State v Omba [2010] PGNC 162; N4130 (23 August 2010)

N4130

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 1243 OF 2008

THE STATE

V

KAPIL OMBA

Minj & Mount Hagen: Makail, J
2010: 08th, 12th, 13th, 16th & 19th April & 23rd August

CRIMINAL LAW - Rape - Not guilty plea - Trial - Identification of perpetrator - Evidence of - Circumstances of identification - Recognition of perpetrator - Whether identification sound - Criminal Code, Ch 262 - Section 347.

CRIMINAL LAW - Alibi - Evidence of - Whether alibi credible - Serious inconsistencies and contradictions - False alibi - Alibi rejected - Criminal Code, Ch 262 - Section 347.

Cases cited:

Andrew Epei & Francis Ipuke (No 3): CR Nos 829 of 2008 & 1007 of 2008 (Unnumbered & Unreported Judgment of 22nd March 2010)
John Beng -v- The State [1977] PNGLR 115; (1977) SC112
Biwa Geta -v- The State [1988-89] PNGLR 153
The State -v- Kevin Mariano (2000) N1983

Counsel:

Mr J Kesan, for the State
Mr C Kos, for the Accused

VERDICT

23rd August, 2010

1. MAKAIL, J: The accused was charged with one count of rape of one Dorin Dickson in the early hours of the morning of 31st August 2007 at Kalanga village in the North Waghi District of the Western Highlands Province under section 347 of the Criminal Code, Ch 262. The accused denied the charge and a trial was conducted to determine his guilt.

BRIEF ALLEGATIONS OF FACT

2. It was alleged that on 31st August 2007, at about five o'clock in the morning, the accused and his tribesmen raided a village called Bunowou near Banz station of the Western Highlands Province. The accused and his tribesmen were armed with shot guns and bush knives. They surrounded the house in which the victim and other occupants were in and broke down the door. They went in and threatened the victim and other occupants. They forced the victim out of the house and took her to the main road. As they went further up the road, they cut her clothes with bush knives and when they were some distance away from the house, they forced her onto the ground and sexually penetrated her without her consent. It was further alleged that there were six men who sexually penetrated her and the accused was the fifth person.

STATE'S EVIDENCE

Dorin Dickson

3. To prove these allegations, the State called the victim. She was the only witness for the State and she gave evidence that she comes from Ruti village in the Dei District of the Western Highlands Province. She is presently attending Mt Hagen Park Secondary School in Mt Hagen. In 2007, she was doing Grade 9 at Waghi Valley High School. On the afternoon of 30th August 2007, she went to visit her aunt at Bunowou village. Her aunt's name is Mit Mek. She arrived at her house and they told stories until it was late. As it was late, she spent the night with her. In the house, there were three other girls.

4. At about five o'clock in the morning of 31st August 2007, men came into the house and forceful removed her. There were other men outside the house armed with shot guns and bush knives. While the men took her away, her aunt and the other girls fled. The men beat her up and took her to the main road. From there, they walked for about 2 kilometres. There were six men. Two of them held her tight while the others cut her clothes as they took her along. They took her to a place called Kalanga. At Kalanga, they forced her onto the ground and the first man laid on top of her and sexually penetrated her. He released his semen into her vagina, got up and went away. After him, the others followed. They did the same thing like the first man did. The accused was the fifth person to sexually penetrate her. He took off his clothes, laid on her and penetrated her vagina with his penis. He released his semen into her vagina. After that, he got up and went away.

5. By the time the six men had turns in raping her, it was about six o'clock in the morning as the sun was rising. They abandoned her and ran away. She was naked and distressed. She walked back to her aunt's house at Bunowou where some people saw her and clothed her. She was later taken to Kudjip hospital where she was examined. She returned to her aunt's house and reported to her that she was raped. She recognized the accused as one of the rapist because he was a popular person in the community. He was the ambulance driver of Kimil Health Centre. She knew the accused for about a year prior to the alleged rape incident as she attended school around that area. She named one of the other rapists as Michael Bob while the others, she could not tell their names as she did not know their names but could recognize them if she saw them.

6. In addition to the evidence of the victim, the State produced with the consent of the defence, the following documents:

1. Medical Report by Dr James Redcliffe of Kudjip General Hospital dated 31st August 2007, (exhibit "P1"); and

2. Record of Interview of Kapil Omba dated 01st November 2007, (exhibit "P2").

DEFENCE'S EVIDENCE

7. The defence called five witnesses. The accused was one of the five witnesses. The other four witnesses were alibi witnesses. They were:

1. Kol Mendi Kis;

2. Jones Noki;

3. Jacklyne Michael; and

4. Councilor Papel Keni.

Kapil Omba

8. The first witness was the accused. He said that he comes from Kalanga village near Kimil. He is married and has six children. He resided at Kimil Health Centre as he was employed by the Health Centre as its ambulance driver. He has been working there since 2002. It was a 24 hours paid job as it was a busy Health Centre. He recalled on 31st August 2007, around one o'clock in the morning, he was asleep in his house when he was awoken by a security guard of the Health Centre by the name of Kol Mendi Kis. Kol Mendi Kis told him that the boss of the Health Centre Jones Noki sent him to fetch him to go to a village to pick up a woman in labour. That woman's name was Jacklyne Michael.

9. He got up and went with Kol Mendi Kis to where the ambulance was parked. They got into it and drove to the village to pick up Jacklyne Michael. The village was called Nomans and was located also in the North Waghi District. The distance between Kimil Health Centre and Nomans is about 1.5 to 1.6 kilometres. They arrived at the village and picked up Jackyne Michael. She told them that since she was expecting her first baby, she did not want any complication in her delivery and told them to take her to Kudjip hospital. As per her request, he drove straight to Kudjip hospital and dropped her. A councilor by the name of Papel Keni met him and asked him if he was returning to the village so that he could get a lift with them. He agreed to give councilor Papel Keni a lift and he got on the ambulance and they drove to Kimil Health Centre.

10. They drove passed Banz station and as they approached Bunowou village, they saw many people on the road side. They also saw smoke coming from houses in the village. They stopped and councilor Papel Keni told him that he would get off as there appeared to be a big trouble in the village and he wanted to get more information. They left councilor Papel Keni and drove to Kimil Health Centre. They arrived at the Health Centre at about six o'clock in the morning. He saw hospital staff and nurses had arrived for work. He said that the distance between Kalanga village and Bunowou village is like from Minj Court house to Minj road junction. When he went into Mt Hagen town some weeks later, police in Mt Hagen arrested and charged him for raping the victim. He was placed in the police cell until granted bail and returned to Kimil Health Centre. He denied raping the victim because first, he did not know the victim. Secondly, he was not at Bunowou village at the time the victim was raped and finally, was merely a facilitator of a dispute between the people of Bunowou and people of Dei Council over an alleged killing of a man from Dei Council by men from Bunowou. The deceased was Steven Galang.

11. He said he and his line from Kalanga village were falsely accused of the crime. One of his village men by the name of Robert Kumi was also falsely accused and arrested for the same crime. The others were not arrested because they had not gone to Mt Hagen where police had been informed to keep a look out to arrest them. They were falsely accused because they failed to mediate a dispute between the Dei Council people and the Bunowou people in relation to the alleged murder of Steven Galang. It was him and his people from Kalanga who intervened and stopped a potential attack by the people from Dei Council on Bunowou village following Steven Galang's death.

12. At the mediation, the Dei Council people agreed to accept compensation comprising of pigs and cash from the Bunowou people and the Bunowou people were given a dead line to pay the compensation. His people from Kalanga also assisted the Bunowou people by contributing some pigs and he personally contributed food. He said the Bunowou people paid half of the compensation but failed to settle the balance by the dead line. They only paid 20 pigs and some cash. As a result, the Dei Council people were unhappy and raided Bunowou village in the early hours of the morning of 31st August 2007. He said he did not know how the people from Dei Council got to Bunowou village and raided it but believed they may have either used the main highway or the bush track.

Kol Mendi Kis

13. The defence second witness was Kol Mendi Kis, the security guard of Kimil Health Centre. He is from Fae tribe of the head waters of Kimil river, and has been working at Kimil Health Centre for nine years. This year, 2010, would be his tenth year. Given the nature of his job which required him to work 24 hours a day, he resided at Kimil Health Centre premises. He knew the accused because the accused was the driver of the Health Centre.

14. On 31st August 2007, around one o'clock in the morning, two boys went to the Health Centre and informed him that there was a woman in labour and needed transport assistance to the hospital. He was sure it was around one o'clock in the morning because he felt sleepy. He went to see the Officer in Charge of the Health Centre by the name of Joe to get his permission. He could not remember Joe's surname. When he told Joe, Joe told him to go, get the accused, the ambulance and pick up the woman immediately.

15. After he woke up the accused, they went to the village of the woman at Kalanga and picked her up. From Kimil Health Centre to the woman's village is like from Minj Court house to the first road intersection between Minj station and Minj road junction. The woman was Jackyne Opei. They picked her and brought her to Kimil Health Centre where Joe conducted a brief examination and directed them to take her to Kudjip hospital. As directed by Joe, they took her to Kudjip hospital. Also, as she had relatives at Kudjip, she asked them to take her there. On the way to Kudjip, they past Bunowou village and did not see any people on the road. At that time, the road condition was poor and they had to drive slowly for Jacklyne's safety.

16. When they arrived at Kudjip hospital, the duty nurses took Jacklyne away. When he and the accused were about to return to Kimil Health Centre, a councilor from Bunowou saw them and went over to them. He asked if they were returning to Kimil and if he could get a lift with them because there was no place for him to sleep at the hospital. The councilor's name was Papel. He did not know his surname. The time was around five o'clock in the morning because he saw it on a clock in the hospital. They gave him a lift. On their way, at Bunowou village, they saw houses on fire and people gathered on the road. Councilor Papel told him and the accused that there might have been a conflict at Bunowou village and asked if he could get off to find out more. He heard the accused asked bystanders about the cause of the fires, and they told him that Rolga people burnt the houses.

17. After they heard that, the accused drove on, leaving behind councilor Papel. As they drove towards Kimil Health Centre, dawn was approaching as he heard birds singing indicting that it was dawning. When they arrived at Kimil Health Centre, he saw people had gathered. He told them not to go to Bunowou as there was a conflict there. He did not know who exactly raided Bunowou village.

Jones Noki

18. The third witness for the defence is the Officer in Charge of Kimil Health Centre Jones Noki. He is also known as Joe and came from Iki village in Baiyer River District. He has been working with the Department of Health for the last ten years, three of those, at Kimil Health Centre. He knew the accused because the accused worked for Kimil Health Centre as an ambulance driver. In 2007, he was living at the premises of Kimil Health Centre.

19. On 31st August 2007, between midnight and one o'clock in the morning, he was asleep in his house when he was woken up by a security guard of the Health Centre, by the name of Kol Mendi Kis. Kol Mendi Kis told him that there was a woman in labour in a village located between Nomans and Kalanga and needed to be brought to a hospital. He was certain of the time when he was woken up because he saw it on a clock in his house. Kol Mendi Kis asked him if the woman could be picked up. He told Kol Mendi Kis to go, get the accused, the ambulance and pick her up immediately. After Kol Mendi Kis left, he went back to bed. Between six o'clock and half past six in the morning, he observed many people had gathered near the Health Centre. He went and joined them. He heard them saying that there were gun shots heard at Bunowou village earlier that morning. He also saw the accused and Kol Mendi Kis drive into the Health Centre.

20. He believed that the accused has been falsely accused of the crime because first, the accused was not only a driver for Kimil Health Centre but also the Department of Health, a State agency providing vital health services to the community. Secondly, the accused was a community leader from around the Kimil Health Centre area and has been instrumental in settling many conflicts in the community.

Jacklyne Michael

21. The fourth witness for the defence was Jacklyne Michael. She is the woman who was in labour that night. She comes from a village that had no name but is located between Kalanga and Nomans villages. She has been living in that village for the last four years as she was married to a man from that village. She is a villager. She knew the accused because the accused was an ambulance driver of Kimil Health Centre. The distance between Kimil Health Centre and her village was like from the Minj Court house to Minj road junction.

22. On 31st August 2007, sometimes past mid night, she was in labour. She was expecting her first baby. She sent two young boys to Kimil Health Centre to fetch an ambulance. Their names were Bos and Bus. They went to Kimil Health Centre and returned with the ambulance. The driver of the ambulance was the accused. There was another passenger in the ambulance by the name of Kol Mendi Kis. He was the security guard of Kimil Health Centre. Bos and Bus remained in the village while she, the accused and Kol Mendi Kis left for the hospital. The accused drove straight to Kudjip hospital as she was experiencing strong labour pains. They did not stop at Kimil Health Centre. When they arrived at Kudjip hospital, she was taken to the labour ward by the duty nurses. In the morning, she gave birth to a baby boy. She also brought the baby to the Court room when she gave evidence.

Councilor Papel Keni

23. The last witness for the defence was Councilor Papel Keni. He comes from Nomans village and is an elected councilor of Bun ward 2. Nomans village is near Bunowou village. He knew the accused because the accused was a community leader and driver of an ambulance belonging to Kimil Health Centre. He said the accused is from Kalanga village and the distance between Kalanga village and his village is like from Minj Court house to Minj road junction. There is a valley separating the two villages. He was at Kudjip hospital for three weeks attending to his ill mother. On 31st August 2007 between four o'clock and five o'clock in the morning, he came out of the ward for a break to buy betel-nut and smoke when he saw the ambulance of Kimil Health Centre at the car park. He walked up to it and saw the accused and Kol Mendi Kis. He asked them why they were at the hospital and they told him that they had brought a woman in labour. He asked them if they were returning to Kimil Health Centre and they told him that, they were. He asked if he could get a lift with them and they agreed.

24. He got on with them and they drove to Kimil Health Centre. They drove past Banz station and onto Kimil Health Centre. At Bunowou village, he saw a lot of people on the side of the road and houses on fire. He told the accused to stop as he wanted to find out what had happened. When the accused stopped, he told them that he would get off. When he got off the ambulance, he asked the people why the houses were on fire and they told him that people from Dei Council raided Bunowou village, burnt down the houses and escaped. He said the accused and Kol Mendi Kis drove on to Kimil Health Centre.

25. As a result of the raid at Bunowou village, he and other community leaders organized a meeting and gathered all the people to resolve the conflict. They also called the Dei Council people to that meeting. The accused was one of the leaders instrumental in setting up the meeting. He did not know that the accused was arrested for this crime until news reached him sometimes later and was shocked. He was shocked because the accused was a community leader and could not have possibly raped the victim and at the time of the raid, the accused was with him.

THE LAW

26. Section 347(a) of the Criminal Code, Ch 262 provides for the crime of rape as follows:

"347. Definition of rape.

A person who has carnal knowledge of a woman or girl, not being his wife -

(a) without her consent; or

(b) ............................ -

(i) ...........; or

(ii) ...........; or

(iii) ...........; or

(iv) ...........; or

(v) ...........,

is guilty of the crime of rape."

27. The elements of the offence are -

(a) a person;

(b) sexually penetrates;

(c) woman or girl;

(d) without consent.

ANALYSIS OF EVIDENCE

28. To begin with, it is not disputed that there was a raid at Bunowou village in the early hours of the morning of 31st August 2007. The victim confirmed this in her evidence when she said a group of men went to her aunt's house and broke down the door. They went inside and forcefully removed her. They took her away from Bunowou village while her aunt and the other occupants fled. The accused, Kol Mendi Kis and councilor Papel Keni also confirmed there was a raid at Bunowou village in the early hours of the morning of 31st August 2007. It is therefore the State's case that, it was during the raid that the victim was abducted and raped by the accused and five other men. The defence case is that, when the raid took place at Bunowou village, the accused was not there. He was at Kudjip hospital. He arrived at Bunowou village after the raid.

29. The two fundamental issues in this case therefore are, first, was the victim raped and if so, secondly, was the accused one of the rapists. To determine these issues, I must review the evidence of the accused and his four witnesses in relation to his alibi and also the evidence of the victim in relation to the alleged rape and the identification of the accused and decide which side's evidence should be accepted. This is dependent on which side's evidence is credible. Should the Court find the accused and his four witnesses' evidence credible, accept them as the truth and rely upon to find that the accused was at Kudjip hospital at the time of the raid at Bunowou village and alleged rape of the victim in the early hours of the morning of 31st August 2007? Or should the Court accept the victim's evidence as credible and find that the victim was raped and the accused was one of the persons who raped her.

30. To determine these questions, I must ascertain from each of the witness's evidence if it is consistent, without contradiction, logical and sensible. I must also consider if their evidence is not a recent invention, hearsay and if their demeanour is good.

31. With those matters in mind, the first observation I make in relation to the evidence of the accused, Kol Mendi Kis and councilor Papel Keni is that, their evidence in relation to the people from Dei Council raiding Bunowou village is hearsay. They said they were informed by the people on the road at Bunowou village that morning that people from Dei Council raided Bunowou village. They were not present at the time of the raid, hence did not see the people who raided the village.

32. The rule on hearsay evidence is not in doubt and I summarized it in the context of a misappropriation case in The State -v- Andrew Epei & Francis Ipuke (No 3): CR Nos 829 of 2008 & 1007 of 2008 (Unnumbered & Unreported Judgment of 22nd March 2010) in the following terms:

"Evidence is inadmissible if for example, is hearsay, unless it falls within one of the exceptions to the rule of hearsay, eg, dying declarations.

What is hearsay evidence? I am indebted to Davani, J's explanation on hearsay evidence in Jack Gopave -v- Francis Kugame & The State (2003) N2482 where her Honour after referring to a text by Aranson, Reaburn and Weinberg observed:

"Nonetheless, I will dwell on it because I find the statement is hearsay. The hearsay rule is a common law creation which prohibits witnesses in court repeating out of court statements made by others in order to establish the truth of those statements. This statement is hearsay because it is made by somebody other than the witness and its admission will have a prejudicial effect on the Plaintiff's case and would have a bearing on the ultimate result. It will not be hearsay if the maker of the statement is brought before the Court and evidence led on the statement with opportunity given to Defence Counsel for cross-examination. As stated by Aranson, Reaburn and Weinberg in their text "Litigation, Evidence and Procedure," "it is clear that the main justification put forward in support of the hearsay rule today is the fact that the maker of the court statement is not available to be cross-examined by the party opposing the reception of evidence. Cross-examination might serve to expose defects in the perception of the maker of the statement, or his veracity, or his memory, or his capacity to narrate effectively what he wishes to say." (see par. 30.04, pg 777 1979). Although both Counsel did not submit on this aspect, this is an important part of the Plaintiff's case that was not "progressed". When I say the statement may be proof of the First Defendant's negligence, I refer to the case of Ratten v R [1971] UKPC 23; [1972] AC 378 where Lord Wilberforce, giving judgement for the Privy Council, said at pg. 367;

"The mere fact that evidence of a witness includes evidence as to words spoken by another person who is not called, is no objection to its admissibility. Words spoken are facts just as much as any other action by a human being. If the speaking of the words is a relevant fact, a witness may give evidence that they were spoken. A question of hearsay only arises when the words spoken are relied on "testimonially" i.e. as establishing some fact narrated by the words. Authority is hardly needed for this proposition, but their lordships will restate what was said in the judgment of Subramaniam v Public Prosecutor [1956] 1 SLR 965, 970."

"Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made." (Underlining mine).

33. Based on the above definition of hearsay evidence, I am of the view that, the evidence of the accused, Kol Mendi Kis and councilor Papel Keni in relation to the people from Dei Council raiding Bunowou village are hearsay because they go to establish the truth of the statement, and the truth of the statement is, men from Dei Council area raided Bunowou village at that time. Their evidence to that extent is hearsay and rejected. This means, the question of who the perpetrators of the raid were remains unanswered. Who raided Bunowou village in the early hours of the morning of 31st August 2007? I shall return to deal with this question later.

34. Secondly, I find there are three serious inconsistencies or contradictions in the evidence of the accused and his four witnesses. The first is in relation to the two boys called Bos and Bus whom Jacklyne Michael sent to Kimil Health Centre to fetch the ambulance. Nowhere in the evidence of the accused did he mention them. On the other hand, Kol Mendi Kis said that these two boys went to Kimil Health Centre and told him about Jacklyne Michael's labour and need for transportation to the hospital. When Kol Mendi Kis obtained permission from the Officer in Charge of Kimil Health Centre to pick up Jacklyne Michael and he and the accused drove in the ambulance to Jacklyne Michael's village, these two boys went with them. Jacklyne Michael was the other witness who said she saw these two boys return with the accused and Kol Mendi Kis in the ambulance to pick her in the village.

35. This is the first inconsistency in these witnesses' evidence and I do not believe it is a minor omission or inadvertence on the part of the accused. It is a serious and fatal omission. This is because these boys were the ones who brought the news of a woman in labour to Kimil Health Centre and it is inconceivable that the accused forgot to mention them in his evidence.

36. The second inconsistency is the name of the village of Jacklyne Michael. The accused gave evidence that Jacklyne Michael was from Nomans village because that was the village he went with Kol Mendi Kis to pick her. When Kol Mendi Kis gave evidence, he said Jacklyne Michael was from Kalanga village. Obviously, Nomans and Kalanga are two different villages and far apart. When Jones Noki gave evidence, he said Jacklyne Michael was from a village between Nomans and Kalanga villages. When Jacklyne Michael gave evidence, she said she came from a village located between Nomans and Kalanga villages. The village had no name.

37. In my view, the conflicting evidence of these witnesses in relation to where Jacklyne Michael came from and more so, the name of her village is a serious flaw in the defence witnesses' evidence and I reject any suggestion of memory loss as reason for the conflicting evidence or inconsistency. In my view, the name of the village should still be fresh in their minds as the alleged offence occurred only 2 and half years ago. After all, all these witnesses came from villages around and near Kimil Health Centre and should have been familiar with the names of the villages and places around there.

38. As for the accused and Kol Mendi Kis, they have no reason to be mistaken about the name of the village of Jacklyne Michael because they came from that area. They have also worked and lived at Kimil Health Centre for a long time such that it is reasonable to expect them to know the names of villages and places in the area. I also reject the suggestion that Jones Noki is not familiar with the names of the villages around that part of the province because he is from Baiyer river and had not lived long enough at Kimil Health Centre to know the villages and places. I reject this submission because as an Officer in Charge of the Health Centre, it is reasonably expected that he would have been familiar with the villages' names because of his numerous acquaintances with patients and visitors of the health centre from that area. Hence, there is no reason for these witnesses to be giving conflicting evidence in relation to the name of the village of Jacklyne Michael.

39. Even if I accept the suggestion Jacklyne Michael is from a village that has no name, I would still be doubtful because it appears because there were two conflicting names of Jacklyne Michael's village, the evidence of the name has been concocted. I say this because I recall there was a break during the trial after the accused and Kol Mendi Kis gave evidence and Jones Noki and Jacklyne Michael gave evidence. I think it was a day later because the accused and Kol Mendi Kis gave evidence on 12th April and Jones Noki and Jacklyne Michael gave evidence on 13th April. It was on 13th April that Jones Noki and Jacklyne Michael said that the village had no name. The inference drawn here is that, upon realizing that the accused and Kol Mendi Kis gave conflicting names of the village of Jacklyne Michael, Jones Noki and Jacklyne Michael tried to tie these two villages (Nomans and Kalanga) together by saying that the village had no name. In so doing, they have, in my view, tainted their own evidence.

40. Furthermore, logic and common sense dictate that villages have names. Even, rivers, mountains and great oceans of the world have names. If it is accepted based on the evidence of Jones Noki and Jacklyne Michael that Jacklyne Michael's village had no name, it would defy logic and commonsense. It would mean this is the first unknown place discovered in Papua New Guinea. Yet it is not far from Kimil Health Centre and civilization. I find it hard to believe this. What this means is that, it makes these witnesses' evidence incredible and highly suspicious.

41. The third reason for me to say that there are serious inconsistencies and contradictions in the evidence of the witnesses is that, the accused and Jacklyne Michael gave evidence that after the accused and Kol Mendi Kis picked her (Jacklyne Michael) at her village, they drove directly to Kudjip hospital. They did not stop at Kimil Health Centre. On the other hand, Kol Mendi Kis said after he and the accused picked up Jacklyne Michael, they drove to Kimil Health Centre and the Officer in Charge Jones Noki briefly examined Jacklyne Michael before directing them to take her to Kudjip hospital. As for Jones Noki, in his evidence in chief, he did not mention anything about the accused and Kol Mendi Kis bringing Jacklyne Michael to Kimil Health Centre for brief examination before going to Kudjip hospital. Further, he said after Kol Mendi Kis left to get the accused to go to pick up Jacklyne Michael, he went back to bed. He did not see the two men again until between six o'clock or half past six in the morning when they drove into the Health Centre.

42. It was during cross examination by the State prosecutor that he changed his story and said that the accused and Kol Mendi Kis returned with Jacklyne Michael to the Health Centre. He also did not say if he briefly examined Jacklyne Michael. He only said because the Health Centre was undergoing a major renovation at that time, he directed the accused and Kol Mendi Kis to take Jacklyne Michael to Kudjip hospital. In re-examination by defence counsel, he tried his best to correct the inconsistency by emphasising that the accused and Kol Mendi Kis returned with Jacklyne Michael to the Health Centre and because of major renovation work at the Health Centre, he directed them to take her to Kudjip hospital. Again, this is a serious flaw in the witnesses' evidence and no matter how forceful the defence may try to convince the Court that the inconsistencies and contradictions are a result of memory loss, the Court remains unconvinced.

43. It is inconceivable that, as the person responsible for sending the accused and Kol Mendi Kis to pick Jacklyne Michael, the woman in labour, he forgot to mention their return with Jacklyne Michael to the Health Centre before heading to Kudjip hospital in his evidence in chief. It is obvious from cross examination of this witness that he concocted the evidence in relation to the accused and Kol Mendi Kis returning with Jacklyne Michael to the Health Centre in an attempt to hide the inconsistency, and in so doing, has led him to self destruction.

44. There is more truth in this observation because further on, when he tried to explain that he directed the accused and Kol Mendi Kis to take Jacklyne Michael to Kudjip hospital as the Health Centre was undergoing renovation, he ended up contradicting the evidence of Kol Mendi Kis who said that he (Jones Noki) conducted a brief examination of Jacklyne Michael before directing them to take her to Kudjip hospital. Furthermore, Kol Mendi Kis never mentioned anything about the renovation of the Health Centre as the reason for taking Jacklyne Michael to Kudjip hospital.

45. Further still, Jones Noki did not see what the accused and Kol Mendi Kis did after they left for Kudjip hospital with Jacklyne Michael. As noted above, it was between six o'clock and half past six in the morning that he saw the accused and Kol Mendi Kis drive into the Health Centre. That was about an hour after the alleged rape of the victim had just taken place. Thus, his evidence of events from about midnight of 30th August 2007 to six o'clock on 31st August 2007 is no good or of no assistance.

46. The next two observations I make are in relation to the accused's alibi. These two matters reduce the reliability of his alibi. That is whether I should believe his claim of alibi. As far as the accused's alibi is concern, there are serious doubts as to its credibility and reliability. First, in his record of interview with the police on 01st November 2007 (exhibit "P2") the accused did not mention anything about his alibi. He was asked in Q15, "Where were you on the Friday the 31st August 2007 between 4:30 am and 5:00 am?" He answered, "I was at Kimil Health Centre." While it is accepted that no adverse inference should be drawn from any omissions or silence of an accused in the record of interview, in this case, he has admitted being at Kimil Health Centre at the material time in question. In other words, he did not say he was at Kudjip hospital. Without drawing any adverse inference, there is already a doubt created in my mind as to whether his alibi is genuine.

47. Secondly, while it is acknowledged that he served notices of alibi, one filed on 31st October 2008 and the other on 30th March 2009 on the State prior to the trial in compliance with the procedural requirement in Order 4, rule 4 of the Criminal Practice Rules, 1987, it must not be ignored in the record of interview, he admitted being at Kimil Health Centre at the material time in question. In his sworn evidence, he changed his story and said that he was at Kudjip hospital at that time. To my mind, the change in his story in relation to his whereabouts at the material time in question reduces the weight of his alibi evidence.

48. The next aspect of the accused and his witnesses' evidence is their timing of the events that occurred after midnight of 30th August 2007 and early hours of the morning of 31st August 2007. They were able to give precise times as to their locations and activities as if they were conducting some kind of military operations where time was of essence. For example, Kol Mendi Kis said when he saw councilor Papel Keni at Kudjip hospital, it was about five o'clock in the morning. As for councilor Papel Keni, he said it was between four o'clock and five o'clock in the morning when he met the accused and Kol Mendi Kis at Kudjip hospital. Jones Noki said he saw the accused and Kol Mendi Kis drive into Kimil Health Centre between six o'clock and half past six in the morning. The striking aspect of their evidence in relation to the times is that, between five o'clock and six o'clock, the accused was not at Bunowou village. I find the timing of events incredible, especially when it was in the early hours of the morning. How incredible!

49. Further to that, all of them said that they were sure of the time because each of them saw it on the clocks at various locations. I find it hard to believe they were so sure of the time because it was early in the morning, and an emergency situation. It is therefore reasonable to expect not everyone would pay close attention to the time or look out for a clock or watch in such a situation. This is another reason for me to find their evidence in relation to the time incredible.

50. The next observation I wish to make is in relation to the evidence of Jones Noki and councilor Papel Keni. These two men are community leaders. One is an Officer in Charge of a Health Centre and the other, a councilor of Bun ward 2. If they were community leaders, why didn't they go to Mt Hagen police station and tell the police that the accused was innocent? They have not given evidence why they did no tell the police that the accused was innocent. Is it because they were afraid of being arrested for interfering with the police investigations? There is no such evidence before me to find so. Hence, I find there was no reason for them not telling the police that the accused was innocent. Further, I reject Jones Noki's explanation that he was busy with work and had no time to do that and councilor Papel Keni's explanation that he feared being arrested by the police for the same offence. In my view, these reasons are unsatisfactory.

51. Finally, I wish to comment on the demeanour of each witness. First, the accused; he seemed a confident witness. Perhaps it had something to do with his age as he seemed elderly with grey hair from my observation of him in the dock although, he did not give evidence in relation to his age. I also get the impression that as a community leader and a person involved in numerous public conflict resolution meetings, he has gained that confidence to speak openly and freely. He gave evidence in a chronological order. There is no reason therefore, to doubt him but when his evidence is compared with the other witnesses' evidence, this is where I find serious discrepancies, which have been lighted above which raise serious doubts as to whether he is a truthful witness.

52. As for Kol Mendi Kis, he also seemed a confident witness. But there were instances where I think he was calculative in his answers in cross examination. He did so purposely to avoid giving away the accused. As for Jones Noki, I observed him when he gave evidence and I am not impressed with him. He seemed nervous and tense at times. No evidence was led to explain why he was nervous and tense. Was it because it was his first time to appear in Court or was it because he is a shy person? In the absence of such evidence, I can only conclude he came to give evidence with an ulterior motive and that is to ensure the accused is exonerated of the charge.

53. Jacklyne Michael gave me the impression she was a truthful witness. She spoke confidently and also brought a child with her to the witness box to impress upon me that the child was the one she was pregnant with in the early hours of the morning of 31st August 2007. Again, when her evidence is considered with the others, there are serious discrepancies which make me doubt her. Turning to councilor Papel Keni, he also gave me the impression that he is a reliable witness but when his evidence is considered with the others, there are serious discrepancies in his evidence which affects the credibility of his evidence.

54. When I consider the evidence of the accused and his witnesses in the light of the above matters, I find that there are serious discrepancies in the defence case. They are so serious such that they make the evidence of each witness unreliable. I find that the evidence of alibi was fabricated in an attempt to show to the Court the accused was not at Bunowou village at the material time in question. It was a false alibi. For these reasons, I reject the accused's alibi.

55. As I have rejected the accused's alibi, this leaves the evidence of the victim that men came and abducted her at the house at about five o'clock in the morning of 31st August 2007 whilst she was asleep with her aunt and other girls. They raped her and the accused was one of them. The rejection of the accused's alibi also supports the State's case that the accused was at the scene of the alleged crime. Thus, the third issue is whether the victim was raped. Evidence of sexual penetration came from the victim. She said she was raped by a group of men in the early hours of the morning of 31st August 2007. Her evidence of being raped is also confirmed by Dr James Redcliffe. He was the doctor who examined her following the alleged rape. In his report which was admitted and marked exhibit "P1", he confirmed that the victim was raped because there was tear, swelling and blood in the vagina of the victim. I am therefore satisfied that the victim was raped.

56. The final issue is whether the accused was the offender. This raises the issue of identification of the accused. In assessing the identification evidence provided by the victim, I will apply the principles set out by the Supreme Court in John Beng -v- The State [1977] PNGLR 115; (1977) SC112 and Biwa Geta -v- The State [1988-89] PNGLR 153. 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. I accept that it is dangerous to rely on the correctness of identification where there is only one witness. I note there was no identification parade in this case but it is not necessary to have one. I am conscious of the possibility that an honest witness might be mistaken as to who they saw.

57. It has been said trial judges should warn themselves that the reliability of an identification of a person depends upon the circumstances in which the witness observed the person who he or she has identified as the accused and any one of those may possibly lead to error. For example:

* How long was the period of observation;

* In what light was it made;

* From what distance was it made;

* Was there anything about the person observed which would have impressed itself upon the witness;

* Was there any special reason for remembering the person observed;

* How long afterwards was the witness asked about the person seen; and

* How did the description then given compared with the appearance of the accused.

58. Each of these matters must be considered in every identification case. In the present case, I have taken into account, as the defence counsel emphasised, the alleged rape occurred in the early hours of the morning between five o'clock and six o'clock and it was dark. Against that, however, is the victim's evidence that there was sufficient light at dawn. That is, the light from the sun rise. Further, it is her evidence that she was identifying someone she knew. The accused said in his evidence that he did not know the victim and it may well be true since she was at that time a Grade 9 student and had not personally met her. But the victim said he was a popular figure in the local community. He was not only an ambulance driver but also a community leader. The impression given to the Court was that, the local community is a tight-knit community inhabited by people mainly from Nomans, Kalanga, Bunowou, Kimil and Banz. All the people involved in this case were from around that locality except Jones Noki. It is reasonably to be expected that they would know each other.

59. Therefore, I have no difficultly accepting the victim's evidence that she knew the accused. Although she did not describe the clothes he was wearing, she said he was familiar to her. She was identifying a person whom she had previously seen and someone who was a popular figure in the community as an ambulance driver and community leader. She, in fact recognised the accused. Therefore, it was not necessary to describe the person. She said he climbed on her, laid on her and sexually penetrated her. She was in very close proximity and there was no evidence to suggest that the accused and others were masked. All these matters make the quality of her identification evidence sound. I am satisfied therefore that the quality of her identification evidence is sound. In this respect, I find this case similar to the case of The State -v- Kevin Mariano (2000) N1983.

60. In that case, Jalina, J found the accused guilty of two counts of rape of a female between quarter to six and half past six in the morning. The accused did not dispute that the victim was raped but denied his involvement. The issue was identification of the accused. The victim was the only witness against the accused. Although the accused claimed that he was some where else when the rape took place, he did not call alibi witnesses.

61. His Honour concluded that:

"On the evidence as it stands, the issue has become one of recognition of someone known to the victim than identification of a stranger. From the evidence it is clear that it was not a fleeting glance at a stranger but recognition of a known person namely the accused over a period of approximately 30 minutes in broad daylight. She was not questioned by defence counsel on whether anyone of her assailants were wearing masks over their faces at the time she was raped. The fact that Peter Kenny who was accompanying her to the main road and her husband were not called by the prosecution to give evidence does not concern me. I consider the victim to be a witness of truth. I am convinced beyond reasonable doubt on the evidence of the victim alone that the accused was one of those who abducted her and raped her and subjected her to the indignities she has described. I accordingly find the accused Kevin Mariano guilty on both charges."

62. Further, she was not shown to have any motive to lie about who it was that she saw that morning, although it was strongly suggested to her in cross examination and in submissions by defence counsel that her father was behind the arrest and charging of the accused because the accused and other community leaders failed to round up the actual perpetrators.

63. It was also strongly suggested in cross-examination and submission by defence counsel that because the accused did not pay compensation to her, her father made a complaint to the police and he was arrested and charged for this offence. Be that as it may, I am not satisfied that these two reasons are sufficiently strong to establish that he was being maliciously prosecuted. This brings me back to the question of who raided Bunowou village on 31st August 2007. Given the fact that I have found the evidence of the accused, Kol Mendi Kis and councilor Papel Keni in relation to Dei council people raiding Bunowou village hearsay, the only reasonable inference is that, men from Kalanga raided Bunowou village. The accused and the other five men were also involved. In the process, they raped her.

CONCLUSION

64. I find the accused and five men abducted the victim from her aunt's house that morning and took her to Kalanga. Near Kalanga village, they sexually penetrated her without her consent. I find the accused was one of the rapists. He was the fifth men who sexually penetrated her by inserting his penis into her vagina. She did not consent to being sexually penetrated. After he released his semen into the victim's vagina, he got up and left. I am therefore satisfied beyond reasonable doubt the accused raped the victim in the early hours of the morning of 31st August 2007 and convict him accordingly. I will hear submissions on sentence on a date to be fixed.

Verdict: Guilty.
______________________________

Acting Public Prosecutor: Lawyers for the State
Paul Paraka Lawyers: Lawyers for the Accused