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State v Robert [2019] PGNC 282; N8001 (2 September 2019)

N8001

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 547 of 2017

THE STATE

V

DONALD ROBERT

Kokopo: Susame AJ
2019: 12, 13, 14, 27 August & 2 September

CRIMINAL LAW – Offences - Arm Robbery and Sexual Penetration –s 386 & 347 of the Criminal Code – Whether accused participated in committing the Offences- Evidence in Sexual Offences - Corroboration not required- ss229H & 352A Considered – Court may convict on uncorroborated testimony of a single witness if evidence is convincing and credible.

Cases cited:

Nil

Counsel:

Mr. Tugah, for the State
Ms. Pulapula, for the Accused

D E C I S I O N

2^nd September, 2019

1. SUSAME AJ: Accused was charged with one count of armed robbery and one count of sexual penetration without consent under sections 386(1)(2)(a)(b) and 347(1)(2) of the Criminal Code.

Facts

2. The alleged offences were committed on the night of 23 January 2017 between 10 o’clock and 11.00 o’clock. Zita Langu and her colleague Nelly Giupagerea were walking home at Arabam village along a bush track. They were returning after attending a school meeting at Warangoi Primary School. On the way they met the accused with his other two accomplices who enquired where they were going. Zita and her colleague told them they were heading for Arabam Village. The accused and his two friends went on ahead while Zita and her colleague waited for students to bring them torches.

3. After they got the torch they continued to Arabam. Along the way a guy jumped out of the bushes. Zita flashed the torch and identified the guy as Max. Max flashed his torch at Zita and blinded her. Max knocked the torch off her. He held Zita’s mouth and with his other hand he held the knife against her neck. Ian Tien removed her bilum with her personal properties of an estimated value of K500.00. Max wrestled Zita to the ground and both were struggling. Accused assisted him and both sexually penetrated her.

Evidence

4. For the State evidence came from two witnesses, Zita Langu and Nelly Giupagarea. State also relied on documentary evidence including record of interview tendered by consent. For the defence evidence came from accused oral testimony and his father Robert Bafi.

Established Facts

5. From their evidence these facts are well established. Zita and Nelly had been to Warangoi Primary School and were returning to Arabam where they live. Late in the afternoon they got on a PMV and were dropped off at Yulugi Junction between 6pm and 8pm. There they walked to the Catholic Church at Dadul. Both had a short rest. Zita rested by the road side while Nelly went and drank water at the Church few meters away. Zita lost her bilum with all its contents and plastic bag of food of an estimated value of K500.00 when she was held up along the way to Arabam.

Issue

6. Whether accused was an active participant in committing the crimes?

Competing version of facts

7. Zita and Nelly gave evidence the three boys Ian, Max and accused approached Nelly where she was drink water. Ian was talked with Nelly and enquired if they were going to Arabam. The three boys walked passed them and went ahead and went and stood around the area where the store was.

8. After borrowing a torch from a student the girls continued their trip to Arabam. They passed the three boys standing around the store area. They reached the river and crossed it. On the other side as they were walking up they heard stones being thrown and landing in the river behind them. As they were walking along right at the junction of a short cut track the boys jumped out of the bushes. Zita flashed the torch and saw Max was the first person. He covered his face with a red shirt. Behind Max were the other two boys he recognised the two as the same boys they had seen earlier on.

9. Max went straight at her and knocked the torch out of her hand. He placed his right hand over his mouth. He placed a bush knife which he was holding in his left and against her neck. The accused ran after Nelly who ran back the way they had followed. Ian came and stood at the Zita’s back and removed the bilum with all her personal items inside.

10. Max trapped Zita’s legs and she fell down on the grass. She called out for help but no one came to her rescue. They were both struggling until accused returned and said she had escaped. Accused came and sat on her knees and assisted Max. Accused was the first to sexually penetrate her after he managed to remove her pantie followed by Max. Ian just stood by and watched.

11. After that the three of them left. Nelly fled and hid in the bushes by the road side and heard the boys talking as they were walking past. Zita got up and ran to the school and fainted. When she regained consciousness she told the others who were present about what had happened. A village search party went out and found Nelly and rescued her. Then on 24 January 2017 Zita went to Warangoi for medical check-up.

12. Accused gave evidence he was never with the other two boys at the church area where Nelly drank water. He left the house to buy torch batteries from the store. At Dadul/Arabam junction he met Ian and Max and joined them. The two boys told him to follow them to hunt for flying foxes near the river. He told the boys he will go to the store and buy torch batteries.

13. They walked up the road and he left the two boys on the road and went to the store and bought the batteries. He returned to them and they followed the road to the river to hunt flying foxes. He said they never met the Zita and Nelly on the road.

14. Down at the river they collected stones to hunt flying foxes. They saw torch lights and saw the two women approaching the river. Max told him and Ian to hide and let the two women to walk pass. So they hide and saw the two women cross the river and walk up the mountain. They followed them until they reached the spot where they were to hunt flying foxes. There Ian and Max told him of their plan to hold up the two ladies. Accused said he argued with them when they told him of their intention. The two of them went after the two ladies. He never followed them and walked back home. Accused denied robbing the two ladies and sexually penetrating Zita.

15. Whose evidence is more credible to be believed? While posing this question I am of course reminded of the State’s responsibility imposed by law to proving guilt; that is prove beyond reasonable doubt which is an onerous one. There is no obligation on an accused person to proving his innocence.

Identification & Participation

16. Much of the arguments from the defence centred on evidence of identification. That accused was elsewhere when the alleged offences were committed.

17. In my view there is no issue on identification. The issue is really on whether the accused participated in committing the alleged crimes.

18. These are my reasons. First of all, accused had denied being in company of the Max and Ian where Nelly drank water. He denied seeing the two girls at any time during the night. He said he came to the store and saw Max and Ian there and told stories with them.

19. I do not accept that evidence as credible. Three of them were together that evening. They had approached Nelly where she was drinking water at the church area and Ian talked to her. Nelly and Zita had both given evidence confirming that. Ian enquired if they were going to Arabam, Nelly told them they were going there. Further proof of that is accused admissions to questions 24, 26, 27, 29 and 30 in the record of interview.

20. The three boys left them and walked on ahead. They stopped around the store area and the girls walked passed. They had not gone to the river to shoot flying foxes. They had followed the girls with the plan to hold them up.

21. Secondly, accused said in evidence when he was told of their plan to hold up the girls he got cross at his two accomplishes at the river and walked back home. However, to questions 29 and 30 of record of interview when suggestions were put to him accused said it was Max who jumped out from the hiding and held up Zita. When Max did that he departed leaving Max and Ian. That explanation places him at the crime scene.

22. From the above evidence I find that accused never turned back for home at the river or at the crime scene. This was just a mere denial in an attempt to disassociate himself from his two friends. Accused was at all times with Max and Ian up to where the girls were held up. All three of them hid in the bush where the track exits into the main road and waited for the girls.

23. When the girls reached the spot Max jumped out first from the bush. Zita flashed her torch and saw him. She saw two other boys coming out behind him. Accused went after Nelly who was fleeing. Max held onto Zita while Ian pulled her bilum off her which contained her personal items. Accused returned later and helped Max to stop Zita from struggling. Both of them then took turns sexually penetrating her while Ian was standing around. Ian was the one who forcefully removed Zita’s bilum which contained her personal items.

Robbery

Sexual Penetration

24. Evidence of sexual penetration came from Zita. She stated accused and Max sexually penetrated her by penal insertion through her vagina. Ian just stood by and waited. She went for medical check-up on 24 January 2017.

25. She was medically examined. No external injuries were noted her vulva and vagina looked normal except that her cervix had slight inflammation with no tear and bleeding. Microscopic examination of vaginal swab showed no evidence of sperm. (Refer to medical report date 26 January 2017)

26. Does that negative medical finding conclusively establish that there was no sexual penetration? The current position of the law is that corroboration is no longer required to proving sexual penetration. Court may convict on uncorroborated evidence of one witness if the evidence is credible, convincing and truthful. A judge is not required to instruct himself that it is unsafe to find the accused guilty in the absence of corroboration. (ss229H & 352A of Criminal Code (Sexual Offences and Crimes Against Children) Act 2002. Amendment No. 27 0f 2002)

27. Accused was at the crime scene with his two accomplices. He denied participation. According to his evidence first he said in the record of interview he was with Max and Ian at the crime scene. When Max jumped out and held Zita he left them and walked back home. In court he said he left the two at the river when he knew of their plans. These were mere denials. Accused was an active participant in committing the offences.

28. According to Zita’s evidence which I accept as convincing accused was the first to sexually penetrate her then Max followed. She was weak after the ordeal when she arrived at the school and fainted. She was in a distress condition and when she regain consciousness she told the persons who gathered around her of her ordeal. It was for that reason she had to go for medical check-up. Evidence of recent complaint by Zita is good and credible evidence. I have no reason doubt on her evidence.

29. I find, accused had sexually penetrated Zita by inserting his penis into her vagina. It is likely accused may not have ejaculated in the vagina which is why no evidence of sperm was found in her vagina except slight inflammation of the cervix. I also find accused and his two accomplices used threats of violence and held up Zita and stole her string bag with all its contents of an estimated valued of K500.00.

30. The conclusion reached from all of the discussions is that State discharged the onus of proving its case. There is no shadow of doubt in my mind to enter conviction against the accused. Accordingly court returns a guilty verdict upon the accused on each of the charges.
________________________________________________________
Office of the Public Prosecutor: Lawyers for the State
Office of the Public Solicitor: Lawyers for the Accused