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State v Frank (No.1) [2012] PGNC 341; N4644 (27 March 2012)

N4644

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 513 OF 2010

STATE

V

BIBI FRANK (No. 1)

Accused

Goroka: Ipang AJ
2011: 7, 8, 11, 14 & 15 November
19 December
2012: 27 March

CRIMINAL LAW – Rape – Criminal Code Act – Section 347 (1) & (2) – 4 Counts of sexual penetration of vagina and 4 counts of sexual penetration of anus with penis – circumstances of aggravation and pack –rape.

CRIMINAL LAW – unlawful Grievous Bodily Harm – Criminal Code Act – Section 319 – an object pushed in to anus and when pulled out – intestine came out through the anus.

Cases Cited
State v John Beng [1977] PNGLR 115
State v Kobale Rau (1977) N15609

Counsel

Mr. K.Umpake, for the State

Mr. R. Kasito, for the Accused

DECISION ON VERDICT

27 March, 2012

1. IPANG AJ: The accused was indicted on the 7th of November, 2011 on four (4) counts of vaginal penetration of the victim. EE without her consent and on the four (4) counts of anal penetration on the same victim without her consent pursuant to s. 347 (1) (2) of the Criminal Code Act and on one count of Grievous Bodily Harm contrary to s.319 of the Criminal Code Act. The accused had pleaded not guilty on all counts and a trial was conducted.

2. The following are the charges the accused was charged with;
   

Count 1: Rape of EE by penetrating her vagina with his penis without her consent between 31st December, 2009 and 1st January, 2010.

Count 2: Rape of EE by penetrating her vagina with his penis without her consent between 31st December, 2009 and 1st January, 2010.

Count 3: Rape of EE by penetrating her vagina with his penis without her consent between 31st December, 2009 and 1st January, 2010.

Count 4: Rape of EE by penetrating her vagina with his penis without her consent between 31st December, 2009 and 1st January, 2010.

Count 5: Rape of EE by penetrating her vagina with his penis without her consent between 31st December, 2009 and 1st January, 2010.

Count 6: Rape of EE by penetrating her vagina with his penis without her consent between 31st December, 2009 and 1st January, 2010.

Count 7: Rape of EE by penetrating her vagina with his penis without her consent between 31st December, 2009 and 1st January, 2010.

Count 8: Rape of EE by penetrating her vagina with his penis without her consent between 31st December, 2009 and 1st January, 2010.

Count 9: Grievous Bodily Harm of EE between 31st December, 2009 and 1st January, 2010

Brief Facts

3. The State alleged that between the hours of 12 midnight on the 31st December, 2009 and 1:00am on the 1st of January, 2010, the victim Everlyn Erekuwe in company of other ladies were at the dance place at Komiufa village. At the dance place a fight broke out so the dance was stopped.
   
4. It is alleged by the State that the victim and the other ladies tried to go home, when the accused came and decided to take them home. Other ladies walked in front, accused assisted the victim who was drunk. After walking some distance, State alleged the accused grabbed the victim by her neck, closed her month and dragged her away from the road to the gardens.
   
5. Three (3) accomplices assisted the accused. They stripped the victim naked and had sexual intercourse with her by vaginal penetration and anal penetration against her will. The accused and his three (3) accomplices then inserted an object in to the victims' anus and pulled the object out. As the object was pulled out, her intestine was also pulled out from her anus. She was unconscious and left in the garden until the victims' relatives found her the next morning.
   
6. State alleged that as a result of the assault the victim sustained vaginal and anal injuries plus other bodily injuries. State alleged the accused as being the principal offender pursuant to s.7 Criminal Code Act.
   
7. The accused has been charged pursuant to s.347 (1) & (2) of the Criminal Code Act. The wording of this provision states;
   

347 Definition of Rape

1. A person who sexually penetrates a person without his consent is guilty of a crime of rape.
   

8. Under this provision, the State bears the ultimate obligation to prove its case beyond reasonable that;
   
   • A person (Bibi Frank) sexually penetrates
   • a person (Everlyn Erekuwe) without her
   • Consent
     
9. The s.347 A defines or describes what consent means. The s.347 A (1) defines "consent" as free and voluntary agreement. Section 347 A (2) gives examples of circumstances under which a person is said to have not consented. For the purpose of this case, "consent" is not an issue.
   

STATE CASE

10. The State commenced its case by tendering the following documents with consent from the Defence Counsel;
    
    1. Record of Interview (Hand written) Pidgen Version – Exhibit 'A'
    2. Record of Interview (Type written) English Version – Exhibit 'B'
    3. Medical Report – Exhibit 'C' and
    4. Affidavit of Dr. Eri Ebos – Exhibit 'D'
       
11. Apart from tendering these documentary evidence, the State called the following witnesses; the victim Everlyn Erekuwe, Angela Michael and Garnet Akare.
    
12. The State put up a case that on the 31st December, 2009 the victim was at the house at Mt. Kiss. After dinner, one female by the name of Angela Michael got a container of locally brewed "Live lave". They mixed half of the content of the liquor and drank. Angela's big brother namely Junior suggested they find soft drinks and mix the rest to drink it. The victim was with Cathy Paiya, Nathasa, Marian, Cecilia & one other.
    
13. State claimed that all the above named went to the Maus Grass Club and sat down. There was a dance at the club and the accused went with her two (2) cousin sisters. The victim and others sat at the front of the store. Bibi was drunk and held a 'Live Lave' container. The accused came and sat down. The victim and the accused were good friends. The accused gave the victim two (2) glasses of 'Live Lave' and the victim drank. Junior went in to the dancing place to check before the rest of the ladies who came with him could go in the dance place. However, inside the dancing place, he saw one Paiya fighting with another person
    
14. Meanwhile, outside the dancing place, the victim felt dizzy so she slept on Cecilia's lap. Just then Junior brought Paiya out from the dance place. Junior told the ladies that they will not go to the dance place but they will proceed home. Cecilia woke the victim up. The accused came and said he will hold the victims hand and both will walk. So, he held the victim's hand and both walked. Junior and Paiya walked in front then the ladies and the accused and the victim followed. The accused and the victim walked 5 to 6 meters behind the girls.
    
15. As the victim and the accused walked down, the accused held the victim by her neck and covered her mouth. Three (3) boys who stood by went and assisted the accused and dragged her down to the mountain. After reaching the mountain slope, the accused & the three (3) boys held the knife at the victim's face (left-forehead) and pressed it hard so that the blood poured out. Victim struggled but found it hard to shout.
    
16. Accused and the three (3) boys laid the victim on the ground and removed her clothes. The accused was the first to remove his clothes, inserted his penis in to the victim's vagina and sexually penetrated her. Then he anally penetrated her. When the accused had his turn, the three (3) others did the same thing to the victim. Victim struggled and tried to call out. A knife was pushed in to the victim's anus and when it was pulled out; her intestine also came out through her anus. Victim was unconscious and slept on the kaukau vines till she was found in the morning and was taken to the hospital.
    
17. As a result of the aggravated rape, the victims' intestine was damaged. She has undergone surgery whereby a by-pass was done at her lower abdomen. She excretes at her abdomen and uses napkin to remove her wastes. She experiences vaginal bleeding and she urinates frequently. She also faces difficulty with her two (2) joints in the hips and finds it hard to walk at times.
    
18. Victim told the Court that she had two (2) glasses of mixed 'live lave' in the house and the other two (2) glasses were given to her by the accused near the dance place. She said she drank a total of 4 glasses. Two (2) glasses offered to her by the accused were mixed with a Cool-C (Apeade).
    
19. Victim said when she was assisted by the accused and walked towards her home, she felt headache, she said she saw the road and walked but accused said he will hold her and walk. Victim said the accused Bibi is well –known to her and other ladies they share betel nuts, smoke and food stuffs. Sometimes they called him as 'Big Boy' victim said though the accused is a married man, he is Natasha's boyfriend.
    
20. There was a fight and the victim and others were told to go home. Victims head was dizzy. She slept on Cecilia's lap. She woke up and accused assisted her. She did not get up properly but was assisted by the accused. Victim still saw the road and she walked. Paiya and Junior walked in front and the girls followed and the accused & the victim walked 5-6 meters behind the girls. States second witness Angela Michael confirmed Kathy, Maryanne, Natasha and Cecilia walked in front of the accused and the victim. Angela said as they (girls) approached the 'Hauslain' they noticed the victim and the accused (Big Boy) did not come.
    
21. Angela said almost one & half hour passed and only the accused came. The witness said she questioned the accused on the victims whereabouts and the accused replied "yupela kam wantaim ya" (meaning she (victim) came with you people). Angela further remarked "you both came at our backs" Angela said the accused maintained; "she (victim) came with you people" the witness said she saw accused trousers zipper loose (opened) and told the accused that she (the witness) was not drunk –where is the victim? Then the accused replied he had already taken the victim to the house.
    
22. When the witness arrived at the house the victim's baby was crying. The witness mother asked of where the victim was and was told she (victim) came first to the house. Realizing the victim wasn't at the house, they started searching for her. They searched houses, the bushes and even called her but no response.
    
23. During the early hours next morning (1st January, 2010) the witness mother went and stood up at the Digicel Tower and called for the victim. A matured lady by the name of Alice was about to go to the toilet when she saw the victim lying on the ground, covered with blood and was naked. The lady Alice called to witness's mother who went over and identified the victim. Witness's mother went back to the house got a pillow and bed sheet and the victim was put on a stretcher and carried to the road. Eventually, a police vehicle driven by Chief Sgt Dick Tambua came along was stopped and took the victim to Goroka Base General Hospital. On the way to the hospital, the accused was spotted and picked up. They all drove to the hospital and left the victim and Angela's mother.
    
24. The accused was taken to the Goroka Police Station together with witness Angela. At the Police Station, the accused revealed, there were other boys involved with him in the pack-rape and one of them was Jacob. Eventually Jacob was picked up and locked up in the Police cell together with the accused.
    

DEFENCE CASE

25. Defence called only one witness who is the accused himself who gave evidence on oath. He gave evidence that on the night in question he as a betel nut & smoke seller went to the dance to sell products. He said he was drinking a 2 litre container of Live Lave and a fight broke out and the accused said he saw the victim leaned against the wall so he went and got her and they walked down. He said he saw the victim as a sister.
    
26. The accused said two (2) boys at the gate offered to take the victim to their sisters' house but the accused said he insisted to take the victim to her house in which he did. Accused said he got the victim to the power post and towards the Bamboo trees; boys came at his back and pushed him. He said they (boys) threatened him and he feared for his life so he left the lady and came down. He said whatever they did to the lady, he does not know.
    
27. In the Record of Interview (ROI) English version dated 19th February, 2010 the question 55 was asked: what happened? Ans: As we came some people hide at the dark came out and hit me on my nose and face and broke my nose and mouth and blood came out. I fell down and they kicked me anyhow. He said after this he went to his house. He told the Court that the other girls were at the campaign House when he went. He said at his house, he told others; they assaulted him and got Everlyn so they all went looking for her. In the morning they found her and got her. Based on what the accused had told the witness Angela and others they went to the house and checked the victim but she was not at the house. The witness Angela and others then started to search for the victim.
    

CONTENTIOUS ISSUES RAISED

28. 1. Amount of Liquor consumed.
    

It is without doubt and not disputed that the victim consumed "Live Lave" – an alcoholic drink. To be exact the evidence clearly revealed that she consumed four (4) glasses of Live Lave mixed with soft-drinks. Two (2) glasses were consumed by the victim at the house prior to going up to the place where the dance was held and the two (2) other glasses were given to her by the accused whilst the victim was up at the dancing area. The victim admitted that, that was her first time to drink Live Lave.

2. Was the victim drunk at that time?
Victim described her state of mind as she felt her head was dizzy so she slept on Cecilia's lap. She said the accused held her hand and both walked at the back of the girls. State's second witness Angela Michael said victims head spin so she slept in Cecilia's lap. The accused went and lifted the victim and they all walked out of the dancing place. Final State witness Garnet Akare said she saw a drunkard women lying near a iron post. He said the lady (victim) was lying down and the accused stood close to her. He saw the accused lift the victim up and took her away. On been examined in –chief, she said she saw the road and walked. On been cross-examined the victim said she leaned on the accused as both walked.

29. From the outset of the trial, the defence has raised the issue of identification. Defence argued whether the accused has been lawfully identified as a perpetrator to the alleged crimes.
    
30. Defence main contention is that apart from the victim, the other State witnesses Angela Michael and Garnet Akare did not see what happened i.e. they did not see the accused drag the victim away and sexually penetrated her through the vagina and anus and furthermore cause grievous bodily harm to the victim. Counsel Kasito argued that the circumstances in which the identification by each witness was made, has to be examined closely. Kasito continued that the quality of the identification evidence has to be assessed and if quality is good it can be safe to assess the value of the identification evidence. Kasito referred to the case State v John Beng [1977] PNGLR115 where the Court made the following observations;
    

"where the identification relied upon is that of a single witness it is proper to be mindful that the identification "was critical" and that mistakes have in the Court must be satisfied that the witness not only honest but accurate in the evidence given"

The same Court went ahead to suggest the followings not exclusive to be taken in to consideration and these are; what opportunities the person identifying had to form a judgment of the identity of the person of the parties when the identification was made, the lighting, the opportunity to form a judgment and generally the circumstance in which the identifying witness formed his judgments as to the identification.

