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State v Musalu [2007] PGNC 275; N3323 (7 August 2007)

N3323

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 880 of 2007

THE STATE

V

NOAH DICK MUSALU

Lae: Manuhu, J
2007: 6 & 7 August

CRIMINAL LAW – Particular offence – Sexual penetration –Weighing of evidence – Accused was co-worker – Multiple offenders.

No cases cited in the judgment.

Counsel:

S. Kesno, for the State
L. Vava, for the Accused

JUDGMENT ON VERDICT

7 August, 2007

1. MANUHU, J.: Noah Dick is before the Court charged with two counts of sexual penetration of Lydia Michael. He denies the charges.

2. Medical evidence, which was admitted by consent, confirms sexual assault and presence of sperm in the victim's vagina. The sexual assault allegedly took place in the evening of 6th August 2004 at Yalu Bridge and in the early hours of 7th August 2004 at the roadside near Snack Bar. Medical examination of the victim took place on 9th August 2004. There is no evidence of any sexual penetration of the victim between 7th and 9th August. In the circumstances, I am satisfied beyond reasonable doubt that Lydia was sexually penetrated on 6th or 7th August 2004.

3. The only inquiry now is whether Noah was the person who sexually penetrated the victim. Lydia says that Noah and his two wantoks sexually penetrated her. Noah says that the victim was sexually penetrated by some boys at Eriku when the victim was walking home in the early hours of 7th August. Which explanation should the Court accept?

4. I had the benefit of observing the witnesses as they gave evidence. There were three witnesses, two for the State and Noah gave evidence for himself. Between the three of them, the victim was very impressive. She was confident and consistent in her evidence. Most of her evidence was extracted in examination in-chief. Some were given during cross-examination. Given her impressive performance, it didn't surprise me when Mr. Kesno chose not to re-examine her. Tess Wamaru was the second prosecution witness. I am of the impression that she may have forgotten some things but generally, her evidence supports Lydia's evidence.

5. On the other hand, Noah failed to impress the Court in a number of ways.

• I can't accept Noah's evidence that he was able to tell how long he was unconscious for when he was allegedly hit on the head. He said in examination in chief that he was unconscious for 15 minutes. This is unrealistic.
  
• I can't believe Noah when he said that he was boyfriend to Lydia and because of that they had sexual intercourse many times prior to the alleged sexual assault. The medical report contains evidence of torn hymen. It does not require a rocket scientist to discern that given the torn hymen Lydia was a virgin when she was sexually assaulted on 6th and 7th. This was a glaring lie on the part of the accused.
  
• I can't believe Noah's evidence that Lydia and Tess, who wanted to go to a dance at Phils would instead decide to go to 40 Mile.
  
• I can't believe Noah's evidence that the bus went to 40 Mile to pick passengers at midnight. Everybody were asleep by then. Besides, if the bus was going to 40 Mile, it was not necessary to take the girls around.
  
• In any event, there is no evidence at all to support Noah's evidence that Lydia was sexually assaulted by other boys. Noah was making up to cover himself.
  
• Noah and Lydia were workmates. Lydia trusted Noah enough to accompany him that night. It is unbelievable that Lydia would turn around and blame Noah for the sexual penetration.
  

6. In the circumstances, Noah's evidence is rejected outright. Lydia was indeed sexually penetrated in the manner she described in her evidence. She wanted to go to the dance at Phils with Tess and Naomi. When Noah and Paul decided to accompany them, the girls vested their trust in Noah and Paul. Unfortunately, Naomi was not picked up as planned and Noah came up with his own agenda by involving his two wantoks and the 15 seater bus. Lydia, Tess and Paul trusted Noah enough to get into the bus with complete strangers.

7. In the bus, Noah was intent on not letting anyone go to the dance. The bus was driven around the city and beer was consumed mostly by the men. From the drunken state of Paul, as described by Tess, Noah and his wantoks made sure that Paul was sufficiently intoxicated. Noah was seated in front with his two wantoks. When it was approaching midnight they decided to drive up the Okuk Highway to refill. Which service station would be open at midnight? Besides, why drive out of Lae to refill? Noah and his wantoks actually had other intentions. They drove all the way to Yalu Bridge, parked the bus and executed their evil and criminal intentions. Noah came out of the bus and dragged Lydia out into the grasses and sexually penetrated her without her consent. Lydia and Paul protested but Noah could not listen to them. During the sexual assault, Noah over powered Lydia and threatened to kill her if she did not give in. When Noah was finished, he called his two wantoks and each sexually penetrated the victim.

8. While these were going on, Tess, who was understandably scared, bravely stopped a Highway Truck which took Paul and her back to Lae. She was scared enough to remain quiet about what happened to Lydia.

9. After Noah's two wantoks sexually penetrated Lydia, they drove back to Lae. Noah and Lydia were dropped off at Snack Bar. Compared to Salvation Army, Snack Bar was a secluded area. At that location, Noah took Lydia to the roadside and sexually penetrated her again. Lydia did not consent but by then she was Noah's virtual prisoner.

10. Lydia did not report the sexual assault to anyone on the 7th August. It is not strange to behave that way. We can never know what Lydia's mental state was at that time. But she had enough courage to eventually speak to her mother on Sunday afternoon. Her decision to speak to her mother has eventually resulted in this hearing.

11. In all the circumstances, I am satisfied that the State has proven beyond all reasonable doubts all the elements of the two charges. I find Noah Dick guilty of the first count. I also find Noah Dick also guilty of the second count.

____________________________

Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Accused