N8702

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 826 OF 2020

BETWEEN:
THE STATE

AND:
JOHN KABOANGA

Madang: Narokobi J
2020: 8th December
2021: 20th January

CRIMINAL LAW – rape – Criminal Code, Division V.7 – Section 347(1), rape – s 7 – aiding and abetting - trial on conviction.

The accused pleaded not guilty to one count of rape contrary to s 347(1) of the Criminal Code Act, Ch 262. Trial then ensued. The incident happened close to the beachfront in the village at Potzdam Care Centre in Bogia District of Madang province, some distance from the house where the complainant was visiting. The accused was the complainant’s boyfriend. They then had consensual sexual intercourse. After they had finished, two other men then came and forced themselves upon her. She did not consent to sexual intercourse with these two men. The State alleges that the accused aided the two men in the commission of the offence of rape (the two men are still at large) pursuant to s7(1)(a)(b)(c) of the Criminal Code, thereby committing rape contrary to s347(1) of the Criminal Code.  
Held:

(1)	The State’s case was premised on the basis of circumstantial evidence since there was no direct evidence of the accused aiding and abetting the commission of the offence.
(2)	In case sought to be proven on circumstantial evidence, the guilt of the accused must be the only rational inference from the evidence considered as a whole (Paulus Pawa v The State [1981] PNGLR 498, followed).

(3)	An inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent the court from finding the accused guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence (The State v Tom Morris [1981] PNGLR 413).

(4)	In order for derivative responsibility to be established ie aiding and abetting, there must be both an intention to encourage the commission of an offence and an encouragement in fact to commit an offence (Aieni v Tahain [1978] PNGLR 37, adopted).

(5)	The unsworn evidence of the accused that he did not do anything as the offenders were older than him and did not look well at him, when considered in the light of all the admissible evidence, only amounted to mere conjecture and did not raise a reasonable hypothesis of his innocence.

(6)	Common Melanesian traditions dictates that a man would not interfere with his cousin brother or brother’s wife, unless permission is granted by the husband of the woman.

(7)	The series of events from the evidence taken as a whole, commencing from the initiation of the tryst, to the manner in which the accused led the complainant on, his forceful removal of her clothes, his mute reaction at the appearance of the two offenders, his conduct throughout the ordeal, control of the offenders, telling them to stop to which they obeyed and the inebriated state of all three men, point to only one reasonable inference, that the accused aided and abetted Ronald Patepa and Chris Warren to commit the offence of rape, by taking advantage of his girlfriend, who he knew, would have yielded to his advances.

(8)	The guilt of the accused was the only reasonable inference from the evidence considered as a whole.

(9)	The accused was therefore guilty of rape under s 347(1) of the Criminal Code as he had aided and abetted the commission of the offence within the meaning of s 7(1)(c) of the Criminal Code.

Cases Cited:
The following cases are cited in the judgment:

Aieni v Tahain [1978] PNGLR 37
Paulus Pawa v The State [1981] PNGLR 498
The State v Tom Morris [1981] PNGLR 413

Legislation cited:

Criminal Code Act, Ch 262
Counsel:
Ms. D. Ambuk, for the State
Ms. D. Ephraim, for the Accused
JUDGMENT ON VERDICT
20th January, 2021
1.	NAROKOBI J: A. INTRODUCTION: This is a trial on whether John Kaboanga is guilty of raping Joanne Bubura.

2.	John Kaboanga (“the accused”) and Joshua Kabaonga were charged with one count of rape contrary to s 347(1) of the Criminal Code Act Ch 262 (hereafter Criminal Code) in that on 17 September 2019, at Potzdam Care Centre, Bogia District, in Madang Province, they raped one Joanne Bubura.

3.	On 22 October 2020 the Accused and Joshua Kaboanga were arraigned, a trial then commenced. At the end of the trial the co-accused made a no-case submission, which I upheld in part acquitting Joshua Kaboanga and found a prima facie case against John Kaboanga and ordered the trial to continue. 

4.	The State alleges that the accused is guilty by invoking s 7(1)(a)(b)(c) of the Criminal Code in that he aided two men Roland Patipa and Chris Warren to rape Joanne Bubura.

B	OUTLINE OF JUDGEMENT 
5.	I address the following areas to help me reach my decision on the issue before me, that is whether the accused is guilty as charged in the indictment:

•	Introduction;
•	Outline of Judgment;
•	Background;
•	The Law;
•	Factual and Legal Issues;
•	Summary of Evidence Presented; 
•	Facts Not in Dispute;
•	Facts in Contention;
•	State’s Submissions on the Evidence and the Law;
•	Accused Submissions on the Evidence and the Law;
•	Weighing the Considerations, Findings of Facts and Addressing the Issues;
•	Verdict; and
•	Orders. 

6.	Relevant case authorities will be discussed throughout the course of the decision.  

C	BACKGROUND 

7.	The accused is a 19-year-old male from Johari Village, Manam Island in the Bogia District of Madang Province. He resides at the Potzdam Care Centre on mainland Bogia District in Madang province.

8.	The State alleges that sometime between 9pm and 12 midnight on 17 September 2019, at the Potzdam Care Centre in the Bogia District of Madang Province, the accused approached his girlfriend and convinced her to follow him to the beach. On the way to the beach he signalled his brother and co-accused Joshua Kaboanga and two (2) other men to follow them to the beach.

9.	At the beach, John Kaboanga had sexual intercourse with his girlfriend, then pinned her to the ground, restrained her from running away and called out to three other persons to come forward and they took turns to have sexual intercourse with the complainant without her consent.

10.	As I said earlier, the State relies on s 7(1)(a)(b) and (c) of the Criminal Code against the accused to hold him responsible for the rape of the complainant. 

D	THE LAW

11.	Under the Criminal Code, rape is defined under s 347(1) of the Criminal Code as follows:

“347.	Definition of rape.
(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.”

12.	Section 347A of the Criminal Code continues on to provide guidance on what may or may not amount to consent:

347A.	Meaning of consent.

(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 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. 

13.	The State also invokes s 7(1)(a)(b) and (c) of the Criminal Code, alleging that the accused aided and abetted the commission of the offence of rape. Section 7(1) states as follows:

7.	Principal offenders.

(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; and
(b)	every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; and
(c)	every person who aids another person in committing the offence; and
(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.

14.	I consider the issues in this case in the context of the specific provisions referred to above and as interpreted from time to time by various case authorities.

       E	FACTUAL AND LEGAL ISSUES 
15.	I consider the issues to be as follows in this matter:

•	Is the guilt of the accused the only reasonable inference from the evidence considered as a whole?; and
•	What does aiding and abetting mean within the meaning of s 7(1)(a), (b) and (c) of the Criminal Code?;

16.	The way I resolve these issues will enable me to establish whether the accused is guilty or not of the charge.

F	SUMMARY OF THE EVIDENCE

The State’s Evidence
  
17.	The State tendered the following documents by consent:

•	Record of Interview of John Kaboanga – English version – Exhibit A;
•	Record of Interview of John Kaboanga – Pidgin Version – Exhibit B;
•	Medical Report of Joanne Bubura from Bogia District Health Centre dated 4 October 2019 – Exhibit C;
•	Statement of Albert Saui, the arresting officer dated 4 March 2020 – Exhibit D;
•	Statement of Michael Narop, the corroborating police officer dated 4 March 2020 – Exhibit E;
•	Statement of Mathew Bubura, father of the complainant dated 7 October 2019 – Exhibit F; and
•	Statement of Sila Michael, the Ward Councillor, dated 7 October 2010 – Exhibit G.

18.	The Statement of Albert Saui and Michael Narop were in relation to the record of interview with the accused.

19.	Mathew Bubura, the father of the complainant also made a statement which essentially speaks about what has since happened to his daughter after the incident.

20.	Sila Michael is the village councillor, and his statement provided his efforts in bringing the accused to the attention of the police after he became aware of a rumour going around in the village that the complainant had been raped by the accused and three other men.
 