31. It is not disputed that the victim drank four (4) glasses of mixed Live Lave. Victim admitted that was her first time to drink 'Live Lave'. She said she was able to see the road and walk. She recognized the accused but cannot identify the other boys as it was dark. Near the bamboo trees it was dark.
    
32. On page 13 of defence submission presented to Court especially paragraph (i) (ii) (iii) (iv) and (v) defence Counsel drew Courts attention to some aspects of evidence which State witnesses could contradict each other. I have taken note of them. However, the most important fact is that though the victim had four (4) glasses of mixed 'Live Lave' she was still in control of mental faculty and was able to give direct eye witness account of what happened to her. In this regard I do agree with State Prosecutors' submission in paragraph 8. Basically, the victim was drunk, she was in control of her mind (State of mind) and that she was able to identify and gave accurate account that the victim gave was that the accused assisted her to walk home. She and the accused walked 5-6 metres behind the other ladies. Along the way, the accused grabbed her by the neck, closed or blocked her mouth with his hand and dragged her to the bushes. About the same time three (3) boys assisted the accused. They assaulted her and threw her on the ground and stripped her naked. She recalled that the accused was the first to have sexual intercourse with her by penetrating her vagina and later her anus with his penis. Later the three (3) other boys followed and did the same thing. They then pushed a knife in to her anus and as the knife was pulled out, her intestines came out.
    
33. Garmet Akare gave account of what he saw up at the mountain and outside the dancing place. His evidence is consistent with the victims' evidence that when accused took the victim away, the three (3) boys that followed were Jacob, Billy and Daniel. Later in the next morning Jacob's name popped out at the Police Station which eventually led to his arrest and detention. This basically confirmed Garnet's evidence on the three (3) boys that he saw.
    
34. It is without doubt the evidence of Angela Michael is circumstantial in nature. But what the accused told Angela and others who waited for the accused and the victim is quite interesting. Angela gave account of the victim and the accused walking at their back some 5 – 6 metres. However, she said they waited one (1) and half hours and eventually the accused arrived without the victim. When questioned by Angela, the accused gave conflicting responses. The following were the responses given by the accused;
    
    • (i) The victim had come earlier with Angela and others (stated twice)
    • (ii) That the accused had already left her at the house.
      
35. These both versions of excuses given by the accused was later discovered to be all lies and could reasonably infer that the accused was concealing the truth of the whereabouts of the victim. Next important point is that when the accused came to Angela and the others, he was seen with no swollen face, nose or cuts or bruises. The only thing visible was that the zipper of his jean trousers was undone. This was a completely different version given during the Record of Interview as alluded to earlier.
    

Recognition Verses Identification

36. Defence had raised the issue of identification, in that there was no light, there was a scuffle in which the accused was punched and the victim was dragged away. I am mindful of the inherent dangers and the need for caution before convicting on the corrections of identification. See State v Kobale Rau (1977) N15609. However, in this present case it is not so much of identifying a total stranger. The accused person is personally known to the victim and the ladies who were with the victim. The victim did easily recognize the accused. In this regard I have reminded myself that mistakes in recognizing close relatives and friends are sometimes made.
    
37. What's the quality of identifying evidence in this case? The accused is well –known to the victim. The victim and other ladies call him "Big Boy". They all live in the same locality. On the night in question it was the accused assisting the victim to walk and while walking the accused grabbled the victim's neck and closed her mouth. Though a bit drunk, the victim could still walk and see the road, her mental state of mind was functioning and she recognized the accused to be the first person to sexually penetrate her vagina and then her anus.
    
38. Having heard evidence from both sides the State and the Defence, I am satisfied beyond reasonable doubt on the involvement of the accused in committing these crimes. I am satisfied that the accused person Bibi Frank was the person who sexually penetrated her vagina and anus with his penis. Then he as the principal offender was with others when an object was pushed through the victim's anus causing her grievous bodily harm. These are more than enough evidence to show that the accused was aided and abetted in the commission of the offences by his three (3) accomplices. I therefore found him guilty as charged and convict him on all counts.
    

Verdict: Guilty on all Counts.
__________________________________________________
Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyer for the Accused