The State v Onjawe Tunamai (2000) N1989

• Jurisdiction: Papua New Guinea
• Judge: Sawong J
• Judgment Date: 15 February 2000
• Citation: [2000] PNGLR 234
• Court: National Court
• Year: 2000
• Judgement Number: N1989

Full Title: The State v Onjawe Tunamai (2000) N1989

National Court: Sawong J

Judgment Delivered: 15 February 2000

N1989

PAPUA NEW GUINEA

[In the National Court of Justice in Madang]

CR 1022 OF 1995

THE STATE

-V-

ONJAWE TUNAMAI

MADANG : SAWONG J.

2000 : 14TH, 15TH FEBRUARY

Criminal Law – Rape – Issue of consent – Corroboration – non presence of sperm in the victims vagina –

HELD: There is no rule of law or practise that says that in order to prove penetration there must be presence of sperm in the vagina.

J. WALA, for the State

M. MAWESI, for the Accused

15th February, 2000

D E C I S I O N

SAWONG J. : The accused pleaded not guilty to a charge that he on 29 April 1993, committed rape upon a girl TA.

The State’s evidence consisted of the sworn oral evidence of the prosecutrix, her mother, the record of interview and the medical report. The accused gave sworn evidence denying the allegations against him.

In her evidence the prosecutrix gave evidence that she had gone to a trade store on the opposite side of the Gum River to buy a packet of rice. After she bought it, and as she was on her way to come to her house, she was accosted by the accused, and two other men, Paul and Mali. She gave evidence that the accused grabbed her by the hands, tackled her to the ground and as they were struggling Paul and Mali came and assisted the accused. She said Paul then removed her underpants and he and Mali held her whilst the accused had sexual intercourse with her. She said that after the accused, Paul and Mali also had turns in having sexual intercourse with her. She said that she struggled to get free but she could’nt as the three of them was too much for her. She also said she could not call out for help as one or more of these men covered her mouth with their hands. She said that, after the incident, she managed to get a piece of wood, which she used to hit the accused with.

After they finished she swam to the other side and reported the incident to her mother. She said she was crying and unhappy about what happened to her. After she told her mother, she changed her clothes and she and her mother came to the police station at Madang. There they reported the matter and afterwards she was taken to the hospital for medical examination.

When she gave evidence, she was shy and she did not speak up. I struggled to hear her evidence. But I think this was out of shame than anything else, because she was giving evidence and retelling the incident in front of a packed courtroom full of strangers. But despite all these, I find her to be consistent and truthful witness on the major parts of the incident.

The next witness was the mother. This witness in the main confirms that when her daughter arrived at their house, she was looking unhappy and crying. She also said there were bits of ground on the back part of her head. She also told the Court her daughter came and told her the accused, Paul and Mali had assaulted her and each of them took turns in having sexual intercourse with her against her will. Apart from the minor inconsistencies about the payment of compensation, she too did not deviate from the main parts of her evidence. In other words none of her evidence relating to the crucial parts were destroyed at all.

The record of interview contains admissions. For instance in Q & A 12 – 31 inclusive, the accused in essence admits having sexual with the girl, but says it was a consensual one. He also says that Paul and Mali also had sex with the girl.

At the hospital, the girl was examined by Health Extension Officer D. Siban. I note that in her report, the said officer states that she examined the girl at about 11a.m. on 29 April 1993, which is about 2 hours after the incident. The examination revealed :

“No bruising or scratches on the face, breasts, abdomen and limbs.

- Hymen torn but is an old tear

- Cervix looks red (inflamed)

- No other tears seen around and inside the vagina

- No spermatozoa were found.”

The officer gave an explanation as to why spermatozoa were not found in the vagina. She said that this was so because ejaculation may have taken place outside the vagina and also may have been washed away, because the girl said that she had washed after the incident but before going to the hospital.

The accused gave sworn evidence. Basically he denied the allegations against him. In his...