N5408
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 44 OF 2010

THE STATE

V

DAVID UNABU
(No 1)

Popondetta: Toliken, AJ
2013: 13th, 14th, 17th, 19th June

CRIMINAL LAW – Particular offence – Aggravated rape – Accused concocts a story and takes complainant away from her home after convincing her mother that a man was interested in her – Accused takes complainant to place of work, consumes alcohol there with her – Accused penetrates complainant on the back home without her consent at knife point – Circumstance of aggravation - Close relationship, though not filial, between accused and complainant's family - Existence of relationship of trust, dependency and authority – Verdict of guilty returned – Criminal Code Act Ch. 262, ss 6A, 347(1)(2), 349A. 

Judgments cited: Nil

Counsel:
 
J W Tamate, for the State
L. Mamu, for the Accused

JUDGMENT ON VERDICT

19th June, 2013

1.	TOLIKEN, AJ: The accused pleaded not guilty to one count of aggravated rape contrary to Section 347 (1) (2) of the Criminal Code Act Ch. 262 (the Code).

2.	The State alleged that the accused –

 "... on 29th day of January 2009 at Popondetta ... sexually penetrated one Catherine Waskau by inserting his penis into her vagina without her consent AND AT THAT TIME [he] threatened her with a small knife and further that he was in a position of trust".

3.	The accused raised the defence of consent.

THE ISSUE

4.	The principal issue for my determination is whether the complainant consented to being sexually penetrated by the accused. 

THE EVIDENCE

5.	The State tendered the accused's Record of Interview (Pidgin and English translation) and the statements of Policewoman, Senior Constable Prudence Koru. It also called the complainant and her mother Cathy Waskau.

6.	The defence on the other hand called the accused himself, one Andrew Raulau and Constable Otto Kaboir.

THE FACTS

Undisputed Facts

7.	From the evidence I find the following undisputed facts.

8.	It is not disputed that the accused sexually penetrated the complainant with his penis on the date in question.

9.	The accused is known to the complainant and her family. They all come from Maprik District in the East Sepik Province. Even though they are not related or from the same village they had lived together at the Golf Club Compound in Popondetta Town for some four years prior to the alleged incident. The two families were very close and share things. The complainant's mother had over the years regarded the accused as a 'brother" and her children, including the complainant regarded her as an "uncle". The accused likewise treated them in like manner.

10.	It then so happened that sometime prior to the alleged incident the accused made up a story of a Sepik man, said to be the Finance Manger of Suuh Finance, wanting a Sepik girl for a girlfriend. The accused asked the complainant if she was interested but she referred him to her mother telling him that she was the boss. The accused did and, believing the story to be true, the complainant's mother agreed to the proposition.

11.	On 20th January 2009, the accused went to the complainant's house in the early hours of the morning. He woke the family up and took the complainant away – with her mother's permission - to go and see this so-called Sepik Finance Manager.

12.	They took a short cut and arrived at the Rice Industries Ltd's premises where the complainant worked as a Security Supervisor for a firm that was guarding the premises.

13.	Once there the accused left the complainant in the Manager's premises and then went off to conduct a roll-call for his guards. After that he went to Evito and returned with a pack of beer which he shared with the complainant. Though the complainant said she was forced to drink by the accused I do not believe she was. After they drank the first lot of beers the accused went and bought more. Security Guards Andrew Raulau and another named only as Francis were on duty at that time. 

14.	After a while the complainant asked to use the rest room and was conducted to the company toilets by the accused. What transpired there was disputed and I will return to that later. However, the complainant relieved herself and a little while later she and the accused left for the Compound, following the same route they had earlier used.

15.	The complainant said that as they were walking home the accused dragged her into the roadside and sexually penetrated her without her consent. This, however, disputed by the accused who said that they actually had consensual sexual intercourse in the company toilets. I will return to this later on.

16.	The complainant, however, reported the matter to her mother at the family garden. The complainant's mother and the complainant then went looking for Otto Kaboir, a policeman who lives in the Compound and whose wife was the owner of the security firm which the accused worked for, to report the matter. Otto was not at home so the complainant's mother later on that day reported the matter to him. She also relayed to him the complainant's compensation demand of K2000 and a pig.

17.	Otto Kaboir later communicated the demand for compensation to the accused. The accused agreed to pay but when he failed to pay up the complained laid a complaint with the police and the accused was arrested and subsequently charged.

Disputed Facts

18.	The ultimate fact in issue is whether the complainant consented to being sexually penetrated by the accused. The other disputed fact is, however, whether the act took place along the track to the Compound or in the Rice Industries Ltd's staff toilets.

19.	Let me now consider the competing evidence on these matters.

20.	 The complainant's version is that on their way back to the Compound, along the bush track, the accused grabbed her by the collar of her shirt. When she struggled the accused put a small knife to her neck. He pulled her to the side of the track and pinned her to the ground, removed her clothes and sexually penetrated her vagina with his penis without her consent. After that the complainant ran home crying – her body covered with grass and dirt. She went looking for her mother and found in her garden.
 
