Wape, The State v [1994] PNGLR 558 (20 July 1994)

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EVIDENCE - Corroboration - Rape - Contradicting and inconsistent evidence of accused as corroboration.

The defendant was charged with two counts of rape. The prosecution evidence included evidence from the victim that she recognised the defendant's voice as a result of him having visited her at her place of work, where they had held regular conversations. There was evidence of visual identification from the victim and from her husband, who also identified the defendant by his voice.

Evidence that the voice is the voice of the accused is admissible to prove identification where the voice is known by a witness and is recognised as that of the accused.

SAWONG AJ: The State has presented one indictment containing two counts of rape against the accused. The accused has pleaded not guilty to both counts. The indictment contains the following counts:

"Count 1: Dickson Wape of Map, Southern Highlands Province is charged that he on the night of 13 September, 1993, at Mendi in Papua New Guinea committed rape upon Alison Asi.

Count 2: and also that the said Dickson Wape is charged that he on the night of the 13 September, 1993, at Mendi, Papua New Guinea, committed rape upon Alison Asi."

The State has called three witnesses who have given sworn oral testimony. Also as part of the State's case, the record of interview conducted between the arresting officer and the accused, and the medical report have been tendered as evidence, by consent.

The record of interview contains no admission to the offence. The medical report set out in some detail evidence of sexual intercourse and physical injuries suffered by the victim.

She was medically examined on 13 September 1993 at the Mendi Public Hospital. The medical examination revealed the following:

The vagina swab specimen sent for laboratory investigation for sperm cells was positive. In conclusion, there was enough clinical evidence to confirm rape and physical assault.

The first witness called by the State was the victim, Alison Asi. She gave sworn evidence. In 1993, she was working as a typist with the Probation Office at Mendi. She knows the accused very well. She came to know him and recognise him well, as the accused was on probation and he would come to the Probation Office to report to the probation officer. He went to the office nearly every week to report. The witness also stated that the accused would give her his personal letters to be typed by her, and she would also give him envelopes. She had conversations with him during that time, and he acted friendly towards her. She said that on 9 September last year, she was at the bus stop at Tente waiting for a bus when she met the accused. He asked her what she was doing there, and she replied that she was living with her husband at the hostel there. He then asked her a number of questions regarding her husband, to which she replied. Whilst they were talking, the bus came, and so she got into the bus and came into Mendi town. At about 5 pm that afternoon, she and husband walked back to the hostel. Whilst they were walking, she told her husband of the conversation she had with the accused earlier that day. When they arrived at the hostel, the accused was seen at the hostel. When she saw the accused, she introduced him to her husband.

The victim and her husband were living in one of the rooms in the hostel at the time when the offence was committed.

At about 1.15 am on 13 September 1993, whilst the victim and her husband were asleep in their room, someone knocked loudly on the wall outside their room. That person at the same time called out the words, "Bras, Bras" two times and the words "Papua, Papua" three times. The victim heard the voice, and she recognised the voice as that of the accused.

The witness says that after that he went away, but he came back a few minutes later and tore down the flywire to the window of their bedroom. He then left and then he came back again a few minutes later. She then heard the main door of the hostel being kicked open, and then their door was also kicked open. The person who kicked open their door then said to her and her husband not to move. She and her husband called out for help once. She identified the person who had told them not to move as the accused, Dickson Wape. She said that he was very close. She knew his voice very well and she recognised his voice, and so she called out, "Dickson, it's me, Alison", and the person replied, "I am not Dickson, I am Issac Iria". There were no lights at the time when this was taking place, as the person had put off the main switch before entering the victim's room.

Two men entered the room. One of them used a bush knife to hold up the victim's husband. The victim says that the accused then asked her and her husband who they had voted for, and she replied that as she and her husband are from Kagua, they voted in Kagua. This happened while the accused dragged the victim out of her room, through the main door of the hostel, and into a nearby garden.

She says that as she was dragged away from the hostel she could see the accused clearly and recognised him clearly from the light that came from the probation officer's house. The light from the probation officer's house is about 7 metres away from the hostel. She was also able to recognise the accused clearly, as it was a bright moonlight on that night. The accused did not cover his face in any way. Although he had a hat on his head, she was able to see his face very clearly.

He dragged her to a nearby garden, where he tore her underpants, bra, put her on the ground, and had sexual intercourse with her without her consent. She said that whilst she was being dragged to the garden, she was also able to see him clearly, as there was enough light coming from the house and moonlight. Further, the witness says that whilst the accused was having sexual intercourse with her at the garden, she was able to clearly see and recognise the accused.

After she was raped at the garden, she was dragged away towards another place. She said the accused's friend was leading the way, followed by her, and the accused followed her. The accused was following her very closely. She said that whilst they were walking, the accused spoke to her about making friends. She recognised the voice as that of the accused. She said that he was speaking to her from just behind her.

She said the accused again spoke to her about the accused and others reporting to the Probation Office and, once again, she identified the voice as that of the accused. She shouted or screamed, and she was then held by her neck and pushed to the ground by the accused, and another friend of the accused threatened her with a knife. She said she was able to see the accused clearly there too, as there was sufficient light for her to see and recognise the accused clearly.

They then took her to Wara Mendi, where the accused laid her on the ground, and took off her skirt, and covered her face with her skirt. She said that she was lying on the ground facing up when the accused came from the front and removed her skirt from her body. Whilst he was doing this, the victim was also able to recognise and see the accused clearly. She was able to see him clearly, as he did not cover his face. After covering her face, the accused and his friends then had turns in having sexual intercourse with her without her consent.

The victim says that the accused then put his penis into her mouth and, at the same time, talked to her. She was also able to recognise the voice as that of the accused.

After this episode, the victim says that the accused bit her in her private part, and she screamed.

The accused and his friends then left her there. A short while later, another person came and told her that he would assist her to her home. He led her to the rugby league field and left her there. She then walked to her room at the hostel.

When she arrived at her room at the hostel, she found her room was empty, as all their belongings had been removed. She subsequently saw the accused there as well, and she said he was carrying an axe.

She said that from the time she was dragged out of her room at the hostel to the time she was raped the second time, she saw the accused clearly and recognised him clearly that morning.

She said that although there were flowers between the hostel and the probation officer's house, where the light was, the flowers were only about the same height as her waist. The flowers did not in any way obstruct her view so that she was able to see and recognise the accused clearly as she was being dragged out, and towards the garden.

The victim also stated that she was able to smell alcohol on the breath of the accused when he was having sexual intercourse with her in the garden.

The second witness for the State was Petrus Aken. He is the husband of the victim. His evidence is that he had met the accused previously in Port Moresby, and the second time he met the accused was on 9 September 1993 at Tente. He was introduced to the accused by his wife, the victim in this case. He has also seen the accused in Mendi many times and recognised him. He confirms his wife's evidence that, prior to the persons entering their room at the hostel, someone had come to the hostel and outside their room and knocked on the walls and had call out the words "Bras, Bras" and "Papua" several times.

He also confirmed his wife's evidence that the flywire on the window was torn. He also stated the person who entered their room couldn't be seen as the lights were off. He confirms that his wife was taken out of their room that night.

After she was dragged out and after some four minutes, he came out of their room and put on the main switch, which had been put off earlier. He also confirms his wife's testimony that on that night the security light from the probation officer's house was on, and it was bright light, and that you could clearly see from the light. Furthermore, he also confirm that it was a moonlight night, and this also helped one to see clearly. He further confirmed that, although there were flowers between the hostel and the probation officer's house, they were only knee high and they did not obstruct anybody's views. He further stated that the accused did not help him search for his wife and that he was surprised to see the accused at probation officer's house at about 4.30 am.

In cross-examination, he stated that as a result of the noises made earlier, he and his wife were awake when their bedroom door was forced open. He did not see clearly who had entered their room, as it was dark. He also confirm that he recognised the accused's voice.

The last witness was Ignatius Luke. His evidence is short, in that he knew the accused well, as the accused is under his care. The witness is a probation officer, and the accused was placed under probation so the witness knew him very well. The accused has been under this officer's supervision since 1991.

Basically, he confirms that security lights from his house were on that night and that it was a moonlight night. He confirms hearing noises of a door being broken down from the hostel that night. He also heard screams that night, coming from a woman. He also confirms that the husband of the victim, himself, together with some others conducted a search to locate the victim. The accused was not with them when they conducted this search. After searching, they came back to hostel and were in deep discussion when he saw the accused arrive at the hostel. He saw that the accused was very wet, from the thighs to his feet, and he had no shoes. He was looking exhausted, with mud over his legs and carrying an axe. He said the mud he saw was similar to what he saw on the victim's body. He further stated that when the accused arrived, he started questioning them if anyone had seen him as one of the offenders. Some five minutes after accused had arrived, the victim arrived at the scene. He also confirms the evidence of the victim that she saw the accused carrying an axe. He saw the victim was in distraught condition.

The accused elected to and gave sworn evidence. His evidence was that he had been drinking at Kiburu Lodge till about 12.30 am and then went home to his house. His house is also at Tente, in the same vicinity. He said that he went home with his friends and they continued drinking and that whilst they were drinking he heard the probation officer's wife screaming, and so he went to the probation officer's house to investigate. In his record of interview, he does not mention anything about hearing the wife of the probation officer screaming. The following question and answers, as recorded in that record of interview, are also relevant, in my view.

Q19: Dickson, can you tell me where were you on Monday 13 day of September, 1993 at about 0100 hours to 0300 hours?

A. Hami Yaware, Elias Joseph, Patrick Kanoabo, John Ungea and another fellow from Kutubu whose name is not known to me.

A. We started drinking at Kiburu Lodge and then later came to the house and there drank one and half cartons.

Q27: This female knows you very well when she heard your voice at that time and said it was you who went inside and took her out and it was you who had sexual intercourse with her first. What will you say to this?

There are inconsistencies in his answers in the record of interview. For instance, in question and answer 19, he says that between 1 am and 3 am that night, he was drinking beer at Hami Yaware's house. On the other hand, in question and answer 27, he says that he was in his father's house.

In cross-examination, he denied talking to the victim at the bus stop at Tente on 9 September 1993. He also denied asking her any questions at that place and at that time. However, in his record of interview he admitted that he had talked to the victim at Tente on 9 September 1993. The following question and answer was recorded:

Q33: Is it true that you did ask Alison at one time stating where does she sleep and who is she married to?

In his sworn evidence he denied knowing the victim and said he never met her. However, on the record of interview, he admitted this. The following is recorded in that record of interview:

Further, in cross-examination he denied ever talking to the victim's husband previously. And he denied raping the victim.

And so his evidence are contradicting and inconsistent. I do not accept his evidence. He has obviously lied to this Court. His denials, in my view, have corroborated the victim's evidence. His demeanour was not good.

There is no doubt that the victim had been dragged out of her bedroom on the morning of 13 September 1993 and raped several times. The only issue that needs to be decided is whether the accused, Dickson Wape, is one of those persons who raped the victim that morning.

In order to answer this issue, I propose to look at all the evidence that has been given. The evidence of identification is two-fold, in my view. The evidence of identification by identifying the voice of an accused person and the evidence of visual identification.

I now turn to the issue of identification evidence of the accused. The accused has denied that he was involved, and alleges that the voice and visual identification of him are mistaken. Accordingly, I must warn myself of a special need to caution myself before convicting relying on that identification evidence. Therefore, I note in terms of the authorities such as referred to, namely, Beng v The State [1977] PNGLR 115 and Geta v The State [1988-89] PNGLR 153, the possibility that the witnesses for the State could be mistaken.

I, therefore, propose to examine closely the circumstances of identification of the accused by each of the State's witnesses.

Firstly, I propose to look at the evidence of voice identification. It has been established in this jurisdiction that evidence of the voice of a person involved in a crime as the voice of an accused is admissible to prove identification of the accused where the voice is known by the witness and recognised by the witness as that of the accused. In State v Daniel [1988-89] PNGLR 580, Doherty AJ (as she then was) said at p 582:

"Visual identification was considered at length in the Papua New Guinea Supreme Court in John Beng v The State [1977] PNGLR 115 and the learned Deputy Chief Justice (Prentice Dep CJ) said at 123:

'Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognise someone whom he knows .... mistakes in recognition of close relatives and friends are sometimes made'."

In the present case, the witness has known the accused very well. He has spoken to her on a regular basis before the incident. Further, he spoke to her a few days before the incident occurred. And finally, as I have pointed, she heard the same voice speak to her about seven times during the course of the incident. She was able to recognise the voice clearly as that of the defendant.

She said that on that night she could clearly recognise the voice which she heard as that of the accused, Dickson Wape. She recognised them at several different locations and at different times. These were:

1. That when she was working at her office, the accused would ask her to do his typing etc. They had conversations on a regular basis. This piece of evidence has not been slackened in any manner or form.

2. He was talking with the victim on 9 September 1993, when they had conversation at the bus stop.

3. When the person came to her flat on the night of 13 September, the person shouted certain words several times. She recognised the voice as that of the accused clearly.

4. When the person entered their room, he spoke and the victim was able to recognise the accused's voice clearly, and she told him so, and called him by name.

5. Whilst still in their room, that person spoke again and the witness was able to recognise that voice as that of the accused.

6. After the first act of sexual intercourse and as they were walking, the victim says that the accused twice spoke to her. She recognised the voice as that of the accused.

7. After she was raped the second time at Wara Mendi, the accused is said to have put his penis in her mouth and spoke to her. She once more recognised the voice as that of the accused.

I warn myself of the danger of convicting on the basis of this piece of evidence, but I am satisfied that the voice the witness heard and recognised that night was that of the accused.

So far as evidence of visual identification is concerned, there is clear evidence from the witness that she clearly saw the accused. She saw him clearly in the light and in the moonlight when she was dragged out of the hostel. On the way to the garden, she was also able to see clearly and recognise the accused. While she was being raped at the garden, she was able to see clearly and recognise his face, although he was attempting to hide his face. It was a moonlight night and, moreover, the light from the probation officer's house also gave off enough light for her to see and recognise the accused clearly.

After the first act of sexual intercourse, the witness was also able to see clearly the accused from light coming from the hospital and the nearby houses. The moonlight was also bright, so that she was also able to see clearly. She also knew the accused very well, as she had come to know him when he met her on regular basis at the Probation Office where she worked. She came to know him and recognised him over a matter of months prior to the incident.

She was also able to recognise him clearly as she was being led towards the Wara Mendi. She was able to see him clearly, as the light from the security lights from the hospital was on, and also from the moonlight.

Further, as she was lying down on the ground surface at Wara Mendi, facing up, she saw the accused coming to her. He came to her and removed her skirt. He did not cover his face and so she was able to see him clearly.

Suffice it is to say that I remind myself of the inherent dangers, the need to caution myself. I do confirm myself, before convicting in reliance on the correctness of identification, the possibility that a mistaken witness could be a convincing one and that any number of such witnesses could all be mistaken.

In the present case, I have already set out in detail the circumstance of visual identification of the accused. The quality of the identification is good. The witness clearly saw and identified the accused as the person who abducted her and raped her. He was clearly recognised by the light and by the light from the full moon, which was bright. The identification and recognition of the accused was not made in very difficult circumstances. The overall circumstance under which the accused was recognised was good. I accept the evidence of the State's witness.

Mr Yalal, for the accused, submitted that there is no corroboration evidence supporting the victim's testimony and, accordingly, the State has not proved its case.

I reject the argument by the defence. There is no rule of law which requires corroboration in a rape case. As the Supreme Court said in Didei v The State [1990] PNGLR 458 at 459:

"There is of course no rule of law which requires that the evidence of a woman complaining of rape shall be corroborated. If a court is satisfied that the complainant is telling nothing other than the truth, then it may proceed to convict on her evidence alone. But it has long been recognised that while a court is entitled to accept the evidence of a complainant and convict on that evidence alone without corroboration, experience has shown that it is dangerous to do so."

I remind myself that it is dangerous to convict on the uncorroborated evidence of the victim. However, in the present case, there is corroborative evidence. There is the evidence from the victim's husband that he recognised the voice of the person who came into their room and dragged his wife as that of the accused. There is also the medical evidence, which has been tendered by consent, that sexual intercourse had taken place that night with the victim. The medical evidence established that a man had sexual intercourse with the victim that night. The appearance of the victim in the morning, somewhat distraught, and with only her panties and her torn skirt. There is the evidence that after she had been abducted and taken away, a search was conducted to locate her, without any success. And so, in my view, there is corroborative evidence. Furthermore, it is now also established that if an accused person lies in his testimony, this also amounts to corroborating the evidence of the victim.

I do not accept the evidence of the accused, as he was quite plainly lying to the Court. His demeanour and his answers to the questions put to him in cross-examination were not good and, therefore, not acceptable.

And so, looking at the evidence from the beginning to the end, and putting together all the bits and pieces of evidence, it all falls in line against the accused.

In all the circumstances, I am satisfied that the State has proved beyond reasonable doubt that the accused raped the victim two times on the night of 13 September 1993.

I, therefore, find the accused guilty and convict him accordingly on both counts.

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Papua New Guinea Law Reports

Wape, The State v [1994] PNGLR 558 (20 July 1994)

PNG Law Reports 1994