N4967
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 582 OF 2007

THE STATE

V

NOAH MAMARI

Buka: Cannings J
2007: 12, 13 September, 24 October

CRIMINAL LAW – rape, Criminal Code, Section 347 – trial – whether the complainant consented to sex.

A young man was charged with the rape of a young woman and pleaded not guilty. The State relied on the oral testimony of the complainant and two other witnesses; one said she was present when the accused pulled the complainant into the bush, another said he came to the scene after hearing the complainant crying. Five exhibits were admitted into evidence including the accused's record of interview in which he admitted penetrating the complainant but claimed he had consent. At the trial the accused remained silent and adduced no evidence. The key issue was consent.

Held:

(1)	The complainant was a reliable witness and her demeanour in the witness box was of someone who was telling the truth. The two other State witnesses gave credible evidence corroborating the complainant's evidence. The other evidence was consistent with the State's case and there were no major gaps or inconsistencies in the State's case.

(2)	The State proved beyond reasonable doubt that the complainant did not consent to having sex with the accused. The accused was convicted.

Cases cited

The following cases are cited in the judgment:

The State v Alex Matasol Hagali CR No 928 of 1997, 28.09.06
The State v James Yali (2005) N2989
The State v Jimmy Aiyo CR No 147 of 2005, 28.09.06

TRIAL

This was the trial of an accused charged with rape.

Counsel

L Rangan, for the State
P Kaluwin, for the accused

24 October, 2007

1. CANNINGS J: Noah Mamari is aged in his early 20s. He lives in Tanahu village, Buka Island. At 4.00 am on New Year's Day 2007 he had sex with a 16-year-old girl, the complainant, "W". The incident happened in the bush close to the village. He inserted his fingers and penis into her vagina. The girl had been walking along a track with her cousin-sister, Ramolo. They were on their way to Tanahu village after attending a New Year's Eve party as Ramolo and W are also from Tanahu. They met Noah on the way home. A few hours later W reported the encounter with Noah to her parents. She went to the local health centre for examination and a complaint was made to the police. W claimed that Noah penetrated her without consent. He now stands charged with rape. Noah told the police it was true that he had sex with W but said that she consented. That is the key issue: did she consent? If she did, no offence will have been committed. There was no special relationship of trust that Noah owed W and she had reached the age of consent. However, if the State can prove beyond reasonable doubt that she did not consent Noah will be guilty of rape under Section 347(1) of the Criminal Code. Three witnesses gave evidence for the State: W, Ramolo and another of W's cousins, Ronald, who said he came to the scene soon after the incident. Five exhibits were tendered into evidence. Noah remained silent and adduced no evidence.

THE COMPLAINANT'S EVIDENCE

2. The complainant, "W", testified in examination-in-chief that she was walking along the road with Ramolo after taking part in the New Year's celebrations. They did not realize that Noah was hiding. But as they walked past him he grabbed her hand, covered her mouth and pulled her into the bush. He pushed his hand into her vagina and then he raped her. She was hurting and could not shout. Ramolo was afraid and ran away. After he had raped her she called out. No-one heard her at first but she shouted again and then Ronald heard her and came. She went to the village and was confused and went into the bush. When she felt a bit better she came back to the village and told her parents what had happened. Her parents then reported Noah. The complainant explained that when she said that Noah raped her, she meant that he inserted his penis inside her vagina and caused her pain. She did not give him the okay to do that. In cross-examination the defence counsel, Mr Kaluwin, asked the complainant if she had met Noah earlier in the evening at the New Year's party. She said no. She also denied that Ronald had told her that Noah wanted to see her. She insisted that Noah was not waiting on the road for her and Ramolo. He was hiding. He did not "hold" her hand. He "grabbed" her hand and pulled her into the bush. She was trying to sing out but he covered her mouth with one of his hands. It happened not far away from her house. Asked why Ramolo did not run to the house and tell her father about the rape, the complainant said that Ramolo was scared and ran home and went to sleep. It was the first time she had seen such a thing. She denied going into the bush with Noah of her own free will. She said that that was not the reason Ramolo did not go to get help. Asked by Mr Kaluwin what she would have done if her cousin sister was being raped – go for help or go to sleep? – the complainant replied that she would go home to sleep. She insisted that Noah had forced her to go into the bush with him. She tried to shout but he had a hand over her mouth. She struggled to pull herself free but he was too strong. She had never had sex before. She denied agreeing to have sex. She denied taking her clothes off. She said Noah did that. She denied wearing very tight jeans. She was wearing short trousers. The complainant then agreed to a number of propositions put to her by Mr Kaluwin:

•	Noah never put his penis into her vagina;
•	because it was her first time to have sex he put his fingers in first;
•	Noah couldn't put his penis in, pulled his trousers up and left;
•	Noah pulled her trousers up.

3. Those seemed unusual responses in light of the other evidence that the complainant gave. After giving those responses she said that by the time Ronald came, Noah had run away. Asked if she would have reported the incident if Ronald had not come along, she said she would have reported it. 4. Mr Kaluwin put to her that she was embarrassed about what happened and that's why she said it was rape. She replied that Noah had pushed his fingers and penis into her vagina and she did not give him the okay to do that.

RAMOLO'S EVIDENCE

5. Ramolo is about the same age as her cousin, W. Ramolo said in examination-in-chief that Noah pulled the complainant by the hand as she and the complainant were walking along. She left her and ran away to the house where she went to sleep. She was afraid. In cross-examination Ramolo said that she did not know what was going to happen when Noah pulled W into the bush. It happened suddenly. It happened close to W's house and it would take less than a minute to run there and report the incident. She denied knowledge of any plan that Noah and W had to go into the bush and have sex.

RONALD'S EVIDENCE

6. He is also from Tanahu village. He is 19 years old. W is his cousin-sister. Ramolo is also a cousin-sister. Noah is known to all of them but it's not clear that he is related to them. They call him uncle. The complainant calls him uncle too. At the New Year celebrations, Noah told him, Ronald, that he wanted to talk to the complainant. He passed that message on to the complainant but after that he was not feeling well so he went home. Back at his house he was feeling sleepy but he heard one of his grandparents say that there was a girl outside crying near the house. He came out and ran in the direction from which the crying was coming. He saw W sitting. He asked her what was wrong and she replied that Noah had done a bad thing to her. Ronald went looking for Noah. He was not happy with him. He told W to go and see her mother. He still could not find Noah. When he first heard the shout he did not recognize the voice. But then he found W. It was a bit dark but he could see that she had no top or shirt on. She was crying. W told him that Noah had raped her. In cross-examination he said that the top part of W's clothes was missing but he could not really see what she had on below that.

THE EXHIBITS

A + B – statements by police investigators Constable Hilary Rigamu and Mark Jongai as to the interview of the accused on 26 January and 1 February 2007.

C – record of interview – the accused said that he and the complainant are from the same village, Tanahu – he said that the complainant and Ramolo told him and Ronald to wait on the road – it was true that he inserted his fingers and penis in the complainant's vagina, that she felt pain, that it was the first time he had had sex with her – but he denied hiding in or dragging her in the bush – he did not ejaculate inside her vagina – after they finished having sex, he just went home; and she went home with Ronald.

D – medical report by Sister Jacklyne of Lemanmanu sub-health centre – states that the complainant attended the health centre at 7.45 am on the day of the incident – looked miserable – unable to walk or sit properly due to genital pain – slight tenderness in abdomen – vaginal examination revealed:

•	Swelling of vulva
•	No perennial laceration or bruises
•	No bleeding seen on vulva
•	While opening the vulva, had dirt inside
•	No bleeding noticed inside the vagina
•	No bruises or lacerations seen inside the vaginal wall
•	Had a lot of pain when being touched on the genitals.

E – statement by Sister Jacklyne dated 22 February 2007 – she is also from Tanahu village – her house is only two minutes walk from the health centre – the complainant's grandfather came to see her on the morning of New Years Day 2007 to ask if she could go and see his granddaughter at the clinic, who was said to have been raped – Sister Jacklyne observed upon seeing the complainant that something was wrong with her: she walked in a bending position and looked very weak – she was still uncomfortable and in pain when seated.

THE ISSUES IN DETAIL

7. The nature of the evidence and submissions of counsel give rise to these issues:

1	Was the complainant's evidence credible?
2	Was Ramolo's evidence credible?
3	Was Ronald's evidence credible?
4	Is the other evidence consistent with the State's case?
5	Are there significant gaps or inconsistencies that create doubt about the State's case?

