State v Mausen [2005] PGLawRp 15; [2005] PNGLR 54 (4 August 2005)

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CRIMINAL LAW – Indictable offence – Criminal Code, Division V.7, sexual offences and abduction – Section 347, definition of rape – Trial on a charge of rape under Section 347 – Elements of offence.

CRIMINAL LAW – Evidence – Identification – Relevant considerations when determining credibility – Pre-existing knowledge of identity of accused – No identification parade – Recent complaint.

CRIMINAL CODE – Sexual offences – Abolition of warning against danger of convicting on the basis of uncorroborated testimony of complainant.

CRIMINAL LAW – Evidence – Alibi evidence – Relevant considerations when determining worth of alibi evidence.

A woman claimed that while working in her garden on an oil palm block near Kimbe she was approached by the accused, a young man, who demanded that she have sexual intercourse with him. Her evidence was that when she refused, he threatened her with a bush knife and forced her to the ground and sexually penetrated her without her consent. She identified the accused as the man who raped her. She was the sole witness for the prosecution. One witness gave alibi evidence for the accused and the accused himself gave evidence in support of an alibi. There was medical evidence consistent with sexual intercourse having occurred but it was inconclusive as to whether intercourse was consensual.

1. There are inherent dangers in relying on the correctness of identification to support a conviction. But in this case, after giving the appropriate warnings, the identification evidence was strong and sufficient to base a conviction.

2. Though the complainant's testimony could be regarded as uncorroborated, there is no longer a practice that the court must warn itself of any danger of relying on uncorroborated evidence of a complainant in a rape trial. Indeed the court is prohibited from issuing such a warning by recent amendments to the Criminal Code.

3. The alibi evidence was weak and unconvincing, both the accused and his brother being unreliable witnesses who could not be believed.

Cannings J. This is a decision on the verdict for a man who pleaded not guilty to a charge of rape.

The incident giving rise to the charge took place at Sarakolok oil palm settlement, near Kimbe, West New Britain, in March 2004. It is alleged that an adult female who was alone in her garden amongst the oil palm trees was raped by the accused, a young man.

The alleged victim of the incident is referred to in this judgment as "the complainant", consistent with Section 1 of the Criminal Code, which says that that word means a person against whom an offence is alleged to have been committed.

On 11 July 2005 the accused was brought before the National Court and faced the following indictment:

Noutim Mausen of Bat, Boigen, East Sepik Province, stands charged that he on the 11th day of March 2004 at Sarakolok Section 2 in Papua New Guinea sexually penetrated [the complainant] without her consent.

The following allegations were put to the accused for the purposes of obtaining a plea.

Between 1.00 and 2.00 pm on 11 March 2004 the accused was at Sarakolok, Section 2, outside Kimbe. He saw the complainant in her garden, gardening. He covered his face with a piece of cloth, approached her and demanded to have sexual intercourse with her. She refused, so he produced a knife and pointed it at her neck and forced her to the ground. He then went on top of her, removed her laplap and pants and proceeded to sexually penetrate her without her consent.

The accused responded that these allegations were not true. I therefore entered a plea of not guilty.

(1) A person who sexually penetrates a person without her consent is guilty of a crime of rape.

(2) Where an offence under Subsection (1) is committed in circumstances of aggravation, the accused is liable, subject to Section 19, to imprisonment for life.

The prosecution does not have to prove as an element of the offence that the accused intended to sexually penetrate the complainant without consent. Lack of intent is, however, something that can be raised as a defence by the accused under ss.25 (mistake of fact) and 347B (where belief in consent is not a defence). For example the accused might adduce evidence that he mistakenly, but honestly and reasonably, believed that the complainant consented; in which case it seems that the prosecution would have to disprove the elements of the defence (R v Philip Ulel [1973] PNGLR 254, pre-Independence Supreme Court, Clarkson J; The State v John Kalabus and Aita Sanangkepe [1977] PNGLR 87; National Court, Williams J). Those issues do not arise in this case.

When the expression "sexual penetration" or "sexually penetrates" are used in the definition of an offence, the offence, so far as regards that element of it, is complete where there is—

(a) the introduction, to any extent, by a person of his penis into the vagina, anus or mouth of another person; or

(b) the introduction, to any extent, by a person of an object or a part of his or her body (other than the penis) into the vagina or anus of another person, other than in the course of a procedure carried out in good faith for medical or hygienic purposes.

"Consent" is defined by ss.347A (meaning of consent) and 347B (where belief in consent is not a defence).

(1) For the purposes of this Part, "consent" means free and voluntary agreement.

(2) Circumstances in which a person does not consent to an act include, but not limited to, the following:—

(a) the person submits to the act because of the use of violence or force on that person or someone else; or

(b) the person submits because of threats or intimidation against that person or someone else; or

(e) the person is asleep, unconscious or so affected by alcohol or another drug so as to be incapable of freely consenting; or

(f) the person is incapable of understanding the essential nature of the act or of communicating his unwillingness to participate in the act due to mental or physical disability; or

(g) the person is mistaken about the sexual nature of the act or the identity of the person; or

(h) the person mistakenly believes that the act is for medical or hygienic purposes; or

(i) the accused induces the person to engage in the activity by abusing a position of trust, power or authority; or

(j) the person, having consented to engage in the sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity; or

(k) the agreement is expressed by the words or conduct of a person other than the complainant.

(3) In determining whether or not a person consented to that act that forms the subject matter of the charge, a judge or magistrate shall have regard to the following:—

(a) the fact that the person did not say or do anything to indicate consent to a sexual act is normally enough to show that the act took place without the person's consent; and

(b) a person is not to be regarded as having consented to a sexual act just because—

(iii) on that or an earlier occasion, he freely agreed to engage in another sexual act with that person or some other person.

It is not a defence to a charge under this Part that the accused person believed that the person consented to the activity that forms the subject matter of the charge where—

(b) the accused did not take reasonable steps, in the circumstances known to him at that time, to ascertain whether the person was consenting.

"Circumstances of aggravation" are prescribed by Section 349A (interpretation), which states:

For the purposes of this Division, circumstances of aggravation include, but not limited to, circumstances where—

(b) at the time of, or immediately before or after the commission of the offence, the accused person uses or threatens to use a weapon; or

(c) at the time of, or immediately before or after the commission of the offence, the accused person tortures or causes grievous bodily harm to the complainant; or

(d) the accused person confines or restrains the complainant before or after the commission of the offence; or

(e) the accused person, in committing the offence, abuses a position of trust, authority or dependency; or

(i) the accused was knowingly infected by Human Immunodeficiency Virus (HIV) or knowingly had Acquired Immune Deficiency Syndrome (AIDS).

The State tendered eight exhibits by consent and called two witnesses to give oral evidence.

Column 1 of the table below gives the exhibit number, column 2 describes the exhibit and column 3 summarises its evidentiary content.

Exhibit	Description	Content
A	Statement: Ben Kwaling Sarakolok Resident, undated	State that on 11 March 2004, about 1:00 to 2:00 pm, he was harvesting oil palm – after harvesting, he and his wife followed the bush track to his house and saw the complainant running towards the main road – he stopped and asked her what happened – she replied that "Noutim" had raped her – while standing there, she was crying and her legs and hands were shaking – he and his wife escorted the complainant to her house and informed Max Muto [her son-in-law].
B	Affidavit: Ben Kwaling, Sarakolok resident, undated	As per exhibit A.
C1/C2	Affidavit: Max Muto, Sarakolok resident	States that on 11 March 2004 he was at the house of the complainant, his mother-in-law, when she came to the house crying – she stated that she had been uprooting tapioca when "Noutim" had held her up and raped her – observed that her body was full of grass and soil – he then reported the matter to Sarakolok Police.
D	Statement: Chief Sergeant Lucas Hakoi, undated	Corroborates the statement of Constable Silas Raiu re interview of rape suspect, Noutim Mausen.
E	Statement: Constable Silas Raiu, undated	States the circumstances in which the accused was interviewed.
F	Record of Interview: Noutim Mausen, 13.03.04	It was put to him that between 1:00 and 2:00 pm on 11 March 2004 he was at Sarakolok, Section 2, and, masking his face and armed with a bush knife, threatened a female and raped her – he replied 'that I do not know, I did not do it' – he was shown a 'cut jean' and 'health' thongs – he replied ' I have no idea about the cut jean, the pair of thongs, I left when I escaped from the cell' – it was put to him that the complainant resides at Sarakolok and knows him very well – he replied that he does not know her – several times he denied any knowledge of the rape.
G	1 pair of cut jean + 1 pair of thong	Cut-jeans light blue in colour; thongs brown in colour. [the thongs are also referred to as 'slippers' in the evidence.
H	Medical Report: Dominic Kaimo, 15.03.05	States: [The complainant] was seen today for medical examination. She alleged a man forced her to have sexual intercourse on 11/03/04 at 2:00pm....adult female in no distress but shy...seman seen, blood seen – vaginal swab was taken – the report concludes 'there was obvious sexual intercourse'.

The complainant was the first witness for the State. She is originally from Chimbu Province. She lives at Sarakolok, Section 2. I estimate her age to be between 40 and 50 years.

In examination-in-chief she stated that on 11 March 2004 she had done her market and about 1.00 or 2.00 pm walked back to her garden. On her way there she was looking for tapioca amongst the oil palm. She found some near Section 2 and was about to pull it out of the ground when she noticed a person standing nearby. She was very surprised. It was a young man. He was wearing a black cap and a black tee shirt across his face, a pair of cut jeans and a pair of orange slippers. When she turned around he told her to hold his penis. She told him she could not do that as she had cancer and the doctors told her not to do that sort of thing. She was too old for him anyway. She was old enough to be his mother.

He then asked her why she was saying things like that and whether she could see his face. She replied 'yes I know you, you are Noutim, I am not new here'. She then cried and begged him to leave her alone. He told her that she would not die and that she should just let him hold her for a little while. She still resisted, so he pointed the knife at her and forced her to the ground and had sexual intercourse with her.

She got up and tried to leave and he pulled her back and she told him to leave her alone as she was not the same size as him. He then insisted that they go to Section 4. She said again that she was not a young woman. She tried to leave but then he pulled a bushknife away from her. He stood there for some time. Then he threw the bushknife to her. She got the bushknife and went away.

On her way home she met Ben, who is from Morobe, and his wife. She told them that Noutim had assaulted her in the garden. Then she walked home and told her son-in-law about it. Then she went to the police station and put in a report. Her son-in-law's name is Max Muto. She also told Max that Noutim had raped her in the garden.

She identified the cut jeans and thongs (exhibit G) as items the accused was wearing at the time of incident.

She has known the accused since he was very small. They stayed together for some time. He knows her and she knows him. She knows his father, Danny Mausen. Danny is from Sepik. He lives at Section 2 at the community government.

When the person who assaulted her came close she was able to see his eyes. Even though he had a shirt over his head she recognised him as the accused, Noutim Mausen. She noticed something strange about his voice and eyes. She surmised that he must have been smoking drugs. She said that he had a bushknife and she had a bushknife. She is familiar with his voice as they all lived together in the same community. She identified her assailant as the person in the dock.

In cross-examination the complainant stated that she had lived at Section 2 Sarakolok since 1995. She agreed that many people live at Sarakolok and there are many boys and young men who reside there. She was asked how she could possibly recognise the person who assaulted her if his face was covered with a shirt. She replied that he covered his face but he was still recognisable. The shirt was very small and it just covered part of his face. She could see his nose and his mouth. Most of his face was not covered. It was put to her that it would be easy to make a mistake. She replied 'no it was him'. She repeated that her assailant had red eyes. It was put to her that she was contradicting herself, commenting on the colour of her assailant's eyes when previously she had stated that his eyes were covered. She replied 'no it was him, [ie the accused] not anybody else'.

She stated that she did not shout for help. He was a young man, she is an old woman, and she thought he might kill her. In any event the incident happened in the bushes amongst the oil palm and there was nobody nearby. Although she had a bush knife with her she was scared to use it.

She repeated that she knows the accused as they 'lived together' at Section 2. She lives near the Dagi River, which is close to his house, and she goes close to his house to tend to her gardens. She has known the accused since he was a small boy. They used to socialise, eg by chewing betelnut together.

It was put to her that there would be no reason for him to do such a thing. She replied that he must have been consuming drugs and not right in his head. She has never seen him take drugs but his eyes were red and that is why she believes he had consumed drugs that day.

She did not go to the hospital or a health centre on the day of the incident. She went the next day. The medical staff checked her and wrote a report. Her relatives later took the report to the Sarakolok community and asked the accused's relatives to pay compensation. But they refused. The health extension officer who prepared the report, Dominic Kaimo, is known to her and is married to a lady from Simbu.

It was put to the complainant that it would be easy to mistake the accused for a number of young men or boys at Sarakolok and that a number of them might be consuming drugs. She replied that it was the accused who did this thing to her. At the time of the incident she told her assailant 'you are Noutim'. It was not only because of his voice that she said that to him. She could recognise his build and the parts of his face that were not covered.

The second witness for the State was Dominic Kaimo. He is a health extension officer based at Kimbe General Hospital. In examination-in-chief he stated that he has been an officer of the Department of Health for 15 years and stationed at Kimbe for 11 years. His duties include patients' consultation, minor surgery, referral of patients to medical officers and other sections of the hospital. He assists with diagnoses and outpatient consultations. He carries out medical examinations and other tasks as directed by senior officers of the hospital.

He recalls examining the complainant, who was referred to him as an alleged rape victim, on 12 March 2004. His report is dated 15 March 2004 as that is the date that the typist inserted on the report. He observed semen near the vagina and a little blood. The obvious conclusion was that there had been recent sexual intercourse. He reached that conclusion after conducting a laboratory test. He denied that the complainant was his in-law.

In cross-examination Dominic Kaimo repeated that the date on the report, 15 March 2004, was the date on which it was typed. The actual examination was carried out on 12 March 2004.

He stated that evidence of semen and blood can be seen in the vagina of a woman the day after sexual intercourse. The sort of findings that his examination revealed could simply show that a woman had sexual intercourse. It does not distinguish between consensual and non-consensual intercourse.

Answering questions from the bench Mr Kaimo said that he had carried out many similar examinations throughout his career. On average he does three or four a week. It is common for women to present themselves at the hospital seeking this sort of examination. His examination revealed no signs of forced intercourse.

Two witnesses were called for the defence: the accused himself, who elected to give sworn evidence and the accused's brother, Paul Kusai.

In examination-in-chief, the accused, who I estimate to be aged in his early 20s, stated that on the day of the incident he was at his house, building a new house. He did not know anything about this trouble that happened at Sarakolok Section 2. At all times he was with his brother, Paul Kusai, and Betty Mausen (his in-law) and his 'old mother', who remained un-named in the evidence. He started building the new house in the morning, about 6 or 7 o'clock. He lives with Paul at Section 2, and has another block at Section 4.

Later on 11 March 2004, while he was still working on the house, he heard that some people had accused him of committing this trouble. He knew about it at that time but went down to the police station to give his story. After that he was arrested. That was on the next day.

Both he and Paul were surprised when they heard about the accusation. They were together working on the house when the story was told to them. They finished building the house late in the afternoon, about 5 o'clock.

He had been told the story about the alleged rape by some people who were walking past on the road. They called in and told the story. His house is about 4 metres from the road.

He recalls that on that day he was wearing a pair of Westmont, soccer-type, shorts or sportswear, multi-coloured. He was wearing a shirt in the morning but when the sun got too hot he took his shirt off. He was also wearing a pair of slippers but cannot recall their colour. He does not have them anymore as he has been in custody for quite a while.

In cross-examination the accused said that he was at the time a student at Moramora Technical School. He resides at Block No 847. To get to school he crosses the Lameki River and then gets a PMV at Nahavio. He has been living at Sarakolok since he was young, probably about 19 years. He is familiar with the Sarakolok Section 2 area.

He was asked whether he knew a lot of people around Sarakolok. He replied that he only knows some of them and that he doesn't go around too much.

He was asked about his earlier schooling. He attended Sarakolok Primary School which is on the side of the road leading to Lakiemata Correctional Institution. That is where his lower grade schooling was done. It was put to him that he would be exposed to other people at Sarakolok, as he would have been walking to and from school for many years. He replied that he had met many people but did not talk with them often. It was also put to him that other people would have noticed him and recognised him. He replied some would perhaps have seen him.

He said that he did not know anything about the complainant. He knows some of his neighbours well but not all of them. He does not know the complainant as she does not live close to where he lives. He does not know where she lives.

He could not recall what his brother was wearing on the day of the incident. He has been in custody for one year and eight months. He could not recall what his mother was wearing on that day. In 2004 he was in his first year at Moramora.

The second witness for the defence was Paul Kusai. He is the accused's brother. In examination-in-chief he stated that on 11 March 2004 he recalls that he and his brother started building a house between 6.00 and 7.00 am. Also present were their in-law, Betty, plus their old mother. They finished building the house about 5.00 pm. Their house is at Sarakolok, Section 2, Block No 847.

Asked what happened during that day, he stated that at one stage he and his brother were short of timber so they went into the bush to cut some more timber, then came back and kept working. That was between about 9.00 and 10.00 am.

They heard about the alleged rape when a few people went past on their way to church and told them that Noutim had raped someone. Betty was around the house at the time, weeding.

He was asked what he was wearing that day. He said that he was wearing a pair of long jeans. Noutim was wearing Westmont sportswear, in Penrith Panthers colours, black with yellow and white stripes on the sides, and a pair of black thongs.

In cross-examination he said that it was one of their brothers, with the church-members, who was walking past, who had walked in and told them the story about the rape. That was about 3.00 pm. The church they were going to is about three blocks away.

It was put to him that the accused had stated that they did not go anywhere during the day. So how could it be explained that they had gone into the bush in the morning? He replied that they had gone into the bush and cut some more timber and then stayed at the house until they finished their work. It was put to the witness that the accused was not telling the truth. There was a long pause and no answer to that question.

He was asked further about the time he and the accused had left the house. He replied that Betty and their old mother had stayed at the house.

He was asked whether the accused was going to school at that time. He replied yes. He was going to Ponini. It was pointed to the witness that the day of the incident was a Thursday and that the accused should have been in school on that day. The witness agreed that the accused was working on the house but he should have been in school. He did not know what year the accused was doing at school.

It was put to the witness that he and his brother, the accused, are familiar with the Sarakolok Section 2 area and that a lot of people would know both of them. He agreed.

In re-examination Paul Kusai repeated that the accused was going to school at Ponini. He repeated that they had gone out to get timber at 9.00 am and came back at 10.00 am.

Mr Inua submitted that there was no direct evidence linking the accused to the crime. Therefore he should not be convicted.

The cut jeans and the thongs (exhibit G) could have been worn by any person. They are popularly worn by many people. It cannot be inferred that those items were worn by the accused.

As to the identification evidence Mr Inua submitted that the complainant did not clearly identify the accused. Her evidence were not consistent and she contradicted herself on a number of occasions. When she was asked to describe the face of the person that assaulted her she concluded that it was the accused without explaining how she reached that conclusion. At one point she stated that the person had covered his face. Then she said she could only see part of the face. On another occasion she said that she could only see his eyes. Then she said she could only see the mouth and nose of the person. So she could not establish the identity of the accused. She was an unreliable witness.

The medical report had little worth as a piece of evidence as there is no way that it links the accused to the crime. It only proves that sexual intercourse took place. It does not establish that sexual penetration took place without the consent of the complainant. Nor does it establish that the accused was the person who sexually penetrated the complainant. There is no DNA evidence linking the accused to the intercourse that took place.

Mr Inua conceded that the complainant may have been raped by someone but stressed that there is no corroboration of the complainant's evidence. There has to be some corroboration. There has to be some extra evidence to link the accused to the incident in which the complainant was apparently raped. If the court convicts the accused on the basis of this quality of identification evidence then it will be entering an unsafe verdict.

Mr Inua conceded that there were two obvious inconsistencies in the defence witnesses' evidence. First, Paul Kusai said that he had gone out to collect timber to build the house, whereas this was not mentioned by the accused in his evidence. Secondly, Paul Kusai gave the name of the school that the accused was attending as Ponini Technical School, which is close to Mosa; whereas the accused gave the name of the school as Moramora, which is close to Hoskins.

Mr Inua asked the court to appreciate that the incident took place more than a year ago and it was likely that the witnesses could forget names of schools and places and the exact details of the day of the incident. The accused may have forgotten that he went out to collect wood with his brother. His brother could easily have mistaken or forgotten the school that the accused was attending. If, however, the court is inclined to give any weight to the inconsistency, the State's evidence is that the rape incident took place between 1.00 and 2.00 pm. Even if Paul Kusai's evidence is accepted – that he and the accused went out to collect wood between 9.00 and 10.00 am – that would still have them back at the house in the afternoon. Between 10.00 am and 5.00 pm they were building the house. If there was a rape, it must have been somebody else.

The State has not proven the identity of the accused beyond reasonable doubt. Therefore he should be acquitted.

There was no evidence to support the proposition that the accused had been consuming drugs. The court should not consider that. It should not be held against the accused that his brother may have been confused about which school he was attending. The court must consider the dangers of convicting on circumstantial evidence. There was no direct evidence connecting the accused to the rape of the complainant.

Mr Popeu submitted that the essential issue is the accused's alibi, ie his assertion that he was elsewhere when the incident is alleged to have occurred. A thorough examination of the evidence will reveal that the alibi does not stand up. There is evidence of the complainant making a recent complaint to Ben Kwaling and Max Muto. That evidence was not contradicted. Therefore the defence has accepted that a fresh complaint was made.

The complainant gave evidence that she lives at Sarakolok Section 2 and knows the accused well. She knew him for a long time. Even though he was wearing a shirt over his face, he left his eyes uncovered. The evidence is that the accused has lived at Sarakolok since he was a small boy and there is evidence of him going to and from school. There is evidence of his exposure to other people to Sarakolok Section 2.

The accused gave evasive answers when it was put to him that he would be known to other people at Sarakolok Section 2. He wanted to paint a picture that he was not known to a lot of people. The problem is, however, that his brother Paul gave contradictory evidence. He stated that a lot of people knew them at Sarakolok.

The complainant stated in evidence that she and the accused live in the same area and they are neighbours. It is possible that the complainant will know the accused well but not vice-versa. The incident happened between 1.00 and 2.00 pm, and it was broad daylight.

Mr Popeu submitted that Mr Inua was right to concede the very obvious inconsistencies in the alibi evidence. First that the accused gave evidence that he and his brother never left the house, whereas his brother said they did leave the house for an hour. Secondly the accused and his brother gave conflicting evidence as to the school that the accused was attending. Mr Inua's explanation for that – it was more than a year ago – if accepted, would mean that the defence witnesses could have forgotten a lot of other things in the intervening period. It is difficult to believe, however, that the accused and his brother would be confused about which school the accused was going to. The schools that were mentioned are in completely different locations. They are a long way from each other. Paul Kusai is the accused's brother and it is reasonable to expect – if he were a witness of truth – that he would know what school his brother was attending last year. Paul Kusai's evidence revealed him to be a witness of a very low credibility.

By contrast the complainant's evidence was clear and consistent and she did not try to avoid questions. Mr Popeu asked the court to consider the demeanour of the different witnesses. In addition, it was not put to any of the witnesses that the complainant had a motive for lying about the identity of the accused. She gave her reasons for the accused raping her. She thought he had been taking drugs, as evidenced by his red eyes. This was a logical explanation.

It is not seriously disputed that the complainant was, on 11 March 2004, sexually penetrated without her consent. The central issue in this case is whether the prosecution has proven beyond reasonable doubt that it was the accused who did it. In determining that question there are several aspects of the evidence that stand out:

First the prosecution relies on the evidence of the complainant to identify the accused. Therefore the principles relating to identification evidence must be considered.

Secondly the prosecution relies on the largely uncorroborated testimony of the complainant. As this is a sexual offence case there are some principles of evidence that have to be historically applied to the trial of such offences that need to be discussed, as they have recently been amended by statute.

Thirdly the accused relies on an alibi. The principles regarding alibi evidence must therefore be applied.

In assessing the identification evidence I have applied the principles set out by the Supreme Court in John Beng v The State [1977] PNGLR 115, Prentice DCJ, Williams J, Kearney J; Biwa Geta v The State [1988-89] PNGLR 153, Kidu CJ, Bredmeyer J, Los J; and Jimmy Ono v The State (2002) SC698, Hinchliffe J, Sevua J, Kandakasi J. In particular:

I have considered the inherent dangers of relying on the correctness of identification to support a conviction and caution myself, as the tribunal of fact, accordingly.

It is particularly dangerous to rely on the correctness of identification where there is only one witness giving evidence of identification. However, provided the evidence is carefully examined the evidence of one witness can suffice.

If the quality of the identification evidence is good the matter should proceed to verdict. But if the quality of the evidence is poor an acquittal should be entered unless there is other evidence that goes to support the correctness of the identification.

There is always the possibility that an honest witness can be mistaken and still be a convincing witness. The court must be satisfied that the witness is both honest and accurate.

If the accused has not given evidence the court must not take that into account when considering the quality of the identification evidence, as no inference of guilt ought to be drawn from a failure to testify.

In assessing the quality of the identification evidence, relevant considerations include: whether the witness is purporting to identify a person who was a stranger or someone he or she recognised; the length of time that the witness observed the accused (eg a prolonged period or a fleeting glance?); the emotional state of the witness at the time of the incident; the prevailing conditions (eg was it broad daylight or at dusk or dawn or inside or outside?) the line of sight (eg did the witness have a clear front-on view or was the line of sight interrupted or did the witness just see the accused from the side?)

If there are discrepancies in the identification evidence the court should consider them and assess whether they are explicable in terms other than dishonesty or unreliability.

The first comment I make regarding the identification evidence concerns the demeanour of the witness, the complainant. I regarded her, at face value, as a credible witness. She was not evasive in her answers. She gave no impression that she was lying. I accept that she gave her evidence honestly. That does not, however, mean that she was a witness of truth. She may still be mistaken in her belief that it was the accused who raped her.

I accept Mr Inua's submission that there were inconsistencies in her evidence about the extent to which she could see her assailant's face. She said that he had a tee shirt on his head. Then at one point she said she could only see his nose and mouth. Then she said that she could see his eyes, which were red. This was an inconsistency but I do not think that it detracted unduly from the credibility of her evidence. It is likely that when a person is committing rape and they have part of their face covered, that the apparel being used to cover the face will move around. Besides that I did not consider that it was a material inconsistency. Honest witnesses can be confused about such details.

I now consider the degree of certainty with which the witness identified the accused. In both examination-in-chief and cross-examination she was emphatic that it was the accused. What was her justification for that? She recognised him as she had known him since he was a small boy. They lived in the same community. She knew his name. She could recognise his build. She engaged him in conversation and spoke to him by his name. She recognised his voice, though it was a bit strange and that is why she thought he had been consuming drugs. That seemed to me to be a credible account of the behaviour of the accused. It was the middle of the day. It was not a fleeting glance. She reported the incident soon after it happened to a fellow resident of Sarakolok community and to her son-in-law. She did not complain generally about being raped. She told both of them that "Noutim" had raped her. I considered that all of this was good identification evidence.

Prior to 2003 the general practice was that the court was required to warn itself of the dangers of entering a conviction for rape based on the uncorroborated testimony of the complainant. The practice was consistent with the position at common law, the rationale being that rape is a serious charge, easy to allege and difficult to refute. (The State v Kewa Kai [1976] PNGLR 481, National Court, Prentice DCJ; The State v Anton Kumak (1990) N835, National Court, Ellis J; The State v Bikhet Nguares Paulo [1994] PNGLR 335, National Court, Doherty J.)

Nowadays the opposite is the case: not only is the National Court not required to warn itself, it is not allowed to. Section 352A of the Criminal Code (corroboration not required) states:

On a charge of an offence against any provision of this Division, [Division V.7, sexual offences and abduction) a person may be found guilty on the uncorroborated testimony of one witness, and a Judge shall not instruct himself that it is unsafe to find the accused guilty in the absence of corroboration.

"Uncorroborated testimony" is defined, in relation to an accused person, by Section 1(1) to mean "testimony that is not corroborated in some material particular by other evidence implicating him".

Section 352A was inserted in the Criminal Code by the Criminal Code (Sexual Offences and Crimes Against Children) Act No 27 of 2002. It commenced operation on 10 April 2003. (See Constitution, s.110(2), the commencement clause of Act No 27 of 2002 and the notice of commencement in the National Gazette No G45 of 2003 at page 2.) There is an equivalent provision, s.229H, which applies to offences under Subdivision IV.2A (sexual offences against children).

if the complainant's evidence is regarded as uncorroborated, it is still possible to find the accused guilty;

the State still bears the burden of proving the elements of the offence beyond reasonable doubt;

the judge is not required to instruct himself or herself that it is unsafe to find the accused guilty in the absence of corroboration;

Interestingly there are a number of provisions of the Criminal Code which expressly state that a person cannot be convicted of an offence on the uncorroborated testimony of one witness. These include ss.54 (sedition); 59 (false evidence before Parliament); 116 (false electoral claims); 121 (perjury); 196 (false statements required to be under oath or solemn declaration); 218 (procuring girl or woman); and 219 (procuring girl or woman by drugs etc). I mention those provisions, by way of contrast, to demonstrate how strict the new rules are regarding rape trials. I state for the avoidance of doubt that I have applied those new rules to the present case.

It is possible to regard the present case as one in which the State is seeking a conviction on the basis of the uncorroborated testimony of the complainant, in that she is the only witness to testify that she witnessed what happened. It could be argued that her evidence is corroborated by the evidence of the fresh complaints she made to two people and by the medical evidence that she was examined the day after the incident and the examination revealed that she had recently been sexually penetrated. I regard all of that evidence as relevant and consistent with the complainant's evidence. However, it is not direct corroboration. I accept Mr Inua's submission that the medical evidence does not of itself link the accused to the crime. Nor does it establish that intercourse took place without the complainiant's consent. I will therefore give the benefit of the doubt to the accused as to the way in which the evidence is to be categorised and treat this case as one of uncorroborated testimony of the complainant.

I therefore remind myself, in accordance with s.352A, that a conviction is still possible and that the prosecution still bears the onus of proving the elements of the offence beyond reasonable doubt. I do not warn myself that there is any danger in convicting the accused on the basis of the complainant's uncorroborated testimony.

There are two aspects of alibi evidence that need to be considered. First, the formal, procedural requirements that are prescribed by the Criminal Practice Rules. Secondly the more substantive principles, emerging from the case law, that guide the court on how to deal with alibi evidence and determine what weight to give it.

4. An accused person shall not upon his trial on indictment, without the leave of the Court, adduce evidence of an alibi unless, before the expiration of the prescribed period, he gives to the Prosecutor written notice of particulars of the alibi and unless the notice contains the name and address of any person whom he claims can support the alibi or, if such name or address is not known to him at the time he gave the notice—

(a) he gives in the notice all information in his possession that may be of material assistance in locating that person; and

(b) the Court is satisfied that before giving that notice he had made all reasonable attempts to obtain that name and address and that thereafter he continued to make all reasonable attempts to obtain and to inform the Public Prosecutor of that name and address.

5. A notice under this Section shall be duly given if it is delivered to or left at the office of the Prosecutor responsible for the conduct of the trial or sent by certified mail addressed to him at that office.

6. Evidence tending to disprove an alibi may, subject to a direction by the Court, be given before or after evidence is given in support of the alibi.

7. A notice purporting to be given under this Section on behalf of the accused person by his lawyer shall, until the contrary is proved, be deemed to be given with the authority of the accused person.

"evidence of alibi" means evidence tending to show that by reason of the presence of the accused person at a particular place or in a particular area at a particular time he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission;

"the prescribed period" means the period of 14 days prior to the date of trial of the accused person.

The leading case on the principles to apply in determining the value and weight to be given to alibi evidence is John Jaminan v The State (No 2) [1983] PNGLR 318, Supreme Court, Pratt J, Bredmeyer J, Amet J. Kandakasi J has also carefully set out and applied the relevant principles in a series of recent National Court decisions involving alibi evidence, eg The State v Okata Talangahin (No 1) (2004) N2581; The State v Eki Kondi (No 1) (2004) N2542; and The State v Donald Poni (2004) N2663. In a recent National Court case in Kimbe, Lay J dealt with the specific issue of the limited circumstances in which an inference adverse to the accused could be drawn by the accused's failure to call a witness to support an alibi (The State v John Bosco (2004) N2777).

If an alibi is raised the burden of proof does not shift from the prosecution. The onus is never on the accused to prove an alibi or prove innocence.

However, in practical terms, the accused must lead some evidence of an alibi and it must be sufficiently convincing to create a reasonable doubt in the mind of the judge.

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.

Unlike the defences of self-defence and provocation, there is no rule of law that says that once an alibi is raised it is up to the prosecution to disprove it.

An alibi is properly regarded as a defence but before it can be said to fairly arise there must be some evidence in support and not mere speculation.

An alibi is not one of the excusatory defences such as self-defence, provocation or mistake, which concede the presence of the accused and his or her involvement in a series of events that led to the final state of affairs and are like a confession and avoidance. An alibi entails a complete negation and puts every matter in issue.

If an alibi is rejected it does not necessarily follow that the court should enter a conviction. The court must still be satisfied that the prosecution has proven its case beyond reasonable doubt.

An alibi that is determined to be false may, depending on the circumstances, amount to corroboration of the complainant's evidence.

Great caution should be exercised before drawing an inference adverse to an accused, as a result of the accused's failure to call a witness that might reasonably be expected to support the accused's alibi.

As a matter of practice, defence counsel should put questions about the alibi to the prosecution witnesses, to comply with the rule in Browne v Dunn (1893) 6 Reports 67.

A belated alibi, not revealed on any earlier occasion prior to trial, should be given less weight than an alibi consistently given over a long period, eg since the beginning of the police investigation, in a record of interview or in District Court committal proceedings.

Guilt should not be inferred from the accused not mentioning the alibi on an earlier occasion, as the accused has the right to remain silent at all times. However, as a matter of fact the lateness of an alibi reduces its weight.

The court should consider whether the alibi evidence contains convincing detail or whether it is vague and short on detail.

The court should assess the degree of logic and commonsense in the evidence of the alibi witnesses (the terminology used by Kandakasi J in Talangahin (No 1), Kondi (No 1) and Poni).

The court should also consider the demeanour of the alibi witnesses and whether there are any inconsistencies in their evidence.

The procedural requirements of the Criminal Practice Rules were complied with in this case with the filing of a notice of alibi within the prescribed period.

As to the application of the substantive principles, I will start with the last point. The demeanour of both the accused and his brother did not impress me. The accused seemed an intelligent person who thought he knew the answers that he had to give to set up his alibi but ended up giving answers that were not believable. He gave the impression that he did not want to admit that he was well known in the Sarakolok community, as he thought that that would incriminate him. He was evasive with his answers. The result was that he gave answers to simple questions that were not credible. A judge does not have to be a social anthropologist to appreciate that in the oil palm settlements of West New Britain it is reasonably expected that a person who has lived there for many years will be known to and recognised by fellow residents of the settlement. I found the accused's evidence that he only knew a few people and he was not sure if he would be well known, not believable. I found his evidence that he did not know the complainant to be equally unconvincing.

The accused's brother, Paul Kusai, was an even less impressive witness. There were long pauses before answering some questions. His demeanour was not that of a witness of truth.

There were inconsistencies in their evidence, highlighted by both counsel. First, there was the question of where they both were on the morning of the incident. The accused said they were both at their place building a new house, from 6.00 or 7.00 am to 5.00 pm; thereby indicating that they never went away. The brother said that they went searching for timber between 9.00 and 10.00 am. Secondly there was the confusion about what school the accused was going to at the time. The accused said Moramora, which is near Hoskins. The brother said Ponini, which is near Mosa. The schools are located about 25 kilometres apart. I accept Mr Popeu's submission on these inconsistencies. Witnesses of truth would not give different evidence about such things. They were not adequately explained and further detracted from the credit of both witnesses.

Next I will examine whether the evidence of these witnesses was logical and in accordance with common sense. I thought their evidence was selective. It was strange that, though they gave inconsistent evidence about their movements during the day and what school the accused was going to, they could both remember what the accused was wearing that day: a pair of Westmont shorts and a pair of slippers (ie thongs). They both remembered something about the colour of his apparel. They both remembered that the shorts were multi-coloured. As for the slippers, the accused could not remember the colour and his brother said that they were black. The manner in which this evidence was given gave the impression that it was manufactured, to make it different to the complainant's evidence, which was that her assailant was wearing a pair of blue cut jeans and orange slippers. This selective detail seemed more than coincidental and was not convincing.

When did the alibi first arise? I do not think it would be fair to label it as a recent invention, the tag used to describe an alibi that only surfaces during the trial (as in Jaminan's case). A notice of alibi was filed within the prescribed period. However there is no trace of the alibi in the District Court depositions or in the record of interview. This does not assist the accused. However, I am not prepared to draw an adverse inference against the accused for not mentioning it earlier than in the notice of alibi, which was filed on 31 May 2005, more than a month before the trial.

The defence counsel did not put any questions about the alibi to the complainant in cross-examination. This strictly speaking offended against the rule in Browne v Dunn; though in the circumstances of this case I do not think that it is of great consequence as it is unlikely that the complainant's evidence would have shed any light on the strength of the alibi.

I also note that in the notice of alibi the accused gave the names of two other persons besides his brother who would be called as witnesses: Betty Danny and Danny Mausen. Their addresses were given as Sarakolok, the same as the accused and his brother. Sarakolok is less than an hour's drive from Kimbe on reasonable quality roads, accessible by public transport. It seems strange that they were not produced as witnesses. No explanation was given for their absence. When the accused and his brother gave evidence they both said that when they were building the house, two other people were with them: Betty and their 'old mother'. Therefore, the 'old mother' became another potential, but uncalled, witness. This was intriguing but ultimately I felt constrained not to draw any adverse inferences from the failure to call any of the three other potential alibi witnesses, due to the failure of the circumstances of this case to satisfy all the criteria set out by Lay J in John Bosco's case.

Ultimately, however, I did not find the alibi evidence convincing. When it is weighed against the prosecution's evidence, in particular the strong and credible evidence of the complainant, it looks very weak. There was no need for the prosecution to disprove the alibi evidence beyond reasonable doubt but, in effect, that was the result of the cross-examination of the accused and his brother. They were both revealed as unreliable witnesses and this, in the circumstances of the case, provided corroboration of the complainant's story. I therefore reject the alibi outright.

To sum up, the identification evidence of the complainant was strong. The alibi evidence was weak and fell far short of creating a reasonable doubt in my mind as to what happened. Though there was no direct corroboration of the complainant's evidence, there was evidence of fresh and specific complaints. The medical evidence, though inconclusive, was consistent with the complainant having been raped.

I reject Mr Inua's submission that DNA evidence was required. I do not think such evidence is available in Papua New Guinea. It is certainly not readily available in Kimbe. Lack of DNA evidence should not stop this court doing what has been done in thousands of previous cases in this country and in other countries where the ready availability of DNA evidence is still only a recent phenomenon: making findings of fact based on the best evidence available. As I have accepted the identification evidence of the complainant and found it to be supported by other evidence, the combined weight of the evidence is more than circumstantial and leads to the inevitable conclusion that the accused raped the complainant at Sarakolok on the afternoon of Thursday 11 March 2004.

Yes. I am satisfied beyond reasonable doubt that the accused introduced his penis into the complainant's vagina, thereby sexually penetrating her, as defined by Section 6A(a) of the Criminal Code.

Yes. I am satisfied beyond reasonable doubt that there was a complete lack of free and voluntary agreement to sexual penetration. The complainant submitted to being sexually penetrated because of the use of force by the accused; because of threats and intimidation (by the accused's threat to stab her with a bushknife) and because of fear of harm to herself (as the accused was much bigger, stronger and fitter than she was). It appears that the complainant did not sustain physical injury but that does not mean that she is to be regarded as having consented. Clearly, there was no consent under

s 347A of the Criminal Code. Furthermore, for the purposes of ss 25 and 347B, there is no evidence that the accused believed that the complainant consented.

As both elements of the offence have been established, the accused is convicted of the crime of rape.

Lawyer for the State: Public Prosecutor.
Lawyer for the accused: Public Solicitor.

Papua New Guinea Law Reports

State v Mausen [2005] PGLawRp 15; [2005] PNGLR 54 (4 August 2005)