N4922

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 392 OF 2006

THE STATE

V

PHILIP NANGOE

Buka: Cannings J
2007: 10, 11, 18 September

CRIMINAL LAW – rape, Criminal Code, Section 347 – trial – general denial – complainant did not give evidence – whether conviction can be entered in absence of evidence of the person allegedly raped

A man was indicted for rape. He pleaded not guilty. It was the State's case that the accused, who had been drinking till the early hours of the morning with a friend, left his friend when a woman walked past on the road, then proceeded to rape the woman. The woman was mentally retarded and did not give evidence in the trial. The State, however, produced a witness who said that she saw what happened and the friend of the accused with whom he had been drinking; plus a number of other witnesses, family members and medical staff who dealt with the complainant after the incident. It was not in dispute that the complainant was raped but the accused, who remained silent and produced no evidence, denied involvement.

Held:

(1)	Though certainly desirable, it is not essential in a sexual offence case, that the complainant (the person against whom the offence was allegedly committed) give evidence, if there are good reasons for the absence of that evidence.

(2)	Here there were good reasons owing to the mental condition of the complainant, so the case turns on whether the evidence adduced by the State proves the two essential elements of the offence: sexual penetration and lack of consent.

(3)	The case turns on the credibility of the eyewitness evidence and of the evidence of the friend with whom the accused had been drinking. Both witnesses gave credible evidence, which was corroborated by the evidence of other witnesses.

(4)	There was sufficient evidence for the court to be satisfied beyond reasonable doubt that the accused sexually penetrated the complainant without her consent, in circumstances of aggravation. The accused was accordingly convicted of aggravated rape.

Cases cited

The following cases are cited in the judgment:

Eddie Sam v The State SCRA No 11 of 2004, 30.08.07
John Beng v The State [1977] PNGLR 115
John Jaminan v The State (No 2) [1983] PNGLR 318
The State v Alex Matasol Hagali CR No 928 of 1997, 28.09.06
The State v James Yali (2005) N2988
The State v Jimmy Aiyo CR No 147 of 2005, 28.09.06

TRIAL

This was the trial of an accused charged with rape.

Counsel

L Rangan, for the State
P Kaluwin, for the accused

18 September, 2007 

1. CANNINGS J: Philip Nangoe, the accused, has pleaded not guilty to aggravated rape. The offence was allegedly committed at Kutubuta village, Buka Island, between 3.00 and 6.00 am on 23 February 2004. It was the State's case that the accused, who had been drinking to the early hours of the morning with a friend, left his friend when a woman walked past on the road, then proceeded to rape the woman, the complainant, "Hessa". She was 20 years old at the time. She is mentally retarded and did not give evidence in the trial. Though certainly desirable, it is not essential in a sexual offence case, that the complainant (the person against whom the offence was allegedly committed) give evidence, if there are good reasons for the absence of that evidence (Eddie Sam v The State SCRA No 11 of 2004, 30.08.07). Here there were good reasons owing to the uncontested mental impairment of the complainant, so the case turns on whether the evidence adduced by the State proves the two essential elements of the offence: sexual penetration and lack of consent. The State produced a witness who said that she saw what happened and the friend of the accused with whom he had been drinking, plus a number of other witnesses; family members and medical staff who dealt with the complainant after the incident. It is not in dispute that the complainant was raped at the time and place alleged by the State. But the accused, who remained silent and produced no evidence, denied involvement. 

EVIDENCE FOR THE STATE

Oral evidence

2. Six witnesses gave oral evidence for the State. Two of them were key witnesses. Helen Meats says she saw what happened and identified the accused as being the person who raped the complainant. Elwin Kewa is the man who had been drinking with the accused prior to the rape incident.

3. The other witnesses were family members (Ruth Kamar and Emily Tatani) and medical staff (Grace Hanette and Ludwina Nahi) who attended on the complainant after the incident. Their evidence is of less direct relevance.

Exhibits

4. Eight documents were admitted. The first three were medical documents. The remaining five, including the accused's record of interview, related to the police investigation. The accused denied having sex with the complainant and denied seeing her at the time and place of the rape incident.

HELEN MEATS' EVIDENCE

5. She is 30 years old, from Kutubuta village. She is related to the complainant, who is long-long, she said. She remembers the incident that took place near her house next to the Buka Highway about 5.30 am on 23 February 2004. She was awake and in the house with a number of other people when she heard shouting coming from the road. She went out to the road. She heard Hessa calling 'Philip, get away from me, I didn't come here to fight with you or for you to do such things to me'. Helen said that she hid under a mango tree and saw Philip sexually penetrating Hessa. He was on top of her. She didn't shout, get cross or go for help as she was scared Philip might hit her. The incident took place just off the side of the road. There were no trees or plants blocking her view. She was about eight metres away from where Philip and Hessa were. She observed what was going on for about five minutes before Philip let go of Hessa and went away. Helen pulled Hessa towards her and took her to her house. Her trousers were torn, her shirt was soiled, she had a scratch on her face, there was blood on her clothes, apparently coming from her vagina, she was crying. After a while, Hessa's mother came past and Helen called her in to take Hessa away. Helen told the mother that Philip had raped Hessa. Then her mother took her away. Helen identified the accused as being Philip that she saw that morning having sex with Hessa. She is not related to him but used to see him in the village and talk to him. She knew who he was. She has never had a bad relationship with him or his relatives. She saw no person other than Philip and Hessa at the place where the incident took place.

6. In cross-examination the defence counsel, Mr Kaluwin, questioned the witness intensively. Why didn't she seek help from other members of the household either before or after she left the house to check on what was happening on the road? She said she recognised Hessa's voice. That is why she went to investigate. There were men in the house, already awake, when she first heard the shouting. She does not know why the men did not go and investigate. She does not know what they were thinking. When she got there and saw what was going on, she felt afraid to do anything except observe. It was not dark, it was already dawn and she could see what was happening. She knew it was Philip. Asked exactly where the incident happened, Helen Meats said that it was neither under a tree nor in the middle of the road. It was on the side of the road. That is what she told the police when they did their investigation. She denied making up stories about what happened.

ELWIN KEWA'S EVIDENCE

7. He is 30 years old and lives in the locality of the rape incident. He is an educated man, having graduated with a Diploma in Arts from Divine Word University. He was with Philip early the morning of the incident, 23 February 2004. He had been drinking with him on the nights of 21 and 22 February 2004. They had both been drinking home brew and were drunk as they were walking along the road. A woman walked past and went ahead of them. Philip told him to wait and said 'I'll go and see this woman'. Elwin says he stopped to repair a cassette music tape that he was playing. Then he heard a woman screaming. She said "Philip, Philip'. That is all he heard. He ran towards the scream, then he got to the spot outside Helen's house and saw Philip there. Philip was short of breath. Philip said nothing but later they went to Elwin's mother's house where Philip said he had had sex with that woman. Philip said it was Hessa. Later he and Philip went to look for more home brew at Elwin's father's village. One of Hessa's cousins came there and assaulted Philip.

8. In cross-examination Elwin admitted to being drunk on the morning of the incident. But he was not so drunk that he could not run. He ran about 60 metres when he heard the woman screaming. He ran. He did not fall. He can remember that when he got to the spot he heard Philip gasping for air. Philip was drunker than he, Elwin, was. Elwin said that he is related to Helen Meats but not to Hessa.

OTHER ORAL EVIDENCE

9. Ruth Kamar is Hessa's aunty. Hessa was staying with Ruth at the time of the incident. Ruth says that when she woke up on the morning of 23 February 2004, Hessa was not there so she went looking for her. She found her with another aunty, Emily Tatani. Ruth observed that Hessa's clothes were torn and soiled and there was blood on her backside. She asked Hessa what happened and Hessa said Philip had held her tight and had sex with her. Despite Hessa's mental problem, Ruth said that there are times when she can communicate clearly. Ruth took Hessa to the clinic, with Emily.

10. Emily Tatani is another of Hessa's aunties. Hessa's biological mother is a sister of both Ruth and Emily but Emily is known as Hessa's mother. Emily collected Hessa at Helen's house. Helen told her what she had seen and Hessa told her, Emily, that Philip had had sex with her. Emily went with Ruth to the clinic, to get the nurse to check Hessa. Emily saw blood from Hessa's vagina.

11. Grace Hanette is a registered community nurse at the Elutupan aid post, where Hessa was taken. She observed that Hessa had scratches and was bleeding from the vagina and in pain. Hessa is her sister-in-law. Grace's opinion was that there had been penile penetration.

12. Ludwina Nahi is a nursing sister in charge of mental health at Buka Hospital. She knows Hessa and has examined her mental condition. In her opinion Hessa would be unable to say who was responsible for raping her.

THE DOCUMENTARY EVIDENCE

13. Exhibit A is a one-page medical report prepared by Grace Hanette on the day that Hessa was examined at the aid post. This report states that the man who threatened and dragged Hessa along the road was Philip Nangoe.

14. Exhibit B is a police statement made by Grace Hanette on 1 March 2004. She says that she asked Hessa on the morning she was admitted to the aid post, who scratched her face and body and Hessa responded that it was Philip Nangoe.

15. Exhibit C is a medical report by Sister Ludwina Nahi, who examined Hessa on 8 March 2004 in relation to an alleged sexual assault that had taken place on 23 February 2004. Hessa was reported to be disoriented, confused and depressed. She was prescribed some medication to stabilise her condition.

16. Exhibits D and E are statements by police officers of the Buka CID involved in the investigation, confirming that the accused had been cautioned and interviewed and that he denied involvement in the crime.

17. Exhibit F is the accused's record of interview. He was questioned intensively about the events of the early morning on 23 February 2004. He said that he knew Hessa but had never had sex with her. He was with Elwin Kewa from 10.00 pm on 22 February to daybreak on 23 February. He did not know anything about a woman walking past them on the road. They did not meet Hessa on the road.

18. Exhibits G and H are photos and a sketch map of the crime scene.

THE ISSUES IN DETAIL

19. The nature of the evidence and submissions of counsel give rise to these issues:

1	Was Helen Meats' evidence credible?

2	Was Elwin Kewa's evidence credible?

3	Is the other evidence consistent with evidence of the key State witnesses?

4	Are there gaps that create doubt about evidence of the key State witnesses?

In light of the answers to those questions, I will address the critical issue:

5	Has the State proven that the accused is guilty of rape?

1	WAS HELEN MEATS' EVIDENCE CREDIBLE?

20. Mr Kaluwin submitted that she was an unreliable witness for four reasons. First, her story that she was the only one in her house to go to the complainant's aid and that upon seeing her relative being raped she did nothing about it, was too unbelievable to be true. Secondly, her demeanour in the witness box was wanting. Thirdly, she gave inconsistent evidence about the exact place of the incident. Fourthly, the visibility was poor. She might have seen someone having sex with Hessa but it was not the accused.

21. I have found all these arguments unconvincing. Helen's evidence was believable. She gave an explanation for not raising the alarm once she observed what was going on. She was afraid. It is reasonable to infer that she was transfixed by what she was observing. A natural reaction of a woman in her position would have been to continue to hide. Her demeanour in the witness box was the opposite of wanting. She was a credible witness. She gave her evidence calmly and with precision and her demeanour was not of someone who was lying. She did not appear to be exaggerating the story. I regard her as an honest witness. Her evidence about where the incident took place was not martially inconsistent. Mr Kaluwin claimed that exhibit G (a photo of the crime scene) suggested that the incident took place in the middle of the road, not on the side. But Helen was cross-examined on that and insisted that the incident occurred off to the side of the road. As to the visibility, it has been difficult from all the evidence to pinpoint the exact time of the incident, However, I am satisfied that it was dawn and light enough for Helen to make an accurate identification. I remind myself of the dangers of convicting an accused on the basis of identification by just one witness and that an honest witness may be a mistaken one (John Beng v The State [1977] PNGLR 115; John Jaminan v The State (No 2) [1983] PNGLR 318). But here, the witness was identifying someone whom she knew, sexually penetrating another person whom she also knew. The accused was not a stranger. And the witness heard the complainant using the accused's name, Philip. I conclude that Helen Meats' evidence was credible.

2	WAS ELWIN KEWA'S EVIDENCE CREDIBLE?

22. Mr Kaluwin argues no, for three reasons. First, Elwin was too drunk to remember what happened. He had been drinking for two days. Secondly, Elwin said that when the woman went past him and Philip, he did not see who it was. Thirdly, Elwin's story about running 60 metres after hearing someone's scream was unbelievable and made him an unreliable witness. 

23. I found these arguments unconvincing. Elwin gave a detailed account of how he drank, and slept over a two day period. He indicated that in the hours leading up to the incident he had not been drinking heavily. His account of what happened seemed credible. Though Elwin did not say that he recognised the woman when she walked past, his evidence about later asking Philip about who he had had sex with suggests that it was Hessa. I do not consider that it is unbelievable for a man who is drunk to be able to run 60 metres upon hearing a woman scream. Elwin would have been 27 years old at the time. He still looks a fit and healthy young man. I was impressed by Elwin's demeanour. I thought he was a reliable witness. His evidence put the accused at the crime scene at the relevant time. Elwin observed the accused to be short of breath upon arriving at the spot from where he heard a woman scream. He heard the woman using the accused's name. This evidence strongly corroborates the eyewitness evidence of Helen Meats. I conclude that Elwin Kewa's evidence was credible.

3	IS THE OTHER EVIDENCE CONSISTENT WITH THE EVIDENCE OF THE KEY STATE WITNESSES?

24. Yes. Mr Kaluwin was correct in submitting that this evidence was circumstantial. However, it all adds up to the complainant, Hessa, being raped and Philip being the prime suspect from the very beginning. Mr Kaluwin raised a reasonable argument, based on Sister Ludwina's evidence, that Hessa would have been so traumatised by the incident that she would not be able to say who was responsible. However, the evidence of Nurse Grace and the two aunties, Ruth and Emily, was that Hessa said that Philip was the one who did it. This is specific evidence of what the complainant said and it came from three people who Hessa knew, who know how to communicate with her. I give it much more weight than what Sister Ludwina opined in response to a general question. I regard Grace, Ruth and Emily as honest and credible witnesses; and I have taken full account in reaching that conclusion of the fact that they are all related to the complainant.

4	ARE THERE GAPS THAT CREATE DOUBT ABOUT EVIDENCE OF THE KEY STATE WITNESSES?

25. Nothing the defence counsel referred to in his submission exposed any gaps in the evidence. This is quite a rare rape case, as the complainant did not give evidence but the court has been presented with an eyewitness to the incident. I reiterate that Helen Meats gave credible evidence. Elwin Kewa's evidence was also of a high probative value. The remaining evidence was strongly corroborative.

5	HAS THE STATE PROVEN THAT THE ACCUSED IS GUILTY OF RAPE?

26. In The State v James Yali (2005) N2988 (a conviction recently upheld on appeal by the Supreme Court) I pointed out that in a rape case it is not a simple matter of deciding who to believe. An accused cannot be convicted only on the basis of suspicion or belief on the part of the tribunal of fact. I also applied that fundamental principle of criminal law in two rape cases decided last year in Buka, The State v Alex Matasol Hagali CR No 928 of 1997, 28.09.06 (where the accused was convicted) and The State v Jimmy Aiyo CR No 147 of 2005, 28.09.06 (accused acquitted). The court's task is, rather, having weighed all the evidence and considered that there are reasonable grounds for believing the State's case, to determine whether it is satisfied to the required criminal standard of proof – beyond reasonable doubt – that the elements of the offence are present and that the accused is the perpetrator of the rape. If there is a reasonable doubt about the existence of the elements or whether the accused was the perpetrator, the court is obliged to acquit the accused.

27. Here, I am satisfied beyond reasonable doubt that the person who sexually penetrated the complainant without her consent early on the morning of 23 February 2004 at Kutubuta was the accused, Philip Nangoe. I am also satisfied beyond reasonable doubt that at that time the complainant had a serious mental disability, which is a circumstance of aggravation under Section 349A(g) of the Criminal Code. The State has proven its case under Sections 347(1) and (2) of the Criminal Code.

VERDICT

28. The accused is guilty of rape in circumstances of aggravation.

Verdict accordingly.
____________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused