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Trust Territory v Ngirmang [1972] TTLawRp 44; 6 TTR 117 (7 November 1972)

6 TTR 117

TRIAL DIVISION OF THE HIGH COURT

PALAU DISTRICT

Criminal Case No. 390

TRUST TERRITORY OF THE PACIFIC ISLANDS

v.

TRUMAN NGIRMANG AND ABRAHAM OBAK

November 7, 1972

Prosecution for kidnapping and rape. The Trial Division of the High Court, D. Kelly Turner, Associate Justice, found alibi offered as only defense to be insufficient to adequately challenge evidence of guilt beyond a reasonable doubt where defendants did not offer corroborating testimony regarding their presence, for a crucial period of at least an hour, at club they claimed to have been at.

1. Criminal Law-Evidence--Hearsay Exceptions

In prosecution for kidnapping and rape, conversations between perpetrators of the crimes, overheard by raped girl and overheard the morning after the offense occurred by girl who lived at house where perpetrators assembled and discussed what had happened, admonished each other not to talk about the events and voiced their concern over being discovered together by police a few hours after the offense, at which time one of them had been arrested, were properly admitted in evidence under exceptions to the hearsay rule relating to conspirators. (Rules of Evidence, Rule 63)

2. Criminal Law-Evidence-Acts and Statements of Conspirators

When several persons conspire to commit a crime, the acts and declarations of any of them during and in furtherance of the conspiracy are admissible as substantive evidence against any conspirator.

3. Criminal Law-Evidence-Acts and Statements of Conspirators

Conspirator's statements are admissible even though the charge and trial are not for conspiracy.

4. Criminal Law-Evidence-Decedents' Acts and Statements

That some of the statements of conspirators testified to in prosecution for kidnapping and rape were made by an accused who took his life before trial did not preclude admissibility of the statements.

5. Criminal Law-Principal and Accessory

In prosecution for kidnap ping and rape of girl by four men, defense argument that victim's testimony did not conclusively show she was raped by all four men was precluded by statute removing distinction between principals and accessories before the fact. (11 T.T.C. § 2)

6. Criminal Law-Burden of Proof-Alibi

The burden of proving an alibi is on the one asserting it.

7. Criminal Law-Alibi-Proof

An alibi need not be proven by either a preponderance of the evidence or beyond a reasonable doubt.

8. Criminal Law-Alibi-Weight and Sufficiency

In prosecution for kidnapping and rape, alibi offered as only defense raised no doubt as to guilt and was inadequate where girl was abducted in the early evening, dropped off" near her home between 11 p.m. and midnight, and there was a minimum period of 9 30 p.m. to 10 30 p.m. for which there was no corroborating testimony that defendants were at club they claimed to have been at from 9 00 p.m. to midnight.

TURNER, Associate Justice

This case arose with four young men being charged with kidnapping and raping a 17-year-old girl on Koror and Malakal Islands. Preliminary hearings were held in the District Court and one of the four was discharged when he established an alibi to the satisfaction of the Court. Of the three bound over for trial, one took his own life a few months before trial. Trial therefore was had upon the charges against two of the original four.

The State proved the kidnap-rape without challenge. The sole question of fact was the identity of the accused. They both resisted prosecution evidence as to their participation with an alibi defense.

There was conflicting testimony at trial from both prosecution and defense witnesses as well as contradictory statements to police and others within a relatively short time after the offense had been committed. The admissibility of these out-of-court declarations raises the question of law involved in this case.