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State v Altus [2004] PGNC 7; N2775 (13 August 2004)

N2775

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE IN MADANG]

CR 1440, 1441, 1442, 1443 & 1444 OF 2003

THE STATE

-V-

JERRY SOM ALTUS,
BART ISSAIAH,
NOGOTAM MARK HILIA,
SILAS KODONG

MADANG : SAWONG, J.

2004. : 11th February,

: 8, 9, 10, 21st June,
: 13th August

CASES CITED:
R v Phillips Boike Ulel [1973] PNGLR 254;
R v Yoka Kiok 1970 No. 607;
The State v John Kalabus & Ita Sanangkepe [1977] PNGLR 87;
Didei v The State [1990] PNGLR 458 at 460 – 461;

Counsel:
MR. M. RUARRI, for the State
MS. A. TURI, for the Accused

DECISION

13th August, 2004

SAWONG J: The four accused were indicted with several counts of rape, an offence contrary to s.347 of the Criminal Code. Upon arraignment the accused, Silas Kodong pleaded guilty whilst the other three, namely, Jerry Som Altus, Bart Issaiah and Nogotam Hilia pleaded not guilty. I therefore proceeded to conduct a trial in respect of those three. After the completion of the evidence relating to them, the deposition relating to Silas Kodong was tendered and accepted by the Court. Silas Kodong will therefore be treated slightly different to the other three accused.

A useful summary of each count against each accused is set out in the written submissions of Mr Ruarri. I adopt for convenience what he has prepared. The various counts of rape are as follows:

1. Date : 4 January, 2003 Place: TETEKONA

Accused : JERRY SOM ALTUS

Victim : GIDIGIDI KASIENE

2. Date : 4 January, 2003 Place: TETEKONA

Accused : BART ISSAIAH

Victim : KALEM KASIENE

3. Date : 6 January, 2003 Place: PARADISE

Accused : JERRY SOM ALTUS

Victim : LONSE PODI

4. Date : 6th January, 2003 Place: PARADISE

Accused : JERRY SOM ALTUS

Victim : ANDAU SAMKOI

5. Date : 6th January, 2003 Place: PARADISE

Accused : SILAS KODONG

Victim : MORE SAMKOI

6. Date: : 18 January, 2003 Place: Victim’s garden

Accused : JERRY SOM ALTUS

Victim : GALOA KAPI

7. Date : 18 January, 2003 Place: Victim’s garden

Accused : NOKOTIAM ILIA

Victim : GALOA KAPI

8. Date : 2 February, 2003 Place: Near Airstrip

Accused : JERRY SOM ALTUS

Victim : DAINA YAPA POWI

9. Date : 2 February, 2003 Place: Near Airstrip

Accused: BART ISSAIAH

Victim : DAINA YAPA POWI

The issue at trial was one of consent, that is, whether the various acts of intercourse by each of the accused with different prosecutrixes at different places and on different dates were consensual or not. Each accused raised a defence of consent in respect of each incident.

I now turn to consider the evidence relating to each count in a chronological sequence. I propose to summarize the evidence given by each of the State witnesses and the un-sworn evidence given by each of the accused.

4th January 2003

The first count relates to an incident that occurred on 4 January, 2003. It involves the accused Jerry Som Altus and Bart Issaiah. The evidence relating to this particular incident came from the sworn evidence of Kalem Kasiene and Gidigidi Kasiene. The first witness for the State was Kalem Kasiene. She is about 17 years old and is an unsophisticated villager who has lived all her life at Long Island. She has not travelled out of that island in the past. Her evidence was that she and her small sister, Gidigidi Kasiene went ashore in their canoe at Tetekono village when the two accused, Bart Issaiah and Jerry Som Altus met them at the shore. This was in the morning. She said that they went ashore and were about to go home when Jerry Som Altus and Bart Issaiah forced them to go with them. She told the court that Bart Issaiah took hold of her, threatened her and took off her laplap and then had sexual intercourse with her. She also told the court that the accused had sworn at her and threatened her. She said that when they arrived and after Bart Issaiah had taken her away he wanted to have sex with her but she refused but he pushed her down and he raped her. She told the court that after the act, the accused told her not to report the matter to anyone else.

In cross examination she confirmed that the accused, Bart Issaiah had ordered her and told her to remove her laplap. She also confirmed that he had sworn at her. It was put to her that the accused had not forced her in any way. She said that that was not true and that he had forced her. It was further put to her that she and her sister were given betelnuts when they arrived at the village and that they then chewed betelnuts with the two accused because she was Bart Issaiah’s girlfriend. It was put to her that because she was his girlfriend he asked her to have sex and she consented. She said that, that was not true and that he was not her boyfriend. She said in her cross examination, after the incident they went and told their elder brother about what had happened. It was put to her that she never told anyone about the incident but she maintained her evidence that same afternoon they went home and told her elder brother. It was also further put to her that the intercourse was a consensual one and that the accused had not forced her to have intercourse with her. She refuted this firmly and said that they had refused but the two accused had forced them to have intercourse with them.

Despite attempts by Ms Turi to discredit her evidence, the evidence of Kalem Kasiene was not destroyed in any material way at all on the crucial parts of her evidence as to whether she had consented to have intercourse with the accused or not. In my view, she was a credible witness because she gave coherent and consistent evidence. She impressed me as a person who was telling the truth. She was an impressive witness. I accept her evidence.

The next witness was Gidigidi Kasiene. She too gave her evidence in Pono language. She said that on the morning of the 4 January, 2003 she and her sister Kasiene went in their canoe to Tetekono village. As they were pulling her canoe up to the beach they saw the two accused Bart Issaiah and Jerry Som Altus at the beach. She said that when they saw them they told them to go ashore and then Jerry Som Altus came to them armed with a bush-knife. Then Bart Issaiah came also armed with a bush-knife and they then took them into the bush. She told the court that after taking them into the bush the two accused told the prosecutrixes to take off their clothes and forced them to sleep. She told the court that Jerry Som Altus then forcibly had intercourse with her. She said that after the incident they went and reported the incident to her elder brother. She told the court that she had intercourse with Jerry Som Altus because he was armed and she was scared of him.

In cross examination she confirmed that the two accused told her and her sister to go ashore. She said that when they saw the two accused they were afraid of them because the two accused had bad reputation and they were in fear of them. She said that when they saw the two accused calling to them, they were afraid to go ashore but as they were trying to paddle away the accused, Jerry Som Altus got a knife and threatened them and told them to go ashore. It was put to her that when she and her sister saw the two accused they were not scared. She replied that at the time she and her sister went ashore the two accused were armed with bush-knives and they approached them. She told the court that the accuseds gave them some betelnut but they were still apprehensive and fearful of them but the two accused told them that they would not harm them and so they should not be scared. And after chewing some betelnut she said that Jerry Som Altus who was armed with a bush-knife and grabbed both of them and ordered them to go into the bush. It was repeatedly put to her that Jerry Som Altus was not armed with any bush-knife that day. However, she repeatedly stated that she saw Jerry Som Altus was armed with a bush-knife. She also confirmed in her evidence in cross examination that she did not agree to have sex with him but because Jerry Som Altus was armed with a bush-knife she was in fear and she went with him. She also confirmed that he was armed with a bush-knife and he had sex with him without her consent. It was also repeatedly put her that she had agreed to have sex with Jerry Som Altus and followed him into the bush. The witness maintained her evidence that she did not agree and that if she and her sister had disagreed they would have used whatever they were holding to hurt them. It was put to her as to whether he in fact threatened her and the witness said that he did and that he would use the knife. She gave further evidence that Jerry Som Altus was not her boyfriend and that because of the knife and his reputation she was scared of him and she went with him.

In re-examination she confirmed that she saw the two accused armed with a bush-knife each. Furthermore, in her re-examination she said that she and her sister were afraid because these two accused had a reputation of being bad people as they rape women, steal things and kill people.

This witness was also in my view gave coherent and consistent evidence. She gave her evidence lucidly and without much hesitation. She was also an impressive witness. Her evidence on the crucial parts relating to the issue of whether there was consent or not was not destroyed in any way at all. Her evidence on that aspect remains intact after cross examination. In my view her evidence is a credible evidence and I accept her evidence as credible and truthful.
6th January, 2003

The next incident is alleged to have occurred on the 6 January, 2003 involving the accused, Jerry Som Altus and Silas Kodong. In order to prove its case the State called the three complainants, namely Lonse Podi, Andau Samkoi and More Samkoi who gave sworn evidence.

