State v Panake [2010] PGNC 24; N3963 (5 March 2010)

N3963

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 86 OF 2009

THE STATE

V

DAVID PANAKE

Kokopo: Sawong, J.
2010: 15,16,17,18 February
05 March

CRIMINAL LAW – Rape – Trial – No circumstances of aggravation charged on indictment – Guilty – s347(1) Criminal Code (Sexual Offences & Crimes Against Children) Act.

CRIMINAL LAW – Rape – Trial – Identification evidence – dangers inherent – warning – relevant consideration – recognition of close relative in very close distance – rape committed in bed room – finding of guilty – s347(1).

Cases Cited

John Beng v The State [1977] PNGLR 115
Biwa Geta v The State [1988-89] PNGLR 153
Jimmy Ono v The State [2002] SC698
Micheal Monowi v The State [2009] N358

Legislation Considered

Criminal Code (Sexual Offences and Crimes Against Children) Act 2002

Counsels

L. Rangan, for the State
J. Ainui, for the Accused

5th March, 2010

1. SAWONG, J: The Accused was charged with one count of rape pursuant to s.347 (1) of the Criminal Code Act as amended. He pleaded not guilty and a trial was conducted.

2. There was no dispute that on the early morning of 27 October 2008 a man entered the bed room where the victim was fast asleep, removed her underpants and sexually penetrated her without her consent. The State’s case was that, the Accused was the person who committed the offence. The defence say that it was not the Accused but someone else. The issue therefore is one of identification.

State evidence

3. As part of the State’s case, several written statements were tendered by consent and admitted into evidence.

4. These were:

1. The Statement of the Police investigating Officer Exhibit – "S1"
   
2. The Statement of the Corroborator - "S2"
   
3. The Original Pidgin Version of the Record of Interview - "S3(a)"
   
4. The English Translation of the Record of Interview -"S4(b)"
   

5. In addition the State called three (3) witnesses who each gave sworn evidence and were each cross examined. The first witness for the prosecution, was Osila Pitil. She is the complainant in this matter. The relevant and crucial parts of her evidence are as follows. She said that on the night of 27 October 2008, she was fast asleep in her bedroom in her house at Tavui No.1 village. She covered herself with a bed sheet as she was sleeping. The bed sheet only covered her up to her chest area. Her face was not covered. She was sleeping on a mattress on the floor. She was sleeping on her back. Her legs were pointed towards the door of her bed room. The door to her bedroom was only partially closed and she hung a hurricane lamp on the door jam of the door to her bed room. The lamp was alight. As she was sleeping, she felt someone removing her under pants. She then woke up but the man pulled the bed sheet and covered her face with it. The man then sexually penetrated her vagina with his penis and ejaculated in her. During the course of the act of intercourse she struggled to free herself from the bed sheet. She eventually succeeded and she felt the head of the man. She could tell that the man had a square haircut. When she did that, the man stood up. When he stood, she manage to remove the bed sheet from her face and she recognize the Accused. He was standing just next to her foot with his back to the door facing her. She said that she recognized the Accused clearly because they are both related and the accused is not a stranger. She was also able to recognize him because of the light coming from the hurricane lamp. She stated that after the Accused left, she came out of the house and saw John Robinson. She didn’t tell him about the incident but told him to go and fetch her husband. Also, during the time of incident, the accused’s torch (Exhibit "S4") was left beside the mattress the complainant was sleeping on.

6. She stated that when her husband came to their house, she told him about the torch and the incident. She further stated that she didn’t call for help or scream because it was already midnight and people were already asleep and she was afraid and was ashamed of what had happened to her by a close relative. During cross-examination it was repeatedly put to her that the Accused did not rape her and that she was mistaken. However, she was adamant and consistently maintained her evidence that it was the Accused who raped her that night. She said that she was fast asleep and she did not permit or gave her consent to the accused to have sex with her that night.

7. The next witness was John Robin. He comes from Tavui No.1 village. He is also related to the Accused. They know each other well. His evidence was that on that particular evening as he was on his way to the video show, he came across the Accused, Noah Ikilik, Lateren and others as they were finishing a carton of beer. He joined them and they all shared some spirits. This was about 8 pm. After that they all went into the place where the video was being shown. They stayed there for a little while, but as it was hot inside, they all came outside. They all then went and stood at the main road. By this time it was going towards midnight. While they were there, Lateren wanted to go to sleep so he walked with him and left him on the road leading to his house. In the meantime, he said, the Accused and other boys were still at the main road. Upon leaving Lateren, he came back to where the Accused and other boys were at the main road and they continued telling stories. In the course of telling stories, the Accused excused himself and said he was going to sleep. The Accused then left the witness and others went away. By this time it was about one (1) o’clock or 2 o’clock in the morning as the place was quite. He further said, that while they were still there at the same place, he was surprised to see the Accused returning to where they were. He shone his torch on him and noticed that the accused had blood on his hand and dust on his body and clothes. He said he talked to the accused and the accused asked him to borrow his torch to go and look for his torch in the banana patch. The witness gave him his torch. He said the Accused then went away searching for his torch but came back without finding his torch. He said the Accused then gave him back his torch and went to his home. Thereafter he went to Osila’s house to light his smoke. When he was at Osila’s house, she called to him and asked him about her husband. He told her that he was still at Noah’s house telling stories. She told him to go and fetch him. The witness returned with the husband to the house and he left the complainant and her husband and went home.

8. In cross examination, the witness stated that the Accused was away for about 30 minutes or an hour before he returned. It was also put to him that during the drinking session, that he had borrowed the Accused’s torch, but the witness said he did not. He stated categorically that he did not borrow the Accused’s torch that night. He also stated that when the Accused left them the first time the Accused did not asked to borrow a torch from anyone of them. It was only after he (the Accused) returned that he asked to borrow the witness’ torch.

9. The next piece of evidence came from the husband of the Complainant. His name is Nelson Pitil. He too is related to the Accused. His evidence is in two parts. The first part relates to the events that occurred before the incident. He stated that on early evening of 27th October 2008, after having dinner, he was getting ready to go out, when the Accused came by, on his way to the video place. When the Accused approached the Pitil’s house he signaled with his torch that he was going, whereupon the witness told the Accused to go ahead. They had both planned earlier in the day to go and watch video. After he got ready, Nelson Pitil left his family and house and told them he was following the accused. He went to the video place but did not see the Accused there. The witness then watched the video for some time. Sometime later he saw the Accused come into the video show
area with two others. They stayed there for a short while and the Accused and the two other men walked out of the video house. The witness continued watching the video and some time later he came out and went and stayed with a man called Noah and his wife outside their house. He stayed with that couple telling stories. As they were telling stories, John Robin came and told him that his wife wanted to see him. He did not respond quickly so John Robin repeated the message to him, where upon, he left the couple and went to see his wife. Upon arriving at his house, he didn’t talk to his wife but went straight to his bed. Whilst they were in their bedroom, his wife asked him if he had come around to their house earlier that night. He told her that he did not. She then told him that the Accused had entered their house and left his torch behind and also told him of the incident. He was angry and frustrated but he did not do anything that night as he thought the Accused might not be at his house that night. However in the morning he and his wife went to the Accused’s house and questioned him about the alleged rape. The Accused kept denying his involvement, but admitted that the torch left behind was his. The Accused told Nelson Pitil that somebody had got his torch and went into their house. After that Nelson Pitil and his wife went and reported the incident to their local councilor. They then went and reported the incident to the Rabaul Police Station. He also confirm that the Accused and two other men left the video show around 12 midnight.

10. In cross examination, he confirmed that his wife told him that the Accused had raped her. Counsel for the accused attempted to destroy or shake his evidence in cross examination. In my view, his evidence was not shaken in any way at all on the crucial aspects. Although he spoke quietly, I was impressed with his evidence. In my view this was not a witness who was out to destroy someone, but was telling the Court in his own way, what had happened. I would accept his evidence as nothing but the truth.

11. In the record of interview the accused denies being involved in the commission of the crime. However there are parts of his answers which are relevant. For instance, see questions and answers 16, 17 and 22.

12. The statements of the two policemen are of no probative value at all.

Defence evidence

13. The Accused gave sworn evidence and was cross examined. He comes from Tavui No.1 village. His evidence is that on that evening his wife told him to buy sugar at a nearby store. He bought the sugar and as he was on his way back his brother Lateren called him to buy smoke. Lateren then told him to join them drink beer. There were about 5 men including the Accused who drank a carton of green can beer and 3 bottles of negrita rum. As they were drinking, Nelson and John Robin came and joined them and they all shared the drinks. As they were drinking, he put his basket next to himself. After finishing the beer, they sent John Robin to go buy some coke to mix with the spirits. John Robin went and bought three cokes and returned in a short-time.

14. They then mixed the drinks and shared it. According to him, after a while, John Robin left them and went away. They then finished their drinks and went into the house where the video was being shown. They did not stay long in there, as it was hot, so they came out. He then went home. He said he knew that his torch was inside the basket and he did not know how it ended up in the Complainant’s house. He went home and gave the sugar to his wife who made him a cup of tea and gave him some food to eat. After that they went to bed. He denies entering the Complainant’s house that night and did not rape her. He also said that he had not left the group of men and went away and came back. He also said he did not have any bruises on his hand or chest on his body or clothes. He also denied borrowing John Robin’s torch to go and look for his torch.

15. In cross examination, he confirmed that he was drunk from the alcohol he had consumed that night. He said that during the course of the drinking, on one occasion he left his basket and went to relieve himself. He further denied that the Complainant and her husband going to his house the next morning and questioning him about the incident. According to him, at the relevant and material time, when someone was having sexual intercourse with the complainant, he was fast asleep in his house with his family. He does not know how his torch ended up inside the Complainant house and next to her bed.

16. The next witness for the Accused was his wife Meli David. She too gave sworn oral evidence and was cross examined. Her evidence is fairly short. She confirmed that on that Sunday evening, she sent her husband to go and buy sugar. This was about 6 pm. She and her children bailed tea and waited for her husband to return. He returned about 10 o’clock that night. She could hear him singing as he was coming to their house. Upon arriving at the house, he gave the sugar to her. She made a cup of tea and gave it to him and then sat for a while. They then went to sleep. According to her they went to sleep around 11 pm. Then she confirmed that early the next morning Osila and Nelson fronted at their house. Osila questioned David about his torch, and David told them he did not know how it ended up in their house. They then argued about the incident and Osila and Nelson left the scene. Sometime that morning, Osila and Nelson’s relatives came to the Accused’s house and attached him and assaulted him.

17. To better understand the circumstances of where the incident occured, I decided to visit the scene. All parties attended the scene. This was done on the afternoon of 17 February 2010. Upon arriving at the Complainant’s house, I recalled the Complainant. I informed her that she was being recalled to further assist the Court and that she was still under oath, administered to her on previous occasion. I observed that the Complainant’s house is located about 6 meters away from the main road that runs through the Tavui No.1 village. It is built on short cement posts, with timber walls and corrugated roofing iron. The house is about 8.5 meters in length and about 4 meters in width. There is wooden step leading up to a verandah, which has no roof. From the verandah, there is a main door which open and leads into a living room. There are two rooms leading off the living room. As you enter the living room, one room is on your left and one to your right. The left room is the main bed room. There is a separate door leading into the main bed room. The main bed room is about 2.5 meters to 3 meters in length and about 3.5 meters wide. The door opens to the right. At the scene the Complainant gave evidence. She stated that at the time of incident that she was sleeping on a mattress on the floor. He legs were towards the bed room door, which was partly closed. She was sleeping on her back. She said that the lamp was hung on the door way, and the door was not closed completely. She stated that, after she freed her hand, and she was feeling his head, the accused quickly stood up. He stood up very close to her feet. His back was towards the door way and his face was facing her face directly. She also said that the accused left his torch on the side of the mattress she was sleeping on.

Submissions

18. Ms Ainui for the Accused submitted that the complainant was mistaken in identifying the accused. She submitted that the circumstances of identification evidence was difficult and therefore it was quite possible that she could have been mistaken. In the alternative she submitted no one sexually penetrated the Complainant.

19. She further submitted that, even if she was raped, it was not by the Accused but by another man who was seen outside the Complainant’s house some minutes after the incident.

20. Mr. Rangan submitted that the Complainant made no mistake in identifying the Accused. She recognized him clearly as she knows him well and that he is a close relative. She was not recognizing a stranger. He submitted that the quality of the identification was good and she made a positive identification. He submitted that this was not a fleeting glance of a stranger. He further submitted that the accused attempted to distance himself by raising a false alibi. This goes to assist the State case.

Decision

21. The Accused has been charged that he sexually penetrated the Complainant without her consent. The charge was laid pursuant to s. 347 (1) of the Criminal Code Act, as amended to date. Section 347 (1) reads:

"A person who sexually penetrates a person without his consent is guilty of the crime of rape...".

22. The expression "consent" has been statutorily defined. This is set out in s. 347 A of the Code. This section reads as follows:

For the purpose of this Part, "consent" means free and voluntarily agreement.

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 the 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

(d) the person submits because he is unlawfully detained; 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.

(1) 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-
  
  • (i) he did not physically resist; or
    
  • (ii) he did not sustain physical injury; or
    
  • (iii) on that or on an earlier occasion, he freely agreed to engage in another sexual act with that person or some other person.
    

23. Thus the elements of the crime of rape are:

(a) A person
(b) Sexually penetrates
(c) Another person
(d) Without consent

24. The expression "sexually penetrates" has also been statutorily defined. It is defined in s.6 of the Code, as Amended. It reads:

"6. Sexual Penetration

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".

25. I do not propose to analyze the above provisions, for the simple reason that there is no dispute that someone did sexually penetrate the Complainant without her consent. The only issue is whether the Accused is that person. Thus the issue is one of identification.

26. The law on identification or more particularly recognition is well settled in our jurisdiction. The legal principles on the law of identification are as set out in John Beng v State [1977] PNGLR 115, Biwa Geta v The State [1988-89] PNGLR 153 and many other subsequent cases, such as Jimmy Ono v The State (2002) SC 698. I remind myself of those principles.

27. In the State v Michael Monowi, (2009) N 358, Cannings, J., para phrased and summarized these principles and said; at p.2:

"... 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 and acquittal should be entered unless there is other evidence that goes to support the correctness of identification.

I remind myself (that) 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 consideration include: whether the witness is purporting to identify a person who was a stranger or someone he or she recognized; the length of time the witness observed the accused (eg a prolonged period or fleeting glance); the emotional state of the witness at the time of the incident, the prevailing conditions/eg. Was it broad daylight, or at dark or dawn or inside or outside); the line of sight (eg did the witness have a clear frontal-on view or was the line of sight interrupted or did the witness see the accused from 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. I would adopt and apply the above principles as my own in this case.

From all the evidence, I find the following facts. The accused, the complainant and her husband and John Robin all come from Tavui No. 1 village. They all know each other very well. They are all related to each other. I further find that the complainant was fast asleep on a mattress on the floor in her bedroom when a person entered her bedroom and sexually penetrated her, without her consent. I find as a fact that the person who sexually penetrated her was not her husband but someone else. I also find that the Accused person had consumed alcohol and was drunk on that night. I also find that a torch owned by the accused was left on the side of the mattress, the complainant was sleeping on in her bedroom.

29. I now consider the issue of identification evidence. The Complainant gave clear evidence of what she did and saw that night. As her underpants were being removed, she struggled, but her attacker covered her face with the bedsheet. She eventually managed to free her hands and felt the attacker’s head and hair. She realized that her attacker had a square cut hair. When she did that, her attacker stood up very close to her feet, with his back to the door. His face was directly facing her. There was ample light from a hurricane lamp which was hung just inside the door way of her bedroom which gave her good opportunity to see her attacker. She said her attacker was the Accused and none other. In my view, her observations were not made in difficult circumstances. There was nothing obstructing her views at the relevant time. She was not recognizing a stranger, but she was recognizing a well known close relative.

30. Move over; her evidence is supported by the presence of the Accused’s torch. The torch was left on the side of the mattress the Complainant was sleeping on. The Accused’s version that someone may have borrowed it was a figment of his imagination. Furthermore, I accept the evidence of John Robin of the Accused going away and returning sometime later with scratches on his hand and dust covering his clothes. No motive has been raised as to why any of the State witnesses are telling lies. I accept the evidence of the State witnesses.

31. I do not accept the Accused evidence because in my view he was not telling the truth. In so doing, he was inconsistent in some parts of his evidence. For instance in his Record of Interview he told the policeman that he and others drank white can beer. But in his sworn evidence, he said they drank green can beer. See Q & A 16. It is common knowledge and I take judicial notice that these two types of beer are quite distinct in colour, content & taste.

32. Secondly, he told the court that they finished the beer first and then drank the spirits. They then went to the video show. In oral evidence, he did not say anything about drinking further alcohol after they left the video show. Yet in his record of interview he said the opposite. See Q & A 22.

33. Further in his own evidence, he admitted being drunk that night. I therefore draw the inference that because of that he was not in a position to remember clearly what he did and did not do that. In other words, he was drunk and was affected by alcohol.

34. Moreover, I am of the view, that he has tried to distance himself because if he is convicted he faces a jail sentence. In other words he has a strong motive to distance himself.

35. Further, in his attempt to distance himself, he belatedly raised, what I consider to be a defence of alibi. No notice was given as required by O4 rule 4 of the Criminal Practice Rules. And so I give little weight to that part of his evidence. Further more, in my view, that part of his evidence, is a false alibi, which lends support to the State’s evidence. See John Jaminan v The State (No.2). More over, he did not tell the court about being assaulted by relatives of Nelson & Osila the next morning. It was his wife who told the Court. I accept that part of the wife’s evidence, but I do not accept her evidence relating to the activities on that particular night.

36. In the end, considering all the evidence, and putting together all the bits and pieces, I find that they all fall against the Accused. In other words, I am satisfied beyond reasonable doubt that it was the Accused who sexually penetrated the Complainant without her consent. I find that the Sate has proved it’s case beyond reasonable doubt.

37. I find the Accused guilty of the crime of rape and I convict him.

______________________
The Public Prosecutor:Lawyer for the State
The Public Solicitor: Lawyer for Accused