State v Liru (No.2) [2013] PGNC 291; N5247 (21 May 2013)

N5247

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.460 OF 2012

THE STATE

V

HERMAN LIRU (N0.2)

Kokopo: Lenalia, J
2013: 18th & 19th March, 2nd April & 21st May

CRIMINAL LAW – Sexual penetration without consent – Plea of not
guilty – Trial – Evidence – Decision on Verdict – Criminal Code s.347(2) of the Criminal Code as Amended.

CRIMINAL LAW – Evidence on trial – Record of interview contains admissions made by the accused – Consideration of all evidence both for the State and Defence – Finding of guilty to one count of rape.

Cases cited.

The State-v-Paul Kundi Rape [1976] PNGLR 96
The State v Tom Morris [1981] PNGLR 493
Paulus Pawa v The State [1981] PNGLR 498

Other cases cited:

Plomp v The Queen [1963] HCA 44; (1963) 110 C.L.R 234
Thomas v The Queen (1960) 102 584

Counsel

Mr. Kupmain, for State
Mr. G. Kerker, for Accused

21st May 2013

1. LENALIA, J: The accused pleaded not guilty to one count of aggravated rape contrary to sections 347(2) of the Criminal Code as Amended. A short trial was conducted and at the end of the prosecution case, counsel for the accused made a no case submission on the basis of the principles enunciated in The State-v-Paul Kundi Rape [1976] PNGLR 96. On 2nd April 2013, the Court found that there was a case for the accused to answer and called on the defence to give their evidence.

State's Evidence.

2. Only two witnesses were called by the prosecution. The Court accepted the evidence of Joseph Valuka the Councillor of Vunakabai Ward in Watom Island, Rabaul District and the evidence of Police First Constable Ukies Kibale gave evidence that, on 31st January 2012, he invited First Constable Paul Bonnio to corroborate him conduct the record of interview with the accused. According to this witness, during the record of interview, the accused admitted to having sexual intercourse with his wife through her anus.

Defence Evidence.

3. For the defence case, the accused gave evidence about what occurred on January 17th 2012. The accused admitted to taking his wife to the garden where he repeated questioned her about the extra marital fairs of his wife with none other than his own small brother Labur. That after questioning her, she did not give any favourable responses and as the result he assault her. He denied having sex w. ith his wife and further denied having penetrated Petra though her anus.

4. He revealed that, the reason why he took his wife to question her in the garden was because, their 21 year old daughter had come home and he did not want his children to hear about the news that their small father was having an affair with heir mother.

5. Asked in cross-examination as to what would be his age now. The accused confirmed that in January 2012, he was 59 years and this year he would have turned 60 in January. Asked as to why was it that, he being an elderly person not take up the matter with concern authorities and report the adulterous allegations with the police. The accused said, he thought, he should question his wife first. He was asked about why not relates to an incident which occurred between him and his wife.

Defence Submission on Verdict

6. For the accused, Mr. Kerker submitted that the prosecution has not proven their case according to the criminal standard of proof, namely "proof beyond reasonable doubt." He referred to the clinic book, the record of interview and other pieces of evidence on trial. Counsel submitted that because of the relationship of the accused to the victim, they are married and the court should consider the accused evidence that, the victim had extra marital affair with the younger brother of the accused and that is why he took his wife up to the garden to question her privately away from their daughter and other children.

Prosecution Submission on Verdict

7. Mr. Kupmain of counsel for the State submitted that the prosecution had established its case beyond reasonable doubt and the accused should be found guilty. The basis of this submission is based on the argument that, the accused belatedly raised a general denial and in fact, instead of filing a Notice of Voir Dire, to challenge the record of interview, the State has not been warned.

Application of Law to the Evidence

8. What inferences should this Court draw from all the evidence both for the prosecution and defence? In the circumstances of the current trial, after analyzing the evidence, I conclude that, the evidence is circumstantial in nature and I must infer from all evidence that the accused intended to commit something serious to the victim. The principles governing reception of circumstantial evidence have been stated over and over again in this jurisdiction.

9. The cases of The State-v-Tom Morris [1981] PNGLR 493 and Paulus Pawa-v-The State [1981] PNGLR 498 establish that, where there are a number of competing inferences, it is a question of fact for the trial judge to decide which and what inferences should be drawn, which should be rejected, which are reasonable, which are mere conjunctures and which party should the court believe.

10. The principles go further to say that, to enable the court to be satisfied beyond reasonable doubt of the guilt of an accused, it is necessary not only that an accused's guilt should be a rational inference but that it should be "the only rational inference that the circumstances would enable them to draw.": Plomp v The Queen [1963] HCA 44; (1963) 110 C.L.R 234, (see also Thomas v The Queen (1960) 102 584).

11. There was no reasons given by the accused as to why the police investigating officer should have written lies in the record of interview. Two witnesses were called. Only two witnesses were called. A village elder Joseph Valuka and a Councillor of Vunakabai Ward in Watom Island, Rabaul District Joseph Valuka was called as a witness. He confirmed the story of the victim telling him that, the accused had badly assaulted her on the night of 17th January 2012.

12. A part from the evidence about the assault, no evidence was given about the rape. According to Joseph, the victim, Petra Liru is his adopted daughter and this witness was questioned as to why the victim could not tell him about being raped. The witness said, in the Tolai communities, since Petra is his adopted daughter, custom prohibits revelation of such incidents or practice. This is particularly where as was on the instant case, the victim is closely related or putting that in another way, the victim is supposed to be the only person with whom the accused share intimacy with.

13. The second witness, Police First Constable Ukies Kibale gave evidence that, on 31st January 2012, he invited First Constable Paul Bonnio to corroborate him conduct the record of interview with the accused. According to this witness, during the record of interview, the accused admitted to having sexual intercourse with his wife through her anus.

14. A legitimate issue raised by Mr. Kupmain was that, why was it that, the prosecution had not been warned in terms of the rule in Browne-v-Dunn (1893) 6 ER 67. Why was it that Paraka Lawyers being a reputed law firm could not file a Notice of Voir Dire to challenge the record of interview.

14. Let the Court give this warning that if it was an oversight on the part of the lawyer dealing with this case, it borders on professional negligence as it breaches the rule of fiduciary relationship between the lawyer and his or her client. Mr. Kupmain even raised this question with the accused during cross-examination, when he asked the accused if he ever raised his defence with his lawyer and appropriately noted that, the State had not been warn in term of the rule in Browne-v-Dunn (supra). In any event, the record of interview was tendered and is evidence against the accused.

15. The evidence by the State in Exhibits "2" and "3", the record of interview in Pidgin and English translation at questions 21 to 31 in the English version (Ex. "3"). I quote those questions and their answers provided by the accused:

"Qtn. 21. It was alleged that when you assaulted your wife Petra Liru at home, she urinated and excreted herself. What have you got to say about this?

Ans. Yes, that's true.

Qtn. 22. Did you go up to the bush that time?

Ans. Yes.

Qtn. 23. What time did you reach the bush?

Ans. At around 6.00pm.

Qtn. 24. What happened when you and Petra were up in the bushes?

Ans. I asked her and she was shouting so I assaulted her there.

Qtn. 25. What were you asking her for?

Ans. I asked to fuck her arse.

Qtn. 26. It was alleged that, when you asked your wife Petra to fuck her arse hole up in the bush, she refused and you assaulted her. What have you got to say about this?

Ans. Yes, that's true.

Qtn. 27. It was alledged that when you assaulted her up in the bush, she excreted and urinated up there. What have you got to say about this?

Ans. I have no idea on that.

Qtn. 28. It was alleged that after you assaulted your wife, up in the bushes, she gave in and you sexually penetrated her arse hole. What have you got to say about this?

Ans. Yes.

Qtn. 29. Where did you release your sperm into?

Ans. I did not release my sperm.

Qtn. 30. How many time so far have you fucked your wife Petra Liru's arse hole?

Ans. That was the first time.

Qtn. 31. When did you return home that day (night)?

Ans. Around about 9.00pm."

16. What inferences should this Court draw from the evidence of the two witnesses and the quoted portion of the record of interview? Applying the principles in cases such as The State-v-Tom Morris (supra) and Paulus Pawa-v-The State (supra), I conclude that the only inference the Court can draw from all the evidence both by the prosecution and the defence is the guilt of the accused. I find the accused guilty on the charge of rape contrary to s.347(2) of the Criminal Code Amended . He is found guilty and convicted.
_____________________________________________________________
The Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Accused