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State v Siba [1980] PGNC 30; N261 (18 September 1980)

Unreported National Court Decisions

N261

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
-V-
PETER SIBA

Waigani

Narokobi AJ
18 September 1980

NAROKOBI AJ: This is a rape case in which there is no dispute as to sexual intercourse having taken place. The only issue is whether there was consent.

The prosecutrix was dropped off on the main road at Moitaka by friends. She was making her way to Tokarara when the accused met up with her and there followed sexual intercourse.

Sexual intercourse took place near a drain, some 40 feet away from the road, under tall grass. The road itself is a private, bush track, although ordinary vehicles can easily go on the road.

Following the explanation of the charge, the accused was asked to plead. He said he understood the charge "mi klia" and said:

"Prior to this incident, I gave the lady K2.00. I had sexual intercourse with her".

I took this to mean the accused was denying the charge and entered a plea of not guilty against him. Thereupon the case went to trial.

The State case consists of the evidence of the prosecutrix and a police investigation officer, Mr. Timothy Rapa.

THE STATE'S CASE.

The State case is that sexual intercourse took place without the consent of the prosecutrix. The prosecutrix's evidence on consent is very clear. She says, she was forced to have sexual intercourse at a knife point. There was a dog there, she believed it to belong to the accused.

She claimed that she was forced to the ground with the accused's shoes and was held down by a man she described as the brother of the accused. She went further and asserted that after the accused had sexual intercourse with the prosecutrix, three other men "goapim me" which I take to mean "went on top of me", which in Melanesian Pisin means "having had sexual intercourse with me".

Following the incident, the prosecutrix went on to Mourata and reported the matter to the police at Morata. She was taken to the hospital where she was examined medically, that same day.

By coincidence, the accused was also at the hospital that day, taking a child in for treatment. There he was identified by the prosecutrix and was arrested by the police that same day.

The police investigation officer testified to the worried looks on the accused, the sad expressions of the prosecutrix and cuts on the woman. He could not recall the nature of the cuts or on what part of the body he saw the cuts.

THE DEFENCE CASE.

The defence admits to sexual intercourse but submits that this occurred with the express consent of the prosecutrix. The defence conducted its defence on the basis, as I understand it, that the prosecutrix was a woman of bad reputation. In particular it was alleged that she had previously had sexual intercourse with the accused for a fee.

In pleading to the charge, the defendant stated he had given the prosecutrix K2.00 before he had intercourse with her. This was not revealed in the record of interview. Nor did the accused claim in the record of interview that he had any previous intercourse with the prosecutrix.

The defence case was therefore a case of putting the prosecutrix to trial on the element of consent, having conceded to sexual intercourse. Defence relied on several inconsistencies of state case and imputed bad character to render her unbelievable.

EVALUATION OF EVIDENCE

On the whole, I agree that the prosecutrix tended to be evasive and inconsistent. But I find that in respect of evasion, this was more consistent with her general character - namely that she was basically interested in telling what she knew and saw rather than to answer questions put to her. The inconsistencies, in my view do not show her as a lying witness.

In any case, much of the inconsistencies relate to the issue of character, rather than to the central issue of consent. The vagueness of the prosecutrix relating to events, during the week and the weekend before the incident, in my view do not assist the accused. I place no great reliance whatsoever on circumstances relating to what happened over the weekend.

The next point relates to the tear in the dress, the underpants and the bra. Only the dress was produced in Court. It looked quite normal, with a lace on the bottom, slightly loose. The prosecutrix stated her husband had patched it up, but later she said it was her "mama", or mother. Her subsequent evidence is that she has never been married except for an association she had with a European. In looking over the evidence and on listening to the prosecutrix, I am of the view that the reference to "husband" came about because of my misunderstanding. The prosecutrix referred to her "mama" which I took and the official interpreter took to mean "man" or husband.

In point of fact, looking over my evidence I had not written in my note book anything to suggest at the time the blouse was produced that "my husband mended my blouse". What happened was that when the prosecutor sought to produce the blouse the defence objected on the basis that the blouse was not in its original form. I admitted the blouse on the basis that it was the blouse she wore at the time of alleged rape.

The upshot on the question of the blouse is that it is the blouse the prosecutrix wore on the day of the affair and it has minimal of tear on it.

The prosecutrix also alleges that her pants and the bra were torn. These were not produced in the Court. Defence argues this is fatal to the State case. Taken with the absence of medical evidence, so argues the defence, this suggests consent on the part of the prosecutrix. It was not a part of State case that the woman was injured or hurt upon her sexual organs.

The defence also submits that lack of evidence as to the condition of the prosecutrix and lack of evidence on the condition of the dress means that the State has not negatived consent beyond a reasonable doubt. Defence further alleges that there is no evidence of a recent complaints nor is there evidence as to who she complained to.

When we went to the scene of the alleged rape, the prosecutrix stood at or near a drain and said that that was where she was dragged to. Later she said, she was never taken there. However, on further examination by the Court, she said, she was at the road, 40 feet away from the point where intercourse took place. She was pulled or dragged to the drain and later, she said "he pulled me down there".

This point was later clarified on State Prosecutor's re-examination. She was asked - "Did he pull you from over there", pointing to the spot on the road where she stood. She replied - "That was the first time".

On close examination of all the evidence, this is the picture that emerges, in the facts as I find them.

FACTS AS I FIND THEM.

The prosecutrix was dropped off at Moitaka Wild Life Centre so that she could take a short cut across to Morata. This occurred between 6 am and 8 am, but it is more probable that this happened at 8 am. The reference to 6 was suggested by defence counsel and later adopted by the prosecutrix. She did not suggest 6 am in the first place.

On her way across the track, after she had gone past a gate, the accused and three other man saw she was alone and followed her. There was a dog among them.

The accused intercepted the girl, soon after she had crossed a drain and pulled her to the drain. She resisted and was eventually subdued near a tree, away from the drain some 40 feet. There, the intercourse took place. One man, the prosecutrix referred to as the brother of the accused held her down and the accused had sexual intercourse with her. Thereafter three other man also had sexual intercourse with her.

The prosecutrix resisted, and was subdued. In fact, she was wounded with a knife. The wound was referred to by the police, even though no medical evidence was available to substantiate the point. I make no positive finding that the accused wounded her, even though she claimed he did it.

I hold too that the complaint was recent. Just how recent is recent is a question of fact. It is well known that in P.N.G., women tend to be shy and would normally not make complaints unless encouraged.

In this case, I hold that the complaint was definitely recent. The prosecutrix reported the matter to the police the same day. It was hours before the police could interview her, but the complaint was made at the first opportunity, when she arrived at Morata.

It is natural that women should complain to their relatives. Defence suggested, the prosecutrix and her relatives made up stories, following her complaint to them. I think not. If the prosecutrix had complained several weeks afterwards, there might be some truth in this point. People of P.N.G. often tolerate much, for long periods of time, before they finally say, enough is enough. This is not a case of a delayed complaint.

Delay in complaint may be evidence of consent when taken with other circumstances. Likewise, immediate complaint is, on its own, no proof of lack of consent. It may support a finding that the prosecutrix is a liar.

In rape cases where consent is the only issue, recent complaint must be seen in the light of time, opportunity, the scene of the alleged rape, previous or subsequent relationship between the parties, events prior to sexual intercourse, events immediately after intercourse, condition of the prosecutrix, force, if any used and other relevant matters.

The absence of the bra and the pants, in my view are not critical to the State's case. I reach this conclusion simply because I cannot see how their absence would assist the defence when I am satisfied beyond a reasonable doubt that there was no consent given in this case. I reach this view on the whole of the evidence as I evaluate it.

CORROBORATION

Defence Counsel argues there was no corroboration in this case by an independent person. I ask myself what is corroboration? To me, it simply means to make strong, to strengthen or to confirm. Is there evidence in this case to make strong, or strengthen the prosecutrix's story? Of course, as it has often been decided, that strengthening of evidence must be in some material way, and it must normally come from an independent source. It could come from the prosecutrix's own evidence or even from the police investigators.

I also hold the view that the accused's own evidence whether it is from his record of interview or from a false or an unsubstantiated piece of evidence from the witness box, or from the dock may also corroborate the State's case. A lie may also be corroborative, when taken with other circumstances, provided it is of a material evidence.

In this case I find sufficient corroboration and thus the uncertainty I have in relying on the prosecutrix's story is removed.

Since sexual intercourse has been admitted to, the only issue to be corroborated is the issue of consent. This issue must be judged objectively in all the circumstances of the case.

I refer to the following factors. First, is the question of previous relationship between the prosecutrix and the accused. It was put in cross-examination to the prosecutrix that on a previous occasion, two months prior to this incident, the accused had sexual intercourse with the prosecutrix. He offered her K2.00. The question was incriminating. She chose to answer it, following my careful explanation of possible consequences. Her answer of denial is final.

There is no mention of this prior affair whatsoever in the record of interview. The accused's own assertion that he had intercourse with the prosecutrix after he gave her K2.00 was flatly denied by her and was not mentioned at all in the record of interview.

When asked if he knew where the prosecutrix comes from, he replied, he did not know. When asked how he came to know the girl he replied "they got a car and came". There is no mention of a previous association.

Here there is sexual intercourse between two strangers. The evidence of the accused in the record of interview is that the prosecutrix saw him and laughed as she went. This evidence is at odds with the factual situation. The Moitaka track runs along the foot of the hills. There are houses some distance, 10-50 feet away from the road. It is at odds with the prosecutrix's evidence that she did not see the accused until he held her. In any case, a laugh if the prosecutrix had laughed, as suggested by the accused, is hardly an invitation to sexual intercourse, on its own.

Secondly, in the record of interview, the accused was asked -

"Taim em ilap yu mekim wanem?"

The English translation is -"when she laughed, what did you do?"

The answer, in pidgin reads -

"Mi bihainim em igo", meaning, "I followed after her". He was asked "what was the next thing", to which he answered - "Mi bihainim em igo na mi holim em" which translates as "I followed after her and I held her". The next question in English (my translation) - was -

"What part of her skin or body did you hold"

and the answer was

"I held half or part of her hand".

He was next asked what the woman did, to which he answered

"She continued to laugh".

His next answer is significant. He said -

"Mi kisim em igo long bus" which translates as "I took her into the bush".

He was next asked -

"Yu mekim wanem long bus" - which translates as "what did you do in the bush?"

His answer was -

"Mi go koapim em" which I take to mean "I went on top of her" or "I went and had sexual intercourse with her".

He was asked who took off the pants and he replied that the woman removed the pants in part, but the pants were still on the woman when he had sexual intercourse with her. He says she did not sing out. He was asked -

"Meri i oraitim yu long koapim wantaim em", meaning,

"Did the woman consent to or permit you to have sexual intercourse with her". The answer was a simple "yes".

Thirdly, the next question and answer is quite telling, against the accused in my view. He was asked quite simply "Em bin askim yu long sampela moni?" Which translates as -

"Did she ask you for some money", and his answer was "Nogat" or "No".

He was later asked how many men had sexual intercourse with her and he replied that he was the only one. But later when asked about three men making bad fashion with the woman, he admitted it, saying "Yes, mi lukim wanpela man igo long meri islap long gen". I take this to mean - "yes, I saw one man go to her and stood with her". While this answer suggests a non sexual association as a possible interpretation, I find that in the context in which it was used, and the question it was in answer to, it suggests sexual association. This to me is clear corroboration of lack of consent.

The accused admitted to the presence of a dog in his record of interview but says it belongs to another man. The accused was not sure if that man had sexual intercourse with the prosecutrix. Here again, is another important link in the chain of events which in my view adds to the overall truthfulness of the State's case.

In his record of interview the accused advances the theory that the woman took him to court probably because the man with the dog saw them. While this suggestion is consistent with the accused's defence of consent, it, in my view has no ring of credibility about it when I take it against all the evidence.

In a rape trial such as this one, the only relevant point about corroboration is whether there is corroboration in some material way relating to lack of consent. In my view the accused's own record of interview, though it denies use of force, when taken in the light of prosecutrix's own evidence, corroborates lack of consent. The accused took the woman to the bush. He did not say she walked me to the bush or that we walked to the bush. He also denied being asked of money. The place where intercourse took place, under tall grass, within reach of the people, who could see them or hear any sobs if they walked on that road, and the evidence of Constable Timothy Rapa, concerning a wound, corroborates the evidence of the prosecutrix.

I am fully aware of the dangers involved in complainant's uncorroborated evidence. In my view, this is not one of that kind of a case. It is true, that women may lie. It is equally true, that men may suggest or invent consent.

In my view, the accused has invented the story that the woman consented. His counsel's cross examination alleges previous sexual knowledge of the woman with her consent. The accused himself in answer to the charge following arraignment said he had sexual intercourse with her after she accepted K2.00. None of these matters are mentioned in the record of interview. The accused did, by a single "yes" in the record of interview claim consent. He chose not to give evidence.

Even if the accused did have sexual intercourse with the accused on a previous occasion for a fee, this may be proof of an act of prostitution, but it, on its own is no evidence of consent in this rape trial in my view. Of course, taken with other matters, it may well lead to a view that there was consent in a particular case.

CHARACTER OF COMPLAINANT

Whether the woman was of a promiscuous or of a prostitute's nature, is an issue I am quite unable to answer. One years' association with a European man in my view is not prostitution. It could be promiscuous, but this seems to be well in line with current urban morality, even some respectable members of the society would indulge in.

I cannot find anything to suggest the woman was a prostitute. It is true she has been unemployed for 2 years - but there are many unemployed people in Port Moresby. Many are being supported by their relatives under the wantok system. However wantok system is regarded by some members of the society, it is still being used by Melanesian people for mutual support.

In this case, the prosecutrix says her brother owns and operates a store at Badili and she has been supported by him. It seems that their relationship is a close one, as it was he who got her to part company with the European man.

The point here is that the accused is not merely alleging consent, he is doing more. He is challenging the complainant's own character. No doubt the accused would have worked it out that if he could show the woman to be a common prostitute or a "K2.00 bush girl", he could have more readily alleged consent.

The accused, has raised the question of character of the complainant. I look at his record of interview and find nothing to support that allegation. I therefore reach the conclusion that the accused well knew that the complainant did not consent to sexual intercourse.

In the course of his final address, defence counsel referred to the case of The State v. Kewa Kai ⁽N261.html#_edn363" title="">[ccclxiii]¹¹⁾ as affirming the common law rule of procedure that it is dangerous to convict in rape cases where there is no corroboration. As I have indicated, I find ample corroboration and that happened to have come from the most unlikely place, the evidence of the accused in the record of interview. There is also corroboration by police investigation officer and of course the overall situation of the alleged rape.

Defence counsel also referred to Kelly J.'s pre-Independence decision in affirming the same principle in The Queen v. Yoka Kiok ⁽N261.html#_edn364" title="">[ccclxiv]²²⁾. That was a 1970 decision. In fact in that case the accused was convicted, even though he argued consent on the basis that the prosecutrix had looked him in the eye which he took to be an invitation to consentual sexual intercourse. The case against the accused in this case is even stronger. All there is, is an allegation by accused of a laugh.

Defence counsel also referred to standard directions jury are addressed in rape cases in the South Australian case of R. v. Kalitzudazig ⁽N261.html#_edn365" title="">[ccclxv]³³⁾ .

While I agree entirely with the direction, I need only add that any reference to jury in this country is fast becoming a fiction. There is no jury in this jurisdiction. I sit as a judge to decide all issues of law, of fact and of procedure.

All I have to do is satisfy myself on criminal standard that the State has established its case beyond any doubt or anxiety in my own mind. Has the State established that the intercourse took place without the prosecutrix's consent? In my view, that onus has been discharged.

The inconsistencies are in my view peripheral to the central issue of consent. The prosecutrix's evidence is that she never consented. This evidence, in spite of strenuous, but fair and able cross examination by defence counsel, did not break the prosecutrix's evidence. Consent, I hold has been negatived beyond reasonable doubt, by the State Prosecutor.

I therefore find the accused guilty of rape as charged.

Solicitor for the State: A/Public Prosecutor, L. Gavara-Nanu

Counsel: V. Noka

Solicitor for the Accused: A/Public Solicitor, D. McDermott

Counsel: N. Kirriwam

N261.html#_ednref363" title="">[ccclxiii]^{(1) (1976) P.N.G.L.R. 481}
N261.html#_ednref364" title="">[ccclxiv]^{(2) Unreported Supreme Court Judgment N607 of 17 December 1970}
N261.html#_ednref365" title="">[ccclxv]^{(3) 20 S.A.S.R. 87}