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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
CR 399 OF 1993
THE STATE
v
DICKSON WAPE
Mendi: Sawong AJ
1994: 19, 20 July
Criminal Law - Practical Offence - Rape - Evidence - Corroboration - Warning on uncorroborated evidence - Identification - Voice identification - Method of - Proof of Identity - Identification - by voice.
Cases Cited:
John Beng v State [1977] PNGLR 115
Biwa Geta v State [1988-89] PNGLR 153
The State v Daniel [1988-89] PNGLR 580
Didei v The State [1990] PNGLR 458
R Auka for the State.
D K Yalal for the accused.
20 July 1994
SAWONG AJ: The State has presented one indictment containing two counts of rape against the accused. The accused has pleaded not guilty to both counts. The indictment contains the following counts:
'Count 1: Dickson Wape of Map, Southern Highlands Province is charged that he on the night of 13th September 1993 at Mendi in Papua New Guinea committed rape upon Alison Asi.
Count 2: and also that the said Dickson Wape is charged that he on the night of the 13th September 1993 at Mendi, Papua New Guinea, committed rape upon Alison Asi.'
The Evidence
The State has called 3 witnesses who have given sworn oral testimony. Also as part of the State’s case, the Record of Interview conducted between the arresting officer and the accused, and the medical report have been tendered as evidence, by consent.
The Record of Interview contains no admission to the offence. The medical report set out in some detail evidence of sexual intercourse and physical injuries suffered by the victim.
She was medically examined on 13 September, 1993 at the Mendi Public Hospital. The medical examination revealed the following:
'1. Sand found in her vagina and perineal area.
Vagina swab specimen sent for laboratory investigation for sperm cells was positive. In conclusion, there was enough clinical evidence to confirm rape and physical assault.'
The first witness called by the State was the victim, Alison Asi. She gave sworn evidence. In 1993, she was working as a typist with the Probation Office at Mendi. She knows the accused very well. She came to know him and recognise him well as the accused was on probation and he would come to the probation office to report to the probation officer. He went to the office nearly every week to report. The witness also stated that the accused would also give her his personal letters to be typed by her and she would also give him envelopes. She had conversations with him during that time and he acted friendly towards her. She said that on the 9th September last year, she was at the bus stop at Tente waiting for a bus when she met the accused. He then asked her what she was doing there and she replied that she was living with her husband at the hostel there. He then asked her a number of questions regarding her husband to which she replied. Whilst they were talking, the bus came and so she got into the bus and came into Mendi town. At about 5 pm that afternoon, she and husband walked back to the hostel. Whilst they were walking she told her husband of the conversation she had with the accused earlier that day. When they arrived at the hostel, the accused was seen at the hostel. When she saw the accused, she introduced him to her husband.
The victim and her husband were living in one of the rooms in the hostel at the time when the offence was committed.
At about 1.15 am on the 13th of September last year, whilst the victim and her husband were asleep in their room, someone came and knocked loudly on the wall outside their room. That person also at the same time called out the words Bras Bras' two times and the words 'Papua, Papua' three times. The victim heard the voice and she recognised the voice as that of the accused.
The witness says that after that he went away but came back a few minutes later and tore down the flywire to the window of their bedroom. He then left and then he came back again a few minutes later. She then heard the main door of the hostel being kicked open and then their door was also kicked open. The person who kicked open their door then said to her and her husband not to move. She and her husband called out for help once. She identified the person who had told them not to move as the accused, Dickson Wape. She said that he was very close. She knew his voice very well and she recognised his voice and so she called out 'Dickson, it’s me Alison' and the person replied, 'I am not Dickson, I am Issac Iria'. There were no lights at the time when this was taking place as the person had put off the main switch before entering the victim’s room.
There were two men who entered the room. One of them used a bush knife to hold up the victim’s husband. The victim says then that the accused then asked them as to who they (victim and her husband) had voted for and she replied that as she and her husband are from Kagua, they voted in Kagua, while the accused dragged the victim out of her room, through the main door of the hostel and out of the hostel into a nearby garden.
