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State v Peter (No 1) [2001] PGNC 9; N2296 (12 October 2001)

N2296

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1446 of 1998

THE STATE

-V-

EDDIE PETER (No. 1)

ALOTAU: KANDAKASI, J.
2001: 9th, 10th and 12th October

CRIMINAL LAW – Particular offence – Rape – Identification only issue for trial – Identification by recognizance of voice and items worn by accused at time of offence – Need to warn dangers of mistaken identification – Defence of alibi raised in evidence without giving required notice and any supporting evidence – Guilty verdict returned – Criminal Code s. 347.

EVIDENCE – Assessment of – Matter of logic and common sense – Evidence or claims inconsistent with logic and common sense not credible – Inconsistencies in accused oral evidence and record of interview and inconsistencies in the record of interview itself – Only inference open accused evidence incredible and unreliable.

Cases cited:

John Beng v. The State [1977] PNGLR 115.

David Kandakason v. The State (1998) SC558.

The State v. Raphael Kimba Aki (unreported judgement delivered 26/01/01) N2039.

Counsel:

K. Popeu for the State
D. Kari for the Accused

10th October, 2001

DECISION ON VERDICT

KANDAKASI, J: Yesterday the accused pleaded not guilty to one count of rape contrary to section 347 of the Criminal Code ("the Code") allegedly committed on the 26th of August 1998, at Naura not far from here. That necessitated a trial resulting in the State calling three witnesses and admitting into evidence with the consent of the accused a number of documentary evidence.

The Evidence

The first witness for the state was the victim, whose name I will not state for her protection. She was at the time of the alleged offence attending primary school and she is now doing grade 9. She was on her way to school around 7:00 am when she saw a masked man. Upon seeing the masked man, she turned and started running back. The masked man chased her until she ran out of breath and fell down on both her knees faced down crying. The masked man came from behind her and placed a grass knife on her neck and held her by her hands and lifted her up. He then took her toward the side of a river where it was bushy. She was still crying at that stage.

The masked man caused her to lie down on an old rotten log. He then demanded her to pull her skirt and pants down but she refused and the man removed them himself. He then opened both of her legs and proceeded to have sexual intercourse with her against her will. She felt a lot of pain in the process and she continued to cry in pain. He threatened her with the grass knife and ordered her not to cry. After having had forceful sexual intercourse with the victim, the masked man told her to go to the Naura Hospital and get medical treatment and he escaped.

The masked man was covered from the head down through his face terminating just below the chin with his beard sticking out. However, judging from his voice and the features of the man the victim recognised her assailant to be the accused. They are related by marriage. The assailant is married to an aunt of the victim and she calls him her uncle. They live in the same area, next door to each other. She was able to tell the colour and type of clothes her assailant wore at the time of her attack as a green, black and white stripe shirt or top and a long trouser.

After the ordeal the victim went straight to the accused house to confirm that it was the accused that raped her. When she got there, she asked if the accused was home and his father told her, he was not home. She then waited outside in between her house and that of the accused, all this time the victim was crying. Some 30 minutes later, the accused turned up through a coconut plantation. The accused appeared not to have seen the victim but the victim saw him going into his house. Not long after, the victim’s elder sister, the State’s second witness, returned from the garden and the victim reported the matter to her. At that time she was still crying.

After she had reported the rape on her to her elder sister, the victim and her sister went and reported the matter to a local or community leader. She was then taken to the Naura Hospital and from there to the Alotau Hospital for appropriate medical attention. The matter was reported to the Police on the same day at about the same time.

Earlier on a few months back, the victim says the accused also tried to force her to have sex with her but she cried and refused and he allowed her to go on that occasion.

The second witness corroborates the victim’s evidence especially on the possible timing of the rape, the victim reporting it to her and the victim receiving medical treatment as well has reporting the matter to authorities, including the police. She also confirms the victim on her evidence that the accused and them are related through marriage and live next door to each other. The statement of Sergeant Beniam Eli dated 29th August 1998 (Exhibit "B" admitted with the consent of the accused) also corroborates her.

Sergeant Eli confirms police receiving report of the rape on the victim, attending on the victim and the accused before arresting the accused and charging him. He took the clothing worn by both the victim and the accused that day. Some of these items are in evidence as exhibits. Before producing them in court as exhibits, they were sent to Port Moresby for forensic examination and testing. Sergeant Major Euga (3rd State witness) confirms having received the cloths and conducting the necessary scientific examination and tests and provided a report dated 22nd October 1998, which is exhibit "A", also admitted into evidence with the consent of the accused. Sergeant Major Euga in her oral testimony and report confirms having found deposits of blood and seminal stains on the cloths allegedly coming from both the victim and the accused.

Alotau Hospital examined the victim and treated her. Two reports from that Hospital dated 27th and 31st August 1998 (exhibits "C1" and C2") were also admitted into evidence by consent. These reports confirm the victim sustained injuries to both her knees and was in a general state of shock. They also confirm having found "spermatozoa [sperm cells] supportive of the allegation of rape." This evidence also corroborates Sergeant Major Euga’s report and testimony and the other evidence against the accused.

The accused took the stand and gave a brief testimony without corroboration in any respect. He said the alleged rape took place on the 23rd of August 1998. On that date, he says he was sick and he stayed home especially the morning part. On the 26th of August 1998, he says he was in the police cells after having being arrested. He also denies having any knowledge of the victim and her witness, Daisy Victor. He says nothing about his earlier attempt at having sexual intercourse with the victim. His evidence runs in direct conflict in most respects with his answers to questions put to him in his record of interview.

The most notable ones are answers to questions 24 as to his whereabouts on the 26th of August 1998 and questions 35 to 68. They cover as to the weapons he had with him that day and the clothes he wore, his relationship and knowledge of the victim and the State’s second witness and his reaction to news of the victim being raped that day.

The Law on Identity

This was a trial mainly on the issue of identity. All the other essential elements of the offence, including the need for corroboration in offences such as the present are not in issue. Mr. Kari of Counsel for the accused referred me to the case of John Beng v. The State [1977] PNGLR 115, for the relevant principles on the issue of identification and argued that his client was not identified as the perpetrator beyond any reasonable doubt. Therefore, I should dismiss the charge against his client. He submitted that, that was because a person who was masked and not identified as his client or the accused committed the alleged offence.

Relying on the same case, Mr. Popeu of Counsel for the State argues that the evidence produced by the State proves beyond any reasonable doubt the identity of the accused and his commission of the offence as alleged. He must therefore be found guilty as charged.

I asked Mr. Kari as to what his client’s submission was in relation to the obvious inconsistencies between his client’s record of interview and his brief oral sworn testimony and the evidence in the record of interview itself. He submitted the inconsistencies are there and left it to the Court to draw whatever inferences it can draw from them.

The case cited, was a decision of the Supreme Court and it sets out the principles and or factors a court must take into account on the issue of identity before reaching a verdict. In that case, the issue before the trial judge and before the Supreme Court on appeal was also one of identity. The Court at page 122-123 said these:

"It has long been recognized that there are dangers inherent in eye-witness identification evidence. The Court was referred to a number of authorities, the latest of them being a decision of the House of Lords in Raymond Turnbull & Ors... In that case guidelines were laid down as to the manner in which identification evidence should be treated. The following points (as set out in the headnote to the report) were made:

‘Whenever the case against an accused person depends wholly or substantially on the correctness of one or more identifications of the accused which the defence allege to be mistaken, the trial judge should warn the jury of the special need for caution before convicting in reliance on the correctness of the identification. He should make some reference to the possibility that a mistaken witness could be a convincing one and that a number of such witnesses could all be mistaken. Provided such a warning is given, no particular form of words need be used.

Further, the trial judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made ...

Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made. All these matters go to the quality of the identification evidence. When the quality is good, the jury can be safely left to assess the value of the identifying evidence even though there is no other evidence to support: Provided always, however, that an adequate warning has been given about the special need for caution.

When the quality of the identifying evidence is poor — i.e. a fleeting glance or a longer observation made in difficult conditions — the judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence, which goes to support the correctness of the identification."

(Emphasis added)

These principles have been consistently recognised as correct and have been applied in many cases since the decision was published. A recent example of that is David Kandakason v. The State (1998) SC558, a decision of the Supreme Court and more recently my own decision in The State v. Raphael Kimba Aki (unreported judgement 26/01/01) N2039.

Present case

The issue in this case is whether there is sufficient evidence connecting the accused to the alleged rape of the victim? In line with the principles stated above, I proceed to consider the issue presented with a warning that there might be mistakes in the identification of the accused as the offender, given that the offender was masked moments before, during and after the commission of the offence. A closure and total examination of the available evidence will help determine the issue presented. This will also depend on which of the witnesses and their story the Court finds credible with the use of a logical and common sense approach: see The State v. Saikoro Norman [1979] PNGLR 599.

The victim testified under oath that she knows the accused well. They live in the same area and next door to each other. They are related through marriage. The accused is married to an aunt of the victim. The victim took the accused to be an uncle through that relationship. The second witness supports her on this. Even the accused in his answer to question 65 in his record of interview confirms that the victim and he are related. In his own words he says, "I call them [inclusive of the victim] my sisters..." Based on this relationship and the contacts that go with it, the victim said she was able to tell by the voice and the features of her assailant that the offender was the accused. She then went to the accused house to confirm that it was him who raped her. She found out that he was not home. So she waited for him and he turned up some 30 minutes later. She identified him having worn a pair of boots and a green shirt with black and white stripes. Police took from the accused a pair of blue jeans, a green jumper with black and white stripes, a pair of boots and black socks with red stripes with PNG written on it, which he wore that day. They are exhibits "H", "I" and "J", excluding the boots. Sergeant Major Euga found traces of human sperm and blood on the pair of blue jeans worn by and taken from the accused on the 26th August 1998. Similar traces of blood and sperm were found on the floral skirt and panties, which were worn and came from the victim on the day of the offence. Medical evidence confirms having found similar evidence on the victim. The accused did not refute the evidence of the pair of jeans and the other items coming from him and offered no explanation as to where the sperm and blood stains came from. In his record of interview (exhibit "C") he speaks of the blood coming from his son but says nothing about the sperm stains.

In addition to the above, there is serious inconsistencies between the evidence the accused gave in Court and the evidence he gave to police per the record of interview. First, is his total denial of having any knowledge of the victim and the second State witness. Next, he claims the rape of the victim was on the 23rd of August 1998 despite the overwhelming evidence that it was on the 26th August 1998. Then even in the record of interview, the accused also gave a statement in answer to questions 54, 55, 56 and 58 which record his reaction on learning of the victim being raped. Despite the relationship he states in answer to question 65 (sister) he simply did or said nothing about it and then went to sleep after just returning from his garden about 7:00 am and learning of the rape of the victim shortly thereafter.

Taking a logical and common sense approach, I find that the accused’s conduct consistent with a guilty man than one who is not. If indeed he was not the rapist, he could have reacted in a way that was reflective of his relationship with the victim. He could have asked who was the offender and if there was anything he could do to avenge if not bring the offender to justice. Then it is hard to believe and accept that he would have gone to sleep after having just returned from the garden and when it was only the early part of the morning. I find his conduct logically and according to the dictates of common sense more consistent with one having committed the crime. His failure to say anything about the rape and going to sleep almost straight after the incident is reflective of one having committed the offence in the way described by the victim and wanting some rest to regain strength. The suggestion that the accused was the offender is also confirmed by the blue jeans taken from him and was found to have some human blood and sperm stains. The existence and taking of the boots and green jumper with black and white stripes from the accused further confirm his involvement.

Furthermore, though he did not formally raise it in his defence, he claimed an alibi in his evidence. Even then, he called no evidence to support him.

Given the inconsistencies in his oral evidence and his record of interview as well as the inconsistencies in the record of interview itself, I do not find the accused to be a credible witness. Instead, I find him to be an unreliable witness, which is also based on his demeanour in Court. On the other hand, I find nothing to disbelieve the victim and her witness or the witnesses called by the State. I find their evidence in general agreement with logic and common sense. Their credibility was not seriously questioned and destroyed in any way by any degree of cross-examination, not even on the only issue for trial. I accept the State or the prosecution’s evidence as outlined above.

Having regard to all of these factors, I find there is only one conclusion or inference to be drawn beyond any reasonable doubt. The inference or conclusion based on all of the above factors is that the accused is the offender as alleged. As there is no issue on the other elements such as lack of consent, penetration and the need for caution in sex offences such as the present, I find the accused guilty of having committed the act of rape upon the victim as charged. A verdict of guilty is therefore returned on the indictment against the accused and the accused is convicted on the one count of rape under s.347 of the Criminal Code.
_________________________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyer for the Accused: The Public Solicitor