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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR 13 OF 2006
THE STATE
-V-
JASON BALENG
Madang: Gavara-Nanu, J
2006: 3, 4, 5, 6, 11, 17, 20 & 23 October
CRIMINAL LAW – Evidence – Rape - Grievous bodily harm –Identification– Accused well known to the victim – Inherent dangers – Need for caution necessary as a matter of good practice – S.352 of Criminal Code Act, (as amended) - False alibi - Corroboration.
CRIMINAL LAW – Witnesses – Demeanour– Evidence - Fabrication – Witness giving evidence after sitting in Court and listening to evidence given by other witness – What weight should be given to such evidence.
CRIMINAL LAW – Evidence – Circumstantial – Overall view of the evidence– Whether guilt is the only rational inference to be drawn.
Case cited:
Papua New Guinea Cases
John Beng v. The State [1979] PNGLR 115
John Jaminan v. The State (No.2) [1983] PNGLR 318
Paulus Pawa v. The State [1981] PNGLR 498
The State v. John Beng [1976] PNGLR 471
The State v. Tom Moriss [1981] PNGLR 493
Other cases:
Chamberlain v The Queen (No.2) (1983 – [1984] HCA 7; 1984) 153 CLR 521
R v Bold [1910] UKLawRpAC 59; (1911) A.C 47
Counsel:
J. Wala, for the State
A. Turi, for the Accused
1 Gavara-Nanu, J: The accused is charged with two counts; first, that he on 2 May, 2005, at Basken village in Madang Province, Papua New Guinea, sexually penetrated one Elizabeth Asan without her consent contrary to s. 347 (2) of the Criminal Code Act Chapter No. 262; second, that he on 2 May, 2005, at Basken village in Madang Province, Papua New Guinea, unlawfully did grievous bodily harm to one Elizabeth Asan, contrary to s. 319 of the Criminal Code Act.
2 The accused denied both charges and raised a defence of alibi, saying that on 2 May, 2005, he spent the whole day building his new house in his village with a number of his family members.
3 In order to better appreciate the geography of the area in which the crimes were allegedly committed, the Court decided to visit the alleged crime scene.
4 In the afternoon of Friday, 6 October, 2006, the Court party travelled up the North Coast Road towards Bogia, after about one and half hours drive, the Court party turned into a dirt road leading to Basken village. After about 30 to 45 minutes drive, the Court party arrived at Basken village where accused and the victim come from.
5 When arriving at the village, the first group of houses the Court party came across belonged to the victim and her family. Those houses are at the bottom of the hill on which the main Basken village is situated. To get to the accused house, one has to walk half way up the hill from the victim’s family houses and when going up the hill, the victim’s family houses are on the left.
6 On the right, about 30 meters up the hill from the victim’s family houses is the house belonging to Tamol Dod, one of the State witnesses. Also on the right, about another 20 meters up from Tamol Dod’s house is accused’s house-boy. This house is used by the accused and his male relatives. About another 25 to 30 meters up the hill from accused’s house-boy is where the main village is. This is where accused’s new house was being built on 2 May, 2005. The house is on the left side of the path that goes up the hill from the victim’s family houses. In other words, the accused’s new house is on the same side as the victim’s family houses but is on the hill. In between the victim’s family houses and the accused’s new house is a thick bush. Thus, the victim’s family houses are hidden from the accused’s new house by the bush. The distance between the victim’s family houses and accused’s new house is about 300 to 400 meters. The victim’s family houses and people moving in and out of those houses however can be clearly seen or observed from the accused’s house-boy.
7 To get to the village water point which is where the victim was attacked and allegedly raped, the people from the main village have to walk down the hill to the victim’s family houses then, follow a foot path which leads down to the water point which is in a valley below. The foot path meanders through old gardens and passes under coconuts, cocoa trees and bananas. The water point is at the edge of the old gardens and marks the start of a rain forest. The distance between the victim’s family houses and the water point is about 400 to 500 meters. The water point is almost at the very bottom of the hill and is completely hidden from the victim’s family houses. So almost at the very bottom of the hill is the water point and at the very top of the hill is the main Basken village. The victim’s family houses are half way between the water point and the main village.
8 The water at the water point flows out from the side of the hill and to draw water, the villagers have placed a hollow bamboo onto the side of the hill from where the water flows out, thus allowing the water to flow through the bamboo and onto the top of a large rock (‘the rock’). This is where the village people wash, do laundry and wash their dirty pots etc, etc. The end of the bamboo from which the water flows onto the rock is held up by another stick which is held up diagonally by two sticks which are stuck upright from the ground at both ends of the stick.
9 When the water flowing through the bamboo is allowed to flow directly onto empty dishes, the noise created can be deafening, and it would be difficult for a person washing dishes to hear anyone approaching the water point especially if the person is facing away from the foot path that leads to the water point.
10 The rock is about 3 meters in length and about one and half to two meters wide. From the top of the rock to a small creek (‘the creek’) in a valley further below is about 40 to 50 meters drop as the rock hangs over a thick undergrowth. The creek is bedded with smaller rocks and in between the rock and the creek is a thick layer of undergrowth and trees.
