N5263
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1382 of 2009
 
THE STATE

V

JOHN LOSASA
GERARD GORIA
NICK SARI

Alotau: Batari J
2011: 8, 14 & 17 November

CRIMINAL LAW– rape – evidence – complainant's testimony – reliance on reliability of – general deficiencies in evidence of complainant – corroboration – no requirement of in law - requirement for corroboration where general deficiencies present in complainant's evidence – general denials - false general denials may corroborate complainant.

CONSTITUTIONAL LAW - criminal trial - right to- proof of guilt where corroborative evidence required – failure to give evidence – right of accused not to give evidence is within the contemplation of the right to innocence until proven guilty according to law under s. 37(4) of the Constitution.

Cases Cited

R v Abia Tambule [1974] PNGLR 250;
The State v Marawa Kanaio [1979] PNGLR 317;
Townsend v George Oika [1981] PNGLR 12; 
The State v Andrew Tovue [1981] PNGLR 8; 
McCalhum v Buibui [1975] PNGLR 439; 
The State v Pennias Mokei (No 1) (2004) N2606; 
The State v Moses Tenta (2009) N3684;
John Jaminan v The State (No 2) [1983] PNGLR 318;
Charles Didei v The State [1990] PNGLR 458; 

Counsel

J. W. Tamate, for the State
F. Kirriwom, for accused John Losasa and Gerard Goria
D. Kipa, for accused Nick Sari 

VERDICT

17 November, 2011

1. BATARI J: This is a joint trial of three men on the charge of rape. The State alleges that they raped one, Daphne Kabasi (DK) after a chance meeting on the road. Each accused has maintained his innocence all along. 

Allegations

2. The State's case is that on the evening of on 9 August, 2009 between 6.00pm and 7.00pm, DK set out from a nearby village, to return to her village of Lamhaga, Alotau, Milne Bay Province and met her fellow-villagers, John Losasa, Gerard Goria and Nick Sari on the road drinking. The three men followed her and on the way, Nick lured her into the bushes where John and Gerard sexually penetrated her against her will. 

Defence Case

3. The defence relies on general denials. The nature and extent of their denials are limited to cross-examination of the State witnesses and to some extent, from their respective records of interview. These limitations are brought about by the election of each accused not to give or call evidence. 

4. For John Losasa and Gerard Goria, their cross-examination of the complainant did nothing more than put the State's case to test. Their co-accused, Nick Sari conceded being present initially with DK but denied being present when his co-accused allegedly raped DK.

Issue for trial

5. Only one version is highly likely on the issues:

i.	Whether John and Gerard were present and if so, whether they raped DK.

ii.	Whether Nick Sari is a principal offender under s.7 of the Criminal Code.

Rape - Section 347 of the Code as amended

6. Section 347 of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 (the Code as amended) defines and provides the penalty for the crime of rape. It reads:

"(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 (I) is committed in circumstances of aggravation, the accused is liable, subject to Section 19, to imprisonment for life.".

7. Circumstances of aggravation under Sub-section (2) are not alleged or charged on the indictment. So, the accused persons are only liable for rape 'simplicitor' under Sub-section (1), if convicted.

Trial Evidence

8. The prosecution case is founded substantially on the complainant's oral testimony, supported by evidence of recent complaint from her grandmother. A number of documents are also in evidence by consent. These include records of interviews for each of the accused person, an affidavit of a Dr Freda Wemin attaching a medical report, witness statements from Kevin Kenatsi, Donald Igara and two police investigators. 

9. In her testimony, DK spoke of leaving her sister's house about 6.00pm to return to her Lamhaga village. On the way, possibly at or near the village, she came upon the three men on the road, drinking or drunk. When queried by Gerard, DK responded that she was returning home. John and Gerard then followed after her and Nick followed behind them.
 
10. On the way, Nick told DK that his brother was waiting for her so; she followed him into the bushes. Nick pretended to call and whistle to his brother. It was then nightfall and after Nick left, John and Gerard confronted DK. Gerard tried to restrain her but she resisted and fled from him. John pursued and tackled her to the ground. He then sexually penetrated her. Gerard assisted John by restraining DK to the ground.

11. Gerard attempted to have his turn but DK again resisted him. John then escorted her to her grandmother's house where she reported the incident and spent the night. The next morning, she complained to her parents and the matter was reported to the ward councillor resulting in the arrest and detention of the accused. 

12. The defence did not give or call evidence, but relied heavily on cross-examination of the prosecution witnesses.
 
13. In a well structured cross-examination of DK, Mr. Kirriwom of Counsel for John and Gerard tactfully dented some aspect of her evidence. A demonstrably skilful probing Mr Kirriwom exhibited is worth the rare mention and commendation as counsel had the arduous task of preparing the defence case over the luncheon break following change of instructions from Paul Paraka Lawyers to the Public Solicitor on the eleventh-hour.

14. It is instructive to note that, the conduct of the defence case and in particular, Mr Kirriwom's judicious articulation of his client's case in building a case out of nothing, may have brought about a different result had the defence raised been other than a general denial. 

Evidence: Assessment and findings.

15. The State's evidence points to the presence and participation of each accused in the commission of the offence. The main thrust of DK's evidence is that, the three men followed her along the road before Nick took her into the bushes in the pretext of meeting up with his waiting bother. Nick left her in the bushes and she was then raped by John and Gerard. 

16. John and Gerard did not contest the evidence of their presence on the road. That evidence also described the role each one of them played at the scene. John had earlier admitted to the police, his presence with DK. 

17. Like his two co-accused, Nick did not contest his alcohol related presence on the road. Mr Kipa of counsel for Nick suggested in cross-examination of DK that, his client was present with her in a consensus arrangement for her to meet a Kelly Paul. He then left to fetch Kelly from the village. Upon his return, she was gone. Nick also put to DK that, he was not part of what his two co-accused did to her.

18. I am satisfied that the person DK referred as 'brother' was a person named, Kelly Paul. Whether, Kelly was present or not, I accept DK's evidence that she only saw three men on the road. Her evidence is supported by Nick's version that he left her in the bushes to fetch Kelly from the village. Nick's version further strengthens DK's story that he was only pretending to her when he led her into the bushes. 

Did sexual intercourse occur and if so, was it rape?

19. On this issue, the defence has its strongest points of possibilities against the State's evidence. I have earlier hinted a different outcome of this trial is possible on a defence of consensus sexual penetration. Aspects of DK's own evidence suggest acquiescence to the company of the accused and in particular, Nick and John. That is not their case. They denied sexual penetration. They cannot have it both ways. So, it is open to inference that sexual penetration occurred and I make that finding. 

20. On the question of whether it was rape, the only sworn version before the Court is that of the complainant which defence have vigorously contested as inconsistent, contradictory and insufficient. Counsel submitted that DK is unbelievable and unreliable for a number of reasons, in essence:

•	The version of John sexually penetrating her at the same time that Gerard restrained her to the ground and bit the inside of her thigh is a bizarre, most unlikely occurrence that point to exaggeration.

•	The evidence of freely accompanying John to be given his sister's clothes is inconsistent with conduct of an unwilling party.

•	Inconsistent timing in reference to Nick's departure and return with her evidence of being raped immediately after Nick left.

•	Inconsistency of her evidence with medical history of being raped by three men, one of whom used a condom.

•	She gave fresh evidence on matters essential to the charge but omitted from her statement to the police shortly after the incident. 

21. I have considered those matters and others counsel had raised as going to DK's credibility and reliability. I also observed that, while giving evidence, she appeared confused on occasions in recollecting sequence of events. She was inaudible and hesitant at times.

22. For reasons that will follow shortly, I do not find this form of truncation of evidence unusual or damaging to the credibility of the witness. Drawing from my own experience in dealing with similar cases involving rape and other sexual offences, it has far more to do with the pressures being experienced by coming to the witness box and reliving her ordeal before a crowded court room than, it has to do with the truthfulness of the witness. 

23. DK was clearly overwhelmed by the number people present inside the court room and others observing the proceedings from the corridor windows. She also appeared distressed under persistent questioning. 

24. Furthermore, the witness was giving evidence three years after the incident. The incident happened in the night and she was alone in the bushes at the mercy of drunken men intent on sexually violating her. In the circumstances, she cannot be expected to recall every minute detail and sequence of her ordeal. She nevertheless, remained unshaken on the core allegations. Where she appeared to falter, it is mainly on peripheral issues. 

25. Returning to those specific matters raised in the defence's contentions, I do not view the improbable scenario of John and Gerard simultaneously violating DK, fatal to the State's case. That evidence is peripheral to proof of "sexual penetration" which is defined in s. 6 of the Code as amended to include the slightest penetration. (See also s. 6 of the Principal Code for the definition of "carnal knowledge"). Whether penetration occurred before, during or after Gerard bit DK on the inner part of her thigh is immaterial. It is sufficient that the element of sexual penetration is proved and I see no reason to disbelieve DK on that aspect.

26. On her evidence of timing and sequence of events, DK appeared uncertain and confused in stating that John and Gerard accosted her 30 minutes and in another instance she mentioned one hour, after Nicky left her in the bushes. I think the confusion has to do more with the pressures being experienced, reliving her ordeal before a crowded court room than it has to do with her reliability. DK possibly had in mind in responding to questions put, the whole period that she was detained in the bushes. This was not clarified. On the other hand, it is not challenged that, the whole of the incident lasted for sometime. 

27. It is highly likely that John and Gerard accosted DK immediately after Nick left. The three men had been together the whole evening and they had made their intentions clear when they followed after DK. John and Gerard were present when Nick led her into the bushes. There is no reason for them to delay having their way with DK. The uncertainty in her time allocation is in my view, inconsequential to the whole of State's case. 

28. The evidence that John gave DK his sister's clothes to wear is another cause for contest by the defence. It is submitted that, this fact does not support DK's claim of a second attempt by John to rape her. 

29. Accepting that John gave DK his sister's clothes to wear, the possibly is that John walked with her some distance to fetch the clothes from his house. That sounds odd and suggestive of amity between John and DK. One must however bear in mind that it was in the night, she was alone with John and that he was drunk. Her choices were next to nil. I think it was safer and more sensible for her to accept John's company than resist it. John did not refute her evidence. I accept that the incident more likely happen the way DK spoke of it in her evidence. 

30. On the discrepancy between DK's oral testimony and the medical history of the complaint, it is submitted that DK had deviated from her earlier story and hence, has told the Court untruths. I accept Mr Tamate's submission that, the referral history on the doctor's report is only evidence of what was told to the examining medical officer. It is not evidence of fact and best, hearsay. 

31. It is usual practice for Medical officers to solicit background information on the medical condition or complaint referred as this forms the basis for medical consultation, diagnosis, and if required, administration or prescription for treatment. Such information is sometimes taken from accompanying relative or guardian. In this case, it is not known if DK personally gave that information. And she refuted the truth of that statement when it was put to her. 

32. It was also suggested to DK that she had slept with some other person in the intervening period between the incident and the medical examination. This proposition was based the fact that her boy-friend, Donald Igara had visited her before she saw the doctor. 

33. That claim is preposterous. It is unsupported by evidence and speculative. Donald in fact refuted the suggestion in his uncontested documentary evidence. He denied sleeping with DK when they met the day following the incident. Hence, this leaves the incontestable conclusion from DK's evidence that, John was the only person who sexually penetrated her.

34. I accept that DK is a witness of truth. I find she had no reason to tell lies particularly in the absence of a motive to fabricate evidence against fellow villagers who are one way or another related to her. Rape is such a serious crime; it is not easy or normal to allege it against a relative.

 35. A cause for false allegation may be ill-will, revenge, advantage, favour or reward. The onus is on the accused to show a motive to tell lies on the balance of probability. If that motive is not shown, then the incident most likely happened the way it is told by the prosecution witnesses.

36. Further, the main thrust of her evidence has been consistent in her complaint to the grandmother the same night and early the next morning to her parents, the ward councillor and the police and this court. 

37. These repetitions together with the presence of each accused at the scene give consistency to DK's story. 

38. Corroboration of DK's complaint by extraneous evidence in some material particular is also present. 

Corroborative Evidence

39. The principle on corroborative evidence was settled. Where the State's case in rape and other sexual offences is founded wholly on the oral testimony of the complainant, the practice has been for the courts to be mindful of the dangers of convicting an accused when the witness's testimony is uncorroborated in a material particular by independent evidence. The failure to advert to this in the judgment would amount to an error of law. See, Peter Townsend v George Oika [1981] PNGLR 12; The State v Andrew Tovue [1981] PNGLR 8; McCalhum v Buibui [1975] PNGLR 439; Charles Didei v The State [1990] PNGLR 458. 

40. Section 352(A) of the Code as amended has done away with that common law rule of practice. The law as it now stands prohibits a judge from instructing himself or herself that it is unsafe to find the accused guilty in the absence of corroboration. A guilty verdict and conviction of a person can be sustained on the uncorroborated testimony of one witness alone. 

41. This shift in the requirement for proof in sexual offences however, does not affect or remove the right to presumption of innocence until proven guilty in a court of law. The onus remains with the prosecution to establish beyond reasonable doubt, the elements of rape or other sexual offences of which penetration is an element. This is fundamental to the right of the accused to a fair trial under s. 37 (4) of the Constitution. 

42. In my view, a situation may arise where facts extraneous to the witness who is to be corroborated will be necessary. In an instance where the evidence of the complaint is lacking in some material detail or particularity or there was paucity of evidence or the complainant's evidence is imprecise, failure to adduce evidence to corroborate or fill in the gaps in the complainant's testimony in a material particular by independent evidence may be demonstrably fatal to the validity of the conviction. 

