State v Koi [2014] PGNC 129; N5742 (9 September 2014)

N5742

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR.NO.828, 284 & 829 & 830 OF 2013

THE STATE

V

TOMMY KOI, JAMES SIRIP & JACOB WESLEY

Kokopo: Lenalia, J
2014: 3rd, 6th, 25th, 25th, 9th July

CRIMINAL LAW – Sexual penetration without consent – Plea of not guilty to a charge of rape – Trial – Evidence – Charge – Elements – Criminal Code s.347(2) of the Criminal Code as Amended.

CRIMINAL LAW – Evidence on trial – Prosecution evidence – Allegation by the three accused that, no interview was conducted with them – All accused denied involvement of the pack rape – No notices of voir dire nor even notices of alibi filed – Finding of guilty to each and severally.

Cases cited
Papua New Guinea cases

McCallum v Buibui [1975] PNGLR 439
The State v Ogadi Minjipa [1977] PNGLR 293
Regina v Kar Moro [1975] PNGLR 14
Peter Townsend v Goerge Oika [1981] PNGLR 12
The State v Allan Woila [1978] PNGLR 99
The State v Delga Puri and Tapri Maip [1982] PNGLR 493
The State v Robert Wer [1989] PNGLR 444
The State v Roka Pep (N0.2) [1983] PNGLR 287
The Sate v Kusap Kei Kuya [1983] PNGLR 263
John Beng-v-The State [1977] PNGLR 115
The State-v-Tom Morris [1981] PNGLR 493
The State v Leo Aiyak (1990) N799
Didei v The State (1990] PNGLR 458
Cosmos Kutau & Christopher Kutau-v-The State (2007) SC927
The State v Towes Minmin (2005) N2915)
The State v John Ave, Hubert Kuere & Mary Buku (2004) N2622
The State-v-Jacob Dugura Roy (2007) N3137
The State-v-Tobata Sebulon Martin, David Gaulim, Tony Varpin & Solomon Kilala (25.3.08) Cr. Nos. 25, 578, 1675 of 2005)
The State v Raphael Walimini (2004) N2621

Overseas cases cited

Browne v Dunn (1893) 6 ER 67
Woolmington -v- DPP [1935] AC 462

Counsel

Mr. L. Rangan, for State
Mr. P. Kaluwin, for Accused

9th July, 2014

1. LENALIA, J: The three accused are charged that, between 2nd and 3rd March 2013, they each and severally raped the victim Jane Johannes without her consent contrary to sections 347 (1) & (2) of the Criminal Code as Amended. When they were arraigned, they each and severally entered pleas of not guilty.

2. The trial commenced by the State tendering by consent the following documents which were accepted as part of the evidence for the State on this trial"

➢ Ex. "1" & "1A" the record of interview in pidgin and English translation with accused Tommy Koi.

➢ Ex. "2" & "2A" record of interview with James Sirip, Pidgin and English translation.

➢ Ex. "3" & "3A" the record of interview in pidgin and English translation with accused Jacob Wesley.

➢ Ex. "4" statement by the corroborator police constable Vavine Kelly.

➢ Ex. "5" the medical report dated 14th March 2013 and its annexure by doctor John Maku.

➢ Ex. "6" statement dated 15th April 2013 by a self-employed villager Rupen Pidik.

➢ Ex. "7" a statement dated 16th April 2013 by Francis Sirip of Manus Province, the father of accused James Sirip.

➢ Ex. "8" the statement dated the same date by the mother of accused James Sirip.

➢ Ex. "9" statement by one of the brothers of accused James Sirip also dated the same date as in Ex. "7".

➢ Ex. "10" the statement by the investigator Senior Constable Ukies Kibale dated 27th March 2013.

➢ Ex. "11" a list of amounts of compensation paid in cash and kind by sis suspects three of who are now the subjects of the instant trial.

➢ Ex. "12" the statement by the father of the victim dated 27th March 2013.

3. The prosecution evidence came mainly from the victim Jane Johannes and her boy Desmond Robin. The evidence of Jane and Robin is similar from the time they were in Rabaul town to the time Desmond was assaulted and threatened by pushing a bush-knife against his throat and was ordered to leave Ori Solomon's room.

