State v Andolu [2013] PGNC 354; N5128 (20 March 2013)

N5128

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO 1007 OF 2010

THE STATE

V

ROBIN ANDOLU

Wewak: Kirriwom, J
2012: 22 & 23 November,
10 December
2013: 20 March

(NO. 2)

CRIMINAL LAW – Particular offence – Rape – Pack rape – Sexual penetration of victim – Insertion of penis and fingers into the vagina – Insertion of penis into the anus – Use of threats, physical force and violence – Gun and bush knife used to intimidate victim – Defence of alibi – Accused convicted of rape – Criminal Code, s.347(1) & (3).

Cases cited

The State v Ndrakum Pu-Uh [2005] N2949 (24/11/05)
The State v Reuben Giroro [2009] N3683 (25/6/09)

Counsel

C. Sambua, for the State
J. Malambaul, for the Accused

REASONS FOR DECISION

20th March, 2013

1. KIRRIWOM, J.: Following my interlocutory ruling on this matter on 23rd November, 2012, the matter returned before me on 12 December, 2012, this time Mr Kupmain standing in for Mr Sambua and Mr Malambaul for the accused.
   
2. Mr Kupmain concurred with the ruling of the court and applied to have the indictment presented 15th August, 2012 to be amended. He proposed the following changes to be made to the indictment:
   
   1. The word 'penis' in the charge, ie. Charge in the indictment which is Count One that the accused was arraigned for and to which he pleaded not guilty, to be deleted and substituted with the word 'fingers'.
      
   2. Charge in the indictment must include 'circumstances of aggravation' with the following additional sentence - 'And at the time the accused Robin Andolu was in the company of other persons and was armed with bush knife and a home-made gun'.
      
3. Once amended the indictment reads:
   

"ROBIN ANDOLU of Kandinge village, Ambunti, East Sepik Province stands charged that the said ROBIN ANDOLU on 23rd day of April 2010 at Makun Settlement in Wewak in Papua New Guinea, sexually penetrated Susan Misha without her consent by inserting his fingers into her vagina.

And at the time the said ROBIN ANDOLU was in the company of other persons and was armed with bush knife and a home-made gun."

4. The circumstances of aggravation being 'in the company of other persons' and 'armed with a bush knife and a home-made gun'.
   
5. Mr Kupmain submitted that amendment would not prejudice the accused in his defence because it is not material to his defence. Furthermore, the issue in the trial is one of identification and not one of sexual penetration and his defence is one of alibi.
   
6. Mr Malambaul strongly opposes the application for amendment. He argues that the indictment had already been once amended on 15 August, 2010 following defence application by motion to quash the indictment. The effect of that amendment was that only count 1 was saved when Counts 2 to 12 were dropped. He submitted that section 535 of the Criminal Code which permitted amendment to indictment only applied once to an indictment not previously amended, it is not an authority to amend indictment that has been already amended once previously.
   
7. Unfortunately, I beg to differ with Counsel's argument and reasoning in his objection to the amendment proposed on instigation by the court. That amendment counsel refers to was appropriately made to suit the circumstances of his then client Francis Kavun . It is regrettable that in trying to accommodate an accomplice's situation, a wholesale amendment was made that completely ignored other accomplices in this entire event which is that of a gang-rape of the same victim allegedly by several men including this accused, performing all sorts of sexual perversions and indignities on the victim.
   
8. The dilemma that the court was confronted with resulting in the interlocutory ruling thereby necessitating this application was this ill-conceived decision to drop all the charges from count 2 – 12 that gave me no other option when evidence in the trial was quite clear but was at variance with the charge in count one.[1] If counsel was of the view that the court was only confined to the charge in the indictment regardless of the evidence, and verdict must be delivered on that charge, the truth of the matter would be that the charge would be defective and a new trial with fresh indictment would be appropriate. This is the end result that I wanted to avoid and we have ended up here.
   
9. The objection to amendment I find unmeritorious and I dismiss it. I allow the amendment proposed by the State which is consistent with the evidence before the court and the indictment is amended to read as stated earlier.
   
10. With the charge now amended, the accused was re-arraigned on the amended charge to which he maintained his plea of not guilty, all that remains is for the court to now analyse the evidence to ascertain whether the charge is sustained by the evidence.
    
11. The State called as witness the victim Susan Misha. She was adamant in her evidence. She saw the accused who was the lead man who entered the house when her in-law in fear opened the door. The accused came in with a one meter long bush knife which he swung at the victim's in-law who ducked and he ordered him to lie on the floor.
    
12. Like scavengers rushing for raw meat the men all turned to the victim Susan Misha. She was assaulted and her trousers forcefully removed from her and one of them forcefully penetrated her anus from behind with his penis. She named this person as Justin Kavun. Francis Kavun then laid her on the floor and sat on her and forced her to suck his penis. She protested and he twisted her nose to suffocate her. While all this was happening to her she saw the accused Robin Andolu and Alison Mali were pushing their fingers into her vagina.
    
13. Francis Kavun then pulled her up and out of the house and threw her onto the ground. He pulled her into the bushes besides the house and Pitts Mali cut her ear with a bush knife. In the bushes Francis Kavun continued to rape her and told her that he was paying back for what uncle did to his wife. Pitts Mali joined them and wanted to have sex with her as well but Francis did not allow him as he had a sudden change of heart and told Pitts that they must not harm her anymore; she was a wrong woman they picked. Turning to Susan and calling her auntie he said to her that he had wronged her and it was her right to report him to the Police and he will answer for what he did to her. As her clothes were all torn and nowhere to be found, he gave her his shorts to wear and he helped her, as she could not walk, by supporting her through a bush track to an aunt's house where she was taken to the hospital. Later that morning with the help of her big brother she reported to the police station.
    
14. This is the evidence of the only State witness Susan Misha. She gave evidence of seeing people she knew before this incident. These were her own relatives, albeit not blood relatives, but they all come from the same village of Kandinge in Ambunti District but currently residing at Makun Settlement in front of Makun village situated on the other side of the Boram Airport runway. The witness insisted she recognised Robin's voice outside her house when they were banging on the door and demanding: Police, Police, open the door. She was already scared and was standing behind the back of Jawas Kakei, her in-law as the angry mob outside threatened to use the gun and tried breaking the door.
    
15. She also had her torch flashing towards the door as Jawa opened the door and Robin Andolu came in swinging his bush knife followed by others and Jawas called to him 'Tambu, its me' so he ordered him to lie on the floor.
    
16. The accused gave evidence of sleeping with Wesley Kakandi at Boram Bridge Settlement after playing cards on the night leading up to the early hours of the morning when this alleged rape took place at Makun Settlement. Distance from Boram Bridge to Makun Settlement is about one kilometre but unsafe to walk that distance at night due to 'sanguma' fear so he slept with Wesley till 7 o'clock in the morning. The accused estimated it would take two hours to walk. In reality, it should not take two hours to walk a distance of one kilometre, it could be 15 -30 minutes at most.
    
17. Robin thought police were coming to him in respect of the assault of Ian Thomas which happened in the same week prior to this incident which was in retaliation to a sex incident involving Francis Kavun's wife and Ian Thomas.
    
18. Wesley Kakandi was the alibi witness for the accused. He supported the story given by the accused. He said he owed a debt to the accused who helped him once when he was in jail. So when he learnt the next day that Robin was in police cells, he went to see him and to give him his support. According to him Robin was innocent because they slept in his house so he can't have been in Makun Settlement to be involved in this incident of pack-rape.
    
19. After analysing all the evidence, I disbelieve the alibi and reject that defence. Even if the accused slept at Boram Bridge with Wesley Kakandi, which is not true, there was sufficient time in the night for him to walk back to the settlement, which was still reachable within fifteen to twenty minutes of walking.
    
20. I believe the evidence given by Susan Misha. Although she is the only witness in the prosecution, the law does not say that her evidence or story needs to be corroborated. Corroboration is no longer an essential requirement under our law; see section 229H of the Criminal Code. I find her to be a truthful and reliable witness who gave credible evidence of the horrors of what she went through in the hands of the accused and his accomplices of which Francis Kavun has since been convicted by his own admission and plea of guilty.
    
21. There is no reason for Susan Misha to lie about Robin Andolu. Although the issue here is one of identification and that even people who have known each other for many years can sometimes make mistakes if the opportunity for making identification are not very good and that I must remind myself of the warning sounded out in John Beng v The State of the possibility of such a mistake being made in this case, I can easily rule this possibility because of a number of reasons. The accused is a self-confessed instigator and assailant/aggressor who assaulted Ian Smith, the person who allegedly had sex with Francis Kavun's wife the following day after that incident. He was performing his duty as the 'big brother' to Francis Kavun as he described himself in his relationship to Francis Kavun. They all know each other very well, come from the same village in Ambunti, live in the same settlement at Makun at Wewak, speak the same language, relate to each other either as aunt or nephew in other times or most times except this early morning of 23 June, 2010, interact with each other every day and know each other's voice. Voice identification is one possible way of connecting someone to a crime if the person making the identification has known that voice for many years because of some distinct features that can only be attributed to him. Here Susan Misha said she recognised Robin Andolu's voice as they demanded for the door to be opened and then saw him force his way into the house with a long bush knife which he swung at Jawas Kakei. She made this observation from her torch light pointing to the door as Kakei opened it to let them in and saw him from her torch light. Besides that it was already getting light outside and sun rising out of the horizon and light was penetrating through the windows of the house from which she made her observation of someone or people she knows. And she named all of them as Francis Kavun, Justin Kavun, Pitts Mali, Alisan Mali and Robin Andolu. No one told her about these men as her attackers. There was no reason given for her to lie about them. After all they are all from the same village, same settlement, same language group and have lived together all their lives and there is always this fear of customary reprisals. She is a very mature woman and knowing about their customary expectations, why would she name innocent people for nothing if they did not do anything to her knowing about the potential backlash or repercussions?
    
22. I am satisfied beyond reasonable doubt that Robin Andolu was not sleeping at Boram Bridge Settlement in the early hours of the morning of 23 June 2010, he was at Makun Settlement with Francis Kavun, Justin Kavun, Pitts Mali and Alison Mali carrying this violent crime upon the victim Susan Misha as an act of revenge for what happened to Francis Kavun's wife.
    
23. Under section 347 of the Code, use of finger or any part of a human body to penetrate a sexual organ of a human being amounts to sexual penetration. By this extended definition of what is meant by sexual penetration, Robin Andolu has committed rape on the victim Susan Misha for purposes of criminal law. Section 6 of the Criminal Code defines sexual penetration in this way:
    

"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."

24. There are cases of persons charged with sexual penetration other than by penis that have successfully returned guilty verdicts. See The State v Ndrakum Pu-Uh [2005] N2949 (24/11/05) and The State v Reuben Giroro [2009] N3683 (25/6/09).
    
25. In this case, even without amendment to the indictment, I can still find the accused guilty of rape on the evidence before me. While the State by its short-sightedness did not expressly invoke section 7 and or 8 of the Code, the evidence clearly showed pre-planned dawn raid on the victim's house, gang attack and perpetrated with extreme violence involving a group of angry men. This is not a case of the accused acting alone, he was in a group. It is nonsensical to argue that the accused can only be dealt with as acting alone because he is charged as principal and not in the terms of section 7 or 8 for those provisions to come in to play. That would be parting company with reality.
    
26. This argument limits the scope of criminal law and is becoming narrowly too technical and misses the whole thrust of the criminal law covering accessories and aiders and abettors. All these men helped each other to make it possible for one or more of them to commit this heinous crime on this innocent and helpless victim.
    
27. On the evidence before me, I am satisfied beyond reasonable doubt that the accused Robin Andolu is guilty of rape, firstly, by operation of section 7 and section 8 of the Criminal Code for aiding and abetting Francis Kavun and being part of a common plan for one or more of them to commit rape of the victim Susan Misha which was achieved vaginally by Francis Kavun by inserting his penis into her vagina without her consent, secondly, for aiding and abetting Justin Kavun and being part of the common plan for raping the victim Susan Misha anally by inserting his penis into her anus without her consent, and thirdly, as a principal offender for sexually penetrating the victim Susan Misha by inserting his fingers into the victim's vagina without her consent therefore amounting to rape.
    
28. I note however, that Justin Kavun has not been charged and none of the other perpetrators have been charged.
    
29. In all the circumstances, I find the accused Robin Andolu, guilty of rape, as charged.
    

Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Defence

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^[1] I discuss this in my interlocutory ruling commencing at paragraph 10 which led to the proposal for amendment to the indictment.