The first witness was Andau Samkoi. Her evidence relates to the incident of the 6 January, 2003 relating to the accused Jerry Som Altus. This incident occurred at a place called Paradise located on Long Island. This witness gave evidence in a hesitant manner and with some probing from the prosecutor. It was obvious to me that she was an unsophisticated villager who may have found it difficult to recount what had happened.

However, her evidence eventually came out. In summary this is what she said. She told the court that the incident occurred at or near Bruno’s place at Paradise involving herself, Lonse Podi and More Samkoi. They had gone there that day to see the member from that island called Thomas. She said that they had returned from seeing Thomas and went ashore at Bruno’s place to use the toilet. After using the toilet as they were walking back towards the canoe, the accused who was standing some distance away saw them and swore at them. She said that after swearing at them, he came armed with a bush-knife and asked her to go with him to the bush. She said that he told Lonse to go first followed by More and she came last followed by Jerry Som Altus and Sailas Kodong following at the rear armed with bushknives. She said that these two accused then told them to go with them to the bush located near the village and in the bush these two accused had sexual intercourse with them. She said that Som Altus had sexual intercourse with her. She said that she was afraid of Som Altus because he had a reputation of assaulting and cutting people. She said that after Som Altus had had intercourse with her, he threatened her not to go and spread the news about what had happened.

I accept her evidence as I found that she was telling the truth. I accept her evidence as credible as I find that there is no reason or motive for her to lie to the court about the incident.

The next witness relating to this incident was More Samkoi. Her evidence is similar to the evidence of the first witness. Her evidence is that on the afternoon of the 6 January, 2003 she, Lonse Podi and Andau were returning after seeing Thomas at Matapor village. As they were on their way home Andau and Lonse wanted to use a toilet so the three of them went ashore on the canoe. As they were trying to go back to their canoe they heard some boys shouting and swearing at them and telling them to go back to the shore. These boys then asked them for some lime and one of the boys came forward armed with a knife and told them that they had their own lime. She said that Som Altus then came and held on to the outrigger of the canoe and pulled the canoe up onto the shore. He then told the three girls to go with him. She said that then Lonse, herself and Andau went ahead followed by Som Altus and Silas Kodong. She said that as they were walking along Som Altus told her to go with Silas and he, (Som Altus) would go with Andau Samkoi. She told the court that both of the men were armed with bush-knives. She said that she and Silas Kodong went into the bush and there he cut some leaves and made a bed. He then told her to sleep on the leaves and out of fear she followed his instructions and took off her clothes. She said that Silas Kodong was not her boyfriend but she and the others were scared of Som Altus so they merely followed their directions and orders. She said that Silas Kodong was armed with a knife and she was scared that she went ahead and had intercourse with him. She also told the court that after the incidents, Som Altus and Silas Kodong told them not to spread the news and tell anyone about what had happened to them that day.

In cross examination it was put to her that she and the other two girls had sexual intercourse with the two accused because they were afraid of the two accuseds. She said that, yes they were scared that is why they followed their orders. The question was repeated in cross examination and the witness confirmed that she and the other two girls were scared of the two men and that if they did not agree, Som Altus would do anything to them. She also said that they were scared of Som Altus because of his reputation and also because they had seen him attack a Siassi man on Long Island. It was put to her that Som Altus did not force her to have sexual intercourse with him and Lonse Podi. However, she said that that was false as they were threatened and forced to have intercourse with him.

I was impressed with this particular witness. She spoke confidently and answered all the questions put to her quite confidently. I find her to be a credible and truthful witness. I accept her evidence.

The next witness relating to this incident was Lonse Podi. Her evidence is similar to the other two witnesses. She said in her evidence that after seeing their member, they were returning home and at Paradise village they went ashore for herself and Andau Samkoi to use the toilet. She said that More was on the canoe. After being to the toilet, they were about to get onto the canoe when they heard some boys calling at them. She said that they looked back to the beach and saw Som and Silas who were armed with two knives. She said Som then asked the three them to pull their canoe up on the beach. They were scared and they just stood next to their canoe. As they were standing Som came and swore at them and pulled the canoe up onto the beach. He then asked them for some lime and Lonse Podi was about to give him her lime when he told her that he had his own lime with him. He then swore at them again and went and held onto the outrigger of their canoe and told the three girls to pull their canoe up onto the beach. He then swore at them again and told the three girls to go up to Paradise village. She and the other two girls then went to the village and then Som told them to go to the plantation. She said that she went ahead followed by Andau and More and Som and Silas came at the back armed with two bush-knives. She told the court that the three of them went to the bush and Som once again swore at Silas and told him to go with More and the witness and Andau were to go with Som. She said that Som again swore at herself and Andau and told her to have sex with him. He was armed with a bush-knife and swore and ordered her to lie down. She said she was scared of him. He took off her clothes and then had sexual intercourse with her. She said that after he had finished with her, she and he then went to the beach where he told them not to spread the news and that if they spread the news he would come to their village and destroy their village. She told the court that they were afraid of Som because he had a bad reputation and out of fear of their lives they followed his instructions. She also said that they were all afraid of both Som and Silas. She said that in addition to Som’s bad reputation both Som and Silas were armed with bush-knives that day and they were afraid and scared of them.

In cross examination it was put to her that Som did not force her to have intercourse with him. She told the court that that was not true and that Som had in fact ordered her to have intercourse with her. It was further put to her that Som had asked her to have intercourse with her and she refuted that. She said that neither she nor the other two girls agreed and that they were fearful because Som swore at them and threatened to cut them and was armed with a bush-knife. She also said in her cross-examination that she did not consent to have sex with Som and that she had sexual intercourse with him because he had sworn at her and the other two girls and threatened her and others. In effect she said that she had intercourse with them out of fear of her life.

I also accept her evidence. She gave evidence fluently and confidently. Her demeanor was impressive and I accept her evidence as credible and truthful. I find that she is a witness of truth and I accept her evidence.

18th January, 2003

The next counts relate to the accused, Jerry Som Altus and Nogotam Hilia who were alleged to have raped the prosecutrix, Galoa Kapi on 18 January, 2003. In relation to this incident Mr Ruarri called the prosecutrix, Galoa Kapi who gave sworn evidence. She gave her evidence in Pono language. She comes from Matapor village on Long Island and she has never been to school. In her evidence she told the court that on the 18 January, 2003 she was in her village when three men led by Som went to her area. At the time her husband and son had gone to their garden. She said that when they arrived at the village, the other two men walked past her but Som Altus pushed her and told her to go with them. He forced her to go with her and she was afraid. She said that Som also swore at her and then he pushed her down on the ground took of his trousers and had sexual intercourse with her. She said that after Som had intercourse with her, Nogotam Hilia who was armed with a bush-knife came and had intercourse with her. She told the court that they threatened her not to tell her husband about what had happened. She said that because of the threats she did not tell anyone about the incident till some time later when the community mobilized and apprehended Som and the others. That’s the time she came forward and told the other people about the incident. She said that the other two men who were with Som that day were Nogotam Hilia and Salum Kodong. She said that she was scared of her life because the three men were armed with bush-knives. She also told the court that she was scared of telling her husband of the incident because she was afraid that if she told him he might attack her and kill her. That is why she waited until when Som was apprehended when she told him.

In cross examination it was put to her that Som did not force her to have intercourse with him. She repeatedly said that he had sworn at her and had threatened her and that she was in fear of him because of his reputation as a bad person. She said that he was a rascal and said that he goes around killing people, raping them and stealing things from other people. She said that because of these he had a bad reputation and she was fearful of him that day.

It was put to her that she had agreed to have intercourse with Nogotam because Som had intercourse with her. She said that she rebuked Nogotam because she usually fed him and she found it difficult that he could do this to her. It was also put to her that because Nogotam has seen her having sex with Som she was scared that he might tell her husband about the incident and that was the reason she had intercourse with him. She said that was not true and that they told her not to tell her husband about the incident. She also told the court that they had threatened her and told her that if she told her husband about what they did to her they would kill her. She also said the Nogotam Hilia was also armed with a bush-knife and she was scared of her life.

It was repeatedly put to her that she had agreed to have sex with Som and Nogotam that day and that is why she did not tell anyone about the incident soon after the incident. She said that she was scared as the three of them were armed with bush-knives and out of fear of her life she had intercourse with each of the men. In cross examination she was further asked why she did not tell her husband. She said that they had threatened her and told her not to tell her husband about the incident and that if she told her husband they would return and kill her. That is the reason she did not tell her husband.

