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State v Tamtu [2001] PGNC 40; N2166 (18 December 2001)

N2166

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 314 OF 1999

THE STATE

-V-

ROBERT TAMTU

KOKOPO : Lenalia, J.
2001: 10, 11, 12 Oct, 12,13 & 18 Dec

CRIMINAL LAW – Rape – Not Guilty Plea – Trial, Evidence – Criminal Code s. 347 (a) – (Ch. NO. 262).

CRIMINAL LAW – Practice and Procedure – Submission of no case to answer – Question of Law for Judge – Whether or not on evidence as it stands accused could be lawfully be convicted.

CASES CITED:
The following cases are cited:
The State –v- Paul Kundi Rape [1976] PNGLR 96
The State -v- Roka Pep [1983] PNGLR 19
The State -v- Delga Puri and Tapril Maip [1982] PNGLR 395.

Counsel:
L. Rangan, for the State
W. Donald for the Accused

18 December 2001

DECISION

LENALIA, J. The accused pleaded not guilty to one count of rape pursuant to s. 347 (a) of the Criminal Code. In this trial, sexual intercourse is not denied. The only issue is one of consent and in order for the State to prove rape they must establish that the accused had carnally know the victim Salam Agi without her consent.

The victim was about 18 years when the offence was committed upon her. Apart from all oral evidence called of six witnesses, the Record of Interview, statement of victim, Counsel no case submissions in the committal Court and its reply, the ruling by the Committal Magistrate and Section 96 statement in the committal were tendered. They are mark with letters "A" "B" "C" "D" "E" "F" and "G" for purposes of identification. Other statements tendered were the report from the doctor from witnesses 9 – 15 on the indictment.

Evidence presented by the victim and Jennifer Gurir reveal a very daring situation, which they got themselves into on the night of 28th and early hours of 29th August 1998. It also contained certain elements of a well-planned set up either by Mr. Boas Gugu and the accused or even the victim herself and Boas Gugu and the accused.

The State evidence goes back to the 28th of August, 1998. After the victim and her family have had dinner, Salam and Jennifer, had their baths, they went into their room laid down and told stories. Then about 9:30 pm, the victim says, her sister in law Wennal Marilyn, knocked at their room to wake them up with the news that Lynda Gugu wanted to see the victim urgently. When the victim came out, she spoke to Lynda who suggested that they go out to Rabaul Travelodge for the dance. The victim answered by saying she could not go out without consent from her parents and suggested that although she would wish to go, her parent’s permission would have to be first sought.

When Alice (victim’s mother) heard the girls talking about going out that night, she asked what was going on and the victim then asked her if she could go out with Lynda. Alice expressed reservations and replied that the victim’s father would not be impressed and keen on the idea because usually the parents of Salam do not normally allow their girls to go out to dances or even to nightclubs unless they go together with their parents.

When Mr. James Agi heard about the news, he was neither interested, nor so keen releasing their daughter that night. The evidence shows that by this time Boas Gugu was under liquor when he heard Mr. Agi protested. Boas boasted and said something to the effect that "don’t you trust my two big fists to protect and defend our daughters". After having heard this assurance; Mr. And Mrs. Agi finally agreed to let the victim to go with Lynda Gugu and her father. Still in their concern, they also release Jennifer Gurir to accompany Salam and the rest of the party, which went out that night for the dance.

The victim recalled that when they pulled out from their yard at Bitatita Village to the main road, instead of driving toward Rabaul, they instead turned toward Kokopo. The victim so as Jennifer each said they were surprised. They were driven to Ravalian Lodge in Kokopo where they picked the accused and they proceeded to Rabaul.

The intended trip and destination was to be Travelodge, Rabaul. Instead of proceeding straight to Travelodge, Boas Gugu made a second diversion by driving into Palatirip Tavern. As soon as Boas turned left into Palatirip, Jennifer protested and gave a warning to Mr. Gugu that, she was mindful of assurances of the victim’s safety given by Boas to Salam’s parents. It appears from Jennifer’s evidence Boas Gugu showed no concern and drove right into Palatirip.

Once they pulled up at the gate, Lynda got off the vehicle and held onto Jennifer’s hand and led her away right into the tavern. Jennifer once more protested this time to Lynda, thinking that the proper person to check was Boas Gugu himself. This did not happen.

Once Jennifer and Lynda were in the tavern, the accused took over from Boas by driving and this time, Boas sat at the back while the accused drove them up to Travelodge. Salam’s evidence is she protested because Lynda and Jennifer had been left. The victim said, she wanted to get out, but boas pulled her back to her seat. I will return to this piece of evidence later.

The accused, the victim and Boas drove off to Travelodge. At the Lodge, Boas Gugu got off stating he wanted to check for his friends. As it turned out, Boas once more went out for good and he never returned. Yet here was the place where he had indicated to the parents of the victim he was taking the victim to. Here was the situation where the victim was alone. Lynda and Jennifer had been left somewhere else. Boas had disappeared into the hotel may be the dance at Travelodge living Salam alone in the hands of the accused almost a complete stranger.

A little later, the accused then suggested they should drive back to Palatirip to find Lynda and Jennifer. So the accused and the victim alone drove back toward Palatirip.

On reaching the junction to Palatirip, they drove past without pulling into Palatirip then toward Malaguna bottle shops. By this time, all bottle shop outlets along the Malaguna villages were closed. When driving past the junction to Palatirip the victim says she asked where they were going and the accused told her they were going to buy some beer. This is at lease one version by the State’s evidence. The record of interview presents another version that the reason for driving past Palatirip was because, the victim requested the accused to buy her some beer.

They drove past Malaguna villages then turned into the Burma Road and while the accused and the victim were driving up, a conversation developed between the victim and the accused whereupon the accused asked the victim if she was interested in marrying him. Salam informed the accused she was already engaged to someone attending school in Australia who may appear to be a relative of the accused.

Up at Navunaram, the pair turned into Nangananga Road to the bottle shop at Vunaulul village where they pulled up to buy beer. The victim said at this shop, she wanted to escape but she thought against it for reasons that there were a lot of drunkards and she was frightened she might be raped and she sat on.

Taking off from there they proceeded to Nangananga/Rabaul/Kokopo junction into the Kokopo road a short distance thence into the Kuradui beach where the offence is said to have been committed. The victim said at Kuradui beach, the accused threatened to leave her if she did not giver in to him. She further said, at the beach the accused forcefully had sex with her after which he threatened to destroy her life if she told her parents.

Evidence by Mrs. Alice Agi confirms and corroborates that of the victim and also of her husband that the victim and Jennifer were taken out on the night of 28th August 1998 and the victim was not returned until early morning on the 29th the next day. She confirmed that after talking for sometime with Boas Gugu, the same convinced Mr. Agi of Salam’s safety and since the victim was going out, Jennifer was also released. Alice seemed to be concerned about the vehicle driven by Boas and asked Boas, whose vehicle was he using and Boas answered it was the accused. She further asked where was the accused and Boas denied the accused whereabouts.

Mrs. Agi further recalled that when she found out early next morning that the victim was not in their house she drove up to Turagunan village to check in Boas’ house if Salam was there. She already learnt and knew from friends that Salam was in Boas’ house. However on enquiring with the wife of Boas Gugu (Delilah), she told another red lie to Alice that Salam and Boas might be at Niiba’s house at Takubar. After a while Boas came in with the same vehicle used the night before and on arrival Mrs. Agi noticed Salam was not in the car. She concluded Salam must be in the house and further requested Delilah to bring Salam out.

The evidence shows that the rape could not be reported to authorities nor to the victim’s parents until when the last witness, Jeckie Agi came home from Moresby on 4th of September to the village when her uncle Enos Minalom spoke to Jeckie about Salam’s suspicious behaviour since the night of 28th of August 1998. This was some four to five weeks after the alleged rape. When the victim’s mother spoke to her, she eventually confessed and cried to her mother that she was raped at Kuradui beach by the accused on the night of 28th of August 1998.

The evidence by Mr. James Agi substantially corroborates all evidence before the alleged rape. There is not real need to go into his evidence in any great detail except to say when he heard of the assurances given by Boas Gugu about the safety of his daughter and seeing Lynda Gugu was physically present particularly requested for Salam to accompany her and her father that night, Mr. Agi then agreed to let his daughter out.

The fourth witness Jennifer Gurir is Mr. Agi’s niece who used to be the baby seater for Frazer and his wife Marilyn Wennal. Frazer is the son of Mr and Mrs. Agi. Jennifer was the one who travelled with Salam, Lynda, Boas and the accused to Rabaul. She confirmed that Lynda and herself were dropped off at Palatirip. She told the Court of how she protested when they drove into the tavern at Palatirip.

On her part she said, instead of having a happy evening, it turned out to be quite distressing for her. First her sister Salam Agi was not with her. Secondly, the place where they were promised to be taken to by Boas Gugu, was not where they were dropped and thirdly, she was now faced with the problem of finding her own way back to Bitatita village. She recalled that it was lucky an uncle of her had to pick her up.

