The State v Luke Sitban (No 1) (2004) N2572

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 07 June 2004
• Citation: (2004) N2572
• Court: National Court
• Year: 2004
• Judgement Number: N2572

Full Title: The State v Luke Sitban (No 1) (2004) N2572

National Court: Kandakasi J

Judgment Delivered: 7 June 2004

1 CRIMINAL LAW—PRACTICE AND PROCEDURE—Defence case to prosecution witness for the first time—Failure by defence to call evidence supporting the case put—Effect of—Recent inventions and most unfair questioning—Unreliable evidence.

2 CRIMINAL LAW—PRACTICE AND PROCEDURE—When identification is only issue for trial—All other elements of offence not in issue—Court need to warn itself of danger of mistaken identification—Need to closely examine circumstances in which identification made—If circumstances in which identification is good, identification save to act on.

3 CRIMINAL LAW—Verdict—Rape of 10 year old girl—Identification only issue for trial—Positive identification of accused by victim and witness—Lack of medical evidence—Whether fatal—Prosecution evidence logical and in touch with commonsense—Accused claiming someone else committed the offence—No evidence establishing that claim—Accused evidence lacking logic and credibility—Guilty verdict return—Criminal Code s347(1).

4 The State v Flotyme Sina (No 1) (2004) N2540, SCR No 1 of 1980; Re s22A(b) of Police Offences Act (Papua); Biyang v Liri Haro [1981] PNGLR 28, The State v Ben Noel (2002) N2253, The State v Cherobim Kani Peso (2003) N2412, John Jaminan v The State (No 2) [1983] PNGLR 318, The State v Cosmos Kutau Kitawal (No 1) (2002) N2245, The State v Kevin Anis (2003) N2360, The State v Eki Kondi (No 1) (2004) N2542, The State v Donald Angavia, Paulus Moi and Clement Samoka (No 1) (2004) (Unnumbered and unreported judgment of Kandakasi J delivered on 27 April 2004), Jimmy Ono v The State (2002) SC698, The State v Marety Ame Gaidi (No 1) (2002) N2256, Browne v Dunn (1893) 6 R 67 (HL) referred to

___________________________

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 682 of 2000

THE STATE

-V-

LUKE SITBAN

(No. 1)

WEWAK: KANDAKASI, J.

2004: 3rd , 4th, and 7th June

CRIMINAL LAW – PRACTICE & PROCEDURE – Defence case to prosecution witness for the first time – Failure by defence to call evidence supporting the case put – Effect of – Recent inventions and most unfair questioning – Unreliable evidence.

CRIMINAL LAW – PRACTICE & PROCEDURE – When identification is only issue for trial – All other elements of offence not in issue – Court need to warn itself of danger of mistaken identification – Need to closely examine circumstances in which identification made – If circumstances in which identification is good, identification save to act on.

CRIMINAL LAW - Verdict – Rape of 10 year old girl – Identification only issue for trial – Positive identification of accused by victim and witness – Lack of medical evidence – Whether fatal – Prosecution evidence logical and in touch with commonsense – Accused claiming someone else committed the offence – No evidence establishing that claim – Accused evidence lacking logic and credibility – Guilty verdict return - Criminal Code ss. 347(1).

Cases cited:

The State v. Flotyme Sina (No.1) (Unreported judgment delivered on 18/05/04) N2540.

SCR No. 1 OF 1980; Re s. 22A (b) of the Police Offences Act (Papua) [1981] PNGLR 28.

The State v.Ben Noel & Ors (Unreported judgment delivered on 31/05/02) N2253

The State v. Cherobim Kani Peso (Unreported judgment delivered on 13/06/03) N2412.

John Jaminan v. The State (N0.2) [1983] PNGLR 318.

The State v. Cosmos Kutau Kitawal & Anor (No 1) (Unreported judgment delivered on 15/05/02) N2266.

The State v. Kevin Anis and Martin Ningigan (Unreported judgment delivered on 7/04/03) N2360.

The State v. Eki Kondi & Ors (Unreported judgment delivered on 23/03/04) CR NO.1451 of 2003 & Ors.

The State v. Donald Angavia & 2 Ors v (Unreported judgment delivered on 27/04/04) CR 256 of 2004.

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

The State v. Marety Ame Gaidi (Unreported judgment delivered on 01/08/02) N2256.

Overseas Cases Cited:

Browne v. Dunn (1893) 6 R 67 (HL).

Counsels:

J. Walai for the State

L. Siminji for the Accused

7th June 2004

KANDAKASI J: You pleaded not guilty to one charge of raping a small girl (named but referred to only as the victim) at Konabandu, in the Wosera District of the East Sepik Province on 30th September 1995. A trial therefore, took place on 3rd and 4th of June 2004 with a decision on your verdict reserved to today. This is now the decision of the Court.

In a bid to establish the charge against you, the State called two witnesses who gave oral testimonies under oath. That was in addition to admitting into evidence your record of interview with the police, in English and Pisin versions and marked as exhibit “A1” and “A2” respectively.

The Offence and its Elements

The Criminal Code as recently amended by the Criminal Code (Sexual Offences and Crimes Against Children) Act 2002

(No. 27 0f 2002) s. 17.

1 creates and defines the offence of rape in these terms:

“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.”

As I have recently observed in a number of rape cases recently as in The State v. Flotyme Sina (No.1) (Unreported judgment delivered on 18/05/04) N2540, the amendments seek to clarify and introduce a new definition for rape and a penalty regime. The definition is only in respect of who could be a victim of rape. Previously it was females only. Now, there is no gender indication. It defines the offence, in terms of a person sexually penetrating another without that other person’s consent. Otherwise, it has always been clear and it continues to be so, that the offence of rape has a number of elements. These are:

1. A person who;

2. sexually penetrates;

3. another person;

4. without that person’s consent

is guilty of the offence of rape.

In all criminal cases, the prosecution always has the burden to prove beyond any reasonable doubt, every element of an offence. In SCR No. 1 OF 1980; Re s. 22A (b) of the Police Offences Act (Papua) [1981] PNGLR 28, the Supreme Court, per Greville Smith J, at page 34, confirmed this. I referred to the relevant passage and applied it in a number of cases as for example in The State v.Ben Noel & Ors (unreported judgment delivered on 31/05/02) N2253.

In your case, this means, the State had the burden to prove each of the elements outlined above beyond any reasonable doubt. The question for this Court to resolve then is, has the prosecution proved all of the elements of the charge of rape against you? But this question must be viewed in the context of the issue for trial in your case, which was one of identification.

Given the issue for trial, you do not dispute that there was a sexual intercourse or penetration of the victim by someone on the day, date and place alleged. The only issue is whether, that someone was you or somebody else? The evidence called by both the prosecution and you in your defence will help answer that issue. Accordingly, I turn to consider of the evidence and facts emerging from them.

The Evidence

(i) Victim’s Testimony

The first State witness was the victim. Her evidence is very brief. She testified that on the day of the offence, 30th September 1995, she was a grade one student at the Kwanjivia Community School. She was on her way to her village Konabandu No.2 after being with one of her teachers. Her village is about one and half kilometers away from yours, Konabandu No.3. She passed through your village and as she did, she saw you working on the roof of a house.

She says, you followed her along the road and once out of your village and some distance away, you asked her if she was Sila’s daughter and she replied yes. Thereafter you grabbed her, she tried to scream, and you got a shirt and covered her mouth with it, saying, “if you call out, I will kill you.” You then pulled her into the nearby bushes. There, you tore the trousers she was wearing, took off her pants and proceeded to have forceful sexual intercourse with her. As she was then a small girl, your having sexual intercourse with her rendered...