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State v Weiki [2017] PGNC 217; N6896 (22 June 2017)

N6896

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CR No. 872 OF 2014

THE STATE

V

MANUEL WEIKI
Kimbe: Miviri AJ

2017 : 16^th & 22^nd June

CRIMINAL LAW – Trial - sexual penetration without consent-denial-alibi no notice-victim sister in law-no medical report-evidence of husband recent complaint-conduct of accused prior-credibility who to believe-belated alibi amounting to corroboration-guilty sexual penetration without consent.

Cases cited:

Beng v The State [1977] PNGLR 115 (2 May 1977)

Jaminan v The State [1983] PNGLR 318 (29 September 1983)

Lialu v The State [1990] PNGLR 487 (30 November 1990)

Lawrence Simbe v The State [1994] PNGLR 38 (2 March 1994)

Marangi v The State [2002] PGSC 15; SC702 (8 November 2002)

State v Er [1998] PGNC 78; N1749 (31 July 1998)

State v Komaip [1997] PGNC 31; N1557 (21 March 1997)

The State v John (No 2) [1996] PNGLR 298 (22 June 1995)

Counsel:
D.Kuvi, for the State

B. Popeu, for the Defendant

VERDICT

22^nd June, 2017

1. MIVIRI AJ: This is the verdict in a rape trial where the brother in law is alleged to have raped the sister in law.

Allegations

2. Julie James accompanied by her six year old daughter went to her peanut garden to tender it on the 23^rd March, 2014. Manuel Weiki, her brother in law came from the back armed with a bush knife and threatened her with it and demanded that she follow what he told her to do or he would kill her. She submitted in fear and he took her into the bushes nearby where he took off his trousers, then hers and inserted his penis into her vagina and had sexual intercourse with her and ejaculated. Her six year old daughter was crying next to her. After he finished he fled. She is the wife of the younger blood brother.
   
3. The state relies on the evidence of the Complainant and her husband James Weiki to demonstrate that the accused committed the offence of rape. It relies on the late alibi of the accused as corroborating and to show that penetration occurred.
   

Defence case

4. The Defendant denies and puts an alibi that he was with his wife and others cooking and waiting for his oil palm to be picked up. His record of interview is undisputed and tendered as state evidence.
   

Issue for trial

5. The issue is whether or not Manuel Weiki sexually penetrated the complainant without her consent.
   
6. Section 347. DEFINITION OF RAPE.
   

(1) A person who sexually penetrates a person without his consent is guilty of a crime of rape.

Penalty: Subject to Subsection (2), imprisonment for 15 years.

(2) Where an offence under Subsection (1) is committed in circumstances of aggravation, the accused is liable, subject to Section 19, to imprisonment for life.

7. Section 347A (2) (a) (b) (c) defines that to use violence, or threat, or the person submits in fear is no consent.
   
8. 352A. CORROBORATION NOT REQUIRED.

On a charge of an offence against any provision of this Division, a person may be found guilty on the uncorroborated testimony of one witness, and a Judge shall not instruct himself that it is unsafe to find the accused guilty in the absence of corroboration.

Issue

9. The principle issue is whether sexual penetration occurred between the complainant and the defendant without consent.
   

Preliminary observations

10. I make observation of the complainant and husband. She is married to her husband James Weiki who is the younger blood brother of the Defendant. She has her 6 year old child who was with her at the time he allegedly sexually penetrated her. The Complainant and husband and the Defendant all live together at their father Weiki’s block Galai 1 section 18 block 24. He was called to give evidence for the Defendant’s case. The complainant is saying that she was threatened and sexually penetrated by the older brother of her husband the Defendant. The husband is supporting that she reported to him that fact in the morning and they reported to police but did not go and get medical report.
    

Prosecution evidence

11. Prosecution case is founded upon the oral evidence of the Complainant supported by the evidence of recent complaint from the husband. The record of interview of the defendant is in evidence by consent.
    
12. In her testimony the complainant said she had gone to the peanut garden accompanied by her 6 year old girl. She was tending the peanut garden when Manuel Weiki came from her back, whistled to her, threatened her with the bush knife he had that he would kill her if she did not agree to sexual intercourse with him. In fear she submitted and he took her to the bushes nearby where after removing his trousers and hers he sexually penetrated her. Her 6 year old daughter was crying for her on the side. He left both after that and went away.
    
13. She returned to the family home waited for her husband who was in Kimbe. When he returned she told him about what happened which was already in the night. The husband said they will report to police next morning.
    
14. The husband James Weiki said his wife hugged him that night and told him that she had something to tell him. He was drunk so she did not tell him until the morning when she told him that Manuel Weiki had threaten her with a bush knife and had sexual intercourse with her. From there they went to Kimbe Police Station and reported the matter which was the next day. The defendant was arrested and charged for the offence.
    

Defence case

15. Accused said he was waiting for the oil palm fruit pickup truck to get his oil palm that was harvested and waiting. That as he did he was cooking with his wife and two others. He did not tell police that he was cooking with his wife and two others. He never called those persons. He gave evidence that the allegation was false because the intent of Julie and James Weiki were to bring up the allegation to get rid of him from the block and for them to get the block as their own.
    
16. Asked by the State Prosecutor that this was not possible Weiki was still alive and it was still his block and could not be owned by either the defendant or the witness he said there was intent to give it to him.
    
17. He called his father Weiki who gave evidence that both brothers were fighting over his block Galai 1 section 18 block 24 he would not give the block to either of them.

Evidence assessment findings

18. In the assessment of the evidence the principle question underlying is who the court should believe. On the one hand the Accused did not disclose that he was with his wife or with two other persons at that time and was waiting for the fruit truck to come and pick up his fruit. He did not file a notice of alibi and has run that he was at that time cooking with his wife and two others whilst waiting for the fruit truck. He has not disclosed any credible reason as to why he has failed to bring this alibi at the first given opportunity. Particularly when considered in the back drop that he could not be at two places at once and at the same time. If his alibi was genuine and the truth he would have called the evidence on that aspect to establish his case. He did not knowing very well that aspect. And if it was their instruction would have been conveyed to counsel defending to file appropriate notice and serve. It was not there hence the late arrival before the court making it incredible to believe.
    
19. It does not automatically follow that he is guilty of the offence alleged. He is not obligated to prove his innocence nor is he obligated to prove where he was at the time of the allegations levelled against him. The law is that it is the prosecution who carries the burden of proof to discharge that proof beyond all reasonable doubt that the defendant committed the offence. He has given a belated alibi that he could not have been where Julie James claim to have seen him as he was cooking with his wife and two other persons. The problem with this is that he has not given the date and time that he was cooking with his wife and with this two other persons. In the record of interview at Question 23 he is asked can you recall this date the 23^rd March 2014. And he answers I can’t remember. At Question 30 he is asked where were you on Sunday the 23^rd March 2014, he answers I was waiting for the fruit truck to pick up the oil palm fruits. There is nothing in the record of interview that he was cooking with his wife at that time. He was merely waiting for the truck to pick up his oil palm.
    
20. So if it is accepted that he was waiting for the vehicle to pick up his fruit, who did Julie James see. And who was the person that committed the rape upon her. It is important to identify the person that she saw in the garden? The law setting out identification is Beng v The State [1977] PNGLR 115 where the principle is set out as:
    

“There is no rule of law that the evidence of one witness as to identification is insufficient, nor is there any rule of law that there must be a police parade for the purpose of identification, nor is there any rule of law that in every case a warning must be given; it all depends upon the circumstances of the case before the court’ (at p. 762). Where the identification relied upon is that of a single witness it is proper that the jury should be informed that the identification ‘was critical, and that mistakes have in the past occurred in regard to identification, thereby occasioning a miscarriage of justice’, and that they should be satisfied that the witness was not only honest but also accurate in the evidence he gave. Matters to be taken into account are ‘what opportunities the person identifying had to form a judgment of the identity of the person who committed the crime ... the position of the parties when the identification was made, the lighting, the opportunities to form a judgment, and generally the circumstances in which the identifying witness formed his judgment as to identification.”

21. Is there danger in believing the identification evidence that Julie James is putting up? If so what are these dangers that make her evidence in identification incredible? She is the sole witness on identification and that fact alone does not make her evidence incredible and not worthy of belief. Yes there has been no identification parade. But the fact of the matter is that she is the sole witness identifying and therefore her identification must be critically examined as mistakes have been made in the past leading to miscarriage of Justice. But is that the case here, did Julie James make a mistake in the identification of the person she saw that morning in the garden.
    
