N9403

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NOS. 140, 141 & 142 OF 2020

THE STATE

V.

WESLEY GOLIATH

Kokopo: Suelip AJ
2021: 13th, 14th, 18th May, 5th, 7th, 20th July & 6th August

CRIMINAL LAW – trial – verdict – 3 counts of rape – s.3476(1)(2) – alternative counts of abuse of trust, authority and dependency – s.229E(1) – accused is a teacher – victim is a student – accused denies sexual relationship with victim – witnesses’ credibility – inconsistencies in testimonies – not guilty – accused acquitted and discharged – bail monies refunded

Case Cited

State v. So’on Torah (2004) N2675 

Counsel

G. Tugah, for the State
J. Kihanges, for the Accused 

DECISION ON VERDICT

6th August, 2021

1.	SUELIP AJ: On 13 May 2021, you, Wesley Goliath pleaded not guilty to 3 counts of rape pursuant to section 347(1)(2) of the Criminal Code. You also pleaded not guilty to alternative counts of abuse of trust, authority and dependency pursuant to section 229E (1) of the Criminal Code. Trial was conducted on the same day and concluded the next day. 

2.	At the close of the prosecution’s case, defence made an application for a “no case to answer”. In response, the prosecution conceded that the third count cannot be maintained as there is lack of evidence to support it. The Court refused the “no case” application but held that you had no case to answer on the third count of rape. You were therefore discharged only of the third count, but you have a case to answer in respect of the first and second count of rape.

3.	Also, at the close of the defence case, prosecution made an application pursuant to section 535 of the Criminal Code to amend the date of the first count in the indictment from 1 to 31 July 2019 to 1 to 30 June 2019. The State submitted that there is no prejudice caused by this amendment. Defence raised no objection. Hence, leave was granted to the State to amend the date of the first count in the indictment to be 1 to 30 June 2019. 

4.	This is my decision on verdict.

5.	The facts of your case are these. The State alleges that you, Wesley Goliath, were the deputy Head Teacher at Rakunai Primary School in the year 2019. The victim namely Rose Taurong was a 16-year-old student at Rakunai Primary School, doing her grade five (5). At that time, the student was under your care as a student and athletic ambassador of the school. The State further alleges that on an unknown date between the 1 June 2019 and the 30 June 2019, at Rakunai Primary School, Gazelle District, East New Britain Province, you sexually penetrated Roselyn Taurong, without her consent by inserting your penis into her vagina in your office. You had sent word for her to go see you in your office. At your office, you told her to sit down whilst you played pornography videos on your laptop to her. You then locked the door and sexually penetrated her then gave her some money. After that the complainant went away. The State also alleges that on or around the 23 of September 2019, between 8 am and 10am, you again sexually penetrated the victim without her consent by inserting your penis into her vagina at Rakunai Primary School. You called her to the office then went away to have your bath. After you went back to the office, you removed her trousers and sexually penetrated her vagina with your penis. After that, you both got on a PMV and went down to Kalabond field in Kokopo for the athletics training. You then bought a relaxer cream, slippers and gave the victim some money. The State now alleges that your actions had contravened s.347(1)(2) of the Criminal Code Act and you are charged with 2 counts of rape. The State also charges you with alternative counts of abuse of trust under s.229E(1) of the Code. 

The offence

6.	Section 347(1)(2) of the Criminal Code Act provides: 

	Section 347 Rape

(1) 	A person who sexually penetrates a person without his consent is guilty of a crime. 

Penalty: Subject to Subjection (2), imprisonment for 15 years.

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

7.	On the alternative charges of abuse of trust, authority and dependency, section 229E (1) of the Criminal Code provides as follows:

229E. Abuse of trust, authority and dependency.

(1) A person who engages in an act of sexual penetration or sexual touching of a child between the ages of 16 and 18 years with whom the person has an existing relationship of trust, authority or dependency is guilty of a crime.

Penalty: Imprisonment for a term not exceeding 15 years. 

8.	For this Court to return a verdict of guilty on the charge of rape, the State must prove all the elements of the offence. These elements are:

	(i)	a person (identification)
	(ii)	sexual penetration of another person
	(iii)	lack of consent 

9.	For abuse of trust, authority and dependency, the State must prove the following elements: 

	(i)	a person 
	(ii)	sexual penetration or sexual touching of another person
	(iii)	between the ages of 16 and 18
	(iv)	existing relationship of trust, authority and dependency   

Issues

10.	The issues are these:

(i)	whether you sexually penetrated the victim without her consent on both occasions 

(ii)	whether you sexually penetrated the victim who is between the ages of 16 and 18 years old

(iii)	whether there is an existing relationship of trust, authority and dependency between you and the victim

(iv)	whether you abused that relationship of trust, authority and dependency between you and the victim

Evidence by consent

11.	By consent, the State tendered the following evidence: 

		Document								    Exhibit

(i)	Your Record of Interview (English version) dated 25/11/19	S1
	(ii)	Statement of Senior Constable Veronica Pagur 
(Corroborator) dated 28/11/19						S2
	(iii)	Statement of Senior Constable Myrah Gaemate 
(Arresting officer) dated 28/11/19					S3
	(iv)	Medical Report dated 28/10/19 by Dr Misivet		          S4	(v)	Affidavit of Dr Misivet sworn 13/01/20				S5
	(vi)	Baptism Certificate of Rose Taurong							(signed by Reverend Father William Woesheinrich)		S6

Summary of the State evidence

12.	The State evidence comprises of documents tendered into evidence by consent and the oral testimony of 4 witnesses.

13.	The first of the State witness is the victim, Roselyn Taurong who gave oral evidence and recalled the first incident that happened on a date between 1 and 30 June 2019. It was on the day prior to the school carnival where the students gathered at the school for a team spirit session. She said it was then that you sent word for her to come see you through another student named Nason Seri. She said after Nason told her to go see you, she went to your office, and you closed the door behind her. She said you then played pornographic material on your laptop, then pushed her down onto the floor, removed her trousers and sexually penetrated her. She said she felt pain and she was bleeding from her vagina as this was the first time this happened to her.

14.	On the second occasion, the victim said this happened on 23 September 2019 when her parents left her at the school with you for you take her to Kalabond field for athletics training. She said you also locked her in your office and let her watch some blue movies. She said you then left her to go have your shower. When you returned to your office, she said you told her to stand up, you removed her trousers and sexually penetrated her from the back. She said she felt weak thereafter. Then she said you both got on a PMV bus and went to Kalabond. After training, she said you took her to K Central and bought her a pair of slippers, some lotion and hair relaxer products. She said you also gave her some money and you both returned home.  

15.	The second witness called by the State is Nason Seri. He gave evidence that on the day prior to the school carnival, he was instructed by you to find the victim and tell her to see you. He said he found the victim and told her to go see you. He also said that you favor the girls over the boys at the school and you give money to girls more than you give the boys. 

16.	The third witness is Mrs Northburger Kalau who is a teacher at the same school. This witness saw the victim at odd hours of the night around the staff room area and she told the victim not to hang around that area especially at night. 

17.	The State’s final witness is the mother of the victim who gave evidence that on the second occasion,  her and her husband had gone to leave the victim at the school with you. The only relevant evidence she gave was that she saw the items her daughter brought from town like the pair of slippers, some lotion and hair relaxer products with the money. 

Summary of Defence evidence

18.	At the opening of your case, your counsel admitted into evidence your medical report by HEO Cecilia Thomas and this was marked as Exhibit D1. The State raised no objection to admitting this report into evidence.

19.	Defence called five other witnesses apart from you. In your testimony, you denied all instances of the allegations of rape levelled against you. You also denied being in charge of the athletes from the school which included the victim. You said you only stepped in to take the victim to training at Kalabond as the teacher assigned to this task was not available then. 

20.	Your witness Gibson Pupume is a volunteer treasurer for the school, and he worked from 8am to 4:30pm a day without pay. His office is about 4 meters away from your office and he did not witness anything happening in your office which is open all day but closed at night. 

21.	Your second witness is Joseph Bonga who is a teacher at Kokopo Primary School. He said he was involved in school sports and was at Kalabond on 22 June 2019 where a last-minute training was called for all the school athletes before their departure to New Ireland for the NGI athletics carnival. He said he did not see you, but he is aware that the victim is one of the best athletes and training that day took the whole day.  

22.	Your next witness is Vinavana Bangana, the head teacher who was on study leave at the material time. He said your wife had complained to him about the victim and wanted to assault the victim. He said he then instructed the dean of girls in particular, Mrs Kalau and Mrs Madau to investigate the issue and follow the normal procedures to deal with them. 

