[2000] PNGLR 234

PAPUA NEW GUINEA

[national court of justice]

THE STATE

V

ONJAWE TUNAMAI

madang: sawong j
14, 15 February 2000

Criminal Law — Rape — Issue of consent — Corroboration — Non-presence of sperm in the victim’s vagina.

Facts

The accused was charged for raping a girl on 29 April 1993 and pleaded not guilty. He gave sworn evidence denying the allegations against him.

The State’s evidence consisted of the sworn oral evidence of the prosecutrix, her mother, the record of interview and the medical report. 

In her evidence the prosecutrix gave evidence that she had gone to a trade store on the opposite side of the Gum River to buy a packet of rice. After she bought it, and as she was on her way to her house, she was accosted by the accused, and two other men, Paul and Mali. She gave evidence that the accused grabbed her by the hands, tackled her to the ground and as they were struggling Paul and Mali came and assisted the accused. She said Paul then removed her underpants and he and Mali held her whilst the accused had sexual intercourse with her. She said that after the accused, Paul and Mali also had turns in having sexual intercourse with her. She said that she struggled to get free but she couldn’t, as the three of them were too much for her. She also said she could not call out for help as one or more of these men covered her mouth with their hands. She said that, after the incident, she managed to get a piece of wood, which she used to hit the accused with.

After they finished she swam to the other side and reported the incident to her mother. She said she was crying and unhappy about what happened to her. After she told her mother, she changed her clothes and she and her mother came to the police station at Madang. There they reported the matter and afterwards she was taken to the hospital for medical examination.

Held

1.	Principles of law relating to rape cases are settled in this jurisdiction: Didei v The State [1990] PNGLR 458.

2	There is no rule of law or practice that says that in order to prove penetration there must be the presence of sperm in the vagina.

3.	State has proved its case beyond reasonable doubt and the accused is found guilty as charged.

Papua New Guinea cases cited

Didei v The State [1990] PNGLR 458.

Counsel

J Wala, for the State.
M Mawesi, for the accused.

15 February 2000

Sawong j. The accused pleaded not guilty to a charge that he on 29 April 1993, committed rape upon a girl TA.

The State’s evidence consisted of the sworn oral evidence of the prosecutrix, her mother, the record of interview and the medical report. The accused gave sworn evidence denying the allegations against him.

In her evidence the prosecutrix gave evidence that she had gone to a trade store on the opposite side of the Gum River to buy a packet of rice. After she bought it, and as she was on her way to her house, she was accosted by the accused, and two other men, Paul and Mali. She gave evidence that the accused grabbed her by the hands, tackled her to the ground and as they were struggling Paul and Mali came and assisted the accused. She said Paul then removed her underpants and he and Mali held her whilst the accused had sexual intercourse with her. She said that after the accused, Paul and Mali also had turns in having sexual intercourse with her. She said that she struggled to get free but she couldn’t, as the three of them were too much for her. She also said she could not call out for help as one or more of these men covered her mouth with their hands. She said that, after the incident, she managed to get a piece of wood, which she used to hit the accused with.

After they finished she swam to the other side and reported the incident to her mother. She said she was crying and unhappy about what happened to her. After she told her mother, she changed her clothes and she and her mother came to the police station at Madang. There they reported the matter and afterwards she was taken to the hospital for medical examination.

When she gave evidence, she was shy and she did not speak up. I struggled to hear her evidence. But I think this was out of shame than anything else, because she was giving evidence and retelling the incident in front of a packed courtroom full of strangers. But despite all these, I find her to be consistent and truthful witness on the major parts of the incident.

The next witness was the mother. This witness in the main confirms that when her daughter arrived at their house, she was looking unhappy and crying. She also said there were bits of ground on the back part of her head. She also told the Court her daughter came and told her the accused, Paul and Mali had assaulted her and each of them took turns in having sexual intercourse with her against her will. Apart from the minor inconsistencies about the payment of compensation, she too did not deviate from the main parts of her evidence. In other words none of her evidence relating to the crucial parts was destroyed at all.

The record of interview contains admissions. For instance in Q & A 12 – 31 inclusive, the accused in essence admits having sex with the girl, but says it was a consensual one. He also says that Paul and Mali also had sex with the girl.

At the hospital, the girl was examined by Health Extension Officer D. Siban. I note that in her report, she states that she examined the girl at about 11a.m. on 29 April 1993, which is about 2 hours after the incident. The examination revealed:

"No bruising or scratches on the face, breasts, abdomen and limbs.

•	Hymen torn but is an old tear

•	Cervix looks red (inflamed)

•	No other tears seen around and inside the vagina

•	No spermatozoa were found."

The officer gave an explanation as to why spermatozoa were not found in the vagina. She said that this was so because ejaculation may have taken place outside the vagina and also may have been washed away, because the girl said that she had washed after the incident but before going to the hospital.

The accused gave sworn evidence. Basically he denied the allegations against him. In his oral evidence firstly he denied raping the victim and said that he was away somewhere else working when the incident occurred. He said that he learnt of the incident and heard that Paul and Mali had sex with the girl in the afternoon when he returned to the village. However, in cross-examination he said he did in fact had sexual intercourse with the girl on the National Day.

In his record of interview he admits having sexual intercourse with the girl, because he says she was his girlfriend. He said nothing about this in his oral testimony. This piece of evidence conflicts with his own sworn evidence and that of the girl. I will return to this later.

Mr Mawesi submitted that there were inconsistencies in the evidence of the victim. He also submitted that the medical evidence does not reveal any sperm being found in the girl’s private parts. Consequently he submitted it would be unsafe to convict the accused.

Mr Wala submitted that there is no inconsistency in her evidence that she had clarified what happened.

The issue of inconsistency relates to a piece of the victim’s evidence. In her evidence in chief and cross-examination she said that the accused was already having sex with her when Paul and Mali arrived at the scene. She said when Paul arrived, he removed her pants and then the accused had sex with her. In her re-examination she said that the accused was the first person that grabbed her hands and tackled her to the ground and as they were struggling Paul and Mali arrived. At the time he had not had sex with her yet. Upon their arrival Paul and Mali help the accused and Paul removed her under pants and then the accused had sex with her.

In regard to the non-presence of sperm in her vagina, I accept the submission put by Mr Wala. In my view there is no rule of law or practise that says that in order to prove penetration there must be presence of sperm in the vagina.

The evidence does suggest some discrepancies in the prosecutrix’s evidence as to the sequence of events. It relates to the sequence of the event and not of the act of sexual intercourse. But I do not consider these inconsistencies to be crucial, the issue being whether penetration occurred and whether the accused sexually penetrated her.

The law is now settled in this jurisdiction. The Supreme Court in reviewing the history of principles of law relating to rape cases, in Didei v The State [1990] PNGLR 458, at 459 – 460 said:

"There is of course no rule of law which requires that the evidence of a woman complaining of rape shall be corroborated. If a Court is satisfied that the complainant is telling nothing other than the truth, then it may proceed to convict on her evidence alone. But it has long been recognised that while a Court is entitled to accept the evidence of a complainant and convict on that evidence alone without corroboration, experience has shown that it is dangerous to do so. The reason is easy to understand. Allegations of this nature are easy to make but difficult to refute. It may be relatively easy for a girl to implicate a man in an allegation of rape and often so very difficult for a man to do any thing but deny it. Therefore a rule of practice has developed, one falling short of rule of law, which requires that the Court should give due warning of the danger of acting on uncorroborated evidence in sexual cases. In fact, failure to advert properly and clearly to this rule of practice has been found to constitute an error of law sufficient to ground an appeal against conviction."

I would adopt and apply the above as my own in this case. In the present case, I accept the prosecutrix’s evidence of the sequence of events as she stated in her re-examination as to the truth of what happened that day. I am also satisfied that her evidence is corroborated by her mother. The prosecutrix went straight to her house, looking wet, unhappy and crying and reported the incident to her mother. That is the evidence of recent complaint.

Further the prosecutrix’s evidence is further corroborated by the accused’s own admission contained in the record of interview, which I have referred to earlier. The prosecutrix’s evidence is further corroborated by the accused’s own false and inconsistent evidence.

I don’t accept the accused’s evidence because it is full of inconsistencies. For instance in his record of interview, at Q & A 12, Q & A 16, he admits having consensual sex with the prosecutrix. Yet in both his evidence in chief, he contradicts his evidence by saying yes he did have sex with victim and then go on to say he did not. I consider his evidence to be lacking in credibility that I do not accept any of his evidence.

In particular I accept the evidence of the prosecutrix. I find that the accused grabbed the prosecutrix and tackled her to the ground, where they were struggling. At this stage the accused had not commenced to have sex with the prosecutrix. In other words no sexual intercourse took place at that point in time. However whilst they were struggling, Paul and Mali came and assisted the accused. Paul then pulled off the prosecutrix’s under wear. Thereupon the accused had sex with the prosecutrix, followed by Paul and Mali. I find that the sexual intercourse was committed without the consent of the prosecutrix.

It follows, that I am satisfied that the State has proved its case beyond reasonable doubt.

Accordingly I find the accused guilty as charge.

Lawyer for the State: Public Prosecutor.
Lawyer for the accused: Public Solicitor.