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Noki, The State v [1993] PGNC 87; [1993] PNGLR 426 (12 August 1993)

PNG Law Reports 1993

[1993] PNGLR 426 - State v Anis Noki 

[1993] PNGLR 426

N1166

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

ANIS NOKI

Mount Hagen

Woods J

11-12 August 1993

EVIDENCE - Corroboration - Community turns in suspects - Weight to be given.

CRIMINAL LAW  - Sentencing - Rape - Pack rape - Victim a young girl - Injuries - Fifteen (15) years in hard labour - Aims of punishment - Elimination and retribution aims.

Facts

The accused was charged with two counts of abduction and two counts of rape, being gang rape. He was brought to the investigating officer by the local councillor and villagers. The issue was whether the handing over of the accused by his leaders and his people was evidence capable of corroborating the identification evidence of the two victims.

Held

N1>1.       The coming forward of leaders and people of the community to hand over the suspects must be duly recognised. If the government wishes to put more responsibility into the hands of the people over law and order and social control, then the courts must assist by recognising the relevance and knowledge of the leaders of the village and community. If the leaders turn in suspects, this is not the end of the case. The charges must be supported by evidence. The turning in supports and corroborates the other evidence.

N1>2.       This was a particularly horrifying and vicious pack rape. Taking into account the youthfulness of one victim, the accused should be locked away from society and punished. The accused should be sentenced to six years imprisonment on each count of abduction and 15 years imprisonment on each count of rape, sentences to be served concurrently.

Counsel

J Kesan, for the State.

M Doiwa, for the defendant.

12 March 1992

WOODS J: The accused, Anis Noki, is charged with two counts of abduction and two counts of rape. The charges stem from the abduction and pack rape of two females S and C on the night of 17 July 1992 just adjacent to Mount Hagen.

The State presents a story of a gang of armed men attacking a settlement behind the YMCA Hall in Mount Hagen in the early hours of the morning, breaking into houses, threatening and stealing from the occupants, and dragging two females out of their house, up away from the village into the coffee gardens, and raping them. The victims later staggered back to their homes, and were taken to the police and to the hospital. The younger victim - S - a school girl aged 13, had to stay in hospital for some days because of the brutal injuries she suffered.

The two victims, in their evidence, name the accused as one of the men involved in the attack and assault. There is no dispute that there was an abduction and rape - pack rapes.

This case becomes a question of identification, as the accused denies being in any way involved in the incident. He does agree that his home village is not far away from the home of the victims, from where they were abducted.

Whilst there are some differences in the evidence of the two victims, that is to be expected. The differences are in some of the finer details of what happened in the house when the intruders broke in. The general story is the same, and they have identified the accused, actually recognised him, as they had seen him around. He lives not far away from them.

The victims did not mention Anis Noki's name in their original statements to the police after the incident, although S said she could identify one of the men. One must remember that statements made to police are usually straight out statements, they are not question and answer interviews. So they do not necessarily contain the whole story or all the detail. The detail often only comes when a person who can see all the surrounding circumstances asks the right questions. Statements are only a narrative as from the eyes of the victim or witness. They are not the story through the eyes of the policeman who is conscious, we hope, of the elements of proof.

The identification of the accused later is not a contradiction, it is a further detail.

In his evidence the investigating officer said that the suspects were named to him and brought to him by the local councillor and villagers. I find this a very important piece of evidence. So, how do I take and assess that piece of evidence?

The Constitution has clearly recognised the overriding importance of the traditional village and community as the main viable asset in the country. The government and other authorities have continually reiterated the consensus nature of PNG society, the communal attitude to ownership or use of assets and land and the communal responsibility for problems. But rarely have the courts been able to give full recognition of this, as the court must always be careful of the rights of the individual, as set out in the Constitution.

When the community works to participate in the legal process, the courts must accept this participation and not disregard it. When anything happens in a traditional community, that community appears, as a rule, to face the event together. They are all entitled to participate in the benefits, and they all have to share in the losses. So, in a dispute, they all feel involved.

This is where the coming forward of the leaders and people of the community to hand over the suspects must be duly recognised. Of course, it should be seen in and with the evidence. There must be other evidence. It becomes a matter of evidence which must be admissible, it is very relevant in the eyes of the people and must, therefore, be considered.

Again, the communal nature of PNG society makes one realise that there can be very few secrets. When something happens everyone soon knows. There are no strangers in the night.

So, if village leaders have come forward with their own knowledge and "made" people surrender, there must be some weight in that. Surely, in such a communal society, elders are not going to blame their own line for something the neighbouring lines have done - if the neighbouring lines did it, people would know.

The fear of a police raid and subsequent damage and loss of face cannot be so strong that leaders would turn in their own people for nothing if it was known to all the guilty party was from the other line or village.

The government wants to put more responsibility into the hands of the people over law and order and social control. If so, then the courts must assist by recognising the relevance and knowledge of the leaders of the village and community. Of course, just because the leaders turn in some suspects should not be the end of the case. Criminal charges must be supported by the evidence. The turning in supports and corroborates the other evidence. One must be sure that the leaders are not just marking some trouble makers to get them out of the way. Also, one must be sure that the victims did not merely identify the accused after they learnt the leaders and community had handed over the suspects, thus identifying by suggestion.

However, here the victims were sure in their identification or recognition of the accused; they had seen him around before, he lived nearby.

I, therefore, find the weight of the evidence is overwhelming.

I am satisfied beyond all doubt that the accused was a member of the gang who raided the settlement and abducted the woman and young girl and raped them. Being a member of the gang, he is equally responsible for the abductions and the rapes. I find the accused guilty of two counts of abduction and two counts of rape.

ON SENTENCE

This abduction and pack rape was a horrifying incident. This was a gang raid on people sleeping in their houses and then the forced abduction of a woman who, at the time, was nursing a baby and of a young school girl. As a result of the viciousness of the pack rape, the young girl had to spend some time in the hospital. I do not know whether the fact that the victims were originally from another place, the Sepik, had any bearing on the incident, but that should not really make any difference.

You helped the others, so you are equally to blame for everything that happened. Society cannot have gangs like you doing things like this. You do not deserve to live in our society if you behave like this. It is not just a matter of paying compensation; all your relatives have had to suffer and pay that, but you must also be punished.

If you want to live and behave like this, society has no alternative than to remove you from the society so that everyone else can be safe. This was not an accidental attack or something you did not mean. This was a deliberate attack on innocent people. Such a vicious attack demands the heaviest of penalties. I sentence you to six years imprisonment on each count of abduction and 15 years imprisonment on each count of rape. These sentences are to be served concurrently. You, therefore, must serve 15 years in prison. However, as you have already spent one year in remand custody waiting for this trial, you will have 14 years to serve.

Lawyers for the State: Public Prosecutor.

Lawyers for the defendant: Public Solicitor.