The State v Michael Rave, James Maien and Philip Baule

• Jurisdiction: Papua New Guinea
• Judge: Doherty J
• Judgment Date: 11 December 1992
• Citation: [1993] PNGLR 85
• Court: National Court
• Year: 1993
• Judgement Number: N1155

National Court: Doherty J

Judgment Delivered: 11 December 1992

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

MICHAEL RAVE,

JAMES MAIEN AND PHILIP BAULE

Kimbe

Doherty J

4 December 1992

8 December 1992

11 December 1992

CRIMINAL LAW — Rape — Circumstances of consent accepted in another country not to be adopted indiscriminately in Papua New Guinea — Precedent applies when the facts are "on all fours" or sufficiently similar to the instant case.

Facts

The defendants pleaded not guilty to a rape charge. The issue turned on whether the victim consented to having intercourse with the three accuseds.

Held

1. Corroboration of the victim's testimony was essential for, although it is not a statutory requirement in a sexual offence case, it may be dangerous to convict without corroboration.

2. "Fresh complaint" goes to support the victim's accusation.

3. The place and circumstances of how sexual intercourse took place may be of corroborative value (State v Kalabus [1977] PNGLR 87 applied).

4. That consent may be grudging, tearful, hesitant or reluctant is not a precedent binding in Papua New Guinea case law. The standards in another culture cannot be indiscriminately adopted (Holman v R [1970] WAR 2 distinguished).

Cases Cited

Papua New Guinea cases cited:

Birch v The State [1979] PNGLR 75.

Didei v State [1990] PNGLR 458.

R v Ulel [1973] PNGLR 254.

State v Awoda [1983] PNGLR 83.

State v Kalabus [1977] PNGLR 87.

Touramasong v State [1978] PNGLR 337.

Other cases cited:

Frost and anor (1964) 48 Cr App R 284.

Holman v R [1970] WAR 2.

Counsel

N Sios for the State.

G Gendua for the defendants.

8 December 1992

DOHERTY J: The three defendants were indicted on one count of the rape of J on 12 August 1992.

It is not in dispute that sexual intercourse took place. Each of the defendants make this quite clear in their pleas. They also said so in their record of interviews. They say here (and to the police) that the prosecutrix consented to each man having sex with her.

The State called the prosecutrix; a girl, Gorothy, who was with her up to the time of the incident; a relative, Cecilia Soleng, who she went to later in the evening, and a medical officer.

The three defendants elected to give unsworn statements from the dock.

The weight to be given to unsworn statements was considered fully in the case in State v Awoda [1983] PNGLR 83 and in R v Ulel [1973] PNGLR 254. In R v Ulel, the National Court reviewed the case law from Australian authorities, the English authorities, and the Irish authorities on the weight and the consideration to be given to the unsworn statement. The National Court quoted from various overseas authorities at pages 261, 262, 263, 264, 265 and said at p 266 in particular:

"the probative value of the statement is, of course, weakened by the right to give sworn evidence accorded to the accused under the statute. In addition to the fact that it is not on oath, it has the further infirmities that the maker is not subject to the sanction of possible proceedings for perjury (although this point is somewhat theoretical having regard to the extreme rarity of prosecutions for that offence in respect of the sworn evidence of the accused), and he is not liable to cross-examination".

The Court went on to quote from Frost and anor (1964) 48 Cr App R 284 at 290:

"It is clearly not evidence in the sense of sworn evidence that can be cross-examined to; on the other hand, it is evidence in the sense that the jury can give it such weight as they think fit and should take it into consideration in deciding whether the prosecution have made out their case so they feel sure that the prisoner is guilty".

It has also been said that the unsworn statement has some weight not much weight, but it is something that the court does consider, and it has more weight than counsel's submission.

That is the weight I will give to the statements of the three accuseds. I note that in their unsworn statements they do not refer at all to certain aspects of the evidence, directly or by implication, and, hence, certain parts of the evidence were unrebutted.

The evidence of the prosecutrix is that she and Gorothy decided to go to Mosa to visit an aunt. They waited for a bus near the hospital where the three accuseds and two other men were also waiting for a bus. By coincidence, they were all from Bali Island and recognised each other's language. They did not know each other before that day. I do not know if they came from the same part of Bali Island.

A truck came and the seven got on the truck. It went past their destination, so they got off at Kapore and were told to wait by the driver.

Then all seven of them started to walk back and James, one of the accused, suggested taking a route through the oil palm plantation. The prosecutrix estimated that they left Kapore at 5.30 pm and they walked for one hour.

It is suggested they turned off the main road because of drunks on the road but this was not agreed. It does not matter greatly, because it is clear that they all turned into the oil palm, and it was not at the suggestion of either of the girls. It is not suggested by the defence that the prosecutrix and Gorothy went with these three men and the other two in any unusual or suggestive way. They were not, to quote the Supreme Court in the case of Touramasong v The State [1978] PNGLR 337 at 339, " [putting themselves] in a dangerous situation through rashness or stupidity if the fact is that [they] never envisaged or consented to intercourse".

Up to this point, the evidence is not really in dispute. The prosecutrix then continued her evidence of what happened. I will say now that this witness was a very young looking girl. She was supposed to be 15. She looked younger. She was quite a short girl and quiet. She was obviously embarrassed and distressed in the witness-box, to the extent that the Court cleared members of the public during part of her evidence. In doing this, the Court used the provision of s 37 (13) (a) of the Constitution. The prosecutrix said that after they went into the oil palm, there was a separation between the three accused and the others. Michael Rave went apart separately, grabbed her, and was the first man to have sexual intercourse with her. She described it as follows:

"When we turned back, the other girl was running ahead of me. Michael stood inside an oil palm tree and as I went past, he grabbed my hand. Michael forced me to lay down, but I was struggling. He laid me down and then took off my pants."

She then said Michael had intercourse with her. Michael Rave then left her and walked to the road. She said that once she was still laying down Philip Baule then came and forced her down again, and he too had sexual intercourse with her. Then Philip left. After this:

"When Philip left, I felt weak and was still laying on the ground when Philip called James. James came up and he put my legs apart and also penetrated his penis into my vagina. After he did that, he left me and walked to the road".

She identified each of the accused. The names and who they are is not in dispute. She said she went to Mosa with these three men. By that time it was dark.

The defence lawyer said in his submission that they all walked along the road after the intercourse. He submitted that this is an important aspect of the case because, if there had been rape perpetrated, why would she walk along with them. This type of situation has been considered by the Supreme Court in Touramasong v The State (supra). There, a young woman was raped by four men and then went along with them in a vehicle. The Supreme Court said this (p 339):

"prima facie it is strange that a woman who had been raped by four men, a rape involved trickery early, verbal threats, later, then some physical violence should have attended the function. However, one must remember the hours. It was dark. That the girl was far away from her residential college. Accepting her story, she might well have decided the men had had their fill, and would harm her no more, and that she was better off going with them".

Applying the Supreme Court view to this situation, I consider that the prosecutrix found herself in an isolated place, that it was dark, and she was far away from where she normally lived. The walking together does not necessarily indicate consent. It only indicates that it was dark and she was in an isolated situation.

When they arrived at Mosa, the prosecutrix told her story to a woman, and the woman took her to her house. She named the woman as Mangu. That has not been rebutted nor the subject of any reference in the defendants' statements. When asked what she told Mangu, she said, "about the rape". According to the evidence before me, this is the first person she met after the event. She did not waiver in cross-examination about this. The defence is critical that the woman, Mangu, has not been called and said that she should have been called. It was equally open to the defence to call her, especially as the prosecutrix's evidence is that James talked to the woman, Mangu, first, and she was known to James. If the defence wish to rebut that evidence, then it is...