N11014

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 173 AND 1923 OF 2023

THE STATE

V

SAM KETENG KISSI
(No 3)

Waigani: Berrigan, J

2023: 8th, 10th, 14th, 21st November; 5th, 6th, 7th, 12th, 13th, 14th, 15th, 20th December; and
2024: 6th, 7th, 8th, 16th and 23rd February; and 27th September

CRIMINAL LAW – PRACTICE AND PROCEDURE – Similar fact evidence – Principles applying when used to prove identity – Offences committed against each of the complainants so strikingly similar that they must have been committed by the same person. 

CRIMINAL LAW – PRACTICE AND PROCEDURE – Section 350(1)(a)(i), Criminal Code – Abduction – Elements of offence – Meaning of “woman” – Meaning of “with intent to carnally know” – Meaning of “takes her away” – Meaning of “against her will” – Offences established.

CRIMINAL LAW – PRACTICE AND PROCEDURE – Section 355(b), Criminal Code – Deprivation of Liberty – Elements of offence – Meaning of “deprives” – Meaning of “liberty” – Meaning of “unlawfully” – Offences established.

CRIMINAL LAW – PRACTICE AND PROCEDURE – Section 16, Criminal Code – Person not to be punished twice for same wrongful act or omission – Central theme or basic act(s) of abduction and deprivation of liberty counts as particularised the same – Guilty verdicts entered on abduction charges – No verdicts entered on deprivation of liberty charges.

CRIMINAL LAW – PRACTICE AND PROCEDURE – Section 229A(1)(2), Criminal Code – Sexual penetration of a child under the age of 16 – Child under the age of 12 in aggravation – Guilty on all counts.

Facts

It was alleged that on 24 September 2018 SR, a girl aged 9 years, was lured into a vehicle by a man driving a grey Toyota Harrier whilst she was walking home from Wardstrip Primary School towards Erima. He drove about before taking her to a car park near the Aviat Club at Konedobu where he sexually penetrated her in the back seat of the vehicle. He eventually dropped her back near where he picked her up and drove on to the Erima flyover. On 8 October 2018 VP, a 10 year old girl, was walking home from Wardstrip Primary School towards Erima when she was lured by a man into a grey Toyota Harrier. He drove about, including to Datec where he stopped for some time, before parking the vehicle at a car park near the stadium at Konedobu where he sexually penetrated her in the back seat of the vehicle. He drove to Korobosea and then to a car park at KMC, East Boroko, where he sexually penetrated her for a second time. He eventually dropped her back near the Erima flyover. On 10 October 2018 the accused was apprehended by police driving a grey Toyota Harrier matching that captured in CCTV footage at Datec on 8 October 2018. He was charged in relation to the alleged offences against SR and VP and released on bail on 13 October 2018. On 25 October 2018 EK was lured by a man into a grey Toyota Harrier whilst she was at the market at 6 Mile. He drove for some time before she told him to stop the vehicle and let her off. He told her to shut up, threatened to kill her and punched her. She grabbed the steering wheel causing the vehicle to crash into a drain on the side of the road at Vadavada. The accused was apprehended at the scene by police shortly afterwards.   

Held

(1)	Evidence which goes only to show that a person has a propensity to commit the crime charged is inadmissible for being unfair: Broadman v Director of Public Prosecutions [1975] AC 421; Makin v Attorney-General for New South Wales [1894] AC 57. Exception is made for “similar fact evidence”, the probative value of which must outweigh its prejudicial effect: adopting DPP v P [1991] 2 AC; Pfennig v R (1995) 182 CLR 461. Where the evidence is used to prove identity, the question is whether each of the offences was committed in a manner so similar to the other(s) that it establishes beyond reasonable doubt that the same person was responsible on each occasion. In determining that question it is necessary to consider whether the similarities are so striking that they exclude the possibility of coincidence beyond reasonable doubt when judged by common sense and experience: adopting Boardman, supra; Sutton v The Queen (1984) 152 CLR, and Pfennig, supra.  It does not matter whether the similar facts took place before or after the facts in issue: Pfennig, supra; The State v Bill Vevo (2007) PNGC 1. The degree of similarity required will depend upon the other evidence in the case, including that which establishes a connection with the accused: Pfennig adopted. 

(2)	The evidence established that the offences were committed by a person against each of the complainants. There was such striking similarity in the age of the complainants, the description of the vehicle, its driver, the commission of the offences, and the timeframe within which the offences took place, that the offences must have been committed by the same person in each case. Independent of the similar fact evidence, the evidence established that it was the accused who committed the offences against VP and EK.

(3)	On Counts 1, 2 and 3, the accused, with intent to carnally know SR, a woman for the purposes of the section, took her away against her will; unlawfully deprived her of her liberty; and sexually penetrated her, a child under the age of 12 years; contrary to ss 350(1)(a)(i), 355(b) and 229A(1)(2), Criminal Code, respectively.

(4)	On Counts 4, 5, 6 and 7, the accused, with intent to carnally know VP, a woman, took her away against her will; unlawfully deprived her of her liberty; and sexually penetrated her, a child under the age of 12 years, on two occasions; contrary to ss 350(1)(a)(i), 355(b) and 229A(1)(2), Criminal Code, respectively.

(5)	On Counts 8 and 9, the accused, with intent to carnally know EK, a woman, took her away against her will; and unlawfully deprived her of her liberty; contrary to ss 350(1)(a)(i) and 355(b), Criminal Code, respectively.  

(6)	The central theme or basic act(s) of the abduction count under s 350(1)(a)(i) and the deprivation of liberty count under s 355(b) as particularised with respect to each of the complainants was the same, namely the taking away and detention of the complainant in the accused’s vehicle. Accordingly, no verdicts will be entered on the deprivation of liberty counts: applying s 16, Criminal Code and Thomas v The State [1979] PNGLR 668.

Verdicts on Counts 1, 3, 4, 6, 7 and 8 accordingly.

Cases cited

Papua New Guinean cases
State v Sam Keteng Kissi (2023) N11013 
State v Daniel [1988-89] PNGLR 580
State v Otto [2007] PGNC 128 
Maraga v State (2009) SC968
The State v Bill Vevo [2007] PNGC 1 
James Pari & Bomai Tine Kaupa v The State [1993] PNGLR 173
RD Tuna Canners Ltd v Sengi (2022) SC2232
State v Manwau (2009) N3797 
Reference by the Attorney General of Papua New Guinea and Principal Legal Adviser to the National Executive Council (2021) SC2112
State v James Yali (2005) N3014
McKenzie v The State (1998) SC596
State v William Nanua Kapis & Ors (2011) N4232
Paulus Pawa v. The State [1981] PNGLR 498 
John Beng v The State [1977] PNGLR 115
State v Sela Gipe (2000) N2058
State v Thomas Some (1982) N366 
The State v Among (2007) PGNC 11
State v Dotaona (2006) N4474  
Mini v The State [1987] PNGLR 224
State v Robert (2022) N9395
Thomas v The State [1979] PNGLR 668

Overseas cases
Broadman v Director of Public Prosecutions [1975] AC 421
Makin v Attorney-General for New South Wales [1894] AC 57
DPP v P [1991] 2 AC 447
Pfennig v R (1995) 182 CLR 461
Hoch v The Queen [1988] 165 CLR 292
Sutton v The Queen (1984) 152 CLR 528 
R v Guy Frederick Lawrence and Others [1971] EWCA Crim J 1026-7
R v Johnson [1957] St R Qd 594 
R v West (1874) 5 AJR 19
R v Awang (2004) QCA 152
Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44
McFadzean v Construction, Forestry, Mining and Energy Union [2007] VSCA 289 
Tido v Reg [2011] 2 Cr App R 23
Neilly v R [2012] UKPC 12  
Holland v HM Advocate 2005 SC 1 (PC) 3
R v Doyle [2010] QCA 204
The Queen v Savage [1994] QCA 20

References cited
Sections 16, 229A, 229H, 350, 355 of the Criminal Code

Counsel
E Kave, for the State 
B Popeu and O Imore, for the Accused 

DECISION ON VERDICT

1.	BERRIGAN J: The accused is charged with the abduction and deprivation of liberty of three young girls on separate occasions during a period of about four weeks in 2018. It is alleged that he sexually penetrated the first two of those children. The third managed to escape. 

2.	Counts 1 to 3 charge the accused with the abduction, deprivation of liberty and sexual penetration of a child under the age of 12 years, namely SR, then 9 years old, on 24 September 2018, contrary to ss 350(1)(a)(i), 355(1)(b) and 229A(1)(2) of the Criminal Code, respectively.

3.	Counts 4 to 6 allege that the accused committed the same offences, abduction, deprivation of liberty and sexual penetration of a second child under the age of 12 years, namely VP, then 10 years old, on 8 October 2018. Count 7 alleges a second charge of sexual penetration of VP on the same date. 

4.	Counts 8 and 9 charge the accused with the abduction and deprivation of liberty of a third child, EK, on 25 October 2018.

STATE CASE

COUNTS 1, 2 and 3: SR

5.	SR’s parents are from Eastern Highlands and Manus. On Monday, 24 September 2018 SR was a student at Ward Strip Demonstration Primary School. She was 10 years old. The students were sent home early at about 12 pm.  SR waited at school for her mother to pick her up but when she did not come she started to walk home to Erima.  She walked along Godwit Street, past the Australian High Commission and to the roundabout where she turned to follow the road up to Erima. As she was crossing the road a vehicle, a grey Harrier, came and blocked her from crossing. The man inside asked her if she knew Christina Labal. She told him she did not. He told her he was going to take her to her house because he knew her daddy. She got into the front passenger seat of the vehicle because she thought he was telling the truth. 

6.	He drove up to the fuel station at Vision City where he got some fuel. He asked her if some of her relatives worked in the station. He sounded like he was from Hagen. He then drove to BSP Bank and then to SVS at Two Mile where he bought her some food – KMC and Fanta orange – through the drive through. He told her that they were going downtown to pick up a man. He drove from SVS up Two Mile Hill and down the other side to Ela Beach, into Town and then to a car park located some distance from the Aviat Club at Konedobu. There was no-one outside the car. She thinks it was between 1 or 2 pm or going up to 3 pm. He told her to move to the back seat and remove her clothes. She was wearing her uniform, a grey skirt and white top. He removed his clothes. He got on top of her and put his penis inside her vagina. She told him she was in pain but he did not care and carried on. He told her he was going to leave her at the house. She put on her clothes. He put on his clothes. He drove to Tokarara and to the Waigani traffic light then towards Laguna, along the road to Parliament House then towards the National Library and eventually turned on to the road near to where he picked her up earlier that day. He drove on past that place and through the roundabout. She told him she was living there and he dropped her off before driving on to the Erima flyover. 

7.	As she was walking she heard a whistle from behind and turned to see her father. Her father asked her who dropped her off, was it her uncle. She told him no. He asked her what happened and she told him what the man had done to her. Her father walked her to their house in Erima and told her mother what she had told him. Her mother saw that she was bleeding from her vagina. She washed her and put her to bed. Her parents went to report the matter to police before returning to take her to Gerehu Hospital which referred her to Port Moresby General Hospital where she underwent surgery. She remained in hospital for about two days before being released. 

8.	The man was short, dark-skinned with a broken or short tooth.

9.	Sometime later, she cannot recall when, she was picked up by her parents from school and taken to Boroko Police Station. She saw the car parked in the car park of the station. She told her father that was the vehicle that picked her up. The police told her to go to a room and identify if this person was the one who did the things to her. The police opened the door to the room and she peeked in. The room was very small. The person was the only person in the room. He was sitting on a chair. She saw that the person was the same person that picked her up. She could recall his face. There were other officers present. A female police officer asked her if that was the man and she told them “yes, this is the man”.  Her father was also present. 

10.	She identified various photographs taken by Constable Dabada Kobua on 12 October showing herself, a grey Harrier, BEG 952, and upon her direction, various locations across the city where the offences are alleged to have taken place. 

