N7149
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. N0. 829 OF 2013

THE STATE

V

TOMMY KOI

Kokopo:  Susame, AJ
2018:  13, 16 &19 February, 8 March

CRIMINAL LAW - Trial- Sexual penetration with circumstances of aggravation without consent- section 342 (1)(2) Sexual Offence and Crime Against Children Act 2002.

CRIMINAL LAW -   Evidence of identification – Guiding Principles applicable in Assessment of Evidence – The need for warning of dangers Inherent in eye witness Evidence.

PRACTICE AND PROCEDURE –  Alibi defence – Requirement for notice Order 4 Rule 4 Criminal Practice Rules – Application for leave to file Notice out of time  – None compliance of O 4 r 4 and Accused Right to a fair trial - Alibi defence – Guiding    Principles Applicable in assessing Evidence – Onus is on State to proving guilt.

PRACTICE AND PROCEDURE -   Record of Interview – Whether Fabricated and should be Rejected – Fabrication of evidence – Crime of Perjury – Seriousness of allegation – the need for evidence to Substantiate allegation. 				          

Facts

The prosecutrix (to be initialed J.J.) for the first time met her boyfriend whom she had been contacting by phone in Rabaul town on 2nd March 2013. As it was getting late in the afternoon they decided to go and spend the night at the Coconut Products Limited (CPL) Compound where the boyfriend lives with his father who works for CPL. It was then dark when they arrived at the compound.  They prepared and had a meal. Thereafter both of them entered another boy’s room after seeking his permission and both had sexual intercourse. Immediately after both had had sexual intercourse two boys were later to be identified as the accused and a James Sirip arrived. The two boys threatened J.J. forcefully took her out of the room over to the fence. They all climbed over the fence and J.J. was taken away under coercion and allegedly pack-raped not only by the two boys but several other boys at various spots all through the night until day break of the next day, 3rd March 2013. 

Held:

Prosecution’s evidence on identification of the accused has weight and is reliable. No mistake has been committed in identification of the accused as one of the perpetrators in raping the prosecutrix. (Principles of law in John Beng v The State [1977] PNGLR 115 & The State v. Marety Ame Gaidi (2002) N2256, which followed Raymond Turnbull & Ors (1970) 126 C.L.R 321, 3 All ER 549 adopted and applied.

Challenge to Record of Interview on assertion of fabrication rejected in the absence of any credible evidence. Record of interview contains confessional statements and is good and reliable evidence for the prosecution.

Evidence of alibi is of less weight, unreliable and false weighed against the strength of evidence adduced by the prosecution. (Principles of law in The State v Lucas Soroken & Ors (2006) N3029 which followed John Jaminan v The State (N0.2)[1983]PNGLR318 applied.

Cases cited:
Papua New Guinea Cases

Biwa Geta v The State [1988-89] PNGLR 143,
John Beng v The State [1977] PNGLR 115	
John Jaminan v The State (N0.2) [1983] PNGLR318
Piakali v The State (2004) SC 771
State v Toropo [2015] PGNC 117; N6011
The State v Anis Noki [1993] PNGLR426
The State v Lucas Soroken & Ors (2006) N3029
The State v. Marety Ame Gaidi (2002) N2256
The State v. Natuai and Thomas Some (1982) N361
The State v Robert Wer and others [1988 -89] PNGLR 444

Overseas Cases

Raymond Turnbull & Ors (1970) 126 C.L.R 321, 3 All ER 549

Counsel:

Mr. J. L. Rangan, for the State
Ms. J. A. Ainui, for the Accused

JUDGMENT ON VERDICT

8th March, 2018

1.	SUSAME AJ: A brief background of the case is necessary. The 
accused and two of his co-accused Jacob Wesley and James Sirip had been convicted and sentenced by Kokopo National Court on the charge of sexual penetration under s 347 (1)(2) of the Criminal Code Ch. 262 around mid-August 2014. The three of them appealed against their conviction. They succeeded in their appeal and the Appellate Court set aside the conviction and sentence and ordered re-trial of the case in the trial court but before another Judge. The other two co-accused have not been located and are still at large while this particular accused was located by police, rearrested and taken into custody. Copies of same committal file used in the earlier proceedings were used in this proceeding. A fresh indictment was filed in court by the Public Prosecutor on 14th February 2018, charging the accused for the same offence.  Hence, this proceeding.

2.	 The fresh indictment alleges facts with circumstances of aggravation that between 2nd and 3rd of March 2013 at CPL Compound and Malaguna 1 Ward the accused sexually penetrated J.J. without her consent by inserting his penis into her vagina and at the time of commission of the offence the accused was in company of others and that the accused had used a bush knife and restrained her. 

LAW ON RAPE

3.	  Section 347 DEFINITION OF RAPE states:

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) Where an offence under Subsection (1) is committed in circumstances of aggravation, the accused is liable, subject to Section 19, to imprisonment for life.

Section 349A which is the interpretation provision defines “circumstances of aggravation” states:

For the purposes of this Division circumstances of aggravation include, but not limited to, circumstances where—
the accused person is in the company of another person or persons; or
at the time of, or immediately before or after the commission of the offence, the accused person uses or threatens to use a weapon; or
at the time of, or immediately before or after the commission of the offence, the accused person tortures or causes grievous bodily harm to the complainant; or
the accused person confines or restrains the complainant before or after the commission of the offence; or
the accused person, in committing the offence, abuses a position of trust, authority or dependency; or
the accused is a member of the same family or clan as the complainant; or
the complainant has a serious physical or mental disability; or
the complainant was pregnant at the time of the offence; or
the accused was knowingly infected by Human Immunodeficiency Virus (HIV) or knowingly had Acquired Immune Deficiency Syndrome (AIDS).

UNCONTESTED EVIDENCE

4.	The uncontested evidence the court finds are these. J.J and Desmond 
Robin were phone friends. They had contacted each other by phone and met for the first time at a particular shop called ‘Blue Sky’ Rabaul town at about 1:00pm on 2nd March 2013 for J.J to get a memory card Desmond had promised her. Desmond told her he had given away the memory card to another boy. They walked over to the back of Rabaul Market chatting for some time when Jacob Wesley (one of the co-accused) who also lives at CPL compound joined them. Three of them continued chatting till night. Desmond invited J.J to spend the night with him at CPL compound where he lives with his father who works for CPL. Three of them started walking to CPL compound when they met Jacob’s sister and her husband at the CPL compound gate. After having their meal Desmond arranged with a boy named Solomon Ori from Duke of York Island to use his room. With his permission both entered the room and had sexual intercourse. 

5.	Events following after both had had sexual intercourse leading up to 
the accused’s arrest are being contested and matters for the court’s deliberations. 
	
EVIDENCE FOR THE PROSECUTION

6.	For the State evidence came from testimonies of the following 
witnesses:
i.	J.J (the prosecutrix)
ii.	Desmond Robin, J.Js boyfriend
iii.	Senior Constable Ukies Kibale, the investigator and arresting officer 

7.	 State also relies on the following documentary evidence:

iv.	Medical Report dated 14th March 2013 marked exhibit “A” tendered into evidence by consent,   

v.	Affidavit dated 15th March 2013 marked exhibit “B” by Doctor John Maku based at Nonga Base Hospital and who examined J.J also tendered into evidence by Consent.

vi.	Record of Interview (Pidgin version) marked exhibit “C”

vii.	Record of Interview (translated English version) marked exhibit “D”

viii.	Typed record of list of items paid as compensation marked exhibit “E”

ix.	Arresting Officer’s statement of his investigation dated 27th February 2013 marked  exhibit “F”

EVIDENCE FOR THE DEFENCE
 
8.   Defence relies on accused’s oral testimony. No other witnesses were 
called to give evidence.

9.   Accused denied outright being involved in the alleged pack rape. In 
his defence he raised an alibi.  He relied on his own oral testimony. No witnesses were called. This is his story as understood by the court. 

 10.  At the material time the alleged rape was committed he had gone to Tavui No.1 village on a Thursday before 2nd March 2013.  He stayed there for two weeks and returned to his village on Saturday 13th April 2013. Never at any time not even when he returned to his village from Tavui No1. Village accused heard of the rape incident. 
	
11.   He said police conducted a raid at CPL compound and the village at 10.00pm on Sunday 14th April following a list of names of suspects they had. His name was not on that list. During that raid police rounded up some suspects and took them to Kokopo Police Station cells because Rabaul Police Station cells were full. 

12.   On Monday 15th about 12 midday police conducted another raid during which he was picked up. Police locked him up in Rabaul Police Station cell at 3:00pm. Accused went on to state he was taken into the police station alone and not with the other co-accused.  He said he does not know them either. He was taken out for questioning but never questioned by the arresting officer. He was with the arresting officer and 4 other policemen for 29 minutes.  No list of suspects were shown to him.  No interview was ever conducted by the arresting officer. The arresting officer just took out 4 pages of pre-prepared record of interview and told the accused to sign them without even explaining to him what the papers were for. The accused was told by the arresting officer to go stay at Kokopo where he was taken to by the 4 policemen and locked up at the police station cell. Accused also denied paying a sum of K10.00 and other items as compensation to J.Js father as an out of court settlement from criminal prosecution. 

13.   Accused said he does not know J.J. and never seen her before. He said he does not even know her boyfriend.  Never had any associations with him.  They never share water, tobacco or other things. He said he does not come around CPL compound because the place is guarded by company security guards. 

ISSUE

14.   The accused has denied sexually penetrating J.J in the circumstances alleged. In his defence he raised an alibi. It was argued he was mistakenly identified as one of the suspects because at the material place, date and time the alleged rape was committed he was not present and had gone to Tavui No.1 village. Secondly it was argued the entire story of the alleged rape was an invention. Hence the issue for consideration is: Whether accused was present at the material time and participated in the alleged rape of the prosecutrix?

ARGUMENTS

15.   Ms. Ainui of counsel for the accused raised three arguments. First accused was mistakenly identified as one of the attackers. Complainant has never met or seen him before. She argued there was no lighting outside where complainant was repeatedly raped. How could she form a clear judgment after being repeatedly raped for hours until daybreak? Ms. Ainui submitted complainant did not have the opportunity to clearly identify her attackers. She argued it was not a case of recognition.  In support of this leg of argument she cited John Beng v The State [1977] PNGLR 115, followed in The State v. Natuai and Thomas Some (1982) N361.  

