N9030

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 423 OF 2008

THE STATE

V

DAVID PANGARIPA

Popondetta:  Toliken, AJ
2012:  19th, 20th November

CRIMINAL LAW – Practice and Procedure – No case submission – Applicable principle – Insufficient evidence - Exercise of discretion under second leg of Kundi Rape principle.

CRIMINAL LAW – Evidence – Voice identification – No independent identification of accused voice – No evidence of volume and length of speech – Accused acquitted of 5 counts of aggravated rape – Criminal Code Ch. 262, ss 347(1)(2), 349A.
 
Cases Cited:

The State v Kundi Rape [1976] PNGLR 96
The State v Kipma [1997] PNGLR 178
The State v Dickson Wape (1994) N1281
The State v Daniel [1988 -89] PNGLR 180

Counsel:

D. Kuvi, for the State
L. Mamu, for the Accused

RULING ON NO CASE SUBMISSION

20th November, 2012

1.	TOLIKEN AJ: 	The accused was indicted with 5 counts of aggravated rape pursuant to Sections 347(1)(2) and 349A of the Criminal Code Act Ch. 262 (as amended).

2.	It is alleged that on the 15th of December 2007 the accused sexually penetrated the victim 5 consecutive times against her will and at the said time he was in the company of others and armed with a bush knife and a gun and further restrained and confined the victim.

3.	After close of the State’s case the defense made a no case submission. This is my short ruling on that submission.  

4.	The principles of the no case are well settled and there is no need to canvass them in any great detail, except to say that at this stage, the State merely has to establish a prima facie case against the accused.  This means that the State’s evidence must establish all the necessary elements of the charge.  If it does not, then the accused cannot be called upon to answer to the charge.  As a matter of law, the accused will be acquitted and discharged.  This is the situation referred to as the first leg or premise of the Kundi Rape principle on no case. (The State v Kundi Rape [1976] PNGLR 96)

5.	But even if there is evidence establishing the essential elements of the charge, the Court in its discretion, may stop the case, if the State’s evidence had been so contradictory, discredited or so lacking in weight that no reasonable tribunal of fact can lawfully convict on the evidence as it stands.  This is the second leg of the Kundi Rape principle.

6.	The accused is charged with 5 counts of aggravated rape (SS347, 349A).  The State therefore has to establish the following on each of the 5 counts:

1.	The accused;
2.	Sexually penetrated the complainant five times;
3.	Without her consent.
4.	That at the relevant time he was armed with a knife and a gun and further had restrained and confined the victim.

7.	The sum of the State’s evidence is that on the 15th of December 2007, the victim and her family were asleep at their house at Soputa Village.  Sometime between 1.00 – 1.30 a.m., the victim and her husband were awoken by someone pushing the knife through the floor of their house.

8.	The witnesses (the victim and her husband) testified that the accused and 3 others then broke the door down and entered the house.  While the two accomplices, one of whom the witnesses said was Rex Pangaripa, pulled the victim’s husband away from the house into the bushes nearby, the accused proceeded to sexually penetrate the victim five times with intervals of an hour between each act.  He then went out, and standing on the road, he whistled to his accomplishes and they left after releasing the husband.

9.	When asked how she knew it was the accused who raped her, the victim said that when the accused came up, he called his name “David”. The victim’s husband, Bevan Henegapa testified that he recognized the voice of one of his captives as that of Rex Pangaripa.  He said he knew it was David Pangaripa who raped his wife, but gave no explanation how he knew that, when he was held captive out in the bushes. Both witnesses said it was dark, but in cross-examinations gave conflicting evidence on whether a fire was burning under the house and as to what fuel was use – oil palm seeds or firewood. So, has the State established a prima facie case?  In other word has the evidence established all necessary elements of the charge?

10.	I do find that there is prima facie evidence that the victim was sexually penetrated five (5) times on that morning in question. I find that there is prima facie evidence that the victim did not consent to any of these acts of intercourse. There is also prima facie evidence that circumstances of aggravation accompanied these acts of intercourse i.e., the victim was restrained and confined during the ordeal and there was use of a gun and a knife.

