N8565
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 112 OF 2013

THE STATE

v

TERRY REX

Kimbe: Batari, J
2020: 8th, 17th, 21st September
                
CRIMINAL LAW – Evidence – robbery – rape - accused with others allegedly robbed a home in the night, abducted and raped the victim – Alibi - identification general denials – defences of – proof of – onus on State to rebut defence and prove beyond reasonable doubt, guilt of accused – onus discharged – guilty verdict and conviction entered.

Facts

The accused pleaded “not guilty” to one count of armed robbery and one count of rape charged on the same Indictment in connection with an incident where a group of men entered a home at night with actual violence and stole household items. They chopped the victim, Michael Tomaono with a bush knife, abducted and ganged-raped his wife Esther. The accused denied being present.

Held:
(1)	The Court was satisfied, the accused was present throughout the whole of the incident. 

(2)	Where in a criminal trial, the identification of the accused person is the central issue, it is the duty of the trial judge to be; (a) very cautious in concluding that identification has been established, and (b) that the identifying witness is not only honest in his evidence but also accurate: SCR 39 of 2016 Jackson Naepe v The State (2020) (unreported SC judgment).

(3)	At the end of the prosecution case, it is good practice for the trial judge to explain the three options open to the accused person and let him or her make a personal election to remain silent, make a statement from the dock or give sworn evidence. The failure to do so may result in substantial miscarriage of justice: Section 572 Criminal Code Act; Monde Manuel v The State (2018) SC1732. [12]

(4)	In weighing up all the evidence before the Court, there is no requirement in law that the relevant facts be established with complete scientific accuracy in order to meet the standard of proof beyond reasonable doubt.

(5)	Where an inconsistency existed, there is no rule that a trial judge must reject all of the witness’s evidence because he finds some of it inconsistent: SCRA No. 34 of 2003, Ano Naime Maraga & 2 Ors v The State (2009) (Unnumbered SC Judgment).

Cases Cited

John Jaminan v The State (No.2) [1983] PNGLR 318
Monde Manuel v The State (2018) SC1732
Paulus Pawa v. The State [1981] PNGLR 498
R v Uno Tam & Maru U'u [1973] No. 766
R v. Ulel [1973] PNGLR 254
SCR 39 of 2016 Jackson Naepe v The State (2020) (Unnumbered SC Judgment)
SCRA No. 34 of 2003, Ano Naime Maraga & 2 Ors v The State (2009) (Unnumbered SC Judgment).
State v John Beng [1976] PNGLR 481
State v. Stephen Isaac Awoda (1983) N416.
The State v. Alex Ape (2004) N2703

Counsel

R. Luman, for the State
D. Kari, for the Accused

VERDICT
21st September, 2020

1.	BATARI J:	   Terry Rex is in court upon indictment charging him with two aggravated offences, namely; armed robbery and rape, pursuant to s. 368 (1), (2) and s. 347 (1), (2) of the Criminal Code.  The offences arose from the same set of facts. Prosecution alleged, Terry Rex (Rex) was one of many others who raided the home of William Tomaono in the night and stole from the family home with actual violence, various household items. The mob next abducted and raped William’s wife, Esther. It is alleged, the accused is guilty as a principal offender under ss. 7 and 8 of the Criminal Code.  Rex has all along denied the charges.   
  
2.	The main issue from the common and disputed facts is:

•	Whether Rex was present at the material times and during the course of the robbery and the commission of the offence of rape.

3.	This issue brings to the fore, factual issues on identification and principles on identification evidence. Collateral to this are issues relevantly arising from the defence of alibi and general denials.

Uncontested Facts

4.	The common facts are these. Between 14 and 15 August 2012 at night, the  victims, William Tomaono and his wife Esther William were asleep in their home at Kapore Land Settlement Scheme (LSS) Section 5, Block 370 when a group of men numbering more than 10 attacked between 11.00 and 12 midnight, armed with knives and stones. The men swore at and demanded William to show himself. William initially resisted but responded after the intruders attacked his house causing damages to the high-posts permanent structure and threatened to burn the building. He came out to remove the burning cloths and after he retreated into the house, the gangsters broke the door and forced William out. One of the gangsters chopped him on his left arm with a bush-knife while others entered the house. One of the men placed a kitchen-like knife at the nape of his neck, assisted by others who assaulted and forced him down the steps. William managed to wrestle the knife free from his captors and escaped. During the ordeal, William sustained a bush-knife wound to his left hand.     

5.	The gang stole from the family home, a TV set, CD discs, antenna with its cable and various other electronic components valued in excess of K1,000.00. 

6.	During the robbery, the gangsters abducted Esther. She was then seven months pregnant. They blind-folded and carried her down the steps to a nearby LSS block owned by a Gande where they gang-raped her. Alerted by an approaching flash-light, the mob moved her to another location where they left her. By then her blindfold had been removed. Two gang members assisted Esther to wear her clothes before leaving. Esther then made her way to a block owned by a Wasi where she sought refuge. 

7.	The incident was reported to the police at Kapore Police Station in the early morning of 15 August 2012, resulting in the arrest of Terry Rex the same morning.         

(i).	State’s evidence of Esther William.

8.	In addition to the agreed facts and the uncontroverted evidence of her husband William, Esther spoke of recognising a Dominic and the accused, Rex. She said after the others had left, he heard Dominic handing her clothes to Rex, instructing him to put the clothes on her. Esther said she was raped by many, she was so debilitated by the ordeal, she could only crawl to the nearby block owned by Wasi. She was assisted and accommodated until her husband located her at dawn.  
 
(ii)	State’s evidence of William Tomaono.

9.	State’s second witness, William Tomaono testified, that on the night in question, one of intruders was shouting, “police, police,” and calling him to come out as he was an escapee. William recognised the voices of a Robin, Justine and third he did not name. He shone a flashlight at Robin and asked what the matter was. In response Robin bad mouthed him. When he came near the door, the mob tried to pull him out, he resisted and retreated into the house. They then threw stones causing damage to the fibro walls and louvre glasses. The mob lit three towels and placed them against the windows.  Apprehensive of the house being set alight, William came out armed with a bush-knife and dislodged the burning towels. He saw and recognised a Dominic and Rex.  They stood on the step landing with Rex positioned in front of Dominic. He was the youngest amongst the many he saw. William fled back into the house and when the mob broke the front door, he surrendered. One of the gangsters chopped him on his left arm with a bush-knife while others entered the house. He said the accused pressed a knife against the back of his neck while others assaulted and assisted Rex in forcing him down the steps. William managed to disarm Rex and escaped from his captors.

(iii)	Admitted documentary evidence

10.	The State also relied on documentary evidence comprising; Records of Interview (RoI), two Police Witness Statements from police investigators and a medical report. The RoI does not contain any admission.   

(iv) 	Defence’s unsworn evidence of Rex Terry 

11.	In his defence, Rex Terry made a statement from the accused dock, following his personal election pursuant to s. 572 of the Criminal Code.

12.	At the end of the prosecution evidence and where a no case submission is rejected, it is good practice for the trial judge to explain the three options open to the accused person on how he or she intends to respond and let the accused person make a personal election to remain silent, make a statement from the dock or give sworn evidence. The failure to do so may result in substantial miscarriage of justice: Section 572 Criminal Code Act; Monde Manuel v The State (2018) SC1732.

13.	In his unsworn statement, Terry Rex spoke of being unaware of the trouble. He was with his family the whole night. The next morning when he was about to go to school, police fronted up at the house and detained him. His parents and a sister sibling followed him to Kapore Police Station. There, they learned of the incident of the night. Police assaulted him with a pipe to force his admission, but he did not speak out. Rex said he lived at Kapore, section 6 and was a grade 3 student at Kapore Primary School. He does not know Esther or William. Those two do not know his parents, nor do they know him, his brothers and sisters.  
.   
Principles applied:  Unsworn Statement from the accused dock 

14.	Giving the accused the liberty to personally decide on how to respond to the prosecution evidence against him is consistent with the statutory right under s. 12 of the Evidence Act (Ch. No. 48), that a person charged with an offence is competent but not a compellable witness for himself in any legal proceedings relating to the offence with which he or she is charged.

15.	The principle then is, where an accused person decides to remain silent, the Court may be left with an incomplete state of evidence.  In such cases, the Court may draw inferences that properly flow from the prosecution evidence and reach its conclusions. The general rule remains that failure to testify is not an admission of guilt and no inference of guilt may be drawn from the failure to testify. See, Paulus Pawa v. The State [1981] PNGLR 498.

16.	Where an accused person makes an unsworn statement from the accused dock, it is evidence before the Court.  Hence, an accused may establish a defence in the unsworn statement, bearing in mind always, that the statement does not carry the same weight as sworn testimony. See, R v. Ulel [1973] PNGLR 254; State v. Stephen Isaac Awoda (1983) N416.
   
Principles applied: Basis on which identification evidence is assessed.

17.	It is settled, where in a criminal trial, the identification of the accused person is the central issue, and where identification is made by a person who is either a stranger to or a casual acquittance of the accused person, it is the duty of the trial judge to warn himself or herself in evaluating the evidence of identification;

a)	to be very cautious in concluding that identification has been established, and

b)	to be satisfied that the identifying witness is not only honest in his evidence but also accurate.

(SCR 39 of 2016 Jackson Naepe v The State (2020) (unreported SC judgment)).

18.	In R v Uno Tam & Maru U'u [1973] No. 766 the court suggests the following considerations as a guide to determining reliability of the identification witness:

(i)	How long the person being identified was under observation;
(ii)	The type of lightings under which the identification was purportedly made;
(iii)	The distance from which the identification was made;
(iv)	Anything peculiar about the person being identified that impressed itself upon the witness;
(v)	Any special reason for remembering the person;
(vi)	How long afterwards was the witness asked about the person seen;
(vii)	How the description then was compared with the appearance of the accused.

19.	It was later emphasised in State v John Beng [1976] PNGLR 481: 

“When identification relied upon is that of a single witness it is proper that a jury should be informed that the identification was critical, and that the mistakes have in the past occurred in regard to identification thereby occasioning a miscarriage of justice, and that they should be satisfied that the witness was not only honest but also accurate in the evidence he gave. Matters to be taken into account are: what opportunity the person identifying had to form a judgement on the identity of the person who committed the crime – the position of the parties when the identification was made, the lighting, the opportunity to form the judgement, and generally the circumstances as to the identification.”  (underlining mine)

Principles applied: Standard of proof

20.	Where in a criminal trial there is evidence of identification which implicates the accused person as to his presence and participation, the question remains whether the State has proven its case against him beyond reasonable doubt, consistent with the   constitutional right to presumption of innocence until proven guilty in a court of law (Constitution s. 37 (4)(a)).
 
21.	The high requirement for proof of guilt does not mean that the State must prove every single fact beyond reasonable doubt. What the onus requires of the prosecution is to prove each element of the offence charged, beyond reasonable doubt.  In Naepe v The State (supra), the Supreme Court made these observations: 

“The rule of the law that guilt must be proved beyond a reasonable doubt does not require that the relevant facts be established with complete scientific accuracy:  R v. Summers [1990] 1 Qd R 92. 

Submissions 

22.	Defence counsel, Mr Kari submitted the evidence of State witness, Esther are not to be believed and unreliable because her purported recognition of the persons she knows was made under extremely difficult conditions. Mr Kari urged the court not to believe Esther because; the lighting at the house was very poor; she was blindfolded; there was no evidence of lightings in any of the locations she was taken to and, that she would have been so physically exhausted and traumatised by the violence she was put through, her concentration level would have been so vastly reduced, the probability of making a mistake was very high. 
 
23.	Regarding the identification evidence of William Tomaono, Mr Kari submitted, the witness was not honest and that he was also inaccurate on several aspects of his evidence. His encounter with the intruders on the veranda under poor lightings was very brief, this seriously affected the reliability and accuracy of his testimony. He was also unreliable and inaccurate in his evidence that he had known Terry Rex since 1986. That would make Terry at least 25 years old, contrary to his other evidence that Terry was the youngest in the group at the time of the incident. Furthermore, from his own statement, Terry said he was still in Primary School when detained by police regarding the incident in question.               

24.	Prosecuting Counsel, Mr Luman submitted, the prosecution has adduced more than enough evidence to establish the presence of Terry Rex and others he named, at the scene. They have been positively identified, by voice recognition and by actual observation of him at close quarters, under adequate lightings from three burning towels.  Counsel further contended that the identification by the witnesses was in fact recognition of someone well known to the witnesses.  Each witness had recognised a person he had previously known and acquainted with from within Kapore LSS blocks. This enhances the reliability and accuracy of the witnesses, living no room for mistaken identification.

Reasons for Decision

25.	There is identification evidence implicating Terry Rex.  It establishes a strong prima facie evidence against the accused person.  

26.	However, that is not all the evidence before the Court. There are three other aspects of the trial I must deal with. The first is the alibi defence of the accused. The second is the quality of the identification evidence. The third is the considerations and weighing up of all the evidence before the Court. The weighing up will not necessarily be covered separately from the principal issues.  

Alibi Defence

27.	The accused said in his statement from the dock, he was with his family the whole night of the incident. He and members of his family only came to know about the incident the next morning following his detention and arrest by police. He said the two State witnesses were strangers to him and his family.

28.	In dealing with an alibi defence, the burden of proof does not shift from the prosecution to the accused to prove an alibi or prove innocence. How strong or convincing the alibi evidence must be, depends on the strength of the prosecution witnesses. If their evidence is very strong, the alibi evidence needs to be reasonably strong to raise a reasonable doubt in the mind of the judge as to the guilt of the accused. See, John Jaminan v The State (No.2) [1983] PNGLR 318. In my view, the alibi evidence must reach a reasonably good level of probability against the strength of the prosecution case to raise a reasonable doubt.

29.	In this case, I find the alibi evidence unconvincing. First, I prefer the State witnesses’ tested version over the untried evidence of the accused, that he was in the family home the whole night and the assertions, that he and his family are strangers to the two State witnesses, William Tomaono and Esther William.

30.	 Second, the accused had an early opportunity to secure supporting alibi evidence. He was arrested early the next morning. His parents and a sibling sister followed him to the police station and were told the reason for his detention. Yet, his relatives did not vouch for the veracity of his story then, or any other time. That omission, together with his failure to call his family members to support his alibi and his failure to raise his alibi early when questioned by police in the record of interview, are against him. I find his alibi is a recent story. It is dismissed.

Identification evidence 

31.	Having dismissed the alibi defence, the Court must still be satisfied, the State witness was not only honest, but was also accurate in the evidence he or she gave.  In this case, there are three aspects of the identification evidence in contention namely, identification by prior knowledge (recognition), voice recognition and identification by observation, the Court must be satisfied on, subject to the honesty and reliability of the witnesses. It will not be amiss to add, voice recognition is dependent on prior knowledge and the evidence on these aspects can be covered together.  
 
32.	Esther William spoke of knowing Terry Rex because he, Dominic and others would come around to their house at Kapore section 5 prior to the incident. Esther has lived at the Kapore LSS block 370 from 2010 up to the time of the incident in 2012. She spoke of Rex and Dominic as being from Kubalia, Maprik, East Sepik Province. Her evidence of prior knowledge is enhanced by her recounting of relationships of Rex and Dominic with Village Court Magistrate, Membaura. Dominic is an in-law to Membaura. She also named Rex’s Father as Felix. He is related to the Village Court Magistrate. The others she saw and named as Robin, Justine, Alfred are from Yangoru, East Sepik Province. They all lived at section 6, Kapore.  Esther herself is from Nuku, West Sepik Province. 

33.	On voice recognition, Esther spoke of hearing her abductors talking as they carried her away, blindfolded.  She recognized the voices of Terry Rex and Dominic. After the blindfold was removed, she heard Dominic giving her clothes to Terry and instructing Terry to put her clothes on and let her go.
 
34.	It is possible Esther would have been traumatised by the ordeal. But her clear recollections of the events of the night in question suggests she was fully conscious and mentally alert to the happenings around her, the ordeal she was put through and her conscientious effort and ability to seek refuge in a home nearby.

35.	Terry and Dominic were the good Samaritans. Esther is making very serious and damning allegations against the two persons who she knows well and who had stopped to help her.  She could choose not to implicate them. And there has been no reason advanced as to why Esther would tell lies against the two men.

36.	William Tomaono on the background to his evidence of recognition said he had known the accused since his childhood. His block was/is front of the block belonging to Rex’s father. That, Rex lives with his parents and would sometimes come around to William’s residence. William knows his parents well and, on some occasions, he would loan the family his oil palm block to harvest.

37.	I accept the State witnesses’ evidence of prior knowledge of the accused Terry Rex and dismissed his story of not knowing the two witnesses. Sections 5 and 6 are adjoining land portions of Kapore LSS. It is highly probable all settlers in those two neighbouring portions know who-is-who and the location of his/her LSS block.  There is no doubt Esther would relate to her neighbours of Sepik origins as, ‘wontoks’. To William, he would be their ‘in-law’ (tambu). As close neighbours, William and Esther would have had the advantage of aligning and associating with them. The opportunity to hear and distinguish individual voices was abundant particularly, of those who frequented the couple’s residence. 

38.	Regarding the issue of eyewitness identification, the circumstances and opportunities for observing the person being identified by the two State witnesses occurred at different times and locations. Esther said at the house when she accompanied her husband to the veranda, they saw and recognised Robin, Justine and Alfred.  After she was abducted, raped and left alone with Terry Rex and Dominic, she was in a distressed state, the two men attended to her. I think she was upright on her feet and at some point, would be facing Terry Rex directly as he assisted her to cover up. There was no light, it was dark. It is highly probable; the immediacy of presence and the physical contact gave Esther improved and better advantage of recognising Terry Rex and Dominic in the dark. Her power of observation and recognition under darkness was assisted by her recognition of their voices.
 
39.	William said on the first occasion he was on the veranda, he recognised Robin under a flashlight. On the second, he recognised Terry Rex and Dominic from three burning towels. Rex was standing in front of Dominic on the bottom or start of the house steps.  On the third occasion, he recognised and named the person who held a kitchen-like knife against the back of his neck as Terry. He also spoke of others helping Terry to force him down the steps.  

40.	His observations and recognition of Terry and Dominic standing together were assisted by towel flames. He described the flames as, big.  This evidence and the evidence of light from the towels was not seriously contested. I infer, the burning towels were placed within the reach of or above the steps such that the light illuminating from the burning cloths were directly onto those on the steps, enabling William to clearly see and easily identify Rex and Dominic. The quality of his identification by recognition is augmented by his ability to also recognise others by voice and name, apart from Terry Rex and Dominic. His physical contact with the accused also added to the reliability of his evidence. 

41.	Defence has pointed to a discrepancy in the evidence of William as being critical against the quality, value and strength of identification evidence and hence, casts doubt on the whole of the State’s case. William spoke of knowing Terry Rex since 1986. That would make him at least 26 years old in 2012.  He also said Terry was the youngest at the time of the incident.  

42.	William may be mistaken regarding his first knowledge of the accused. That slip is neither here nor there. There is no evidence as to the age of the oldest in the group of men he saw.  William however said the others were older than the accused. It might well be that Terry Rex was the youngest in the group as William spoke of.

43.	Even if the inconsistency existed, there is no rule that a trial judge must reject all of a witness’s evidence because he finds some of it inconsistent. A judge is free to accept some evidence from a witness and reject other parts of the evidence, even if it relates to closely linked events: SCRA No. 34 of 2003, Ano Naime Maraga & 2 Ors v The State (2009) (Unnumbered SC Judgment).

44.	In The State v. Alex Ape (2004) N2703 Jalina, J cautioned:

“Recognition may be more reliable than identification of a stranger, but even when the witness is purporting to recognize someone whom he knows, I remind myself that mistakes in recognition of close relatives are sometimes made. All these matters go to the quality of identification evidence. When the quality is good, the value and the strength of identification evidence is enhanced. When the quality of identification evidence is poor – that is a fleeting glance, or a longer observation made in difficult conditions – the evidence is of little or no value”.

45.	In this case, the evidence of personal knowledge and voice recognition by the two State witness has remained untainted, it has not been displaced by defence. William and Esther had prior knowledge of, and at the time of the incident, they heard, saw and identified persons they have prior personal acquittances with. Their evidence on identification was clear and consistent. Both witnesses presented as honest and reliable on all the three aspects of their identification points. Each gave evidence in a strong voice without equivocation. 

46.	In the end result, I find that the quality of identification evidence is good.  I am further satisfied; the state of the evidence is enhanced by the immediate arrest of the accused within a short time of the incident and his false alibi. The State has established the presence and the guilt of the accused, beyond reasonable doubt.

47.	 On the first count of armed robbery, I find the accused guilty. On the second count of rape, I find the accused guilty. On each of the charges, Terry Rex is convicted as a principle offender pursuant s. 7 of the Criminal Code.   
____________________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused