State v Masaiong [2013] PGNC 271; N5239 (4 March 2013)

N5239

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 308 OF 2012

THE STATE

V

AMBROSE MASAIONG

Kokopo: Lenalia, J.
2013: 13th, 14th, 15th & 4th March

CRIMINAL LAW – Sexual Offence – One count of rape – Pleas of not guilty – Trial – Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 s.347 (1) & (2).

CRIMINAL LAW – One count of sexual penetration by insertion of finger into the victim's vagina by definition of s.6 of Criminal Code (Sexual Offences and Crimes Against Children) Act No.27 of 2002.

CRIMINAL CODE – Evidence on trial – Issue of identification – Where the issue is one of identification and recognition and recognition evidence comes from two very close relatives such evidence should be believed – Finding of guilty.

Cases cited:
Papua New Guinea cases

The State v Andrew Tovue [1981] PNGLR 8
Peter Townsend v George Oika [1981] PNGLR 12
The State v Tom Morris [1981] PNGLR 493
Paulus Pawa v The State [1981] PNGLR 498
Allan Oaka v The State [1988-89] PNGLR 131
Didei v The State [1990] PNGLR 458
Didei v The State [1990] PNGLR 458
The State v Garitau Bonu & Rossana Bonu [1996] PNGLR 48
Garitau Bonu & Rossana Bonu v The State (1997) SC 528

Other case cited:

Plomp-v-The Queen (1963) 110 C.L.R 324

Counsel

Mr. L. Rangan, for the State
Mr. T. Potoura, for the Accused

4th March, 2013

1. LENALIA, J: The accused pleaded not guilty to one count of rape laid under s.347 by definition of s.6 of the Criminal Code (Sexual Offences and Crimes Against Children) Act. The earlier section states:

"347. Definition of rape.

(1) A person who sexually penetrates a person without his

consent is guilty of a crime of rape.

Penalty: Subject to Subsection (2), imprisonment for 15

years.

2. Section 6 of the Act says:

"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 then in the course of a procedure carried out in good faith for medical or hygienic purposes."

PROSECUTION EVIDENCE

Irene Maur.

3. On this case, the victim Irene Maur was called to give evidence. Irene tells the story of what happened to her on the evening of 9th February 2012. She left the house of her auntie where she was bashed up by her mother and went to sit under a rain tree where she continued to cry. The distance estimated from her house to where she was sitting was about 500 hundred metres. While she was sitting down, a person approached her from her back and pulled on the laplap she hung around her neck and she struggled with him for some minutes.

4. While struggling, she rolled down the slippery hill because it rained earlier that evening. She estimated the time the offence was committed to be between 8 and 9 pm. After rolling down a short distance about 5 to 7 metres or even more, she landed perhaps on a flat piece of ground. The person who had struggled with her came and sat on her back and tried to remove her shorts or trouser.

5. Her evidence shows that, in the course of doing that, the person inserted his fingers into her vagina. A person by the name of Simon somehow heard them and came and stood a distance away from them and shone a torch at them. She said, it was then that she recognized the accused the second time.

6. When asked in chief about whether she identified the accused where she was sitting down under the trees. She said, she identified him as he is well known to her. A series of questions were further put to her as to how could she identify the person if he came from her back and started to hold her by her laplap causing them to struggle then they rolled down the hill. The witness contradicted her earlier story by saying that, she saw the accused approaching him. That she saw him at a distance of 2 metres. She even said, she recognized the accused because they live in the same village and the accused is like a tabu to her.

7. Sometime in the course of their struggle, the victim called out the accused's name and asked him what he wanted to do with her then called the accused name the second time. Asked if she knows the accused well, Irene said, the accused is married to her first cousin sister and they live in the same area. Their houses are close together.

8. Irene was cross-examined about how sure she was when she identified the accused. She said she identified him at two stages. First, she identified him when they were struggling. It was then that, she called the accused name and asked what the accused wanted to do to her. Then on the second time she saw the accused was when Simon Allan shone the torch at him.

9. In further questions in cross-examination, the witness said, after the person grabbed her by her neck they struggled and then she rolled down the drop to the slope. She estimated the drop to be 2 metres. It was there that the accused is supposed to have sat on her until Simon Allan shone the torch at him and he ran away. She also gave the description of the distances between her parents' house, the accused and his family and other nearby houses.

Solomon Allan.

10. Solomon Allan was the next witness. This witness confirmed that the victim's mother had belted Irene in Florence's mother's house after which she cried loudly then she ran away to the fementry where she went further down to the place where she continued crying near the cocoa or coconut fementry. He confirmed it had rained early that evening, and it was dark. He confirmed he borrowed a torch from a woman and used it to search for Irene.

11. When he heard Irene crying, in the house he came and tried to stop Irene's mother from further beating her. He tried to help out by trying his best to get the victim and her mother to settle amicably by talking over their problem. He said, his efforts were futile as the mother was very angry and furious with the victim over her careless attitude about their house.

12. He said eventually, after he had stopped his auntie (Irene's mother), he spoke to her and while they were talking, the victim ran out from the house through the back door and ran off to where she sat down when the attacker came to her. He then took a torch and proceeded to where Irene was crying in the hope to take Iren back to her house.

13. He said, as he was walking through darkness under the trees, the moon was shining, he heard the victim called the accused name. When he came to where he heard the calls, he shone the torch to where Irene was lying with her face facing the ground, he saw the accused and called out to him to stand up. After he stood up he ran down the slope. He tried to chase him but he came back and took Irene and led her to her house.

14. In cross-examination, the witness was asked about how sure was he about the identity of the accused. The witness said, he was sure that he saw the accused. It was suggested to this witness if the reason he came back to Irene was to confirm if it was true that the person who inserted his fingers into her vagina was the accused. The witness said, when he first saw the accused after he shone the torch at him, he recognized him and identified him as Ambrose. He said, after identifying the accused, he chased him away down the gulley after which other boys joined the chase and search for the perpetrator.

15. Solomon gave estimated distances between his house, that of Florence (accused's wife) and the house of Irene. Asked if the accused was present at the time he (witness) went to stop Hendriella Maur (victim's mother) from beating Irene. He said, he did not see him. Further asked if the accused was present at the time, he returned with the victim after the incident. The witness was asked by the defence counsel about how sure was she was about the identity of the accused. The same question was put to her in different ways but the victim was firm in her answers saying she recognized the accused.

Hendriella Maur.

16. Hendriella is the mother of the victim. In her evidence she said, on 9th February 2012, she came to Kokopo town with her elder daughter Veronica Maur. After being in town, when they returned back to their village at Rainau, she found out that their family house was dirty, as day before's dishes, plates and saucepans had not been washed. She got mad with Irene because she was the one who should have done household chores when she was in the house that whole day with her small brothers.

17. After she had got cross with Irene she walked out from their house to her sister's house. She named her as Jacinta. Her elder daughter (Veronica) came with her small brothers and took their mother back to their house. After they got to their house, Veronica continued with getting cross with the victim and asked her why not cook some food for dinner. Veronica was also furious with Irene.

18. Because Irene could not submit and admit to what her mother was saying, Hendriella got up and bashed Irene up. She left the house and walked through the back of her auntie's house into the darkness. She was away until Solomon Allan came back with her to the house after she had been sexually assaulted.

19. In cross-examination, the witness confirmed that, she had seen their house was not in order and expecting that food had been cooked, she became very mad at Irene. That was the reason why she belted Irene. She confirmed, she hit Irene and beat her up and the victim cried loudly. The witness confirmed the timing as from when the rain came and to when the victim was brought back to their house.

Fidelis Allan.

20. Fidelis Allan is the brother of Solomon Allan. He is doing Grade 12 at Kokopo Secondary School, here in town. This witness said, he was with the accused that night at a market stall listening to the argument between Irene and her mother. He said, he left the accused and Hendriella and went away to his house for about five minutes, and when he returned, the accused was not there.

21. He walked back to his house and when he heard commotion on Florence house, he came and on his way down he passed through the accused and his wife's house, he heard Florence asking the accused if it was true that, the accused had been with the victim down at the gulley where he sexually touch her vagina.

22. In chief the witness confirmed that before the shower of rain came, and even after it had rained, he heard the victim crying and heard there was commotion in the house where the victim was being belted as he and the accused were standing on the market stall.

23. When the accused saw Fidelis walking though their yard, he called this witness up and wanted Fidelis to confirm that, they had been down the market stall listening to the commotion going on in Florence's mother's house. Fidelis told Florence, that he (Fidelis) had left him for five minutes and when he returned, he did not find the accused. He walked passed and heard he them still arguing.

24. In cross-examination, this witness confirmed that there was light rain that night but there was also moonlight also. He was asked how long it took him to be in Kasimera's house. He said, it would have been one hour. He was asked if he could see Patricia Vanuel that evening. Fidelis said he saw her before it rained. He was asked about the mode of dressing of the accused. He answered that, he cannot properly recall if he wore a shots or a long trousers. It is not necessary to recite all questions in both examination in chief and cross-examination as many of those questions are not relevant to the issues on trial being the issues of identification and recognition.

DEFENCE EVIDENCE.

Ambrose Masaiong.

25. The accused gave evidence himself. His evidence is total denial of what happened on the night of 9th February 2012.

26. Ambrose's evidence shows that on that evening of the date in issue, he was dropped off by a company vehicle from work at Rainau village and he met Fidelis and as they were standing there, Mary and Patricia Wanare came. They all stood near the market stall listening to Irene and her mother getting cross with each other in his mother-in-laws house. It is clear from his evidence is that after Fidelis left him he still stood there on the road with Patricia Wanare and her mother Mary Wanare.

27. Then that after Mary and Patricia left him, he stood there until Patricia came back and they were on the road for twenty minutes talking. They then separated and Patricia went back to her house and the accused went to his house.

28. In cross-examination, this witness was asked a serious of questions on the timing and distances of the houses nearby his house. It was put to the accused if it was in fact he himself committed the offence then returned to his house when his wife returned from trying to assist Irene. The accused said, he went to the house and sat down in the front of their house when his wife came.

29. When asked about the time he returned to his house, the accused said, it would have been about 7.30pm. Asked if the reason why his wife got cross with him was because, he was first identified by the victim then by Allan Solomon with a torch. The accused said, he was not on the scene where the victim was sexually assaulted.

30. The witness confirmed in cross-examination that, the company vehicle dropped him at about 7 pm and when he got off he found Fidelis Allan and Mary and Patricia Wanare where they stood and heard the victim's mother getting cross with Irene then latter belted Irene up. He was asked as to how long it took him to stand on the road with those talking before he left for his house.

31. He said about 8 to 10 minutes. It was put to him, what he would say about the two prosecution witnesses, Irene Maur and Allan Solomon who both said they identified and recognized him. The accused said, it was not him and it could have been someone else.

Mary Wanare.

32. Because of the noises that were coming from the house where the victim was crying, this witness and her daughter came to the road to hear and find out what was going on. When they came to the road, the accused the company vehicle came with the accused and dropped him off. Mary said, after he was dropped off, he joined them standing on the road listening to what was being said, to Irene when her mother got cross with her then bashed her up.

33. Marry and her daughter were on the road for sometime before they left for their house. She confirmed that after they had gone back to their house, Patricia came back to the road. As to how long Patricia was on the road, Mary could not confirm.

34. In cross-examination this witness confirmed that when she was in the house, she heard noises coming from Irene's auntie's house and she came to the road to find out what was the problem. She confirmed that when they came out to the road, the rain had not yet come. While they were on the road, a shower of rain came. Mary confirmed too that, the victim was being beaten up at Florence mothers' house.
35. She confirmed the timing the arguments or Irene's mother was getting cross with her was about 7 pm. She also confirmed that when they were on the road, Fidelis Allan came and joined them.

36. She further asked about the time the rain started. She said, it may have been between 7 pm to 7. 30 pm. She also said, she left living the accused and Fidelis Allan on the road.

Patricia Wanare.

37. Patricia's evidence is much the same as that of her mother so there is no need for me to go into it in detail except for the final part of her evidence in relation to her coming back to the road after she had left her mother in their house.

38. After she had left her at their premises, she returned to the main road and found the accused still standing there. As to how long she was in their house, she did not reveal any estimated time. They stood on the road and talked for 20 minutes then they separated. Patricia walked back to her house and the defendant walked down to his house.

39. She was asked in cross-examination to confirm if that afternoon it rained. Patricia said there was a shower of rain but it did not last long. Asked about the lighting conditions she said, there was moonlight. She was asked to relate to the Court what happened that evening.

40. She told the Court that before it rained, she stood on the road with her mother, the accused and the State witness Fidelis Allan. Asked why stand on the road when it was already dark. She answered that, the reason her mother and herself came to the main road was because, Irene was being beaten by her mother and there was a lot of commotion from the house where Irene was belted up. When the rain came they disbursed. The accused and Fidelis remained on the road and her mother and this witness went back to their house.

41. After living her mother in the house she returned to the main road where she stood with the accused. She also said, by then Fidelis Allan was not there. She confirmed in cross-examination that she joined the accused and they continued to listen to what was being said by Irene's mother to Irene.

Florence Kauba.

42. Florence is the accused's wife. She comes from Rainau village, Bitapaka Local Level Government area. She is married to the accused who is from Lamusmus village in Kavieng, New Ireland Province. They have two children. Her evidence is that, because there was this argument between Irene and her mother, she came over from her house to assist in settling the pair. She then came to Steven's house where she and others stood as it was raining. This witness also guessed the time to be between 7.30 and 8 pm.

43. She stood under the house and heard witness Solomon Allan trying to stop Irene's mother from further beating up Irene. Irene's mother listened to Solomon and she left the house and walked away toward her house. Because the victim's mother had insulted Irene by teasing her saying "Irene had been gang raped at Gaulim".

44. In return, Irene got up and also insulted her mother by saying whenever "my mother goes to Papindo Shopping Centre, she takes out store goods for free from that shop because she befriended a security personal from the centre". When the mother heard this she got really mad and belted Irene then got a scraper and held it up to hit Irene. The victim got up and said, "kill me I am already tired." Hendriella then walked away after the scrapper was taken off from her.

45. Florence said after Irene had been hit, she walked out the back door of the house and walked to the bushes through to the fementry then further toward the galip nut tree where she sat down and cried under a marmar tree. It is clear from Florence evidence that, when the argument between Irene and her mother was going on there were many people around them.

46. Solomon and this witness tried to assist Irene by going after her. They followed her and according to this witness while she was on her way behind Solomon, she heard the victim called out the accused name.

47. Her evidence shows that she was with Solomon and stood a little distance behind him. She also heard Solomon called out the accused name and demanded him to stand up. When Solomon shone the torch, he saw the accused and called out the accused name.

48. When this witness heard the accused's name being called out by Solomon, she tried to assist Irene but she then came straight to their house and found the accused sitting on the verandah of their house. She started to question him if he was the one responsible for sexually assaulting Irene. The accused denied. They started to argue amongst themselves.

49. In cross-examination, this witness was asked if the accused told her if he was with Fidelis, Mary and Patricia on the road. Florence said, the accused told her he was with them on the road until the rain stopped. Asked as to why not confirm with Fidelis Allan and Mary and her daughter. The witness said, she wanted to confirm with the victim herself and Solomon.

50. Asked if she ever confirmed with Irene if she actually saw the accused on the scene. She said, she waited for some time and she wanted them to settle the problem but the next day, the matter was reported to the police station. She was asked about the lighting conditions. The witness said, though the moon was shinning, they were using a torch and in fact she herself used the light from her mobile. She further confirmed that the torch which Solomon used was not so bright.

DEFENCE SUBMISSION ON VERDICT.

51. Mr. Potoura made a lengthy address on his submission on verdict. Counsel's submission is based on the issues of identification and recognition. The defence submission is that, on the night the offence was committed, the accused was not on the scene. He pointed out that, to identify the accused at the distance of 2 metres at the time when there was no bright lights and the moon light was obscured by clouds as it had rained minutes prior to the identification was made would certainly be impossible. Counsel submitted that in this type of circumstances, the Court should be cautious about how it should treat the evidence adduced by the prosecution.

52. He referred to the evidence of the victim where she said in Court that, after she had recognized the accused he called his name twice and asked him what he was trying to do with her. Part of the defence submission also attacks evidence of Solomon Allan who came to rescue the victim from where she was crying under a marmar tree.

53. He submitted that Court should not have regard to Solomon's evidence because, when he shone the torch at the victim and saw the person sitting on her, he was already preoccupied through his knowledge with the name being of the accused being called out by Irene and it just followed that, he then called the accused's name after he shone the torch. Counsel submitted that the prosecution evidence cannot b e relied upon and their client should be acquitted of this charge.

PROSECUTION SUBMISSION ON VERDICT.

54. Mr. Rangan replied by saying that, the evidence is clear. He referred to the evidence by prosecution and that of the defence saying the description of the timing between the time the accused got off the company vehicle, the time he stood on the road with Fidelis Allan then Patricia and her mother was congested by witnesses' evidence. He asked the Court to consider parts of the prosecution witnesses saying the offence would have occurred between 7.30 and 8.30 pm.

55. Counsel asked the Court to consider the fact that, this was not a case of identification as both the victim and Solomon Allan have been living together with the accused for some time and they live in the same locality. Counsel submitted this case is one of recognition and not of identification. Mr. Rangan referred to the evidence of Solomon Allan as truthful and the defence evidence had not discredited his recollection of the events that led to the commission of this offence. Counsel submitted that this is the case where the Court will have to assess the overall evidence and decide as to whose evidence is credible.

APPLICATION OF LAW TO THE EVIDENCE.

56. The accused is charged with one count of rape by insertion of fingers into the vagina of the victim contrary to s.347 of the Criminal Code. The standard of proved in any criminal case is "proof beyond reasonable doubt". The issue on this trial is whose evidence should the court accept as credible? On this trial, the court heard evidence from the victim, her mother and other witnesses. I also heard evidence from the accused and his wife and other defence witnesses.

57. It is settled law in this jurisdiction that this Court can either accept or reject evidence by the prosecution or the defence on the basis of whether such evidence is credible or not: Paulus Pawa v The State [1981] PNGLR.498, see also Garitau Bonu & Rossana Bonu v The State (1997) SC.528 and The State v Garitau Bonu & Rossana Bonu [1996] PNGLR.48.

58. The case before this Court is one of sexual nature and I must warn myself about the evidence of the victim who was young at the time the offences were committed. The accused raised a defence of alibi saying he was not on the scene of the crime. The rule of law in relation to sexual offences is that it is unsafe to convict an accused person upon uncorroborated evidence of a prosecutrix alone unless such evidence is corroborated in some material in particular by other evidence from independent source which renders it probable that the offence charged has been committed by someone and that someone must have been the accused who committed it: Didei- v-The State [1990] PNGLR 458 see also Peter Townsend-v-George Oika [1981] PNGLR 12 and The State-v-Andrew Tovue [1981] PNGLR 8.

59. Despite the above rule, s.229H of the Criminal Code (Sexual Offences and Crimes Against Children) Act states that an accused person may be found guilty upon uncorroborated evidence of one witness. This Section states:

"229H. CORROBORATION NOT REQUIRED.

On a charge of an offence against any provision of this Division, a person may be found guilty on the uncorroborated testimony of one witness, and a Judge shall not instruct himself or herself that it is unsafe to find the accused guilty in the absence of corroboration."

60. In The State-v-Arthur Tangi (No.2) Cr.No.980 of 2011 on the decision dated 15th August 2012 this Court observed that the above proviso might be unconstitutional because it seems to tell the court what to do. However in the instant case, it is not one where there is no corroborative evidence. The evidence of the victim is very well corroborated by the first, second and third witnesses and even the last defence witness.

61. Should the Court infer the guilt or otherwise of the accused on the basis of the evidence adduced by the prosecution evidence in terms of Paulus Pawa-v-The State [1981] PNGLR.498 or the case of The State-v-Tom Morris [1981] PNGLR 493? At page 495 of that judgment, the Court there concisely stated the position in law on drawing of inferences. The court in that case said:

"When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused': Peacock v The King [1911] HCA 66; (1911) 13 C.L.R 619 at p.634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only reasonable inference that the circumstances would enable them to draw': Plomp v. The Queen (1963) 110 C.L.R 324, at p.352; see also Thomas v The Queen [1960] HCA 2; (1960) 102 C.L.R 584 at pp.605-606. However 'an inference to be reasonable must rest upon something more than mere conjecture...' ".

62. The accused raised a defence by filing an alibi notice in which he says at the time of the incident, he was not on the scene of the crime. It is not the case where he was not on the ground where the crime was committed. He was in fact present at the time there was argument between Irene and her mother. He admitted in his evidence that when he got off the company vehicle at about 7 pm, he joined up with Fidelis Solomon, Patricia Wanare and Mary Wanare on the road listening to the arguments by the victim's mother to the victim and at times the victim retaliated in answer to her mother's arguments.

63. If the Court accepts the evidence by the prosecution that, when Solomon Allan shined the torch at the accused and after recognizing him, he asked him to stand up then he stood up then ran down the hill, then the issue would be how did he make a quick escape to his house if he ran down the hill or what was referred to in the evidence as "the gulley". In order for the accused to make a quick run back to his house, he would have to get there early in time for his worried wife to arrive at their house.

64. If the Court accepts the defence version of evidence by the defence that, when Solomon Allan and Florence Kauba went to assist Irene, Florence was one or so metres away from Solomon when she heard the accused name being called out by Solomon. She then immediately went back to their house and she found the accused sitting on the front verandah of their house. It would mean the accused was not the one who committed the offence.

65. The conclusion the Court now forms on the two propositions above is that, if it was true that the accused was the one who committed the offence, there is evidence to demonstrate to the Court that, Irene Maur (victim) and recognized the accused and called his name twice before Solomon came and shone the torch to where Irene was struggling and identified and recognized the accused sitting astride the victim's back and told him to get off Irene.

66. It is safe to form that conclusion because the evidence of Patricia Wanare and her mother does not show how long Patricia was in her house before she returned to the road where she met up with the accused and they talked for 20 minutes before they separated.

67. The State's witness Fidelis Solomon's evidence of going to his house and returned to the road an hour or so later, confirms that the accused had been standing on the road for quite a while and why should he wait on the road that long when he heard there was commotion in his in-laws houses. Even after the accused and Patricia separated, there is no evidence showing how long it took for the accused to walk up to their house and sit in his house before his wife came and started to harass him about his name being called out on the scene.

68. Further the evidence of witness Fidelis Allan shows that after he had been on the road with the accused and Patricia and her mother, he left for his house and within 5 or so minutes he returned, he found that, the accused was not on the road. Where was the accused between the time Fidelis came to the road and the time Patricia came when she found the accused still standing on the road when his house was some 10 to 15 meters away.

69. There is evidence that the accused was near the scene where the offence was committed. The Court party went to visit the scene on 21st February to observe the scene and work out the distances described by the prosecution and defence cases. In the afternoon of that date, the lawyers addressed the Court on the verdict.

70. What is clear from the criminal law on practice in Papua New Guinea and other Commonwealth countries is that the Court ought not to or cannot "return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused": The State-v-Tom Morris (supra).

71. And in order for this Court to be satisfied beyond reasonable doubt about the guilt of the accused on the current trial, "it is necessary not only that his guilt should be a rational inference but that it should be the only reasonable inference that the circumstances" and the evidence on this trial would enable this Court to draw: Plomp-v-The Queen (1963) 110 C.L.R 324.

72. What inferences would this Court would draw from all the evidence both from the prosecution and the defence in terms of The State-v-Tom Morris (supra) and the Supreme Court case of Paulus Pawa-v-The State (supra). Having assessed all the evidence both for the prosecution and the defence, the only inference this Court would draw, is the guilt of the accused. As the Court finds there was an opportunity for the accused to have committed the offence and to avoid detection he ran back to the road where he stood and Patricia came and found him.

73. No evidence came from the accused as to his whereabouts when Fidelis Allan came back to the road after five or so minutes and found that the accused was not on the road. After sometime, when Fidelis passed by the accused and his family's house, he heard the accused's wife arguing about whether it was true if the accused was responsible for sexually assaulting the victim, this witness told Florence that, he was with the accused but left him and it would have been about an hour ago.

74. I am satisfied with the recognition evidence that came from the victim and witness Solomon Allan that they not only indentified but each one of them recognized the accused on the scene. The Court finds that when the accused was trying to undressed and sexually fingered Irene, it was such a very close proximity that Iren clearly recognized the accused.

75. I consider the fact that whatever time referred to in both by the prosecution and defence evidence were common guesses. As you will have noted, the time description by witness was totally congested into between 7 pm and 7.30 pm and under such circumstances, what the Court will infer is that the time given were estimated only as the offence could have been committed between 7 pm and 8 or 8.30 pm or even 9pm.

76. The Court party went to the scene and found that, with the kind of light described by the witness, he was able to fully recognize the accused. On the basis of the foregoing findings, the inference this Court will draw is that it was the accused who committed the offence. This Court returns a verdict of guilty to a charge of rape as charged. He is found guilty and therefore convicted accordingly.

____________________________________________________________
The Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Accused.