PNG Law Reports 1993
[1993] PNGLR 85
N1155
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE STATE
V
MICHAEL RAVE,
JAMES MAIEN AND PHILIP BAULE
Kimbe
Doherty J
4 December 1992
8 December 1992
11 December 1992
CRIMINAL LAW - Rape - Circumstances of consent accepted in another country not to be adopted indiscriminately in Papua New Guinea - Precedent applies when the facts are "on all fours" or sufficiently similar to the instant case.
Facts
The defendants pleaded not guilty to a rape charge. The issue turned on whether the victim consented to having intercourse with the three accuseds.
Held
1.       Corroboration of the victim's testimony was essential for, although it is not a statutory requirement in a sexual offence case, it may be dangerous to convict without corroboration.
2.       "Fresh complaint" goes to support the victim's accusation.
3.       The place and circumstances of how sexual intercourse took place may be of corroborative value (State v Kalabus [1977] PNGLR 87 applied).
4.       That consent may be grudging, tearful, hesitant or reluctant is not a precedent binding in Papua New Guinea case law. The standards in another culture cannot be indiscriminately adopted (Holman v R [1970] WAR 2 distinguished).
Cases Cited
Papua New Guinea cases cited:
Birch v The State [1979] PNGLR 75.
Didei v State [1990] PNGLR 458.
R v Ulel [1973] PNGLR 254.
State v Awoda [1983] PNGLR 83.
State v Kalabus [1977] PNGLR 87.
Touramasong v State [1978] PNGLR 337.
Other cases cited:
Frost and anor (1964) 48 Cr App R 284.
Holman v R [1970] WAR 2.
Counsel
N Sios for the State.
G Gendua for the defendants.
8 December 1992
DOHERTY J: The three defendants were indicted on one count of the rape of J on 12 August 1992.
It is not in dispute that sexual intercourse took place. Each of the defendants make this quite clear in their pleas. They also said so in their record of interviews. They say here (and to the police) that the prosecutrix consented to each man having sex with her.
The State called the prosecutrix; a girl, Gorothy, who was with her up to the time of the incident; a relative, Cecilia Soleng, who she went to later in the evening, and a medical officer. 
The three defendants elected to give unsworn statements from the dock. 
The weight to be given to unsworn statements was considered fully in the case in State v Awoda [1983] PNGLR 83 and in R v Ulel [1973] PNGLR 254. In R v Ulel, the National Court reviewed the case law from Australian authorities, the English authorities, and the Irish authorities on the weight and the consideration to be given to the unsworn statement. The National Court quoted from various overseas authorities at pages 261, 262, 263, 264, 265 and said at p 266 in particular: 
"the probative value of the statement is, of course, weakened by the right to give sworn evidence accorded to the accused under the statute. In addition to the fact that it is not on oath, it has the further infirmities that the maker is not subject to the sanction of possible proceedings for perjury (although this point is somewhat theoretical having regard to the extreme rarity of prosecutions for that offence in respect of the sworn evidence of the accused), and he is not liable to cross-examination".
The Court went on to quote from Frost and anor (1964) 48 Cr App R 284 at 290:
"It is clearly not evidence in the sense of sworn evidence that can be cross-examined to; on the other hand, it is evidence in the sense that the jury can give it such weight as they think fit and should take it into consideration in deciding whether the prosecution have made out their case so they feel sure that the prisoner is guilty". 
It has also been said that the unsworn statement has some weight not much weight, but it is something that the court does consider, and it has more weight than counsel's submission.
That is the weight I will give to the statements of the three accuseds. I note that in their unsworn statements they do not refer at all to certain aspects of the evidence, directly or by implication, and, hence, certain parts of the evidence were unrebutted.
The evidence of the prosecutrix is that she and Gorothy decided to go to Mosa to visit an aunt. They waited for a bus near the hospital where the three accuseds and two other men were also waiting for a bus. By coincidence, they were all from Bali Island and recognised each other's language. They did not know each other before that day. I do not know if they came from the same part of Bali Island. 
A truck came and the seven got on the truck. It went past their destination, so they got off at Kapore and were told to wait by the driver.
Then all seven of them started to walk back and James, one of the accused, suggested taking a route through the oil palm plantation. The prosecutrix estimated that they left Kapore at 5.30 pm and they walked for one hour.
It is suggested they turned off the main road because of drunks on the road but this was not agreed. It does not matter greatly, because it is clear that they all turned into the oil palm, and it was not at the suggestion of either of the girls. It is not suggested by the defence that the prosecutrix and Gorothy went with these three men and the other two in any unusual or suggestive way. They were not, to quote the Supreme Court in the case of Touramasong v The State [1978] PNGLR 337 at 339, "[putting themselves] in a dangerous situation through rashness or stupidity if the fact is that [they] never envisaged or consented to intercourse".
Up to this point, the evidence is not really in dispute. The prosecutrix then continued her evidence of what happened. I will say now that this witness was a very young looking girl. She was supposed to be 15. She looked younger. She was quite a short girl and quiet. She was obviously embarrassed and distressed in the witness-box, to the extent that the Court cleared members of the public during part of her evidence. In doing this, the Court used the provision of s 37(13)(a) of the Constitution. The prosecutrix said that after they went into the oil palm, there was a separation between the three accused and the others. Michael Rave went apart separately, grabbed her, and was the first man to have sexual intercourse with her. She described it as follows:
"When we turned back, the other girl was running ahead of me. Michael stood inside an oil palm tree and as I went past, he grabbed my hand. Michael forced me to lay down, but I was struggling. He laid me down and then took off my pants." 
She then said Michael had intercourse with her. Michael Rave then left her and walked to the road. She said that once she was still laying down Philip Baule then came and forced her down again, and he too had sexual intercourse with her. Then Philip left. After this:
"When Philip left, I felt weak and was still laying on the ground when Philip called James. James came up and he put my legs apart and also penetrated his penis into my vagina. After he did that, he left me and walked to the road".
She identified each of the accused. The names and who they are is not in dispute. She said she went to Mosa with these three men. By that time it was dark. 
The defence lawyer said in his submission that they all walked along the road after the intercourse. He submitted that this is an important aspect of the case because, if there had been rape perpetrated, why would she walk along with them. This type of situation has been considered by the Supreme Court in Touramasong v The State (supra). There, a young woman was raped by four men and then went along with them in a vehicle. The Supreme Court said this (p 339):
"prima facie it is strange that a woman who had been raped by four men, a rape involved trickery early, verbal threats, later, then some physical violence should have attended the function. However, one must remember the hours. It was dark. That the girl was far away from her residential college. Accepting her story, she might well have decided the men had had their fill, and would harm her no more, and that she was better off going with them".
Applying the Supreme Court view to this situation, I consider that the prosecutrix found herself in an isolated place, that it was dark, and she was far away from where she normally lived. The walking together does not necessarily indicate consent. It only indicates that it was dark and she was in an isolated situation.
When they arrived at Mosa, the prosecutrix told her story to a woman, and the woman took her to her house. She named the woman as Mangu. That has not been rebutted nor the subject of any reference in the defendants' statements. When asked what she told Mangu, she said, "about the rape". According to the evidence before me, this is the first person she met after the event. She did not waiver in cross-examination about this. The defence is critical that the woman, Mangu, has not been called and said that she should have been called. It was equally open to the defence to call her, especially as the prosecutrix's evidence is that James talked to the woman, Mangu, first, and she was known to James. If the defence wish to rebut that evidence, then it is up to them to call the woman. If she would not come willingly, the defence can apply for a witness summon. There is no reference in the committal papers to Mangu nor any suggestion that she was interviewed.
It is not for the State to provide every single person to the defence. It is a duty of the State to provide every statement that they have recorded of any witness or any potential witness.
I find as an unrebutted fact that the girl J did speak to Mangu as soon as she met her. I find that this woman, Mangu, was the first person she met after the event, and she did not waiver in cross-examination on this point. 
I find that this is evidence of fresh complaint.
Cross-examination of this girl's story was very intense. Consent was put to her in very strong terms. Through cross-examination more details emerged. It became apparent that the three accuseds had separated somewhat and fell behind the other people walking along the path. Prior to this, the prosecutrix and James were chatting normally. Something about the actions of the three alerted Gorothy and J. Gorothy was to say later, in evidence, that she was scared.
J said she had been grabbed and she called for help. She told them to leave her alone. None of the defendants referred to this in their statements. They neither confirm nor deny it.
It was put to the prosecutrix that she was given K2.00 by Michael after the sexual intercourse. She said "yes", he gave her the K2.00, but she did not accept it. She did not know what it was for. When she was asked again, she said "I tored it up" (sic). She was questioned as to whether she asked for this money, and she denied it very vehemently in the court. This was one of the very few occasions when she flared up in the cross-examination.
Defence counsel put certain questions to the prosecutrix. He asked the following: 
Q:      Michael suggested that you have sexual intercourse and you agreed?
A:       No. 
Q:      You willingly walked on the side of the road? 
A:       No.
She was then asked if Michael freely had sex with her, and she said that he did. However, that has not been in dispute; the defendant himself said that he did have sex with her.
