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 ach required to reto reflect reality, as well as afford fair trial to the accused.

LOS AJ: The State case is that tcused Kopilyo Kipungi, Umba Kipungi, Sopere Kaien, Waingi Mitnakaso and Lopau Kenkien on oron 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 husbouncCouncillor John Enn Komba was out of the house then.

The eye-witness, Eg Kari Karip, was a security man that night. Hemploy look after the sche school area as well as the provincial members' houses. The The prosecutriusband band is a member of rovincial parliament. His evidence wat he saw Koaw Kopilyo Kipungi come into the gate gate leading to the prosecutrix's house alled others to follow. They were armth axes, sti, sti, sticks and stones. He said they were angry.& 160; He saw them breaking a car owned by the provincial member and saw them breaking into the house. When he asked them why thry were doing that he was tened with axes. Partly for fear of hn life life and pand partly to seek assistance he ran to the police station. He namedlyo and Umd also rlso recognized other accused. He saHe saw them before ay they had been to that house because the prosecutrix's husand the accused belong to the same clan. He had also seen them generally before in thin the market and in the clubs.

Josnn Komba, the prosecutrix'srix's husband, said he saw all the accused early that evening at the Wapenamanda tavern. Towards clotherea fight anht and he trhe tried to settle the fight by telling people to leave and go home including the accused. He took sen ho his car.&#1r. On the way, fromlight of t of the car he saw the accused walking king towards a track that lead across the ng field towards his house. About firds from his househouse, somebody threw a rock atck 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 thos those men in his car.; When he came back he saw that his house was broken into. The door he walls wers wers were broken. Inside, various thingluding, the stove, sewing machine and utensils were over-tuer-turned. His was missing. He ; He called fo around tund the but was no reply.&#1y. He then went over to oliceolice to seek assistance. coon coming back to his hois house, he found the cutring on the ground ound beside the house. Ss unconunconscious. #160; She waered with mud amud all over her. Her eyes were sn and tears were running dong down from her eyes. She said to him: "a gang of boys broke the house in, they took my clothes off and ex wi". Snt mentioned the names ofes of the accused to the witness.

The medical evil evidence given by Dr. Otto Numen was thaual iourse occurred wied within two hours prior to the woman being brought to him for examinationation and that there was a forced penetration. Other evidence consi with with the evidence of the prosecutrix and councillor Komba was that the woman was in a very distressed condition. From the to the lower limb limbs she was covered all over with mud. Herrpants were completely tely torn. Her blouse was torn at the right hand shoulder and had mud on it. She had abrasions just over the pubic hair.&#160n the doctor was doing a vaginal examination, the woman feln felt serious pain. His conclusion was that twere was a forced penetratip>

The defence ran the case on two premises. One aOne and the basfence ence was that of alibi. Eccused said that e relevaelevant time he was asleep in his house. And witnewitnesses were called to swear that they saw the accused in their respectimes aat they slept togt together from the evening to the sunrisenrise.

The other aspect of the defence case was an attempt by the cl for the accused to punch unch holes in the evidence of the State witnesses. This is because tate has thas the onus of proving the guilt of the accused and it has to do that on the standard of beyond reasonable doubt. In so the counsel dwelt lelt ly on various inconsistencies in the previous statements ofts of the State witnesses. Further the co was duty boty bound to dweavily on factors such as presence or absence of light, witn witnesses ability to recognize faces, credibility and existence or otherwf a motive to give untruthful evidence to the court. 160; Such rs are very well well discussed in many cases including John Beng v. The State (1977) P.N.G.L.R. 115. That case s for principle iple (inter alia) that where evidence of idecation is relevant, the coue court should be mindful of all the inherent dangers. It should examine ly all tall the circumstanc which the identification bion by each witness came to be made bearing in mind that recognition may be more reliable than identificatf a stranger. Even where the wi is purpopurporting tong 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 ofent or no c no consent is an essential issue in a rape case and the onus is on the State. In my, the State has dischdischarged that onus. The men whe to the hwere nere not looking for a quiet sex. Thei Their behaviour sufntciently indicate that they did not care whether Jannmba ct or not consent.sent. These men werarently angryangry with the prosecutrix's husbandsband for some reason. They came aroith axes, s aves and sticksticks to destroy Mr. Komba's properties including his wife. There is no evidenat she hshe had consented.& If there was consent there is over-whelming evidence that this was obtained by force and iand intimidation. It would be beyondlogicugg suggest that the prosecutrix consented first in thin the house and later to be in the mud in the dark for these men to satiseir sexual greed. There is evidthat she was was unconscious when her husband first srst saw her about 4 o'clock in the morning. Then when she was able to move she had tears in her eyes. Thtor's evidence showed toed 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 concerne60; There is sound reason fson 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 thsecutrix in t 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 conditionwas in when shen she wund ein the morning wang was consistent with her being raped. She did not any reason ason ason to lay false complaint. The onlason' why ould name name the accused came from each accusedcused. I do noieve their so-callecalled reason and I give my reason in mgment. Howe However, I need not do that because there is an over-whelming supportive tive evidence: the evidence of the securit and the evidence of the huhe husband. Further, there is evidence by the doctor that she was in a very distressed condition. She di pretend to be distrdistressed, it was a real distress. The resf her subsequent ment medical examination was consisteth hetressed conditionition.

In passing, let me say this. While ruelating to c to coto corroboration is a sound one, in my vi woman's complaint even if n if there is no corroboration should be taken very seriously. A woman cacause of her genr gender anuty entrap a male. Bu0; But this rululd be usbe used very cautiously. My basic reason is that an opportunity for false alion is less in Papua New Guinea. Althoughequalituality of s of sexes is now a constitutional principle in Papua New Guinea, at this it is more a matter of books, rather than practice. 160; The characf all aspecaspects of life is a male dominance. In other countruch as Unit United States, equality is a reality where female folks participate in every aspect of life. Male/female ionsh basen maon many many premises including business, sport and mere social. Thus a man man and a woman can be seen together at aage of the day or night. The attitudd the actions oons of the females themselves also also enforce this type of life whether berdinary everyday life or within the professional fields: Scs: Scutt, Formation of the Feminist Legal Action Group (1979) 53 A.L.J. 114. In the United States ous lous 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. Ims His Honour had a slighslightly different aspect of the requirement of corroboration in mind. But that also adds to the requirement. There ought to be a ba appe approach. On one hand theim of r of r of rape should not be twice traumatised m because there is no corroboration. On ther hand to afford a fd a fair trial to the athe accused, she, who complains must produce a r and convincing evidence tnce to obtain a conviction: Scutt, Admissibility of Sexual History Evidence and Allegations in Rape Cases (1979) 53 A.L.J. 817. Ina New Guinea such a rela 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 aection oion of life in many parts of Papua New Guinea. Thus, ifle and a female whle whether by accident or plan come together on their own or she is on he but he is with other friends the instant reaction is that that she is available for sex. I believe ourts should bead 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 edng the predominantly male population that female folks are 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 wh she dide did or did not make a fresh complaint, let me say two things. The counsel is entitledun run his client's case ty he sees best subject to the rules of evidence and rules of practice. However, havinhaving put heavy emphasis on the defence obi, his submission on fresh complaint seems to be out of plof place. At any rate, failure to make fresh complaint is not necess evidence of consent. If a fresh comt is made, tde, tde, the content of the complaint is not an evidence. It is for the cas a tribufal of fact to determine whether the fresh complaomplaint or lack of it is consistent with the woman's allegation of sexual intese without consent. In this casind that there here was complaint made by Jannet KombaKomba at an earliest opportunity. She wasnscious for about tout two hours. When the opportunity arose she told her husband that a gang of boys raped her. Wit short tim also complaimplained to the police.

I find that Jannet Enn Komba was rape raped by a group of men. Having fouat thy que remairemainemains is who were these men. The woman's evidence he evhe evidence ence of her witnesses is that they were thused who are now before the court. Tcused emphatically deniedenied it was them. #160; They gave evidto supp support their . They ald witnewitnesses toes to support them. I have therefore to findwhut who was telling the truth.

All the accuseded haleft their houses between 8.30 on the evening of g of the 19th February 1983 to the sunrisenrise the following day. Those that eave houses saes said they they were home in time for bed. On the ohand the prosecutrecutrix recognized and named all that enther house and raped her. The house wfficiently lit. lit. Her eviden identidentificaification was supported by the securitrd, Eg Karip, by naming Kopg Kopilyo and Umba and by recognizing others. evidence was further supposupported by Joseph Komba who saw people earlier including ting the five accused before the court. Heknown all of them as he s he and the accused belong to the clan. These men had bhad been to his house prior to the 20th of February.

In denying the charge all the accused gave an nation that the prosecutrixutrix was lying because her husband gave all the names to her. She in ture the names to t 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 19tional election. The accused and som00 Yaku Yakuman cman clansmen voted for Pato Kakaraya instead of Joseph Enn Komba. As a result ormer won the the election. Upestioned what made the athe accused think this was the motive, they said they could not seeother reason than this. Upon furthertioned why Josy Joseph Komba would wait this long long to take revenge and especially wait for the 20th of February. They said s all politics.&ics. Words saidng campaign rema remain and re-appear. Though this could be a m five for some action, I found it unreasonable in this situation. Why should Joseph Komba choose to let go those who oyed ar, his house, ane, and savagely handled and raped his wife and blame those who had nothingthing to do with this savage act just becahey did not give him a political support, which cannot give give anger, anxiety, shame and frustration as for a sexual attack on his wife. He can always stand ext elxt election as the elections come every five years. Wheree fact that his wife wife was raped will remain for life. It woe in line with human uman behaviour to say that he would be out to get those who attacked hfe 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. Sh no reason to lay false alse complaint against the accused. Therity guard comes from arom a different clan and has nothing to do with Joseph Komba and the accused's politics. During the crosmination heon he said "I ha conflicts with these people - why should I be angry with tith them".

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

Each accused said when it was tias time to bed he went to sleep first.&#16d when time for waking up i up it was not him but partner or mother that woke up first. When ashat time they went 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 time0; In a village situation it may not be possible to say exay exact hours and minutes and seconds. Itainly is possible to dbeo dbe the stage of the day or y 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 clar claimed drunkenness a suspect. They cery could tell when when the e club or the tavern would ould open or close even if they had no watch on. If they could do that, tery certainly could tell ti the village.

The accused Kopilyo Kipungi and Umba Kmba Kipungi were seen drinking at the police club and later at the tavern,s Sopere Kaien. Each denied seene another.ther. #160; They alsoed seeing anng any other accused before the court. They furthered seeing any any of their clan members. The importance of thiect oect of the evidence is that the evidence adduced e Sta that the accusedcused were seen together early that evening. The ince being theg their heir expedition commenced from there.&#The club and the tavern aren are not too close to the prosecutrix's home. Strictly, this evidence on its own would be too remotsupport the State case.&#16. Then whuld these accused wsed who admitted being in the club deny seeing each other. The resied being . A60; A club or a tavern draws people toge together. It would be unusual for a person not to see any of his friends or otembers of the clan. It would be unuso see a lo a lonely tribesman drinking on his owns own. It is aon knowledge that that there are small groups in the bars. Thernothing wrong with thah that. I that their denial is a ps a part and parcel of their ce of alibi.

I found the evidence of the wives and mand mothers too good to be true. There has beeficient opporopportunity fo accused to discuss with thth their witnesses to have a common approach in producing evidence on behalf of the accused. Each wi was in her evidenvidence. There wasmooth flow flow olow of evidence. If things did happen as they were saying then the nce would have flowed naturally. It was dult because they whey were trying to tell thll the court what did not happen. On the hand if i true thae that they were holding hands and cuddlcuddling each other that night, the only explanation is that each accused was pg on an act to cover up for his action elsewhere prior to coming home. The wives and and the ms hers 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 deliberateasive0 Each denied every relevant fact in order to suto support his false alibi. They denied being mpany winy with each othat night. Pressed to state at what time each went to sleep they said usual time whee when people go to sleep. They could notwhat usual wime was. Two of them blamed tinks fnks foks for not being able to tell the time. But they wele to specify eify exame when they left the club or tavern.

Kopilyo Kipungi described as leader in this cais case made a serious blow to his defence of a Not realizing that he had already said through his rhis 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 wante court to believe ieve 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. We rea he had just destroystroyed his own defence, he immedimmediately said, I do not know how to tell the distances but I heard from people saying that my village is forty miles. The accused is a ellor, a r, a leader oder of some 2,900 clansmen. I observed hieanour in then the witness box and I have no hesitation in saying that he is a man of sufficient sophistication. He tt he takentage oage oage of the court's lack of knowledge in the local area. Certainly hely he could not have walked forty miles foy thirty minutes.

Waingi Mitnakaso caught himself in trying to leave no connection iion in relation to a cut he had on his leg any of his involvement with other accused. In his reis record terviewrview, 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 thas that he received that cut during the brawl at the tavern or during the breaking and kicking of things inph Komba's house where his his wife was raped.

In summary my finding is this:

The complainant told the truth. Sh raped on the 20th of Feof February 1983 at her house and later outside the house. And the accun company with with each otaped her. Her evidence was corroborated by her witnesses both as to the forced sexualexual intercourse and the identities of thused.

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

Accordingly, I find each accused guilty and convict vict 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