State v KipungI [1983] PGNC 13; N437 (18 October 1983)

Unreported National Court Decisions

N437

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V.
KOPILYO KIPUNGI,
UMBA KIPUNGI,
SOPERE KAIEN,
WAINGI MITNAKASO
AND LOPAU KENKIEN

Wabag

Los AJ
10-13 October 1983
18 October 1983

CRIMINAL LAW - Crime of Rape, s. 347 of the Revised Code - Complaint even if no corroboration should be taken seriously - Prosecutrix should not be twice traumatised.

CHANCES OF FALSE COMPLAINT LESS IN PAPUA NEW GUINEA - Courts' Role in re-shaping male dominance. Balance approach required to reflect reality, as well as afford fair trial to the accused.

LOS AJ: The State case is that the accused Kopilyo Kipungi, Umba Kipungi, Sopere Kaien, Waingi Mitnakaso and Lopau Kenkien on or about 20th of February 1983 broke into a house and whilst Lopau Kenkien was present and assisting the rest raped Jannet Enn Komba. The prosecutrix was asleep with her two ten year old twin children. The prosecutrix's husband Councillor John Enn Komba was out of the house then.

The prosecutrix's evidence was that the accused broke into the house, forced the bedroom door open, forced her down on the floor and whilst others holding her each of them, except Lopau Kenkien had sexual intercourse with her. Her underpants and blouse were torn. Later the accused carried her outside the house into the mud and bush and raped her again. She recognized all and later identified them and gave their names to the police.

The eye-witness, Eg Karip, was a security man that night. He is employed to look after the school area as well as the provincial members' houses. The prosecutrix's husband is a member of the provincial parliament. His evidence was that he saw Kopilyo Kipungi come into the gate leading to the prosecutrix's house and called others to follow. They were armed with axes, sticks and stones. He said they were angry. He saw them breaking a car owned by the provincial member and saw them breaking into the house. When he asked them why they were doing that he was threatened with axes. Partly for fear of his own life and partly to seek assistance he ran to the police station. He named Kopilyo and Umba and also recognized other accused. He saw them before as they had been to that house because the prosecutrix's husband and the accused belong to the same clan. He had also seen them generally before in the market and in the clubs.

Joseph Enn Komba, the prosecutrix's husband, said he saw all the accused early that evening at the Wapenamanda tavern. Towards closing there was a fight and he tried to settle the fight by telling people to leave and go home including the accused. He took some men home in his car. On the way, from the light of the car he saw the accused walking towards a track that lead across the playing field towards his house. About five yards from his house, somebody threw a rock at his car. With the help of those who were in his car they captured this man and brought him to the police station. From there he went to drop those men in his car. When he came back he saw that his house was broken into. The door and the walls were broken. Inside, various things including, the stove, sewing machine and utensils were over-turned. His wife was missing. He called for her around the house but there was no reply. He then went over to the police to seek assistance. Upon coming back to his house, he found the prosecutrix lying on the ground beside the house. She was unconscious. She was covered with mud all over her. Her eyes were swollen and tears were running down from her eyes. She said to him: "a gang of boys broke the house in, they took my clothes off and had sex with me". She mentioned the names of the accused to the witness.

The medical evidence given by Dr. Otto Numen was that sexual intercourse occurred within two hours prior to the woman being brought to him for examination and that there was a forced penetration. Other evidence consistent with the evidence of the prosecutrix and councillor Komba was that the woman was in a very distressed condition. From the head to the lower limbs she was covered all over with mud. Her underpants were completely torn. Her blouse was torn at the right hand shoulder and had mud on it. She had abrasions just over the pubic hair. When the doctor was doing a vaginal examination, the woman felt serious pain. His conclusion was that there was a forced penetration.

The defence ran the case on two premises. One and the basic defence was that of alibi. Each accused said that at the relevant time he was asleep in his house. And witnesses were called to swear that they saw the accused in their respective homes and that they slept together from the evening to the sunrise.

The other aspect of the defence case was an attempt by the counsel for the accused to punch holes in the evidence of the State witnesses. This is because the State has the onus of proving the guilt of the accused and it has to do that on the standard of beyond reasonable doubt. In doing so the counsel dwelt heavily on various inconsistencies in the previous statements of the State witnesses. Further the counsel was duty bound to dwell heavily on factors such as presence or absence of light, witnesses ability to recognize faces, credibility and existence or otherwise of a motive to give untruthful evidence to the court. Such factors are very well discussed in many cases including John Beng v. The State (1977) P.N.G.L.R. 115. That case stands for principle (inter alia) that where evidence of identification is relevant, the court should be mindful of all the inherent dangers. It should examine closely all the circumstances in which the identification by each witness came to be made bearing in mind that recognition may be more reliable than identification of a stranger. Even where the witness is purporting to recognize someone he knows, mistakes can be made.

The way the trial ran, the issue of whether or not there was consent was not a major issue by the defence, though the defence counsel in his final submissions referred to a need for corroboration and a fresh complaint. The question of consent or no consent is an essential issue in a rape case and the onus is on the State. In my view, the State has discharged that onus. The men who came to the house were not looking for a quiet sex. Their behaviour sufficiently indicate that they did not care whether Jannet Komba consent or not consent. These men were apparently angry with the prosecutrix's husband for some reason. They came around with axes, knives and sticks to destroy Mr. Komba's properties including his wife. There is no evidence that she had consented. If there was consent there is over-whelming evidence that this was obtained by force and intimidation. It would be beyond all logic to suggest that the prosecutrix consented first in the house and later to be in the mud in the dark for these men to satisfy their sexual greed. There is evidence that she was unconscious when her husband first saw her about 4 o'clock in the morning. Then when she was able to move she had tears in her eyes. The doctor's evidence showed torn underpants and partly torn blouse with mud.

I have to remind myself that it is dangerous to convict upon an uncorroborated evidence of the woman concerned. There is sound reason for this and I state the reason by Glanville Williams quoted by the Supreme Court in Peter Townsend v. George Oika (1981) P.N.G.L.R. 12 at 20 -

". . . sexual cases are particularly subject to the danger of deliberately false charges, resulting from sexual neurosis, phantasy, jealousy, spite or simply a girl's refusal to admit that she consented to an act of which she is now ashamed."

If I were to rely only upon the evidence of the prosecutrix in this case I would have done that without hesitation. I observed the prosecutrix in the witness box. She recognized the accused who usually come to the house because they and her husband belong to the same clan. The condition she was in when she was found early in the morning was consistent with her being raped. She did not have any reason to lay false complaint. The only 'reason' why she would name the accused came from each accused. I do not believe their so-called reason and I give my reason later in my judgment. However, I need not do that because there is an over-whelming supportive evidence: the evidence of the security man and the evidence of the husband. Further, there is evidence by the doctor that she was in a very distressed condition. She did not pretend to be distressed, it was a real distress. The result of her subsequent medical examination was consistent with her distressed condition.

In passing, let me say this. While rules relating to corroboration is a sound one, in my view, a woman's complaint even if there is no corroboration should be taken very seriously. A woman can, because of her gender and beauty entrap a male. But this rule should be used very cautiously. My basic reason is that an opportunity for false allegation is less in Papua New Guinea. Although the equality of sexes is now a constitutional principle in Papua New Guinea, at this stage it is more a matter of books, rather than practice. The character of all aspects of life is a male dominance. In other countries such as United States, equality is a reality where female folks participate in every aspect of life. Male/female relationship is based upon many premises including business, sport and mere social. Thus a man and a woman can be seen together at any stage of the day or night. The attitudes and the actions of the females themselves also enforce this type of life whether be in ordinary everyday life or within the professional fields: Scutt, Formation of the Feminist Legal Action Group (1979) 53 A.L.J. 114. In the United States numerous legal actions have been taken against gender based discriminatory statutes and actions. These moves continue to shape the attitudes and life in general: Gender Discrimination (1979) 93 Harv. Law Rev. 130; Gender-Based Statutory Rape Laws (1981) 95 Harv. Law Rev. 171, generally see: Toward A Redefinition of Sexual Equality (1981) 95 Harv. Law Rev. 487.

I am aware that Miles, J. referred to a number of well-articulated criticisms about the rules relating to corroboration in American jurisprudence in Peter Townsend v. George Oika (supra) at pp.22-27. It seems His Honour had a slightly different aspect of the requirement of corroboration in mind. But that also adds to the rigid requirement. There ought to be a balance approach. On one hand the victim of rape should not be twice traumatised merely because there is no corroboration. On the other hand to afford a fair trial to the accused, she, who complains must produce a proper and convincing evidence to obtain a conviction: Scutt, Admissibility of Sexual History Evidence and Allegations in Rape Cases (1979) 53 A.L.J. 817. In Papua New Guinea such a relation as I described earlier can automatically be interpreted as for want of better description, I use a pidgin English phrase, "ol ilaik kuap". This attitude is a reflection of life in many parts of Papua New Guinea. Thus, if a male and a female whether by accident or plan come together on their own or she is on her own but he is with other friends the instant reaction is that she is available for sex. I believe the courts should bear in mind the realities of life so that their wisdom should not only be used for protection of women and girls but also 'participate' in educating the predominantly male population that female folks are not available every hour of the day to be attacked and molested.

Counsel for the accused urged the court to find that no fresh complaint was made by the prosecutrix. Before I decide whether she did or did not make a fresh complaint, let me say two things. The counsel is entitled to run his client's case the way he sees best subject to the rules of evidence and rules of practice. However, having put heavy emphasis on the defence of alibi, his submission on fresh complaint seems to be out of place. At any rate, failure to make fresh complaint is not necessarily evidence of consent. If a fresh complaint is made, the content of the complaint is not an evidence. It is for the court as a tribunal of fact to determine whether the fresh complaint or lack of it is consistent with the woman's allegation of sexual intercourse without consent. In this case I find that there was complaint made by Jannet Komba at an earliest opportunity. She was unconscious for about two hours. When the opportunity arose she told her husband that a gang of boys raped her. Within a short time she also complained to the police.

I find that Jannet Enn Komba was raped by a group of men. Having found that the only question remains is who were these men. The woman's evidence and the evidence of her witnesses is that they were the accused who are now before the court. The accused emphatically denied it was them. They gave evidence to support their alibi. They also had witnesses to support them. I have therefore to find out who was telling the truth.

All the accused denied having left their houses between 8.30 on the evening of the 19th February 1983 to the sunrise the following day. Those that did leave their houses said they were home in time for bed. On the other hand the prosecutrix recognized and named all that entered her house and raped her. The house was sufficiently lit. Her evidence of identification was supported by the security guard, Eg Karip, by naming Kopilyo and Umba and by recognizing others. This evidence was further supported by Joseph Komba who saw nine people earlier including the five accused before the court. He has known all of them as he and the accused belong to the same clan. These men had been to his house prior to the 20th of February.

In denying the charge all the accused gave an explanation that the prosecutrix was lying because her husband gave all the names to her. She in turn gave the names to the police. The motive for this they said was a 'revenge' by her husband Joseph Enn Komba for the accused not voting for him in the 1982 national election. The accused and some 2,900 Yakuman clansmen voted for Pato Kakaraya instead of Joseph Enn Komba. As a result the former won the election. Upon questioned what made the accused think this was the motive, they said they could not see any other reason than this. Upon further questioned why Joseph Komba would wait this long to take revenge and especially wait for the 20th of February. They said it was all politics. Words said during campaign remain and re-appear. Though this could be a motive for some action, I found it unreasonable in this situation. Why should Joseph Komba choose to let go those who destroyed his car, his house, and savagely handled and raped his wife and blame those who had nothing to do with this savage act just because they did not give him a political support, which cannot give anger, anxiety, shame and frustration as for a sexual attack on his wife. He can always stand for next election as the elections come every five years. Whereas the fact that his wife was raped will remain for life. It would be in line with human behaviour to say that he would be out to get those who attacked his wife than to use this occasion for a political revenge.

The woman comes from a different clan but through her husband that she got to know the accused. She had no reason to lay false complaint against the accused. The security guard comes from a different clan and has nothing to do with Joseph Komba and the accused's politics. During the cross-examination he said "I have no conflicts with these people - why should I be angry with them".

I find the accused's evidence amazing. It is so incredible that sudden love and affection struck the five accused from the evening of the Saturday 19th February to the morning of Sunday the 20th February 1983. Those who are married said they were holding hands and cuddling each other from the evening to the sunrise. Those who are not married said they were cuddling and holding hands of their mothers the whole night. One wife stated she had to put her a year old baby far away the whole night so that she and her husband would be holding hands all night. A situation very rare in Papua New Guinea. It is common in the European society where babies from birth sleep separately from mothers even to an extent of sleeping in different rooms.

Each accused said when it was time to bed he went to sleep first. And when time for waking up it was not him but partner or mother that woke up first. When asked what time they went to sleep they said they could not remember. Those who were out and came back said they were so drunk that they could not tell time. In a village situation it may not be possible to say exact hours and minutes and seconds. It certainly is possible to describe the stage of the day or evening. The time can be described as early in the evening, late in the evening or mid-night. I find the accused claim of ignorance of time and their claimed drunkenness a suspect. They certainly could tell when the police club or the tavern would open or close even if they had no watch on. If they could do that, they certainly could tell time in the village.

The accused Kopilyo Kipungi and Umba Kipungi were seen drinking at the police club and later at the tavern, so as Sopere Kaien. Each denied seeing one another. They also denied seeing any other accused before the court. They further denied seeing any of their clan members. The importance of this aspect of the evidence is that the evidence adduced by the State is that the accused were seen together early that evening. The inference being their expedition commenced from there. The club and the tavern are not too close to the prosecutrix's home. Strictly, this evidence on its own would be too remote to support the State case. Then why should these accused who admitted being in the club deny seeing each other. The rest denied being there. A club or a tavern draws people together. It would be unusual for a person not to see any of his friends or other members of the clan. It would be unusual to see a lonely tribesman drinking on his own. It is a common knowledge that there are small groups in the bars. There is nothing wrong with that. I find that their denial is a part and parcel of their defence of alibi.

I found the evidence of the wives and mothers too good to be true. There has been sufficient opportunity for the accused to discuss with their witnesses to have a common approach in producing evidence on behalf of the accused. Each witness was short in her evidence. There was no smooth flow of evidence. If things did happen as they were saying then the evidence would have flowed naturally. It was difficult because they were trying to tell the court what did not happen. On the other hand if it was true that they were holding hands and cuddling each other that night, the only explanation is that each accused was putting on an act to cover up for his action elsewhere prior to coming home. The wives and the mothers would have been blind enough to accept such an act.

As far as each accused is concerned, I do not believe his evidence. They were deliberately evasive. Each denied every relevant fact in order to support his false alibi. They denied being in company with each other that night. Pressed to state at what time each went to sleep they said usual time when people go to sleep. They could not say what usual time was. Two of them blamed the drinks for not being able to tell the time. But they were able to specify exact time when they left the club or tavern.

Kopilyo Kipungi described as leader in this case made a serious blow to his defence of alibi. Not realizing that he had already said through his record of interview that it took him only half an hour to go from the police club to his home, he wanted the court to believe that his home was forty miles. He wanted the court to believe that as his home was forty miles away and to where he went, he could not have gone to the prosecutrix's house as she has alleged. When he realized he had just destroyed his own defence, he immediately said, I do not know how to tell the distances but I heard from some people saying that my village is forty miles. The accused is a counsellor, a leader of some 2,900 clansmen. I observed his demeanour in the witness box and I have no hesitation in saying that he is a man of sufficient sophistication. He thought he would take advantage of the court's lack of knowledge in the local area. Certainly he could not have walked forty miles for only thirty minutes.

Waingi Mitnakaso caught himself in trying to leave no connection in relation to a cut he had on his leg with any of his involvement with other accused. In his record of interview, he said he had received a cut on his leg when he ran to investigate a house on fire. His mother said on oath that there was no house on fire either on Saturday or Sunday. The only explanation is that he received that cut during the brawl at the tavern or during the breaking and kicking of things in Joseph Komba's house where his wife was raped.

In summary my finding is this:

The complainant told the truth. She was raped on the 20th of February 1983 at her house and later outside the house. And the accused in company with each other raped her. Her evidence was corroborated by her witnesses both as to the forced sexual intercourse and the identities of the accused.

The accused deliberately told lies to support false alibi. Their false denials to the police during their investigations and their incredible but false evidence in courts supports the prosecutrix's complaint that they were the ones who raped her.

Accordingly, I find each accused guilty and convict each one for commission of the crime of rape upon Mrs. Jannet Enn Komba.

Lawyer for the State: The Public Prosecutor

Counsel: Mr. H. Ramatlap

Lawyer for the Defence: The Public Solicitor

Counsel: Mr. S. Alonk