The State v Ereman Donald Kanailom (2008) N3273

• Jurisdiction: Papua New Guinea
• Judge: Lenalia, J
• Judgment Date: 05 February 2008
• Citation: (2008) N3273
• Docket Number: CR. NO. 1618 OF 2003
• Court: National Court
• Year: 2008
• Judgement Number: N3273

Full Title: CR. NO. 1618 OF 2003; The State v Ereman Donald Kanailom (2008) N3273

National Court: Lenalia, J

Judgment Delivered: 5 February 2008

N3273

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 1618 OF 2003

THE STATE

V

EREMAN DONALD KANAILOM

Kokopo: Lenalia, J.

2007: 18 & 19 October

2007: 11 & 15 November

2007: 20 December

2008: 5 February

CRIMINAL LAW – Sexual offences – Sexual penetration of blood relative –

Aggravations – Incest by men of daughter – Five counts rape – Five alternative counts of incest – Persistent sexual penetration – Pleas of not guilty – Criminal Code (Sexual Offences and Crimes Against Children) Act 2000.Sections 223 & 347

CRIMINAL LAW – Rape and Incest aggravations – Trial – Voir Dire – Evidence –

Standard of proof – Whether accused signed the record of interview voluntarily or by duress.

CRIMINAL LAW – PRACTICE & PROCEDURE – Conduct of record of interview – Allegations of accused remaining silent during conduct of the record of interview – Nature of assault particularized in Notice of Voir Dire.

CRIMINAL LAW – PRACTICE & PROCEDURE – Allegations of breach of Section 42 (2) of the Constitution – Allegations not substantiated and were not pleaded in the Notice of Voir Dire.

CRIMINAL LAW – A party who alleges breaches of Constitutional rights must properly put his/her case to the State witnesses so that the State will be ready to meet such allegations on trial of the voir dire or trial proper. Failure to plead such allegations in the Notice of Voir Dire is fatal to the defence case be it in a trial proper or voir dire trial.

Cases cited:

Papua New Guinea Cases

R v Kar Moro & 16 Others [1975] PNGLR 14

Constitutional Reference No.1 of 1977 [1977] PNGLR 362

The State v Kusap Kei Kuya [1983] PNGLR 263

The State v Paro Wampa & 5 Others [1987] PNGLR 120

The State v John Ave & 2 Others (2004) N2622

The State v Raphael Walimini (2004) N2661

The State v Joanes Mesak (2005) N2853

The State v Towes Minmin (2005) N2915

The State v John Warkaul & Others – Unreported and unnumbered.

Overseas cases

Browne v Dunn (1893) 6 E.R 67

Reid v Kerr (1974) 9 S.A.S.R 368

McPearson v R (1981) 147 C.L.R 512

McDermott v The King (1948) 76 C.L.R 501

Counsels

Mr. L. Rangan, for the State

Ms. S. Maliaki, for the Accused

5 February, 2008

1. LENALIA, J: The accused, Ereman Donald Kanailom of Kunakunai village in the Kokopo District is charged with five counts of rape and five alternative counts of incest. These offences are contrary to Sections 223 and 347 of the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002.

Evidence

2. On arraignment, the accused entered pleas of not guilty to each of the charges on the indictment. During the trial, a number of witnesses were called. Henry Luana Liuta currently a ward councillor of Kadaulung Ward on in-land Baining Local Level Government gave evidence of his observation and information he collected from reputable persons in the community complaining to him that, the accused was having sexual relationship with his daughter. Amongst those who complained to Councillor Henry, was the accused’ wife Adie Balus.

3. Originally, this witness came from Ralalar village in the Gazelle District but his father moved to Kadaulung in or around 1973 or 1974. They have permanently resided at Kadaulung ever since. He is currently self-employed in the field of carpentry and joinery helping in his fathers business to date. He graduated from what used to be Malaguna Technical College with a trade certificate some time back.

4. According to Henry, when the accused wife came and lodged a complaint to him, he commended the accused’s wife because some people in the community had earlier complained to him that, the accused was having an incestuous relationship with his daughter and those who reported to Henry said that it was obvious from the behaviour of the accused to the victim.

5. After receiving these reports, Henry summoned his Ward Committees together and had a meeting with them. The committee reached a resolution that, the matter should be referred to the Sexual Offences Squad (S.O.S) in Kokopo. In fact the whole committee together with Henry came to lay the complaint on behalf of the accused’s wife.

6. After, they had reported to the police, Henry and his committee even assisted the police by providing transport to the police to where the accused was and had him arrested. Police investigated and charged the accused for the offences of raping his daughter.

Voir Dire

7. Rolland Funmat was a Sergeant in the Police Force at the time the accused was arrested. He is no longer in the Police Force now. He investigated the offence and he was the interviewing officer in this case. The witness said, before laying the charges against the accused, he obtained statements from witnesses including the victim. Then being satisfied of sufficient evidence put before him during investigation, he conducted a record of interview with the accused on 31 June 2003. Detective Constable Orim Konge corroborated him during the record of interview.

8. Sergeant Funmat’s evidence is that before, he commenced the record of interview with the accused, he cautioned him under s.42 (2) of the Constitution and gave him the right to see a lawyer of his choice or a member of his family. The accused indicated that, he wanted to talk to his brother Betuel after the record of interview was completed if his brother came to the S.O.S office at Ralum. There was no evidence to show if the accused brother ever came to see him at the police station during the period within which he was remanded in custody.

9. Asked in chief and cross-examination about alleged impropriety put against him in the Notice of Voir Dire, the witness said, all that was recorded in the record of interview was voluntarily made as the accused made confession about him having an incestuous relationship with his only daughter Nancy Kanailom.

10. He further stated that there were no threats and no intimidation of any sorts used against the accused to elicit what was being said by the accused in the record of interview. This witness was asked in cross-examination if it was true that, the accused had refused to sign the record of interview and as the result of refusing to sign the record of interview and the statement he then assaulted the accused in order to force the accused to sign.

11. The witness said, the allegations levelled against him by the accused were totally false and far from the truth as he recalls that, he and his corroborator had conducted the record of interview in a fair and lawful procedure. He was asked if he punched the accused on the left-eye brow. The witness said, the accused fully cooperated with him and his corroborator until the record of interview was completed. Then that after the record of interview was completed, he asked the accused to sign it and he did sign voluntarily. Evidence by Sergeant Rolland Funmat reveals that, the signing of the record of interview took place three days after it was conducted.

12. He was further asked if he punched the accused on his mouth causing the accused to fall to the floor. The witness said, he did not punch the accused and to punch a person of the accused built would have required a person with an immense physical built to hit the accused causing him to fall on the floor. The witness denied assaulting the accused in the manner stated by the defence in the Notice.

13. The next witness called was the corroborator Orim Konge. He was asked by Sergeant Funmat to corroborate him in the record of interview with the accused. He said during the interview, the accused fully admitted that it was true, he had had a sexual relationship with his daughter. According to Orim Konge, the accused is said to have admitted to having abused his daughter for over three years.

14. In cross-examination, Orim was asked about the allegations of assault, intimidation and threats made against the interviewing officer. The witness said, such allegations are all lies. Orim stated that, in the course of the interview with the accused, no threats and no promise were made to the accused and the record of interview was done in an orderly and usual customary manner in which, the accused was given the usual caution followed by introduction of the two officers present on the record of interview. Then the record of interview commenced with questions and answers from the accused.

Defence Case

15. Two witnesses were called by the defence. The accused himself said in evidence that in the month of April 2003, the policemen came to his house at Warongoe settlement and arrested him and brought him down to the Police Station at Kokopo. The accused does not recall the date on which he was arrested. He says, the policemen who arrested him were members of the Task Force and after his arrest, they did not attend to his case for a long time.

16. Then sometimes in late May or early June of that year, he complained to the cell guard. That cell-guard probably saw C.I.D members about the accused complaint. He came back and told the accused that, he should wait for further investigations on his case.

17. It happened one day still in the month of June that, the accused saw a policeman whom he knows and the accused complained to him about his long remand period in the police station without being interrogated. This policeman whom the accused knew went to the C.I.D office and told the Officer-in-Charge of that office about the accused complaint....