N6229

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 1077-1096 OF 2013

THE STATE

V

TIMOTHY DAMUSUK
1st accused

KULEM KISOU
2nd accused

KABIANG LOD
3rd accused

KADAMAN NANUI
4th accused

MULUK PANALUAN
5th accused

LUWI SIAM
6th accused

Madang: Cannings J
2015: 18, 19, 20 March, 17, 23 April, 3, 19, 23 June, 9 July,
12, 13, 14, 18, 19, 20 August, 9 September, 3& 4 December
2016: 22 March

CRIMINAL LAW – rape: Criminal Code, Section 347(1) – abduction: Criminal Code, Section 350(1) – unlawful deprivation of liberty: Criminal Code, Section 355(b) – robbery: Criminal Code, Section 386(1).

EVIDENCE – confessions – probative value depends on nature and extent of confession and circumstances in which it was made – need to exclude reasonable doubt that a confession is false. 

EVIDENCE – accomplice evidence – danger of relying on evidence of a co-accused against another co-accused – necessary for trial judge to give warning of risks involved. 

EVIDENCE – circumstantial evidence – principles to apply – absence of identification evidence

Six accused were each charged with one count of rape, one count of abduction, one count of unlawful deprivation of liberty and three counts of armed robbery following an incident in a bush location in which three complainants (scientists conducting research) were allegedly held up with weapons, threatened with violence and robbed and one of the complainants was allegedly abducted, unlawfully deprived of her liberty and sexually penetrated without her consent. The State alleged that each of the accused either directly committed each of the offences or aided or assisted other accused in doing so. All pleaded not guilty. The three complainants gave evidence but were unable to identify the persons responsible for committing the offences and no other witness gave direct evidence of involvement of any of the accused. In seeking convictions, the State relied on three types of evidence: (1) confessions by the accused as to their individual involvement as set out in police records of interview and confessional statements; (2) evidence of their co-accused also being involved (accomplice evidence) as set out in police records of interview and confessional statements; (3) evidence of property stolen from the complainants or other suspicious property being found at the homes of some of the accused. All accused were arrested and remanded in custody soon after the alleged incident. During the course of the trial, before the close of the State's case, four of them escaped and have not returned to custody. The trial against all six accused continued in their absence. The two who remained in custody gave sworn evidence, both during a voir dire on the records of interview and confessional statements of all accused and in the trial proper. Their evidence was that they had been mistreated by the Police and forced to make false confessions and that they were somewhere else, doing something else, at the time of the incident. Their general defence was denial of any involvement; their specific defence was an alibi.

Held:

(1)	It was not seriously contested and the Court accordingly found as undisputed facts that the events described by the three complainants in their evidence actually occurred and that all but one of the offences charged in the indictment were committed by a group of young men. 

(2)	Though none of the complainants could identify whether any of the accused was in that group of young men, and there was no other direct evidence of their involvement, it was open to the State to prove their involvement by reliance on confessional evidence, accomplice evidence and circumstantial evidence. 

(3)	Where a decision is made to admit into evidence a record of interview or confessional statement or any other evidence of an accused admitting to involvement in an offence, it remains necessary for the Court to make an assessment of the probative value of that evidence, taking into account the nature and extent of the admission or confession and the circumstances in which it was made. It is part of the Court's duty to afford the accused the full protection of the law, to exclude reasonable doubt that a confession is false. 

(4)	As the State was also relying on the evidence of accomplices, it was necessary to apply the principles for assessing accomplice evidence: the Court, as the tribunal of fact, must caution itself of the danger of convicting or making a finding of fact adverse to any of the accused based on the testimony (sworn or unsworn) of an accomplice.

(5)	Under the doctrine of recent possession, where there has been a robbery and part of the stolen property is found soon afterwards in the possession of a person not the owner, a presumption of fact may be raised against that person, if he does not give a reasonable account of how he got the property, to the effect that he stole the property.

(6)	As each of the accused raised an alibi (though only two gave evidence in support of it) it is necessary to consider the principles emerging from the leading case of John Jaminan v The State (No 2) [1983] PNGLR 318, including: the burden of proof does not shift from the prosecution; in practical terms, the accused must lead some evidence of an alibi; it must be sufficiently convincing to create a reasonable doubt in the mind of the judge; how strong or convincing the alibi evidence must be, depends on the strength of the prosecution case, if the prosecution case is strong, the alibi evidence needs to be reasonably strong to raise a reasonable doubt in the mind of the tribunal of fact as to the guilt of the accused.

(7)	As the State based its case on circumstantial evidence (admissions by some accused of their own involvement, accomplice evidence and evidence of stolen or suspicious property being found at the homes of some of the accused) it was necessary to have regard to the principles about entering a conviction based on circumstantial evidence: the accused must be acquitted unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than guilt. 

(8)	Having applied the above principles and cautioned itself as to the risks involved in entering a conviction based on confessions, the evidence of accomplices and the doctrine of recent possession, the Court concluded that the State had presented a strong case against each of the accused, which was not tangibly dented by the evidence of the accused, bearing in mind that four of the accused gave no evidence and the evidence, including the alibi evidence, of the two who gave evidence was vague and uncorroborated. The only reasonable inference to draw from the proven facts was that each accused was involved in the incident and committed five of the six offences charged on the indictment. 

(9)	The State proved its case beyond reasonable doubt and all accused were found guilty of five of the six charges.

Cases cited:

The following cases are cited in the judgment:

Abraham Saka v The State (2003) SC719
Bank of South Pacific Ltd v Anton Sekum (2011) N4588
Billy Nara v The State (2007) SC1314
Devlyn David v The State (2006) SC881
John Jaminan v The State (No 2) [1983] PNGLR 318
Onama Andrew v The State (2009) SC997
Paulus Pawa v The State [1981] PNGLR 498
R v Griffin [1974] PNGLR 72
The State v Ben Gregory CR No 170 of 2003, 12.03.07, unreported
The State v Boria Hanaio (2007) N4980
The State v Francis Laumadava [1994] PNGLR 291
The State v Justin Komboli (2005) N2891
The State v Mathew Lewaripa (2015) N6027
The State v Steven Tari Nangimon Garasai (2010) N4137
The State v Toipo Dimasi (2008) N3550
The State v William Nanua Kapris & 12 Others (2011) N4305
The State v William Nanua Kapris (2010) N4139

Dates

The events referred to in this judgment occurred in 2013 unless otherwise indicated.

Abbreviations

The following abbreviations appear in the judgment:

CID – Criminal Investigations Division
Const – Constable
CR – Criminal file reference
Gen – General 
GPS – Global Positioning System
Insp – Inspector
N – National Court judgment
No – number
PNG – Papua New Guinea
PNGLR – Papua New Guinea Law Reports
PPC – Provincial Police Commander
ROI – record of interview
RPNGC – Royal Papua New Guinea Constabulary
Sat – Saturday
SC – Supreme Court judgment
Sgt – Sergeant
Snr – senior
Supt – Superintendent
Tue – Tuesday
UDL – unlawful deprivation of liberty
USA – Unites States of America

Glossary

The following people and places are referred to in the judgment.

People

Aweti Salir – First Const, State witness #6
Benjamin Freeman – complainant re count 6, State witness #3
Bulisa Iova – complainant re count 5, State witness #1
Bumae Zakang – Snr Const, State witness #13
Dr Alexandra Class – complainant re counts 1 to 4, State witness #2
Dr John Bolgna – Head, Obstetrics, Modilon Gen Hospital, State witness #12
Dr Tanja Ihle – doctor, Gaubin Rural Hospital 
Franz Mongati – Snr Sgt, arresting officer, State witness #9 
Hon Jim Kas MP – Governor, Madang Province 
Jau Gamui – local guide, from Kevasop, State witness #4
Kabiang Lod – third accused 
Kadaman Nanui – fourth accused 
Kiura Yarti – First Const, State witness #14 
Kulem Kisou – second accused 
Lail Langly – Kabiang Lod's brother
Leo Mondo – villager, Kevasop village, State witness #8
Lukeson Saiam - local guide/field assistant – referred to in evidence
Luwi Siam – sixth accused
Maine Gamui – local guide/field assistant – referred to in evidence
Malau Lail – wife of Lail Langly
Martin Howley – Sgt, investigating officer, State witness #11
Mondo Ruang – referred to in evidence (a suspect, not charged)
Muluk Panaluan – fifth accused 
Nikson Saian – villager, Kevasop, State witness #5
Sylvestar Kalaut – Chief Inspector, PPC, State witness #10
Timothy Damusuk – first accused 
TS – village youth, informant
Wepu Kurim – First Constable, State witness #7
York Kupeng – Snr Const, referred to in evidence

Places

Duson – village, Karkar Island
Gamog – village, Karkar Island, accuseds' village
Gaubin Hospital – hospital, Karkar Island
Jomba police station – police station, Madang town 
Karkar Island – island, Sumkar District, Madang Province 
Kevasop– village, Karkar Island, closest village to crime scene
Kinim – police station, Karkar Island
Komoria– village, Karkar Island
Kubugam – boat stop, North Coast Road, Madang Province 
Kulili – plantation, Karkar Island
Kulili – police station, Karkar Island
Kurum– village, Karkar Island
Madang – province, in which lies Karkar Island 
Madang – town, provincial capital
Malas – village, Karkar Island
Marup– village, Karkar Island
Mom – village, Karkar Island
Mt Kanagio – mountain, Karkar Island, site of volcanic crater
Mt Uluman – mountain, Karkar Island 
Pain Urung – village, Karkar Island
Sumkar – district of province in which Karkar Island lies 

TRIAL

This was the trial of six accused each charged with one count of rape, one count of abduction, one count of unlawful deprivation of liberty and three counts of armed robbery. 

Counsel:

F K Popeu, for the State
A Meten, for the accused

1. CANNINGS J: The six accused are each charged with one count of rape, one count of abduction, one count of unlawful deprivation of liberty and three counts of armed robbery. The charges relate to an incident on Karkar Island, Sumkar District, Madang Province on the morning of Friday 19 April 2013 in which three complainants (scientists conducting research) were held up with weapons, threatened with violence and robbed and one of the complainants was raped. 

2. The State alleges that each of the accused either directly committed the offences or aided or assisted the other accused in doing so. All pleaded not guilty. They are:

•	first accused, Timothy Damusuk;
•	second accused, Kulem Kisou;
•	third accused, Kabiang Lod;
•	fourth accused, Kadaman Nanui;
•	fifth accused, Muluk Panaluan;
•	sixth accused, Luwi Siam.

3. The three complainants gave evidence but were unable to identify the persons responsible for committing the offences and no other witness gave direct evidence of the involvement of any of the accused. In seeking convictions, the State relied on three types of evidence: 

(1) confessions of the accused as to their individual involvement as set out in police records of interview and confessional statements; 

(2) evidence of their co-accused also being involved (accomplice evidence) as set out in police records of interview and confessional statements; 

(3) evidence of property stolen from the complainants or other suspicious property being found at the homes of some of the accused. 

4. All accused were arrested and remanded in custody within three weeks after the incident of 19 April 2013. The trial commenced in March 2015, almost two years after the incident. During the course of the trial, in July 2015, before the close of the State's case, four of the accused escaped from custody: the first, fourth, fifth and sixth accused. They have not been returned to custody. The trial against all six accused continued in their absence. I ruled that those who had escaped gave up their right under Section 37(5) of the Constitution to be present at their trial. The Section 37(5) right is not absolute. If an accused either escapes from custody or absconds while on bail, he can be tried in his absence (The State v Justin Komboli (2005) N2891, Bank of South Pacific Ltd v Anton Sekum (2011) N4588, The State v Mathew Lewaripa (2015) N6027).

5. The two who remained in custody (the second accused, Kulem Kisou, and the third accused, Kabiang Lod) gave sworn evidence at two stages of the trial. First, during a voir dire on the records of interview and confessional statements of all accused. This resulted in the admission into evidence of the records of interview and confessional statements of the four accused who had escaped and the refusal to admit such documents in respect of the two who remained in custody. Secondly, in the trial proper. Their evidence was that they had been mistreated by the Police and forced to make false confessions and that they were somewhere else, doing something else, at the time of the incident. Their general defence was denial of any involvement. Their specific defence was an alibi.

UNDISPUTED FACTS

6. A number of undisputed facts have emerged from the evidence:

•	Two of the complainants, Dr Alexandra Class and Mr Benjamin Freeman, aged in their early 30s at the time of the incident, are married to each other. They are United States citizens. They are biologists. The third complainant, Mr Bulisa Iova, of a similar age, is a PNG citizen. He is also a biologist. He is employed by the PNG National Museum. Dr Class and Mr Freeman engaged Mr Iova to assist them conduct field research into the behaviour of birds in tropical environments, on Karkar Island, in April 2013.

•	They spent 11 days near Mom village, then moved camp to a bush location near Kevasop village. They obtained permission from the village leaders before setting up their camp at the foot of Mt Kanagio. They engaged three villagers as local guides and field assistants. They spent two days there before the incident at the centre of this case occurred. 

•	They arose at 5.30 am on Friday 19 April and had breakfast. The three complainants left the camp at 6.00 am. They left the guides at the camp and headed along a bush track up the mountain, towards its volcanic crater. They asked the guides to follow them up the mountain, 45 minutes later. 

•	They reached the base of the crater at 7.30 am. Dr Class was 20 metres ahead of Mr Freeman and Mr Iova, out of their line of sight. She heard her husband shout three times a Spanish word meaning "Run!" Then two men holding guns approached her, in a menacing manner. They stripped her naked. 

•	They sexually penetrated her without her consent. Then other men arrived. They were armed with knives. All their faces were covered with ski masks. They also sexually penetrated Dr Class without her consent. Each of the perpetrators introduced his penis into the vagina of the complainant, such acts falling within the definition of "sexual penetration" in Section 6 of the Criminal Code. They also stole some personal items.

•	Meanwhile members of that same group of men held up Mr Freeman and Mr Iova, stripped them naked, tied them up and stole personal items from them.

•	It was a violent incident. All complainants were traumatised but their physical injuries were not serious. About 15 minutes after the incident their local guides arrived and assisted the complainants to Kevasop village. Later that day Dr Class underwent medical examination and treatment on Karkar Island. The complainants were taken to the mainland at Madang.

•	A Police operation was mounted the next day, Saturday 20 April and an investigation team was dispatched from Madang town to Karkar Island.

•	The Police, acting on information received from various Karkar Island residents, compiled a list of six suspects, all young men who lived at Gamog village. The Police staged a dawn raid on Gamog village on Tuesday 30 April, apprehending the six accused and seizing a number of items allegedly stolen from the complainants.

•	On the same day, 30 April, four of the accused were taken by boat to the mainland and detained in custody. Two of the accused did not fully cooperate with the Police and there was a bit of trouble detaining them, until 5 or 6 May, when they were also apprehended and taken to Madang.

•	In the period from 31 May to 12 June all accused were subject to formal police interviews. Some were recorded by the Police as having made separate confessional statements. Each record of interview, prepared by the Police, shows each accused as having made substantial admissions as to his involvement in the incident of 19 April.

•	Each accused has since alleged that he was forced to make false admissions, and that he was threatened and subject to human rights abuses at the hands of the Police. Those allegations were grounds of objections to the admission into evidence of all the records of interview and confessional statements. Those objections were determined by the Court following a voir dire hearing. 

THE INDICTMENT 

7. Each of the accused is charged with six offences:

•	count 1: rape, in circumstances of aggravation, contrary to Sections 347(1) and (2) of the Criminal Code, committed against Dr Class;

•	count 2: abduction, contrary to Section 350(1)(a)(i) of the Criminal Code, committed against Dr Class;

•	count 3: unlawful deprivation of liberty, contrary to Section 355(a) of the Criminal Code, committed against Dr Class;

•	count 4: armed robbery, contrary to Sections 386(1) and (2)(a) and (b) of the Criminal Code, committed against Dr Class;

•	count 5: armed robbery, contrary to Sections 386(1) and (2)(a) and (b) of the Criminal Code, committed against Mr Iova;

•	count 6: armed robbery, contrary to Sections 386(1) and (2)(a) and (b) of the Criminal Code, committed against Mr Freeman.

COMMISSION OF OFFENCES

8. I find that the State has proven beyond reasonable doubt – and it was not seriously disputed by the defence – that five of the six offences charged on the indictment were actually committed at the time and place and in the manner alleged. The State has, for two reasons, failed to prove count 2 (abduction). First, the drafting of this charge is not compliant with the Criminal Practice Rules 1987. It does not charge one of the elements of the offence under Section 350(1)(a)(i) of the Criminal Code: that the accused had an intention to "carnally know" the complainant. Secondly, I am not satisfied on the evidence that the complainant was "taken away", which is another element of the offence. 

9. As to count 1 (rape), the two elements of the crime of rape under Section 347(1) of the Criminal Code have been proven, in that the perpetrators, whoever they were:

•	sexually penetrated the complainant, Dr Class;
•	without her consent (The State v Steven Tari Nangimon Garasai (2010) N4137).

10. The offence was committed in circumstances of aggravation under Section 347(2) of the Criminal Code as the persons who committed the offence were in company with each other and armed with dangerous weapons, which are aggravating circumstances under Sections 349A (a) and (b) of the Criminal Code.

11. As to count 3 (unlawful deprivation of liberty), the three elements of the offence under Section 355(a) of the Criminal Code have been proven, in that the persons who committed this offence:

•	detained the complainant, Dr Class;
•	against her will;
•	unlawfully (The State v William Nanua Kapris & 12 Others (2011) N4305).

12. As to counts 4, 5 and 6 (armed robbery, which is more correctly called robbery in circumstances of aggravation), the four elements of robbery (as defined in Section 384 for the purposes of Section 386(1) of the Criminal Code) have been proven, in that the persons who committed these offences, in relation to each of the three complainants:

•	stole things from them;
•	threatened to use actual violence against them; 
•	in order to obtain the things stolen; 
•	immediately before the time of stealing (The State v Boria Hanaio (2007) N4980).

13. The offences were committed in circumstances of aggravation as the perpetrators were armed with dangerous weapons (guns and knives) and in company with each other, which are aggravating circumstances under Section 386(2) (a) and (b) of the Criminal Code.

THE CRITICAL ISSUE: DID ANY OF THE ACCUSED COMMIT THE OFFENCES AT MT KANAGIO ON 19 APRIL 2013?

14. Was any of the accused a member of the group of young men who committed the offences? Did any of them directly commit the offences or aid or assist others in committing the offences? Resolution of these issues requires:

•	a summary of evidence for the State;
•	a summary of evidence for the defence;
•	an assessment of the probative value of each of the three categories of evidence produced by the State;
•	an assessment of the defence evidence, in particular the alibis;
•	a formal determination, in relation to each accused, of the question whether he committed any one or more of the five offences, taking into account that the State's case is based on circumstantial evidence. 

EVIDENCE FOR THE STATE

Oral evidence 

15. Fourteen witnesses gave oral testimony, as summarised in the following table. Twelve of the witnesses gave evidence in person in the National Court at Madang. 

16. Dr Class and Mr Freeman gave their evidence, via Skype, from the USA; the link to the courtroom in Madang being set up and operated by technical officers of Divine Word University of Madang. On application by the State, and against the objection of the defence (on the ground of unfairness to the accused), I made a special measures order under Section 37B(1)(b) and (c), and (2)(h) of the Evidence Act, permitting the evidence of Dr Class and Mr Freeman to be given by means of those facilities. In determining that those special measure were necessary I considered all the matters set out in Section 37A and 37B(3), (4) and (5) of the Evidence Act. Sections 37A and 37B, which are contained in Division III.3 (special measures for vulnerable and intimidated witnesses) are set out in full in an appendix to this judgment. 

TABLE 1: ORAL EVIDENCE FOR THE STATE

No	Witness	Description	
1	Bulisa Iova	Complainant, count 5	
Evidence	
Dr Class had gone a short distance ahead, she was around a bend in the track – he (the witness) heard a whistle behind – he turned around and saw a group of men, all masked, armed with guns and knives – he estimates that there were 12 men in the group – they said 'Mipela papa graun!' [We are the landowners!] – he and Mr Freeman were each stripped naked and had their hands tied at the back and forced to lie face down on the ground – he and Mr Freeman each had property stolen – he was shown, and identified, a number of his personal items that were stolen: 

•	Black Adidas shoes [exhibit P1]
•	Black Canon camera [exhibit P2]
•	Black wallet [exhibit P3]
•	Black binoculars [exhibit P4].

He identified two other items he was familiar with:

•	Mr Freeman's green backpack mountain bag [exhibit P2]
•	Dr Class's blue backpack mountain bag [exhibit P6].
	
2	Dr Alexandra Class	Complainant, counts 1-4	
Evidence	
She was a little way ahead of her husband, Benjamin, and Bulisa – she heard her husband shout, in Spanish, 'Run! Run!' – two men approached her, armed with guns – they wore masks and dirty, dark clothes – she was ordered to take off her clothes – one of the men forced a knife against her body, another man pointed a gun at her – other men arrived, all masked – she estimates that she was penetrated in her vagina on seven separate occasions in a short space of time – at no time did she consent - they lined up to have their turn – they were laughing and having a good time – the first one to rape her was about 5 feet, 4 inches tall and spoke with a gruff, deep voice – each man ejaculated – at one stage one of them scooped out from her vagina the sperm of those who had earlier raped her – they stole her backpack and its contents – after the last man had his turn, one of them had the idea of cutting her hair, which was long, and he sawed it off, close to her scalp, with a knife – another threw her underwear in her face as the group left – they were all young men, she estimated they were aged in their 20s – they left, it was quiet, she panicked, not knowing if they would return – she chewed off the ropes that had been used to tie her up – still scared, she started to walk down the slope – she heard her name called, but hesitated as she thought it might be a trick – it was, in fact, her husband – they embraced – she broke down – they were all afraid the criminals might return so they left in a hurry and went to Kevasop – later that day she was taken to Gaubin Hospital and examined and treated by a German doctor. 

She was shown, and identified, two of her personal items that were stolen: 

•	1 pair of black gumboots [exhibit P7]
•	Battery-operated water sanitizer [exhibit P8].
	
3	Benjamin Freeman	Complainant, count 6	
Evidence	
He was walking with Bulisa – he heard a whistle from down the track and looked around and was confronted by 6 to 8 men, all masked – the men said that they were the papa graun [landowners] – he yelled out to his wife in Spanish – he and Bulisa put their hands up – they were ordered to take of their clothes – two men ran up the track – he and Bulisa were forced to lie on the ground, face down – they were both naked – the criminals stole everything they had – suddenly they all went away – he was extremely worried about his wife – he was sure something bad had happened to her – he worried that she might have been killed – they were then reunited and she told him that the men had raped her – he does not believe any of the criminals were drunk – they came close to him and he did not smell alcohol – the attack took place about 1 km from their camp.

He was shown, and identified, some of his personal items that were stolen: 

•	Black binoculars [exhibit P9]
•	Black Canon camera [exhibit P10]
•	Garmin brand GPS device [exhibit P11]
•	Black gumboots [exhibit P12]
•	Light brown long-sleeve shirt [exhibit P13]
•	Yellow drier bag [exhibit P14].
	
4	Jau Gamui	Local guide/field assistant 	
Evidence	
He is from Kevasop – he was engaged as a local guide for the three scientists – they left him and the other guides (Lukeson Saiam and Maine Gamui) at the camp at 6.30 am – at 7.30 am he and one of the others walked up the track – Bulisa came rushing towards them with his hands tied and told them what had happened – he (the witness) helped the victims to Kevasop village, then to Gaubin.
	
5	Nikson Saian	Local guide/field assistant	
Evidence	
He is from Kevasop – he was engaged as a local guide for the three scientists – they left him and the other guides (Lukeson Saiam and Maine Gamui) at the camp at 6.30 am – at 7.30 he and one of the others walked up the track – Bulisa came rushing towards them with his hands tied and told them what had happened – he (the witness) helped the victims to Kevasop village, then to Gaubin.
	
6	Aweti Salir	1st Const, RPNGC, Public Safety Unit, Jomba Police Station	
Evidence	
He was a member of the Police team deployed to Karkar Island on Sat 20 April – they set up a base camp at Kevasop – he was a member of the team that staged a dawn raid at Gamog village on 30 April. Acting on information received, they settled on six prime suspects, all young men who lived at Gamog. The raid proceeded as follows:

•	They went first to the house of 6th accused, Luwi Siam – he was not there
•	Next to the house of 5th accused, Muluk Panaluan – he was not there
•	Next to the house of 2nd accused, Kulem Kisou – he was there, sleeping – with the assistance of relatives they woke him and were given permission to search the house – they found, and seized, a suspicious looking blue bag – the witness identified it as exhibit P6 – other items seized at Kulem Kisou's house included a brown long-sleeved shirt [exhibit P13] and a yellow drier bag [exhibit P14] – Kulem Kisou admitted his involvement in the incident of 19 April and gave the Police a list of names of others involved and the list was confirmed by his relatives
•	Next they went to the house of 1st accused, Timothy Damusuk – at this point the members of the Police team separated and searched different houses, with the assistance of the village community – Timothy Damusuk was not there
•	Then other Police brought in 1st accused, Timothy Damusuk, 3rd accused, Kabiang Lod, 4th accused, Kadaman Nanui, and 5th accused, Muluk Panaluan, and those four were put in a Police vehicle and driven to Kulili Police station 
•	Then he received information from the PPC that Kadaman Nanui had admitted to having two guns, so they took him to his house and he showed them where two homemade guns were hidden, inside a rice bag, and those items were seized – the witness identified them as a brown homemade gun [exhibit P15], a black homemade gun [exhibit P16] and a rice bag [exhibit P17]
•	Later that day, 30 April, the above four suspects were taken by boat to Madang – the 2nd accused, Kulem Kisou, had absconded and the 6th accused, Luwi Siam, had not yet been apprehended.
	
7	Wepu Kurim 	1st Const, RPNGC, Police Dog Unit, Madang Police Station	
Evidence	
He was a member of the Police team deployed to Karkar Island on Sat 20 April – they set up a base camp at Kevasop – he was a member of the team that staged a dawn raid at Gamog village on 30 April. Acting on information received, they settled on six prime suspects, all young men who lived at Gamog. The raid proceeded as follows:

•	They went first to the house of 6th accused, Luwi Siam – he was not there
•	Next to the house of 5th accused, Muluk Panaluan – he was not there
•	Next to the house of 2nd accused, Kulem Kisou – he was there, sleeping – with the assistance of relatives they woke him and were given permission to search the house – they found a suspicious looking blue bag – it was suspicious as it was a high quality, expensive looking 'mountain bag' (a backpack) – the witness identified it as exhibit P6 and its contents: Adidas shoes [exhibit P1], black gumboots [exhibit P7], black binoculars [exhibit P9], light brown long-sleeved shirt [exhibit P13], black shorts [exhibit P18] – Kulem Kisou admitted his involvement in the incident of 19 April and gave the Police a list of names of others involved and the list was confirmed by his relatives
•	Next they went to the house of 3rd accused, Kabiang Lod – at this point the members of the Police team separated and searched different houses, with the assistance of the village community – Lod's wife and other family members assisted in the search – they were told that Lod had a bag in the garden house nearby – then Lod's relatives handed over a green mountain bag containing various items – the witness identified it as exhibit P5 and its contents: black binoculars [exhibit P4], black gumboots [exhibit P12], orange bag [exhibit P19]
•	Next, four of the suspects, including 4th accused, Kadaman Nanui, were driven in a Police vehicle to Kulili police station
•	Nanui was then brought back to Gamog as the Police received information that there were two homemade guns in the village – Nanui showed the Police where they were hidden in the bush, and the Police seized those guns
•	Later that day, 30 April, four suspects were taken by boat to Madang.

In cross-examination the witness answered questions about the list of six suspects obtained by the Police: this list had come from a number of sources, including Leo Mondo (State witness #8) and another villager, "TS".
	
8	Leo Mondo	Villager, Kevasop village, Karkar Island 	
Evidence	
He gave the name of TS (the person from Gamog village who said that he knew who was involved in the 19 April incident) to the Police on 29 April.

In cross-examination he denied being himself involved in the incident of 19 April – he denied giving the property that was stolen from the complainants to any of the accused. 
	
9	Franz Mongati	Snr Sgt, RPNGC, Investigation team leader	
Evidence	
He took the team from Madang town to Karkar Island on 20 April – on 30 April, after the dawn raid on Gamog village, he took four suspects back to Madang – he went back to Karkar Island the following week and apprehended the two remaining suspects, Kulem Kisou and Luwi Siam, who surrendered to the Police, in that they were 'handed over' by their relatives, and cooperated with the Police. He seized the following items and identified them in Court:

•	from Kulem Kisou: black Canon camera [exhibit P2]and one pair of Eagle Optic Ranger brand binoculars [exhibit P20]
•	from Luwi Siam: Garmin GPS device [exhibit P11]

In cross-examination he denied ignoring other more obvious suspects such as TS and Leo Mondo – he formed the view that the six suspects that were arrested (now the six accused) were the only persons involved in the incident of 19 April – he denied assaulting, threatening or abusing any of the accused or committing any human rights abuses against them – he asserted that all accused were afforded their constitutional rights – they all made admissions of their own volition. 
	
10	Sylvestar Kalaut	Chief Supt, RPNGC, Provincial Police Commander 	
Evidence	
He went to Karkar Island on two occasions – first, the day after the incident of 19 April – he appealed to the people of the island to hand over the suspects – he went back later and was on Karkar Island on 30 April when the first four suspects were apprehended – he obtained a confessional statement from 4th accused, Kadaman Nanui, on 30 April at the Kulili Estate office – he obtained a confessional statement from 6th accused, Luwi Siam, in the first week of May at Jomba Police station.

In cross-examination he denied subjecting either of the accused from whom he obtained confessional statements to any force or abuse – he denied knowledge of any abuse by any police officer of any of the accused – he denied knowledge of any of the accused being forced to perform sexual acts against other accused: if he knew any such things were happening he would have intervened. 
	
11	Martin Howley	Sgt, RPNGC, member, investigation team	
Evidence	
He was on Karkar Island from 20 to 30 April – he was involved in the apprehension of four of the accused at Gamog on 30 April and their transfer that day to Madang town – he was involved in the interviews of all of the accused – no force or intimidation or threats were involved – the accused freely admitted their involvement in the incident, though some denied sexually penetrating the female complainant. 

In cross-examination he denied using force at any time against any of the accused – he denied being under pressure to make arrests due to the media reports of the incident of 19 April and the presence of the Governor of Madang Province, Hon Jim Kas MP, on Karkar Island 	
12	Dr John Bolgna	Head of Obstetrics, Modilon General Hospital	
Evidence	
He gave an assessment of the report by Dr Ihle of her examination and treatment of Dr Class on the afternoon of 19 April [exhibit P27, annexure A] – Dr Bolgna's opinion was that Dr Ihle's report was consistent with the patient being the victim of aggressive sexual acts. 
	
13	Bumae Zakang	Snr Const, RPNGC, member, investigation team 	
Evidence	
He was based at Kulili Police post, Karkar Island in 2013 –he was on duty on 29 April when he received information from TS about the six suspects – he did not participate in the dawn raid at Gamog on 30 April. 
	
14	Kiura Yarti	First Const, RPNGC	
Evidence	
He gave evidence in chief but was not made available for cross-examination so his evidence was ruled inadmissible. 

Voir dire 

17. Mrs Meten, counsel for each of the accused, objected to the admission into evidence of the record of interview (Tok Pisin original and English translation) of each accused. Those records stated that each accused made admissions about his involvement in the incident of 19 April. Mrs Meten also objected to the admission into evidence of the confessional statements of 4th accused, Kadaman Nanui, and 6th accused, Luwi Siam. The grounds of objection in each case were that the admissions had been made involuntarily. It was claimed that each accused was threatened and tortured and intimidated and admitted to a crime in which he played no part, due to ignorance and fear.

18. A voir dire (a separate hearing within the trial to determine the admissibility of contested evidence) was conducted. Evidence for the State was given by Snr Sgt Mongati, Chief Supt Kalaut and Sgt Howley. Evidence for the defence was given by 2nd accused, Kulem Kisou, and 3rd accused, Kabiang Lod. No evidence was given by the other four accused as they had, by the time the voir dire was conducted, in August 2015, escaped from custody. The trial was proceeding without them. 

19. In determining the objections, I took the approach set out in The State v William Nanua Kapris (2010) N4139. An involuntarily statement is one made because the accused is overborne (repressed by power or authority). It does not matter by what means he was overborne. If the statement is the result of duress, intimidation, persistent or sustained or undue insistences or pressure, it cannot be voluntary. Likewise if the statement is induced by a threat or promise, it is inadmissible by virtue of Section 28 (confessions induced by threats) of the Evidence Act, which states:

A confession that is tendered in evidence in any criminal proceeding shall not be received in evidence if it has been induced by a threat or promise by a person in authority, and a confession made after any such threat or promise shall be deemed to have been induced by it unless the contrary is shown.

20. As to who bears the onus of proof, the rule operates in this way. First, the accused must adduce evidence that on the balance of probabilities supports the allegation of involuntariness. If that burden is not discharged, the objection fails and, unless there is some other objection raised, the confession is admissible. If the burden is discharged, the onus shifts to the State to negate the allegations beyond reasonable doubt.

21. I ruled that in the case of the four accused who had escaped, they had not adduced any evidence in support of the allegations of them making involuntary admissions. Therefore their objections failed. Their records of interview were admitted into evidence, as were the confessional statements of 4th accused, Kadaman Nanui, and 6th accused, Luwi Siam. 

22. As for the two accused who gave evidence, 2nd accused, Kulem Kisou, and 3rd accused, Kabiang Lod, I ruled that they each adduced evidence that on the balance of probabilities supported the allegation of involuntariness. The onus then shifted to the State to negate the allegations beyond reasonable doubt. That onus was not discharged. Their objections were sustained. Their records of interview were not admitted into evidence. 

Exhibits

The following exhibits were admitted into evidence on application by the State.

TABLE 2: EXHIBIT LIST

Exhibit No	Date admitted	Description 	
P1	19.03.15	Black Adidas shoes – identified by complainant Mr Iova as his property, stolen in the incident of 19 April
	
P2	19.03.15	Black Canon camera– identified by complainant Mr Iova as his property, stolen in the incident of 19 April
	
P3	19.03.15	Black wallet– identified by complainant Mr Iova as his property, stolen in the incident of 19 April
	
P4	19.03.15	Black binoculars – identified by complainant Mr Iova as his property, stolen in the incident of 19 April
	
P5	19.03.15	Green backpack mountain bag, Jeuter brand – identified by complainant Mr Iova as Mr Freeman's property, stolen in the incident of 19 April
	
P6	19.03.15	Blue backpack mountain bag, Jeuter brand – identified by complainant Mr Iova as Dr Class's property, stolen in the incident of 19 April
	
P7	20.03.15	Black gumboots– identified by complainant Dr Class as her property, stolen in the incident of 19 April
	
P8	20.03.15	Water sanitizer – identified by complainant Dr Class as her property, stolen in the incident of 19 April
	
P9	20.03.15	Black binoculars– identified by complainant Mr Freeman as his property, stolen in the incident of 19 April
	
P10	20.03.15	Black Canon camera – identified by complainant Mr Freeman as his property, stolen in the incident of 19 April
	
P11	20.03.15	Garmin brand GPS device, black/orange in colour – identified by complainant Mr Freeman as his property, stolen in the incident of 19 April
	
P12	20.03.15	Black gumboots – identified by complainant Mr Freeman as his property, stolen in the incident of 19 April
	
P13	20.03.15	Light brown long-sleeve shirt – identified by complainant Mr Freeman as his property, stolen in the incident of 19 April
	
P14	20.03.15	Yellow drier bag – identified by complainant Mr Freeman as his property, stolen in the incident of 19 April
	
P15	17.04.15	Brown homemade gun – identified by State witness #6, 1st Const Salir, as being seized at the house of 4th accused, Kadaman Nanui, on 30 April 
	
P16	17.04.15	Black homemade gun – identified by State witness #6, 1st Const Salir, as being seized at the house of 4th accused, Kadaman Nanui, on 30 April
	
P17	17.04.15	Rice bag – identified by State witness #6, 1st Const Salir, as being seized at the house of 4th accused, Kadaman Nanui, on 30 April
	
P18	17.04.15	One pair of black shorts– identified by State witness #7, 1st Const Kurim, as being seized at the house of 2nd accused, Kulem Kisou, on 30 April
	
P19	17.04.15	Orange bag – identified by State witness #7, 1st Const Kurim, as being seized at the house of 3rd accused, Kabiang Lod, on 30 April
	
P20	03.06.15	Binoculars: Eagle Optic Ranger, black in colour – identified by State witness #9, Snr Sgt Mongati, as being seized at the house of 2nd accused, Kulem Kisou, in the first week of May
	
P21A, P21B	13.08.15	ROI of 1st accused, Timothy Damusuk, dated 12.06.13, Tok Pisin original & English translation:

He and the five other accused walked from Gamog to Mt Kanagio on 19 April, leaving 5.00 am, arriving 6.00 am – Kulem Kisou was the team leader – they carried knives and guns – they were not happy about the complainants going into their area without permission – they found a black man and a white man walking together and argued with them and took their property – he did not rape the white lady. 
	
P22A,
P22B	13.08.15
	ROI of 4th accused, Kadaman Nanui, dated 12.06.13, Tok Pisin original & English translation:

He and the five other accused walked from Gamog to Mt Kanagio on 19 April, leaving 5.00 am, arriving 6.00 am – Kulem Kisou was the team leader – Kulem said that we should go and remove them they carried knives and guns – they were not happy about the complainants going into their area without permission – they found a black man and a white man walking together and argued with them and took their property – he followed Kulem's instructions – Muluk Panaluan held up the white lady. 
	
P23	13.08.15
	Confessional statement of 4th accused, Kadaman Nanui, dated 30.04.13:

He went to the volcanic crater with five other boys from Gamog village – they were armed with homemade guns and bush-knives – two of the boys, Muluk Panaluan and Timothy Pain [sic], held up the white lady, stole her property and raped her – all his friends had sex with her – he also had sex with her, he was the last to do so.
 	
P24A,
P24B	13.08.15
	ROI of 5th accused, Muluk Panaluan, dated 31.05.13, Tok Pisin original & English translation:

He and the five other accused walked from Gamog to Mt Kanagio on 19 April, leaving 5.00 am, arriving 6.00 am – they carried knives and guns – they were not happy about the complainants going into their area without permission – they found a black man and a white man walking together and argued with them and those people got scared and gave their property to them – they did not steal any cash – he did not have sex with the white lady but some of the other boys might have done so. 
	
P25A,
P25B	13.08.15
	ROI of 6th accused, Luwi Siam, dated 03.06.13, Tok Pisin original & English translation:

He and the five other accused walked from Gamog to Mt Kanagio on the morning of 19 April, leaving 5.00 am, arriving 6.00 am – they carried knives and guns – they wanted to chase away the white people and the Papuan man – they threatened them and they got scared and handed their property to them – they did not get any money – he did not have sex with the white lady but the others might have done so – he only saw her lying naked on the ground.
	
P26	13.8.15	Confessional statement of 6th accused, Luwi Siam, dated 05.05.13, English translation:

He and the other boys from Gamog village made the plan on the night of 18 April to go to the crater at Mt Kanagio and they went there early the next morning- they saw the white man and the white lady and a Papua man – they held them up with guns and knives – their faces were masked – Kulem commanded the white man and the Papuan man to remove their clothes and to give up their personal items – he (Luwi Siam) stood guard with a homemade gun and Kulem tied them up – he then went to where the white lady was and he saw Kabiang Lod raping her, followed by Kulem and Kadaman – he (Luwi Siam) did not have sex with her.
	
P27	14.08.15	Affidavit of Dr T Ihle, annexing medical report dated 19.04.13 re Alexandra Class:

Dr Class came to her clinic at 2.30 pm on 19 April, reporting that she had been pack-raped – "she was in a psychological state of shock, but still well orientated and composed … on physical examination there were bruising and abrasions on her vulva. There was no vaginal bleeding or discharge and no signs of internal injuries" – she was given post-exposure prophylaxis for HIV and other sexually transmitted infections – "In view of Mrs Class's psychological state of shock without being disorientated or hysterical, the physical findings and the positive sperm analysis [show] there is no doubt that her report of the incident is genuine."

EVIDENCE FOR THE DEFENCE

Two witnesses gave evidence for the defence. 

TABLE 3: ORAL EVIDENCE FOR THE DEFENCE

No	Witness	Description	
1	Kulem Kisou	Second accused	
Evidence	
Voir dire evidence:

He was arrested on 30 April but knows nothing about the incident of 19 April – he believes he became a suspect because he was in possession of stolen property, which was given to him by 6th accused Luwi Siam – the Police assaulted him on many occasions – the Police forced him to have oral sex with Luwi Siam – the Police threatened to kill him and Luwi Siam – the Police made them so scared, they just said that they were involved in the incident of 19 April – the abuse continued at Jomba Police Lock-up and at Beon Jail and throughout the interview – the Police told him if he did not admit to his involvement he could be sent to another country where he would be electrocuted.

Evidence after close of State's case:

On the morning of 19 April he was at Gamog with his grandfather fixing a fence that had been broken by a pig – at midday his cousin, Luwi Siam, came along with some other boys (does not know who they were) – Luwi gave him two items, a blue backpack and a leather belt, and said he would come back later to pick them up.

In the early morning of 30 April he was asleep in the house with his grandfather – the Police came and hit the side of the house – they took some things from him which they said had been stolen from the white man and white lady who had been robbed at the crater – the Police threatened to shoot him.

When he was arrested and interviewed by the Police he told them about the above matters but they did not listen and forced him to make a false confession. 
	
2	Kabiang Lod	Third accused	
Evidence	
Voir dire evidence:

He was arrested on 30 April but he knows nothing about the incident of 19 April –the Police assaulted him on many occasions – the Police forced him to perform oral sex with 1st accused Timothy Damusuk Siam – the Police threatened to kill him–the abuse continued at Jomba Police Lock-up and at Beon Jail and throughout the interview. 

Evidence after close of State's case:

On the morning of 19 April, until midday, he was with his elder brother, Lail Langly, and Lail's wife and other villagers, cooking food for their sports group – lots of people were there, including 1st accused, Timothy Damusuk, 2nd accused, Kulem Kisou, and 5th accused, Muluk Panaluan.

On 21 April at the sports field, 4th accused, Kadaman Nanui, gave him a mountain bag and some other items and told him that they had come from Mondo Leo and TS – he took those items to his house to hold for Kadaman. 

ASSESSMENT OF PROBATIVE VALUE OF THREE CATEGORIES OF EVIDENCE PRODUCED BY THE STATE

Admissions and confessions 

23. Mr Popeu, for the State, emphasised that four of the six accused admitted to their involvement in the incident of 19 April: 

•	1st accused Timothy Damusuk, made admissions in his record of interview [exhibits 21A, 21B]

•	4th accused, Kadaman Nanui, made admissions in his record of interview [exhibits 22A, 22B] and in a confessional statement [exhibit P23]

•	5th accused, Muluk Panaluan, made admissions in his record of interview [exhibits 24A, 24B]

•	6th accused, Luwi Siam, made admissions in his record of interview [exhibits 25A, 25B] and in a confessional statement [exhibit P26].

24. None made complete admissions. In their formal interviews all denied having sex with the complainant Dr Class. (However, in his confessional statement the 4th accused, Kadaman Nanui, said he did have sex with her.)

25. Defence counsel Mrs Meten argued that the probative value of all the admissions was lessened by the circumstances in which the records of interview and confessional statements were prepared. I agree that where a decision is made to admit into evidence a record of interview or confessional statement or any other evidence of an accused admitting to involvement in an offence, it remains necessary for the Court to make an assessment of the probative value of that evidence. The Court must consider the nature and extent of the admission or confession and the circumstances in which it was made. It is part of the Court's duty to afford the accused the full protection of the law, to exclude reasonable doubt that a confession is false (Billy Nara v The State (2007) SC1314, Onama Andrew v The State (2009) SC997). 

26. Having done that, I consider that the confessional statements of Kadaman Nanui and Luwi Siam are only of moderate probative value, because of the unusual circumstances in which they were made before Chief Supt Kalaut. However the four records of interview are of high probative value. They show that four of the accused made substantial admissions as to the direct or indirect involvement in commission of the three robbery offences. The fact that they denied committing the offence of rape is not significant as they have each admitted involvement in planned criminal activity. They have also given evidence of a motive: they were angry with the complainants for coming on to their land, allegedly without permission.

Accomplice evidence

27. Mr Popeu submitted that there is evidence, in the records of interview that have been admitted into evidence, of the involvement of all accused in the incident of 19 April. He points out that, as well as admitting their own involvement in the incident of 19 April, the 1st, 4th, 5th and 6th accused, in their records of interview, stated that each of the other accused was involved, including the 2nd and 3rd accused. They did not give the names of any other persons.

28. This is significant, particularly in relation to the 2nd accused, Kulem Kisou, and the 3rd accused, Kabiang Lod, as their purported admissions, contained in their records of interview, are not in evidence. It is therefore a useful exercise to set out what is stated about their involvement in the records of interview that have been admitted into evidence.

TABLE 4: ACCOMPLICE EVIDENCE RE 1ST ACCUSED & 2ND ACCUSED 
Interviewee	ROI
Exhibit	Statements re 2nd accused, Kulem Kisou, &
3rd accused, Kabiang Lod 	
1st accused, 
Timothy Damusuk	21A,
21B
	Kulem and Kabiang were in the group of six who went to the mountain on the morning of 19 April – Kulem was the team leader – Kulem got one of the mountain bags, Kabiang got the other – Kulem tied up the white man – Kabiang tied the legs of Mr Iova.
	
4th accused, 
Kadaman Nanui	22A,
22B	Kulem and Kabiang were in the group of six who went to the mountain on the morning of 19 April -Kulem gave them permission to go up to the mountain – it was Kulem's plan - Kulem told them to go and remove the white people – he followed Kulem's instructions – Kulem tied up the people – Kabiang was holding a bush-knife. 
	
5th accused, 
Muluk Panaluan	24A, 
24B	Kulem and Kabiang were in the group of six who went to the mountain on the morning of 19 April – Kulem and Kabiang had bush-knives.
	
6th accused, 
Luwi Siam 	P25A,
25B	Kulem and Kabiang were in the group of six who went to the mountain on the morning of 19 April – Kulem tied up the white man and the Papua man – Kulem and Kabiang went after the white woman .

29. Is it permissible to use the evidence of one accused to implicate another accused? Mr Popeu submitted that it was, especially in this case where there are multiple accused saying the same thing about the involvement of others. 

30. Mrs Meten submitted that the evidence of each accused against every other accused should be excluded, for two reasons. First, all statements made in the records of interview were made involuntarily, due to fear and intimidation. Secondly, the rules regarding accomplice evidence make it too dangerous to rely on the admissions in the records of interview against any accused other than the interviewee.

31. I reject Mrs Meten's first argument as the issue of involuntariness has been settled by the Court's decisions arising from the voir dire: four records of interview and two confessional statements were admitted into evidence. I have already indicated that I am placing little weight on the confessional statements. However, the evidence constituted by the records of interview is of high probative value, at least in so far as the interviewee makes admissions as to his own involvement. 

32. Mrs Meten's second argument requires closer consideration. I agree that this is a case where the State is relying on the evidence of accomplices to implicate each of the accused. The Court therefore has to apply the conventional principles on accomplice evidence: it must caution itself of the danger of convicting or making a finding of fact adverse to any of the accused based on the testimony (sworn or unsworn) of an accomplice, particularly those parts of it that are uncorroborated. This caution is administered to take account of the risk that an alleged accomplice might fabricate evidence against an accused to get even or exonerate himself or shift blame to the accused (The State v Francis Laumadava [1994] PNGLR 291, Abraham Saka v The State (2003) SC719).

33. I therefore warn myself of the danger of making a finding that any of the accused was involved in the incident of 19 April based on the statements of other accused included in the four records of interview that have been admitted into evidence. With that danger in mind, I note the following:

•	the statements are consistent in that each interviewee names each of the other five accused and does not name any other person as being involved;

•	each record of interview has been admitted into evidence, following a voir dire, and I have assessed each record of interview as being of high probative value;

•	this is not a case of the accomplice evidence being uncorroborated, as there is corroboration in the form of (a) the admissions of personal involvement in each of the four records of interview that have been admitted into evidence and (b) circumstantial evidence provided by some of the stolen property being found in the possession of some of the accused. 

34. After taking account of those considerations I have decided that it is safe and fair to use the accomplice evidence contained in each of the four records of interview against all other accused, including the 2nd and 3rd accused.

Evidence of stolen or suspicious property in possession of accused 

35. Mr Popeu submitted that there is evidence that some of the property stolen from the complainants was found in the possession of some of the accused soon after the incident of 19 April, and that this amounts to strong circumstantial evidence that implicates the accused, especially those who held the property. There is also some property, not stolen, but suspicious, that implicates the 4th accused. The property falling into those categories, which has been admitted into evidence, is summarised in column 2 of the table below, together with the name of the accused (column 1) in whose possession the property was found.

TABLE 5: STOLEN OR SUSPICIOUS PROPERTY IN POSSESSION OF ACCUSED
Accused	Property found in possession	
1st accused, 
Timothy Damusuk	None.	
2nd accused, 
Kulem Kisou	Found by 1st Const Salir and/or 1st Const Kurim in the accused's possession on 30 April:

•	Mr Iova's black Adidas shoes [exhibit P1]
•	Dr Class's blue backpack mountain bag [exhibit P6]
•	Dr Class's black gumboots [exhibit P7]
•	Mr Freeman's black binoculars [exhibit P9] 
•	Mr Freeman's brown long-sleeved shirt [exhibit P13] 
•	Mr Freeman's yellow drier bag [exhibit P14].

Found by Snr Sgt Mongati in the accused's possession in early May:

•	Mr Iova's black Canon camera [exhibit P2].
	
3rd accused,
Kabiang Lod	Found by 1st Const Kurim in the accused's possession on 30 April:

•	Mr Iova's black binoculars [exhibit P4]
•	Mr Freeman's green backpack mountain bag [exhibit P5]
•	Mr Freeman's black gumboots [exhibit P12]. 
	
4th accused, 
Kadaman Nanui	Found by 1st Const Salir in the accused's possession on 30 April:

•	Brown homemade gun [exhibit P15]
•	Black homemade gun [exhibit P16]
•	Rice bag [exhibit P17].
	
5th accused, 
Muluk Panaluan	None.	
6th accused, 
Luwi Siam 	Found by Snr Sgt Mongati in the accused's possession in early May:

•	Mr Freeman's Garmin GPS device [exhibit P11].

36. Before assessing the probative value of that evidence, I point out that, although defence counsel quizzed the Police witnesses during cross-examination about whether they had search warrants authorising their search of the houses of the accused (they had none) and suggested that there was a question-mark over whether the property had been lawfully seized, there was no formal objection to admission into evidence of these items. I considered whether I should intervene by requiring both counsel to make submissions on their admissibility. I decided not to do so as I was satisfied that the searches of the houses and the surrounding area and seizure of properties, though in some cases conducted at short notice, were conducted with the consent and assistance of the owners and occupiers of the houses: the family members of the accused concerned. I have concluded that the properties have been lawfully seized and properly admitted into evidence. 

37. Mrs Meten submitted that the Court should give little weight to the evidence of stolen or suspicious property found in possession of the accused. Mrs Meten highlighted that:

•	the 1st accused, Timothy Damusuk, had no such property in his possession;

•	the 2nd accused, Kulem Kisou, gave a reasonable explanation for the stolen property being in his possession: it was given to him by Luwi Siam, on behalf of two other boys, at midday, on 19 April;

•	the 3rd accused, Kabiang Lod, gave a reasonable explanation for the stolen property being in his possession: on 21 April at the sports field, 4th accused, Kadaman Nanui, gave him a mountain bag and some other items and told him that they had come from Mondo Leo and TS, so he took the items to his house to hold for Kadaman;

•	there was no evidence linking the homemade guns and rice bag in the possession of 4th accused, Kadaman Nanui, to the incident of 19 April;

•	the 5th accused, Muluk Panaluan, had no such property in his possession;

•	only one stolen item was found in the possession of 6th accused, Luwi Siam.

38. My assessment of those submissions is as follows.

The 1st accused, Timothy Damusuk, had no stolen or suspicious property in his possession. 

The 2nd accused, Kulem Kisou, had seven items stolen in the incident of 19 April in his possession, including Dr Class's blue backpack mountain bag. At this juncture the doctrine of recent possession is relevant. It was explained by Prentice J in R v Griffin [1974] PNGLR 72 (followed by Lay J in The State v Ben Gregory CR No 170 of 2003, 12.03.07, unreported, and by Davani J in The State v Toipo Dimasi (2008) N3550) in these terms: 

Under the doctrine of recent possession, where there has been a robbery and part of the stolen property is found soon after in the possession of a person not the owner, a presumption of fact may therefore be raised against that person to the effect that he stole the articles, where he does not give a reasonable account of how he got the property. If an explanation is given by that person and it appears to be a reasonable one, the tribunal should acquit, even if it does not positively accept the explanation. But when an accused on being questioned has given an explanation of his possession which is admittedly untrue... the presumption of guilt does arise. This is a presumption which may be rebutted and, if the subsequent explanation of the prisoner satisfies the jury, or raises a reasonable doubt, he is still entitled to an acquittal.

39. The accused's explanation for the stolen property being in his possession is critical. Here, it is very limited: he explains only his possession of Dr Class's blue backpack. He has given no explanation of the other six stolen items being in his possession. And his explanation is very vague: the backpack was given to him by another accused, Luwi Siam. The whole explanation is unsatisfactory. The presumption arises that he stole the items in the incident of 19 April. 

40. The 3rd accused, Kabiang Lod, had three stolen items in his possession, including Mr Freeman's green backpack. I consider his explanation about being given the backpack by the 4th accused, Kadaman Nanui, on 21 April, is limited, vague and uncorroborated. The whole explanation is unsatisfactory. The presumption arises that he stole the items in the incident of 19 April. 

41. As to the 4th accused, Kadaman Nanui, I agree that there was no evidence linking the homemade guns and rice bag found in his possession to the incident of 19 April. Nevertheless having homemade guns in his possession 11 days after the incident, and having them hidden in a rice bag close to his home, gives rise to suspicion about his motives and the use to which such items had been put, calling for an explanation from the accused. He gave no explanation, as he had absented himself from the trial by the time his opportunity to explain arose. The presumption arises that he was involved in the incident of 19 April and that those guns were used by the accused to threaten the complainants. 

50. The 5th accused, Muluk Panaluan, had no stolen or suspicious property in his possession. 

51. The 6th accused, Luwi Siam, had one stolen item in his possession: Mr Freeman's Garmin GPS device. He gave no explanation, as he had absented himself from the trial by the time his opportunity to explain arose. The presumption arises that he stole the item in the incident of 19 April. 

ASSESSMENT OF PROBATIVE VALUE OF DEFENCE EVIDENCE

52. As each of the accused provided an alibi (though only two gave evidence in support of it) it is necessary to apply the principles emerging from the leading case of John Jaminan v The State (No 2) [1983] PNGLR 318, including: 

•	the burden of proof does not shift from the prosecution; 
•	in practical terms, the accused must lead some evidence of an alibi; 
•	it must be sufficiently convincing to create a reasonable doubt in the mind of the judge; 
•	how strong or convincing the alibi evidence must be, depends on the strength of the prosecution case: if the prosecution case is strong, the alibi evidence needs to be reasonably strong to raise a reasonable doubt in the mind of the tribunal of fact as to the guilt of the accused.

53. On the last point, I indicate, prior to making a final determination of the guilt of any of the accused, that it appears that the State has presented a strong case against each of the accused. The alibi evidence therefore needs to be reasonably strong. 

54. The alibi evidence is either non-existent or poor. The 1st, 4th, 5th and 6th accused have not given evidence. As for the 2nd accused, Kulem Kisou, his alibi – being at Gamog with his grandfather mending a fence on the morning of 19 April – is vague and uncorroborated. He was an unimpressive witness. His demeanour was poor and his responses to questions in cross-examination were evasive and unconvincing. As for the 3rd accused, Kabiang Lod, his alibi – being at the sports field at Gamog with his elder brother and the brother's wife, cooking food for their sports group, on the morning of 19 April – is vague and uncorroborated. He was an unimpressive witness. His demeanour was poor and his responses to questions in cross-examination were evasive and unconvincing. 

55. Mr Popeu made a telling point in submissions: the trial commenced in March 2015, almost two years after the incident of 19 April 2013, the trial took a long time to complete – the Court heard evidence from March to September 2015, the Court liberally granted adjournments – and despite all that time, no one from Karkar Island came forward to support the alibis or give evidence in support of any of the accused. This supports the State's argument that these were false alibis. 

FORMAL DETERMINATION OF WHETHER ANY OF THE ACCUSED COMMITTED ANY OF THE OFFENCES 

56. Before making a formal determination of whether any of the accused committed any of the offences with which they have been charged, I pause to note this feature of the State's case: there is no direct oral testimony by any person who witnessed commission of the offences. Though the confessional evidence and the accomplice evidence can arguably be regarded as direct evidence, I think it is better (as it is unsworn evidence and it comes from no person other than an accused) to place it, together with the evidence of stolen and suspicious property being found in the possession of some accused, in the category of circumstantial evidence. It is prudent to do this as part of the continuing process of affording each of the accused, even those who have escaped, the full protection of the law.

57. I will apply the principles governing circumstantial evidence, as explained by the Supreme Court in Paulus Pawa v The State [1981] PNGLR 498:

•	the accused must be acquitted unless the facts proved in evidence are inconsistent with any reasonable hypothesis other than guilt; and

•	to enable the court to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt be a rational inference but that it be the only rational inference that the circumstances would enable it to draw.

58. In Devlyn David v The State (2006) SC881 the Supreme Court restated the Pawa principles by saying that the question to be asked is:

•	do the proven facts lead reasonably to only one conclusion – that the accused did all the things constituting the elements of the offence? If yes, the accused is guilty. If no, the accused is entitled to an acquittal.

First accused, Timothy Damusuk

59. The proven facts are:

•	he admitted his involvement in the incident of 19 April;
•	three of his co-accused stated that he was involved in the incident;
•	he claimed an alibi, but brought no evidence in support of it.

I consider that according to the principles in Pawa's case the proven facts are inconsistent with any reasonable hypothesis other than that the accused was involved in the incident of 19 April. That hypothesis is the only rational inference that can be drawn. According to the principles in David's case the proven facts do lead reasonably to only one conclusion: that the accused was involved and that he either directly committed each of the five offences which the Court has already found to have been committed or aided and assisted those who directly committed the offences. It has been proven beyond reasonable doubt that he is guilty of those offences. 

Second accused, Kulem Kisou

60. The proven facts are:

•	three of his co-accused stated that he was involved in the incident of 19 April;
•	stolen property was found in his possession, soon after the incident of 19 April;
•	he gave a false alibi.

I consider that according to the principles in Pawa's case the proven facts are inconsistent with any reasonable hypothesis other than that the accused was involved in the incident of 19 April. That hypothesis is the only rational inference that can be drawn. According to the principles in David's case the proven facts do lead reasonably to only one conclusion: that the accused was involved and that he either directly committed each of the five offences which the Court has already found to have been committed or aided and assisted those who directly committed the offences. It has been proven beyond reasonable doubt that he is guilty of those offences. 

Third accused, Kabiang Lod

61. The proven facts are:

•	three of his co-accused stated that he was involved in the incident of 19 April;
•	stolen property was found in his possession, soon after the incident of 19 April;
•	he gave a false alibi.

I consider that according to the principles in Pawa's case the proven facts are inconsistent with any reasonable hypothesis other than that the accused was involved in the incident of 19 April. That hypothesis is the only rational inference that can be drawn. According to the principles in David's case the proven facts do lead reasonably to only one conclusion: that the accused was involved and that he either directly committed each of the five offences which the Court has already found to have been committed or aided and assisted those who directly committed the offences. It has been proven beyond reasonable doubt that he is guilty of those offences. 

Fourth accused, Kadaman Nanui

62. The proven facts are:

•	he admitted his involvement in the incident of 19 April;
•	three of his co-accused stated that he was involved in the incident;
•	he had homemade guns in his possession, soon after the incident of 19 April;
•	he claimed an alibi, but brought no evidence in support of it.

I consider that according to the principles in Pawa's case the proven facts are inconsistent with any reasonable hypothesis other than that the accused was involved in the incident of 19 April. That hypothesis is the only rational inference that can be drawn. According to the principles in David's case the proven facts do lead reasonably to only one conclusion: that the accused was involved and that he either directly committed each of the five offences which the Court has already found to have been committed or aided and assisted those who directly committed the offences. It has been proven beyond reasonable doubt that he is guilty of those offences. 

Fifth accused, Muluk Panaluan

63. The proven facts are:

•	he admitted his involvement in the incident of 19 April;
•	three of his co-accused stated that he was involved in the incident;
•	he claimed an alibi, but brought no evidence in support of it.

I consider that according to the principles in Pawa's case the proven facts are inconsistent with any reasonable hypothesis other than that the accused was involved in the incident of 19 April. That hypothesis is the only rational inference that can be drawn. According to the principles in David's case the proven facts do lead reasonably to only one conclusion: that the accused was involved and that he either directly committed each of the five offences which the Court has already found to have been committed or aided and assisted those who directly committed the offences. It has been proven beyond reasonable doubt that he is guilty of those offences. 

Sixth accused, Luwi Siam

64. The proven facts are:

•	he admitted his involvement in the incident of 19 April;
•	three of his co-accused stated that he was involved in the incident;
•	he had stolen property in his possession, soon after the incident of 19 April;
•	he claimed an alibi, but brought no evidence in support of it.

I consider that according to the principles in Pawa's case the proven facts are inconsistent with any reasonable hypothesis other than that the accused was involved in the incident of 19 April. That hypothesis is the only rational inference that can be drawn. According to the principles in David's case the proven facts do lead reasonably to only one conclusion: that the accused was involved and that he either directly committed each of the five offences which the Court has already found to have been committed or aided and assisted those who directly committed the offences. It has been proven beyond reasonable doubt that he is guilty of those offences. 

VERDICTS

The following verdicts are entered:
.
TABLE 6: VERDICTS
No	Name	Count 1: rape, 
s 347(1), (2)	Count 2:
abduction, s 350(1) 	Count 3: 
UDL, 
s 355(b)	Count 4:
robbery,
s 386(1), (2)(a), (b)	Count 5:
robbery,
s 386(1), (2)(a), (b)	Count 6:
robbery,
s 386(1), (2)(a), (b)	
1		Timothy Damusuk	Guilty	Not guilty 	Guilty	Guilty 	Guilty	Guilty	
2		Kulem Kisou	Guilty	Not guilty	Guilty	Guilty 	Guilty	Guilty	
3		Kabiang 
Lod	Guilty	Not guilty	Guilty	Guilty	Guilty	Guilty	
4		Kadaman Nanui	Guilty	Not guilty	Guilty	Guilty	Guilty	Guilty	
5		Muluk Panaluan 	Guilty	Not guilty	Guilty	Guilty	Guilty	Guilty	
6		Luwi
Siam 	Guilty	Not guilty	Guilty	Guilty	Guilty	Guilty	

Verdicts accordingly,
_______________________________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused

APPENDIX: SECTIONS 37A AND 37B OF THE EVIDENCE ACT

37A.	Interpretation.

For the purposes of this Division—

"child" means a person under the age of 18 years;

"complainant" means a person against whom an offence is alleged to have been committed;

"crime of violence" means any offence against Division V.1 (Assault and Violence to the Person), Division V.3 (Homicide), Division V.4 (Offences Endangering Life or Health) and Division V.5 (Assaults) of the Criminal Code;

"sexual offence" means any offence against Division IV.2 (Offences Against Sexual Immorality), Division IV.2A (Sexual Offences Against Children), Division IV.2B (Commercial Sexual Exploitation of Children) and Division V.7 (Sexual Offences and Abduction) of the Criminal Code.

37B.	Special measures order.

(1)	An order under Subsection (2) shall be made where a witness in a criminal proceeding is—

(a)	under the age of 18 years at the time of the hearing; or

(b)	the complainant in a proceeding relate to a sexual offence; or

(c)	the complainant in a proceeding relate to a crime of violence.

(2)	If, in the opinion of the Court, the quality of a witness's evidence would likely to be diminished by reason of fear of distress in connection with testifying in the proceedings, the Court shall, subject to Subsection (3) and (4), order that one or more of the following special measures be used for the giving of evidence by that witness:—

(a)	the use of a screen or other arrangement to prevent the witness from seeing the accused;

(b)	the presence of a support person of the witness' choosing seated with the witness when he or she is giving evidence; or

(c)	dispensing with the wearing of wigs and robes while the witness is giving evidence;

(d)	planned seating arrangements for people who have an interest in the proceedings, including the level at which they are seated and the people in the witness line of vision;

(e)	the adjournment of the proceedings or any part of the proceedings to other premises;

(f)	the exclusion from the court, while the witness is giving evidence, of all or any persons without an interest in the proceedings; 

(g)	the examination of the witness through an intermediary, who shall communicate and explain—

(i)	to the witness, the questions put to the witness, in a language appropriate to the witness' age and development; and
(ii)	to the court, the answers given by the witness in reply; 

(h)	permitting the evidence to be given from a place other than the courtroom by means of closed-circuit television or other facilities that enable communication between that place and the courtroom.

(3)	In determining what special measures are appropriate, the Court shall consider—

(a)	the availability of any necessary equipment or facilities; and

(b)	the age of the witness; and

(c)	the opinion of the witness; and

(d)	which of the special measures would be likely to maximize as far as practicable the quality of the witness's evidence.

(4)	A judge need not make an order under Subsection (1) where he determines that to do so is contrary to the interests of justice.

(5)	In determining whether the use of special measures is contrary to the interests of justice, the judge shall consider—

(a)	the nature and alleged circumstances of the offence to which the proceedings relate; and

(b)	the right of the accused to a fair trial; and

(c)	whether the quality of the evidence given by the witness is likely to be diminished by reason of fear or distress on the part of the witness in connection with testifying in the proceedings; and

(d)	any behaviour towards the witness on the part of the accused, or members of the family or associates of the accused; and

(e)	whether the use of special measures would cause unnecessary delay in the proceedings.

(6)	The use of special measures does not in any way affect the weight to be given to any evidence in a criminal proceeding.