The State v James Yali (2005) N2988

• Jurisdiction: Papua New Guinea
• Citation: (2005) N2988
• Docket Number: CR No 368 of 2005
• Court: National Court
• Year: 2005

Full Title: CR No 368 of 2005; The State v James Yali (2005) N2988

National Court: 13 December 2005

Judgment Delivered: Cannings J

1

Criminal law—indictable offence—Criminal Code, Division V.7, sexual offences and abduction—s350, abduction—trial on a charge of taking away a woman against her will, with intent to carnally know her—elements of offence—meaning of "against her will".

Criminal law—indictable offence—Criminal Code, Division V.7, sexual offences and abduction—s347, definition of rape—trial on a charge of rape under s347—elements of offence—meaning of "without … consent".

Criminal law—indictable offence—Criminal Code, Subdivision IV.2A, sexual offences against children—s229E, abuse of trust, authority or dependency—trial on a charge of engaging in an act of sexual penetration of a child between the ages of 16 and 18 years with whom the accused had an existing relationship of trust—elements of offence—dispute as to age of complainant—meaning of "relationship of trust"—Criminal Code, s6A.

Criminal law—indictable offence—Criminal Code, Division V.7, sexual offences and abduction—s349, sexual assault—trial on a charge of the accused touching with a part of his body the sexual parts of another person's body without consent—elements of offence.

Criminal Code—sexual offences and abduction offences—consent means free and voluntary agreement—Criminal Code, s347A, meaning of consent.

Criminal Code—sexual offences and abduction offences—Division V.7—abolition of warning against danger of convicting on the basis of uncorroborated testimony of complainant—Criminal Code, s352A, corroboration not required.

The State alleged that the accused, a middle–aged man, abducted and sexually penetrated the complainant, a youthful female, against her will and without her consent. In the alternative the State alleged that, if there were consent, the complainant was aged between the ages of 16 and 18 years and an offence was committed as there was an existing relationship of trust between her and the accused. Further in the alternative, the State alleged that the accused was guilty of sexual assault. Four charges were laid and the accused pleaded not guilty to all of them. Nineteen exhibits were admitted into evidence. The State called 18 witnesses. The defence case consisted of sworn evidence by the accused. He testified that he sexually penetrated the complainant with her consent.

Held:

(1) There was insufficient evidence to support the conclusion that the complainant had been taken away against her will. Therefore the accused was not guilty of abducting her.

(2) The prosecution discharged the onus of proving beyond reasonable doubt that the complainant did not consent to being sexually penetrated by the accused. There was no free and voluntary agreement. The elements of rape were established.

(3) The complainant was aged 17 at the time of the incident but there was no relationship of trust between her and the accused for the purposes of s229E of the Criminal Code.

(4) The complainant did not consent to being sexually touched by the accused. However, as this related to an alternative charge, no conviction was recorded.

(5) The accused was accordingly acquitted of abduction (count 1) and abuse of trust (count 3). He was convicted of rape (count 2). No conviction was recorded for sexual assault (count 4).

Black v Corkery (1988) 33 ACR 134, Holman v R [1970] WAR 2, John Jaminan v The State (No 2) [1983] PNGLR 318, R v Merembu Bongab [1971–1972] PNGLR 433, The State v Anton Kumak (1990) N835, The State v Bikhet Nguares Paulo [1994] PNGLR 335, The State v James Yali (2005) N2931, The State v James Yali (2005) N2932, The State v James Yali (2005) N2935, The State v Kewa Kai [1976] PNGLR 481, The State v Lucas Luma (2004) CR No 603 of 2004, unreported, The State v Michael Rave and Others [1993] PNGLR 85 referred to

Abbreviations

The following abbreviations appear in the judgment:

ACR—Australian Criminal Reports

ANZ—Australia and New Zealand

CBC—Christian Book Centre

CID—Criminal Investigations Division

Const—Constable

Dep—Deputy

Det—Detective

Dr—Doctor

Govt—Government

Hon—Honourable

Jr or Jnr—Junior

NCD—National Capital District

OIC—officer–in–charge

PMV—public motor vehicle

PNG—Papua New Guinea

PNGLR—Papua New Guinea Law Reports

Prov—Provincial

PSC—Police Station Commander

Sgt—Sergeant

Snr—senior

Tech—Technical

WAR—Western Australian Reports

TRIAL

This was the trial of an accused charged with abduction and rape and, in the alternative, abuse of trust and sexual assault.

VERDICT

_______________________________

CANNINGS J:

INTRODUCTION

This is a decision on the verdict for a man who pleaded not guilty to four sexually related offences.

BACKGROUND

Incident

The incident giving rise to the charges took place at Madang in October 2004. It is alleged that the complainant, a youthful female, was abducted and raped by the accused, a middle–aged man.

The alleged victim of the incident is referred to in this judgment as "the complainant", consistent with s1 of the Criminal Code, which says that that word means a person against whom an offence is alleged to have been committed.

Indictment

On 7 November 2005 the accused was brought before the National Court and faced the following indictment containing four charges:

Count No 1

JAMES YALI of SOR, RAI COAST, Madang Province is charged that he on the 13th day of October 2004 at Madang in Papua New Guinea with intent to carnally know OLIVIA DANIELS took her away against her will.

Count No 2

JAMES YALI of SOR, RAI COAST, Madang Province is charged that he on the 13th day of October 2004 at Madang in Papua New Guinea sexually penetrated OLIVIA DANIELS without her consent.

Count No 3

JAMES YALI of SOR, RAI COAST, Madang Province is charged that he on the 13th day of October 2004 at Madang in Papua New Guinea engaged in an act of sexual penetration of OLIVIA DANIELS a child between the ages of 16 and 18 years with whom he . . . has an existing relationship of trust.

Count No 4

JAMES YALI of SOR, RAI COAST, Madang Province is charged that he on the 13th day of October 2004 at Madang in Papua New Guinea without the consent of OLIVIA DANIELS touched with his hands the sexual parts of the said OLIVIA DANIELS.

The charges were laid under the following provisions of the Criminal Code:

• count 1—s350(1)(a), abduction;

• count 2—s 347, rape;

• count 3—s229E, abuse of trust, authority or dependency;

• count 4—s349, sexual assault.

The prosecutor, Mr Miviri, pointed out that the State would assert guilt under counts 1 and 2 in the first instance; and that counts 3 and 4 are alternatives to counts 1 and 2.

Arraignment

The accused pleaded not guilty to all four charges.

GLOSSARY

The following glossary lists the names of individuals and places referred to in the evidence.

Individuals

Adam Yawing—a police officer; State witness No 6

Alois Kingsley—a member of the Parliament; a friend of the accused

Alphonse Yohang—an uncle of the complainant; State witness No 2

Angela Yali—the accused's wife

Annette Kora—a cousin of the complainant; a lawyer

Arnold Amet Jr—a lawyer

Brian Daniels—a brother of the complainant

Daniel Kapen—a police officer; State witness No 11

Dr Lahui Geita—a doctor at Modilon Hospital; State witness No 14

Dr Monica Clement—a doctor at Modilon Hospital; State witness No 13

Elizabeth Daniels—the complainant's sister; the de facto wife of the accused; State witness No 5

Emile—a staff member of the accused

Emmanuel (Manu) Larry—a male friend of the complainant; State witness No 8

Garry Baki—Deputy Commissioner of Police

Grace—a woman said to be a friend of the accused

Helen Daniels—the complainant's mother; State witness No 3

Isaac Daniels—a brother of the complainant

James Yali—the accused

James Yali Jr—a son of the accused

Jenny Ariku—a police officer; State witness No 15

Jimmy Namora—Police Station Commander, Madang Police Station

Joe Parker—a staff member of the accused

Joe Pecks—a staff member of the accused

John Koito Bananga—a former employee of the Madang Provincial Government; State witness No 17

Johnson John—a male friend of the complainant; State witness No 7

June Kasiriri—a friend of the Daniels

Junior Diop—a male friend of the complainant and her brother, Oscar

Kevin Pamba—a journalist with The National

Kisikau Polaiap—Helen Daniels' brother

Markom Ururu—the accused's sister

Martina—an aunt of the complainant

Masbut—a staff member of the accused

Michael Kasi—the accused's First Secretary

Michael Ururu—the husband of the accused's sister

Mr Owen—a friend of the complainant

Olivia Daniels—the complainant; State witness No 1

Oscar Daniels—the...