|
|
Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO 883 OF 2004
THE STATE
V
PETER KAUMU UMA
Kimbe: Kawi, J
2010: May
CRIMINAL LAW - Indictable offences- sexual offences- section 347(1) of the Criminal Code - Definition of rape- aggravating circumstances- presence of another person- Use of a dangerous and offensive weapon to hold up complainant- Aggravating circumstances not pleaded in indictment- Elements of the crime of rape under section 347(1) of the Criminal Code- Accused previously had sexual intercourse with prosecutrix on four different occasions, but that does not prove consent- complainant freely and without compulsion admitting sexual intercourse at material time, and admitting such sexual encounter was consensual and not rape.- corroboration not a requirement in sexual offences - Prosecutrix freely admitting accused still her lover and boyfriend– Element of Consent not proven beyond reasonable doubt by the prosecution- Sexual intercourse at relevant time was done with the consent of the prosecutrix –Complainant was a willing participant in the act of sexual intercourse at the material time - accused found not guilty of rape – Accused discharged and acquitted.
Cases cited:
The State –v- Zesis Lahu [2005] N285
SCR No. 1 of 1980, Re S. 22 of the Police Offences Act [1981] PNGLR 28,
In SCR No. 2 of 1980; Re: S. 14 of the summary Offences Act [1981] PNGLR 50
Counsel:
Mr C. Sambua, for the State
Mr R. Awalua, for the Accused
DECISION ON VERDICT
18th May, 2010
1. KAWI J: INTRODUCTION: The accused is charged with one count of rape of one MGG contrary to Section 347(1) of the Criminal Code on the 15th of April 2004 at Darava Hamlet of Pangalu village, Talasea, West New Britain Province. He pleaded not guilty to the charge upon arraignment.
THE STATE ALLEGATIONS
2. The State alleges that on the 15th March 2004, the prosecutrix MGG was at her garden to weed at Davava village, Talasea District. At about 2:00 pm, she stopped weeding and went to the nearby bushes to collect mustard leaves for chewing betel nut. While she was in the bush she was confronted by the accused Peter Kaumu Uma and another person namely Becho Malala Uma who hid in the nearby bushes and came out and held her up with a bush knife they were carrying. They ordered her to undress and told her not to shout or call for help. She got scared so she followed what she was ordered to do. After completely undressing she was ordered to lie on the ground and the accused Peter Kaumu Uma was the first to penetrate her by inserting his penis into her vagina. After the accused finished having sexual intercourse with her, his friend Becho Malala Uma, was then in the process of having his turn. He manifested that intention by undressing and lying on top of her naked.
3. However before he could penetrate her, he was disturbed by the uncle of the victim one Bonifas Lagote Goru, when he stumbled upon them at the scene of the sex. Both the accused, Peter Kaumu Uma and Becho Malala Uma ran away, leaving the victim behind. The State alleges that when the accused Peter Kaumu Uma had sex with the prosecutrix MGG, he sexually penetrated her by inserting his penis into her vagina without her consent.
ARRAIGNMENT
4. Upon arraignment, the accused admitted having sex with the prosecutrix but he says it was sex with her consent. He maintained that the prosecutrix was his girlfriend and the act of sexual intercourse they had was consensual. A plea of not guilty was accordingly entered against the charge.
STATE EVIDENCE- The evidence of the Prosecutrix
5. To sustain those allegations the State called the prosecutrix one MGG, to give evidence. The prosecutrix gave evidence on oath. She stated that on that day (ie 15th March 2004) on a Monday morning she went to the garden to weed. At about 2:00 pm she wanted to chew betelnut and so she went into the nearby bushes to collect some mustard leaves to chew betelnut. She was shocked when she saw Peter Kaumu Uma and Becho Malala Uma came up to her with a bush knife in their hands. This was about 2:00 pm in the afternoon. They held her up with the bush knife and told her to remove her clothes. They told her not to shout or call for help. She did as ordered. She was also ordered to lie on the ground which she did. The accused then proceeded to have sex with her. After he had finished Becho Malala Uma was then trying to have his turn in having sex with the prosecutrix. He laid on top of her naked when Bonifas Lagote Goru, the uncle of the prosecutrix stumbled upon them. When Boniface Lagote Goru came onto the scene, both Peter Kaumu Uma and Becho Malala Uma ran away. In cross-examination she maintained that she had never at anyone time had sex with Peter Kaumu Uma prior to the 15th of March 2004. She also maintained this right throughout the trial that although Peter Kaumu Uma and herself are from the same village, Peter Kaumu Uma was never her boyfriend. She also stated that she never consented to having sex with either Peter Kaumu Uma or Becho Malala Uma. She only gave in to having sex with Peter Kaumu Uma because she was scared of the knife being used to inflict injuries upon her. Otherwise she says she would not have given into having sex with the accused.
6. The State then closed its case after the prosecutrix gave evidence. The State elected to call only one witness, which is the victim herself.
Materials Tendered in By Consent
7. Apart from calling this one witness, the State also relied upon other evidentiary materials which were tendered in by consent of
both parties.
These evidentiary materials are as follows:
(a) Record of Interview:
– Original handwritten-Pidgin version – State Exhibit 1
– Typed English version – State Exhibit 1(a)
(b) Medical Report of the victim – prepared by the Health Extension Officer – Dominic Kaimo of the Kimbe General Hospital – State Exhibit 2.
The Medical Report is dated – 16th March 2004
(c) Statement of Detective Senior Constable Samson Fanaso dated 8th April 2004 – State Exhibit 3.
(d) Sketch of the scene of the rape incident attached to the Statement of S/C Samson Fanaso – State Exhibit 3(a).
(e) Statement of Policewoman Detective Senior Constable Rhema Luckie – State Exhibit 4.
(f) Statement of Detective Sergeant Thomas Ombu – State Exhibit 5.
(g) Statement of Darius Gorea – State Exhibit 6.
DEFENCE CASE
8. After the State closed its case, I explained to the accused the options available to him at this stage. This included:
(a) Making a no case to answer submissions.
(b) Exercising his constitutional right to remain silent;
(c) Giving unsworn statement from the dock.
(d) Giving sworn evidence under oath.
MEDICAL EVIDENCE
9. Immediately after the alleged rape incident the complainant victim MGG was taken to the Kimbe General Hospital and underwent a medical examination. The medical examination was conducted by Mr Dominic Kaimo a Health Extension Officer the very next day on the 16th March 2004. Medical Examination revealed the following:
"Examination: Female in distress; Shy.
Per Vaginal Examination': - semen seen at vulval region;
- Hymen obvious torn, rugged.
- Small scratch at vaginal opening and peri anal region.
High vaginal swab for laboratory examination reveals;
Wet Prep - Moderate to many epithelial cells.
- # spermatozoa seen
G Stain - Many epithelial cells with plenty gram positive rods seen.
From the above findings there was obvious sexual intercourse."
10. The medical evidence is consistent with the admission by both the accused and the prosecutrix of sexual intercourse or penetration taking place. Apart from the torn hymen and the small scratch at the vaginal opening and peri-anal regions, the medical evidence does not reveal any other physical injuries to the vaginal regions.
DEFENCE CASE
11. The accused after consultation with his counsel elected to give evidence on oath and here is a summary of his evidence:
Evidence of Peter Kaumu Uma – The Accused
12. The accused is a single male from Davava village. Davava village is a hamlet of the main Pangalu village. On the 15th of March 2004, he was in Davava village. On the previous day, ie the 14th March 2004, both the accused and the victim hatched a plan to meet in the complainant’s garden and have sex. According to the accused, MGG the prosecutrix was his girlfriend at that time. The plan was to meet her at the garden at about 1.00 pm. The accused then proceeded to the garden as planned. He says that when he arrived in the garden he met the prosecutrix as planned and then immediately proceeded on to having consensual sex as initially planned. He maintains that they were still engaged in the act of sexual intercourse when Becho Malala Uma stumbled upon them in the bushes. When Becho Malala Ume stumbled upon them, they were still engaged in the act of sexual intercourse. The accused says that he did not know what Becho Malala Uma did as he was walking away from Becho Malala Uma. He further says that he was ashamed and embarrassed because he was completely naked in front of Becho Malala who after all was his elder cousin brother. But the accused says that he felt ashamed and embarrassed as he was completely naked in front of Becho Malala Uma who was his elder cousin brother. He left the victim lying on the ground naked and was walking away when Bonifas Lagote Goru, the uncle of the prosecutrix arrived on the scene. Upon seeing him, the accused Peter Kaumu Uma and his cousin brother Becho Malala Uma ran away from the sex scene.
13. During a very strenuous, and able but fair cross-examination by the State Prosecutor, the accused maintained that the victim had been his girlfriend over a year and he has had sexual intercourse with her on four (4) different occasions.
The fifth occasion was on the 15th March 2004. They had initially hatched a plan on the 14th March to meet in the complainant’s garden the very next day, ie on the 15th March 2004 to have sex. They were in fact having sex when they were caught by a Bonifas Lagote Goru, the uncle of the prosecutrix. This is the sex incident in which the accused Peter Kaumu Uma is said to have raped the prosecutrix one MGG.
Defence Witness # 2- Felix Moni Giru
14. The second defence witness called was Felix Moni Giru who is related to both the accused and the prosecutrix. The essence of his evidence is that both the accused and the prosecutrix had an ongoing affair as boyfriend and girlfriend. He found this out when one day while he was out in the bush with his dogs hunting for bandicoots, he stumbled upon the two of them having sex in the bushes near the prosecutrix’s garden. As a result of him finding out this sexual relationship he was asked by the prosecutrix to be her messenger or as he puts it, to be a "wireless" for the prosecutrix and the accused. He says that on the night of the day he found them having sex, the prosecutrix gave him K10.00 to go and deliver it to the accused which he did. He says that on many other occasions he had seen only the two of them talking and telling stories. He further stated that both the prosecutrix and the accused had sexual intercourse on four (4) different occasions. The fifth occasion for them having sexual intercourse was on the 15th March 2004, when they were caught and the incident is now being treated as rape.
Defence Witness No. 3 – Mrs Lipile Nuli
15. The third defence witness is a Mrs Lipile Nuli. She is related to both the accused and the prosecutrix. Much of her evidence is based on information which she was told of mostly by her two daughters and therefore hearsay. But there is one aspect of her evidence which is not hearsay but very relevant. She stated that the prosecutrix did freely admit to her and her husband, when the rape allegation became public knowledge, that this alleged rape incident was not rape at all, rather it was consensual sex as the accused was her lover and boyfriend.
ISSUE
16. The sole issue which arise for consideration here is whether the sexual penetration of the vagina of the prosecutrix MGG, by the accused one Peter Kaumu Uma on the 15th of March 2004 was done without her consent?
It is not disputed that there was sexual penetration of the prosecutrix, MGG, by the accused on the 15th March 2004. What is hereby disputed is the issue of consent to have sexual intercourse. The State alleges that sexual penetration was forced upon by threat of the use of a knife. This court is of the view that where the issue is one of consent, the element of penetration is not relevant, that is, it is not necessary for the State to prove penetration as an element of rape beyond reasonable doubt. See The State –v- Zesis Lahu [2005] N285. The case before me here is one such case where both the accused and the prosecutrix admit to having sexual intercourse on the 15th March 2004. The only issue for this court to determine is whether or not there was consent. i.e. whether or not the prosecutrix MGG had consented to having sexual intercourse with the accused on 15th April 2004. As I averted to earlier, penetration is not an issue, but consent is.
THE LAW - ANALYSIS
17. The rule in Criminal Law is that, the legal burden of proving every element of an offence charged lies from the first to the last on the prosecution. This means that the prosecution must disprove any defence or explanation properly raised by an accused person. The rule applies even to negative elements as for instance, absence of consent in rape cases. In SCR No. 1 of 1980, Re S. 22 of the Police Offences Act [1981] PNGLR 28, the Supreme Court said that proof of guilt in criminal cases is that, the onus is on the prosecution to prove each element of the offence charged beyond reasonable doubt. In SCR No. 2 of 1980; Re: S. 14 of the summary Offences Act [1981] PNGLR 50, the Supreme Court said at page 54:
"the main thrust of Constitution s. 371(4)(a) is to place upon a prosecutor the burden of proving the guilt of a person charged with an offence ...By the underlying law, that burden on the prosecutor is discharged only when he proves beyond a reasonable doubt that the defendant is guilty; that is, that the defendant is criminally responsible for the offence charged ..."
18. The offence of rape is created and defined by Section 347(1) of the Criminal Code. It reads;
"347(1)– Definition of rape –
(1) A person who sexually penetrates a person without his consent is guilty of the crime of rape.
Penalty: Subject to Subsection (2), imprisonment for 15 years.
(2) Where an offence under subsection (1) is committed in circumstances of aggravation, the accused is liable, subject to section 19, to imprisonment for life".
19. The crime of rape therefore consists in having sexual intercourse with the woman with intent to do so without her consent or with indifference whether or not she consented. The definition in Section 347(1) contained no words indicating that intent is an element of the offence and so I will not make a finding that intent is an element of the offence.
20. Circumstances of aggravation is also defined under section 349A and it reads as follows:
"S 349A. Interpretation
For purposes of this division, circumstances of aggravation include, but not limited to circumstances where –
(a) the accused is in the company of another person or persons; or
(b) at the time of, or immediately before or after the commission of offence, the accused person uses or threatens to use a weapon; ............"
21. In the present case, the evidence reveals two circumstances of aggravation:
22. However while the evidence of the prosecutrix did disclose the circumstances of aggravation, it was not pleaded in the indictment and so I am not bound to consider it in analysing the rest of the evidence.
23. For purposes of proving consent, Section 18 of the CCSOCAC provides a very useful definition. Section 18 of the CCSOCAC introduces a new Section 347A and Section 347B. Section 347A defines consent in this way:
"347A - Meaning of Consent:
(1) For the purposes of this Part, "consent" means free and voluntary agreement.
"(2) Circumstances in which a person does not consent to an act include, but not limited to, the following:-
(a) the person submits to the act because of the use of violence or force on that person or someone else; or
(b) the person submits because of the threats or intimidation against that person or someone else; or
(c) the person submits because of fear of harm to that person or to someone else; or
(d) the person submits because of fear of harm to that person or to someone else; or
(e) the person is asleep, unconscious or so affected by alcohol or another drug so as to be incapable of freely consenting; or
(f) the person is incapable of understanding the essential nature of the act or of communicating his unwillingness to participate in the act due to mental or physical disability; or
(g) the person is mistaken about the sexual nature of the act or the identity of the person; or
(h) the person mistakenly believes that the act is for medical or hygienic purposes; or
(i) the accused induces the person to engage in the activity by abusing a position of trust, power or authority; or
(j) the person, having consented to engage in the sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity; or
(k) the agreement is expressed by the words or conduct of a person other than the complainant.
"(3) In determining whether or not a person consented to that act that forms the subject matter of the charge, a judge or magistrate shall have regard to the following:-
(a) the fact that the person did not say or do anything to indicate consent to a sexual act is normally enough to show that the act took place without the person’s consent; and
(b) a person is not to be regarded as having consented to a sexual act just because –
(i) he did not physically resist; or
(ii) he did not sustain physical injury; or
(iii) on that or on an earlier occasion, he freely agreed to engage in another sexual act with that person or some other person."
24. Corroboration is also not required in sexual offences. This is specifically provided for in s 22 of the CCSOCAC which is Section 352A of the Criminal Code. It reads:
"New Section 352A
The principal Act is amended by inserting after Section 352 the following new Section.
