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Touramasong, Painuk, Valavun and Muruna v The State [1978] PNGLR 337 (22 September 1978)

Papua New Guinea Law Reports - 1978

[1978] PNGLR 337 - Bernard Touramasong, Thomas Painuk, George Valavun and Joseph Muruna v The State 

[1978] PNGLR 337

SC135

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

BERNARD TOURAMASONG AND OTHERS

V

THE STATE

Waigani

Raine DCJ Pritchard J Wilson J

28 June 1978

22 September 1978

CRIMINAL LAW - Appeal against conviction - Verdict “unsafe or unsatisfactory” - Reasonable doubt as to safeness and satisfactoriness required - Application of principles to appeal against conviction on charge of rape - Supreme Court Act 1975, s. 22(1)(a).

On appeal against conviction pursuant to s. 22(1)(a) of the Supreme Court Act 1975, the Supreme Court must be satisfied that there is in all the circumstances a reasonable doubt as to the safeness or satisfactoriness of the verdict before the appeal will be allowed.

John Beng v. The State [1977] P.N.G.L.R. 115 followed and applied.

Appeal

This was an appeal against conviction by four men who were convicted of rape.

Counsel

M. Kapi, and M. C. Ridsdale for the appellants (accused).

K. B. Egan, for the respondent (State).

Cur. adv. vult.

22 September 1978

RAINE DCJ PRITCHARD J WILSON J: This is an appeal against conviction by four men who were convicted of raping a young woman some miles out of Rabaul and were sentenced to varying terms of imprisonment.

The grounds of appeal are as follows:

1.       The convictions in all the circumstances of the case are unsafe and unsatisfactory.

2.       The learned trial judge misdirected himself or did not sufficiently direct himself as to the correct principles of law to be applied in a case involving evidence of consent as a defence to a charge of rape.

3.       The learned judge failed to direct himself as to the weakness in the evidence of “fresh complaint”.

Then came a further heading “Grounds of application for leave to appeal and if leave is granted, further grounds of appeal”. Under that heading appear:

1.       The conviction is against the evidence in that the following findings (inter alia) by the learned trial judge are not supported or sufficiently supported by the evidence or alternatively that the findings are wrong.

Then follow eight matters complained of. Some have been withdrawn or are not pressed, namely 1(b), (g) and (h).

2.       The conviction is against the evidence and the weight of the evidence in that the learned trial judge failed to place any or sufficient weight on the evidence.

Then follow references to twenty three portions of the evidence. One of these, 2 (k), is not pressed.

At the trial, and on appeal, the only issue was whether or not the prosecutrix, Emma, consented to have intercourse with each of the four men. She denied that this was so; they asserted it. Of course, the prosecution bore the onus of demonstrating, beyond reasonable doubt, that she did not consent.

The manner in which the evidence was given and the way the case was fought, removed it from the area where consent, although not given, is reasonably believed to have been. It was consent or no consent. Intercourse was not denied, nor identity, nor the presence of all the accused at the scene, nor many of the events leading up to the matters complained of.

Some discussion occurred as to fresh complaint. We will deal with this later. We merely pause here to observe that the fact that there is no fresh complaint by a woman alleging rape, is not evidence of consent: Kilby v. R.[dli]¹. Here the situation is rather in between. The complaint, to a degree, was somewhat prompted. The principle in Kilby[dlii]², so it seems to us, applies in either case. The failure of a supposedly outraged woman to complain, or her having had the complaint, as it were, wrung from her, is a jury matter, going to the consistency or inconsistency of her alleged non-consent to the admitted intercourse.

The events giving rise to the incident complained of occurred over quite a long period of time. The State’s case was that the young prosecutrix, desirous of obtaining a basket, was overpersuaded into accompanying men to a place well out of Rabaul. She did so accompany them. It was quite a long drive. She was provided with a tin of meat of some sort, and had a portion of it, plus some soft drink. At one place she got out of the vehicle when it stopped, then got back in.

But the State case was that, as they proceeded, threats were made to Emma, by implication. It was pointed out to her, and this is supported by Bernard at p. 35 of the Appeal Book and, after some prevarication, by the accused George at p. 45, that the line of the men who finally accompanied her had killed the late Mr. Jack Emmanuel.

The team involved finally grew to five men plus the prosecutrix. Four of the men are alleged to have raped the prosecutrix Emma. The fifth man alleged that he took pity on her and did not attempt intercourse. He was the critical State witness, Nicholas Tande.

As is not unusual in these cases, the prosecutrix put herself in a dangerous situation through rashness or stupidity if the fact is that she never envisaged or consented to intercourse. For this reason, and for others that will be apparent later, it seems to us that it is possible that a jury, not rationalizing the affair as did the trial judge, might have come to a different conclusion.

Having said that we remind ourselves of the decision of the Supreme Court in John Beng v. The State[dliii]³. This establishes that a court of appeal here does not allow appeals because it has a mere “lurking doubt”, words used elsewhere by other appeal courts. Other courts have used expressions such as “general feel of the case”. Prentice Deputy CJ (as he then was) and Williams J in their joint judgment, said this “could have the effect of setting up an entirely new concept — that of proof beyond any doubt without regard to reasonableness of doubt”. Their Honours decided that this was unwarranted and should be avoided. We respectfully agree.

Returning to the broad facts, the prosecutrix says that she was tricked, then put in fear, and finally raped.

After the acts of intercourse the appellants did not melt away into the darkness, or hasten from the scene. This is not unimportant. Far from it. They, with the prosecutrix, went to Raval Village, where some sort of dance or party was in progress. It was open to the paying public.

Emma’s conduct in going to this party has been strongly criticized. Prima facie it is strange that a woman who had been raped by four men, a rape that involved trickery early, verbal threats later, then some physical violence, should have attended the function. However, one one must remember the hour. It was dark. The girl was far away from her residential college. Accepting her story, she might well have decided that the men had had their fill, and would harm her no more, and that she was better off going with them.

In fact she met the woman Matilda at the party. His Honour described the latter as “a mature Tolai woman” and as “an impressive witness of serious and dignified and firm demeanour”. His Honour said further “this witness is apparently a woman of some standing in her community”. It seems she had some control in the management of the function.

It is obvious that Matilda detected that something was wrong. She was told what the girl Emma alleged and, despite the lateness of the hour, she, at her own expense, it cost her K5.00, took the prosecutrix to a police station.

We think this is a sufficient recital of the material facts, the complete facts are referred to in the appeal book and in his Honour’s judgment. But we should add that in their records of interview the appellants claimed to the police that intercourse was either freely granted or impliedly granted to them by Emma. So also the s. 103 statements.

At the trial Mrs. Ridsdale appeared for the four accused. She is a quite experienced advocate. She was also before us on the appeal as Junior counsel to the Public Solicitor. We are sure that most of the many factual matters drawn to our attention were dealt with by Mrs. Ridsdale at the trial. A short note of her final address to the Chief Justice appears at pp. 51, 52 of the appeal book.

It seems to us that from the many sub-grounds of appeal only a few need to be dealt with in any detail in this judgment. The trial judge here wrote a fairly lengthy and very careful judgment. He formed very strong views as to the worth of Emma and Matilda, and equally strong views about the accused men. This is not one of those cases where, on appeal, the appeal court is really in about the same situation as the trial judge. We refer, of course, to those situations where the facts were uncontested below, or where, if there was some contest, the findings of fact were virtually incontestable. In such cases the appeal court is not seriously, if at all, inconvenienced by not having the opportunity of seeing and hearing the parties and the witnesses, and assessing their worth. For a discussion of the role of an appellate court where the facts found by a trial judge are disputed see the judgment of Barwick CJ in Edwards v. Noble[dliv]⁴. Aliter, where, as here, the Chief Justice looked very hard at all who went into the box, and assessed them at length and with care. It goes without saying that such assessments are critical as, for example, in the case of Nicholas Tande, for he was what might be called “an accomplice up to a point”. If he was to be accepted, as he largely was by the trial judge, he was desirous of sex, but desisted because he was sorry for the girl. His better side won the day; he desisted from having intercourse with Emma.

It seems to us that the major arguments of the appellants are as follows:

1.       That the prosecutrix, by leaving the residential college at a significant time and driving away in to the gathering dark with men, was asking for trouble, and that this was indicative of consent.

2.       That, by having food and soft drink given to her, and by her general conduct up to the time of sexual intercourse, including the curious change of clothing, she gave all the indiciae of consent. They were not men she really knew.

3.       That 1 and 2 (supra) are reinforced by the prosecutrix going to the dance with the appellants, who did not, as we have said, flee the scene.

4.       That the medical evidence is silent as to physical violence or nervous or psychological after-effects.

5.       Generally, as to corroboration and fresh complaint.

6.       That his Honour was incorrect in finding that there was corroboration of the alleged rape in the appellants’ records of interview. This is the added ground of appeal, 1(h). As we understand it, 1(h) is directed to lack of consent, because the appellants all admitted that they had intercourse with Emma.

To us these six matters seem to be what the appeal is all about. The lesser matters, as we have said, can be regarded as makeweights.

As to points 1, 2 and 3 we certainly see the force of them. They would not have been lost on his Honour. But the sting in the submissions is largely removed when one appreciates that Emma was found to have been tricked by Thomas back in Rabaul. His Honour described him as a “lascivious liar”. Also, although apparently not a virgin, there was, apart from the references to “pamuk”, no suggestion that Emma was a woman of loose virtue.

In many cases of rape the prosecutrix, through rashness or stupidity, is, to a significant extent, the authoress of her own misfortune. Some young women are far too trusting.

As to point 4, we also see the force of it. But it is not decisive. The prosecutrix was not a virgin and was mature, so presumably would have been capable of receiving the male organ without any difficulty under normal conditions. Of course, conditions were not normal if it was rape. However, assuming it was, it was certainly not one of those hideously wild affairs that we have all heard of, where so often, serious physical injury is caused. And we have no doubt that sensible women, seeing their inevitable fate, give in, and relax at the critical moment, thus reducing the risk of injury. This is not to say that they consent. We have all tried cases of rape and carnal knowledge where serious physical and nervous damage resulted. But we have also tried cases where the undoubted victims emerged unscathed, sometimes even when sexually very immature.

As to point 5 we consider that his Honour was correct in finding that there was evidence of “fresh complaint”. We concede that to some extent Matilda prompted it, and this has some bearing on the further complaint to Constable Banin.

This does not concern us unduly. Here was a girl in a strange place. Matilda was older than she. Emma, if she had been raped, no doubt felt shamed. It does not surprise us that she did not initiate what subsequently passed between her and Matilda.

There was ample corroboration if Tande was accepted by the trial judge. His Honour was at pains to describe his reaction to Tande’s evidence. With great frankness his Honour disclosed some early reservations he had about this critical witness. It is obvious, if one reads the judgment with care, that those early reservations caused his Honour to look extremely hard at Tande.

There is also, as some corroboration, the evidence of Matilda and the constable about the girl’s appearance. The latter thought “she looked worried”. Matilda said “she looked as though she was crying ... that’s all”. Matilda also said “I was sorry for her”. It is obvious that Matilda, intuitively, knew that something was quite seriously wrong.

His Honour was particularly careful not to place more than “some value” on this evidence we have just discussed. Of course, evidence as to distress can be corroboration of the version given by the prosecutrix. It is evidence that has to be viewed warily, this for obvious reasons. In many cases it might have little weight. We can imagine cases where the trial judge might regard it as too dangerous to take into account, or to allow a jury to take it into account. His Honour appreciated this, for he specifically referred to R. v. Redpath[dlv]⁵. On this matter generally, see the judgment of Winneke C. J in R. v. Flannery[dlvi]⁶.

As to point 6, this is based on amended ground of appeal 1(h). This, of course, is only directed at lack of consent, intercourse being admitted. The new ground of appeal complains that his Honour was in error in stating that there was corroboration in the accused men’s records of interview.

Well, there was, as to the various acts of intercourse and as to many of the events of the evening and the night. But the only issue was consent, so it is clear that this is all his Honour was thinking of when his Honour said at p. 112 of the Appeal Book “I find the prosecutrix’s story corroborated in many details by Nicholas Tande’s evidence, and many details in the accuseds’ records of interview”.

As to this, nothing in Joseph Muruna’s record of interview corroborates the prosecutrix as to lack of consent.

George Valavun was asked, at Question 36 in his interview:

“Q.     Did she gave you permission to have sexual intercourse with her?

A.       No.”

But later he tells a story that spells out consensual intercourse in clear terms.

Bernard Touramasong’s record of interview reads:

“Q.17  And what were you fellows doing?

A.       We stayed there and mekim trouble with her.

Q.18   What do you mean by saying mekim trouble?

A.       We had intercourse with her.

(and later)

Q.23   When you want to pus (sic) your penis into her vagina what did you say to her?

A.       When I was ready to put my penis I asked her what happen to this two men when they have sexual intercourse with you and you were crying”. (The emphasis is ours.)

The accused then went on to describe certain matters in a way that is exculpatory.

Thomas Painuk at questions 26, 27 and 28 of his interview said he did not know Emma before but he loved her, and his concern was to ask her to accompany him to Kambaira. He told the police she consented.

The only matter, “qua” consent, or lack of it, that we can find in the record of interview is at p. 87 of the appeal book. This reads:

“Q.41  Did you take the woman to your brother? Yes or not?

A.       We were about to go when some other men approached us.

Q.42   What did you do when the men approach you?

A.       They make me drunk with beer.

Q.43   Where did you leave the woman?

A.       She was still with me.

Q.44   What happened when the woman was still with you?

A.       One man grab the woman into the bush and had sexual intercourse with her.

Q.45   What is the name of the man who grab the girl from you?

A.       Tosalalo (sic).” (The emphasis is ours.)

Having given this appeal our best attention we cannot say that we have a reasonable doubt about the conclusion his Honour reached.

We acknowledge the force of many of the major matters argued. Had the learned trial judge skated, as it were, over the serious factual difficulties, and failed to demonstrate that he was fully seized of those difficulties, our situation and our approach might have been very different. But his Honour did not skate over the facts, the very reverse. He dealt with them with very great care. We think it was a most conscientious judgment, and a forceful one. Whilst acknowledging that his Honour does seem to have imputed rather more against the accused as to what they said in their records of interview than seems justified, this does not take the matter nearly as far as Mr. Kapi, in his forceful argument, would have wished us to conclude.

In our opinion the appeal should be dismissed and the convictions and sentences confirmed.

Appeal dismissed.

Solicitor for the appellants: M. Kapi, Public Solicitor.

Solicitor for the State: K. B. Egan, Public Prosecutor.

[dli](1973) 129 C.L.R. 461.

[dlii](1973) 129 C.L.R. 461.

[dliii][1977] P.N.G.L.R. 115.

[dliv] (1971) 125 C.L.R. 296 at pp. 303-306.

[dlv](1962) 46 Cr. App. R. 319.

[dlvi][1969] VicRp 72; [1969] V.R. 586 at p. 591.