21.	State then called the complainant Joanne Bubura to give oral testimony. This is a summary of what she said in examination in chief.

22.	The complainant informed the court that she is now 18 and living in Lae and travelled to Madang to attend the case. She is living and attending school in Lae because of an incident that happened to her in her village. 

23.	It was about 8pm at night and she was in her grandmother Sepa’s house. The complainant’s grandmother is Joshua Kaboanga’s mother. The accused and Joshua are related. They have the same father but different mothers. When the complainant was at the house, the accused’s sister was also there. The complainant’s mother had asked her to bring food to her grandmother. At about 8pm the accused came to the house, under the influence of alcohol. He persuaded her to follow him, pulling her in the process from the kitchen. They went at a rather quick pace towards the direction of the beach at the bay. As the accused was pulling her, she protested, but he told her not to shout. The distance was estimated to be about some 300m to 500m from the house. At cross-examination it was estimated to be about 200m. 

24.	The accused then forced the complainant to remove her trousers and shirt and forced her to have sex with him. The complainant consented to having sex with the accused. They were in a boyfriend/girlfriend relationship.

25.	After the accused and complainant had finished having sex, and were about to put on their clothes, a man she recognised as Roland Patepa came from the back of the accused and placed his hands on her chest and pushed her down hard hitting her head heavily on the ground. He then proceeded to have sex with the complainant by inserting his penis into her vagina. The complainant did not consent to having sex with Roland Patepa. Roland Patepa was drunk. Initially the complainant said the accused stood there looking. Upon further questioning by the State, she said the accused asked Roland Patepa to stop and he stopped. But that was after he had sex with the complainant. 

26.	There was a second man known as Chris Warren, who then came from the front after Roland Patepa was finished and also had sex with the complainant by inserting his penis into her vagina. She did not consent to having sex with Chris Warren. Chris Warren was drunk. Chris Warren was an adult male, who had grandchildren. Both Roland Patepa and the accused stood there watching and talking to each other about one (1) metre from where she was with Chris Warren.

27.	Joshua Kaboanga, a third man then came and laid on top of the complainant. He was going to have sex with the complainant, but she stood up before he could do so.

28.	She says she knew the accused and Joshua Kaboanga as they were brothers. They have the same father but different mothers. Sepa, her grandmother, was Joshua Kaboanga’s mother.

29.	When the ordeal ended and the complainant walked to the house, she was escorted by the accused and Joshua Kaboanga. Roland Patepa walked behind them.

30.	During examination in chief, the complainant was asked what the accused did while Roland Patepa and Chris Warren were having sex with the complainant, her evidence was that he did nothing. Later she said that he asked them to stop. But it was after they both inserted their penis into her vagina. 

31.	In cross examination when the complainant was asked if she previously had sex with the accused, she said that she did.  

32.	The complainant was also questioned in cross-examination if the accused asked Roland Patepa and Chris Warren to stop, she said “Yes.”  Both men stopped after the accused asked them to stop. But it was only after they had sex with the complainant.

33.	During cross-examination the complainant said, her boyfriend (the accused) did “bad to me.” In re-examination when she was asked to explain what she meant. She said she thought that the accused was her boyfriend and followed him to the Bay area and those three older men did what they did to me.

34.	The complainant was unsure about whether the accused had arranged for the three men to come and have sex with her.

The Accused’s Evidence 

35.	The accused gave unsworn evidence from the dock. He said after he had sex with the complainant Roland Patepa and Chris Warren came uninvited, he did ask them to stop. He did not do anything to stop them as they were older and bigger than him. He remained to ensure that they did not harm the complainant. After they finished, he took the complainant home and left her. 

      G	FACTS NOT IN DISPUTE   

36.	The facts which are not in dispute are as follows.

37.	The complainant was at her grandmother’s house when the accused, who was drunk, came and took her to the bay area near the beach.

38.	The accused and the complainant are in a boyfriend/girlfriend relationship.

39.	The relationship of the accused and the complainant was as cousins. Their fathers are brothers.

40.	The complainant consented to have sex with the accused.

41.	After John Kaboanga had sex with the complainant, two other men – Roland Patepa and Chris Warren had sex with her, which she did not consent to.

42.	These two men were also drunk.

43.	During the time the two men were having sex with the complainant, the accused was present at the scene.

44.	Roland Patepa and Chris Warren are still at large.

45.	After the ordeal, the accused brough the complainant to her house.  

H	FACTS IN CONTENTION 

46.	The facts which are in dispute are as follows.

47.	The accused arranging with two other men to have sex with the complainant.

48.	The manner in which the accused brought the complainant to the area where the sexual intercourse took place.

49.	The distance from the house where the complainant came from, to the area where the incident occurred.

50.	The actions or inactions of the accused throughout the ordeal. 

51.	The accused arranged for the two men to have sex with the complainant after he had sex with her.
 
I	STATE’S SUBMISSIONS ON THE LAW AND THE EVIDENCE  

52.	The following is the State’s submissions.

53.	The accused was a party to the incident.  He had conspired with Ronald Patepa and Chris Warren to let them have sexual intercourse with the complainant, who was his girlfriend, and that he actively participated in the commission of the offence when he did not defend his girlfriend.

54.	Common Melanesian traditions dictates that a man would not interfere with his cousin brother or brother’s wife, unless permission is granted by the husband of the woman. In this, the State submits that John Kaboanga allowed for the incident to happen, he had on several occasions prior taken his girlfriend out where they had consensual sexual intercourse, and he knows the girlfriend would be obliged to him.

55.	As the girlfriend would be obliged to him, he conspired with his cousin brother Ronald Patepa and Chris Warren who was observed to be drunk by the complainant. The State submits that they all drank together and concocted the plan and executed it and the accused allowed it to happen.

56.	State further submits that the complainant did recant some of her statement during cross-examination, saying that her boyfriend, the accused did help her, but during re-examination she said it was only after Ronald Patepa and Chris Warren had sexual intercourse with her. That is after the fact.

57.	State submitted that the recanting of her story during cross-examination is due to the fact that some compensation was paid to the complainant’s father when asked if she was present for the compensation ceremony, she said no she was in Lae, Morobe Province.

58.	It is highly illogical for her to be transferred to Lae if the incident did not have some impact on her.

59.	Finally, the State submits that the complainant’s version of events is logical and reasonable, as she went out with her boyfriend like she had done on previous occasions before the incident, only this time, there were extra parties to the arrangement that she was not aware of. And that arrangement was done by her boyfriend.  

J	ACCUSED’S SUBMISISONS ON THE LAW AND THE EVIDENCE  

60.	On the other hand, the Defence made the following submissions.

61.	The accused did not aid or abet the two other persons to have sexual intercourse with the complainant.

62.	There is no evidence of the accused colluding with the two perpetrators to have sex with the complainant. The complainant gave evidence, that he might have but is unsure.

63.	There is no other evidence supporting the State’s allegation that the accused pre-planned the encounter with Roland Patepa and Chris Warren.

64.	It is in evidence as it seems that the two perpetrators came out of nowhere.

65.	It is also in evidence that the perpetrators were older than the accused and the complainant and were drunk.

66.	The Defence relies on the case of Rex Paliau v The State (2016) SC1537 that mere presence is not enough to constitute aiding and abetting.

67.	State’s allegation is that the accused stood by whilst the complainant was assaulted. However, the complainant gave evidence that the accused did try to assist when the complainant called out to him. He was not merely standing by, he tried to assist.

68.	The Defence further submits that although the complainant is not obviously a dishonest witness, she was not a convincing one. She was not sure how the two men came about. She gave inconsistent statement on the involvement of the accused. She gave evidence that he did nothing and then contradicted her own evidence by giving evidence he tried to stop them. The Defence submits that this goes against the principle on circumstantial evidence. They were having sex at the Bay. There is no evidence that the area is secluded. The two perpetrators could have walked by, saw what they were doing and decided to assault the complainant.

69.	In response to the State’s allegation that the accused did not assist, the Defence counters by submitting that he was intimidated by the perpetrators, and therefore it took time for him to react and assist. Given that, defence submits that this is another possible reason the accused did not react as expected.

70.	The accused gave unsworn statement from the dock. The principle of unsworn statement is highlighted in the case of Ulel v Regina [1973] PNGLR 254:

“when an accused makes an unsworn statement, it should be taken as prima facie a possible version of the facts, and should be considered with the sworn evidence, giving it such weight as it appears to be entitled to in comparison with the facts clearly established by the evidence”

71.	The State’s evidence also supports his claim in that he did at some stage when the complainant was assaulted try to assist the complainant. He stayed throughout the assault and took her home.

72.	The Defence ultimately submits that there are other hypothesises why the accused acted in that manner, and therefore the court should acquit him.     

K	WEIGHING THE CONSIDERATIONS, FINDINGS OF FACTS AND ADDRESSING THE ISSUES

73.	The first finding I make based on the evidence of the State and is not disputed by the Defence is that Joanne Bubura was raped by Roland Patepa and Chris Warren in that each men inserted their penis into her vagina without her consent, thereby contravening s 347(1) of the Criminal Code. An offence was committed.

74.	The case against the accused is however, built upon circumstantial evidence, as the State has not presented any direct evidence showing that the accused arranged for the complainant to be raped by Roland Patepa and Chris Warren.

75.	Andrew J in Paulus Pawa v The State [1981] PNGLR 498 (in the Supreme Court) stated the relevant principles on circumstantial evidence by endorsing Miles J’s statement in The State v Tom Morris [1981] PNGLR 413 in these terms:

I take the law as to circumstantial evidence in Papua New Guinea to coincide with what was said in the High Court of Australia in Barca v The Queen (1975) 50 ALJR 108 at p 117):

When the case against an accused person rests substantially upon circumstantial evidence  the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than guilt of the accused'; Peacock v The King [1911] HCA 66; (1911), 13 CLR 619 at p 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only rational inference that the circumstances would enable them to draw': Plomp v The Queen [1963] HCA 44; (1963), 110 CLR 234, at p 252; see also Thomas v The Queen [1960] HCA 2; (1960), 102 CLR 584, at pp 605-606. However, 'an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence': Peacock v The Queen at p 661. These principles are well settled in Australia. It was recently held by the House of Lords in McGreevy v Director of Public Prosecutions, [1973] 1 WLR 276, that there is no duty on a trial judge to direct the jury in express terms that before they could find the accused guilty they should be satisfied that the facts proved were inconsistent with any other reasonable conclusion than that the accused had committed the crime. That decision goes only to the form of direction necessary to be given to the jury, and although its effect may be that the practice in this respect is less rigid in England than in Australia, it does not reflect upon the correctness of the principles stated, which are really principles of logic and common sense.

76.	So, the underlying question is, is the guilt of the accused the only reasonable inference and not a mere conjecture from the evidence taken as a whole. The inference to be reasonable, must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent the court from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence. 

77.	Since the charge is premised on s 7(1)(a)(b)(c) of the Criminal Code, the question becomes, does the evidence taken as a whole, show that the accused aided the commission of the offence of rape? Put another way, does the evidence considered as a whole, show that the only reasonable inference is that the accused is guilty of rape as he had arranged for Roland Patepa and Chris Warren to rape Joanne Buburra. 

78.	I adopt the statement of Wilson J in Aieni v Tahain [1978] PNGLR 37 where his honour said that in order for derivative responsibility to be established:

“…there must be both an intention to encourage and an encouragement in fact.”

79.	As the State’s case is premised on circumstantial evidence, the State has to negative the hypothesis presented from the evidence that after the accused had consensual sexual intercourse with the complainant, the two men – Roland Patepa and Chris Warren chanced upon them, independent of any prior arrangements, and forced themselves on the complainant. The reason that the accused did not do anything more than telling them to stop was because he was afraid as they were older and bigger than him, and as a result he remained to ensure that they did not harm the complainant. After they finished, he took her home. He remained to ensure they did not harm her.

80.	Like a building which requires all its constituent parts to be constructed before it assumes its appearance and conveys the purpose of its existence, a story is meaningless if only one part of it is told. When each critical fact stands isolated, it is unclear what the point of the story is. When the constituent parts are all pieced together, the real story unfolds and the events of what transpired is revealed. What does the evidence taken as a whole show?

81.	In my view, although the complainant is not an impressive witness, and in some areas inconsistent, on the whole, she was a credible witness and her story was logical and believable, and it was not rebutted by the accused to my satisfaction in material areas. At times she was a little reluctant to answer questions, and I infer that this is because she is telling an uncomfortable and intimate story, reliving painful memories, and it involved close relations. I accept her story and give little to no weight to the accused’s explanation, as he has not rebutted key aspects of the complainant’s evidence to cause reasonable doubt in her evidence. In my view, he has fitted his story to rhyme with the accused’s version of events and only highlighted areas to lessen his involvement.

82.	To my mind the following series of events are significant to determine whether the guilt of the accused is the only reasonable inference when the admissible evidence is taken as a whole. 

83.	The first piece of evidence in the chain of events is the fact that the accused had initiated the tryst. This is not disputed. He chose the date, the time and the venue of the tryst. The complainant was at her grandmother Sepa’s house to drop off some food. At the house was the accused’s sister. Sepa was also related to the accused. It provided an innocuous atmosphere for the accused to present himself and propose his plans to the complainant rather forcefully. This ordeal would not have occurred if the accused did not initiate it.

84.	The time chosen for the tryst and the inebriated state of the men is important. It was at night, under the cover of darkness, sometime from 8pm onwards. This is not disputed. Darkness provided the cover for the plan to be hatched. The accused was drunk. Roland Patepa was drunk. Chris Warren was drunk. This is the evidence of the complainant. She would know. It is not disputed. If darkness was the cover for their plan, then alcohol was the fuel for their passion.

85.	The manner in which the accused led the complainant to the area of the incident is critical. The accused held her by the hands and pulled her along for some 200m. She protested but was told not to scream. This was the evidence of the complainant. This evidence was not disturbed in cross-examination and not rebutted by the accused when he gave his unsworn statement. I accept the State’s evidence. The plan had been devised and had to be implemented, and the complainant unknown to her, was forced to cooperate by being pulled along.

86.	The next factor was the area chosen for the tryst. This evidence is not in contention.  Usually in a consensual relationship between lovers, they mutually decide where they will meet. The venue was chosen by the accused. The complainant was led to the place and had no input on where they were to meet. It was at the Bay area. At cross-examination it was established that it was some 200m distance from the house, away from any onlookers and houses. 

87.	Another critical evidence was that the accused forcefully and hurriedly removed the complainant’s trousers and shirt. After he removed her clothes, he had sexual intercourse with her. She consented to it. But she was forced to be in that situation. This evidence came from the complainant, it was not disturbed at cross-examination and it was not rebutted by the accused’s unsworn statement. This may be part of foreplay but seen in the context of being pulled to the area, and then having her clothes forcefully removed indicates an act in the part of a planned drama. This evidence is not contested by the accused and I see no reason why I should not accept it. The accused was the first to have his turn and had to do it quickly before the next person came.

88.	When Ronald Patepa appeared is important. The evidence from the complainant was that he arrived when the accused and the complainant had finished having sex and were about to put on their clothes. This evidence is not challenged and I accept it. This suggests that Ronald Patepa was there waiting, waiting to have his turn.  It seems that it was choreographed. Again, this evidence on its own, could have been coincidental, but as part of the whole evidence suggests that it was planned.

89.	How did the accused react when Ronald Patepa appeared? Your partner is about to be raped. What would be the reaction of a reasonable Papua New Guinean, whose partner is going to be raped? Surprise, disapproval, objection and protest – either by conduct, expression or word of mouth. The evidence showed no such reaction. The evidence given by the complainant was that Ronald Patepa was the cousin of the accused, which I accept. Ronald Patepa and the accused were not strangers. For the accused to say that Ronald Patepa was older, bigger and under the influence of alcohol as a reason for him not doing anything more than telling him to stop, albeit belatedly, after the fact, is unbelievable – it is a mere conjecture and not a reasonable explanation. Any reasonable observer would surmise that the accused’s reaction was consistent with a prior arrangement. Ronald Patepa was there because it was arranged by the accused for him to be there. 

90.	Again, what was the reaction of the accused at the appearance of Chris Warren? According to the evidence, there was no obvious reaction. There was no surprise. There was no disapproval. There was no protest. The accused’s partner is now going to be raped a second time. The evidence was that he was an adult male, a grandfather. Surely any reasonable person in the accused’s position would be disturbed to such an extent so as to express some form of objection. The evidence from the complainant is that the accused is not related to Chris Warren. That however does not numb a normal human reaction to someone who is about to invade your sacred space and rape your partner. To show no reaction, to a reasonable observer would suggest that you intended for the person to be there.

91.	The undisturbed evidence is that Ronald Patepa was talking to the accused while Chris Warren had his hands on the complainant’s shoulders and pushed her to the ground to have sex with her. This was the evidence of the complainant. It was not rebutted by the State. Why would you be talking to someone who had just raped your girlfriend? The answer is simple. His presence was invited and there is no other person who would have arranged for him to be there, than the accused.

92.	When both Ronald Patepa and Chris Warren appeared and raped the complainant, there was no effort made to restrain the accused or any threat issued to him to leave and no effort was made to conceal their identity from him. There was no fight to chase the accused away. Joshua Kaboanga, is the accused’s brother – they have the same father. Would not the accused solicit his help to prevent his girlfriend from being raped? It seemed that the perpetrators were not afraid that the accused was going to report them. Why would they if it was planned.

93.	It is in the evidence that after the ordeal Ronald Patepa followed the accused, the complainant and Joshua Kaboanga back to the houses. This is highly unusual for someone who had just raped the accused’s girlfriend.

94.	What is the significance of the evidence that the two men stopped when the accused asked them to stop? Firstly, he asked them to stop after they had inserted their penis into the complainant’s vagina without her consent. By the time they stopped an offence has already been committed. Secondly, they stopped after he asked them to stop. This evidence became clear during cross-examination. It is in the light of this evidence that I accept the State’s submission that common Melanesian traditions dictates that a man would not interfere with his cousin brother or brother’s wife, unless permission is granted by the husband of the woman. Ronald Patepa was the accused’s cousin. The fact that they stopped when he asked them to stop indicates that he has withdrawn his consent. They would not listen to the accused if they came on their own volition to satisfy their lust.   

95.	The series of events from the evidence taken as a whole, commencing from the initiation of the tryst, to the manner in which the accused led the complainant on, his forceful removal of her clothes, his mute reaction at the appearance of Ronald Patepa and Chris Warren, his conduct throughout the ordeal, control of the perpetrators, telling them to stop, to which they obeyed and the inebriated state of all three men, point to only one reasonable inference, that the accused aided and abetted Ronald Patepa and Chris Warren to commit the offence of rape, by taking advantage of his girlfriend, who he knew, would yield to his advances. In the light of the totality of the evidence, the unsworn statement of the accused amounts to mere conjecture and is not a reasonable hypothesis of his innocence.

96.	The evidence in its totality therefore shows that the only reasonable inference available from the evidence was that there was an intention to encourage the commission of an offence by the accused, and that, that encouragement was in fact manifested by the accused from his conduct from the admitted evidence. 
 
L	VERDICT 

97.	From my discussion on the law and consideration of the evidence and hearing submissions from counsels, I am satisfied beyond reasonable doubt that the accused is guilty of rape contrary to s 347(1) of the Criminal Code, in that he aided and abetted the commission of the offence of rape.

M	ORDERS 

98.	I find John Kaboanga guilty of rape under s 347(1) of the Criminal Code as charged and I will now proceed to hear submissions on sentence after receiving the pre-sentence report and administering of the allocutus.

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