State v Sembengo [2006] PGNC 198; N3029 (16 February 2006)

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CRIMINAL LAW – indictable offences – Criminal Code, Subdivision VI.2.B, offences – Section 436, arson

CRIMINAL LAW – indictable offences – Criminal Code, Subdivision VI.1.D (stealing with violence: extortion by threats) – Section 386 (the offence of robbery)

CRIMINAL LAW – indictable offence – Criminal Code, Division V.7, sexual offences and abduction – Section 347, definition of rape – trial on a charge of rape under Section 347 – elements of offence

CRIMINAL LAW – evidence – identification evidence – relevant considerations when determining credibility – pre-existing knowledge of identity of accused – recent complaint

CRIMINAL LAW – evidence – alibi evidence – relevant considerations when determining worth of alibi evidence

Three men were charged with arson, armed robbery and rape following incidents at Barema oil palm settlement, near Bialla, West New Britain Province, in December 2003. It was alleged that the three acted in concert with other persons to burn down a family's dwelling house then a few hours later staged an armed robbery on another family's home and raped a female resident. They pleaded not guilty, denying all involvement in both incidents. They are aged in their early 20s and were born and raised in Barema. The State called seven witnesses. The defence called ten witnesses, including the three co-accused who gave evidence in their defence. They relied on alibis. The case turned on the strength of the identification evidence and the alibi evidence.

(i) to consider the identification evidence and determine whether it looks strong enough to conclude that one or more was involved;

(ii) to consider the alibi evidence, bearing in mind that if the identification evidence is strong the alibi evidence will need to be strong to counter the weight of the identification evidence and will need to be examined in detail, but if the identification evidence is not strong the alibi evidence will not need to be considered in detail; and

(iii) to consider both the identification evidence and alibi evidence in the context of all other aspects of the evidence, including whether there was any motive for what happened.

Biwa Geta v The State [1988-89] PNGLR 153
Browne v Dunn (1893) The Reports 67
John Beng v The State [1977] PNGLR 115
John Jaminan v The State (No 2) [1983] PNGLR 318
Ono v The State (2002) SC698
The State v Donald Poni (2004) N2663
The State v Eki Kondi (No 1) (2004) N2542
The State v John Beng [1977] PNGLR 115
The State v John Bosco (2004) N2777
The State v John Michael Awa and Others (2000) N2012
The State v David Yakuye Daniel (2005) N2869
The State v John Michael Awa and Others CR No 905 of 1998, 15.05.00, unreported
The State v Kusap Kei Kuya [1983] PNGLR 263
The State v Noutim Mausen (2005) N2870
The State v Okata Talangahin (No 1) (2004) N2581
The State v Raphael Walimini (2004) N2627

© – copyright
AJ – Acting Justice
CEO – Chief Executive Officer
CID – Criminal Investigations Division
CJ – Chief Justice
Const – Constable
CR – criminal case
DCJ – Deputy Chief Justice
Dep – Deputy
Det – Detective
Dr – Doctor
eg – for example
ENBP – East New Britain Province
Govt – Government
ie – that is; by which is meant
J – Justice
km – kilometre
N – National Court judgment
No – number
Oct – October
OIC – officer-in-charge
p – page
PNG – Papua New Guinea
PNGLR – Papua New Guinea Law Reports
pp – pages
Prov – Provincial
PSC – Police Station Commander
Pty – Proprietary
ROI – record of interview
SC – Supreme Court judgment
Sgt – Sergeant
Snr – Senior
v – versus
WNB – West New Britain
WNBP – West New Britain Province

This was the trial of three co-accused charged with arson, armed robbery and rape.

1. CANNINGS J: INTRODUCTION. This is a decision on the verdict for three young men who pleaded not guilty to one charge each of arson, armed robbery and rape.

2. The incidents giving rise to the charge are alleged to have taken place at Barema oil palm settlement near Bialla, West New Britain, in December 2003. It is alleged that the three acted in concert to burn down a family's dwelling house; stage an armed robbery on another family's residence; and rape a female resident.

3. On 18 October 2005 the co-accused were brought before the National Court and faced an indictment containing three counts:

Lucas Soroken Sembengo and Raphael Lawrence Mandal both of Abduono and Bob Alois Wafu of Kafle all of Nuku in Sandaun Province stand charged that they ... on the 21st day of December 2003 at Barema in Papua New Guinea wilfully and unlawfully set fire to 2 buildings serving as a dwelling house and a kitchen and personal properties valued at K9,780.00 and situated at Barema, Section 15, Block No 1296 the properties of one Elly Stanley.

Lucas Soroken Sembengo and Raphael Lawrence Mandal both of Abduono and Bob Alois Wafu of Kafle all of Nuku in Sandaun Province stand charged that they ... on the 21st day of December 2003 at Barema in Papua New Guinea stole from one Henni Sivilien with actual violence, K460.00 in cash and assorted clothes valued at K86.00 the property of the said Henni Sivilien.

And at this time [they] were armed with one homemade gun, one axe, one bush knife and one spear and were in company with each other.

5. The three co-accused pleaded not guilty to all three charges. They were present throughout the trial.

6. The following glossary lists the names of individuals and places referred to in the evidence:

Individuals
Alphonse Wakal (deceased) – son of Wakal Tambala
Andreas Martin – Henry Martin's cousin – defence witness No 8
Benson – son of Wakal Tambala
Bob Wafu Alois – third co-accused – defence witness No 5
Bun Sembengo – sister of first co-accused, Lucas Soroken Sembengo
Elly Stanley – alleged victim of arson – State witness No 1
Gibson Andrew – Elly Stanley's neighbour – State witness No 3
Henni Sivilien – alleged victim of armed robbery – complainant in rape charge – State witness No 5
Henry Martin – prisoner, convicted of arson – defence witness No 10
Henry Puana – Snr Constable, Bialla – State witness No 7
Jenny Lawrence – Raphael Lawrence's sister
Jophet Wakal – son of Wakal Tambala
Joseph Sembengo – father of first co-accused, Lucas Soroken Sembengo – defence witness No 2
Lenna Alois – sister of third co-accused, Bob Alois Wafu – defence witness No 7
Lucas Soroken Sembengo – first co-accused – defence witness No 1
Manu Sembengo – sister of first co-accused, Lucas Soroken Sembengo
Maria Lawrence – mother of second co-accused, Raphael Lawrence Mandal – defence witness No 4
Melkius Sivilien – neighbour of Elly Stanley – State witness No 4
Michael Nani – Det Sgt, Bialla CID – State witness No 6
Nason Ricky – friend of second and third co-accused, Raphael and Bob
Nick Oscar – prisoner, convicted of arson – defence witness No 9
Paita Jerry – from Morobe, went with Elly Stanley to look for pigs
Raphael Lawrence Mandal – second co-accused – defence witness No 3
Rebecca Lawrence – Raphael's sister
Robert Lavung – from ENBP, went with Elly Stanley to look for pigs
Sabina Alois – mother of third co-accused, Bob Alois Wafu – defence witness No 6
Susi Elly Stanley – Elly Stanley's wife – State witness No 2
Wakal Tambala – father of three boys: Alphonse, Benson, Jophet

Places
Abduono – place in West Sepik Province
Barema – oil palm settlement in West New Britain (WNB) – scene of incidents
Bialla – town near Barema, WNB
Dagua – district in East Sepik Province
East Sepik Province – province in the Mamose region
Eastern Highlands Province – province in the Highlands region
Kafle – place in West Sepik Province
Kainantu – place in Eastern Highlands Province
Kimbe – place of trial, WNB provincial centre
Lakiemata – correctional institution/gaol/prison, near Kimbe, WNB
Lobu River – river at Barema, WNB
Nuku – district in West Sepik Province
Sandaun Province – same as West Sepik Province
Section 15 – place in Barema, WNB where Elly and Susi Stanley and Melkius and Henni Sivilien live
Section 17 – place in Barema, WNB where Gibson Andrew lives
Section 19 – place in Barema, WNB where second and third co-accused, Raphael and Bob, live
Section 19B – place in Barema, WNB where first co-accused, Lucas, lives
Tolai – ethnic group in ENBP – also refers to the language spoken by this group of people
Tomaringa Barracks – in Rabaul ENBP – Police Mobile Squad base
West New Britain Province – province in the New Guinea Islands region
West Sepik Province – a province in the Mamose region same as Sandaun Province
East New Britain Province – province in the New Guinea Islands region

7. Five exhibits were admitted into evidence by consent. I conducted a voir dire regarding the record of interview of the first co-accused, Lucas Soroken Sembengo, and refused to admit it into evidence. Seven witnesses gave oral evidence.

8. Column 1 of the table below gives the exhibit number, column 2 describes the exhibit and column 3 summarises its evidentiary content.

Exhibit	Description	Content
A	Record of interview: Raphael Lawrence [second co-accused], 03.02.04	States that he resides at Barema, Section 19 – on 21 December 2003 he was at Barema community, with Bob Alois, Henry Martin, Lucas Sembengo and Nicky Oscar – Wakal informed them, sobbing, that Elly Stanley's wife had wounded Jophet's head and asked them to go to his house – he and the other boys later went to Wakal's block – Wakal told them that Alphonse had set fire to Elly's house – he and the other boys stayed at Wakal's house until 10.00 pm, then went home – he went to his house and slept until daybreak – then next day he went to Barema community for a spin – the police arrived and he ran away as he had previously appeared in court and was told not to be suspected of anything again – he denied involvement in arson, armed robbery and rape – states that he knows Melkius Sivilien and his wife and Elly Stanley.
B	Record of interview: Bob Alois [third co-accused], 04.02.04	States that he resides at Barema, Section 19 – on 21 December 2003 he was at Barema community, with Raphael Lawrence, Henry Martin, Lucas Sembengo and Nicky – Wakal informed them that Elly Stanley's wife had badly assaulted Jophet and asked them to go to his house – he and the other boys later went to Wakal's block – Wakal told them that Alphonse had set fire to Elly's house – he and the other boys stayed at Wakal's house until 8.00 pm, then went home – he went to his house – then next day, Monday, he went to Barema community – the police arrived and he ran away as he did not want to be assaulted for nothing – then later surrendered – he denied involvement in arson, armed robbery and rape – states that he knows Melkius Sivilien and his wife and Elly Stanley, who all live at Section 15.
C	Record of interview: Henry Martin [defence witness No 10], 26.12.03	States that on the afternoon of Sunday 21 December 2003 he was drinking beer at Barema Community Centre with Soroken Lucas, Nick Oscar, Raphael and Bob Alois – they saw Alphonse Wakal and his father Wakal Tambala – Wakal told them that Jophet had been wounded on his head and was about to die – they felt sad and wanted to retaliate – they followed Wakal and Alphonse, and Alphonse told them to set fire to Elly's house and "what happens in court, I will take the blame" – they walked to Elly's block and called out to him but he was not there, so Alphonse, Raphael, Soroken and Bob set fire to the kitchen, then they all damaged the dwelling house – they then walked to Wakal's block and had dinner – he and Nick Oscar slept there; about midnight, Raphael, Soroken and Bob left them and went somewhere – Wakal had told them that his son, Jophet, was nearly dying, but they found out later that only his skin was cut, his skull was all right – but when Wakal told them his son was nearing death, that made them so angry they set fire to Elly's house and belongings.
D	Record of interview: Nick Oscar, 25.12.03	States that on the afternoon of Sunday 21 December 2003 he was drinking beer at Barema Community Centre with Soroken Lucas, Henry Martin, Raphael and Bob Alois – they saw Wakal Tambala who told them "your brother is dead" – they followed Alphonse to Section 15, to Elly's block, and called out to him but he was not there, so Alphonse set fire to the kitchen and dwelling house – he and Henry Martin tried to stop the fire but could not do so – they then walked to Wakal's block and had dinner – he and Henry Martin slept there – Raphael, Soroken and Bob left them in the night and went away.
E	Medical report re Annie Sivilien [sic, the complainant]: Annette Timothy, Clinical CEO, Bialla Health Centre, 23.12.03	States: 'this lady came to the health centre today 22/12/03, stating that she was raped by three men in the early hours of the morning (around 3 am) at their home in Barema. The three men threatened the family with a gun and knives, the husband and children were locked in one room and they raped the woman (mother/wife) in the other room ... all body system normal – no seminal fluids seen on the vagina (already bathed) – no signs of resistance – cervix: eroded, inflamed, semen/fluid seen in the cervix, tender, hard – given medication – conclusion: the above medical has proven that Annie [sic] was physically assaulted and raped'.

9. Table 2 lists and describes the State witnesses in the order that they were called and indicates the days and dates of the trial on which they gave evidence.

10. The first witness for the prosecution was Elly Stanley. He is a blockholder, originally from East Sepik Province. He came to Barema in 1979. His block is No 1296, Section 15, Barema.

11. In examination-in-chief he stated that on the morning of Sunday 21 December 2003 he went to the side of his block to look for pigs. While there, one of Wakal Tambala's sons, Benson Wakal, followed the road up to his block and met his daughter, Wendy, and another girl. They told Benson that if he was going to the water to wash he must not wash naked. When Benson heard that he got cross and he threw a stone at them. When he (Elly Stanley) came to the house his daughter told him that Benson had assaulted her. So he, Elly, used a stick to smack Benson. Benson then left their house and told his mother and father what happened. Then Benson's brothers, Alphonse Wakal and Jophet Wakal, came up to his house. He was not there so they asked his wife, Susi, for him. But he was still back at the block when they came and asked for him.

12. He heard (it was acknowledged during the course of evidence that this was hearsay) that Jophet or Wakal threw a pipe at his wife. She got cross with them, picked up the pipe and hit Jophet over the head with it, drawing blood. Jophet went away and told the people at the Barema Community what had happened.

13. Later that day Lucas Soroken, the first co-accused, came up towards his house. The witness said that he could hear Lucas on the road shouting that he wanted to fight. Lucas was swearing things like "kaikai kan!". He was about 15 metres away at the time. Then another two boys, Nick Oscar and Henry Martin, came along and joined Lucas. They came in, broke the wall of his house, broke the steps, went inside, and stole some things.

14. The witness said he was afraid that they would kill him. He was standing in the front garden. This was about 7.00 pm. They then went to the haus kuk (kitchen) and set fire to it.

15. He had already sent his family away to Section 17, to Andrew's block. He was worried that if the family stayed behind they would have hurt his wife.

16. After Lucas, Henry and Nick had set fire to the kitchen house they seemed happy and went to Wakal Tambala's house. Lucas, Henry and Nick are all from Nuku, West Sepik Province, as is Wakal Tambala.

17. After the three of them left he was just standing there worried about his things, and the kitchen was still burning.

18. Elly Stanley was asked whether he had seen who had burned the kitchen house. He said that it was dark at the time but when the fire started he saw that there were actually five of them. After they set fire to the kitchen house they went to Wakal's house which is about 60 metres away. Then they returned and set fire to the main house that his family sleeps in.

19. When they came back, he was still in the same place watching what was going on. The same five boys came back ie Lucas Soroken, Raphael Lawrence and Bob Alois, plus Nick Oscar and Henry Martin.

20. He identified the first co-accused in the dock. He knows Lucas Soroken because they live together in the same community. Lucas stays in Section 19 with his father, Sembengo. Sembengo's house is a fair way away, on the side of the river.

21. He also identified the second co-accused, Raphael Lawrence. He knows him as they live together in the community at Barema. He lives with his father, Lawrence Mandal.

22. He identified the third co-accused Bob Alois, as they live together at Barema. Bob lives with his father, Alois. The witness said that the five people that burnt down his house are all from West Sepik Province.

23. He could see who burned down the house because there was a big fire, there was plenty of light, and the place was clear. He was by himself and he was afraid so he just stood there and watched.

24. They all left while his house was still burning. They went down to Wakal's house.

25. Nick Oscar and Henry Martin admitted what they did and they are now in jail.

26. After he saw his house burned down he went to Gibson Andrew's block at Section 17.

27. There were other people watching what was going on but they were standing on the road. They were afraid to come in. He had a conversation with Gibson Andrew.

28. In cross-examination Elly Stanley said that he had heard about Jophet Wakal fighting with his daughter. His wife told him when he returned from the side of the block. He had been hunting wild pigs from about 10.00 am to 7.00 pm. He did not leave the block.

29. When he was returning to his house he could hear Lucas Soroken shouting. He was about 15 metres away from Lucas at the time. It was a moonlit night, about 7.00 pm. He had a clear view of what was going on as his house is not surrounded by oil palm trees.

30. As well as Lucas jumping and shouting, there were also Raphael, Nick, Bob, Henry and Alphonse Wakal.

31. During all this time he was doing nothing. He was afraid as those burning his house had obviously come to fight. They were other people around but they were also afraid.

32. Wakal Tambala's house is about 60 metres away. The river does not have to be crossed to get to it.

33. It was put to Elly Stanley that there are a lot of young men in Barema and he could have easily confused the identity of those involved. He said, no, he knows these boys [the three co-accused]. It was them. It was about 7.00 pm. The moon was shining and the fire was giving light. He saw them with his own eyes. Other people saw them too. He denied that he was mistaken.

34. In re-examination Elly Stanley said that he did not get cross with anybody else other than Wakal's son.

35. The people who came to burn down his kitchen house and his main house were carrying a bush knife, a tamiok, a homemade gun and a spear. They started the fire by getting a burning piece of wood from the kitchen and using it to start the fire on the main house.

36. He believes that the people who did this to his kitchen house and his main house were drunk. They had been drinking at the community. Henry Martin was carrying the gun. Bob Alois had the tamiok. Raphael Lawrence had the spear. Lucas Soroken had a bush knife.

37. They started the fire to the kitchen house by burning coconut leaves and putting them on the sago leaves.

38. Answering questions from the bench Elly Stanley said that he had no previous problems with the people who burnt down his kitchen house and his main house. He reported the matter to the police on Monday morning 22 December 2003. A squad from Tomaringa came to follow things up.

39. The motive for their action appeared to be that he, Elly Stanley, had smacked Benson Tambala. Later his wife hit Jophet Tambala. They are Wakal's sons. They are all from Nuku. They are wantoks of the three co-accused.

40. Benson Tambala was about 15 or 16. Jophet was older, about 19. Those boys are younger than the three co-accused, he said.

44. The second witness for the prosecution was Susi Stanley. She is Elly Stanley's wife, residing at Section 15, Block No 1296.

45. In examination-in-chief she stated that on the morning of Sunday 21 December 2003 her husband Elly had gone with two other men, Robert and Jerry, to the side of the block to look for wild pigs. She stayed at the house with her daughter. While they were there, the Wakal boys, Alphonse, Jophet and Benson, came to the house. They walked straight in and Alphonse asked her where her husband was. She said that Elly had gone with Robert and Jerry to look for pigs.

46. Alphonse is the oldest of the three boys, followed by Jophet and Benson (who was in about grade 6 at the time). She told him that when her husband returns, Alphonse would be able to see him. And as he was leaving, Jophet pulled out a pipe and hit her with it. It was about one metre in length. He threw the pipe and it hit the wall and fell down under a tulip tree. After he had thrown the pipe, she tried to pick it up and as she was walking back he hit her again. When he tried for the third time, she used the pipe and hit him on the head.

47. Then Jophet sang out for Alphonse, telling him to hit her with the pipe. Alphonse came back and they both assaulted her. She then threatened to attack them with a bushknife and they ran away. Alphonse went to the block and Jophet to the road. Later, Elly came home and she told him what had happened. She stayed at the house until about 7.00 pm.

48. She believes that when Wakal found out about this he told some of his Nuku wantoks. She heard them coming from the side of the river and they were shouting. Elly told her to get the two children and go to Section 17, to Andrew's block. They stayed there until the next morning.

49. She knows all the Wakal boys who came to the block during the day. They live three blocks away from their place. Their father is Wakal Tambala from Nuku.

50. She knows all the co-accused. They are also from Nuku. They live in Section 19. Wakal treats them like his sons. Their fathers are brothers.

51. In cross-examination Susi Elly stated that Alphonse, Benson and Jophet had come in the morning. Alphonse is now dead. He escaped from police custody.

52. She is from Dagua, East Sepik Province. There are three Daguas, the coast, the inland and the highway. She is from the highway.

53. When she left the house at about 7.00 pm, after Elly had told her to leave, there was nobody with Elly. He was by himself. The neighbours were at their houses. It was dark but the moon was shinning.

54. When they heard the shouting, Elly knew that it was probably about the incident in which she had hit Jophet. She did not see any of the people who actually came. She just heard them shouting.

55. In re-examination, Susi Stanley stated that the three co-accused are the sons of Wakal's brothers. They are from the same place and whenever there is a problem they assist each other.

56. The prosecution's third witness was Gibson Andrew. He is a blockholder at Section 17, Barema.

57. In examination-in-chief he recalled an incident about 7.00 to 8.00 pm on Sunday 21 December 2003. He was at his block. He heard shouting coming from Stanley's block. He and some other boys went to Stanley's block to see what was going on. They saw Stanley's kitchen house burning. 58. The fire was too hot and they could not stop it. Those responsible for the fire had left when he arrived.

59. While he was standing there, Elly talked to him. They heard noise and shouting from the direction of Wakal's block. They heard a group of people coming towards them. Then he saw them take the fire from the burning kitchen house and set fire to the main house. He saw Alphonse Wakal, Soroken Lucas, Henry Martin, Raphael Lawrence and Nick Oscar. There were some others who came later, who he does not know. He could recognise the faces from light from the fire. He could clearly see who was there. They were about 20 metres away. He saw their faces. It was not raining that night. It was dry season at the time.

61. In cross-examination Gibson Andrew said that he is from Wewak, East Sepik Province. He has lived at Barema since 1974.

62. He arrived at the scene after the kitchen house had been set on fire. He did not see who set fire to the kitchen house.

63. Elly did not tell him anything. They did not talk much. It was a big fire and he could see the faces of the three co-accused. It was clear enough for him to recognise who was there. It was put to him that firelight is not as clear as sunlight or a fluorene light and therefore he couldn't be sure. He replied that he was sure it was them, ie the three co-accused.

64. He admitted that there are many young men in that age group in Barema. He replied that that was true but he recognised who was there as he knows them as he was brought up in Barema as they were.

66. In re-examination Gibson Andrew stated that he was with Elly Stanley when the main house was burning. He was not with him when the kitchen house was burning.

67. His house is about 400 metres away from Elly's house. He had a clear view of the fire from where he was standing.

68. Answering questions from the bench Gibson Andrew said there were six boys present when the house was burnt down: Alphonse, Henry, Raphael, Bob, Lucas and Nick.

69. It was really only himself and Elly who were watching what was going on. The boys that he had come with had gone away. He observed that the people burning down the house were armed with iron bars and knives, not guns.

70. He had no problems with these people before. He does not know whether they were drunk.

71. The fourth witness for the prosecution was Melkius Sivilien. He is a blockholder at Section 15, Barema.

72. In examination-in-chief he recalled the night of 21 December 2003. It was a Sunday. He and his family were sleeping in his house. He heard shouting and woke up. He went outside. He was surprised to see three people outside who he identified as the three co-accused. They asked him about Elly Stanley. He told them that Elly was not with his family. He was just in the house with his family only.

73. They asked again where Elly was and he told them the same thing. Then they assaulted him. They told him to go into the house. They directed him into a room. One of them was standing at the door of his room. Another was at the main door. Another one went into the room where his wife was. They were carrying bushknives and an axe and a bow and arrow.

74. Raphael kept watch on him while Bob raped his wife. Then Bob came outside and Raphael went inside. Then Soroken went inside. He was the last one.

75. After Soroken had finished, Raphael got some things from the house including money and clothes. Then they went away.

76. Later his wife came to him and told him that they should leave in case they came back again. So they left the house and went to Section 17.

77. Melkius Sivilien was asked about what had happened earlier that night before they had gone into bed. He said that some people had burnt Elly Stanley's house, which was close to his house, about 20 metres away. They share the same boundary. Elly Stanley is from Sepik.

78. That afternoon, Soroken had come to his house first. He heard shouting at the road and Soroken and the others went to Elly's place. He heard them shouting but did not go to the road.

79. Melkius Sivilien said that he knows Soroken but when he first went outside to see what the three people wanted (this was in the middle of the night) it seemed to him that Soroken was hiding his face. This was probably because Soroken used to come to their house. He could see the other two clearly as they had come close to him and hit him and forced him into the house.

80. Soroken used to sometimes come and help him harvest his oil palm. He lives at Section 19.

81. As to Raphael, yes he knows him. He shone his torch into his face. Raphael's family have a block at Section 19. His other name is Lawrence.

82. He also knows the third co-accused, Bob Alois. His father also has a block at Section 19.

83. Inside the house were himself, his wife, Henni, and his two children. He thinks that was between 12 midnight and 1.00 am. Everyone was asleep and he was surprised to hear the noise.

84. He shone his torch on their faces. Soroken was at the back. Then one of them pulled the torch from him.

85. When the three of them came inside, he could see it was probably Soroken. After they had left, when they were walking over to the other block, he asked his wife who the third person was. She said it was Soroken.

86. The outside conversation took only a short time. They were very close to him when they were talking to him, about one metre away. It was just outside his house. He didn't walk far from the house to talk to them, maybe five metres. Then they pushed him towards the house and directed him into a room where the children were sleeping.

88. They told him to lie down and then the three of them took turns raping his wife.

90. He saw their faces again inside the house. He was lying down but his eyes were open.

91. In cross-examination Melkius Sivilien stated that he and his wife were from Kokopo. They have lived at Barema for 22 years.

92. The two children at the house were his two sons. He has two daughters but they live elsewhere. The boys are six and 12 years old respectively. They were asleep. One was asleep with his mother and the other was with him in another room. When he heard the shouting he thought they must have been drunk.

94. He said that if someone had been at Elly Stanley's house they would have heard the shouting. But Elly and the others had run away after the earlier incident and there was no one there.

95. The next house is about 100 metres away. The people living there were asleep and would not have heard the noise.

96. The three people who came to his house were armed with a bow and arrow, an axe and a knife. Soroken had an axe, Bob had a knife and Raphael had a bow and arrow.

97. Bob pulled the torch from him. Raphael was using the torch inside the house. There was no other light.

98. He has known the three of them a long time as they are the children of blockholders at Barema.

99. They were looking for Elly as they thought he was probably sleeping with them.

100. He was only talking to them for a short time, maybe two minutes, before they pulled the torch away from him.

101. It was put to him again that he couldn't be sure who it was and he replied that he was sure it was the three co-accused.

102. It was put to him that if they had really wanted to come, rob the family and the house, and rape his wife they wouldn't have come shouting. 103. They would have done that silently. He replied that yes that maybe but they were shouting before they arrived at the house.

104. He was asked whether the two boys woke up during the course of the incident. The youngest one who was sleeping with his mother woke up and went into a hole in the wall and went through to the other room. The 12 year old boy woke up but he stayed lying down as he was afraid.

105. He did not cry for help or shout as the three co-accused had told him that they would kill him.

106. It was put to him that it could have been anybody else and it was not these three. He replied that he was sure it was them.

107. In re-examination Melkius Sivilien confirmed that he had seen the faces of Raphael Lawrence and Bob Alois and then noticed the short person who he thought was Lucas Soroken. He said that the third person was shorter than the other two. He thought it was Soroken as Soroken used to come to his house and eat there sometimes. Later he had asked his wife about it and she said that it was Soroken.

108. The third person was hiding his face. He was standing behind the other two. When he came outside to see what the three of them wanted his wife remained inside.

109. Answering questions from the bench Melkius Sivilien said that he smelt alcohol on them. He had heard that they had been at Wakal's block. He did not see any of them with a gun.

110. He was asked how he knew that his wife had been raped and he said that he could feel the house moving. His wife did not cry. He did not know why they had done this thing to him and his wife and his family. Maybe it was because they had a problem with Elly and they thought Elly was staying there.

112. Melkius Sivilien said that he has not sought or obtained any compensation and there had been no fights arising from this incident.

113. The fifth witness for the prosecution was Henni Sivilien. She is Melkius Sivilien's wife. She lives at Section 15, Block No 1295.

114. In examination-in-chief she recalled the night of Sunday 21 December 2003. She and the rest of the family had gone to sleep. She estimates that the incident happened between 12.00 midnight and 1.00 am. Three men came into their area and called out for her husband. He went outside with a torch and they asked him where Elly was.

115. She was behind her husband when he shone the torch on their faces. She saw that there were three of them. She heard the conversation. He heard her husband say that Elly was not in the house. They hit her husband and forced him into the house, into another room.

116. She was afraid so she had gone into another room. The room had a lamp in it.

117. The three men were armed with a home-made gun, a bush knife, a bow and arrow and an axe. They put their weapons at the door of the room that she was in. There was no light in the room in which her husband was pushed into.

118. Lucas and Raphael stood at the door. Alois Bob came into the room and told her to lie down. He told her to take off her laplap and blouse. She did as she was told. Then Bob spread her legs and sexually penetrated her. While he was doing that he told her "you have a very good vagina". Then he said again "your vagina is very good, it is very sweet". Later he said "when your husband has intercourse with you, how do you feel?" He told her "your husband is very old and how does he have sex with you?" Later he swore at her "yu kan". After he had ejaculated into her vagina he put on his trousers and went outside.

119. Then Raphael came inside. He took off his trousers and spread her legs and sexually penetrated her. He also swore at her saying "yu kan". He told her that she had to suck his penis but she told him that she doesn't do that. He got angry. He was very rough with her and sexually penetrated her. This made her feel very weak. She felt pain and just lay there. Then he swore at her again: "yu kan, yu kan". She wanted to shout but she was afraid of the weapons that were at the door. The light was still on in the room. It is the room that she uses. Her husband was in the other room where it was dark. She was lying on her bed. Raphael swore at her again. After he had ejaculated his sperm into her vagina he put on his trousers and went outside.

120. Then Soroken Lucas came inside. He took off his trousers and spread her legs. She did not sing out. She was in pain. He sexually penetrated her. He told her "you have a good vagina" and said he would like to come back and have sexual intercourse with her again some other time. Lucas asked in Rabaul language, whether she recognised the other two who had sex with her. She told him yes, it was Raphael Lawrence and Alois Bob. Lucas told her not to report him. If anybody asks her she should say it was only Raphael Lawrence and Alois Bob. She must not give his name. He told her again that he would come back some other time and have sexual intercourse with her again. After he ejaculated his sperm, he put on his trousers and went outside.

121. When Lucas went outside she felt pain and she was lying there. Then Raphael Lawrence came back into the room and checked her billum and took out her wallet containing K460.00 cash. She was going to ask him to leave the wallet but she was afraid of the weapons. She thought they might kill her.

122. They also got some things from the room where her husband was using and put it in the bilum and left. These were clothes valued at about K35.00.

124. She knows Lucas Soroken because he used to eat at her house. He helped to harvest oil palm and she gave him food. He lives at Section 19. He is from Nuku, Sandaun. She has lived at the block since 1982.

125. She also knows Raphael Lawrence. He is the son of a blockholder at Section 19. They all live in the same general community. He is also from Nuku.

126. Bob Alois is also the son of a blockholder at Section 19. She knows him as they all live in the same community. He is also from Nuku.

127. She was asked again about her evidence that she was standing at the back of her husband. She said yes, her husband was two metres in front. She could hear them asking him about Elly. She felt afraid so she went into the house.

128. She was afraid of the weapons that were being left at the door of the room that she uses.

129. She was asked about the lamp. She said it was in the room that she uses. It was on a table. It was alight.

130. In cross-examination Henni Sivilien stated that she was sure it was the three co-accused who did these things. If Lucas says that he does not know her, he is lying. When he comes to her house she gives him food.

131. When the three of them were outside and she was standing behind her husband, he was holding a bright torch. He shone it on the three of them and she could see their faces. She is sure she was with her husband. She was standing behind him. She was in the house when he shone the torch.

132. It was pointed out to her that Melkius had said there was no light in the house. She said that the lamp was in the room only.

133. She was asked about the sleeping arrangements. She said that before they came in they were all sleeping in the room with the light in it.

134. Her husband cannot hear properly. She was sure the lamp was in her room. They forced him into another room, which was dark.

135. The three intruders were carrying weapons. Raphael had a homemade gun. Bob had a bushknife and bow and arrow. Soroken had a tamiok (axe).

136. She was asked why she thinks these people would have done this to her. She replied that there is no reason as they had never had any problems with them before. But they have been troublemakers in the community. They have caused trouble for others but not for her family. They are known to fight in the community. Sometimes when they drink, they fight with their friends.

137. She said she was in the room by herself. They forced her husband and the two children into the other room.

138. Mr Inua informed her that the three co-accused would give evidence that they were at their houses that night. She replied that they would be lying as they came to her house. Lucas is from Nuku but he was in Rabaul for two years and knows the Rabaul language. She saw Lucas in Rabaul town and talked to him. It was put to her that Lucas has never been to Rabaul. She replied that that would be a lie. She said Lucas had definitely been to Rabaul. He went with some other people from Section 19.

139. She was asked what kind of lamp was in her room. This question took a long time to answer. She said it was small lamp about 25 centimetres high.

140. When the torch was pulled away from her husband, she was afraid and went back into the house.

141. She was asked why the people that came to her house were looking for Elly. She said that they had destroyed his things so they thought he would be hiding in their house.

142. She was asked whether they had been drinking and she said yes, she could smell it on their breath. If they deny that they would be lying. They were drunk and they came to her house and she recognised them.

143. In re-examination Henni Sivilien was asked about the lamp. She bought it the previous year with sales from oil palm. She bought it in town. It has a wick and they use kerosene to fuel it. It was giving off good light as it was a new lamp.

144. She was asked about the sleeping arrangements. The house has three rooms. First her husband's room. Secondly her own room. Thirdly the room into which they forced her husband. So nobody sleeps in that room.

145. When she saw that the three of them were talking to her husband she ran back into her room. She did not close the door. There is no door, just a curtain.

148. In examination-in-chief he stated that he is one of the investigating officers for this case. He conducted the interview of Lucas Soroken Sembengo. The prosecutor, Mr Kesan, tendered that record of interview but the defence counsel, Mr Inua, objected, relying on Section 28 of the Evidence Act, which states:

A confession that is tendered in evidence in any criminal proceeding shall not be received in evidence if it has been induced by a threat or promise by a person in authority, and a confession made after any such threat or promise shall be deemed to have been induced by it unless the contrary is shown.

149. Det Sgt Nani gave evidence of the circumstances in which he conducted the interview. It was on the afternoon of Tuesday 23 December 2004. The interview was held in the CID office at Bialla. Snr Constable Henry Puana was the corroborator. Lucas Soroken was brought from the police cells where he had been detained. Det Sgt Nani said he noticed nothing unusual about the interviewee's appearance, who did not complain about anything. He did not threaten or assault him.

150. In cross-examination Det Sgt Michael Nani denied assaulting Lucas Soroken. He denied that the interviewee complained about being assaulted by other police officers.

151. In re-examination Det Sgt Michael Nani said that he saw no injuries on Lucas Soroken.

152. The seventh and last State witness was Senior Constable Henry Puana of Bialla police.

153. In examination-in-chief he stated that Lucas Soroken appeared normal. There was no gun in the CID office when the interview was held. The interviewee was administered his constitutional rights.

154. In cross-examination Snr Const Henry Puana denied assaulting Lucas Soroken. He denied that the interviewee complained about being assaulted by other police officers. The accused had been apprehended by members of the riot squad from Kimbe who were assisting the Bialla police on this operation.

That ended Snr Const Puana's evidence and ended the evidence for the State on the voir dire.

155. Three witnesses gave evidence for the accused on the voir dire: Lucas Soroken, Henry Martin and Nick Oscar.

156. The first co-accused Lucas Soroken in examination-in-chief stated that he was arrested at his house and taken to the police lock-up. When he was in the police lock-up members of the Mobile Squad from Tomaringa took his trousers off and tied a fan belt to a stick and whipped his penis, causing him to become unconscious. That was witnessed by Henry Martin and Nick Oscar. Later, Michael Nani and Henry Puana took him for the interview. They also assaulted him. Henry Puana used a gun butt. He fell on the floor. When he woke up he answered yes to all their questions.

157. In cross-examination Lucas Soroken said that he met up with Nick Oscar and Henry Martin in the police cell. He was then taken for his interview. He was forced to say things of which he had no knowledge. He signed the document by following Michael Nani's hand.

158. In re-examination Lucas Soroken repeated that when he went for his interview he was in a bad condition after being assaulted by the Mobile Squad officers.

159. Henry Martin in examination-in-chief stated that he is presently serving a sentence at Lakiemata gaol for arson. When he was arrested he was taken to the Bialla police lock-up, together with Nick Oscar and Alphonse Wakal (now deceased). He saw the police assault Lucas Soroken. They asked him where Raphael and Bob were. He said he did not know. So they took off his trousers, used a rubber hose to beat his penis. He fell down unconscious. The police squad from Rabaul did that to him. Then Michael Nani and Henry Puana came and got him for his interview.

160. In cross-examination Henry Martin said that he was arrested on the same day as Lucas Soroken. It was a Monday. They assaulted Lucas badly but the police did not assault him or Nick Oscar. He later pleaded guilty to arson.

161. In re-examination Henry Martin said that he might be confused about the dates that things happened but he is sure that he saw Lucas being assaulted.

162. Answering questions from the bench Henry Martin said that Alphonse Wakal escaped from the Bialla police lock-up and was shot dead by the police.

163. Nick Oscar in examination-in-chief stated that he is presently serving a sentence at Lakiemata gaol for arson. When he was arrested he was taken to the Bialla police lock-up, together with Henry Martin and Alphonse Tambala (now deceased). He saw the police assault Lucas Soroken. They used a rubber hose to hit his penis. He fell down unconscious. The police squad from Rabaul did that to him. Then Michael Nani and Henry Puana came and got him for his interview.

164. In cross-examination Nick Oscar said that he was arrested on 24 December 2003. The arson was committed on 21 December 2003.

165. In submissions on the voir dire defence counsel, Mr Inua, stressed that there was strong evidence that Lucas Soroken was beaten by the police. His mind was overborne. It can be inferred from the manner in which the police dealt with the accused that he felt compelled to admit to and confess the offence. He gave his confession involuntarily.

166. Mr Kesan submitted that the burden of proof lay on the accused on the balance of probabilities to adduce evidence as to the facts relied on. If that burden is discharged the onus shifts to the State to negate the allegations beyond reasonable doubt. Mr Kesan submitted there was no evidence that either of the police officers put undue pressure on the accused or overbore his will. The record of interview clearly states that his constitutional rights were administered. The three defence witnesses gave different accounts of the dates that the alleged assault and interview took place. Their evidence is unreliable.

167. In giving a ruling on the voir dire I applied the principles set out by Injia J, as he then was, in the voir dire ruling in The State v John Michael Awa and Others CR No 905 of 1998, 15.05.00, unreported, referred to in The State v John Michael Awa and Others (2000) N2012. I recently applied those principles in a Kimbe case The State v David Yakuye Daniel (2005) N2869.

168. That is, the burden of proof is on the accused on the balance of probabilities to adduce evidence as to the facts relied on in support of a claim that a confession has been provided involuntarily. If that burden is discharged the onus shifts to the State to negate the allegations beyond reasonable doubt.

169. I accept that I had a discretion to look at the ROI but decided not to do so in this case. I was satisfied that the burden of adducing evidence of the matters referred to in Section 28 of the Evidence Act was discharged, as three witnesses gave evidence that the first co-accused was assaulted. I was not satisfied that the State discharged its burden of proof, for the following reasons:

170. I therefore ruled on day No 3 of the trial, 20 October 2005, that the record of interview of Lucas Soroken could not be admitted into evidence. However, all evidence given in the voir dire became evidence in the trial proper. (The State v Kusap Kei Kuya [1983] PNGLR 263, National Court, Pratt J; The State v Raphael Walimini (2004) N2627, National Court, Sevua J.)

172. The defence called ten witnesses, including the three co-accused, to give oral evidence. No exhibits were adduced.

173. Table 3 lists and describes the defence witnesses in the order that they were called and indicates the days and dates of the trial on which they gave evidence.

174. The first defence witness was the first co-accused, Lucas Soroken Sembengo.

175. In examination-in-chief he stated that he lives at Section 19, Barema. He has no knowledge of the incidents over which he has been charged. The incidents happened on a Sunday and he was in the house all day with his mother and his father, Joseph. He did not leave the house at any time. On Sunday night he stayed at the house with his sisters Bun and Manu. Nobody came to the house to see him.

176. He does not know Melkius Sivilien or Henni Sivilien and he has never been to their house.

177. He was surprised when the police turned up at his house on the day after the incidents were supposed to have happened, Monday, and picked him up. They did not say why they were arresting him.

178. In cross-examination Lucas Soroken Sembengo said that on the Sunday of the incidents he woke up in the morning at about 6 o'clock. He did not do anything when he got up. He just sat around. In the middle of the day, about 12 noon, he was still not doing anything. He just stayed around the house. From 12 noon to 7.00 pm he did nothing. He did not go out onto the road. He only came out of the house to the place where they make the fire and cook, the kitchen, just near the house. Therefore, from 6.00 am to 7.00 pm on that Sunday he stayed in and around the house with his family: his mother and father and two sisters. They all stayed together, all day, doing nothing. He did not see Raphael or Bob. He did not go to Wakal Tambala's house.

179. He was born in 1982. He has lived all his life at Barema. He does not know Elly Stanley. He does not know many people living in the nearby blocks. He does not go around much. Even though Elly Stanley and Melkius Sivilien live in Section 15, he does not know them.

180. Asked what he was doing between 7.00 pm on the Sunday and the next day, Lucas stated that he was at his house with the same people who had been with him all day on the Sunday.

181. In re-examination Lucas Soroken Sembengo repeated that the people he was with at his house did not leave him between Sunday morning and Monday morning. At the time of these incidents he did not know Elly Stanley or Melkius Sivilien. He only came to know who these people were when they went into the witness box in this case.

182. Answering questions from the bench Lucas Soroken Sembengo repeated that when the incidents happened he did not know Elly Stanley or Melkius Sivilien.

183. The second defence witness was Joseph Sembengo. He is Lucas Soroken Sembengo's father. He comes from Nuku, Sandaun Province. He has lived at Barema since 1978. In examination-in-chief he recalled the time that these incidents took place. It was in December 2003. On Christmas Day 2003, Lucas, Raphael and Bob were already in custody. The police told him about the trouble that was said to have happened on the Sunday when they came to collect Lucas on the Monday.

184. On Sunday 21 December 2003 he went to church with his wife and all his children including Lucas. He has four daughters: Manu, Bun, Martina and Julie. Lucas is his only son. Nobody was left at home when they went to church. When they came back from church they cooked some food then slept. Church starts at 8.00 am and goes on till 9.00 am. That is when they came back. They all came back together. They all went to sleep.

185. That night nothing happened. He and all his family members including Lucas slept in the house. Nobody left the house after they came back from church. The house has two rooms. His wife and daughters sleep in one room. He and Lucas use the other one. The house has one door. If it is opened it makes a noise.

186. Asked if he recalls any of his family members going outside during the night he said that they went out to relieve themselves. He did not hear the door making a noise.

187. On the Monday – the day after the incidents – he woke up at 5.00 am. By 6.00 am he had left for work. When he went to sleep on Sunday night Lucas was in the house. Lucas was still there in the morning.

188. Bun and Manu could not come to the court case in Kimbe as they could not afford the bus fare.

189. When the police came on the Monday morning and he heard Lucas's name being mentioned in relation to the incidents that had happened he was shocked.

190. In cross-examination Joseph Sembengo said that he goes to the Catholic Church every Sunday. He is a Christian man and knows what it means to swear on the Bible. The church is at the Barema Community about one kilometre from his block. There is no beer outlet there.

191. He knows the third co-accused Bob Alois who lives a little bit far away from where he, Joseph, lives.

192. He lives with people from Menyamya. He knows Wakal Tambala, who is from Nuku, and his three sons, Alphonse, Benson and Jophet. He does not know anything about what happened to Jophet on 21 December 2003.

193. He knows Elly Stanley. He is a blockholder at Section 15. Elly's house is about 2.5 to 3 kilometres away from his house. He knows Elly's family. But he does not go to Elly's house and Elly does not come to his house.

194. He knows the old man Melkius Sivilien who lives next to Stanley. He knows Melkius's wife but not their children. He came to know Melkius and his wife after the incidents.

195. Lucas was with him in the afternoon of 21 December 2003. He does not know anything about Lucas being at the community with Raphael, Bob and others or drinking with them or being involved in burning down Elly Stanley's house. Lucas was with him that night.

196. He came to this court because his son Lucas did not do anything. They got him for nothing.

197. Questioned again about whether Lucas had gone to church on the Sunday – in light of Lucas's evidence that he and everybody had stayed home all day – Joseph Sembengo stated that according to him, Lucas did go to church.

198. The third defence witness was the second co-accused, Raphael Lawrence Mandal. In examination-in-chief he stated that he lives at Section 19, Barema.

199. On Sunday 21 December 2003 he was at his house with Bob Alois, Andreas Martin and Nason Ricky when they heard that Susi Elly had broken Jophet Wakal's head. His father, Wakal, brought Jophet over to the Martins' house then went to get a doctor. He sent Nick Oscar, Alphonse Wakal and Henry Martin to see Elly to get some money to help pay for the doctor. Wakal told them what had happened.

200. They then went to Henry Martin's house to see Jophet. Jophet's head was injured. Jophet was asleep. Nick, Alphonse and Henry had already left to see Elly and ask for some money. Later he, Bob, Andreas and Nason followed them. They went to Wakal's house and got there about 8.00 pm. Nick, Alphonse and Henry told them that they had gone to Elly's place and burned down his house. After they heard that he, Bob, Andreas and Nason went back to their own houses. By that stage it was about 9.00 pm. Bob's house is next to his and Nason's house is close to Bob's.

202. The next morning they heard that their names had been called in connexion with the fire. But he, Raphael, was not arrested until a couple of weeks later, on 11 January 2004. On Monday 22 December 2004 he left Barema and came to Kimbe.

203. He repeated that Nick, Alphonse and Henry told him that they had burned down Elly's house. Nick and Henry are now in Lakiemata. Alphonse is deceased. He and Alphonse escaped during the committal proceedings. They went separate ways. He does not know how Alphonse died.

204. He knows Elly and Susi Stanley and their children. He also knows Melkius Sivilien and his wife. Their house is about 2.5 km from his house.

205. When he went back to his house to sleep on Sunday night his mother, Maria Lawrence, was there. He slept until the morning and did not leave the house until the night.

206. In cross-examination Raphael Lawrence Mandal's attention was drawn to his record of interview (exhibit A) which says that Lucas Soroken was with him and the others he mentioned on Sunday 21 December 2003. He replied that he had told the police that Lucas was not there but they insisted on putting down his name.

207. He repeated that when he went back to his house on Sunday night his mother was there and saw him come in. He did not meet anyone on the road on the way home.

208. In re-examination Raphael Lawrence Mandal stated that Lucas's name was mentioned in the record of interview by mistake.

209. The fourth defence witness was Maria Lawrence. She is the mother of the second co-accused, Raphael Lawrence Mandal. In examination-in-chief she stated that she has lived at Section 19, Barema, since 1978.

210. On Sunday 21 December 2003 she was at her house. Raphael went to Bob's house. At about 6.00 pm Wakal Tambala told Raphael, Bob, Andreas and Nason about what had been done to Jophet by Elly's wife. Raphael, Bob, Andreas and Nason then went to Wakal's house. That was about 6.00 pm.

211. Raphael returned at about 8.00 pm and told her that he, Bob, and the others had been to Elly's house, which had been burned down by Nick, Alphonse and Henry. Raphael did not mention anything about Lucas. She gave Raphael his food, he ate, and then they went to sleep. In the middle of the night her two daughters, Rebecca aged 18 and Jenny aged 13, got up to relieve themselves. Raphael was still asleep. The lamp was on and she could see that he was still sleeping. It is a big room and they all sleep in it. They have a bush material house. It is just one big room. During the night she did not hear anyone come to the house. She did not hear Raphael go outside.

212. She knows Elly and Susi Stanley and their children. She also knows Melkius Sivilien and his wife. Their house is about 2 km from her house.

213. She got up at about 5.00 am on Monday. She did not hear anything about any trouble involving Raphael until Tuesday afternoon. She was surprised when the police came looking for him.

214. In cross-examination Maria Lawrence said that on Sunday 21 December 2003 she stayed at her house with her husband and daughters. Raphael went to Bob's house in the middle of the day.

215. Her house is about 1 km from the gathering place at Barema, called 'the community'. She did not go to the community.

216. Raphael, Bob, Andreas and Nason went to Bob's house. Lucas was not with them. She knows that as Lucas's house is not close-by.

217. Bob's mother told her that Elly Stanley's house had been burned down and that Raphael, Bob, Andreas and Nason had been at her house.

218. Raphael, Bob, Andreas and Nason had left for Bob's house together. Raphael told her about this too when he came home that night, when he was having his meal.

219. She remembers getting up at about midnight Sunday to go to the toilet. She did not sleep properly that night as the children had woken her up. The previous night, Saturday, she slept well. On Monday night she slept well until the middle of the night when she got up to go to the toilet after which she slept until the morning.

220. The fifth defence witness was the third co-accused, Bob Alois Wafu. In examination-in-chief he stated that he lives at Section 19, Barema. He has lived there all his life.

221. On Sunday 21 December 2003 he heard that Susi Stanley had injured Jophet Wakal on his head. He was at his house when he heard that news, with Raphael, Andreas and Nason. It was in the afternoon. Lucas was not with them. Jophet's father, Wakal, brought Jophet over to Henry Martin's house. He sent Nick Oscar, Alphonse Wakal and Henry Martin to see Elly to get some money so that they could take Jophet to the hospital. Wakal told them what had happened.

222. Later, about 6.00 or 7.00 pm, he, Raphael, Andreas and Nason went to Wakal's house. About 8.00 pm Nick, Alphonse and Henry came and told them that they had gone to Stanley's house to ask him for money. He was not there so they set fire to his house. After they heard that, he, Raphael, Bob, Andreas and Nason went back to their own houses. Lucas was not with them that night. His house is a long way away.

223. He did not go to Elly Stanley's house. He left Raphael, Andreas and Nason and went to his own house. His mother, Sabina, and his sister, Lenna, were there with his small brothers when he arrived. His father is deceased. His mother gave him his food, he ate, then went to sleep. He did not leave the house. He slept until the morning.

224. He knows Elly Stanley and Melkius Sivilien. He has no problems with either of them. Melkius's house is about 2 km away from his house.

225. The next morning they heard that their names had been called in connexion with the arson. His mother took him into Bialla police station.

226. In cross-examination Bob Alois Wafu's attention was drawn to his record of interview (exhibit B) which says that Lucas Soroken was with him and the others on Sunday 21 December 2003. He replied that he did not give Lucas's name in the interview.

227. On Sunday he was at his house with Raphael, Andreas and Nason. They did not gather at the community. After Susi hit Jophet in the head, Jophet's father took him to Henry Martin's house. Wakal told them the story about Susi breaking Jophet's head in the afternoon when he, Raphael, Andreas and Nason were at his (Bob) house.

229. He knows Henni Sivilien. He was brought up in the area so he knows her. He lives in Section 19. She lives in Section 15.

230. Lucas lives in Section 19 too. But there are two Section 19s: 19A and 19B. Lucas's house is in 19B, a long way from his house.

231. The sixth defence witness was Sabina Alois. She is the mother of the third co-accused, Bob Alois Wafu. In examination-in-chief she stated that she is from Sandaun Province. She has lived at Barema for 25 years.

232. On Sunday 21 December 2003 she was at her place with Bob, Raphael, Andreas and Nason. Wakal came and told them that Elly's wife had broken Jophet's head with a piece of iron. Wakal later told them that Nick, Alphonse and Henry had burned down Elly's house. Henry was not with them when Wakal told them this news. Andreas was with them. Lucas was not.

233. Bob, Raphael, Andreas and Nason left her place at about 6.00 pm. Bob returned at about 8.00 pm. When Bob arrived, he ate some food then slept.

234. Nobody went out except when she and her daughter, Lenna, went outside to relieve themselves. That was about 1.00 am. Bob was asleep in the house. They all sleep in the one room. Nobody visited the house that night. She got up at about 6.30 am to get the children ready for school. Bob was still asleep.

235. On Monday morning the police came to the community. She was surprised when they mentioned Bob's name in connection with the burning down of the house.

236. In cross-examination Sabina Alois said that she took Bob into the police station about two days after she heard them calling his name.

237. She repeated that Bob was at their house on Sunday. They did not go to church and did not go to the garden. She did not see Bob between about 4.00 pm and 8.00 pm.

238. There is only a small distance between her house and Raphael's house. She can see who is at Raphael's house. There are no trees or other obstacles obstructing the view. It is clear. If someone were coming to the side of Raphael's house she would be able to see.

239. On the night of 21 December 2003 there was a new moon. She remembers that when she went outside to relieve herself she saw Raphael's mother doing the same.

240. In re-examination Sabina Alois stated that Lucas was not with them on Sunday.

241. When she got up on Sunday night to relieve herself, she went outside with Lenna and two other daughters. She has six daughters and three sons. She did not meet anyone when she went outside.

242. The seventh defence witness was Lenna Alois, Bob Alois Wafu's sister. In examination-in-chief she stated that she is 22 years old. She lives at Section 19, Barema.

242. On Sunday 21 December 2003 she went to church at about 8.00 am and returned to the house at about 11.00 am. No one was at the house when she went to church. When she returned nobody was there.

243. She came to know about Elly Stanley's house being burned down when Wakal told them. She was at her house with her mother and other family members and Bob, Raphael, Andreas and Nason. Lucas was not amongst them.

244. Bob returned to the house at about 8.00 pm. The family had not gone to sleep. Nobody visited the house that night. Nobody left the house. Nobody went outside to relieve themselves. She is sure about that. Bob slept with them in the house. He was there when she woke up. He was still asleep.

245. In cross-examination Lenna Alois said on the Sunday morning when she went to church, Bob, her brothers and sisters and her mother went also. The whole family was at church from 8.00 to 11.00 am. She did not see Raphael at church.

246. On Monday morning she learned about Elly Stanley's house being burned down. Wakal told her. She had not heard about it on Sunday night. Bob, Raphael, Andreas and Nason came back to her house on Sunday night.

247. In re-examination Lenna Alois stated that she cannot remember everything and she can get quite confused at times.

248. The eighth defence witness was Andreas Martin. In examination-in-chief he stated that he is from East Sepik Province. On Sunday 21 December 2003 he, Bob and Raphael were at the Community. They went back to Bob's house.

249. While they were at Bob's house Wakal told them that Elly Stanley's wife had injured Jophet on his head. They then walked down to Wakal's house. Nick, Alphonse and Henry came and told them that they had burned Elly's house. Then he, Raphael, Bob and Nason went back to his house. Then they went to their own houses. Lucas was not with them that night.

250. At about 6.00 pm he, Raphael, Bob and Nason went to Wakal's house and came back at about 7.00 pm.

251. He did not see Nick, Alphonse and Henry burn Elly Stanley's house but they told him and the others about it.

252. In cross-examination Andreas Martin said that he is related to Nick, Lucas, Raphael and Bob. They are like brothers to him.

253. On Sunday morning he was at the Community. It is a gathering place, about 12 km from his place. He went there at about 8.00 am. He and the other three – Raphael, Bob and Nason – walked there together, went to church, then went back to Bob's house. Church finished at about 11.00 am. He did not see Lucas at church.

254. When they were at Bob's place Wakal came and told them about what happened.

255. He found out about Elly's house being burned at about 6.00 pm when he was at Bob's house. Wakal told them that Elly's wife had injured Jophet's head. Then Nick, Alphonse and Henry told them that they had burned Elly's house. Then he, Raphael, Bob and Nason walked home.

256. The ninth defence witness was Nick Oscar. In examination-in-chief he stated that he lives at Barema, Section 22.

257. On Sunday 21 December 2003 he was with Henry Martin at his house. Wakal and Alphonse brought Jophet there and told them that Susi Stanley had broken Jophet's head. Wakal told him, Alphonse and Henry to go to Elly's house and ask him for some money so that Jophet could be taken to the hospital.

258. They went there but Elly and his wife had run away so the three of them – himself, Alphonse and Henry – burned down the kitchen. The fire was big and many people stood on the road and watched them. It was between 6.00 and 7.00 pm. Lucas was not with them. Then four people came and found them: Raphael, Bob, Andreas and Nason. The three of them told those four that they had already burned down the house. So those four went back to their own houses.

259. The three of them slept at Wakal's house that night. In the morning he and Henry went to their own places.

261. Alphonse is now dead. He died in Bialla after he escaped from the police lock-up.

262. In cross-examination Nick Oscar said that he did not go to the Community on Sunday 21 December 2003. He stayed at his house, which is about 11 km from Wakal's house. In the morning he was getting ready to go to the field to play. Then he met Henry at his house. While he was there Wakal came and told them what had happened to Jophet. That was about 1.00 or 2.00 pm.

263. He, Alphonse and Henry stayed for a while at Henry's house then went and burned down Elly's house.

264. He and Henry are now serving a prison sentence at Lakiemata for arson, ie for burning Elly Stanley's house. He admitted this in a police interview on 25 December 2003 at Bialla.

265. His attention was drawn to his record of interview (exhibit D) which says that on Sunday 21 December 2003 he was at the Community drinking beer with Lucas, Raphael, Bob, and Henry when Wakal came to them and told them that their brother was dead. Then they all walked down to Section 15 and burned down Elly Stanley's house. They all ended up at Wakal's house. Then Lucas, Raphael and Bob left in the middle of the night. They heard in the morning that those three had gone to Sivilien's house, bashed him up and pack-raped his wife.

266. Nick Oscar said that many of those things in the record of interview were not true. It was only him, Alphonse and Henry who burned down Elly's kitchen house. The statement was not read back to him by the police officers. He did not sign it. However when the prosecutor, Mr Kesan, asked him to have another look at the statement he conceded that he had signed it.

267. In re-examination Nick Oscar repeated that he never mentioned the names of Lucas, Raphael or Bob to the police.

268. The tenth and last defence witness was Henry Martin. In examination-in-chief he stated that on Sunday 21 December 2003 he was at his house with Nick. Wakal and Alphonse brought Jophet to his house.

269. Wakal told him, Alphonse and Nick to go and get some money from Elly so that they could take Jophet to the hospital. The three of them went to Elly's house but neither Elly nor his wife was there so they burned down the house. It was made of bush materials. Then they went to Wakal's house. Raphael, Bob, Andreas and Nason found them there. The three of them told them what they had done. So Raphael, Bob, Andreas and Nason went home. The three of them stayed at Wakal's house. In the morning he and Nicky went to his (Henry) house. Lucas was not with them.

270. In cross-examination Henry Martin repeated that he was at his house with Nick Oscar when Wakal came and conveyed the news about what Elly Stanley's wife had done to Jophet.

272. His attention was drawn to his record of interview (exhibit C) dated 26 December 2003. He identified his signature on the statement. The statement says that on Sunday 21 December 2003 he was the Community drinking beer with Lucas, Raphael, Bob, and Nick when Wakal and Alphonse came to them and told them that their brother had been wounded on his head and was about to die. The statement says that he told Wakal they would follow Wakal later, after they had finished their beer; and that he (Henry) would take the blame. They all ended up at Wakal's house. Then Lucas, Raphael and Bob left in the middle of the night.

273. Henry Martin said that those parts of the record of interview were not true. He did not sign it.

274. In re-examination Henry Martin stated that he does not know how to read and write. He does not know whose signature it is on the record of interview. The story in the statement is not true.

275. That ended Henry Martin's evidence and marked the end of the evidence for the defence.

276. Mr Inua submitted that it was an undisputed fact that Elly Stanley's kitchen-house was burned. That happened between 7.00 and 8.00 pm on Sunday 21 December 2004. The only issue is identification. There are only two witnesses – Elly Stanley and Gibson Andrew – whose direct evidence implicates the three-co-accused. Susi Stanley gave hearsay evidence, which should be disregarded.

277. The evidence of the two witnesses is unreliable. Elly Stanley said he was standing 15 to 20 metres away, which at night time is a fair distance and would make it difficult for him to identify who was around. There was no light apart from the flames and the moonlight. His evidence was that he saw the kitchen being burned and then some time later saw the house being burned. It is reasonable to expect that in the period between those two events he would have moved around or done something about the situation. He said that he met Gibson Andrew but that they did not stand together. Then Gibson said that they did stand together. Gibson said that he was also 20 metres away from the fire; and this would make it difficult for him to identify who was involved.

278. The court should be guided by the principles developed by the Supreme Court in John Beng v The State [1977] PNGLR 115, Prentice DCJ, Williams J, Kearney J, in particular the inherent dangers in relying on identification evidence in conditions of darkness. An honest witness can be a mistaken one. Many mistakes based on incorrect identification have been made in the past. The court must exercise extreme caution in dealing with the evidence of Elly Stanley and Gibson Andrew.

279. The three co-accused have also provided alibis that must be weighed against the prosecution's evidence.

280. The alibi evidence was also very strong for these charges, Mr Inua submitted. Lucas was at his house all the time. Raphael and Bob were at Wakal's with Andreas and Nason, when they heard that Nick, Alphonse and Henry had burned Elly Stanley's house. Then they returned to their own houses.

281. As for Lucas, Mr Inua conceded that there was some inconsistency in the evidence as to his whereabouts during the daytime. Lucas said he was at home all day. His father Joseph said that the whole family went to church in the morning. This is not a material inconsistency as what happened during the morning is not in issue. The critical time is the night time and in that regard the evidence of Lucas and his father is clear and consistent: Lucas was at home all night.

282. Likewise for Raphael and Bob. There was strong alibi evidence from a number of witnesses that they were at home all through the night.

283. The identification evidence of Melkius Sivilien and Henni Sivilien was, by contrast, not strong at all, Mr Inua submitted. It is not disputed that an armed robbery occurred and that Henni Sivilien was raped by three men. However, the evidence does not support the conclusion beyond reasonable doubt that it was the three co-accused.

284. It was dark, the middle of the night. When Melkius went outside he only had time for a fleeting glance at his assailants before they assaulted him.

285. Henni was an untrustworthy witness owing to her poor demeanour in the witness box.

286. There were inconsistencies in the evidence of Melkius and Henni, particularly about whether there was any light in the house. Melkius said there was no light. Henni said there was a lamp in her room; then paused when asked details about the lamp, suggesting that she was making up this part of her evidence.

287. Mr Kesan submitted that there was a clear motive for the chain of events that led to Elly Stanley's house being burned down and the armed robbery and rape that took place at the Sivilien's' house. There was a motive for the three co-accused being perpetrators of all those crimes.

288. It all started on the morning of Sunday 21 December 2003 when Elly Stanley went into the bush looking for wild animals. When he came back he heard that one of Wakal Tambala's sons, Benson, had assaulted his daughter, Wendy. So Elly smacked Benson who then went and told his mother and father what happened. Then Benson's brothers, Alphonse and Jophet, went to Elly's house. Elly had left, so his wife Susi had an altercation with Jophet and struck him on the head with an iron pipe, drawing blood. Jophet's family and friends found out about Jophet's injury and were not happy. All but one of the protagonists in the events that followed are from the Nuku District of West Sepik Province. They have all lived together at Barema for many years. They are very close. The evidence points to them being very concerned when they found out what happened to Jophet. They set about mobilising to burn down Elly Stanley's house, to avenge Elly's wife's attack on Jophet.

289. As for a motive for the armed robbery and rape, the evidence points to the three co-accused wanting to find Elly later in the night. They went to the house next door to Elly's place: the Sivilien house. They asked for Elly. He was not there so they took out their anger on Melkius and Henni Sivilien.

290. Elly Stanley gave clear evidence that he saw the three co-accused present when his house was being burned. His evidence was corroborated by Gibson Andrew's evidence. It was night time but the witnesses were not identifying strangers. The three co-accused were well known to the witnesses.

291. The identification evidence was also strong for these charges. There was no significant inconsistency between the evidence of Melkius and Henni Sivilien. Henni said there was a lamp on in her room. She was in the best position to know that. Henni said that she could tell that Lucas was one of the three who raped her as she knew him and he spoke to her in Tolai language. There was no evidence to contradict that, Mr Kesan submitted. Henni said the light was on. So it is not really a question of identification at all. It is a question of credibility of the witness, Henni.

292. The alibi evidence is weak, Mr Kesan submitted. Lucas's father's evidence was in direct contradiction to Lucas's evidence as to Lucas's whereabouts during the day. Lucas's credibility was also undermined by his insistence that he does not know Elly Stanley or Melkius or Henni Sivilien. The other defence witnesses said they knew these people. Only Lucas did not. This shows Lucas is not an honest witness.

293. As for Raphael and Bob, the evidence they gave contradicted the version of events in their records of interview (exhibits A and B). They both made prior inconsistent statements. Their records of interview were tendered by consent. They have two sets of stories before the court, which substantially reduces their credibility as witnesses.

294. The details of what happened during the night given by other defence witnesses such as Raphael's mother suggests that this evidence is exaggerated and manufactured. The evidence of Bob's mother, Sabina, was the same.

295. Bob's sister, Lenna, gave evidence that contradicted that of Bob and Sabina. Lenna said everyone went to church on Sunday whereas Bob and Sabina said that they did not go anywhere. Lenna said she did not get up to go to the toilet. Sabina said they did get up to go to the toilet.

296. None of the defence witnesses can be regarded as independent. There has been ample opportunity for them to put their stories together. The alibis are clearly false and this strengthens the prosecution's case.

297. As for Henry Martin and Nick Oscar, they are prisoners serving time for arson. The version of events they gave in their oral testimonies contradicted what is in their records of interview, showing them up as dishonest witnesses.

298. Mr Inua conceded the inconsistencies between the records of interview and the oral testimonies of Henry Martin and Nick Oscar. However, they explained that the police interviewers made things up.

299. The so-called lack of independence of the defence witnesses is unavoidable as the witnesses and the three co-accused live together in the same community. It is reasonable to expect that relatives and friends would want to give evidence in the case.

300. Lenna Alois's evidence was not consistent. But she explained in re-examination that she was a little confused and could not remember the entire events.

301. Bob's mother's evidence was that she got up in the middle of the night with her daughters. There is nothing remarkable about her remembering that.

302. As for the records of interview of Raphael and Bob, they have consistently denied that they gave that story to the police. The story that Lucas was with them should not be believed.

303. Henni's evidence was very unreliable due to the inconsistencies regarding the presence or otherwise of the lamp and the exact weapons that the assailants had with them.

304. The three co-accused have not concocted anything. Their alibis remain strong. The identification evidence is weak and it would be dangerous for the court to convict any of the three co-accused on the basis of it.

305. To sustain a conviction the State has the onus of proving beyond reasonable doubt, in relation to one or more of the three co-accused, the existence of all the elements of the offence in relation to any one or more of the three counts on the indictment.

A person who wilfully and unlawfully sets fire to ... a building or structure, whether completed or not ... is guilty of a crime.

307. To obtain a conviction under count 1 the prosecution must prove the following matters beyond reasonable doubt:

308. Section 386 (the offence of armed robbery) of the Criminal Code states:

Penalty: Subject to Subsection (2), imprisonment for a term not exceeding 14 years.

309. To obtain a conviction under count 2 the prosecution must prove the following matters beyond reasonable doubt in relation to one or more of the three co-accused:

2 immediately before or immediately after the time of stealing it, he used or threatened to use actual violence to a person or property;

3 in order to obtain the thing stolen or to prevent or overcome resistance to it being stolen.

310. If those three elements are proven and none of the matters set out in Section 386(2) are proven a conviction will be entered under Section 386(1) and the maximum penalty will be imprisonment for 14 years. If the three elements are not all proven, the accused must be acquitted.

311. If, in addition to those three elements, one or more of the following is proven, a conviction will be entered under Section 386(2) and the maximum penalty will be life imprisonment:

4 the accused was armed with a dangerous or offensive weapon or instrument (Section 386(2)(a)); or

5 the accused was in company with one or more other persons (Section 386(2)(b)); or

6 at, immediately before or immediately after, the time of the robbery, the accused wounded or used any other personal violence to any person (Section 386(2)(c)).

312. In other words, though the co-accused have been charged under both Sections 386(1) and 386(2), the prosecution does not have to prove all the elements of both Sections 386(1) and 386(2). Proof of all the elements of Section 386(1) will sustain a conviction. Then if one of Sections 386(2)(a), (b) or (c) is proven, a conviction can be entered under the relevant provision and the maximum penalty will increase from 14 years to life imprisonment. The elements of Sections 386(2)(a), (b) and (c) are circumstances of aggravation as defined by Section 1(1) of the Criminal Code. Section 538 (offences involving circumstances of aggravation) leads to the above interpretation of Section 386.

Subject to this Division, on an indictment charging a person with an offence committed with circumstances of aggravation, he may be convicted of any offence that is—

(b) constituted by any act or omission that is an element of the offence charged,

with or without any of the circumstances of aggravation charged in the indictment.

any circumstances by reason of which an offender is liable to a greater punishment than that to which he would be liable if the offence were committed without the existence of that circumstance...

(1) A person who sexually penetrates a person without his consent is guilty of a crime of rape.

(2) Where an offence under Subsection (1) is committed in circumstances of aggravation, the accused is liable, subject to Section 19, to imprisonment for life.

316. To obtain a conviction under count 3 the prosecution must prove the following matters beyond reasonable doubt:

317. If an offence under Section 347(1) (count 3) is committed in "circumstances of aggravation" the maximum sentence is increased by Section 347(2) from 15 years to imprisonment for life. "Circumstances of aggravation" are prescribed by Section 349A (interpretation). They include, eg where the accused uses or threatens to use a weapon or constrains or restrains the complainant before or after the commission of the offence. In the present case, the indictment does not charge the co-accused with any circumstances of aggravation for rape. Therefore none of the prescribed circumstances have to be proven to constitute the offence for count 3.

318. "Sexually penetrates" is defined by Section 6 (sexual penetration), which states:

When the expression "sexual penetration" or "sexually penetrates" are used in the definition of an offence, the offence, so far as regards that element of it, is complete where there is—

(a) the introduction, to any extent, by a person of his penis into the vagina, anus or mouth of another person; or

(b) the introduction, to any extent, by a person of an object or a part of his or her body (other than the penis) into the vagina or anus of another person, other than in the course of a procedure carried out in good faith for medical or hygienic purposes.

319. "Consent" is defined by Sections 347A (meaning of consent) and 347B (where belief in consent is not a defence).

(1) For the purposes of this Part, "consent" means free and voluntary agreement.

(2) Circumstances in which a person does not consent to an act include, but not limited to, the following:—

(a) the person submits to the act because of the use of violence or force on that person or someone else; or

(b) the person submits because of threats or intimidation against that person or someone else; or

(c) the person submits because of fear of harm to that person or to someone else; or

(e) the person is asleep, unconscious or so affected by alcohol or another drug so as to be incapable of freely consenting; or

(f) the person is incapable of understanding the essential nature of the act or of communicating his unwillingness to participate in the act due to mental or physical disability; or

(g) the person is mistaken about the sexual nature of the act or the identity of the person; or

(h) the person mistakenly believes that the act is for medical or hygienic purposes; or

(i) the accused induces the person to engage in the activity by abusing a position of trust, power or authority; or

(j) the person, having consented to engage in the sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity; or

(k) the agreement is expressed by the words or conduct of a person other than the complainant.

(3) In determining whether or not a person consented to that act that forms the subject matter of the charge, a judge or magistrate shall have regard to the following:—

(a) the fact that the person did not say or do anything to indicate consent to a sexual act is normally enough to show that the act took place without the person's consent; and

(b) a person is not to be regarded as having consented to a sexual act just because—

(iii) on that or an earlier occasion, he freely agreed to engage in another sexual act with that person or some other person.

It is not a defence to a charge under this Part that the accused person believed that the person consented to the activity that forms the subject matter of the charge where—

(b) the accused did not take reasonable steps, in the circumstances known to him at that time, to ascertain whether the person was consenting.

323. The defence counsel concedes that the two incidents at the heart of this case actually took place:

324. Both counsel agree, and I accept, that the only substantive issue is therefore identification. The court must ask in relation to each incident and in relation to each of the three co-accused, was he directly involved? The prosecution must establish beyond reasonable doubt that the answer is yes. In determining whether it is satisfied to the required standard that one or more of the accused were involved the court must take into account a number of principles that guide the court, as a tribunal of fact, on how to assess identification evidence.

325. Each of the co-accused says he has an alibi so the principles regarding alibi evidence must also be considered.

326. The arson incident happened at about 7.00 pm on Sunday 21 December 2003 at Barema. The armed robbery and rape incident happened later that night or early the next morning. Two of the defence witnesses, Nick Oscar and Henry Martin, and one of Wakal Tambala's sons, Alphonse, were directly involved in the arson incident. Nick and Henry were convicted and are serving prison sentences for arson. Alphonse is deceased.

327. Nick, Alphonse and Henry burned down Elly Stanley's house as they were upset over an incident earlier in the day. Elly's wife Susi had hit Alphonse's brother, Jophet, on the head with an iron pipe. He bled badly and required medical treatment. Nick, Alphonse and Henry went to Elly's place to confront Elly or ask him for some money to help them take Jophet to the hospital. Elly was not there. So they burned his house down.

328. The exact course of events that led to Susi Stanley injuring Jophet Wakal are not in issue. Mr Kesan summarised them uncontroversially in his submission. It all started on the morning of Sunday 21 December 2003 when Elly went into the bush looking for pigs. When he came back he heard that one of Wakal Tambala's sons, Benson, had assaulted his daughter, Wendy. 329. Elly smacked Benson who then went and told his mother and father what happened. Then Benson's brothers, Alphonse and Jophet, went to Elly's house. Elly had left, so Susi had an altercation with Jophet and struck him on the head with an iron pipe, drawing blood. Jophet's family and friends found out about Jophet's injury and were not happy.

330. The three co-accused and the other seven defence witnesses are from the Nuku District of West Sepik Province. They have all lived together at Barema for many years. The three co-accused's parents settled in the area in the late 1970s. The three co-accused have lived all their lives at Barema.

331. There were five exhibits. One of them (exhibit E) was the report of the medical examination of the complainant in the rape charge, Henni Sivilien. She presented herself to Bialla Health Centre soon after the armed robbery and rape incident. The report is an uncontentious piece of evidence. It is consistent with the complainant having been raped.

333. I ruled that the record of interview of the first co-accused, Lucas Soroken, was inadmissible.

334. Though the four records of interview were admitted into evidence with the consent of defence counsel they became contentious pieces of evidence as they each contained prejudicial evidence regarding the first co-accused, Lucas Soroken. The records of interview for Henry Martin and Nick Oscar also contains material prejudicial to Raphael Lawrence and Bob Alois. The four interviewees each claimed that their records of interview were in error and that the police officers who prepared them had inserted things that they had not said.

335. I have exercised considerable caution when considering the contents of these records of interview.

336. State witness No 1 was Elly Stanley. I thought he was a reasonably credible witness. His demeanour was not of someone deliberately lying.

337. State witness No 2 was Susi Stanley. I thought she was a reasonably credible witness. Her demeanour was not of someone deliberately lying.

338. State witness No 3 was Gibson Andrew. I thought he was a reasonably credible witness. His demeanour was not of someone deliberately lying.

339. State witness No 4 was Melkius Sivilien. He is an older man. He was probably the oldest of all the witnesses, together with Lucas's father, Joseph Sembengo. I thought he was a reasonably credible witness. His demeanour was not of someone deliberately lying.

340. State witness No 5 was Henni Sivilien. She was subject to vigorous cross-examination. Defence counsel submitted that her demeanour in the witness box gave her away as an untrustworthy witness. I do not agree. I thought her demeanour was sound. She gave a detailed account of what happened. Her evidence was straightforward and direct, particularly regarding how she was treated by the three men who raped her. I formed the clear impression that she was an honest witness.

341. State witness No 6 was Det Sgt Michael Nani. Because of the ruling I made in the voir dire I could not conclude that all of the evidence this witness gave was truthful.

342. State witness No 7 was Snr Const Henry Puana. Likewise, because of the ruling I made in the voir dire I could not conclude that all of the evidence this witness gave was truthful.

343. Defence witness No 1 was the first co-accused, Lucas Soroken Sembengo. Lucas has an eye infection or disease of some sort that has apparently developed while he has been in custody. This means that when he is spoken to and asked questions he does not have good eye contact with the questioner. I considered this when assessing his demeanour as if an observer did not know that it might be thought that the way he responds to questions is evasive. However, I concluded that Lucas was not a credible witness. He denied knowing Elly Stanley or Melkius Sivilien. The other defence witnesses said that they knew them. But Lucas denied it. I found this too incredible to believe and this substantially reduced his credibility as a witness.

344. Defence witness No 2 was Joseph Sembengo. His demeanour was not of someone who was an out-and-out liar. However, his demeanour suggested that he was giving the sort of evidence that he thought was necessary to get his son out of trouble.

345. Defence witness No 3 was the second co-accused, Raphael Lawrence Mandal. I thought Raphael was a more credible witness than Lucas but I cannot put him in the category of an honest witness.

346. Defence witness No 4 was Maria Lawrence. I thought her credibility as a witness was undermined during cross-examination when she tried to give the impression that she could remember which nights she got up to go to the toilet and which she did not. Witnesses who purport to remember too much detail of mundane things that happened almost two years ago are prone to being not regarded as credible. I did not regard Maria Lawrence as a witness of truth.

347. Defence witness No 5 was the third co-accused, Bob Alois Wafu. Of the three co-accused he was the most impressive witness. He said that he knows Elly Stanley and Melkius Sivilien and has no problems with either of them. His mother took him to the police at Bialla when they heard he was a suspect. Bob struck me as an intelligent person however I concluded that I could not put him in the category of an honest witness.

348. Defence witness No 6 was Sabina Alois. Bob's mother, like Raphael's mother, started to lose credibility as a witness when she was able to recall details of mundane matters like going to the toilet and the members of the family who got up in the middle of the night like her to relieve themselves. She said that she saw Raphael's mother doing the same thing at the same time. I did not regard Sabina Alois as a witness of truth.

349. Defence witness No 7 was Lenna Alois. Bob's sister's evidence contradicted her mother's, about going to the toilet in the middle of the night. Lenna, in my view, was a poor witness. She seemed nervous and that is understandable. I have taken account of that. However she gave the impression of someone being willing to lie to save her brother from gaol. I did not regard Lenna Alois as a witness of truth.

350. Defence witness No 8 was Andreas Martin. He was one of the better defence witnesses. I tended to regard him as a witness of truth.

351. Defence witness No 9 was Nick Oscar. Nick is a convicted criminal but that does not disqualify him from being a witness of truth. Considering his demeanour and his preparededness to change answers under cross-examination as the circumstances required I could not put him in the category of an honest witness.

352. Defence witness No 10 was Henry Martin. Henry is in the same boat as Nick. He gave the impression of someone being prepared to lie to help his friends out of trouble. I cannot put him in the category of an honest witness.

353. In assessing the identification evidence I will apply the principles set out by the Supreme Court in John Beng v The State [1977] PNGLR 115, Prentice DCJ, Williams J, Kearney J; Biwa Geta v The State [1988-89] PNGLR 153, Kidu CJ, Bredmeyer J, Los J; and Jimmy Ono v The State (2002) SC698, Hinchliffe J, Sevua J, Kandakasi J. I recently summarised those principles in The State v Noutim Mausen (2005) N2870. Thus:

354. The leading case on the principles to apply in determining the value and weight to be given to alibi evidence is John Jaminan v The State (No 2) [1983] PNGLR 318, Supreme Court, Pratt J, Bredmeyer J, Amet J. Kandakasi J has also carefully set out and applied the relevant principles in a series of recent National Court decisions involving alibi evidence, eg The State v Okata Talangahin (No 1) (2004) N2581; The State v Eki Kondi (No 1) (2004) N2542; and The State v Donald Poni (2004) N2663. In a recent National Court case in Kimbe, Lay J dealt with the specific issue of the limited circumstances in which an inference adverse to the accused could be drawn by the accused's failure to call a witness to support an alibi (The State v John Bosco (2004) N2777).

355. I have considered all those cases and summarise the main principles as follows:

356. First I will consider the identification evidence and determine whether it looks strong enough to conclude that one or more was involved. Secondly I will consider the alibi evidence. If the identification evidence is strong the alibi evidence will need to be strong to counter the weight of the identification evidence. I will need to examine the alibi evidence in detail. However, if the identification evidence is not strong the alibi evidence will not need to be considered in detail. Thirdly I will consider both the identification evidence and alibi evidence in the context of all other aspects of the evidence, including whether there was any motive for what happened.

357. I uphold Mr Inua's submission that the evidence of Elly Stanley and Gibson Andrew has some inconsistencies that makes it appear unreliable. I thought the evidence about the sequence of events – in particular regarding the burning of the kitchen house and the subsequent burning of the dwelling house – was confusing. The evidence was that the incident happened about 7.00 pm. Elly said he was scared and thought he might be killed. Gibson only saw the dwelling house being burned. He said that he saw six boys including the three co-accused involved in the burning down of the dwelling house. He also said that by the time the dwelling house was on fire it was only himself and Elly who were watching what was going on. I found that hard to believe. This made me doubt the veracity of his identification evidence.

358. Mr Inua validly highlighted that it was dark. Elly and Gibson could have been mistaken. I agree and conclude that the identification evidence is questionable.

360. Mr Kesan rightly identified a motive for the arson attack on Elly Stanley's house: the injury done to Jophet Wakal by Elly's wife Susi. Jophet and the three co-accused are part of an apparently close-knit Nuku community within the Barema oil palm settlement. They would have been angered by what they regarded as an unwarranted attack on their brother. However, a motive by itself will not sustain a conviction on a case like this where almost everything turns on the strength of the identification evidence.

361. I conclude that I am not satisfied beyond reasonable doubt that any of the co-accused was involved in the burning down of Elly Stanley's kitchen house or dwelling house.

THE ARMED ROBBERY AND RAPE INCIDENT: WAS ONE OR MORE OF THE CO-ACCUSED DIRECTLY INVOLVED?

362. I will take the same approach as for the arson incident. First I will consider the identification evidence and determine whether it looks strong enough to conclude that one or more was involved. Secondly I will consider the alibi evidence. If the identification evidence is strong the alibi evidence will need to be strong to counter the weight of the identification evidence. I will need to examine the alibi evidence in detail. However, if the identification evidence is not strong the alibi evidence will not need to be considered in detail. Thirdly I will consider both the identification evidence and alibi evidence in the context of all other aspects of the evidence, including whether there was any motive for what happened.

363. I have considered the inherent dangers of relying on the correctness of identification to support a conviction and again caution myself of that. However, in view of my assessment of the credibility of the two alleged victims and eyewitnesses to the robbery and rape incident – Melkius and Henni Sivilien – I have concluded that the identification of the three co-accused as being the three men responsible is strong.

364. I take into account that there were two witnesses giving evidence with a high degree of consistency. It was not necessary to have an identification parade in this case. They were not identifying strangers. They were identifying people that they knew. Melkius testified that he clearly identified Raphael and Bob in the dark when he went outside. There was a third, shorter, person behind them who he thought might be Lucas. He later confirmed with Henni that it was Lucas. All three were well known to the two witnesses. The three co-accused have been brought up in Barema. It is quite plausible to believe that Melkius and Henni would know them very well.

365. There is always the possibility that an honest witness can be mistaken and still be a convincing witness. However, in this case I am satisfied that both witnesses were honest and accurate. I have taken into account that it was the middle of the night, so it was dark. Henni gave evidence that there was a lamp on in her room – the place where she was raped three times.

366. She described in vivid detail what each of the three co-accused said to her and how they each treated her during the course of each rape. They each had close physical and violent contact with her. She had the opportunity to make a clear identification of each, with or without a lamp on.

367. I now consider the degree of certainty with which the witness identified the co-accused. In both examination-in-chief and cross-examination she was emphatic that it was them. What was her justification for that? She recognised them all as she had known them all for a long time. They lived in the same settlement. She knew their names. She could recognise their builds. It was not a fleeting glance. There was no prevarication in her evidence as to who it was. There is no suggestion that the names of the three co-accused are a recent invention on her part. She was not evasive in her answers. She gave no impression that she was lying. I accept that she gave her evidence honestly.

368. There were some inconsistencies in the evidence of Melkius and Henni. She said the lamp was on. He said there was no light. Their evidence about the types of weapons the intruders had was not exactly the same. There was some confusion about the sleeping arrangements in the house. I regarded these matters as minor inconsistencies, which did not detract from the force of the identification.

369. One other matter was intriguing. Henni gave evidence that Lucas spoke to her in the Tolai language and that she knew that he had been to East New Britain as she had seen him there. This was very specific detail, which was not countered successfully. It struck me that very specific allegations of that nature would be easy to disprove if they were untrue. The defence counsel made no effective attempt to disprove them, and this strengthened the inference that the allegations were true and that the detailed evidence given by this witness was truthful and accurate.

370. Faced with such strong identification evidence the alibi evidence for each of the co-accused needed to be fairly convincing, not to counter-balance the identification evidence but to at least create some doubt as to the accuracy of the identification. The burden of proof never shifted from the prosecution.

371. I uphold Mr Kesan's submission that the alibi evidence is very weak, for these reasons:

372. Ultimately I could not reasonably believe any of the witnesses – the family members of the three co-accused – who said that the three co-accused were home all night and never went out.

373. I did not rule out accepting the alibi evidence due to the lack of independence of the witnesses. If, in fact, the three co-accused were at home all night then the people who could give evidence of that would be their family members. I also did not rule out accepting the alibi evidence because of the prior inconsistent statements recorded in the records of interview. Though the records of interview were admitted into evidence doubts remain about their accuracy. The convictions in this case do not turn on what is in the records of interview.

374. I therefore reject the alibi of each of the three co-accused. There is no credible evidence to support any alibi.

375. When the discredited alibi evidence is put in the context of the prosecution's strong identification evidence, each alibi has no substance. There was no need for the prosecution to disprove the alibi evidence beyond reasonable doubt but, in effect, that was the result of the cross-examination of most of the defence witnesses. They were revealed as unreliable witnesses and this, in the circumstances of the case, provided corroboration of the identification evidence. Putting that together with the existence of a motive, which has been carefully and skilfully identified by Mr Kesan in his closing submission, I find that the three co-accused were responsible for the armed robbery and rape.

2 immediately before or immediately after the time of stealing it, he used or threatened to use actual violence to a person or property;

3 in order to obtain the thing stolen or to prevent or overcome resistance to it being stolen.

378. The circumstances of aggravation, at least one of which must be proven are:

4 the accused was armed with a dangerous or offensive weapon or instrument (Section 386(2)(a)); or

5 the accused was in company with one or more other persons (Section 386(2)(b)).

379. I am satisfied beyond reasonable doubt as to all of these elements in relation to each of the three co-accused.

I am satisfied beyond reasonable doubt as to both elements in relation to each of the three co-accused.

Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the co-accused

1 –	summary of exhibits.
2 –	witnesses called by the State.
3 –	witnesses called by the defence.

No	Name	Description	Day	Date (2005)
1	Lucas Soroken Sembengo	First co-accused	4	21 Oct
2	Joseph Sembengo	Lucas's father	4	21 Oct
3	Raphael Lawrence Mandal	Second co-accused	4	21 Oct
4	Maria Lawrence	Raphael's mother	5	24 Oct
5	Bob Alois Wafu	Third co-accused	5	24 Oct
6	Sabina Alois	Bob's mother	5	24 Oct
7	Lenna Alois	Bob's sister	5	24 Oct
8	Andreas Martin	Friend of three co-accused	5	24 Oct
9	Nick Oscar	Friend of three co-accused	6	25 Oct
10	Henry Martin	Friend of three co-accused	6	25 Oct

National Court of Papua New Guinea

State v Sembengo [2006] PGNC 198; N3029 (16 February 2006)