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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR No.313 OF 2010
THE STATE
V
DARREN SOMALI & RICHARD TROPI
Madang: Kawi, J
2010: 17th, 22nd and 25th June
CRIMINAL LAW - aggravated rape- section 347(2) Criminal Code- Accused persons in company of each other and acting in concert with
others- Circumstances of aggravation alleged- use of physical violence to attack victim-inserting penis into mouth of victim amounts
to sexual penetration,- inserting fingers into vagina of victim also amounts to penetration- lack of consent- visual identification
of accused persons- principles of identification- No case submission- Principles of-Accuseds have a case to answer.
Cases cited in judgement:
State –v- Paul Kundi Rape [1976] PNGLR 96
The State -v- John Beng [1976] PNGLR 471
R -v- Raymond Turnbul ( 1976) 63 Cr App R 132
John Beng -v- The State [1977] PNGLR 115
The State -v- Misimb Kais [1978] PNGLR 241
The State -v- Roka Pep [1983] PNGLR 19
The State -v- Roka Pep No.2 [1983] PNGLR 287
Counsel
Mr D. Mark, for the State
Mr M. Mwawesi, for the accuseds
RULING ON NO CASE TO ANSWER SUBMISSION
25 June, 2010
1. KAWI J: The two accused have been charged for aggravated rape of one LK pursuant to S 347 (2) Criminal Code. The State alleges that on or about the 27th and 28th day of March 2009, the two persons in the company of others used physical violence to restrain and subdue the victim before she was allegedly raped.
2. The State alleges that the two circumstance of aggravation used here was;
(a) The accused persons were in the company of each other and others; and
(b) They used actual physical violence to subdue and restrain the victim before the commission of the crime. The presence of the circumstances of aggravation is said to have breached Section 349A (a) (b) of the Criminal Code
3. Furthermore the accused persons are said to have acted together in concert with others to perpetrate the commission of the crime. The State therefore alleges that they are party to the crime by virtue of Section 7 and 8 of the Criminal Code.
4. At the close of the prosecution case, the defence made a no case to answer submission under the first and second limb of the test expounded in the case of The State –v- Paul Kundi Rape[1976] PNGLR 96. The rule is that, the tests or principles of law governing a no case to answer submission have been enunciated in the case of The State –v- Paul Kundi Rape [1976] PNGLR 96. In that case, two distinct but related tests were enunciated and they may arise at the close of the case for the prosecution or indeed at any stage of the trial. See also The State v Misimb Kais [1978] PNGLR 241.
5. The first test is, whether on the evidence as it stands the accused could be lawfully convicted.
6. The second test is this: whether there is no case to answer, the accused may as a matter of law be called upon to answer it. Where there is a case of insufficiency of evidence, an accused may as a matter of law be called upon to answer it, but there is a discretion vested in the judge either to take the case away from the jury or a tribunal of fact, or not.
7. Two other relevant authorities on a no case to answer submission decided after Paul Kundi Rape are The State –v- Roka Pep [1983] PNGLR 19, a decision of the National Court where the Court expressed the tests in the following manner:
A submission of a no case to answer at the close of the case of the prosecution is a question of law for the judge to decide, the question being whether there is evidence, which if accepted by the jury would establish the elements of the offence.
Where there is a case to answer but the judge is of the view, on the facts, that no matter what the evidence may be called by the accused, the prosecution case will not be proved beyond reasonable doubt or the prosecution case will not improve, or the prosecution case is hopeless or intrinsically weak, then the judge has a discretion to acquit the accused on a no case submission.
8. Perhaps a better understanding of the principles is the summary in the decision of the Supreme Court in The State –v- Roka Pep No. 2 [1983] PNGLR 287 which adopted and applied the principles in The State –v- Paul Kundi Rape. The Supreme Court (per Kidu CJ, Kapi DCJ, Andrew and Kaputin JJ) expressed the principles in this way;
"Where in Criminal proceedings at the close of the case for the prosecution, there is a submission of no case to answer, the question is for the Judge as a tribunal of law; the test is whether the evidence supports the essential elements of the offence."
Where the tribunal decides there is no case to answer, the accused is acquitted and that is the end of the matter.
Where the tribunal decides there is a case to answer, it nevertheless has discretion to stop a case at the close of all the evidence in appropriate circumstances; this discretion is exercisable where there is a mere scintilla of evidence and where the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it.
(Per Pratt J) A tribunal should make a finding of no case to answer where (a) there is no evidence to establish an element of the offence charged; or (b) there is some evidence covering the elements of the offence charged but it is tenuous or incredible or discredited that it amounts to only a scintilla, and thus could not be accepted as persuasive by any reasonable person.
9. As it is, the prosecution must show some evidence of the existence of the elements of the offence under Section 347(2) in particular sexual penetration and lack of consent and the circumstances of aggravation.
10. The Defence in this case relies on the second limb of the tests in Paul Kundi Rape. The defence does concede that the evidence as it stands may have established all the elements of the offence. But it argues that could a conviction be safely grounded in the circumstance of this case? It relies in particular on the medical report prepared by the H.E.O of the Gusap Health Centre, Mr Simon Kairpai to argue that there was no sexual penetration of the vagina of the prosecutrix. So far as it is relevant the medical report concludes that there was no penile penetration of the vagina. The relevant part of the medical report states the following;
Comment: According to Leone, it was rainy and the place was a little dark. One boy led her up the road before crossing over again the road into sugar field about 100 meter where she was abducted. She did not shout nor resist when she was being led from the market back up the road. In the field only one boy later pulled her away from the rests of the boys and from there, story doesn't say what happened until 6 am the next morning.
According to Leone, all boys were rushing to insert their fingers into her vagina, at this stage it is clear the whole vagina and perineum would have been traumatized with swelling, bruises redness and or bleeding. According to the examiner there had not been any penetration thus contradicts the statement of fingers being inserted into her vagina".
11. The prosecutrix on her part gave evidence that during her abduction and ordeal in the Ramu Sugar cane fields, she was physically assaulted by kicks to her body and slaps to her face. The impact of the kicks forced her to fall to the ground, where she lay on the ground. While she lay on the ground, the accused Darren Somali laid directly on top of her. Being afraid she told Darren to continue to hold onto her tight and continue to sleep on top of her. At this time one of the persons present, inserted his fingers into her vagina and began fondling her clitoris and vulva. She felt excruciating pain due to the dryness of vaginal canal and vulva. This forced her to scream in pain, screaming "Jesus". Because of the darkness she was unable to recognize the identity of the persons who inserted their fingers into her vagina or the identity of the person who pushed his penis into her mouth.
12. Although she could not identify her assailants, the evidence of the prosecutrix shows that the accuseds were among others and they all were prosecuting a common criminal purpose. The common purpose here was to sexually and carnally assault the victim.
13. In law every person who participates one way or another that makes commission of a crime possible is criminally liable like the actual perpetrator of the crime. It is common sense because without the accessory or accomplice before, during or after the crime, no crime will be committed, particularly major crimes such as the one alleged here which involved some degree of planning. This is sufficient to implicate the accused persons.
14. She was medically examined by Sr. Margret Andrew of the Gusap Health Centre. Present during the entire examination was Sr. Serah. The Health Extension officer who signed the report, Mr Simon Karpai was not present throughout the whole examination. The prosecutrix says that she knows, Mr Karpai who was not present throughout the entire medical examination. He however wrote the Medical Report and signed it as well as swearing an affidavit on the Medical Report as if he did conduct the examination himself. Nonetheless the Medical findings does not support allegations of the fingers being pushed into the vagina.
15. Sexual penetration is adequately defined by section 6 of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 as follows:
"6. SEXUAL PENETRATION.
When the expression "Sexual Penetration" or "sexually penetrates" are used in the definition of an offence, so far as it regards that element of it, is complete where there is-
(a) The introduction, to any extent, by a person of his penis into the vagina, anus or mouth of another person;
(b) The introduction, to any extent, by a person of an object or part of his or her body (other than the penis) into the vagina or anus of another person, other than in the course of a procedure carried out in good faith or for medical or hygienic purposes".
16. In her evidence the accused was quite frank when she stated as she was lying on her back one of her attackers pushed his finger into her vagina resulting her feeling pain and screaming "Jesus". Before the fingering of the vagina, one of her attackers pushed his hands under her skirt and tore her pants.
17. There is a very real possibility that because of his closeness and proximity to the victim, the accused Darren Somali may be the person who did all this. After she stood up one of the attackers asked her to bend over, so he could penetrate her from the rear either through vaginal penetration and or anal penetration. She was put through all the different terrifying sexual and perverted attacks and experiences.
