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State v Nandiro (No 1) [2004] PGNC 96; N2667 (21 June 2004)

N2667

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 762 of 2001

THE STATE

-V-

HENRY NANDIRO
(No.1)

WEWAK: KANDAKASI, J.
2004: 18th and 21st June

CRIMINAL LAW – Verdict – Charge of Rape – Issue for trial – Consent – Two girls away from home late in the night in the company of a gang of boys – Gang demanded sex and intercourse – Use of bush knife – Injury to victim – Victim under fear – No consent at if there was no voluntary – Guilty verdict returned.

EVIDENCE – Admissions of Record of Interview by Consent – Effect of Evidence Supporting prosecution case – Contrary Submission – Amenity to reconstruction of evidence – not function of Court.

DECISION ON VERDICT

Counsel:
J. Wala for the State
L. Kari for the Prisoner

21st June 2004

KANDAKASI J: You pleaded not guilty to one charge of gang rape of a then 14 years old girl, named but referred to in this judgment only as the victim for her protection. You took that position claiming that you had consensual sexual intercourse with her. Therefore, the issue for trial was whether you raped or had consensual sexual intercourse with her.

The State called the victim and three other witnesses in a bid to establish the charge against you. Of those witnesses, were the police officer who conducted your record of interview in relation to the charge you are now before this Court for. Through him, the State admitted into evidence your record of interview as exhibits "B1"and "B2", Pisin and English versions respectively. This was without any objection from you. You also did not cross-examine the witness. In your defence, you took the stand, gave a sworn testimony, and called no other witness to support you.

At the end of this evidence, it become clear that, you admitted in the record of interview, to carrying or holding a bush knife with you at the time of the incident. You also admitted to having sexual intercourse with the victim. Further, you admitted to your co-accused, Blacky Kanja also having sexual intercourse with the victim immediately after you had finished. Then the following critical questions, were asked and answered in Pisin in these terms:

"Q.40. Long stori bilong em [victim] tok dispela taim em i no gat laek long yu na Blacky long kuap wantaem em. Yu tok wanem long dispela?

A.40. Yes, em i stret.

Q.41. Yu min olsem [victim] inogat laek long yu na Blacky Kanja long kuap wantaem em. Em stret?

A.41. Yes, em i stret.

Q.42. Yu tok olsem em i nogat laek long yu wantaem Blacky long kuap wantaem em bilong wanem yu mekim?

A.42. Mi laek kuap na mi mekim dispela"

This translates in English as follows:

"Q.40. In her [victim’s] story, she says at that time she did not want you and Blacky to have sexual intercourse with her. What do you say to that?

A.40 Yes, that is right.

Q.41. You mean to say [the victim] did not want you and Blacky Kanja to have sexual intercourse with her. Is that right?

A.41. Yes, that is right.

Q.42. You said she did not want you and Blacky to have sexual intercourse with her, then why did you do that?

A.42. I wanted to have sexual intercourse so I did that."

In your oral testimony and in your evidence in chief, you said you, Blacky Kanja, Judas and Mosen were getting ready to go to a dance at Kandabarane, in the Angoram District of this Province. The victim and her girlfriend turned up and asked you to take them to the dance. You refused to do that initially, saying only boys go to dances and that there were no girls with you. The girls however, insisted so you allowed them to get into your canoe and you paddled down the river until you reached Busium Village base camp.

There, Blacky and Judas planned to have sexual intercourse with the girls. They then came and told you that they wanted to have sexual intercourse with the girls the whole night until the next morning, so you took them toward the village and reached the Kandabarane base camp. At that time, Blacky came and took the victim’s girlfriend away, leaving only you and the victim alone. You do not say what happened to Judas and Mosen.

When left alone with the victim, you said you asked to have sexual intercourse with her. Thereupon, she removed a blue dress she wore that time and her underwear. Then you proceeded to have sexual intercourse with her. You said you knew nothing about a bush knife and did not plan with Blacky to have sexual intercourse with the victim.

Counsel for the State started his cross-examination of you by pointing out to your apparent admissions in the record of interview. In your response, you claimed, the police mistreated you, including the use of matches to burn your penis. Then the following subsequent questions and answers followed:

"Q. The girls were scared?

1. Yes.

...

