State v Enoch [2011] PGNC 180; N4459 (15 November 2011)

N4459

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 258 OF 2011

STATE

V

LOYD SINDRA ENOCH
Lorengau: Manuhu, J 2011: 4, 7, 8 & 15 November

CRIMINAL LAW – Particular offence – Rape – Consideration of the evidence – Corroboration

Cases Cited:
Nil

Counsel:
J. Morog & S. Collins, for the State. P. Moses, for the Accused.

15 November, 2011

1. MANUHU, J: Loyd Sindra Enoch was indicted on one count of rape. The alleged rape took place on 23 July 2010 at about 5:30pm in Lorengau town. The victim was 19 years old and was a student at Ecom High School. She met Loyd at Ward 5 market and they both went to Sahat to have further discussions about the victim's boyfriend. They sat down and smoked spear. It is alleged that Loyd then grabbed the victim by the collar of her shirt and dragged her into the bushes. A struggle ensued and Loyd threatened the victim with a kitchen knife. He tore her trousers and removed her pants and had sexual intercourse with her without her consent. The victim managed to escape during the sexual assault. Witnesses saw her and took her to the hospital where she was examined and treated.

2. Presence of sperm in the victim's vagina confirms sexual penetration. The only issue is whether Loyd sexually penetrated the victim.

3. This depends on whether the Court believes the prosecution version of facts or the defence version of facts. Relevantly, the victim testified that Loyd smoked marijuana as they sat and conversed. Loyd then pulled out a knife and dragged her into the bushes. Loyd also threatened to kill her. He ordered her to remove her trousers. She tried to overpower him by attempting to grab his testicles. She did not succeed.

4. They were struggling as he continued to drag her. She tried to call out but he prevented her from screaming. Loyd tore her trousers as they continued to struggle. The knife cut her hand during the struggle and she urinated and excreted as she feared for her life.

5. Loyd eventually removed the other trousers and under wear and inserted his penis into her vagina. While he was sexually penetrating the victim, John Pahun passed by. The victim called to John Pahun that she was being raped. But Loyd told John Pahun that it was none of his business. The exchange with John Pahun provided the opportunity for the victim to flee.

6. I find the victim to be a credible witness. She was cross-examined extensively but her responses were satisfactory. My impression of the victim as a truthful witness is supported by Paul Papep. He saw the victim running down the hill with torn and dirty jeans. He saw the victim bleeding from an injury between the left thumb and pointer. The victim smelled of excreta. The victim told her that she had been raped. The medical report corroborates the victim's evidence. The base of the right inner palm had a wound that required 3 stitches. External vagina was soiled and bloody and had dried faecal matter at the surrounding area. Sperm cells were found in the vagina.

7. On the other hand, Loyd had an unbelievable way of twisting the story to suit him. He said the victim wanted to have sex with him and held his testicles as they went into the bushes. She held the knife and not him. He grabbed her two hands and she cut him. He pulled the knife and the knife cut her. She was apologetic. She saw blood on his hand and invited him to have sex with her. As he opened her legs, he saw puss and blood and lost his appetite for sex. He told her to get dressed. The victim then ran to someone and told him that she had been raped.

8. Loyd's story was unconvincing. There is no evidence that the victim had sex with anyone else on that day or the day before. The only sexual assault on the victim on that day was carried out by Loyd. Loyd claimed he saw puss when the victim opened her legs. The medical report does not support that claim. It is difficult to comprehend that despite their injuries, they still wanted to have sex. Loyd's explanation of the faecal matter found on the victim was not convincing. Extreme fear is the most likely cause for the victim to urinate and excrete as she explained it. Loyd's demeanor was poor. He was evasive and disrespectful to the prosecuting counsel.

9. I accept the prosecution's version of facts for these reasons. I am satisfied without doubt that the victim was sexually penetrated by Loyd without her consent. I find him guilty as charged in that he sexually penetrated the victim without her consent contrary to section 347 of the Criminal Code.
________________________________________________
Camillus J. Sambua, Acting Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyers for the Accused