The State v David Sopane (2006) N3024

• Jurisdiction: Papua New Guinea
• Judge: Lenalia J
• Judgment Date: 28 February 2006
• Court: National Court
• Docket Number: Cr No 818 of 2005
• Judgement Number: N3024

Full Title: Cr No 818 of 2005; The State v David Sopane (2006) N3024

National Court: Lenalia J

Judgment Delivered: 28 February 2006

N3024

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.818 OF 2005

THE STATE

-V-

DAVID SOPANE

WAIGANI: LENALIA, J.

2005: 17th, 18th, 21st 22nd & 23rd. Nov. & 28th Feb, 2006.

Criminal Law - Rape – Not guilty plea – Trial – Criminal Code

(Sexual Offences and Crimes Against Children) Act 2002.

Criminal Law – Rape – Evidence – Desirability of corroborative

evidence – Rule of practice – Evidence of consent – Corroboration necessary – Such evidence may be circumstantial or direct – No chain of circumstances – Finding of not guilty.

CASES CITED.

The State v Eric Gordon Berry [1977] PNGLR 128

SCR. No. 1 of 1980 Re s.22A (b) of the Police Offences Act (Papua) [1981] PNGLR. 28

Constitutional Reference No.3 0f 1978 Re Inter-Group Fighting Act 1977 [1978] PNGLR 421

McCallum v Buibui [1975] PNGLR 439

The State v Bike Guma [1976] PNGLR 10

The State v Tovue [1981] PNGLR 8

The State v Peter Townsend [1981] PNGLR 12

The State v John Kalabus [1977] PNGLR. 87

Didei v The State [1990] PNGLR 458

The State v Stuart Hamilton Merriam [1994] PNGLR 104

SC. No. 2 of 1980 Re s.14 of the Summary Offences Act [1981] PNGLR 50

The State v Tom Morris [1981] PNGLR 493

Allan Oa Koroka v The State and Mariano Wani Simon v The State [1988-89] PNGLR 131

R v Ulel [1973] PNGLR 24

Other case cited.

Woolmington v DPP [1935] A.C 462

Mr. Kupmain, for the State

Mr. Gene, for the Accused

28th February 2006

LENALIA, J: The accused is charged with one count of rape an offence against s 347 of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. Upon arraignment the accused entered a not guilty plea.

The State’s evidence consisted of two witnesses. They were the victim and her husband. A part from them, four pieces of documentary evidences were tendered. They include the following:

Exhibit “A” medical report date 20th January 2005.

Exhibit “B” statement by Paul Sauri- Detective Policeman.

Exhibit “C” record of interview conducted in English.

Exhibit “D” a prior inconsistent by the victim.

Roselyn Norum is the victim in this case. Her evidence relates to an alleged rape which took place in her husband’s house at Konedobu in the National Capital District. On Friday 31st of December 2004, the accused came home from work about 5 pm and suggested to Roselyn that, they should go to do Christmas shopping at Andersons FOODLAND down town in Konedobu. Because Roselyn’s husband was not there she agreed to go with the accused to the shop.

The victim and the accused walked down to Andersons Foodland and did the shopping as they had planned and after buying groceries, the accused asked Roselyn to call a cab for them to take them home with the food staff. While the victim was arranging for a taxi, the accused went to the liquor shop where he bought one carton of beer and four (4) O.Ps. After buying liquor, the accused returned to where Roselyn was to board the cab.

When they were getting ready to go, some of their friends asked if the accused and the victim could assist them take their shopping home as well since they all live in the same suburb. The accused agreed to that idea and one of their friends got into the taxi with their shopping bags and they took off.

After dropping their friend off, the accused and the victim went straight to the victim’s house. On arrival, the victim started to prepare dinner. At the same time the accused started to drink mixed OP and coke. When the food was ready, Roselyn served food. At Roselyn’s suggestion, two of her female friends were invited to join them. While the accused was drinking, he told the victim that, the carton of beer was for her and her friends while, the O.Ps were to be reserved for him and the victim’s husband.

Roselyn’s evidence is that, by about 9pm, her husband had not arrived home from work. So the victim’s friends Catherine Likun and Anita started to drink beer with Roselyn. By 9.30pm, the second witness who is the husband of the victim, Norman Geri arrived home and informed Roselyn to get herself ready so she could accompany him to Lamana Hotel to watch the New Year’s Eve Fireworks. As soon as the victim heard the news about going out she was really delighted to go.

Norman and Roselyn went into the room and started to get change in preparation to go out that night. It is her further evidence that, while the two of them were dressing up, the accused came into their room and grabbed Roselyn’s hand and asked her why did, she (victim) invited the two women friends to join them in their Christmas drinking party and then, only to be left behind with the accused alone.

After the accused, the victim and Norman Geri had come into certain terms, it was agreed between the three of them that, the husband alone should go to Lamana Hotel and Roselyn was allowed to stay. So Norman Geri left living behind Roselyn, the accused and Roselyn’s two female friends. It is Roselyn’s evidence that the four of them continued to drink until about 1 am on 1st of January 2005. About that time one of Roselyn’s friend, by the name of Anita left because she had left an infant at home to care for so she left early.

By about 3 am on the early hours of 1st of January 2005, Catherine Likun and the victim suggested to the accused that, they were to leave to go to Lamana hotel to look for Norman Geri, but according to Roselyn, the accused did not agree with the idea and persuaded them to stay back. So they all stayed back and continued to consume more liquor.

By that time too, some few friends join them and they told stories but after a while they left. They walked down to a tucker-shop where they bought more beer and returned and continued to drink. By that time they were all dead drunk. Roselyn said, she walked into the house, then into the toilet and as she came out, she noticed that the accused had vomited near the freeze. She then got a piece of rag to clean the vomitus up. As she bent over to do that, it is Roselyn’s evidence that the accused came from behind her and grabbed her then started to kiss her.

Roselyn said, she struggled and pushed the accused away, but that, the accused came back this time more vigorously, and he was supposed to have said to her that, she should not do anything nor say something. That from there the accused overpowered her then undressed both of them and then pushed her down to the floor and thereafter had sexual intercourse with her against her will.

It is the victim’s evidence that, after the accused had had forceful penetration of her, the accused left her and she lay down in bed for two hours and when she woke up, she noticed her husband in bed.

In examination in chief, the victim was asked why she did not report the rape to her husband on Saturday morning. The victim said, the reason why she could not report the matter was that, the husband was drunk and asleep the whole day. The court will come to the husband’s evidence latter but for the moment, the court does not accept evidence by the victim that, the husband was drunk and asleep all day since the husband’s evidence shows that, he woke up a number of times during the day being Saturday 1st of January 2005, but the victim never reported the matter to him.

The victim was vigorously cross-examined as to how she was raped and whether or not it was a rape or consensual acts of sexual intercourse. The defence case which I shall come to later will show that, it was not only one act of sexual intercourse but a series of three of four acts of consensual sex had between the accused and the victim. The victim was firm and denied having several acts of sexual intercourse and said it was only one time that sex took place without her consent. She was asked if the incident was one of rape, why she could not call out to warn Catherine Likun who was still outside the house sitting on the verandah. The victim answered that, by then Catherine was dead drunk and asleep. The evidence also shows that there was a security personnel manning the company premises and had the victim shouted, would have alerted the security personal.

Still during cross-examination, the victim was asked if she was scared when the accused first made a sexual approach to her. She answered that she was scared and she was further asked if she was afraid, why not call out for help at the time she pushed the accused away. Her answer to that particular question was because the accused told her to keep quite.

Her evidence does not end there. In the later part of the cross-examination, the victim said, after being raped, the accused is supposed to have seduced the victim into marrying him in the future after he graduated from the University of Papua New Guinea during which conversation the accused said something like this “A drunken person speaks the thought of a sober person”. That she asked the accused what that phrase meant and the accused explained to her that, when a person is normal, he cannot do whatever he may want to do, but when he is drunk, he can do whatever he likes.

It is the victim’s evidence that, on Sunday morning 2nd of January 2005, her actions were abnormal and when her husband saw this he asked her what happened in his absence during the New Year celebrations. It was then that the victim cried and reported her ordeal to Mr. Norman Geri. Following that, the matter was reported to the down town police station but that the policemen there were not helpful to the...