22. What are the circumstances of the identification? For one it is in the morning during the day. She is not a stranger to him. She is married to the younger brother and all live in the family house shared also with the defendant. This is not the first time that she has seen him. When she saw him at the peanut garden he was not masked. She saw him in the garden where there was no other person except her small 6 year old daughter Revency. So it is not a case of trying to identify someone in a crowd. He is there alone in the garden with her. There is no one that witnessed the act complained of. He sees her from the distance then he comes into contact with her pulls her from where she initially was to the bushes nearby where he removed his trousers then laid her on the ground and inserted his penis into her vagina and had sexual intercourse with her. This is close and very personal and there is no doubt in the identification that she makes here. Viewed in the principles of identification in the Beng (supra) there is no problems in the identification that she has made here. Her identification is more recognition than trying to identify a stranger in difficult circumstances.
    
23. Having settled identification the next issue is as to motive for the witness Julie James to tell against her brother in law Manuel Weiki. Given the facts and circumstances here does the witness Julie James have a motive to tell against the defendant? Both Julie James and her husband James Weiki have given evidence that the complaint in the rape is not made so that the defendant is put into prison and they get the block. Both acknowledge that the block belongs to father Weiki. Even then how could they when Weiki is alive and is still in law the legal owner. There is no motive for the evidence of Julie James against him because Weiki himself has given evidence that both his sons which also includes the defendant and the witness have been arguing over his block but he will not give the block to either of them. That aside it leaves what Julie James is saying without any shackle and chain to it. For the defendant it makes his alibi false as if it is the truth, it will simply of its own accord come to his lips. Even in the record of interview the date 23^rd March 2014 will automatically come to his lips that he was not in the garden as claimed as he was with his wife cooking with two other persons. He specifically says in his record of interview that he could not recall 23^rd March 2014. But then at question 30 says he was waiting for the fruit pickup truck. It is general alibi not specific and confined in time. It is late in coming and can be seen to be a last minute effort to create that he could not have done what the victims says he did because he was with his wife cooking. His alibi was false and was recent creation concocted out of conscious sense of guilt to avoid imminent guilt that was glaring at him. In Jaminan v The State [1983] PNGLR 318, a belated alibi was held to corroborate rape.
    
24. The Criminal Code Section 352A expressly states: CORROBORATION NOT REQUIRED, here including the warning of it. Coupled with that position in law I have observed the witness Julie James give evidence in court. I am satisfied with her demeanour as a witness of truth particularly considering the fact in everyday life that no married woman would come out and complain to her husband that the brother of the husband has committed rape upon her. It touches the intimacy of the marriage and would be very hard in everyday life to just as a matter of course spell it out just like that. Or for that matter another male person have sexual intercourse with her or vice versa. Accepting the fact that sexual intercourse between a married man and his wife is so intimate and can never be the subject of everyday casual conversation by either the husband or the wife with other persons outside the marriage.
    
25. Julie James knows very well that by asserting that the defendant had sexual intercourse with her she would either be beaten up by her husband with allegation of adultery behind his back and therefore a reason for the marriage to go out. Further still she knows very well that it will have both brothers in a fight amongst themselves over the matter and could easily lead to injury or death.
    
26. Counsel for defendant has submitted that it would need an expert a phycologist to give an opinion as to how a married woman would behave here in telling of sexual activity between herself and a man not her husband as here where her brother in law has raped her, that it would depend upon individuals and not a common denominator situation. I view that as an extreme situation as opposed to the normal everyday occurrence as evidenced by the many number of homicide and serious injury cases that have come before this court on suspicion or on adultery by one party to the marriage where injury has been inflicted or death has resulted over this matter. Lawrence Simbe v The State [1994] PNGLR is an example of that fact where the appeal to the supreme court was over the fact that the appellant felt that the de facto provocation offered by the deceased in trying to entice his wife was not taken into account in the sentence that was passed. The sentence was confirmed as 14 years IHL not set aside as argued by appellant.
    