11.	SR’s father finished work with the Department of Commerce and Industry at about 406 pm that day and was walking home to Erima – it usually takes about 30 minutes - when he saw a grey Harrier pull up about 20 to 30 metres in front of him and drop off his daughter. She had a Big Rooster plastic bag, a 500 ml Fanta and K20 in her hand. He asked her who dropped her off. She was distressed. She told him that the person said he was his work colleague. He asked her if there were other school friends in the car and she said no it was him alone. He had a strange feeling and asked her if he did anything to her and she told him that the man raped her. Because he was unprepared he did not get the number plate of the vehicle. When he took SR to her house he asked her if there was anything that would help him identify the vehicle like a sticker or something. She told him that there is an Armani VIP sticker on the left side of the screen and a Big Rooster sticker at the rear bumper guard. 

12.	The following day he left the hospital and tried to find the vehicle at the Armani Night Club but did not see it there. He decided to walk along the same route at about 2 pm. As he was walking towards Ward Strip bus-stop he saw the vehicle. He saw the sticker on the front and the sticker on the back after it went past. He was not able to see anyone inside the car as it was dark tinted. He took the registration number to Gordons Police Station who told him they would prepare a file and submit it to Boroko Police Station.  It took a few days for the matter to be referred and then he went and provided the number to the Sexual Offences Squad (SOS) at Boroko Police Station. The police subsequently called him, he cannot recall the date, and told him that they had caught a person driving a vehicle fitting the description in a similar incident. At their request he and his wife collected his daughter from school and went to the SOS Office at Boroko Police Station. He was asked to stay outside an office with his wife whilst his daughter went inside. Police told him that she confirmed that was the man and he went inside and saw him.  At the request of police SR was taken to the police station a few days later where she gave her statement to Lynette Naima. 

13.	SR’s mother confirmed that SR was not at school when she went to collect her on 24 September 2018. SR did not return until she arrived with her father between 4 and 5 pm. SR’s father told her that SR was picked up by a man who raped her and dropped her off right in front of him. She checked SR who was bleeding from her vagina. She and her husband went to Gordons Police Station to lay a complaint. When they returned SR was still bleeding. They took SR to the hospital at Gerehu where she was referred to 3 Mile hospital, taken in for surgery and placed in the ward. She was discharged on 26 September. Sometime later they were called to take SR to Boroko Police Station where she gave a statement to a female CID officer, Lynette. About one week later the police called and told them there was another incident. She and her husband took SR to the police station and as they were walking in there was a grey vehicle parked in front of the police station SR said “that is the only vehicle”. They walked in and SR identified a man sitting in front of Lynette’s table and SR said “that is the only man”. Policemen and other officers were in the room at the time. He was alone. SR’s father wanted to kill the man but police stopped him. From there the man was taken to the cells and they went home.   

14.	Dr Marilyn Morris, Obstetric and Gynaecology Consultant, University of Papua New Guinea and Port Moresby General Hospital, was required for cross-examination by the accused. She confirmed that as per her affidavit and accompanying medical report she examined SR on 24 September 2018 at 1050 pm. Pelvic examination revealed that SR was suffering a tear to the forchette measuring 1 cm deep and extending 2 to 3 cm from the entrance of the vagina towards the cervix and posterior fornix, which was actively bleeding, consistent with sexual penetration. The injuries required surgery the same night during which sutures were applied. SR spent two days in the ward post-operatively. 

15.	Detective Senior Constable Lynette Naima was the investigating officer attached to SOS Boroko in charge of SR’s case. It was assigned to her by Insp Fiona Kakerere on 1 October 2018. At her request SR’s parents brought SR to the police station and she obtained a statement on 8 October 2018.  After taking a description of the suspect and the vehicle it was broadcast on police radio. On 10 October 2018 her boss called her and told her that a suspect matching the description had been brought in. On 11 October 2018 she called SR’s father and told him to bring SR to the office which he did. She took SR to the office and as soon as she opened the door SR saw the accused and was crying and hiding her face behind her mother and said “this is the man”. From there she took SR and her mother and left them outside and charged the accused. There were other people in the office, officers and people coming to lay complaints. VP and her family were also at the station on 11 October 2018. 

16.	SC Naima conducted an interview with the accused in relation to the SR allegations on 11 and 12 October 2018. The accused admitted that the vehicle, grey, Toyota Harrier, BEG 952 was his vehicle. He denied the allegations. The record of interview refers to SR’s identification taking place on 11 October 2018. He says that “the people that came for another incident yesterday are the same people that came together in the morning with SR’s relatives and saw me yesterday and this morning when I came for interview they saw me and … some of her family members might have given the car’s description to her to tell the police that I am that man because the car was parked at the police station since yesterday and today they came with her family”. 

COUNTS 4, 5, 6 and 7: VP  

17.	On Monday, 8 October 2018, VP, then aged 10 years, was walking home from Wardstrip Demonstration Primary School at about 230 pm towards her home in Erima. VP is from Chimbu and Southern Highlands. A car, a grey Harrier, passed by and stopped at the bus stop near the Japanese Embassy. The driver signalled her over and asked her if she knew a girl named “S” (that is the same first name as SR). “S” was a friend at school and lived at Erima so she said “yes”. The man said he knew her (VP’s) parents. He asked if she was hungry and told her that if she got on he would buy her lunch. At first she did not want to get in but he kept convincing her and told her he would buy her a phone. He told her to sit in the front passenger seat and drove off to the Datec compound opposite the Coca Cola factory at Gordons where he parked.  

18.	He told her that he was going to buy her a phone and that when she was a baby he knew her parents and used to carry her around. He left her in the vehicle and went off to meet a friend. She did not see where he went. She did not see who he met. He was not away for that long, 30 to 40 minutes. No-one came and spoke to her whilst she was at Datec in the vehicle. He came back to the vehicle and drove to Konedobu where he parked in a parking lot behind the stadium.  

19.	At first she believed he knew her parents because he looked like a Highlander but she started to feel unsafe when he did not take her to any food stores.  They did not stay at the car park for long and then he drove to Hanuabada. He got out to buy betelnut. She was scared and got into the back seat. When he came back he told her to get in the front seat and then drove back to the same car park behind the stadium at Konedobu. He told her to get into the back seat and remove her clothes and lie on the seat. Whilst she removed her clothes he took his off. He told her to open her legs and he took his penis and forced it into her vagina. He kept forcing it and she was in pain. She complained and he told her to “shut up” and kept pushing his penis into her. 

20.	Afterwards they got changed and he took her to Korobosea to a residential block where he parked the vehicle. He told her that he would build a house and marry her and they would live there.  

21.	He drove to KMC at Boroko where he parked. It was getting dark. He told her to get into the back seat. She cannot remember what he told her to do but he started to put his penis into her vagina and she was in so much pain and she told him that she was going to poop herself and he said he would clean it later and he kept forcing his penis into her and eventually she pooped herself. She changed in the front seat and he drove her to Erima and dropped her near the Erima bridge and freeway. It was dark and the street lights were on. 

22.	She went straight home. Her auntie, DP, was looking for her. She told her that she wanted to sleep and went into her room but her auntie came and got her and she and another auntie, TP, asked her a lot of questions. She initially lied to them because she was scared but they checked her and found she was bleeding and rushed her to 3 Mile General Hospital. 

23.	The driver was brown, with a stomach that was not really big. At the time of the offences he was wearing a green collar shirt and black trousers.

24.	Some days later a police officer came to the hospital and took her and her mother to the police station. At the station they asked her to identify the car and where she was sitting and then they took her to identify the driver. They asked her to go inside a room where she identified a person as the driver.  

25.	VP identified various photos taken by Constable Dabada Kobua on 15 October 2018 showing herself, a grey Toyota Harrier BEG 952, and various locations where the alleged offences took place. 

26.	DP lived at Erima looking after her sister’s children, including VP. When VP did not come home by 4 pm on 8 October 2018 she went looking for and was coming back to the house at about 6 pm when she saw her walking on the big road. She “got on her” and asked her why she was coming home so late. VP was scared of her and did not speak. She did not look good. She was weak and there was blood running down her legs. She took her into the house and removed her school skirt and saw that blood was flowing out of her vagina. She called her sister TP who was in the next room and they took her to the Paradise Hospital at 3 Mile where they were referred to emergency at Port Moresby General Hospital. At Ward 9 the doctor examined VP, who told her, TP, and the doctor what had happened. She was in hospital for about 5 days. 

27.	AP is VP’s mother. She was working in another province when she received a panicked call from her sister DP at about 6 pm to say VP had not come home. About half an hour later DP called to report that VP was home and that they were taking her to the hospital. She flew to Port Moresby at 6 am the next day. She, DP and TP went to Boroko Police Station to lay a complaint. After that they went to the hospital where she received a report from the doctor. VP was pale, quiet and afraid. The next day at about 430 pm on 10 October 2018 they took VP to the police station at Insp Fiona’s request. They gave statements. VP did not want her present when she gave her statement. VP was shown photographs of suspects and pointed out the person who took her. Fiona asked them to see if they could get CCTV footage. Insp Fiona told them there was another case at the same time involving the same vehicle. They took VP back to the hospital where she stayed for two or more nights.  

28.	TP is VP’s aunt. She went to Port Moresby General Hospital on 8 October 2018 after receiving a call from her sister DP at about 8 pm that VP had been raped. She waited outside with DP and their mother whilst VP was in surgery for 4 to 5 hours and then admitted to the ward. On 9 October she called Mark Rondoke, a police officer, who was related to an in-law. VP had told her that she was taken to Datec and she formerly worked with BIMA Insurance just opposite and knew that there were CCTV cameras at Datec. She gave that information to Mark. Mark later called her and told her he was with IT people at Datec. He asked what colour the vehicle was and she told him a grey Harrier. He asked what colour shirt the guy was wearing and she asked VP and she said green shirt and brown long trousers. The guy was black, short and bald headed. Mark got three photographs - a grey harrier and photos of a person with a green shirt and brown trousers talking to another person. They got the number plate of the vehicle and gave it to Insp Fiona and their relatives, including GN and another uncle, who worked with Eda Ranu. GN and her uncle called on 10 October to say that they had stopped the vehicle. She got a cab with her sister DP from the hospital to the Airport Police Station at 7 Mile and then to Boroko Police Station. She was there with most of their relatives. VP was at the hospital. She did not know the person and would not be able to identify him now. They brought VP to the station and she identified the vehicle and the man. They were told not to go in but they saw her identify the person. VP said “that is him”. The vehicle was parked right outside the office and VP said “that is the vehicle”. She identified the photos Mark gave her and which she gave to Fiona.

29.	Constable Mark Rondoke received a call from TP on 9 October 2018 at about 11 am asking for assistance as her niece had been abducted and raped the day before. He met her at Boroko Police Station and she told him the story about her niece. He and his team drove to Datec where he met with Ismael the IT Manager. He asked him to pull up and print out any photos containing a Toyota Harrier between 3 and 4 pm. Ismael provided him with three photos, including one with a grey Harrier. He called TP who was at Boroko Police Station and he gave her the three photos, which he identified. 

30.	Ishmael Nigints was the Facilities Manager at Datec in 2018. He assisted police officer Mark on 9 October 2018. He gave him 6 or 7 different images. A week later a female inspector whose name he cannot recall came and he gave her several photographs and two pieces of footage. He identified the photographs he gave to her. The photos were taken from the camera above the entry to the main showroom at Datec. They bear automatic date and time stamps.

31.	GN is VP’s uncle. He worked for Water PNG and drove around the city. His wife gave him the number plate of the suspect vehicle, a Toyota Harrier. He stuck it on the dashboard. He and his driver were working at the Erima flyover near the Chinese shops when they saw the vehicle pass by. It was about 2pm sometime in October 2018. They blocked the vehicle in when it went into a Chinese hotel. As they were doing that the Police Dog Unit arrived. He told the police, who arrested the driver. He called his wife and told her what had happened and left it to the families. He cannot recall a description of the person arrested. 

32.	SC Glenda David on 10 October 2018 was trying to put the accused in the cells with Sgt Veronika and Insp Kakarere but he did not want to go so she and Insp Kakarere went to the hospital. VP was lying in bed with a canula and looked very weak. They asked the doctor if they could take her out and he allowed it. Insp Kakarere asked VP to describe the suspect. She described him as wearing a green collar shirt with black trousers, being short and having small cut marks on his face. It was nighttime as they came back to the station and as they drove in through the gate the lights came on to the suspect’s grey Toyota Harrier and VP said of her own volition “Auntie, the vehicle belonging to the man is like this one there”. They walked in to the SOS office. There were many civilians including the complainant’s family inside. The accused was sitting on a chair holding his phone. There were other people present. VP went in and said “this is the man”. No-one asked her. He was the only male in the office. There were many vehicles in the car park but the vehicle was parked right in front of the SOS office. 

33.	Inspector Fiona Kakarere was OIC SOS at the time and was present at about 5 pm on 10 October 2018 when the accused was brought in with his vehicle by the Dog Unit. He was argumentative and told them there was no evidence on which to hold him. A lot of officers came and tried to get things under control. Because he was argumentative and refusing to go to the cells he was held in the SOS office. So she left with Glenda David just after 6 pm and went to Ward 9. She asked the doctor if it was okay to take VP out and he allowed them to do so but for no more than 2 or 3 hours. The aunt carried VP to the vehicle. Insp Kakarere asked VP if she could describe the person who took her. She said he was black or dark skinned, with marks or cuttings on his face and short. Insp Kakarere told her that there was someone at the police station that she needed her to identify. Insp Kakarere drove the vehicle. VP was in the back, sitting or lying on her aunt. As they drove into the station the light went on the vehicle and VP said: “Auntie that looks like the car, that is the car”. When they got out of the vehicle Glenda took her to the car and she confirmed it was the vehicle. They walked in to the office. There were other people in the office. She asked VP if she could see the person and she identified the accused. They took VP away and took a statement from her, during which the child vomited four times. It was sometime between 630 and 7 pm when they arrived at station. The accused was not sitting alone. The victim’s relatives were outside. Some of his own people were with him. Officers were present but she cannot recall now who actually was there. SR and her family were not present on 10 October 2018. On or about 15 October she went to Datec to obtain confirmation from the Facility Manager that he provided the CCTV photographs given to VP’s family. He provided further copies and footage, which she viewed. She agreed in cross-examination that the footage did not capture the suspect or the complainant exiting the vehicle. 

34.	The accused was interviewed on 12 October 2018 in relation to the VP allegations. He said he was self-employed. He could not recall where he was on 8 October 2018. He was apprehended on 10 October 2018 by members of the Dog Unit. He confirmed that the grey Toyota Harrier BEG 952 was his vehicle. He confirmed that it had a VIP club sticker on the front windscreen and a Big Rooster sticker at the back bumper. He denied the allegations.

COUNTS 8 and 9: EK

35.	EK is from Southern Highlands Province and Popondetta. On Thursday, 25 October 2018 EK was about 13 years old. She was in Grade 6 at Holy Rosary but was not at school that day because Grade 8s were sitting exams. She was walking down to the line of shops at 6 Mile at about 11 am when a grey vehicle drove by and tooted its horn at her. She looked at the car and the man inside waved at her to come over. She did not want to go to him and walked past the vehicle. He followed her in the vehicle and then stopped again and called her. When she walked up he gave her a K10 note and told her to go and buy him a “right card”. She bought one at the Chinese shop and brought it back to him. He said he felt sorry for her and told her she was going to go with him and he was going to buy her Big Rooster, clothes and a phone and that he will then come back and leave her. She said she was scared but he said “I am not going to do anything to you just get in and let’s go”. She got into the passenger seat of the vehicle. He wound up the window glass. 

36.	He reversed the vehicle and drove up towards Five Mile to Unagi and then to TST, back past TST and down past Big Rooster. He asked her if she chewed betelnut. She said yes and he said “both of us will go and buy betelnut”. They drove down to King Kakaruk and then to Boroko Market and up to CID Office, and past the Salvation Army. When she saw the Salvation Army she said “this is my big brother’s office” and told him to stop. He told her “the roundabout is just down there and I will go down and turn around and stop”. When he drove down towards the roundabout he did not stop and just drove past. He told her to look further down to see that is where they are selling betelnut and he would buy her betelnut. But then he drove past the betelnut tables and continued towards NFS and then took the road going up towards 3 Mile. He drove up to the Manu roundabout and straight down to Vadavada. She told him to stop the vehicle to let her off and he told her to “shut up”. He said “now I am going to kill you straight away”. When she heard him saying that he was going to kill her she started crying and told him to stop the vehicle. He blocked her body with his left hand whilst he used his other hand to drive. She struggled to get his hand off her and he broke her face on the right side. He told her again to remain calm. He was going to take her and kill her. When she heard that she grabbed the steering wheel and the vehicle ran into the drain and crashed. 

37.	She opened the door and ran out to the road. She was crying and ran up to two ladies who were walking down. The man came out of the vehicle and was saying it was a misunderstanding. She stood beside the two ladies.  As she was standing there a police vehicle that was driving along the road stopped. They asked what had happened and the two ladies got EK and told the police. The police told the two ladies and EK to get on to the police vehicle. They also told the accused to get into the vehicle. One of the policemen asked her if she had relatives living around there and she told him no but that her big brother was working up at 4 Mile Salvation Army. They collected her brother and they all went to the police station where they took her statement. 

38.	The driver was a short man with a stocky build and a big belly. 

39.	Ruth Kuna, Ialibu, Southern Highlands Province, stated that between 11 am and 12 noon on 25 October 2018 she was with her in-law, Helen, walking to the house at Vadavada when she saw a dark grey vehicle drive its front tyre into the drain and a little girl jump out onto the road. The girl ran straight to her and grabbed Ruth strongly and cried and urinated on herself and was shaking and said: “Aunty, this man wanted to kill me and throw me and he took me. Aunty, we go to my mummy at Six Mile”. Ruth asked her where the man was and she said: “He is in the vehicle, he assaulted me and we came”. At the same time boys from Southern Highlands saw Ruth and they came. Other vehicles stopped and someone took the vehicle key from the man’s hand whilst they waited for the police to arrive. She left the girl with Helen whilst she went to see the man. Whilst she was scolding him the police arrived and they all went to the police station. 

40.	JK confirmed in his statement that police arrived at his office at Salvation Army at about 1130 am on 25 October 2018 with his sister, EK. He got on the vehicle with the police and went to Boroko Police Station CID SOS office.

41.	BK, EK’s mother, confirmed that EK did not go to school on 25 October 2018 because the Grade 8s were doing their exams. EK left for the main road to run an errand but did not come back. She collected her later from Boroko Police Station. 

42.	Insp Fiona Kakarere was on duty when the accused and EK were brought in. She observed a bruise on the right side of EK’s face near her eye, which looked red and swollen and took photos, which she produced. 

43.	Senior Constable Samuel Koy, Crime Scene Investigator, took photos of various places between Six Mile and Taurama Road, Vadavada where EK indicated that the alleged offences took place.  The photos show a grey Toyota Harrier, BEG 952, on the side of the road at Vadavada near a large open drain. EK’s slipper, which fell off when she escaped from the vehicle, was retrieved from the drain. I note that photos of the vehicle show that the Big Rooster sticker on the rear bumper bar of the accused’s vehicle which was present at the time C/Douba took photos on 12 October is no longer present. It appears that the Armani sticker has also been removed but I cannot be entirely sure of that because of the angle on which the photograph is taken. 

44.	When interviewed the same day the accused admitted driving a Toyota Harrier and gave part of the number plate as BEG. He gave a lengthy explanation about what happened:

•	After dropping his uncle at the airport his sister rang him and told him to go to her husband’s store, some metres away from the roundabout at Manu Service Station. 
•	“While I was driving up to 6 Mile, where the shopping area I saw this girl was walking towards the store. While I was driving in I waved at her to come to where I was parking in front of the store. The reasons being that, I had a previous allegation against me and I knew that the relatives of the victims have been following me and the number plate of the car, so I didn't want to go out and buy the flex. Because I knew that some of the relatives are there because a week ago, when I was there, they were staring at me and my car. So to avoid danger I was staying in the car and small girl came and was standing next to the car with one of her brothers and then she came over to me.”
•	He gave her K10 and asked her to buy a “top card”. After she brought the card he asked her if she was staying around 6 Mile and she said “yes”. He felt sorry for her and wanted to buy food but he had only had a K100 note and did not want to risk himself by getting out and did not want to give it to her because she might steal it. 
•	“So I was explaining to her, I'm going up to Manu fuel station to get fuel and then to town. And I was asking her if she did not mind, she will come with me and we will go to Manu and refill and probably give her food and bus fare and drop her off. And then she said yes and she jumped in with me.” 
•	As they were driving up towards 5 Mile service station and then towards East Boroko on their way to Manu roundabout towards Taurama his sister called again. “I was explaining to the small girl, I'll have to see my sister and then I'll buy buai in front of her husband's store and then we will come back to the service station to refill and then I'll buy her lunch and then send her.” 
•	While at the roundabout, driving towards Don Bosco and his sister's store, the small girl said she wanted to go down. First, she said she wanted to urinate but there was no place where he could stop the car because there were a lot of cars behind them. He told her that “we'll just go towards the roundabout to where my sister's husband’s store which was on the other side of the road and we had to go all the way to the roundabout and come back”. 
•	But she had already opened the front door and it was wide open. She was going towards the door and about to get off and there were lots of vehicles behind them. He was politely telling her that she had to close the door. She said she wanted to go down. So he had to switch lanes again from the inside to the outside to avoid an accident because the door was open wide and the car was driving. He could not do much. The girl was already about to get off. 
•	“So I have to avoid the roundabout and tried to stop on the side of the foot path. And I didn't realize that the front left wheel went down into the drain because the door was opened and I couldn't see the drain. So she jumped out of the car and then ran up and met two women who were walking down the road and who saw us... And I came out of the car and realized that the front wheel was already hanging over the drain that was deep. I came out of the car and screamed at the girl, saying you stupid! why you have to do this? And she was crying in front of the two women thinking that I will bash her or like that.” 
•	He did not bash her. When they were about to turn off from the roundabout towards his sister's store, the small girl had already opened the door wide and was about to jump off the car. So he put his other hand on her shoulder at the same time as telling her not to jump. He was “trying to save her”. 

45.	The accused’s s 96 statement, P23, is lengthy but is generally in the nature of submissions. It makes no mention of a boy being present. 

DEFENCE CASE 

46.	Sam Keteng Kissi gave evidence in his defence. He is 41 years old, married with two children. He was admitted as a lawyer in 2009 and worked in a number of public offices in that capacity including the Solicitor General’s Office, the Public Curator’s Office, and IDLO before moving to private practice.  He was in private practice at time of his arrest. 

47.	He denies any involvement in the offences against SR and VP. 

48.	On 8 October 2018 his client James rang him from Datec. He was doing James’ case for free and had asked him to buy toner and stationary. He drove to Datec and parked his vehicle at the car park next to James’ vehicle, a white Toyota sedan. He came out and told stories with James for 20 to 30 minutes. After that James opened the front side door of the accused’s vehicle and put a black plastic on the front seat. He told James that he was going to pick up his children that afternoon and asked him to put the bag in the back of the vehicle, which he did. 

49.	He was apprehended by the Dog Unit on 10 October 2018. At the police station he was shown 7 photos taken at Datec showing him driving there between 2 and 3 pm. The images showed his vehicle parked next to the white Toyota sedan belonging to his friend James, and both of them standing in front of it with James’ male friends.  They also showed James opening the left-hand side door of the accused’s vehicle and placing items on the front passenger seat. There was also footage, which is missing from the file. The seven snapshots that were produced in evidence by the State are not the same shown to him by police on 10 October 2018.

50.	He was taken to Boroko Police Station that afternoon. The relatives of both complainants were present and a lot of people were inside. Officer Lynette tried to photograph his face and he knocked the phone out of her hands. She bashed him and then several male officers bashed him. He was taken to the cells and then made to sit in a room by himself. At about 8 pm SR’s father came with both SR and VP. Lynette asked them if this was the guy or not. VP looked at him for two to three minutes and was confused. SR’s father put his hand on her shoulder so she nodded at SR’s father. Lynette called SR who did not come close but shouted whilst standing with her mother “that is him” and walked out. He was taken back to the cells. He was interviewed on 11 and 12 October. 

51.	He was released on bail the following day, 13 October 2018.

52.	On 25 October 2018 he drove his niece and small sister to the airport and was driving back to town when one of his clients called him and told him he was at 6 Mile and to go to his hotel at 6 Mile and wait for him at the front of the store as he was still on his way. He waited outside the hotel in front of the main store outside the market. He saw people selling betelnut and pointing at his number plate. He thought they were the relatives of two victims. He saw his client’s vehicle and followed him to his office. The client gave him some money and he drove back to the shopping centre. 

53.	He was trying to buy a call card to call one of his nieces at Manu but because the people were starting at his vehicle he could not get out so he called a girl who was standing in front of the vehicle to come. He gave her K10 and she went in and bought a tok card. He told the girl and the boy he would buy them some food at 6 Mile and both agreed and jumped in but he did not realise the boy snuck off whilst he was talking to them. 

54.	They drove to 5 Mile to East Boroko to POM Grammar and were about to drive to Manu service station when his niece rang him and told him to come to the store and get money for his court case. As he was driving towards the roundabout he could hear the girl saying she wanted to get down and he thought she was talking to the boy. He then realised there was only a girl. He told her that they will just go round the roundabout and come back and stop on the other side but she thought he would take her away and tried to open the door on the left hand side and there were vehicles and it was risky for him to change lanes but the door was wide open and he had to struggle to go to the footpath and that is when she got out and went to the two women and he got cross with her.  

55.	He mentioned the boy in his interview. The original record of interview was removed from the files at the District Court. He mentioned it in his s 96 statement at the District Court. They have been lost at the District Court. Or perhaps he edited it out. He could not say because he only glanced through it. If it was not in his s 96 statement then it was in his submissions. 

56.	He did not drive from 5 Mile towards 4 Mile. He drove from 6 Mile to 5 Mile and then to East Boroko. He never drove to 3 Mile.  He never fought with the girl in the vehicle. It was impossible. He was driving. The vehicle never went into the drain. He parked on the footpath. There was no commotion. They did not pick up EK’s brother from the Salvation Army on the way back to the police station. 

57.	SR’s father is a relative of or works with someone whose case he was dealing with and that is why he has been accused of the offences. It is a civil case involving landowners for K20m. He used to see him at the Department of Commerce and that is why he linked SR’s father.  

58.	The accused tendered his s 96 statement in relation to VP. For the most part it is in the nature of legal argument and submissions. He denies the allegations as being false. He says that VP and SR were brought by Lynette Namia with SR’s father to identify him. VP was confused and SR’s father put his hand on her shoulder and she looked up and nodded to SR’s father and left. Then SR came in and without seeing his face said it was him and walked out.   

59.	James Kambau gave evidence that the accused asked him for toner for his case. Between 2 and 3 pm he went to Datec in his white Camry, BCY 897, and bought the toner and called the accused to come and pick it up. He was with two of his boys. The accused came and parked next to him and they told stories for a while and then he opened his car to put the toner in the front and the accused told him to put it in the boot. He agreed under cross-examination he did not actually open the side door. He was trying to and the accused told him to put it in the back. It may be that the vehicles were not parked together. He cannot recall. When shown the photograph only showing himself and the accused he said the boys were inside his vehicle. He identified the accused in the photograph.  

SIMILAR FACT EVIDENCE 

60.	An application to quash the indictment and for the trials to be heard separately was refused: State v Sam Keteng Kissi (2023) N11013 on the basis that the evidence relating to each of the three complainants was cross-admissible as similar fact evidence on each count in the indictment.

61.	As a basic principle, evidence which goes only to show that a person has a propensity or disposition to commit crime, or crime of a particular kind, or that he was the sort of person likely to commit the crime charged is inadmissible for being unfair: Broadman v Director of Public Prosecutions [1975] AC 421; Makin v Attorney-General for New South Wales [1894] AC 57.  

62.	Exception is made, however, for what is sometimes referred to as “similar fact evidence”.  Such evidence is circumstantial evidence.

63.	Despite the terminology used, “striking similarity” is not a precondition to admission. The essential requirement is that “its probative force in support of the allegation is sufficiently great to make it just to admit despite its prejudicial effect” or, in other words, its probative value outweighs it prejudicial effect: DPP v P [1991] 2 AC 447; Pfennig v R (1995) 182 CLR 461. 

64.	Similar fact evidence may be led for a number of purposes, including to: prove knowledge by the defendant of some fact (R v Mason (1914) 10 Cr App R 169); rebut a defence that would otherwise be open to the accused (Makin, DPP v P, supra); rebut a defence of innocent association (The State v Tanedo (1975) N10; Broadman v Director of Public Prosecutions [1975] AC 421); establish the relationship between the accused and the complainant or the motive for committing an offence (State v Namaliu (2019) N8080; State v Kailomo (2007) N4997); confirm the veracity of other complainants (State v Stafford Hambo (2010) N4036; Hoch v The Queen [1988] 165 CLR 292); or, as in this case to prove identity (State v Daniel [1988-89] PNGLR 580; State v Otto (2007) PGNC128). 

65.	The evidence must possess a strong degree of probative force and a real material bearing on the issues to be decided: State v Otto, supra; applying Philips v The Queen [2006] HCA 4.  

66.	The similarity required is a question of degree. It will depend on the issues in the case and the nature of the other evidence: DPP v P; Pfennig, supra.  

67.	In this case the evidence is being used to prove identity. 

68.	Where identity is in issue, special considerations apply. “Evidence of a character sufficiently special to identify the perpetrator is required”: DPP v P; Pfennig, supra. 

69.	I have been unable to find a case in this jurisdiction where the Court has been required to consider the principles in detail. In Pfennig, supra the High Court of Australia considered the principles having regard to the authorities in England, Canada and Australia. Whilst not binding it is of significant persuasive weight. Per Mason CJ, Deane and Dawson JJ (emphasis mine) (citations omitted): 

“Very often, propensity evidence is received when there is a striking similarity between different offences or between the evidence of different witnesses. In particular, it was recognized that the existence of such striking similarity is necessary in cases such as Sutton where the prosecution seeks to lead the evidence on the basis that the similarity between different offences founds a conclusion that they must have been committed by the one person with the consequence that evidence which would be admissible to show that an accused committed one of the offences is admissible to prove that he or she committed another or the others of them...

[And quoting] Dawson J in Harriman:

“Assuming similar fact evidence to be relevant to some issue in the trial, the criterion of its admissibility is the strength of its probative force ... That strength lies in the fact that the evidence reveals 'striking similarities', 'unusual features', 'underlying unity', 'system' or 'pattern' such that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution."

This passage should not be understood as asserting that "striking similarities" or the other characteristics mentioned in relation to propensity or similar fact evidence are essential prerequisites of its admissibility in every case.”

70.	It follows that whilst striking similarity is not essential, where identity is in issue, the evidence may lack the requisite probative force if it does not possess such characteristics: see for instance Maraga v State (2009) SC968; State v Daniel; State v Otto, supra. 

71.	Where the evidence is being used to prove identity the question is whether each of the offences was committed in a manner so similar to the other or others that it establishes beyond reasonable doubt that the same person was responsible on each occasion. 

72.	In determining that question it is necessary to consider whether the similarities are so striking - whether there is some underlying unity, system, pattern or “signature” - that the evidence excludes the possibility of coincidence beyond reasonable doubt when judged by common sense and experience: see Boardman; Pfennig, supra.

73.	As explained by Dawson J in Sutton v The Queen (1984) 152 CLR 528 at [15] (see also Gibbs CJ at [8]) (emphasis mine):  

“The question which arises here is that of the identity of the accused with the person or persons who committed the offences against the complainants. There was at the trial no contest that those offences took place nor was there any contest that each of the complainants was truthful in her description of her assailant and of the circumstances in which each assault took place. The evidence of one set of offences was tendered in proof of the others upon the basis that the circumstances of each offence, including the description of the assailant, were so similar as to be beyond the realm of coincidence. The evidence, if admissible upon this basis, entitled the jury to conclude that the same person committed all three sets of offences and if they were satisfied beyond reasonable doubt that the accused was correctly identified in any one instance, they were entitled to convict him, as they did, of all the offences with which he was charged.”

74.	In that case the appellant was charged with one count of rape against LK, three counts of rape against VAH, and three counts of rape against DMT.  LK saw the accused twice in the street after the event but did not participate in a parade. She identified the appellant in the dock. VAH could not identify her assailant. DMT identified the appellant as her assailant when driven by the police past a hotel later the same night of the assault.  The appellant was convicted of all offences. The High Court unanimously dismissed the appeal on the basis that it was open to the jury to find that the offences were so strikingly similar that they must have been committed by the same person. 

75.	The similarities, as summarised by Gibbs CJ at [9], were that: “All the victims were girls in their teens who lived near where the attacks took place. In each case the victim was grabbed from behind or from the side and a hand was placed over her mouth; the assailant's other hand was put round part of her body; she was threatened with death if she screamed (or, in the case of VAH, if she did not shut up) and was compelled to walk a short distance to a secluded place where the assault occurred. The abductions of LK and DMT took place in minor suburban streets a short distance from the junction between Port Road and Old Port Road; the abduction of VAH took place in a minor suburban street about two or three kilometres from that junction. In each case the sexual assault was carried out in the grounds of a school - in the cases of LK and DMT it was the same school, although not at the same place in the school grounds. In the cases of VAH and DMT there was oral, vaginal and anal intercourse: in the case of LK there was attempted oral intercourse only.  The assailant operated alone, approached on foot and used no weapon or blows. During the abduction and assault or immediately afterwards the assailant expressed himself in "a curt, laconic, manner of speech"... When the assault was over the assailant in each case left the girl where she was and headed in a direction consistent with one who was making for Port Road. There was an interval of between five and six weeks between each of the three series of offences alleged. LK and VAH smelt cigarette smoke on the assailant; DMT did not, but the assailant asked her if she could find his matches. The descriptions of the assailant given by the victims contained points of similarity but some discrepancies.”

76.	In the words of Dawson J at [18] it was not “a case in which any one circumstance common to the various offences was sufficiently striking to eliminate any reasonable possibility of coincidence. Rather it was the accumulation of common circumstances which had that effect.” 

77.	It follows that striking similarity may arise because of some unique hallmark or “signature” or because of the cumulative effect of a number of similarities. 

78.	It is not necessary, however, that there be more than one other incident of the kind alleged: Pfennig, supra.  

79.	It does not matter whether the similar facts took place before or after the facts in issue: Pfennig, supra; The State v Bill Vevo (2007) PNGC 1 at [11]. 

80.	As above, the degree of similarity required will depend upon the other evidence in the case, including that which establishes a connection with the accused: Pfennig, supra. 

81.	In Pfennig for instance, the appellant was convicted of the murder of a 10-year-old boy, Michael, who was last seen on the banks of a river on 17 January 1989. His body was never found. The prosecution had to prove both that somebody had murdered Michael and that Pfennig was responsible. At trial it was allowed to lead evidence establishing that the appellant pleaded guilty to the abduction of a 13-year-old boy, “H”, who he lured into his van, took to his house and sexually assaulted on 30 December 1989, almost 12 months after Michael’s disappearance. The boy escaped. When asked by his wife why he abducted H, the appellant said that “he had been thinking of "it" on and off for the past 12 months”. 

82.	The High Court of Australia unanimously dismissed the appeal. Whilst the H evidence did not involve murder, it demonstrated not only propensity but the appellant’s modus operandi, namely the abduction of a young boy for sexual purposes by means of inveigling him into a van and an acknowledgement that he had been thinking about indulging his propensity by recourse to that same modus operandi. In addition, there was an inference available that Michael was abducted for sexual purposes - no ransom was demanded and there was no suggestion of family discord which might have led to the abduction - and other circumstantial evidence, including that Pfennig had invited two other children into his van the day before (which invitation was declined), was present in the area at the relevant time, with his van, had spoken to Michael earlier that day, and that a van matching the appellant’s had been seen leaving the reserve at speed at about the time when Michael was last seen at the reserve, which meant that it was open the jury to convict. 

Present Case

83.	The questions to be determined are as follows. Is the evidence of the complainants as to the circumstances of the offences credible and reliable? If so, are the circumstances in which the offences were committed so strikingly similar that the evidence establishes beyond reasonable doubt that they must have been committed by the same person? If so, what is the evidence linking the accused to the similar acts?

84.	I find each of the complainants to be honest and reliable. I make these assessments, as I do with each of the witnesses, having heard and observed them whilst giving evidence and having regard to common sense and logic and bearing in mind that I may accept or reject any part of a witness’ evidence: Maraga, supra v The State (2009) SC968; James Pari & Bomai Tine Kaupa v The State [1993] PNGLR 173. 

85.	In making these findings I am satisfied that the prosecution has excluded the possibility that the evidence of the complainants as to the commission of the offences or the description of the alleged perpetrator is untrue or unreliable because of concoction between them or with anyone else, deliberate or otherwise. 

86.	There is no suggestion that EK knows SR or VP and there was no opportunity for her to concoct her story with anyone, which story was captured by police on the day of the incident. As for SR and VP, they are not related and whilst they both lived at Erima and went to the same school I am, for the reasons set out below, satisfied beyond reasonable doubt of the truth and reliability of their respective evidence.  

87.	For the reasons set out below I reject the accused’s evidence that SR’s father was present when VP identified him at the station, or that SR’s father influenced or attempted to influence the identification process at the police station in the case of either VP or SR. I also reject the accused’s evidence that SR’s father has a vendetta against him because of a legal matter. As below, the accused was an unimpressive witness for several reasons and his evidence about that matter was vague and was not put to the witness, who impressed me as a witness of truth. Moreover, I accept SR’s father’s evidence that he did not know the accused.

88.	I am satisfied beyond reasonable doubt that the offences against SR, VP and EK were committed by the same person. The similarities are so striking that they exclude the possibility of coincidence beyond reasonable doubt when judged by common sense and experience. 

89.	In making this determination I have had regard to proximity of time and place, the number of alleged incidents and the number and nature of similarities:

•	The alleged offences took place within a period of just over four weeks, at intervals of about two weeks.
•	In each case the complainants were young girls aged between 10 and 13 years of age and each of them, including EK, appeared from the photos taken at the time to be prepubescent. 
•	In each case the girls were approached by a man in a vehicle whilst they were walking along the road in the middle of the day on a school day.  SR and VP were approached as they were walking home from Wardstrip Demonstration Primary School towards Erima, between about 1230 pm and 230 pm. EK was approached at about 11 am as she was walking towards the 6 Mile shops. 
•	In each case the vehicle was a grey, Toyota Harrier. 
•	In each case the perpetrator acted alone. 
•	In each case the description of the perpetrator was similar albeit not identical. SR described him as short and dark skinned. VP said he was brown with a stomach that was not really big. EK described him as short, with a stocky build and a big belly. 
•	In each case the girls were called over to the vehicle by the driver. 
•	In each case the driver lured or inveigled the complainants into the vehicle by creating a sense of trustworthiness or by promising a reward. The driver engaged in conversation with SR by asking her if she knew another girl, whom he named. He told SR that he knew her father and was going to take her to her house. In VP’s case the driver initiated conversation by asking if she knew a girl “S”. He told VP he knew her parents. He told her he would buy her lunch and when she was reluctant that he would buy her a phone. In EK’s case the driver initiated conversation by asking her to buy him a tok card and then told her he that he felt sorry for her and was going to buy her Big Rooster, clothes and a phone. 
•	In each case the perpetrator drove about for some time after taking the child into his vehicle. SR was taken to Vision City, where the driver stopped for fuel, then to BSP Bank, then to SVS at Two Mile, where he bought her food, then up Two Mile Hill, down to Ela Beach, then to a car park at Konedobu, where he sexually penetrated her, then to Tokarara, to the Waigani Traffic Lights, past Laguna and along the road to Parliament House then to the National Library where he turned on to the road where he picked her up, drove on through the roundabout, and dropped her off before driving on to the Erima flyover. VP was taken to Datec, then to Konedobu, to Hanuabada, and back to a car park in Konedobu, where he sexually penetrated her, from there to a block of land at Korobosea, then to a car park at KMC, Boroko where he assaulted her again, and finally to Erima where he dropped her near the flyover. EK was taken to Five Mile, on past Boroko Market, towards 3 Mile, to the Manu Roundabout and down to Vadavada before she intervened and caused him to drive into the side of the road. 

90.	In summary, there was such striking similarity in the age of the complainants, the description of the vehicle and its driver, the method in which the complainants were lured into the vehicle, and the manner in which the driver conveyed the complainants about in his vehicle for some time in each case, together with the fact that the incidents took place within a period of a little over four weeks, at intervals of about two weeks, that the evidence establishes beyond reasonable doubt that the offences must have been committed by the same person in each case.   

91.	In the case of SR and VP, each were sexually penetrated. In each case the penetration was penile. In each case it took place in the backseat of the vehicle.  SR described the sexual penetration as taking place near the Aviat Club, Konedobu. VP described the first sexual penetration taking place at a car park near the Konedobu Stadium. What is apparent from the photographs taken by the crime scene officer, C/Kobua, at the direction of SR and VP however, is that the offence against SR took place in a parking space just three spaces away from where the first offence against VP took place (see P3 and P4-15 and P1, P2-13 and P2-14). In addition, each of SR and VP were driven about for some time after the sexual violence, albeit that VP was assaulted for a second time, and eventually dropped off near where they were picked up and close to the Erima flyover. 

92.	The fact that EK was not sexually penetrated raises no doubt in my mind as to the striking similarity of the conduct against her in view of the intervening event, namely the steps taken by her to escape the vehicle. 

93.	It follows that it is necessary to consider the other evidence in the case to determine whether it establishes a connection with the accused to any of the offences beyond reasonable doubt.  

CONSIDERATION

94.	It is convenient to deal with the charges in the following order. 

COUNTS 8 & 9 - EK

95.	EK impressed me as a witness of truth and reliability. Her evidence as to what took place when the accused approached her and whilst she was in the vehicle was clear and compelling. She is now 18 years of age and whilst the events took place about five years ago she had a detailed recollection of them. 

96.	The evidence of those who were present at the time which confirmed that the vehicle came to a sudden stop, in a drain at the side of the road, together with evidence that EK was in significant distress at that time, together with the evidence of Insp Kakarere who observed a bruise on her cheek when she was brought into the station not long afterwards, is consistent with her evidence. 

97.	The accused was an unimpressive witness. Having heard and observed him I am unable to accept him as a witness of truth. His evidence was contrived and implausible. It contradicted statements in his record of interview in several important respects, including that he only saw the girl when he went back to the shopping centre at 6 Mile whereas in his interview he admitted that he was driving up to 6 Mile when he first saw the girl. In evidence he said that both a girl and a boy jumped in to the vehicle and he only realised later that the boy must have “snuck off” whilst it is clear from his record of interview that only a girl got into the vehicle. He also claimed in evidence that he parked on the footpath at Vadavada whereas in the record of interview he admitted that he drove into the drain. 

98.	I reject his evidence that a boy got into the vehicle with EK and somehow “snuck off” without him realising it, or that there was a boy present with EK before she got into his vehicle, regardless of the brief reference to a boy in his record of interview. The evidence that he was trying to save EK and that is why he touched her shoulder and subsequently crashed into the side of the road is fanciful, as is the suggestion that she was distressed only because he yelled at her once she had left the vehicle. 

99.	I make it clear that I take account of these matters in relation to the accused’s credibility and the reliability of his evidence only and for no other purpose. The accused gave evidence although he was not obliged to do so. By entering the witness box and giving evidence he did not take upon himself any obligation to prove anything in this trial.

100.	There can be no doubt about the identity of the accused with respect to the offences alleged under Counts 8 and 9. He was apprehended at the scene and there is no dispute that at the time of the alleged offences he was driving his vehicle, a grey Toyota Harrier, BEG 952. 

COUNT 8, ABDUCTION - EK

101.	Section 350 creates the offence of abduction.

ABDUCTION.

(1) A person who–

(a) with intent–
(i) to marry or carnally know a woman; or
(ii) to cause her to be married or carnally known by any other person,
takes her away, or detains her, against her will; or

(b) from motives of gain, and with an intent referred to in Paragraph (a), takes or entices away, or detains, a woman who is under the age of 21 years, and who–
(i) has any interest, whether legal or equitable, present or future, absolute, conditional, or contingent, in any property; or
(ii) is a presumptive heiress or co-heiress, or the presumptive next of kin, or one of the presumptive next of kin, to any person who has such an interest,
out of the custody or protection of her father or mother, or other person having the lawful care or charge of her, and against the will of the father or mother or other person,

is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.

(2) A person who is convicted of an offence against Subsection (1) that was committed with respect to a woman referred to in Subsection (1)(b), is incapable of taking any estate or interest, legal or equitable, in any property of the woman, or in which she has any interest, or that comes to her as an heiress, co-heiress, or next of kin, and if he has married the woman, all such property shall, on his conviction, be settled in such manner as the National Court, on application by the Attorney-General, orders.	

102.	The State averred that the accused “took away a woman, EK, against her will with intent to carnally know her”, contrary to s 350(1)(a)(i), Criminal Code. 

103.	To establish the offence pleaded the State must prove beyond reasonable doubt that the accused:

a.	With intent to carnally know;
b.	A woman;
c.	Takes her away;
d.	Against her will.

A Woman

104.	The accused submits that “woman” in s 350, Criminal Code means an adult female both on its face and when seen in the context of s 351, Criminal Code, which expressly refers to the taking of a child. 

105.	The State submits that “woman” in s 350 should be read to mean female of any age. It relies on the decision of Cannings J in State v Manwau (2009) N3797 in which the offender procured the abortion of a 14 year old girl he had been sexually abusing. In convicting the accused Cannings J said that “woman” in s 312 (killing unborn child), “a person who, when a woman is about to be delivered of a child, prevents the child from being born alive” must in the context of that provision “be given a more expansive definition than its ordinary meaning, which is an adult female human being. Woman should be read as including a female person of any age.” Whilst different in context, the reasoning in that case is relevant.

106.	Sections 220 and 351, Criminal Code provide as follows.  

220, ABDUCTION OF GIRL UNDER 18 WITH INTENT TO HAVE CARNAL KNOWLEDGE.

(1) A person who, with intent that an unmarried girl under the age of 18 years may be unlawfully carnally known by any man (whether a particular man or not), takes her or causes her to be taken out of the custody or protection of her father or mother or other person having the lawful care or charge of her, and against the will of that father or mother or person, is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding two years.

(2) It is a defence to a charge of an offence against Subsection (1) to prove that the accused person believed, on reasonable grounds, that the girl was of or above the age of 18 years.
(3) The husband or wife of the accused person is a competent but not a compellable witness.
... 

351, ABDUCTION OF GIRLS UNDER 16.
(1) A person who unlawfully takes an unmarried girl under the age of 16 years out of the custody or protection of her father or mother, or other person having the lawful care or charge of her, and against the will of the father, mother or other person, is guilty of a misdemeanour.
Penalty: Imprisonment for a term not exceeding two years.
(2) It is immaterial in the case of a charge of an offence against Subsection (1) that–
(a) the offender believed the girl to be of or above the age of 16 years; or
(b) the girl was taken with her own consent or at her own suggestion.

107.	I remind myself that the ordinary rules of construction must be applied in construing a penal statute such as the Criminal Code: ss 109(4) and 158 of the Constitution. It is only where, after having regard to the words of the statute, its context, its legislative history, purpose and any applicable interpretation provisions, the provision under consideration remains ambiguous, can the ambiguity be resolved in favour of an accused: Reference by the Attorney General of Papua New Guinea and Principal Legal Adviser to the National Executive Council (2021) SC2112.

108.	The offence under s 350, Criminal Code is an old one. It is based on s 17 of the English Sexual Offences Act, 1956, since repealed. 

109.	The use of “woman” in that section was never confined to an adult: see for instance R v Guy Frederick Lawrence and Others [1971] EWCA Crim J 1026-7 concerning girls aged 16 and 13. Like the Criminal Code, the Act contained separate offences immediately following s 17 that expressly dealt with the abduction of a girl under eighteen from a parent or guardian and of a girl under the age of sixteen from a parent or guardian. Those considerations whilst obviously not binding have some persuasive value.

110.	To my mind the meaning of “woman” in s 350 is clear when regard is had to s 350(1)(b), Criminal Code which provides that it is a crime to take a “woman who is under the age of 21” against her will to carnally know her or marry her for purposes of gain. In that context it should be remembered that historically a person under the age of 21 was legally regarded as a child, or in other words s 350(1)(b) was specifically concerned with the abduction of girls. That is made further clear when regard is had to the balance of that subsection which refers to the removal of the woman from the “custody or protection of her father or mother, or other person having the lawful care or charge of her” and against the will of her parents or guardian. In addition, s 350(2) renders a person guilty of the offence under s 350(1)(b) incapable of taking any estate or interest in any property of the woman under 21 in which she has an interest, present or future. It makes no sense to protect the property of an adult female in those circumstances but not that of a child. 

111.	In summary, “woman” in s 350 means female of any age. To find otherwise would defeat the purpose of the section.

112.	This is confirmed when ss 220, 351 and 350, Criminal Code are read together. 

113.	Section 351 prohibits the taking, for any purpose, of an unmarried girl under the age of 16, out of the custody of her parents or guardian, against the will of her parents or guardian, regardless of whether the girl is taken with her own consent, for which the penalty is two years. Section 220 prohibits the taking, with intent that she be carnally known, an unmarried girl under the age of 18 years, out of the custody of her parents or guardian, and against the will of her parents or guardian, for which the penalty is two years. Section 350(1)(a) prohibits the taking, with intent to carnally know, a female of any age, against her will, for which the maximum is 7 years. 

114.	I am satisfied beyond reasonable doubt that EK was a “woman” for the purposes of s 350(1)(a), Criminal Code.

Takes her away

115.	Whether the accused “takes [a woman] away” must be a matter of fact and degree, to be determined according to the circumstances of the case and having regard to common sense and logic. 

116.	See R v Johnson [1957] St R Qd 594 by analogy where by supplying a taxi and advising the girl that he had railway tickets the appellant actively induced her to leave her home, that was sufficient evidence of “taking”.  In R v Smith [1970] NZLR 1057 the appellant took the victim away when he had her in his vehicle over considerable distances and for several days.

117.	I am satisfied beyond reasonable doubt that the accused took EK away when he took her into his vehicle and drove away, and continued to drive for some time and distance, including but not limited to, after she told him to stop the vehicle and let her out. 

Against her will

118.	The defence submits that EK was not taken away against her will because she was lured into the vehicle, such that there was no force and she voluntarily got into the vehicle. 

119.	Force is not an element of the offence. It matters not that she was induced or deceived into entering the vehicle. 

120.	To act in accordance with a person’s will is to act in accordance with what a person “desires or ordains”: Oxford English Dictionary. 

121.	To act against a person’s will is to act without their free and voluntary consent. It follows that something may be done against a person’s will if done under fraud, duress or without that person’s knowledge.

122.	Furthermore, it has long been recognised for the purposes of s 220, Criminal Code that a girl may be presumed to have been taken against her parent’s will where such parent, if asked, would have refused his or her consent: R v West (1874) 5 AJR 19.  I see no reason why that should not apply to the person actually taken for the purposes of s 350.  

123.	I am satisfied beyond reasonable doubt that EK’s taking was against her will from the time she entered the vehicle.  EK did not voluntarily consent to go anywhere other than to go and get some food and buai and be brought back again. She certainly did not consent to be taken away to be carnally known.  EK would never have entered the vehicle if she had known that the accused was not going to let her out when she wanted to get out, a matter the accused well appreciated as demonstrated by his use of the deception. 

124.	Moreover, there can be no doubt that the taking was against EK’s will and that the accused knew that the taking was against her will in circumstances where EK told the accused to drop her at her brother’s place of work and he deliberately refused to do so and continued to drive, for some time and distance, after she told him again to stop and let her off and until she brought his vehicle to a halt by driving it into the side of the road.

With intent to carnally know

125.	“Carnally know” means to have sexual intercourse with: State v James Yali (2005) N3014.

126.	There is a very strong inference when a 37 year old man takes away a young girl, who is not known to him, in the circumstances described, and threatens to kill her when she tries to escape that he intends to sexually assault her in some manner.  

127.	As below, I am satisfied beyond reasonable doubt that the accused committed the offences against VP and SR, including sexual penetration of a child. When that similar fact evidence is taken into account the totality of the evidence excludes any rational inference other than that the accused took EK away with intent to carnally know her. 

COUNT 9, DEPRIVATION OF LIBERTY - EK

128.	The State charged the accused with unlawfully depriving EK “of her personal liberty by keeping her in his moving vehicle”, contrary to s 355(1)(b) of the Criminal Code. 

129.	As a preliminary matter the number of the offence provision has been misstated. There is no subsection (1) of s 355. But that error is not fatal. The indictment contains an offence known to the written law. The elements were correctly stated in the indictment and were clearly particularised. No issue was raised by the accused. The allegations have at all times been clear and the accused has not suggested nor demonstrated any prejudice in his defence.   

130.	Returning to the charge itself, the defence submits that EK chose to join the accused in the vehicle and was not therefore deprived of her liberty.  

131.	Section 355 creates the offence of deprivation of liberty:

A person who unlawfully–
(a) confines or detains another in any place against his will; or
(b) deprives another of his personal liberty,
is guilty of a misdemeanour.
Penalty: Imprisonment for a term not exceeding three years.

132.	To establish the offence of deprivation of liberty contrary to s 355(b), Criminal Code the State must prove beyond reasonable doubt that the accused:

a.	unlawfully; 
b.	deprives another; 
c.	of his or her personal liberty.

133.	“Deprives” and “liberty” are not defined and should be given their ordinary meaning. According to the Oxford English Dictionary “deprives” means “deny the possession or use of something”. “Liberty” means “the power or scope to act as one pleases.” 

134.	The offence of deprivation of liberty is based on the common law crime of false imprisonment. Unlike s 355(a), s 355(b) does not require the prosecution to prove as an element that the conduct took place against the will of the victim. It has been held in relation to a similar but not identical provision under the Queensland Criminal Code that the offence recognises that “people may be deprived of their liberty not only against their will but also where the deprivation is achieved by fraud, done without knowledge or the victim lacks capacity. An example would be to lock a sleeping or intoxicated woman in a room to prevent her from leaving should she try”: per McMurdo J in R v Awang (2004) QCA 152 applying Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44, per Atkin LJ:

“It appears to me that a person could be imprisoned without his knowing it. I think a person can be imprisoned while he is asleep, while he is in a state of drunkenness, while he is unconscious and while he is a lunatic ... So a man might in fact, to my mind, be imprisoned by having the key of a door turned against him so that he is imprisoned in a room in fact although he does not know that the key has been turned."

135.	I make it clear that this makes no difference to my finding as to the meaning of “against her will” in s 350, Criminal Code. The authorities above proceed on the basis that “consent is vitiated by fraud or lack of capacity or lack of knowledge”: Go v The Queen (1990) 102 FLR 299 and on the implicit assumption that the restraint of liberty would be against the will of the victim if the victim had known of the constraint: McFadzean v Construction, Forestry, Mining and Energy Union [2007] VSCA 289 at [38].

136.	In my view, if there is no free and voluntary consent the constraint is against the person’s will. 

137.	I am satisfied beyond reasonable doubt that the accused deprived EK of her personal liberty the moment he took her into his vehicle regardless of whether she appreciated that fact or not. Furthermore, there can be no doubt the accused deprived EK of her personal liberty by keeping her in his moving vehicle as particularised. As a practical matter she was not free to leave the moving vehicle once he started driving, as demonstrated by what happened once she was inside the vehicle and the desperate lengths she was required to take when he refused her demands to stop the vehicle and let her out. 

138.	A detention will be “unlawful” unless it is authorised or excused by law: McKenzie v The State (1998) SC596; see also State v William Nanua Kapis & Ors (2011) N4232. 

139.	I am satisfied beyond reasonable doubt that there was no lawful excuse or justification for the accused to have EK, a 13 year old girl who was not known to him, in his vehicle in the first place. There was no lawful excuse or justification for him to keep her in his moving vehicle as charged, either on the pretence that he was taking her to buy lunch or buai or once she made it clear that she wanted to get out, and the evidence establishes that he kept her in his vehicle for a considerable period and until she caused the vehicle to stop. 

COUNTS 4, 5, 6 & 7 – VP

140.	VP was 15 years old at the time she gave her sworn evidence in English. She was a very impressive witness. The manner in which she gave her evidence, the language used, and the nature and detail of that evidence leaves me in no doubt as to its truth and reliability.  

141.	Evidence was not led from VP about describing her attacker to her aunt, TP, whilst she was in hospital and there were some discrepancies between the description of the driver given by VP herself in evidence and that given to her aunt but the fact that VP does not now recall or regard as significant that she gave a description to her aunt the day after the offences and whilst recovering from surgery is hardly surprising. The differences in description – brown, with a stomach not really big, green collar shirt and black trousers compared to black, short and bald, green shirt and brown long trousers - are not material on their own nor when considered with the totality of the evidence in support of Counts 4, 5, 6 and 7, and point away from any collusion on the part of the witnesses. 

COUNT 4, ABDUCTION - VP

A Woman

142.	I am satisfied beyond reasonable doubt that VP was a woman for the purpose of s 350, Criminal Code. 

Took away 
143.	I am satisfied beyond reasonable doubt that a person took VP away into his vehicle and around the city for several hours, including to Konedobu and thereafter to KMC, Boroko.

Against her will

144.	I am satisfied beyond reasonable doubt that the person took VP against her will and that they knew that they were taking her against her will at the time. 

145.	VP only agreed to go with the driver because he told her that he knew her parents and that he would buy her lunch and a phone. It was not her will, her choice, her desire or intention to be taken away and driven around the city otherwise, or to be taken away to be carnally known, and she would not have gone with the driver had she known that was what was intended, a matter the driver well appreciated as demonstrated by his use of the deception. VP made her will further known to the driver when she moved into the backseat of the vehicle at Hanuabada, following which the driver directed her to sit back in front and took her away to the car park at the stadium at Konedobu where he sexually penetrated her, and then after that took her away again to KMC, Boroko where he sexually penetrated her again. To suggest that VP was not taken away against her will in those circumstances is a nonsense.

With intent to carnally know

146.	I am satisfied beyond reasonable doubt that the person who took VP away in his vehicle on 24 September 2018 did so with intent to carnally know her, which intent he gave effect to, twice. 

COUNT 5, DEPRIVATION OF LIBERTY - VP

147.	The State charged the accused with unlawfully depriving VP of her personal liberty “by keeping her in his vehicle … at a location unfamiliar to her”. 

148.	The accused submits that VP was driven around to various locations, told to remove her clothes and forced to have sex with the driver, twice, but was not deprived of her personal liberty.  I reject the submission. 

149.	I am satisfied beyond reasonable doubt that the driver deprived VP of her liberty from the moment he took her into his vehicle, regardless of whether or not she appreciated that fact at the time. 

150.	VP was induced to enter the vehicle by fraud. As a practical matter she was not free to leave the moving vehicle once he started driving and as a 10-year-old child she was not reasonably able to leave the vehicle so as to make her own way home when it stopped at Datec or Hanuabada and the fraud continued to operate at those places in any event. Moreover, the driver continued to deprive VP of her liberty by keeping her in his vehicle after she made it clear she was afraid of him by moving to the back of the vehicle at Hanuabada, by then taking her to Konedobu, where he sexually penetrated her, before taking her to Korobosea and then to KMC, where he sexually penetrated her again, and he continued to deprive her of her liberty by keeping her in his vehicle until he dropped her near her home, several hours after he had first taken her into his vehicle. 

151.	I am satisfied beyond reasonable doubt that there was no lawful excuse or justification for the driver to deprive VP, a 10-year-old girl who was not known to him, of her liberty, at all or in the circumstances established.  

COUNTS 6 & 7, SEXUAL PENETRATION OF A CHILD - VP
152.	I am satisfied beyond reasonable doubt that the driver engaged in two separate acts of sexual penetration with VP, a child under the age of 12 years, being aged at that time 10 years old, when he “introduced his penis into her vagina” as charged pursuant to Counts 6 and 7 of the indictment, contrary to s 229A(1)(2), Criminal Code. 

153.	To establish the offence the State must prove beyond reasonable doubt that the accused:

a.	engaged in an act of sexual penetration;
b.	with a child under the age of 16 years;
i.	who was at that time, under the age of 12 years, for the purposes of aggravation.

154.	The evidence establishes beyond reasonable doubt that VP was 10 years of age at the time, having been born according to her birth certificate on 6 January 2008, a matter confirmed by her mother. 

155.	The evidence also establishes beyond reasonable doubt that the driver engaged in an act of sexual penetration by inserting his penis into her vagina on two separate occasions, first at Konedobu and then at Boroko. 

156.	I make this finding on the evidence of VP, which was clear and compelling. There is no medical report and the evidence from VP’s mother and sister about what the doctors told them is hearsay. But corroboration is not required: s 229H, Criminal Code. The absence of medical evidence raises no doubt in my mind. 

157.	VP’s demeanour following the alleged events together with the fact that she was found by her aunt, DP, to be heavily bleeding from her vagina, was hospitalised for several days according to her aunts, DP and TP, and her mother, AP, and required physical assistance when taken from the hospital to the station by two officers is consistent with her evidence but is not necessary to my finding. 

158.	The fact that VP initially withheld the sexual violence from her aunties, or in her own words “lied” to them, does not mean that she is an untruthful witness. She was honest about that fact and it is in keeping with common sense and experience that a child may behave in such a way because of shame, fear or shock.  It was also consistent with the evidence that her aunt “got on her” when she saw VP coming home late.

IDENTIFICATION - VP 

159.	Having found beyond reasonable doubt that it was the accused who abducted EK and being satisfied beyond reasonable doubt that the offences against EK, VP and SR were committed by the same person it would be open to find the accused guilty of the offences against VP on that basis alone. 

160.	But putting aside the similar fact evidence, I am in any event satisfied beyond reasonable doubt that it was the accused who committed the offences against VP having regard to the following facts and circumstances. 

161.	On the evidence of VP, which I accept, she was taken in a vehicle matching the description of the accused’s vehicle, a grey Toyota Harrier, on 8 October 2018. She was taken into the car as she was walking home from school at about 230 pm and taken to Datec, where she was left alone in the vehicle for about 30 minutes. 

162.	Photographs produced from the CCTV camera at Datec show that Mr Kambau arrived at Datec in his white Camry, BCY 897, on 8 October 2018 at 14:56:38 and parked in front of the main showroom entrance. The accused’s vehicle, a grey, Toyota Harrier, BEG 952, arrived at Datec on 8 October 2018 at 15:27:19, drove past and did not park next to Mr Kambau’s vehicle even though there was space available. 

163.	Photographs show the accused and Mr Kambau standing at Mr Kambau’s vehicle shortly thereafter between 15:29:17 and 15:29:28 during which time it appears that the accused is given a white plastic bag from Mr Kambau’s vehicle.  The accused’s vehicle cannot be seen in the photographs at this time. 

164.	I reject the accused’s evidence and that of Mr Kambau, who ultimately resiled from it, that their vehicles were parked together. The photographic evidence shows that they were not. I reject the accused’s evidence that several boys were standing with them when he met Mr Kambau. The photographic evidence shows that they were not. Even on Mr Kambau’s qualified testimony the boys were inside his vehicle. 

165.	I reject the evidence of the accused that Mr Kambau placed anything in his vehicle. I reject the evidence of Mr Kambau that he opened any door to the accused’s vehicle, whether it was the side door as he said in examination or chief, or the back door as he said in cross-examination.  Mr Kambau was an unimpressive witness. 

166.	In making these findings I have considered that the State produced only the photographic images retrieved from Datec and not the CCTV footage made available but it was not suggested by the accused or Mr Kambau in their evidence, and nor was it put to VP, that either of them moved their vehicles after parking at Datec.  

167.	In addition, TP, Mr Rondoke and Mr Nigints each impressed me as witnesses of truth. On the basis of information provided to Mr Rondoke by TP, which I accept was provided to her by VP, he asked Mr Nigints to pull up any photos containing a Toyota Harrier between about 3 to 4pm on 8 October 2018. In response he was provided with a photo showing a white Harrier parked at Datec [Exhibit P9(1)] at 14:56:38, a photo showing the same white Harrier parked at Datec and the accused’s grey Harrier driving in, [P9(2)] at 15:27:19, and a photo of the accused and Mr Kambau at Mr Kambau’s vehicle [P9(3)] at 15:29:17.  

168.	I reject the accused’s evidence that the photographs obtained by Mark Rondoke were different from those obtained by CI Kakarere or that they showed his vehicle parked next to Mr Kambau’s with other males present, or showed Mr Kambau opening the left hand side door to the accused’s vehicle. Mark Rondoke’s evidence was straight forward and he was not challenged at all in cross-examination. It is also evident that the three photographs he obtained from Datec are the same three photographs which were obtained with four others from Mr Nigints by CI Kakarere [P10(1), P10(2) and P10(3)]. 

169.	Mr Nigint’s evidence was similarly straightforward. Nor was anything suggested to Insp Kakarere about the footage other than that it did not capture the suspect coming out of his vehicle, or show VP in the vehicle, with which she agreed. 

170.	In summary, VP was taken by a grey Toyota Harrier sometime around 230 pm at Erima on 8 October 2018 and taken to Datec. She was taken by a man wearing a green collar shirt and black trousers. By his own admission the accused was at Datec in his grey, Toyota Harrier at about that time. Photographic footage confirms it. That evidence together with that of Mr Kambau confirms that the accused was wearing a green collar shirt and dark trousers. VP says that the man went to speak to his friend for about half an hour. The accused admits and Mr Kambau confirms that they spoke for about half an hour. 

171.	This evidence is substantially circumstantial. The principles governing such a case are well established. In a case resting wholly or substantially upon circumstantial evidence an accused cannot be found guilty unless the prosecution has excluded all rational hypotheses consistent with innocence; that is the guilt of the accused must not only be a rational inference, but the only rational inference in all of the circumstances: Paulus Pawa v. The State [1981] PNGLR 498 (approving The State v Tom Morris [1981] PNGLR 493, adopting Barca v The Queen (1975) 50 ALJR 108 quoting Peacock v the King (1911) 13 CLR 619; see more recently Maladina v The State (2016) SC1495 and others. The bare possibility of innocence should not, however, prevent a finding of guilt “if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence”: Peacock v. The Queen at p. 661.

172.	The combination of circumstances leads to the inevitable conclusion beyond reasonable doubt that the accused was the person who abducted, detained and sexually penetrated VP. The State’s evidence excludes beyond reasonable doubt any other reasonable conclusion that is inconsistent with the guilt of the accused.  

173.	In making this finding I have placed little to no weight on the prior or in-court identification evidence produced by the State. 

174.	The principles governing identification evidence are well settled and need not be repeated here: John Beng v The State [1977] PNGLR 115, Biwa Geta v The State [1988-89] PNGLR 153; Jimmy Ono v The State (2002) SC698.

175.	The defence submits that whilst police are not required to conduct an identification parade if one is conducted it must be fair to the accused: State v Sela Gipe (2000) N2058, Injia J. A witness should not be told that the suspect is in the parade; they should merely be asked if they recognise anyone, and all those in the parade should bear similar characteristics: State v Thomas Some (1982) N366 Kidu CJ; The State v Among (2007) PGNC 11. I would add that there should be a contemporaneous record: State v Dotaona (2006) N4474.  

176.	In Mini v The State [1987] PNGLR 224 the Supreme Court upheld an appeal where the process of identification was unfair. The complainant was raped by two strangers after she got off a bus. She bit one of them on the fingers. She was unable to identify the appellant amongst others later the same day of the incident. At the station a few days later the complainant was prompted by police to make the identification. The accused was the only person seated amongst other officers and the officer asked her if he was the one who attacked her. The accused was wearing a bandage. In court she agreed that it was the bandage that led her to believe that he attacked her.    

177.	If fairly conducted, methods of identification other than a formal parade may be satisfactory. Photo boards or video identification parades should be considered when dealing with a complainant of alleged sexual violence, particularly a child, let alone one who is recuperating in a hospital bed.  

178.	I reject the accused’s evidence that SR and/or her father were present with VP when she identified him at the station. It is inconsistent with his record of interview. It was not the evidence of VP, TP or AP, whose evidence I accept. SR’s father agreed in cross-examination that he did not know the accused until he saw him at the station. It was not his evidence and nor was it put to him that he was present at VP’s identification. The effect of SR’s mother’s evidence is that VP’s family and perhaps VP were at the station on the same day but there was no suggestion that SR was present with VP when she identified the accused or vice versa. DSC Naima said that VP and her family were at the station on 11 October but she is mistaken. The family may have been but VP was not. DSC Naima was not in charge of VP’s matter. 

179.	On the evidence of TP, SC David and Insp Kakarere, VP was brought to the station from hospital at night on 10 October for identification purposes. Police took that drastic course because they believed it was necessary in order to detain the accused. That would not have been the case if SR had already identified the accused, which identification took place during daylight hours. 

180.	I find on the evidence that VP was brought to the station on the evening of 10 October 2018 and returned to the hospital the same night. SR was present during the day on 11 October 2018 when she also identified various crime scenes to C/Kobua according to his statement. VP did not return for that purpose until 15 October 2018 according to C/Kobua.

181.	Moreover, even assuming that they were both at the station on the same day I am satisfied that the two girls did not see or speak to one another. SR made no mention of it and it was not suggested to her otherwise. I accept VP’s evidence that she does not know whether SR was at the station or not and furthermore, that whilst she knows SR she does not know her parents and never spoke to SR’s father. 

182.	It is clear, however, that the State’s evidence about the identification process lacked detail. There was no proper record and there were inconsistencies between the police officers - who by their own admission had a poor recollection about certain details - and VP as to what was said to VP and whether anyone else was present with the accused at the time. VP’s mother’s evidence about the use of photographs is inconsistent with the other evidence and I don’t accept it. I accept the evidence of VP and her aunt, TP, as to what happened. That evidence is also the most favourable to the accused for the following reasons. 

183.	The perpetrator in this case was a stranger but the case is very different from Mini. VP had the opportunity to observe the driver, up close, over a period of hours, during the day. The identification at the station took place just two days after the alleged offences. In that sense the evidence might be regarded as good. But it was unfair for police in Insp Kakarere’s own words to tell VP that “there was someone at the station she needed to identify”, and then to take VP to a room within the station where it appears on the evidence of VP and her aunt that the accused was the only person present. I accept that VP spontaneously identified the vehicle at the station as matching the suspect vehicle but it was also inappropriate for police to have such a vehicle parked “right outside” the station prior to the identification process.   

184.	As for the dock identification the accused submits it was unfair because a screen was removed from in front of VP which had previously prevented the witness from seeing the accused in the dock. No objection was raised at any time to the use of the special measure, which was necessary, and was consented to, under the Evidence Act, s 37B(2)(a), or the process followed by the prosecutor, which was in accordance with historical practice. 

185.	The identification of an accused for the first time in the dock is undesirable for two reasons. The accused has been denied the opportunity of participating in an identification parade and the possibility of an inconclusive result, if it had materialised, could have been used to cast doubt on any subsequent identification. It is also possible that an accused by occupying the dock might be assumed by even a well-intentioned and honest witness to be the person who committed the offence with which he is charged: see Tido v Reg [2011] 2 Cr App R 23; Neilly v R [2012] UKPC 122. It is not the case that dock identification without prior out of court identification is inadmissible.  The essential point is that the trier of fact must be reminded that such an identification is undesirable for the reasons outlined and the evidence must be approached with great care: see also Holland v HM Advocate, The Times, June 1, 2005, Privy Council, discussed in Archbold, 2015, at [14-63], which whilst not binding is persuasive.  

186.	In this case it has been almost five years since the alleged offences. That of itself renders the value of any dock identification of limited weight.

187.	As to whether the in-court procedure followed was leading, I think that the likelihood that such a witness, in particular a child, would assume in the few moments after the screen is removed that the person sitting in the dock is the person accused of the crime is arguably much lower than that for a witness who gives evidence in the normal manner and observes the proceedings over a period of time.  

188.	It has been regarded as “legitimate and perhaps preferable” for the prosecution to have a witness identify whether they are able to see their assailant in court so as to give the witness the opportunity to swear on oath as to a previous identification and to give them an opportunity to change their mind about whether the accused was the person who committed the offence (see R v Doyle [2010] QCA 204 at [39] and The Queen v Savage [1994] QCA 20 per Pincus J, referred to in State v Robert (2022) N9395). But the prosecution is not required to conduct a dock identification, its weight may limited, and the process could be avoided where the prior identification material is cogent. 

189.	A number of things were apparent upon the removal of the screen in this case. VP immediately and emphatically identified the accused as her attacker. It appeared to me that she was not until that moment aware that the person accused of the crime was in the court room. Seeing the accused visibly distressed her and did so for some time after the screen was replaced. There was no real possibility that her identification of the accused in the dock was tainted by the unfair identification process at the station given the brief time she spent with the accused at that time.     

190.	In all the circumstances, however, the dock identification is not necessary to my decision. It is of limited weight for the reasons outlined but it does not raise any doubt about the identity of the accused albeit I remind myself that the accused has been denied the opportunity of a proper prior identification parade.  

COUNTS 1, 2 and 3 - SR

191.	The evidence of SR was clear and compelling. She was a very impressive witness who gave a detailed account of what happened in a manner that spoke to its truth and reliability. 

192.	There was a discrepancy between the evidence of the complainant and her father about what she had in her hands at the time he found her. SR said she had KMC and Fanta. She did not mention K20. I accept that SR was holding some form of take away plastic bag. The fact that her father thought it was a Big Rooster bag rather than KMC is hardly material to the matters in issue and points away from collusion in their evidence. I have also taken into account that SR did not mention in her evidence describing the vehicle stickers to her father but he was an impressive witness and I accept his evidence that she did. That she does not now recall doing so is not significant in all the circumstances and given the lapse of time. 

COUNT 1 – ABDUCTION - SR

193.	I am satisfied beyond reasonable doubt that a person took away a woman, SR, on 24 September 2018, against her will, with intent to carnally know her, contrary to s 350(1)(a), Criminal Code. 

194.	SR was a woman for the purposes of s 350(1)(a). She was taken away when the driver took her into his vehicle and drove away with her, including to Konedobu where he sexually penetrated her. 

195.	SR’s taking was against her will from the moment she entered the vehicle. Her consent was obtained by fraud. She was a child and she entered the vehicle on the basis that the driver was going to take her to her home because he knew her father. She would never have entered the vehicle if she had known that the driver intended to take her away somewhere else, let alone that he intended to take her away and carnally know her. She did not agree or consent to be taken in those circumstances. The driver well appreciated that fact as demonstrated by his use of the deception. 

196.	The person who took her away intended to carnally know her, which intent he gave effect to.  

COUNT 2 – DEPRIVATION OF LIBERTY – SR 

197.	I am satisfied beyond reasonable doubt that the same person unlawfully deprived SR, on 24 September 2018, of her personal liberty “by keeping her in [his] vehicle”, “at a location unfamiliar to her”, contrary to s 355(b), Criminal Code, as particularised.

198.	SR was deprived of her personal liberty the moment she entered the vehicle, even if she did not appreciate that fact. She was not free to leave the vehicle once it was moving nor when she was taken away to various locations which were unfamiliar to her such that she was not reasonably able as a 10 year old child to leave the vehicle and make her own way back to her home and the fraud continued to operate at those places in any event. She was certainly deprived of her liberty when she was directed by the driver to move to the back seat of the vehicle and then sexually penetrated by him. She remained deprived of her liberty until she was dropped off near her home at Erima. 

COUNT 3 – SEXUAL PENETRATION OF A CHILD - SR

199.	I am further satisfied beyond reasonable doubt that on that date the same person engaged in an act of sexual penetration with SR, a child under the age of 12 years, being 10 years old at that time, in that he introduced his penis into her vagina, contrary to s 229A(1)(2), Criminal Code. 

200.	  I accept SR’s evidence that the person penetrated her vagina with his penis, a fact which was corroborated by the evidence of Dr Monroe, and the observations of SR’s mother that she was bleeding heavily from her vagina immediately upon her return home. 

201.	There is no birth certificate but I find on the evidence of her mother that SR was born on 9 December 2007 and was therefore 10 years of age at the time of the alleged offence. This is consistent with the appearance of SR in the photographs taken at the time.

202.	There is a discrepancy between this and the indictment which alleges that SR was 9 years old at the time but it is only necessary for the State to establish that she was less than 16 years of age for the purpose of the offence under s 229A(1), and in particular that she was less than 12 years of age, for the purpose of aggravation under s 229A(2), and the State’s evidence establishes those matters beyond reasonable doubt. 

IDENTIFICATION - SR

203.	I am satisfied beyond reasonable doubt that the accused is guilty of the offences against SR on the basis of the similar fact evidence. The probative value of the evidence clearly outweighs its prejudicial effect.

204.	The accused drove a vehicle matching the description used in the offence and generally matches the description of the perpetrator. On their own those matters would be insufficient to establish the guilt of the accused. As above, however, I am satisfied beyond reasonable doubt that the accused committed the offences against EK and VP. The similarities between those acts and the acts committed against SR are so striking that they establish beyond reasonable doubt that the accused was the person responsible for the offences against SR. The similarities exclude the possibility of coincidence beyond reasonable doubt. 

205.	In other words, the combination of circumstances leads to the inevitable conclusion beyond reasonable doubt that the accused was the person who abducted, detained and sexually penetrated SR. The State’s evidence excludes beyond reasonable doubt any other reasonable conclusion that is inconsistent with the guilt of the accused.  

206.	Whilst not necessary to my decision, I note that the accused asked VP when he met her two weeks after the offences against “SR” if she knew “S” albeit that SR did not give evidence that she told the driver her name.   

207.	Again, it has not been necessary to place any weight on the prior identification evidence in reaching my conclusion. It lacked precision. There were minor discrepancies between SR, her parents and the police officer concerned but those matters spoke to their honesty rather than any collusion. I find that SR was asked by police to identify whether a person sitting alone in a small room was her assailant. She peeked in when the police opened the door. Her mother was with her at the time. Her father did not go into the room until after SR identified the person. Accepting SR’s evidence, it was unfair for police to tell her to “identify if this person was the one who did the things to her" and then take her to a small room where the accused was the only person present. Whilst I accept the evidence that SR identified the vehicle as she walked into the police station, it was unfair for it to be there when she was being taken in for the identification process. 

208.	As for the dock identification it appeared to me that SR was not aware that the person accused of the crime was in the room until the screen was removed. She immediately stood up and pointed confidently at the accused as her attacker. She was visibly shaken. There was no real risk that her identification of the accused in the dock was tainted by the unfair identification process at the station given the brief time she spent with the accused at that time. Nevertheless, the evidence was of limited weight. Whilst I appreciate that the accused was denied a proper identification process out of court the dock identification raises no doubt in my mind as to his identity in all the circumstances. 

SECTION 16, CRIMINAL CODE – SS 350(1)(a)(i) and 355(b), Criminal Code 

209.	Section 16, Criminal Code, provides that a person cannot be punished twice for the same act or omission. The test to be applied is whether the same wrongful act or omission which results in conviction and punishment on one offence is “the central theme, the focal point or the basic act or omission” of a second offence. In such a case the second count is treated as an alternative and the judge is to make findings on the second count but without proceeding to conviction such that the second count is effectively left alive so that in the event of a successful appeal against the more serious charge it is open to the Supreme Court to substitute a verdict on the lesser charge: Thomas v The State [1979] PNGLR 668; [1979] PNGLR 140. See State v Kande & Ors (2021) N9132 at [97] to [101]. 

210.	The central theme or basic act(s) of the abduction count under s 350(1)(a)(i) and the deprivation of liberty count under s 355(b) as particularised by the State with respect to each of the complainants is the same, namely the taking away and detention of the complainant in his vehicle. 

211.	In the circumstances, whilst I have found Counts 2, 5, and 9 established, I will not proceed to verdict on those counts. 

CONCLUSION

212.	On 24 September 2018 the accused abducted a 10-year-old girl, SR, as she walked home from Wardstrip Demonstration Primary School towards Erima. He took her away in his vehicle, a grey Toyota Harrier, with dark tinted windows, and sexually penetrated her in the backseat of his vehicle at a car park near the stadium in Konedobu. He came back two weeks later and abducted another young girl, VP, also 10 years old, as she walked home from the same school towards Erima. He took her away and sexually penetrated her at two different locations, the first of which was just a few car spaces away from where he had assaulted SR at Konedobu. The accused was apprehended on 10 October 2018 and charged with offences against both SR and VP before he was released on bail on 13 October 2018. Less than two weeks later, on 25 October 2018, the accused set out again. He removed the Big Rooster sticker from the rear of his vehicle and went to 6 Mile where he abducted another young girl. She realised that she was in danger and took desperate measures to stop the vehicle and get away. She grabbed the steering wheel and the vehicle ran into a drain on the side of the road, resulting in the accused’s apprehension. 

213.	In summary, the accused is found guilty of: 

a.	Counts 1 and 3, abduction, and sexual penetration of a child under the age of 12 years, namely SR, then 10 years old, on 24 September 2018, contrary to ss 350(1)(a)(i) and 229A(1)(2) of the Criminal Code, respectively;
b.	Counts 4, 6, and 7, abduction, and two counts of sexual penetration of a child under the age of 12 years, namely VP, then 10 years old, on 8 October 2018, contrary to ss 350(1)(a)(i) and 229A(1)(2) of the Criminal Code, respectively; and
c.	Count 8, abduction of EK, on 25 October 2018, contrary to s 350(1)(a)(i) of the Criminal Code.

Verdicts accordingly

_______________________________________________________________
Lawyer for the State:	Public Prosecutor
Lawyer for the accused: 	Public Solicitor