18. But despite all these sexual ordeal, she spoke with frankness. At the same time one of the attackers pushed his penis into her mouth to force her to have oral intercourse with him. Instead of sucking his penis she bit the shaft of his penis until her attacker started crying and begging her mercy. She continued to bit the penis with her teeth to the point of nearly biting it off completely, when another of her attackers kicked her very hard on her back. The impact of this kick forced her to move forward and in the process released the penis from her mouth. Because of the darkness the victim could not identify who in particular penetrated her vagina with his finger. Furthermore she could not identify the attackers whose penis she bit.
19. The medical evidence however disputes her allegation of the attackers inserting their fingers into her vagina. It concludes " at this stage it is clear that the whole vagina and perineum would have been traumatized with swelling, bruises, redness and or bleeding. According to the examiner there had not been any penetration thus contradicts the statement of fingers being inserted into her vagina".
20. Despite this medical finding, this court finds that there was penetration of the vagina with the insertion of the fingers. The medical finding of "single faint slight scratch" of the perineum and labia minor are indicative of fingers being pushed into the vagina. The medical Report was prepared by an officer who himself was not the one who conducted the examination. He acted on the clinical notes and reports from the nurses who conducted the examination. Furthermore it was conducted after the victim had showered and cleaned herself thoroughly.
21. The victim was very frank in her evidence. She did not show any signs of nervousness while giving evidence. She described in detail the terrifying bout of sexual ordeal she went through. Even under heavy and rigorous cross- examination she maintained her story. She was cool, calm and collected and she spoke with frankness and confidence. The court finds her to be witness of truth.
22. In the circumstances the court finds that while medical evidence disputes her allegation of being vaginally penetrated with the fingers, this court does find and concludes that there was vaginal penetration with one of her assailants forcing his penis into her mouth. Medical evidence is very silent on this issue and the court will accept her evidence of one of her assailants forcing his penis into her mouth. This aspect of her evidence was never discredited nor contradicted during cross examination and consequently it remains unchallenged. A penile entry to any extent, into the vagina, mouth or anus of another person falls squarely within the definition of "sexual penetration or sexually penetrates", as defined by section 6 of the Criminal Code ( Sexual Offences and Crime Against Children) Act 2002. It is the judgement of this court that there was sexual penetration of the victim on that fateful night.
23. For that reason as the State evidence stands, the State evidence cannot be simply described as intrinsically weak, or so dubious or tainted that it lacks weight and reliability. Neither has the prosecutrix's evidence been discredited in cross- examination that it is clear that no reasonable tribunal could safely convict on it.
24. The other head of the defence submission is that the accused persons could not be positively identified by the prosecutrix as the persons allegedly responsible. The prosecutrix gave evidence that the alleged offence was committed in conditions of darkness and when it slightly rained. There was no form of light at all, not even lighting provided by the moonlight. The defence submits that this state of State evidence renders the whole prosecution evidence intrinsically weak and totally unreliable and therefore it would be totally unsafe to rely upon it to safely convict the accused persons. The law on visual identification of someone was adequately laid down in the case of The State –v- John Beng [1976] PNGLR 471. The head note of that case says the following in a case on a trial of an accused person who was charged with unlawfully wounding a young woman, the identification of the accused person by the young woman was the only real matter in issue after the accused denied criminal responsibility. The court held that; (from the head note.)
(1) where evidence of identification is relevant, the court should be mindful of the inherent dangers. There is no rule of law that the evidence of one witness is insufficient, nor is there any rule of law that there must be a police parade for purposes of identification, nor is there any rule of law that in every case a warning ought to be given (to the jury); it all depends upon the circumstances of the case before the court.
(2) where the identification relied upon is that of a single witness, it is proper to be mindful that the identification "was critical, and that mistakes have in the past occurred in regard to identification, thereby occasioning a miscarriage of Justice", and the court must be satisfied that the witness was not only honest but also accurate in the evidence given. 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."
25. On appeal to the Supreme Court on the issue of identification, the Supreme Court dismissed the appeal. In dismissing the appeal the Supreme Court said this:
"It has long been recognized that there are dangers inherent in eye witness identification evidence. The court was referred to a number of authorities, the latest of them being a decision of the House of Lords in R -v- Raymond Turnbul (1976) 63 Cr App R 132. For that case guidelines were laid down as to the manner in which identification evidence should be treated. The following points (as set out in the head-note to the report) were made:
"Whenever the case against the accused person depends wholly or substantially on the correctness of one or more identifications of the accused which the defence allege to be mistaken, the trial Judge should warn the Jury of the special need for caution before convicting in reliance on the correctness of the identification. He should make some reference to the possibility, that a mistaken witness could be a convincing one and that a number of such witnesses could be mistaken. Provided such a warning given, no particulars, form, of words need to be used. Further, the trial judge should direct the Jury to examine closely the circumstances in which the identification by each witness came to be made.
Recognition maybe more reliable, than identification of a stranger; but even when the witness is purporting to recognize some-one whom he knows, the Jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made. All these matters go to the quality of the identification evidence. When the quality is good, the Jury can be safely left to assess the value of the identifying evidence even though there is no evidence to support.
Provided always however, that an adequate warning has been given about the special need for caution. When the quality of the identifying evidence is poor i.e., a fleeting glance or a long observations made in difficult conditions – the Judge should then withdraw the case from the Jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification." John Beng –v- The State [1977] PNGLR 115.
26. This court is very mindful that the victim is the only witness and any identification of her assailant would not be possible as it was quite dark already at the relevant time and that she may be mistaken as to the identity of the accuseds persons which in turn may lead to a miscarriage of justice. I will therefore warn myself of the possibility of mistaken identity inherent on accepting her evidence and will treat her evidence very carefully. I propose to consider the identification evidence of this one single witness who is the victim herself under the different criteria proposed in the John Beng case to assess its credibility and cogency.
(1) Was the Witness Honest and Accurate in Her Evidence
27. Young as she was, the victim was quite frank and honest in describing in minute detail her traumatic sexual experience of that night. It is the judgment of this court that she was honest and clearly accurate in her evidence. Her evidence was never discredited nor her demeanor impeached during cross-examination.
28. Although there were some very minor inconsistencies in her evidence, that alone does not render her as an untruthful witness. I find her to be honest and quite frank, and reliable and accurate in re-living her traumatic experience of that night. It is the court's judgement that she is a witness of truth.
(2) Opportunities the Victim Had to Form a Judgement of Identity of the Accused
29. The victim gave evidence of her walking home that evening when she came across a group of five young men walking in the opposite direction. Among this group she immediately identified the accused Darren Somali whose face she was familiar with as he would often come to the shop where she normally works accompanied by children of other policemen. Then when she was taken down to the vocational school, the students were immediately rounded up and paraded and she wasted no time at all in identifying Darren Somali and Richard Tropi. The identification parade at the school was not preplanned. It was a spare of the moment kind of exercise which in fact caught the students by surprise. Despite this she could positively identify two of her assailants.
3. Position of the Parties When the Identification was Made
30. The victim had cause to identify the accused Darren on her way home when he was in the company of the other men. It is the finding of this court that it was the accused Darren who pretended to walk away with the group of men then turned around, walked back to her and said to her " Sista mi gat laik long yu". If there was anyone who was capable of engaging in this kind of behavior it was the accused Darren Somali. His pretentious behavior that night amply demonstrates his propensity to so behave.
4 Lighting.
31. It was already dark in the sugar cane fields when the attempts were made to sexually assault her but because of the cover of darkness, she could not identify anyone directly. She did however identify Darren Somali on the main highway at twilight when the lighting was adequate.
32. The Court finds that there were sufficient opportunities for the accused Darren Somali and Richard Tropi to be identified.
33. For all these reasons the court makes further findings as follows:
(a) there is sufficient evidence to satisfy all the essential elements of the
alleged offence; and
(b) The accuseds were clearly identified as acting together in concert to perpetrate in common their criminal purpose of sexually assaulting the victim.
(c) The State evidence as they stand cannot be simply described as hopeless or intrinsically weak, or cannot improve the State case, or is so unreliable and tenuous that it is intrinsically weak. In fact it was never discredited in cross-examination or such that it was rendered unsafe or unreliable to convict upon it.
34. Accordingly it is the judgment of this Court that the two accused person have a case to answer. This court orders that the no case to answer submission filed by the defence be dismissed and that two accused person have a case to answer.
______________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accuseds
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