17. You did not take the girls to the dance, did you?
1. No
17. Because you planned to rape her?
1. I did not plan.
17. Mundomundo [victim and your village] is a long way from Kandabarane?
1. Yes it is far.
17. It was dark?
1. Yes 12 midnight.
17. You had a knife?
1. Yes.
17. The girls were under fear?
1. I did not do anything to them.
17. I suggest you threatened them and you and Blacky had sexual intercourse with her?
1. That is true.

...

17. You were rough on her and she got injuries, including bleeding?
1. Yes it is true."
   

Given these, it appeared clear to the Court that you admitted to having sexual intercourse with the victim without her consent. If she gave her consent, it was forced on her given the fact that, she and her friend were in the company of four men who were armed with a bush knife. Further, I have seen them physically in Court, and there is no dispute that they were very small and young then and even now. They were far away from home and the village, very late in the night. In these circumstances, they had to choose between saying no to your demands for sexual intercourse and face death or to agree to save their lives.

The victim’s evidence was that you threatened her with the bush knife and secured the sexual intercourse of her. She also said, after you finished Blacky took his turn. On both occasions, she did not agree to your sexual intercourse of her. The second witness, the victim’s girlfriend who managed to run away from Blacky’s grip and hid in the bushes until you had finished with the victim and were heading back to the village supports the victim’s testimony. Both witnesses say you told them not to report the incident to anyone and threatened to kill them if they do.

The victim’s mother testified that, the victim did not report until a day after the incident upon her inquiry. That followed the mother, noticing her daughter not walking properly and she asked her and the victim informed her of what you did to her. After that, she had the matter reported to police and took the victim to the hospital for medical treatment.

The medical evidence in the form of a statement from Dr. Lalam dated 4th April 2001, confirms injuries to the victims genital area. Externally, the medical evidence speaks of finding a lot of old blood on both of her inner thighs and fresh bleeding from the vaginal orifice (opening). Internal examination revealed a lot of blood clots in the vagina, the vaginal opening admitted only 1 large middle finger with much pain upon entry, a tear in the centre and lower part of the vagina which bled easily.

In view of the evidence, in particular your apparent admission both in your record of interview, which supports the State’s case, I asked you through Counsel, what was the argument against a finding of guilt. Counsel’s submission was that, the question and answers in the record of interview as noted above, covered both you and Blacky and so therefore you meant to say she did not agree to both you and Blacky having sexual intercourse with her. But, when asked to consider those questions and answers in the context of the questions and answers under cross-examination as noted above, counsel appeared to have missed the critical question and answer admitting use of force to secure your sexual intercourse of the victim. However, for the question regarding the injuries, you say your answer effectively agrees to these injuries resulting because of the sexual intercourse of the victim by you and Blacky.

I do not find your submissions persuasive. The record of interview speaks for itself. You consented to its admission and decided not to cross-examine the police man who conducted the record of interview. You did not even seek to explain what you meant in the kind of answers you provided. The accepted and traditional way in which a record of interview gets challenged is objecting to its admission, on the basis of say involuntariness for whatever reason. Where that happens, the Court carries out a hearing into the reasons for the objection by hearing the relevant evidence and come to a decision on its admissibility. In this case, you did not do that.

I find that, your testimony in Court was an attempt at trying to avoid the consequence that should follow based on your admission. You did not follow the proper procedure to do that. Even if we assume for the moment that the procedure you adopted is correct, your answers to critical question under your cross-examination only strengthens the States case and your admissions in the record of interview. Your attempts in your submissions to get this Court to give a different meaning to your questions and answers is in fact a submission in my view, for the Court to reconstruct the evidence. I do not consider it is with the power of any Court do that. Instead, the Courts are duty bound to find what the facts are from the evidence before it, and that does not involve a reconstruction of the evidence.

In these circumstances, I have no difficulty in arriving at the finding that you sexually penetrated the victim in a gang rape situation without her consent. Even if she did give her consent, I find that in the particular circumstances in which you placed her, you gave her no choice but to give into your demand for sexual intercourse with you. If not already clear, this is demonstrated by the kind of injuries you admittedly inflicted upon her by your admitted rough handling of her, as opposed to a gentle consensual affair. Accordingly, I have no difficulty in finding you guilty on the charge of rape as charged.

I will now hear you on what you wish to say in relation to the penalty you should receive before the Court arrives at a sentence against you. Meanwhile, I order that you be remanded in custody, until your sentence.
__________________________________________________
Lawyers for the State: Public Prosecutor
Lawyers for the Accused: Public Solicitor