The State v Eki Kondi, Mike John, Allan Nemo, Kelly Sop Kondi and Issac Sip (No 1) (2004) N2542

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 24 March 2004
• Court: National Court
• Citation: (2004) N2542
• Year: 2004
• Judgement Number: N2542

Full Title: The State v Eki Kondi, Mike John, Allan Nemo, Kelly Sop Kondi and Issac Sip (No 1) (2004) N2542

National Court: Kandakasi J

Judgment Delivered: 24 March 2004

1 CRIMINAL LAW—Verdict—Gang abduction and rape—Identification only—Issue for trial—Broad daylight—Victim able to identify three of her offenders by facial appearance—Not a fleeting glance—Other witnesses identifying leader of the gang—Circumstantial evidence supporting victim's evidence—Identification in Court—Fairness of—Accused raising belated alibi—Effect of—Credibility of their evidence much in doubt—Accused failing to rebut prima facie case against them—Guilty verdict returned.

2 The State v Peter Malihombu (2003) N2365, The State v Kevin Anis (2003) N2360, The State v Onjawe Tunamai (2000) N1989, Jimmy Ono v The State (2002) SC698, The State v Cosmos Kutau Kitawal (No 1) (2002) N2245, The State v Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48, Garitau Bonu and Rosanna Bonu v The State (1997) SC528, Paulus Pawa v The State [1981] PNGLR 498, The State v Tauvaru Avaka (2000) N2024, Gibson Gunure Ohizave v The State (1998) SC595, John Jaminan v The State (No 2) [1983] PNGLR 318, Michael Mini v The State [1987] PNGLR 224, The State v Marety Ame Gaidi (No 1) (2002) N2256 referred to

Decision on Verdict

___________________________

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1451 & 1453 of 2003

THE STATE

-V-

EKI KONDI,

MIKE JOHN,

ALLAN NEMO,

KELLY SOP KONDI

& ISSAC SIP

(No. 1)

VANIMO: KANDAKASI, J.

2004: 22nd and 24th March

DECISION ON VERDICT

CRIMINAL LAW - Verdict – Gang abduction and rape – Identification only – Issue for trial – Broad daylight – Victim able to identify three of her offenders by facial appearance – Not a fleeting glance – Other witnesses identifying leader of the gang - Circumstantial evidence supporting victim’s evidence – Identification in Court – Fairness of - Accused raising belated alibi – Effect of – Credibility of their evidence much in doubt – Accused failing to rebut prima facie case against them – Guilty verdict returned.

Cases cited:

The State v Peter Malihombu (unreported judgment delivered on 29/04/03) N2365

The State v Kevin Anis & Martin Ningigan (unreported judgment 07/04/03) N2360

The State v Onjawe Tunamai (unreported judgment delivered on 15/02/00) N1989

Jimmy Ono v The State (unreported judgment delivered on 04/10/02) SC698.

The State v cosmos Kutau Kitawal No. 1 (Unreported judgment delivered on 15/05/02) N2266The State v Gari Bonu Garitau & Rossana Bonu [1996] PNGLR 48

Garitau Bonu & Rosanna Bonu v The State (Unreported judgment delivered on 15/05/02) N2266

Paulus Pawa v The State [1981] PNGLR 498

The State v Tauvavu Avaka & Anor (Unreported judgment delivered on 2/11/00) N2024.Gibson Gunure Ohizave v The State (Unreported judgment delivered on 26/11/98) SC595.John Jaminan v. The State (N0.2) [1983] PNGLR 318.

Michael Mini v. The State [1987] PNGLR 224.

The State v. Marety Ame Gaidi (01/08/02) N2256.

Counsel:

F. K. Popeu for the State

D. Kari for the Accused

24th March, 2004

KANDAKASI J: The all five of you pleaded not guilty to one count each of gang abduction and another of a gang rape against the victim (named) on the 3rd of May 2003 at Hua Base Camp and Samararu respectively, here in the Sandaun Province. This necessitated a trial on the 22nd of this instant.

Issue for trial

At pretrial and the commencement of the trial, you all confirmed through your lawyer that the only issue for trial was identification. Effectively, therefore you claimed that you were not at the scene of the crime and did not commit the offence. No other aspects of the charge against you were thus in issue. So I find those aspects as being established against you on the required standard of prove beyond any reasonable doubt.

The Evidence

(i) First State Witness

In a bid to establish the issue for trial, the State called the victim, and three other witnesses including a medical doctor. In addition, it admitted into evidence a medical report through the doctor which is the only exhibit in this case and is marked “A”.

The victim recalls that, on 2nd May 2003, she was heading for the Vanimo town in a vehicle driven by an Asian by the name of Lee. When they reached the Blackwara Bridge, the bridge had broken down. Hence, they could not drive across in the vehicle. So she crossed the river by foot and got in a Jinker truck and went to Town.

In Town, she did some shopping and returned on the Jinker truck back to the broken down bridge. She crossed the river on to the other side again by foot. At the site of the broken down bridge, she saw a George Kori amongst a group of people working on the bridge. When George saw her, he called and she went and stayed in his vehicle. George was waiting for the work on the bridge to complete so he could go and pick some teachers before returning.

As she was waiting, George asked if she could buy him a soft drink and she agreed to do that and asked him to drive her to a store. As they were trying to take off, a group of men or boys who were at the back asked George to leave her in their hands. He refused saying if he did that, he might get into trouble as she came with some body and not on her own. She and George went to a store bought a soft drink, returned to the bridgework site, and waited for the workers to fix the bridge. As soon as that, happened, they went and picked some teachers then left, with the group of men following them in motor vehicle, a green double cabin.

After dropping off the teachers, she and George continued again with the group of men following them. They managed to leave the group of men behind with the lights from their vehicle getting dimmer. The witness and George continued and arrived at George’s house. Then from there, to Hua Camp, where George left her with another married women. There she stayed over for the night.

In the morning of the next day, 3rd May 2003, the witness got up and was on her way to pick up her belongings. As she went along, she saw the same vehicle that followed her and George coming again with the lights of the vehicle on. As the vehicle got nearer to her, the group of men in the vehicle pointed their fingers at her and she got frightened and started to run for safety. She continued and the group of men chased her all the way to Michael Ori’s house. She entered that house but the men outnumbered him and its occupant and so he could not help her. Therefore, she jumped out of the window. The men continued to chase her with a bush knife.

She continued to run away from the men and she reached an Asian man’s house. There she opened the shower room, went in and locked herself in. However, a shorter boy amongst the men identified her by the colour of the shirt she wore that day through a small hole. The men then proceeded to push on the door and demand to her to open the door and get out. If she did not comply, they threatened to get inside and chop her. Out of fear, she opened the door and got out. As soon as she came out, two of you men who she identified as Eki Kondi your offsider, Kelly Sop Kondi armed with a bush knife each, took her by her hands and dragged her out through the main door of the house and into the vehicle, the same one she saw the previous day at Blackwara. This happened so fast.

You then wound the glass up and drove off with her, until you reached the junction of the road leading to Samararu village. There you parked the vehicle. The driver who she identified as Eki Kondi by pointing you out in the accused box, took her...