Jennifer said when Lynda and herself walked into the dance she could not afford to stand the idea that Salam was not there with her. She returned outside only to be stunned by the sight of the absence of her sister, Boas the accused and the vehicle. She forced herself to walk into the dance to find Lynda and informed her that her daddy (Lynda’s), the accused and Salam were no where to be found. She caught some relief when she, was informed by Lynda that, the trio were gone to Travelodge to check there then to return to Palatirip.

As allude to and as it turned out, the victim, Boas and accused never returned. An uncle of Jennifer had to pick her up to be returned to Bitatita village.

Marilyn testified to having to breast feed her child about the lunch hour of 28th August 1998. Merilyn’s evidence is during the period of feeding her baby, the two girls stayed with her until they returned about after lunch. Her evidence and that of the two girls seem to say that during the time of breast feeding, the two girls were all the time with her. This version of their evidence contradicts an earlier version by the victim given on 31 December 1998 during cross-examination in the committal Court during which she said during the day time on 28th of August 1998, she spoke to Boas Gugu outside PNG Motors Building.

The last witness, Jeckie Agi’s evidence is very brief. When she came home on 4th of September 1998, their uncle Minalom spoke to her at Turagunan suggesting to her that there might have been something wrong with the victim because since the time, the victim and Jennifer went out for the dance, the victim’s behaviour changed. Jeckie spoke to their mother who soon after found out from Salam she had been raped by the accused on the early morning of the 29th August 1998.

At the end of the prosecution, the defence counsel made a no case submission citing case of The State –v- Paul Kundi Rape [1976] PNGLR 96, The State -v- Roka Pep [1983] PNGLR 19 and The State -v- Delga Puri and Tapri Maip [1982] PNGLR 395. Counsel for the accused submitted that as the evidence stands right throughout the State’s case, there was consent. Mr. Rangan submitted there was a case to answer.

The law on no case to answer submission has been stated in varying degrees from time to time. The principles enunciated in the case of The State -v- Paul Kundi Rape [1976] PNGLR 96 are that on a no case submission the question is not whether or not an accused ought to be convicted, but whether on the evidence presented by the State an accused could lawfully be convicted. At this stage of this proceedings there is a discretionary power given this court to weigh the prosecution evidence to determine if the accused in the instant proceedings could be called upon to answer: The State -v- Poka Pep [supra]. The State -v- Aige Kola [1979] PNGLR 620, and The State -v- Lasebase Kuriday [1981] N300.

The question on a no case submission, must not be confused with the issue that arises at the end of all the evidence both for the prosecution and the defence which question is "proof beyond reasonable doubt" where a judge or magistrate finally considers the guilt of an accused: The State -v- Delga Puri and Tapri Maip [1982] PNGLR 395.

A no case submission will arise where there is obviously lack of proof of essential elements of a charge or where the State’s case is so dubious, lacking in weight or has been badly discredited in cross-examination so much so that such evidence is so unsatisfactory that the tribunal must feel hesitate as to whether all or any of the essential element can be believed.

The evidence is that Boas Gugu was the key player in planning the night out with the girls. Two factors worth mentioning, first there was an opportunity for the victim to get out at Palatirip. She did not get out. At Travelodge Boas Gugu went to check maybe to see if there was a dance, but shortly after he come back to briefly speak to the accused. The victim did not get outside.

Then came the long trip from Travelodge past Palatirip to up the Burma Road to Nangananga where the accused bought beer. Rather interestingly, the victim gave evidence that, she did not drink that night. She also denied seeing the accused drinking. The record of interview shows the accused does not drink. Why did the accused go into the trouble of travelling a long distance just for the sake of buying something, which he could not consume himself nor the victim.

These two pieces of evidence casts doubts on the evidence of the victim. Both the victim and Jennifer denied having to talk to Boas Gugu on or during daytime on their evidence. In cross-examination during the committal proceedings, the victim with her memory being fresh, admitted to having spoken to Boas Gugu during the day time of the night in issue. She denied this in Court. Taking all these inconsistence into consideration, the essential element of non-consent has not been proven. As it appears, the occasioned may have been planned by either Boas Gugu and the accused or the accused, the victim and boas Gugu. From all evidence this Court is entitled to infer that, therein may have been a planned night out by Boas Gugu and the accused with the victim’s full knowledge otherwise she should have alighted herself at Palatirip or even with her uncle Boas Gugu at Travelodge. The accused must thus be acquitted.

His bail should be refunded to him.
_____________________________________________________________________
Lawyer for the State : The Public Prosecutor
Lawyer for the Accused : Namaliu Lawyers