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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 appn the reasonsasons for judgment.

Counsel:

J Wala for the State

C Melanki for the Accused

Cases Cited:

The State v Kewa [1976] PNGLR 481

es Didei v The State [1990]1990] PNGLR 458

Mieler v Minister of Pensions (1947) 2 ALL ER

23 June 1997

BATARI AJ: The ed is indicted on two 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 dispuat the the complainant is the adopted daughter of the accused and his wife Elizabeth Kabai. A of the Baptismal Certifirtificate tendered with consent showed she was born on 1 January, 1#160; In his Record of Inte 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 satisfied that the cohe complainant conceived at the age of 14 years and gave birth at the f 15 years.

In such 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 Tate v Kewa Kai [1976]1976] PNGLR 481. See also Charles Didei v tae State [1990] PNGLR, 458 and in particular pages 45 whicirms the need ford for the warning to be given and recorded in a case where there is no coro corroborative evidence. In essence onlypendent evit evidence ence which supports that of the complainant’s evidence in this case is the eye-witness account of heher, Elizabeth Kabai.

The charges of rape arose from the events of 19 and 20 Octobertober, 1996. State witnesses Grace Kandi and Elizabeth Kabai spoke of being taken into a room in their house on the first mentioned day and sexually violated by thesed, Herman Kabai. The event ofnext day was twas the repeat of the previous day’#8217;s occurrence. Both witnesses also sof thof threats preceding the acts of sexual intercourse on the two days in question and on other previous occasions. The ainano spoke of being eing violated by the accused from 1993 to October, 1996. The ouhe outcome of tviolaviolations it was said a baby born in February, 1997.

The accused denied both events of the 19 and 20 Octo October, 1996. He rejected also allicatifns of violating the complainant from 1993. In C In Court he haen evid evidence to that effect. In his record of intw, he maintained silence and did not deny or offer any explanation to the crucial and specispecific questions asked. He was supd in efenca witn witnewitness who spoke in rebuttal of State witness Elizabeth Kabai’s evis evidence.

The accused did not impme as a witness of truth. He wauble and inconsistentstent in his evidence. It w It was apparenspoke ioke in a calculating manner, sometimes answering questions in English with little difficulty and at times requesting interpretation of simple straight fo questions which tended to implicate him. I do not fiot find hiials ials to carry the ring of truth. His witness was a close rvlative who admitted she does not like State witness, Elizabeth Kabai. Her evidence was intendedito discredit Elizabebai aso support the ache accused’s denials. If what the defence wit Ths, Theresa Pata Patrick stated was true, then the evidens some relevance only to the date that the complainant conc conceived, which would have been some months before the two dates in ques I am not persuaded bded 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. onus is always on the pros prosecution and never shifts to the accused to prove his innocence. g disbelieved the defence,ence, prosecution must still discharge the legal burden of proof.; I bear in mind, the degredegree 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 cnty, buy, but it must carry a high degree of probability. Proofnd a reasonable doubtdoubt does not mean proof beyond the shadow of a doubt. The law would failrotect tect the communf it ted fanciful poss possibilities to deflect the course of justice. Ifevidence is e is so stro strong against a man as to leave o remote possibility in his favour, which can be dismissed wsed with the sentence ‘of course it is possible but not in the leastable’, the case is pris proved beyond reasonable doubt, but nothing short of that will suffice.” (emphasis mine).The evie evidence of the complainant is that the accused first had sexual contact with her in 1993 when he touched her breasts agina. This is verified by a contlaint to the police as spoken of by both Elizabeth Keth Kabai and the accused. Elizabeth Kabalained she rshe reported the accused for unlawful carnal knowledge. She may have wrongly assumed the accused had committed offence. However, this does not detract from the fact of what she saw. Her actr action in reporting the matter to the Poconfirm the complainant’s evidence. I am satisfatisfied that the accused first violated the complainant in 1993.

In 199e said the accused first had sexual intercourse with her aner and continued to do so up to the two dates in question. He would is wh was drunk aunk and onnd on some occassions he would force her to insert a wooden carved penis into her vagina as a punishment onever she had her monthly period. She said this caused the accused and Elizabeth Kaba Kabai to quarrel. There is evidence of ainedained relationship from Elizabeth Kabai and Theresa Patrick which support the complainant’s evidence. She apoke e acckeepingepingeping a close watch on her. His threats of harm, shd daid deterred hred her and her mother from speaking to oteople. She conceived, about July or August, 1996 but did not tell anyone about it.&#1t. I infer she not tell anyonanyone e said her mother Elizabethabeth Kabai knew what the accused was doing to her. I infer the threats were real. The accused conchis use of violence in 1993 when he was first reported to t to the police and inferentially, he would get violent if again reported.& I alfer the threats were real and made by the accusedcused as it was in his interest that no-onno-one else knew what was going on in his house. This inference is ohen then 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 before fore he had sexual intercourse with each in turn. This rilike incident was rwas repeated the next day. The comant’dence of e of the occurences on those two days was generally supported by Elizabeizabeth Kabai.

The complainant was htfulgh visibly distreistressed in the witness box while giving evidence. In cross examinaamination, 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 I am satisfied she gahe gave honest evidence. Her evidence on the dhe gave birth in my view waew was honest but mistaken and the mistake is not significant as the months of February and March, follow other

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

I am urgedurged to disregard the evidence of the two State witnesses because of animtween them and the accused.used. 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 t was suggestggested in subm submissions that this prosecution was a means of getting even with the accused. I dismiss all theseere ctujectures and sufficiently improbable on the whole of the evidence.

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

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

Ans. “Our marriage was good. It was up to date for almost 20 years21;He stated also tlso that that the relationship only broke down when Elizabeth Kabai accused him of being responsible for the complai#8217egnan160; The infe inferencerence is that the couple did not have proe problems until October, 1996. His vidence on the other hher hand showed they had problems in 1993 and again in 1995 when he said Elizabeth Kabai committed adultery. There is evidence from sa Patrick, his witness, that he had problems with his wife wife during 1996. His own defence also st thst they had problems whr he gets a new wife because Elizabeth Kabai disliked new additions to the family. I 0; I infer frome that that the State witnewere truthful when they said they lived under much constraistraint from violence and fear of violence by the accused. He also aed too be someonemeone with an over-bearing personality.&#1y. His caevidence of taking aing and discarding wives at will also berence support that impression.

Returning to the events of 19 and 20 October, 1996 I996 I find the following pecularities in tidence:

(i) &##160;; the twoe two State witneanes 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 sof any otherother person being present.

(ii) &##160;ـ the centrcentrcentral subject of their presence together was the complainant’s menstrual period.

(iii)ـ҈ both the acce accused and Elizabeth Kabai said neither knew before hand the complainanainant 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 ncidence differed only as to time and as to what transpired in the house on those two days. Accg to the two State witn witnesses, the accused had sexual iourse with each in turn and in the presence of the other.&#er. This receded by threats ants and with false pretence that the aculd cure the complainantnt’s delayed monthly period. The ac on the contrary saiy said they only talked about the complt missing her monthly perioperiod.

As regards the accused and Elizabeth Kabai’s ignorance of the complainant’s menl cycle I find their evidenvidence rather suspicious. These twoadults and were aere adopted parents of the complainant. I thiny both faked ignorannorance. Thth in my opinion is in t in the evidence of the accused when he said Elizabeth Kabai hied tminate the complaomplainant’s pregnancy with the help of Leo Kami prior to the dates ates in question. I think both the accuse Elnd Elizabeth Kabai knew on 19 and 20 October, 1996 that the complainant was pregnant and both had acted in complicity to term the pregnancy. There is evidenlizabeth Kath Kabai knew the relationship all along anng and kept quite about it. According to omplainant, tnt, the accused had forced her mother, Elizabeth Kabai to find ways to terminate the pregnancy and I think this wasre 19 and 20 October, 1996. Elih Kabai, I think had goad gone along with the accused&used’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 contradicto his owis 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 meditatement tendered ered in hidence also do not prove anve anything beyond a referral for medical specialist test. His history ofng wives ands and discardinm at will also do not speak of a sexually inactive person.&son. In hn words, he left wiveswives one after the other because theld not bear him children. I think thdence discloiscloisclosed a sexual pervet who saw women as good only for bearing children.& Love, compassion and the rthe 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. Therevidence which I accepaccept that the accused had sexual intercourse with the complainant on many occasions between 1994 and Oct1996. There is no evidence or bfsis for the suggestion that the complainant was impreimpregnated by some other person other than the accused. When I consider otality ofty 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 thos occasionssions, she was threatened and falsely pretended to by the accused. Elizabeth Kabai knat was hwas happening but did nothing. She also did not raise a aand after the two events in question. She may well been liviner nder fear of threats but I think she had opportunities to report. She dihe did not do so. Nd the compla say ing unti until a monthmonth later. I am not saed that the evee events of 19 and 20 Octobertober 1996 occured without her knowledge ansent

Whether or not the accused can be found guiltguilty of y 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 tme reasoning I ma I made in the case of State v Nenesa Oida (CR No. 1488 of 1996 - unreported National Court Judgment).

I the accused not guilty on each count of rape.

I find the accused guilty of having uing 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 twnts of s of Unlawful Carnal Knowledge.

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: Public Solicitor