Unreported National Court Decisions
N1551
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
CR 571 OF 1995
THE STATE
v
ALLAN URU
Waigani
Passingan AJ
1-3 October 1996
7 October 1996
10 October 1996
CRIMINAL LAW - Alibi defence raised - failure to give notice - Criminal Practice rules - Defence not put to State witnesses - Alibi uncorroborated.
Cases Cited:
The State v Wer [1988-89] PNGLR 447
John Jaminan v The State [1983] PNGLR 318
James Mora Mesa v The State (unreported) SCRA No. 42 of 1995
Trial
The accused pleaded not guilty to an indictment which charges him with two counts of unlawful and indecent assault committed on or about the 23rd of September 1994 and on the 18th of March 1995.  He also pleaded not guilty to one count of unlawful carnal knowledge of a girl under the age of sixteen years.
Counsel:
D Mark for the State
R Vaea for the accused
JUDGMENT
10 October 1996
PASSINGAN AJ: The accused pleaded not guilty to count one which charges him that on or about the 23rd of September, 1994 he unlawfully and indecently assaulted Lettie Rabona.  He also pleaded not guilty to the second count of unlawful carnal knowledge and the alternative count of unlawful and indecent assault of the same girl on the 18th of March, 1995.  The girl was 12 years 8 months at the time of those offences.
THE OFFENCE
It is alleged by the State that on the 22nd of September, 1994 the family -the victim, her mother, two other children and the accused (her step-father) had spent a night at the Budget Inn at 6 Mile in Port Moresby.  The victim used the bed whilst her mother, the two children and the accused slept on the floor.  During the night the accused walked over to the victim’s bed and laid on the bed beside her.  It is alleged that whilst in bed with her the accused pushed his fingers into her private part.  And that he forced the victim to hold his private part as well.  It is further alleged that on the 18th day of March, 1995 the victim and her two younger sisters, and the accused were in their house at Gabagaba Village, Central province.  That whilst in the house the accused forced her onto the bed and had carnal knowledge of the victim.  And about two weeks later that month the accused called the victim into the room to scratch his back.  It is alleged that the accused forced the victim to hold  his private part when they were caught by her mother.
THE EVIDENCE
The main evidence consists of the sworn testimony of the girl Rabona and her mother.  Their evidence is that the accused had asked them to come to Town to do some shopping.  The accused was working here in the city and the mother and children were living at Gabagaba Village.  The victim, her mother and the two smaller children were dropped off at the Erima Supermarket to do shopping.  It was late to get a vehicle to travel home.  At the accused’s suggestion he booked them into the Budget Inn for the night.  The victim slept on the only bed in the room while the mother, the accused and the two small children all slept on the floor.  They were allocated Room “16 B” at the Budget Inn.
The victim’s evidence is that sometime during the night the accused went over to her bed and asked to share the bedsheet with her.  Whilst they were covered with the bedsheet the accused pulled her trousers down and also removed his trousers.  He then pushed his fingers into her private part and forced her to also hold his private part.  She felt pain and cried and her mother woke up and walked over to the bed.  When she removed the bedsheet she saw them.  The mother’s evidence corroborates the victims evidence.  She was an eye witness to that incident.
The victim’s evidence in relation to the second and third count.  On the 18th of March 1995 she was at Gabagaba Village with the family.  The accused was still in bed about 7:00 am. He called her to scratch his back but instead forced her to hold his private part.  Her mother entered and saw them.  She had an argument with the accused and then left the house.  Then after lunch the victim put her little brother to sleep.  She also went to sleep.  Then she felt someone beside her.  She attempted to get up when she was forced down by the accused.  The accused then had carnal knowledge of her.  The accused had told her not to tell her mother.  After two days the accused left the village to come to work.  She then told her mother about the first incident that morning.  She also told the village councillor, Obaha Gari about everything the accused did to her.  The mother’s evidence is that she woke up early on the 18th of March, 1995.  As she was walking out she looked into the bedroom and saw the victim holding onto the accused’s private part.  She walked into the room to make enquires.  The victim ran out and she argued with the accused.  The victim later told her about the incident of carnal knowledge about lunch time on the 18th of March 1995.
The third witness was Obaha Gari, a village councillor.  He was on the Kwikila High School Board of management.  He recalled being asked by the victim’s mother in about April, 1995 to speak to the victim.  He arranged to speak to her the following day.
As a result of his discussion with the victim he referred the mother to the Welfare Department.  Finally in the State case a Record of Interview which contained denials (Exhibit “A”) and a Medical Report (Exhibit “B”) were tendered by consent.
The Defence evidence consisted of the sworn testimony of the accused.  He denied the incident on the 22nd of September 1994 at the Budget Inn.  On the 22nd of September, 1994 he was working, and got on a 15 seater bus at 4 Mile.  He was with fifteen other passengers.  His evidence is that Florence was not living with him as they have been separated for six months.
The accused denied the incident of the 18th of March, 1995.  He gave no reason why the victim would accuse him.  That Florence had told lies about him because she wants to return to him.  On that day he was in his house. He was then living with Florence and the children.  After lunch he was building his house.
The next defence witness was Kinibo Vagi.  She was at the village (Gabagaba) the whole day on the 22nd of September, 1994.  She is unable to recall seeing or talking to Florence that day.  The third witness was Daisy Uru.  On the 18th of March, 1995 she went to the accused’s house to ask for a game’s fee.  The accused gave her K5.00.  The rest of the family were in the house and the victim asked to follow her to the games.  They returned to the accused’s house between 4.00 pm and 5.00 pm.  They got permission to attend a function.  After the function Daisy and her little brother brought the victim to her house about 1:00 am.
THE ISSUES
The first issue as raised in the evidence is one of alibi.  The accused’s evidence is that he was at work on the 22nd day of September, 1994.  After work he went to the 4 Mile Bus stop where he got on a 15 seater PMV bus with 15 other villagers.  He went straight home to Gabagaba.  This evidence is completely opposed to the evidence of the girl and her mother.  The defence had not served a notice of alibi in accordance with the Criminal Practice Rules 1987, 04, r 4, on the State.  In my view the evidence as given by the accused amounted to an alibi within the meaning of O 4 r 8 which, in part reads:
“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 accused is entitled to a fair hearing under s 37 (3) of the Constitution.  And under s 37 (4) (f) he has the right to give evidence himself and call witnesses.  The accused exercised those rights in this case.  But in is evidence he raised the defence of alibi which he had failed to give notice of.  And secondly, that defence was never put to the girl and her mother.
I consider the following passage in the judgment of Brunton AJ in the case of The State v Wer [1988-89] PNGLR 447 at p 447 relevant:
“But against the rights of the accused, there are the Criminal Practice Rules 1987.  They make it very clear that when a accused person relies on a defence by alibi, then proper notice must be given.  That is the law.  Order 4, rule 4 and rule 5.  These rules ensure that the State is not caught by surprise, and that the public interest in seeing a criminal case fairly and properly prosecuted, does not suffer.
On the one hand, there are the interests of individuals, the interest of the accused, the right to a fair trial, and the right to have one’s day in Court.  On the other hand, there is the public interest in the lawful and proper prosecution of offenders.  Further, the public have an interest in the economic and efficient operation of the criminal justice system, and the courts.”
In the case of John Jaminan v The State (No.2) [1983] PNGLR 318, the Supreme Court discussed the application of the defence of alibi.  Briefly, that was an appeal against conviction and sentence.  The Appellant was convicted on four charges of rape and was sentenced 4 years imprisonment on each charge concurrently.  The Appellant raised the defence of alibi at his trial.  He maintained that he was not present in the room at the time but was somewhere else.  He said he arrived back at the Motel quite late at about 9:00 pm and he went straight to the bar and was drinking until it closed.  He was with Mr Akai Kup.  When the bar closed he and Akai Kup went to his room, room 2 and as he opened the door two girls walked out and disappeared and he neve saw them against.  The trial judge rejected the appellant’s account, and the purported alibi and accepted the prosecution’s case and convicted him as charged.  This outline is taken from His Honour Mr Justice Amet’s judgment (as he then was) at page 335 of the report.
There is one further aspect of the defence case which I think should be considered also.  In his evidence in chief the following questions and answers are recorded:
“Q:     Did you tell her to do shopping?
A.       No.
Q.       Where was your wife?
A.       We were separated for six months.  She was not living with me.
Q.       Suggest, you told them to book in at the Budget Inn?
A.       No.
Q.       Who was with you when you left 4 Mile?
A.       Yes, passengers - 15 of them.”
Defence evidence appears to suggest that the accused was not with the family on the night of the 22nd of September, 1994 at the Budget Inn because they have been separated for six months.  I do not accept this evidence because about four to five months later when the second offence was committed (18th March, 1995) the accused said he was still living with his wife Florence, the victim and the other children.
On the evidence before me I accept the evidence of the victim and her mother as the truth.  Their evidence were consistent as to the events on the 22nd/23rd September, 1994.  I accept the mother’s reasons for not reporting the accused that day.  It was because the accused had promised never to do it again.  But would treat the victim as his own child.  But when the accused failed to keep his promised four to five months later (18th March, 1995) the matter came to light.
In my judgement I find the alibi evidence to be false and in the circumstances, further corroborates the victim’s evidence.  Further I find that in light of the failure to put the defence of alibi in cross-examination of the mother and her daughter, the failure to give notice of alibi according to the rules of practice and the false claim that the accused and Florence were separated I give no weight to the purported alibi raised by the accused.
I therefore reject the accused’s evidence and the purported alibi.  I accept the State evidence in relation to counts 1 and 3 and convict him of those two offences.  In relation to count 2 I am not so satisfied that the incident of unlawful carnal knowledge took place at about lunch time on the 18th of March, 1995.
On the evidence the mother was the eye witness to the incident of unlawful and indecent assault charged in count 3.  She became angry and left the house and returned at night.  I doubt if the accused would have taken the risk.  There was every possibility that the mother would return to the house.  In the circumstances I am not satisfied beyond reasonable doubt that the accused unlawfully had carnal knowledge of the victim on the 18th of March, 1995, and acquit him of Count 2.
VERDICTS
Count 1         Guilty.
Count 2         Not Guilty.
Count 3         Guilty.
REASONS FOR SENTENCE
The Court has convicted you on two counts of unlawfully and indecently dealing with a girl under the age of 16 years contrary to s 217(2) of the Criminal Code.  The girl was over 12 years old at the time and, therefore, the maximum penalty is imprisonment for a term not exceeding two years.  If she was under twelve years the maximum penalty would be imprisonment for a term not exceeding five years.
It is not in dispute that you married Florence, the victim’s mother in 1990.  The girl would have been about nine years old then.  It is common sense that when you decided to marry the mother you accepted the child also, as your own.  You knew the child and she grew up in your care and also the care of her grandparents.  It is also common sense that a child would normally accept the love and care of the father.  She trusted you as a father, but you have failed her.  You did not respect her mother who was your wife.  You treated this child as a sex object.
In the recent Supreme Court decision in James Mora Meoa v The State (unreported) SCRA No 42 of 1995, the Court said that breach of a position of trust warrants a heavier sentence in a rape case.  Yours is also a case of a sexual nature and in my view the same trust will be expected from you.
On sentence I take the following matters into account:
(a)      your lack of prior convictions;
(b)      good employment record despite your limited education.  A custodial sentence may affect you for the first time;
(c)      you have spent one month in custody.
In all the circumstances of your case I consider a sentence of six (6) months imprisonment appropriate.  You are sentence to six months imprisonment in hard labour.
ORDER
I order that the whole of your sentence be suspended on the following conditions:
(a)      That you be of good behaviour for a period of 18 months;
(b)      That you pay compensation to the girl Lettie Rabona in the sum of K1,200.00 within eight weeks.
Lawyer for the State: Public Prosecutor
Lawyer for the Accused: Public Solicitor