National Court of Papua New Guinea

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These questions and answers disclosed an exan express admission in answer to questionstion 27 and an implied admission in answequest2.

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This This case case raiseraised a number of questions of law and, for that reason, I briefly consider the law on those issues before considering their application to this case.

CORROBORATION

Sexual offences of the kind presently under consideration represent a catogery of cases where there is a general rule of practice that there should be evidence corroborating that of the victim. This arises from the fact that the rape is a serious charge; easy to allege and difficult to refute: see State v. Kalabus & Anor (1977) PNGLR 87 and R. v. Finch Karo Nain (1959) No.146. As to the practical application of that general rule of practice, I note the decision in R. v. Yoka Kiok (1970) No.607 which suggests that what is required is some evidence, independent of the victim, which confirms the commission of the offence and the identification of the accused: “it is not necessary that it should confirm the prosecutrix in every detail of the crime” (ibid. p.2). In the present case, corroboration is potentially available from any of four sources: the evidence of the victim’s “sister”, the evidence of that victim’s “brother-in-law”, the medical report and the accused’s record of interview to the extent that that record of the interview contains admissions.

DISTRESSED CONDITION

Mr. Miviri, who appeared for the State, referred me to the Victorian decision in R. v. Flannery [1969] VicRp 72; (1969) VR 586 which is authority for the proposition that, in determining whether evidence of the distressed condition of the prosecutrix is capable of amounting to corroboration, regard must be had to such facts as the age of the prosecutrix and the time interval between the alleged assault and when she was observed in that distressed condition. If, having regard to such factors, the reasonable inference from the evidence is that there was a causal connexion between the alleged assault and the distressed condition, evidence of the latter is capable of constituting corroboration. Except in special circumstances, evidence of distressed condition will carry little weight and juries should be so warned by the trial Judge in the course of his address to them.

Counsel for the accused, Mr. Tamusio, responds to that by citing McCallum v. Buibui (1975) PNG 439 at p.445 to the effect that evidence of the victim’s distressed condition usually carries little weight.

I think that the true position is that such evidence might be viewed warily: Touramasong & Ors. v The State (1978) PNGLR 337. It seems clear that the distressed condition of the victim can constitute corroboration although caution must be exercised if that is the only corroboration available. No doubt, judges and juries have frequently sought to decide whether the distressed condition of the victim was the consequence of rape or the subsequent regret of one who consented at the relevant time.

In the present case, the evidence of the “sister” and her husband includes evidence of the distressed condition of the victim. If that were the only available corroboration then I might well be reluctant to convict the accused. However, as is commonly the case, the distressed condition of the victim, when combined with other aspects, may provide sufficient corroboration.

RECENT COMPLAINT

In cases involving sexual offences the victim and the person to whom she spoke may give evidence of a complaint made at the first reasonal opportunity by the victim to that person.

In the The Queen v. Yoka Kiok (1970) No. 607 Kelly J. summarised this area of the law as follows:

“Another material matter in rape cases is whether there has been fresh complaint as failure to do so provides evidence of consent, although, on the other hand, the fact that fresh complaint is made is no evidence of non-consent and such complaint does not provide corroboration of the prosecutrix’s story.”

This is a long-standing exception to the general rule which renders inadmissible prior consistent statements for the purpose of reinforcing the credit of the witness and does not constitute corroboration: Eade v. R. [1924] ArgusLawRp 24; (1924) 34 CLR 154; Kilby v. R. [1973] HCA 30; (1973) 129 CLR 460; D.P.P. v. Kilbourne (1973) AC 729.

Thus, the position seems clear: the presence/absence of recent complaint is not evidence of non-consent/consent but only enhances/detracts from the credibility of the victim and thereby reflects on the likelihood that a judge or jury will accept her as a truthful witness: Kilby v. R, supra at p.197.

Accordingly, there being evidence of a complaint soon after the act of sexual intercourse in the present case, such evidence merely operates in favour of accepting the evidence of the victim.

SILENCE OF THE ACCUSED

This was considered by Wilson J. in The State v. Jupui Kapera (1986) N567 and more recently by the Supreme Court in Biwa Geta v. The State (1989) SC367.

In the former case, His Honour followed the decision of the Supreme Court in Paulus Pawa (1981) PNGLR 498 which noted with approval certain propositions which derive from Professor O. Regan’s article “Adverse Inferences from Failure of an Accused Person to Testify” (1965) Crim. LR 711 and which I need not repeat here as they appear in that reported decision.

In the case now before me the silence of each accused tells against him most notably in that the evidence of the “sister’s” husband that he saw men fleeing from the scene remains unexplained. Given that the circumstances of the case are such that the only reasonable explanation is that those fleeing the scene were the accused men, their conduct in fleeing as soon as they were discovered weighs against them.

Silence, of itself, is not corroboration: R. v. Jackson (1953) 1 All ER 872 at p.873 per Lord Goddard CJ.; Cracknell v. Smith (1960) 3 All ER 569 at p.571 per Lord Parker CJ. However, the practical effect appears to be that the silence of an accused operates to strengthen the State’s case and to weaken the accused’s own case.

It is the accused’s conduct in fleeing the scene which tells against them here: the silence in relation to that conduct has the effect which I have just indicated.

LOCATION

I was referred to the decision in The State v. Kewa Kai (1976) N66 to support the proposition that the location of the conduct may be a relevant factor which the Court can take into account, that being a case where a small child was taken into an area of thick bush growth, allegedly for the purpose of sexual intercourse. I also note that the decision in R. v. Paiori Aravapo (1954) No.60 which suggests that a factor which may give rise to a reasonable doubt is that the time and place do not seem favourable for the commission of such an offence.

In the present case the location is a beach: location equally explicable as a chosen site for a romantic interlude as somewhere out of sight and earshot of potential witnesses. I draw no inference either way from the evidence in this case as to location.

SEXUAL HISTORY OF THE VICTIM

There are a number of bases at common law for allowing rape victims to be cross-examined about their prior sexual history. Firstly, that it is permissible to cross-examine the victim as to her prior sexual relations with other men in order to impeach her credit: Stokes v. The Queen [1960] HCA 95; (1960) 105 CLR 279. Secondly, Hanrahan’s case (1967) 2 NSWR 717 permits cross-examination as to the victim’s reputation for chastity. Thirdly, sexual relations as to prior or subsequent acts involving the accused are permitted: R. v. Riley [1887] UKLawRpKQB 26; (1887) 18 QBD 481. Rules such as these have rendered even more in pleasant the giving of evidence by rape victims and have prompted legislative reforms in a number of jurisdictions.

As Bray C.J. noted in R. v. Gun (1977) 17SASR 165 at p.168:

“I find it hard to believe that any reasonable person at the present time (ie. 1977) could assent to any of the following absurd propositions:

1. ـ T60; That a willingness to have sexual intercourse outside marriage with someone is equavalent to a willingness to have sexual intercourse outside marriage with anyone.

3. ;ټ That a at a wwho hwho has had sexual intercourse outside marriage is a fallen woman and deserves any sexual fual fate that comes her way.”

“The reaction of an experienced woman in a sexual situation may be expected to differ from the reaction of unsophisticated and inexperienced girl. It may well be relevant therefore, when consent is the defence, to inquire into her past sexual experience as a test of the truth of her account of the details of the alleged crime. Sometimes the strong inference from the medical evidence is that the woman has had previous intercourse. In such a case it is relevant to ask her whether this is so, seems if she puts forward a false claim to virginity that will reflect adversely on her credibility. These are only examples of numerous situations in which evidence of sexual experiences or sexual morality may be relevant to one of the factual issues in the case.” (ibid at pp.169-170)

In the same case, Zelling J. (as he then was) noted that such cross-examination can become little more then a character attack. Fortunately the provisions of the Evidence Act (Ch 48) give a trial Judge in Papua New Guinea the power to ensure that such abuses do not occur in cross-examination of the alleged victim in trials involving sexual offences. Secondly, His Honour note of that juries frequently regarded and admitted prior unchastity as reflecting on the truthfulness of the witness. Thirdly, and relevantly for present purposes, His Honour observed at p.174:

“Similarly it appeared to be accepted, sometimes at least, by juries that because a girl had had intercourse with one male, usually her boy friend, she could be treated as fair game by every lout who by force or fear or both compelled her to submit to his will.”

His Honour went on to put a matter within his own experience, namely “...that quite a number of women juries will not convict for rape when a girl admits she is not a virgin, on the basis that if the girl puts so little value on her chastity why should we the juries by our verdict cause a boy to be sent to gaol for violating it. Again this is not logical, but it is a fact of life which has been attested to in a number of jurisdictions.” Although trials in Papua New Guinea do not involve juries, since the trial judge in his jurisdiction takes the place of a jury it is necessary for me to bear in mind what Zelling J. observed.

