N8613

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 487 & 489 OF 2012

THE STATE

V

LOLO BELAMI & HOBAI HARO

Waigani: Berrigan, J
2020: 22nd, 23rd & 24th September & 13th November

CRIMINAL LAW – Sections 347(1) and (2) of the Criminal Code – Rape in company - S 7(1)(a), (c) and (d), and S 8 of the Criminal Code – Parties to Offences - Identification and Recognition – Each accused found guilty of the rapes personally perpetrated by them and of the rapes perpetrated by others whom they aided, and which were committed as part of their common intention to sexually penetrate the complainant without her consent.  One accused also found guilty of the rapes perpetrated by others which he procured.   

Cases Cited:
Papua New Guinea Cases

John Beng v The State [1977] PNGLR 115
Biwa Geta v The State [1988-89] PNGLR 153
Jimmy Ono v The State (2002) SC698
The State v Francis Vau Kamo (2006) N2991
The State v Felix Kange (2020) N8488  
R v Tovarula [1973] PNGLR 140
R v Turan (1952) N211
R v Wendo [1963] PNGLR 217
Agiru Aieni v Paul T Tohian [1978] PNGLR 37
Wani v The State [1979] PNGLR 593
Vaii Rocky Maury v The State (2001) SC668 
Charles Andrew Epei (2019) N7845 
Imiyo Wamela v The State [1982] PNGLR 269
Mark Nainas v The State (1998) SC598
Karani and Aimondi v The State (1997) SC540 

Overseas Cases

Attorney-General’s Reference (No 1 of 1975) [1975] 2 All ER 684
Borg v R [1972] WAR 194
Coney (1882) 8 QBD 534 
R v Adams [1998] QCA 64 
R v Lopuszynski [1971] QWN 33
R v Oberbillig [1989] 1 Qd R 342 
Stuart v The Queen (1976) 134 CLR 426

References Cited

Sections 6, 7, 8, 229H, 347, 347A, 349A of the Criminal Code (Ch. 262) (the Criminal Code)  

Counsel

Ms E. Kave, for the State 
Mr E. Sasingian, for both Accused

DECISION ON VERDICT
13th November 2020 
1.	BERRIGAN J: The trial of Lolo Belami and Hobai Haro was remitted to the National Court by the Supreme Court following appeal.  Each were charged with Douba Kapina, of four counts of the rape of Tirzah Ove on or about 20 January 2012, contrary to s. 347(1) and (2) of the Criminal Code (Ch. 262) (the Criminal Code).  

2.	In aggravation the indictment alleged that the accused were in company with others.  I note here that the offence of aggravated rape contrary to s 347C of the Criminal Code was not in force at the time, being inserted into the Code in 2013 and after the alleged commission of these offences.
 
3.	The essential allegations are that on the evening of 20 January 2012 the accused in the company of each other and Douba Kapina, whilst in the yard of Lolo Belami’s residence, forcibly removed the clothes of the complainant, who is known to each of them.  The complainant begged the three men to stop.  Douba Kapina grabbed the complainant by her neck, Hobai Haro held onto both of her legs whilst Lolo Belami held onto her hands.  Lolo Belami then sexually penetrated the complainant by inserting his penis into her vagina.  Hobai Haro then sexually penetrated the complainant by inserting his fist into her vagina whilst Douba Kapina continued to hold her neck.  Hobai Haro then inserted his penis into her vagina whilst taunting her about her brothers.  The complainant begged him to stop but he continued.  Then Douba Kapina sexually penetrated her by inserting his penis into her vagina.  The other two men were still present at the time.  She pushed Douba Kapina away and crawled towards the neighbour’s house. Douba Kapina followed her but Abel Api heard her banging and came out before helping her into his house.  The following morning she reported the matter to her mother, and then went to the hospital for medical treatment before the matter was reported to police. 

4.	The State alleges that Lolo Belami was the principal perpetrator of the rape alleged in Count 1 of the indictment, and that he was aided by Hobai Haro and Douba Kapina for the purposes of s 7(1)(c) of the Criminal Code.

5.	The State alleges that Hobai Haro was the principal perpetrator of the rapes alleged in Counts 2 and 3 of the indictment and that he was aided by Lolo Belami and Douba Kapina for the purposes of s 7(1)(c) of the Criminal Code, and that Lolo Belami procured the offence pursuant to s 7(1)(d). 

6.	Finally, that Douba Kapina was the principal perpetrator of the rape alleged in Count 4 of the indictment and that he was aided by Lolo Belami and Hobai Haro for the purposes of s 7(1)(c) of the Criminal Code, and that Lolo Belami procured the offence pursuant to s 7(1)(d). 

7.	Alternatively, the State seeks to invoke s 8 of the Criminal Code on the basis that there was a common intention amongst the three men to rape the complainant when they entered Lolo Belami’s residence, and that the rape by each of them was the probable consequence of prosecuting that purpose.  

STATE’s CASE

8.	The accused each pleaded not guilty.  The State tendered a number of statements by consent at trial and called the complainant who gave oral testimony.

9.	In his statement David Kairi, 25 years old, said that “we” went to the Sports Inn but the dance was cancelled so they came back to Erima and decided to get a twelve pack.  Bradley and Bethseba bought a twelve pack of stubbies and gave him one to drink.  He was drinking it when he saw “some Erave men” come to Kelap and start pushing him.   When this happened, he decided that they should go home. He was drunk but remembered seeing Lolo talking to Tirzah.  As they were walking, he and Bradley told Bethseba and Tirzah to go ahead into their gate.  At that time some Erave men came towards them and he ran away with Bradley, escaping.  

10.	In his statement Paul Bradley, 19 years old, said that they went to the dance but it was cancelled so they came back to Erima.  They stopped at the container store to buy beer.  He saw Lolo buying smoke and did not talk to him.  They bought beer and were drinking there when “one guy from Erave came” and for no reason pushed Kelap.  He saw that there was going to be trouble so he called the girls and they started home.  When they arrived home Tirzah felt sorry for her brother and went back down. 

11.	Similarly, Bethseba James, 20 years old, said that they went to the dance but the dance was cancelled so they came back and stopped at the container store for the boys to buy some beer for “us” to take home and drink.  Whilst they were there “one guy from Erave” came and started to push and harass Kelap.  She and Bradley contributed some money and bought a twelve pack of stubbies and stood around for a while.  She saw Tirzah talking to Lolo. After Tirzah spoke to Lolo she came over to her and Bradley.  They walked home, Kelap was walking at the back of them.  They were busy talking, laughing and walking home.  Once at home Tirzah realised that Kelap was not with them, so she turned back to find him.  

12.	Abel Api, 35 years old, was asleep when he heard a noise from the kappa (gate).  He thought some boys were coming in.  He called out and she called back, calling his name.  He went out and saw the complainant.  She told him that some boys had raped her.  She was naked and he scolded her.  She was not steady on her feet.  She was unbalanced so he felt sorry for her and took her into his sleeping area.  She did not sit down, she went to sleep straight away.  She told him that she was feeling cold so he gave her some shorts and shirt to wear.  Not long after she said she was cold again and he gave her a pillow and a bed sheet to sleep with and she slept.  Her head was bleeding and his beddings, bed sheet and pillow case was spoilt with blood.  In the morning he woke her up and told her it was morning and she must go up to the house.  He helped her to the main road and told her to walk slowly to the house.

13.	Ruth Ove, the complainant’s mother, states that she was awake when she saw Tirzah get her towel.  Later Tirzah asked to cover up with a blanket.  Ruth covered her and asked her what was wrong.  The complainant told her that she was cold.  After covering her Ruth boiled some water for her head and asked her to come outside.  The complainant told her it was hard for her to come outside so she took the cup of water inside and bathed her head.  The complainant felt cold and said “Mom, I’m ashamed to tell you something”, and then “Some men fucked my vagina and its damaged, and blood is still pouring out, am feeling dizzy/weak, it’s like I am going to die”. The complainant called the names of three men, Lolo, Douba and Hobai.  Ruth cried and called three family members and told them what the complainant had told her.  The boys went to look for the three men and she took Tirzah to the hospital. 

14.	Dr Frank Kapipi examined the complainant in the early hours of 21 January 2012.  His medical report states:

“Tirzah Ove is a 25 year old young woman who as sexually assaulted on the night of 21/01/12.  She was in a group of women who had come back from a party and was drunk at that time.  They got involved in an argument with the suspects and she was gang raped by the group of men after chasing away the others.  It was reported that the men also used their hands to penetrate her private part causing great discomfort and injury.

She was rushed to the maternity section (PMGH) early hours of the next day and I did a full medical check on her.  She was at that time drunk and was in great pain.  She was bleeding actively vaginally and was in shock.  She had a lot of lacerations on her general body and a deep cut on her forehead. Her general body was tender and sore.  

On vaginal examination, the vulva was bruised and swollen.  There were two high vaginal tears on the posterior vaginal wall extending up to the posterior fornix  from which she was bleeding actively.  The tears were sutured.  

The uteris and cervix was very tender but intact.  Specimens were collected from the vagina and vulva from these specimens sperm cells have been noted which confirms sexual penetration…” 

15.	 The complainant, Tirzah Ove, gave oral evidence.  On 20 January 2012 she was living in Erima.  At about 6 pm she was with four others, Bethseba, David, Bradley, and her brother Kelap, when they went to a fundraising dance for the Erima Mothers at Sport Scene.  Before doing so they drank one 40 ounce bottle of “coffee punch” between the five of them.  She did not drink any other alcohol that night.

16.	When they got to Sports Scene it was closed because of the rain so they returned to the container store at Erima, by which time it was about 9 pm.  The boys bought some bottles of beer at the store.  Whilst there a man from South Erave, called Peter, wanted to fight with Kelap.  The boys told the complainant and Bethseba to go back to the house, which they did.

17.	At the house she realised that her brother Kelap was not there and heard him shouting.  She went down to the container store and saw Peter sitting there. He saw her and got a full bottle and smashed it on her head.  She did not turn, she heard Kelap’s voice and continued on.  As she came towards the front gate of Lolo Belami’s house he came out.  He saw her and said “Big Sister your head is bleeding so you come inside and use the water to wash it off”.  When Lolo first called to her she recognised his voice.  He was two to three metres away.  She knew him and went inside his yard.  He left her at the side of the house where the water is.  He told her to wash her face and he left her. She washed her face and because she felt dizzy she sat down.  

18.	A few minutes later he returned with Hobai Haro and Douba Kapina.  The first time she saw them they were already in front of her and holding her hands and legs.  She screamed but they told her to shut her mouth.

19.	Lolo held her leg, Hobai her hand and Douba her waist.  They took her to the back of Lolo’s house, through the iron fence and into the banana garden.   They tore off her clothes.  Douba held her neck, Hobai her hand.  

20.	Lolo was the first one to sexually penetrate her.  He put his penis into her vagina.  She told them to stop but they refused. Once Lolo was finished, he remained standing there and keeping an eye out.

21.	Douba held her neck and her hand because she was struggling.  Hobai Haro then came and put his fist or hand inside her vagina.  She could feel his hand inside her “tummy”.  She stopped struggling because she was in pain.  She told him to stop but he told her to call for her brothers to come and save her.  Then he put his penis into her vagina.  Lolo was standing there and keeping an eye out at the time.

22.	After Hobai finished, Douba came.  When she saw Douba she begged him to leave her because she knew him but he just laughed.  Then he came and put his penis into her vagina whilst both of the others stood and watched. 
23.	With the little strength she had left she pushed Douba away from her and crawled towards the iron fence but Douba followed her.  Lolo and Hobai did not follow her.  They left.

24.	She stood at the iron fence and a person came and opened it.  She recognised him as Able.  She asked him to help her.  He held her hand and took her inside.  He told her to wait and that he would get some trousers for her to wear because she was fully naked.  He gave her the trousers and told her to sleep.  But she saw that it was already day break so she told him that she will go home. She walked slowly home.

25.	At home she saw her mother.  She was sitting there.   She told her that she was injured and her mother she asked what type of injury.  The complainant told her that Douba, Lolo and Hobai raped her but her mother did not initially believe her.  Then her mother saw that she was bleeding so she called out to her family and they went looking for those men.  

26.	The complainant did not shower, or eat or drink anything whilst at home. 

27.	Before going to the hospital, the complainant went to the police station and laid a report.  After that she went with her mother to Port Moresby General Hospital.  At the hospital her mother told the doctor what had happened. 

28.	She has known Lolo Belami her whole life.  They grew up together. She also knows Hobai and Douba very well.  She grew up with all of them at Erima.  It was between 10 and 11 pm when they took her to the banana garden.  It wasn’t too dark.  There was a full moon. There was a lamp inside Lolo’s yard.  She recognised their faces.  The first time she saw them altogether they were already in front of her holding her hands and legs.  She screamed but they told her to shut her mouth. 

29.	Under cross-examination the complainant agreed that she shared a 40 ounce bottle of “hard stuff” within an hour before leaving for Sports Scene at 7pm.  She had long hair at the time and tied it up.  At the time her brother Kelap was shorter than she was and slim. 

30.	She disagreed with the statement of David Kairi, that it was a group of men from Erave who attacked her and her friends at the container store.  

31.	She disagreed that the same group of men chased her brother, Kelap away, and attacked her, then struck her head with a bottle, physically assaulted her and then raped her.   She disagreed that Lolo Belami’s mother heard the complainant screaming and called out to the men to stop, which is when Lolo came out of the house, and at the same time Hobai Haro, hearing the noise came out and rescued her from the men.  She further disagreed that it was then that Lolo took her to his house and told her to stay in the yard and wait for morning but that she decided to make her own way next door to the neighbour’s house.  She disagreed that she collapsed when she was hit with the bottle. 

32.	She disagreed with Abel Api’s statement that she slept at his house.

33.	The description of the alleged incident as contained in the medical report was put to her.  The complainant maintained that it was not true. It was put to her that the doctor and her mother must therefore be lying and she agreed.  

34.	The statement in the medical report that “she was drunk at that time and was in great pain” was put to the complainant.  She denied that it proved that she was heavily intoxicated throughout the entire ordeal.

35.	She disagreed that after the bottle was broken on her head the man attacked her further with the bottle and that is how she got cuts on her body.

36.	It was put to the complainant that at the time of the rape she was drinking at a very notorious settlement, infested with petty criminals and pick pocketers and it was those people who chased her brothers away, abducted her and raped her.  It was then that she was assisted by Lolo and Hobai, and it was only after returning from the hospital that she decided to blame them because she was drunk and could not identify the other men.  She maintained that was not true.  

37.	Lolo Belami’s record of interview was tendered by consent.  In it he said that between 11 pm and 12 am on 20 January 2012 he was in the house when he heard people fighting.  He came out of the house and stood by the fence but it was dark, and he could not see the faces of the people because they were wearing caps.  Someone called Junior pulled a woman into his yard.  He told Junior to leave her and that she was his sister.  The woman called Lolo’s name and Junior left.  He offered to take her to her family but she was screaming and crying in pain.  She did not speak. He cleaned her body and sat down and watched over her.  

38.	Half an hour later his mother told him not to stay outside with the woman so he went inside.  When questioned about leaving the woman outside by herself, he then said he made her a bed outside.  When questioned about leaving her whilst she was in pain from her head, and screaming and crying, he said he tied a shirt around her head and she fell asleep and then he left.  

39.	He said that the complainant was so drunk she would not be able to recognise people’s faces.  She knew it was him, however, because she recognised his voice.  

40.	He said that he did not go anywhere that night, he was always in the house.  He was then asked if he met the complainant at the container store and spoke to her earlier that night.  He agreed that he did meet the complainant, with her boys and her girlfriend when he went to buy a candle at the container store, but then changed his answer to “No”.  He then said that he forgot that he went out earlier that night.  

41.	In his record of interview, Hobai Haro, said that he was in the house with his wife telling stories until he went to sleep at midnight.  He did not go anywhere that night.   He then heard a noise at his aunt’s place and went to look.  He saw some men pulling a girl.  On the way down he heard his aunt shouting and the men ran away.  The woman who the men grabbed called his name.  He went closer to her and opened the kappa and she went home.  The place was dark and he did not see anyone.  As to why the complainant would make the story up, he said “they had attacked her and her head was cut, and there was no one to blame and since we were there, she took her anger out on us”. 

DEFENCE CASES

42.	Each of the accused gave evidence in their own defence.

43.	Lolo Belami is from Boidoga, Goodenough, Milne Bay.  On the night of 20 January 2012 he went down to buy a candle at the container store and saw Tirzah Ove and her brothers. They were drinking.  He bought a candle.  The complainant saw him and came and talked to him.  She told him they went to a party, the party was cancelled and they came back and were drinking.  He bought the candle and went home and slept.  

44.	While he was sleeping, he heard a fight out on the road.  He went outside and stood inside the boundary.  He saw men covering their faces with caps and shirts and dragging one woman.  She broke the gate and came in.  A man ran after her.  He told the boy that she was his sister so leave her.  He did.  

45.	Lolo saw that the complainant’s head was bleeding so he took her down to the house.  He got a bucket of water and soaked a cloth and wiped her head. From there he asked her if she felt alright then he will take her up to her house but she did not say anything, she was just crying.  So he stayed with her about 5 to 10 minutes.  His mother called so he went inside the house and slept.  In the morning they came and told him that he was involved in the trouble so he took his mother and went to Boroko Police Station to clear his name. They took a statement and locked him up at the police station.

46.	It was a large group of men that he saw dragging the woman.  Amongst them was Junior, from Erave.  He confirmed that he knew the complainant and that they lived in the same street.  The complainant was drinking that night.  She was “over drunk”.   He didn’t want to take her into the house because his parents and brothers were sleeping there.

47.	Under cross-examination he maintained that the complainant was drinking with the others at the container store.  He denied that later that night he told her to come into his yard because she had a cut on her head.  He maintained that he told her to sit and wait while he got the water, and that he returned with the water and washed her head.

48.	He denied bringing Hobai Haro and Douba Kapina to her in the yard, carrying her to the banana patch, and each of the alleged rapes.  

49.	He maintained that he rescued the complainant from a group of men who were raping her.  He agreed he didn’t take her home or into the house but just left her in the yard.  She was inside the boundary so he knew she was safe.  At the time she was wearing clothes.

50.	He agreed that he had known the complainant a long time.  They lived in the same area their whole lives.  He knows her and her family well.

51.	The container store is 20 metres from his house. It is not possible to see the container store from his house.

52.	Having heard and observed the accused in the witness box I am unable to accept him as a witness of truth.  This is based on a combination of my assessment of his demeanour when giving evidence together with the content of that evidence.  He was a fairly confident witness but there are aspects of his oral testimony and of his interview with police on account of which I disbelieve him.  

53.	Firstly, his record of interview contains a number of inconsistencies.  He initially said that he did not go anywhere out of his house that day or night.  Then he was asked if he met the complainant at the container store and spoke to her and he said “Yes”, that he did meet her, with her friends when he went to buy a candle, and immediately before the next question changed his answer to “No”.  He was then asked why he had said that he did not go anywhere and said he forgot. 

54.	He initially said that when Junior pulled the complainant into his yard, he told him to leave her and that she was his sister, and further that “she saw me and called my name correctly”.  That is inconsistent with his later statement in the record of interview that she was too drunk to recognise a person’s face.  When asked to explain how she was able to call his name in those circumstances he then said that she recognised his voice.  This was a clear attempt in my view to distance himself from the allegations on the basis that the complainant was heavily intoxicated.