21.	The complainant's mother Cathy Waskau corroborated her evidence. She saw her daughter come crying to her and noticed that her body and hair was covered with dirt and grass. Together they went to Constable Otto Kaboir's house to report the incident to him. Constable Kaboir was, however, not home so they left. Cathy Waskau later reported the matter to Constable Kaboir later that day and relayed the complainant's demand for K2000 and a pig as compensation. She testified that her daughter did not want to go to the hospital for a medical check because she was embarrassed of having been raped by a married man. 

22.	The Complainant said that she did not want to go to the hospital for medical check-out of embarrassment.

Accused's Version

23.	The defendant conceded that he lied to the complainant's mother. He said the complainant was in fact her girl friend. She had wanted to drink beer with him and told him that it was up to him to convince her mother to allow him to take her out. Hence, the story about the Sepik Manager wanting a Sepik girl friend.

24.	On the date in question – 31st January 2009, he took the complainant to the Manager's residence at Rice Industries where they had some beer. He had to go out twice to buy beer.

25.	The accused said that he had been drinking from 5.00 p.m. the previous day and was sleepy and dozed off. The complainant tried to wake him up several times. She then pulled him by hand to the toilet where she pulled him by his belts buckle, pulled trousers down. She had to stimulate his genitals manually make him get an erection as he couldn't get one because he was drunk. The complainant then pushed him to the floor of toilet – the toilet being the size of the witness box – then put his penis into her vagina and they had consensual sexual intercourse. They then walked back to the residence where they met Andrew Raulau who was on duty.

26.	Soon after he and the complainant walked back home - with Andrew Raulau following them some distance behind.

27.	The Accused said he was off-duty that time.

28.	Andrew Raulau corroborated the accused's evidence. He said that the accused took the complainant into the Manager's residence where they drank beer together. They later went to the toilet. Andrew Raula said that he later walked around to the toilet. There he heard complainant telling the accused to hurry up in case workers will come. He said he saw accused half naked in the door way of the toilet. He then walked to the gate. When the accused and the complainant walked out he followed them home.
 
29.	Andrew Raulai said the accused had been on duty from 6.00 p.m. the previous day to 2.00 p.m. on the day of the incident. The accused, however, said that he was off duty. So whose Version should I believe?

DELIBERATIONS

30.	I have observed the witness' demeanour in Court. The complainant and her mother were collected and gave straight forward evidence. They did not waver in their testimonies – both maintained their accounts of important events.

31.	 The defendant on the other hand tried hard to convince Court that the crucial events are as he testified them to be. His testimony does not depart much from his statement in Record of Interview and seemed rehearsed to say the least. 

32.	Andrew Raulau on the other hand was not a convincing witness at all. I strongly believe that he conveniently changed his shift that day – 6.00p.m – 2.00p.m – to put the incident as happening in the afternoon of the date in question. He did not know if it was alright for the accused to drink at the Manager's residence nor did not know if it was allowed for security guards to drink on the premises while on duty for that matter. He even contradicted the accused when saying that he (accused) was on duty when accused himself said he was off-duty.

33.	The accused's version is not in keeping with common sense. The alleged act of consensual intercourse is said to have happened in the staff toilet. It happened on a Tuesday and obviously people would have been around – employees of Rice Industries and of course security guards like Andrew. By Andrew's description of the toilet – it obviously was in open space for how else was he able to see the accused half naked in the toilet. Human beings simply do not have sexual intercourse openly like other species of the animal kingdom. So the evidence that consensual intercourse took place there defies logic, common sense and common decency.

34.	For the following reasons I am therefore not convinced of the accused's version of the facts. I am satisfied beyond reasonable that the accused sexually penetrated the complainant in the circumstances described by the complainant without her consent.

35.	I am also satisfied that there were circumstances of aggravation within the meaning of s.349A of the Code – a dangerous weapon was used to threaten the complainant and that at that time, there existed a relationship of trust, authority and dependency. This was a close relationship. Despite not being a family relationship the accused was regarded by complainant's mother as a "brother" and her children regarded him as an uncle" and reciprocated by regarding the complainant's mother as his sister and her children including the complainant as his nieces and nephews.
 
36.	That this was a relationship that went beyond a mere friendly one is evidenced by the fact that the complainant's mother was able to release her daughter. She trusted him as a "brother" and entrusted her daughter to him. Not only did the accused betray that trust, he also had to lie to the complainant's mother to get her to go out with him. This was therefore a relationship that falls within those that are envisaged by Section 6A (Relationship of trust, authority or dependency) of the Code, Subsection (2).

VERDICT 

37.	I therefore, return a verdict of guilty and convict the accused for the offence charged.

_______________________________________
Public Prosecutor: Lawyers for the Complainant
Public Solicitor: Lawyers for the accused