State v Molmol [2007] PGNC 184; N4979 (18 September 2007)

N4979

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1065 0F 2004

THE STATE

V

LAHIS MOLMOL & RIAMA MOLMOL

Buka: Cannings J
2007: 7, 8, 11, 12, 18 September

CRIMINAL LAW – rape, Criminal Code, Section 347 – trial – whether the complainant consented to sex.

Two men were charged with the rape of a young woman. The State relied on the oral testimony of the complainant and a police investigator, and seven exhibits. One of the accused gave sworn evidence that he and others had consensual sex with the complainant in the bush after a dance. The key issue is consent.

Held:

(1) The complainant was not a reliable witness as she gave inconsistent evidence and her demeanour in the witness box was not of someone who was obviously telling the truth.

(2) The State failed to prove beyond reasonable doubt that she did not consent to having sex with the two co-accused. Both accused were acquitted.

Cases cited

The following cases are cited in the judgment:

The State v James Yali (2005) N2988

The State v Alex Matasol Hagali CR No 928 of 1997, 28.09.06

The State v Jimmy Aiyo CR No 147 of 2005, 28.09.06

TRIAL

This was the trial of two co-accused charged with rape.

Counsel

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

18 September, 2007

1. CANNINGS J: Lahis Molmol and Riama Molmol are brothers, aged in their early 20s. They come from Lemanmanu village, Buka Island. They are both charged with aggravated rape of a 20-year-old woman – the complainant, "R" – at Lemanmanu on 9 January 2004. The State's case is that the two co-accused were at a dance at Lemanmanu on the night of 8 January 2004. They left the dance around 3.00 am the next morning, taking the complainant with them. They had been forcing her to drink home brew and she became intoxicated. One of their accomplices, Benjamin Kelele, told her that someone was waiting for her at the gate so she went outside. Benjamin then led her to a dark area that led on to a track that went to a nearby cliff. Lahis and Riama followed and when they got to the cliff area they took turns in sexually penetrating her, without her consent. The State alleges that Lahis and Riama, firstly, got the complainant drunk with the intention of raping her and, secondly, acted in company of a number of others. They are the two circumstances of aggravation the States relies on. The State relied on the oral testimony of the complainant and a police investigator, and seven exhibits. One of the accused gave sworn evidence that he and others had consensual sex with the complainant in the bush after the dance. It is not in dispute that both of the co-accused sexually penetrated her. The key issue is whether she consented. If the State proves beyond reasonable doubt that she did not consent, the co-accused will be convicted of rape and liable to imprisonment for a term of up to 15 years. If, in addition, the State proves either of the two circumstances of aggravation, they will be liable to life imprisonment.

THE COMPLAINANT'S EVIDENCE

2. The complainant, "R", testified in examination-in-chief that she went to the dance at 12 o'clock with two of her female friends, Claris and Miriam. Two men, Benjamin and Amos, forced her to drink home brew, even though she did not want to. She had never drunk alcohol before. She became drunk. After the dance, Benjamin told her that there was someone waiting for her outside, so she followed him outside. When outside, he told her to remove her clothes. Then he had sex with her. He was the first one. He was followed by Lahis and Riama (the two co-accused), and then Dyson and Amos. She did not give them the OK to have sex with her. When asked by the prosecutor, Mr Rangan, where Lahis and Riama were, she replied, first, that she did not know; then that they were at Halia. That response was obviously an unexpected one for the prosecutor given that Lahis and Riama were in the dock so he asked her if there was anyone in the courtroom who had raped her and she said no. In cross-examination, the defence counsel, Mr Kaluwin, asked about the circumstances in which she left the dance. First, she said that she did not follow Benjamin. Later she said that her two lady friends called for her to come back but she threw the fire she was holding for light at them and told them to go back and she followed Benjamin to the cliff. She said at the cliff she took her clothes off and had sex with Benjamin. Later she said that she followed Benjamin and the other guys who were with him because they were forcing her. Mr Kaluwin put it to her that people in the village had found out about what happened and one of her friends said 'yu bai karim bebi nau'. She agreed that that was said. She also agreed that people knew she had consented. Mr Kaluwin put it to her that nobody raped her and she did not respond. In re-examination she said that she knew the guys she had followed to the cliff. Two of them are in the courthouse, she said. At that point, for the first time, she identified the two co-accused sitting in the dock, as being amongst the group of men who sexually penetrated her.

MICHAEL KUKABA'S EVIDENCE

3. The investigating police officer, First Constable Michael Kukubak, testified about the conduct of the interview of the two co-accused. They each admitted to having sex with the complainant but claimed that it was consensual.

THE DOCUMENTARY EVIDENCE

4. Seven exhibits were admitted into evidence.

A – a medical report prepared by a registered nurse at Lemanmanu sub-health centre – the complainant was brought there on the morning of 13 January 2004, four days after the incident – she presented with a history of being raped, feeling weak with headaches – there were no bruises on her body – no scratches or lacerations on the vulva – no PV bleeding – no bruises, scratches or lacerations on the cervix.

B – photos of crime scene.

C – sketch plan of crime scene and surrounds.

D – a statement by the police officer, Constable Lilian Solas, who corroborated the interviews with the co-accused.

E – a statement by the police officer, First Constable Kukubak, who conducted the interviews.

F – record of interview – Riama Molmol – conducted on 23 January 2004, two weeks after the alleged incident – Riama says that he was at the dance but he was not drinking homebrew – the complainant was present and she was drinking homebrew but he did not give her any – she followed them to the cliff of her own free will – she removed her own clothes – he was the third person to have sex with her.

G – record of interview – Lahis Molmol – conducted on 23 January 2004, two weeks after the alleged incident – Lahis says that he was at the dance, drinking homebrew – the complainant was present and she was drunk – he does not know who gave her homebrew as he was also drunk – Benjamin was the first person to have sex with her, he (Lahis) was second and Riama was third – the complainant consented to all three having sex with her.

LAHIS MOLMOL'S EVIDENCE

5. In examination-in-chief he said that the complainant was already at the dance at the time he arrived, 10.30 pm. He, Riama and Benjamin left together about 3.00 am. They were surprised to find that the complainant followed them to the cliff area, which is where Benjamin asked her for sex. He asked on behalf of the three of them. Benjamin went first, followed by Lahis, then Riama. When it came his (Lahis's) turn he went into the bush, she took off her underwear and they had sex. When they finished he said thank you, she said thank you, he went away and she waited for Riama. In cross-examination Lahis denied that five men had sex with the complainant. It was only three. He said he was only a little drunk and could remember clearly what happened. He knew the complainant before the dance. In fact she was his girlfriend. He forgot to tell that to the police as it was his first time to be a suspect in a criminal investigation. He did not want Riama and Benjamin to know that she was his girlfriend. In re-examination Lahis said he only had a casual relationship with the complainant. They had no marriage plans. That was the only evidence in support of the defence case.

THE ISSUES IN DETAIL

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

1. Was the complainant's evidence credible?
2. Is the other evidence consistent with the complainant's evidence?
3. Are there gaps that create doubt about the complainant's evidence?
4. Was Lahis Molmol's evidence credible?
   

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

5. Has the State proven that the complainant did not consent?
   

1 WAS THE COMPLAINANT'S EVIDENCE CREDIBLE?

8. No. I agree with Mr Kaluwin's submission that she was an unreliable witness. She did not give straight answers to simple questions about what time she arrived at the dance, whether she was sober or drunk, what happened when she left the dance and in particular whether she was forced to go with Benjamin, Lahis and Riama or whether she followed them. In examination-in-chief she was unable to identify the co-accused who were in the dock, across the courtroom from where she was seated in the witness box. It was not until re-examination that she identified them. There had in the meantime been an overnight adjournment. That aspect of her evidence was bizarre. She made significant concessions in cross-examination, including that she took her clothes off and had sex with Benjamin and that other people knew that she had consented to sex with the co-accused men. It was squarely put to her that nobody had raped her and she did not respond. Her demeanour in the witness box was not of someone who was obviously telling the truth. The defence counsel was not overbearing or improperly intimidating in his cross-examination. I have considered whether some of the complainant's answers were a product of confusion about the questions, whether she was intimidated by the courtroom surroundings and whether she was shy or nervous to the point that she found it difficult to respond logically. I have dismissed these rationalisations of her evidence. She was not especially nervous. She did not present as an unintelligent person. She was not a particularly shy witness. I was left to conclude that the irregular nature of her evidence was due to her not being a witness of truth. I conclude that the complainant's evidence was not credible.

2 IS THE OTHER EVIDENCE CONSISTENT WITH THE COMPLAINANT'S EVIDENCE?

9. No. The medical evidence is not consistent with rape. The complainant bore none of the telltale signs of rape, such as bruises and lacerations. There was no sign of forced penetration. Also, she did not go to the health centre until four days after the incident.

3 ARE THERE GAPS THAT CREATE DOUBT ABOUT THE COMPLAINANT'S EVIDENCE?

10. Yes. There was no corroboration of the complainant's evidence. Corroboration is not essential in a rape case and I do not warn myself, as the tribunal of fact, of any danger of entering a conviction on the complainant's uncorroborated testimony. However, given the shortage of credibility in the complainant's testimony, corroboration in this case was essential if the State was to go anywhere near proving its case. Those present at the dance, particularly the two female friends the complainant says she went with, could have been called to give evidence about what happened when the complainant left the dance. These were significant gaps in the evidence.

4 WAS LAHIS MOLMOL'S EVIDENCE CREDIBLE?

11. It seemed quite credible until he testified that the complainant was his girlfriend. I found that part of his story very hard to believe.

5 HAS THE STATE PROVEN THAT THE COMPLAINANT DID NOT CONSENT?

12. In The State v James Yali (2005) N2988 (a conviction recently upheld on appeal by the Supreme Court) I pointed out that 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. I also applied that fundamental principle of criminal law in two rape cases decided last year in Buka, The State v Alex Matasol Hagali CR No 928 of 1997, 28.09.06 (where the accused was convicted) and The State v Jimmy Aiyo CR No 147 of 2005, 28.09.06 (accused acquitted). The court's task is, rather, having weighed all the evidence and considered that there are reasonable grounds for believing the State's case, to determine whether it is satisfied to the required criminal standard of proof – beyond reasonable doubt – that the elements of the offence are present. If there is a reasonable doubt about the existence of the elements, the court is obliged to acquit the accused. In this case the evidence supports the conclusion that the complainant did, in fact, consent. The State has fallen well short of proving the essential element of lack of consent.

VERDICT

13. Both Lahis Molmol and Riama Molmol are not guilty of rape.

Verdict accordingly.
____________________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Co-Accused