State v Heneha and Aihi [1998] PGNC 4; N1686 (23 January 1998)

Unreported National Court Decisions

N1686

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO: 1126 OF 1997
THE STATE
-VS-
URARU HENEHA & WARUPI AIHI

Waigani

Vagi AJ
20 January 1998
21 January 1998
23 January 1998

Cases Cited

State v Paul Kundi Rape [1976] PNGLR 287

State v Roka Rep (No. 2) [1983] PNGLR 287

R v Rotten [1992] Ac 378

State v Willie Orki Brizes [1976] No. 64

Paul Akis Soti v The State SCA 121/92

Melhiush v Collie (1850) 15QB 878

Russel v Dalton (1883) 4 NSWRL 261 & 266 (FC)

R v White (1922) 17 Cr App R 60

Counsel

M. Boni, for the State

P. Tusais, for the accuseds

DECISION ON VERDICT

23 January 1998

VAGI AJ: woe tcusacs Urdru Heneha (eha (Uraru) and Warupi Aihi (Warupi) both of Bereina are charged upon an indictment that they in the cy of s stosh suK1,74and personal properties valued at K3,198.00 belongilonging tong to John John Poha Poha and and others who were with him. At the time, the accuseds were armed with dangerous weapons namely, two home-made guns and bush knives, contrary to s 386 (2) of the Criminal Code.

Further to that Uraru Heneha committed rape upon one Avoa Kaipu, and further Uraru Heneha committed rape upon Theresa Sarufa Kaipu contrary to s 337 of the Criminal Code.

When arraigned on the charge under s 386 (2) of the Criminal Code both accuseds pleaded not guilty. Uraru was arraigned separately on two counts of rape. He pleaded not guilty.

STATE CASE

The State alleges that about 7:30 on the morning of 27th day of March 1995, the victims were travelling on the Hiritano Highway in a Toyota Hilux utility driven by John Poha. They came upon a road block that was set up by the accuseds and their companions at Waima Hill. John Poha was cut on his left arm and was forced to drive his vehicle along a bush track leading away from the main highway. The accuseds and their companions followed in another vehicle. On the way John Poha was cut again on his left upper arm and back. The vehicles came to stop near a swamp area and the victims were ordered to lay face down on the ground while handing over their cash and personal items. The victims received further knife wounds in the process.

The two women Avoa Kaipu and Theresa Sarufa Kaipu were led some distant away into the bush by two men, one of whom is Uraru, and raped. After raping them the women were led back to where the other victims were and ordered to lay down. The accuseds and their companions covered the victims with a canvas and fled from the scene. Soon after they left, the victims got into their vehicle and drove to Bereina town where they reported the incident to the police and also sought medical treatment.

STATE EVIDENCE

The State named in the indictment thirteen witnesses, out of whom two gave oral evidence, while the rest had their statements tendered by consents and marked. This is the oral evidence of the two witnesses:

AIHI EMMANUEL ARUA

This witness comes from Ere-ere Village, Bereina. He says that on 14th June 1995, he was selling betelnuts at Gerehu market when his nephew Colin Toto told him about the roadblock between Waima Village and Bereina town. Colin told him that he was one of the people involved in the roadblock and said he held a home-made gun and also raped a woman. Then Colin mentioned the names of others who were with him. This witness says, the names Colin mentioned to him were Uraru Heneha, Arua Naime, and Paru Oa as others who were with him.

PETER ROBERT AIHI

This witness is 26 years old and comes from Waimu Village. He is currently serving a term of imprisonment for his part in committing the offences the accuseds have been charged with. At first this witness refused to testify in Court. After been subpoenaed he was brought down from Bomana.

At the outset, this witness says the two accuseds are innocent. Counsel for the State led the witness with series of questions which he freely answered. He says he was arrested on 25th day of December 1995, and kept in the cell. While in the cell, he heard words from people who were involved with him not to mention their names to the police. The words he heard were in effect: “if you give our names, your life is in danger.” So at the timhis interview view by police, he says, he just mentioned names that came to his mind. He called the names of Paru Oa, Kwalimu Toto, Warupi Aihi and Uraru Heneha. When questioned further on themes he became hesitant, so , so counsel for the State applies for the witness to be declared hostile. He was declared hostile and subjected him to cross-examination. When cross-examined by counsel for the State the witness maintains that the names he gave were to protect his life from the people who were actually involved.

At the close of the State case counsel for the accuseds makes a no case submission.

NO CASE SUBMISSION

Counsel for the accuseds makes the no case submission in two phases. First phase relates to the accused Warupi. He says the evidence so far does not disclose Warupi as a perpetrator, that is, his name does not appear in the oral evidence of the two witnesses. The State concedes that Warupi’s name does not appear in the evidence. I rule Warupi has no case to answer and had him acquitted and discharged. My ruling is based on the second leg of Paul Kundi Rape [1976] PNGLR and the State v Roka Pep (No. 2) [1983] PNGLR 287.

The second phrase of the submission relates to the accused Uraru whose name has been mentioned in the evidence. Counsel argues that the evidence of Aihi Emmanuel Arua should be rejected on the basis that it is hearsay. Counsel for the State on the other hand argues that the purpose for adducing this form of evidence is not to establish the truth of what is said by the witness, but that a statement had been made to the witness by another person and that, he is merely stating what he had heard. I agree with the argument that in order to provide proof of what this witness had heard from the statement of another, the State should have called Colin Toto from whom this witness had heard the name of Uraru. The State says this person Colin Toto cannot be found anywhere in the city or in the village.

In the form it has been presented, evidence of Aihi Emmanuel Arua is hearsay, unless it is within the exceptions to the rules of hearsay. Counsel has not shown that exception. But there are exceptions, for example; where the spontaneity of screamed remarks discounts the possibility of concoction of fabrication, the remarks, while hearsay, were admissible as part of res gestae. The words are admissible not only as to the fact of their having been said, but as to the truth of the facts they purport to described (R v Ratten) [1992] AC 378, applied) State v Willie Orki Briza (1976) No. 69.

I do not find the statement by Colin Toto made to this witness forms part of the res gestae, unless the evidence is against Colin Toto had he being an accused on trial. Evidence of Aihi Emmanuel Arua is hearsay and is inadmissible.

Counsel for the accuseds next advances argument relating to the confessional statement of Peter Robert Aihi made to the police on 26th December 1995. This statement has not been marked as an exhibit but is shown to the witness for identification only. The statement contains the name of Uraru Henehe. Peter Robert Aihi was declared hostile and on this basis counsel for the accused argues on how his evidence should be treated. Counsel for the State argues that this evidence is from a prisoner who at the time of making this statement knew who the others were and mentioned their names, and therefore the evidence should be ruled admissible. This confessional statement is good on its face value because it was voluntarily made. If his oral evidence is consistent with his voluntary confessional statement, then it would undoubtedly be reliable and admissible. When such a situation like this arises during a trial, one case that quickly comes to mind is the case of Paul Akis Soti v The State SCA 121/92 where the Supreme Court on p 5 held:

“The effect of the witness being declared hostile is generally to render witness unreliable. If he has given a prior statement which is “inconsistent with his oral testimony” both statements are rendered negligible, and neither constitute evidence which can be relied upon. We adopt these propositions from the following English cases as being appropriate and applicable to the circumstances of criminal law in the country.”

R. v Harris, 20 Cr App R 144

R v Golden 45 Cr App R 5

The Supreme Court went on to say:

“By declaring a witness hostile, it simply was not possible to render his affidavit deposition credible evidence, in substitution for direct oral evidence.”

In his oral evidence this witness at the outset says the accuseds are innocent even before he was asked a question. He named Uraru in his confessional statement which as a result, Uraru was arrested and charged. I do not think for one moment Uraru’s name just came to his mind and mentioned it because he had received words of threat to his life. He knew who Uraru was and he knew Uraru was a real person whom he intended to mentioned his name so that Police should pursue him which they did.

Has anything transpired between Uraru and this witness, a prisoner, and who are both in custody in Bomana. It quite so happen frequently that where witnesses are threatened, they become reluctant to testify in trials. There are other variety of reasons why witnesses change their heart. One such reason was observed by Erle CJ in Melhuist v Collin [1850] EngR 709; (1850) 15 QB 878 at 890:

“There are treacherous witnesses who will hold out that they can prove facts on one side in the cause and then, for a bride or for some other motive, make statement in support of the opposite interest. In such cases the law undoubtedly ought to permit the party calling the witness to question him as to the former statement, and ascertains, if possible what induced him to change it.”

This was the best of time for the State to enquire from this witness as to what had induced him to changed his evidence. He is a hostile witness and it had been said “best evidence of a witness being hostile is that he deceives the attorney of the side that calls him as to the evidence he is about to give” (see Russel v Dalton (1883) 4 NSWR 261 at 266 (FC). In R v White (1992) 17 Cr App R 60 at 64 where previous statements were admitted, and the Judge told the jury that they could choose between the witnesses’ evidence at the trial and their statement to the police. The jury might have acted on the latter for they returned a verdict of guilt, but the conviction was quashed because:

“quite obviously it is one thing to say that, in view of an earlier statement the witness is not to be trusted, it is another thing to say that his present testimony is to be disbelieved and his earlier statement, which he now repudiates, is to be substitute for it.”

The evidence of Peter Robert Aihi is good insofar as it relates to some information about the offences he was involved in and for which he had been convicted. If the victims’ statements corroborate his evidence that Uraru was a party, and subject to argument by counsel, his evidence may have weight.

I have read the statements of the two women victims but found nothing that suggests that they were raped. Their only description of one of the men was big and strong. This description fits the accused Uraru as big and strong but that is in no way identified or recognised him.

In the light of the evidence by the State before me I can only say this, that the evidence is dubious and lacks weight. It has no value upon which a reasonable tribunal of facts would convict him on. On this basis I find no case for the accused Uraru Henehe to answer. He be acquitted and discharged forthwith.

Lawyer for the State: Public Prosecutor

Lawyer for the Accuseds: Public Solicitor