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State v Sipris (No 1) [2003] PGNC 63; N2445 (31 July 2003)

N2445

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 1318 of 2002

THE STATE

-V-

KAMBI SIPRIS

Mt. Hagen: Jalina J
2003: 10, 17, 18, 25 & 31st July

CRIMINAL LAW – Unlawful Carnal Knowledge of girl under 12 years of age – Girl aged 6 years – Accused and victim close neighbours – No disharmony between accused’s and victim’s family prior to commission of offence - Sexual penetration not in issue – Positive identification of accused by victim – No ulterior motive shown to exist against accused and his parents – Whether the accused was the perpetrator of the crime – Criminal Code s. 213.

Cases cited:
John Beng –v- The State [1977] PNGLR 115

Counsel:
J. Waine for the State
P. Kumo for the Prisoner

31 July 2003

JALINA J: This accused has been charged that on the 15th day of April 2002 at Avi Block, Mt. Hagen in the Western Highlands Province he had Carnal Knowledge of a girl under the age of 12 years, namely the victim who was then aged 6 years. He has pleaded not guilty to the charge.

At the commencement of trial, the State Prosecutor Mr. Waine tendered the Statement of Police Investigators namely Senior Constable Paul Silel, Constable Robert Piandi and Constable Molyne Pipigan as well as the record of interview with the accused by consent of Defence Counsel Mr. Kumo. The medical report, the victim’s clinic book showing her date of birth as well as the Statement of Joyce Alwyn the victim’s mother, were also tendered by consent. The only oral evidence for the prosecution was from the victim. Her evidence was given in camera due to her being of tender age. Her evidence was given in the Enga language and was interpreted by a man from Enga who was employed by the National Broadcasting Corporation in Mt. Hagen. The accused gave oral evidence in the Enga language in his own defence after the close of the prosecution case and his evidence was also interpreted into English by the same Engan Interpreter.

The victim’s evidence in summary was that during day time on the day in question, she was sitting on the verandah of her parents house at Avi Block and was approached by the accused who asked her to follow him to the back of his house promising to kill birds for her. After she followed him to the back of his house he took off her trousers and had sex with her by inserting his penis into her vagina. She felt pain and also had blood from her vagina. The accused, whom she knew well, lived close by and at that time no other person was present. They were alone. After he finished having sex with her, he told her not to tell her parents and that he would have sex with her all the time.

During cross-examination by Mr. Kumo for the accused, the victim said that the accused was the son of Sipris who lived close to where they lived. To a suggestion by Defence Counsel that the person she named as Sipris was a different person to the one who had sex with her, she stated that he was the same person who had sex with her. She went on to say in reply to Mr. Kumo’s question whether she told her mother that day she said that she did not because her parents were away in Wabag. She told her mother some days later when she tried to urinate and felt pain in her vagina. She was also scared that her mother might beat her up if she told her earlier. Although of tender age, the victim was not shaken on cross-examination.

The evidence of the victim’s mother, Joyce Alwyn is contained in her Statement which I reproduce for convenience.

"My full name is Joyce Alwyn, the mother of three (3) children, ages ranging from six (6), three (3) and one (1) respectively. I am house wife and reside at Avi Block (husband’s family block). I am the natural mother of the victim namely Stephanie Alwyn. She is also the first born child born to me on the 25th of October 1996.

I was up at Wabag and returned to Hagen on Tuesday the 16th April 2002 only to find the appearance of my daughter quite different from the state she was when I left her with her grand-mother namely Lupinon Kaiman. I noted the lost weight and asked her bubu. I asked if she had been fed properly because she looked sick. Her grand-mother replied that she had been properly fed and cared for well, during my absence. She further stated that on Monday 15/4/02, she did not eat dinner but instead had soup only.

I then asked the child if she was sick and she replied that her stomach was paining so I thought she must have not been properly fed by her grand-mother.

On Wednesday night 17/4/02 whilst we were sleeping she started complaining again about stomach aches and did the same on Thursday 18/4/02.

For the last three (3) days she kept complaining and at day-time she used to sleep only and never go out to play around as usual.

On Friday 19th of April 2002 around 9 pm she wanted to go to the toilet and so I escorted her outside. Whilst I was on the verandah, she started crying and holding onto her stomach. I went down and took her up onto the verandah and asked her what was wrong. She told me that her vagina was paining very badly. I then made her sleep on the floor and I checked her vaginal area. I discovered that her vagina was red and sore and when I opened it I saw pass coming out from it (vagina).

I asked her about what had happened and she told me as followed, "I was sitting on the verandah when Kambi came and told me, "come, we’ll go and I will kill a bird for you and he took me to the back of his house, put me down and he took his thing (penis) and pushed it into my vagina and when I wanted to scream he closed my mouth and later he pispis (released his sperm) into my vagina." She further told me that he threatened her by saying that "Get up and go and don’t tell your mother."

At that same time after hearing all that I went and related the same story to Kambi’s parents.

On Saturday 20th of April 2002 I took Stephanie to the Mt. Hagen General Hospital for medical treatment. After the medical treatment we reported the matter to Police at the Station."

The victim’s Clinic Book and her mother’s evidence show the age of the victim was about 5 years and 6 months having been born on 25th October 1996 and the offence having been committed on 15th April 2002.

The Medical Report pertaining to the examination carried out by Pelius Undi on the victim’s genital area 5 days after the incident and which report is annexed to his (Pelius Undi’s) affidavit, reveals that the external genitalia was red and inflamed with foul smell. The vagina was discharging puss which was moderate to mild yellow in colour. The hymen was also found to have been torn.

In the record of interview the accused agreed that he lived in the same area where the victim’s house is. He said that he was born there and live with his parents. He also said that from time to time he used to kill birds and give to small children in the neighbourhood including the victim. He however denied seeing the victim as well as having sex with her on the day in question. He said that earlier that day he was with Paul mumuing taro for his uncle Nano. After that he went to his sister Poprio’s block to dig drain on a patch of land which she had given to him to make his garden.

In his oral evidence the accused basically confirmed what he told police during the record of interview. The accused was also not shaken on cross-examination by the State Prosecutor Mr. Waine.

The victim’s mother’s statement, the Clinic Book, the Medical Report and the record of interview having been tendered by consent, there is no dispute that both the accused and the victim live in the same neighbourhood at Avi Blocks and that their house is not far from each other. There is also no dispute that the accused and the victim know each other and that the accused sometimes kills birds and give them to small children at the block including the victim. There is also no dispute that the victim is aged about 5 years 6 months and that on the day in question sexual penetration of the victim’s vagina did occur. What is in dispute and is therefore the issue before me for determination, is whether it was the accused who had done it. The issue is therefore one of identification of the perpetrator of the crime. There being no evidence from other eyewitness, I have to weigh up the evidence of the victim and the accused which are in direct conflict, and decide whether or not in the circumstances I should believe the victim or the accused.

The law on identification is well settled in this jurisdiction in John Beng –v- The State [1977] PNGLR 115 which I need not repeat.

Learned authors, namely Chalmers, Weisbrot, Injia and Andrew in their text book on Criminal Law and Practice of Papua New Guinea (2001) 3rd edition had this to say at p. 636 on the issue of identification:

"The dangers of identification evidence are well recognized in common law countries. In practice, the judge is required to give the jury a warning, the nature of which must depend upon the circumstances of the case before the court. There is no rule of law that the evidence of one witness as to identification is insufficient, nor is there any rule of law that there must be a police parade for the purposes of identification, nor is there any rule of law that in every case a warning must be given. "Where the identification of a single witness is relied upon, the jury should be informed that mistakes in the past [have] occurred in regard to identification, thereby occasioning a miscarriage of justice." Matters to be taken into account in assessing the accuracy of the witness are:

"what opportunities the person identifying had to form a judgment of the identity of the person who committed the crime ... the position of the parties ... the lighting, the opportunities to form a judgment, and generally the circumstances in which the identifying witness formed his judgment as to identification."

The Supreme Court considered John Beng v The State [1977] PNGLR 115 in Biwa Geta v The State [1988-1989] PNGLR 153. The majority held that, while it may be helpful for a trial judge in his or her reasons for judgment to advert to the legal principles involved in the dangers inherent in, for example, identification evidence, failure to do so will not of itself constitute an error of law if a critical examination of the evidence is given which demonstrates the adherence to those principles.

Where evidence of identification is relevant, the court should be mindful of all the inherent dangers and the need for caution before convicting on the correctness of identification. A mistaken witness could be a convincing one: The State v Kobale Rau (1997) N1509."

As the issue before me is one of identification, I am mindful of and do warn myself of the inherent dangers and need for caution before convicting an offender based on identification evidence.

When I consider the evidence adduced by the prosecution and the defence before me, bearing in mind that the other vital elements of age of the victim and sexual penetration to sustain the charge is not disputed, I am satisfied beyond reasonable doubt that the accused was the person who had sexually violated the victim. I am satisfied beyond reasonable doubt that it was the accused who had committed this crime because the victim and the accused know each other. Also the fact that they live in the same neighbourhood and because it was common practice of the accused to kill birds and give to little children including the victim, it can be inferred that the victim followed him without hesitation when he told her to go with him to look for birds. Another reason is that both the accused and the victim come from the Enga Province which further strengthens their knowledge of each other and that it could also be inferred when the accused requested her to follow him to look for birds. The accused and the victim were therefore not strangers. Furthermore, the offence was committed in broad daylight so I cannot imagine the victim mistaking the accused for someone else. It was not a fleeting glance at a stranger. In fact, in her oral evidence, the victim clearly stated that the accused was the son of Sipris. It has also not been shown to this Court nor was it put to the victim in cross-examination that the allegation against the accused was made from some ulterior motive.

When the accused and the victim were giving evidence, I was impressed by the demeanour of the victim inspite of her tender age. She sat on her mother’s lap and gave evidence during both examination in chief and cross-examination without hesitation or without pausing to remember what had happened. I however found the accused to be unconvincing. Even though the record of interview appears to have been held in pidgin and without an Engan Interpreter, he appeared to me to exhibit ignorance of the pidgin language from the start of the case so Mr John Pea, the Administrative Officer at the National Court here in Mt Hagen had to be called in to Court to interpret the arraignment. I cannot imagine a boy of 18 years (which age the accused is) not speaking pidgin in an area like Avi Blocks where people from different parts of the Country live and no doubt pidgin is the common language. I also noticed his demeanour in the witness box to be unimpressive as he continued to exhibit ignorance.

Another reason why I am satisfied that the accused was the perpetrator of the crime is from his alibi that he was first with Paul mumuing taro for his uncle Nano and then went to his sister Poprio’s block to dig drain which has not been substantiated or confirmed by evidence. His uncle Nano and Paul as well as his sister Paprio no doubt live at the Avi Blocks which is not far from Mt Hagen yet they have not been called as witnesses. The accused has been charged and has been in custody for a long time yet they have not gone to the police in the early stages of this case or gone to Defence Counsel and told him that the accused was with them that day and as such could not have committed this crime.

I am also not too concerned about the lack of corroborative evidence due to the failure of the victim to complain or tell someone about what had happened to her. This is because corroboration is not a requirement of law but one of practice. In any case, I cannot and do not expect a girl of such tender age to tell someone quickly about what the accused had done to her. A girl of such tender age who no doubt would have no intimate knowledge of the act of sexual intercourse, cannot and should not be expected to tell the first person she meets about a sexual assault against her. But if corroboration is required in this case, then there is corroboration through the accused’s false denials. There is also sufficient corroboration through the statement of the mother which shows what the victim told her when she saw her exhibiting signs that she was ill. The accused also corroborates the victim in relation his practice of killing birds and giving to small children in the neighbourhood including the victim because the victim sated in her evidence that she followed him when he told her that she should accompany him to go and shoot birds.

So on the evidence as it stands, I am satisfied beyond reasonable doubt (as I have said earlier) that the accused was the perpetrator of the crime. I accordingly find him guilty as charged.
________________________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyer for the Accused: Public Solicitor