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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO 492 OF 2007
THE STATE
V
STEVEN HERMAN KOIMANE
Kimbe: Cannings J
2009: 15, 16, 19, 20 October, 15 December
CRIMINAL LAW – abduction of a girl under 18 with intent to have carnal knowledge – sexual assault – rape – Criminal Code, Sections 220(1), 349(1), 347(1) and (2) – trial.
The accused, a man aged in his 30s, was charged with five offences stemming from an incident in which he and another man allegedly took away a 17-year-old girl from her parents' house without their consent and then touched her sexual parts and sexually penetrated her without her consent. The girl (the complainant) gave sworn evidence, as did her mother and brother. The only evidence for the defence was the accused's unsworn statement from the dock, in which he said that he went to the girl's house and argued with her parents about something else and broke a lamp, but then left.
Held:
(1) The complainant gave credible evidence and her evidence as to count 1 was corroborated by the evidence of her brother and mother.
(2) The accused's unsworn statement was vague and unconvincing and carried little weight.
(3) Count 1 – abduction – was proven, on the strength of the evidence of the three State witnesses.
(4) Count 2 – sexual assault – was not proven as insufficient detail was provided by the complainant's testimony.
(5) Count 3 – rape – was proven. Although the accused did not penetrate the complainant, he aided and assisted the man who penetrated her. The accused was deemed under Section 7 of the Criminal Code to be guilty of rape.
(6) Count 4 – rape – was not proven. Although it was proven that the complainant was penetrated without her consent, on this occasion the accused was not present.
(7) Count 5 – rape – was proven. Although the accused did not penetrate the complainant he aided and assisted the man who penetrated her. The accused was deemed under Section 7 of the Criminal Code to be guilty of rape.
(8) The accused was accordingly found guilty of counts 1, 3 and 5 and not guilty of counts 2 and 4.
Cases cited
The following cases are cited in the judgment:
Biwa Geta v The State [1988-89] PNGLR 153
Jimmy Ono v The State (2002) SC698
John Beng v The State [1977] PNGLR 115
The State v Francis Vau Kamo (2006) N2991
The State v Ima Esiko CR No 1286 of 2004, 23.03.09
The State v James Yali (2005) N3014
The State v Noutim Mausen (2005) N2870
TRIAL
This was the trial of an accused charged with one count of abduction, one count of sexual assault and three counts of rape.
Counsel
F Popeu, for the State
D Kari, for the accused
VERDICT
15th December, 2009
1. CANNINGS J: The accused, a man aged in his 30s, was charged with five offences stemming from an incident
INDICTMENT
2. The indictment against the accused was presented on 15 October 2009 and consisted of five counts:
3. The State alleges that the accused actually did the acts constituting the offences of abduction and sexual assault charged in counts 1 and 2. As for the three rape charges (counts 3, 4 and 5) it is not alleged that the accused sexually penetrated the complainant but that he enabled and aided his companion to commit these offences and should be deemed guilty under Section 7 of the Criminal Code.
EVIDENCE FOR THE STATE
4. It consisted of:
Oral evidence of three witnesses
5. The first witness was the complainant, "G". The other two witnesses were her brother and her mother.
(1) The complainant, G, is now aged 20. She is a young Tolai woman. She attends university. In 2007 she was a grade 9 student at Kimbe Secondary School. She was not married.
6. This trouble started in the early hours of the morning at the family home at Aling. Two men came to the house after everyone had gone to sleep. They banged on the house and she and her mother and father came outside. She recognised one of them as the accused, Steven, who she knows as he lives close by with a Sepik family and has done so for a number of years. She did not get a good look at the other one. It was dark and raining but Steven was holding a torch and she could see his face and also recognise his voice.
7. They threatened her father with a bushknife, which Steven was carrying, and then Steven touched her breasts and pulled her away into the bush. They took her and kept her against her will over several hours and during that period Steven's friend raped her on three occasions.
8. The first time was in a cocoa plantation. The two of them removed her trousers and then Steven's friend pushed her to the ground and penetrated her by inserting his penis into her vagina without her consent. She tried to scream but he blocked her mouth with a piece of clothing.
9. They left the plantation and they pulled her to a spot near the creek. Steven was not present on this occasion. He went away, she does not know where. His friend again penetrated her by inserting his penis into her vagina without her consent. She was forced to carry her clothes to the second spot.
10. After that, Steven came back and helped his friend take her to another spot, up a mountain. His friend again penetrated her by inserting his penis into her vagina without her consent. Steven did not try to stop his friend. He just stood there.
11. She experienced pain on each of the three occasions and Steven's friend ejaculated on each occasion.
12. After that they took her to Steven's house, which is about 100 to 150 metres away from her house. Steven's mother took her inside and gave her a shirt and skirt to wear as it had been raining continuously and her clothes were wet. Steven's mother and father took her to the road and she found her way home in the early morning.
13. Soon after she got home her family borrowed a car and took her to Gigo Clinic in Kimbe for a medical examination.
14. In cross-examination the complainant said it was true that it was dark and raining at the various places she was taken to but she was nevertheless able to recognise Steven. She was not mistaken. Her family's house had no electricity and they relied on lamps to provide light. There was no lamp on the veranda but at the kitchen house and inside the main house there are lamps. Also there was light provided by the torch that Steven and his friend flashed in their faces.
(2) The brother, "T", said he was asleep in his room adjoining the kitchen house when he was woken by the sound of one of the lamp glasses being broken. He looked out the window and saw the accused, Steven, who he knows well, holding a torch and bushknife. Steven walked towards the room and put out another lamp and then walked back to the house and cut the door with his bushknife.
15. Steven sang out for his (T's) parents and they came outside, with G. Steven and his friend ordered his parents and G to stand in a line and flashed the torch in their faces and then ran off with G. This was happening about seven metres away from the window he was looking through.
16. T said he tried to get out of his room but it was locked from the outside. After Steven and his friend had taken off with G, T's father came over and unlocked the door and they went searching for G but could not find her. He thinks that Steven and his friend were drunk.
(3) The mother, "V" said the family was awoken from their sleep at about 1.00 am. Her husband was the first to go outside. She and her daughter followed. The accused, Steven, flashed a torch in their faces. She could tell it was Steven as he is a neighbour and she knows him very well. She saw his face and also recognised his voice.
17. Steven held her daughter's hand and led her away. Neither she (V) nor her husband gave him permission to do that.
Record of interview
18. The accused denied involvement in any incident in which G was abducted, assaulted or raped. He did, however, say that he and his brother bore grudges against some Tolai boys for raping two of his brother's daughters.
Medical evidence
19. A report by an HEO, Elsie Kitiman, of Kimbe Urban clinic, dated 29 January 2007 was admitted into evidence. The HEO said the complainant came to the clinic that day making an allegation of rape. The following observations and findings were recorded:
Tear around the vaginal wall.
Hymen tear.
Laceration.
Sperm deposit – penetration went through.
EVIDENCE FOR THE DEFENCE
20. The accused made an unsworn statement from the dock. There was no other evidence for the defence.
21. Steven Herman Koimane said that on a Sunday night in 2007 he did go up to G's house to look for his niece as there was a boy living at her house who had taken her away. He could not find her so he broke one of the lamps outside the house. He sang out to G's mother and father to get them to come outside. He argued with them. Then he walked back to his house.
22. On the road he saw two men with a girl and when they saw him the men left the girl and ran off. He thought it was his niece but when he got closer he realised that it was G. He told her to follow him to his house, which she did, and upon arriving there he left. If he wanted to have sex with her he would have touched her. But he did not touch her, the accused said.
DEFENCE COUNSEL'S SUBMISSIONS
23. Mr Kari submitted that the State had fallen short of proving that the accused was responsible for any of the five offences he was charged with as:
ASSESSMENT OF DEFENCE COUNSEL'S SUBMISSIONS
(1) The accused's account of what happened
24. I do not accept Mr Kari's submission that the accused's account of what happened is credible. The accused's evidence was unsworn, untested by cross-examination, vague, uncorroborated and unimpressive.
(2) Identification evidence
25. As the primary defence was that this was a case of mistaken identity it is necessary to consider the principles on identification evidence set out in the leading Supreme Court cases of John Beng v The State [1977] PNGLR 115, Biwa Geta v The State [1988-89] PNGLR 153 and Jimmy Ono v The State (2002) SC698, which I have summarised in other Kimbe cases, The State v Noutim Mausen (2005) N2870 and The State v Francis Vau Kamo (2006) N2991.
26. I have considered the inherent dangers of relying on the correctness of identification to support a conviction and caution myself, as the tribunal of fact, accordingly. If the quality of the identification evidence is good the matter should proceed to verdict. However, if the quality of the evidence is poor an acquittal should be entered unless there is other evidence that goes to support the correctness of the identification.
27. I remind myself there is always the possibility that an honest witness can be mistaken and still be a convincing witness. The court must be satisfied that the witness is both honest and accurate. In assessing the quality of the identification evidence, relevant considerations include: whether the witness is purporting to identify a person who was a stranger or someone he or she recognised; the length of time that the witness observed the accused (eg a prolonged period or a fleeting glance); the emotional state of the witness at the time of the incident; the prevailing conditions (eg was it broad daylight or at dusk or dawn or inside or outside?); the line of sight (eg did the witness have a clear front-on view or was the line of sight interrupted or did the witness just see the accused from the side?). If there are discrepancies in the identification evidence the court should consider them and assess whether they are explicable in terms other than dishonesty or unreliability.
28. Having considered the above matters I record the following relevant considerations:
(a) The three State witnesses gave clear and concise evidence. Their demeanour was sound. It was neither proven nor suggested that they had any motive for giving false evidence. They were honest witnesses.
(b) I accept that each of the State witnesses was identifying someone they knew and recognised.
(c) Though it was a traumatic series of events particularly for G and her mother, there is no evidence that they lost their composure or panicked or that anything else happened that disturbed them emotionally to the point that they were not in a position to recognise the accused.
(d) It was dark and raining, but the torchlight assisted the process of identification.
(e) Each State witness recognised the accused's voice.
29. In light of the above, I have concluded that the evidence of the three State witnesses is honest, accurate and reliable. The identification evidence is of very high quality.
SHOULD THE COMPLAINANT'S VERSION OF EVENTS BE ACCEPTED?
30. The complainant D was a very credible witness. The medical evidence is consistent with the allegation of rape. It was not seriously in dispute that she was abducted and raped.
31. The defence case was built on the proposition that though the events may have happened as described by the State witnesses, the accused was not involved. The State witnesses presumed that the accused was one of the perpetrators because of the dispute that he had with their family over something that had happened involving the Tolai boys linked with the complainant's family and the girls in the accused's family.
32. I reject the defence case outright as lacking credibility. The complainant's version of events is accepted. I find that the accused was directly involved in what happened. I will now address each of the five counts on the indictment.
COUNT 1 – ABDUCTION
33. This charge is laid under Section 220 (abduction of girl under 18 with intent to have carnal knowledge), which states:
(1) A person who, with intent that an unmarried girl under the age of 18 years may be unlawfully carnally known by any man (whether a particular man or not), takes her or causes her to be taken out of the custody or protection of her father or mother or other person having the lawful care or charge of her, and against the will of that father or mother or person, is guilty of a misdemeanour.
Penalty: Imprisonment for a term not exceeding two years.
(2) It is a defence to a charge of an offence against Subsection (1) to prove that the accused person believed, on reasonable grounds, that the girl was of or above the age of 18 years.
(3) The husband or wife of the accused person is a competent but not a compellable witness.
34. The offence consists of four elements:
35. The State has proven each of these elements beyond reasonable doubt. The accused will be found guilty.
COUNT 2 – SEXUAL ASSAULT
36. This is an offence under Section 349 (sexual assault) of the Criminal Code, which states:
(1) A person who, without a person's consent—
(a) touches, with any part of his body, the sexual parts of that other person; or
(b) compels another person to touch, with any part of his body, the sexual parts of the accused person's own body,
is guilty of a crime of sexual assault.
Penalty: Subject to Subsection (4), imprisonment for a term not exceeding five years.
(2) For the purposes of this section, "sexual parts" include the genital area, groin, buttocks or breasts of a person.
(3) For the purposes of this section, a person touches another person if he touches the other person with any part of his body or with any object manipulated by the person.
(4) Where an offence under Subsection (1) is committed in circumstances of aggravation, the accused is liable to a tern of imprisonment not exceeding 10 years.
37. The accused has been indicted under Section 349(1)(a), which means that to obtain a conviction the State must prove the three elements of the offence beyond reasonable doubt:
(The State v Ima Esiko CR No 1286 of 2004, 23.03.09.)
38. The complainant gave evidence that the accused touched her breasts in the process of dragging her away from the house but her evidence on this part of the incident was rather vague. Insufficient detail was provided by the complainant's testimony and therefore I find that the elements of this offence have not been proven beyond reasonable doubt. The accused will be found not guilty.
COUNT 3 – RAPE
39. Rape is an offence under Section 347 (definition of rape) of the Criminal Code, which states:
(1) A person who sexually penetrates a person without his [or her] consent is guilty of a crime of rape.
Penalty: Subject to Subsection (2), imprisonment for 15 years.
(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.
40. Normally, to obtain a conviction the State must prove the two elements of the offence beyond reasonable doubt:
(The State v James Yali (2005) N3014.)
41. In this case, however, it is not alleged that the accused penetrated the complainant. The allegation is that his friend penetrated her and that the accused enabled or assisted his friend and therefore the accused should be convicted under Section 7(1) (principal offenders) of the Criminal Code, which states:
When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:—
(a) every person who actually does the act or makes the omission that constitutes the offence; and
(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; and
(c) every person who aids another person in committing the offence; and
(d) any person who counsels or procures any other person to commit the offence.
42. The State relies in particular on Sections 7(1)(b) and (c). In this case therefore, the State is required to prove three things:
43. The indictment charges that the accused 'was in company with one other person', and that this is a circumstance of aggravation (see Section 349A(a)). If, in addition to the three elements outlined above, the State proves this circumstance of aggravation the accused will be guilty of aggravated rape and subject to a maximum sentence of life imprisonment. If the State proves the three elements only but not the circumstance of aggravation, he will be subject to a maximum sentence of 15 years imprisonment.
44. On the basis of the acceptance of the complainant's version of events I find that the three elements have been proven beyond reasonable doubt. The complainant was sexually penetrated by the accused's companion without her consent and the accused enabled his friend to do that by participating in the abduction of the complainant and forcing her to the cocoa plantation and assisting in removing her clothes against her will. The accused was in the company of his friend during the commission of the offence. Therefore the accused is found guilty of count 3 in the circumstances of aggravation alleged in the indictment.
COUNT 4 – RAPE
45. The complainant's evidence was that the accused went missing on the second occasion that she was raped. In these circumstances it has not been proven that the accused aided or enabled his friend to commit the offence of rape. I find the accused not guilty of count 4.
COUNT 5 – RAPE
46. The complainant's evidence was that on the third occasion, at the mountain, the accused was again present. He was standing there when his friend penetrated her without her consent. I find that the accused's presence enabled his friend to commit the offence of rape and that this amounted to assisting him to commit the offence. The accused is found guilty of count 5 for the same reasons and to the same extent he was found guilty of count 3.
VERDICT
47. The following verdict is entered in relation to the indictment presented at Kimbe on 15 October 2009 against Steven Herman Koimane:
Verdict accordingly.
___________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused
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