N2542

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1451 & 1453 of 2003

THE STATE

-V-

EKI KONDI,
MIKE JOHN,
ALLAN NEMO,
KELLY SOP KONDI
& ISSAC SIP
(No. 1)

VANIMO: 	KANDAKASI, J.
2004: 22nd and 24th March

DECISION ON VERDICT

CRIMINAL LAW - Verdict – Gang abduction and rape – Identification only – Issue for trial – Broad daylight – Victim able to identify three of her offenders by facial appearance – Not a fleeting glance – Other witnesses identifying leader of the gang - Circumstantial evidence supporting victim’s evidence – Identification in Court – Fairness of - Accused raising belated alibi – Effect of – Credibility of their evidence much in doubt – Accused failing to rebut prima facie case against them – Guilty verdict returned.

Cases cited:
The State v Peter Malihombu (unreported judgment delivered on 29/04/03) N2365
The State v Kevin Anis & Martin Ningigan (unreported judgment 07/04/03) N2360
The State v Onjawe Tunamai (unreported judgment delivered on 15/02/00) N1989
Jimmy Ono v The State (unreported judgment delivered on 04/10/02) SC698. 
The State v cosmos Kutau Kitawal No. 1 (Unreported judgment delivered on 15/05/02) N2266The State v Gari Bonu Garitau & Rossana Bonu [1996] PNGLR 48
Garitau Bonu & Rosanna Bonu v The State (Unreported judgment delivered on 15/05/02) N2266
Paulus Pawa v The State [1981] PNGLR 498
The State v Tauvavu Avaka & Anor (Unreported judgment delivered on 2/11/00) N2024.Gibson Gunure Ohizave v The State (Unreported judgment delivered on 26/11/98) SC595.John Jaminan v. The State (N0.2) [1983] PNGLR 318.
Michael Mini v. The State [1987] PNGLR 224.
The State v. Marety Ame Gaidi (01/08/02) N2256.

Counsel:
F. K. Popeu for the State 
D. Kari for the Accused

24th March, 2004

KANDAKASI J: 	The all five of you pleaded not guilty to one count each of gang abduction and another of a gang rape against the victim (named) on the 3rd of May 2003 at Hua Base Camp and Samararu respectively, here in the Sandaun Province. This necessitated a trial on the 22nd of this instant.

Issue for trial

At pre-trial and the commencement of the trial, you all confirmed through your lawyer that the only issue for trial was identification. Effectively, therefore you claimed that you were not at the scene of the crime and did not commit the offence. No other aspects of the charge against you were thus in issue. So I find those aspects as being established against you on the required standard of prove beyond any reasonable doubt.

The Evidence

(i)	First State Witness

In a bid to establish the issue for trial, the State called the victim, and three other witnesses including a medical doctor. In addition, it admitted into evidence a medical report through the doctor which is the only exhibit in this case and is marked "A". 

The victim recalls that, on 2nd May 2003, she was heading for the Vanimo town in a vehicle driven by an Asian by the name of Lee. When they reached the Blackwara Bridge, the bridge had broken down. Hence, they could not drive across in the vehicle. So she crossed the river by foot and got in a Jinker truck and went to Town. 

In Town, she did some shopping and returned on the Jinker truck back to the broken down bridge. She crossed the river on to the other side again by foot. At the site of the broken down bridge, she saw a George Kori amongst a group of people working on the bridge. When George saw her, he called and she went and stayed in his vehicle. George was waiting for the work on the bridge to complete so he could go and pick some teachers before returning.

As she was waiting, George asked if she could buy him a soft drink and she agreed to do that and asked him to drive her to a store. As they were trying to take off, a group of men or boys who were at the back asked George to leave her in their hands. He refused saying if he did that, he might get into trouble as she came with some body and not on her own. She and George went to a store bought a soft drink, returned to the bridgework site, and waited for the workers to fix the bridge. As soon as that, happened, they went and picked some teachers then left, with the group of men following them in motor vehicle, a green double cabin.

After dropping off the teachers, she and George continued again with the group of men following them. They managed to leave the group of men behind with the lights from their vehicle getting dimmer. The witness and George continued and arrived at George’s house. Then from there, to Hua Camp, where George left her with another married women. There she stayed over for the night.

In the morning of the next day, 3rd May 2003, the witness got up and was on her way to pick up her belongings. As she went along, she saw the same vehicle that followed her and George coming again with the lights of the vehicle on. As the vehicle got nearer to her, the group of men in the vehicle pointed their fingers at her and she got frightened and started to run for safety. She continued and the group of men chased her all the way to Michael Ori’s house. She entered that house but the men outnumbered him and its occupant and so he could not help her. Therefore, she jumped out of the window. The men continued to chase her with a bush knife. 

She continued to run away from the men and she reached an Asian man’s house. There she opened the shower room, went in and locked herself in. However, a shorter boy amongst the men identified her by the colour of the shirt she wore that day through a small hole. The men then proceeded to push on the door and demand to her to open the door and get out. If she did not comply, they threatened to get inside and chop her. Out of fear, she opened the door and got out. As soon as she came out, two of you men who she identified as Eki Kondi your offsider, Kelly Sop Kondi armed with a bush knife each, took her by her hands and dragged her out through the main door of the house and into the vehicle, the same one she saw the previous day at Blackwara. This happened so fast. 

You then wound the glass up and drove off with her, until you reached the junction of the road leading to Samararu village. There you parked the vehicle. The driver who she identified as Eki Kondi by pointing you out in the accused box, took her out into the nearby bush. There you removed all of her cloths except for her bra. You then proceed to rape her. After you finished, the rest of the men or boys took turns in raping her. The second person she was able to identify as the person in black and white shirt in the accused box, and that was you Issac Sip and the third one was Kelly Sop Kondi by pointing you out in the accused box as well. After the third, the burden of three men already raping her in turns rendered her into sweating and dizziness. As such, she was not able to identify the fourth and the subsequent ones although she was able to tell about eight men taking turns in raping her. During the ordeal, she was not able to help herself in any way as her rapists held her down tightly. 

After having satisfied themselves, the rapists left with her cloths, even though she asked for them. Then a shorter boy gave her a jersey with a number 9 on it. She wore that and that person led her to a river. There he asked her to wash. She thought the boy was going to help her but he too raped her. After satisfying himself he took her to a place were some people were cooking banana. 

At the banana-cooking place, she was offered a banana and she ate one. Then one of the boys said to the rest that he would take her and asked them to leave. She thought he was going to help her but that turned out to be a false hope. He too raped her. After he had raped her, he gave him his cloths a short and shirt to wear. He then took her to the road. 

All of these took place during broad day light between, 8:00am and 12:00 noon. 

As she and the last of her offenders approached the road, she heard the sound of a motor vehicle, but the boy forced her to hide in the bushes and she did. Once the vehicle had passed by, she and the boy continued until they came to a village next to a pile of logs. There she was asked to hide as a vehicle was approaching. She managed to call for help and the vehicle a Jinker truck stopped. 

She found out the vehicle was driven by Michael Ori. He was accompanied by his wife. It was the wife who heard the victim’s call for help and told Michael to stop and he did. They took her to George Kori’s house but found that the door was looked so she went and stayed in a Cloudy’s house. There she was given a soap and towel to wash and she did. She was also given cloths to wear and food to eat.

In the morning of the next day, George Kori took her down to Vanimo Town where she reported the matter to police. The police informed her that they had already received a report on the incident from other persons. There she formally laid her complaint and was later taken to the hospital for a medical check-up and treatment. 

She said under cross-examination that, she never knew any of you before the commission of the offence. The only times she saw you was when you committed the offence against her, and earlier on 2nd May 2003. Also, under cross-examination, she stated that the window glass of your vehicle, were wound down and she could see Eki Kond being the driver, and his crew, two others in the back seat and two others at the back tray. 

(ii)	Second State Witness – George Kori

This witness is an employee of the Vanimo Forest Products Company, here in Vanimo. His evidence confirms most of what the victim has said with regard to the events at the broken bridge at Blackwara and driving her to Hua Camp on 2nd May 2003, with you following them in your vehicle. He also confirms taking the victim to the police at Vanimo on 4th of May 2003 after the rape on her. 

He has improved on the victims evidence by saying the double cabin that was at the Blackwara was owned by Morris Kondi and that Eki Kondi was the driver by pointing you out in the accused although by name he said it was Tony Kondi. Under cross-examination, this witness said he came to know Eki Kondi (Tony Kondi) as one of the landowners. He also clarified that you followed him in your vehicle to a community school where he was dropping of teachers. From there, he headed for Hua on high speed and in that way, he left you behind.

He was however, not able to recall and or confirm, having told stories with you or you talking to him on 2nd May 2003, at the Blackwara where the bridge was. Also, he could not recall, seeing any other person with Eki Kondi at the Blackwara bridge works site. 

(iii) Third State Witness – Lyna Ori

This witness is the wife of Michael Ori. She lives at the Hua Camp. Her testimony is that on the morning of 3rd May 2003, the victim went to her house saying that her bag was with the witness and her husband and she wanted to pick it up. The witness told the victim that, that was not true, because they did not have her bag, whereupon the victim walked away.

The witness then went and emptied her rubbish bin and as she was on her way back she saw the victim running from behind the house. She could not tell where the victim was headed. When the witness got to her house, she saw Eki Kondi stand on the doorway of her house with a bush knife. As the witness got closer to you, Eki Kondi, you said to her that she was hiding a lady, in her house. She responded negatively and invited you to check the rooms if you wished. You responded then that, if you do not find the woman, you would return and see her.

The witness knows Eki Kondi well including the fact that you come from Samararu. She confirmed this by pointing at Eki Kondi correctly, and saying under cross-examination that she came into contact with Eki Kondi on a number of occasions before, and that you used be hanging around with boys in the camp. 

When asked as to how Eki Kondi got to the Hua Base Camp, she said by a motor vehicle judging from the sound of a motor vehicle and your leaving in a motor vehicle. Further, under cross-examination, she said because her knowledge of him and vise versa Eki Kondi could not have threatened her. However, on this occasion, he was interested in the woman and was prepared to issue threats in the way he did. Attempts under cross-examination was made to cast doubt on her identification of Eki Kondi, and a number of questions were repeatedly put to the witness, but she maintained her evidence and clearly stated that, she was not mistaken in her identification of you. 

(iv) Medical Evidence

The final State witness was doctor Warangi. He is a qualified medical doctor with a specialty in surgery. He is the doctor who conducted an examination of the victim when she went for a medical examination. After his examination he did a report on his findings, a copy which is in evidence as exhibit "A". 

The report, reports of no bruises and physical injuries and absence of any spermatozoa and the hymen. In the doctors, oral testimony he stated that a female of the victim’s age would not have her hymen intact. He also testified that, sperm cells could live after an ejaculation generally for about 4 hours and be present generally up to 48 hours. Further, he testified that, a female of the victim’s age, could be raped by a group of about 10 men and still shows no signs of any physical injury, such as bruises or injuries to her genital area.

Defence Evidence

I now turn to your own evidences in your defence. I start that process with Eki Kondi and proceed in the order in which you are named in the indictment.

(i)	Eki Kondi

You are from Samararu village, here in the Sandaun Province. You own a large portion of land and part of the population in Vanimo knows you. 

According to your recollection, on 3rd May 2003, you were in your village the whole day building a house. You did not tell this to the police because you claim that they did not explain. Given your non-involvement, you know nothing about the abduction and rape charges against you. In addition, you testified that you do not know anything about the victim and the witnesses who have testified against you. Given these, you were surprised when the police came and picked you up from your house and took you to the police station were you were arrested, charged and then kept in custody and brought into Court for your trial. You go on to say under cross-examination that, at no time until in Court were you told of the reason for your apprehension and eventual arrest.

Further, in your evidence in chief you stated that you do not know any of your co-accused. However, when asked under cross-examination you suggested not knowing these persons on the day of the offence.

Furthermore, you testified that you have a number of brothers and sisters and other relatives. Nevertheless, no one was with you on that day. In addition, you were not able to confirm if any one in the village saw you in the village on the day in question. 

(ii)	Mike John

You also come from Samararu village. You are single and live with your mother in the village.

Your testimony is similar to that of Eki Kondi’s. The only difference is that you claim being sick and sleeping the whole day, on 3rd May 2003 in your village. That fact you say, was known by your mother but she did not and does not know that you were picked up by police, taken to the police station and have been charge with the rape of the victim. Instead, she knows even at the time of the trial that you are sick and still in the house. Yet you say she knows that you are in Vanimo Correction Service. 

(iii)	Allan Nemo

You too come from Samararu village, here in the Sandaun Province. At the time of the offence, you say however that, you were in your house at the Musipi Settlement. Your evidence is similar to that of Eki Kondi and Mike John with a few variations. 

Firstly, you say on the day of the offence you were in your house at the settlement. You initially said, you told the police about this but they did not write it down. Later you change that to say you did not tell the police about being in your house. You also change your earlier story of police not recording to one of recording it. You testified also that, you refused to sign the record of interview because, you were not involved in the trouble. 

Secondly, you said your brothers and sisters knew you were arrested and charged for this offence. However, you were not able to tell if any of them saw you staying in the house that day.

(iv)	Kelly Sop Kondi

In your testimony, you say you are a married man with 4 children. You come from the same village as the first three accused persons. In fact, you are a distant cousin of Eki Kondi. However, on the day of the offence, you say you were at the Musipi settlement with your wife and children. The rest of your testimony is similar to that of the first three witnesses.

The only variations are that, your neighbours saw you at the settlement, that you were apprehended by police on 7th May 2003, and that you were arrested as a suspect for the rape of the victim. In addition, you stated that you tried to tell the police about your innocence but they refused to believe you. Therefore, you did not tell them about being at your house in the settlement, but did instruct your lawyers in those terms.

(v)	Issac Sip

You say that you come from Ningra, here in the Sandaun Province. Your testimony is similar to your co-accused. The only variation is that you say you were in your village on the day of the offence. This was known, by your relatives and others in the village at the time. You recall informing the police of being in the village and therefore not responsible for the offence of abduction and rape of the victim.

Arguments of the Parties

There is no dispute that an abduction and rape of the victim did take place as alleged by the State based on which I have already made findings in those terms. The only issue is whether you were the ones that committed these offences. You submit through your lawyer that, the State failed in its obligation to establish the charges against you on the required standard of prove beyond any reasonable doubt. 

In making that submission, you point out that none of the State witnessed positively identified you as the offenders with the exception of three of you, Eki Kondi, Kelly Sop Kondi and Allan Nemo, whom the victim and the other State witnesses identified. Further, your lawyer argues that, your identification by the victim in Court is unfair and that the Court should not act on it because, you were the only persons that were charged with the offences of abduction and rape against her and were in Court for the trial. Therefore, it was easy for her to identify you as the perpetrators of the offences against her.

The State submits however, that it has established its case on both charges on the required standard of proof. This submission acknowledges that it may have been unfair for the victim to identify you in Court. Nevertheless, it submits that, when viewed together with the other evidence, the unfairness no longer exists as at the very least, one of you were positively identified by the victim and independently supported by the other witnesses as part of a group of men that abducted the victim.

Assessment of the Evidence

(i) Principles Governing

Which of these arguments, the Court should accept, is a question that is dependant on the evidence. The rejection or acceptance of any evidence produced in Court is dependant on a number of factors or principles. In the present case, four of these principles are relevant.

The first is the requirement that, there must be consistency in a witness evidence and other evidence called by a party. In The State v Peter Malihombu, I found amongst others that there were a number of inconsistencies in the prosecution’s evidence. I found those inconsistencies serious enough to cast a serious doubt on the case against the accused. Accordingly, I found that the prosecution did not establish its case beyond any reasonable doubt. Many other cases have considered and applied this test. Some of the examples are the judgments in The State v Kevin Anis & Martin Ningigan, The State v. Onjawe Tunamai and Jimmy Ono v. The State. 

These and other authorities make it clear that, where serious inconsistencies exist, there is the possibility of false testimony and therefore unsafe to act on. 

The second is that, the evidence given must be consistent with logic and commonsense. I restated the law in The State v Cosmos Kutau Kitawal & Anor (No 1) in these terms:

"Logic and common sense does play an important part in either the rejection or otherwise of evidence before a court of law and whether or not an accused person should be found guilty." 

This was a restatement of the law and its application in The State v. Gari Bonu Garitau and Rossana Bonu, by the National Court and affirmed by the Supreme Court in Garitau Bonu & Rosanna Bonu v. The State. Early statement of and an application of this principle are in cases like that of Paulus Pawa v. The State.

The third concerns the performance or the demeanor of the witness in the witness box. An application of this principle decided many cases in the past. Examples of these are, cases like that of The State v. Tauvaru Avaka & Anor and Gibson Gunure Ohizave v. The State.

The fourth concerns belated claims of alibi. The Supreme Court in John Jaminan v. The State (N0.2) [1983] PNGLR 318 at pp. 332-333 per Bredmeyer J state the relevant principle in these terms: 

"…the alibi was delayed or belated and that reduces the weight that should be given to it. The accused failed to give it when questioned by the police initially or later at the District Court committal. A trial judge should not infer guilt because the accused remained silent on those earlier occasions. The accused has a right of silence, but mindful of that, a trial judge is entitled to say that the lateness of the alibi reduces its weight: see Ryan (1964) 50 Cr. App. R. 144 at 148 and Hoare [1966] 50 Cr. App. R. 166. As a matter of law he has a right of silence on both occasions but as a matter of fact — and here we are dealing with facts — its belatedness reduces its weight. If the accused is telling the truth that he was not at the hotel with the prosecutrix, that he was with Akai Kup going to and from Kelua village, why not tell that to the police so that they can check out the story when memories are fresh. In a judge and jury jurisdiction it is permissible for the prosecutor and the judge to comment on a belated alibi in distinctly unfavourable terms. In our jurisdiction it is permissible for a judge to say that one of the reasons why he disbelieved an alibi is that it was belated. The trial judge in this case did not say that, but on the appeal, in considering whether the trial judge’s decision on guilt was "unsafe and unsatisfactory", it is a factor against the accused."

(ii) Your Case

Bearing these principles in mind, I now proceed to assess the evidence before me. In this context, it is important to note and take into account the undisputed facts. There is no dispute that there was an abduction and rape of the victim by a gang of men or boys on 3rd May 2003 at Samararu, here in the Sandaun Province. The only issue is whether you were the ones that committed these offences. 

The victim gave evidence of having seen Eki Kondi by facial recognition. She initially saw you at the Blackwara Bridge. Thereafter she saw you at the Hua Base Camp from where she says you abducted her. The next time was in the vehicle driven by you from Hua Base Camp up to the Samararu road junction. Thereafter it was at the time when she says you took her out of the vehicle at the Samararu road junction area and into the bushes. The final opportunity was when you removed her cloths and raped her.

She similarly recognized and identified both, Kelly Sop Kondi and Allan Nemo. I note however that, the victim’s first contact and seeing Allan Nemo was when she says you raped her as the third person. As for the rest of you, she did not directly identify you but did say there were others both inside the cabin of a green double cabin motor vehicle, initially at the Blackwara Bridge and later at the point of her abduction and rape. Although she could not clearly see and recognize the others as soon as the third person finished raping her, she could tell about 8 men raping her before the further rapes on her by two others.

I note that prior to coming into Court, she did not pick you out of an identification parade or anything like that. Instead, the first time she has seen you again after the commission of the offences was in Court during your trial. Here is where the essence of your argument is. Your lawyer referred the Court’s attention to the Supreme Court judgment in Michael Mini v. The State. Based on this case, your lawyer argues that the identification of you in the accused box in the Court was unfair.

In the case cited, following a rape incident, the Police took the appellant into the police cells three days later. This was after a failed identification parade that included the appellant shortly after the commission of the offence. On the police prompting, the victim identified the appellant as her assailant at the police station. He was the only male person from the highlands with a bandage on one of his fingers present for identification and she identified him as one of the offenders. In the incident, the victim bit the fingers of one of her assailants.

The Supreme Court held that:

"This whole process of identification was grossly unfair to the appellant. First, the complainant was prompted by the police to make the identification and secondly, the appellant was the only person to be identified. No one has to be a mental giant to conclude that the chances of the appellant being identified were nothing but great."

Your case is distinguishable from the case cited on a number of fronts. First, in that case, there was an earlier failed identification attempt shortly after the incident. Secondly, the appellant was the only person placed in the police cell for identification by the victim, with the obvious features. Thirdly, there was prompting of the witness by the police to identify the appellant. Finally, this happened in the police station and not in a Court, in the course of a trial.

In your case, none of these facts exist. The victim came into Court and gave her evidence. In the Court were you men in the accused box, there was the court reporter, the lawyers, the associate, Correction Service officers, the interpreter and others. Hence, this was not a case of you alone being place in a room to be identified by the accused. In addition, there was no prompting either by counsel for the state or anyone to ensure that the witness identified only you men as her assailants. Indeed, the relevant question and answer demonstrates this very clearly as would be apparent from the following sample of questions and answers:

"Q.	Do you know the people who came and told George to leave you with?
A.	Yes.
Q.	Who were they?
A.	Those people on the other side, points to the accused in the accused box.
Q.	Were you able to see who was the driver?
A.	Far left pointing to Eki Kondi."

Further, you did not have with you any easily identifying features that stood out clearly when compared with the other persons in Court. Furthermore, if not withstanding the Court’s record of what transpired, there was any leading of the witness, there was nothing preventing you through counsel to object. There is no record of you taking objection to any questions asked by the State.

Another factor that distinguishes the case cited by your counsel from your case is that, it is not clear whether there was any other evidence on the question of identification. However, going by what is in the judgment, it appears there was nothing apart from the victim’s restricted and prompted identification. In the presented case, apart from no prompting and restricted or staged identification, there is the evidence of the second and third State witness. These witnesses identified you by recognition at the Blackwara Bridge on 2nd May 2003 by the second witness. The third witness identified Eki Kondi on 3rd May 2003. Both of these witnesses identified you both by sight and recognition of a known person and identified Eki Kondi in the accused box.

I therefore reject the argument that your identification by the victim and the other witnesses in so far as that is relevant, was unfair. Rather, I find that you have been fairy identified. However, that is not the end of the matter; the Court still needs to decide whether the evidence on your identification is sufficient. 

Clear principles govern the way in which identification evidence should be treated and acted up on. In The State v. Marety Ame Gaidi, I summarized the principles that are applicable in these terms:

"1.	It has been long recognised that, there are dangers inherent in eyewitness identification evidence;
2.	A trial judge should warn the jury in the case of a jury trial system or himself as in our case, of the special need for caution before convicting in reliance on the correctness of the identification because for example:
(a)	a convincing witness may be mistaken; or
(b)	a number of witnesses could be mistaken;
3.	Provided such a warning is given, no particular form of word need be used;
4.	There should be a specific direction to closely examine the circumstances in which the identification was made;
5.	Identification by recognition may be reliable but one need to be cautious because there can be mistakes in trying to identify close relatives and friends;
6.	All these go to the quality of evidence – if the quality of evidence is good the identification may be reliable. If however, the quality of evidence is bad, the identification will be bad; 
7.	The quality of the evidence may be poor if there is a fleeting glance or a longer observation made in poor conditions; and
8.	There should be an acquittal if the quality of the evidence is bad."

In accordance with these principles, I warn myself of the dangers that are inherent in identification evidence that the witnesses testifying against you may be mistaken in their identification of you as the perpetrators. It is therefore necessary, for me to consider closely and carefully the evidence identifying you and the circumstances in which your identification was made.

Accordingly, I note that the offences of abduction and rape were both committed during broad day light. The citation of Eki Kondi and other men or boys in a double cabin motor vehicle was also during day light the previous day then developing into the evening. The victim came face to face with her assailants during broad day light. The victim had numerous occasions as already pointed out to see and recognize the face of the leader of the gang Eki Kondi who was also the driver not once but over a prolonged and repeated encounters. Further, by the very nature of the offence, this was a close physical encounter with the victim and her assailants. Eki Kondi led the attack on her and it included Kelly Sop Kondi and Allan Nemo. You all came face to face with the victim. Hence, it was not a fleeting glance. There is no evidence of any masks or anything like that, making identification by the victim of you difficult. Similarly, there is no evidence that the weather was such that identification of any one of you even with a close physical contact with the victim was difficult. Furthermore, there is no evidence or a suggestion put to the victim and the other State witnesses that their eyesight was bad or that they did not have a good opportunity to make any identification. 

In addition to the above, I note that, there has been no serious challenge on the credibility of any of the State’s witnesses and their evidence. No reasons has been sufficiently disclosed in cross-examination and later in your evidence in terms of the victim’s and the other State witnesses having a reason to come into Court and falsely accused you. Indeed I note in your own evidence that, you have nothing against them and they have nothing against you that could form the basis for a false claim against you. 

Further still, I closely observe the demeanour of the State witnesses and their evidence, particularly on the issue of identification. If the victim was out there to get all of you convicted on the charges you are faced with whether or not you in fact committed them, there was nothing preventing her from saying, she saw all of you at the time of your committing the offences against her. Instead, she was only able to say who she was able to identity during the close physical encounter of the rape on her by more than 8 men or boys. She was only able to see the first three, namely, Eki Kond, Kelly Sop and Allan Nemo. As for the others, she already had the impact of the gang rape on her and that caused her to feel dizzy and could not tell the identification of the others. In the circumstances, I find her as a truthful and reliable witness and therefore her evidence.

The second and third State witness, corroborate the victim’s evidence particularly in relation to the identification of Eki Kondi with the vehicle he was driving. The medical evidence from Dr, Warangi also lends support for a case of rape, in that he says, even though there was no evidence of bruises and other physical injuries the possibility of her being raped could not be ruled out. In arriving at that view, I note there are some inconsistencies in some aspects of the State’s witness’s testimonies. However, I note these are not serious enough to cast any doubt on the main issue for trial. Indeed, I note you do not make anything out of these, which I take is an acceptance of the view I have just expressed.

In these circumstances, I came to the preliminary view in the context of a no case submission by Mike John and Issac Sip that, the identification evidence was good and that there was no possibility of the witnesses making a mistake in the particular circumstances in which they made their identifications. I also formed the view that, there was a prima facie case for you all to answer. 

I arrived at that view, noting that the evidence, I decided to accept, clearly showed that, Eki Kondi was leading a group of men or boys using a motor vehicle to assist in the commission of the offences. In arriving at that view, I was guided by the approach of the National Court in The State v. Gari Bonu Garitau and Rossana Bonu, as affirmed by the Supreme Court in Garitau Bonu & Rosanna Bonu v. The State, and such other cases. In that case, the National Court found the accused guilty on circumstantial evidence, which they were not able to rebut. 

In your case, the evidence identifies Eki Kondi, Kelly Sop Kondi and Allan Nemo as the offenders. The evidence also suggests that the whole of you were at the Blackwara in the same vehicle that went to the Hua Base Camp and abducted the victim. Thus, in absence of any evidence, to the contrary, it was reasonable to infer that after failing in your attempts to take the victim on 2nd May 2003, you all returned on the following day to execute your joint enterprise. This was, in my view, the only reasonable inference open to the Court. I have now carefully re-considered the evidence before me and I find there is no reason for me to move away from that view. Accordingly, I confirm these views subject to a consideration of your evidence in rebuttal.

In a bid to rebut the prima facie case against you, each of you went into evidence. In so doing, all of you raised belated alibis by claiming that you were elsewhere and not at the scenes of the crime committing the offences. The law in a situation like that is very clear. The Supreme Court spelt that out in John Jaminan v. The State (N0.2) in these terms:

"…the alibi was delayed or belated and that reduces the weight that should be given to it. The accused failed to give it when questioned by the police initially or later at the District Court committal. A trial judge should not infer guilt because the accused remained silent on those earlier occasions. The accused has a right of silence, but mindful of that, a trial judge is entitled to say that the lateness of the alibi reduces its weight."

What this means is that you were required to put to the State’s witnesses, that you were not at the scenes of the two crimes and committed the offences as you were elsewhere. This is necessary and required in our system of justice so that, in fairness the State witnesses are given the opportunity to comment on your alibis and then decide to either withdraw or maintain their testimonies. In my view, an accused person would readily do that, if there is any truth and merit in such claims, as he would have nothing to fear save only to allow truth to prevail. A failure to do that results in a reduction of the weight to be attached and the reliability of his testimony. 

Not only do I find that you all raised belated alibis, but you have not called any evidence to support your claims, particularly when the Court has ruled in terms of a prima facie case against you. Further, your accounts of your whereabouts are incredible. Eki Kondi says, for example that he was in his village the whole day building his house. If this is true, he would have attracted the attention or if not, the assistance of one of his siblings or the relatives. It is common in our society that the building of a house usually attracts the attention and or the assistance of other family members and relatives or a friend. It is surprising in this case, that no one helped you and that no one is able to testify for you.

The same consideration with necessary modifications applies to the rest of your claims. Further and interestingly, your evidence in the main part is essentially the same. I carefully observed each of your performances in the witness box and before that in the accused box as the State, witness and your co-accused gave evidence. You made negative facial expressions when evidence going against you were being presented. I got the distinct impression from your spoken and unspoken expressions that you have all planned to give the kind of evidence you gave. Then when it came to actually giving the evidence, you quickly proceeded to stating your evidences in almost the precise terms except as to your belated claims of being elsewhere. 

Further, some of you made very obvious and rudimentary mistakes. Mike John for example, continued to maintain that your mother knows that you are in the house sick even as at the time of the trial although she also knows that you are in custody. Furthermore, under cross-examination, Allan Nemo for example, quickly returned to his whole evidence in chief instead of answering the questions that were put to you. Still further, even though all of you except for Issac Sip, come from the same village you immediately claimed lack of any knowledge of each of your co-accused. 

These factors are suggestive in my view, of only one thing; you were all involved in the commission of the offences with which you have been charged. In a bid to avoid, the responsibilities that follow your actions, you came up with belated claims and gave evidence that are inconsistent with any sense of logic and commonsense. You have demonstrated yourselves to be unreliable and prepared to give testimonies in Court under oath that are not credible. Accordingly, I find that you all have failed to rebut the prima facie cases against each of you. 

I therefore return a verdict of guilty on both counts of abduction and rape of the victim. I order that you be remanded in custody awaiting your sentence. A warrant of commitment in those terms shall be issued forthwith.
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Lawyers for the State:				The Public Prosecutor
Lawyers for the Accused:			The Public Solicitor