11 The Court party was able to go down to the creek, which is where the victim finally woke up and regained consciousness after she was allegedly knocked unconscious at the water point by her assailant. She is alleged to have been raped at the creek by her assailant while she was still unconscious.
12 The victim told the Court that, on 2 May, 2005, between 1 pm and 3 pm. she went to the water point to wash dishes. She said, she was sitting and washing dishes on the rock when the accused approached her from the back and held her on her shoulder, when she pushed his hand off and stood up to fight him, the accused attacked her with a bush knife he was holding. She said, the accused cut her with the bush knife on her face and head then punched her unconscious and the next thing she remembered was waking up in the creek. She did not know how she ended up in the creek but, one theory is that after she was punched unconscious, she was thrown over the rock by her assailant and she rolled down to the creek where she eventually rested. In fact this is the story she gave to the Court. But clearly that is what she thought happened because she did not know what happened after the accused allegedly punched her unconscious. The other theory is that, after knocking her unconscious, her assailant carried her down to the creek and laid her at the spot where she regained consciousness.
13 It is not disputed that the victim suffered knife wounds to the forehead, ear, head, back and the right forearm. She said, when she regained consciousness in the creek, she realized that the short she was wearing and her under-pant were torn. The short and the under-pant have been tendered in evidence. The material of the short is soft and can be easily torn even with slight force. It is like a sport short, light in weight and is the type that can clasp to the body. The tear in the short was on the inner side of the right thigh along the seam. The tear extended to the victim’s groin and her private part. The tear continued up towards the victim’s belly button and if the torn part was parted, it would completely expose the victim’s private part. The tear on the bottom part of the short did not go beyond the victim’s rectum.
14 The tear on the under-pant also followed the seam, but it was along the outer side of the victim’s right thigh and extended up to the waist band, thus it was wide enough to fully expose the victim’s private part if the torn part was parted. Thus with those tears in the short and the under-pant, it was easy for the victim to be sexually penetrated by her assailant.
15 The victim said, she was sitting on the rock and washing dishes and the water flowing onto the dishes from the bamboo created a lot of noise so she could not hear noise around her, including the accused who approached her from her back.
16 At the creek where she said the accused raped her, she demonstrated to the Court party how she was lying. From her demonstration, it was noted that her head was resting on a rock with her face facing upwards. In other words, she was lying face up. Her back and bottom were neatly positioned in between the rock where her head was resting and another large rock on which her two legs rested. Her legs were stretched out fully and were slightly parted. There were rocks on both sides of her when she laid in that position but not close to her body. Thus, the spaces on both sides of her body were big and wide enough for her to move her body and part her legs. Thus an assailant who was determined to sexually penetrate her could do so without any real difficulty.
17 After she regained consciousness at the creek, she managed to crawl up to the water point. She struggled to get there because she was very weak due to heavy blood loss from the wounds she received. She fell unconscious a couple of times before managing to crawl up to the water point. Her small sister and a couple of small girls who were going to the water point found her while she was crawling up from the creek. The girls ran back to the village and alerted her brother, Gabriel Asan. Gabriel told the Court that when he first saw the victim, she was lying on the ground with her body covered with blood. She was lying on her right side and her under-pant was exposed through the tear in the short. He noticed that the victim had multiple wounds to her body and was bleeding heavily and was only semiconscious. When he asked the victim who her assailant was, she told him that it was the accused.
18 After that, Gabriel and some other villagers made a makeshift stretcher and carried the victim to the village. In the village, the victim’s aunt, Hilda Aundo and other State witnesses changed the top she was wearing because according to Hilder, it was soaked with blood. At that time, the victim told Hilda that accused cut her with a bush knife and raped her.
19 Because there was no vehicle to take the victim to the hospital in town, she was carried on the same stretcher by Gabriel and other villagers to the North Coast road where they managed to get the assistance of a passing vehicle which took them to the nearby Mugil Health Centre. At the Health Centre, the victim was treated by a Health Extension Officer, Elijah Dabod. Gabriel gave the history of the victim’s case to the Health Extension Officer. The Health Extension Officer told the Court that when Gabriel gave the history of the victim’s case, he did not tell him that victim was also raped. Gabriel only told the Health Extension Officer that the victim was assaulted as a result he did not examine the victim for rape. The Health Extension Officer said it was against his code of ethical practices to examine the victim for rape, when no complaint or report was made about the victim being raped.
20 It should also be noted that victim’s aunt, Hilda to whom the victim complained at the village that the accused was the one who cut and raped her, did not talk to the Health Extension Officer, although she was one of those that accompanied the victim to the Health Centre. Hilda who also gave evidence for the State told the Court that when they arrived at the Health Centre, it was about 7.00 pm and the driver of the vehicle that took them to the Health Centre was rushing to return, so she did not have time to tell the "doctor" about the victim’s complaint to her that the accused also raped her. Hilda and others including Gabriel returned to Basken village in the same vehicle and left the victim at the Health Centre with her sister in-law.
