N6887

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 35 OF 2016

THE STATE

V

GELU RAGI
Accused

Kokopo:  Higgins, J
2017:  25th April, 18th, 19th & 26th September 

CRIMINAL LAW – Allegation of rape – identification evidence – quality of identification evidence – scrutiny required even of purported recognition evidence.

EVIDENCE – alibi – found to be false – whether it can be relied on as evidence of guilt.

Cases Cited:
Papua New Guinea Case Cited

Beng v The State [1977] PNGLR 115

Overseas Case Cited:

Alexander v R (1981) 145 CLR 395; Fosta v R (2001) 208 CLR 593)
Edwards v R (1993) 178 CLR 193
Osland v R [1998] HCA 75
Smith v R (2001) 206 CLR 650

Counsel:

Mr C. Sambua & Ms J. Batil, for the State
Ms J. Ainui, for the Accused

DECISION

26th September, 2017

1.	HIGGINS J:  The accused, Gelu Ragi, stands charged upon an indictment dated 12 September 2017 alleging that he:

“… on the 8th day of July 2015 at Channel-Takubar, Kokopo, East New Britain Province in Papua New Guinea sexually penetrated one Elsie Raymond without her consent by inserting his penis into her vagina.”

2.	Upon arraignment, the accused entered a not guilty plea.

3.	Accordingly, the State has the burden of proving the guilt of the accused beyond reasonable doubt. I must also bear in mind that the accused has the benefit of a presumption of innocence.  That not only follows from the burden of proof resting upon the State but also requires that no adverse inference be drawn against the accused if a more favourable inference is open on the evidence.

4.	Finally, I must also bear in mind that the accused has no burden of disproof, thus if he fails to answer questions or offer exculpatory evidence, no adverse inference may be drawn from that fact.

5.	The State must prove that the accused engaged in sexual intercourse with the complainant without her consent knowing that she did not consent.

6.	It is the State’s case that the accused was one of a group of four men who forcibly entered the home of the complainant, armed with bush knives and a home-made gun with a view to do robbery.  One of them, alleged to be the accused, took the complainant to a nearby coconut patch and there forcibly raped her.

7.	The evidence adduced by the State was, firstly, that of the complainant.

8.	She deposed that on 8 July 2015 in the afternoon, she and her husband and two others (Peter Kumbun and Saki Takai) were confronted by four raskols.  Three of the gang members were armed with bush knives, the other with a firearm.  One of them struck Peter Kumbun with a knife, cutting his hand.  Another hit him with the flat side of a blade.

9.	The complainant attempted to run but one of the raskols held her hand and forced her up the hill towards a coconut patch near the nun’s convent.  He threatened to kill her if she did not comply.  He caused her to lay down on the grass where he undressed her and penetrated her vagina with his penis.  She said she saw his face but did not recognize him.  He was wearing denim shorts and a black singlet.  He had a white shirt over his head.

10.	When she returned home after he let her go, 3-4 houses were in flames.  The burning apparently commenced before the complainant was held and attacked.

11.	Next morning, she and her husband were at Peter Kumbun’s house when a man with a bush knife came up to them and said:

“Who reported me to the police?”

12.	Her husband replied:

	“We have not given any name to the police.”

13.	The complainant said that though she did not know who the man was, she recognized him as the man who raped her.  After he left, she told her husband so and he said to her that the man’s name was “Gelu”.  She identified the accused in court as that man.

14.	In cross-examination, the complainant conceded that it was dark in the area where this happened.  There had been some light cast by flashlights that one of the raskols had shone into the eyes of those who they were confronting.  Two of them possessed flashlights.  There was no electric lighting.

15.	There was also some illumination from the houses that were set on fire.  One house was about 7 metres away.  She could feel the heat of it.

16.	She denied that the man who approached the next day had been Telolo Ragi (elder brother of the accused) and Stephanie Ragi (his elder sister).  The accused came alone, she said.  He said he wanted to ‘clear his name’.  She could not describe what he was wearing as she had forgotten.

17.	Her husband, Marcus Raymond also gave evidence.  He was a security guard.  He said four raskols approached their house, about 7pm on 8 July 2015.  Three had bush knives, two had flashlights, and one had a firearm.

18.	He said he had resided in the area for about 6 months and knew the Ragi family.  He had seen Gelu Ragi on the road several times and had had short conversations with him.  He also knew Stephanie Ragi but did not know any of their brothers.

19.	His observation of the assailants was in darkness but partially illuminated by the flashlights.  The man he identified as the accused was wearing a black singlet and blue denim shorts.

20.	The men ordered them down to the nearby creek and set fire to the houses.  One cut Saki Takai on the hand and took his basket and phone.

21.	The next day, he said, he was at Peter Kumbun’s house with the complainant.

22.	The accused, he said, ran up to the house holding a bush knife.  He said:

“Who reported me to the police?”

23.	Mr. Raymond replied:

“No one has.”

24.	After that man left, the complainant told him that he was the man who raped her.

25.	In cross-examination, Mr. Raymond said he had not heard any rumours as to the identity of the marauding raskols of the night before.

26.	Despite not knowing any of the accused’s brothers, he stated that none of them resembled the accused.  He denied that the man who approached him on the 9th July 2015 was not the accused but his brother Telolo and his sister Stephanie.

27.	He offered his explanation for not naming the accused as one of the assailants, if indeed he had recognized him as he claimed, by saying that the police did not ask him for the name of anybody he might have recognized.

28.	It is trite law that evidence of visual identification of a suspect must be carefully scrutinised.  It is a notorious fact that a witness, however honest, may come to an incorrect identification of a person but be convinced of the accuracy of that identification beyond argument.  It follows that, because such a witness is telling the truth as they see it, their evidence will be the more apparently persuasive leading to an unfair prejudice to the accused.  There is need for caution and careful evaluation of the circumstances of the purported identification or “recognition” as the case may be. That evaluation must address the question whether it is reasonably possible (not likely) that the identification is erroneous.

29.	Beng v The State [1977] PNGLR 115 is often cited.  It is important to note that though recognition evidence is more reliable than identification of a stranger, it is still subject to the same need for scrutiny particularly in an area where many members of the same family or clan might be expected to bear superficial resemblance one to the other.

30.	In Beng, the Court accepted that there was no error in accepting the evidence of identification but in each case the Court must ask itself whether it is left with a reasonable doubt as to the accuracy of that evidence.  (see also Alexander v R (1981) 145 CLR 395; Fosta v R (2001) 208 CLR 593).

31.	The latter case sets out the kind of precautions which ought ideally to be followed in obtaining reliable identification evidence.

32.	The case of Smith v R (2001) 206 CLR 650 highlights the fact that identification is not an area of expertise.  A police identification is no more persuasive than that by a civilian.

33.	In this case, the original sighting of the rapist was in darkness, intermittently illuminated by flashlights and flickering flames. The victim did not recognize her attacker but identified the man who came to protest his innocence the next day as both the accused and her attacker.

34.	That identification is inherently unsafe.  Any person who resembled the attacker and who had fallen under suspicion might well be assumed by a victim to be that attacker.

35.	This is particularly so where, understandably, collaboration between victims of a broader attack has occurred.

36.	In this case, Raymond Marcus gave evidence of seeing the accused at the scene of the robbery and arson as one of the gang of raskols.  He does not purport to link that man to the sexual assault on the complainant.  It is, however, surprising that, if he did so recognize the accused, he did not the same evening pass that information to police.  Again, the confrontation the next day had the propensity to activate what is referred to as the “transference” effect referred to in Alexander and Fosta.  That is why having a victim pick out a photograph of a suspect will taint a subsequent line-up.  The witness may well subconsciously identify the photograph subject rather than the person seen at the crime scene.

37.	Assuming that it was the accused who confronted them on 9 July 2015, it is reasonably possible that whether or not the accused had been present at the scene of the armed robbery, he could be wrongly identified as not only a robber but also the rapist.

38.	Thus at the end of the State case the evidence was, in my view, such that a reasonable doubt existed over the identification of the accused as the rapist.

39.	However, the accused chose to enter into a positive defence case not only giving sworn evidence denying his presence at the crime scene but also relying upon alibi witnesses to support that evidence.

40.	Needless to say, the accused was not obliged to give or call evidence and no adverse inference can be drawn from his choice to do so.

41.	Indeed, an accused might make a sensible forensic decision to reserve his defence particularly if he or she feared efforts might be made to influence adversely that defence.  Nevertheless, such evidence, if given, is subject to the same scrutiny as any other evidence.

42.	The accused in his evidence said that on 8 July 2015 he had visited Vincent and Agatha Soksa at Seaview, Kokopo.  He stayed with them until shortly after 10pm.  He was dropped off by Vincent at the Channel junction and walked home from there.  He met one Willie Leni, he said who told him some houses had been burnt and asked him whether he knew of anyone involved.  The accused was wearing long black pants and a blue shirt.  He then had, he said, long hair in contrast to his brother Telolo who had short hair.

43.	He deposed that, later, it was rumoured that Telolo had been involved in the incident so, on the 9th July 2015, Telolo and Stephanie (their sister) approached the Raymond family to protest his innocence.

44.	The accused could not explain why Marcus Raymond would identify him as the man who approached himself and Elsie Raymond alone and not with Stephanie Ragi.

45.	I interpolate here that an accused is under no obligation to explain why, if it be so, that another witness has contradicted him or her.  To acknowledge such a duty would effectively reverse the onus of proof.

46.	The accused did acknowledge that Mr. Raymond knew his family well.

47.	It so happened that 8 July 2015 was the date of the 3rd State of Origin match at Suncorp Stadium Queensland which broke a tie with New South Wales to win back the trophy 52-6.

48.	It was put to him by Mr. Sambua for the State that, given that he and Vincent Soksa were members of a rugby team, the Takubar Brothers, Vincent was watching the game at a Mr. Yali’s house.

49.	It was further put to him that a neighbour of Mr. Soksa, a fellow security guard, Wesley Roger, was attacked and injured by raskols at or near the Raymonds’ house but no-one answered his calls for help.  That, it was suggested, was because they were not home.  The counter-suggestion was that the accused and Mr. Soksa had gone down to the beach while Mrs Soksa had gone to bed thus, it was to be inferred, they did not hear Mr. Roger’s cries for help.

50.	He added that he and Telolo looked similar to him save for their hair length at that time.

51.	Vincent Soksa gave evidence that the accused was with him as he said.  At 10:05pm, his wife suggested it was time to go to bed as he had to work next day.  He then took the accused to the Channel junction.  He rushed back for State of Origin but it was over.  That does not explain the lack of response to Mr. Roger’s cries for help.

52.	He agreed, in cross-examination, that he had no TV.  However, he denied he had gone to watch at Mr. Yali’s home (some 500 metres away).  He said he and the accused sat on the beach for a while swapping stories about football games.

53.	He had heard next day that the accused had been arrested in connection with the attack on the Raymonds.  He was asked why after he learned that, and became aware that that event coincided with the accused visiting him he did not go to police to offer the relevant information exculpating his friend and team and workmate.  In fact, the accused was not arrested till much later.

54.	His unpersuasive answer was that he was too busy with rugby team matters.  In addition to this, the witness also appeared to me to be evasive.  I was left with the distinct impression that he was lying to support his friend.

55.	Agatha Soksa also supported the alibi.  She said that 2-3 weeks after the State of Origin final, her husband had gone to police to tell them the accused was innocent but they were not interested.  She was aware of the trial and the evidence she could give 3 weeks previously.  Her husband had said it was 1 week previously.

56.	When asked about going to the police station, an event denied by her husband, she offered the unpersuasive response that he must have forgotten it.

57.	Needless to say, I found the evidence of the purported alibi unpersuasive and I reject it as false.

58.	Stephanie Ragi was called.  She deposed that she heard on 9 July 2015 that, there had been an incident the previous evening during which Raymond Marcus’s wife had been raped and Telolo’s name mentioned as the perpetrator.  She and he saw Mr. & Mrs. Raymond about 5pm on that day.

59.	When confronted with the rumour, she said, the Raymonds said they had been mistaken about Telolo’s involvement.

60.	It was about 3 month’s later, she said, that the accused was mentioned as being involved.

61.	Even so none of them offered that information to police.

62.	The accused was not arrested until 21 October 2015 according to police records.  His hair length then is not mentioned.  There is no independent corroboration of his hair length on 8 and 9 July 2015, though the Raymonds each say the man they identified as the accused had short hair.

63.	It is curious that if the police were informed of the involvement of the accused on or shortly after 9 July 2015, he was not sooner arrested.

64.	A further curious matter is that, Stephanie Ragi said, in cross-examination, that on 15 July 2017 she told the arresting officer that it had not been the accused who committed the crime but was told, in effect, that it was too late as the accused had already been arrested.

65.	That is incredible at several levels, the most fundamental of which is that the accused was not arrested until 21 October 2015.

66.	It follows that I am satisfied that the accused, aided by the Soksas’ and Stephanie Ragi have set up a false alibi for the accused.  There is some element of doubt in my mind as to whether Telolo Ragi or the accused confronted the Raymonds on 9 July 2015.  Not having seen Telolo and having no confirmation of the accused’s hairstyle on 9 July 2015, I cannot form a view one way or the other.

67.	Wesley Roger, a neighbour of the Soksas’ at Seaview gave evidence that he was at home from about 5pm on 8 July 2015.  He did not see the accused but he did see Vincent and Agatha Soksa and their children leave 6:30 – 7pm, to watch the State of Origin game at another neighbour’s house, 500 metres or so distant.

68.	Shortly, after 8pm he was attacked by raskols who abused, threatened and assaulted him.  He went to Mr. Yali’s home (where the TV was) for help.  FNS Security personnel drove him to police to complain.  On his return, the raskols had gone.  He had seen the Soksas’ at Yali’s house but not the accused.

69.	Wesley Roger was called, by leave, as a rebuttal witness.  It reinforces my view that the alibi evidence is false.

70.	Does that dispel the doubt I otherwise entertained at the conclusion of the State’s case?

Relevance of lies told by Accused (or on his behalf)

71.	In Edwards v R (1993) 178 CLR 193, the appellant, being a prisoner under transport with others was accused of procuring another prisoner, under duress, to perform an indecent act upon him.

72.	The appellant had given evidence that, in effect, he had ignored what was going on between other prisoners.  He said his reticence was due to fear of being branded a ‘dog’ and being assaulted.

73.	The trial judge had told the jury that if they concluded the appellant was lying that could be taken as corroboration of the victim’s evidence.

74.	At [15] of his judgment, Brennan J stated:

“If the prosecution were to rely on the telling of a lie as an independent proof of guilt the jury [or judge alone] would have to be directed that, in order to convict on that basis, they must be satisfied beyond reasonable doubt that the true inference to be drawn from the accused’s conduct is that he has confessed his guilt, … It would surely be a rare case in which it would be permissible to infer beyond reasonable doubt that an accused, by telling a lie, has confessed his guilt.  Generally, the jury is directed that the accused should not be convicted merely because he has told a lie.”

75.	That leaves open the use of a lie as a corroboration of other but challenged evidence.  Brennan J was of the view that it was open to the jury to have so concluded.  McHugh J agreed but the majority, Deane, Dawson and Gaudron JJ decided otherwise pointing out that establishing the falsify of a statement that the accused was not at the crime scene does not become probative of the particular contrary proposition that he or she was present.

76.	At [19] of their judgment, their Honours stated:

“… the reluctance of the appellant to recall any more than he was counselled to do in cross-examination occurred in a situation in which the appellant had been in custody and did not wish to inculpate others who were in custody with him – to be a “dog” in prison terminology.  That was not questioned by the prosecution as a motive for withholding the truth, indeed the prosecution suggested it.  Whilst in many cases, it must be a question for the jury whether a lie was told because the truth was perceived to be inconsistent with innocence or for some other reason, if it was established that there was a deliberate lie in this case about a material matter (and we do not think that it was), the innocent explanation for that lie was so plausible that the lie could not be probative of guilt.”

77.	In Osland v R [1998] HCA 75, the accused had been convicted of the murder of her violent abusive husband.  She and her son David, had jointly agreed to David striking the deceased with a sledge hammer.  She then lied about his “disappearance”.  The trial judge held, and the High Court agreed, that her lies in those circumstances, though they adversely affected her credibility generally could not be regarded as demonstrating consciousness of guilt.

78.	In the present case, the lies told and procured by the accused whilst adverse to his credibility generally are not inconsistent either with
not being at the crime scene but fearful that evidence of his presence would be accepted as evidence of guilt or being at the crime scene but not being the perpetrator of the rape.
In each case, there is a credible motive for the lies which do not involve a conclusion that the only rational basis for them is that he was present and that he was the perpetrator of the rape.

79.	The question remains then as it was at the conclusion of the State’s case.  That is, that there is a reasonable doubt as to whether this accused was the person who raped the complainant.  That doubt has not, despite the false alibi, been dispelled.

80.	I am obliged therefore to find the accused “not guilty” and verdict of acquittal is to be entered accordingly.

________________________________________________________________
Public Prosecutor’s Office:  Lawyer for the State	
Public Solicitor’s Office:   Lawyer for the Accused