11.	That leaves me with the question of whether the witnesses have positively identified the accused as the person who sexually penetrated the victim on the night in question.  What is the evidence on this element?

12.	Essentially, the evidence comprises of simple statements by the victim and her husband. The victim’s evidence can be seen from the following exchange between her and Counsel for the State: 

Q	How do you know it was David Pange?
A	When he came up and had sex with me, he called his name, 		“Pange.”

13.	Besides this, the victim did say that on a couple of times, the accused did tell her to be quite and not do anything and that he threatened to stab her with the knife if she tried to do so.

14.	The victim’s husband on the other hand testified that he recognized Rex Pangaripa’s voice while he was being confined in the nearby bushes outside the house. He did say he knew that it was the accused who raped his wife, but gives no details as to how he knew that, except to say that his wife told him that it was the accused.

15.	Now despite the contradictions as to whether there was a burning fire under the house at the relevant time or whether they had lit a lamp, there is evidence that it was dark in the house.

16.	That being the case, there was no personal clarification by either witness of the accused person, either in the house or as he was leaving the house after he had completed his alleged crime. We are therefore left with the victim’s statement that the accused identified himself to the victim by telling her who he was.

17.	Defense counsel submitted, inter alia, that the victim did not positively identify the perpetrator’s voice so it could not be safely held on a prima facie basis that it was the accused. He therefore asked the Court to stop the case and have the accused acquitted.

18.	The State on the other hand argued that the element of identifying the accused has been established. Counsel submitted that the accused and the victim know each other. They are in-laws - the accused being the victim’s husband’s cousin brother. They are from the same village and know each other. So, is there prima facie evidence on this element – that it was the accused who raped the victim or is it merely a scintilla?

19.	I find that there is evidence implicating the accused. However, it is a mere scintilla.  Yes, the victim did say that the man who raped her told her that he was Pange, a.k.a, Pangaripa.  However, she did not say that she recognized the voice independently, as that of the accused, something which would have been easy given the fact that they are related in-law and know each other.

20.	There is no question that voice identification testimony can legitimately and competently establish identity in a criminal trial. (See The State v Kipma [1997] PNGLR 178; The State v Dickson Wape (1994) N1281) Evidence that the voice of a person involved in an alleged crime is that of the accused is admissible to prove his identification:

•	Where the voice is known to the witness and recognized by 	him; or
•	Where the voice is not previously known to the witness, it has 	such distinctive features that it leaves a clear mental impression 	in the mind of the witness that if he were to hear it again later, he would draw the conclusion that it was the same voice.  (See The State v Daniel [1988 -89] PNGLR 180)

21.	But of course, the identification of the voice must be reliable. This would depend on such factors as:

•	The length and volume of speech heard;
•	The witness’ familiarity with the accused person’s voice.

22.	So, returning to the evidence at hand, it is clear that the victim did not testify that she was able to independently identify the accused voice that morning.  She merely said and seemed to have relied entirely upon the fact that whoever it was that raped her, told her that he was Pange.

23.	Furthermore, she did not say nor was it put to her what the volume let alone the length of the speech in question was.  Did her assailant whisper or speak softly to her or did he speak loudly so that she was able to identify the voice as that of the accused?  These are questions that impinge on the reliability of the identification of the accused. Fair enough, the victim’s husband was able to recognize Rex Pangaripa’s voice but that does not identify the accused as the one who raped his wife.

24.	In the final analysis, given this flimsy evidence of identification, coupled with certain contradictions in the State’s evidence, I do not think that, sitting as a tribunal of fact, I could lawfully convict the accused on the evidence as it stands. This case must fall on the second leg of the Kundi Rape principle.

25.	I order, therefore, as follows:

1.	The accused David Pangaripa has no case to answer.
2.	He is acquitted of all five counts of aggravated rape that he is 	discharged forthwith.
3.	His bail money shall be refunded forthwith.

________________________________________________________________
Public Prosecutor:	Lawyer for the State
Public Solicitor:	Lawyer for the Accused