21 It is also noted that Hilda was the only one that victim complained to about the accused raping her. It is further noted that Hilda did not tell others including Gabriel about the victim’s complaint.
22 The Health Extension Officer told the Court that when he saw the victim, wounds on her body were still fresh and she was still bleeding heavily and loosing a lot of blood. He said she was in a state of shock and her blood pressure had dropped significantly, so she had to be put on drips to raise the level of her blood pressure. He said the victim’s blood vessels in her right arm were also cut by her assailant so he had to clamp them then tie them. The wounds were then sutured. The Health Extension Officer said when he first spoke to the victim, she could not talk properly because she was very weak. He said, he only asked her about how she felt, he did not ask her about the history of her case because that was given to him by Gabriel. He said the victim also had swelling in her mouth which made it difficult for her to talk. The victim also had a long wound caused by a sharp object just below her ear, which also made it very difficult for her to talk and move her mouth.
23 It is appropriate to have a closer look at how the victim said the accused attacked her at the water point. She said she was sitting on the rock washing dishes facing the bush and away from the foot path that leads from the village to the water point. She said, because of the noise from the water flowing onto the empty pots, she could not hear the accused approaching her from the back. But, she sensed that someone was at her back so when she turned to see, the accused was already standing at her back. The accused then held her by the shoulder. She pushed his hand away and stood up and they started fighting, the accused cut her with a bush knife he was holding on the right side of her forehead just above the right eye brow. The accused then cut her on her right arm and punched her, causing her to fall unconscious. After that she did not know what happened to her. But, when she regained consciousness, she found herself lying in the creek below on top of the rocks. The spot she was lying as described earlier was about 40 to 50 meters further down in the valley from the water point. When she regained consciousness, she realized that her under-pant and short were torn. At that point, she felt in her vagina that she had been sexually penetrated. She lifted herself up from where she was lying and crawled on top of the rocks just above where she was lying only to fall unconscious again. She laid there for a while until she regained consciousness. She then started crawling up to the water point. On the way up to the water point, she felt unconscious a couple of times. She regained consciousness and managed to crawl to the water point where she was allegedly attacked earlier by the accused. She said, when she first regained consciousness at the creek, the accused had already gone. She said she had no doubt that accused hid her in the creek and left after raping her. It should also be noted that the creek is hidden from the water point by thick undergrowth and trees.
24 Two issues arise for determination. First, is the identification of the accused by the victim. If I decide this issue in accused’s favour then, that is the end of the matter. In other words, if I find that the accused had been wrongly identified by the victim then, I must acquit him of both charges. But, if I find against the accused and find that the victim had positively identified him, then it will follow that the accused was the one who attacked and wounded her on 2 May, 2005 at the Basken village water point. Second is whether or not the accused raped the victim. This issue still has to be determined even if I find that the accused was the one that attacked the victim at the water point. Both issues have to be decided from the overall view of all the facts and circumstances.
25 In regard to the issue of identification, I remind and warn myself that the evidence implicating the accused to both crimes is only by the victim. Her evidence stands alone. I further remind myself that there are inherent dangers in convicting the accused on the victim’s evidence alone as she could be mistaken in her identification of the accused. I must therefore be careful in deciding whether I should rely on her evidence.
26 The relevant principles to be applied in deciding the issue of identification have been succinctly stated by the Supreme Court in the well known case of John Beng v. The State [1977] PNGLR 115. At 124, the Supreme Court cited with approval an excerpt from the judgment of the trial judge in The State v. John Beng [1976] PNGLR 471, where at 476 to 477 the trial judge said:
"There is no rule of the 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 purpose of identification, nor is there any rule of law that in every case a warning must be given; it all depends upon the circumstances of the case before the court. Where the identification relied upon is that of a single witness it is proper that the jury should be informed that the identification "was critical, and that mistakes have in the past occurred in regard to identification, thereby occasioning a miscarriage of justice", and that they should be satisfied that the witness was not only honest but also accurate in the evidence he gave. Matters to be taken into account 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 when the identification was made, the lighting, the opportunities to form a judgment, and generally the circumstances in which the identifying witness formed his judgment as to identification".
27 Having regard to these principles, it is to be noted that the time of the day when the victim was attacked on 2 May, 2005 was about mid afternoon. It was a clear sunny day and the accused, according to the victim, was in a clear view and she saw him not only face to face but when they fought. Her observation of the accused was therefore not a fleeting glance. She said, she was cut with a bush knife by the accused a number of times in the course of the fight, before knocking her unconscious.
28 The identification of the accused by the victim also has an exceptional aspect, the accused was not a stranger to her. He was and is well known to her as they come from the same village. The accused himself referred to the victim in the Record of Interview as his cousin sister. But more significantly, the victim said, she was accused’s girl friend from 2001 to 2002. The accused confirmed that they were friends but said, they were friends from 1999 to 2002. Either way, this confirms that they were friends for a number of years before this incident.
29 Thus, in this case, the victim had recognized the person whom she knew very well. However, that does not mean I should not warn myself of the inherent dangers in accepting and relying on victim’s evidence alone. I further remind myself that the quality of identification of the accused by the victim must be good. See, John Beng –v- The State (supra).
30 It is relevant in this regard to note that the victim was positive and very sure of her identification of the accused. She had no hesitation in telling the Court that accused was her assailant. She demonstrated this from the day she was attacked when she told Gabriel at the water point when she was still in a state of shock and only semi-conscious, that accused was the one who attacked her. Based on that information, Gabriel went and confronted the accused later at his new house and told him that he was the one who attacked the victim.
31 Gabriel’s written statement to the police in this regard was tendered in evidence by the defence as part of its case. The statement shows that when Gabriel confronted the accused, the accused; "appeared terrified and remained silent." This evidence was repeated in the presence of the accused by Gabriel when the Court party went to see the accused’s new house during the visit to the crime scene.
32 Fiona Baleng, the sister of the accused who was the only other defence witness also told the Court that when Gabriel confronted the accused, the accused did not say anything. She said they were all surprised and only listened to Gabriel. She therefore corroborated Gabriel’s evidence.
33 Throughout the Court party’s visit to the crime scene, the victim continued to mention the accused’s name in the presence of the accused as she related to the alleged attack on her by the accused. The victim said the reason or the motive for the attack on her by the accused was to have sex because on three different occasions before the incident, the accused had asked her for sex but she refused.
34 It is not disputed that the friendship between the accused and the victim ended in 2001, and in 2005 or sometime thereafter, the victim started a new relationship with her current husband who also comes from the same village as the victim and the accused.
35 The victim said, in all three occasions when the accused asked her for sex, he approached her directly. The first of those occasions was near the accused’s house-boy. That time, the accused pulled the victim by her hand but the victim refused and shook his hand off. The second time was also in the village when the accused called the victim as she was walking, but the victim did not respond because she knew he was calling to ask her for sex. On the third and the last occasion, the accused was walking to a nearby bush near the village when he called the victim and told her to follow him but she refused. The first two occasions were about two months before the incident. Whereas the third and the last occasion was only two weeks before the attack on the victim, which means, it would have been about the second week of April 2005.
36 The prosecution therefore contended that accused had a strong motive for attacking the victim at the water point on 2 May, 2005, i.e to have sex with the victim.
37 As I alluded to earlier, the accused has denied the charges and has raised a defence of alibi, for which he told the Court that from 9.00 am to 4.00 pm on 2 May, 2005, he was in the main village with his father Henry Baleng, cousin brother George Gis and sister Fiona Baleng, building his new house. He said at 2.13 pm, they stopped work and had late lunch. He said none of them left the house even to go to toilet. He was adamant that they had lunch at 12.13 pm because he saw the time from his cousin brother’s watch.
38 The accused also denied the victim’s assertion that he had asked the victim for sex on three different occasions before the incident. He said when Gabriel confronted him at his new house in the afternoon of the day of the offences, Gabriel ran to him and swung a bush knife at him. He said he was still in his new house, so he jumped down to the ground from the house and fought with Gabriel and other people had to stop them. This was denied by Gabriel, who said he never held a bush knife, let alone swing a bush knife at the accused and fought with him. Fiona Baleng appears to have supported the accused’s story in part when she said Gabriel swung a bush knife at the accused.
39 The question that arises is; did the victim mistake the accused for someone else? In other words, was the victim mistaken in her identification of the accused? Or did the victim properly identify the accused as the one who attacked her and therefore the quality of her identification of the accused is accurate and good, which would mean the alibi defence raised by the accuse is false.
40 To answer these questions, it is appropriate that I have a closer look at the pertinent parts of the evidence given by the accused and Fiona which purport to lend support to accused’s alibi.
41 In his record of interview, the accused said from 9.00 am to 4.15 pm, on 2 May, 2005, he was with his father, an uncle, a cousin brother, and a cousin sister building his new house in the main village. At 2.13 pm they rested and ate the food his sister cooked. He denied that any of them left the house between 9.00 am and 4.15 pm. In the record of interview, he repeated six times that he was all the time with his "four" witnesses building his new house.
42 However, in his evidence in chief, he told the Court that he was building his new house with his father, a cousin brother, and Fiona. The uncle was not mentioned. In other words, only four of them including himself were working on the new house. When he was asked in cross-examination why he did not include his uncle, he said he was rushing his answers and forgot to mention his uncle. This was after he had confirmed to the Court a couple of times that there were four of them, excluding his uncle, building the new house.
43 Fiona’s evidence is that on 2 May 2005, she was alone in her family’s old house which was some distance away from the new house. She said she started cooking at 2.00 pm. However, in cross-examination, she conceded that if she started cooking at 2.00 pm, the food would have cooked by about 3.00 pm, thus 2.13 pm which accused mentioned as the time they ate lunch was too early. In cross-examination, she said her uncle was with them building the new house. As to time, she said she did not know how to tell time so the times given by the accused were correct.
