The State v Eddie Peter (No 1) (2001) N2296

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 12 October 2001
• Citation: (2001) N2296
• Court: National Court
• Year: 2001
• Judgement Number: N2296

Full Title: The State v Eddie Peter (No 1) (2001) N2296

National Court: Kandakasi J

Judgment Delivered: 12 October 2001

1 CRIMINAL LAW—Particular offence—Rape—Identification only issue for trial—Identification by recognizance of voice and items worn by accused at time of offence—Need to warn dangers of mistaken identification—Defence of alibi raised in evidence without giving required notice and any supporting evidence—Guilty verdict returned—Criminal Code s347.

2. EVIDENCE—Assessment of—Matter of logic and common sense—Evidence or claims inconsistent with logic and common sense not credible—Inconsistencies in accused oral evidence and record of interview and inconsistencies in the record of interview itself—Only inference open accused evidence incredible and unreliable.

3 John Beng v The State [1977] PNGLR 115, David Kandakason v The State (1998) SC558 and The State v Raphael Kimba Aki (2001) N2039 and The State v Saikoro Norman [1979] PNGLR 599 referred to

___________________________

N2296

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1446 of 1998

THE STATE

-V-

EDDIE PETER (No. 1)

ALOTAU: KANDAKASI, J.

2001: 9th, 10th and 12th October

CRIMINAL LAW – Particular offence – Rape – Identification only issue for trial – Identification by recognizance of voice and items worn by accused at time of offence – Need to warn dangers of mistaken identification – Defence of alibi raised in evidence without giving required notice and any supporting evidence – Guilty verdict returned – Criminal Code s. 347.

EVIDENCE – Assessment of – Matter of logic and common sense – Evidence or claims inconsistent with logic and common sense not credible – Inconsistencies in accused oral evidence and record of interview and inconsistencies in the record of interview itself – Only inference open accused evidence incredible and unreliable.

Cases cited:

John Beng v. The State [1977] PNGLR 115.

David Kandakason v. The State (1998) SC558.

The State v. Raphael Kimba Aki (unreported judgement delivered 26/01/01) N2039.

Counsel:

K. Popeu for the State

D. Kari for the Accused

DECISION ON VERDICT

10th October, 2001

KANDAKASI, J: Yesterday the accused pleaded not guilty to one count of rape contrary to section 347 of the Criminal Code (“the Code”) allegedly committed on the 26th of August 1998, at Naura not far from here. That necessitated a trial resulting in the State calling three witnesses and admitting into evidence with the consent of the accused a number of documentary evidence.

The Evidence

The first witness for the state was the victim, whose name I will not state for her protection. She was at the time of the alleged offence attending primary school and she is now doing grade 9. She was on her way to school around 7:00 am when she saw a masked man. Upon seeing the masked man, she turned and started running back. The masked man chased her until she ran out of breath and fell down on both her knees faced down crying. The masked man came from behind her and placed a grass knife on her neck and held her by her hands and lifted her up. He then took her toward the side of a river where it was bushy. She was still crying at that stage.

The masked man caused her to lie down on an old rotten log. He then demanded her to pull her skirt and pants down but she refused and the man removed them himself. He then opened both of her legs and proceeded to have sexual intercourse with her against her will. She felt a lot of pain in the process and she continued to cry in pain. He threatened her with the grass knife and ordered her not to cry. After having had forceful sexual intercourse with the victim, the masked man told her to go to the Naura Hospital and get medical treatment and he escaped.

The masked man was covered from the head down through his face terminating just below the chin with his beard sticking out. However, judging from his voice and the features of the man the victim recognised her assailant to be the accused. They are related by marriage. The assailant is married to an aunt of the victim and she calls him her uncle. They live in the same area, next door to each other. She was able to tell the colour and type of clothes her assailant wore at the time of her attack as a green, black and white stripe shirt or top and a long trouser.

After the ordeal the victim went straight to the accused house to confirm that it was the accused that raped her. When she got there, she asked if the accused was home and his father told her, he was not home. She then waited outside in between her house and that of the accused, all this time the victim was crying. Some 30 minutes later, the accused turned up through a coconut plantation. The accused appeared not to have seen the victim but the victim saw him going into his house. Not long after, the victim’s elder sister, the State’s second witness, returned from the garden and the victim reported the matter to her. At that time she was still crying.

After she had reported the rape on her to her elder sister, the victim and her sister went and reported the matter to a local or community leader. She was then taken to the Naura Hospital and from there to the Alotau Hospital for appropriate medical attention. The matter was reported to the Police on the same day at about the same time.

Earlier on a few months back, the victim says the accused also tried to force her to have sex with her but she cried and refused and he allowed her to go on that occasion.

The second witness corroborates the victim’s evidence especially on the possible timing of the rape, the victim reporting it to her and the victim receiving medical treatment as well has reporting the matter to authorities, including the police. She also confirms the victim on her evidence that the accused and them are related through marriage and live next door to each other. The statement of Sergeant Beniam Eli dated 29th August 1998 (Exhibit “B” admitted with the consent of the accused) also corroborates her.

Sergeant Eli confirms police receiving report of the rape on the victim, attending on the victim and the accused before arresting the accused and charging him. He took the clothings worn by both the victim and the accused that day. Some of these items are in evidence as exhibits. Before producing them in court as exhibits, they were sent to Port Moresby for forensic examination and testing. Sergeant Major Euga (3rd State witness) confirms having received the cloths and conducting the necessary scientific examination and tests and provided a report dated 22nd October 1998, which is exhibit “A”, also admitted into evidence with the consent of the accused. Sergeant Major Euga in her oral testimony and report confirms having found deposits of blood and seminal stains on the cloths allegedly coming from both the victim and the accused.

Alotau Hospital examined the victim and treated her. Two reports from that Hospital dated 27th and 31st August 1998 (exhibits “C1” and C2”) were also admitted into evidence by consent. These reports confirm the victim sustained injuries to both her knees and was in a general state of shock. They also confirm having found “spermatozoa [sperm cells] supportive of the allegation of rape.” This evidence also corroborates Sergeant Major Euga’s report and testimony and the other evidence against the accused.

The accused took the stand and gave a brief testimony without corroboration in any respect. He said the alleged rape took place on the 23rd of August 1998. On that date, he says he was sick and he stayed home especially the morning part. On the 26th of August 1998, he says he was in the police cells after having being arrested. He also denies having any knowledge of the victim and her witness, Daisy Victor. He says nothing about his earlier attempt at having sexual intercourse with the victim. His evidence runs in direct conflict in most respects with his answers to questions put to him in his record of interview.

The most notable ones are answers to...