The State v Douglas Jogioba (2007) N4084

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 24 October 2007
• Citation: (2007) N4084
• Docket Number: CR NO 1766 OF 2005
• Court: National Court
• Year: 2007
• Judgement Number: N4084

Full Title: CR NO 1766 OF 2005; The State v Douglas Jogioba (2007) N4084

National Court: Cannings J

Judgment Delivered: 24 October 2007

N4084

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1766 OF 2005

THE STATE

V

DOUGLAS JOGIOBA

Buka: Cannings J

2007: 18, 19 September, 24 October

VERDICT

CRIMINAL LAW – rape, Criminal Code, Section 347 – trial – general denial – complainant gave evidence, as did her aunty to whom she complained – lack of medical evidence – credibility of complainant’s evidence.

The accused, a male schoolteacher, was indicted on two counts of rape allegedly committed against the complainant, a female student. He pleaded not guilty. It was the State’s case that the accused, on the first occasion, penetrated the complainant’s vagina with his fingers and, on the second occasion, penetrated her vagina with his fingers and penis; on both occasions without consent. The complainant gave evidence, as did her aunty, who had, in separate proceedings in the District Court, commenced a civil action against the accused over the same facts that are the subject of the criminal trial. For the defence, the accused gave evidence, denying the allegations, as did his wife, who was a teacher at the same school.

Held:

(1) The complainant’s evidence was generally credible and was corroborated by the evidence of her aunty, to whom the complainant gave details of the alleged rape incidents.

(2) The accused was not a witness of truth.

(3) The State proved the two elements of the offence of rape in relation to both counts on the indictment.

(4) The accused was convicted of two counts of rape.

Cases cited

The following cases are cited in the judgment:

The State v Alex Matasol Hagali CR No 928 of 1997, 28.09.06

The State v James Yali (2005) N2988

The State v Jimmy Aiyo CR No 147 of 2005, 28.09.06

Abbreviations

The following abbreviations appear in the judgment:

CID – Criminal Investigation Division

CR – Criminal

J – Justice

K – kina

N – National Court judgment

No – number

v – versus

TRIAL

This was the trial of an accused charged with two counts of rape.

Counsel

L Rangan, for the State

P Kaluwin, for the accused

24 October, 2007

1. CANNINGS J: Douglas Jogioba, the accused, is a Popondetta man, aged in his early 30s, married to a Bougainvillean woman from Buka Island. In 2004 he and his wife were teachers at Wakunai Primary School in Bougainville.

2. The complainant, “L”, was a grade 8 student and the accused was her English teacher. Early in 2005 a complaint was made to the police that the accused raped L in 2004 on the school’s premises. A police investigation followed and the accused was charged and committed for trial.

3. He is now before the National Court, indicted on two counts of rape. It is the State’s case that the accused, on the first occasion, penetrated the complainant’s vagina with his fingers and, on the second occasion, penetrated her vagina with his fingers and penis; and that it was done without her consent on both occasions. The indictment alleges that both incidents occurred “between April and the end of June 2004”. He pleaded not guilty.

4. The complainant gave evidence, as did her aunty. The only documentary evidence for the State was the accused’s record of interview, in which he flatly denied the allegations, and statements by police investigators involved in the interview. There was no medical evidence.

5. For the defence, both the accused and his wife gave sworn evidence in support of his denial of the charges.

6. Rape is a crime under Section 347(1) of the Criminal Code, consisting of two elements: sexual penetration and lack of consent. Sexual penetration is defined by Section 6 to include amongst other things the introduction to any extent by a person of his fingers and/or penis into the vagina of another person. In view of the accused’s denial, the State had to prove the existence of both elements of the offence beyond reasonable doubt, in respect of either or both counts, to sustain a conviction.

THE COMPLAINANT’S EVIDENCE

7. The complainant testified in examination-in-chief that she is now aged 19. She is not going to school anymore. She finished grade 10 last year at Hutjena Secondary School. She is now living at her village, Lontis, in the Haku area of Buka Island. She did grades 1 to 6 at Lontis and grades 7 and 8 at Wakunai. She went to Wakunai to live with her aunty, Elizabeth Hatanu, when she was working at Wakunai health centre. She did grade 7 in 2003 and grade 8 in 2004. In grade 7 her English teacher was Mrs Lynette Jogioba (the accused’s wife) and in grade 8 her English teacher was the accused, Mr Douglas Jogioba.

8. An incident occurred in 2004. Mr Jogioba asked her to see him after school, around 3.00 pm. She went to his office at the appointed time to see him. He asked her if she could stay with him. She said that she did not want to but he said that she should prepare herself. He locked the door and went away, leaving her alone in the office. He gave her a science book and told her to study the parts on the human reproductive system. She did not run away as he had locked the door.

9. When he came back he told her to take her clothes off. She said that she did not want to do that. But he put her on the table and took her panties off. He pushed his pointer finger and middle finger into her vagina. He told her he wanted her to know the names of pieces of human anatomy. He asked her to tell him what part of the body his fingers were in and she said “vagina”. His fingers would not go right in initially as he was using two fingers. But he eventually forced them inside. She felt pain and bled.

10. After he took his fingers out he told her to put her panties back on. He asked her to masturbate him and he ejaculated on to the floor. He wanted her to see his sperm with her own eyes so she could call it by name. He told her that it would help her prepare for her exams on various topics, in particular the human reproductive system. He asked her to study it, in particular, focusing on the male and female parts. He put her blood and his sperm into a waste bin.

11. Asked by the prosecutor if she could remember the month in which this first incident happened, she replied, initially, that it was in November, in the fourth week of the third term.

12. She was scared and she asked him whether she would get pregnant. He told her no, because he knows about such things. That was the first time anybody had ever pushed their fingers into her vagina. She did not report this incident to anyone at first, as she was afraid that people would know about what happened and she was embarrassed. She did not tell her aunty as she was afraid that she would get cross with her.

13. Asked again by the prosecutor about the month in which the incident happened, she said it could have been October. Asked whether it was before or after Easter, she said that she did not recall. She then said that she was guessing it was October as he told her that he was preparing her for her exams, which were in November.

14. He called her into his office on three occasions. Mr Jogioba was her class teacher and patron. The second occasion was during the same week as the first occasion. He whispered to her during an English period that he wanted to see her after class. She went to his office and he told her to come back at 4.00 pm. She went back at 4.00 pm. Asked why she obeyed him when he had already done something bad to her, she said that she did not think that he would do it again. She thought that he was going to give her some school work.

15. He told her to take her clothes off. He left her and went outside, telling her to prepare herself. He came back and saw that she had not taken off her clothes so he forced her clothes off. Then he said that he would put into practice what was in the books and that they would be together. He told her not to be scared. He wanted to help her learn about these things as they would come up in the exams.

16. He told her to masturbate him, and when he was about to ejaculate he laid her down on the table and pushed his penis inside. He told her to call its name in English, which she did. He asked her to name the part of the body his penis was inside, which she did. He pulled his penis out and ejaculated onto the floor. He asked her to call the name of the white substance, which she did. He asked her to get up, put on her clothes and go outside, which she did. Then he left her and she went back to the house.

17. His penis would not go all the way in at first but he forced it and it went all the way in. It was her first time that a penis had been inside her vagina. He pushed his fingers in first on that occasion. He did that just before he pushed his penis inside. She felt a lot of pain when he put his fingers in, and bled.

18. She did not tell anyone about this incident. She was still afraid and he had told her that he was preparing her for the exams. She did not understand what he was doing.

19. He did the same thing on a third occasion, which was in the same term in 2004. Again it was after an English period. She went to his office and he told her to prepare herself. She cried. She did not want to do it again. She had felt pain before. As she would...