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State v Sas (No.1) [2013] PGNC 263; N5553 (24 July 2013)

N5553

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE
CR.NO.878 OF 2011

THE STATE

V

THOMAS SAS (No.1)

Maprik: Geita AJ
2012: 20, 21 November,
2013: 24 July

CRIMINAL LAW – Rape – Not guilty plea – Trial – Three counts of Rape-Section 347 Criminal Code – Issue for trial-general denial and consent

CRIMINAL LAW – Rape – Evidence – Corroboration not a requirement – State witness no reason to testify falsely against the accused – No evidence of consent – Corroboration not necessary – Guilty verdict returned on all three counts – Section 347 of Criminal Code.

Cases Cited
Papua New Guinea Cases:

The State v James Yali [2005] PGNC 191; N2988
The State v Varimo [1978] PGNC 52;
The State v Kewa Kai [1976] PNGLR 481,
The State v Anton Kumak (1990) N835,
The State v Bikhet Nguares Paulo [1994] PNGLR 335,

Overseas Cases

Browne v Dunn [1893] 6 R 67 (HL)

Counsel:

Mr. Francis Popeu, for the State
Mr. Robert Bellie, for the Accused

REASONS FOR VERDICT

26th July, 2013

1. GEITA AJ: The State presented indictment charging the accused with three counts of rape - an offence against s 347 (1) of the Criminal Code Act. Count 1: That the accused on 15th April 2011 at Kwimbu road junction sexually penetrated one Tabita Bakaman by inserting his penis into her vagina without her consent; Count 2: That the accused on 15th April 2011 at Wingei No 2 village sexually penetrated one Tabita Bakaman by inserting his penis into her vagina without her consent; Count 3: That the accused on 16th April 2011 at Winge No 2 village sexually penetrated one Tabita Bakaman by inserting his penis into her vagina without her consent. Upon arraignment the accused entered a not guilty plea on all counts and trial ensued.

2. The trial was run in Maprik in 2012 and at the close of defence case counsel were directed to prepare and file submissions on verdict in Wewak as the circuit had come to a close. Due to reasons beyond our control this part heard matter was not reached until the court returned to Maprik in 2013.

3. The State’s evidence consisted of four witnesses. They include the testimonies of the victim, her aunt and her mother. Documents tended into court by consent include the following:

Exhibit "A” (1) (b) record of interview dated 12 May 2011.
Exhibit "B" medical report dated 27 April 2011.
Exhibit "B" Francesca Bakaman statement 12 July 2011.
Exhibit "C" sketch plan of scene of crime.

Tabita Bakaman’s evidence
4. She is the victim in this case. Her evidence relates to the first alleged rape which took place in Kwimbu junction after she was forcefully dragged into the defendant’s vehicle along Maprik/Wewak highway on the night of 15 April 2011 between 8pm and 9pm. The victim said she submitted to the rape in fear of being forcefully molested as he was also drunk at the time. The witness said she felt big pain during the rape. After raping her they both walked to the main road and waited for the return of the vehicle he was driving earlier which had been sent away with another driver.

5. As soon as the vehicle arrived they both got on and were driven to his house where he subjected her to another round of rape despite her refusal as she said she was now spoilt and was still in great pain and bleeding. During the cause of the night the victim called her cousin sister Jacklyn and disclosed her whereabouts and that she would return to her house the next day.

6. Around 5.30am the next day on 16 April 2011 the accused returned the victim to Jackly’s house where they were received and accommodated by Jacklyn. The house owner needed to attend to her church activities and so they were both left in the house. They both had sexual intercourse the third time despite her refusal. By late afternoon they walked to the main road where she stopped a police vehicle, told the driver Greg Ambrose her predicaments and was rushed to the hospital for medical checks. Along the way they picked up her mother to the hospital.

Examination in chief

7. During examination in chief, the victim said she had her mobile phone all the time but did not call anyone or her parents as she was shocked and had mixed feelings. She later qualified her statement by saying that on the night of 15 April she used the accused’s phone to call her cousin Jacklyn as she had no units. She said she received treatment at Maprik hospital on 16 April 2011 after which her father was called and took her home.

Cross examination

8. During vigorously cross-examination to discredit her testimony and draw inference of consensual acts of sexual intercourse on all three occasions, the victim maintained her version of events. When questioned why she made no serious attempts to raise alarm when those opportunities presented themselves she said the ordeal had disoriented her so much so that any thought of raising alarm or escaping from the accused remained dim. In her own words: I was in shock and in so much pain I just followed him. When further suggested to her that she went along with the accused to have sex with him she answered in the following: “Sex feeling is between man and woman when friends but in my case, me and Thomas there was no romantic relationship between him and me which would drive me to go with him and have sexual intercourse with him.”

Jacklyn Kituwafi’s evidence
9. She testified of receiving a phone call from the victim around 12am and 2am advising her that she was with Thomas. Later Thomas spoke to her over the phone about stealing Tabita along the road without the knowledge of her parents and that he would bring to her house the next day. The witness said on 16 April around 5-6 am in the morning the accused returned Tabita to her house as promised. She received them both at her house and raced off to her church meeting. Whatever happened afterwards she has no knowledge. When asked during cross examination if Tabita had told her about being raped by the accused she said no. However when shown her statement given to police soon after the incident in which she recorded the incident of sexual intercourse by the accused the witness said the police statement was correct.

When questioned by court why she failed to alert Tabita’s parents in light of being told that the victim, her cousin had been abducted and raped by the accused, the witness offered no explanation.

Francisca Bakaman’s evidence
10. The witness is Tabita’s mother and deposed in her statement tendered into court by consent. Her statement is centred on the disappearance and return of her daughter on the night of 16 April 2011 after being dropped off by a police vehicle at her home.

During brief cross examinations the witness remained very evasive and failed to answer simple questions put to her with clarity.

Medical Report

11. The medical examination conducted on the victim on 29th of January 2010 does not assist much since it was done almost 7 weeks after the date of the offence. The report however highlights that the victim had lost her virginity sometimes back. She was brought to the hospital for confirmation whether she was still a virgin and for possible prosecution. The medical doctor was of the view that penetration of the vagina had already occurred at some stage earlier and not within a week of examination.

Defence case
12. In addition to his record of interview tendered in court by consent the accused gave oral testimony. His evidence relates to three instances of consensual rape between him and the victim on those dates mentioned in the indictment. On 15 April 2011 whilst he was loading Koni Kiki’s beer at Garamut Wholesale the accused called. No explanations were given for the phone call. On 11 April 2011, a Sunday whilst on Maprik run he picked up the victim and her cousin Stanley Tap who sat in front with the driver. As they alighted at Waikapung village Tabita gave her phone number to her cousin who in turn gave it to the accused and told him to call the victim in the afternoon.

13. The accused began calling Tabita as early as Tuesday the following week to date her. Around 8pm that night he made contact with Tabita but was faced with questions of his identity. He called again on Wednesday for a date but was told by Tabita that she couldn’t as she was going through her menstrual period but instead suggested Friday. After several telephone calls between the accused and the victim started by the accused on Friday morning they finally settled on the 8pm rendezvous that evening according to the accused. He picked up the victim around 8.30 pm at Hayfield School and proceeded on to Yaniku junction where they got off the vehicle. The vehicle was driven back by Pearson Warunga. According to the accused they had consensual sex with no resistance from the victim. The accused described in explicit terms the fore play into sex which culminated into sexual intercourse. The victim was asked before sex if he had sex before with other boys and she replied in the affirmative.

14. They got picked up again and were dropped at Winge junction as they made their way through a bush track to the accused house. Along the way the accused showed the victim a house belonging to a pastor Elijah whom he said was related to the victim. They also met a man who is a cocoa assessor and the three of them walked to the village.

15. As they got to his house he started the generator and put the TV screen outside for children to come and watch movies. His sister in law and others were also watching movies. After movies everyone left for their houses leaving the both of them together and they engaged into consensual sexual intercourse until late 2 am in the morning. The victim offered no resistance whatsoever according to the accused. After sex the victim used his mobile phone and called her cousin sister to inform her that she was with the accused, Thomas in his house and would be dropped off at her place in the morning. The witness said he removed the mobile phone and spoke to Jackyln and enquired about her family as Jacklyn’s husband ,Tut was his cousin brother.

16. Around 7 am in the morning they arrived at Jackly’s house and were received. Jacklyn cooked some rice for them to eat and hurriedly left for Mingu mission to attend to some church work. The accused said as they were sitting under the house, Tabita went upstairs into Jaclyn’s bedroom and called out to him three times to come to her. He said he came upstairs and stood at the veranda but was invited by Tabita to go into the bedroom. Whilst in the bedroom they had consensual sexual intercourse with very little resistance from Tabita. The accused again described explicitly fore play before sex and described in detail the type of sex they were engaged in, including oral sex. According to the accused they remained in Jacklyn’s house the whole day on 16 April 2011 until 3 pm when they walked to the main road to catch transport to return home.

17. The accused told Tabita to remain behind in fear of being seen by her relatives. He went alone to the main road but there not many vehicles on the road as it was a Saturday. Around 5 pm Tabita joined him at the main road. A lone policeman arrived on his way to Wewak and stopped for them. However prior to the policeman arriving the victim’s father, Jessie Bakaman called Tabita and enquired about her whereabouts. Tabitas father said he was looking for her at Maprik and now on his way to Aupik with some food for her in the car. The accused said Tabita assured her father not to worry about her and that she would return home at her own time later. The accused said he told the policemen, Greg Amandi to leave her at Hayfield School junction. She did not complain about being raped. By than the time was around 6.30 pm.

18. The accused testified of events said to have happened on 17 April in which he was tailed by the victim’s father and harassed including threats of assault to Tabita and burning down of their bush material house.

Cross examination.
Q. 14 You said you were a married man?
A. Yes my wife is from Winge and we live together.

Q.15 Where was she on 15 April 2011?
A. Wife and children left me and went to Wewak for a long time.

Q. 16 Correct that if you wife knows about your affair she would be cross?
A. My wife came, held Tabita and said she was forgiven as she is a believer.

Q. When was that?
A. The time the Arresting Officer brought to Tabita.

Q.18 Was that after the charge?
A. Yes

Q.19 You agree there was nothing to forgive Tabita about as you have been charged for rape.
A. My wife told me when Tabita came to our house, she was forgiven.

Q. 20 I suggest to you that you are not telling the truth because there is nothing in the report?
A. My wife is the chairlady of the church, Tabita gave her testimony and was forgiven.

21. At the night when your crew dropped you and you walked to your house, that Agmark man? Do you remember his name.?

A. Tobby Wambi from Winge village no.1 I am from Winge no 2 village. NB Not called to give evidence.

Q.23. That story is not true?
A. He is from Winge 1 and he went to his house. NB. Opportunity for Tabita to announce her rape incident.

Q. 24 I am suggesting to you that when you gave your story to Police, you never told police about the Agmark man?
A. Because he never walked with us all the way therefore I did not include his name in my statement. . NB. Opportunity for Tabita to announce her rape incident.
A. I don’t know why that was not made or given to court.

Q.26 That story about AgMarkman was not given to police and when given to Tabita she said you are lying.
A. That is not true I did not make up story.

Q. 27 Likewise your story about Tabita’s father looking for her on 16 May 2011 and Tabita telling him not to worry is not true?
A. I did not make it up, we were standing when her father called.

Q. 28 The only time is now in court because it is not recorded in your record of interview or in Tabita’s statement, but only today, what do you say?
A. I gave some statements to police, others I did not give.

Koni Tikiuang
19. For what it’s worth this witness was called to substantiate the number of phone calls made by the victim to the accused that day. Only two calls however the accused said he received more call that day.

Piesen Maulingi
20. He testified of transporting Koni’s beer back to Maprik whilst he was seated at the back of the vehicle. His testimony does not find favour in Konnie's version of him being in the front seat with the accused and heard the telephone conversations between the victim and the accused. He spoke about Tabita being picked up and later dropped off with the accused at Winge junction.

Submissions for the Defence
21. Although sexual intercourse is not denied by defence they maintained that the three acts of sexual penetration between the accused and the victim were consensual. Those sexual encounters were triggered by Tabitas mobile number which was passed on to the accused by her cousin brother. Having made contact with Tabita over her phone they both firmed up date appointments resulting in the sexual encounters over a 24 hour period. Defence asserted that Koni Tikituang who was related to Tabita was also in the vehicle and spoke to the victim. They submitted that Koni was an independent witness and his testimony must be believed.

22. Defence submitted that the victim was not a witness of truth as she constantly changed her story. They cited instances of the victim admitted to talking with Koni and giving her mobile number to her cousin brother which ended up with Thomas Sas.

23. Her demeanour was also challenged including her sense of logic and common sensed unimpressive. Defence drew inference from questions put to her as why she failed to raise the alarm of her rape incident when opportunities presented themselves? She replied Thomas spoilim mi pinis. In summary defence submitted that the victim was not a truthful witness and her testimony should not be believed.

24. Jacklyn Kutiwali had the opportunity to alert Tabita’s parents but she failed to do that. According to defence her actions supports the accused’s claims that sexual intercourse was consensual and no cause for alarm.

25. Francesca Bakaman only talks about receiving her daughter in a state of shabbiness on the morning of 16 April 2011 at the health centre. Defence submit that she of all people should be the first to know that her daughter was raped instead of a policeman.

26. The defence team submitted that defence witnesses should be believed in that their evidence remained consistent even during cross examination whereas the victim’s evidence was at variance and not to be believed. On the element of consent, defence submitted that the onus was on the State and it was their duty to discharge that duty. However since they have failed to discharge that duty beyond a reasonable doubt they submitted that a verdict of not guilty be returned in favour of their client.

Submissions for the State

27. Mr. Popeu Counsel for the State replied that the prosecution had proven its case beyond reasonable doubt and the accused should be found guilty as charged. He submitted that the court make assessment of the demeanour, consistency, credibility and believability of defence evidence and referred me to the case of The State v James Yali [2005]PGNC 191; N2988 in which Cannings J employed the process. I take judicial notice of his Honours systematic analysis of evidence in his judgment and adopt same in parts here.

28. The State submitted that the accused and his wife’s evidence to be so incredible that their version of events should not be believed. Their evidence was tailored to exonerate the accused and that the wife had ulterior motives to come to court and give fabricated evidence for fear of her husband being found guilty and imprisoned. There were inconsistencies in their evidence

29. The state further submits that the wife’s actions in looking for her husband on the 4th March alleged rape incident instead of calling out for the victim defies logic and common sense in that a suspicious wife returning home to find his husband missing would obviously go searching for him rather than looking for someone else. The defence attempts to water down this piece of evidence by linking the victims basket found in their kitchen was immediately objected too and ruled out as it offended the rule in Brown vs. Dunn in that the defence did not put this piece of evidence to the state witness.

30. Another discrepancy in defence evidence is that Alice Tachik maintained throughout examination in chief and cross examination that on 4 March the accused was left behind in the house with their two children when she left for the village to buy some food. Her version of events was not improved by the accused’s version when he also maintained that he was alone in the house that morning whilst his wife and their two children went to the village.

31. Mr Sambua submitted that the presence of inconsistencies in defence witness statements as opposed to state evidence where the accused’s evidence corroborated the victims evidence in parts save for the inconsistency in the first sexual encounter during the “kuskus” hunting trip in January. The state submitted that although the victims evidence was not corroborated the recent amendments to the law s.229 H of the Criminal Code removed the element of the need for corroboration in rape cases. Hence persons charged with the offence of rape may be convicted on uncorroborated evidence or testimonies (James Yali case). Here is what Justice Cannings said on the issue of uncorroborated statements:

“Prior to 2003 the general practice was that the court was required to warn itself of the dangers of entering a conviction for rape based on the uncorroborated testimony of the complainant. The practice was consistent with the position at common law, the rationale being that rape is a serious charge, easy to allege and difficult to refute. (The State v Kewa Kai [1976] PNGLR 481, National Court, Prentice DCJ; The State v Anton Kumak (1990) N835, National Court, Ellis J; The State v Bikhet Nguares Paulo [1994] PNGLR 335, National Court, Doherty J.) (See generally D R C Chalmers et al, Criminal Law and Practice in Papua New Guinea, 3rd edition, Lawbook Co, © 2001, pp 333-335.)

Nowadays the opposite is the case: not only is the National Court not required to warn itself, it is not allowed to. Section 352A of the Criminal Code (corroboration not required)..."

I too endorse and adopt his pronouncement in this case."

32. The upshot of states submission is that they have discharged the onus beyond reasonable doubt and the court should return a verdict of guilty on the accused on both counts of rape.

What is the Law of Rape than? Counts 1& 2, 3: Rape
33. Section 347 (Definition of rape) of the Criminal Code states:

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

To obtain a conviction under count 2 the prosecution must prove the following matters beyond reasonable doubt:

- the accused sexually penetrated the complainant;

- without her consent.

"Sexually penetrates" is defined by Section 6 (sexual penetration), which states:

When the expression "sexual penetration" or "sexually penetrates" are used in the definition of an offence, the offence, so far as regards that element of it, is complete where there is—

(a) the introduction, to any extent, by a person of his penis into the vagina, anus or mouth of another person; or

(b) the introduction, to any extent, by a person of an object or a part of his or her body (other than the penis) into the vagina or anus of another person, other than in the course of a procedure carried out in good faith for medical or hygienic purposes.

"Consent" is defined by Sections 347A (meaning of consent).

Section 347A states:

(1) For the purposes of this Part, "consent" means free and voluntary agreement.

(2) Circumstances in which a person does not consent to an act include, but [are] not limited to, the following:—

(a) the person submits to the act because of the use of violence or force on that person or someone else; or

(b) the person submits because of threats or intimidation against that person or someone else; or

(c) the person submits because of fear of harm to that person or to someone else; or

(d) the person submits because he is unlawfully detained; or

(e) the person is asleep, unconscious or so affected by alcohol or another drug so as to be incapable of freely consenting; or

(f) the person is incapable of understanding the essential nature of the act or of communicating his unwillingness to participate in the act due to mental or physical disability; or

(g) the person is mistaken about the sexual nature of the act or the identity of the person; or

(h) the person mistakenly believes that the act is for medical or hygienic purposes; or

(i) the accused induces the person to engage in the activity by abusing a position of trust, power or authority; or

(j) the person, having consented to engage in the sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity; or

(k) the agreement is expressed by the words or conduct of a person other than the complainant.

(3) In determining whether or not a person consented to that act that forms the subject matter of the charge, a judge or magistrate shall have regard to the following:—

(a) the fact that the person did not say or do anything to indicate consent to a sexual act is normally enough to show that the act took place without the person's consent; and

(b) a person is not to be regarded as having consented to a sexual act just because—

(i) he did not physically resist; or

(ii) he did not sustain physical injury; or

(iii) on that or an earlier occasion, he freely agreed to engage in another sexual act with that person or some other person.

34. The accused is charged with 3 counts of rape, an offence under s.347 of the Criminal Code Act 2002. For the State to prove that the accused raped the victim, they must prove that the accused sexually penetrated the victim without her consent. The prosecution always bears the burden of proving their case beyond reasonable doubt.

Was Consent Obtained?

35. The victim gave evidence that she was grabbed from behind, dragged into the bush and raped by the accused on the first occasion. Her attempts to shout for help were stifled by the accused with threats of killing her with a bayonet. However, there was no evidence to support that part of her story apart from the evidence of the accused that he left her behind at the crime scene after having sex with her. I am satisfied on the strength of the victim's evidence that a reasonable degree of force was used by the accused. He forced her into the bush, then he forced her to undress which she refused, then he raped her. I draw the inference from the evidence that the victim submitted to being sexually penetrated, as there was nothing else she could do. She was overpowered by a physically stronger person. These facts tend to fall within Section 347A (2) (a) of the Criminal Code: a person does not consent if she submits to penetration because of the use of force on her.
36. As regards the second count of rape the victim testified that she was lured to a secret location by the accused's wife on the pretext of resolving the first incident of rape. As it turned out that meeting did not take place but rather turned out to be another opportunity for the accused to rape the victim with the wife's full knowledge. Again I draw the inference from the evidence that the victim submitted to being sexually penetrated, as there was nothing else she could do. She was forced into a precarious situation in that if she refused to have sex with the accused the accused would harm her aunt. She testified of crying and holding tightly onto her aunty not to leave her alone with the accused. Hence I can safely infer that she was overpowered by a physically stronger person. Again these facts tend to fall within Section 347A (2) (a) of the Criminal Code: a person does not consent if she submits to penetration because of the use of force on her.

37. I have already indicated that I found the complainant to be a fairly convincing and credible witness; much more so than the accused. The victims' evidence is to be given much more weight than the accused. In light of the above I am satisfied beyond reasonable doubt that the victim did not give free and voluntary agreement to be sexually penetrated by the accused. She did not consent. I consider that all of that evidence supports the conclusion that what the accused did amounted to rape without consent.

Witness Demeanour
38. I observed the demeanour of witness Alice Tachik to be timid and unsure of her herself and at times under some apprehension when giving evidence. On the other hand the victim appeared to me to be calm and collected and focused in giving her evidence. This is despite the allegation of rape on her. The same cannot be said for the accused. My attempts to make direct eye contact with him during evidence all failed as the accused kept looking away from the court. I noticed him to be a very strong built stocky man as opposed to his wife who appears to be slim, frail looking women. She had obvious signs of fear and stress all over her face. To this end I make allowance of her being a villager and this could be her first time in court hence the fear. I draw inference of her apparent stress on the evidence that she has been under constant suspicion over her husband's unfaithfulness to her and his failed attempts to develop sexual relations with the victim who is much younger than her. Furthermore soon after being told by the victim that she had been raped by the accused the news became so overbearing she attempted to commit suicide but was rescued by her son with the victim's assistance.

Motive
39. Michaelyn Levers-Victim. Her motive in my view is to see that justice is done and she be freed of the shekel of abuse and harassment brought upon her life by the accused. She is doing this with the full knowledge that the accused is her uncle by marriage to her aunt. Similarly she is fully aware of the consequences of her actions in that her aunty would be hurt most and denied the presence of her husband if found guilty. I am of the view that she had no ulterior motive save to see justice done.

40. Francis Tachik-Accused. His motive in my view is to be exonerated from the two counts of rape hence his passion and vigour to shift blame on to the victim and plead "consensual rape". His failed attempt to get close to the victim, coupled with his sexual desire and lust for a much younger sexual partner in the victim has blinded him to commit the two acts of rape. A situation he cannot reverse and now finds his marital relationship with his wife for over 15 years now at the cross roads and on the verge of a downhill drive. Hence the push to shift blame onto the victim.

Application & Observation

41. The State in its submission is seeking a conviction on both counts of rape on the basis that the victim's evidence although uncorroborated is credible and must be believed. The witness was raped without her consent and with threats of harm being inflicted on her body if she refused sexual intercourse.

42. The complainant was the only witness to testify that she was raped by the accused on two occasions and bravely told court what happened on those two occasions, reliving the trauma and stress in the witness box. The accused may be the other people present however there is very strong inference that his wife was also present on those two occasions. He gave evidence but it contradicts, rather than corroborates, the victim's evidence as to lack of consent. However a pertinent part of his evidence corroborates the victims' evidence.

43. The court has to decide who to believe: the accused or the victim. The victim's evidence of being left behind at the sex scene after the first sexual encounter and found by the wife is corroborated by the evidence of the accused; the evidence that the victim came to their house and chewed betel nut with both of them before going to her garden nearby; the evidence of being raped with force and threat of harm; the evidence of the second rape with the wife's knowledge appears to be credible; the evidence of the wife attempting to commit suicide after the second rape incident is testament to this animalistic behaviour of her husband, the accused. I regard all those evidence as relevant.

44. Having carefully considered all the circumstances leading up to the three acts of rape, one in the garden and the other under the teak three in the bushes I am satisfied that sexual penetration was not consensual and the victims version of events is to be believed. I reject the accused evidence that sexual penetration was consensual.

45. I now turn to the victim's earlier testimony during cross examination of being sexually penetrated twice by the accused during a "kus kus" hunting trip in January 2010. It could be argued and has been suggested to her that she had a on- going sexual relations with the accused and that her testimony of the two alleged rapes should not be believed. Be that it may I hold a different view. The defence attempts to discredit the victims testimony in my view has back fired on the accused.

46. The cunningness and ease in which the accused fulfilled his sexual desires over an unsuspecting 16 year old girl (his niece) during the "kus kus" hunting trip drove the accused to his failed sexual related attempted attack on the victim as she was on her way to bath. The accused's lust and greed in fulfilling his sexual desires over a teenage girl earlier on and old enough to be his daughter might I add, in my view is inference enough to draw conclusions that culminated into raping the victim with the full knowledge of his wife. He was out to get the victim and rape her despite obstacles in his path. His actions in my view are analogous to domesticated animals urge and instinct to kill after being fed with warm blooded flesh. I reject his evidence and found him not to be a witness of truth.

DETERMINATION OF COUNT 1: RAPE at Kwimbu Junction on 15 April 2011.

47. This charge has two elements:

1. the accused sexually penetrated the victim;

2. without her consent;

48. The victim submitted to the act of rape because of use of violence and threats. I am satisfied beyond reasonable doubt as to both elements. I therefore return a verdict of guilty on the accused on count 1.

DETERMINATION OF COUNT 2: RAPE at accused house Wingei No. 2 village on 12 July 2010.

49. This charge has two elements:

1. the accused sexually penetrated the victim;

2. without her consent;

50. The victim submitted to the act of rape because of use of violence and threats. I am satisfied beyond reasonable doubt as to both elements.

I therefore return a verdict of guilty on the accused on count 2.

DETERMINATION OF COUNT 3: RAPE at Jackyln's house at Wingei No. 2 village on 16 April 2011.

51. This charge has two elements:

1. the accused sexually penetrated the victim;

2. without her consent;

52. The victim submitted to the act of rape because of use of violence and threats. I am satisfied beyond reasonable doubt as to both elements. I therefore return a verdict of guilty on the accused on count 3.

VERDICT

53. I find that the accused, Thomas Sas is:

1. Guilty of count 1,
2. Guilty of count 2,
3. Guilty of count 3.
   

54. I convict him each and severally on all three counts.
Verdict accordingly

____________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyers for the accused