Queen v Karo-Keno [1965] PGSC 51 (13 April 1965)

IN THE SUPREME COURT
OF THE TERRITORY OF
PAPUA AND NEW GUINEA

THE QUEEN –v- KARO-KENO, and
TISIAWA-KULOLO

Minogue, J.
13/4/1965
Port Moresby

REASONS FOR JUDGMENT

KARO and TISIAWA stand before me charged with the rape of OIDONGA. Rape is defined by Section 347 of the Criminal Code as the having by a man of carnal knowledge of a woman or girl not his wife without her consent or with her consent if the consent is obtained by force or by means of threats or intimidation of any kind. This has long been regarded as one of the most serious offences in the Criminal calendar and anyone found guilty of rape is liable to be imprisoned for life with or without whipping.

This has been a long trial and such evidence as there is has been thoroughly tested and analysed, and I am indebted to both counsel for the great assistance I have received from them.

There have been several unsatisfactory features of this case about which I feel I should make comment. As I said, this is a most serious charge and a charge of this sort no matter who is involved requires the most careful investigation. That investigation – probably through inexperiences – seems to have been lacking in this case. I have not had the advantage of any medical evidence nor of any testing made at the time of the surrounding circumstances. No clothing has been produced to me nor apparently asked for. All these are matters which could and usually would have a decisive bearing on the case. I am surprised that these things were not directed and insisted on by an experienced senior Police Officer. Such an investigation is desirable both in the interests of the prosecutrix and the accused – indeed, in the interests of justice generally. I am disturbed, too, that the evidence of the boy KIAVE was not procured. He was the first person to see OIDONGA after the alleged rape and would, I would have thought if approached promptly, have been able to give some valuable evidence as to her appearance and condition.

I pass now to the main point at the issue in the case. The Crown relies on the actual act of intercourse by KARO and alleges that TISIAWA was a principal offender in that he aided KARO to forcibly have intercourse. That intercourse did take place is common ground and is admitted by both accused. I have no doubt that penetration by KARO did take place and that there was intercourse. The main and indeed only dispute is on the presence or absence of consent. At no time OIDONGA says did she agree to intercourse. KARO and TISIAWA both say that she did, and that in fact she came up to KARO's home and asked for it and that she again asked for it when walking along the road. Before wither accused can be found guilty I have to be satisfied beyond reasonable doubt that OIDONGA did not consent, Mr. McPhee has again and again stressed that requirement in his forceful and able address, and as for myself it is a point which hardly requires stressing. Mr. McPhee has also stressed the absence of medial evidence and the very unsatisfactory nature of the police evidence. That I do not refer to his argument in greater detail is not to say that I am unmindful of the very powerful criticisms he has made. Indeed, I say now that I do not think that I could place reliance on the police evidence largely for the reasons that Mr. McPhee has urged upon me. In saying this I do not wish it to be thought that I am doubting either the honesty or veracity of Mr. Twigg or Poito. All I am saying is that I am not satisfied that in the circumstances Mr. Twigg received an accurate account of what KARO and TISIAWA said.

In the end I had to rely on the stories told by the parties involved themselves. Let me say at once that OIDONGA and MADOU bring conviction to my mind whereas KARO and TISIAWA do not. I have read and re-read the evidence of all parties. I do not feel that I can place any reliance on KARO's evidence. I think he was ready to say anything which came into his head which he thought might support his story, e.g. the shutting of the door, his stories that the girl came up to his house three times in the previous week, then its change to her having come up to the smokehouse, first the presence of TISIAWA on these occasions and then his absence. I find it hard to give credit to the likelihood of this young girl hardly into puberty detaching herself from the older women to seek intercourse.

In the end I have made up my mind in the case based principally on the story by OIDONGA and MADOU supported, as it is, by my impression of their truthfulness and supported also by the relatively small but important facts which I accept as true. The first of these is the fact that OIDONGA slept at Eilogo that night. This is quite contrary to the story told by KARO and TISIAWA and it occurred to me in my conclusion that they are lying that all parted amicably and all walked along the road together. The second is the condition of MADOU when she met her husband KAIHANI. The third is the obvious concern felt by KAIHANI for OIDONGA's whereabouts and welfare. The fourth is the inherent improbability of these two women from Eilogo, living at Sogeri, giving themselves extended credit as it were.

I have given full weight to the credibility of stories of women in cases such as this and also to the somewhat lately acquired aversion of these Kikori people to sexual intercourse outside their family circle. I realise that if compensation had been made adequately and early enough the case would never have reached this court, but reach it it has and I must deal with it.

I am satisfied beyond reasonable doubt that intercourse took place in the way described by OIDONGA, and KARO and TISIAWA accordingly must be found guilty.

I should add that I have placed very little reliance on the evidence of Ap'Pou one way or the other. My own view is that a great deal of it was hearsay and her fear prevented her from being anything like an accurate witness of events.