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State v Noki [1993] PGNC 27; N1166 (12 August 1993)

N1166

PAPUA NEW GUINEA
[In the National Court of Justice]

CR.1118 OF 1992

THE STATE

V

ANIS NOKI

Mount Hagen: Woods J.
11, 12 August 1993

Criminal Law - Evidence - Corroboration - Community turns in suspects - Weight to be given.

Sentence - rape - pack rape - victim a young girl - injuries - 15 years IHL.

J. Kesan for the State.
M. Doiwa for the Defendant.

12 March 1992

WOODS, J.: The Accused Anis Noki is charged with two counts of abduction and two counts of rape being of the abduction and pack rape of Susan Francis and Clara Kamben on the night of 17 July 1992 just adjacent to Mount Hagen.

The story as presented by the State is of a gang of armed men attacking a settlement behind the YMCA Hall in Hagen in the early hours of the morning breaking into houses and threatening and stealing from the occupants and in one house finding the 2 victims, the one Susan being a young schoolgirl aged about 13 years, and dragging them out of their house and up away from the village into the coffee gardens and raping them. The victims later staggered back to their homes and then were taken to the police and to the hospital. It appears that the young girl Susan had to stay in hospital for some days because of the brutal injuries done to her.

The two victims in their evidence name the accused as one of the men involved in the attack and assault. There is no dispute that there was an abduction and rape, what we are forced to admit as pack rapes.

This case becomes a question of identification as the accused denies being in any way involved in the incident. Although he does agree that his home village is not far away from the home of the victims from where they were abducted.

Whilst there are some differences in the evidence of the 2 victims, that is to be expected, differences in some of the finer details of what happened in the house when the intruders broke in, the fact is that the general story is the same and they have identitified the accused, actually recognised him as they had seen the accused around, he does live not far away from them.

It is noted that the victims did not mention Anis Noki's name in their original statements to the police after the incident although Susan said she could identify one of the men. One must remember that statements made to police are usually straight out statements, they are not question and answer interviews. So they do not necessarily contain the whole story or all the detail. The detail often only comes when a person who can see all the surrounding circumstances asks the right questions. Statements are only a narrative as from the eyes of the victim or witness, they are not the story through the eyes of the policeman who is conscious we hope of the elements of proof.

The identification of the accused later is not a contradiction, it is further detail.

In his evidence the investigating officer said that the suspects were named to him and brought to him by the local Councillor and villagers. I find this a very important piece of evidence. So how do I take and assess that piece of evidence.

The Constitution of Papua New Guinea has clearly recognised the overriding importance of the traditional village and community as the main viable asset in the country. The Government and other authorities have continually reiterated the consensus nature of P.N.G. Society, the communal attitude to ownership or use of assets and land and the communal responsibility for problems. But rarely have the courts been able to give full recognition of this as the court must always be careful of the rights of the individual as set out in the Constitution.

But when the community works to participate in the legal process the courts must accept this participation and not disregard it. When anything happens in a traditional community that community appears as a rule to face the event together. They are all entitled to participate in the benefits, and they all have to share in the losses. So in a dispute they all feel involved.

This is where the coming forward of the Leaders and people of the community to hand over the suspects must be duly recognised. Of course it should be seen in and with the evidence. There must be other evidence. It becomes a matter of evidence which must be admissible, it is very relevant in the eyes of the people and must therefore be considered.

Again the communal nature of P.N.G Society makes one realise there can be very few secrets, when something happens everyone soon knows. There are no strangers in the night.

So if village leaders have come forward with their own knowledge and "made" people surrender there must be some weight in that. Surely in such a communal society elders are not going to blame their own line for something the neighbouring lines have done - if the neighbouring lines did it people would know.

The fear of a police raid and subsequent damage and loss of face cannot be so strong that leaders would turn in their own people for nothing if it was known to all it was the other line or village.

The Government is wishing to put more responsibility into the hands of the people over law and order and social control - if so then the courts must assist by recognising the relevance and knowledge of the leaders of the village and community. Of course just because the leaders turn in some suspects should not be the end of the case, such must be supported by the evidence. In fact the turning in supports and corroborates the other evidence. One must be sure that the leaders are not just marking some trouble makers to get them out of the way. Also one must be sure that the victims did not merely identify the accused after they learnt the leaders and community has handed over the suspects, thus identifying by suggestion.

However here the victims were so sure in there identification or recognition of the accused, they had seen him around before, he lived nearby.

I therefore find the weight of the evidence is overwhelming.

I am satisfied beyond all doubt that the accused was a member of the gang who raided the settlement and abducted the woman and young girl and raped them, and therefore being a member of the gang he is equally responsible for the abductions and the rapes. I find the accused guilty of 2 counts of abduction and 2 counts of rape.

ON SENTENCE

This abduction and pack rape was a horrifying incident. This was a gang raid on people sleeping in their houses and then the forced abduction of a woman who at the time was nursing a baby and of a young school girl. And as a result of the viciousness of the pack rape the young girl had to spend some time in hospital. I do not know whether the fact that the victims were originally from another Province, the Sepik, had any bearing on the incident but that should not really make any difference.

You helped the others so you are equally to blame for everything that happened. Society cannot have gangs like you doing things like this. You do not deserve to live in our society if you behave like this. It is not just a matter of paying compensation, all your relatives have had to suffer and pay that, but you must also be punished.

If you want to live and behave like this society has no alternative than to remove you from the society so that everyone else can be safe. This was not an accidental attack or something you did not mean. This was a deliberate attack on innocent people. Such a vicious attack demands the heaviest of penalties. I sentence you to 6 years imprisonment on each count of abduction and 15 years imprisonment on each count of rape. These sentences are to be served concurrently. You therefore must serve 15 years imprisonment, however as you have already spent one year in remand custody waiting for this case you will have 14 years to serve.