The question was then put to the girl that Michael suggested they have sex. At no time in cross-examination nor in his defence have we heard the words that Michael Rave used. It was never put exactly what she supposedly replied "yes" to. In his unsworn statement, Michael Rave said, "I asked her and she said yes", and he also said, "I asked her to have sexual intercourse". What exactly did he ask her? Did he ask her, "Do you want to go this way?" or, "Do you realise that if you do not have sex with us, we could beat you?" or "Can we be friends?" or "Will you have sex with me?". What exactly did he say that she allegedly said "yes" to? I find this aspect of the defendants' story most unsatisfactory.
She denied removing her clothes. She said she told them to leave her alone. This, again, has not been referred to by the defendants.
The defendants' version is that Michael Rave "asked" J to have sex; then as Michael got up, she asked that James and Philip would come and have sex too. She denied this.
Before turning to those questions fully, I will refer to Gorothy's evidence.
She was a steady and clear witness. She was younger than J. She again described the events leading up to meeting the accuseds, the trip on the truck and the events leading to them turning into the oil palm. She said that the three accuseds hid, she said that one of them grabbed J. She uses the word "grabbed" several times. She said J was crying. She started running away, she was scared and was helped by one of the other two men, Raphael.
Despite cross-examination, this witness insisted that the prosecutrix was crying. She never waivered from that version. She reported the incident to J's relatives, who alerted the securities. Hence, Gorothy left, having seen J being grabbed, heard her crying. This situation caused Gorothy to be scared and to run away with Raphael, one of the other seven people on the truck.
J in cross-examination and in-chief insisted, despite nearly three hours of cross-examination, that she did not agree to the sexual intercourse.
The defence sought to show consent by three answers out of the 140 questions asked although they have not been specific in these in the submission. Counsel asked in cross-examination:
"After James came, she was willing to have sex with him?" She replied, "I did not give consent to the other two except for the other one when I was trying to stand up he pushed my chest back onto the ground" and, 
"I put to you that you agreed and you allowed him to have sexual intercourse with you then?" Answer "yes". 
There are two questions in this, and I am not sure if "allowed" means "willingly allowed" or she let him have sexual contact physically. These plus the following question, "I put it that you did indeed allow Philip and James because you feared that they would report to your relatives or Gorothy?" The prosecutrix's answer, "yes", was stressed by the defence. I note the question showed that the prosecutrix acted on fear - "fear" being the word used in the question.
Any reservations about these answers was cleared in re-examination and in one question from the Court, in which it became apparent that she "was scared", that that was why she "gave" herself and that she did not "freely and willingly give herself" to Michael or to James or to Philip.
The girl J then went to her aunt's house after being in Mangu's house for about one hour. The aunt, Cecilia Sowang, said in evidence that J was crying, unable to speak, unable to answer when spoken to and looked ashamed. This was not rebutted and was unshaken on cross-examination. I find that the girl was ashamed, unable to speak, head down and was crying after the incident.
The prosecutrix was taken to the medical officer. The evidence showed that she was referred to the medical officer by the police at 11.30 pm.
The defence says that the medical officer was inexperienced and evasive and did not answer questions. The medical officer said counsel's questions were confusing. I also could not understand the point of some of them, and their import only became apparent in submission when defence counsel said that it was common knowledge that a woman could be injured during normal sexual intercourse. This had not been common knowledge to me and apparently relates to a medical expert in another case referred to by counsel. Both counsel in the case before me argued the application of remarks in that case to the instant case (I understand the reference to be State v Boateng, but no report or facts are before me). To apply the facts of a previous case to another, the cases should be on "all fours", or at least sufficiently similar. This is not the application of a law or a principle of interpretation. It deals with facts which cannot be indiscriminately applied between cases.
The medical evidence before me is by a person who, by his evidence, "examines rape victims every weekend", and I will rely on the evidence before me. His findings were that there was internal laceration but no external injuries. He said in evidence "a laceration cannot just appear". It is interesting to note that the Supreme Court considered a similar medical condition in the case of State v Kalabus [1977] PNGLR 87 and found a similar type of injury.
In the case before me, I find it is a fact that there was an internal laceration, 4 cm by 1 cm wide, that the prosecutrix was bleeding "intensely", and it was tender on palpation. I accept the medical witness that the tenderness indicated "application of force" and that the injury came about as "she was not prepared", and I find accordingly.
There were further findings that the girl was a virgin before the three men had sex with her. That is the unrebutted evidence before me, and I find accordingly.
As I have said, the three defendants elected to give unsworn statements.
Michael Rave said that, while they were walking along the road, he asked to have sexual intercourse and she said, "yes". He left the road and went underneath an oil palm tree. She lay down. Then he took off his trousers and lay on top of her. He then went on to talk about the K2.00, saying that she asked for it. He said, "When I had finished, she asked me about Philip and James, then I went to the road and I called for the two of them". The other defendants said that "Michael told them". How the girl could have heard this if she was out among the oil palm trees and they were on that road has not been explained. Philip said that he went to J and she asked him to wait. She took her clothes off and lay down. He did not make any threat. She grabbed him.
James said that he also went. He said he saw the girl was holding her pants. She took off her clothes. He said he did not say anything. 
James also said he did not make any threat to her and that he did not force her to remove her clothes. From the evidence of these three, it appears that the clothes were on, on each occasion, and had to be removed again. I do not have any evidence to show how she came to have them on between each act of intercourse. I have asked myself whether this is a normal way for people to have sexual intercourse without saying anything to each other.
It has occurred to me as I listened to the evidence that I have not come across this type of behaviour in 15-year-old virgins in Papua New Guinea, that they would go and have sex with three men they only met a short time before. Hence, I have asked myself if this is the way things are done in their part of Bali Island and if Bali Islanders differ from other parts of the country. Is it acceptable for three men to have sex with one girl they have never met before on Bali?
I have considered that they may have been raising a defence of mistaken but reasonable belief pursuant to s 25 of the Criminal Code. I asked if evidence about attitudes in Bali could be adduced and if someone could give me information about the normal attitude on Bali. However, there were no expert witnesses available to give evidence on customary attitudes.
It is clear from the Supreme Court judgment in Birch v The State [1979] PNGLR 75 that the court does have power to call witnesses if appropriate. However, the witness must be one who has a good knowledge of a situation.
It has been submitted by defence counsel in reference to an Australian case, Holman v R [1970] WAR 2, that consent may be grudging, tearful, hesitant, or reluctant, but is still consent. Counsel says that this rationale has been widely adopted in Papua New Guinea but has not given me any reference to such an adoption, and I have not seen any such reference myself. The case is referred to in State v Kalabus [1977] PNGLR 87, but this statement is not referred to. I do not have the case of Holman v R before me. The report has not been supplied. Counsel do not have its facts, and I do not know if the facts are the same as in this case. The quotation cited by Counsel is not complete. The full text is "a woman's consent to intercourse may be hesitant, reluctant, grudging or tearful but if she consciously permits it (providing her permission is not obtained by force, threats, fear or fraud) it is not rape."
We cannot adopt the culture and the cultural attitude of another country into ours. In Papua New Guinea, tears can indicate reluctance and even refusal, or at least the will of the person being overborne. Certainly, that definition does not sound like consent, it sounds like a person's spirit being broken. Since I have not been referred to the facts nor any binding precedent, I am not prepared to adopt this definition of consent and consider it has no persuasive value.
There is no doubt in my mind, as counsel have both said, that corroboration is essential in the case before me. Case law shows that corroboration is not a statutory requirement in a sexual offence case but it may be dangerous to convict without corroboration. This was recently stated by the Supreme Court in Didei v The State [1990] PNGLR 458. Corroboration can be important or even necessary in a rape case. I consider this one such a case.
From the facts before me, I consider there has been a "fresh complaint". Fresh complaint is not an essential element to be proved in a sexual offence, but I consider that its existence here supports the evidence. It is not rebutted that the prosecutrix complained to Mangu. The aunt also became aware of the problem and, there is the evidence of a complaint to both the police and the medical officer. The medical officer received the information four and half hours later. His version is, of course, hearsay, but it is indicative of a consistency in the story.
I also consider that it has been corroborated by the circumstances of the case. In this I refer to the case of Kalabus v The State [1977] PNGLR 87 at 94, where it was said that evidence concerning the place and the circumstances in which sexual relations admittedly occurred may provide corroborative evidence and may give substantial evidence of lack of consent. This was referred to also, indirectly, in the case of Touramasong v The State (supra).
We have here before us a young girl. There is no suggestion she was a prostitute, that she flirted with or "ei gris" the men on the road or while on the truck. There is no suggestion that she was "made up" or improperly dressed. No one suggested she had met any of these three before or that the middle of the oil palm estate was a normal place to have sexual relations. I find that the circumstances in which this occurred is of corroborative value in this case.
I find Gorothy's evidence of the "grabbing", the cries, and the feelings of fear is corroborative evidence.
I have said, too, the girl's evidence in the witness-box was strong. I do not forget that plenty of girls can look demure in a witness-box, whereas two or three days before, they could have looked quite different while at a dance or a disco.
I believe that she was grabbed and forced to the ground, that she was forcefully raped by each of the accused, that she was left in an injured condition, as shown in the medical report, and I find each of the defendants guilty as charged.
The evidence to my mind is not only beyond doubt, I find it overwhelming, and I have not the slightest doubt. 
Lawyer for State: Public Prosecutor.
Lawyer for defence: Public Solicitor.