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State v Siwi [2025] PGNC 157; N11281 (12 May 2025)

N11281

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR NO. 955 OF 2024

THE STATE

V

OSCAR SIWI

WALUME, SOUTHERN HIGHLANDS PROVINCE: WOOD J
12 MARCH, 7 APRIL, 12 MAY 2025

CRIMINAL LAW – trial – indictment on offence of rape – section 347(1) of the Criminal Code – inconsistencies in the complainant’s evidence – accused found not guilty

Cases cited
Browne v Dunn (1893) 6 R 67
Regina v Barie [1955] PGSC 11
State v Juvenile, RB [2010] N4002

Counsel
Ms T Kagl for the State
Mr D Pepson for the accused

JUDGMENT ON VERDICT

1. WOOD J: The trial before the Court related to the charge against the accused, in which he was indicted on the charge of rape against Jacquinah Jack (Ms Jack), by inserting his penis into her vagina on 22 April 2023 at Unjamap, Mendi, Southern Highlands Province, contrary to section 347(1) of the Criminal Code.
   
2. The accused pleaded not guilty to the charge.
   
3. At the commencement of the prosecution case, the State relied on the
   Brief Facts, which I have recited below, namely:
   

‘The accused Oscar Siwi was a Science teacher at Mendi Secondary School at the time of the offence. The complainant Jcquinah (sic) Jack, a 17-year-old female was a student there. On the 22^nd of April 2023 between 7pm to 8 pm, the accused called the complainant on her cell phone and asked her to meet up with him. The Complainant went to meet accused at a store located next to the teachers’ houses at Unjamap in Mendi where the accused resided. It was black out at that time and the area was completely dark. The accused saw the complainant and approached the complainant from behind and placed one hand on her mouth, the other hand around her waist locking both her hands and dragged her to his house. In his house, the defendant removed his trousers, took out his penis and tried to force it into the complainant’s mouth but she struggled and refused. The accused then removed the complainant’s clothes and forced her to lay down. The accused then spread the complainant’s legs and sexually penetrated her by inserting his penis into her vagina without her consent. After the accused was done, he told the complainant to go away. The complainant then went and reported the incident to her mother.

The State alleges that the actions of the accused contravened Section 347(1) of the Criminal Code.’

PROSECUTION EVIDENCE

4. The State called three witnesses, namely Ruth Alalo, the alleged victim
   (Ms Jack), as well as her mother, Regina Jack.
   
5. As part of the State’s case, the following documents were tendered into evidence by consent of the parties, namely:
   
   1. Medical Report – exhibit P-1.
   2. Record of Interview – Pidgin version – exhibit P-2
   100. Record of Interview – English version – exhibit P-3
        

Evidence of Ruth Alalo

6. Ms Alalo gave evidence that she is a Health Extension Officer. She examined Ms Jack at about 9 a.m. on 23 April 2023 and found that Ms Jack’s hymen was absent. Ms Alalo was the author of the medical report, which is exhibit P-1.
   

Evidence of Jacquinah Jack

7. The evidence of Ms Jack was that she is a student in grade 12 at Mendi Secondary School. She said that on the evening of Saturday 22 April 2023, she was at her house in Unjamap, Imbogu District, Southern Highlands Province, when she received a phone call from the accused. She said that at the time of this matter, she was in grade 9 and 10 at school. Ms Jack said when the accused called her, he asked her to go to a store so that he could buy her a drink and that she was 17 years old at the time.
   
8. Ms Jack said she left her house and went to the store but that the accused was not there, so she turned back to her house. Ms Jack then said she went back and was at the junction to the road that leads to his house when she saw the accused coming out of his house.
   
9. Ms Jack said that once the accused was in close proximity to her, and as she was turning to walk to the store, the accused came behind her and put one of his hands on her mouth and the other on her breast and that he dragged her to his house and pushed her into the living room and then onto his bed. Ms Jack said the accused then said “shut your mouth.” He then removed his trousers and tried to put his penis in her mouth but she avoided it. During this time, Ms Jack said the accused had pressed her down on the bed by pressing one of his hands on one of her breasts, removed her trousers and fitted a condom on his penis with his other hand. She said that during this time she continuously struggled with him, during which time one of her legs broke a solar panel on the side of the bed.
   
10. In cross examination, it was put to Ms Jack that she would text or call the accused, to which she responded that she would never text or call the accused. She said that the accused would assist her with science work and that he would call her. Ms Jack agreed in cross-examination that she used the name “LaiValley, New Guinea” as her Facebook name.
    