27. Yet another case is Marangi v The State [2002] PGSC 15; SC702 (8 November 2002) where the appellant appealed against a manslaughter sentence of 9 years IHL where she was convicted of stabbing with a kitchen knife the “girlfriend” of her husband where the deceased girlfriend was 7 months pregnant. Again the appeal was dismissed and the sentence imposed at first instance was confirmed. The State v John (No 2), [1996] PNGLR 298 where Margaret John the wife had murdered the de facto wife of the common husband and she was sentenced to 6 years IHL after consideration of compensation that was demanded by the deceased relatives. In State v Er [1998] PGNC 78; N1749 (31 July 1998), the accused is the only lawful wife of her husband from whom she has borne him 4 children, the youngest of whom is with her at the CIS. She killed the deceased by stabbing her once on the right side of her neck from which injury she died the same day some hours later. At the time she stabbed the deceased, the accused wanted to give her “some pain” because the deceased was seeing the accused’s husband. The deceased saw her husband and the deceased together on Thursday. After this, she was beaten up by her husband. On Sunday, she met the deceased at a village basketball game and asked her to be compensated by the deceased for the harm done to her by her husband. The deceased refused and spat on the accused. This made the accused angry and she stabbed the deceased. The court sentenced her to 8 years IHL. In State v Komaip [1997] PGNC 31; N1557 (21 March 1997), there was a murder where the wife stabbed and killed the girl-friend of the husband. She pleaded guilty and was sentenced to 8 years IHL. In Lialu v The State [1990] PNGLR 487, the appellant was found guilty of manslaughter after a trial. The appellant and his wife met the deceased at the junction of Lahara Avenue and Bisini Parade next to the Papuan Rugby League Ground about midnight of 13 January 1989 into the early hours of 14 January 1989. Both men are said to have taken alcohol prior to meeting at the junction. It is clear from the evidence that the deceased said something to the wife of the appellant but it is not clear what was said. The appellant gave evidence at the trial of what was alleged to have been said by the deceased, but this was rejected by the trial judge. However, an argument developed as a result, and the appellant punched the deceased once on his back. The evidence is not clear as to exactly what part of the back of the deceased was punched. The evidence shows that the deceased fell backwards and hit the ground. It is not clear whether the injury to the back of the head was caused directly by the punch or by falling on the ground. In view of the uncertainty, I have reached a conclusion favourable to the appellant and that is that the injury was caused by falling backwards onto the ground. Appeal against sentence was upheld and the sentence at first instance of 6 years IHL was substituted for 4 years 6 months IHL. These are leading authorities in law which flow from this very primitive fact of intimacy between man and wife or vice versa.
    
28. The point is that Julie James was prepared to sacrifice all to tell the truth. She was prepared to sacrifice her marriage with James Weiki and child Ravency her six year old daughter to tell this story that Manuel Weiki had sexual intercourse with her where he raped her. I find that there is no other motive here except the urge to tell the truth as it happened to her. That is what she did swearing on the bible. I find her as a witness of the truth and I believe her evidence. I make similar observation in respect of her husband James Weiki. He told the truth, he would not support his wife if it wasn’t the truth. He was prepared to support the assertions that his wife levelled against his own blood brother because it was the truth.
    
29. I reject the defence evidence of the defendant and find that he lied to create an alibi. There was never an alibi at all. If it were he would have informed counsel to file and defend accordingly. He never raised it in the record of interview he was not obliged to but for the credibility of his defence he ought to have disclosed at the earliest opportunity he did not he has deliberately created a false alibi to avoid his guilt. He therefore corroborates the account of the state by so doing.
    
30. There are no problems in the identification of the person that Julie James saw on that morning of the 24^th March 2014. That person was the defendant Manuel Weiki and he was present in the peanut garden and he did commit rape upon her by threatening her with the bush knife dragging her across to the bushes nearby where he removed his trousers and hers then laid her on the ground and penetrated her by inserting his penis into her vagina and had sexual intercourse with her against her will.
    
31. I find that the State has discharged the burden of proof by proving that (1) Manuel Weiki was the person, (2) that he threatened Julie James with a bush knife, and she feared for her life (3) that he inserted his penis into her vagina and had sexual intercourse with her.
    
32. I find the defendant guilty of rape as charged.
    

Orders accordingly.

__________________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant