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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 682 of 2000
THE STATE
LUKE SITBAN
(No. 1)
WEWAK: KANDAKASI, J.
2004: 3rd, 4th, and 7th June
CRIMINAL LAW – PRACTICE & PROCEDURE – Defence case to prosecution witness for the first time – Failure by defence to call evidence supporting the case put – Effect of – Recent inventions and most unfair questioning – Unreliable evidence.
CRIMINAL LAW – PRACTICE & PROCEDURE – When identification is only issue for trial – All other elements of offence not in issue – Court need to warn itself of danger of mistaken identification – Need to closely examine circumstances in which identification made – If circumstances in which identification is good, identification save to act on.
CRIMINAL LAW - Verdict – Rape of 10 year old girl – Identification only issue for trial – Positive identification of accused by victim and witness – Lack of medical evidence – Whether fatal – Prosecution evidence logical and in touch with commonsense – Accused claiming someone else committed the offence – No evidence establishing that claim – Accused evidence lacking logic and credibility – Guilty verdict return - Criminal Code ss. 347(1).
Cases cited:
The State v. Flotyme Sina (No.1) (Unreported judgment delivered on 18/05/04) N2540.
SCR No. 1 OF 1980; Re s. 22A (b) of the Police Offences Act (Papua) [1981] PNGLR 28.
The State v.Ben Noel & Ors (Unreported judgment delivered on 31/05/02) N2253
The State v. Cherobim Kani Peso (Unreported judgment delivered on 13/06/03) N2412.
John Jaminan v. The State (N0.2) [1983] PNGLR 318.
The State v. Cosmos Kutau Kitawal & Anor (No 1) (Unreported judgment delivered on 15/05/02) N2266.
The State v. Kevin Anis and Martin Ningigan (Unreported judgment delivered on 7/04/03) N2360.
The State v. Eki Kondi & Ors (Unreported judgment delivered on 23/03/04) CR NO.1451 of 2003 & Ors.
The State v. Donald Angavia & 2 Ors v (Unreported judgment delivered on 27/04/04) CR 256 of 2004.
Jimmy Ono v. The State (Unreported judgment delivered on 04/10/02) SC698.
The State v. Marety Ame Gaidi (Unreported judgment delivered on 01/08/02) N2256.
Overseas Cases Cited:
Browne v. Dunn (1893) 6 R 67 (HL).
Counsel:
J. Walai for the State
L. Siminji for the Accused
7th June 2004
KANDAKASI J: You pleaded not guilty to one charge of raping a small girl (named but referred to only as the victim) at Konabandu, in the Wosera District of the East Sepik Province on 30th September 1995. A trial therefore, took place on 3rd and 4th of June 2004 with a decision on your verdict reserved to today. This is now the decision of the Court.
In a bid to establish the charge against you, the State called two witnesses who gave oral testimonies under oath. That was in addition to admitting into evidence your record of interview with the police, in English and Pisin versions and marked as exhibit "A1" and "A2" respectively.
The Offence and its Elements
The Criminal Code as recently amended by the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002[1] creates and defines the offence of rape in these terms:
"347. Definition of rape.
(1) A person who sexually penetrates a person without his consent is guilty of a crime of rape.
Penalty: Subject to Subsection (2), imprisonment for 15 years.
(2) Where an offence under Subsection (1) is committed in circumstances of aggravation, the accused is liable, subject to Section 19, to imprisonment for life."
As I have recently observed in a number of rape cases recently as in The State v. Flotyme Sina (No.1) (Unreported judgment delivered on 18/05/04) N2540, the amendments seek to clarify and introduce a new definition for rape and a penalty regime. The definition is only in respect of who could be a victim of rape. Previously it was females only. Now, there is no gender indication. It defines the offence, in terms of a person sexually penetrating another without that other person’s consent. Otherwise, it has always been clear and it continues to be so, that the offence of rape has a number of elements. These are:
is guilty of the offence of rape.
In all criminal cases, the prosecution always has the burden to prove beyond any reasonable doubt, every element of an offence. In
SCR No. 1 OF 1980; Re s. 22A (b) of the Police Offences Act (Papua) [1981] PNGLR 28, the Supreme Court, per Greville Smith J, at page 34, confirmed this. I referred to the relevant passage and applied it in a number
of cases as for example in The State v.Ben Noel & Ors (unreported judgment delivered on 31/05/02) N2253.
In your case, this means, the State had the burden to prove each of the elements outlined above beyond any reasonable doubt. The question
for this Court to resolve then is, has the prosecution proved all of the elements of the charge of rape against you? But this question
must be viewed in the context of the issue for trial in your case, which was one of identification.
Given the issue for trial, you do not dispute that there was a sexual intercourse or penetration of the victim by someone on the day, date and place alleged. The only issue is whether, that someone was you or somebody else? The evidence called by both the prosecution and you in your defence will help answer that issue. Accordingly, I turn to consider of the evidence and facts emerging from them.
The Evidence
(i) Victim’s Testimony
The first State witness was the victim. Her evidence is very brief. She testified that on the day of the offence, 30th September 1995, she was a grade one student at the Kwanjivia Community School. She was on her way to her village Konabandu No.2 after being with one of her teachers. Her village is about one and half kilometres away from yours, Konabandu No.3. She passed through your village and as she did, she saw you working on the roof of a house.
She says, you followed her along the road and once out of your village and some distance away, you asked her if she was Sila’s daughter and she replied yes. Thereafter you grabbed her, she tried to scream, and you got a shirt and covered her mouth with it, saying, "if you call out, I will kill you." You then pulled her into the nearby bushes. There, you tore the trousers she was wearing, took off her pants and proceeded to have forceful sexual intercourse with her. As she was then a small girl, your having sexual intercourse with her rendered her unconscious for a while. Eventually, she regained her consciousness and cried all the way to the village police, a Patrick Yual. She told Mr. Yual what you did to her and showed him where the incident took place.
On the same day, Mr. Yual called a meeting at the village and tried to conduct a mediation over the incident but you ran away. Hence, there was no mediation and Mr. Yual reported you to the police. Police did not arrest you quickly as you were on the run until 2002, when they arrested you.
The incident took place between 3:00 and 3:30pm, with the sun still up. You did not have your face covered by a mask or anything like that. Prior to the incident, the victim had seen you as you were in the same area or village. She therefore says, she had no difficulty identifying you as the person who sexually attacked her and raped her. In Court, she clearly identified you in the accused box both by name and by pointing you out.
Prior to the incident, she said she had no boyfriend or girlfriend relationship with you, as she was a small girl. Neither, she nor her family had anything against you. Your attack on her ruined her schooling in that, she could not go to school anymore because of what you did to her. She is now married and is living with her own family.
Under cross-examination, you put to her that a Tahu and Cecilia found her and a Benson Tumun having sex. You also suggested to her that, Benson Tumun paid a compensation of K1,070.00 in 1998 for raping her. Further, you put to her that the mediation was over Benson Tumun raping the victim and not you raping her. The witness maintained that you raped her and that there was an attempt at mediation over that with you, but you ran away. As for the discovery, she said these two persons did come to find out because of her shouting and so did Patrick Yaul but that was over you raping her and not Benson Tumun. In fact, the witness said she knows no person by the name of Benson Tumun.
(ii) Patrick Yual
The second State witness was Patrick Yaul. Omitting the hearsay parts of his evidence, he corroborates most of the victim’s evidence, except for the part suggesting the victim being found having sex with Benson Tumun. I note that neither you, nor the State’s counsel, asked this witness about that. Given the long period of time that has passed, it is possible that the witness might have forgotten this part of the story, unless prompted. Besides, both Tahu and Cecilia have now passed away and are not available to give their evidence.
This witness elaborates on the mediation aspect, by saying, on receiving the victim’s complaint he sounded the garamut and had the village people gathered to address the problem. You initially attended and admitted to having raped or spoiling the victim. That made the victim’s father angry and he was going to hit you but you managed to escape through the window. As you ran away, mediation failed so, he reported you to the police on the immediate Monday, two days after the incident.
He also confirmed that, you were on the run from police for some time. Eventually, you were arrested and held in the police cells but you managed to escape from there. You were recaptured some time later, and you again, escaped from lawful custody. While on the run, you stole some vanilla from the village councillor and you were arrested and convicted for that. You are now serving a sentence of 1 year 6 months for that.
This witness knows you well and he clearly identified you in Court. You did not put any questions to him as to any ulterior motive he might have had to come to Court and falsely testify against you. You did however, put the same suggestions you put to the victim. This was in terms of a Benson Tumun raping the victim and the mediation being about that, and not a case of rape of the victim by you. The witness gave a similar response to the one given by the victim.
Your Evidence
In your evidence, you deny the allegations of the victim and the supporting evidence of Patrick Yual. You however admitted to building a house and was on the roof. At the time of the offence, you say you were building your brother’s house. You also confirm that there was the sound of the village garamut, which went from 3:00pm till about 6:00pm when you went to find out what it was about, after taking a bath from a river.
You say on the way to the village where the garamut sound had come from, you met some people who were returning from a mediation. They told you that the mediation was over a Benson Tumun raping the victim and that it was now over, so you returned to your house. In your record of interview with the police, which is in evidence with your consent, you do not make any mention of Benson Tumun being the person who raped the victim and paid compensation for it.
At the same time, you admitted to escaping from lawful custody in relation to this trouble. You say you did that because you were held in custody without a charge and record of interview for over three months.
You denied having any knowledge of the victim prior to the incident although she was from the next village and that she was attending the community school near your village. You also tried to say that, you do not know Patrick Yual, but under further questioning, you gave evidence of him having some grudges against your brother for him writing a letter and sending it to Port Moresby, which resulted in Mr. Yual being terminated from his position as a village police. You also tried to show that, your village and the victim and Mr. Yual’s village are far away. But on further questioning, it became clear that your village and theirs is next to each other and that both of these villages come under one village court area.
Submissions of the Parties
In your submissions, you argued for a rejection of the State’s witnesses’ testimony and an acceptance of your testimony. In making that submission, you point out that, the incident allegedly took place on 30th September 1995. In so submitting, you suggest that it was a long time ago and that the witness could be mistaken. You also argued that, there is no medical report corroborating the rape allegation. This, you submit is critical because the victim did not specifically say in her testimony that, you had your penis penetrate her vagina. Nevertheless, you accept that, there is evidence of recent complaint in the form of Patrick Yaul’s evidence.
The State argues that, there is no evidence of any difficulty with its witnesses’ recollection of what happened on 30th September 1995. It also submits that the law does not strictly require in cases like this a medical evidence for corroboration. The submission also points out that, the victim did give evidence about you having sexual intercourse with her and so therefore there is evidence of sexual penetration because there can be no sexual intercourse without sexual penetration. Further, the State argues that, the issue for trial as indicated at the commencement of the trial was one of identification. As such, strictly speaking, sexual penetration was not an issue for trial. In any case, the State points out that Patrick Yuals evidence which is evidence of recent complaint supports the victim’s claims of you raping her which you confirmed by your admission at the mediation.
The State further submits that, you tried to avoid a finding of guilt against you by distancing yourself from the victim and Mr. Yual in terms of them knowing you and you knowing them given that, your village and theirs is next to each other and that, you come within the same village court area. Further, the State points out that, your testimony is incredible in that, you put suggestions to its witness without having the evidence to back it up as well as saying that the village garamut went on for about 3 hours from 3:00pm to 6:00pm.
Assessment of Evidence
Your cross-examination did not cast any doubt in the evidence the State produced against you. The only thing you did was to introduce an allegation that a Benson Tumun raped the victim and he paid compensation for it in 1998. This was a recent invention because you did not raise this in your record of interview with the police.
The law clearly is that, in order for a party’s claim to have credibility, he must in fairness, put his case or claim to the other side’s witnesses by way of cross-examination. In a number of cases such as The State v. Cherobim Kani Peso (Unreported judgment delivered on 13/06/03) N2412, I noted that, that was in effect what is meant by a fair hearing in s. 37 (3) of the Constitution, which I considered was a codification of the rule in Browne v. Dunn (1893) 6 R 67 (HL). In that context, I further observed that where a party fails to do that, his or her subsequent claim loses credibility and is therefore not reliable. I noted that the Supreme Court in John Jaminan v. The State (N0.2) [1983] PNGLR 318 at pp. 332-333 per Bredmeyer J made that clear in the context of a belated claim of alibi.
This principle applies against evidence introduced for the first time in Court, without first raising it in a proper notice of an alibi, in the case of an alibi, and in his record of interview, or otherwise, an accused person’s response to a charge. The whole purpose of this is to ensure fairness to both parties prevail and thereby avoid a trial by ambush. The rational behind this rule is for a party conducting the cross-examination, to lay the foundation for the calling of his or her own evidence in rebuttal of the one called by his or her opponent. It follows therefore that, when a party raises in cross-examination his own version of the facts or a claim in a bid to rebut the other’s claim, he is expected to follow it through with the relevant evidence. Consequently, a party cannot put all manner of questions to an opponent’s witness and put all manner of suggestions of fact not having the backing of any evidence. If a party does that, it amounts, in my view, to an improper and most unfair conduct having the effect of a cloud of doubt over the offending parties credibility. Accordingly, in The State v. Cosmos Kutau Kitawal & Anor (No 1)(Unreported judgment delivered on 15/05/02) N2266, I rejected the accused evidence and found them guilty for a number of reasons. One of them was that, certain matters of fact put to the State’s witnesses under cross-examination was not followed through in the accused own evidence.
In your case, you did not produce any evidence to support your claim as put to the State’s witnesses that, a Benson Tumun raped the victim and paid compensation of K1,070.00 in 1998. The only evidence on this is your claim of the people you claim to have met on your way to the village after taking a bath at the river. You say these people told you of a mediation over Benson Tumun raping the victim. Clearly, this is hearsay evidence and as such, it is inadmissible and therefore unreliable.
Further, you said at the time of the mediation and before that, the rape on the victim, you were building your brother’s house. You did not say this to the police in your record of interview. Also, you did not call any evidence to support you, on your belated claims.
For these reasons, I find your evidence incredible and therefore unreliable. Accordingly, I reject your evidence. There is a further reason to reject your evidence. This has to do with the fact that certain parts of your evidence lack logic or is otherwise out of touch with commonsense. The main part here is your claim of the village garamut being sounded for about 3 hours from 3:00 to 6:00pm. If this was true, logic and commonsense and normal human being reaction dictate that you would have gone and find out what it was about. Yet, you do not give any reason for ignoring the continuous sounding of the garamut.
Further, given the fact that, your village and that of the victim and the village police man are next to each other, you would have at least, known the victim and the police man, if not the victim at least the village police man given his position. You tried your best to give a picture that you do not know these persons, thereby, trying to avoid the fact that these persons know you well and they had no difficulty in identifying you, especially by the village policeman.
Clearly, these are illogical and out of commonsense accounts. In the The State v. Cosmos Kutau Kitawal & Anor (No.1)(supra) I stated the relevant principles of law when this turns out to be the case in these terms:
"Logic and common sense does play an important part in either the rejection or otherwise of evidence before a court of law and whether or not an accused person should be found guilty. In The State v. Gari bonu Garitau and Rossana Bonu [1996] PNGLR 48, applying a logical and common sense approach, the National Court found the defendants guilty of murder even when there was no evidence directly showing that the defendants had killed the deceased. The Court proceeded to convict them, when the defendants’ failed to provide a reasonable explanation for the appearance of the badly wounded deceased body in their house. On appeal, the Supreme Court affirmed the National Court’s approach and dismissed the appeal: see Garitau Bonu & Rosanna Bonu v. The State (24/07/97) SC528 and Paulus Pawa v. The State [1981] PNGLR 498 for an earlier authority on point."
I adopted and applied these principles in many other subsequent cases. Recent examples of these are my judgments in The State v. Kevin Anis and Martin Ningigan (Unreported judgment delivered on 7/04/03) N2360 and The State v. Eki Kondi & Ors (No. 1) (Unreported judgment delivered on 23/03/04) N2542.
Turning now to the evidence called by the State, I find that the evidence called by the State is logical, consistent and cogent against which you raise no arguments. There is no evidence, as noted already, of any loss of memory of the witnesses. Indeed, the demeanors of the witnesses do not give me the impression of any loss of their memory and inability to clearly recall the relevant facts. I therefore, accept the evidence for the State as credible. The only argument you make as against them is that, they are insufficient in that, there is no medical evidence corroborating the claims of sexual penetration.
The evidence on this aspect is clear. The victim said, you grabbed her and pulled her into the nearby bushes. There, you forcefully tore down her trousers and pulled her pants down. You then proceeded to have sexual intercourse with her, which resulted in her being rendered unconscious for a while. You merely denied any sexual intercourse with the victim and sought to shift the blame belatedly, on a Benson Tumun. Having rejected your evidence, I find there is no evidence rebutting the clear evidence against you. I therefore find that the lack of medical evidence is not critical.
In The State v. Donald Angavia & 2 Ors v (Unreported judgment delivered on 27/04/04) CR 256 of 2004, a similar argument was raised and I dismissed it. That was on the basis that, if there were a medical report, it would have been of no use because the victim did not undergo a medical examination until four days later. In the present case, immediately after the commission of the offence, the village leaders tried to have it resolved at the village level by mediation. However, you ran way and that did not result in any resolution. The matter was thus reported to the police, about two days later. Accordingly, I find that if the victim under went a medical examination and a report was made available, it would not have assisted on the question of sexual penetration, particularly in the absence of any suggestion or allegations of any physical injuries.
Finally, given the main issue for trial, it is necessary to ask, whether the evidence identifying you as the offender is sufficient and save for the Court to proceed to convict you on? The principles governing the issue of identification are well-settled in our jurisdiction. With the endorsement of the Supreme Court in Jimmy Ono v. The State (Unreported judgment delivered on 04/10/02) SC698, I summarized the relevant principles in The State v. Marety Ame Gaidi (Unreported judgment delivered on 01/08/02) N2256, in this way:
"In summary the principles are these:
(a) a convincing witness may be mistaken; or
(b) a number of witnesses could be mistaken;
In line with these principles, I warn myself that there is always the risk in every case that, even a credible witness might make mistakes in identifying a know person, and your case is no exception. It is therefore, necessary to closely examine the circumstances in which you were identified and determine whether or not, you were properly identified.
The circumstances in which you were identified are these. It was broad daylight, with the sun still up. The time is estimated to be between 3:00pm and 3:30pm. This was a close physical encounter with the victim and not a quick fleeting glance. You come from a village next to or close to the victim’s. Immediately after the rape on the victim, you admitted during a mediation in the village on the same day of the offence and ran way when the victim’s father got angry and was trying to fight you. There is neither any evidence, nor did you suggest to the State witnesses that, they could be mistaken in their identification, say by reason of poor eyesight or some obstruction. At the time of the offence, you wore no mask or anything like that, that could make your identification difficult. Additionally, you escaped arrest initially and after your arrest, you escaped from lawful custody three times. In these circumstances, I find that, there was no mistake in you being identified as the offender. Your admission and subsequent other actions confirmed that.
For these reasons, I am satisfied on the required standard of prove that, the State has established your identification and the charge
of rape by you against the victim on the day, date and place set out in the indictment. I therefore return a verdict of guilty against
you on the charge of rape contrary to s. 347 of Criminal Code. Accordingly, I order that you be remanded in custody pending your sentence. I further order that a warrant of commitment in those
terms be issued forthwith.
_________________________________________________________________
Lawyers for the State: Public Prosecutor
Lawyers for the Accused: Public Solicitor
[1] (No. 27 0f 2002) s. 17.
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