State v Manauj [2021] PGNC 645; N9913 (6 December 2021)

N9913

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1153 OF 2019

THE STATE

V.

BOBBY MANAUJ

Kerevat/Kokopo: Suelip AJ
2021: 18^th, 19^th, 24^th November & 6^th December

CRIMINAL – trial – verdict – rape s.347(1) – State to prove all elements of offence beyond reasonable doubt – defense of consent – circumstances of allegations – credibility of victim and accused – guilty

Cases cited

State v. So’on Torah (2004) N2675

Counsel

J Noma, for the State
S Pitep, for the Accused

VERDICT

6^th December, 2021

1. SUELIP AJ: On 18 November 2021 at Kerevat, the accused pleaded not guilty to the charge of rape pursuant to section 347(1) of the Criminal Code Act. A trial was conducted on the same day and concluded the next day. Submissions were heard on 24 November 2021 in Kokopo. I had reserved for ruling on verdict.

2. This is now my ruling on verdict.

3. The alleged facts are these. At the time of the offence, the accused and the victim, Walitha Teko were students attending Utmei Secondary School in Gazelle District. On the night of 5 August 2019 at Utmei Secondary School in Gazelle District, the accused and four accomplices had planned to rape the victim. The accused asked some girls to lure the victim to him and his friends outside the girl’s dormitory at Utmei Secondary School. The girls who were to lure the victim had earlier that afternoon accused the victim of joining a cult group and had bashed her in the girl’s dormitory. When the accused and the other boys asked the girls to bring the victim to him, the girls tricked the victim and told her that her cousin brother Dylan and some boys wanted to see her. Upon hearing that, she followed them to the boys. The girls came and left the victim with the accused and the four boys, but her cousin brother Dylan was not there. The accused and the other boys surrounded and questioned the victim about her involvement in cult groups within the school. The victim protested and they insisted and pushed the victim, dragging her some distance into the school farm area away from the school yard. The co-accused Duncan Wafi then forced the victim and pushed her to the ground, pulled her jean trousers and her underwear, spread her legs with his both hands and sexually penetrated her by inserting his penis into her vagina. After 2-3 minutes when Duncan had finished, he then stood up. The accused was standing not far away with other three boys and he walked towards the victim who was crying and in the process of wearing her underwear, he pushed her down to the ground and said ‘taim blo mi’ meaning ‘my turn’. He spread the victim’s leg with his hands whilst she was naked from her waist down and sexually penetrated her without her consent by inserting his penis into her vagina. He used his physical body to overpower the victim and sexually penetrated her. After 2-3 minutes, he stood up and told the victim to go back to the girls. The next day, some girls assisted the victim to Kerevat Police Station where the victim laid a formal complaint and went for medical check-up. After medical check-up, whilst on her way out, the accused and some others tried talk to her out from laying formal complaint, but the accused was sighted by the police and was arrested. The State says that by the actions of the accused, he committed the offence of rape contravening s.347(1) of the Criminal Code Act.

4. Section 347(1) of the Criminal Code Act provides:

Section 347 Rape

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

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

5. For this Court to return a verdict of guilty on the charge of rape, the State must prove all the elements of the offence. These elements are:

(i) a person (identification)
(ii) sexual penetration of another person
(iii) lack of consent

6. The issue is whether the accused sexually penetrated the victim without her consent?

7. Prior to calling of witnesses to testify, the State tendered the following documentary evidence by consent:

Document Exhibit

(i) Record of Interview (Pidgin & English versions)

dated 12/08/19 S1

(ii) Medical report of Walitha Teko dated 13/08/19 S2

8. The State called the victim as its only witness. In summary of her sworn evidence, Walitha Teko said she is now married and has a child. At the time of the alleged rape, she was in grade 11 at Utmei Secondary School. She said on 5 August 2019 at the girl’s dormitory during the day, she was confronted and assaulted by four named female students after they accused her of practicing cult. During the assault, they kicked her jaw, and she lost her reading glasses. After a while, three of the girls returned to apologize to her. They then told her that her cousin Dylan wanted to see her. This occurred at about 7pm that day. Still nursing her sore jaw, she followed the girls outside to see her cousin but instead they took her to the Science lab where the accused, Duncan, Ishmael, Jordan and Desmond were. She said that since she was missing her glasses, she could not see well in the dark, but she was told that the accused and the other named boys were there. The accused then asked her if she was in a cult group. She said the accused told her that the administration was aware of her involvement in cult activities and so he gave her two options. The first was a threat for her to be reported and the second was for her to follow Duncan to his dormitory and have sex with him. She said she was still hurting from her jaw and could not speak up, but she was shaking her head to deny her involvement in cult practices. She said she was then pushed forward by the accused and the other boys and urged to follow Duncan. She said she could not retreat as she was surrounded by the other boys. She said they led her to the farm area where Duncan pulled at her jeans and underwear and managed to pull off both garments, even with her resistance. She said Duncan then pushed her to the ground, spread her legs and had sexual intercourse with her by pushing his penis into her vagina. She then said that after 2 to 3 minutes, Duncan stood, and she tried to locate her jeans and underwear in the dark. She said as she was pulling them up her knees, the accused approached her and said “taim blo mi’ meaning “my turn”. She said he pushed her to the ground, spread her legs and sexually penetrated her by inserting his penis into her vagina. She said she was struggling to resist him, but he was strong and overpowered her. After 3 minutes, she said he stopped, and she got dressed before she was escorted back to the Science lab. She said she returned to her dormitory and was forced by the same girls to shower. She said she was upset and was crying when two grade 12 girls came to her, comforted her, and spent the night with her in her cubicle. She said on the next morning, they took her to the Police Station at Kerevat to lay her complaint and thereafter, she was taken to the hospital for medical attention. She said on their way back from the hospital, the accused and the others tried to talk her out of laying a complaint, but he was reported to the police who arrested him and the others. She confirmed that it was the accused who raped her because at that time, he was the President of the Catholic Students Association at the school. She also said she did not have any relationship, personal or otherwise with him. She said she never gave him her consent to have sex with her.

9. In cross examination, she agreed that she had read and signed her statement, but she did not type the statement and some of the things she said at the interview were not recorded.

10. During re-examination, she said it was her first time to have sexual intercourse and she lost her virginity then. She again stressed that she was never involved in cult practices and also never agreed to have sex with Duncan and the accused.

11. During the Court’s enquiries, Walitha said she recognized the accused because he was the President of the Catholic Student Association at that time and that she never consented to having sex with him. Further, she said she did read and sign the typed statement a week or so after she laid her complaint at the Police Station. She said she realized then that some of her encounters were not included in her statement, but she did not mention them. Counsel for the accused then sought leave to tender the victim’s statement into his evidence, but it was objected to by the State. The Court refused to accept into evidence the victim’s statement because it was not authored by the victim and no written statement from the victim was attached to the typed statement.

12. With only the victim’s testimony, the State closed its case. No applications were made by the accused thereafter. The accused was then called to give his evidence in his defence.

13. During his sworn testimony, the prisoner said he became suspicious of the victim when one of the girls had the letter “W” scratched across her face. The accused, Duncan, Ismael, Jordan and Desmond then planned to confront Walitha and ask her about her cult involvement. When she denied being involved in cult practices, he gave her two options which are, she will either be reported to the authorities or have sex with Duncan. He said when she did not indicate her choice, he told her that she will be reported and that was when she followed the boys. The prisoner said after she had sex with Duncan, he then approached her and said it was his turn. He said she undressed herself and laid down. He then said that because she never resisted or said anything to him, her silence was her consent to sleep with him. The prisoner said he would not have had sex with her if she did not consent.

14. During cross examination, he confirmed he was the President of the Catholic Student Association. He maintained that he would not have had sex with Walitha if she did not consent. He also confirmed that he was never in a relationship, personal or otherwise with her. He said she undressed herself and laid down and that was when he thought it was alright with her for him to have sex with her.

15. In re-examination, the accused said he never threatened the victim to have sex with him. He said he had sex with her because he was in the mood to have sex at that time.

16. During the Court’s enquiries, he said according to the Catholic principles it is wrong to have sex before marriage. He also said it was his first time to have sex and he enjoyed it.

Proving the elements of rape

17. The State is required to prove all the elements of the offence of rape. Firstly, there is no issue with the identification of the accused. The accused himself also gave evidence that he did sexually penetrate the victim after Duncan. This element of identification is therefore proven by the State.

18. As regards the second element of sexual penetration of another person, there is medical evidence to prove that the victim was sexually abused. This is apart from the victim’s evidence that the accused sexually abused her. The accused also confirmed that he had sex with the victim. That element of the offence is also proven.

19. The third element is the main contention. Whilst the victim says that the accused committed the offence without her consent, he said she gave her consent when she undressed herself in front of him and laid down. Her evidence is that after she was sexually penetrated by Duncan, the accused approached her while she was trying to dress and said to her it was his turn. She said he pushed her to the ground, spread her legs with his hands and sexually penetrated her by inserting his penis into her vagina. She also said she resisted but he was too strong and overpowered her. Her evidence is in direct contrast to that of the accused. He agreed that he never asked for her permission but say that the victim’s actions of undressing herself and lying down were indications of her consent. The accused also said she did not resist him. This comes down to her credibility.

Other considerations

20. I also considered the circumstances surrounding the alleged rape. The victim was initially assaulted by four other girls earlier that afternoon. Her jaw was hurting from that assault and her glasses were missing too. She was then lied to about her cousin wanting to see her and that led to her ordeal. She was later surrounded by a group of boys before and during her ordeal. As observed at trial, she is a petite person in her physical appearance compared to the larger physique of the accused. The physiques of the other boys are unknown, but they were then high school teenagers like the accused and so together, they could easily intimidate the victim. If she said she never agreed to have sex with Duncan, it is unlikely that she agreed to have sex with the accused just after Duncan, at such time and being watched on by the other boys. Further, there is no personal relationship between the accused and the victim for some form of consent to exist. This goes against logic and common sense.

Credibility of witnesses

21. Going back to who is telling the truth, I adopt the statement of His Honor Justice Kandakasi (as he then was) in State v. So’on Torah (2004) N2675, at page 5 of his judgment where he says:

“Finding credibility is in turn dependent on matters of logic and common sense as well as the demeanor of the witnesses and consistencies in their evidence”.

22. I have observed the victim’s demeanor in the witness box to be impressive. She answered every question with confidence. She became emotional at times when describing her ordeal, but she always recovered to answer the next question. Her testimony made sense and was logical. I view her to be a truthful witness.

23. On the other hand, the accused appeared less confident when he gave his evidence. He admitted he had sex with the victim, but he said it was with her consent. He said he never asked her permission or threatened her but when she undressed herself infront of him and laid down, he took those actions as her consent. He also said she never resisted. Further, he seemed reluctant to answer questions at times and asked for the questions to be repeated to him. He then took time to think about his answers before he spoke. He did not appear to be always telling the truth and I was not impressed with him as a witness.

24. No other witness was called to support either of the accused or the victim. However, from the evidence presented, the victim’s story entails logic and makes more sense than that of the accused.

Findings

25. From the evidence, I find that that the accused was the one who had sexually penetrated the victim. The victim’s medical report proves there was sexual penetration. The accused also said he had sex with the victim. As regards consent, I find that the accused sexually penetrated the victim without her consent. She was initially forced to have sex with Duncan and thereafter, the accused also had sex with her without her consent whilst his friends kept watch. I also find that the circumstances leading to and surrounding the commission of the offence are such that the victim was threatened, intimidated, and forced against her will to participate in the sexual act.

Verdict

26. I am therefore satisfied beyond reasonable doubt that the State has proven that the accused sexually penetrated the victim without her consent. Hence, I find the accused guilty of the charge of rape.
________________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor : Lawyers for the Accused