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State v Kabai [1997] PGNC 73; N1611 (18 June 1997)

Unreported National Court Decisions

N1611

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO. 198 OF 1997
THE STATE
v
HERMAN KABAI

Wewak

Batari AJ
12-13 June 1997
16-18 June 1997

CRIMINAL LAW - Evidence - Corroboration - Sexual Offences - Young Children - Rule of practice requiring corroboration applicable.

CRIMINAL LAW - Evidence - Degree of proof - ‘Proof beyond reasonable - What constitutes.

CRIMINAL LAW - Evidence - Rape - Alternate verdict of unlawful carnal knowledge - Whether open on indictment charging rape - Criminal Code s. 541.

Trial

This is a trial of the accused on two counts of rape of a young girl. The facts appear on the reasons for judgment.

Counsel:

J Wala for the State

C Melanki for the Accused

Cases Cited:

The State v Kewa [1976] PNGLR 481

Charles Didei v The State [1990] PNGLR 458

Mieler v Minister of Pensions (1947) 2 ALL ER

23 June 1997

BATARI AJ: The accused is indicted on two counts of violating a young girl, Grace Kabai; the first on 19 October, 1996 and the second on 20 October, 1996. It is without dispute that the complainant is the adopted daughter of the accused and his wife Elizabeth Kabai. A copy of the Baptismal Certificate tendered with consent showed she was born on 1 January, 1982. In his Record of Interview the accused admitted the complainant was aged 14 years in 1996 but in his sworn evidence he put her over the age of 16 years. Upon my own observation of her physical appearance in court, I am reasonably satisfied that the girl is now 15 years old. I am also satisfied that the complainant conceived at the age of 14 years and gave birth at the age of 15 years.

In such a case as this, the Court should be alert to the danger of convicting the accused on the uncorroborated evidence of the complainant. When the evidence is that of children, the Court should normally look for corroboration. See The State v Kewa Kai [1976] PNGLR 481. See also Charles Didei v The State [1990] PNGLR, 458 and in particular pages 459-461 which affirms the need for the warning to be given and recorded in a case where there is no corroborative evidence. In essence, the only independent evidence which supports that of the complainant’s evidence in this case is the eye-witness account of her mother, Elizabeth Kabai.

The charges of rape arose from the events of 19 and 20 October, 1996. State witnesses Grace Kabai and Elizabeth Kabai spoke of being taken into a room in their house on the first mentioned day and sexually violated by the accused, Herman Kabai. The event of the next day was the repeat of the previous day’s occurrence. Both witnesses also spoke of threats preceding the acts of sexual intercourse on the two days in question and on other previous occasions. The complainant also spoke of being violated by the accused from 1993 to October, 1996. The outcome of these violations it was said, was a baby born in February, 1997.

The accused denied both events of the 19 and 20 October, 1996. He rejected also all implications of violating the complainant from 1993. In Court he has given evidence to that effect. In his record of interview, he maintained silence and did not deny or offer any explanation to the crucial and specific questions asked. He was supported in his defence by a witness who spoke in rebuttal of State witness Elizabeth Kabai’s evidence.

The accused did not impress me as a witness of truth. He was voluble and inconsistent in his evidence. It was apparent he spoke in a calculating manner, sometimes answering questions in English with little difficulty and at times requesting interpretation of simple straight forward questions which tended to implicate him. I do not find his denials to carry the ring of truth. His witness was a close relative who admitted she does not like State witness, Elizabeth Kabai. Her evidence was intended to discredit Elizabeth Kabai and also support the accused’s denials. If what the defence witness, Theresa Patrick stated was true, then the evidence has some relevance only to the date that the complainant conceived, which would have been some months before the two dates in question. I am not persuaded by her evidence when I observed her demeanour in the witness box.

My observations on the merits of the defence evidence however do not remove the basic fundamental responsibility of the prosecution to establish the guilt of the accused on the standard of proof beyond reasonable doubt. That onus is always on the prosecution and never shifts to the accused to prove his innocence. Having disbelieved the defence, prosecution must still discharge the legal burden of proof. I bear in mind, the degree of cogency which the evidence on a criminal trial must reach before the accused can be convicted as succinctly stated by Denning, J (as he then was) in the case of Miller v.Minister of Pensions (1947) 2 All ER, 372 at p. 373-4:

“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond a reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence ‘of course it is possible but not in the least probable’, the case is proved beyond reasonable doubt, but nothing short of that will suffice.” (emphasis mine).

The evidence of the complainant is that the accused first had sexual contact with her in 1993 when he touched her breasts and vagina. This is verified by a complaint to the police as spoken of by both Elizabeth Kabai and the accused. Elizabeth Kabai explained she reported the accused for unlawful carnal knowledge. She may have wrongly assumed the accused had committed that offence. However, this does not detract from the fact of what she saw. Her action in reporting the matter to the Police confirm the complainant’s evidence. I am satisfied that the accused first violated the complainant in 1993.

In 1994, she said the accused first had sexual intercourse with her and continued to do so up to the two dates in question. He would do this when he was drunk and on some occassions he would force her to insert a wooden carved penis into her vagina as a punishment or whenever she had her monthly period. She said this caused the accused and Elizabeth Kabai to quarrel. There is evidence of a strained relationship from Elizabeth Kabai and Theresa Patrick which support the complainant’s evidence. She also spoke of the accused keeping a close watch on her. His threats of harm, she said deterred her and her mother from speaking to other people. She conceived, about July or August, 1996 but did not tell anyone about it. I infer she need not tell anyone as she said her mother Elizabeth Kabai knew what the accused was doing to her. I infer the threats were real. The accused conceded his use of violence in 1993 when he was first reported to the police and inferentially, he would get violent if again reported. I also infer the threats were real and made by the accused as it was in his interest that no-one else knew what was going on in his house. This inference is open when the evidence of the complainant and Elizabeth Kabai is accepted.

On the events of 19 and 20 October, 1996 the complainant said both she and her mother were detained in a room and told by the accused that if he had sexual intercourse with her in her mother’s presence, this would regenerate her monthly cycle. He also threatened both before he had sexual intercourse with each in turn. This ritual-like incident was repeated the next day. The complainant’s evidence of the occurences on those two days was generally supported by Elizabeth Kabai.

The complainant was thoughtful though visibly distressed in the witness box while giving evidence. In cross examination, the full contents of her statements to the police was put to her. I think this helped to improve her evidence more than achieve anything for the defence. She was unshaken and on the whole, consistent. I am satisfied that she gave honest evidence. Her evidence on the date she gave birth in my view was honest but mistaken and the mistake is not significant as the months of February and March, follow each other.

Her mother Elizabeth Kabai said she was aware of the relationship between the complainant and the accused from 1993 to October, 1996. However, she was deterred from exposing them because of the accused’s violence and threats of violence against her. She also spoke of the events on the two days in questions. I find her evidence unshaken and substantially consistent with that of the complainant. Where inconsistency exist between their evidence, this is on peripheral matters only and do not affect the totality of the evidence.

I am urged to disregard the evidence of the two State witnesses because of animus between them and the accused. A motive has been suggested that State witness Elizabeth Kabai had resented the accused marrying other women because she feared being dispossessed as the sole beneficiary to the accused’s estate. A conspiracy theory was also suggested in submissions that this prosecution was a means of getting even with the accused. I dismiss all these as mere conjectures and sufficiently improbable on the whole of the evidence.

Going back to the question of threats, the accused said in chief when asked:

Que. “What was your relationship with your wife Elizabeth Kabai like during your stay together?”

Ans. “Our marriage was good. It was up to date for almost 20 years.”

He stated also that the relationship only broke down when Elizabeth Kabai accused him of being responsible for the complainant’s pregnancy. The inference is that the couple did not have problems until October, 1996. His own evidence on the other hand showed they had problems in 1993 and again in 1995 when he said Elizabeth Kabai committed adultery. There is evidence from Theresa Patrick, his witness, that he had problems with his wife during 1996. His own defence also suggest they had problems whenever he gets a new wife because Elizabeth Kabai disliked new additions to the family. I infer from these that the State witnesses were truthful when they said they lived under much constraint from violence and fear of violence by the accused. He also appeared to me to be someone with an over-bearing personality. His candid evidence of taking and discarding wives at will also by inference support that impression.

Returning to the events of 19 and 20 October, 1996 I find the following pecularities in the evidence:

(i) the two State witnesses and the accused each spoke of being in the same room on the dates at some point in time with the other two. They did not speak of any other person being present.

(ii) the central subject of their presence together was the complainant’s menstrual period.

(iii) both the accused and Elizabeth Kabai said neither knew before hand the complainant had missed her period and that he or she first heard of it from the other on 19 October, 1996.

But, first, I think it is immaterial whether, 19 and 20 October, 1996 fell on particular days as those dates are not disputed. The essence is that the evidence differed only as to time and as to what transpired in the house on those two days. According to the two State witnesses, the accused had sexual intercourse with each in turn and in the presence of the other. This was preceded by threats and with false pretence that the acts would cure the complainant’s delayed monthly period. The accused on the contrary said they only talked about the complainant missing her monthly period.

As regards the accused and Elizabeth Kabai’s ignorance of the complainant’s menstrual cycle I find their evidence rather suspicious. These two are adults and were adopted parents of the complainant. I think they both faked ignorance. The truth in my opinion is in the evidence of the accused when he said Elizabeth Kabai had tried to eliminate the complainant’s pregnancy with the help of Leo Kami prior to the dates in question. I think both the accused and Elizabeth Kabai knew on 19 and 20 October, 1996 that the complainant was pregnant and both had acted in complicity to terminate the pregnancy. There is evidence, Elizabeth Kabai knew the relationship all along and kept quite about it. According to the complainant, the accused had forced her mother, Elizabeth Kabai to find ways to terminate the pregnancy and I think this was before 19 and 20 October, 1996. Elizabeth Kabai, I think had gone along with the accused’s suggestion and had permitted the complainant to be violated in the hope that the pregnancy would be terminated.

I do not accept the accused’s suggestion that he could not father children. This is contradictory to his own evidence in cross examination when he admitted fathering a child in 1985, though he tried to shift his evidence again in re-examination. The medical statement tendered in his evidence also do not prove anything beyond a referral for medical specialist test. His history of taking wives and discarding them at will also do not speak of a sexually inactive person. In his own words, he left wives one after the other because they would not bear him children. I think the evidence disclosed a sexual pervet who saw women as good only for bearing children. Love, compassion and the right to be treated with human dignity was clearly unimportant to him in a marriage relationship. What would stop such a person turning against female members of his family for his sexual lust?

There is no direct evidence that the accused had sexual intercourse with the complainant in July or August, 1996 or at the relevant time of conception. There is evidence which I accept that the accused had sexual intercourse with the complainant on many occasions between 1994 and October 1996. There is no evidence or basis for the suggestion that the complainant was impregnated by some other person other than the accused. When I consider the totality of the evidence, the only reasonable hypothesis to be drawn from the circumstantial evidence is that the accused had sexual intercourse with the complainant at the relevant time which resulted in her pregnancy. I also conclude from the evidence and inference drawn from the evidence that the accused violated the complainant on 19 and 20 October, 1996. I think, on those two occasions, she was threatened and falsely pretended to by the accused. Elizabeth Kabai knew what was happening but did nothing. She also did not raise a hand after the two events in question. She may well have been living under fear of threats but I think she had opportunities to report. She did not do so. Nor did the complainant say anything until a month later. I am not satisfied that the events of 19 and 20 October 1996 occured without her knowledge and consent.

Whether or not the accused can be found guilty of lawful carnal knowledge of a girl under the age of 16 years, as an alternative to rape, I am of the same view as both counsels that such verdict is open under s.541 of the Criminal Code. I adopt the same reasoning I made in the case of State v Nenesa Oida (CR No. 1488 of 1996 - unreported National Court Judgment).

I find the accused not guilty on each count of rape.

I find the accused guilty of having unlawful carnal knowledge of the complainant who he knew was under the age of 16 on 19 and 20 October, 1996. I convict him on two counts of Unlawful Carnal Knowledge.

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: Public Solicitor