N1983

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. No. 1182 of 1998

THE STATE

-v-

KEVIN MARIANO

WAIGANI: JALINA, J.
2000: 10, 11 and 17 AUGUST

Criminal Law – Rape – Evidence – Abduction and pack rape of victim – rape took place for 30 minutes between 5.45am and 6.30am – abduction and rape not disputed by accused – accused known to victim but accused denied involvement – whether evidence of rape need corroboration - Corroborative evidence of rape not necessary where rape is not disputed - Criminal Code ss.347 and 350.

Criminal Law – Rape – Evidence – Abduction and pack rape of victim – rape took place for 30 minutes between 5.45am and 6.30am – abduction and rape not disputed by accused – accused known to victim but accused denied involvement – Issue of identification – whether victim’s evidence of accused’s being involved is sufficient to sustain a conviction – evidence of a single witness as to identity of offender sufficient to sustain a conviction – Criminal Code ss.347 and 350.

CASES CITED:
Didei v. The State [1990] PNGLR 458
John Beng v. The State [1977] PNGLR 115

C. Sambua with M. Zurenuoc, for the State
R. Tupundu, for the Accused

17 August, 2000

JALINA, J: This accused has pleaded not guilty to two (2) indictable offences. The first one was that he on 18 May 1998 whilst in company of others took away or abducted the victim against her will with intent to carnally know her.

The second offence was that he after having abducted the victim took turns with others in committing rape upon her.

The victim gave sworn evidence and was cross-examined by Mr. Tupundu, counsel for the accused. The accused gave sworn evidence and was cross-examined by Ms. Zurenuoc, counsel for the State. I will comment on their respective evidence later in this judgment. The rest of the evidence for the prosecution including the medical report of Dr. Robin Sios, statement and photographs by Steven Lassingan, the record of interview and statement of the interviewer and corroborator namely Mary Mapmani and Max Barai were tendered by consent of defence counsel.

From the evidence, it appears that between 5.45am and 6.00am on 18 May 1998 the victim woke up at her residence at June Valley where she had been living with her husband since 1995 to go to work. She woke up her husband to take her to the main road to be picked up by the bus provided by her employer but he did not wake up so she went out of the house. She heard a married couple talking and upon recognising them she went back inside, got the key to the gate and went out again. She then saw Peter Kenny, Maria’s husband, in the vicinity of her area. Peter lived further down towards the main road. She then asked him where he was going and he told her that he was going to his house so she followed him to the road.

As they walked past the school they met three (3) youths walking up. They were greeted by Peter. One of the youths had his face covered while the other two (2) did not. She found out from Peter that the youth who had his face covered was Anton.

When they turned the corner they were surprised to see the same three (3) youths standing behind the flower garden. One of the 3 youths was the accused Kevin whom she had recognised the time Peter and her met them earlier on. She recognised the other youth who did not cover his face but did not know his name. She knew Kevin the accused who was from Goilala because he lived in the same street as her and her husband and sometimes he came to her house and drank cold water, chewed betelnuts and smoked with her husband.

Then the youth who did not cover his face and whose name she did not know pointed a pistol to the side of her head and then spoke in motu to Peter and Peter left her and went away. She did not understand what was said in motu. Anton then pulled her away from the road and she shouted once whereupon Kevin pulled a knife out upon instructions from Anton and swung at her telling her not to shout otherwise she would be killed. When Kevin the accused swung the knife at her she ducked and he cut her bag. They then pulled her along the little track up the mountain.

As they were going up she told Kevin and Anton that she knew them and asked what they were trying to do to her but they told her to just walk.

When they reached a place where there were some bushes up the mountain, the person she did not know tripped her over and told her to remove her pants. Because she saw the gun in his hands she became scared so she removed her pants. He then unzipped his trousers and told her to put her legs on his shoulder and he took out his penis and penetrated her vagina. Kevin was keeping watch while he was having sex with her. Anton sat on her head and told her to suck his penis. She refused but Anton hit her and pushed his penis into her mouth and she sucked it. After this other person finished having sex with her then Kevin the accused had sex with her. Then Anton forced her to sleep face down inspite of her refusal and he had sex with her from her rear. While Anton was having sex with her she heard two (2) other boys going up to where they were. One of the two youths who had just arrived then had sex with her. While this fourth person was having sex with her she heard people calling. The voice of people calling got louder as they got closer and the youths left her and ran away. She looked and saw that a youth named Billy and others were looking for her so she went up with him and then saw her husband. She was scared and crying so Billy took her to his sister’s house. His sister gave her a laplap to wear. She then went to her own house and saw a police car already there. She was taken to the police station and later to the hospital for medical examination. She said that the incident lasted for about 30 minutes and at the time the accused and his friends took turns at raping her it was already daybreak and she recognised her attackers including Kevin the accused.

In fact she recognised him at the time Peter and her passed the three (3) youths as they were walking down to the main road. She also recognised the accused at the time she was abducted because he was the one who produced a knife and swung it at her. She also recognised him at the time of the rape and during which time it was already day break. She said that she knew him because he lived in the same street as her and her husband at June Valley. She also stated that she did not mention the name of the accused to those who rescued her or to the police when she found them at her house after her return from Billy’s sister’s house because she was threatened. When the police took her to the police station she mentioned the accused’s name and then after his arrest she recognised him as being one of those who abducted her and pack-raped her.

The medical report of Dr. Robin Sios who examined her at about 11.00am the same day revealed the following:

Upon presenting to me she was stressful, depressed and in a state of fear. Clinical examination showed no trauma to her body but was tender on palpation of her lower abdomen. Vaginal examination showed no vaginal bleeding or trauma but had 2-3mls of mucousy fluid of typical semen smell. Microscopic examination of this fluid showed millions of motile sperms present. Therefore these indicated fresh semen fluid in the patient's vagina due to having sexual contact within 12 hours of her presenting for the examination.

Apart from the medical report the above is basically the victim’s evidence. She was not shaken on cross-examination.

As I have indicated earlier, the accused gave sworn evidence. He denied knowing the victim and her husband from the outset. He said that on the date and time in question he was at his friend Peter Francis’ house at Tokarara. He also denied that he went to the victim and her husband’s house to drink cold water. He also said that between 1996, 1997 and 1998 he did not live at June Valley but with his parents at Laloki.

On cross-examination by Ms. Zurenuoc he said that his friend Peter whose other name was Francis lived with his family in his house near the water tank. When questioned as to how often he had lived with Peter Francis and his family he said about one year or two years. When questioned further as to whether he went to June Valley during those years, he replied that he went once in a while with Peter. He denied that he had friends at June Valley. When the State put to him the victim’s evidence about his involvement with Anthony and others as well as the aspect about him having gone to the victim’s house on several occasions and had cold water, chewed betelnuts and smoked with her husband, he denied them.

The accused through Counsel does not deny or dispute that the victim was abducted and pack-raped. This is confirmed by the fact that the medical report which I have referred to above which clearly showed the victim being in a distress condition as well as sperm cells in the vagina was tendered by consent of defence counsel Mr. Tupundu.

The issue before me is whether or not the accused was one of those who was involved in committing the two offences. But before I proceed to consider that aspect, let me clarify any confusion some people might have in this case which involves a sexual offence and in relation to which only the victim has given sworn evidence. It might be said that since the victim has been the only one to give evidence the accused cannot be convicted on her uncorroborated testimony.

From the evidence before me, there is no difficulty with corroboration. The medical report of Dr. Robin Sios clearly corroborates her evidence by his observance of the victim in a distressed condition as well as his discovering of millions of sperm cells in her vagina. It is also corroborated in my view by the accused through his lawyer not disputing that she was abducted and pack-raped on the date and time in question. In my view in sexual offences where sexual intercourse or other sexual act is not disputed the need for corroboration of the victim's evidence is not necessary except perhaps where consent is in issue.

In case I am wrong I propose to follow the rule in Didei –v- The State [1990] PNGLR 458 that a judge must warn himself before convicting on the uncorroborated testimony of the prosecutrix and having warned himself must record such warning. I so warn myself of such dangers in the matter now before me.

I now return to the issue of whether or not the accused was one of those who was involved in committing the alleged offences. The issue is therefore one of identification. The law relating to identification evidence is as set out by the Supreme Court in John Beng –v- The State [1977] PNGLR 115.

"In proceedings where evidence of identification is relevant, the Court should be mindful of all the inherent dangers, the need for caution before convicting in reliance on the correctness of identification, the possibility that a mistaken witness could be a convincing one and that any number of such witnesses could all be mistaken; the Court should examine closely all the circumstances in which the identification by each witness came to be made bearing in mind that recognition may be more reliable than identification of a stranger, but that even where the witness is purporting to recognize someone he knows mistakes can be made.

When the quality of the identification evidence is good the matter should proceed to a verdict, when the quality of identification evidence is poor, unless there is other evidence which goes to support the correctness of the identification, an acquittal should be entered."

In the often cited text book Criminal Law and Practice of Papua New Guinea (1985) 2nd Edition, learned authors Chalmers, Weisbrot and Andrew had this to say at p.230 about identification:

"There is no rule of law that evidence of one witness as to identification is insufficient, nor is there any rule of law that there must be a police parade for purposes of identification, nor is there any rule of law that in every case a warning must be given."

In the matter before me, the evidence of the victim and the accused as to his involvement in committing the alleged crime are directly in conflict. The victim says the accused also was known to her was there at the time and place both offences were committed and he denies being there let alone being involved in the commission of both offences. So it is a question of who I should believe and in considering that question I warn myself that it is dangerous to convict on the identification evidence of one witness which in this case is the victim.

When I consider the victim’s evidence in all the circumstances of this case against the accused'’ bare denials, I was impressed by the demeanour of the victim as opposed to that of the accused. The victim spoke confidently and convincingly. There was no hesitation in the answers she gave both during evidence in chief and cross-examination. She mentioned the accused by both names under which he has been charged as well as the area of this country where he came from which was Goilala. She was talking about the accused who had been to her house on several occasions previously and to whom cold water, betelnuts and cigarettes were given by her husband. She was talking again about the accused whom she had first seen that morning along the road from her house at June Valley at almost daybreak at 5.45am. She saw him swing the knife at her when she refused to go and when they were taking turns in raping her over a period of thirty minutes by which time it was already daybreak. Because it was already daybreak she clearly saw the accused and others and was able to describe what each one did in raping her. There were therefore many opportunities prior to the incident as well as in broad daylight for her to recognise the accused. No motive has also been shown for a woman from another province falsely implicating the accused.

The accused merely denied involvement. He said he was with Peter Francis’ family at Tokarara on the date and time in question which is an alibi but Peter Francis has not been called to give evidence to support the accused. During evidence in chief as well as cross examination I noticed that he spoke softly with his head bowed down. He did not present himself as someone who was not involved or was innocent.

Evidence he gave on oath when considered against the answers he gave in the record of interview also affects his credibility. For instance, in Q.17 he was asked where he resided in Port Moresby and he said that he had no home and roamed around and lived with friends but in his evidence he said that he lived with his parents at Laloki and then in 1996, 1997 and 1998 lived with Peter Francis and family at Tokarara. That brings him into the year the offences were committed and taking judicial notice that June Valley is not far from Tokarara, it brings him to the vicinity of the crime.

On the evidence as it stands, the issue has become one of recognition of someone known to the victim than identification of a stranger. From the evidence it is clear that it was not a fleeting glance at a stranger but recognition of an known person namely the accused over a period of approximately 30 minutes in broad daylight. She was not questioned by defence counsel on whether anyone of her assailants were wearing masks over their faces at the time she was raped. The fact that Peter Kenny who was accompanying her to the main road and her husband were not called by the prosecution to give evidence does not concern me. I consider the victim to be a witness of truth. I am convinced beyond reasonable doubt on the evidence of the victim alone that the accused was one of those who abducted her and raped her and subjected her to the indignities she has described. I accordingly find the accused Kevin Mariano guilty on both charges.
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Lawyer for the State:		Public Prosecutor
Lawyer for the Accused:	Public Solicitor