State v Joe [2024] PGNC 151; N10829 (19 April 2024)

N10829

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 88 OF 2020

THE STATE

-v-

KELLY JOE
Accused

Lae: Polume-Kiele J
2020: 10^th February, 2^nd March, 14^th May, 1^st June, 9^th July, 5^th August, 8^th September, 6^th October, 3^rd November, 2^nd December
2021: 17^th February, 3^rd March, 12^th, 30^th April, 1^st July, 1^st September, 1^st & 21^st October, 1^st November, 1^st December
2022: 25^th February, 1^st March, 9^th May, 3^rd, 10^th October
2023: 9^th March, 13^th April, 7^th & 9^th June
2024: 19^th March, 19^th April

CRIMINAL LAW- Trial - Rape – Criminal Code, s 347(1), - Particular offences - Evidence - Corroboration - Warning on uncorroborated evidence – verdict of guilty returned.

Cases Cited.
The State v Igabuasi (CR No. 1053 of 2005) -Unreported judgment per Gabi J) ) (2005)
John Beng v The State [1977] PNGLR 115
The State v Kevin Anis & Martin Ninigan (2003) N2360
The State v Cosmos Kutau Kitawal & Anor (No 1) (2002) N2266
The State v Paka [2016] N6914
The State v Theo Yasause (2012) N4871
John Jaminan v State (No.2) [1983] PNGLR 318

Counsel:
Ms S Joseph, for the State
Mr. C Boku, for the Accused

RULING ON VERDICT

19^th April 2024

1. POLUME-KIELE J: On 21 October 2021, the accused was indicted for one count of rape pursuant to s 347 (1) of the Criminal Code. The accused pleaded not guilty, and the matter proceeded to trial.
   
2. Trial commenced on the same day. The State called the complainant and two other witnesses to give evidence. The State closed its case on the same day.
   
3. The Defence opened its case on the 24 February 2022. The accused, Kelly Joe was the only witness called to give evidence. The accused gave sworn oral evidence on oath in his defence in the pidgin language and he was cross-examined. It was translated into English.
   
4. On 10 October 2022, the accused was remanded into custody for absconding bail.
   
5. On 9 June 2023, Counsels addressed the Court on verdict.
   
6. This is my ruling on verdict.
   

Brief facts

7. The complainant, Dulcie Winare and her husband live in a rented room in a house at Admin Compound. The house is owned by the mother of the accused, Kelly Joe. On Sunday, 1 September 2019, between 6 a.m. and 7 a.m. whilst the complainant was fast asleep with her husband after a night out of drinking alcohol, she felt someone was on top of her and this person was attempting to insert his penis into her vagina but for some reason, this person could not sexually penetrate her. She however, felt pain on her thighs as the accused inserted his tongue into her vagina. She (complainant) woke up and saw that it was the accused, Kelly Joe who was pressing on her thighs and inserting his tongue into her vagina whilst her drunk husband was deeply asleep next to her. She then called out the accused name and got into an altercation with him. The accused then wore his trousers and walked out of the room. She called out to the accused's mother and told her of what had just happened. The accused denied the allegation and walked away.
   
8. A complaint of the sexual assault was subsequently lodged with the Lae Police by the complainant. The Police Sector Response Unit 102 went to pick up the accused, but he escaped. The accused was arrested a week later and taken into custody.
   
9. On 2 September 2019, the complainant went to the Family Support Centre for a medical check. On 3 September 2019 she gave her statement to the Sexual Offence Squad at the Lae Police Station.
   
10. The State alleges that the actions of the accused when he sexually penetrated the complainant without her consent contravened Section 347 (1) of the Criminal Code Act.
    
11. The accused denies all the allegations contained in the charge.
    

The Charges

12. The charges under Section 347 of the Criminal Code states:
    

"(1) 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."

13. For our purposes, ‘sexual penetration, is defined under s 6 of the Criminal Code Act. Section 6 defines sexual penetration as:
    

"When the expression "sexual penetration" or "sexually penetrates" are used in the definition of an offence, so far as regards that element of it, is complete where there is-

(a) the introduction, to any extent, by a person of his penis into the vagina, anus, or mouth of another person; or

(b) the introduction, to any extent, by a person of an object or a part of his or her body (other than the penis) into the vagina or anus of another person, other than in the course of a procedure carried out in good faith for medical or hygienic purposes."

14. Furthermore, "Consent" is also defined under Section 347A of the Criminal Code, Section 347A states:
    

“(1) For the purposes of this Part, "consent' means free and voluntary agreement.

(2) Circumstances in which a person does not consent to an act include, but not limited to, the following: -

(a) the person submits to the act because of the use of violence or force on that person or someone else; or

(b) the person submits because of the threats or intimidation against that person or someone else; or

(c) the person submits because of fear of harm to that person or to someone else; or

(d) the person submits because he is unlawfully detained; or

(e) the person is asleep, unconscious, or so affected by alcohol or another drug so as to be incapable of freely consenting; or

(f) the person is incapable of understanding the essential nature of the act or of communicating his unwillingness to participate in the act due to mental or physical disability; or

(g) the person is mistaken about the sexual nature of the act or the identity of the person; or

(h) the mistakenly believes that the act is for medical or hygienic purposes; or

(i) the accused induces the person to engage in the activity by abusing a position of trust, power, or authority; or

(j) the person, having consented to engage in the sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity, or

(k) the agreement is expressed by the words or conduct of a person other than the complainant.

(3) In determining whether or not a person consented to that act that forms the subject matter of the charge, a judge or magistrate shall have regard to the following: -

(a) the fact that the person did not say or do anything to indicate consent to a sexual act is normally enough to show that the act took place without the person's consent; and

(b) a person is not to be regarded as having consented to a sexual act just because –

he did not physically resist; or

he did not sustain physical injury; or

on that or on an earlier occasion, he freely agreed to engage in another sexual act with that person or some other person.

The Charge

15. The accused is charged with an offence of rape prescribed under s 347 (1) of the Criminal Code. The evidence adduced is that the accused, Kelly Joe, sexually penetrated the complainant, Dulcie Winare, with his tongue without her consent.
    
16. To determine guilt "Sexual penetration" is defined under Section 6 of the Criminal Code as follows:
    

"When the expression "sexual penetration" or "sexually penetrates" are used in the definition of an offence, the offence, so far as regards that element of it, is complete where there is—

(a) the introduction, to any extent, by a person of his penis into the vagina, anus, or mouth of another person; or

(b) the introduction, to any extent, by a person of an object or a part of his or her body (other than the penis) into the vagina or anus of another person, other than in the course of a procedure carried out in good faith for medical or hygienic purposes."

Elements of the offence of rape

17. The State’s case is that the accused for sexual purposes used his tongue to sexual penetrate the complainant’s vagina.
    
18. To return a verdict of guilty of the offence, the following elements are crucial for the State to establish beyond reasonable doubt: These elements are:
    

(i) a person (identification)

(ii) sexual penetration of another person

(iii) lack of consent

The maximum penalty is imprisonment for a term not exceeding 25 years as prescribed under Subsection (1).

Burden of Proof

19. Pursuant to Section 37(4) of the Constitution states that any persons charged for any offence is presumed innocent until proven guilty. The State therefore carries the burden in proving its case against the accused, Kelly Joe, beyond any reasonable doubt.
    

Defence (s) raised by the accused is: General Denial

20. The accused denied that he raped the complainant, Dulcie Winare. He says in his defence that he was there in front of complainant and her husband's bedroom. He further states that he was there but only to close the door to their bedroom which was open whilst they were sleeping naked.
    

Issue for determination

21. Whether or not the accused Kelly Joe did on 1 September 2019 sexually penetrated the complainant, Dulcie Winare without her consent by inserting his tongue into her vagina?
    

The State’s case

The allegations

22. The State’s case is that between 6 a.m. and 7 a.m. on Sunday the 1 September 2019, the accused, Kelly Joe, entered the bedroom which the complainant, Dulcie Winare and her husband rented at the Admin Compound. They were fast asleep after a night out of drinking alcohol when she felt someone was on top of her. This person was attempting to insert his penis into her vagina. However, this person could not sexually penetrate her. But she then felt pain as the accused, Kelly Joe pressed on her thigh whilst he inserted his tongue into her vagina. She (complainant) woke up and saw that it was the accused, Kelly Joe, and not her husband. Her husband who had been drinking the previous night was deeply asleep next to her. She then called out the accused, Kelly Joe’s name and got into an altercation with him. The accused wore his trousers and walked out of the bedroom. She called out to the accused's mother and told her of what had just transpired. The accused denied the allegation and went away.
    
23. The complainant, Dulcie Winare subsequently lodged a complainant of the sexual assault to the Police. The accused, Kelly Joe was arrested a week after the offence was reported and taken into custody.
    
24. On 2 September 2019, the complainant went to the Family Support Centre for a medical check. On 3 September 2019 she gave her statement to the Sexual Offence Squad at the Lae Police Station.
    

The State’s evidence.

25. To prove its case, the State also called three witnesses, the complainant, Dulcie Wenare, Sr. Kasa and First Constable Valentina Kui. All of them gave sworn oral evidence under oath. The State also tendered into evidence several documentary evidence by consent.
    

Documentary Evidence

26. The documentary evidence as set out below as follows:
    

(1) Medical Report of Dulcie Winare "Exhibit A" which stated that the Complainant attended Family Support Centre and a medical examination was conducted on 2 November 2019 at The Medical Report also contained the result of the examination being conducted on the complainant.

(2) Affidavit of Sr. Kasa dated 6 December 2019 “Exhibit B" An Affidavit annexing the Medical Report on Dulcie Winare

(3) Statement of Valentina Kui dated (1 October 2019) "Exhibit C" Her Statement is in relation to when she first received the Complaint of Dulcie Winare

(4) Record of Interview of the accused dated 10 September 2019, on the alleged offence whereby the accused Kelly Joe denied committing the alleged offence. (the Original Pidgin Version). Record of Interview (Exhibit “D”1 and “D” 2” – (English version).

(5) Statement of Policewoman "Exhibit E" Statement in relation to the manner Constable Alice Gwabiru dated in which she conducted the Record of Interview on 12 October 2019.

(6) Statement of Sergeant Mary Watah (Exhibit "F"). Statement in relation to her corroborating the record of interview for the accused on 12 October 2019.

Oral Evidence – Examination in Chief

27. The State also relied on oral evidence from the following witnesses who all gave sworn evidence under oath.
    

Sister Sarah. W. Kasa

28. Sister Kasa gave sworn oral evidence in English. In her evidence she states that she is the Nursing Officer attached to the Family Support Centre, Angau Memorial Hospital. She is a registered nurse at the Family Support Centre at the Angau Memorial Hospital, and she has been a Nurse for 29 years. She holds a Certificate in General Nursing, and she is currently doing Postgraduate Studies with the Griffith University. As a registered Nurse at the Family Support Centre, she specialises in intimate and sexual violence. The target at FSC is they do integrate psycho and social care. At the FSC they have 4 Nurses, each Nurse to see patients or survivors. A client is scheduled to see a Nursing Officer and for medical examination.
    
29. Sister Kasa confirmed that she attended to the complainant, Dulcie Winare at the Family Support Centre on 2 September 2019 and that she prepared a medical report on Dulcie Winare which is dated 2 November 2019. She states that the patient complained of sexual assault. She also confirmed that she did conduct a medical examination of the complainant. In her medical examination she noted the following:
    
    • Vulva- whitish discharges noted on the entire inner vulva, white particles like toilet tissue noted at 4 o'clock, 6 o'clock and 8 o'clock positions of the outer vulva:
      
    • Hymen – unremarkable
      
    • Vaginal Opening - whitish discharges noted on the vaginal opening.
      
    • Vaginal walls - not visualised.
      
    • Cervix - not visualised.
      
30. Sister Kasa confirmed that the medical findings are consistent with the history obtained from the survivor.
    

Cross-examination

31. In cross-examination, it was put to the witness that the medical report stated that the hymen was unremarkable, this could mean she did not see anything, and the witness answered the hymen is normal so there is nothing she could see out of the ordinary.
    
32. The Court then enquired as to when she says 'unremarkable' what does she mean, and the witness answered its normal. The Court then enquired as to what would be abnormal and she answered that for a survivor who is 32 years of age you don't see anything abnormal. If you're married or living with your partner the hymen will always be unremarkable.
    

No re-examination

Dulcie Winare

33. The second witness called by the State is the complainant, Ms Dulcie Winare. She gave oral testimony under oath in English. In her oral testimony, she states that she is from East Sepik and that she has been living at Admin Compound for the last seven (7) years. She is unemployed and is married to a Nathan Dumbul.
    
34. The witness states that she is in Court to give evidence in relation to her complainant about the accused, Kelly Joe. She identifies the accused, as Kelly Joe and she points to the accused sitting in the dock as Kelly Joe.
    
35. The witness gave evidence that in the early hours of Sunday, 1 September 2019, the accused, Kelly Joe went inside her room, removed her shorts, and licked her female part. Whilst he was doing that, she felt his hands pressed against her thigh and put his tongue inside her, she opened her eyes and saw him, Kelly Joe. When she realised that it was him and not her husband, she fought with him. Kelly Joe then pulled up his sport wear and ran outside.
    
36. She also gave evidence that during all this material time her husband was sleeping next to her, he was drunk. He did not hear or feel anything. She further gave evidence that Kelly Joe went to his mother's house, so she went to his mother's house and raised the matter with his mother. The witness and her husband rented a room in the accused's mother's house. The accused, and his mother lives at the back.
    
37. She gave evidence further that she went and argued with the family of the accused. She later went to the main road of Admin Compound and was there when she spotted the Police Sector Response Unit 102 and stopped the Police vehicle. She reported what happened to Police and they went into the Compound to arrest the accused, but he ran away.
    
38. She then went to the Police Station to report the matter but was told to go and get a medical report. On 2^nd September 2019, she went to the Family Support Centre (FSC) for a medical examination.
    
39. She further explained to the Court what the accused "em lickim”. Meaning that the accused, Kelly Joe performed oral sex on her, specifically on her vagina with his tongue. She confirmed further that the accused inserted his tongue into her vagina.
    

Cross-Examination

40. In cross-examination, the main contention put to the witness is that her husband is not a witness to the allegation of sexual assault against the accused and therefore her complaint or story is unreliable and that she is lying to Court.
    
41. In her reply to the cross-examination, the witness told the Court that she did tell her husband of the assault, and he knew of the police complaint and supported her during this ordeal. In any event, the husband did not see anything. She maintained that everything in her statement to the police relating to the sexual assault is true. In any event, the complainant is an adult, she does not need the consent of her husband to go and report the matter to the Police.
    
42. In her evidence she confirmed that she told the mother of the accused of the assault and asked the mother to bring her son to the Police Station, but he ran away. She confirmed the offending occurred on the 1st of September and after nine days she went and sought the assistance of the Community leaders, and they took the accused to the Police Station.
    
43. She states that she and her husband had been drinking the previous night and had returned home and went to sleep in their room. She says that their door had been locked that night when they went to sleep. As to how the door to their room would have been opened, she cannot say. But she maintained that when she woke up, she saw the accused in the room, and he was pressing onto her thigh and licking her private parts. She did see the accused, Kelly Joe in the room that morning. As to the accused’s story that he went only to close the door to their room, she told the Court that this story is not true. The door to their room was closed.
    

Constable Valentina Kui

44. Valentina Kui gave oral evidence under oath. In her oral evidence, she states that she is a Policewoman attached with the Public Safety Unit for five years. She gave evidence that she is here before the Court to give her evidence in relation to a Complaint on 1 September 2019. The complaint is in relation to rape. The Court asked the witness if she did a Statement to that effect, and she answered yes and was shown her statement. She gave evidence that the Complainant is Dulcie Winare who came to the Lae Central Police Station. The witness attended to the complainant and obtained her story; she recorded it in the Occurrence Book (OB) and referred the matter to the Sexual Offence Squad for further investigations.
    
45. There was no cross-examination of this witness.
    

Defence case

46. The defence only called one, witness and that was the accused, Kelly Joe. He gave sworn oral evidence in his defence.
    

Accused – Kelly Joe

47. The accused gave sworn oral evidence in his defence and testified that his name is Kelly Joe and resides at Admin Compound. He does not work. He recalls Sunday 1st September 2019 between 6:00 a.m. and 7:00 a.m. He recalled that time he went home with one girl, a girl who he does not know her name or where she lives.
    
48. In his evidence, he says that he was there at the date, time, and place of the offence but he did not commit the alleged offence. He was with another young woman. He only went to the room to close the door to the complaint’s room because it was opened. She and her husband were in the room sleeping naked.
    
49. His oral evidence is consistent with the questions and answers contained in the Record of Interview dated 10 September 2019 during which the accused told police during the ROI is that the door to the room was open, so he only went to close it. The couple were sleeping naked he so left. He says that as he was walking out, the complainant saw him. He also gave evidence that he saw the complainant and her husband consuming alcohol at LFA at the previous night.
    

Cross-examination

50. In his cross-examination, the accused confirmed that his name is Kelly Joe. He has lived at Admin Compound for 24 years. He has a house and lives there. He also confirmed that he had been drinking alcohol from Saturday to Sunday morning, 1 September 2019. When put to him that on that Sunday morning, he went to the house, he saw that door to the room which the complainant and her husband occupy was open. He answered 'yes'.
    
51. It was also put to him that he was drunk when he went into the room and tried to rape the complainant. He answered 'no'. It was put to him that he pressed upon her thighs and inserted his tongue into her vagina, and he answered 'no'. It was put to him that the complainant woke up and struggled with him. He answered 'no'.
    
52. Counsel then asks him to give the name of the girl he was with that morning. In his reply, he told the Court that this woman he does not know her name or where she lives. So, Counsel put to him that he was never with girl that Sunday morning. He however, maintained that it was true, he was with a girl this morning.
    
53. In conclusion, Ms Joseph also put to him if it was correct that the policewoman who earlier gave evidence that the accused and his family initially wanted to settle the matter out of Court, was that was correct? He answered, “Yes”.
    

Assessment of evidence

54. In assessing the whole of the evidence adduced during trial, I am mindful of the fact that the onus is on the State to prove all the elements of the offence of rape. I am therefore grateful to Counsel, Ms Joseph for referring the Court to an unreported judgment of his Honour, Gabi J in the case of (CR No. 1053 of 2005 The State v Igabuasi. In that case, His Honour Gabi, J, stated that in order to ascertain and proving the State's case, the State has to show that all the elements of the offence of Rape had been adduced before this Honourable Court. These elements include:
    

(1) Identity of the Perpetrator

55. The case on point in identification of an accused is well established in the case of Beng v The State [1977] PNGLR 115, where the Court expressly stated that:
    

"Where the identification relied upon is that of a single witness, it is proper to be mindful that the identification was critical and that mistakes have in the past occurred in regard to identification thereby occasioning a miscarriage of Justice and the Court must be satisfied that the witness was not only honest but accurate in the evidence given.

Matters to be taken into account are what opportunities the person identifying had to form a judgment of the identity of the person who committed the crime, the position of the parties when the identification was made, the lighting, the opportunities to form a judgment and generally the circumstances in which the identifying witness formed his judgment as to identification".

56. Ms Joseph for the State submits that the State has proven this element of the offence. This is because the Complainant, Dulcie Winare has identified the accused, Kelly Joe. as the perpetrator. The accused is identified by the complainant in evidence that she was in Court to testify against Kelly Joe; she identified the accused as Kelly Joe who is sitting in the dock.
    
57. She testified that she knows, Kelly Joe the accused prior to the alleged offending as she and her husband rents a room in his mother’s property, situated at Admin Compound, Lae. The accused is not a stranger. She also gave evidence that at the time of the alleged offending, she was placed at a position where when she sat up from her sleep, she saw the accused, Kelly Joe and at the same time she got into a fight with him. She testified that it was the accused, Kelly Joe who she had a fight with, and she is not mistaken. She further testified that it was the accused, Kelly Joe who is the person who sexually penetrated her during the early hours of 1 September 2019.
    

(2) Sexual Penetration

58. As to what is the expression “sexual penetration”, I am referred to Section 6 of the Criminal Code which provides for the definition of the word 'sexual penetration' as
    

"when the expression 'sexual penetration' or 'sexually penetrates' are used in the definition of an offence, so far as regards that element of it, is complete where there is-

(a) the introduction, to any extent, by a person of his penis into the vagina, anus, or mouth of another person; or

(b) the introduction. to any extent. by a person of an object or part of his or her body (other than the penis) into the vagina or anus of another person, other than in the course of a procedure earned out in good faith for medical or hygienic purposes."

59. In this case, the complainant gave evidence that on Sunday 1st of September 2019 the accused, Kelly Joe went into her and her husband's room that early morning on Sunday, removed her shorts and licked her vagina and inserted his tongue into her vagina. Her evidence is corroborated by State witness, Sr. Sarah Kasa of Family Support Centre who also gave evidence that the complainant Dulcie Winare had reported to the Family Support Centre on the 2 September 2019. She complained of sexual assault which had occurred the previous day, on 1 September 2019.
    
60. Sister Sarah Kasa gave evidence that she conducted a medical examination of the complainant, Dulcie Winare on that day. Upon medical examination she noted whitish discharges on the entire inner vulva; white particles like toilet tissue noted at 4 o'clock, 6 o'clock and 8 o'clock positions of the outer vulva. She further noted whitish discharges on the vaginal opening. She states that from these observations, she formed the opinion that the medical findings are consistent to the complainant's story.
    

(3) A person without her consent

61. Overall, from the evidence that the Complainant gave, she said she was fast asleep with her husband when the accused went into their room and for sexual purposes inserted his tongue into her vagina without her consent.
    
62. Further and in addition, Section 347A of the Criminal Code provides that "consent” means free and voluntary. Whereas in this case, the complainant did not consent to the actions of the accused hence by virtue of Section 347 (1), Section 6 and Section 347A the Complainant did not consent to the alleged act of the accused.
    

Assessing credibility of witnesses

63. The State submits that in assessing the evidence the primary question for this Court is who to believe. Should the Court believe the independent State witnesses, or should the Court believe the accused or his family members?
    
64. In determining the question of who to believe, this Court is referred to the case of The State v Kevin Anis & Martin Ninigan (2003) N2360 where his Honour Kandakasi J (then) stated that to do this, the Court should assess the credibility of each witness. His Honour Justice Kandakasi in The State v Cosmos Kutau Kitawal & Ano (No 1) (2002) N2266, stated further that common sense and logic plays a major role in determining credibility of a witness's evidence and his Honour Kandakasi J (then) went on to also state; "Logic and common sense does play an important part in either the rejection or otherwise of evidence before a court of law and whether or not an accused person should be found guilty".
    
65. I am also referred to the case of The State v Paka [2016] PGNC 425; N6914 where the Court considered that to determine which version of the stories is credible depends on a number of factors:
    

"Firstly, the degree of logic and common sense usually plays a big part in this process including the demeanour and performance of the witnesses in the witness box and consistencies in their evidence as established in Garitau Bonu and Rosa Bonu v The State (1997) SC 528; Peter Waragu Waranaka v Gabriel Dusava (2009) SC 980. Furthermore, having stated the above, it is equally important to note that a lying witness can also be forceful and convincing in their evidence and yet be lying; whilst on the other hand, a truthful witness can be so unconvincing in their appearance and yet be telling the truth. [see Andrew Palili v The State (2006) SC 848] Similarly there is no rule of law which states that the more witnesses called by a party and the more consistent or identical their stories given by that party must be correct version of what occurred and should be believed than the opposing party who called only one witness. [see State v Jacob Dugura Roy (2007) N3137]. The Complainant in the case of PAKA was a much more impressive witness than the accused. She gave her evidence clearly, calmly and directly whereas the accused was evasive."

66. Accessing the overall evidence of the accused, I am minded arriving at a conclusion overall is that there is a dent in the credibility of the accused in his evidence adduced in his legal defence. The defence that although he was at the scene of the offending at the relevant time and place, he was with another girl. A girl with no name and place of residence. This legal defence, I must say clearly offends the principle of logic and common sense.
    
67. So, when pressed to identify the girl by name, the accused failed to give an accurate detail. He replied that he forgot her name or where she does live in Lae. A mystery girl, to put it at that or even where she is from. Even her ethnicity is unknown.
    
68. In any event, if this girl is an alibi, that I must point out that there is deficiency in the accused alibi evidence since he failed to call her to give evidence in his defence. A case on point is that of The State v Theo Yasause (2012) N4871 (Kangwia, AJ) where the Court acknowledged the principles of Alibi evidence in John Jaminan v State (No.2l (1983) PNGLR 318 (Pratt, Bredrneyer, Amet, JJ) and stated:
    

“.... It is not necessary to state them here fully, but it would be remiss of me not to mention here that a defence of alibi is a complete negation as it puts every matter in issue, unlike the defence of provocation or self-defence which are excusatory. The risk of setting up an alibi is that if it is not convincing or false then the accused is left with no answer. The accused must lead evidence of alibi and it must be of sufficient weight, sufficiently credible and sufficiently convincing to create a doubt in order to gain an acquittal. This would depend more on the strength of the prosecution evidence as the accused is not required to prove alibi. ...”

69. If the defence were to rely on the legal defence of alibi, which is a complete negation to the offending, the risk of setting up such an alibi is that if it is not convincing or false then the accused is left with no answer.
    
70. Given the lack of evidence adduced during trial by the defence to support the legal defence of alibi, I am doubtful as to the sufficient weight, or to its sufficient credibility of the defence of alibi witness. I therefore find that the defence of alibi is not sufficiently convincing to create a doubt in my mind to gain an acquittal.
    
71. It is my finding therefore that the only inference which would naturally flow from the whole of both the State and Defence evidence is that the accused had been drinking all night Saturday and onto Sunday morning. On the morning of the offending, he was drunk. Whilst intoxicated he may have either unintentional stumbled across the complainant's and her husband's room and or intentionally walked inside, that aspect of the evidence is unclear. However, from his evidence adduced during the trial, he admitted that he was at the scene. He went in to close the door of the complainant’s and her husband’s room which was wide open, and they were both asleep naked. So his evidence places him at the scene of the crime scene.
    
72. Further and in addition, I gather from the evidence of the complainant that the accused lived with his mother at the back of the house. If the accused lived with his mother at the back, questions would arise as to why, he was in the main house where the complainant and her husband are renting? According to his own evidence, their door was wide open, and they were sleeping naked, so he went over to close their door and that was when the complainant saw him.
    
73. But firstly, questions would be raised as what was he doing within the main rented house and standing at the door of the rented room occupied by the complainant and her husband.? His story does not add up. Something is amiss. Common sense and logic must now apply to appreciate the logical sequence of events. Firstly, this room is rented to guest or paying clients. They expect privacy and thus, for someone to say that their bedroom door was wide open and that they were sleeping naked implies that the accused did actually enter their bedroom without their consent and authority, more so in the early hours of the morning, on 1 September 2019.
    
74. The complainant on the other hand says that the door to her bedroom had been closed the door when they went to sleep. Although she did say that she went to sleep earlier than her husband, she confirmed that their door was closed. This evidence contradicts that of the accused.
    
75. So given this inconsistency, whose evidence should I believe? The complainant or the accused’s evidence? This is where credibility comes into play.
    
76. The complainant’s story of her and her husband both sleeping corroborates that of the accused, Kelly Joe. however, if they were sleeping peacefully in their natural surroundings in the privacy of their bedroom, how did the accused come about to stumble upon them in their slumber? It does not make sense and it beats the principles of common sense and logic.
    
77. Whilst accepting that there is no concrete evidence adduced to visualise the surrounding of the home and whether other people also rent and live within the home, I must say that I am more incline to believe the story of the complainant than the accused, Kelly Joe.
    
78. By reasons of the foregoing, I find and accept that the evidence of the complainant which is more credible as to what she encountered during the early morning hours of Sunday, 1 September 2019 in that the accused, Kelly Joe, had entered her and her husband’s rented room and did sexually penetrate her with his tongue whilst she laid asleep beside her husband in their bedroom.
    

Conclusion

79. By reasons of the foregoing, I find that each and every element of the offence of rape has been proved by the State. In that the elements of the offence are corroborated by the undisputed sworn evidence of the State witnesses with respect to and applying the common sense and logic test, the State has established its case beyond reasonable doubt.
    
80. Consequently, I enter a conviction against the accused for one count of rape pursuant to Section 347 (1) of the Criminal Code Act. The accused is therefore remanded in custody, in CIS, Buimo, pending sentence.

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