43. Hence, the court must be very careful to convict on the uncorroborated testimony of the complainant alone bearing in mind, the generic term, "rape" (which has found its usage in the Pidgin language and even in a given local vernacular), is easy to allege but difficult to prove. Sometimes consensus sexual penetration is referred as "rape" because that is how disgruntled parents or relatives perceived it. The essence of being cautious against convicting on the uncorroborated testimony of the complainant alone is well summed up by Cannings J in, The State v Mokei (No 1) (2004) N2606 where his Honour stated, "The complainant's evidence is only talk." See also, The State v Moses Tenta (2009) N3684 (Paliau AJ). 

44. In this case, corroboration (though not required) is necessary in view of general deficiencies in DK's testimony. Extraneous facts which I find necessary to corroborate her story are found in:

•	the medical evidence of sexual penetration; 

•	Donald Igara's statement on his observations of bruises and scratches on the complainant the next day;

•	the statement of Kevin Kenatsi of hearing smothered female voice as if in distress coming from the direction of the scene of the incident;

•	evidence of struggling at the scene the next day by Kevin and others;

•	General denials by the accused persons which I find to be false. See, John Jaminan v The State (No 2) [1983] PNGLR 318;

Failure of the accused to testify – Principles applied.

45. Where the accused is proved to be present with others at the scene of the offence, it is incumbent upon him to explain his presence and counter the allegation of his participation as a principal offender under s. 7 of the Code. That is the election the accused alone must make. 

46. If he or she elects not to give or call evidence, such election would be consistent with the right to remain silent which is also within the contemplation of the right to innocence until proven guilty according to law under s. 37(4) of the Constitution. The onus remains with the prosecution to prove each element of the charge beyond reasonable doubt. 

47. That onus never shifts to the accused. If that be the case and the accused is required to prove his or her innocence, it will offend against common law right to silence and impinge upon the constitutional right to presumption of innocence which corresponds with the right to silence.

48. There are however circumstances in which the right to remain silent will be critical to the defence case. Once there is evidence upon which the Court might be satisfied beyond reasonable doubt on the guilt of the accused, the failure by the accused to give evidence or call evidence may lend support to any satisfaction the Court may feel. 

49. In such a situation, the judge and the defence (but not the prosecutor) may comment on the failure to give evidence provided that any observation made does not suggest the failure to give evidence is due to consciousness of guilt: The State v Marawa Kanaio [1979] PNGLR 317.

50. It is also settled that, where the truth is not easily ascertainable by the prosecution, but is probably well known to the accused, the fact that the accused had not given any explanation or answer as might be reasonably expected if the truth were consistent with innocence, is a matter that the Court may properly consider: R v Abia Tambule [1974] PNGLR 250.

51. Furthermore, it would be consistent with logical and common sense for a person falsely accused of committing a serious offence to deny the charge and give his version or an explanation at the earliest opportunity. Or he would reserve and in practice, give his version at the trial proceedings. 

52. I am satisfied on the evidence of presence of each accused at the time of the incident. Hence, the truth of their version of events is probably well known to each one of them, but is not easily ascertainable by the prosecution. The failure to give any explanation or answer as might be reasonably expected, is a matter that the Court may properly consider as inconsistent with innocence and I draw that inference: R v Abia Tambule.

53. Applying the test in, The State v Marawa Kanaio, there is evidence upon which the Court might be satisfied beyond reasonable doubt on the guilt of each accused. The failure to give evidence or call evidence may lend support to a satisfaction of the Court on the guilt of each of the accused. That possibility is also open in the circumstances of this trial. 

Conclusion

54. I am satisfied that each accused was present with DK at all material times. They had been drinking and they are each sufficiently implicated as a principal offender. The evidence as it stands is sufficient to lawfully convict and hence, to call upon each accused to answer. 

55. There is sufficient evidence to prove that the accused John and Gerard aided and abetted each other in sexually penetrating the complainant. DK's consistency in the main thrust of her evidence supported by presence of corroborative evidence makes this conclusion inescapable. 

56. Nick is alleged to be a principal offender under s. 7 of the Code. His story of being an innocent medium to forge a relationship between DK and Kelly Paul is fanciful. He does not raise the defence of withdrawal. His case is simply that he was not part of what John and Gerard did to DK. 

57. Nick knew what went on that evening. He was in the company of John and Gerard throughout. The three of them had been together when DK met them. He placed DK in a situation where she would likely be attacked and at worst, raped. Kevin Kenatsi saw him wash mud away from his legs near the place where DK was raped by John and Gerard. All these which remain unexplained by him add to consistency of the evidence against him. 

58. The only rational inference to be drawn from that circumstantial evidence is that Nick aided and abetted his two co-accused in raping DK.

59. I am satisfied beyond reasonable doubt on the guilt of each accused. I find each accused guilty and convict him on one count of rape. 

__________________________________________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the First & Second Accused
Paul Paraka Lawyers: Lawyer for the Third Accused