55.	In addition I find it implausible that after rescuing “his sister” from a group of men, and in circumstances where her head was bleeding, where she was unable to speak, but was screaming and crying in pain, that he would leave her alone in the yard whilst he went inside to sleep because his mother told him to “but to listen if anything”.  When asked to explain this in his record of interview it was then that he said firstly that he made a bed for her, and then that he wrapped her head in a shirt.  

56.	His oral testimony was equally unimpressive.  It was inconsistent with his record of interview in a number of respects.  In his record of interview, he said it was a man called Junior who pulled the complainant into his yard.  In oral evidence he said that the complainant broke the gate and came into the yard, and that a man ran after her.  In his record of interview, he stayed with the complainant for about half an hour.  He bathed the complainant’s body, he made her a bed, he wrapped her head in a shirt.  In evidence he said he bathed her head with water.  In evidence, he only stayed about five or ten minutes before his mother called him inside.  Again, he left the complainant alone, outside.   

57.	In summary, I formed a very low opinion of the accused’s credibility and am unable to accept him as a witness of truth.  I make it clear, however, that I take account of his untruthfulness in relation to his credibility and the reliability of his evidence only and for no other purpose.  The accused gave evidence although he was not obliged to do so. By entering the witness box and giving evidence he did not take upon himself any obligation to prove anything in this trial.  

58.	Hobai Haro is From Gulf.  On the night of 20 January 2012 he was at the house with his wife.  He heard a noise coming from his auntie’s yard.  So he went down. The noise wasn’t coming from there, it was coming from the container store.  He went and opened the gate to the house and saw nothing so he came out and locked the gate and came home.  

59.	   The noise he heard was that of drunkards, music and different noises.  He came out of his house because he heard fighting and he wanted to know because the boys might go into that house so he went down to his auntie’s house to see.  Lolo is his cousin.  He lives just opposite Lolo’s house.

60.	He saw nothing. He went home and stayed with his wife and in the morning they came and told him that he was involved in the trouble.

61.	He agreed that he and the complainant lived in the same area.  He agreed that he went into Lolo’s yard but did not see her there.  He denied going into the yard with Lolo and Douba and each of the alleged rapes.

62.	Under cross-examination he agreed that they all grew up together on the same street. 

63.	He confirmed that he did not see anything or anyone that night.  He denied telling police that he saw some men pulling a woman around.  He said that the police made it up.

64.	He denied growing up with the complainant.  He said he grew up somewhere else so doesn’t know her that well.  She did not recognise his voice because he never talked to her.

65.	Hobai Haro was an unimpressive witness.  His demeanour whilst in the witness box was poor.  His oral evidence was in stark contradiction to his record of interview.  

66.	In his record of interview, he said that in responding to a noise at his aunt’s house, he saw some men pulling a girl, he heard his aunt shouting, he saw the men run away, the woman called his name, he went closer and opened the kappa and she went home.   He did not see Lolo or Douba.  

67.	In evidence however, he said that the noise was not at his aunt’s but from the container store.  I note here Lolo Belami’s evidence that the container store cannot be seen from his house.  He did not see anyone.  He opened the gate to the yard, locked it and came home, but did not see anyone.  He denied telling police that he saw some men pulling a woman around.  I accept that the accused’s signed record of interview is an accurate record of what the accused told police at that time.  It was not challenged at trial.

68.	Having regard to the above, I am unable to accept Hobai Haro as a witness of truth.  Again, I make it clear, however, that I take account of his untruthfulness in relation to his credibility and the reliability of his evidence only and for no other purpose.  The accused gave evidence although he was not obliged to do so. By entering the witness box and giving evidence he did not take upon himself any obligation to prove anything in this trial.  

69.	The question remains whether the State has established its case against each of the accused beyond reasonable doubt.

THE OFFENCE OF RAPE 

70.	Section 347 of the Criminal Code (definition of rape) states:

(1)	A person who sexually penetrates a person without his [or her] 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.

71.	To establish the offence of rape under s 347(1) in this case the State must prove that: 

•	the accused 
•	sexually penetrated the complainant
•	without the complainant’s consent.

72.	“Sexually penetrates” is defined by Section 6 (sexual penetration) Criminal Code, 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.
73.	“Consent” is defined by Section 347A(1) (meaning of consent) of the Criminal Code. It means free and voluntary agreement.

74.	If an offence under Section 347(1) is committed in circumstances of aggravation the maximum sentence is increased by Section 347(2) from 15 years to imprisonment for life. 

75.	In this case, the indictment alleges that there were in respect of each count circumstances of aggravation, such that the accused “was in company with others”. 

76.	“Circumstances of aggravation” are defined by Section 349A (interpretation) of the Criminal Code (emphasis mine):

For the purposes of this Division, [Division V.7, (sexual offences and abduction)] circumstances of aggravation include, but not limited to, circumstances where—
(a)	the accused person is in the company of another person or persons; or
(b)	at the time of, or immediately before or after the commission of the offence, the accused person uses or threatens to use a weapon; or
(c)	at the time of, or immediately before or after the commission of the offence, the accused person tortures or causes grievous bodily harm to the complainant; or
(d)	the accused person confines or restrains the complainant before or after the commission of the offence; or
(e)	the accused person, in committing the offence, abuses a position of trust, authority or dependency; or
(f)	the accused is a member of the same family or clan as the complainant; or
(g)	the complainant has a serious physical or mental disability; or
(h)	the complainant was pregnant at the time of the offence; or
(i)	the accused was knowingly infected by Human Immunodeficiency Virus (HIV) or knowingly had Acquired Immune Deficiency Syndrome (AIDS).
77.	The law now makes it clear that, as for any other offence, corroboration is no longer required as a matter of law:  s. 229H of the Criminal Code:

On a charge of an offence against any provision of this Division, a person may be found guilty on the uncorroborated testimony of one witness, and a Judge shall not instruct himself or herself that it is unsafe to [md the accused guilty in the absence of corroboration. 

SEXUAL PENETRATION, WITHOUT CONSENT, BY EACH OF THE ACCUSED 

78.	The State submits that the only issue in this case is identification.  The accused do not dispute that the complainant may have been violently raped that night but deny any involvement.  It is their contention that Erima settlement is a high-risk location, the complainant and her friends were risking their lives by being out that night and were drunk. Another group of men attacked them and chased the group away but assaulted the complainant with a bottle and then gang raped her.  She was heavily intoxicated and had to blame someone so she blamed the very people that helped her, the ones she recognised.   

79.	The principles regarding identification evidence are well established.  In proceedings where evidence of identification is relevant, the Court should be mindful of all the inherent dangers and the need for caution before convicting in reliance on the correctness of identification.  The Court should examine closely all the circumstances in which the identification by each witness came to be made bearing in mind that recognition may be more reliable than identification of a stranger, but that even where the witness is purporting to recognize someone he or she knows mistakes can be made. When the quality of the identification evidence is good the matter should proceed to a verdict, when the quality of identification evidence is poor, unless there is other evidence which goes to support the correctness of the identification, an acquittal should be entered:  John Beng v The State [1977] PNGLR 115, Biwa Geta v The State [1988-89] PNGLR 153; Jimmy Ono v The State (2002) SC698.

80.	In assessing the quality of the evidence, a court should closely examine all of the circumstances in which the identification was made and critically weigh those factors before relying on the identification evidence.  

81.	I remind myself that there is always the possibility that a mistaken witness could be a convincing one and that any number of such witnesses could all be mistaken:  John Beng (supra).  

82.	Ultimately, the court must be satisfied that the witness is both credible and reliable.  Or “honest and accurate” as expressed by the Court in The State v Francis Vau Kamo (2006) N2991.

83.	Relevant considerations include: whether the witness is purporting to identify a person who was a stranger or someone he or she recognised; the length of time that the witness observed the accused (e.g. a prolonged period or a fleeting glance); the emotional state of the witness at the time of the incident; the prevailing conditions (ego was it broad daylight or at dusk or dawn or inside or outside?); the line of sight (e.g. did the witness have a clear front-on view or was the line of sight interrupted or did the witness just see the accused from the side?). If there are discrepancies in the identification evidence the court should consider them and assess whether they are explicable in terms other than dishonesty or unreliability:  see The State v Francis Vau Kamo (2006) N2991.

84.	The complainant’s evidence was given in a clear and straightforward manner and her demeanour was consistent throughout her testimony.  It was suggested that she was hesitant.  I do not agree.  There was no equivocation or uncertainty in her evidence.  She was robustly cross-examined by experienced defence counsel but remained resolute.  She did not adjust or tailor her evidence in response to counsel’s suggestions but responded in very direct and, it must be said, very simple terms.    

85.	Defence counsel submitted that there were significant inconsistencies between the complainant’s evidence and the State witnesses whose statements were tendered by consent.  I do not agree.  Whilst corroboration is not required as a matter of law, in my view the complainant’s evidence is supported by that of the State witnesses.

86.	It was submitted that the evidence of the State’s witnesses establishes that there was a group of men who attacked the complainant and her group that night and as a result they feared for their lives and fled the location.  In my view that is not an accurate reflection of the evidence. 

87.	Furthermore, whilst it was put to the complainant in cross-examination that her friend David Kairi said that there was a group of men who attacked them that night at the container store, she maintained that it was one Erave man that argued with her brother and later smashed the bottle on her head.  It is the case that David Kairi said that “some men” came to Kelap and started pushing him.  What she was not told, however, was that Bradley Paul and Bethseba James, both said that it was “a” or “one” man from Erave who came and pushed Kelap.  I accept the tested evidence of the complainant, supported by the statements of two State witnesses who were not required for cross-examination, over the untested evidence of a single witness, David Kairi.

88.	On a related issue, defence counsel submitted that the complainant went looking for her brother, Kelap but he was not called as a witness.   The effect of that was not made clear in submission.  It is the case, however, that the State has a duty to call all material witnesses.  Kelap Ove was listed as a State witness on the indictment.  The defence was entitled to require him for cross-examination but did not do so.  Whether or not that was an oversight or a strategic decision that was a matter for it.  Accordingly, I am not satisfied that the State’s decision not to call Kelap Ove in the trial was an improper exercise of discretion by the prosecution, and will not speculate about what he would have said or infer that it would not have assisted the State case:  see  The State v Felix Kange (2020) N8488.  

89.	Furthermore, it was the defence case that it was a group of Erave men who attacked the complainant and her friends at the container, and that they all fled, and that it was at that time that she failed to escape and was raped.  The statements of the State witnesses referred to above corroborate the complainant’s evidence that there was no such attack at that time.   

90.	It was also submitted that the complainant’s evidence was inconsistent with Abel Api.  Again, I do not agree.  The fact that the complainant says she was crawling at the time Api first saw her is consistent with his evidence that she was not steady on her feet and was unbalanced.  The complainant maintained under cross-examination that she did not sleep at Api’s house even though he said she did.  There is clear evidence that the complainant was physically injured and bleeding heavily at the time she escaped to Api’s house.  Not long after leaving Api’s house she told her mother she felt cold, dizzy and weak, and was afraid she might die.  I think it is possible that she did go to sleep at Api’s house for a short time and she is mistaken about that but it does not affect my finding that she is an honest witness.  Api’s evidence supports the complainant’s evidence in several key respects:  she called out to him from the kappa; she told him that some boys had raped her; she was naked; her head was bleeding; and both the pillow and the sheets were stained with blood after she left.  

91.	I also note here that in cross-examination, Lolo Belami maintained that he rescued the complainant from a group of men who were raping her. He said that the complainant was wearing clothes when she came into the yard, that is after the alleged attack by the group of men.  It is clear from the evidence of Abel Api that those clothes had been removed by the time he saw the complainant.

92.	I will deal with Api’s evidence in the context of my assessment of the complainant’s reliability further below.  

93.	Defence counsel also pointed out that there was a discrepancy between the description of the alleged incident in the medical report and the complainant’s version.  The complainant gave evidence-in-chief that her mother gave the report to the doctor and that she was present at the time.  In cross-examination the description of the alleged incident was put to her and she maintained that it was untrue.  

94.	In re-examination the complainant readily confirmed that she went to see the doctor with her mother.  When she was asked where she was when her mother was telling the doctor the story, she also readily confirmed that she was “at the same place”.  It was only when she was specifically asked why she didn’t tell the story to the doctor herself that she said she was in a lot of pain, a matter about which she had already given evidence, and that she said that she was being given medication.  When she was asked whether she aware of the conversation at the time, she agreed she was but that she did not hear them.   I accept that evidence having observed the manner in which it was given, and noting the objective evidence of the medical report as to her condition at the time.  

95.	In addition, the doctor’s report about what happened that night is on the face of it incorrect.  There is no suggestion that a group of women were attacked in this case.  Unlike his findings on the medical examination, the doctor’s description of what happened that night is hearsay.  

96.	Furthermore, the medical report supports the complainant’s evidence in several key respects.  It confirms that she suffered a violent sexual attack.  Whilst I am not an expert, on the face of it, the injuries reported are consistent with the nature of the assaults she described, namely vaginal penetration, including with a fist which the complainant described as penetrating deeply, although she described it simple terms, such that she could feel it inside her “tummy”. 

97.	The medical report also states that she had a “lot of lacerations on her general body”.   Whilst the nature of the lacerations are not clearly described, I find that the number and general location of the lacerations are consistent with the complainant’s evidence that she was raped in the banana patch, and not with being deliberately cut with a broken beer bottle as suggested by the defence.  Photographs admitted by consent of the alleged location show, as one would expect, rough ground and bushes that would cause such lacerations.  It is also consistent with her evidence that she crawled away to escape from Douba.  The only deep “cut” referred to in the medical report was to the complainant’s head.     

98.	The medical report provides further evidence, together with that of Abel Api and the complainant’s mother, that the complainant was bleeding heavily from her forehead, consistent with her evidence that she was struck by a bottle that evening.  Lolo Belami also confirmed in evidence that she was bleeding from the head when he first saw her that night.  

99.	Furthermore, whilst not required, there is evidence of recent complaint.  The complainant reported the event of the rapes by “some boys” to Api, and by “Lolo, Douba and Hobai” to her mother.      

100.	In summary, the complainant impressed me as an honest and credible witness.  I make this finding having regard to the content of her evidence in the context of the State case, together with her demeanour when giving that evidence, and bearing in mind that I may accept or reject any part of it:  Maraga v The State (2009) SC968.

101.	It is the case, however, that the complainant was intoxicated that night, and that she had been struck on the head by a bottle.  There is also evidence that she was physically injured, bleeding, dizzy and in shock.  In the circumstances it is also necessary to consider whether she was a reliable witness as to the identity of the persons who raped her.  

102.	The complainant readily admitted that she had shared a 40 ounce bottle of coffee punch, “hard stuff”, with her friends that evening before 7 pm but denied drinking any alcohol after that.    I accept that evidence.

103.	Doctor Kapipi says that at the time he examined the complainant, she was “drunk and in great pain”.  I accept that in his assessment she was drunk  but he does not explain what he means by that, or to what extent.  I also take into account his observations that she was in great pain, bleeding actively and in shock, together with the fact that it does not appear that he spoke to her in detail but to her mother.  Having regard to all of those matters it is not possible to ascertain to what level the complainant was intoxicated at the time she was examined by Dr Kapipi in the early hours of the morning of 21 January 2012.

104.	Furthermore, on the evidence of Lolo Belami the complainant was coherent at the time he spoke to her at the container, such that they had a conversation and she told him about going to the party, returning etc. The evidence of Bradley Paul, Bethseba James and David Kairi is consistent with the complainant being intoxicated but does not suggest that the complainant was excessively intoxicated.  On that evidence, she was able to walk home, realise her brother was missing, and go looking for him.  On the evidence of both Api and her mother, the complainant was coherent when she spoke to them later that night and/or early in the morning.  For the reasons outlined above, I reject the evidence of Lolo Belami that the complainant was so drunk when he saw her in his yard that she was incapable of recognising anyone.  

105.	I find therefore that whilst the complainant was intoxicated at the time of the alleged rapes, she was not so intoxicated that she was incapable of recognising her assailants.  

106.	Furthermore, this was a case of recognition.  The complainant knows each of the accused very well.  Lolo Belami whilst reluctant to admit that they “grew up together” admitted that they had lived their whole lives together in the same street and knew each other’s families.  On his own evidence he called her “sister”.  

107.	Despite Hobai Haro’s evidence that he did not grow up in the area, he admitted that they lived in the same area and I find that he and the complainant were also well known to each other.  

108.	I also accept the complainant’s evidence that there was sufficient light for her to see their faces that evening.  There was a light in Lolo Belami’s yard when she first saw him, just two to three metres away.  And again when he returned with Hobai Haro and Douba Kapina.  At that time they were so close they were holding her. 

109.	It was also a moonlit night.  The complainant was obviously very close to each of the accused when they were holding her down and raping her.  She was able to see Lolo in the moonlight whilst he remained standing whilst Hobai and then Douba raped her.  Similarly, she was able to see Hobai whilst he was present whilst Lolo and Douba raped her.  She saw each of the attackers up close and for some time.

110.	The complainant was not challenged about either the light in the yard or the moonlight.  Furthermore, the records of interview of both accused and the oral testimony of Lolo Belami confirm that there was sufficient light that evening for them to see and recognise other people, at least in Lolo’s yard.

111.	It is clear and I find that the complainant had an opportunity to observe each of her attackers, in sufficient light, and over a period of time.  She saw Lolo in his yard when he invited her in, and she saw each of them in the yard when he returned with Hobai and Douba, and then again in the banana patch. 

112.	In addition I accept the complainant’s evidence that she recognised Lolo Belami at the material time by his voice. 

113.	As above, it has been suggested that the emotional state of the witness at the time of the alleged incident may be relevant to the reliability of an identification.  I agree that it may be relevant but it will all depend on the circumstances of the case, and of the individual concerned.   The complainant was not questioned about this issue and there were no submissions but to my mind it is even more likely that the complainant would have a very strong recollection of those who attacked her having regard to the nature of the alleged incident, the period of time over which it was conducted, and her longstanding knowledge of each of the accused as residents of Erima, including in particular her relationship with Lolo and his family.

114.	The complainant formally identified each of the accused in the dock, albeit that it was a formality given this was a case of recognition.  

115.	Furthermore, the complainant’s recollection of events is consistent with the medical report, the evidence of the state witnesses as to the events prior to the incident, the evidence of Api and the complainant’s mother post event, and further supports my finding that she was not so intoxicated that her identification evidence is not reliable. In the circumstances I find that the identification evidence by the complainant is reliable.

116.	Moreover, by his own admission, in both his record of interview and oral testimony, Lolo Belami was with the complainant in his yard that evening.  Hobai Haro admitted in his record of interview that he too saw the complainant that evening. 

117.	I reject entirely the submission that the complainant had some motive to falsely accuse the three men named in this case.   It was submitted that Erima settlement is a high risk location, for petty criminals and thieves.  The complainant and her friends were risking their lives by being out that night and were drunk. Another group of men attacked them and chased the group away but they attacked the complainant with a bottle and then gang raped her.  She was heavily intoxicated and because she was drunk and not able to identify the other men she blamed the very people that helped her, the ones she recognised.   

118.	Why should the complainant feel any blame for what happened that night?  It was not her fault that she was violently and sexually assaulted, regardless of how much she had to drink.  She had as much right as anyone to be out, on her own, in her own neighbourhood.  

119.	Feelings of shame and responsibility associated with sexual violence, however, are complex issues.  The complainant told her mother that she was “ashamed” to tell her something.  Even accepting that the complainant felt some responsibility for what happened that night such that she felt that she had to identify those responsible, she was able to identify the Erave man she saw that evening and that the defence put to her was, with others, responsible for the attack.  She knew where he was from and she knew his name was Peter.  Her friends also saw this person, even if none of them name him in their statements.  Moreover, no plausible reason has been provided as to why the complainant would falsely accuse three men she had grown up with, with whom she lived on the same street, and whose families were well known to one another, rather than a man who at least three of her friends could attest was drunk and making trouble earlier in the evening.  The defence submission is a hollow one.  

120.	In summary I find that between 10 and 11 pm on the night of 20 January 2012 the complainant left her house to go and find her brother, Kelap, when she was struck on the head by a man named Peter from South Erave.  Soon after Lolo Belami called her into his yard.  At the time the complainant was bleeding from the head.  He left her briefly before returning with Hobai Haro and Douba Kapina.  Together they held the complainant.  Lolo Belami held her leg, Hobai her hand and Douba her waist.  She screamed but they told her to shut her mouth.  Together they forcibly took her to the banana patch, removed her clothes, restrained her against her will and sexually penetrated the complainant on four occasions, in the manner described by her, without her consent and whilst she repeatedly pleaded for them to stop.  The extent of the physical violence involved in the attack is reflected in the medical report which shows serious injuries to the complainant’s vagina and lacerations to her body.   

PARTIES TO OFFENCES   

121.	The State relies on s. 7 (principal offenders) of the Criminal Code against each of the accused in respect of all four counts of the indictment.  It provides:

(1) When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:–

(a) every person who actually does the act or makes the omission that constitutes the offence;

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(c) every person who aids another person in committing the offence;

(d) any person who counsels or procures any other person to commit the offence.

(2) In Subsection (1)(d), the person may be charged with–

(a) committing the offence; or

(b) counselling or procuring its commission.

(3) A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

(4) Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, it would have constituted an offence on his part, is–

(a) guilty of an offence of the same kind; and

(b) liable to the same punishment, as if he had done the act or made the omission, and may be charged with himself doing the act or making the omission.

122.	Pursuant to s. 7 of the Criminal Code criminal responsibility is extended to a person who is a party to an offence. Section 7(1)(a) to (d) deems to be guilty of an offence those persons who actually do the punishable act or omission, who do or omit to do any act for the purpose of enabling or aiding another person to commit the offence, who aid another in committing the offence, or who counsel or procure another to do it. In some cases more than one subsection of s. 7 may be relevant. 

123.	In this case the State alleges that Lolo Belami and Hobai Haro are guilty of the rapes physically perpetrated by them.  It also alleges that each of them aided one another to commit those rapes, and aided Douba Kapina to commit the rape committed by him for the purposes of s 7(1)(c).  Furthermore, the State submits that Lolo Belami is also guilty of procuring the rapes committed by both Hobai Haro and Douba Kapina.  

124.	For the purposes of s 7(1)(c) the State must first establish by evidence that is admissible against the accused that a crime has been committed by another person:  R v Tovarula [1973] PNGLR 140. The words do not require that the principal offender must be convicted before another may be found liable as a party to an offence: see R v Lopuszynski [1971] QWN 33. It is enough that the commission of an offence by someone is established in the case against the alleged accessory: Borg v R [1972] WAR 194.

125.	The State must also establish for the purposes of s. 7(1)(c) that the accused knew the essential facts constituting or making up the offence that is being committed or about to be committed, including where relevant the state of mind of the principal offender, and acted with intention to aid him: R v Turan (1952) N211; Tovarula (supra). 

126.	It is not possible to be an aider through an act which unwittingly provides some assistance to the offender: Coney (1882) 8 QBD 534. To aid means that the person charged as a principle in the second degree “is in some way linked in purpose with the person actually committing the crime and by his words or conduct does something to bring about, or render more likely, the commission of the offence”: R v Tovarula applying R v Russell [1933] VR 59. 

127.	In addition to the intention to aid, there must be aiding in fact: R v Wendo [1963] PNGLR 217.

128.	Mere presence at the scene of a crime is not of itself sufficient to constitute aiding for the purposes of s. 7(1)(c) of the Criminal Code: Tovarula. In some cases, however, an accused may assist or encourage the commission of a crime by being present. For example, by providing moral support to the primary offender or demonstrating a willingness to assist if required. In other words, presence and wilful encouragement of the commission of the offence will suffice: Tovarula. See also Agiru Aieni v Paul T Tohian [1978] PNGLR 37; Wani v The State [1979] PNGLR 593; Vaii Rocky Maury v The State (2001) SC668. 

129.	It is not necessary, however, that the presence be a strict actual and immediate presence provided that the presence was and remained up to the commission of the offence pursuant to a common design, for example by keeping a lookout, or to aid the escape of the principal offender: Tovarula (supra); Charles Andrew Epei (2019) N7845. 

130.	 In summary, to establish liability pursuant to s. 7(1)(c) against each of the accused in this case the State must establish beyond reasonable doubt that: (a) the principal offence was committed; (b) the accused knew that the principal offender intended to sexually penetrate, or was sexually penetrating, the complainant without her consent; and (c) the accused intentionally assisted or encouraged the principal to commit the offence.

131.	 The State further contends that Lolo Belami procured the commission of the rapes by Hobai Haro and Douba Kapina pursuant to s 7(1)(d) of the Criminal Code.

132.	The term “counsel” is not defined in either the Criminal Code  or the Interpretation Act. The plain and ordinary meaning might be found in the context of the section, that is “urged” or “advised” or “solicited”:  as stated by Gibbs J in Stuart v The Queen (1976) 134 CLR 426; see also R v Oberbillig [1989] 1 Qd R 342 considering the equivalent provision in the Queensland Criminal Code.  On a charge of being a counsellor, it is not enough to show that the defendant knew that some illegal venture was intended. However, it is not necessary that knowledge of intention to commit a particular crime, which was in fact committed, should be shown. The prosecution must show that the defendant knew that an offence of the kind that was committed was intended and with that knowledge did something to help the offender commit it: Imiyo Wamela v The State [1982] PNGLR 269; Mark Nainas v The State (1998) SC598; Karani and Aimondi v The State (1997) SC540. 

133.	Similarly, to “procure” is “to obtain”, “to bring about”, according to the Oxford Learner’s Dictionary. In considering the equivalent of this provision in R v Adams [1998] QCA 64 the Queensland Court of Appeal said that procuring involves more than mere encouragement, and means “successful persuasion” to do something.   There must be a causal link between the procuring and the commission of the offence:  see Attorney-General’s Reference (No 1 of 1975) [1975] 2 All ER 684.

134.	Alternatively, as above, the State seeks to invoke s 8 of the Criminal Code  on the basis that there was a common intention amongst the three men to rape the complainant when they entered Lolo Belami’s yard and that the rape by each of them was a probable consequence of prosecuting that purpose. S 8 provides:

OFFENCES COMMITTED IN PROSECUTION OF COMMON PURPOSE
Where–
(a) two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another; and
(b) in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of the purpose,
each of them shall be deemed to have committed the offence.

135.	If a person wishes to withdraw his involvement in the commission of an offence he must communicate that fact to his or her co-accused and take action to undo the effect of the previous encouragement or participation:  Imiyo Wamela v The State [1982] PNGLR 269. 

SPECIFIC FINDINGS ON COUNTS 1 TO 4 OF THE INDICTMENT 

136.	On Count 1, I am satisfied beyond reasonable doubt that the accused Lolo Belami sexually penetrated the complainant by inserting his penis into her vagina.  There is overwhelming evidence and I am satisfied beyond reasonable doubt that the complainant did not consent.  There was no free and voluntary agreement and the accused would have been well aware of that fact.   He had, with Hobai Haro and Douba Kapina, forcibly taken the complainant from his yard into the banana garden, stripped her of her clothes and restrained her with the assistance of the two other men, whilst he sexually penetrated her, and she told them to stop.  I  am  satisfied beyond reasonable doubt as a matter of aggravation for the purposes of s 349A of the Criminal Code that at the time he was in the company of others, namely Hobai Haro and Douba Kapina.    

137.	I am also satisfied beyond reasonable doubt that Hobai Haro aided Lolo Belami to sexually penetrate the complainant without her consent for the purposes of s 7(1)(c) of the Criminal Code.  He knew that Lolo Belami intended to and then was sexually penetrating the complainant, without her consent, and intentionally assisted him to commit the offence by physically holding the complainant in the yard, by forcibly taking her with Lolo Belami and Douba Kapina to the banana garden, removing her clothes, restraining the complainant by holding her hand, whilst Douba Kapina was also holding her neck and by encouraging Lolo Belami by his continued presence to sexually penetrate the complainant without her consent, whilst she pleaded for them to stop.  For obvious reasons he was aware that the offence was being committed in the company of others. 

138.	On Count 2, I am satisfied beyond reasonable doubt that the accused Hobai Haro sexually penetrated the complainant by inserting his fist into her vagina (see 6(b) of the Criminal Code), without her consent.  There was no free and voluntary agreement and the accused would have been well aware of that fact in the circumstances described.  He had, with Lolo Belami and Douba Kapina, forcibly taken the complainant from his yard into the banana garden, stripped her of her clothes and restrained her with the assistance of the two other men, whilst he sexually penetrated her.  Again, the complainant told him to stop.  I am also satisfied beyond reasonable doubt that at the time he was in the company of others, namely Lolo Belami and Douba Kapina.  

139.	I am also satisfied beyond reasonable doubt that Lolo Belami aided Hobai Haro to sexually penetrate the complainant without her consent for the purposes of s 7(1)(c) of the Criminal Code.  He knew that Hobai Haro intended to and then was sexually penetrating the complainant without her consent, and intentionally assisted him to commit the offence by physically holding the complainant in the yard, by forcibly taking her with Hobai Haro and Douba Kapina to the banana garden, and by encouraging Hobai Haro to sexually penetrate the complainant without her consent by firstly doing so himself, and then by his continued presence, including by keeping a look out.  Again he knew the offence was committed in the company of others.

140.	Similarly, on Count 3, I am satisfied beyond reasonable doubt that the accused Hobai Haro sexually penetrated the complainant by inserting his penis into her vagina without her consent.  There was no free and voluntary agreement and the accused would have been well aware of that fact in the circumstances described.  Consent is about free and voluntary agreement not physical submission.  The mere fact that the complainant stopped struggling because she was in pain is beside the point:  see 347A(2)(a) of the Criminal Code.  I am also satisfied beyond reasonable doubt that at the time he was in the company of others, namely Lolo Belami and Douba Kapina.  

141.	I am also satisfied beyond reasonable doubt that Lolo Belami aided Hobai Haro to sexually penetrate the complainant without her consent for the purposes of s 7(1)(c) of the Criminal Code for the reasons outlined above at [139].  

142.	On Count 4, I am satisfied beyond reasonable doubt that Douba Kapina sexually penetrated the complainant by inserting his penis into her vagina.  I am further satisfied beyond reasonable doubt that the complainant did not consent and that Douba Kapina was aware that she did not consent in the circumstances described.  I am also satisfied beyond reasonable doubt that at the time he was in the company of others, namely Lolo Belami and Hobai Haro.   

143.	I am further satisfied beyond reasonable doubt that Lolo Belami and Hobai Haro aided Douba Kapina to sexually penetrate the complainant without her consent for the purposes of s 7(1)(c) of the Criminal Code for the reasons outlined above.  Each of them knew that Douba Kapina intended to and then was sexually penetrating the complainant without her consent, and intentionally assisted him to commit the offence by physically holding the complainant in the yard, by forcibly taking her to the banana garden, by restraining the complainant and by encouraging Douba Kapina to sexually penetrate the complainant without her consent by firstly doing so themselves and then by their continued presence.  Their conduct would have amounted to aiding even if they had left before Douba raped her but on the complainant’s evidence they did not leave until after he did so. 

144.	I am further satisfied beyond reasonable doubt that Lolo Belami procured Hobai Haro and Douba Kapina to commit the rapes in Counts 2, 3 and 4 for the purpose of s7(1)(d) of the Criminal Code.  It was he who having brought the complainant into his yard, then went to fetch the other two men and brought them back to rape the complainant a short time later. There was a causal link between the procuring and the commission of the offence.  The only rational inference given the short lapse of time and the events that followed is that Lolo Belami procured both Hobai Haro and Douba Kapina to join him in raping the complainant. 
  
145.	For the above reasons, it is not necessary to have recourse to s 8 of the Criminal Code.  Nevertheless, I am satisfied beyond reasonable doubt that Lolo Belami and Hobai Haro may be held responsible for the rapes committed by each of them and by Douba Kapina pursuant to s 8 of the Criminal Code.  

146.	To justify a conviction pursuant to s 8 there must be proof beyond reasonable doubt that there was a common intention to sexually penetrate another person without consent, or that it was a probable consequence of their common purpose.  In this case, I am satisfied beyond reasonable doubt that it was their common purpose to sexually penetrate the complainant without her consent.  It was also a probable consequence of that common purpose that each of the accused would rape the complainant, more than once, and by different means, for example the use of a fist.  

147.	Verdict:  Lolo Belami is guilty of the charges of rape contained in Counts 1 to 4 of the indictment.  

148.	Verdict: Hobai Haro is guilty of the charges of rape contained in Counts 1 to 4 of the indictment.

_______________________________________________________________
Public Prosecutor: Lawyer for the State	
Public Solicitor: Lawyer for the Accused