44 Fiona contradicted the accused’s story where the accused said Gabriel confronted him and fought with him and other people had to stop them. Fiona’s evidence was that Gabriel and accused did not fight. She said Gabriel only swung a bush knife at the accused and left. Her story about Gabriel swinging a bush knife as I said earlier, supports the evidence given by the accused; but the evidence is hard to believe because they both said Gabriel got a bush knife and ran straight to the accused who was in the new house and swung the bush knife at him. The accused then jumped down from the new house to the ground. This evidence does not make sense, because how could Gabriel run straight to the accused and swing his bush knife at the accused while Gabriel was on the ground and accused was still inside the new house, which as the Court party observed was about three meters above the ground on stilts? This is a serious discrepancy in their evidence.
45 I observed Fiona closely in the witness box and she did not impress me at all as a witness of truth. Her demeanour said it all, especially in cross-examination and in re-examination. Needless to say that in cross-examination, she conceded that she had lied on oath. She also took very long pauses to answer many questions put to her by both prosecution and defence counsel in cross-examination and in evidence in chief.
46 It was clear from this that she was not telling the truth. She had clearly fabricated her evidence in an attempt to give a story that was similar to that of the accused. It was also confirmed later that she was present in Court at various times listening to the accused and State witnesses giving evidence. Her evidence has therefore been totally discredited and should not be given any weight at all.
47 This leaves the evidence given by the accused as to his alibi to stand alone. As I said, the accused’s evidence regarding Gabriel swinging a bush knife at him does not make sense. The relevant parts of his evidence appear as follows:
Question. What happened?
Answer: While we were working, I heard Gabriel shouting and coming.
Question. Where was he going to?
Answer: He was shouting and he faced me.
Question. What happened?
Answer: He swung the bush knife, I was on the floor of the new house, so I jumped down and he said to me "you are the one who cut Elizabeth".
48 This evidence also lacks logic because as I said, if the accused was still standing inside his new house, which as noted earlier stood about three meters off the ground on stilts; it was impossible for Gabriel to run straight to the accused and swing a bush knife at him.
49 I am also of the firm opinion that the reason why the accused made contradicting statements in his Record of Interview and before this Court regarding the number of people who were building his new house on the 2 May 2005, is because he was not sure who was building his new house as he was not with those who were building the new house. And the period he was not with the people who were building the new house ties up with the time when the victim was attacked at the water point. From Gabriel’s evidence, the accused would have, after attacking the victim, walked up the hill through the bushes and joined those who were building his new house at the main village. The accused therefore had the opportunity to attack the victim at the time given by the victim. This inference is supported further by Gabriel’s evidence that when he confronted the accused at the new house, he appeared frightened and kept quiet. Gabriel also told the Court that accused was the only one who appeared clean among those who were working in the new house when he confronted him. This is something which did not escape Gabriel’s notice. This evidence appears in Gabriel’s statement to the police. This can only mean one thing; the accused was not with those who were working in the new house. Surely, if he had been working whole day from 9.00 am to 4.00 pm, one would expect him to be dirty with sweat and dust. All these go to confirm that his evidence regarding alibi and Fiona’s evidence supporting his alibi are false. This means he has told lies to the Court in an attempt to establish defence of alibi. I have therefore come to the inescapable conclusion that accused was the one who attacked the victim at the water point in the afternoon of 2 May, 2005. The end result is that accused’s evidence as to his alibi is false, which also corroborates and further strengthens the victim’s story that accused was the one who attacked her at the water point. See, John Jaminan v. The State (No.2) [1993] PNGLR 318.
50 I am therefore satisfied that he was accurately and positively identified by the victim as the one who attacked her on 2 May, 2005. The quality of identification is good and I accept her evidence totally.
51 I wish to make one further observation about accused’s lack of response and how he appeared terrified and kept quite when Gabriel confronted him and told him that he was the one who attacked the victim at the water point. The inference to be drawn from that is that accused had a guilty conscious, thus when confronted by Gabriel, he had nothing to say in defence or even to deny it. If he was innocent, he would have immediately protested his innocence. Cross on Evidence at page 32 makes this point when remarking on what inference may be drawn in the absence of a response by an accused person in such situation:
"Reflections of this nature suggest that, before the assailant of a person is allowed to count against him, the circumstances must
have been such that an explanation was called for; and there must have been no apparent reason apart from a consciousness of guilt
for its absence".
52 I accept that accused had a motive to attack the victim, i.e to have sex with her. That can be reasonably inferred from the victim’s
story that on three occasions before the incident, the accused approached the victim for sex which she refused. The last time he
asked her for sex was in mid April 2005, i.e two weeks before this incident. This is significant because Tamol Dod one of the State
witnesses told the Court that on 18 April 2005, he saw the accused near the victim’s house at about 1.00 am with a bush knife
in his hand and he was only wearing under-pant. Tamol Dod’s evidence was denied by the accused but I have no reason to disbelieve
Tamol Dod. He said he recognized the accused in the moonlight so he called his name but the accused did not respond. It is to be
noted that Tamol Dod’s house is near the accused’s house-boy and as I alluded to earlier, their houses are on the opposite
side of the victim’s house, but are close to the victim’s house.
53 When accused was asked whether Tamol Dod had any reason to come to the Court and lie about him, the accused said he did not know of any reason.
54 To my mind, there was only one explanation why the accused was near the victim’s house at 1.00 am on the night of 18 April 2005. He was stalking the victim for sex. This view is reinforced by following factors:
55 The accused has denied asking the victim for sex on the three occasions, but I do not believe him. I accept the victim’s story.
56 The accused’s approach to the victim for sex on three occasions, to my mind strongly supports his motive for attacking the victim on 2 May 2005. The victim displayed not a slightest hesitation in suggesting the motive. When she was asked in examination in-chief the reason why the accused attacked her, she had no hesitation in saying that it was because she refused his requests for sex three times prior to the incident.
57 The use and the carrying of a bush knife by the accused on the night of 18 April, 2005 appears to be part of a conventional behaviour for the accused. There is evidence that on one of the three occasions when he approached the victim for sex, he was holding a bush knife and on 18 April, 2005 when Tamol Dod saw him near the victim’s house, he was again holding a bush knife. It was therefore not out of ordinary for the accused to hold a bush knife on 2 May 2005, with which he attacked the victim at the water point. All these corroborate the victim’s story.
58 For these reasons, I am satisfied beyond reasonable doubt that accused on 2 May 2005 unlawfully did grievous bodily harm to the victim and I accordingly find him guilty as charged in the second count.
59 I have decided to address the second count first because that is the order in which the issues have been raised before me.
60 I turn now to the first count, viz. whether the accused sexually penetrated the victim without her consent after he attacked her with a bush knife and knocked her unconscious at the water point on 2 May 2005. The evidence against the accused regarding this count is circumstantial and the law on circumstantial evidence is settled in this jurisdiction, and the law was stated succinctly in The State –v- Tom Moriss [1981] PNGLR 493, by Miles J. at 495, where his Honour said:
"I take the law as to circumstantial evidence in Papua New Guinea to coincide with what was said in the High Court of Australia in Barca v. The Queen [1975] HCA 42; (1975) 50 A.L.J.R. 108 at p 117:
"When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’: Peacock v. The King [1911] HCA 66; (1911) 13 C.L.R. 619 at p 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilty should be a rational inference but that it should be the only rational inference that the circumstances would enable them to draw: Plomp v. The Queen [1963] HCA 44; (1963) 110 C.L.R. 234 at p 252; see also Thomas v. The Queen (1960) 102 C.L.R. 548 at pp 605-606. However an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration, of all the facts in evidence: Peacock v. The Queen at p 661. These principles are well settled in Australia."
61 The Supreme Court adopted these principles in Paulus Pawa -v- The State [1981] PNGLR 498. They have been adopted in many other cases. Thus having regard to these principles, the question is; is the guilt of the accused the only rational inference the Court can draw from all the facts in evidence? Further, are the circumstances such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused?
62 What happened to the victim on 2 May, 2005, cannot be considered in isolation from other evidence or circumstances. Such evidence or circumstances include the past conduct of the accused, especially in regard to his sexual advances to the victim on the three occasions after they ended their friendship, then the attack on the victim on 2 May, 2005. These and other relevant facts and circumstances must be considered by the Court to determine whether the only rational reference that can be drawn from the overall facts and circumstances is the guilt of the accused. This approach was emphasized by the High Court of Australia in Chamberlain –v- The Queen (No.2) [1984] HCA 7; (1983-1984) 153 C.L.R 521 at 534 – 536:
The final question of law that arises is whether, in a case where the evidence is circumstantial, each fact on which an inference is sought to be based must itself be proved beyond a reasonable doubt. In considering this matter it is necessary to keep distinct a number of questions which tend to be confused. In the first place, the question arises whether the proper method of approach to the facts is for the jury to consider each item of evidence separately, and to eliminate it from consideration unless satisfied about it beyond reasonable doubt. Support for the view that that is the correct approach is to be found in an article on "Circumstantial Evidence" by Mr. T. C. Brennan K.C. which appears in the Australian Law Journal, vol. 4 (1930), p. 106, where the learned author, in the course of discussing a criminal trial held two or three years before in Victoria, said at p. 108:
"Mr. Acting Justice Dixon (as he then was), told the jury that the proper method of approach to the different facts was to take each one separately, and to ask ‘are we satisfied beyond reasonable doubt about (1)? If yes’, continued his Honour, ‘put it on one side for further consideration with the other facts; if no, put it out of your mind altogether. Then go on to consider (2) in the same way.’’’
What Dixon A.J. (as he then was) said, if the report is correct, may have been appropriate in the circumstances of the particular case, but it is clearly not right as a general rule. The duty of the jury is to consider all the facts together, at the conclusion of the case.
We have no doubt that the position is correctly stated in the following passage in Reg. v. Beble [1979] Qd R. 278, at p 289, that "It is not the law that a jury should examine separately each item of evidence adduced by the prosecution, apply the onus of proof beyond reasonable doubt as to that evidence and reject if they are not so satisfied". At the end of the trial, the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness "separately in, so to speak, a hermetically sealed compartment"; they should consider the accumulation of the evidence: cf. Weeder v. The Queen (1980) 71 Cr. App. R. 228, at p 231.
Similarly, in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider "the weight which is to be given to the untied force of all the circumstances put together": per Lord Cairns, in Belhaven and Stenton Peerage (1875) 1 App. Cas. 278, at p 279, cited in Reg. v. Van Beelen (1973) 4 S.A.S.R 353, AT P 373; and see Thomas v. The Queen [1972] N.Z.L.R 34, at pp 37 - 38, and cases there cited. In Plomp v. The Queen [1963] HCA 44; (1963) 110 C.L.R 234 it was argued that the motives of the accused could not be considered until it was shown by evidence that in some physical way his actions were responsible for his wife’s death. The Court rejected this argument. Dixon C.J. said (1963) 110 C.L.R, at p 242:
"All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged. There may be many cases where it is extremely dangerous to rely heavily on the existence of a motive, where an unexplained death or disappearance of a person is not other wise proved to be attributable to the accused; but all such considerations must be dealt with on the facts of the particular case. I cannot think, however, that in a case where the prosecution is based on circumstantial evidence any part of the circumstances can be put on one side as relating to motive only and therefore not to be weighed as part of the proofs of what was done."
If follows from what we have said that the jury should decide whether they accept the evidence regarding a particular fact, not by considering the evidence directly relating to that fact in isolation, but in the light of the whole evidence, and that they can draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference. Nevertheless the jury cannot view a fact as a basis for an inference of guilt unless at the end of the day they are satisfied of the existence of the fact beyond reasonable doubt. When the evidence is circumstantial, the jury, whether in a civil or in a criminal case, are required to draw an inference from the circumstances of the case; in a civil case the circumstances must raise a more probable inference in favour of what is alleged, and in a criminal case the circumstances must exclude any reasonable hypothesis consistent with innocence (see Luxton v. Vines [1952] HCA 19; (1952) 85 C.L.R 352 at p 358 and Barca v. The Queen [1975] HCA 42; (1950) 133 C.L.R 82, at p 104).
63 This case is somewhat unusual in that, there is no medical evidence to assist the Court in deciding whether the victim was raped. In this regard, it should be noted that s. 352 A of the Criminal Code Act (as amended) does allow for conviction without corroborative evidence. Thus the absence of a medical evidence to corroborate the victim’s assertion of being sexually penetrated without her consent would by law be not fatal. Nonetheless, in spite of the provisions of s.352 A of the Criminal Code Act, as a matter of good practice a tribunal of fact should in my view still warn itself of the inherent dangers in entering conviction against an accused on an uncorroborated testimony of a victim. I therefore warn myself of the inherent dangers in entering conviction against the accused based on victim’s evidence alone.
64 The victim told the Court that when she woke up in the creek, she felt (in her vagina) that she had been sexually penetrated or raped. She is a married woman and would no doubt know the familiar feeling after having sexual intercourse, thus I have no reason to doubt the credibility of her evidence. Taking this evidence together with accused’s past sexual advances to the victim, including the attack on her on May, 2005, I am compelled to accept her evidence that she was sexually penetrated in the creek without her consent. She said she believed that the spot in the creek where she laid is where the accused hid her and raped her. Thus the inference to be drawn is that she did not roll down to the creek from the top of the rock where she was attacked by the accused. She was carried to the creek. I will return to this point later. I have already described in detail the types of tears in the victim’s short and under-pant and it suffices to say that those tears are consistent with being torn by her assailant who was in a hurry to sexually penetrate her. I hold this view because the tears were straight and clean and along the seams in both short and under-pant and were right where her private part was, thus fully exposing her private part for easy sexual penetration.
65 As I alluded to earlier, the way she laid in the creek as she demonstrated to the Court party was easy for her assailant to sexually penetrate her. She said, she was raped in the creek because it was hidden from the water point. Who then could have sexually penetrated her in the creek? It must be remembered that the accused was her boy-friend for a number of years before they broke up. Therefore, in the period they were friends, there would have been times when they enjoyed sexually intimate relationship which may have involved sexual intercourse. The feeling of sexual intimacy towards the victim clearly continued with the accused after they broke up. This is evidenced by the three previous occasions when he made direct approaches to the victim for sex. I am of the firm opinion that those feelings for the victim culminated in the attack on the victim on 2 May, 2005, with the intention of having sexual intercourse with her after she refused his advances on three previous occasions. Unfortunately for him, the victim did not have the same feelings towards him, as was shown by her actions on 2 May, 2005, at the water point in trying to fight him off after he held her on her shoulder, which resulted in him attacking her with a bush knife and knocking her unconscious.
66 There is in my opinion a clear nexus between the accused’s behaviour in his sexual advances to the victim on the three previous occasions and the attack on the victim on 2 May 2005.
67 The last of those three advances being before the attack on 2 May, 2005, which was about the time Tamol Dod saw him near the victim’s house in the middle of the night on 18 April 2005. The last sexual advance the accused made on the victim of course was on 2 May, 2005, when he put his hand on her shoulder which she again refused, which led to her being attacked with a bush knife by the accused. All those sexual advances in my opinion tend to prove his guilt in respect of the second count. Phipson on Evidence, 4th Edition has something to say on this point. At page 327, the learned author says:
"In a criminal case the presence, ...or means, opportunity, preparation or previous attempts on the part of the accused to do an act; is knowledge of circumstances enabling it to be done, his declarations of intention, or threats to do it, or his enmity towards the injured party are admissible as tending to prove guilt".
68 The learned author in that passage echoes the principle uttered by Lord Atkinson in R v. Bold [1910] UKLawRpAC 59; (1911) A.C 47. At 68, his Lordship said:
"In an ordinary prosecution for murder you can prove previous acts or words of the accused to show that he entertained feelings of enmity towards the deceased, and this is evidence not merely of malicious mind with which he killed the deceased, but of the fact that he killed him... Evidence of motive necessarily goes to prove the fact of homicide by the accused as well his malice aforethought, in as much as it is more probable that men are killed by those that have some motive for killing them than by those who have not".
69 His Lordship’s remarks state a general principle, thus its application is not only confined to cases of murder. The principle can be applied in other criminal cases, like rape as in the instant case.
70 Therefore having regard to these principles the ultimate question is; is the guilt of the accused the only rational inference that can be drawn from the overall view of the facts and circumstances of the case? I have found that the motive behind the accused attacking the victim on 2 May, 2005, was to have sex with her. Such finding is based on the fact that the victim was accused’s girl friend for several years before 2 May, 2005; and not long before 2 May, 2005, he asked the victim three times for sex, last of which was about two weeks before the attack on the victim. Then on 18 April, 2005, the accused was seen standing near the victim’s house wearing only under-pant and holding a bush knife. Two weeks later, on 2 May, 2005, the accused attacked the victim, after she refused him when he held her on the shoulder. From these, it can be reasonably inferred that after knocking the victim unconscious at the water point, the accused carried the victim down to the creek then raped her. It would be absurd for me to find otherwise. After all, why would he go looking for the victim at the water point and hold her on her shoulder, then attack her after she resisted? These were done for sexual purposes. Furthermore, he was the only one with such strong motive. It is also reasonable to infer that accused carried out his intention by carrying the victim down to the creek and sexually penetrating her. The accused carried the victim down to the creek because it was hidden by trees and thick undergrowth. He could not sexually penetrate the victim at the water point because the water point is located in an open space which can be seen from a distance of about 30 meters from the garden. Thus the only rational inference I can draw from all these facts and circumstances is that accused is the one who sexually penetrated the victim in the creek. I also find that he then left the victim in the creek and walked up the hill through the bushes and joined his relatives who were building his new house in the main village, in a vain attempt to conceal his involvement in this crime.
71 I am also satisfied that the victim made a fresh complaint to her aunt Hilda Aundo after she was carried to the village. It must
be remembered that the victim was seriously injured, and was in no condition to talk. Her aunt was the first one she could confide
in. The Health Extension Officer said she had swollen mouth and was in great pain and shock, thus it was difficult for her to talk.
The victim also told the Court that she did not tell the Health Extension Officer about rape because she thought he was told by others
especially her aunt. Therefore no adverse conclusion can be drawn against the victim for not telling the Health Extension Officer
that she was raped.
72 I am aware that she said nothing about the accused raping her to her brother Gabriel who was the first person to talk to her at
the water point. I see three explanations for this, first, she was semi conscious and in a lot of pain and was bleeding heavily,
thus was in no condition to talk. Second, Gabriel only asked her about her assailant. Third, and more importantly, Gabriel was her
brother and it is commonly accepted custom throughout Papua New Guinea that the victim would have felt inhibited from telling her
brother about rape out of shame. Her aunt being a woman provided the first opportunity for her to complain about accused raping her.
Accordingly, nothing adverse can be said about her not making a complaint to Gabriel at the water point.
73 I should remark on accused’s demeanour. I have watched the accused closely in the witness box. He struck me as someone who is prepared to lie. He was aggressive in his answers to questions put to him in cross-examination and was clearly agitated by questions aimed at probing and challenging his credibility. The impression he gave me is that he is someone who is easily provoked and has a violent disposition. He is a tall strong young man and with such violent nature who can easily resort to violence if confronted or challenged physically and I have no doubt that, that is what happened on 2 May, 2005, when the victim tried to fight him off after he put his hand on her shoulder.
74 For all these reasons I am satisfied beyond reasonable doubt that accused on 2 May 2005, sexually penetrated the victim without her consent.
75 I therefore, find the accused guilty as charged in the first count.
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused
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