11. During cross-examination Ms Jack was shown exhibit D-2, which she agreed was a series of Whatsapp messages between her and the accused. She agreed that in certain messages she had used heart and kiss face emojis.
    
12. During cross-examination, Ms Jack was shown a Google maps photo of the accused’s house, including the neighbouring houses, the main road and the road leading to his house. This photograph was subsequently admitted into evidence on behalf of the accused as exhibit D-1. During the time Ms Jack was shown exhibit D-1, it was put to her that she had walked all the way to the accused house and met him out the front of the house. Ms Jack denied this and said she met the accused at the junction of the main road with the junction that leads to the accused’s house. Ms Jack said when she first saw the accused at the junction, he was about one metre away, following which the power in the town went out. In reply to a subsequent question by the accused’s counsel, she said that once she had seen the accused at the junction, that the accused grabbed her after about two to three minutes as she was walking in the direction of the store.
    
13. Ms Jack then said in cross-examination that the accused grabbed her from behind and put one hand on her mouth and the other on her breast and dragged her backwards from the junction to his house. She said that she tried to scream but during this time the accused kept his hand over her mouth so that she could not make any noise.
    
14. Ms Jack stated in cross-examination that once inside the accused’s house he forced her onto his bed at which time he tried to put his penis in her mouth but she avoided it. She said that the accused then removed his trousers, while he pressed her down on the bed with one of his hands on one of her breasts, removed her trousers and fitted a condom on his penis with his other hand, all the while that she said she was continuously struggling with him.
    
15. Following re-examination, the Court asked Ms Jack a number of questions, including how far she said the road junction was to the accused’s house. By comparison, Ms Jack indicated the distance from the witness box in the court room to the large red fence on the other side of the carpark at the court house. I am satisfied the distance to which she indicated was about 40 to 50 metres.
    

Evidence of Regina Jack

16. Regina Jack (Mrs Jack) is the Ms Jack’s mother. She gave evidence that on the evening of the alleged rape, she attempted to call her daughter, however, Ms Jack did not respond to her calls or messages. She said that when Ms Jack returned home, Ms Jack told her that the accused had grabbed her and raped her. Following this, Mrs Jack said that she and some family members went to confront the accused.
    
    

EVIDENCE FOR THE ACCUSED

17. As part of the accused’s case, he relied on two documents, which were admitted into evidence, namely:
    
    1. document entitled ‘Google map of my house at the school’ – exhibit D-1; and
    2. a series of photo and print-outs of text messages between the accused and the complainant – exhibit D-2
       

Evidence of the accused

18. In his evidence-in-chief, the accused said he received a text on his mobile phone from Ms Jack whilst he was at church on 22 April, which stated “apinun”. The accused said he responded to the text about 4 p.m. that afternoon and they then texted each other for the next three to five minutes. In several phone calls between 5.50 to 6 p.m., Ms Jack called the accused and asked if he would come out of his house. The accused said he told Ms Jack that he would not, however, she told him that she wanted to see him in the street. The accused said he then texted Ms Jack and said as it was getting dark and it was about to rain, that if she wanted to come and see him that she would need to bring an umbrella. The accused said that Ms Jack called him again, however, her phone ran out of credit, so he called her back but his phone then ran out of credits. He said he then went outside his house at about 6.05 or 6.10 p.m. and it was still light. He said that he then went to buy some greens/ vegetables at the school market, which was about 140 metres away, however, no-one was serving vegetables, so he went back home.
    
19. The accused said that while he was walking back from the school market to the junction, there were about 5 to 10 people moving about. He said that as he passed through the road junction, there was no sign of Ms Jack. The accused said he then arrived home at about 6.30 p.m. and tried to turn on the TV, however, there was no power to the house and the local area. He said Ms Jack then texted him to say she was outside his house. He said he went outside and was surprised to see her standing at his gate. The accused said he told Ms Jack, “You don’t come here. It is not right for you to come here. You should have seen me at the junction.” He said Ms Jack did not say anything.
    
20. The accused said that at this time, four people walked past his house. The accused said he told Ms Jack to go home, but she followed him into his house and said she was scared of seeing the people who were walking past the house. The accused said he told Ms Jack that the three boys who live at the house with him would be home soon and he did not want them to see her in the house. He said the names of the three boys were Joshua Jack, Nicki Lapex and Ari Robert. The accused said that as he was speaking to Ms Jack at this time that PNG Power came back on at about 7.10 to 7.15 p.m.
    