8. In light of the answers to those questions, I will address the critical issue:

6	Has the State proven that the complainant did not consent?

1 WAS THE COMPLAINANT'S EVIDENCE CREDIBLE?

9. I was unimpressed by Mr Kaluwin's argument that the complainant's description of the way that the accused used his hands was unbelievable. Mr Kaluwin argued that the accused did not have enough hands to do everything the complainant said he did. She said he grabbed her with one hand, held her, covered her mouth with the other hand, then pulled down her trousers before penetrating her. Mr Kaluwin argued that he needed an extra pair of hands to do all that. The trouble with this argument is that it defies history. Men have been raping women for centuries, with only two hands. The accused is a fit looking young man of medium build. The complainant is a 16 year old girl of slight to medium build. He is a much stronger person than she is. A young man intent on overbearing the will of a young woman in this situation could readily use his hands to overcome the resistance offered by the girl. I cannot agree with Mr Kaluwin's submission that she was an unreliable witness. She was a very nervous witness, particularly at the beginning of her testimony. It was difficult for the prosecutor to extract answers from her in examination-in-chief. There were long pauses between the questions and her answers. But once she relaxed a little, the pauses became shorter and the confidence with which she gave her answers markedly improved. There was a series of propositions which she appeared to give unusual answers to. However, I consider that those answers were given amidst intensive and vigorous cross-examination and were a product of fatigue and confusion rather than showing that she was making up stories. She insisted that the accused grabbed her and pulled her into the bush, removed her clothes forcibly penetrated her with his fingers and penis without her consent. Her demeanour in the witness box was of someone who was telling the truth and I conclude that her evidence was credible.

2 WAS RAMOLO'S EVIDENCE CREDIBLE?

10. Yes. I felt her evidence was credible despite the defence counsel's attempt to undermine her credibility by pointing out that she had the opportunity to raise the alarm over the complainant's predicament but instead chose to go home and sleep. The defence counsel's point was a worthwhile one as it would seem to be the natural reaction of someone who just observed their cousin-sister being dragged into the bush by a young man to raise the alarm rather than just go home and go to sleep. However, people have different reactions to unusual situations. I was satisfied that the witness gave a credible account of her reaction to the incident. She was genuinely afraid. She had not seen anything like this happen before. So she left the scene. She ran home. The way that she responded to the intensive cross-examination was impressive. Her demeanour was strong and therefore I was left with the impression that she was a witness of truth.

3 WAS RONALD'S EVIDENCE CREDIBLE?

11. Yes. His demeanour in the witness box was satisfactory. He made no attempt to embellish the story that he told. He arrived on the scene after being alerted to a girl shouting. He said he didn't recognize the voice when he first heard the shout but he went to the place from where he heard the shout and described the condition in which he found the complainant.

4 IS THE OTHER EVIDENCE CONSISTENT WITH THE STATE'S CASE?

12. The medical report is of limited value. It neither strongly supports nor detracts from the State's case. Mr Kaluwin made the point that there was no evidence of a broken hymen. However, a hymen does not have to be broken in order to establish penetration. There is credible evidence of two forms of penetration, provided by the complainant's evidence; and her evidence is corroborated by the evidence of the two other witnesses.

5 ARE THERE SIGNIFICANT GAPS OR INCONSISTENCIES THAT CREATE DOUBT ABOUT THE STATE'S CASE?

13. No. The key witness is of course the complainant. I found her evidence to be credible. There is no legal requirement these days for corroboration in a rape case. But in this case there is, in fact, corroboration provided by Ramolo's and Ronald's evidence. The complainant's evidence of the train of events in the hours after the incident – that she reported the matter to her parents and then was taken straight to the health centre – is consistent with rape having been committed. There was an inconsistency between the evidence of the complainant and Ronald concerning whether she knew that Noah was asking about her at the party. The complainant says that Ronald did not tell her that Noah wanted to see her. Ronald testified that he did pass that message to the complainant. When put in the context of all the evidence, and given my assessment that all State witnesses were credible, I do not consider that this was a significant inconsistency.

6 HAS THE STATE PROVEN THAT THE COMPLAINANT DID NOT CONSENT?

14. In The State v James Yali (2005) N2989 (a conviction recently upheld on appeal by the Supreme Court) I pointed out that in a rape case it is not a simple matter of deciding who to believe. An accused cannot be convicted only on the basis of suspicion or belief on the part of the tribunal of fact. I also applied that fundamental principle of criminal law in two rape cases decided last year in Buka, The State v Alex Matasol Hagali CR No 928 of 1997, 28.09.06 (where the accused was convicted) and The State v Jimmy Aiyo CR No 147 of 2005, 28.09.06 (accused acquitted). The court's task is, rather, having weighed all the evidence and considered that there are reasonable grounds for believing the State's case, to determine whether it is satisfied to the required criminal standard of proof – beyond reasonable doubt – that the elements of the offence are present. If there is a reasonable doubt about the existence of the elements, the court is obliged to acquit the accused. In this case the evidence supports the conclusion that the complainant did not, in fact, consent. The complainant gave credible and convincing evidence that she did not consent. Her evidence is corroborated by the evidence of the two other State witnesses. There are no significant gaps or inconsistencies in the State's case. The State has proven beyond reasonable doubt the essential element of lack of consent. The defence conceded that sexual penetration took place. Both elements of the offence have been proven to the required standard of proof.

VERDICT

15. The accused is guilty of rape.

Verdict accordingly.
________________________________

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