N853

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

CHARLES

Lae
Doherty AJ

24 January 1990
29-31 January 1990
1 February 1990

CRIMINAL LAW - Particular offences - Rape - Consent - Revocation of consent - Conditional consent - Non-fulfilment of conditions implying revocation - Agreement to go to home of parents - Taken to deserted house - Implied consent revoked when safety withdrawn - Criminal Code (Ch No 262), s 347.

On a charge of rape,

Held:

(1) Consent (either express or implied) to sexual intercourse may be given in such a way that it is dependent on conditions, non-fulfilment of which will imply revocation of that consent.

(2) In circumstances where the prosecutrix agreed to go with the accused to his parents’ house for the night but was taken instead to a broken-down and deserted house nearby where sexual intercourse was forced upon her by the accused and four others, any implied consent to sexual intercourse in the safety of the parents’ house was revoked when the accused sought to take her to a dangerous place.

Cases Cited

The following cases are cited in the judgment:

Aubuku v The State [1987] PNGLR 267.
State, The v Kalabus [1977] PNGLR 87.

Trial

This was the trial of an accused on a charge of rape under s 347 of the Criminal Code (Ch No 262).

Counsel:

B Poiya, for the State.
M Z Zurecnuoc, for the accused.
Cur adv vult

1 February 1990

DOHERTY AJ.: The defendant Terry Charles is indicted on one charge of rape.

It is not an issue that sexual intercourse took place in a deserted and broken-down house on Seventh Street, Lae, about 2 am on 29 April 1989. What is an issue was whether the prosecutrix L G had consented to the act of sexual intercourse with the defendant Terry Charles.

On the night in question, other men had sexual intercourse with the prosecutrix. The State says it was a "pack rape" and that the defendant was a principal, he had planned it and "arranged" it. The defendant says that the prosecutrix agreed to have sexual intercourse with him and that the other men came whilst the act was taking place and saw them. They came into the broken-down house and he ran off, leaving the prosecutrix to her fate which was to be raped by four men. Only the defendant was arrested although the prosecutrix gave quite a clear description and location of at least one of the others. The defendant says the police have a grudge against him because of his previous record and this is the sole reason for the charge.

The prosecutrix, a hefty young woman, was then six months pregnant (her medical report shows a more advanced stage of pregnancy). The defendant says he did not know she was pregnant. He did not know her name until the date of his arrest and record of interview with the police.

The couple met at a dance on the night in question. The defendant says he had seen the prosecutrix on several occasions before and referred to her throughout his evidence as a prostitute. He says he knew she slept with policemen at the police barracks and with other men. He says she made advances to him on earlier occasions. The prosecutrix says she knew the defendant because he was a criminal (although this statement was not clarified) and was the boyfriend of a friend of hers called Grace. The defendant denies the existence of Grace.

A fight broke out at the dance. The prosecutrix had come with at least one other friend. She says the defendant sent a small boy to tell her to come to him and as she knew him as Grace’s friend, she went. He offered to take her to his house and then to her own house the following morning. At this time it was between one and two in the morning and she was worried about her safety because of the fight. The two left hand in hand — that, at least, is undisputed — and proceeded down the road until they came to a bush track in the vicinity of Fourth Street. He told her this led to his parents’ house. The defendant also says that he told her he would bring her to his parents’ house. She was unhappy about the bush track. She saw men following, she says the defendant said these were his "body guards". He denies such a remark but says there were men who were coming from the midnight theatre. In any event, there were other men in the vicinity and both the defendant and prosecutrix were aware of their presence.

The defendant says that, as he approached his home, he realised he could not bring such a woman home and decided to take her to an empty house instead. This house was one house away from his parents’ house. In answer to questions, it was quite clear that the mother of the defendant would not in any circumstances permit the defendant to bring such a woman home for sexual purposes; only if she was a future wife would it be accepted that she could be brought home. Mr Zurenuoc said the prosecutrix must have known this also; that this is a customary matter and it is not acceptable to take someone home when they are not known to the parents. I cannot accept that the defendant suddenly realised this as he walked along. He is too emphatic about his parents’ attitude to have been unconscious of it when the original agreement was made.

Both he and the prosecutrix say that the parents’ home was mentioned as their destination prior to the departure from the dance. Hence there appears to be an element of false pretence on the part of the defendant. The prosecutrix left her friends at the dance to accompany the defendant; if she was afraid for her own safety, it seems to me she would have been equally as safe with her friends. She went voluntarily to the "home of the parents". She says they arrived at a house on Seventh Street and it was immediately apparent to her that this was not the parents’ house; it was a broken-down house with holes in the walls, dark and unoccupied. She says the defendant pulled her forcefully into the house, the defendant says she went in voluntarily. Clearly there was no conversation between the parties directly on the question of sexual intercourse prior to the arrival at the house. Merely that they would go to the parents’ home for the night and she would go home the next morning. There was no apparent exchange of words, looks or embraces that would indicate clearly that the defendant was asking the prosecutrix home for sexual purposes and that she agreed to it. On the other hand, the incident took place at 2 am in the morning, coming from a dance and leaving friends to go alone to a man’s house. Would an act of sexual intercourse be implied in such a situation? The prosecutrix is not a naive young girl being lured into the gardens at the village. She is a mature woman, married (separated at the time of the offence) with four children, who says she goes to dances and other such places. Going to dances and drinking beer in no way implies that a woman is a prostitute or that she consents to sexual intercourse with any man who approaches her. Even if she was a prostitute, it does not at all mean that she agrees to have sex with any man who merely invites her to walk home. It is undisputed law that a woman who is drunk or a prostitute does not automatically consent to any act of sexual intercourse.

I find that the prosecutrix agreed to go to the home of the parents of the defendant; she did this without knowing that other men would be involved; she agreed to stay the night at the house of the defendant’s parents and I consider that there was a potential of some physical act between the defendant and the prosecutrix at the parents’ house which she could foresee. To paraphrase an expression in Aubuku v The State [1987] PNGLR 267, did she behave in a manner calculated to lead the defendant to believe that she would consent to sexual intercourse?

When they arrived at the broken-down house on Seventh Street, the prosecutrix says she definitely did not agree to enter it. I find this quite reasonable. A woman in such an area at 2 o’clock in the morning in a deserted, dark and broken-down house with other men around would be alarmed for her own safety. I accept and find that she would have refused to have sexual intercourse in such circumstances. I find that the other men were close by and that the prosecutrix was not willing to go into that deserted and broken house. The defendant himself says in answer to a question, "I took her to look after her, to go with her to have sex with her". Taking her to a broken-down deserted house in an area such as Seventh Street, Lae, at two in the morning is not looking after her. I find that whilst she went willingly with him to his home, she did not go willingly into that deserted house. The question then arises: "Can a consent, albeit implied and not clearly stated, be conditional on certain matters and can it be revoked if those things are not fulfilled?"

I consider that consent can be given in such a way that it is dependent on certain conditions and that consent can be revoked if those conditions are not fulfilled. One such example is that the woman not be exposed to danger — as it is in the case before me. Others are not hard to imagine. I consider that the prosecutrix may originally have consented but she definitely revoked that consent on arrival at the broken-down house, when it became apparent that other men were present, when it became apparent that the defendant was not taking her to his parents’ home, and was instead leading her to the broken-down, dark and deserted house in a potentially dangerous area. I find that any consent, implied or otherwise, was revoked at that point.

I further consider that the situation that the defendant and the prosecutrix then found themselves in was at a point where the defendant could have continued to his parents’ home, another house away. They had not got into a physical situation where the defendant had reached a point where he was unable to control his desires. They were both fully clothed, they were in a public street, they had not entered the house. There had been no physical embrace or other physical contact between them. The defendant does not suggest he was aroused. I consider that the defendant continued on, as he said in answer to a question, "because I am a man — I was tempted; I had sex with her".

He had adequate time to continue to his own home, which in his own evidence was only a few yards away, but deliberately refrained from doing so. He made no attempt to help the prosecutrix when the other men came in; he did not haul her away with him or do anything or alert neighbours. He says he just left to save his life. She says the men came in one by one at his direction. The defence has stressed the fact that she did not shout, despite the number of houses and neighbours around and this indicates her agreement. I disagree and I find that sexual intercourse by the defendant was without the consent of the prosecutrix; it was forced upon her when she refused. I find the prosecutrix’s story corroborated by the unusual place and circumstances in which the act took place and in this I follow The State v Kalabus [1977] PNGLR 87. I also find it corroborated by the evidence of Dr Ngathan describing the condition that the prosecutrix was in when he saw her shortly after (although I accept that this condition could be ascribed solely to the attack by the other four but I do not make such a finding).

I find the defendant guilty as charged.

Verdict of guilty

____________________

Lawyer for the State: Public Prosecutor.
Lawyer for the defence: M Z Zurecnuoc.