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National Court of Papua New Guinea |
Unreported National Court Decisions
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
CR 571 OF 1995
THE STATE
v
ALLAN URU
Waigani
Passingan AJ
1-3 October 1996
7 October 1996
10 October 1996
CRIMINAL LAW - Alibi defence raised - failure to give notice - Criminal Practice rules - Defence not put to State witnesses - Alibi uncorroborated.
Cases Cited:
The State v Wer [1988-89] PNGLR 447
John Jaminan v The State [1983] PNGLR 318
James Mora Mesa v The State (unreported) SCRA No. 42 of 1995
Trial
The accused pleaded not guilty to an indictment which charges him with two counts of unlawful and indecent assault committed on or about the 23rd of September 1994 and on the 18th of March 1995. so pleaded not guilty to o to one count of unlawful carnal knowledge of a girl under the age of sixteen years.
Counsel
D Mark for the State
R Vaea for the accused
JUDGMENDGMENT
10 October 1996
PASSINGAN AJ: The accused pleaded not guilty to count one which charges him that on or about the 23rd of September, 1994 he unlawfully and indecently assaulted Lettie Rabona. He also pleaded not guio t to the second count of unlawful carnal knowledge and the alternative count of unlawful and indecent assault of the same girl on the 18th of March, 1995.e girl was 12 years 8 months at the time of those offences.nces.
THE OFFENCE
It is alleged by the State that on the 22nd of September, 1994 the family -the victim, her mother, two other children and the accused (her step-father) had spent a night at the Budget Inn at 6 Mile in Port Moresby. The viused the bed whilst ilst her mother, the two children and the accused slept on the floor. Durin night the accused waed walked over to the victim’s bed and laid on the bed beside he60; It is alleged that whil whilst in bed with her the accused pushed his fingers into her private part. And that he forced the victim to hold his private part as well. It is further alleged that on the 18th day of March, 1995 the victim and her two younisters, and the accused were in their house at Gabagaba Village, Central province. Th0; That whilst e house tuse the accused foher onto the bed and had caad carnal knowledge of the victim. And abwo weeks later that that month the accused called the victio the room to scratch his back. It ieged that that the acce accused forced the victim to hold his pe part when they caug caught by her mother.
THE EVIDENCE
The main evidence consists of the sworn testimony of the girl Rabona and her r. Their evidence is that the accused had asked them them to come to Town to do some shopping. The accused was working here in the city and the mother and children were living at Gabagaba Village. The victim, her mother ae the two smaller children dropped off at the Erima Supermarket to do shopping. It was late toa vehicle tole tole to travel home. At the accused suggestion he booked them into the Budget Inn for the nigh night. The vislept on the only bely bed in the room while the mothee accand the two smallsmall children all slept on the floor. They were aled Room R R “16 B” at the Budget Inn.
he victim’s evidence ence is that sometime during the night the accused went over to her bed and asked to share the bedsheet wir. Whilst they were cere covered with the bedsheet the accused pulled her trousers down and also removed his trousers. He thened his fingers into into her private part and forced her to also hold his private part. She feln and cried and herd her mowoke up and walked over to the bed. she removed the bedsheet seet she saw them. #160; The motherRevidencidence corroborthe victims evidence. She was an eye witno that that that incident.The victim’s evidence in relation to the second andd count. On the 18th of March 1995 she was at Gabagabbagaba Village with the family. The accused wall in bed abed about 7:00 am. He called her to scratch his back but instead forced her to hold his private part. Her mother entand saw them them. Sh an argumeth the accusedcused and then left the house.  Then after luhe victim putm put her little brother to sleep. lso wo sleep.&#Then she fehe felt someone beside her.&her. She attempted to gewhen shen shen she was forced down by the accused.e accthen had carnal knal knowledge of her. The accused had told her not to tell her mothemother. After ays the accused lhe lhe village to come to work.work. She then her mother about bout the first incident that morning. She alsd the villagncillbaillbaha Gari about eout everything the accused did to her.. The mother&#s evidence is e is that she woke up early on the 18th of Ma1995. As she was walking out she looked into the bedr bedroom and saw the victim holding onto the accused’s private part.; She walked into the room room to make enquires. The victim ran outshe argu argued with the accused. The victim later told her about the incident of carnal knowledge about lunch time on the 18th of March 1995.
The third witness was Obaha Gari, a ge color. He wase was on the Kwikila High School Board of management. He recalled beed being asked by the victim’s mother in about April, 1995 to speak to the victim. He arranged to speak r ther the following day.
As a result of his discussith the victim he referred the mother to the Welfare Departepartment. Finally in the State case a Record of Interview which cond denials (Exhibit “A220;A”) and a Medical Report (Exhibit “B”) were tendered by consent.
The Defence nce consisted of the sworn testimony of the accused. 160; He dethe incident on t on the 22nd of September 1994 at the Budget Inn. On the 22nd of September, 1994 he was working, and got on a 15 seater bus at 4 Mile. He was fifteen other paerspaers. His nce is e is that FloreFlorence was not living with him as they have been separated for six months.
The accused denie inciof the 18th of March, 1995. He no reas reason why the the victim would accuse him.&#im. That nce had told lies abos about him because she wants to return to him. On that day he was in his house. He was then living with Florence and the children.&#After lunch he was building his house.
The next defe defence witness was Kinibo Vagi. She washe village (Gabagabbagaba) hole day on the 22nd of Sepf September, 1994. She is unable to recaling eing or talking to Florence that day. The third ws was Dais.. On the 18th of March, 19e she went went to the accused’s house to ask for a game’s fee. Thesed ger K5.00.& T60; Th0; The rest of the family were in the house and the victim asked to follofollow her to the games. They returned toaccus217;s217;s house between 4.00 pm and 5.00 pm. They got permissi attend aend a fu a function. Athe function Dais her litr little brother brought the victim to her house about 1:00 am.
THE ISSUESS
The first issue as raised in viden one of alibi.i. The accused7;s evidence isce is t is that he was at work on the 22nd day of September, 1994. After work he to the 4 Mil4 Mile Bus stop where he got on a 15 seater PMV bus with 15 other villagers. He weraight home to Gabagaabagab60; This evidence is completely opposed to the evidence of the girl and her mother. T60; The defencenot servederved a notice ofi in accordance with the Criminal Practice Rules 1987, 04, 04, r 4, on the State. In my view the eve as give given by the accumounted to an alibi within the meaning of O 4 r 8 which, inh, in part reads:
“evidence of alibi means evidence tending tw that by reason of the presence of the accused person at a at a particular place or in a particular area at a particular time he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission.”
The accused is entitled to a fair hearing under s 37 (3) of the Constitution. And under s 37 (4)he has thas the right to give evidence himself and call witnesses. The accused exercised those rights in this case. n is evidee raised the defe defence of alibi which he had failed to give notice of. A60; And secondly, thfencefence was never p the and her mother.
I consider the following ping passage in the judgment of Brunton AJ n AJ in the case of The State v Wer [1988-NGLR 447 at p 447 relevant:
“But against the rthe rights of the accused, there are the Criminal Practice Rules 1987. They make it very clear that when a accused person relies on a defence by alibi, then proper notice must be given. That is tw. Order 4,er 4, rule 4 and rule 5. These rules ensure that the State is not caught by surprise, and that the publicrest in seeing a criminal case fairly and properly prosecuted, does not suffer.
On t>On the one hand, there are the interests of inuals, the interest of the athe accused, the right to a fair trial, and the right to have one’s day in Court. On the other, there is thes the public interest in the lawful and proper prosecution of offenders. Further,public have an intn interesthe economic and efficient operation of the criminal justice system, and the courts.”8221;
In the case of John Jaminan vState (No.2) [1983] PNGLR 318, the Supreme Court discussed ssed the application of the defence of alibi. Briefly, that was an a agal against conviction and sentence. The Appellant was convicn d on four charges of rape and was sentenced 4 years imprint on each charge concurrently. The lant raised the defencefence of alibi at his tria trial. He maied that he was nosennosent in the room at the time time but was somewhere else. He said he arriack at the the Motel quite late at about 9:00 pm and he weraight to the bar and was drinking until it closed. H60; He was withkai Kup.&#up. When the bar clos and Akai Akai Kup wenhis room, room 2 and as he s he opened the door two girls walked out and disappeared and he neve saw them against. The trial juejecte apptnt’#8217;s account, and the purported alibi aibi and accepted the prosecution’s case and convicted him as charged0; This outline is taken from His Honour Mr Justice Amet’s judgment (as he then was) was) at page 335 of the report.
There is one further aspect of the defence case which I think should be considered also. In hidence in chief the fohe following questions and answers are recorded:
“Q: &##160;you tell tell her toer to do shopping?
A. ; &##160;/po.
Q.
Q. #160; <; h0; Wware was your wife?wife?
A. ټ&#We weparated for six months. She was not living we.
.Q. < ##160& Sug; Suggest, est, you told them to book in at the Budnn?A.&##160;; No.
Q.&p>Q. #160; Who wah wwas you when you you left 4 Mile?A. ҈& , passenge15 ef them.”
Defence evidence appears to suggestggest that that the the accusaccused was not with the family on the night of the 22nd of Septemb994 a Budget Inn because they have been separated for for six msix months. I do not accept this evi bnce because about four to five months later when the second offence was committed (18th March, 1995) the accused said he was still living with his wife Florenhe victim and the other children.
On the evidence bece before me I accept the evidence of the victim and her mother as the truth. Their evidence were coent tent as to the events on the 22nd/23rd September, 1994. I a the mother’s reas reasons for not reporting the accused that day. It was because the acchad had promised never to do it again. But would tree victim a owis own child. But when the ad failefailefailed to keep his promised four to five months later (18th March, 1995) ttter to light.
>
In my judgement I find the alibi evidence to be false and in the circ circumstances, further corroborates the victim’s evidence. Furthernd that in light ofht of the failure to put the defence of alibi in cross-examination of the mother and her daughter, the failure to give notice of alibi according to the rules of practice and the false claim that the accused and Florence were separated I give no weight to the purported alibi raised by the accused.
I therefore reject the accused’s evidence and the purported alibi. I accept the Stateence in e in relation to counts 1 and 3 and convict him of those two offences. In relation to c2 I am notm not so satisfied that the incident of unlawful carnal knowledge took place at alunch time on the 18th of M of March, 1995.
On the evidence the mother was the eye witness to the incident of unlawful and indecent assault charged in count 3. She became angry and left the house and returned at night. It if the accused would hald have taken the risk. There was eversibility thay that the mother would return to the house. In theumstances I t satd batd beyond reasonabsonable doubt that the accused unlawfully ully had carnal knowledge of the victim on the 18th of March, 1995, and acquit f Count 2.
VERDICTS
Count 1   ټ&##10; < Guilty.
Count 3unt 3 ټ&##160;< < Guilty.
>Thet hasictedon two counts of unof unlawfully and indecently dealing with with a gira girl undl under ther the agee age of 16 years contrary to s 217(2) of the Criminde.&#The girl was over over 12 y 12 years old at the time and, therefore, the maximum penalty is imprisonment for a term not exceeding two years. If she was under t years tars the maximum penalty would be imprisonment for a term not exceeding five years.
It is not in dispute that you married Florence, the victim’s mother in 1990. The girl whave been about bout nine years old then. It is common sense then yoen you decided to marry the mother you accepted the child also, as your own. You the childshe grew up i up in your care and also the care oare of her grandparents. It is also common senat a at a child would normaccept the love and care of the father. She trusted you as a father, but you have fail failed her. Yd not respect herer who wwho was your wife. You treated this chs a sexa sexa sex object.
In the recent Supreme Court decision in James Mora MeThe S(unreported) SCRA SCRA No 42 of 1995, the Court said that bhat breach of a position of trust warrants a heavier sentence in a rape case. Yours is also a case of a sexual nature and in my view the same trust will be expected from you.
On sentence I take the following matters into account:
(a) ـ your la k of prior rior convictions;
(b)  d emoloyment record derd despite your limited education. A custodial sentence ffectffect you for the first
)ټ   have spen month in cuin custody.In all the circumstaumstances nces of yoof your caur case I consider a sentence of six (6) m imprent ariate.&ate. You are sentence tomonths nths imprisonment in hard labour.
.<
ORDER
I order that the whole of your sentence be suspended on the following conditions:
(a) hat you be of good behavbehaviour for a period of 18 months;
(b) &ـ That yoat you pay pay compensation to the girl Lettie Rabona in theof K100 wieights.
Lawyer for the Stat State: Pue: Public blic ProseProsecutor
Lawyer for the Accused: Public Solicitor
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