State v Ombi (No 1) [2004] PGNC 204; N2564 (27 April 2004)

N2564

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 342 of 2004

THE STATE

-V-

JULIUS OMBI
(No. 1)

POPONDETTA: KANDAKASI, J.
2004: 21st and 27th April

DECISION ON VERDICT

CRIMINAL LAW – Verdict – Abduction and attempted rape – General denial - State witness positively identifying accused – Key State witness not recalling parts of statement made to police – Whether inconsistent Statement - Reasonable explanation provided - Nothing else to question credibility of witness – State evidence more credible than accused – Guilty verdict returned – Criminal Code ss. 350 and 348.

EVIDENCE – Assessment of – Matter of logic and commonsense – Evidence or claims inconsistent with logic and commonsense not credible – Accused case not put to prosecution witnesses - Incredible claims by accused – Accused evidence supporting State’s case – Accused evidence rejected as incredible and unreliable - Key State witness not recalling parts of statement made to police – Whether inconsistent Statement - Reasonable explanation provided - Nothing else to question credibility of witness – Evidence credible.

Cases cited:
David Kandakason v. The State (Unreported judgment delivered on 07/07/98) SC558.
The State v Tony Pandau Hahuahori (Unreported judgment delivered on 19/02/02) N2185.
The State v. Kevin Anis and Martin Ningigan (Unreported judgment delivered on 07/04/03) N2360.
The State v. Cosmos Kutau Kitawal & Anor (No 1) (15/05/02) N2266.
The State v. Eki Kondi & Ors (No.1) (Unreported judgment delivered on 23/03/04) N2542.

Counsel:
P. Kaluwin for the State
P. Kumo for the Accused

27th April 2004.

KANDAKASI, J: You stand charged with one charge of abduction and another of attempted raped of a young girl (named) on the 26th May 2003 at Igora village here in the Oro Province, contrary to sections 350 and 348 of the Criminal Code ("the Code"). You denied both of these charges and that necessitated a trial.

The State called two witnesses and admitted into evidence, with your consent your record of interview with the police. On your part, you took the stand and gave a sworn testimony. You also admitted into evidence a statement the victim gave to the police.

A. State Case

(1) The Victim

The State’s first witness was the victim. According to her evidence, she went to a creek in her village, Igora, here in the Oro Province to fetch water. That was on 26th of May 2003, some time in the afternoon. As she was in the creek, fetching water, her own cousin brother, Julius Ombi (you) approached her. She clearly identified you in Court with no difficulty and identified you as my brother throughout her evidence.

She said you grabbed her and dragged her in a nearby bush as she struggled to free herself. When in the bush, you removed her trousers and underwear. By then, you already had your trousers down, put her down on the ground with her face down and you took your penis out, put it in her anus, and tried to have sexual intercourse with her. She continued to struggle with you and screamed or shouted. That alerted her father, who was in the house and he came to her help. You tried to run away holding onto your trousers as you did.

The victim’s father ran over and caught you with your trousers in your hands, as you tried to run way. Thereafter, the father took you to the police station the same day. At the police station, the police arrested and charged you. Meanwhile the victim went to the Popondetta General Hospital for medical examination.

She mentioned something about you having sexual intercourse with her, but under cross-examination it became clearer that you only attempted to have sexual intercourse with her through her back but without actually penetrating her either through her vagina or her anus. Under further cross-examination, it became clear that, the witness did not understand the difference between, her anus and her vagina. This is reasonable, given that she is very young and the rest of the evidence shows she has had no prior sexual experiences of any sort and that she is not a sophisticated person.

Again, under cross-examination, she denied specific suggestions of her meeting and talking to you prior to the sexual attack on her. However, when you put to her specific parts of a statement she gave to police, she admitted to telling police that she met and talked to you earlier that day before going to the creek to fetch water. This contradicted with her evidence in chief in that she did not mention anything about having met you and talking to you. Under more cross-examination, the witness said sorry to the Court as she left some of these evidence out when she gave her evidence in chief. Her statement to the police is in evidence in your defence as exhibit "D1". Otherwise, she maintained her evidence in chief, despite concerted efforts by your lawyer to get her to admit to telling lies because of the inconsistencies.

A medical report is in evidence as exhibit "A" with your consent. This report states amongst others that, her hymen was intact and so were the majora and minora labia and her anus. Other vaginal examination showed no tears or lacerations and that no spermatozoa were present.

(2) Edwin Ombi

The second State witness was Edwin Ombi. He is an auxiliary policeman and he is the father of the victim. He says that, his daughter went to the creek to fetch some water for cooking. Not long afterwards, he heard a scream or a shout as if from his daughter. So he quickly ran toward where the scream or the shout came from. As he ran toward the place where the scream came from, he saw you running away naked with your trousers in your hands. Therefore, he gave chase and he eventually caught up with you with your trousers in your hands. Thereafter, he took you to the police station at Igora but there was no one there. So, he radioed Popondetta police for help. Eventually, help came and the police took you to the Popondetta police station.

He further testified that, you are his son because you are his brother’s son. It is against custom for you and the victim to have any sexual relation or even befriend each other.

As there was no motor vehicle, he delayed taking the victim to the hospital. The next day, he took the victim to the hospital. That was after she told him of what you tried to do to her.

Your submission is for the Court to reject the State’s case and in particular the evidence of the victim. The basis for that is the victim’s failure to recall and give in her evidence in chief in terms of the statement she gave to the police. In particular, you point out to the victim’s denial of specific questions put to her during under cross-examined in relation to her meeting you and talking to you earlier on the day of the offence. Your argument is that if she was a truthful witness, she could have admitted to these aspects, but she did not.

I am of the view that, if there were no explanation for what appears to be an inconsistency in the statement she gave to the police and her oral evidence in chief and later under cross-examination, I would accept your submissions. However, she has provided a reason for it. She said sorry to the Court and said she left out these parts of her evidence. You did not seek to establish whether, this was deliberate or an inadvertent omission. I find that there were bound to be some problems with her evidence given her age and an apparent lack of sophistication. It seems clear to me also that, this was her first time in Court and she did manage to focus on the essential aspects of the charge against you. Similar problems are not there in relation to the essential elements of the charges you are defending. What matters in a criminal case is for the prosecution to prove each of the essential elements of the offence and this is a trite legal position. A restatement of this is by the Supreme Court in David Kandakason v. The State (Unreported judgment delivered on 07/07/98) SC558 in these terms:

"All that the prosecution need do is adduce all the relevant evidence to prove the essential elements of the offence. This, in essence, is all that is necessary for the prosecution to do to discharge its function."

You do not put forward any other argument or reason for this Court not to accept the prosecution’s evidence. Apart from the foregoing, there is no other problem attending the State’s witnesses’ testimonies both individually and as a whole. Indeed, I note that of your own evidence instead of rebutting the State’s case against you it supports it as will be shortly demonstrated.

B. Defence Case

On your part, you took the stand and gave a sworn testimony. You said it was not your idea but that of the victim for you and her to be friends. That friendship started with the victim taking the lead in 2002 and you maintained that friendship since then. You tried to stop or refuse to be her boyfriend but she kept on sending messages so you continued to see each other. In 2003, prior to the incident leading to the charge you are now in Court for, you had sexual intercourse with the victim when you were on school holiday. When asked if it is okay for cousins to befriend each other and have a sexual relation, you said it is not only you and the victim as many other close relatives have such relations.

On the day of the incident, you admit to having met the victim and talking to her over an earlier incident on the same day, when she had run away from you and you asked her, "why are you running away, I am not your criminal". You continued to talk to her and she told you that both her father and mother were out and that only her grandparents were home. During this time, she asked you to give a necklace you had with you and she threatened to call her grandparents unless, you gave the necklace to her. You refused to give her the necklace and that caused her to shout. That shout attracted her father’s attention causing him to run over to where you two were. You got frightened and started to run away.

As you were running away, a stick caught the elastic or rubber of your short and caused it to come off. You picked it up and put one of your legs back in and tried to put the other in too unsuccessfully. At the same time, you thought of continuing to run away but because, it was the victim’s wish for you to be friends, you stopped. Soon the victim’s father reached you, hit you hard, and said to you "If I came with a knife, I would kill you here," and returned to the house. In your record of interview, which is in evidence for the State as exhibit "B1" and "B2", respectively for both the Pisin and English versions, you say that the father left you at the scene and returned to his house. You cried and followed him to his house. From the house, he got a spear and speared you.

You made no mention of the necklace, the victim’s parents being away, having previous sexual intercourse with the victim, a stick catching the elastic of your trousers and the victim being your girlfriend on her wish and insistence in your record of interview with the police. When asked to explain that, you said you forgot or that you told the police but they did not write it down, as they wanted to shorten everything. In relation to you being the victim’s boyfriend, you said that was the victim and your secret. Additionally, you did not put this part of your story to the State’s witnesses.

The requirements of the law are clear. In this regard, I consider what I said in The State v Tony Pandau Hahuahori (Unreported judgment delivered on 19/02/02) N2185, in a case where a defendant fails to put his or her case to the prosecution in cross-examination and failing to place his or her claims in the record of interview relevant. There I said:

"... [I]f indeed, what you say is correct, I do not see what was the reason for you choosing not to place your claims on the record. You could have done that in your record of interview or during the committal hearings or anytime prior to coming into court and give such evidence in court following a rejection of a no case submission. Of course, I note that, whilst you have the right to remain silent and that no negative inference should be drawn from that, as a matter of law, as a matter of fact however, your side of the story should be placed on record at the earliest opportunity. This could have been easily done if indeed what you have just claimed in Court was true.

It is also settled law that a party’s case must in fairness be put to the other side’s witnesses in cross-examination. A failure to do so amounts to a conclusion that any evidence introduced which has not been put to the prosecution as one being invented and therefore unreliable. This is based on what is known as the rule in Browne v Dunn (1893) 6 R 67 (HL). For examples of authorities on this see The State v. Francis Natuwohala Laumadava [1994] PNGLR 29; The State v. Gigere Undamu [1990] PNGLR 151 and The State v. Simon Ganga [1994] PNGLR 323."

I repeated this in part in the subsequent case of The State v. Kevin Anis and Martin Ningigan (Unreported judgment delivered on 07/04/03) N2360. There I said:

"It is also trite law that, in order for a party’s claim to be considered credible, he must in fairness put his case or claim to the others’ witness by way of cross-examination. This is in effect what is meant by a "fair hearing in s. 37 (3) of the Constitution, which is in turn in my view, a codification of the rule in Browne v Dunn (1893) 6 R 67 (HL). Where a party fails to do that, his or her subsequent claim losses credibility and is therefore not reliable."

Further, the medical report does not support you in your claim of having had sexual intercourse with the victim in 2003. It states that the hymen remained intact, which means she has had no sexual intercourse with anyone before. The medical examination was conducted a day after your attack on her. The medical evidence could have revealed a torn hymen, if indeed you had a sexual intercourse with her as you claim.

In addition, I find your evidence quite hard to believe. Of the two of you, that is the victim and you, the victim is much younger than you are. Additionally, in most of our society men normally take the lead in boyfriend and girlfriend relationships as well as any sexual relations. In your case, you are quick to blame it on the victim. This is rather illogical and most uncommon.

It is trite law that, commonsense and logic plays a major role in determining whether a witness and therefore his evidence is credible. I noted that in these terms in The State v. Cosmos Kutau Kitawal & Anor (No 1) (15/05/02) N2266:

"Logic and commonsense does play an important part in either the rejection or otherwise of evidence before a court of law and whether or not an accused person should be found guilty. In The State v. Gari bonu Garitau and Rossana Bonu [1996] PNGLR 48, applying a logical and common sense approach, the National Court found the defendants guilty of murder even when there was no evidence directly showing that the defendants had killed the deceased. The Court proceeded to convict them, when the defendants’ failed to provide a reasonable explanation for the appearance of the badly wounded deceased body in their house. On appeal, the Supreme Court affirmed the National Court’s approach and dismissed the appeal: see Garitau Bonu & Rosanna Bonu v. The State (24/07/97) SC528 and Paulus Pawa v. The State [1981] PNGLR 498 for an earlier authority on point."

I adopted and applied these principles in many other subsequent cases. Recent examples of these are my judgments in The State v. Kevin Anis and Martin Ningigan (supra) and The State v. Eki Kondi & Ors (No.1) (Unreported judgment delivered on 23/03/04) N2542.

In these circumstances, I find that the story you told the Court are merely an attempt at trying to avoid your criminal liability. In the process, you have made recent inventions and said incredible things. At the same time, you support the State’s case. This is especially so, in terms of your identification, being present at the scene at the relevant time, the father of the victim coming to her aid when she screamed or shouted, a preparedness on your part to have a relationship with the victim who is much younger than you are and a blood cousin to you. I therefore, find your account incredible and therefore unreliable.

Consequently, I find that you have failed to rebut the case against you. Further, I find there is nothing to cast any serious doubt on the essential elements of the offence of abduction and attempted rape. I therefore return a verdict of guilty on both charges. Accordingly, I order that you remain in custody until your sentence.
_____________________________________________________________________
Lawyers for the State: Public Prosecutor
Lawyers for the Accused: Public Solicitor