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State v Rau [1997] PGNC 1; N1509 (17 January 1997)

Unreported National Court Decisions

N1509

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR 761 OF 1996
THE STATE
v
KOBALE RAU

Mount Hagen

Lenalia AJ
12 December 1996
17 December 1996
31 December 1996
13 January 1997
15 January 1997
17 January 1997

CRIMINAL LAW - Pack rape - Not guilty plea - Trial - Criminal Code S. 347 (Ch No 262).

CRIMINAL LAW - Unlawful assault - Not guilty plea - Trial - Criminal Code S. 341.

CRIMINAL LAW - Unlawful Detention - Not guilty plea - Trial - Criminal Code S. 355.

CRIMINAL LAW - Practice and Procedure - Evidence in sexual offences - Corroboration - No requirement in law - Corroboration required in practice.

CRIMINAL LAW - Practice and Procedure - Identification - Dangers inherent - Relevant consideration - Mistaken identity.

The accused is a policeman charged with 3 counts, one of rape, the second one for assault and the third unlawful detention of a young victim who was detained at the Minj Police Station for questioning following an alleged coffee theft from a nearby large Coffee estate. She did not commit any theft however security personnels from the Estate picked her up and handed her over to the Police Station at Minj. No charges were laid and the NCO Shift Commander of the shift on duty during which time the alleged offences were said to have been committed gave directions for the release of the only female detainee who later became the victim of a pack rape.

Held:

(1) In a proceeding where evidence of identification is relevant, the Court should be mindful of all the inherent dangers, the need for caution before convicting on the correctiveness of identification. A mistaken witness could be a convincing one. The complainant was in a much better position to give description of the accused’s dress and appearance. This was a case of mistaken identity.

Cases Cited:

The following cases are cited in the judgement:

McCallum v Buibui [1975] PNGLR 439

The State v Andrew Tovue [1981] PNGLR 12

Peter Townsend v The State [1981] PNGLR 8

Biwa Geta v The State [1988-89] PNGLR 153

John Beng v The State [1977] PNGLR 115

Counsel:

P Kumo for the State

L Simiji for the Accused

17 January 1997

LENALIA AJ: The accused entered pleas of not guilty to three charges contained in one indictment charging that on 11th of February 1996, the accused raped, assaulted and unlawful detained Wulamb Tongil contrary to SS. 347, 341 & 355 of the Criminal Code. To prove their case, the State called five witnesses. the trial took sometime because first one of the key witnesses was on recreation leave whom the defence counsel wanted to cross examine on certain evidence stated in his statement. Secondly, the case was originally listed for four days but it proved to be more than four sitting days so that the Court had to adjourn to suit whatever time it was found available.

The State’s case is that on 11th of February 1996 the young girl who later became the victim of the charges charged in the indictment was arrested following allegations made against her by security personnels of a nearby major coffee estate in the Minj area of the Western Highlands Province. The victim’s evidence shows that she was handed over to the Minj Police Station by about after midday. In fact she suggested in her evidence in cross-examination that it must have been about 3 pm. She was then kept in the cells at Minj Police Station until between 4.30 and 5.30 pm when she was released by the shift commander of the 4 pm to 12 midnight shift, Senior Constable Tobias Mondia. After being released, she was immediately taken to the duty counter where she was further interrogated by S/C Mondia after which she was released for no formal charges had been laid against her.

Three policemen were called to give evidence for the State. Evidence by Constable David Mek is much similar to that of his shift commander S/C Mondia. They were both rostered 4 pm - 12 midnight on the night of the relevant date. The third policeman on duty that night was the accused himself. It appears from the evidence of Constable David Mek that there was no proper hand over/take over from the former shift members, but David Mek was the first policeman to report to the duty office. The next person to come was the accused. Not long after this, the shift commander came in.

David Mek’s evidence is that as soon as he got to the duty counter, he was called up to the cells by a male detainee in the cells. As soon as he got to the cells he realised that there was a female detainee. He asked her why was she detained and the victim told Mek that she had been blamed for stealing some coffee cherries from a major coffee plantation. She intended to sell the coffee beans the next day but was arrested by security personnels who brought her to the Minj Police Station. Mek advised the victim that he was not allowed to release her until the two regular members came. Constable Mek proceeded back to the duty counter. Just then Constable Kobale Rau showed up and not long afterwards, S/C Mondia came too.

Constable Mek’s evidence also reveal that as soon as S/C Mondia came, he gave directions to Constable Mek to release the female detainee. This was done after consulting the occurrence book in which it was recorded that the sole female detainee was to be discharged by 4 pm that day. Constable Mek was given the keys to the cells, walked across to the female cell blocks opened the door and took the complainant out to the duty counter. At the duty counter the complainant was further interrogated by S/C Mondia and the accused made entries into the O/B in regard to the release of the complainant.

After they had had a conversation with the victim S/C Mondia told the victim, David Mek and the accused that he was leaving to go back to the barracks to cook his dinner. S/C Mondia later confirmed in evidence that he was away for two hours until about 8 pm when he returned to the station. Not long afterwards Constable David Mek also indicated that he wanted to go to the store to buy sugar and smoke for him. As he was walking out of the door, he saw that the woman was also moving out following him out to the door on to the cement. As he was walking toward John Munul’s store he heard the sound of a vehicle and as he turned around he observed that it was the Minj Police Station vehicle ZGR 346 driven by Sgt. Ben Kama into the Station.

He was away for some 10 - 15 minute and when he got back to the police station, he found Sgt. Kama and some more regular policemen who were not on duty. In all there were about 6 of them. When it got dark some more members came in and they started to play card games for fun. Sgt. Mary Kapal and her husband came and joined the group enjoying the evening talk.

During the course of their card games, they sent a person by the name of Kolif to buy them smoke and betelnut from somewhere near the hospital. He was sent twice and after he returned from the second erand, their card games were disturbed when one of them heard some noises from the International Primary School. They thought thieves had broken into the premises so they all surrounded the school ground and after a careful check they found nobody inside so they all returned to the police station. Those members who were not on duty started to leave for their residential areas leaving the only three behind, S/C Mondia, Constable Mek and the accused.

The three of them decided to go on a beat patrol so they proceeded toward the main shopping centre. After sometime, the accused requested to leave by about 11.15. They departed from the shopping centre and separated with the accused going home to his house. S/Constable Mondia and Constable Mek immediately returned to the Police Station to await the incoming shift members.

Senior Constable Timothy Goiye’s evidence is not much of any assistance to this Court. He was the next shift commander from 12 midnight to 8 am the next morning. As soon as he reported for duty he went through the occurrence book and noted that there were no major incidents recorded in the O/B. He said when they checked the cells, there were no females in the female cells but there were 5 male detainees.

I now came to the evidence of the victim. She gave evidence through an interpreter Elizabeth Munu that she had picked some coffee cherries worth K1.00 from her brother’s coffee garden. She was caught by her mother who beat her up. After having settled, she decided to sell this cherries the next day. When the security personnels saw her, they arrested her and took her coffee away and handed her over to the police at the Minj Police Station. This was done on the mistaken belief that the complainant had stolen this coffee from the nearby coffee plantation.

After spending sometimes in the cells, she was brought to the duty counter for interrogation. Her evidence is that the person who took her out from the cell blocks was the same person who led her away to the policewomen toilet and locked her in there for some 4-5 hours. Asked in chief and cross-examination how was she locked in and she merely answered by saying that the door may have been locked from the outside. She did not try to open it nor did she screamed for assistance.

Her evidence is that it was the same person who locked her into the policewomen toilet came and took her out to the kitchen at the back somewhere took her into the kitchen undressed her and forcefully had sexual intercourse with her. She tried to shout but she was clapped over he mouth. After she had been raped, the rapist told her to wait there until day break. She got frightened of staying back and made her way up to the Health centre. Some people saw her had pity on her when they saw her being in a distressed condition. She had grass all over her hair and her clothes were wet. A woman by the name of Arme Yants took her in, asked the victim to have a bath and was given clothing to change.

While in the care of Arme Yants at the Health Centre, a reservist to be by the name of Kolif came in and enquired with the victim why was she around the hospital when she should be in the cells. It is most likely that she did not indicate to Kolif that she had been released from the cells. This resulted in Kolif escorting the victim back to the cells. On arrival at the police station, Kolif beat her up before she was placed back into the female cells. She said she was once more raped by the same policemen in the cells. As to which policeman it is not clear. She was raped the third time near the tank. She then walked way to the place called “Kaukau market” where she spent the night. The next morning she lodged a formal complaint to the police station at Minj.

Part of her evidence is that after being interrogated two policemen left and the one who took her out from the cells was the same person who took her to the female toilet. She estimated that she must have been in the policewomen toilet for some 4-5 hours. Her evidence was that she did not agree to the acts of intercourse and were done against her will and after having sex she felt pain. She was asked in chief how many times did the accused have sex with her. She replied, it was three times. Later in cross examination, she said two or three separate men had sex with her.

The first act of sexual intercourse took place in the kitchen where there was no light. However there was light in the cells. There is no evidence to show to the Court what is the distance between the cell blocks, the office and the kitchen. Although I noted from the file that there is a sketch plan showing the positioning of the office, the cell blocks and the kitchen, there were no measurements put in. Even if there were measurements in place, I would not accept it since the sketch plan was never tendered.

Wulam Tongil’s description of the dress worn by her first rapist was that the accused was wearing a police uniform. This is a striking contrast to the evidence given by the accused and state witness Senior Constable Tobias Mondia who said that the accused was in civies. The reason why the accused was wearing civilian clothing was that, he had been rostered to special duties at the Kudjip Estates that week. He had packed all his clothes in his bag. When he was ready to go he was informed that the schedule had been altered and he would be going the next day. He was then informed to do normal duties. At least this part of the accused’s statement is corroborated by the evidence of State witness S/Constable Mondia.

The victim was vigorously cross-examined. She said that it was not Constable David Mek who took her out from the cells at the first place but the accused himself. That part of her evidence is in direct contradiction to that of Constable David Mek and S/C Mondia that David Mek was the one who brought her out from the cells. The complainant also says that the accused was the one who questioned her. Once more this conflicts with the evidence contained in Exhibit “A” the Statement by witness S/C Mondia which shows that, S/C Mondia interrogated her while the accused and Constable Mek took particulars of the victim and entered it into the O/B. As to how many men raped her, she first answered that 2 men did have sex with her. When she was asked in cross-examination she said three men at least raped her.

Evidence of Arme Yants confirms that by about 10 pm, she was minding her sick sister Priscilla at the Minj Health centre when she caught sight of the victim walking rather nervously. Arme signalled the victim to come to her but the victim was shy. In fact Arme’s evidence shows that despite being asked what had occurred to her, the victim did not answer. A Health worker briefly spoke to the victim and suggested to Arme that the victim should sleep with the patients at the health centre that night. This witness confirmed that she gave some clothes to the victim on the night of the incident and she was the one who assisted the victim to have a full bath before she was given dried clothes. Intending reservist Kolif came in, saw the victim and enquired how did she get out from the cells. From there, the victim was escorted back to the cells. This witness does not say anything about Kolif assaulting the victim before she was placed in the cells. After she had seen the victim placed in the cells she accompanied another two women back to the hospital.

The accused gave an unsworn statement that he was scheduled to special duties to the Kudjip Real Estates on the evening on the date of this offence. By 4 pm, he was informed by the Station Sergeant Major that there was a change in the schedule and policemen rostered to that special duties were re-scheduled to the next day. The accused was asked to take up normal duties in the station. By the time he was informed of the change he had packed his clothes so he was told to wear civilian clothes. He was on the same shift with S/Constable Mondia and Constable Mek.

He reported for duty at 4.30 pm by which time Constable Mek was already in the duty counter. David informed the accused that there was a female detainee who was supposed to have been released by 4 pm but she was still in the cells. The accused informed C/ Mek that he could not do anything until the Shift commander came. Not long after this, S/C Mondia turned up and gave orders to Constable Mek to release the victim.

When the Station Sergeant Major was informed of the female detainee being released, he was a little upset and said he should have been consulted. The accused and Sgt. Major talked for some time until he left at about a quarter to eight (pm). The next part of his statement is exactly the same as that of Constable Mek and S/Constable Mondia from the time they were playing card games to the time they separated at the shopping centre at about 11.15 pm. There were no other witness called by the defence.

On the defence final submission, Mr Simiji cited two authorities. The case of McCallum v Buibui [1975] PNGLR 439 in which it was ennunciated the rule that in a case of sexual nature a judge or magistrate must warn himself of the dangers of convicting an accused upon uncorroborated evidence of the complainant alone. In the instant case I am warned and am reminded that an accused person should not be convicted upon evidence of the complainant that is not corroborated unless such evidence is corroborated in some “material particular” by other evidence from an independent source. This rule was applied and considered in the cases of The State v Andrew Tovue [1981] PNGLR 8, Peter Townsend v The State [1981] PNGLR 12. At least the case of Deidei v The State [1990] PNGLR 458 says that the warning must be recorded on the notes somewhere showing that a judge or a magistrate for that matter gave himself such a worry: see also Biwa Geta v The State [1988-89] PNGLR 153. Geta’s case also discusses the question of identification. In the same manner I warn myself being a judge of both facts and law that where a case against an accused person depends wholly or substantially on the correctness of one or more identification of the accused and which the defence alleges to be mistaken, there is a special need for caution before convicting in reliance on the correctness of identification: John Beng v The State [1977] PNGLR 115.

The State’s evidence is clear that the accused was on duty on the relevant period of time. There is evidence that after reporting for duty S/Constable Mondia gave directions to Constable David Mek who was in full uniform to release the victim from the female cell blocks. It was proved by both S/Constable Mondia and David Mek that the person who escorted the victim from the cells after opening the gate was Constable David Mek. There is evidence that at the duty counter, S/Constable Mondia interrogated the victim while the accused and David Mek took her particulars to be entered into the occurrence book. There is evidence by Constable Mek that as he was leaving for John Munul’s shop, the victim also moved out and wanting to go the other direction.

The complainant’s evidence is that the person who unlocked the female cell blocks took her out to the counter was in uniform and it was the same person interrogated her. After interrogating her it was the same person who took her out from the duty counter to the police female toilet. It was that same person who some 4 - 5 hours later brought her out from the police female toilet and brought her to the kitchen where she was raped against her will.

There is evidence by the Shift Commander that the accused was in civilian clothes. The Shift Commander also confirmed that, the person who opened the gate to bring the victim out to the duty counter was Constable David Mek. Certainly if the person who took the victim out from the cells was in police uniforms would it not be inferred that the actor must have been a different person. At least the victim is in the better position to tell this Court who her assailants were. She is in a better position to describe them by their appearance and dress.

I am mindful of the inherent dangers and the need to caution myself of the state of the State’s evidence so far adduced. By the principles laid down in The State v John Beng there is a possibility that a mistaken witness could be a convincing one and any number of witnesses could all be mistaken. Recognition of a known character would be more reliable than identifying a stranger. Even where a witness says he or she can recognize someone who he or she knows or even a close relative mistakes can be made. All these factors go towards the quality of all the identification in a case.

It has been repeatedly echoed in this Court that the criminal standard of proof is that the State must prove its case beyond all reasonable doubt. That means it must not leave in the mind of a judge or magistrate any doubt or a slightest possibility that the accused might not have committed the offence. Let me mention in passing that the charges alleged in the indictment are not denied. With the conflicting evidence before me in the instant case I am satisfied beyond reasonable doubt that this case was a case of mistaken identification. I find the accused not guilty and acquit him accordingly. He is entitled to the refund of his bail monies.

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: Public Solicitor