16.   Second argument was against the conduct of police investigation, arrest of the accused and record of interview. Ms. Ainui argued the admissions in the record of interview were fabricated by the arresting officer for the following reasons. Admissions in the record of interview were already prepared prior to the accused been brought to Rabaul Police Station. Police did not search for the accused because they never had the names until he was brought in on 15 April 2013. The police had a whole month of investigation and the names of the suspects yet they never went out in search to arrest the accused. Accused was in the CID office for only 29 minutes, and he signed the papers and was brought to Kokopo Police Station. This goes to show that the record of interview was already prepared and accused was made to sign it.

17.   The third argument Ms. Ainui forcefully argued is that there are serious inconsistencies and contradictions of the evidence by the two State witnesses, J.J and Desmond. And that court should place less weight on the evidence. Counsel argued complainant had opportunities available for her to escape but chose not to. She also had the opportunity to report but she chose not to. This goes to show that the two State witnesses are not being truthful and court should not believe their story. Complainant and Desmond had to cover up their night out so complainant’s father will not beat her up as she was in Grade 8 and not to have boyfriends. 

18.   Ms. Ainui argued further the complainant was a willing participant in all these allege rape incidents because the opportunities were there for her to escape but she decided not to and willingly remained and engaged in the acts of sexual intercourse. The implication of this argument as I perceive is that J.J. had willingly participated in the group sex activity or consented to being sexually penetrated by a group of drunkard boys because she had every opportunity to report or escape but decided not to.

19.   Mr. Rangan prosecuting the case filed a 19 page submission. In his submission amongst other things he discussed the law on circumstantial evidence, principles of identification evidence and principles on alibi defence. In support he made reference to various case authorities in his discussions of the principles listed above. Let me state at the outset that State’s case does not rest on circumstantial evidence. Rather on direct evidence of eye witnesses’ account of what had happened. As such discussion of principles governing circumstantial evidence was irrelevant and unnecessary. However, his discussions on the issue of identification evidence and alibi evidence are more relevant to the main issues in this case. 

20.   In his discussion on the issue of how the court should treat identification evidence Mr. Rangan made reference to the following case: Jimmy Ono v The State SCR N0. 7 of 2002 SC698, John Beng v The State[1977] PLNGLR 115, The State v Marety Ame Gaudi (2002) N2246, The State v Ismael Pavo Whrakuhau (No.1) CR No. of 972 of 2004, N2959. 

21.   On evidence of alibi defence Mr. Rangan made reference to these cases; State v Noutuim Mausen (CR N0. 596 of 2004) N2870, John Jaminan v The State (N0.2)[1983]PNGLR318, The State v Okata (N0.1) 2004 N2581, The State v Eki Kondi (N0.1) (2004) N2542, The State v Donald Poni (2004) N2663, The State v John Bosco (2004) N2777.

22.   All the cases that have been cited are relevant. Factual circumstances of all the case cited are unique and distinguishable to the facts of this case. However, legal principles time and again have been discussed and applied by the courts in dealing with issues of identification and alibi evidence. Court has noted the discussions on the principles of law and will also further the discussions below. Couple of these cases will be cited with approval in the discussions to follow in reaching a decision. Arguments on the evidentiary aspect of the case have also been considered.    

LAW ON ALIBI DEFENCE 

23.    I begin my discussion with defence of alibi. The defence is well defined in criminal law. It is a form of defence whereby the accused attempts to prove by evidence he or she was in some other place at the time the alleged offence was committed. It is totally different from other statutory defences whereby accused puts up an excuse to justify his or her act or omission that amounts to criminal behavior. Defence of alibi is essentially a complete denial by an accused person of the commission of the alleged crime.

24.   Criminal Practice Rules, Order 4, Division 2  Rule 4, provides that an accused shall not, without the leave of court, adduce evidence of an alibi unless a notice is given to the prosecution within 14 days before trial commence. If notice is not given within the prescribed time it does not automatically mean, as a general rule, court should refuse permission for evidence of alibi to be called. It is open to the accused’s counsel to apply to the court to exercise discretion to file notice of alibi out of time.  Of course the discretion must be exercised judicially. 

25.   I think the existence of the rule in our criminal practice and procedure is for fair play, that prosecution is not caught by ambush and is given an opportunity to adduce evidence to negate the alibi. Factors relevant for consideration as to whether leave should be granted were laid down in The State v Robert Wer and others [1988 -89] PNGLR 444 which followed R v Sullivan [1970 2All ER 681. This is simply to ensure no one is prejudiced. In The State v Robert Wer and others (supra) after hearing arguments court granted leave for the accused to file notice out of time and adduce alibi evidence. The court was persuaded because of the seriousness of the charge and constitutional considerations of the accused’s right to a fair hearing.   

26.   The principles as to the manner in which court should treat and weigh evidence of alibi against the prosecution’s evidence were laid down in the often cited case of John Jaminan v The State (No. 2) [1983] PNGLR 318.    In The State v Lucas Soroken & Ors (2006) N3029 His Honour Cannings J simplified and summarized the principles by stating this:

a.	“If an alibi is raised, the burden of proof does not shift from the prosecution. The onus is never on the accused to prove an alibi or prove innocence.
b.	However, in practical terms, the accused must lead some evidence of an alibi and it must be sufficiently convincing to create a reasonable doubt in the mind of the judge.
c.	How strong or convincing the alibi evidence must be, depends on the strength of the prosecution witnesses. If their evidence is very strong, the alibi evidence needs to be reasonably strong to raise a reasonable doubt in the mind of the judge as to the guilt of the accused.
d.	Unlike the defences of self-defence and provocation, there is no rule of law that says that once an alibi is raised it is up to the prosecution to disprove it.
e.	An alibi is not one of the excusatory defences such as self-defence, provocation or mistake, which concede the presence of the accused and his or her involvement in a series of events that led to the final state of affairs and are like a confession and avoidance. An alibi entails a complete negation and puts every matter in issue.
f.	If an alibi is rejected it does not necessarily follow that the court should enter a conviction. The court must still be satisfied that the prosecution has proven its case beyond reasonable doubt.
g.	An alibi that is determined to be false may, depending on the circumstances, amount to corroboration of the complainant's evidence.
h.	The court should consider whether the alibi evidence contains convincing detail or whether it is vague and short on detail.
i.	The court should also consider the demeanour of the alibi witnesses and whether there are any inconsistencies in their evidence.”

27.   In as late as 2015 in State  v  Toropo [2015] PGNC 117; N6011 Toliken J citing with approval John Jaminan  v  The State (No. 2) (supra) stated;

“But where the accused raises a belated claim of alibi coupled with a failure to put it to State witnesses in cross examination, then, the court is entitled to hold the alibi as unreliable and a recent invention, hence, reduced in weight. This is what happened in John Jaminan v The State (No. 2) [1983] PNGLR 318 (Pratt, Bredmeyer, Amet J (as he then was)) where the Appellant was charged with multiple counts of rape. He pleaded consent but then at the trial he introduced his alibi defence without giving notice to the prosecution let alone put his claim that he was somewhere else at the relevant time to the complainant during cross examination. The court held, among other things, that an alibi given in evidence and found to be false, may, depending on the circumstances, amount to corroboration. And (per Bredmeyer J) the failure to put the defence of alibi in cross-examination of the State witnesses and a delayed or belated alibi will reduce the weight to be given to the alibi as a defence.”

28.    This case is different from situations that arose in the cases referred above. I noted from the pre-trial review statement filed by the defence counsel no notice of defence of alibi for leave to be granted was filed within the required 14 days’ time period before the matter was fixed for trial pursuant to Order 4 Rule 4 of the Criminal Practice Rules. I am pretty sure defence counsel would have received some instructions from the accused of the alibi the accused would raise in denial. But no such notice was filed. During trial at the close of prosecution’s evidence and before defence called evidence no application was made for the court to exercise discretion to grant leave for filing of notice of alibi out of time. By passing that process accused chose to give sworn evidence and raised the alibi. There was no objection from Mr. Rangan and accused was allowed to give evidence of alibi. No witnesses were called to support alibi.  

PRINCIPLES OF IDENTIFICATION EVIDENCE

29.   Some discussion on the principles of law on identification evidence is necessary.

30.   Principles of law which serve as guidelines in the manner in which the courts are to treat or assess evidence of identification are well settled in this jurisdiction. The guidelines were actually laid down by the House of the Lord in the case of Raymond Turnbull & Ors (1970) 126 C.L.R 321, 3 All ER 549. Over the years the guiding principles have continually been adopted and applied by the courts in our country dealing with issues on identification evidence. There are host of cases, few of which have been cited by counsels. 

31.   The fundamental aspect of the guiding principles is that the trial judge or magistrate must be mindful and warn himself that there are dangers inherent in eye-witness identification evidence. This is because there have been experiences over the years sometimes completely honest evidence have shown to be wrong and innocent people convicted. I quote the relevant passage of the judgment in John Beng v The State (supra) and this is what the court stated; 

a.	“Whenever the case against an accused person depends wholly or substantially on the correctness of one or more identifications of the accused which the defence allege to be mistaken, the trial judge should warn the jury of the special need for caution before convicting in reliance on the correctness of the identification. He should make some reference to the possibility that a mistaken witness could be a convincing one and that a number of such witnesses could all be mistaken. Provided such a warning is given, no particular form of words need be used.

b.	Further, the trial judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made....
c.	Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made. All these matters go to the quality of the identification evidence. When the quality is good, the jury can be safely left to assess the value of the identifying evidence even though there is no other evidence to support: Provided always, however, that an adequate warning has been given about the special need for caution.

d.	When the quality of the identifying evidence is poor — i.e. a fleeting glance or a longer observation made in difficult conditions — the judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification.

e.	The trial judge should identify to the jury the evidence which he adjudges is capable of supporting the evidence of identification. If there is any evidence or circumstances which the jury might think was supporting when it did not have this quality, the judge should say so.”

32.   In The State v. Marety Ame Gaidi (supra) at page 5 to 6 of the judgment His Honour Kandakasi J reiterated the guiding principles in these terms:

f.	"1. It has been long recognized that, there are dangers inherent in eye-witness identification evidence;

g.	A trial judge should warn the jury in the case of a jury trial system or himself as in our case, of the special need for caution before convicting in reliance on the correctness of the identification because for example:
1.	a convincing witness may be mistaken; or
2.	a number of witnesses could be mistaken;

h.	Provided such a warning is given, no particular form of word need be used;
i.	There should be a specific direction to closely examine the circumstances in which the identification was made;
j.	Identification by recognition may be reliable but one needs to be cautious because there can be mistakes in trying to identify close relatives and friends;
k.	All these go to the quality of evidence – if the quality of evidence is good the identification may be reliable. If however, the quality of evidence is bad, the identification will be bad; 
l.	The quality of the evidence may be poor if there is a fleeting glance or a longer observation made in poor conditions; and
m.	There should be an acquittal if the quality of the evidence is bad."

EVIDENCE OF IDENTIFICATION

33.   Evidence of identification of the accused involvement came from J.J and her boyfriend Desmond Robin. 

WITNESS J.J.

34.   Apart from aspects of her evidence J.J. stated she never knew the accused and other two co-accused by name or seen them anywhere before the alleged rape incident. She stated when the accused and other co accused where apprehended and taken in custody police never invited her to come and identify the suspects. She learned from her father that police had apprehended the suspects and she was told of the names of the accused and the other two co-accused. 

35.   She stated the time she was threatened with a knife in the room and she refused to go the boy whom she later knew as Tommy (the accused) punched her on the face and swore at her saying “kan yu kirap”. (Meaning you cunt, get up). That person did not wear any mask over his face or wore any cap. The other boy (whom she later knew as James) who held the knife wore a cap right down to his face. The person who had punched her pulled her by the hand out of the room while the boy holding the knife followed.  She stated the boy with the bush knife jumped over the fence first followed by her and the boy who had punched her. She stated they crossed the main Rabaul-Kokopo Road into Malaguna village. As they were walking through the buildings with lights shining the boy holding the knife (James) told the other boy called him by the name “Tommy” to keep close to me and block her from being seen by others. She said that was the very first time she heard of the name “Tommy” and realized that was the name of the boy who was not holding the bush knife.

36.   She stated three of them walked past all the houses and came to a particular kitchen. They went inside. The other boy (James) left while the boy named Tommy remained with her. There and then that boy (accused) forcefully removed the shorts and pants she wore. He put on a condom and sexually penetrated her in her vagina. After the boy had sexually penetrated her the other boy who was holding a bush knife returned with plenty other boys, exact number she could not recall. The boy who held the knife then had his turn and sexually penetrated her in her vagina, followed by the other boys who each had their turn.  She stated she was sexually penetrated many times that night until dawn. 

37.   She stated on the morning of Sunday 3rd March 2013 she and the boy named James left the kitchen house and arrived at a fermentary  and saw Tommy (accused) sleeping there. Tommy heard them talking and woke up. He got cross at James and told him ‘bring that girl over. Tommy held her by the hand and they walked down the coconut trees. She stated Tommy was really drunk and when he let go of her hand she started fleeing from him there on. While giving evidence in examination in chief prosecutrix pointed to the accused as one of the person who had raped her when Mr. Rangan questioned her. 

WITNESS DESMOND ROBIN

38.   Apart from other evidence witness Desmond Robin’s evidence of identification of the accused is this. As he was going out of the room after having had sexual intercourse with his girlfriend Tommy approached him with a bush knife and insulted and threatened him. He stated James then pulled the bush knife off Tommy and entered the room and threatened his girlfriend and pulled her out of the room. He stated James wore a cap, Tommy did not wear anything. As they were pulling her away he tried to stop them but they swung the knife at him and threatened him and prevented him from getting near them. They were drunk and he was afraid of them and never called out. He saw Tommy and James take the girl to the fence, went over it onto the other side and crossed over the main Kokopo Rabaul road. They took her girlfriend to where Tommy and James usually stay, up the hill. He also saw Solomon Ori followed Tommy and James Sirip. There were people drinking beer, playing music and making a lot of noise in the area where Tommy and James stay. He saw Jacob was with the group drinking. The next morning on Sunday he went to the gate and saw Solomon and Jacob. They both were drunk. Solomon pointed an insulting gesture at him. He said he got on a bus and went to his aunty at Raburua village. On Tuesday he went to CID police and gave his story.
	
39.   Both J.J and Desmond gave a very detail factual account of the entire episode starting from the time both met in Rabaul, what happened at the CPL compound, and what happened throughout the night until day break when J.J. told her father upon return of the incident and matter reported to Rabaul police. 

WITNESS UKIES KIBALE

40.   He is the arresting officer and investigator with a rank of a Senior Constable attached to the CID office, Rabaul police station. He has been with CID for 16 years investigating mainly robbery and sexual related offences. He gave testimony of his investigation upon receiving complaint of pack rape from J.J and her father on 5th March 2013. He gave evidence of the number of failed trips police made to arrest the suspects at the place they live. He stated the accused and other two surrendered voluntarily on 15th March 2013 on which date he commenced conducting the record of interview. Interview continued to the next day with one of the accused. Interviews were conducted in the presence of Constable Kelly Vavena, the corroborator, who has since transferred to Vanimo, Sandaun Province. Under cross-examination by the defence counsel of possibility of him fabricating the record of interview officer Kibale was adamant the interview was conducted properly. Questions were asked and answers typed using a laptop computer. 

COURT’S FINDING

41.   So what is the strength of the evidence adduced by the prosecution?  Did the accused participate in the alleged rape of the prosecutrix?  Or was he mistakenly identified by the prosecutrix and the boyfriend Desmond Jones? 

42.   I adopt and apply the principles settled in Raymond Turnbull & Ors which were followed in John Beng v The State, The State v. Marety Ame Gaidi cited above and host of other cases in PNG.

43.   I am guided by the settled principles of law and caution myself of the dangers inherent of eye witness evidence and accepting it as one hundred percent correct and entering a conviction. Experience has shown mistakes have been and can be made by a witness in identification of a stranger or even recognizing a known person in appalling or difficult conditions.  Consequently, mistakes have been made by the courts in convicting and sentencing innocent persons. 

44.   J.J. gave a detail factual account of her meeting up with her boyfriend and Jacob at Rabaul who had accompanied them to CPL compound to spend a night there.  She told the court on the way they met a couple. They entered a kitchen and prepared and had a meal.

47.   After having meal her boyfriend went and got permission from the boy from Duke of York to use his room wherein they both had sexual intercourse. She gave a fair description of the location of the room. It was a long building with some rooms. From her description I perceived that the room is in a dormitory type building which has an opening entrance into a hallway with multi-rooms on either sides.  Which means they had to enter the building, walk along the hallway, up to the boy’s room, open it and enter. She gave evidence there were no lights in the room but light was penetrating into the room from the light source outside the room. 

48.   The lighting was sufficient enough for her to recognize Solomon from Duke of York who owns the room and the two boys (accused and James). James was wearing a cap, accused had no cap or mask over his face.

49.    As between J.J and accused they were strangers, have never met or seen each other before until that time at CPL compound. That was the first time. So for her it was a case of identification of a stranger. Was J.J mistaken? 

50.   This is not a case of “fleeting glance” situation in which J.J is trying to recall the identity of accused. Yes up on the hill where J.J. was sexually penetrated was dark without lights. But J.J was able to see the accused and James and Jacob as the same boys she had seen earlier on during the day and evening that day. They were at a very proximate distance, inside the building, walked together through the compound, stopped by the fence to jump over it. Place was lit up by lights coming from the buildings.

51.    She gave a vivid factual description of the ordeal she went through that night starting from the time she was taken out of the room at CPL, over the fence across the main road through Malaguna No.1village up the hill to a particular kitchen where she was sexually penetrated by the two (accused and James) and other boys. It was night so she was not able to recognize the appearance of other boys except she was able to recognize James and Tommy who were the first two to forcefully take her out of the room at CPL compound. She stated the accused she still recognized as Tommy sexually penetrated her again second time that night in another house. There she said Jacob whom she met with her boyfriend at Rabaul market also sexually penetrated her. At day break at about 7.00am the next day, 3rd March 2013 she saw Tommy sleeping at a fermentary. He woke up and he walked over to get hold of her but she started to run away from him until she reached Ratung village. 

52.    Desmond Robin’s evidence at least of his meeting with J.J. and up at Rabaul town was corroborative of J.J.s testimony. He also stated Jacob met up with them and three of them walked down to CPL Compound and met Jacob’s sister and her husband. He stated he got permission from Solomon and they both used his room to have sexual intercourse. He stated James and Tommy threatened him with a knife and forcefully took her girlfriend away and threw her over the fence. He said he could not do anything to help even call out for help as he was threatened and was scared for his life. 

53.    Desmond stated he knew Tommy when he was living at Toboi. Tommy lives at Malaguna village opposite Toboi Mill on the other side of the road. He sees Tommy on many occasions, he comes around at nights with some other boys. They talk and mingle around, share things like betel nuts, water and tobacco. When questioned who Tommy was he pointed straight at the accused without hesitation and with certainty. Desmond also stated he knew James. He had a wool cap over his head. His dad works for the same company and they also live at CPL compound on the other side of the road. 

54.    At this point let me make some observations on certain aspects of Desmond’s evidence. That is in regard to his seemingly unusual behavior at the CPL compound. According to him when they arrived at CPL compound he left his girlfriend with Jacob’s sister in the kitchen and he went to see Solomon, boy from Duke of York Island to ask for his room key. Solomon was also known to Desmond. After having sexual intercourse with his girlfriend he walked outside to dispose off his waste.  The boy named Jacob who accompanied Desmond and his girlfriend is no stranger to him. The boy is known to him. 

55.   It appears from his evidence while they were having sex inside the room Solomon and Jacob where waiting outside the laundry area which was estimated about 10 – 15 meters away. Desmond stated when he went out of the room Solomon and Jacob told him they will go look for smoke at the compound on the other side of the road. According to Desmond he re-entered the room he told his girlfriend he will go see his father. As he exited the room right at the door Tommy approached him with a bush knife. Tommy held a knife at him same time James forced open the door and took the girlfriend out. He wanted to go and help his girlfriend but he was threatened with the knife and insulted. He was scared of his life and just watched his girlfriend pulled away to the fence. There were many drunkards calling about and he never went outside after the two boys who were taking his girlfriend away. He did nothing to raise any alarm.

56.    In the morning he woke up from bed and he saw Solomon and Jacob were drunk and Solomon showed a finger at him in an insulting manner. He got on the bus and went to Raburua village and spent the night there with his aunty. Why would he leave CPL compound the next day unless he was avoiding something?

57.   J.J.s version of facts of what happened at CPL compound is quite different. According to her Desmond left her twice to see his father. First time when she was in the kitchen with James sister, second time after having sex.  Desmond left the room saying he wanted to check for his father. The reason he went to check for his father is unknown as he never told her. The question is did he really leave to go and see his father? 

58.   According to her Solomon had also left the room to go find smoke. She was alone in the room when the accused and other boy (James) entered the room and forcefully took her out. According to her Desmond was nowhere to be seen when she was pulled away through the compound to the fence. Another question why didn’t Solomon and Jacob who were supposed to be 10-15 meters away at the laundry area intervene to assist the girl or Desmond? Clearly, a wrongful act was being committed in their presence. Surprisingly, none of them including Desmond raised any alarm to fight off or chase off the attackers and rescue the girl. Could it have been a set up for the other boys including the accused and James to have their turn in sexually penetrating her? 

59.   But, the glaring evidence that emanates from all of the evidence I find is that all the boys namely James, Jacob, Solomon and this particular accused are known to Desmond. They are no strangers to each other. They live around the CPL compound and Malaguna No.1 village. They mingle around and talk to each other. That night all of them were at the CPL compound area when the girl was taken out by force against her will. I doubt very much J.J. was a “willing partner” and consented to being sexually penetrated by a large group of drunkard boys. 

LIGHTING

60.    J.Js evidence differs from Desmond’s.  With such conflicting evidence I cannot state with certainty there was a light source inside the room. But it was a compound where company workers live I am sure there were other light sources from the buildings within the compound shinning up the area. I accept that there was a particular light source from outside the room that was used shinning into the room. From those lights J.J was able to for the first time see the accused and other boy who threatened her with a knife and pulled her out of the room through the compound to the fence. They all were together at a very proximate distance. 

MEDICAL EVIDENCE

61.    Medical Report dated 14th March 2013 marked exhibit “A” was tendered into evidence by consent. The medical evidence makes no finding of visible injuries in and around the vagina.  J.J. was examined 10 or 11days after the alleged rape as any traces of evidence of sperm and abrasions would have healed and been washed clean. Medical report reveals that hymen was no longer intact.  Her vagina is medium size and capacious, meaning that she was not a virgin and had had sexual experiences in the past. 

ITEMISED LIST OF COMPENSATION MARKED EXHIBIT ‘C’

62.   The tendering of this document by Mr. Rangan through the arresting officer was objected to by the defence counsel. The reason for objection was that the list was made by the girl’s father and document should be tendered through him. I overruled the objection and allowed the document to be tendered into evidence for the state. 

63.   The reasons for that are firstly, the arresting officer typed the list from a hand written list on a sheet of paper provided to him by the girl’s father. So he is the author of the typed list. He is the relevant person to verify that. 

64.   Secondly, the document was allowed to be tendered into evidence under the exception to the hearsay rule of evidence not to prove the truth of its contents but only to the extent that the typed list was prepared by the arresting officer from the hand written list provided to him during his investigation. From information provided he questioned the accused to ascertain the payment of compensation in the record of interview. I will place less weight on this document as evidence for the prosecution.

65.   However,  in the Record of Interview accused was asked if he had anything further to say in regard to the allegation, the accused answered, yes we paid the girl’s dad already.  Accused was asked how much he paid as compensation.  He answered K10.00. (Refer Qs 21 & 22). I therefore accept as a fact that some form of compensation had been paid to the girl’s father. But on the evidence the court is not able to accept as a fact how much was paid in cash and kind as compensation. 

RECORD OF INTERVIEW

66.   The challenge on the record of interview was on the assertion that it was fabricated.  The basis of such an assertion came out from the accused oral testimony. His explanation in objecting to the Record of interview is this. His name was not on the list of suspects provided to police. Some other suspects were arrested at night and taken into Kokopo Police Station Cells because Cell blocks at Rabaul Police Station were full. On Monday 15th Police conducted another raid at about 12 midday and he was apprehended and taken to Rabaul Police Station and locked up in the cell.  At 3:00pm the arresting officer took him up to his office. Four other police men were inside. He stated he was never questioned at all by the arresting officer. He was with the arresting officer for 29minutes and he took out a 4 pages of story he had already prepared and just told him to sign without explaining what the papers were for.  Under cross-examination (Q53, page 133 of notebook) when questioned if he saw S/C Kibale typing on the computer when he was interviewed, accuse answered “no”. The arresting officer told him to go to Kokopo and wait there while he got stories from the other suspects who were arrested.

67.    The accused was questioned (Q31 p.129 0f note book) if there would be any reason  senior constable Kibale would fabricate the record of interview, the accused answer was “No” as he was already locked up at Kokopo Cell.  

68.    Is there a real possibility the record of interview was made up or fabricated by the arresting officer? Ukies Kibale is a Senior Constable and a CID officer at Rabaul Police Station. He has been a CID officer for 16 years working all those years at Rabaul Police Station. His specialty is investigating Robbery and sexual penetration cases. I am pretty sure in his years of service he has investigated many similar crimes as the one accused is charged for prosecution through the judicial process. As a police officer he has under taken a solemn oath to uphold the constitution and the rule or process of law. It is generally expected of all police officers in the discharge of their policing duties and investigation of major crimes to operate with the proper and acceptable rules of practice. 

66.   The arresting officer had deposed an affidavit dated 27th April 2013 and marked exhibit “F” explaining his investigation of the crime alleged when he received the complaint from the girl’s father on 5th March 2013. Amongst other things he stated he commenced interview at 1.20pm starting with accused Jacob Wesley on 15th April 2013. With him to act as the corroborator was police constable Kelly Vavena. He completed the record of interview with Jacob at 3.21pm. At 3.30pm he commenced interview with the accused in court in the presence of the same corroborator constable Vavena. Interview concluded at 5.12pm. On 16th April 2013 at 10.30am he commenced the interview with James Sirip which ended at 11.25am. 

70.    Constable Kibale stated all the interviews were conducted in pidgin language. All three accused admitted sexually penetrating the prosecutrix. Record of interview he said were read back to the accused and in accepting them they each signed the respective records of interview. He stated all three accused persons were never assaulted by police when interviews were conducted. They answered questions with they own free will.  

71.   The arresting officer was under cross-examination by the defence counsel on the contents of record of interview of the accused. I observed his demeanor. He was unmoved and remained steadfast to his testimony defending his investigative work to have the accused and two others prosecuted. This is a senior CID police constable with 16 years experience of investigative work. He has investigated and compiled evidence and conducted many interviews with persons arrested and charged for similar offences for purposes of criminal prosecution. I am sure he has undergone training and is familiar with accepted practice and procedures in conducting interviews and record every question and answer. 

72.   What special interest would he have in this particular case for him to come up with an invented or fabricated record just to make up a case?  There is none.  Accused cannot show that in real evidence except to come up with false assertions.  

73.    Fabrication of evidence in judicial proceedings is prohibited by law and amounts to crime of perjury, ss.121 & 122 Criminal Code. For the arresting officer to fabricate the record of interview would not only be unprofessional but also criminal. He could be cited for crime of perjury under the Criminal Code.  Fabrication of evidence is a serious allegation. It calls for such allegations or assertions to be supported by real evidence without which is mere conjecture and does not have substance.  

74.    I hold that record of interview was properly conducted.  It is good and reliable evidence for the State.  Accused had attested to it after it was read back to him.  The arresting officer and his corroborator also countersigned it. This is evidence which goes to show not only of it being properly conducted but also is a proper record of what transpired during the interview session with the accused.

75.     I have read the relevant parts or questions of R.O.I and the explanations by the accused.  The accused had made confessional statements of sexually penetrating the prosecutrix, he said it was by consent. Interestingly, accused did not pursue that as an issue in his defence. Instead he denied outright being involved in the alleged rape and opted to raise an alibi and challenged the authenticity of the record of interview as being fabricated. To me he was indecisive and fishing around for reasons to make up a case.  

76.   Next, what about the alibi the accused has raised? In answering the question again I remind myself of the position of the law in deciding guilt. The State all along, from beginning to end, carries the evidentiary onus of proving guilt beyond all reasonable doubt.  To express it in the words of His Honour Cannings J in The State v Lucas Soroken & Ors (supra):

 “If an alibi is raised, the burden of proof does not shift from the prosecution. The onus is never on the accused to prove an alibi or prove innocence.” 

I adopt and apply principles of law on alibi in cases that have been cited with approval.  

77.   Court had afforded him a fair trial.  Although the accused had not complied with O 4 r 4 of the Criminal Practice Rules he was still allowed the right to be heard of his defence. He relies on his oral testimony. There is no other evidence from him to add value to his alibi story, reasonably strong enough to create a reasonable doubt in my mind not to enter a conviction. I say this in view of the strong evidence prosecution has adduced.  The alibi he came up with was never told at the committal proceeding even though he had the right to remain silent. During the interview session with the arresting officer again he never raised the alibi. Instead he gave explanations and admitted sexually penetrating J.J. by consent. Accused never pursued the defence of consent at the trail. Instead of taking that course he deviated and came up with the alibi in complete denial of the alleged crime.  

78.    Accused stated he left for Tavui N0.1 village on a Thursday before 2nd of March 2013. He was there for two weeks and returned to Malaguna No.1 village on Saturday 13th April 2013. If he was mistaken of the dates, the dates have not been corrected during examination in chief or re-examination of the accused remains as his evidence. A check of 2013 calendar shows that Thursday before the 2nd March is 28th of February. If he did return on 13th April, he would have been away in Tavui village for 43 days, more than two weeks. 

79.   What does this boil down to? Clearly the alibi is unreliable, false and was just an invention to make a case. Hence, it has less weight. Court is entitled to make such a finding by case authorities cited above. 

80.   Summary of the above discussions is;

1.	Witnesses were not mistaken in identifying the accused as one of the persons involved in sexually penetrating J.J.

2.	Assertions of Fabrication of Record of interview has no substance and is a mere conjecture. The document is accepted into evidence for the prosecution as it is good and reliable. 

3.	The alibi defence is unreliable, false and is of less weight as weighed against the prosecution’s evidence.  

81.   Ultimately, conclusion reached is that I have no iota of doubt in my mind to enter conviction against the accused and accordingly finds him guilty of the charge.

_________________________________________________________
Public Prosecutor	:	Lawyer for the State
Public Solicitor   	:	Lawyer for the Accused