4. Jane's evidence is that on 1st March 2013, Desmond Robin and herself were in Rabaul market until late afternoon. They could not go back to their villages because it was getting very late. They decided to go to the C.P.L compound where Desmond's father resided because he was an employee of that company. On their way, they met the accused Jacob Wesley and they all walked together until they reached Coconut Products Limited Toboi Mill gate. At the gate, they met accused Jacob's sister and her husband. They walked from there to the house of the couple where they cocked food and had their dinner.

5. After eating, Desmond suggested that, he should go and check with a boy from Duke of York by the name of Ori Solomon to see if Jane and himself could use his room for the night. Desmond went ahead and Jacob's sister later accompanied Jane to the house where Ori and others use similar to a school dormitory. After Jacob's sister left, Desmond took the victim and they went into the room where they had sex with Joan, then left her to look for his father to tell him if the victim could sleep with them in the company's house used by his father. That house is also situated in the compound premises.

6. When Desmond left, the victim said, she closed the door to the room and set down. Not long after this, two men came into the room and one of them placed a bush knife on her neck and ordered her to follow them outside. Jane protested and the accused Tommy (whom she later on in the course of her ordeal knew) punched her on her face and swore at her by saying "kan you, kirap" (you cunt, get up).

7. Jane's evidence is the man Tommy did not wear a cap and she recognized him from the beginning of her ordeal until the next morning when he was woken up from his house. As Tommy and the other accused were trying to lead the victim away, Ori Solomon came to her aid. He told Tommy and his co-accused to stop what they were doing but they swore at Ori and walked out with the victim.

8. They walked up to the company fence and Tommy jumped over the fence first. She was asked to jump over as well. She protested that she could not jump over and the man with the bush knife threatened to cut her if she did no jump over the fence. She was assisted by the man with the bush knife to jump over. Once they were outside the fence, they all walked to the main Rabaul/Kokopo road.

9. They walked passed a lot houses where there was a lot of noise of music and there were a lot of drunkards shouting and calling out here and there. They went into a kitchen hut of the last house where one of her abductors left her and accused Tommy. When they were alone, accused Tommy asked if he could have sex with her. Jane said, she was tired. Tommy then put on a condom on his penis then he pushed Jane down to the bed and sexually penetrated her.

10. After sex, Joan asked for her shorts and pants, Tommy did not give what she asked for. She sat naked on the bed until the boy who left them came with other boys and after pushing her down on to the bed, they all had their turns to sexually penetrate her one after the other. It was there that those other boys who came with the person with the bush knife all had their turns to sexually penetrate her without her consent.

11. The victim later realized that, the person who had the bush knife was James who is now the accused James Sirip. She then identified him as James who had place the knife on her neck at Ori's room.

12. It was day break and the person by the name of James told the victim that they should go further up the hill because if drunkards new that the victim was being gang raped, more men would come and rape her. They walked up the hill and into a house and James told her if they could sleep. After they entered the house, James asked Joan if they could have sex. She indicated that she had been sexually penetrated all throughout the night and she was really tired. James swore at her then sexually penetrated her.

13. After having sex, they got dressed and sat down telling stories. When they were talking, an elderly man came and asked the victim in Pidgin, "James kisim yu we na you kam" (where did James get you to here from). He then asked her to have sex and when she heard this she ran out from the house.

14. From there James took her further up to a fementry where they found Tommy. By that time it was already day break and the victim said in her evidence, she fully identified James and Tommy. In her evidence she said, Tommy was fully drunk. From there Tommy held on to her hand and they walked down through coconut trees. By this time it was dawn already and she said, she identified the man who was leading her down through the coconut plantation.

15. Tommy let her hands go and she took a lead in walking up the front. When she saw that Tommy was a little distance from her, she ran for her life until she reached the main road. In fact she did not know where she was and she looked ahead, she saw two young girls.

16. She walked towards them and asked them what the name of that village was. The girls told her that it was Ratung village, Rabaul District. The girls then lead her to their parents' house where she informed the father and mother of the girls about her ordeal. The mother of the house assisted her to have a bath, and then gave her clothes to wear. From there they went to church at Tavilo.

17. The witness was vigorously cross-examined about the identity of the three accused. She maintained her cool and said, with the accused that walked with her boy-friend along the beach road to the CPL Toboi Mill compound, her boy friend introduced the boy who walked with them and said, his friend's name was Jacob Wesley. Asked about the other two accused, the victim said, in the course of them going out from Ori Solomon's room and up to the various locations where she was packed rape, she heard the two who first abducted her call their names and when the dawn came, she fully identified them as James and Tommy.

18. The next witness was the victim's boy friend, Desmond Robin. At the time of the offence, he was a student at Woolnough Vocational School. He was studying for the certificate in welding. His evidence is much the same as that of the victim. He met up with his girl friend Joan at the Blue Sky shop in Rabaul because they had planned to meet each other there. They walked up to the back of the market where they sat down and told stories.

19. When they were sitting down there, his friend by the name of Jacob came and joined the two of them and they told stories until night came. Desmond said, he knows Jacob because, Jacob's sister is married to a man who works at CPL Toboi Mill. As they reached the gate to the CPL premises, they met Jacob's sister whose name is Raphaella and her husband Vincent. The couple took them into their house and cooked food for their dinner.

20. After eating, Desmond walked over to Ori Solomon's room and asked if he and Jane could use his room. After getting his permission, Ori gave the room key to Desmond. He came and took the victim into that room where he had sex with her. After this he came out and met Jacob Wesley and Ori Solomon who told Desmond that they were going up to the store to buy some smoke.

21. After a short while, Desmond came in back into the room and sat with Jane and told her to wait for him to go to his father to tell him that, Jane came with him and was to sleep with him (Desmond) in the room he used. As he was coming out from Ori's room, the boys whom the witness named as Tommy, Ori Solomon and James Sirip came upon him and Tommy pushed a long bush knife onto his neck and swore at him by saying "yu kaikai kan" (eat vagina).

22. Desmond then saw, James Sirip and Tommy went into the room and forcefully abducted Jane out of the room by placing that same bush knife against Jane's neck and forced her out from the room. They led her to the fence where they lifted her up and threw her out over the fence toward the main road that leads from Rabaul to Kokopo. They left Desmond wondering what he could do to assist Jane.

23. In cross-examination, this witness was asked about the issue of identification. He was asked how is it that he from Ralubang village in Kokopo District knows about the identity of the three accused. In answer, Desmond said, he knows the three accused well. In case of accused Jacob Wesley, he comes around to the CPL compound premises now and then because he comes from Malaguna No.3 village and he has a sister in the Toboi Mill premises whose husband works in the mill. According to Desmond, he knows the accused well.

24. I case of accused James Sirip and Tommy Koi, Desmond said, both accused come from Malaguna No.1 village around Rabaul town. He sees then often and at the night he was held up, although accused James Sirip wore a cap, he identified and recognized him as James Sirip. In case of accused Tommy Koi, he did not wear a cap so identifying Tommy was not a problem. The reason he gave for clearly identifying James and Tommy was because since 2012, he came to stay with this father at the CPL Toboi Mill compound and he used to see and talk to those two accused.

25. He also revealed in cross-examination that, when the boys came to the room where Jane and this witness were, James and Jacob kicked the door open and forcefully took Jane away from there to the fence and over the road to the other side. Desmond said, he fully identified the three accused when they confronted him at the door to Solomon Ori's room.

26. Next witness was Ukies Kibale. He is a Senior Constable in the Police Force attached to the Criminal Investigation Division. Through this witness, Exhibits "10" and "11" were tendered. The first one is his own statement and the second one a copy of the compensation detail payment paid by the three accused together with three others who have not been arrested.

27. In cross-examination, the defence counsel objected to the tender of Ex. "11" but the State vigorously objected to such application. In fact that was the record of compensation paid by the six men who were allegedly sexually penetrated Jane and the father of the victim served such document on the CID officers to show that the three accused had partially paid some compensation. The court accepted that document as evidence for the State.

28. On other pieces of evidence, the court has read all the records of interviews which were tendered by consent. The three defendants objected to the tender of the Records of Interviews (ROI). The reason for their objections was that the police interviewing officer made up the stories in the records of interview and he merely called them in to sign. The State Prosecutor objected to this and the court upheld the objection on the grounds that, if the three accused wanted to object to the tender of the ROIs, they could have instructed their layers to file a notice of voir dire.

29. In Exhibits "1"and "1A"), the record of interview with the accused Tommy Koi, from Malaguna No.1, he admitted to sexually penetrating the victim with two others. He named them as James Sirip and Jacob Wesley. (See Qs.15 to 18 and their answers and particularly answer to Q16.)

30. Exhibits "2" and "2A" is the ROI with accused James Sirip. He comes from Malaguna No.1 village. Although the accused denied the allegations, accused Tommy Koi revealed his name in the ROI (See Q.16 and its answer). In his case, accused James Sirip did not file a notice of voir dire. The court also accepted the ROI with this accused as part of the State's evidence. In case of accused Jacob Wesley's ROI, (Exhibits "3" and "3A"), he comes from Malaguna No.3 village.

31. This accused said in the ROI that although he was not with the other two accused at the initial stages of the pack rape, when it was getting toward day break, his co-accused woke him up from his sleep in his house on the top of the hill and told him about how they had threatened Desmond Robin and abducted the victim and pack-raped her throughout the night. Having heard this news, he then raped her in his own house.

32. Exhibit "4" is a statement by Police constable Kelly Vavena of Rabaul police station. He was the corroborator in case of all accused when Senior Constable Ukies Kibale conducted the records of interviews with the three accused. In that statement, Kelly says, the three accused were interviewed, and no threats of violence, no inducement and no promise was made to the three accused. All answered all questions freely at their own freely will.

33. Exhibit "5" is a medical report. The report was conducted 10 days after the rape incident confirmed that the hymen was no longer intact. Exhibit "6" is a statement by Rupen Pidick a self employed person from Ratung village on North Coast. The statement confirms the victim's story of how his family assisted the victim on Sunday morning on 3rd March 2013. After telling her story to Rupen and his wife, they helped the victim to wash and they took her with them to church at Tavilo.

34. Exhibit "7" is a statement from Francis Sirip, the father of accused James Sirip. In the last paragraph of that statement dated 16th April 2013, he says that when he finished work at the mill, he returned to their house and found his wife asleep in their room and his other son, Makis Sirip was in the other room. He says, the accused James Sirip was not in the room. (See Exhibits "8" and "9" are statements by the wife of Francis Sirip, Tone Sirip and their son Makis Sirip all dated 16th March 2013).

35. Exhibits "10" and "11" are a statement by the interviewing officer S/C Ukies Kibale and a list containing the names of those persons who were alleged to have been involved in the pack-rape of Jane.

36. The final Exhibit i.e. Exhibit "12" is a statement by the father of the victim Malagene Johannes. He tells the story about the distressed condition of the victim when she came home on 4th March 2013. He concludes on the final paragraph of his two page statement by referring to those persons who gave him compensation after the committee members from Tinganagalip village, Central Gazelle District had gone to Malaguna village and sought views of village elders about compensation. In case of accused Jacob Wesley, he put up an initial payment of K50.00 cash and 10 fathoms of Tolai shell money. Accused Tommy Koi put up K10.00 cash. James Sirip 20 fathoms of shell money.

37. There were three others who paid compensation but are not in court. They include, Moses Mala paid K10.00 cash and 2 fathoms of shell money. Onam Melie paid 10 fathoms of shell money. Olman John paid the highest sum of K100.00 cash. These three persons must also be arrested by police so justice should take its course. The issue is why pay compensation if they were not responsible for the crime.

Defence Evidence

Wesley Jacob

38. Accused Wesley Jacob comes from Malaguna No.3 village, Rabaul District. His evidence is that, the incident that occurred from 2nd to 3rd March 2013, he did not know anything about it. He was asked in chief as to why and when the police arrested him. He said, he did not know why he was arrested on Monday 5th March in that year. He was asked if he knew about the victim being raped. He said, he heard people talking about the rape incident later.

39. The witness said, when he was taken to the police station in Rabaul, he was placed in the cells and in the afternoon of the same date of his arrest, when police took him out from the cells, they asked him if he comes from Malaguna No.3. When he answered, "yes", he was given piece of papers to sign. He signed on each of those sheets of papers.

40. This accused denied going through any interview with the arresting officer S/C Ukies Kibale. In cross-examination, the accused denied all allegations made against him. He was asked if he read the papers before signing them. He said he did not sign. He was further asked if he ever raised the complaint about the inappropriateness of the conduct of the record of interview. He said, he did not.

41. He was asked if he ever told his lawyers about the manner in which the record of interview was conducted, so that a notice of voir dire could have been filed. He said, when he saw two female lawyers at the Public Solicitor's Office, he did not tell them because he said he would come into court and tell his story. The ROI (Ex. "3" and "3A" contains admissions made by the accused which he vehemently denied saying he never took part in raping the victim.

Tommy Koi

42. The three accused denied liability. In case of accused Tommy Koi, he testified that he never raped the victim. He got surprised when police conducted two raids one on Sunday and the other one on Monday. He was arrested on the second raid at about 2pm. He said, when he was arrested, he was taken to the office at Rabaul police station where there were five policemen including Senior Constable Ukies Kibale. While he was sitting, S/C Kibale is supposed to have given him some papers to sign after which he was arrested.

43. In cross-examination, this witness was asked about the evidence of identification given by Jane Johannes and Desmond Robin. Tommy said, he does not know both Jane and Desmond. He denied being involved on the allegation of raping the victim. He also said he does not know where accused Jacob Wesley nor does he know his village. He said, he only know Jacob when he met him at Keravat Correctional Services. He admitted he knows accused James Sirip of mixed parentage of Manus and Malaguna No.1 village. The father is from Manus.

44. Mr. Rangan read questions 12 and 15 and their answers in the ROI (Ex. "3" & "3A"). In answer to question 12 of the ROI, the accused admitted to meeting Desmond Robin and his girl friend, Jane Johannes on 2nd March 2013. In answer to question 15 in the ROI, the accused gave an account of how he met Desmond and Jane and how they this witness and Desmond asked the victim if she still wanted to go back to her home since it was getting very late.

James Sirip

45. This accused comes from Malaguna No.1 village in vicinity of Rabaul town. According to his evidence, James says that, he was apprehended on 15th April 2013. In his oral evidence, he denied knowing accused Jacob Wesley. He denied being involved in committing this offence against the victim. In chief, he said, when he was arrested and brought to the police station, he was asked to sign papers. He did not reveal what were the contents of such papers. He said no record of interview was conducted with him.

46. In cross-examination, James vehemently denied being involved on the rape. He said, he was asleep in his room with his brother Makis in their room. James also denied being interviewed by S/C Kibale. Asked about admissions he made in the ROI (see Ex. "2" and "2A" (the original and translation version). He said, he never had an interview with anyone. He was further asked about whether, he knows Desmond Robin. He said, he does not know him and he did not see him or his girl friend during the night of the incident. The record of interview contains denials only unlike the other two co-accused.

Counsels submissions

47. I had the privileged of hearing both counsels on their addresses on the verdict. Mr. Kaluwin, counsel representing the three accused submitted that there are two issues on this trial. They are first, who to believe and secondly, the issue of identification. Counsel argued that, the victim's evidence should not be believed as she contradicted herself very much in the course of her evidence. Counsel argued that, the impression created by the victim is that she knew the three accused well before the rape incident was committed. He submitted that the victim comes from Tinganagalip village on Central Gazelle while the three defendants come from Malaguna villages and it was impossible for her to identify them.

48. Part of the defence submission relate to the lighting conditions at the houses where the rape took place together with the evidence of the victim and her boy friend in Solomon Ori's room. Counsel argued that due to such inconsistencies of the victim's evidence and the issue of identification, the court should return verdicts of not guilty.

49. Mr. Kaluwin conceded that the defence did not comply with the rule in Browne v Dunn (1893) 6 ER 67 because his office was no properly instructed. Counsel also attacked the evidence on compensation detail saying how could the police know who or which persons were responsible for the gang-rape.

50. For the prosecution, Mr. Rangan replied that, here is a clear case where the three co-accused had breached the rule in Browne v Dunn and the court should not accept the defence submission that, no proper instructions were given to them by the three accused.

51. Counsel submitted that the evidence by the victim does not contradict that of her boy friend. That if the defence was up to their feet, they could have filed notice of voir dire or notices of alibi to test the credibility of the records of interviews and the policemen responsible for interviewing the three accused. As well there were no alibi notices filed.

52. On the issue of identification, counsel argued that, there is no problem with the identity of the three accused. That they were well identified by both the victim and her boy friend at Solomon Ori's room because there was light since the room is part of a dormitory type building used by workers of the Toboi Mill. Counsel asked the court to return verdicts of guilty against the three accused.

Application of Law

53. In order for the Court to be satisfied beyond reasonable doubt about the guilt of the three accused, the must weigh and review of all the evidence adduced by the prosecution and defence. In a criminal trial like the instant one where the three accused denied liability because they say they did not commit the crime of pack-rape because it happened at night and they were not on the scene and were mistakenly identified, it is difficult to ascertain the truth and the court must do the best it can to evaluate and weigh all evidence and determine whose evidence it can accept and whose it should reject: The State-v-Jacob Dugura Roy (2007) N3137, see also Woolmington -v- DPP [1935] AC 462.

54. The issue is whose version of the evidence before the court is credible whether that of the prosecution or that of the defence. This is entirely dependent on the credibility of the witness or witnesses. It is for this reason that authorities warn that extreme caution must be exercised when the judge is dealing with the issue of the lying and truthful witness: Woolmington -v- DPP [1935] AC 462.

55. On the issue of identification, I am of the opinion that, in case of the accused Jacob Wesley, the victim fully identified him from the time he was introduced to Jane at the back of the Rabaul market. Jacob accompanied Jane and Desmond on the evening of that day right to the gate to the CPL Toboi Mill compound. He is well known to Desmond. Tommy Koi, was seen through the light by the victim in the room where she was abducted. In case of accused James Sirip, the victim identified him at Ori Solomon's room and further in the house on the top of the hill under the coconut trees.

56. Witness Desmond Robin knew all the three accused and he identified them on the door to Ori's room where they used a bush knife to threaten him and took his girl friend away. On the issues of identification and recognition can it be said that identification had been established by the prosecution evidence in terms of the principles of identification stated in cases such as John Beng-v-The State [1977] PNGLR 115, The State-v-Tom Morris [1981] PNGLR 493.

57. The issue now is does the evidence prove the allegation of facts as put by the prosecution which will lead to one reasonable conclusion, that the three accused committed the offence charged. If not they are entitled to an acquittal: Paulus Pawa-v-The State [1981] PNGLR 498 and see also Devlyn David-v-The State (2006) SC881. It was stated in the two authorities above and many subsequent cases that, recognition enhances or improves the quality of identification.

58. The warning contained and developed from the above cases which have been stated and restated and followed in many authorities including The State-v-Delga Puri and Tapri Maip [1982] PNGLR 493, Cosmos Kutau & Christopher Kutau-v-The State (2007) SC927 and many more cases say that, at this stage of the trial, Judges or Magistrates, must warn themselves of the special need for caution before convicting an accused on reliance on the identification or recognition evidence adduced by the State. (See also The State-v-Wilson Mari (2011) N4395).

59. According to the rule in Browne v Dunn (1893) 6 ER 67, the defence cannot conceal its defence until the trial is in progress. The prosecution is entitled to cross-examine witnesses. Failure to do so may be held to imply acceptance of the evidence and may certainly go to the weight of the witness' evidence. The three accused alleges impropriety of how the records of interviews were conducted. Conversely if the prosecution wants the court to disbelieve a witness, such witness must be challenged by cross-examination: The State v Ogadi Minjipa [1977] PNGLR 293.

60. The three accused say, when each of them was brought to the police station in Rabaul, S/C Kibale gave them papers and asked them to sign. They denied that there was no conduct of any interviews with them.

61. The three records of interview were tendered with consent of the defence counsel. The court has accepted such documents as evidence for the State and if there were any irregularities involved in obtaining such documents, the defence could have filed Notices of Voir Dire or Notices of Alibi for the defence to challenge tender of those records of interviews. The three accused failed to do this and the court cannot accept the defence version that, the defence counsels were not appropriately instructed.

62. Under Order 4 (4) of the Criminal Practice Rules of 1987, the three accused could not come to court to adduce evidence of alibi unless 14 days notice was given to the prosecution. Such notice should contain particulars of alibi and the names of persons who would support allegations of alibi in their evidence in court: The State v Robert Wer [1989] PNGLR 444. The issue arises again, why not call witnesses to substantiate your claims of absence from the long scene during which you each took more than enough times to have sex with Jane when facial contact could not be avoided.

63. In like manner, supposing the three accused wanted to challenge the tender of the three records of interview, the practice is that they should have each filed Notices of Voir Dire. Case law authorities say that, an accused is not only required to merely make allegations about police impropriety and leave it hanging. If the policeman denies any improper conduct in cross-examination by the defence, the accused must give evidence to that effect and call evidence to substantiate such allegations: The State v Leo Aiyak (1990) N799.

64. Another issue is this is this was a pack-rape and the warning in sexual cases contained in cases like McCallum v Buibui [1975] PNGLR 439, Peter Townsend v Goerge Oika [1981] PNGLR 12 or Didei v The State (1990] PNGLR 458 and many more cases say that, if there is failure by the trial judge to warn himself/herself of the danger of accepting the evidence of the prosecutrix is sexual cases, and failure to record that warning may result in miscarriage of justice and should warrant a re-trial. I now remind myself of such warning.

65. With the above considerations in mind, I now apply the principles enunciated in the above cases to decide if this court can find the three accused guilty and enter convictions against them or not. In Devlyn David-v-The State (2006) SC881 the Supreme Court restated the Paulus Pawa-v-The State (supra) principles by saying that the question to be asked is:

"do the proven facts lead reasonably to only one conclusion – that the accused did all the things constituting the elements of the offence? If yes, the accused is guilty. If no, the accused is entitled to an acquittal."

66. To this court, it is now proven fact that there was a pack-rape conducted against the victim Jane Johannes on the night between 2nd and 3rd March 2013. This rape was carried out at the Coconut Products Limited (CPL) compound where the victim was abducted by the three accused and forcefully taken away by not only the three accused but it is possible there could be a number of other co-accused.

67. On the basis of the foregoing evidence and the discussion on the appropriate law, I must conclude that, the three accused were responsible for the pack-rape that was conducted against the victim of this case. The court also finds that, it is possible that there were more people involved on this crime who joined up the queue.

68. The standard of "proof" required of the prosecution to prove voluntariness in a voir dire trial is that of "proof beyond reasonable doubt': Regina v Kar Moro [1975] PNGLR 14 The State v Allan Woila [1978] PNGLR 99, The Sate v Kusap Kei Kuya [1983] PNGLR 263, (see also The State v Towes Minmin (2005) N2915), The State v Joanes Mesak (2005) N2853, The State v John Ave, Hubert Kuere & Mary Buku (2004) N2622 and The State v Raphael Walimini (2004) N2621).

69. In this jurisdiction and other common law jurisdictions, it has been a long standing and honoured criminal practice that, before an accused is being interviewed or questioned for purposes of obtaining statements or where a record of interview is to be conducted, the caution contained in the Judges Rules must be given to an accused and the rights pursuant to s. 42 (2) of the Constitution must be complied with. In your case, the court finds that you were each and severally given such rights.

70. The criminal process from arrest to either conviction or acquittal is entrenched both in the Constitution and legislation. Thus under sections 3 and 5 of the Arrest Act (Ch.No.339) a policeman or a member of the public is authorized to arrest a person whom they believe to be about to or has committed an offence. Once a person has been arrested, in the course of the criminal processes, the law safeguards and ensures that an accused's rights are protected.

71. The court therefore finds that, the three records of interview conducted by S/C Kibale were fairly and voluntarily obtained. On voluntariness, the law is that if the admissions made by the accused are unfairly obtained they cannot be admitted into evidence for the State and used against an accused in a criminal trial. You each did not file any notices of either alibi or voir dire. What you three did was a last minute attempt to ambush the State and put up such defences without complying with relevant procedures.

72. If the Court finds that, either the confessional statement or the records of interview were unfairly obtained, should the Court exercise its discretion to either reject or admit the three documents sought to be tendered against the three accused? In your case, I accept the three records of interviews conducted with the three of you and now treat them as evidence for the State against the three of you on what you told the police investigating officer during the time the records of interviews were conducted with you.

73. The court finds that the evidence tendered by consent particularly the record of interviews (Ex. "1" & "1A" "2" & "2A" and "3" & "3A") were properly obtained and the court further finds that, no coercion, no intimidation, and no promise was given to the three accused in return for anything.

74. The court finds the three accused guilty of pack rape under s.347 (2) of the Criminal Code (Sexual Offences and Crimes Against Children) Act. They are found guilty and convicted. The Court orders that accused James Sirip be arrested and remanded in custody. His bail money shall be refunded.
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The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused