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State v Rau [1997] PGNC 1; N1509 (17 January 1997)

Unreported National Court Decisions

N1509

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR 761 OF 1996
THE STATE
v
KOBALE RAU

Mount Hagen

Lenalia AJ
12 December 1996
17 December 1996
31 December 1996
13 January 1997
15 January 1997
17 January 1997

CRIMINAL LAW - Pack rape - Not guilty plea - Trial - Criminal Code S. 347 (Ch No 262).

CRIMINAL LAW - Unlawful assault - Not guilty plea - Trial - Criminal Code S. 341.

CRIMINAL LAW - Unlawful Detention - Not guilty plea - Trial - Criminal Code S. 355.

CRIMINAL LAW - Practice and Procedure - Evidence in sexual offences - Corroboration - No requirement in law - Corroboration required in practice.

- Practice and Procedure - Identification - Dangers inherent - Relevant consideration - Mistaken identity.

Thesed iolicehargeh 3 c, oneape, the seconsecond oned one for for assauassault anlt and thed the third unlawful detention of a young victim who was detained at the Minj Police Station for questioning following an alleged coffee theft from a nearby large Coffee estate. She did not committheft hoft however security personnels from the Estate picked her up and handed her over to the Police Station at Minj. Noges waid and the NCO ShiO Shift Commander of the shift on duty during which time the allegelleged offences were said to have been comd gave directions for the release of the only female detainee who later became the victim otim of a pack rape.

Held:

(1) ; In a proceedieg where evie evidence of identification is relevant, the Court should be mindful of all the inherent dangers, the need for caution before convicting on the correctiveness of identification. taken witness could be a ce a convincing one. The complainant w a much buch better position to give description of the accused’s dress and appearanc60; This was a case of mistaken identity.

Cases Cses Cited:

The following cases are cited in the judgement:

McCallum v Buibui [1975] PNGLR 439

The State v Andrew Tovue [1981] PNGLR 12

Peter Townsend v The State [1981] PNGLR 8

Biwa Geta v The State [1988-89] PNGLR 153

John Beng v The State [1977] PNGLR 115

Counsel:

P Kumo for the State

L Simiji for the Accused

17 January 1997

LENALIA AJ: The accentered pleas of noof not guilty to three charges contained in one indictment charging that on 11th of February 1996, the accuseed, assaulted and unlawful detained Wulamb Tongil contrary to SS. 347, 341 & 355 of thef the Criminal Code. To prove their the State tate called five witnesses. the trial took sometime secause first one of the key witnesses was on recreation lehom the defence counsel wanted to cross examine on certain evidence stated in his statementement. Sey, the case was originliginlisted for four days but itut it proved to be more than four sitting days so that the Court had to adjourn to suit whatever time it wund available.

The State’s case is that on 11tn 11th of February 1996 the young girl who later became the victim of the charges charged in the indictment was arrested following allegations made against her by security personnels of a nearby major coffee estate in the Minj area of the Western Highlands Province. The victim’s evidenoe shows that she was handed over to the Minj Police Station by about after midday. In fact sheested in her ever evidence in cross-examination that it muse been about 3 pm. She was then kepthe cells ells at s at Minj Police Station until between 4.30 and 5.30 pm when she was releay the shift commander of thof the 4 pm to 12 midnight shift, Senior Constable Tobias Mondia. After breleased, she was iwas immediately taken to the duty counter where she was further interrogated by S/C Mondia after which she was released for no formal chargesbeen laid against her.

Three policemen were called tled to give evidence for the State. nce by Constable David Mekd Mek is much similar to that of his shift commander S/C Mondia. They both rostered 4 pm - pm - 12 midnight on the night of the ant date. The third policeman on duty that night was was the accused himself. It appears from the nce ofce of Constable Mek that there was no prop proper hand over/take over from the former shift members, but David Mek was the first policeman to report to tty office. The next person to cas thes the accused.&#ed. Not lfter this, the shift hift commander came in.

David Mek’s evidence is that as soon as he got to the duty counter, he was called up to the cells by a male detainee in the cells.&#16 soon as he got to the cell cells he realised that there was a female detainee. He asked her wh she detainetained and the victim told Mek that she had been blamed for stealing some coffee cherries from a major coffee plantation. She intended to sellcoffen beans the next day but was arrested by security pers personnels who brought her to the Minj Police Station. Mek advised ictim he was nwas not allowed to release her until the two regular members came. Cons Constable Mek eded baed back to the duty er. then Constable Kobale Rau Rau showed up and not long afterwards, S/C Mondia came came too.

Constable Mek’s eve alseal that as soon as S/C Mondia came, he gave dire directions to Constable Mek to release thse the female detainee. This was doner consulting ting the occurrence book in which it was recorded that the sole female detainee was to be discharged by 4 pm that #160; Constable Mek was given the keys to the cells, walked across to the female cell blockblocks opened the door and took the complainant out to the duty counter. At the duty counter the complainant was further interrogated by S/C Mondia and the accused made entries into the O/B in regard to the release of the complainant.

After they had had a conversation with the victim ondia told the victim, Davi David Mek and the accused that he was leaving to go back to the barracks to cook his dinner. S/C Molater confirmed in e in evidence that he was away for two hours until about 8 pm when he returned to the station. Not longrwardstable David avid Mek also indicated that he wanted to go to the store to buy sugar anar and smoke for him. As he was walkut ofdoor, hor, he saw that the woman was also moving out following him out to the door on r on to the cement. As he was walkinard Junul&unul’s store he hear sound of a vehicle anle and as he turned aned around he observed that it was the Minice Station vehicle ZGR 346 driven by Sgt. Ben Kama into the Station.

He was away foay for some 10 - 15 minute and when he gok to olice station, hon, he found Sgt. Kama and some more rore regular policemen who were not on duty. In all there were about them. When it got dark some more members came in and they started to play card games ames for fun. Mary Kapal and heband came came and joined the group enjoying the evening talk.

During the course of theirtheir card games, they sent a person by the namKolif to buy them smoke and betelnut from somewhere near thar the hospital. He was sent twice ater he r he returned from the second erand, their card games were disturbed when one of them heard some noises from the International Primary School. Theyght ts had broken into into the premises so they all surrouurrounded the school ground and after a careful check they found nobody inso they all returned to the police station. Those members who wot on d on duty startetarted to leave for their residential areas leaving the only three behind, S/C Mondia, Constable Mek and the accused.

The three of them decided to go on a beat pato they proceeded toward thed the main shopping centre. After soe, the accused reqd requested to leave by about 11.15. They dep from the shoppingpping centre and separated with the accused going home to his house. S/able Mondia and Cble Mmee Mmediately returneturned to the Police Station to await the incoming shift members.

S

Senior Constable Timothy Goiye’sence t much of any assistance to this Court. He ; He was twas the neiftshift commander from 12 midnight to 8 am the next morning. An as he reported for duty duty he went through the occurrence book and noted that there were no major incidents recorded inO/B.& He said when then they checked the cells, there were no females in the female cells but thut there were 5 male detainees.

I now came to the evidence of the victim. She gave evidence th an inan interpreter Elizabeth Munu that she had picked some coffee cherries worth K1.00 from her brother’s coffee garden. She was caught by her mother who beat her up. Afteing settlee decided toed toed to sell this cherries the next day. When thurity personnels sals saw her, they arrested her and ter coaway and handed her over to the police at the Mine Minj Police Station. This was done done on the mistaken belief that the compnt had stolen this coffee ffee from the nearby coffee plantation.

After spending sometimes in the cells, she was brought to thy counter for interrogation. Hedence is that thet the pthe person who took her out from the cell blocks was the same person who led her away to the policewomen toilet and locked her in there for some 4-5 hours. Asked in chnd cross-examinxamination how was she locked in and she merely answered by saying that the door may have been locked from the outside. She did not try to it no sdid she screamed for assistance.

Her evidencedence is that it was the same person who locked her into the policewomen t came and took her out to the kitchen at the back somewhere took her into the kitchentchen undressed her and forcefully had sexual intercourse with her. She tto shout but she was was clapped over he mouth. After she&#160 been raped,aped, the t told her to wait there until day break. She got frit frightened of staying back and made her way up to the Health centre. Soople saw hd pity on&#160 her when they sa being eing eing in a distressed condition. She had grass all oer hair hair and lothee wet. A woman by the name of Armf Arme Yants took her in, asked the victim to have aave a bath and was given clothing to change.

Part of her evidence is that after being interrogated two polo policemen left and the one who took her rom the cells was the same person who took her to the femalfemale toilet. She estimated that sht havt have been in the policewomen toilet for some 4-5 hours. vidence was that she did ndid not agree to the acts of intercourse and were done against hel and after having sex she felt pain. She was asked iked in chief how many times did the accused have sex with her. She replied, itthree timestimes. Later in crosmination, she, she said two or three separate men had sex with her.

The first a sexutercourse took plok place in the kitchen where there was no light. Hr there was was light inht in the cells. There is no evidence ow toow to the Court what is the distance between the cell blocks, the office and the kitchen. ugh I noted from ile therethere is a sketch etch plan showing the positioning of the office, the cell blocks and the kthe kitchen, there were no measurements pu Even if there were measurements in place, I would nold not accept it since the sketch plan was never tendered.

Wulam Tongil’s description of the dress worn by her first rapist was that the accused was wearing a police uniform. This is a str contrast to t to the evidence given by the accused and state witness Senior Constable Tobias Mondia who said that the accused w civies. The reason why the accwas was wearing civilian clothing was that, he had bead been rostered to special duties at the Kudjip Estates that week. He haked all his clothes ihes in his bag. When he was ready to go he was informed that the schedule had been altered and he would be going the next day. He was theormed to do norm normal duties. At least this part ofaccused’s statement is corroborated by the evidence once of State witness S/Constable Mondia.

The victim was vigorously -exam She said taid that it was not Constable David Mek who took her out from the cells atls at the first place but the accused himself. That part of her evidence is in direct contradiction to that of Constable David Mek and S/C Mondia that David Mek was the one who brought her out from the cells. The complainant also saat that the accused was the one who questioned her. Once more tonflicts with tith the evidence contained in Exhibit “A” the Statement by witness S/C Mondia which shows that, ondiarrogated her whil while the accused and Constable Mek took particulars of the victim and ennd entered it into the O/B. As to hoy men raped her, ser, she first answered that 2 men did have sex with her. When she was asked iss-exas-examination she saiee men at least raped her.

Evidence of Arme Yants confirms that by about 10 pm, she she was minding her sick sister Priscillahe Minj Health centre when she caught sight of the victim wtim walking rather nervously. Arme sled the victim to coto come to her but the victim was shy. In frme’s evidence snce shows that despite being asked what had occurred to her, the victd not answer. A Health worker brieflke toke to the vihe victim and suggested to Arme that the victim should sleep with the patients at the health centre that night0;#160; This witness confirmed that she gave some clothes to the victim on the night of the incident and she was the one who assisted the victim to have a full bath before she was given dried clothes. Intending reservist Koame came in, saw the victim and enquired how did she get out from the cells. From there, the viwas esco escorted back to tlls. This witness does not say anything about Kolif assaulting the victim before she she was placed in the cells. After ad seen thtim placedlaced in the cells she accompanied anot another two women back to the hospital.

The accused gave an unsworn stat that he was scheduled to special duties to the Kudjip Real Estates on the evening on the the date of this offence. By 4 pm,& he was informed rmed by the Station Sergeant Major that there was a change in the schedule and policemen rostered to that specities were re-scheduled to the next day. The accused was asked te uake up normal dutieduties in the station. By the time he wasrmed of d of the change he had packed his clothes so he was told to wear civilian clothes. He w the same shift w/Cons/Cons Mondia and ConstConstable Mek.

He reported for duty at 4.30 pm by which time Constaonstable Mek was already in the duty count160; David informed the accused that there was a female dete detainee who was supposed to have been released by 4 pm but she was still in the cells. The accuseormed C/ Mek thak that he could not do anything until the Shift commander came. Not long after S/C Mondiaondia turned up and gave orders to Constable Mek to release the victim.

When the Station Sergeant Major was ind of the female detainee being released, he was a little upset aid he should havd havd have been consulted. The accused and Sgjor talk talked for some time until he left at about a quarter to eight (pm). The next part of tatement ment is exacte samthat of Constabletable Mek and S/Constable Mondia from the time they were playing card game games to the time they separated at the sng centre at about 11.15 pm. There no other witn witnesitness called by the defence.

On the defence final submission, Mr Simiji cited two authorities. ase of McCallum v Buibui [bui [1975] PNGLR 439 in which it was ennunciated the rule that in a case of sexual nature a judge or magistrate must warn himself of the dangers of convicting an accused upon uncorroborated evidence of the complainant alone. In tstant case I am warnedarned and am reminded that an accused person should not be convicted upon evidence of the complainant that is not corroborated unless such evidence is corroborated in some “material particular” by other evidence from an independent source. This rule wasied and consiconsidered in the cases of The State v Andrew Tovue [1981] PNGLR 8, Peter Townsend v The State [1981] PNGLR 12. Att the case of Deidei v Ti v The State [1990] PNGLR 458 says the warning must be recordecorded on the notes somewhere showing that a judge or a magistrate for that matter gave himself such a wosee also Biwa Geta v The Sthe State [1988-89] PNGLR 153. Geta&#s case also discussecusses the question of identification. In tme manner I warn myselmyself being a judge of both facts and law that where a case against an accused person depends whollyubstaly on the correctrrectness of one or more identification of the accused and which the defendefence alleges to be mistaken, there is a special need for caution before convicting in reliance on the correctness of identification: John Beng v The State [1977] PNGLR 115.

The State’s evidence is clear that the accused was on duty on the relevant period of time. There is evi that after reer reporting for duty S/Constable Mondia gave directions to Constable David Mek who was in full uniform to releasevictim from the female cell blocks. It was proved by both S/Constable Mondia and Davi David Mek that the person who escorted the victim from the cells after opening the gate was Constable David Mek. There is evidence that e dthe duty counter, S/Cons Mondia interrogated the vihe victim while the accused and David Mek took her particulars to be entered into the occurrence book.&#16ere is evidence by Constable Mek that as he was leaving forg for John Munul’s shop, the victim also moved out and wanting to go the other direction.

The complainant’s evidence is that the person who unlocked the female cell blocks took her out to the counter was in uniform and it was the same person interrogated her. After interrog her it was was the same person who took her out from the duty counter to the police female toilet. It was that same person wmo some 4 - 5 hours later bt her out from the police female toilet and brought her to r to the kitchen where she was raped against her will.

There is evi by the Shift Commander that the accused was in civilian clan clothes. The Shift Commander alsoironfirmed that, the person whoed thed the gate to bring the victim out to the duty counter was Constable David Mek. Certainlyhe person who tooo too victt from the cells was in police uniforms would it d it not be inferred that the actor must hust have been a different person. Att theim is in the betteretter position to tell this Court wurt who her assailants were. She is in a r position to n to describe by their appearance and dress.

I am mindful of the inherent dangers and the need toed to caution myself of the state of the S#8217;s evidence so far adduced. By the principles laes laid down in The State v John Beng there is a possibility that a mistaken witness could be a convincing one and any number of witnesses could all be mistaken. Recogniof a known characteracter wbe more reliable than identidentifying a stranger. Even where a witnays he orhe or she can recognize someone who he or she knoweven a close relative mistakes can be made. All thesethese factors gartowards the quality of all the identification in a case.

It has been repeatedly ecly echoed in this Court that the criminal standard of proof is that the State must prove its case beyond aasonable doubt. That That meansust not leat leave in the mind of a judge or magistrate any doubt or a slightest possibility that the accused might not have committed the offence. Let me mentn passing that that the charges alleged in the indictment are not denied. With the conflicting nce bnce before me in the instant case I am satisfied beyond reasonable doubt that this cas a case of mistaken identifentification. I find the accused not guilty and acquit him accordingly. entitled to the refund ofnd of his bail monies.

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: Public Solicitor