21. At this time, the accused said as people were walking past his house and they could see into his house from the street, he asked Ms Jack to stand on the verandah. The accused said Ms Jack agreed to this request and while she was standing on the verandah, he stood outside the gate of his house. He said during this time, Ms Jack’s mother tried to call her several times, but Ms Jack did not answer the calls. The accused said he stood there talking to Ms Jack for about 40 to 50 minutes, following which he went back up to the verandah of the house and told Ms Jack the road was clear that that she should now go home.
    
22. During this time, the accused said Ms Jack’s mother sent another text, which he read, which stated in Tok Pisin, “Whose dick are you sucking that you are not responding to my call?” The accused said at this point, as it was raining, he went into his house and got Ms Jack a jumper that had a hood (which he also referred to as the “cold shirt”) and gave it to her, following which she left the house and walked up the road.
    
23. The accused said part-way up the road, which was about 20 metres from his house, Ms Jack took off the cold shirt and left it at the base of a tree. He said he gave the cold shirt to Ms Jack, as it had a hood, to hide her face because he did not want people to see her leaving his house.
    
24. The accused said he then went inside and turned on the TV, and that while he was looking at the screen, all he could think about was that the fact that Ms Jack was at his house and that was an awkward situation. He said during the time Ms Jack was on his verandah, he did not touch her and he denied raping her.
    
25. The accused said that between one and a half to two hours later after Ms Jack had left his house, his aunty came running to his house to say that some people had attacked her in the village. The accused said he immediately realised that his aunty had been attacked because Ms Jack had visited his house. He said he also expected something like this would happen.
    
26. He said a few minutes later, some of Ms Jack’s sisters, her mother and her uncles came to his house and starting swearing at him. He said he attempted to talk to them, however, but they threw stones on the roof, which fell down and broke the louvre window panes. He said that Ms Jack’s family members then destroyed the flower bed, so he called the police.
    
27. During his evidence-in-chief, the accused also produced the screen shots of his text messages with Ms Jack, which were subsequently admitted into evidence as exhibit D-2.
    
28. In cross-examination, the accused said that he helped Ms Jack and other students at the school who had difficulty with their subjects.
    
29. The accused said in cross-examination that Ms Jack was at his house from approximately 7 to 8 p.m. He was asked whether he liked Ms Jack in a personal way, to which he responded they were friends on social media. In reply to the question about why he did not want people to see Ms Jack at his house, the accused said it wouldn’t look good for people to think he and Ms Jack were having an affair. This was because Ms Jack was a student.
    
30. A number of questions were put to the accused in cross-examination that he had sex with Ms Jack in his house, including ample time to rape her, all of which questions he denied.
    
31. In re-examination, the accused was asked why he agreed to meet Ms Jack. He said he did so, but did not know why she wanted to see him. He denied ever allowing Ms Jack into his house. The accused also denied ever having sex with Ms Jack.
    

Evidence of Jennifer Joel

32. Ms Joel gave evidence that she is the accused’s aunty. Her evidence was largely about how on the evening of the incident, after she had closed her market, she was walking home when members of Ms Jack’s family attempted to attack her, which she later came to realise was because of the alleged rape of Ms Jack by the accused.
    

Evidence of Joshua Jack

33. The evidence of Mr Jack was that he lived with the accused. He said it was known that Ms Jack and the accused had a social media friendship and would talk on the phone together. He gave evidence that prior to the alleged incident that the accused had told him and other students not to encourage Ms Jack to be too friendly with him (the accused).

SUBMISSIONS BY THE PROSECUTION

34. I have extracted below the following from the written submissions of the State’s case, namely:
    

‘ANALYSIS OF EVIDENCE

• State witnesses the Victim and her mother Regina Jack were confident when giving their evidence. The victim confidently told her story during examination in chief but inconsistencies about the distance from which she was dragged by the accused arose during cross-examination. But this inconsistency was cleared when the accused gave evidence that the victim was already at his front gate when he first saw her that night. This clears the doubt relating to distance and confirms the victim’s story in examination in chief.
  
• Defence witness Jennifer Joel was unsure of the time when the victim went to her house. She finished marketing around 7pm and she said victim came to her house 3 or 4 hours later so that means that it was around 10pm to 11pm, that was after the time of the offence when the victim went to her house. She was nervous in court when answering questions.
  
• Evidence of Joshua Jack basically confirmed that the accused was alone at his house at the time of the offence. He also suspected that the accused had a relationship with the victim.
  
• Evidence of the accused confirms he had a phone relationship with the victim. He spent almost an hour or more with the victim that night, they were alone and that was ample time for him to drag the victim into the house and rape her. Victim was easily overpowered given that the accused is a grown man and the victim was 17 years old at that time.
  
• Through a School Board meeting, accused was only allowed to assist students in his class with their school work through phone communication, despite this, accused assisted the victim with school work because it is evident that he had an interest in her. Then he lured the victim with text messages to his house, it was black out at that time so no one could see what was happening, he himself gave evidence that he was scared of people seeing him with the victim at his house.
  
• Even though accused denies raping the victim, the evidence as presented is that Medical Evidence confirms that victim was sexually penetrated and it could not have been anyone else considering the accused was the only man with the victim that night and they were alone for a long period.
  
• Accused was nervous in court when questions were asked about the relationship between himself and the victim but that is evident form messages exchanged between the victim and himself, this evidence was tendered in Court by Defence.
  

Agreed Facts
It is agreed that the accused had a phone relationship with the victim.
It is agreed that the victim was not a student of the accused but he assisted her with school work regardless.
It is agreed that the victim was at the accused’s home at the time of the offence.
It is agreed that the accused and the victim were alone for about an hour at the accused’s house that time.
It is agreed that the victim was sexually penetrated at that time.

ELEMENTS OF THE CHARGE
The accused had raised the defence of General Denial that he wasn’t the one who raped the victim as alleged. So the elements of the charge that needs to be proven by the prosecution are that:

1. The accused – Whether or not the accused raped the victim.

From the evidence, the accused was the only man with the victim that night of the offence. They had a phone relationship as evidenced through the messages presented before the court. There was no other man with the victim at the time of the offence, she was with the accused, this is confirmed by evidence before this court.

b) Sexually penetrated the victim;
The Medical Report was tendered by the State and the HEO who was called in gave evidence that there was sexual penetration and further stated during cross-examination that not all victims of rape present themselves with abrasions or bruises around the genital area.

c) Without her consent;
Victim gave evidence that there was a struggle, she was dragged by the accused to his house and it was black out at that time. Victim was 17 years old at that time and the accused was a grown man who easily overpowered the victim. From the evidence, the accused dragged the victim into his house, laid her on the bed, he had one hand on the victim pressing her down onto the bed, the other hand he held a condom which was already removed from its packet. The accused then placed the condom on his penis and sexually penetrated the victim. All the while the victim was struggling.

The State therefore submits that all elements of the offence have been proven by the State, a Verdict of Guilty should be entered by this Honourable Court.’

SUBMISSIONS BY THE DEFENCE

35. I have extracted below the following from the written submissions for the accused, namely:
    
1. RUTH ALOLO
   
8. She is the author of the highly inconclusive medical report from the Family Support Centre. Her evidence was that she saw no Hymen as it was absent but when off of what she was told by the complainant that there was a rape.
   
9. She confirmed that there were no other bruises on the vagina, breasts or other parts all over the complainant body at all.
   

ii) JACQUINAH JACK (COMPLAINER /PROSECUTRIX)

10. The complainer is the only key eyewitness that is brought by the state in its case. This only key witness demeanour and evidence in court showed her to be a very unreliable witness.
    
11. She was not able to maintain a straight face and a straight story in court when giving her evidence, she appeared to be nervous and guilty that she was misleading the court.
    

12. She had very unrealistic answers to questions and incredible explanations about:

• How Jcquinah Jack was dragged from a Public and busy community road junction to the house of the accused during the early hours of a Saturday evening.
  

- In cross examination, she agreed that the community road cuts through the school area and that road is a main road that people in her community use to go the store and even access their ceremonial areas (Ples sing sing) meeting place.

• How the accused managed to pull Jcquinnah Jack all the way to his house over 100 meters
  

- When put to her that the distance she would have been dragged for over 100 meters, she tried to mislead the court into thinking it was a much shorter distance (from where the witness dock is to the court gate fence- 50 meters).

- This was immediately discredited by her mother’s evidence who told the court that the distance is from the witness dock to the house on the mountain (about 100 meters plus away).

- She was committed to her lies and tried to justify that distance by saying the three teachers houses before Mr. Siwi’s house were less than 2 meters apart.

- She said she managed to scream and was screaming, she then says the accused had his hand on her mouth and breast and was dragging her all the way to his house.

- She was asked if she had broken her footwear or received cuts (Blisters, Bruises) to her feet in the struggle after losing her footwear and her answer was a depressed and guilty sounding “no”.

- She was asked if her shirt was torn in the struggle or any shirt buttons of hers were broken during that long struggle and her answer again was a guilty sounding “no”.

- On other inconsistent part of her story was on how she first saw the accused, she walked away for three minutes before he grabbed her. When asked how many steps she took away from the accused within those three minutes she said she only took three steps before she was held by the accused. When asked what she was repeatedly asked what she was doing in those three minutes she did not have an explanation.

- Throughout this whole time, she is in her own village area surrounded by her tribesmen, brothers, uncles, community members on a busy Saturday evening road and Mr. Siwi is not a local and is from Simbu Province.

• . How Jcquinah Jack would communicate with the Accused through phone calls, texts and WhatsApp messages, social media
  

- -Initially the witness tried to make it seem like the accused was an unwanted caller who would make annoying calls to her that she would not want to entertain, and she said that would never call him or text him either.

- However, through further cross examination she slowly came to admit that they would have along phone conversations about schoolwork and that the accused would give her lots of advice over the phone.

- She was then asked if she was facebook friends with the accused and if they had exchanged numbers of the facebook and she confirmed that that was truly the case and there was not a in class or in school exchange of phone numbers.

- She was then asked if she what’s app him and she said they did. When shown some screen shots she denied they were her messages but asked if she sent him heart and kiss face emoji messaged, she denied sending him kiss emojis but then admitted that she would send him heart emojis only.

- This was a big shift in her evidence that he was the who call and bother her.

- From her mother’s evidence as well, the mother had no idea she had a phone relationship, and she was with her mother at the house before she decided to leave to see the accused without letting the mother or anyone know.

• How Jcquinah Jack was allegedly raped. how the Accused managed to wear a condom while restraining her as she struggled.
  

- The story about how the alleged rape occurred in the accused house was even more unbelievable.

- The witness says that he managed to drag her all the way from the junction, into the house, the door was open, he pushed her onto the bed and held her down with his left hand.

- With his right hand he managed to zip off his trousers, pull off her trousers, take out a condom, wear it properly and then insert his penis into her vagina while she was screaming, kicking and struggling to escape.

- Throughout this whole alleged incident, the witness is a local with her tribes and village men surrounding the area and the teacher is from another Province.

- She said he did it four times, then later she said it took one to four minutes. She said she felt pain at first when he inserted his penis into her vagina while she struggled and then felt no pain after wards.

- She says the whole time she kept struggling until her leg ended up kicking the solar panel light somewhere in the house.

3. REGINA JACK (MOTHER OF COMPLAINER)
   

13. She is not a key witness and did not give evidence of the rape but gives evidence that the daughter came back after the witness had been calling non-stop and texting her.
    
14. She says she was very frustrated and asked the complainer where she was. The complainer then started crying and said that Mr. Siwi had pulled her and raped her.
    
15. The witness then went with her brothers to attack the accused and when he was not there, they destroyed his house and cut down his banana trees. They would have done this aggressively with bush knives.
    
16. This witness’ evidence about the distance between the road junction and the accused house clearly shows that the key witness (Complainer) was intentionally lying about the distance between the road junction and the accused house to make it seem like she was closer to the accused house, and it was easier to be quickly dragged in.
    

7. BRIEF ANALYSIS OF DEFENCE’S EVIDENCE
   

The Defence called a total of 3 witnesses:

1. OSCAR SIWI (ACCUSED HIMSELF)
   

17. The accused gave evidence that the complainer was his facebook friend, she asked for his number, and she would often call and message him.
    
18. The accused produced screenshots of their discussions in court showing that the complainer sending him unwarranted heart and kiss face emojis.
    
19. The accused said that the complainer began to develop feelings for him and their relationship became more inappropriate as the complainer would pester him to help her work and would send him messages.
    
20. The complainer would also tell others about their relationship and the accused did not want to be seen as a teacher who had inappropriate relations with female students at his school, so he told his boys not to talk to the accused, carry any messages or encourage her behaviour.
    
21. The night of the alleged incident the complainer was messaging the accused and said she wanted to come see him. However, before they could finish their conversation their credits ran out and their phones went off due to power black outs.
    
22. The accused went out to the market area near the junction but did not see the complainer and he went back to his house. A few minutes later without any warning the complainer walked up right to the front of the accused’s house.
    
23. The accused was not happy and scolded the complainer saying she should not have come to his house in the night as it would paint a bad picture of him having a young female student at his house at such a late hour.
    
24. He said she did not really bother with what he was saying was fidgety and walking around the front of the house.
    
25. He says at that time any people were walking past his house and he did not want them to see her so he told her to stand in the front yard and veranda of his house.
    
26. While they were waiting for people to clear out of the road, the mother was calling the complainer’s phone and when there was no answer, the mother was so angry that she went a very angry text asking the complainer “yu kaikai kok blo usait na yu no answerim call blo me” meaning whose dick are you sucking and not answering my call.
    
27. The complainer was already scared and had to find a way to go back home without people seeing her. After some minutes the accused had to give the complainer his coat/jumper to hide her face and walk out. She walked out with his jumper and when she was further away from his house, she left his jumper on the side of the street hug up beside a fence. He saw her hang the jumper and walked a few minutes later to collect the jumper.
    
28. The accused then went back into his house and spent a few minutes just thinking about the situation he was just in when his aunty arrived at his house crying and telling him that she was attacked and chased by the complainer’s relatives and that he must explain what they were doing at night.
    
29. The accused quickly locked the doors and hid in his house. The house was then attacked by the mother and relatives of the complainer. Stones came flying into his house smashing the louvers and his bananas were being cut down with bush knives.
    
30. The accused made phone calls to his boys and to the police to save his life. The matter was to be dealt with administratively by the school but the complainer and her relatives made up the story that he had raped her and he was arrested a few days later.
    
    2. JENNIFER JOEL
       
31. This witness is the Aunty of the Accused. She says that she saw the complainer that night. She says the complainer seemed normal and came to wash her feet at the tap at her house as it had been raining, and her feet were muddy.
    
32. A few minutes later the mother and relatives tried to attack her because of what her nephew was accused of doing. She ran straight to the accused house and warned him that the relatives of the complainer were coming to attack him.
    
    3. JOSHUA JACK
       
33. This witness lives with the accused and a long time classmate of the complainer and knows both the complainer and the accused very well.
    
34. The complainer also agreed that they have both been classmates since primary school.
    
35. This witness says that the complainer would never come to the accused ‘s house but would often makes jokes in class with her friends about the accused and complainer. The complainer would often be referred to the accused as the Accused wife by her female best friend in class.
    
36. This witness was then warned by the accused not to encourage the complainer and to stay away. They saw the complainer ‘s behaviour could get them into trouble.
    

H. CONCLUSION

37. We submit that the evidence adduced from the state is highly unreliable and has many holes and its does not pass tests of common sense and logic.
    
38. We submit the evidence given by the defence witness makes more sense, and the exhibits, maps and screen shots of the messages shows clear picture of what actually happened.
    
39. The evidence given by the only key state witness (Complainer) makes no sense at all. From how she was dragged over the long distance without any scratches, torn or stretched clothing to how she was forced all the way into the house and held down while the accused was able to remove their clothing and wear a condom while she struggled and scream for help.
    
40. We submit that the state has not proven its case beyond reasonable doubt and a verdict of not guilty should be returned and the accused should be acquitted of the charge of rape.
    

41. Although the nature of their social media friendship may have been inappropriate and in breach of school policy. The accused should not be found guilty of the very serious Offence of Rape as nothing near has been proven by the unreliable evidence of the state.’

ANALYSIS OF THE STATE AND DEFENCE CASES

36. The accused was charged with the rape of Jacquinah Jack on 22 April 2023 in contravention of section 347(1) of the Criminal Code. Section 347(1) of the Criminal Code provides as follows:
    
    347. DEFINITION OF RAPE.

(1) A person who sexually penetrates a person without his consent is guilty of a crime of rape.
Penalty: Subject to Subsection (2), imprisonment for 15 years.
(2) Where an offence under Subsection (1) is committed in circumstances of aggravation, the accused is liable, subject to Section 19, to imprisonment for life.

