State v Kiapen [2024] PGNC 380; N11053 (23 October 2024)

N11053

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR(JJ) 329 OF 2022
CR(JJ) 334 OF 2022

BETWEEN:
THE STATE

AND
ELIJAH KIAPEN
& DAPLEY DUDE

Kokopo: Manuhu, J
2024:14^th, 15^th & 23^rd October

CRIMINAL LAW- Particular offence – Sexual Penetration – Evidence of Identification – Alibi – Consideration of – Findings of fact – Verdict.

Case Cited:
John Beng v State [1977] PNGLR 115

Counsel:
Mr. Andrew Kaipu, for the State
Mr. Joshua Hwekwahin, for the Accused

DECISION ON VERDICT

23^rd October 2024

1. MANUHU, J.: The accused Elijah Kiapen was indicted on 3 counts of aggravated rape while accused Dapley Dude was charged with 2 counts of aggravated rape. It is not disputed that the victim was raped by 20 males from 15^th to 17^th September 2021.

2. At the time of their arrests, the accused were juveniles. Kiapen was born on 3^rd December 2005. He was 16 at the time of the alleged offence. He is now 19 years old. He is no longer a juvenile. Dude was 18 years old in 2021. He is now 21 years old. He was not a juvenile at the time of the alleged offence.

3. It is alleged that Kiapen sexually penetrated the victim on 17^th September by inserting his penis into her vagina on two occasions and once in the mouth. Hence, the three counts of aggravated rape. For Dude, it is alleged that he sexually penetrated the victim’s vagina on two occasions with his penis on 16^th September. Hence, the two counts of aggravated rape.

4. It is not disputed that the victim was raped by about 20 males between 15^th and 17^th September 2021. The only issue is whether the accused were involved in the sexual assault. The prosecution bears the responsibility to establish through identification evidence that the two accused were among the males who raped the victim.

5. The prosecution commenced its case with the tendering of the records of interview, a medical report, statements of witnesses and photographs. The victim was then called to give her testimony. The prosecution closed its case after her testimony, and we adjourned to the next day for the defence to consider its options and advise.

6. At 9:30 on the next day, I was advised that Dude hadn’t come in yet. We waited until 10:00am. Dude hadn’t appeared. The Court convened and proceeded with the trial in Dude’s absence as it appeared that his absence was deliberate. The defence opened its case with Kiapen who gave sworn evidence. Kiapen’s mother and father also gave evidence.

7. Defence counsel then sought to have the trial split so that Dude could be tried separately when he is found. The application was refused. The Court already determined that Dude’s absence was deliberate. The trial already proceeded in his absence. Besides, in the absence of Dude, the application could not have been authorized by Dude. The defence case ended on that note.
8. In his submissions on verdict, Mr. Kaipu urged the Court to accept the victim’s identification evidence. The Court was also urged to disbelieve Kiapen and his parents. It was further submitted that they were not served with any alibi notice as required by the criminal practice rules. Defence counsel basically submitted that the victim could be mistaken in her identification of the two accused. The Court was referred by counsel to the oft-cited case of John Beng v State [1977] PNGLR 115, where it was held that:

“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.”

9. To fully appreciate the circumstances of the alleged crime, it is appropriate to set out the victim’s evidence, as per the transcript. Evidence of identification is underlined, for convenience.

____________________________________

EXAMINATION IN CHIEF BY MR KAIPU

Q: Witness when you are giving your answers, please speak up loud and clear. Look at the Judge and you address him as your Honour. Please state your name for the court’s record.

A: My name is Lynah Orim.

Q: And where are you from?

A: I am from Raburua.

Q: And what district is that in?

A: Kokopo District.

Q: And how long have you lived at Raburua village?

A: 25 years, your Honour.

Q: And do you work?

A: No.

Q: What do you do to make a living?

A: I used to do table market beside the road.

Q: Now, are you – did you go to school?

A: Yes, I attended school.

Q: What grade did you complete?

A: Grade 10, your Honour.

Q: Okay, at what School?

A: Malabunga Secondary School.

Q: Are you married?

A: Yes, I am married.

Q: How many children do you have?

A: One child.

Q: What is your husband’s name?

A: Ainui Baiai.

Q: Okay, Lynah, I will take you back to the – between 15 and 17 September 2021. You underwent a very bad case of rape.

A: Yes.

Q: Can you tell the court, when you tell your story, speak up loud and clear, do not tell your story too long. Just make it short, so that Judge and the lawyers will take notes and then you continue on. Tell the court on 15 September 2021, in the afternoon, what were you doing and what happened at that time?

A: I can recall the date 15 September 2021, at 4 o’clock in the afternoon, my boyfriend, Michael Dude, he rang me, or he called me to go and meet him just next to our house. So, we went to a garden; that garden is located or situated near Ralalar. There we sat down, told stories. And then we agreed to have sexual intercourse. The place was getting dark, and then I told him to go and leave me back at the house. But he told me that both of us should go and buy spear and then he will leave me. So, he was holding on to my mobile phone and my slippers so that was why I followed him.

So, as we walked along the bush track, we met a person by the name of Sakias July. So, Michael told Sakias to go and buy spear or smoke, and we waited for him at the bush track. Then Sakias came back, and then both of them said they will go and leave me. They said there was no torch and also my mobile phone was off. And then we came up with an agreement that myself and Michael will wait for Sakias at the bush house and Sakias will go and charge my phone so, that we can use my mobile phone torch light to follow the track to Raburua. We waited for him at the garden house and Sakias and a group of boys came down to the garden house. So, then they called out to Michael to go and see them outside. Then they sent him to go up to the road to get their whiskey. But Michael never went into the house again to let me know that the boys sent him to go up and get their whiskey.

So, when Michael left, I was surprised to see when Sakias entered. When he entered, he just ordered me to remove my clothes. I did not listen to him. So, he himself removed my clothes. I wanted to shout but he slapped me. And then he sexually penetrated me, and he told me to suck his penis. When he had finished, he got my clothes, and he ran away with them outside.

And then he told the other boys to go inside. And they took turns in sexually penetrating me. They threatened me with a knife, they assaulted me, they hit me. And they also swore at me, saying “eat vagina” or “kaikai kahn” when I was crying. It was in the night, dark; they set a fire outside and I could see them. Some of them I did not know their names but only two of them, Towin and Kepas. So, then they left me with three boys.

HIS HONOUR: They what?

A: Then they left me with three other boys.

Q: Those two plus three other boys?

A: After those boys had sexual intercourse with me or sexually penetrated me, they left and only three other boys with me, we were there. And they left, plus me and the other three boys were left behind.

Q: Those two guys you named them, did they stay back, or did they leave?

A: One went with the other boys, and one stayed back.

Q: Okay, who left and who stayed?

A: Towin left, but Kepas stayed back.

Q: Yes, go on.

A: So, it was going towards 4 o’clock.

MR KAIPU: Witness, 4 o’clock, what sun or night?

A: 4 o’clock in the morning, your Honour.

HIS HONOUR: Yes.

A: So, when Michael came and found us, he was very drunk. So, at that time Kepas and another boy left myself and Michael. That other boy, he pointed a knife at me and dragged me to a house made of sago leaves. At the – where the house was built of sago leaves, he left us there with Michael. I was begging Michael to go and leave me at my house at Raburua. At that time, I did not trust Michael anymore. But he swore at me, and he said “eat vagina” or “kaikai kan” you will not go to your house. I will take you to my house. And then he said he will tell his parents to go and leave shell money at my parent’s house. But I did not believe him; maybe he was just making fun of me.

So, from there he got me, walked along the road, that was along a bush track. So, we met three boys. I recognized them, but I did not know their names. That time, Michael told me that he will go and fetch water for me to drink. But when he went, he went for good, he never came back. So, those three boys, they pointed a knife at me with a screwdriver and they forced me to remove my clothes. And then they took turns in sexually penetrating me.

HIS HONOUR: That was on 16 September?

A: Yes, your Honour, that was on 16 September.

Q: At what time?

A: 6 o’clock.

Q: Night or morning?

A: 6 o’clock in the morning, your Honour.

Q: Yes. Go on.

A: After they had sexual intercourse with me, three of them had eye contact signs and one left and the other two boys with me, left the three of us, it was myself and the other two boys while the other boy left. So, I was surprised when the boy who left came back with a group of other boys.

Q: What time did they come back?

A: It did not take long; it was between the hours of six and seven.

Q: Morning?

A: In the morning. So, from there they took me to a place called “a Taraiu”. There at the “Taraiu”, I was surprised when I saw one of my brothers by the name of David Talvat. David plus another boy, they held onto my hand, and they dragged me down to a drain. I thought David would help me, but instead he sexually penetrated me. From there, they got me back up to the “Taraiu.” And then they removed my clothes, and they hid them. That time I was just like that or naked and they continued to – they took turns in sexually penetrating me. They were smoking drugs and the smoke which they inhaled were puffed out to my face.
At that time, I did not know all of them but only two boys I recognized, Melly Dude and Henry.

Q: Their names again?

A: Melly Dude and Henry. Melly Dude, at that time did not sexually penetrate me or had sexual intercourse with me yet, but he was puffing the smoke of the drug to my face. Henry sexually penetrated me and then he told me to suck his penis. So, at that time they left me there with three other boys. That was around 12 o’clock in the day or 12 mid-day. At that time, they gave me back my clothes and I wore them. And from 6 o’clock in the morning to 6 o’clock in the afternoon I was in the “Taraiu” with those three boys, Henry and another two.

At 7 o’clock, Michael came. He came to get me to go and have my bath. So, he took me to a house where nobody stays there, it was a ruined house. There I had my bath and then he told me to go and sleep for a while. I went in to sleep and I was surprised that he also followed me in and he came inside.

Q: All right.

A: I was surprised when he also came in, I was surprised when he came into the house.

Q: Who came in?

A: Michael. So, he asked me that he will sexually penetrate me, but I did not want, because of what he did to me, and I ended up in that very awkward situation.

Q: That was on 16 September?

A: 16 September in the night. So, he forced me, he sexually penetrated me which I did not agree, I did not consent.

Q: That was at the “Taraiu” or where was that?

A: The ruined house where nobody lives, where he got me to go and have my bath. After he had sexual intercourse with me, he went outside. So, there I was surprised when two other boys came inside, and they took turns in sexually penetrating me. The other one I did not know him, but the other one I knew him, it was Dapley Dude.

Q: Who?

A: Dapley Dude. Dapley Dude was very drunk.

Q: That was in the night of 16^th?

A: Yes, night, 16^th September in the night.

Q: That was his first time? That was the first time, he had sex with you?

A: Yes, your Honour. So, how I recognized Dapley Dude that night because the window was open and there was moon light. So, when they had finished, they took turns in sexually penetrating me, they went outside.

From there Michael came in to get me so that both of us could run away. When we came out Dapley Dude was standing at the doorway. And then he told me that we will run away to Vunadidir because the boys were looking for me. So, the boys heard the story that there was a female there where the boys were taking turns in sexually penetrating her.

We wanted to take a short cut to Vunadidir, but there were already a lot of boys. So, we also wanted to take a short cut to Raburua, but also there were a lot of boys already at the road. So, when both of us went we met three boys. It was Melly Dude, Kumau Bitauma, and the other one I do not know his name. There Michael told the three of them that “She is my girlfriend, leave her alone.” But I did not trust Michael anymore. So, the three boys, they pulled me to a bush, and they took turns in sexually penetrating me. And all the three boys, they forced me to suck their penis.

MR KAIPU: Sorry witness, this 1 o’clock, what was the date?

A: That was dawn of 16^th going towards 17^th the next day. So, from there they took me to a place where a “Subuna” or a bride ceremony was held. But they did not take me there, they again took me to another broken or ruined house next to the “Taraiu”. At that place, Michael left me with those three boys. So, they pulled me to a bush, banana patch. It was 4 o’clock, between 4 and 5, it was 4 o’clock going towards 5 am that was on the morning of 17^th September.

There they took turns sexually penetrating me. Those were the boys I recognized, or I knew them but only one I did not know. The first person I knew was Robin, by the name of Robin, and then Benjamin Eswin. But the other boy was sexually penetrating me or was having intercourse with me, and they were calling his name, and they were calling out to him, “Elijah you hurry up, it is time.” And the last person was by the name of Towin, where he sexually penetrated me the second time in the banana patch.

So, it was in the morning now, it was daylight, the place was clear, going toward 7 am. They took me from there back up to the “Taraiu”. It was in the morning now; I could see them. So, all of them followed me, Robin, Benjamin, Towin, Kumau and that name they were calling Elijah. They got me up to the “Taraiu” and they removed my clothes, and they threw my clothes up to a tree. And then they put me into a cave, one of the boys held onto my other hand while the other boy held onto my other hand. And the other two held onto my legs. And then the other one was sexually penetrating me. They took turns in sexually penetrating me. Waninara Eremas, was holding onto my other leg. And after that he told me to suck his penis and then he sexually penetrated me.

Q: Yes.

A: And then another person by the name of Mitut Edmund, he told me to suck his penis. After that at the same place, this person they were calling by the name of Elijah, he sexually penetrated me the second time. And then the other boys said “Elijah, how many times will you have sexual intercourse.” But this Elijah, I do not know him, but they were calling his name Elijah. So, from there I heard two females talking at the road. The road is further way, but I could hear them. So, I called or shouted out for help. But I was surprised when the boys assaulted me because I shouted out for help. They slapped me on my face, and they threw me out of the cave. At that time when they were sexually penetrating me, they were making fun of me.

At that time when I was not thrown out of the cave yet and when I was being sexually penetrated, they were making fun of me, and they were imitating me when I was crying. And they also got video shots of me, when the others were sexually penetrating me. And they were taking photos of me, and they were threatening me with knives and a screwdriver.

When they threw me out, one of them hit me on my eye and I felt unconscious. From there they all ran away. But there were some other boys there, who were standing a few meters away and they were looking at me while the other boys ran away. At that time, Dapley Dude was there but he did not sexually penetrate me, he sexually penetrated me in the night on 16 September.

So, at that time when felt dizzy or fainted, one of them threw a pair of trousers at me. So, I wore that trousers and I looked up the tree, my top was on a branch of the tree. So, I got it, and I wore it. So, I saw that the other boys were not busy. From there I ran away to the Pastor’s house. I told Pastor the story that the boys held me for three days and they had sexual intercourse or sexually penetrated me like an animal.

That is all your Honour.

Q: Okay, witness I will ask you a couple questions.

HIS HONOUR: All right.

MR KAIPU: Now, you mentioned earlier that you recognized that Dapley Dude as one of the persons that raped you.

A: Yes, I recognized him.

Q: This was in the night, she said earlier.

A: Yes, in the night.

Q: And you said there was moon light coming through the window, that was how you recognized him.

A: Yes, your Honour.

Q: Now, witness, I want to show you a picture of that house.

HIS HONOUR: Did you know that person previously?

A: Yes, I know him. He used to stay at Raburua and sometimes he used to come to our house.

MR KAIPU: Now, you also mentioned the name Michael Dude and Dapley Dude also has the same surname, do you know if they are related?

A: They are brothers, your Honour.

HIS HONOUR: What do you want to show her? Show her?

MR KAIPU: That house, witness might have a clear picture of the - - - -

HIS HONOUR: In black and white?

MR KAIPU: The first picture, photograph on page 31 of the police file. If I can seek leave of the court to show the picture. Now witness have a look at that photograph. Do you still recognize that photograph?

A: Yes.

Q: Now is that the house, that garden house that you were referring to where Dapley Dude raped you?

A: No.

Q: Now in that house, who raped you in that garden house?

A: Sakias, Towin and Kepas.

Q: If I can get that photo back? So, you said Dapley and your boyfriend at that time Michael are brothers?

A: Yes, they are brothers.

Q: And how long have you known Dapley Dude?

A: 2019, 2020 and 2021, when he was at Raburua.

Q: And is that the same length of time you knew his big brother Michael, I mean his brother as your boyfriend?

A: Yes, your Honour.

Q: When Dapley Dude raped you that night, did he try to cover his face?

A: No, he did not cover his face, but he was trying to, he just covered my eyes with a piece of “laplap”.

Q: Now, did any of the boys when they were raping you, did they try to cover your face, or did they try to cover their own face?

A: They did not cover their faces, but it was in the night, that was on 16 September, when we met Melly Dude and Kumau Bitauma. And the other boy I did not recognize him because he covered his face and his head with a “laplap”.

Q: Okay, thank you. Now you spoke about a moon light. How long did you manage to see his face and recognized his face? We are talking about Dapley Dude.

A: The bed is next or close to the window so, in that room your Honour, there is two windows. So, that time when he slept on top of me and he laid very close to me on my chest and I tried to remove the “laplap” and I saw him, I recognized him. So, when he had sexual intercourse with me and then he went outside and then as about for us to leave he was standing outside. The moon light was bright, and I recognized him.

Q: And this other person that you heard his friends call out his name as Elijah. What was the lighting like at that time, was it similar? On the first occasion.

A: For Elijah, it was 4 am going toward 5 am and the place was getting clear, and I could see him. And the was clear in the morning, the place was clear in the morning and all of us we went up to the “Taraiu”.

Q: And that was the second place you mentioned that he penetrated you again?

A: Yes, your Honour.

HIS HONOUR: The second time he penetrated you, what time was that?

A: That was daytime, between 7 and 8 am; sun was already up.

MR KAIPU: And when this person, they were calling Elijah, when he sexually penetrated you, which part of your body did he penetrate?

A: He inserted his penis into my vagina, your Honour.

Q: And anywhere else in your body?

A: At the first place he told me to suck his penis and then he sexually penetrated me, your Honour.

Q: So, that was on the first occasion, you just said, he penetrated your vagina with his penis and also told you to suck his penis?

A: Yes, your Honour.

Q: The second time, you said around 7 am and 8 am, how actually – did he do the same thing again?

A: No, he only inserted his penis into my vagina.

Q: And this Elijah guy, have you – did you see him after that time, that incident?

A: Yes, I saw him.

Q: On what occasion was that?

A: At that time his parents took him to the police station.

Q: Which police station?

A: Kokopo, your Honour.

Q: Okay, and what happened when they brought him to the police station?

A: At that time, I knew at that time that his name was Elijah. So, when they asked him, he confirmed that his name was Elijah.

Q: Who asked him? Was it the policeman, woman? Who asked him?

A: Policewoman, your Honour.

Q: Do you remember exactly which of the – do you remember the policewoman’s name?

A: Myrah and Vero, your Honour.

Q: And how long after you had seen him on 17 September, how long after did you see him again at the police station?

A: Two weeks later.

Q: And when you saw him the second time at the police station, were you sure that that was the same person, Elijah?

A: Yes, your Honour.

Q: Now, these two persons that you have mentioned their names; one, you know him quite well, he was the brother of your boyfriend, Michael Dude. And the other is Elijah. If you saw them again, would you be able to recognize them.

A: Yes, your Honour.

Q: Your Honour, I seek leave of the court to just temporarily pull the screen back for the witness to identify the accused persons.

HIS HONOUR: Any objections?

MR HUEKWAHIN: No, your Honour.

HIS HONOUR: Okay.

MR KAIPU: Okay, witness, please have a look around the court room and tell the court if you can recognize anybody in here from that incident between 15 and 17 September?

A: Yes, your Honour.

Q: And where are these persons seated?

A: Witness, points to the accused dock, your Honour.

Q: And can you tell the court, who is Dapley Dude and who is Elijah Kiapen?

HIS HONOUR: Wait, wait.

MR KAIPU: Court pleases.

HIS HONOUR: If you can mention the surname?

MR KAIPU: My apologies your Honour. Yes, yes, your Honour, that is correct.
Dapley Dude and Elijah, are you able to tell the court who is who?

A: Dapley Dude is the first person on the right and Elijah is with the yellow t-shirt.

HIS HONOUR: Who is sitting on the right?

A: Dapley Dude, your Honour.

Q: And who is sitting on the left?

A: Elijah Kiapen.

MR KAIPU: She mentioned the color of the clothing as well. Your Honour, the witness has identified the - - - -

HIS HONOUR: Now ----

MR KAIPU: ---- persons, she has- - - -

HIS HONOUR: That is for the court to- - - -

MR KAIPU: Yes, your Honour, yes, your Honour.

HIS HONOUR: ---- make a finding later.

MR KAIPU: Yes. Thank you, your Honour. Now, witness, during the times that Dapley Dude – during that one time that Dapley Dude raped you, did he say anything to you?

A: No, your Honour.

Q: And how about Elijah, did he say anything?

A: No, your Honour. But he only told me to suck his penis, your Honour.

Q: And when he told you to suck his penis, was he looking at you?

A: Yes, he told me.

Q: And how many seconds or minutes would you say he looked at your face?

A: Your Honour, when he was sexually penetrating me, he was looking at my face until he finished sexually penetrating me.

Q: And how long would you say that was – that period of time?

A: Two to three minutes, your Honour.

Q: Sorry, I think I have asked you this question, but I will just ask you again. That was during the first time that Elijah, you said two occasions. And how about the second occasion, how long did he sexually penetrate you?

HIS HONOUR: What kind of question is that?

MR KAIPU: Sorry.

HIS HONOUR: What kind of question is that?

MR KAIPU: Getting the time lengths and opportunities, for the first incident, your Honour.

HIS HONOUR: Yes.

MR KAIPU: Yes, witness you tell the court, how long did you have that opportunity to see his face when he raped you, the second time?

A: Four minutes, your Honour.

Q: And you said you recognized Elijah at the Kokopo police station. How about Dapley Dude?

HIS HONOUR: Can you rephrase it?

MR KAIPU: Okay.

HIS HONOUR: If you want to ask about Dapley Dude, then ask clearly.

MR KAIPU: Court pleases. Now, earlier you told the court that Elijah was brought to the police station by his parents. Was Dapley Dude also brought to the police station by his parents?

A: I did not see him. They must have brought him to the police station, but I did not see him, your Honour.

Q: Now, how about Michael Dude, what happened to Michael Dude?

A: I do not know.

Q: Your Honour, no further questions.

HIS HONOUR: Any cross-examinations?

MR Huekwahin: Yes, your Honour.

CROSS-EXAMINATION BY MR HUEKWAHIN

Q: Witness, I have some questions for you. Even giving your answers, you must speak slowly so that the court and lawyers can take note of what you are saying. Now, first of all, would you agree with me that there were a lot of men or boys that sexually penetrated you between 15 to 17 September 2021.

A: Yes, your Honour.

Q: What would be your estimation of the number of boys in total that raped you?

A: 20 boys.

Q: So, most of the men or boys, you did not recognize, is that correct?

A: Some of the boys I recognized them, but I do not know their names.

Q: On 15 September, it was night that time that you were raped?

A: Yes, your Honour.

Q: And that was in the bush?

A: Yes, in the garden house, your Honour.

Q: That garden house was shown to you by the State prosecutor in the morning, Is that correct?

A: Yes, your Honour.

Q: And on 16 September, you were sexually penetrated in the bush but not in the house, correct?

A: Yes, in the bush, your Honour.

Q: So, when you say in the bush, you agree with me that there is a lot of big trees, plants, growing in there?

A: Yes, your Honour.

Q: So, at that time, I put to you that from the 15^th to 16^th in the course of sexually penetrating you or raping you, you were very weak, correct?

A: Yes, your Honour.

Q: Apart from that, is it correct to say that you have not eaten from the time that you were taken till 17 September, you have not eaten anything?

A: Yes, I did not eat, your Honour.

Q: And from those occasions, from 15 to 17 September as well, you said, those boys were smoking drugs and were blowing the drug towards your face, is that correct?

A: Yes, your Honour.

Q: Have you been in such situation where someone blow or was smoking drug and blow to your face before?

A: No, your Honour.

Q: That was the first time, correct?

A: Yes.

Q: Would you agree with me that in the course of a big number of boys or men like 20, as you have stated, raping you including the condition that you have not eaten, and also that you were drugged when they blew the drug to you, you were very, very weak, correct?

A: Yes, your Honour.

Q: So, you agree that during those times you were not in your right or correct state of mind, correct?

A: Yes, your Honour.

Q: When the drug was blown to your face, were you dizzy?

A: Yes, your Honour, I felt dizzy.

Q: That in itself, made it difficult for you to properly recognize those perpetrators?

A: No, your Honour, I still recognized them.

Q: If I suggest to you that the accused Dapley Dude was not involved in that incident that you were or were not involved in raping you, what would you say?

A: He was involved, your Honour.

Q: And if I suggest to you that the accused Elijah Kiapen, was not involved in raping you, what will you say?

A: Elijah was involved, your Honour.

Q: If I suggest to you that Elijah Kiapen was on 16 September 2021, in the morning part of the day, he was at Karavi village, and he went to Ralalar and in the afternoon, he went back, what would you say?

A: No, your Honour, on 16 September, he was at Ralalar and he was involved and I saw him.

Q: And if I suggest to you that on those dates, 15, 16 and 17, the accused Dapley Dude was at Ralalar village and not involved in the rape incident that involved you, what will you say?

A: Your Honour, on 16 September, on that night up in that house, he was one of the boys that sexually penetrated me. But at the “Tariau”, your Honour, he was only there watching, while the boys were sexually penetrating me.

Q: At that time, you were already drugged by them being blowing drugs to your face.

A: Okay, your Honour, on 16 September, during the day, they were smoking and puffing the smoke of the drug to me.

Q: So, it is correct that you said Dapley Dude was involved at around 7 pm, right?

A: Yes.

Q: And you said in that house, there was a window and there was moon light?

A: Yes, your Honour.

Q: I put to you that, there were trees growing that blocks the direct light of the moon.

A: Your Honour, the front where the window was, was clear, there was no trees.

Q: And the wall of the house or garden house, how high is the wall?
Can you demonstrate the height of the window?

A: Your Honour, witness indicates the height of the wall.

Q: About 2.5 meters, your Honour. And you were laid on the ground, correct?

A: No, on the bed.

Q: And the bed is away from the window, correct?

A: Just next to the window, your Honour.

Q: And I put to you that, would you agree that at around 7 pm, the moon is always at the elevation where it is not right up there, but on an angle where it cannot correctly or directly shine through the house that you were in?

A: No, your Honour, that time I could still recognize Dapley.

Q: My question, you agree, that it is still at the angle?

A: Yes, your Honour.

Q: And Michael Dapley is your boyfriend, correct? Correct me, Dude, pardon me.

A: Yes, your Honour.

Q: He was the one that set up that rape incident?

A: Yes, your Honour.

Q: You hate him?

A: Yes, your Honour.

Q: And you said Dapley Dude is his smaller brother, right?

A: Yes, your Honour.

Q: I put to you that because you hate your boyfriend or ex-boyfriend Michael Dude, you allege Dapley Dude, his younger brother, to be the one involved in raping you, is that correct?

A: I am not blaming him, your Honour, but he sexually penetrated me.

Q: Now, with accused that you said Elijah, now that Elijah, the surname that you mentioned earlier in court, Kiapen, was it that name given to you by the police officers?

A: Police, your Honour.

Q: Do you know Elijah in any other occasion?

A: No, your Honour.

Q: I put to you that because they mentioned Elijah’s name, his parents brought him down to clear him off, of the charge of the allegation and that was where he got locked up. What do you say?

A: Okay, your Honour, at that time when he had sexual intercourse with me or he was sexually penetrating me, the boys were calling his name “Elijah”. That is where I knew him, but I did not know his name.

Q: Is it correct to say that, that Elijah could be anybody else, instead of this person that you mentioned in court.

A: No, your Honour, it is him.

Q: Just after two weeks, that you said you recognized him?

A: Yes, your Honour.

Q: You were in a trauma after that incident, right?

A: Yes, your Honour.

Q: And your mind will not be in a stable condition to properly recall.

A: No, your Honour, I can still recall and think of what they did to me.

Q: You said that time is around 4 am to 6 am that time, right on 17 September?

A: Yes, your Honour.

Q: It is still dark.

A: No, the place was getting clear.

Q: But you would not be able to see properly, right?

A: No, I can still see clearly.

Q: I put to you that you were raped by other persons, those other 20 persons that you have indicated and not the two accused in court, what would you say to that?

A: No, even the two of them too.

Q: Where do Elijah Kiapen come from?

A: He was at Ralalar.

Q: And you know where Dapley Dude comes from?

A: He is from Ralalar, your Honour.

Q: You know a lot of boys from Ralalar village?

A: Yes, your Honour, because some of them we went to school together.

Q: I put to you that the accused Dapley Dude was at his home at Ralalar, minding the store at the time of the alleged offence. What would you say?

A: But on 16 September in the night, he sexually penetrated me inside the house.

Q: And I put to you that on 17 September 2021, accused Elijah Kiapen, was moving – in the morning part of the day, was at Karavi village, and then went to his father at Ralalar village, and in the afternoon, his father put him on the bus, and he went back to his mum’s place at Karavi Village. What will you say?

HIS HONOUR: She would not know.

MR HUEKWAHIN: Pardon me?

HIS HONOUR: She would not know.

MR HUEKWAHIN: Yes, your Honour. As the court pleases, I retract your Honour. Finally, I put to you that Elijah Kiapen was not involved or participated in raping you, what will you say?

A: Your Honour, but on 17 September, Elijah Kiapen was there, and he sexually penetrated me, in the morning.

Q: Is it correct to say that you gave evidence that on 17 September, it was 7 am in the morning that the second or the final rape incident occurred to you, right?

A: Yes, your Honour.

Q: Now you recall giving a statement to the police, or investigator?

A: Yes, your Honour.

Q: And that was about four pages?

A: Yes, your Honour.

Q: If I show you your statement, would you be able to recognize that statement?

A: Yes, your Honour.

MR HUEKWAHIN: Your Honour, I seek leave to hand up a copy of the witness statement for observation.

HIS HONOUR: Yes.

MR HUEKWAHIN: There are about four pages.

A: Yes.

Q: Did you sign that statement?

A: Yes, your Honour.

Q: I want you to look at or read or look at paragraph 13 and 14, it is probably second last page, I guess. In regard to date 17^th, paragraph that states about 17 September. Look at the timing that you gave to the police. Paragraph 13 is 4 am, the timing is 4 am.

A: Yes.

Q: The second paragraph, the timing you gave is 6 am, correct.

A: Yes, your Honour.

MR HUEKWAHIN: Your Honour, I seek to have that document tendered as a part of defence exhibit.

HIS HONOUR: Alright, that would be exhibit D1.

EXHIBIT D1 – Statement of Lynah Orim

MR HUEKWAHIN: Your Honour, if I may have this returned.

HIS HONOUR: Can you give it back.

MR HUEKWAHIN: Now the story that you gave to the court earlier was 7 o’clock on 17 September. The statement you gave to the police; two timings 4 am to 6 am. Now, you have two versions of the story before the court now. And I put to you that you lied to the court.

A: No, I am not telling lies, your Honour.

MR HUEKWAHIN: Your Honour, no further questions.

HIS HONOUR: Re-examination?

RE-EXAMINATION BYMR KAIPU

Q: Now witness, earlier my learned friend was asking you about between the 15^th and 16^th, you were very weak, you remember that question? Yes. Okay, 15^th and 16^th, you were very weak, and you said yes, you remember that question?

A: Yes.

Q: How weak were you?

A: Your Honour, I was weak, but I was really struggling at that time.

Q: And he also asked you, he said you did not eat well, you were being blown drugs into – the smoke of drugs into your face, and he said you were not in the correct state of mind, you remember that question?

A: Yes, your Honour.

Q: And you answered, “yes”?

A: Yes, your Honour.

Q: How well was your mind thinking at that time?

A: Yes, your Honour, that time I felt dizzy, but I still struggled to recognize the boys, what they were doing to me.

Q: And what they were doing to you, did that hurt? What they were doing to you, did that hurt you?

A: Yes, your Honour.

Q: Now, you were also – you responded to my learned friend’s question that some of these boys that raped you, you went to school together.

A: Yes, your Honour.

Q: Who are some of these boys that you went to school with?

A: Melly Dude, Benjamin Eswin and Robin.

MR KAIPU: No further questions, your Honour.

HIS HONOUR: How far is Raburua from Ralalar?

A: Like, your Honour, my house at Raburua is like where I am seated, and Ralalar Village will be like at Agmark. That is next to Kokopo Secondary School. The service station Agmark next to Kokopo Secondary School.

Q: That will be like what, one kilometer, or two?

MR KAIPU: Now your Honour, I am not really aware of Rabaul town yet, Kokopo Town, sorry.

MR HUEKWAHIN: Roughly about 3 kilometers. That is the far end where the roundabout ends, that road up to the last roundabout going up to the Kokopo Secondary School, just past the Public Solicitor’s Office, right up.

HIS HONOUR: Yes, that is okay, we can – it is a little bit far.

MR HUEKWAHIN: Yes, your Honour.

HIS HONOUR: Any questions arising from mine?

MR KAIPU: None from the State, your Honour.

MR HUEKWAHIN: None from the defence.

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10. From the victim’s evidence, her Raburua Village and Ralalar are about 2 to 3 kilometers apart. In other words, they are neighboring villages. With that proximity, many of them would be related. The victim would know the boys from Ralalar, where, Michael Dude, her boyfriend then comes from. She was thus able to name some of the boys who sexually assaulted her.

Elijah Kiapen

11. The victim did not know Kiapen before the 17^th of September 2021. However, when Kiapen was allegedly sexually penetrating her in the early hours of 17^th September, between 4:00am and 5:00am, his two accomplices called his name. Kiapen allegedly sexually penetrated her by inserting his penis in her mouth and vagina. After the first sexual assault, the three boys didn’t leave. They stayed with the victim until 7:00am when they all sexually penetrated her the second time. Again, his co-defendants were calling his name. Thus, by 7:00am, the victim would have been able to see clearly and figure out who Kiapen was.

12. In her statement to Police dated 21^st September 2021 (Exhibit D1), Kiapen was mentioned as a suspect. She would have been told by others the full name of Kiapen. There is no evidence of another Elijah from Ralalar. Subsequently, Police publicly appealed to the suspects to surrender. Kiapen’s parents heard about it and brought him to Kokopo Police Station about 2 weeks after the alleged rape. The victim was at the Station and confirmed that he was the “Elijah” that sexually assaulted her on 17^th September. She didn’t see him again until after the screen was removed inside the courtroom when she pointed to and identified Kiapen.

13. The accused said in his evidence that he was not at Ralalar Village on the 17^th of September. He said he hadn’t been to Ralalar since 2009. He was at his mother’s Karavi Village all the time. On 16^th September 2021, he was sent by his mother to go to Ralalar for the first time since 2009 to see his father to get some food. He went to Ralalar in the morning and returned to Karavi in the afternoon, and didn’t go anywhere else. The accused said he did not know anyone from Ralalar. His evidence was supported by his parents.

14. I have considered and weighed the evidence. The victim is now married with a child. She is 25 years old. She completed Grade 10 at Malabunga High School. I consider the victim to be a truthful witness. She was not evasive. She did not crumble during cross-examination. She was firm that Kiapen sexually assaulted her on 17^th September 2021, as alleged.

15. On the other hand, Kiapen did not impress me. His answers to questions in cross-examination were evasive. The support from his parents is understandable. They would do anything to support their son. They collectively maintained that Kiapen did not go to or reside in Ralalar between 2009, when his parents separated, and 16^th September 2021. The motivation for this narrative is to distance Kiapen from Dude and other suspects, and, ultimately, the alleged crime.

16. However, I find it incredible that Kiapen did not go to Ralalar at all between 2009 and 16^th September 2021. I can’t believe that Kiapen didn’t go to see his father at Ralalar for 12 years. His father was all the time at Ralalar. Ralalar and Karavi are connected by a sealed road network. PMV buses travel between the two villages in less than one hour. It is natural for a son and father to see and spend some time together.

17. In the record of interview, when asked where he was from, Kiapen said his father was from Ralalar and his mother was from Karavi. When asked about where he lived, he said “I usually travel from Karavi and Ralalar”. “Where else do you live”, was the next question. He answered, “No, only those two villages.” Clearly, he was living in Ralalar and Karavi before 16^th September 2021. This is a significant contradiction and a major blow to the defence case that Kiapen had not been to Ralalar since 2009, and his visit on 16^th September 2021 was the first in 12 years.

18. I also note that Kiapen did not give any notice of his alibi to the prosecution.

19. In the circumstances, the Court rejects the evidence of Kiapen, his mother and his father. The Court finds that Kiapen lived in both Karavi and Ralalar between 2009 and 2021, exactly as he stated in the record of interview. He would thus know the boys from Ralalar, who were involved in the alleged crime. I find that he was involved in the alleged rape. He was in the presence of the victim in the early hours of 17^th September 2021 where he sexually penetrated the victim’s vagina and mouth without consent. About an hour later, he sexually penetrated the victim’s vagina with his penis without her consent.

20. On the basis of these findings of fact, I am satisfied beyond reasonable doubt that the accused sexually assaulted the victim as alleged. Thus, I find him guilty on all three counts.

Dapley Dude

21. Accused Dude absented himself from his trial after listening to the victim’s testimony. The prosecution still bears the responsibility to establish that he has been adequately identified by the victim. In that regard, the victim gave evidence that it was already dark but there was sufficient moonlight from which she saw and recognized the accused. The accused sexually penetrated her on a bed near the window of the garden house. The accused tried to cover her face but she removed the cloth and saw the accused.

22. In her testimony, she stated, thus:

“The bed is next or close to the window so, in that room your Honour, there is two windows. So, that time when he slept on top of me and he laid very close to me on my chest and I tried to remove the “laplap” and I saw him, I recognized him. So, when he had sexual intercourse with me and then he went outside and then as about for us to leave he was standing outside. The moon light was bright, and I recognized him.”

23. After the sexual assault, she saw the accused again when she exited the garden house. She saw the accused the third time later that night. Thus, it was not a splitting glance. There was ample time and moonlight for the victim to recognize the accused who she had known since 2019. The accused has also been to her Raburua Village where he sometimes went to the victim’s house. The accused was the brother of Michael Dude. The victim was identified by the accused in Court. After listening to the victim give evidence against him, I can understand his deliberate absence.

24. I recognize the inherent dangers in evidence of identification, as per the case of John Beng. I understand the possibility of an honest mistake. It is said that it is better to have a guilty man free than to have an innocent man in jail. However, I am satisfied that the victim is the only person who knows what happened to her and who she saw and recognized during her ordeal. The possibility that she could be mistaken was suggested to her in cross-examination, but she remained firm that she saw the accused. I consider her to be a strong and impressive witness. I have no reason to disbelieve or doubt her identification of the accused.

25. In the circumstances, I am satisfied beyond reasonable doubt that the accused sexually penetrated the victim’s vagina without her consent in the garden house on the night of 16^th September 2021. Accordingly, I find the accused guilty in relation to count one. In relation to the second count, the prosecution submitted that there is no evidence. For that reason, I find the accused not guilty on the second count.

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Raphael Luman, Acting Public Prosecutor: Lawyer for the State
Leslie Mamu, Public Solicitor: Lawyer for the Accused