The State v Anton Kumak, Joseph Otto Markikila, Junias Apelis Tobok (1990) N835

• Jurisdiction: Papua New Guinea
• Judge: Ellis J
• Judgment Date: 23 March 1990
• Court: National Court
• Citation: (1990) N835
• Year: 1990
• Judgement Number: N835

Full Title: The State v Anton Kumak, Joseph Otto Markikila, Junias Apelis Tobok (1990) N835

National Court: Ellis J

Judgment Delivered: 9 or 23 March 1990

N835

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR. 1137/87

STATE

-V-

ANTON KUMAK

JOSEPH OTTO MARKIKILA

JUNIAS APELIS TOBOK

Rabaul

Ellis J

21-23 February 1990

9 March 1990

JUDGMENT

ELLIS J: Anton Kumak, Joseph Otto Markikila and Junias Apelis Tobok are each charged with rape said to arise out of events which occurred on 27th August 1987. In their respective records of interview each accused admitted having sexual intercourse with the victim. The issue at trial was therefore whether there was consent.

It is necessary to note that another person, Kinim Apelis, was also charged in relation to this offence but he was charged separately. I have deliberately refrained from inquiring as to the outcome of his trial in order that my judgment might not be influenced either way: that was a separate trial and should be treated separately. Indeed, the matter now before me involves three separate trials and, although the evidence is common to all three accused, it is necessary to consider the case against each accused separately.

At the risk of stating the obvious, the record of interview of each accused is evidence only against that accused. Accordingly, I first consider the exhibits and the oral evidence which reflect against each of the accused.

The first witness was the victim whose evidence may be summarised as follows:

She was staying with her "sister" (actually her first cousin) and on the evening in question went out the back of the house to fetch some water. Whilst doing so Kinim Apelis who took her away from the house towards a nearby beach. She did not see the other three men on her way to the beach. However, when arrival at the beach her clothes were torn to pieces and Kinim Apelis and three accused each had sexual intercourse with her which she said was achieved despite her struggling and without her consent. It was her evidence that while Junias Apelis Tobok had sexual intercourse with her, Joseph Otto Markikila and Anton Kumak held her down and that in like manner she was held down while each of the other accused had sexual intercourse with her. She also gave evidence that during the incident she was trying to call out but this was prevented by a cloth being placed in her mouth.

She gave the sequence in which sexual intercourse occurred as Kinim Apelis, Junias Apelis Tobok, Anton Kumak and finally Joseph Otto Markikila. There was some cross examination to the effect that she had given a different sequence of events to the Police since after the incident. I do not think this is of great moment in circumstances where each accused admits having sexual intercourse with the victim and when her ability to see the man committed by reason of being blindfolded. Her recollection was based upon hearing the men talking.

After having sexual intercourse she ran down to the sea and into the water. She was followed by the three accused, two of whom remained on the shore and threw sticks and stones on her directions. Joseph Otto Markikila apparently followed her into the sea and punched her three times with a closed fist to the head. She then called and cried out. Her "sister's" husband came towards the beach and took her back to the house during which time Joseph Otto Markikila saw her "sister's" husband and ran off. She reported the incident to her sister and her sister's parents.

The victim conceded that she first had sexual intercourse in 1985 when aged about 12 with Kinim Apelis who was then her boyfriend. She further conceded that he had been her boyfriend for about two years and that roughly two (2) weeks prior to the incident in question he had stopped being her boyfriend. She suggested that this breakdown was due to an argument with her parents about her boyfriend.

The victim claimed that Kinim Apelis forced her to go down to the beach with him, that he held her, that she tried to take his hands away from her and that "he carried me down to the beach". Further answers provided in cross-examination were to the effect that at one stage Kinim Apelis had his right hand on her mouth and the other hand carrying her and that, at another stage, he held her with two hands over his shoulder.

As none of the accused gave evidence, it is necessary to consider how the victim left the back of the house where she was fetching water and went to the beach. I must say that I am not satisfied that Kinim Apelis initially found it necessary to use force to entice the victim away from the house in that I doubt that the initial contact between Kinim Apelis and the victim was a inharmonious as she suggested. I believe that when the victim initially met Kinim Apelis on that occasion she did not struggle and he did not need to use force by reason of prior boyfriend-girlfriend relationship between them. After all, if Kinim Apelis had needed to use force when he first met her at the back of the house then she would have ample opportunity to make a noise sufficient to attract attention of her "sister" or her "sister's" husband. However, I do believe that it became necessary for Kinim Apelis to use force at some stage between when he and the victim left the house and when he and the victim arrived at the beach. It isnot necessary to find at what precise point it became necessary for Kinim Apelis to use force. It is sufficient for me to indicate that I believe that, although force was not initially required the victim away from the house, force was subsequently required of Kinim Apelis in order to secure this victim's attendance at the beach.

The second witness was Robin Toweita. He gave evidence that when the victim did not return from fetching water he was sent by his wife to look for her. He stated that he heard the victim calling out in a very loud voice but he could not hear what she was saying nor could he see her at that time. However, once he was at the main road, he could hear her shouting from the beach. He reached the beach, he found the victim was standing in the sand at the edge of the beach and he accompanied her back to the house. When they arrived at the house the victim was asked by her sister "what happened?" According to this witness the victim replied: "A man took me down to the beach". This witness was cross-examined as to what he had told the Police and he advised that he told the Police that the victim was shaken and distressed at that time, ie. when she came back to the house. Furthermore, that she was crying and her clothes were wet. Significantly, this witness indicated that he met Kinim Apelis on his way to the beach and that he saw men running away from the scene at that time. I note that this witness appeared to be reluctant to come to Court and, for that reason, a Bench Warrant was issued to secure his attendance. It appears that he was living in the same village as the three accused and that he has a form of relationship to the accused in that regards them as being like cousins. In those circumstances, his reluctance in coming to court and answering further questions is understandable. What is significant is that he confirmed aspects relating this incident which he told to the Police soon after the event in the absence of the accused. In the event, I do not see anything, from either the content of what he said or his demeanour while he gave evidence, which would justify disbelieving this witness.

The next witness was Barabon Kavanamur. She gave evidence of sending her husband out looking for the victim and that the victim returned wearing clothes which were wet. This witness also indicated at the time the victim returned to the house she was crying and, when asked why, the victim answered that she was raped by some of the boys. Furthermore, it appears that the victim told this witness the names of the three accused and that Joseph Otto Markikila chased her into the sea. Like the previous witness, this witness was not available when initially called and a Bench Warrant was issued to secure her attendance. She gave evidence with her head down and in a quiet voice which, to me, was due to the same reasons which I believe actuated her husband. She gave evidence that her mother and the victim's mother are sisters which made them formally cousins but, for all practical purposes, they regarded each other as sisters. This witness confirmed that Kinim Apelis was the victim's boyfriend prior to this incident. Sgnificantly, she also indicated that the victim was going around with somebody else by the time of this incident thereby confirming that Kinim Apelis was not the victim's boyfriend at that time. In cross-examination, she recalled the precise word which the victim used when they spoke soon after the incident. I am satisfied that the interpretation of that the word in Kuanua language means sexual intercourse without consent. This witness gave evidence that when the victim was talking to her on the night in question she was talking and crying at the same time. Significantly, she also recalled that during the first week that the victim stayed with her, being shortly prior to the date in question, the victim had...