State v Jerry [2022] PGNC 263; N9693 (9 June 2022)

N9693

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 645 & 646 OF 2019

THE STATE

V

DONALD VINCENT JERRY

Wewak: Miviri J
2022: 07^th,08^th & 9^th June

CRIMINAL LAW – PRACTICE AND PROCEDURE – Robbery – Trial – House Aggravated Armed Robbery – Two Homemade Guns & Knives – Accompany of Others – Serious Injuries To Victims – Aggravated Rape x2 Victims – Large Value of Properties Stolen – Offences Committed at Night – No Issue Offences Committed– Identification– Not Fleeting Glance – Identification at Close Quarters In Bright Lights – Next Door Neighbour – By name & Face – Consistent Credible Evidence by State Witnesses – Identification Followed with Confrontation of Accused at House Next Door – Burden Discharged – Guilty of Aggravated Armed Robbery – Guilty of Aggravated Rape x2 – Bail Refunded forthwith Remanded.

Facts
Accused was part of a group of men who were armed with two homemade guns and knives who held up the victims in their house at night in the early hours of the morning and stole assorted personal items & properties with Electronic Goods to the assorted value of K1, 999.00 loaded on their wheelbarrow and escaped. They also assaulted them and committed rape upon two female members of that family before they escaped.

Held
Aggravated Armed Robbery not denied.
Aggravated Rape of two victims.
Identification issue.
Accused identified in light by name & Face.
Next door neighbour.
Five years neighbour.
Balance discharged
Guilty of Aggravated robbery.
Guilty of Two Counts Rape.
Bail Refunded.
Remanded.

Cases Cited:
Kerua v The State [1981] PNGLR 357
State v Barambi [2017] PGNC 234; N6900
Rape, The State v [1976] PNGLR 96
Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37), The State v [1983] PNGLR 287
John Beng v The State [1977] PNGLR 115
Wani v The State [1979] PNGLR 593
Karani and Aimondi v The State [1997] PGSC 19; SC540
Kiala and Gomosi, The State v [1977] PNGLR 470

Counsel:

F.K. Popeu, for the State
B Jim, for the Defendant

VERDICT

09^th June, 2022

1. MIVIRI J: This is the verdict after trial against Donald Vincent Jerry of Kreer village, Wewak East Sepik Province for the crime of Aggravated Armed Robbery and Two counts of Aggravated Rape committed upon the victims.
   
2. He was charged pursuant to Section 386 (1) (2) (a) (b) (c) Criminal Code Act, firstly, that he stole from Agnes Hembiwasi and others with actual violence K300.00 in cash and a Toshiba Laptop valued at K 5, 099.00, 4 touch screen Samsung mobile phones valued each at K499.00 altogether valued at K 1996.00, an electric fan valued at K 75.00, a wheel barrow valued at K 529.00 and other electrical appliances valued at K 556.00 all the properties of the said Agnes Hembiwasi and others. And at this time, he was armed with two homemade guns dangerous and offensive weapons and was accompanied by others and wounded Agnes Hembiwasi.
   
3. Secondly, he was charged pursuant to section 347 (1) and (2) of the Criminal Code Act that he on the 08^th day of December 2018 at Kreer village, Wewak in Papua New Guinea sexually penetrated Agnes Hembiwasi by inserting his penis into her vagina without her consent. And at this time, he was armed with two (2) homemade guns dangerous and offensive weapons and was accompanied by others and wounded Agnes Hembiwasi.
   
4. Thirdly, he was charged pursuant to section 347 (1) and (2) of the Criminal Code Act that he on the 08^th day of December 2018 at Kreer village, Wewak in Papua New Guinea sexually penetrated Hodilia Pori by inserting his penis into her vagina without her consent. And at this time, he was armed with two (2) homemade guns dangerous and offensive weapons and was accompanied by others.
   
5. Accused denied all three charges upon arraignment that he was not the person responsible for each of the offences committed upon the victims as alleged. In its endeavour the State called Agnes Hembiwasi originally from Hambuke, Kubalia, East Sepik Province, who gave sworn evidence that on the night of the 08^th December 2018, she was at the house of her son a doctor at Kreer heights. She had washed because she felt a bit sick and retired to bed wearing only a laplap without any pants. She was sleeping underneath the house. As she retired, she closed the door with latch lock which was hit open with a butt of a homemade gun by one of the robbers. He was Donald Vincent Jerry from Kreer village and was my next-door neighbour. I call him son because his house is like from here, the witness box to the stores on the other side, 50 to 60 meters. We always share betel nut together and so I know him well.
   
6. He did not cover his face and it was in bright light in the room and I saw his face. Donald Vincent Jerry asked me for money. I said I got no money, so he hit me with the gun butt on the forehead and I fell down and slept. He lifted up my laplap. I was not wearing any panties; he pushed his penis into my vagina. He told me, do not call out if you do, he will put the knife to my mouth and break my throat. He had sexual intercourse with me and after that he came out and went.
   
7. There were seven (7) of us in the house. There were two rooms underneath, both lights were on under the house. I was in the other room; Jethro my son occupied the other room. There was power in the house both upstairs and underneath lights. They stole all our cargo and went. When they opened the door to the room of the Doctor, they got many things. Many clothes, string bags put on wheelbarrow and they took away. In the morning at 5.00am we went to the house of Donald Vincent Jerry and arrested him. I went to the hospital and was stitched on my head and hand. I was also medically examined on my body. They made a medical report which was given to my daughter who gave to the Arresting Officer. Yes, I know the Accused Donald Vincent Jerry he is in Court now and points to the Accused in the Dock.
   
8. She was cross examined that she did not see the Accused, she maintained consistency in her evidence. She testified that on that same day in the early morning she went with the police to the residence of the Accused and arrested him. He was the only one who had committed the offence against her. That he was the only one that she saw. Others who were with him ran away.
   
9. The next witness on oath was Anita Kambun daughter of the first witness. She was at the back of the court present all through out the evidence of the first witness. Defence objected to her evidence on that basis. State applied to have her give her evidence that its weight was now affected because of her presence in court. It was a very serious case and denying her because she was present in court will deny her the opportunity to seek justice. Because she was also in the house on the night of the allegation. It was important that her evidence was given the Court. It was clear she was an ordinary citizen who did not appreciate that, she was to be outside of Court. And she was at the back of the court with the arresting officer who did not inform that she should be outside. In fact, he was the one sitting alongside her all the time in court whilst the evidence of the first witness opened up. He did not take her out of Court. The blame laid on him and the Court in no uncertain terms made that out to him on record. He was not properly attired depicting that he was the arresting officer a policeman who investigated the matter. The Court told him to leave and be presentable when he next appeared in Court. He was the perpetrator of her presence in Court. She could not be denied that fact being a publican not acquainted.
   
10. Given that fact her evidence was allowed into court. It was a matter of weight as to what would be given the evidence that she gave. She was asleep with her baby and heard the voice of Donald Vincent Jerry call out to her brother Jethro Pori who opened the door for him. She was living in the house of her brother the Doctor at Kreer Heights on the night of the 08^th December 2018. At about 3.00am to 4.00am in the early hours the incident occurred. She was living there for about 5 to 7 years when it happened. And was married when she moved to that house. Donald Vincent Henry was drunk with the others when they went up to the house. I was upstairs and called his name Donald. Jethro opened the door and he came in. I opened my door and came out. All the lights were on and I put my first foot on the ladder of the house. And he gun pointed at me with a homemade gun. I called Donald. He ran up and slapped me and pushed me into the house. I fell to the floor and I saw him. He said money ikam. I said I had no money. He pushed me to the door to doctors’ room and told me to open the door. I said I had no key so he hit it open with the butt of his homemade gun. He broke my head with the butt of that homemade gun. I was bleeding heavily from that; I was washed in my own blood.
    
11. He went inside and got a box containing all the things of the Doctor inside and took it with him. Then he went downstairs to where my mother’s room was. He broke it open and raped her inside. I heard mother crying. I did not see the others who were with him because I was covered in my own blood, and also was covered by raincoat by the robbers. I only saw Donald Vincent Jerry. I went to Kreer village with my mother and we saw him and woke up the Councillor of Kreer village. I was all covered in blood with my blouse torn when I saw the councillor. He asked me what the matter is. I told him what had happened when Donald got the boys they went to the house and did this to me. He rang the bell and called Donald to come to him. Donald said it was not him. I told him it was you I saw you.
    
12. Donald’s wife Petra came and told me he had not slept in the house he was drinking around with the boys. And we saw him he was very drunk. Police took us to the hospital and he ran away. At the hospital mother’s hand was stitched and they checked her body and we came back and stayed. I am a grade six leaver. I saw Donald Vincent Jerry because his face mask came off and I saw his face. He is like a brother because we are neighbours. There were seven of us in the house that night. The gun man and other person went to the room of Hodilia Pori and had sexual intercourse with her. I saw it. And Hodilia was with me, we went to the hospital, and she too was checked by them. All our things were taken including clothes, bilums, electric fan, deep fryer, rice cooker, mobile phones, and the box belonging to doctor. I do not know what was inside. And she identified the photographs of the house and inside of it Exhibits P2(a) page 27 of brief of evidence , P2(b) page 28 of brief of evidence, P2 (c) page 29 of brief of evidence and P2(d) page 30 of brief of evidence. She confirmed that she collected the medical report of her mother and Hodilia from the hospital and handed to the Police arresting Officer.
    
13. In cross-examination she said she saw Donald Vincent Jerry only. She was afraid and was covered in her own blood, and was covered in a raincoat with her baby, so did not see anyone else apart from Donald Vincent Jerry. She may have been in court no fault of hers, but her evidence was not given with vigour to lure a conviction. She gave evidence in a forthright manner. She was consistent and truthful. She was not lured by the evidence of her mother, whom she heard out in court in her presence. That did not add or subtract her evidence substantially at all. There was no inconsistency showing adding, or amending, or deleting in her evidence to compound with that of the mother. She was firm to her evidence and defence did not show that she was making up her evidence, because she was in court alone in the entire evidence of the mother. In my view she was not giving evidence to tie in all fours with her mother. She testified on oath as truthfully as best as she could, on what she witnessed individually in the allegation against the accused. I have no doubts as to the veracity of her evidence as to its truthfulness in comparison with the evidence of the first witness whose evidence she sat all through out in. There is nothing to be devoid of her evidence than the material truth common from her individual perspective. That she saw the Accused Donald Vincent Jerry who committed the offence that night upon her and her family as she recounted. I did not have any reservations to doubt the veracity of her evidence. She has told the truth as she swore on the bible. She has not added or subtracted to suit that the accused be convicted. She does not appear to be coerced by the fact that she has heard out the evidence of her mother. Materially she has identified the accused and common sense dictates her identification as credible and reliable.
    
14. The next witness on oath was her brother Jethro Pori. He testified that he saw the accused Donald Vincent Jerry and his brother Adolf Vincent Jerry going up the steps of the house together. It was the little brother of Donald who had called out to him and woke him up. There was gunshot on the veranda and people sleeping upstairs calling and crying. They blocked me and I did not come out. I heard them assaulting my sister up in the house. Then they assaulted mother in her room. I heard mother call out praise the lord. The boys went, it was 5.00am when me Anita and Jepta went to Kreer village. We went and saw Donald and many drunkards. We said to him this has happened and we come to you. We told Donald and then we went to their council and told him, it was Donald. After which we came back to the house. I have lived with Donald together and built his house for him. I know Donald.
    
15. I was almost cut with a bush knife and so was blocked in my room inside. I heard they cut things and sliced the hands of the People up in the house. They brought Agnes, Hodilia, Timothy to the hospital and also Anita. Donald is from Kreer village a landowner and is over there points to Accused. I have no grudges with him Donald Vincent Jerry. The defence had his statement tendered as defence Exhibit D1 alleging it was inconsistent with his oral evidence. I have examined it and there is no inconsistency except that it strengthens further the identification of the accused as the perpetrator of the allegation levelled in court.
    
16. He knows the Accused Donald Vincent Jerry and his small brother Adolf who were both armed with homemade guns and who went up the Stairs into the house on top. And he could clearly see them as there was spotlight that was on them as they climbed up. And too there was florescent lights in the downstairs area where he was with Agnes Hembiewasi. He saw them both clearly in the light. They were their neighbours for five years since 2013. He locked the door and was inside in his room after they struggled with him to force it open. He remained inside after he had successfully prevented them from opening it. And when he was busy defending himself his aunty Agnes Hembiewasi had her door broken down by the Accused Donald Vincent Jerry and he raped her. And that early in the morning they went down to Kreer village reported to the councillor that Donald Vincent Jerry with Adolf did all to them. Who rang the bell and summoned all the youths because Anita was bleeding and there was blood on her face. Adolf denied and argued that he was not one who was involved. Donald was arrested later after the report to Police but Adolf ran away. And we are traumatized because of that incident.
    
17. The last witness for the State was Doctor Jack Marcus the Medical Registrar of the East Sepik Provincial Hospital Boram General Hospital. He was called to tender the medical reports relating to the examination of the patients of that hospital, Hodilia Pori, and Agnes Hembiwasi. That they were business records within the meaning of section 61 of the Evidence Act and therefore admissible. Defence objected to the tender of both witness through Doctor Jack Marcus. He was not the author of the reports. They could not be tendered through him. But by virtue of the fact that they were produced in the course of the business of the hospital treating serving persons with ailments or sick, it was natural consequence as a result of that activity that records would emanate. And the witness in the Chair he was at the hospital was the custodian of those records that emanated. He as a custodian of that record was a proper person though not the author to identify its tender as a business record. In the business of the hospital, he was an official discharged in the business of the hospital with that responsibility. That was done and tendered in accordance. Both became Exhibits P3 and Exhibits P4 both documents dated the 17^th December 2018.
    
18. The tender of both was consistent with the law set out in section 61 of the Evidence Act. They were business records consistent with Kerua v The State [1981] PNGLR 357 (9 September 1981) followed in State v Barambi [2017] PGNC 234; N6900 (15 August 2017). Hence the law was complied with here and both medical reports were properly admitted through Doctor Jack Marcus as business records.
    
19. Both established that the victims Agnes Hembiwasi and Hodilia Pori were assaulted physically and sexually penetrated on the 08^th December 2018. History obtained confirmed when medically examined that indeed they were sexually penetrated evidenced by presence of sperm in their vaginas. The conclusion was notable in each case, for Agnes Hombi, “I conclude that she had evidence of physical abuse and sexually abuse (rape) as well.” The examination in each case was by doctor Cherobim Kapanombo Medical Officer Accident and Emergency in each case.
    
20. In cross-examination he confirmed that any injuries whether physical or sexual assault nursing staff would see it. If it were sexual assault a medical officer would be referred to see the patient. The Doctor in Charge of outpatient would see such a person as was the case here. Patient had come through normal obtaining including the medical report that was given. Unless the court ordered then an affidavit would be deposed to attaching medical report of the examination. The fee is K 100 paid to be given a medical report. Here there is no receipt but the medical report is by that medical officer.
    
21. That was the State case upon closure of which the Defence made a no case submission urging that the court stop the case because there was no case to answer against the accused on all the charges that were laid against him. Reliance was placed on Rape, The State v [1976] PNGLR 96 (17 March 1976), that it was a question of law, as to whether or not at the closure of the State case, the accused could be lawfully convicted on the evidence as it was at the closure? It was a question of law, it was prima facie as opposed to what was left to the Jury at the end, which was not the case here. Bearing that a man cannot be tried twice for the same offence charged. Conversely it is discretionary still within the ambit of the Court where the evidence is so tainted riddled with inconsistencies, is incredible, is so unreliable and lacking in credibility that no reasonable tribunal will call the Accused to answer, that is where the Court has the discretion to stop the case. The accused for all intent and purposes is entitled to be acquitted on the charges laid, Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37), The State v [1983] PNGLR 287 (14 September 1983).
    
22. Clearly from what has been set out above there is a case to answer against the Accused prima facie. He has been identified as the main player in the offences that are alleged against him on that day. He is identified by name Donald Vincent Jerry of Kreer village, our next-door neighbour of 5 to 7 years now. We call him brother both Anita Kambun and Jethro Pori, I call him son says Agnes Hembiwasi. Then they immediately go down at 5.00am in the morning to his house and tell him we saw you Donald Vincent Jerry. And informed the Councillor of Kreer village of that fact. This is an hour later after the commission of the offence upon them. It is common sense that if you have seen the perpetrator of the allegation and you know where they live, you immediately go there to make the assertions and take them into the hands of the law. That is what the witnesses have done here. This is not out of the ordinary. It is credence to their evidence. It is good evidence that viewed in the light of John Beng v The State [1977] PNGLR 115 is not fleeting glance made out in difficult lighting circumstances of a stranger. The defendant is well known and was identified in very good lighting by all three witnesses called. He is the next-door neighbour, son and brother, Donald Vincent Jerry. There is a case to answer in respect of count 1 aggravated armed robbery, count two rape and three rape.
    
23. Accused gave sworn evidence that his name was Donald Vincent Jerry. He was 34 years old married with two daughters and was from Kreer Village. He had two houses one was at Kreer village, and the other was at Kreer heights. On that night Saturday 08^th December 2018 he was drinking up until afternoon. And stayed in the village until morning. He was called by the Councillor Jeffrey Yapo in the morning when Anita and the others came and reported. That there was a break enter and stealing and rape also at their house. I tried to help them and find out who caused this? What actually happened? They did not tell me that I was involved in and that I committed the offences. We checked but we did not identify anyone. On the 9^th December 2018 I was in the house, I did not run away. Police said we go and straighten talk at the Wewak Police Station, but they locked me in the cells for one week. After one week the Arresting Officer Jerry Peter assaulted me and broke my hand and burnt down my house. After mention in Court, I was sent to Boram Corrective Institution. I don’t know about the incident we stayed until daybreak. I have two daughters aged 5 and 3 years old and a wife. We all live together. I would not have done this to Agnes. I do not have any grudges; she calls me son.
    
24. I was the only one charged with the offence of Rape, Break entering and stealing and detained at Boram CIS from 2018, 2019, 2020, 2021 when I came out on bail. Police burnt down my house at Kreer and broke my hand. This was done after they had fired their guns scaring everybody away and then they burnt down my house. Two days after they took me to the hospital for my broken hand. I got medication then. And the evidence is the medical report Defence Exhibit D2. But that did not have the history of being assaulted by Police to sustain. So, it was not reliable to level his story.
    
25. In cross-examination he could not explain why his neighbour Agnes Hembiewasi would make a very serious allegation against him. They were like family having lived right next door to each other for five years. There was no reason to bring that allegation after all he was the person landowner from whom they had purchased the subject land that they lived on. He gave no reasons convincing to create any doubts against their evidence. Nor did he give any serious answers against the fact that sexual intercourse was intimate and close. The man conjointly with the female so much so that they were looking into each other’s eyes and face.
    
26. His witness in defence Jeffrey Yapo councillor from Kreer village aged 69 years old did not support his story that he was never in the village until the morning drinking. But it supported the reporting and the fact that he was drinking near the vicinity of the Councillors house. And the Councillor said it was not a matter in his discretion and that it must be reported to Police which the Complainants did.
    
27. He attempted to call another witness on Alibi but had not filed a notice of Alibi in accordance with the Criminal Practice Rules Order 4 division 2. He had not within 14 days prior to the start of the trial given notice of his alibi. The issue was identification and it was appropriate to give the State that notice. Here it was not filed nor was it on record. Hence the objection by the State sustained and do this witness was not called by the Accused. He closed his case on that note.
28. At the end of all evidence both for and against, it was undisputed that there was an aggravated armed robbery that was committed by men who were in company and armed with two homemade guns and knives who came to the dwelling house of Agnes Hembiwasi and family at about 3.00 and 4.00am in the morning. One of the men called out to the son of Agnes Hembiwasi, one Jethro Pori who opened the door. As he did two men armed with two homemade guns accompanied by others who were armed with knives entered the dwelling house. Inside the house they stole the properties within including clothes, string bags (bilums), electric fan, deep fryer, rice cooker, mobile phones, and the box belonging to doctor. It is also undisputed that the money set out alleged was also stolen, K300.00 in cash. And that these were put on the wheelbarrow and taken away by the accused and accomplishes that night. In the course of that aggravated armed robbery they also had sexual intercourse without the consent of both Agnes Hembiewasi and Hodilia Pori. Both were assaulted and forced to submit to penetration of their vagina with the penis of the assailants. Both Agnes and Hodilia Pori did not consent to the acts of sexual penetration upon them.
    
29. In the case of Hodilia Pori the accused role is consistent with Wani v The State [1979] PNGLR 593 (30 November 1979). He was part and partial of the gang he did not disapprove nor did he do anything to desist the commission of that crime upon her. He was armed with a homemade gun. He was physically present in that room and there as the rape was perpetrated upon Hodilia Pori. He is therefore a principal offender and is covered by section 7 and 8 in the commission of the offence. He knew what was happening did not stop it, Karani and Aimondi v The State [1997] PGSC 19; SC540 (31 December 1997). All were part of that group that he led and his role in the room was encouraging the crime, Kiala and Gomosi, The State v [1977] PNGLR 470 (17 November 1977). He is therefore a principal offender within section 7 and 8 of the criminal code to rape. Accordingly, he is guilty of that rape upon Hodilia Pori.
    
30. The issue for determination was the identity of the persons who had committed the offences upon them. The relevant law was; “In proceedings where evidence of identification is relevant, the Court should be mindful of all the inherent dangers, the need for caution before convicting in reliance on the correctness of identification, the possibility that a mistaken witness could be a convincing one and that any number of such witnesses could all be mistaken; the Court should examine closely all the circumstances in which the identification by each witness came to be made bearing in mind that recognition may be more reliable than identification of a stranger, but that even where the witness is purporting to recognize someone he knows mistakes can be made. When the quality of the identification evidence is good the matter should proceed to a verdict, when the quality of identification evidence is poor, unless there is other evidence which goes to support the correctness of the identification, an acquittal should be entered.” John Beng (supra)
    
31. In my view the evidence on identification set out of all three witnesses Agnes Hembiewasi, Anita Kambun, and Jethro Pori are all very consistent and credible. Each witness has described in all material particulars seeing Donald Vincent Jerry as committing the offences alleged. There is nothing to doubt that he was positively identified. Each witness individually saw him in very good light unmasked plain clear and at very close quarters that he was Donald Vincent Jerry their next-door neighbour of five years. He was the person from whom they bought the land they were resident on. He was immediately next door they would not have made an allegation as serious as aggravated armed robbery and two counts of aggravated rape against him without seeing him as they did. Each saw him from where they were at very close quarters in very good light. It was not a fleeting glance of a masked hood made under very difficult lighting conditions. Here he was seen with his brother Adolf by Jethro Pori, as they climbed up to the top where Donald Vincent Jerry was seen by Anita Kambun as his mask came off. Then when he went down to the room of Agnes Hembiewasi, she saw him when he broke down the door, and came into her room and raped her.
    
32. The aggregate of all the evidence particulars set out above is that there are no doubts about the veracity and the credibility of the evidence in the identification of the Donald Vincent Jerry as the perpetrator of the offences of aggravated armed robbery and then the offences of Aggravated Rape, firstly committed upon Agnes Hembiewasi and then aided and abetted, committed upon Hodilia Pori. Accordingly, the verdict on the Indictment laid is guilty of aggravated armed robbery pursuant to section 386 (1) (2) (a) (b) (c) first count. Secondly guilty of Aggravated Rape pursuant to section 347 (1) (2) Criminal Code Act committed upon Agnes Hembiewasi. Thirdly guilty of Aggravated Rape pursuant to section 347 (1) (2) committed upon Hodilia Pori.
    
33. Verdict is guilty of all three counts on the Indictment.
    
34. Bail Refunded forthwith Remanded in Custody to await sentence.
    

Orders Accordingly

_______________________________________________________________

Public Prosecutor: Lawyer for the State

Kaman Lawyers: Lawyer for the Defendant