‘352A Corroboration not Required.
On a charge of an offence against any provision of this Division, a person may be found guilty on the uncorroborated testimony of one witness and a Judge shall not instruct himself that it is unsafe to find the accused guilty in absence of corroboration.’
25. In my view Section 347A(3)(a)(b)(i)(ii)(iii) are very instructive and would assist in determining whether there was consent or not.
DEFENCE RAISED BY THE ACCUSED: ANALYSIS OF EVIDENCE
Did the accused raise any explanation or Defence to this charge?
26. The evidence of the prosecutrix is that she did not physically resist the act of Sexual Intercourse because she was afraid of being hurt or injured with the bush knife that was used to hold her up.
27. The accused on the other hand says that the act of sexual intercourse between himself and the prosecutrix on the 15th March 2004 was not rape but consensual sexual intercourse between two lovers. His evidence is that the prosecutrix and himself had an ongoing boy-girl relationship for over a year at the relevant time. He had previously had sexual relationship with her on four (4) different occasions. On the 14th April 2004, the prosecutrix and the accused hatched a plan to meet in the prosecutrix’s garden the next day which is the 15th of March 2004 all for the purposes of having sexual intercourse. The plan was to meet in the afternoon at about 2:00 pm. The next day on the 15th of April 2004, the prosecutrix left for her garden at about 9.00 am to weed. At about 1:00 pm that same day, the accused went to the garden as planned. He found the prosecutrix MGG and proceeded into having sexual intercourse with her. They were engaged in the act of sexual intercourse in the nearby bushes when the accused’s cousin brother, Becho Malala Uma stumbled upon them. When Becho Malala Uma arrived, the accused felt ashamed and embarrassed, as he was naked. He interrupted his act of intercourse and was walking away leaving the prosecutrix still naked on the ground when the uncle of the prosecutrix Bonifas Lagote Goru arrived. His arrival at the sex scene made the accused and Becho Malala Uma run away.
DEFENCE WITNESS # 2 FELIX MONI GIRU
28. The accused also called one Felix Moni Giru to corroborate his claim of the prosecutrix being his girlfriend. The thrust of Felix Moni Giru’s evidence is that:-
(a) The accused and the prosecutrix were boyfriend and girlfriend.
(b) Felix Moni Giru did stumble across the prosecutrix and the accused having sexual intercourse at one time.
(c) From then on the prosecutrix requested Felix Moni Giru to be their messenger or as the witness puts it "to be their wireless".
(d) In furtherance of this relationship, the prosecutrix had on one occasion given money (K10.00) to Felix Moni Giru to give to the accused.
(e) On more than one occasion, he has seen both the accused and the prosecutrix sitting intimately together and telling stories all by themselves.
(f) Being boy friend and girl friend, both the accused and the prosecutrix had sexual intercourse previously on four (4) different occasions.
DEFENCE WITNESS # 3 – MRS LIPILE NULI
29. The defence also called in one Mrs Lipile Nuli who also gave sworn evidence . Her evidence was mostly hearsay. The only relevant aspect of her evidence are these:
(a) She knows the prosecutrix very well. She is in fact related to both the accused and the prosecutrix. The prosecutrix would refer to Mrs Lipile Nuli as her aunty and her husband as her uncle.
(b) After the alleged rape incident, the father of the prosecutrix took her (prosecutrix MGG) to live with Lipile Nuli and her husband. They welcomed the prosecutrix because she was their niece and she stayed with them in their house.
(c) In the course of her (prosecutrix’s) stay with Lipile Nuli and her husband, the prosecutrix MGG did freely admit to Mrs Lipile Nuli and her husband that the accused was her boyfriend and that she was not raped on the 15th March 2004 as alleged. She freely admitted that the sexual intercourse between herself and the accused on the 15th March 2004 was consensual as Peter Kaumu Uma was her boyfriend.
FINDINGS OF EVIDENCE BY THE COURT
30. The evidence of the accused, Peter Kaumu Uma and Felix Moni Giru that the accused and the prosecutrix had an ongoing boy-girl relationship and therefore had previously been engaged in various acts of sexual intercourse does not in itself prove that the prosecutrix had consented to having sexual intercourse with the accused on the 15th March 2004.
31. The prosecutrix may have in fact freely engaged in sexual intercourse previously. But that is not consent per se pursuant to Section 347A(3)(b)(iii). It may however go towards showing the existence of an intimate love relationship between the accused Peter Kaumu Uma and the prosecutrix MGG which relationship was often consummated by acts of sexual intercourse.
32. There is no dispute that the accused and the prosecutrix MGG did engage in an act of sexual intercourse on the 15th March 2004.
33. The prosecutrix MGG freely and without any form of coercion or compulsion from anyone, or without any form of intimidation being applied by anyone, let alone threats or intimidation by Mrs Lipile Nuli and her husband, freely admitted to Mrs Lipile Nuli and her husband, that the accused was her boyfriend, and that she was not raped on the 15th of March 2004, as is being alleged. The court finds that this uncoerced and voluntary admission is a very credible and reliable piece of evidence.
34. This free admission by the prosecutrix, MGG, in fact calls into question her own evidence and her own credibility and integrity as both a complainant and a victim. The prosecutrix gave me the impression that she was forced to come and allege that this as a rape when in fact it was not a rape at all. She was indeed embarrassed and ashamed to admit that this was a consensual sexual encounter because it was committed in front of her uncle one Bonifas Lagote Goru.
35. The prosecutrix’s evidence that she does not know, Mrs Lipile Nuli and Mr Felix Moni Giru bespeaks of her as not a witness of truth, and one who could not be readily believed and her evidence accepted on face value.
36. The court in fact finds that she told lies when she said she does not know Mrs Lipile Nuli and Felix Moni Giru. In fact the court finds that Lipile Nuli is in fact her aunty and her husband an uncle, but she blatantly refused to acknowledge this. She in fact lied when she said she does not know either Lipile Nuli or even Felix Moni Giru. The court finds that she did in fact spend some time with Mrs Lipile Nuli and her husband when news of the alleged rape became public knowledge. The court finds that the prosecutrix MGG, Mrs Lipile Nuli and Felix Moni Giru along with the accused all come from the same village of Davava. As Davava is a small hamlet of the main village it is quite easy for people to identify and know each other.
37. On the basis of her own free admission I make the following additional findings of fact.
(i) The prosecutrix MGG and the accused, Peter Kaumu Uma had an ongoing boy-girl relationship.
(ii) On the 14th of March 2004, the prosecutrix and the accused hatched a plan to meet in the prosecutrix’s garden the next day i.e. 15th March 2004 to have sexual intercourse.
(iii) In pursuance of this plan, the prosecutrix left for the garden under the pretext of weeding at 9:00 am or thereabouts. Whilst I have been disposed to accept her evidence, the claims of the accused, made as they were and at an early stage to the police cannot be simply brushed aside and lightly discounted. In fact in his Record of Interview with police he admits the act of sexual penetration, but denies that it was done without her consent.
38. The following Questions and Answers reveal this:
Q10. Is it true that you and Becho Malala Uma had gone and raped that girl, MGG on the 15 March 2004 in her garden?
A. It is true, but we both did it according to our friendship.
Q11. Who is amongst you twos that is having friendship with MGG?
A. It is myself.
Q12. That time, who was the person that had, had sex with MGG first?
A. That is myself.
Q19. Have [you] ever had sex with MGG prior to this incident?
A. Yes, she is my girlfriend and [we] usually have sex with her.
Q20. How many times before that you had had sex with MGG?
A. Four (4) times before and while this one is the fifth (5th) time that I was detected and crises arise.
Q24. Do you have anything else to tell me about your charge?
A. Yes, I have witnesses in the village that knows our friendship, one is a female, namely Lipile Nuli and one is a small boy, namely Moni Giru. That is all."
39. The Court finds that these questions and answers between the accused and Police are a very frank description of the events of that day. By his answers the accused Peter Kaumu Uma was being very frank in what he was telling Police.
40. The accused on his part also proceeded to the prosecutrix’s garden as planned. At the garden he caught up with the prosecutrix and the two of them immediately proceeded on to have sexual intercourse. Both were engaged in an act of sexual intercourse when Becho Malala Uma stumbled upon them. It was not part of the plan for Becho Malala Uma to catch up with the accused and the prosecutrix. His stumbling upon them having sex was purely co-incidental but then he tried to take advantage of the situation by furthering his own sexual lust to have sex with the prosecutrix.
41. The court also finds that it was inherently probable that she was a very willing participant in the event of the 15th March 2004. The accused Peter Kaumu Uma and the prosecutrix MGG were engaged in an act of consensual sexual intercourse on the 15th March 2004, when Becho Malala Uma stumbled upon them and seeing the prosecutrix lying naked on the ground, he tried to also have sexual intercourse with her, of course without her express invitation or consent.
42. The prosecutrix succumbed to having sex with the accused without protest or remonstration as a willing participant. The court accepts that throughout this sexual activity, she was not in any real fear and did not show any signs of revulsion. She was not concerned in any way at all to extricate herself from the position in which she found herself in with as little physical injury as was possible. This was because the sexual intercourse was a consensual one and carried out according to the plan hatched on the 14th March 2004.
43. The evidence of the prosecutrix that both the accused, Peter Kaumu Uma and Becho Malala Uma, who hid behind the bushes and then held her up with a knife and forced her to undress and then lie naked on the ground for the rape to be perpetrated is hereby rejected. I find that evidence to be a manufactured and a concoction from the truth by Bonifas Lagote Goru to suit his own purposes. This was a concoction of the truth manufactured by the complainant’s uncle Bonifas Lagote Goru who the court finds forced the complainant to treat this sex as a rape incident.
44. It was Bonifas Lagote Goru, who forced the prosecutrix to treat this as an allegation of rape. The court finds that Bonifas Lagole Goru had a motive to do this. He had an existing land dispute with Peter Kaumu Uma and the events of the 15th March 2004 presented a perfect opportunity for him to get back even with Peter Kaumu Uma.
45. The Supreme Court warning in the case of Peter Townsend –v- George Oika [1981] PNGLR 12 @ page 20 has a lot of bearing and relevance to the circumstances of this case. The Supreme Court made this comment:
" Sexual cases are particularly subject to the danger of deliberately false charges, resulting from sexual neurosis, fantasy, jealousy, spite or simply a girl’s refusal to admit that she consented to an act of which she is ashamed."
46. Similarly the story on the use of a bush knife to perpetrate the alleged rape was manufactured to corroborate and support the allegation of the rape incident. It was manufactured by the uncle of the prosecutrix one Bonifas Lagote Goru to make a consensual sex between two willing lovers look like a rape. And the warning issued by the Supreme Court in Peter Townsend case is directly on point here and adequately summarises the situation here.
47. In the end I find that the sexual intercourse between the Prosecutrix MGG and the accused Peter Kaumu Uma on the 15th March 2004, was a consensual act of sexual intercourse by two lovers, a boyfriend and his girlfriend. The prosecutrix was of course a very willing participant in this sexual activity.
48. I find that the State has not proven the element of lack of consent beyond reasonable doubt. It has not negatived that defence raised by the accused that this was a consensual act of sexual intercourse beyond reasonable doubt.
49. The court finds that the version of the story given by the accused, Peter Kaumu Uma is a far more credible and compelling account of what occurred and what actually occurred.
50. The accused is hereby found not guilty and is acquitted and discharged of the crime of rape under Section 347(1) of the Criminal Code. All bail monies will be refunded upon production of the relevant receipts.
Verdict: not guilty
_________________________________
Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyer for the Accused
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2010/54.html