2nd February, 2003

The next count relate to Jerry Som Altus and Bart Issaiah allegedly raping the prosecutrix, Daina Yapa Powi on the 2 February, 2003. The evidence relating to this incident came from the prosecutrix and her brother in law. This witness was a confident witness who gave evidence confidently and with clarity. Her evidence was that Som and Bart Issaiah had raped her on the 2 February, 2003. She identified them both in court. She pointed out each of the two accused in court and said that they both come from Long Island. She said that the incident happened at or near the Top Up school close to the base camp on Long Island. In summary her evidence was that on the morning of the 2 February, 2003 she, her husband and others had been working at the airstrip. She left her husband behind and was on her way back to their home to leave the grass knife and to get a bush knife and come back. As she was on her way Bart met her. Som held her hand and ordered her and pulled her to the bush. He told her to give her grass knife to Bart Issaiah. He then swore at her and told her that if she did not give the grass knife to Bart, he would use the knife to cut her. He then put that knife around her neck and so she followed his directions. She said that Som was armed with a bush knife and Bart Issaiah had a grass knife and followed them. She said that as they were walking, Som swore at her and told her to suck his penis but she refused and he threatened her with a knife. He repeatedly told her to suck his penis. She did that until his penis was erected and he then had intercourse with her. After he had finished having sex with her, he told her to lie down and told Bart to have sex with her and told her that if she refused they would cut out her vagina. Then Bart had sex with her and after that they threatened her and told her not to repeat or tell anyone about what they had done to her. He threatened her by telling her that if she reported the matter he would shoot her and her husband. She also said in her evidence that she was fearful of Som and Bart Issaiah. She said that after the two men had left she went to her house and told her in-law, Sam and showed him where they had raped her. They then went to the airstrip and told her husband. She said that she also took her husband to the scene where she had been raped and told him what these two accused had done to her. She too confirmed that she was in fear of her life when the two men confronted her that day.

In cross examination it was repeatedly put to her that she had agreed and had consensual intercourse with the two accused. She repeatedly refuted that suggestion and told the court that each of them were lying and that both of them were armed with dangerous weapons and out of fear her life she allowed them to have intercourse with her. She said that at no time did she agree or had agreed to have intercourse with either of the two men. It was also repeatedly put to her that neither of the two men forced her to have sexual intercourse with either of them. Once again she refuted this and said that they were lying and they had in fact threatened her with knives. She said that Som is known criminal on the Island and she was scared and she allowed him to have sexual intercourse with her.

I found this witness to be lucid, confident witness. She gave evidence confidently and answered all questions put to her confidently. In my view she is an impressive witness. I find her evidence to be credible and truthful. I accept her evidence.

The final witness for the State was Sam Luke. He comes from Tarairip village on Long Island. His evidence was that on Wednesday 2 February, 2003 he was at his house, his sister in law, Yapa came and told him of what Som Altus and Bart Issaiah had done to her a short while back. He said she told him that the two men had played with her and told her to suck their penises and hold it. He said that when he first observed her he observed that Yapa’s clothes were torn. After hearing that he said he and Yapa went back to the airstrip told her husband and they all returned to the village. At the village Yapa repeated the incident and told the incident to the villages leaders.

In cross examination he confirmed his evidence that her clothes were torn and she was nearly naked. Despite attempts by Ms Turi to discredit him, he maintained his evidence that when she arrived her clothes were torn and she was nearly naked.

I accept this witness’s evidence of his observations of the conditions of the prosecutrix that day. Moreover, he gave evidence of what the prosecutrix told him. His evidence corroborates the testimony of the prosecutrix of the incident. I accept his evidence because I find there is no motive for him to lie to the court.

Three of the accused namely, Jerry Som Altus, Nogotam Hilia and Bart Issaiah gave un-sworn evidence. I propose to set out their evidence also in a chronological sequence.

4th January, 2003

This incident involves the accused, Jerry Som Altus and Bart Issaiah. Jerry Som Altus said in his evidence that on that morning as he and Bart Issaiah were sitting on a point called Tetekone they saw Gidigidi, Kalem Kasiene and another small girl arrive in a canoe. He called out to them and told them to come to them. The three girls were in a canoe and they paddled to the shore. He and Bart Issaiah then asked them where they were heading for. He said he then asked them if Bart and he could have sex with them. He said that when he asked, he was not armed nor was Bart. He said the only bush knife they had was left with his basket near the roots of the tree where they had been sitting. He said that when he asked them to have sex with them, Kalem had smiled and looked at them but Gidigidi turned her back to them. He said that he then gave them betelnut and Gidigidi had a small knife which he asked her to give it to him. He took the knife away from her. Thereafter he told Bart to take Kalem away and have sex, whilst he took Gidigidi away and had sex with her. He said that after he had sex with them they returned and let the two girls leave.

Bart Issaiah’s evidence relating to this particular incident is similar to the evidence of Jerry Som Altus. He said that as he and Jerry Som Altus were sitting at the point smoking and chewing betelnut they saw Kalem and her sister coming in a canoe with a small girl. The girls came to the shore and were trying to pull up the canoe and he and Jerry Som Altus went and helped them pull up their canoe. There Jerry Som Altus told them that they would have sex with them. They gave betelnuts to them to chew. Thereafter Jerry Som Altus went with Gidigidi Kasiene and he and Kalem Kasiene went into the bush. He said that in the bush he did not force her but she removed her clothes and lay down and he had sex with her. After having sex they returned and they left Kalem and Gidigidi who then left them and went away.
6th January, 2003

The allegations here relates to Jerry Som Altus committing rape upon Lonse Podi and Andau Samkoi and Silas Kodong committing rape upon More Samkoi. In relation to these allegations, Jerry Som Altus gave the following account in his unsworn statement. He said that on that day, it was a daytime and he and Silas were going from Matapor village to Pakai village. As they were going small rain came down and so they took shelter in a house-wind at Paradise village. They sat in that house-wind and made a fire. As they sat they saw a canoe coming in to where they were. As they were watching two women came out and they went somewhere. Sometime later the two women came back. These two women were Lonse Podi and Andau Samkoi. He said that as they were approaching their canoe he shouted to them and walked to them and asked them for lime. As they were pulling their canoe he told them to pull their canoe up to the shore. Later they chewed betelnut and then he told them to leave their canoe and go and have sex. He told them not to be afraid as he would not do anything to them. They then went ahead and Silas and More had sex whilst he had sex with Lonse. He said that he did not remove her clothes and that she had removed them herself. He said that after having sex with Lonse he could not have sex with Andau. He said that after that they all left and More and Lonse had some betelnut. After that they cracked some jokes and then they left.

18th January, 2003

The allegations here are that Jerry Som Altus and Nogotam Mark Hilia raped Galoa Kapi. In relation to this both accused gave unsworn statements and these are as follows.

In relation to this incident Jerry Som Altus gave an un-sworn statement. Jerry Som Altus confirmed that they met the prosecutrix that day. His explanation was that, as they were on their way to clean up some land they had to go past Galoa Kapi’s residence. On the way as they crossed a small creek they met the prosecutrix. He said that he went ahead and talked to her while the other two men followed him and then they passed him. They crossed the creek and went to the other side. He said that whilst talking to her he asked her to have sex with her and she threw the grass knife away under a coconut tree and she went to the small bush next to the creek and he followed her. He said that she went ahead and he followed her and she then bent down and he lifted her skirt and had sex with her. He said that after he finished Michael arrived at the scene and he then left her and he did not know what happened thereafter.

Nogotam Mark Hilia’s evidence was that he, Som and Mark were traveling together that day. As they were walking he and Mark walked past and went ahead. He said that he stood on the side and saw Galoa Kapi on the other side with a knife. She walked into the bush close to the creek and she went ahead and Som followed her. He said he then followed both of them. He said he had no knife and as he followed them in he looked and saw Galoa was lying down and Som having sex with her. When he saw them having sex he made up his mind to report them. According to him as he stood Galoa saw him and told him to have sex with him and not to go and report the matter. He therefore went and had sex with her. He said that after having sex with her she told him not to report the matter. Thereafter he left her and he and the other two including the accused, Som Altus went away from the scene.

Both Jerry Som Altus and Bart Issaiah gave un-sworn statements relating to these incidents. In relation to this count, Jerry Som Altus in his unsworn statement stated the following. He said that before the incident he and Bart Issaiah were on their way to Bokbok to see a land mediator. Along the way they met the prosecutrix near an old classroom near the base camp. When he saw her he was angry with her and he swore at her. He asked her why she and the other women from the village had been gossiping about land. She denied gossiping about it and said that she was not involved but the other women in the village were involved. He then asked her to have sex with him and she then handed the grass knife over to Bart Issaiah. She then led him and Bart Issaiah into the bush. He said that they left Bart Issaiah in the old classroom and he and the complainant walked some distance and he told her to have sex him. He confirmed that he was carrying a bush knife with him but he did not threaten her. He said that he put the bush knife down pulled his zipper down and told her to suck his penis. The complainant then sucked his penis and she then removed her clothes. He then had sex with her. According to him, after he had sex with her, she asked where Bart was. He said that she asked him not to go and report the incident. He then told her that if Bart does’nt have sex with her he might report the incident. Then she told him to go and tell Bart, so he went and told Bart to go and have sex with her.

Bart Issaiah said that Jerry Som Altus went and told him to go and have sex with the prosecutrix. He therefore went and found her lying naked on the ground. He took off his clothes and had sex with her. He said that he did not say anything to her and that he did not swear or threaten her. He said that after he had finished, he went back and he and Jerry Som Altus then left the scene.

DECISION

I have since the trial was completed, considered carefully all the evidence given in this trial and the submissions that have been made by the counsels. Ms Turi, counsel for the accused submitted that as far as the three accused, Jerry Som Altus, Bart Issaiah and Nogotam Mark Hilia are concerned, the acts complained of were consensual ones. She submitted that I should accept their unsworn evidence and make such a finding. She submitted that except for Daina Yapa Powi, there were no recent complaints made by the other prosecutrixes and that there were any corroborative evidence. She submitted that the other prosecutrixes came forward with these stories of being raped by the three men was after a big fight.

She further submitted that there were some inconsistencies in the evidence between the complainants relating to the incident on the 6 January, 2003. She submitted that Andau Samkoi said that she had been raped by Jerry Som Altus but Lonse Podi did not give any evidence of that, although More Samkoi says that Jerry Som Altus did took Andau and Lonse away.

She submitted that the court should be cautious in accepting the evidence of the complainants because there was no corroborative evidence independently supporting the evidence of the complainants except of course the evidence relating to Daina Yapa Powi. She submitted that while the accused had given unsworn evidence and that as a general principle, little weight can be given to those, nevertheless the court should consider all the evidence carefully.

Mr Ruarri has filed written submission and I have read those carefully. He submitted that all the evidence from the prosecutrixes show that they were fearful of Jerry Som Altus and his accomplices. They were fearful because Jerry Som Altus had a reputation of being a bad person and of being "rascal" on the Island. They were fearful because in all the incidences the accused were armed with bush-knives and threatened the victims to submit to sexual intercourse.

He submitted that there was corroborated evidence. First each of the victims corroborated each other. Secondly the three victims namely, Andau, More and Lonse all corroborate each other as to what had happen that day. Daina Yapa Powi’s evidence was corroborated by her brother in law. He submitted that the court should not give any weight to the unsworn evidence of the accuseds as it conflicts directly with the sworn evidence of the State witnesses. He relied on the case of R v Phillips Boike Ulel [1973] PNGLR 254.

He submitted that the State witnesses gave credible and truthful evidence. He further submitted that the prosecutrixes all corroborate each other. They gave credible evidence. They had no motive to lie.

From all the evidence there is no dispute that each of the accuseds had sexual intercourse with each of the prosecutrix on the various dates contained in the indictments. The only issue before me is whether the various incidences of intercourses were by consent or not.

On this issue I have already set out in some detail the sworn evidence of each of the prosecutrix’s and other State witnesses and the unsworn evidence of each of the accused relating to each incident.

The state of the evidence at the end of all the evidences comprised on the one hand, the sworn testimony from the State’s witnesses and on the other, the un-sworn statement of the accuseds’ from the dock.

It is trite and fundamental settled principle of law that an un-sworn statement, though is evidence in the case, does not have the same weight as sworn evidence. R v Philip Boike Ulel (supra).

There is now a rule of practice in this jurisdiction that corroboration is necessary in rape cases in some material particular by other evidence implicating the accused person, that is evidence which confirm commission of the offence and the identification of the accused person as its perpetrator. It is not necessary that it should confirm the prosecutrix in every detail of the crime .. R v Yoka Kiok 1970 No. 607.

While it is not a requirement of law that the prosecutrix’s version be corroborated, it is nevertheless the general rule of practice that in cases involving an issue of consent there should be evidence corroborating that of the prosecutrix. For there to be corroboration there must be evidence independent of the complainant, which confirms in some material particular not only the evidence that the crime was committed, but also that the prisoner committed it. To look separately at each element set to constitute corroboration may lead to error, particularly as corroboration need not be, and rarely is, direct evidence that accused committed the crime. It may be merely circumstantial evidence of the accused connection with the crime. Mere opportunity to commit the crime does not provide corroboration, yet taking the circumstances surrounding the opportunity, there may be of such nature as to lead to the inference that it was probable that advantage would be taken of the opportunity. External evidence concerning the nature of the place and circumstances under which sexual relations admittedly occurred, may provide corroborated evidence, of a circumstantial type, of lack of consent, even though the only direct evidence thereof is from the complainant: The State v John Kalabus & Ita Sanangkepe [1977] PNGLR 87.

Furthermore, the fact that there is no fresh complaint by a woman alleging rape is not evidence of consent.

In Didei v The State [1990] PNGLR 458 at 460 – 461, Kapi DCJ as he then was Sheehan and Salika JJ said:

"There is no need of a "formula" type of pronouncement regarding corroboration when there is in fact obvious and substantial corroboration, and a trial judge points to it as being relied on to support a prosecutrix’s story. But when there is no corroborating evidence the warning must be given and recorded."

In the present case as I have alluded to earlier, there is no doubt that each of the accused had sexual intercourse with each of the different complainants on the various dates. The only issue is one of consent. In so far as this issue is concerned the State’s witnesses who were the complainants gave sworn evidence. Each of them gave detailed evidence of the incidences involving each of the accuseds. They refuted suggestions that the acts complained of were consensual ones. Each of the complainants gave sworn evidence relating to each of the incidences involving each of them. Each of the accused gave unsworn evidence and confirmed the incidences. Each of the accused confirmed that they had sexual intercourse with each of the accused on the date alleged. The only exception is the incident involving Jerry Som Altus of the 6 January, 2003 relating to Andau Samkoi. In relation to that, both Andau Samkoi and Lonse Podi gave sworn evidence that Jerry Som Altus did have sexual intercourse with each of them that day. Jerry Som Altus on the other hand said in his unsworn evidence that after he had sex with Lonse Podi he was not in a position to have intercourse with Andau Samkoi. According to him he did not have intercourse with her. However, as his evidence is un-sworn I give little weight to his evidence. On the other hand I accept the evidence of Andau Samkoi. She gave sworn evidence and was tested in cross examination. Her evidence was neither shaken nor destroyed in any way at all. I accept her evidence and find that Jerry Som Altus did have intercourse with her and that it was not a consensual one.

Looking at all the evidence I give little weight to the un-sworn evidence of each of the accuseds. I accept the evidence of each of the prosecution witnesses who have given sworn evidence and whose evidence in my view have not been discredited in any way at all.

With the exception of the case involving Galoa Kapi, in my view the evidence of each of the complainants corroborates each other. These incidents were not isolated incidents. A number of victims were involved in some of the incidents.

In relation to the incident involving Galoa Kapi, I also accept her evidence. I am of the view that whilst there is no independent corroborative evidence supporting her version, nevertheless I am of the opinion that the circumstances under which the offence was committed corroborate her evidence. The victim was alone near her home when three armed men who have bad reputations met her. Furthermore, I am of the view that the false evidence given by the two accused, Jerry Som Altus and Bart Issaiah lend support and corroborate her evidence that she was raped. These circumstances corroborate her evidence.

Looking at all the evidence from the beginning to the end and putting all the bits and pieces together, I am of the opinion that they all fall against each of the accuseds. I am satisfied that the State has proved its case beyond reasonable doubt on each indictment. I therefore find each of the accuseds guilty as indicted on each count.

Silas Kodong has pleaded guilty. I have read his depositions in his file. I am satisfied that on all the evidence it is safe to accept and confirm his plea of guilty. I find him guilty and convict on one count of raping More Samkoi on the 6 January, 2003.
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LAWYER FOR THE STATE : PUBLIC PROSECUTOR
LAWYER FOR THE ACCUSED : PUBLIC SOLICITOR