37. Section 347A and 347B of the Criminal Code provide as follows:
    

347A. MEANING OF CONSENT.
(1) For the purposes of this Part, “consent” means free and voluntary agreement.
(2) Circumstances in which a person does not consent to an act include, but not limited to, the following: –
(a) the person submits to the act because of the use of violence or force on that person or someone else; or
(b) the person submits because of the threats or intimidation against that person or someone else; or
(c) the person submits because of fear of harm to that person or to someone else; or
(d) the person submits because he is unlawfully detained; or
(e) the person is asleep, unconscious or so affected by alcohol or another drug so as to be incapable of freely consenting; or
(f) the person is incapable of understanding the essential nature of the act or of communicating his unwillingness to participate in the act due to mental or physical disability; or
(g) the person is mistaken about the sexual nature of the act or the identity of the person; or
(h) the mistakenly believes that the act is for medical or hygienic purposes; or
(i) the accused induces the person to engage in the activity by abusing a position of trust, power or authority; or
(j) the person, having consented to engage in the sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity; or
(k) the agreement is expressed by the words or conduct of a person other than the complainant.
(3) In determining whether or not a person consented to that act that forms the subject matter of the charge, a judge or magistrate shall have regard to the following: –
(a) the fact that the person did not say or do anything to indicate consent to a sexual act is normally enough to show that the act took place without the person’s consent; and
(b) a person is not to be regarded as having consented to a sexual act just because –
(i) he did not physically resist; or
(ii) he did not sustain physical injury; or
(iii) on that or on an earlier occasion, he freely agreed to engage in another sexual act with that person or some other person.
347B. WHERE BELIEF IN CONSENT IS NOT A DEFENCE.
It is not a defence to a charge under this Part that the accused person believed that the person consented to the activity that forms the subject matter of the charge where –
(a) the accused’s belief arose from his –
(i) self-induced intoxication; or
(ii) reckless or wilful blindness; or
(b) the accused did not take reasonable steps, in the circumstances known to him at that time, to ascertain whether the person was consenting.

38. Section 6 of the Criminal Code Act provides as follows:
    
    6. SEXUAL PENETRATION.
    
    When the expression “sexual penetration” or “sexually penetrates” are used in the definition of an offence, so far as regards that element of it, is complete where there is –

(a) the introduction, to any extent, by a person of his penis into the vagina, anus or mouth of another person; or
(b) the introduction, to any extent, by a person of an object or a part of his or her body (other than the penis) into the vagina or anus of another person, other than in the course of a procedure carried out in good faith for medical or hygienic purposes.

39. In the circumstances, the Court needs to consider the elements of the alleged offence, which are that:
    
    1. the accused
    2. sexually penetrated the complainant
    100. without the consent of the complainant
         
40. In order to satisfy the elements of the offence, the State is required to produce evidence to prove the elements of the offence beyond reasonable doubt. In Regina v Barie [1955] PGSC 11, the court stated as follows:
    

“On such charge onus [is] always on Crown to prove guilt beyond all reasonable doubt – no onus on accused to prove innocence. Such proof requires proof to that degree of all elements constituting alleged offence...”

41. I now consider the evidence.
    

Credibility of Jacquinah Jack

42. I find that Ms Jack was not generally a truthful and reliable witness. Also, she failed to answer specific questions. For example, when asked how long she said it took for the accused to drag her to the house, she responded ‘No.”
    
43. Ms Jack was generally not consistent with her evidence, which I have discussed further below in this judgment. I also consider that on one level,
    Ms Jack (in the way she answered questions, the inconsistencies in her answers and the manner in which she failed to answer certain questions), failed to appreciate the seriousness of the allegations against the accused and was naive about the consequences of a finding of guilt against the accused.
    
44. In her evidence-in-chief, Ms Jack initially portrayed her interaction with the accused as occasional correspondence on Whatsapp so that he could assist her with her school work and that the accused would always initiate those interactions. It soon became apparent during cross-examination that Ms Jack was in regular contact with the accused and often initiated text messaging and phone calls.
    

Whether Jacquinah Jack had a motive to lie

45. It is necessary to consider whether Ms Jack had any motive to lie in her evidence. On the evidence, I am satisfied that Ms Jack had developed feelings for the accused, who had been a teacher at her school. On the evidence of Ms Jack and her mother, it was clear that Mrs Regina Jack was looking for her daughter on the evening of 22 April. I am also satisfied that upon receiving the text messages from her mother, and failing to answer those text messages, that this would only make the matter worse. Indeed, I am satisfied Ms Jack knew that other family members would also start looking for her, so in order to deflect attention away from the fact that she was visiting the accused, she made up a story to say that the accused grabbed her at the junction and dragged her to his house and raped her.
    

Credibility of the accused

46. I consider that the accused was a truthful witness. I am satisfied from the evidence that the accused knew that Ms Jack had feelings for him. I am also satisfied that the accused was flattered by the fact that a young women had feelings for him and was paying him attention. I am also satisfied from the accused’s evidence that he very much regrets overstepping his social media friendship with Ms Jack and being in contact with her regularly. No doubt this has caused his much embarrassment and damage to his professional and personal reputation, however, I found his evidence to be consistent and truthful.
    
47. However, I accept from the accused’s evidence that Ms Jack walked to his house and that he felt very uncomfortable about that issue, in circumstances were Ms Jack was a student, he was a teacher and people in the town knew both of them and would consider them being seen together on a Saturday evening at or near his house to be inappropriate conduct.
    

Inconsistencies in the evidence of the State’s witnesses

48. In her evidence-in-chief, Ms Jack initially portrayed her interaction with the accused as occasional correspondence on Whatsapp so that he could assist her with her school work and that the accused would always initiate those interactions. It soon became apparent during cross-examination that Ms Jack was in regular contact with the accused and often initiated the text messaging and phone calls. In this regard, the State should have produced a copy of all the phone records between Ms Jack and the accused, but did not do produce any phone records. This is one particular area where the State’s evidence was lacking. The records should have been sought through a search warrant from the mobile phone provider.
    
49. Ms Jack said in her evidence-in-chief that she initially saw the accused coming out of his house when she was standing at the junction, however, during cross- examination, she agreed said that the first time she saw the accused that evening was when she was standing at the junction when he was only one metre away and walking towards her.
    
50. Ms Jack said that when she saw the accused at the junction, she had only taken two to three steps when we grabbed her from behind. This evidence was in stark contrast to her subsequent evidence that once she had seen the accused at the junction, that he grabbed after about two to three minutes.
    
51. I am satisfied from the accused’s evidence and exhibit D-1 that the distance from the road junction to the accused’s house was just over 120 metres. I am satisfied that Ms Jack walked to the accused house at about 7 p.m. on the Saturday night. On this basis, I consider it inconceivable that the accused (who was known in the local community), would effectively abduct Ms Jack in a public area at about 7 p.m., in the knowledge that there would be a risk that he would be seen by people walking in the area, and then drag her backwards over 120 metres to his house (passing six other houses).
    
52. As stated above, the Court asked Ms Jack a number of questions, including how far she said the road junction was to the accused’s house. By comparison, Ms Jack indicated the distance from the witness box in the court room to the large red fence on the other side of the carpark at the court house. I am satisfied the distance to which she indicated was about 40 to 50 metres. This is at significant odds with the fact, based on the Google maps exhibit and the accused evidence, that the accused’s house was more than 120 metres from the junction.
    
53. On the evidence of Ms Jack, where she says she was attempting to scream, I also consider that if her version of events were true (which I do not accept), I consider it would have been very difficult for the accused to ensure that none of her screams were heard.
    
54. I also do not accept Ms Jack’s evidence that the accused removed his trousers, while he pressed her down on the bed with one of his hands on one of her breasts, removed her trousers and fitted a condom on his penis with his other hand at the same time, all the while that she said she was continuously struggling with him.
    
55. When initially asked by the accused’s lawyer if it was hurting when the accused had inserted his penis into her vagina and was having sex with her, Ms Jack said “No.” She then changed her answer to say it was hurting her.
    
    

Conclusion

56. Based on the above matters, I consider that there were too many inconsistencies in the evidence of Ms Jack. While I accept the finding in the medical report that Ms Jack’s hymen was absent, I am not satisfied that any evidence was adduced to demonstrate the approximate time or date when the hymen became dislodged.
    
57. The accused conceded through his lawyer that his social media friendship with Ms Jack was inappropriate. I find this to be the case and consider that the accused clearly overstepped the boundaries between a teacher and student relationship. Moreso, I am satisfied from the evidence that the accused was most likely flattered by the attention he was receiving from Ms Jack. I am also satisfied that she had developed feelings for the accused. However, due to the matters stated above in this judgment and the inconsistencies in Ms Jack’s evidence, I am not satisfied beyond reasonable doubt that the accused committed the act of rape.
    
58. In the circumstances, I find the accused not guilty of the rape of Ms Jack in contravention of section 347(1) of the Criminal Code.
    
    
    

Verdict

59. The accused is found not guilty on the charge of rape against Jacquinah Jack on 22 April 2023 at Unjamap, Mendi, Southern Highlands Province, contrary to section 347(1) of the Criminal Code.

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