prepare herself. She cried. She did not want to do it again. She had felt pain before. As she would not stop crying he told one of her classmates, Pauline, to come and take her home. Pauline took her to Pauline's house. She had a meal there and went back to the classroom. Mr Jogioba told Pauline that he had been talking to her (the complainant) about her marks and that is why she got upset. But he had not talked to her about her marks. She did not tell Pauline the real reason she was crying.

20. These matters were eventually reported to the police as, after she was crying, other students were talking about it. She eventually told the story to her aunty, Elizabeth.

21. In cross-examination the complainant said that she is now six months pregnant, 19 years old and married. She was aged 16 and in grade 8 when the incidents occurred at Wakunai. She did not understand what sex was when the incidents happened but she understood it was not nice.

22. She did not report the incidents even though she understood that it was not right. She did not tell her aunty until she was in grade 9 in 2005.

23. The defence counsel, Mr Kaluwin, asked her about the number of female students who had graduated from Wakunai after doing grade 8 in 2004. She said that she was the only female student to graduate and the parents of other female students were not happy about that, as she was not from Wakunai, she was from Haku. Her classmate Pauline was not selected to go on to grade 9. Pauline's uncle had an argument with Mr Jogioba during the selection period.

24. She agreed that Pauline's uncle had forced her aunty to ask her (the complainant) why she had been crying.

25. Asked about the District Court case her aunty had commenced against Mr Jogioba, the complainant replied that she did not know anything about that. Asked if it were true that her aunty had forced her to come and tell this story to the court so she could get K5,000.00 out of Mr Jogioba, the complainant replied 'yes'.

26. Mr Kaluwin asked the complainant about the statement that she had made to the police. She said that she had told the police everything and signed the statement. When it was pointed out to her that in her police statement she said that the incidents happened between May and July, she conceded that she had changed her story when giving evidence.

27. After an adjournment, however, she said that she had not changed the story. The incidents must have happened in April. When it was pointed out to her that her exams were at the end of the year and that she had testified that she was getting ready for her exams when the incidents happened she conceded that she was not sure about the month in which the incidents happened.

28. Pressed again on whether she had been told to come to the court and tell these stories, there was no response.

29. She did not think about telling other teachers about what had happened to her. She did not want to tell her best friend about it either. She knew that the things that happened to her were bad things. She was afraid and ashamed. Once she went back to Haku she no longer felt ashamed. She did not feel free in Wakunai. She only told her aunty in Haku. She was afraid that she would get cross and hit her. She had studied the human reproductive system in grade 8 and she knew what sex was about.

30. In re-examination the complainant said that nobody told her to come to the court and tell these stories. On the third occasion it happened, it was towards the end of the year, in the third term.

EVIDENCE OF THE COMPLAINANT'S AUNTY

31. Elizabeth Hatanu is a community health worker at the Lontis aid post. She started to look after the complainant when she was in grade 6 as her sister had plenty of children to look after. The complainant was born on 5 March 1988. She regards the complainant as her daughter.

32. Elizabeth said that she first got to know about what had happened to the complainant around Christmas 2004. She was on leave and stories were leaking out amongst the students at Wakunai. 

33. She heard about the incident that took place in Douglas Jogioba's office, when the complainant was crying. She asked her why she was crying in the teacher's office. She brought her to the village to ask her those questions. The complainant was by that stage at Hutjena High School. It was the beginning of 2005.

34. The complainant told her what had happened, so she took her to a trauma counsellor at Hahela and later to Buka Police Station. Elizabeth told the counsellor that the complainant had been disturbed by what had happened. She felt it necessary to take her to the counsellor to prepare her to go on with her schooling. The counsellor said that the education people don't usually do much about such cases so they should report it to the police.

35. Elizabeth did not arrange a medical examination of the complainant as the incident had happened a long time beforehand. The trauma counsellor came down with them to the police station.

36. In cross-examination Elizabeth said that there were many stories circulating not only about the complainant but about other students. When a new headmaster went to Wakunai Primary the matter was reported to him and the complainant's name was mentioned. There was another student, Juanita, who also blamed Douglas Jogioba. The complainant was the only female student to go forward into grade 9 from Wakunai Primary.

