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State v Mainde [2004] PGNC 93; N2679 (21 May 2004)

N2679

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 665 of 2003

THE STATE

-V-

ALLAN MAINDE

GOROKA: KANDAKASI, J.
2004: 12th, 13th, 17th, 18th and 21st May

CRIMINAL LAW - Verdict – Alleged rape of two victims by one man using black power – General denial – State obliged to prove all elements beyond any reasonable doubt – Inconsistencies in testimonies and illogical and out of commonsense accounts in State’s case – Effect of – Serious doubt in State’s case – Not guilty verdict returned – Criminal Code ss. 347(1).

Cases cited:
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. Peter Malihombu (Unreported judgment delivered on 29/04/03) N2365.
The State v. John Warkuwo (Unreported judgment delivered on 04/10/02) N2372
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 (1) (Unreported judgment delivered on 24/03/04) N2542.

Counsels:
N. Miviri for the State
M. Aipe’ei for the Prisoner

21st of May 2004

KANDAKASI J: You pleaded not guilty to three charges of rape of two sisters (named but referred only to as victims) at the Genoka settlement here in Goroka on 8th, 9th and 10th November 2002. A trial therefore took place on 12th, 13th, 17th and 18th May 2004.

The State admitted into evidence with your consent, your record of interview with the police in both the English and Pidgin versions as exhibits "A1" and "A2" respectively. It also admitted into evidence the statements of the police officer who conducted the record of interview Nuke Mary and her corroborator Kai Elizabeth as exhibits "B" and "C" respectively.

In addition to admitting into evidence this documentary evidence, the State called the two victims, their mother, and their uncle who gave evidence under oath. In your defence, you gave a sworn testimony and called no other witnesses.

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.

The amendments seek to clarify and introduce a new definition for rape and a penalty regime. This is only in respect of who could be a victim of rape. Previously it was females only. Now, there is no gender indication. It creates the offence by now defining the offence of rape as sexual penetration of a person by another person without the 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:

1. A person who;
2. sexually penetrates;
3. another person;
4. without that person’s consent.
   

The law requires the prosecution to prove each of these elements of the offence beyond any reasonable doubt: See SCR No. 1 OF 1980; Re s. 22A (b) of the Police Offences Act (Papua) [1981] PNGLR 28 at page 34, per Greville Smith J confirmed that. For a further authority and a case which quotes the relevant part of the judgment and applies them see The State v.Ben Noel & Ors (unreported judgment delivered on 31/05/02) N2253. Given that, the question for this Court to resolve in your case then is, has the prosecution proved all of the elements of the three charges of rape against you?

This requires a consideration of the evidence produced in Court. I therefore, turn to the evidence and facts emerging from them now, starting with a consideration of the evidence called by the State.

The Evidence

(1) First Witness

The first State witness was the younger of the two victims, who I will identify as victim two. She testified that on 8th November she and her bigger sister, the other victim (victim one) with another girl called Api went to see victim one’s boyfriend, a John Paul MacDonald at the Best Buy store here in Goroka. As they entered the Best Buy premises, you saw them and asked them to come to you and they did. Then you told them to follow you to the car park, saying you had something to show them. They did follow you to the carpark. While there, you took out something out of your pocket covered in sticky tape. At that time, victim one said to you that she wanted to see her boyfriend. You responded by saying to them, "if you want to get him, you follow me to my house" so they did. Under cross-examination, this was after waiting for you to finish your work at about 8:00pm.

Upon reaching your house, you told the rest of them to stay outside while you took victim one inside. Therefore, the witness and Api waited outside with two of your children, while your two other older children were away at the time. However, under cross-examination it became apparent that she told the police that there were 5 children outside playing. You did something in the house; she was not able to tell but it took about 5 to 10 minutes. Also, under cross-examination, it was apparent that she gave a statement to police in which she gave an estimate of 30 minutes. Thereafter, you and victim one came out with victim one appearing not well. You said to them to come to see you at Best Buy the next day to get their answer. They then walked home with victim one saying nothing about what you did to her or what she did with you.

The next day, the witness, Api and victim one went to the Best Buy store. You met them at the Best Buy store and told them that you did something but some little thing was blocking it and asked them to come and see you at your house in the afternoon and they did. Whilst there, there was a repeat of the events of the previous day. It took about the same time and the appearance of victim one was similar to the previous day.

The next day being the 11th of November 2002, victim one and the witness went to the Best Buy store to get the answer from you. You again repeated the excuse of some little thing blocking it and asking them to come to your house in the afternoon to sort it out. So they returned to their house. You went there later and after staying there for a while, you said to go ahead and they could follow you afterwards. Sometime later, the witness and victims followed you to your house.

When they were in your house, you took out a bottle and put it in front of them. You also took out a klina soap and a broom stick or match stick and put it in and said to them, if you tell anyone of your family members, this bottle is powerful and will kill your family members. You then asked victim one to go to a small house. Victim one however, responded by saying she was seeing her monthly period. Your response in turn was, "in that case, I will not sleep with you" and asked her to look for another girl or woman who was not seeing her monthly period. To that, victim one said to you that she and the witness will go and bring another girl or woman but you said no saying, it must be a blood sister, and called the witness’ name.

You then approached the witness and she initially refused to sleep with you but you insisted saying, she has to sleep with you on behalf of her sister (victim one). Even then, she refused but you insisted saying it will not take long and she will just have to call her sister’s (victim one’s) boyfriend’s name three times and that will be it. Thereafter you told victim one to stay outside and she did, leaving the witness and you inside the house.

Whilst alone with the witness, you told her to take her trousers out and lay down and she complied out of fear for her life based on what you did and told them. As she did, you asked her to open her legs and then you went and laid on top of her and proceeded to put your mouth on hers and put your penis into her vagina and had sexual intercourse with her whilst asking her to call out the name of her sister’s boyfriend’s name three times and she did. Thereafter, you finished having sex with her and then the witness and her sister returned to the house with your assurance that they would get the answer the next day.

At this time, the witness found out or came to know that, that is what you must have done to her sister.

The next day the answer did not come. They continued to wait for their answer for about two weeks, which was still in November of 2002, and there was no answer. Therefore, the witness and her sister went to their mother and uncle and reported what you had done to them. This made the uncle and mother angry causing them to come to you and argue with you over the incidents, which developed into a fight and it ended up in the police station. However, police did not arrest you until 27th January 2003. She does not know why it took the police so long. Meanwhile, you were at work, while their mother was going to and from the police station following up on the complaint.

She identified you in the witness box. When asked about her knowledge of you, she said you live in the same block as them, in fact about 100 meters away from their house and that you used to work at the Best Buy store. Under further cross-examination, the witness said the house you lived in and used at the time belonged to a man from Pangia. When you came there and lived, you came with 4 children and did not come with a wife. During the times you were there, she said she did not see you with a wife. Then during the time of the sexual encounters with her and her sister, she said you told them that your wife was in Port Moresby.

The witness said under further cross-examination that, she knows a McKenzie Theo as a relative. Nevertheless, she said she had no knowledge and idea about a competition for the position you held at the time of the offence, and that the rape story was to have you removed from the position.

(2) Second Witness

The next witness was the mother of the victims, Joyce Norman. She said she gave birth to the victims’ one after the other. The first is 16 years old now while the second is 17 years old after having given birth to them respectively on 20th December 1987 and 3rd March 1988. Under further questioning, this was clarified in terms of the witness not being sure on the dates but certain as to giving birth one after the other.

Her evidence is that, on 11th November 2002, the victims brought you into their house and sat down with her. While seated, victim one introduced you to her as Allan Mainde and you work at Best Buy, as a security supervisor and that you have some stories to tell her.

After the introduction, you told them that you are a black magic or power man. Through your black power, you made it possible for many black women to marry Whiteman. It costs about K3,000.00. She then asked if she could see your black power and you told her that it was in a bottle in your house and that you wanted to show it to her. You continued by asking if you could take the victims to your house and she said no and you left their house.

After your leaving, she continued to make her bilum and looked out through the window and could see the victims at a club in the area. Later she went to sleep. They came late in the night, she opened the door for them, and she continued her sleep.

Sometime later, during a morning time in December of 2002 about 2 to 3 weeks later from the 11th of November, victim one went crying to her with tears in her eyes with signs of fear. She then told her that you, Allan Mainde tricked her and her sister in terms of having black power and having sexual intercourse with her (victim one) twice and her sister once. Victim one revealed everything as per the evidence of the first witness, with a description of what you did to victim one, including the story of the magic being in the bottle. The witness recounted this part of the report she received from her daughters with tears down her eyes as she was testifying. The only other additional information was that, you chewed on a bark of a tree as you spoke about your black power.

The witness said at the time, she was with her younger brother and the victims’ uncle. Victim two was asked to verify if the story told by the first victim was true and she did and told what you did to her in terms of her evidence. Upon hearing these stories, both her brother and the victims’ uncle got angry, so they hit the two of them, and then went over to you and demand compensation. You denied having sexual intercourse with the victims as described and refused to pay any compensation. This developed into an argument and later into a fight after which they took you to the police. This was within the same period, that is between 2 to 3 weeks later from 11th November 2002. When asked under cross-examination why it took the police until some time in January 2003 to arrest you, the witness said, it was something the police did and she does not know why.

Finally, under cross-examination, the witness admitted to knowing a McKenzie Theo. However, she denied any relationship except being a casual friend of victim one, consisting mainly of telling stories with her in the store. That person she said is a co-worker of yours.

(3) Third Witness

The third witness was Jackie Komogue. He is the small brother of the second witness and the uncle of the victims spoken of in the earlier witnesses’ evidence, particularly the second witness. His evidence is similar to that of the second witness but with some variations. Firstly, he does not give a complete and detailed account of what the victims reported, as does the mother. Secondly, he speaks of having asked victim one to tell why she was crying, something not mentioned by the mother. Thirdly, he says he was outside, when victim one reported to the mother, which is not consistent with the mother’s testimony. Fourthly, victim two was inside a room in the house while he and victim one, were outside on the veranda, again not consistent with the mother’s evidence.

(4) Fourth Witness

This witness was victim one. Her testimony is similar to that of the first witness and the second victim. She adds to that evidence by giving details of how you had sexual intercourses with her on the 8th and the 9th of November 2002. She describes it in terms similar to the one given by the first witness. She however departs and therefore contradicts quite significantly from the testimonies of the earlier witnesses in a number of respects. The first lot of departures is between her evidence and that of the first witness who was with her on all of the occasions at the relevant times. The second area of departure and inconsistencies is when her evidence is contrast with all the other evidence. I will take this up in detail in the following assessment of the evidence before the Court.

Assessment of the Evidence

The areas of departure as between the last witness’ (victim one’s) evidence and that of the first witness are these. Firstly, she said when her sister, Api and herself went to see her boyfriend, John Paul MacDonald at the Best Buy store and they entered the store, you emerged and asked "girls are you looking for someone" and they said yes they were waiting for the witness’ boyfriend. Then you said to them, I could see something wrong with the witness and asked them to come to you.

Secondly, on the third day she says you told her and her sister that, her boyfriend was having a problem with another woman but will get her answer. You then told them that you were going to see her boyfriend and shortly returned with a note in a piece of paper with a telephone number on it and asked her to call her boyfriend the next morning.

Thirdly, the next morning, she went to the public phone and called the number you gave but that turned out to be a false number or a phone number as it did not work.

Fourthly, on the third and final occasion, the time when she was under her monthly period and you asked her to look for another woman or girl she says she told you that there was no other woman or girl.

Fifthly, this witness says she opened the door of your house and called her sister in so you could sleep with her on the third occasion.

Further, this witness says, after you had finished with her small sister, you called her in and told her and her sister to sit down. When they were in your house, you took out a bottle and put it in front of them. The first witness spoke also of a kleena soap and a broom stick or match stick and you chewing on the bark of a tree. The first witness also speaks of you asking this witness (victim one), to go to a small house. There is no mention of these additional things by this witness.

With regard to the departures in this witness’ evidence from the rest of the evidence already in Court, it starts significantly with the date when she reported the incidents to her mother and her uncle. The witness says she reported the incidents on 12th November 2002, when she did not get her answer. The rest of the evidence suggest some 2 to 3 weeks later.

Secondly, she says she had no knowledge of you at any time prior to the incidents, even though she says your house is about 100 meters away from hers. Likewise, she says she has no knowledge of your family. This contrasts with the other evidence including that of the first witness, who says that they know of you coming to live without a wife. Indeed, she says you told her and this witness that your wife was in Port Moresby. The last witness (victim one) says nothing about that.

Thirdly, in contrast to her mother’s testimony, this witness says you came on your own accord on 11th November 2002, may be out of fear of being reported and stood in the door of their house. Further, in the same setting this witness says you did not ask her mother if you could take the witness and her sister to your house. The mother says you asked her to do that and she said no. Also, the mother says you went to their house with the victims’ and victim one introduced you to her. The first witness does not mention this in her evidence.

Fourthly, in contrast to the evidence of her mother, this witness says McKenzie Theo is her mother’s cousin. The mother does not acknowledge that and says Mr. Theo is a friend of the last witness or victim one.

There are many other instances of such departures and or inconsistencies for example the chewing of ginger per victim one’s evidence and a bark of a tree by the others. However, I consider the above will suffice to highlight the departures or contradictions. These departures or inconsistencies are very serious in my view, so much so that I have a serious doubt in my mind as to whether the witnesses are talking about the same things and or events as they say they are, or are they talking about more than one thing or event.

In The State v. Ben Noel & Ors (supra), I dismissed a charge of murder against the accused, because amongst others, there were serious inconsistencies in the evidence called by the State. I did likewise in the case of The State v. Peter Malihombu (Unreported judgment delivered on 29/04/03) N2365. My colleagues have arrived at similar decisions in many other cases. A recent example of that is the judgment in The State v. John Warkuwo (Unreported judgment delivered on 04/10/02) N2372 by Lenalia J.

In addition to the above observations, I noticed that the mother of the victim who was present in Court was trying her best to get the attention of victim one when she was giving evidence, which was clearly contrary to her evidence as noted above and that of the other witnesses, in a bid to communicate to her. Unfortunately, for her, the interpreter was in her way and she did not succeed.

I also observe that, if the third witness, the victim’s uncle was indeed with the mother of the victims, he would have had no difficulty giving a complete account of what the victims told him and his big sister but he did not. He was very general and appeared to be someone not too sure of the report he supposedly received from the victims. The mother gave a detailed account and he could have done likewise but he did not.

Apart for these factors, the State has not secured and produced in Court the bottle and the other items used in your alleged magic or black power as well as the shirt used to clean the victims’ vagina. If victim one’s evidence is anything to go by, the mother and the uncle received the report the next day after the last of the alleged sexual intercourses with you. Hence, if the mother and the uncle reported the matter to police, there was nothing preventing the police from conducting a search and securing these items to produce them in Court to support the allegations. These items are not in evidence nor, are there any evidence explaining why the police did not secure them. Further, there is no medical or scientific report confirming the alleged sexual intercourses.

Given all of these I ask, is the State’s case credible testing it against logic and commonsense? It is trite law that, commonsense and logic does play a major role in determining whether a witness and therefore his evidence are credible. I noted that in these terms in The State v. Cosmos Kutau Kitawal & Anor (No 1)(Unreported judgment delivered on 15/05/02) N2266:

"Logic and commonsense 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 commonsense 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 and many others.

In your case, in addition to the apparent inconsistencies in the State witnesses’ evidence as noted above, I have difficulty in accepting the evidence of the victims in a number of respects from a commonsense or logical viewpoint. Firstly, if the last State witness and victim one, is telling the truth in not having any knowledge or dealing with you prior to the 8th of November, how did she come to trust you and waited for you with two of her sister’s very late in the afternoon, at 8:00pm to be precise.

Presently, it is becoming very risky for girls to be out in the night on their own. The incidents in this case started in November 2002. By that time, the risk existed and continues to this day. Given that, I find it rather strange that the mother or the uncle and the victims, father if they have one, showed no concern. If they did have any such concerns, they could have asked them and would have eventually come to learn of the incidents earlier than later. There is no evidence of this in Court.

Secondly, if it is true that the victims’ side went to you and your people to seek redress, I cannot believe that they were not with arms while your people were, going by the third State witness’s evidence. Indeed, counsel for the State suggested to you under cross-examination that when people go to confront others because of a wrong done to one of them, they usually go in arms such as, guns and bush knives.

These serious inconsistencies and illogical accounts, leaves me with serious doubts as to whether you did in fact commit the offences the state alleges you committed. The law says that, in such a case, the benefit of the doubt must go to an accused person like you. Hence, where the State fails to discharge its burden to prove beyond any reasonable doubt a charge against an accused, it is not necessary, in my view, to consider, the evidence called by the accused unless there is a clear admission. For as I said in The State v. Peter Malihombu (supra):

"It is settled law that the defence can not establish the prosecution’s case. That means the prosecution must first establish a prima facie case against an accused person. That includes an obligation to negative any defence that may be raised by the defence. Once the prosecution has established a prima facie case, only then can the defence be called upon to answer it: R v. Agana Guguna (1965) N364 and The State v Cosmos Kutau Kitawal and Christopher Kutau (No 1) (15/05/02) N2266. It follows therefore in my view that if the defence has gone into evidence, a Court must delay a consideration of that evidence until it is satisfied that the prosecution has discharged its obligations. I believe this is the consequence of the Constitutional guarantee of presumption of innocence until proven guilty."

In your case, you clearly deny the charges against you. You do not make any clear admission. In these circumstances, I consider it not necessary and worth the Court’s time to consider your testimony when the State has clearly failed to establish any of the charges against you on the required standard of prove, beyond any reasonable doubt. I therefore, return a verdict of not guilty on all of the charges against you. Consequentially, I order that you be discharged and acquitted forthwith from the three charges of rape against you.
________________________________________________________
Lawyers for the State: Public Prosecutor
Lawyers for the Accused: Public Solicitor

^[1] (No. 27 0f 2002) s. 17.