She says that as she was dragged away from the hostel she could see the accused clearly and recognised him clearly from the light that came from the probation officer’s house. The light from the probation officer’s house is about 7 metres away from the hostel. She was also able to recognise the accused clearly as it was a bright moonlight on that night. The accused did not cover his face in any way. Although he had a hat on his head and that she was able to see his face very clearly.
He dragged her to a nearby garden where he tore her underpants, bra, put her on the ground and had sexual intercourse with her without her consent. She said that whilst she was being dragged to the garden, she was also able to see him clearly as there was enough light coming from the house and moon light. Further the witness says that whilst the accused was having sexual intercourse with her at the garden she was able to clearly see and recognise the accused.
After she was raped at the garden, she was then dragged away towards another place. She said the accused’s friend was leading the way, followed by her and the accused followed her. The accused was following her very closely. She said that whilst they were walking, the accused spoke to her about making friends. She recognised the voice as that of the accused. She said that he was speaking to her from just behind her.
She then stated, the accused again spoke to her about the accused and others reporting to the probation office and once again she identified the voice as that of the accused. Immediately she shouted or screamed and she was then held by her neck and pushed to the ground by the accused and the other friend of the accused threatened her with a knife. She once more stated she was able to see the accused clearly there too as there was sufficient light for her to see and recognise the accused clearly.
They then took her to Wara Mendi where the accused laid her on the ground, and took off her skirt and covered her face with her skirt. She said that she was lying on the ground facing up when the accused came from the front and removed her skirt from her body. Whilst he was doing this the victim was also able to recognise and see the accused clearly. She was able to see him clearly as he did not cover his face. After covering her face, the accused and his friends then had turns in having sexual intercourse with her without her consent.
The victim then says that the accused then put his penis into her mouth and at the same time talked to her. She was also able to recognise the voice as that of the accused.
After this episode, the victim says that the accused then bit her in her private part and she screamed.
The accused and his friends then left her there and left. A short while later another person came and told her that he would assist her to her home. He led her to the rugby league field and left her there. She then walked to her room at the hostel.
When she arrived at her room at the hostel she found her room was empty as all their belongings had been removed. She subsequently saw the accused there as well and she said he was carrying an axe with.
She said that from the time she was dragged out of her room at the hostel to the time she was raped the second time, she saw the accused clearly and recognised him clearly that morning.
She said that although there were flowers between the hostel and the probation officer’s house, where the light was, the flowers were only about the same height as her waist. The flowers did not in any way obstruct her view so that she was able to see and recognise the accused clearly as she was being dragged out, and towards the garden.
The victim also stated that she was able to smell alcohol on the breath of the accused when he was having sexual intercourse with her in the garden.
The second witness for the State was Petrus Aken. He is the husband of the victim. His evidence is that he has met the accused previously in Port Moresby and the second time he met the accused was on the 9th September last year at Tente. He was introduced to the accused by his wife, the victim in this case. He has also seen the accused in Mendi many times and recognised him. He confirms his wife’s evidence that prior to the persons entering their room at the hostel, someone had come to the hostel and outside their room and knocked on the walls and had call out the words 'bras bras' and 'papua' several times.
He also confirm his wife’s evidence that the flywire on the window was torn. He also stated the person who entered their room couldn’t be seen as the lights were off. He confirms that his wife was taken out of their room that night.
After she was dragged out and after some four minutes, he came out of their room and put on the main switch which had been put off earlier. He also confirms his wife’s testimony that on that night the security light from the probation officer’s house was on and it was also bright light, and that you could clearly see from the light. Furthermore, he also confirm that it was a moonlight night and this also help to see clearly. He further confirmed that although there were flowers between the hostel and the probation officer’s house, they were only knee high and they did not obstruct anybodies views. He further stated that the accused did not help him search for his wife and that he was surprised to see the accused at probation officer’s house at about 4.30 am.
In cross examination he stated that as a result of the noises made earlier, he and his wife were awake when their bedroom door was forced open. He did not see clearly who had entered their room as it was darker. He also confirm that he recognised the accused’s voice.
The last witness was Ignatius Luke. His evidence is short in that he knew the accused well as the accused is under his care. The witness is a probation officer and the accused was placed under probation so the witness knew him very well. The accused has been under this officer’s supervision since 1991.
Basically, he confirms that security lights from his house were on that night and that it was a moonlight night. He confirms hearing noises of door being broken down from the hostel that night. He also heard scream that night coming from a woman. He also confirms that the husband of the victim, himself together with some others conducted a search to locate the victim. The accused was not with them when they conducted this search. After searching they came back to hostel and were in deep discussion when he saw the accused arrive at the hostel. He saw that the accused was very wet, from the thighs to his feet and he had no shoes. He was looking exhausted with mud over his legs and carrying an axe. He said the mud he saw was similar to the one he saw on the victim's body. He further stated that when accused arrived, he started questioning them if anyone had seen him as one of the offenders. Some five minutes after accused had arrived, the victim arrived at the scene. He also confirms the evidence of the victim that he saw him carrying an axe with him. He saw the victim was in distraught condition.
The accused elected to and gave sworn evidence. His evidence was that he had been drinking at Kiburu Lodge till about 12.30 am and then went home to his house. His house is also at Tente in the same vicinity. He said that he went home with his friends and they continued drinking and that whilst they were drinking he heard the Probation Officer’s wife screaming and so he went to the Probation Officer’s house to investigate. In his Record of Interview, he does not mention anything about hearing the wife of the Probation Officer screaming. The following question and answers as recorded in that Record of Interview are also relevant, in my view.
Q 19: Dickson, can you tell me where were you on Monday the 13th day of September, 1993 at about 0100 hours to 0300 hours.
Q 20: Whom were you with?
Q 21: What were you people drinking while staying in the house?
Q 22: How many cartons did you people drink?
Q 23: At what time did you leave Kiburu Lodge?
Q 27: This female knows you very well when she heard your voice at that time and said it was you who went inside and took her out and it was you who had sexual intercourse with her first. What will you say to this?
There is inconsistencies in his answers in the Record of Interview. For instance, in question and answer 19, he says that between 1 am and 3 am that night, he was drinking beer at Hami Yaware's house. On the other hand in question and answer 27, he says that he was in his father's house.
He denied that he was one of the person who had raped the victim two times.
In cross examination he denied talking to the victim at the bus stop at Tente on the 9th September 1993. He also denied asking her any questions at that place and at that time. However, in his Record of Interview he admitted that he had talked to the victim at Tente on the 9th September, 1993. The following question and answer was recorded:
Q. 33 Is it true that you did ask Alison at one time stating where does she sleep and who is she married to?
In his sworn evidence he denied knowing the victim and said he never met her.
However, on the Record of Interview, he admitted this. The following is recorded in that Record of Interview.
Q.24. Do you know a female by the name of Alison Asi?
Further in cross examination he denied even talking to the victim’s husband previously. And he denied raping the victim.
And so his evidence are contradicting and inconsistent. I do not accept his evidence. He has obviously lied to this Court. His denials in my view has corroborated the victim's evidence. His demeanour was not good.
The Issue
There is no doubt that the victim had been dragged out of her bedroom on the morning of 13 September 1993 and raped several times. The only issue that needs to be decided is whether the accused, Dickson Wape, is one of those person who raped the victim that night.
In order to answer this issue, I propose to look at all the evidence that have been given. The evidence of identification is two fold, in my view. The evidence of identification by identifying the voice of an accused person and the evidence of visual identification.
I now turn to the issue of identification evidence of the accused. The accused has denied that he was involved, and alleges that the voice and visual identification of him are mistaken. Accordingly, I must warn myself of a special need to caution myself before convicting on relying on that identification evidence. Therefore, I note in terms of the authorities such as referred to, (namely, John Beng v The State [1977] PNGLR 115 and Biwa Geta v The State [1977] PNGLR 153 the possibility that the witnesses for the State could be mistaken.
I therefore propose to examine closely the circumstances of identification of the accused by each of the State's witnesses.
Firstly, I propose to look at the evidence of voice identification. It has been established in this jurisdiction that evidence of the voice of a person involved in a crime is the voice of an accused is admissible to prove identification of the accused where the voice is known by the witness and recognised by the witness as that of the accused. In the The State v Daniel [1988-89] PNGLR 580, Doherty AJ (as she then was) said at p. 582:
'Visual identification was considered at length in PNG by the Supreme Court in John Beng -v- The State [1977] PNGLR 115 and the learned Deputy Chief Justice (Prentice DCJ) said at 123:
Recognition may be more reliable then identification of a stranger; but even when the witness is purporting to recognise someone who he knows .... mistakes in recognition of close relatives and friends are sometimes made.'
I see no reason why this should not be equally valid in voice identification. In R v CJ Smith, American Authorities are quoted, at 475 - 476, 451 - 452:
'Since an early period, witness’s testimony of identification of a person by having heard his voice has been regarded as legitimate and competent to establish identity in both criminal and civil cases. Such evidence is not the statement of mere matter of opinion but is the statement of a conclusion reached directly and primarily from the operation of the sense of hearing.
It is direct and positive proof. The infrequency with which the witness heard the voice before the time in question is not a reason for the exclusion of his testimony, although it may affect the probative value thereof.
Voice identification testimony has been received in many criminal cases as going to identify the defendant as the person who committed the crime for which he is on trial. Particularly, where the crime was committed in darkness, or where the witness is blind, testimony obtained upon a witness’s recognition of the voice of the defendant as being that of the offender may be important in making out case.'
I would adopt and apply those comments to the present case with regard to the issue of voice identification. In the present case, the witness has known the accused very well. He has spoken to her on a regular basis before the incident. Further, he spoke to her a few days before the incident occurred. And finally as I have pointed, she heard the same voice, speak to her about seven times during the course of the incident. She was able to recognise the voice clearly as that of the Defendant.
She said that on that night she could clearly recognise the voices which she heard as that of the accused, Dickson Wape. She recognised them at several different locations and at different times. These were:
I warn myself of the danger of convicting on the basis of this piece of evidence, but I am satisfied that the voice the witness heard and recognised that night was that of the accused.
So far as evidence of visual identification is concerned, there is clear and evidence from the witness that she clearly saw the accused. She saw him clearly in the light and in the moon light when she was dragged out of the hostel. On the way to the garden, she was also able to see clearly and recognise the accused. While she was being raped at the garden she was able to see clearly and recognise his face, although he was attempting to hide his face. It was a moonlight night and more over the light from the Probation Officer’s house also gave off enough light for her to see and recognise the accused clearly.
After the first act of sexual intercourse, the witness was also able to see clearly the accused from light coming from the hospital and the nearby houses. The moon light was also bright, so that she was also able to see clearly. She also knew the accused very well as she had come to know him when he met her on regular basis to the probation office where she was at work there. She came to know him and recognised him over a matter of months prior to the incident.
She was also able to recognise him clearly as she was being led towards the Wara Mendi. She was able to see him clearly as the light from the security lights from the hospital was on and also from the moonlight.
Further, as she was lying down on the ground surface at Wara Mendi, facing up, she saw the accused coming to her. He came to her and removed her shirt. He did not cover his face and so she was able to see him clearly.
Suffice it is to say that I remind myself of the inherent dangers, the need to caution myself. I do confirm myself, before convicting in reliance on the correctness of identification, the possibility that a mistaken witness could be a convincing one and that any number of such witnesses could all be mistaken.
In the present case, I have already set out in detail the circumstance of visual identification of the accused. The quality of the identification is good. The witness clearly saw and identified the accused as the person who abducted her and raped her. He was clearly recognised by the light and by the light from the full moon which was bright. The identification and recognition of the accused was not made in very difficult circumstances. The overall circumstance, under which the accused was recognised are good. I accept the evidence of the State’s witness.
Corroboration
Mr Yallal for the accused submitted that there is no corroboration evidence supporting the victim’s testimony and accordingly the State has not proved its case.
Mr Auka, lawyer for the State on the other hand says that there is corroboration evidence.
I reject the argument by the defence. There is no rule of law which requires corroboration in a rape case. As the Supreme Court said in Didei v The State [1992] PNGLR 458 at 459:
'There is of course no rule of law which requires that the evidence of a woman complaining of rape shall be corroborated. If a Court is satisfied that the complainant telling nothing other than the truth, then it may proceed to convict on her evidence alone. But it has long been recognised that while a Court is entitled to accept the evidence of a complainant and convict on that evidence alone without corroboration, experience has shown that it is dangerous to do so.'
However, I remind myself that it is dangerous to convict on the uncorroborated evidence of the victim. However, in the present case, there is corroborative evidence. There is the evidence from the victim’s husband that he recognised the voice of the person who came into their room and the person who dragged his wife as that of the accused. There is also the medical evidence which has been tendered by consent that sexual intercourse had taken place that night with the victim, ie; the medical evidence established that a man had sexual intercourse with the victim that night. The appearance of the victim in the morning, somewhat distraught, and with only her panties and her torn skirt. There is the evidence that after she had been abducted and taken away, a search was conducted to locate her without any success. And so in my view there is corroborative evidence. Furthermore, it is now also established that if an accused person lies in his testimony, this does also amount to corroborating the evidence of the victim.
I do not accept the evidence of the accused as he was quite plainly lying to the Court. His demeanour and his answers to the question put to him in cross examination were not good and therefore not acceptable.
And so looking at the evidence from the beginning to the end, and put together all the bits and pieces of evidence, it all falls in line against the accused.
In all the circumstances, I am satisfied that the State has proved beyond reasonable doubt that the accused raped the victim two times on the night of the 13th September 1993.
I therefore find the accused guilty and convict him accordingly on both counts.
Lawyer for the State: Public Prosecutor
Lawyer for the accused: D K Yalal
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
CR. 399 OF 1993
THE STATE
v
DICKSON WAPE
Mendi: Sawong AJ
1994: 20 JULY
Criminal Law - Sentence - Rape - Mitigating factors - Aggravating factors.
Criminal Law - Sentence - Rape - Pack rape - Abduction - Rape is repeated - victim subjected to further sexual indignities.
R Auka for the State.
D K Yalal for the accused.
SENTENCE
SAWONG AJ: You have been found guilty of two counts of rape, the facts of which I have already travesed in my judgment today. I do not wish to repeat them here.
You are aged about 26 years old now, but you were about 25 years when you committed these offences. You are married with one child and you come from Map Village, Mendi, in the Southern Highlands Province. I note that you were previously convicted by the District Court in 1991 for breaking and entering and stealing. You were put on probation for a period of three (3) years commencing on 26 July, 1994. And so, you committed these offences of rape whilst you were on probation.
When I administered the allocutus to you, you asked the court to be lenient on you. Your lawyer has submitted that I should impose a short custodial sentence upon you. I will consider this later in my reasons.
The victim in this case was a married woman. She was aged 20 years old when she was raped. She had no children at the time the incident occurred.
Further, there are aggravating factors in the present case which go against the prisoner. The victim was threatened with actual violence with an axe and a bush knife on several occasions. The prisoner used dangerous weapons to threaten her that she would be killed. She was then physically assaulted both prior to and after the first act of sexual intercourse. Thus actual violence was used on her. The rape was repeated. The prisoner raped her twice and then his associates each took turn raping her. It was a pack rape. She was then further subjected to further sexual indignities. This involved the prisoner putting his penis into the victims mouth by force and he then bit the victim on her vagina.
I am mindful of the sentencing guidelines for the crime of rape as set out by the Supreme Court. With respect, in my view those guidelines do not take any of the sentencing discretion of this Court provided by Section 19 of the Criminal Code.
The crime of rape is the most serious one in sexual offences category. The seriousness of this crime is manifested by the fact that the maximum statutory penalty prescribed is life imprisonment. See S 347 of the Code. I do not accept your own plea for leniency, nor do I accept your counsel's submission that a short custodial sentence is appropriate. I consider it inappropriate for the following reasons. Firstly, you abducted her from her residence. You broke down doors to gain excess to her. You threatened her with dangerous weapons with actual violence prior to the commission of the crimes. You then assaulted her prior to the actual commission of the crimes. The victim has suffered physical injuries. The rape was repeated by yourself and your friends numbering four, also had turns in raping her. You have expressed no remorseness to her over what you did. Further sexual indignities were committed by you upon her. Your plea of not guilty meant that the victim had to come and publicly give evidence, recounting her ordeal. Prior to the commission of this offences you knew the victim very well. You had sought her assistance and she had helped you over the months she knew you.
The Supreme Court in John Aubuku v The State[1987] PNGLR 267 set out the rang e of sentences this Court can impose for the crime of rape. The Supreme Court in that case approved and followed the decision of Amet, J (as he then was) in State v Peter Kaudik [1987] PNGLR 201. In that case, His Honour said, 'the offence of rape is a serious crime for which calls for immediate punitive custodial sentence other than in wholly exceptional circumstances.' I would adopt these comments as most appropriate in this case. In the present case, I can find no exceptional circumstances which would warrant me imposing a non custodial sentence, nor indeed a short custodial sentence.
It has often been said that the crime of rape is one which except in the most exceptional circumstances will require an immediate punitive custodial sentence.
The Supreme Court in John Aubuku v The State [1987] PNGLR 267 has set out the sentencing guidelines for the crime of rape. It said that where the rape is committed by two or more persons acting together, or by persons who break into or otherwise gain access to a place where the victim is living, or by persons who abduct the victim and hold her captive, the starting point should be eight years. The Supreme Court further stated that where there are aggravating factors involved then the sentence should be substantially higher than the suggested starting point.
In this case the circumstances of aggravation are as follows:
Mitigation
In circumstances such as I have set out detailing the events involved in these offences, it is in my view, difficult to raise effective mitigation.
The prisoner is 25 years of age. He is married with one child. Apart from those matters which I have mentioned, there is really nothing in mitigation of any effective impact on the question of sentence in the present case.
You have not showed any remorseness to the victim. As a result of your pleading not guilty, which is of course your right, the victim was called to give evidence. This was traumatic as she had to relive the horrors of what happened to her that night. She had to give evidence in detail of her ordeal in front of a packed court room. At one stage she broke down and cried when she was giving evidence.
The sentence which I will shortly read out is severe penalty and in imposing it, I have in mind the consideration that the penalty should not be a crushing one. The adoption of that principle, that is that the sentence should not be a crushing one, does not preclude stern punitive and deterrent sentence where the offence warrants it. The penalty I will impose will involve the prisoner serving substantial period in custody. However, if he serves his time well and earns appropriate remission from good conduct, he will still have a substantial part of his life to lead and the opportunity to do so in a lawful and peaceful manner. In imposing the sentence which I have decided on this case, I have given very close consideration to the aspect of personal deterrence and punishment for the prisoner for his actual participation in these offences. I have also considered that the offences are of such a serious and a grave nature and a prevalent one, that they call not only for individual deterrence, but also general deterrence to let those in the community who may have a like mind to be aware that the courts will deal with offences of this nature in the sternest possible manner. By this approach, it is to be hoped that others will be deterred from committing similar offences.
I adopt the words of Amet J (as he then was) in The State v Peter Kaudik [1987] PNGLR 201, AT 207:
'The sentence of this Court I believe should reflect the society's utter revulsion at this kind of violation of females, however old and of whatever race or nationality. They have the same rights to be respected as do men in their private persons.'
In respect of the 1st Count, I sentence you to 12 years imprisonment in hard labour. In respect of the second count, I also sentence you to 12 years imprisonment in hard labour.
I order that the sentence for the second count be served concurrently with the sentence for the first count. I deduct the period of ten months being the period you have spent in custody as a remandee awaiting your trial. The sentence of the Court is therefore you be sentenced to 11 years and two months imprisonment with hard labour.
Lawyer for the accused: D K Yalal.
Lawyer for the State: Public Prosecutor
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