23.	Your fourth witness is the night security guard who used to go to your house to chew betelnut or eat and tell stories. His testimony is irrelevant except that he sees the victim at school.

24.	Your last witness Peter Kalava gave evidence that he saw the victim in front of a “house boy” one afternoon where it is usually forbidden for females to be seen near or inside such a house. 

Credibility of witnesses 

25.	Before I discuss the credibility of each witness, I adopt the statement of His Honour Justice Kandakasi (as he then was) in State v. So’on Torah (2004) N2675, at page 5 of his judgment where he says: 

“Finding credibility is in turn dependent on matters of logic and common sense as well as the demeanor of the witnesses and consistencies in their evidence”. 

26.	I have observed the complainant’s demeanor in the witness box to be unimpressive. She took long breaths, and she was slow to answer questions directed at her. She answered questions very softly and did not appear confident enough to testify. The other State witnesses’ testimonies are circumstantial evidence where the victim was seen around the staff room and others were hearsay evidence where they only heard of the allegations of a sexual relationship between you and the victim. 

27.	On the other hand, you appear confident when you gave evidence in denying all the allegations. You deny having sexual intercourse with the victim on both occasions. However, you do admit taking the victim to Kalabond for training in September 2019 but you deny giving her money and buying her gifts after training that day. Your other witnesses are truthful witnesses, but their evidence is irrelevant.  

Consideration 

28.	There are some evidence given by the victim that lacks logic and common sense. The first is this. She says on the first occasion she was requested by you for her to see you. This was on the evening before the school carnival. She said this was the first time she experienced sexual intercourse and she said she was in pain and bleeding from her vagina. There is no evidence to show what she did about stopping the bleeding. Further, there is no evidence that she did not take part in the carnival because she was in pain and bleeding. Her selection into the team would only have been possible if she took part in the athletics carnival the next day and performed well. She neither sought help nor did she tell anyone about her ordeal thereafter.

29.	The other evidence that is not logic and does not make sense is this. On the second occasion in September, the victim said you sexually penetrated her before you both left in a PMV to go to Kalabond field for her training. The victim said after you sexually penetrated her, she felt weak. Again, if she felt weak, how could she have walked to the PMV and participated at training at Kalabond that day? This is not logical, and it is against common sense.

30.	Further, the victim’s medical report of Dr Misivet dated 28/10/19 which is Exhibit S4 shows that there were vaginal discharges at the vaginal opening. It also shows that the hymen was absent, and the cervix was noted to be inflamed, and a pool of offensive pus was also noted at the vault. This does not necessarily mean the victim had sexual intercourse with you. It also does not necessarily mean that she was raped. More importantly, that report also showed that the victim had sexual penetration and she has STI related infections which were gonorrhea and syphilis.

31.	Against that report is your medical report in Exhibit D1.  This report is dated 21/11/19 but the actual test was done on 11/11/19. The report confirmed that you do not have any HIV or syphilis. If you did have those STI related infections, it is most likely that you would have infected the victim or vice versa. It is logical and common sense that the victim contracted the infections from someone else, not you. The State did not disprove this piece of evidence.

Findings

32.	I have doubts whether the two counts of the alleged rape did in fact occur. The victim’s evidence is not logical, nor does it make sense especially when she said she was in great pain or weak and bleeding during the two occasions. Yet, she took part in the school carnival and at training at Kalabond. The evidence that raises more doubt is your medical report in Exhibit D1 where it shows you do not have syphilis unlike the victim who has that infection. If you did have those STI related infections, it is most likely that you would have infected the victim or vice versa. Thus, I find that you did not sexually penetrate the victim on those two occasions.

Verdict

33.	I am therefore not satisfied beyond reasonable doubt that the State has made out a case of rape, nor has the State made out the alternative charges of abuse of trust, authority and dependency.

34.	Hence, I find you not guilty of the charge of rape. I also find you not guilty of abuse of trust, authority and dependency. You are therefore discharged of the charges of rape and the alternative charges of abuse of trust, authority and dependency. Your bail fees will be refunded to you.

________________________________________________________________
Public Prosecutor:		Lawyers for the State
Warner Shand Lawyers:	Lawyers for the Accused