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State v Nanua [1997] PGNC 147; N1662 (12 November 1997)

Unreported National Court Decisions

N1662

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO 254 OF 1997
THE STATE
-VS-
WILLIAM KAPIS NANUA

Kimbe

Batari AJ
6 November 1997
7 November 1997
10 November 1997
12 November 1997

CRIMINAL LAW - Evidence - Indentification evidence - Warnings alluded to - Assessment of evidence of identification - Evidence of victim alone insufficient to conviction - Evidence of identification independently proven - Admissions of accused may strengthen evidence of identification.

CRIMINAL LAW - Practice and procedure - Confessions - Admitted - Whether or not to exclude, nevertheless - Question of discretion - Consideration of.

CRIMINAL LAW - Evidence - False denials by accused leaves evidence of confessions uncontested.

Cases Cited

R v Uno Tam & maru U’u (1973) No.768.

The State v John Beng [1976] PNGLR 481.

R v Amio & Amung [1963] PNGLR 22.

R v Waren & Ors [1963] PNGLR 217.

R v John Theodore Mumford (1953) No.48.

Constitutional Reference of 1977 No.1 [1977] PNGLR 295.

The accused was charged with two counts of rape in a gang attack of a pregnant woman. The following judgment was delivered on verdict.

Counsel

J. Gah, for the State

J. Kaumi, for the accused

12 November 1997

BATARI AJ: The accused has been charged with two (2) counts of rape upon an indictment presented before me on 6 November, 1997.

State case was that, on or about 3 October, 1996 the accused and three (3) others abducted the victim, Joycelyn Bulo Tigu from a street at Laleki Settlement, Kimbe and sexually violated her first at a patch of bananas at Laleki and again at Gigo Community School. At the second location, the accused and his accomplices were joined by two others.

The Medical Report dated 3 October, 1996 stated the victim was in pain and depressed when she was examined at about 6.00 am of that day. She sustained some injury to her private part and presence of spermatozoa was confirmed. The report concluded that sexual intercourse occurred.

The accused had denied all implications and has given evidence on Oath to that effect. He had raised the defence of Alibi and had called a witness in his defence.

I am satisfied that on the night and time alleged, the victim was pack-raped at two different locations. She had described in harrowing details, the sexual indignities she went through. Her story of the events were substantially consistent and uncontradicted. I had observed her give evidence. Although she appeared distressed at times, she was on the whole calm and collected when required to describe despicable aspects of her ordeal. She appeared unsure on some details. I think that is understandable as the event occurred some twelve (12) months ago and she was trying her best to recall finer details. I find her to be an honest witness. Whether I can rely on her evidence as being reliable and truthful is of course another issue. However, on the general issues, I am satisfied that she was raped by four (4) men at Laleki and shortly after, she was again pack raped by six (6) men at Gigo Community School between the hours of 12.00 mid night and 4.00 am on 3 October, 1996.

I am also satisfied that on the night of 2 October, 1996 the accused was at Gigo No. 2 attending a farewell party. The party lasted till the next day, 3 October. Gigo No. 2 shared the same boundary with Laleki Settlement within the township of Kimbe.

The only issue on trial was whether or not the accused was one of the men who raped the victim at Laleki and again at Gigo Community School. This issue encompassed identification evidence. I bear in mind that, when the issue on trial turns on questions of identification, the tribunal of fact is warned that mistakes had been made in the past, even in purported recognition of a close relative or friend. In the case of R.v. Uno Tam & Maru U'u [1973] No. 766 a number of factors were listed as a guide in determining reliability of the identification witness. I bear this in mind and follow the principles as stated in State v John Beng [1976] PNGLR, 481 in assessing the identification evidence in this case.

The victim gave evidence that she saw five (5) men as she approached the third street at Laleki, on her way to her residence around 12.00 midnight. One of the men left and four (4) remained. She was then accosted by the four (4) men. As she could only make out the number of people, I infer the place was dark. She was taken by these men, half-walking and half-running past a street light. I am not sure whether she was able to clearly and positively identify any of her captors under the lights because her evidence gave me the impression that they were under the lights only briefly. Besides, I think she was so over-whelmed by shock, fear and speed of the events she was unable to register details of her captors. On the other hand I bear in mind her evidence that the accused held the gun and was pulling her. If that was so, she would be in close proximity to the accused under the lights. She said she recognised the accused from the boots he wore under the street lights at Laleki. This evidence is however not conclusive.

The victim also spoke of three other occasions where she and her captors were in some form of lightings:

(i) ҈ O60; On the way to Cigo nimmunity School, where she was taken through lights at the gravel site near the KCP premises.

(ii) &#1he again spoke of lightsights shining from the grsite ere sd her cher captoraptors sats sat in mid field at Gigo Community School.

It was here that she said she recognised the accused. escriis buthe clothes thes and sand shoes hoes he wore. The lights from the gravel site was some 50 to 80 meters away. There was no evidence as to the type of lightings and its brightness. However, I infer the place where she was in the play-ground was sufficiently lit for her to see the accused, the clothes and boots he wore. I infer also that the victim was in close proximity to her while she was making the observation.

(iii) By a licht inhide a classclassroom.

The victim also spoke of a torch used by her captors in the classroom at Gigo Community School. She said the accused was in front of her when he and his nionse theh at her bodr body andy and were were laughing. It is not clear what position she was in while making the observation. However, I infer she was still lying on her back when her captors pulled her legs apart and shone the torch at her. I think they were mocking her. They would be in close proximity while doing that. I infer that the lights from the torch to her body would be bouncing off from either the desk or the floor so that those in the immediate vicinity are in some lights.

It was probable she saw the accused under those lights. When I considered all the points of sightings in her evidence together, I concluded her recognition of the accused improved from the first sightings due to subsequent number of sightings under sufficient lightings and the proximity of the accused to her. I have no reason to disbelieve her story. However, in a criminal trial where the Prosecutor must prove the case against the accused beyond reasonable doubt, I do not think the evidence of the victim standing alone would sufficiently sustain a conviction of the accused.

In his statement, Detective Constable Michael Kereu said that four (4) days after the incident, he took the accused to Laleki Settlement where the victim recognised him. I agree with Defence Counsel, this form of identification is most unfair. Besides, the victim said nothing about this event in her evidence. On the other hand, the accused had not protested the contents of Michael Kereu's statement and had allowed it into evidence. Inferentially, he does not dispute that identification of him by the victim. Although the victim did not speak about identifying the accused to the police four (4) days later, it does not follow that the event did not occur. I accept the statement evidence of Michael Kereu as sufficiently probable. I conclude that four (4) days after her ordeal when her memory was still fresh, the victim had identified the accused to the policeman. The victim's prior knowledge of the accused also added to her ability to recognise the accused.

Kevin Kenatsi's description of the accused and the clothes he wore on the night of 2 October, 1996 supported to some extent the evidence of the victim. This was contained in his statement admitted into evidence with consent.

Defence case was that the accused attended a party at Gigo 2 all night and never left the place until the next day. The accused's evidence was that he was at Kevin Kenatsi's house, where the party was held, all night till break. His evidence was support to some extent by Kevin Kenatsi's statement. Kevin Kenatsi however said he went to sleep at about 10.30 pm. Therefore, he could not testify to the accused's whereabouts between 10.30 pm of 2 October and 4.00 am of 3 October, 1996.

Defence witness Beveris Paul stated the accused was at Gigo 2 at a gathering to farewell the family of Leo Kenatsi. She was also there and was serving tea all night till dawn, to those at the gathering. She said no alcoholic drink was served and that none of those present had left the gathering. I was not impressed with the demeanour of this witness. She appeared calculating and was evasive in her answers. She was far from a truthful witness.

I find that beer was consumed on the night at the party. There were suggestions on State evidence, of known criminals at the party and this has not been denied by the accused in his evidence. I think the opportunity presented itself for young men at the party to wonder off into adjourning streets including Laleki that night. I think there was also opportunity for young men to leave the party and visit beer black markets elsewhere, including Laleki Settlement. Indeed, Kevin Kenatsi stated at some stage he himself had gone out from the party to purchase beer from a black market. I am not convinced that the accused never left the party place as he and his witness had stated.

The accused’s confession is in evidence following a voire dire. For the purpose of assessing the evidence in the trial proper, I take into account also the evidence given on the voire dire to the extent that it is relevant to the issues on trial (See R.v. Amio and Amung [1963] PNGLR, 22) .

I have considered whether or not I should nevertheless exclude the confessional statement despite my ruling that it is admissible as being voluntary. The discretion to exclude the confession is exercised if it is shown that the confession was obtained through improper or unfair means. (See case of R. v. Waren & Ors [1963] PNGLR, 217 at 232).

I also refer to the case of John Theodore Mumford (1953) No. 48 where it was held that a confession admitted into evidence may be disregarded if fresh evidence later shows that the confession has been extorted by threats and assaults.

The onus of proving unfairness is on the accused. (See Constitutional Reference No.1 of 1977 [1977] PNGLR, 295. The accused had all along denied knowledge of making the confession, in his evidence on the voir dire and the trial proper. He had not alleged coercion, impropriety or unfairness by police and that he was over-borne to speak because of those actions by police. His story was simply that he cannot recall the making of the statement. This was contradicted by his clear recollection of being forced to sign the statement. The accused appeared to me to have recovered and was fully alert as to the events of 24 January, 1997, the day he was discharged from hospital. Dr Warangi had also suggested the accused was mentally and physically fit on that day. The accused had further demonstrated his mental fitness by his clear recollection of events of 11 January and 24 January, 1997. He impressed me as an intelligent and cunning witness.

Because he had denied knowledge of the confessional statement, the only evidence for me to consider is that of the police witnesses. I am satisfied that the statement was taken without any form of impropriety or unfairness. I am also satisfied that the accused had told the police of his involvement.

When I consider the accused's confessional statement together with the State's evidence, I am satisfied beyond reasonable doubt that the accused was one of those men who raped the victim at Laleki and again at Gigo Community School on the early hours of 3 October, 1996.

I find the accused guilty on both counts of rape and convict him accordingly.

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: A/Public Solicitor