37. She first heard the general stories around Christmas 2004 but it was not until school had started in 2005 that she got the full details. She went to Hutjena, got the complainant, took her back to the village and interviewed her there. She did not get cross with her as she wanted her to tell her the truth about what happened. It was only the two of them who spoke about it. The complainant was silent in the beginning but then she started to answer Elizabeth's questions. Elizabeth particularly wanted to know why she was crying at Douglas Jogioba's office. She did not ask her if it was her first time to have sex.

38. When they went to the police station Elizabeth requested the police to arrange a medical examination but the police told her that it was too long after the incidents had happened. After getting that advice she thought it would not be much use so it was not done.

39. She asked the complainant why she had not reported the incident before and she replied that she was ashamed and afraid to tell her what had happened.

40. Elizabeth agreed that she had taken out a District Court case against Douglas Jogioba and was claiming compensation of K5,000.00. She regards the complainant as her daughter and believes that she has the right to bring the matter to court. Asked who would get the K5,000.00 if she won the case, Elizabeth replied that that was up to her to decide. She told the complainant's biological parents about the court case and they accept it as the complainant is like her own daughter. The other parents at Wakunai have discussed the case with her. They support the case. The complaint was filed on 7 August 2007. It was admitted into evidence. Elizabeth Hatanu of Lontis village is named as the complainant. The complaint is against Douglas Jogioba and states:

For that you are liable to the complainant for having, molested and sexually penetrated one Miss [L] who was then, under the complainant's care, custody, and upbringing, as her aunty, on several occasions between the months of May and July 2004. At the material time, Miss [L] was then, a student at Wakunai Primary School, doing her grade 8 and the defendant, was her teacher at the said school. Consequently, Miss [L] lost her virginity and further suffered shame, pain and humiliation.

The complainant being the immediate aunty has suffered and therefore, on behalf of herself and Miss [L] claim:-

1.	The sum of five thousand Kina (K5,000.00) as compensation.

2.	Costs of the proceedings.

41. Asked whether she had told the complainant to tell her story in a way that supported the District Court case, Elizabeth said that she did not discuss the evidence with her. The complainant knows her own story and does not have to be told what to say.

42. Other reports have been made concerning other female students but only the complainant's case has proceeded this far. She never got angry with the complainant but she was upset when she heard about what had happened at Wakunai. It has disturbed her in her work.

DOCUMENTARY EVIDENCE FOR THE STATE

43. There were only three pieces of documentary evidence tendered by the State: the record of interview, dated 31 March 2005, and statements by the police investigators who conducted the interview.

44. In the interview it was put to the accused that the incident happened between May and June 2004 in week 4 of term 3. He denied all the allegations.

45. There was no medical evidence.

THE ACCUSED'S EVIDENCE

46. In examination-in-chief Douglas Jogioba said that he is no longer employed as a schoolteacher. His wife, Lynette Jogioba, is from Lemanmanu and is related to the complainant as Elizabeth's husband is his wife's cousin.

47. The complainant comes from a broken family. He used to talk to her about family life and school matters on a confidential basis. He sometimes talked to her in the staff room where his office was located. On one occasion she reacted emotionally. She cried. He understood why she was crying so he got another student, Pauline, to comfort her. He did not sexually touch her. He did not touch her vagina with his fingers and he has never had sex with her.

48. At the end of 2004, soon after the graduation, parents were complaining about the results as the complainant was the only female student selected to go on to grade 9. On that evening he was assaulted in his house at Wakunai by Pauline's uncle. Pauline had not secured enough marks to graduate.

49. The accused said that he was arrested around March 2005 and soon found out that Pauline was, in fact, doing grade 9. He has not resumed work since he was arrested.

50. Elizabeth and her husband confronted him about the allegations when he was at the Education Office at Buka in early 2005. They accused him of sexually abusing their daughter.

51. Other complaints were also made about him, about 10 to 15 altogether. The police, however, have charged him over just one of them: the present case. The education Department has never charged him over any of these allegations.

52. In cross-examination the accused said he could not recall the month of the incident when he had taken the complainant into the staff room. He brought Pauline to the staff room after the complainant started crying.

53. He believed that the complainant herself did not create the allegations. It was other people who made up the stories. It all happened because some of the parents of children who did not go to high school had a problem with him at the end of 2004. That is the sole reason they got angry with him. He believes that Pauline's uncle was the one who created the allegations. Other parents wanted to find ways to put their children to high school.

54. He believes that the complainant's aunty, Elizabeth, had told the complainant to tell the story to the court so that she could get some kind of compensation from him. He had never had any difficulties with Elizabeth before this. He never had any difficulties with Pauline's uncle until the end of 2004.

55. In re-examination the accused said that he knew Elizabeth very well. She is like an in-law to him. They visit each other's house and share their problems. Elizabeth used to share her problems with himself and his wife. Problems with Elizabeth only arose after the examinations in 2004.
 
EVIDENCE BY THE ACCUSED'S WIFE

56. Lynette Jogioba said in examination-in-chief that the complainant is her brother's niece. Elizabeth is her sister-in-law. The complainant was her student in 2003. The complainant came from a broken marriage and she used to counsel the complainant on many occasions. The complainant had a number of problems in 2004 and would often discuss them with her.

57. She is still happily married to her husband despite the allegations. She does not believe that the allegations are true. There were a number of other complaints made against her husband but they only arose in late 2004 after the graduation and after selection of students for high school.

58. In cross-examination Lynette said that she and Elizabeth were happy that the complainant was going on to grade 9. But Elizabeth bore grudges against her over family related matters. She has no differences with the complainant. She believes that other parents made up the stories about her husband. She trusts him, they know each other back to front. It happens like that when people become married, when two become one. She does not believe he has been playing around behind her back. The allegations only arose because of the parents. Their daughters did not go on to high school and they had to find someone to blame.

THE ISSUES IN DETAIL

59. The nature of the evidence and submissions of counsel give rise to these issues:

1.	Was the complainant's evidence credible?

2.	Was the complainant's aunty's evidence credible?

3.	Are there gaps in the evidence that give rise to doubt about the State's case?

4.	Was the accused's evidence credible?

5.	Was the evidence of the accused's wife credible?

60. In light of the answers to those questions, I will address the critical issue:

6.	Has the State proven that the accused sexually penetrated the complainant, without her consent?

1 WAS THE COMPLAINANT'S EVIDENCE CREDIBLE?

61. I cannot agree with the defence counsel's submission that the complainant's demeanour in the witness box made her an obviously unreliable witness. He pointed out that there were long pauses between questions and answers. He argued that this was not because she did not understand the questions as she was obviously an intelligent young woman but because she was pretending that she did not understand questions, particularly the difficult ones.

62. The complainant was asked very personal questions and asked to give graphic details of sexual incidents. A young woman in that position, whether telling the truth or making things up, would appear to be embarrassed or confused about questions. She was not an obviously unreliable witness.

63. On the other hand she gave inconsistent evidence which was ultimately proven to be very unreliable, about when the incidents allegedly happened. She started off by saying confidently that it was in November but when it was pointed out to her that that was different from the evidence that she had given to the police she changed her evidence. In fact she changed it at least three times. The failure to be able to recall when such traumatic events happened and being able to relate them to significant events such as school examinations casts a shadow over the reliability of her evidence.

64. An intriguing aspect of her evidence is that she said that after the first incident happened, the second incident followed in the same week. Given the pain and trauma associated with the first incident – if it actually happened as she described it – why would she willingly return to the same scene when asked to do so by the same teacher? Then she said that there was a third incident. Again she responded to the teacher's request to go back to his office after school. Why would she go back a third time, if she had been the victim of rape? I do not consider that the complainant's apparent willingness to be involved in the second and third incidents was satisfactorily explained by the prosecutor.

65. Despite the difficulties in accepting all of her evidence, especially the second and third incidents, there are also difficulties in rejecting all of her evidence. She gave graphic details of being sexually penetrated on the first two occasions; and she gave those details in a way that suggests something of a sexual nature happened on both occasions.

66. I conclude that, subject to the reservations expressed, the complainant's evidence was generally credible. 

2 WAS THE COMPLAINANT'S AUNTY'S EVIDENCE CREDIBLE?

67. The demeanour of Elizabeth in the witness box put her evidence, on an initial assessment, in the same category as the complainant's evidence. It was of medium credibility. She was neither an obviously unreliable witness nor a witness obviously telling the truth.

68. One factor which the court cannot ignore in making an assessment of her evidence is that she has a vested interest in the outcome of the trial arising from the civil action she has commenced against the accused. The result of the civil action does not, as a matter of law, turn on the result of this trial. The civil action is based on a lower standard of proof (the balance of probabilities). It is possible that the accused, if acquitted of the criminal charges, can be found liable according to the civil standard of proof for what he has done against the complainant. However, it was telling that in cross-examination Elizabeth said that she would be the one who decided who would get any money derived from the civil proceedings. She clearly has a vested interest in the outcome of the trial and this means that the court has to treat her evidence with caution. Another thing is that the civil action was commenced only a month before the start of this trial. An inference can be drawn from that, that perhaps if the accused had been willing to pay compensation this trial might not have proceeded. I am not, however, in a position to make a finding to that effect. 

69. Despite the caution with which I treat her evidence, Elizabeth Hatanu's evidence was generally credible. 

3 ARE THERE GAPS IN THE EVIDENCE THAT GIVE RISE TO DOUBT ABOUT ACCEPTANCE OF THE COMPLAINANT'S EVIDENCE?

70. There is no evidence of a recent complaint. Neither the complainant nor anyone else made a complaint to the police, the hospital or anyone else soon after the alleged rapes occurred in 2004. There is no independent evidence that the complainant was physically or emotionally distressed at that time or that there were any telltale signs of rape apparent then.

71. The only circumstantial evidence that corroborated the complainant's evidence was Elizabeth's account of what the complainant told her and what she, Elizabeth, did about it. 

72. I am mindful of Section 229H of the Criminal Code (corroboration not required) which states:

On a charge of an offence against any provision of this Division, [Division V.7, (sexual offences and abduction)] a person may be found guilty on the uncorroborated testimony of one witness, and a Judge shall not instruct himself that it is unsafe to find the accused guilty in the absence of corroboration. [Emphasis added.]
 
73. I am therefore not required and not allowed to instruct myself that it is unsafe to find the accused guilty in the absence of corroboration. I am not giving myself such a warning but pointing out that in this particular case, corroboration was desirable. The complainant's friend, Pauline, should have been called to give evidence about the complainant's condition following the third incident. The trauma counsellor who, Elizabeth said, the complainant was taken to, should have been called to give evidence. The shortage of corroboration means that there are gaps in the evidence, giving rise to some doubt about acceptance of the complainant's evidence.

4 WAS THE ACCUSED'S EVIDENCE CREDIBLE?

74. His demeanour in the witness box was such that his evidence was of medium to low credibility. He stuck to the story that he told the police: nothing happened. However, his candid admission to 10 to 15 other complaints being made about his conduct regarding female students suggests that there must have been some substance behind the complaints. How could so many complaints be made over nothing at all? It is hard to believe that all such complaints would be invented simply because only one female student at the school in which he was teaching was able to graduate to high school.

75. The accused's outright denial of any sexual contact with the complainant was therefore difficult to accept. He gave the impression of not being a witness of truth. His evidence was not credible. 

5 WAS THE EVIDENCE OF THE ACCUSED'S WIFE CREDIBLE?

76. I consider that Lynette Jogioba was the most impressive witness. She trusts her husband and still loves him despite everything that has happened. However, it must be said that her evidence was of little or no probative value. 

6 HAS THE STATE PROVEN THAT THE ACCUSED SEXUALLY PENETRATED THE COMPLAINANT, WITHOUT HER CONSENT?

77. As I pointed out in The State v James Yali (2005) N2988, in a rape case it is not a simple matter of deciding who to believe. An accused cannot be convicted only on the basis of suspicion or belief on the part of the tribunal of fact (the court) that there was sexual penetration without consent. (Also see The State v Alex Matasol Hagali CR No 928 of 1997, 28.09.06 and The State v Jimmy Aiyo CR No 147 of 2005, 28.09.06.)

78. The court's task is, rather, to determine, having weighed all the evidence and considered that there are reasonable grounds for believing the complainant's evidence, whether it is satisfied to the required criminal standard of proof – beyond reasonable doubt – that the accused sexually penetrated the complainant and did so without her consent.

79. Here, there are two incidents that allegedly took place, that the State says amount to rape. I need to consider each one separately.

Count No 1 

80. This alleges sexual penetration constituted by the accused inserting his fingers into the complainant's vagina, without consent. 

81. Despite the reservations I have expressed about accepting the complainant's evidence – particularly due to her inability to recall when the incident took place – the graphic detail she gave of the incident, her demeanour in the witness box and the general credibility of her evidence have caused me to believe her version of events. Elizabeth's evidence, though I have treated it with caution, corroborates what the complainant said. Though there were gaps in the evidence, the accused was not a very credible witness. Given the number of complaints that he has faced, the reasonable inference is that there was some substance in them. The State has proven beyond reasonable doubt that he sexually penetrated her in the manner alleged.

82. Did she consent? The evidence suggests that she did not physically resist. However, lack of consent does not have to be signalled through physical resistance. Under Section 347A(1) of the Criminal Code, consent means free and voluntary agreement. Under Section 347A(2)(g) and (i) of the Criminal Code, circumstances in which a person does not consent to penetration include, where:

•	the complainant is mistaken about the sexual nature of the act; and

•	the accused induced the complainant to engage in the activity by abusing a position of trust, authority or power.

83. The State has proven that both of those circumstances applied. The evidence is that the complainant, 16 years old at the time, did not understand what sex was. The accused, being her teacher, was in a position of trust, authority and power. The special nature of the teacher-pupil relationship is recognised by Section 6A(2)(d) of the Criminal Code. It is a relationship of trust and authority. The accused took advantage of a young, naïve girl who was in his care. He abused his positions of trust and authority by penetrating her vagina with his fingers and getting her to name parts of his body and her body on the pretext that he was educating her about the human reproductive system. The tacit consent that he obtained was not real. She did not consent. 

84. The State has proven the elements of count 1 on the indictment beyond reasonable doubt and the accused is guilty of rape. 

Count No 2 

85. This alleges sexual penetration constituted by the accused pushing his fingers and his penis into the complainant's vagina, without consent. 

86. Here, I have the same reservations, expressed above, about accepting the complainant's evidence. However, she gave such graphic evidence of this second incident it is difficult to believe that it is a made up story. Given my assessment of the complainant's demeanour in the witness box and the general credibility of her evidence, I believe her version of events. Elizabeth's evidence, though I have treated it with caution, corroborates what the complainant said. I again take cognisance of the gaps in the evidence. However, I revert to my assessment of the credibility of the accused's evidence. He gave the impression of not being truthful. Given the number of complaints that he has faced, the reasonable inference is that there was some substance in them. The State has proven beyond reasonable doubt that he sexually penetrated the complainant in the manner alleged.

87. Did she consent? There is an argument to say that she did. I have already found that she did not consent to the first instance of penetration (in count 1). But the conclusion on this element in count 2 does not have to be the same. This was a different incident. I accept the complainant's evidence that it was just a few days after the first incident. If the first incident caused her pain and fear, why go back to the same place and see the same person who had caused that bad experience? Was she exploring her sexuality on a voluntary basis? Was she curious? Did she actually enjoy the first experience? Whatever the answer to the last three questions, I consider that the apparent consent that the accused engineered was not real.

88. At the time of the second incident the complainant was still a 16-year-old girl and susceptible to manipulation by a person, such as the accused, in a position of trust and authority over her. Her evidence, which I accept, is that during the second incident the accused got her to call out names such as 'penis', 'vagina' and 'sperm'. He was again taking advantage of her sexual naivety, abusing his position of trust, authority and power and thereby inducing her to have sex with him. This was not free and voluntary agreement to have sex. She did not consent. 

89. The State has proven the elements of count 2 on the indictment beyond reasonable doubt and the accused is guilty of rape. 

VERDICT

90. The accused, Douglas Jogioba, is found guilty of two counts of rape, as charged.

Verdict accordingly.

____________________________
Public prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused