The State v Robert Tamtu (2001) N2166

• Jurisdiction: Papua New Guinea
• Citation: (2001) N2166
• Date: 18 December 2001
• Court: National Court
• Year: 2001

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

National Court: Lenalia J

Judgment Delivered: 18 December 2001

1 Criminal Law—Rape—Not Guilty Plea—Trial, Evidence—Criminal Code s347(a) (Ch262).

2 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.

3 The State v Paul Kundi Rape [1976] PNGLR 96, The State v Roka Pep [1983] PNGLR 19, The State v Delga Puri and Tapri Maip [1982] PNGLR 395, The State v Aige Kola [1979] PNGLR 620 and The State v Lasebose Kuriday (1981) N300 referred to

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Lenalia J: The accused pleaded not guilty to one count of rape pursuant to s347(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 s96 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 29 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 28 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 9.30pm, 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...