The victim in this case admitted to having lost her virginity to her then boyfriend, Kinim Apelis. This was followed up with suggestions that she did not reside with her parents and other questions obviously intended to suggest to me that this victim’s sexual experience was not limited to that then boyfriend. However, not only were no direct questions put, no relevant admissions were obtained. Nor was any other evidence called. I must therefore approach this case as one in which the victim admitted a prior sexual relationship with Kinim Apelis.

There are two very important aspects which must be borne in mind in my view. Firstly, her unchallenged evidence was that Kinim Apelis stopped being her boyfriend about two weeks before the time in question, he having been her boyfriend for about two years prior to that. Indeed, although this aspect was not put to the victim, her “sister” indicated that the victim was going with someone else at the date of this offence thereby confirming that Kinim Apelis was no longer the victim’s boyfriend at that time.

Secondly, and most significantly, I note the substantial difference between having sexual relations with a boyfriend and the group sex activity which occurred on this occasion. After all, if this victim was “sexually loose”, as these three accused would have me believe, then why did they wait at the beach for Kinim Apelis to obtain the attendance of his former girlfriend? Why did they not accompany him to the place where the victim was known to be staying? Having heard all the evidence and seeing all the witnesses the answer is, to me obvious. Even bearing in mind that I am only entitled to use the record of interview of an accused person in the trial of that accused person, the obvious conclusion is that the events of this evening were planned with Kinim Apelis beforehand and that each accused now under consideration sought, in the commission of that plan, to benefit from the prior relationship between Kinim Apelis and the victim.

I would make the following findings:

1. &##160;; O60; On Thur Thursday 27th August 1987 the victim was residing at the house of her “sister” and that lady’s husband.

2. ;ټ These tese three aree accused and Kinim Apelis methat evening at which meetineeting was agreed that they would go to the beach and wait for Kinim Apelis to obtain the attendance of thtim.

3.& &160; #160;&#160 &#1t ; A requf h of her &#8r “sister” the victim went out the back of the house to fetch water.

4. ـ W6ilst doing so sheo she encountered Kinim Apelis who enticed her away from the house, a task rendered easier for him by their prior intimate relationship, he having been her boyfriend for a period of two years, a relationship which had ceased about two weeks prior to this incident.

5. ;ټ A60; At some some stage between the house and the beach Kinim Apelis found is necessary to use force upon the victim, most probably as soon as she became aware of the presence oers arst ld that that she wshe was the target of a prior arrangement.ment.

6. ҈ Upon arrival at thet the beach she was blindfolded and gagged while Kinim Apelis and each of the three accused had sexual intercourse with her.

7.&##160;;ټ&#During these acts of sexual iual intercntercourseourse she she struggled unsuccessfully and did not willingly participate, she being held down by those not directly involved with her at the time. After these acts of sexual intercourse she ran into the sea.

8. &##160; Junias Apelis TobokTobok and Anton Kumak remained on the shore throwing sticks and stones in the directions of the victim.

9. ټ J60; Joseph Otto Markikill followed the victim into the water and punched her in the head three times with a closed fist.

10. Tblows caused lacerations ions to her, notably to ight /p> <&160; #160; e rehuest of thof the vict victim’s “sister”, Robin Toweita went looking for theim.12.& He heacry (ficnitly nhis whis was before he saw the victim or knew knew wherewhere she she was).was).

13. ҈ Hceedeards eads each, meeting Kinim Apelis on the way.

14.  On ; e the way to the beae beach he saw men running arom tene.

15. ټ It being eing eing the only inference reasonably availabailable from the facts, I find that the thccusee then who were runninunning awag away from the scene at that time, ie. I find that it was these three acce accused that he saw.

16. &##160; he reachreached thed the beach the victim was standing in the sand at the edge of the beach.

17. & He took tctimiback to hiso his house.

18. &##160; He observed rved rved the vthe victim to be crying and wet as did his.

The evidence of the victim is corroborated by her injuries, as noted in the medical report. It is supported by her distressed condition, as observed by her “sister” and that lady’s husband. It is also corroborated by the unexplained conduct of the accused in fleeing the scene. Finally, in the case of Otto Markikila, corroboration derives from the clear admission in his record of interview which I have earlier quoted.

I accept the evidence of the victim save that I am unable to find that force was initially used by Kinim Apelis to lure her away from fetching water from the rear of the house where she has been staying. Her fresh complaint to her “sister” and that lady’s husband operate to support her credibility.

Accordingly, I find each of the accused guilty of the offence of rape.

Lawyer for the State: Public Prosecutor

Counsel: Mr. Nicholas Miviri

Lawyer for the Accused: Public Solicitor

Counsel: Mr. Thomas Tamusio