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State v Minga (No. 1) [2023] PGNC 444; N10590 (19 September 2023)

N10590

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO 948 OF 2022

THE STATE

-V-

DAMUEL MINGA
(NO.1)
Accused

Madang: Geita J
2023: 15^th June; 3^rd, 8^th August, 19^th September

CRIMINAL LAW – Trial - Rape – Not guilty plea – Two counts of Rape-Section 347C(a) Criminal Code. – Issue for trial-general denial.

CRIMINAL LAW – Rape – Evidence – State witness no reason to testify falsely against the accused – Evidence of victim plausible and believable - Section 347C(a) of Criminal Code.

CRIMININAL LAW – Rape – Victim raped with peeled yam on two separate occasions with aggravation.

Cases Cited
Birch v The State [1979] PNGLR 75
State v Michael Rave, James Maien and Philip Baule [1993] PNGLR 85 at 91-92.

Legislation:
Criminal Code Act

Counsel:
Ms. Deborah Ambuk, for the State
Mr. Jethro Kase, for the State
Mr. Nasson Katosingakalara, for the Accused

REASONS FOR VERDICT

19^th September 2023

1. GEITA J: The accused was arranged on two counts of rape, an offence under section 347C (a) of the Criminal Code Act. He pleaded not guilty to both counts. The terms of the Indictment are that on 21^st May 2021, at Marakum village, Rai Coast Madang he sexually penetrated Heslyn Kadum without her consent by inserting a yam into her vagina thus contravening Section 347C(a) Criminal Code. At the time he was armed with a bush knife. As to count two he on 23^rd May 2021, at Marakum village, Rai Coast Madang sexually penetrated Heslyn Kadum without her consent by inserting a yam into her vagina thus contravening Section 347C(a) Criminal Code Act.

At the time he was armed with a bush knife.

2. The complainant gave oral testimony. Five sets of documents were received into court by consent. The documents and exhibits were numbered 1 - 5.

Heslyn Kadum’s evidence

3. She is the victim in this case. She gave testimony of her husband taking her to a garden near the river after an argument on 21 May 2021 and digitally sexually penetrating her with a peeled yam without her consent. As she cried in pain and pleaded with him to stop, he continued to push the yam into her private parts causing her to bleed. When they returned home in the evening, she said my body (vagina) was “bagarap”.

She said because the accused was armed with a bush knife she was scared and could not run away from him into the bushes.

4. The witness said she reported the incident to her cousin sister Linnet Mike. On Saturday 23^rd May 2021 the accused did the same thing to her by pushing a peeled yam into her vagina. She said she managed to escape and reported the incident to the accused’s aunt Janet Sime. She said her husband was a druggist and regularly assaults her when he was high on drugs. The victim described the width and length of the peeled yam to be a medium size yam, indicating the width to be that of a 50t coin with 7 or 8 inches in length.

5. When suggested to her during cross examination that she was assaulted because she was not looking after their marital home and their three children. She denied the suggestion. As to suggesting that she lied to Police about the rape incidents, the victim said, “He pushed yam into my vagina, so I reported the matter to Police.”

Bola Rimur’s statement - (Police Chief Sergeant):

6. He gave testimony of receiving the victim’s complaint of sexual penetration by the accused on 7 June 2021 at the Golden Rice Industries (GRI) logging camp Karkar island, accompanied by Linnet Mike.

7. He said on 12 July 2021 around 4.00 am he went and apprehended the accused at his hamlet within Marakum village and escorted him to the logging camp site for questioning. He was accompanied by another policeman Constable Isika. He said during the brief interrogation the accused admitted committing the two rapes on his wife on 21^st and 23 May 2021.The witness said in his defence the accused said he did what he did to his wife because she was unfaithful to him. He conducted the accused record of interview on 2 October 2021 at Jomba Police Station with Constable Ephraim Weamamberi as corroborator. He said during the record of interview the accused denied penetrating his wife with a peeled yam.

Isika Suamia’s statement - (Police Sergeant):

8. He gave testimony of the victim reporting to police at the logging camp on 7 June 2021 of being sexually abused by her husband. He assisted C/Sgt Rimur carry out the investigation including apprehending the accused at his hamlet on 12 July 2021 for questioning. He said during interrogation the accused admitted the rape allegations and was transported to Jomba Police Station the same day.

Janet Sime’s statement - (Accused’s aunt):

9. In her statement the witness recalled the victim relating to her the story of being sexually penetrated by her husband on two occasions with a peeled yam. She deposed that she was in her garden in the bush on 23 June 2021 around midday when the victim approached her and related her ordeal to her. She appeared to be in distress, she deposed.

Lynne Mike’s Statement - (Victim’s cousin sister):

10. In her statement the witness recalled her cousin sister, the victim calling into her house on 12 June 2021 around 7.00pm in the evening and relating to her the story of being sexually abused by her husband on 21^st and 23^rd May 2021. She related to her the story of her husband push a yam into her vagina on two occasions. She said as a mother she felt sorry for the victim and told her that there were police at the logging camp and volunteered to accompany her to the police at the GRI log camp. The witness deposed that she escorted the victim to the logging camp, and she filed a police complaint and reported the matter to police officer Bola Rimur.

Defence case-Tamual Minga (accused):

11. The accused testified of being a loving husband to his wife, the victim and their three children. He vehemently denied all allegations of rape on his wife on those two occasions. He admitted to assaulting his wife on 21^st May 2021 when he said she was not OK. He said he only assaulted her and only threatened her which caused her to run away and stayed with her cousin until she made those “giaman statements” against me.

12. He said the victim returned to him on 27 May and they lived together. On 12 July her cousin came with police and arrested him. He said he had no idea of what charge and came before the court.

13. During examination in chief the accused said he assaulted her on 21 May 2021 and used those words: “I will push cassava into your vagina”. I assaulted her with my hands, and she ran away to her cousin, when I used those words. Her cousin is called Lynne. He said I have no knowledge of yam being pushed into her vagina. I did not do the same to her on 23 May 2021 and I have no idea. He denied all suggestions of being a druggist.

14. In cross examination he denied all suggestions of raping his wife including being armed with a bush knife during the allegation of rape. He admitted that his wife ran to her cousins’ house due to his assaults but denied pushing the yam into her vagina. He also denied assaulting his wife with a knife on those rape occasions. As to the victim being very emotional in giving her testimony as a result of the allegation of rape the witness said, “That’s not true”.

Issues – Who to believe? Victim or the accused?

15. In trying to assess the truthfulness of the victim I first look at her demeanour, what she stands to lose by coming to court and making a falsehood against her husband and the consequences of their marriage?

16. As to her demeanour she was timid and emotional at times but confidently told her story without wavering. She related the ordeal her husband put her through by detailing in graphic the nature the acts of the digital rapes occasioned on her body by her husband. She maintained her composure during giving her evidence and became very emotional at times as she relived the ordeal in evidence. I am more inclined to believe her version of the events. The accused on the other extreme remained emotionless and defensive, although he maintained that he loved his wife and children so much. The graphic detailing of how her husband raped her appears to be in direct contrast with the characteristics of a kind loving husband. The prize of her bravery in exposing her husband to this dreaded ordeal was to lose out in the varied businesses her husband claimed they both owned and operated. Those businesses however were not substantiated in court and there was no evidence to prove their existence. As to bringing their 9 or 12 years of marriage involving their 3 children come to an end, she has chosen to pay the prize by coming to court and expose her husband of committing these heinous crimes. Might I add here that the taking of one’s husband to court was a very painful experience and not one that married women with young children look forward too but, if not for her bravery and courage she came forward to tell all. I find her courage and bravery exemplary and find her to be a truthful witness.

17. It follows in my finding that the victim’s version of the 2 digital rapes more plausible and believable. Despite being humiliated by coming to court knowing that her losses materially and emotionally were at stake, she took a brave stand to expose this violence. I consider her to be a truthful witness.

18. As to the allegation of the first rape in count one on 21 May 2021 in the bush garden near river Mulni, the date given finds corroboration in the accused’s evidence. The accused admitted assaulting his wife on that date and said he only threatened her that she would push a yam into her vagina. The victim in evidence said after the argument her husband took her to a garden near the river, threaten and forced her to remove her clothes, made her to sit down and open her legs. He then sharpened a yam measuring 7 to 8 inches long with a diameter, of approximately 2 inches and shoved it in and out of her vagina. The witness also gave the location of the crime scene near a river. The river in evidence is called Mulni. Her evidence on where the rapes took place was not rebutted. She reported the rape to her cousin Lynne Mike who accompanied her and reported the matter to GRI Log Camp. Her evidence finds corroboration in Lynne’s statement in exhibit 6.

19. In the absence of any other evidence to the contrary, I find that the victim’s version of being digitally raped near the river by her husband to be truthful and plausible.

20. As to the allegation of the second rape in count 2 on 23 May 2021, the victim said the accused did the same thing (digital rape) to her. This time however she managed to escape from him and reported the incident to the accused’s aunt Janet Sime. Her evidence finds corroboration in Janet Sime’s statement in exhibit 5.

21. As to whether the victim’s version of the second rape is believable, I look at her evidence: She said in evidence on the 23 May 2021 incident she managed to escape and reported the incident to Janet Sime. Janet Sime was in her garden in the bush when the victim came up to her. Ironically, Jennet was the Accused’s aunt and common-sense dictates that she would be the last person to be told about her predicament. It follows that the rape incident will have to be true and daunting on her for it to be reported to the accused’s aunt. I am therefore satisfied and find that the second rape did take place.

22. As to whether the accused was armed with a bush knife, the victim in evidence said she was threatened with a bush knife which the accused denied. In order to establish whether an offensive weapon was used to commit the rape I only have to look at the evidence. The alleged rapes were horrific and very traumatic and can only be executed under duress and with force. Evidence before court is that the victim was assaulted by her husband and threatened with the yam being pushed into her vagina. Furthermore, the undisputed evidence before court from the victim that a peeled yam was used on her. It follows that the only instrument/weapon capable to peeling the yam was some form of sharp instrument. In this case the only sharp instrument capable of peeling a yam happens to be the bush knife. Furthermore, as the victim was led into the garden its common knowledge that a bush knife appeals to Papua New Guineans going to their gardens or going on frolic. I am therefore satisfied that a weapon was used to exert pressure on the victim to succumb to her husband’s evil deeds, a bush knife. The element of aggravation proven. For the moment the element of digital penetration by use of a peeled yam, an object is also sufficient aggravation in my view. The element of aggravation is successfully made out.

23. As to the statements of police officers, they all corroborate that the accused was apprehended on allegations of digital rape by her husband on two occasions and interrogated. The accused admitted the rape allegations during initial interrogations however denied and maintained his innocence throughout trial. It follows that the identity of the accused is not an issue.

24. Counsel of defence on behalf of the accused took issue with count 2 citing insufficient direct evidence of the alleged rape said to have committed on 23 May 2021. He submitted that in the absence of any direct evidence from the primary witness, the evidence of all those witnesses who came to support her lacked corroboration and ought to be disregarded. Similarly, the statements of police witnesses fall in the same category and ought to be disregarded as being hearsay evidence.

25. Counsel of State however submitted that the victim’s evidence and those of her witnesses were credible witnesses and their evidence ought to be believed. Counsel submitted that the State has proven each element of the offence of rape and that the victim’s story plausible and ought to be believed. Her evidence in examination was confidently presented and very emotional at times: (Doherty J in State v Michael Rave, James Maien and Philip Baule [1993] PNGLR 85 at 91-92):

“A women’s consent to intercourse maybe hesitant, reluctant, grudging or tearful...In Papua New Guinea tears can indicate reluctance and even refusal, or at least the will of the person being overborne...certainly it sounds like a person’s spirit has been broken.” (Emphasis mine)

26. Whilst I agree with defence submission that the victim did not directly give detailed account of the rape on 23 May 2021, there is credible evidence from several witness who gave an account of how the victim reached out to them one way or another. For instance, on the second alleged incident of rape, she immediately reported the matter to the accused’s aunt Janet Sime who was in the garden. The witness in her statement deposed that the victim was in distress at the time after the reporting of the second incident of rape.

27. I am therefore satisfied the victims evidence of two rapes and the evidence of corroborating witnesses credible and not hearsay. As to Counsel of Defence suggestion that the second count of rape on 23 May 2021 was not successfully made out because it lacked the intricacies of the crime of rape, I beg to differ on that proportion. Surely you do not expect a frightened sexual assault victim going through the trauma of repeating and reliving the explicit details of her rape in a male dominated courtroom. She said in evidence her husband did the same thing to her however she escaped and related her ordeal to Janet Sime the same day on 23 May 2021. (Birch v The State [1979] PNGLR 75). I find her to be a truthful witness and believe her version of events.

28. The relevant Law:

Section 347C (a). Aggravated Rape.

“Any person who sexually penetrates the vagina or anus or such other body part of another person with any body part, object or implement, without consent –

(a) whilst armed with a dangerous weapon or offensive weapon or

instrument; or..., is guilty of the crime of aggravated rape and

shall be sentenced to death.".

29. To obtain a conviction the prosecution must prove the following matters beyond reasonable doubt:

- the accused sexually penetrated the complainant;
- without her consent.
- with aggravation

Findings

30. Applying the issues before me with the law as it stands, I am satisfied that the accused sexually penetrated the complainant within the meaning of s.347C(a) Criminal Code. It follows that count 1 is successfully proven beyond a reasonable doubt and I find him guilty. Similarly, I find that count 2 successfully proven beyond reasonable doubt and I find him guilty of that count.

Verdict:

31. I find that the accused, Damuel Minga is guilty of two counts of aggravated rape. I convict him accordingly.
Verdict accordingly.

________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused