The State v Robert Tamtu (2001) N2166

• Jurisdiction: Papua New Guinea
• Judge: Lenalia J
• Judgment Date: 18 December 2001
• Citation: (2001) N2166
• Court: National Court
• Year: 2001
• Judgement Number: N2166

Full Title: The State v Robert Tamtu (2001) N2166

National Court: Lenalia J

Judgment Delivered: 18 December 2001

N2166

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 314 OF 1999

THE STATE

-V-

ROBERT TAMTU

KOKOPO: Lenalia, J.

2001: 10, 11,12 Oct, 12,13 & 18 Dec

Criminal Law — Rape — Not Guilty Plea — Trial, Evidence — Criminal Code s. 347 (a) — (Ch. NO. 262).

Criminal Law — Practice and Procedure — Submission of no case to answer — Question of Law for Judge — Whether or not on evidence as it stands accused could be lawfully be convicted.

CASES CITED.

The following cases are cited.

The State -v- Paul Kundi Rape [1976] PNGLR. 96

The State -v- Roka Pep [1983] PNGLR. 19

The State -v- Delga Puri and Tapril Maip [1982] PNGLR. 395.

L. Rangan, for the State

W. Donald for the Accused

D E C I S I O N

18 December

LENALIA, J. The accused pleaded not guilty to one count of rape pursuant to s. 347 (a) of the Criminal Code. In this trial, sexual intercourse is not denied. The only issue is one of consent and in order for the State to prove rape they must establish that the accused had carnally know the victim Salam Agi without her consent.

The victim was about 18 years when the offence was committed upon her. Apart from all oral evidence called of six witnesses, the Record of Interview, statement of victim, Counsel no case submissions in the committal Court and its reply, the ruling by the Committal Magistrate and Section 96 statement in the committal were tendered. They are mark with letters "A" "B" "C" "D" "E" "F" and "G" for purposes of identification. Other statements tendered were the report from the doctor from witnesses 9 — 15 on the indictment.

Evidence presented by the victim and Jennifer Gurir reveal a very daring situation, which they got themselves into on the night of 28th and early hours of 29th August 1998. It also contained certain elements of a well-planned set up either by Mr. Boas Gugu and the accused or even the victim herself and Boas Gugu and the accused.

The State evidence goes back to the 28th of August, 1998. After the victim and her family have had dinner, Salam and Jennifer, had their baths, they went into their room laid down and told stories. Then about 9:30 pm, the victim says, her sister in law Wennal Marilyn, knocked at their room to wake them up with the news that Lynda Gugu wanted to see the victim urgently. When the victim came out, she spoke to Lynda who suggested that they go out to Rabaul

Travelodge for the dance. The victim answered by saying she could not go out without consent from her parents and suggested that although she would wish to go, her parent's permission would have to be first sought.

When Alice (victim's mother) heard the girls talking about going out that night, she asked what was going on and the victim then asked her if she could go out with Lynda. Alice expressed reservations and replied that the victim's father would not be impressed and keen on the idea because usually the parents of Salam do not normally allow their girls to go out to dances or even to nightclubs unless they go together with their parents.

When Mr. James Agi heard about the news, he was neither interested, nor so keen releasing their daughter that night. The evidence shows that by this time Boas Gugu was under liquor when he heard Mr. Agi protested. Boas boasted and said something to the effect that "don't you trust my two big fists to protect and defend our daughters". After having heard this assurance; Mr. And Mrs. Agi finally agreed to let the victim to go with Lynda Gugu and her father. Still in their concern, they also release Jennifer Gurir to accompany Salam and the rest of the party, which went out that night for the dance.

The victim recalled that when they pulled out from their yard at Bitatita Village to the main road, instead of driving toward Rabaul, they instead turned toward Kokopo. The victim so as Jennifer each said they were surprised. They were driven to Ravalian Lodge in Kokopo where they picked the accused and they proceeded to Rabaul.

The intended trip and destination was to be Travelodge, Rabaul. Instead of proceeding straight to Travelodge, Boas Gugu made a second diversion by driving into Palatirip Tavern. As soon as Boas turned left into Palatirip, Jennifer protested and gave a warning to Mr. Gugu that, she was mindful of assurances of the victim's safety given by Boas to Salam's parents. It appears from Jennifer's evidence Boas Gugu showed no concern and drove right into Palatirip.

Once they pulled up at the gate, Lynda got off the vehicle and held onto Jennifer's hand and led her away right into the tavern. Jennifer once more protested this time to Lynda, thinking that the proper person to check was Boas Gugu himself. This did not happened.

Once Jennifer and Lynda were in the tavern, the accused took over from Boas by driving and this time, Boas sat at the back while the accused drove them up to Travelodge. Salam's evidence is she protested because Lynda and Jennifer had been left. The victim said, she wanted to get out, but boas pulled her back to her seat. I will return to this piece of evidence later.

The accused, the victim and Boas drove off to Travelodge. At the Lodge, Boas Gugu got off stating he wanted to check for his friends. As it turned out, Boas once more went out for good and he never returned. Yet here was the place where he had indicated to the parents of the victim he was taking the victim to. Here was the situation where the victim was alone. Lynda and Jennifer had been left somewhere else. Boas had disappeared into the hotel may be the dance at Travelodge living Salam alone in the hands of the accused almost a complete stranger.

A little later, the accused then suggested they should drive back to Palatirip to find Lynda and Jennifer. So the accused and the victim alone drove back toward Palatirip.

On reaching the junction to...