The State v Philip Nangoe (2007) N4922

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 18 September 2007
• Citation: (2007) N4922
• Docket Number: CR NO 392 of 2006
• Court: National Court
• Year: 2007
• Judgement Number: N4922

Full Title: CR NO 392 of 2006; The State v Philip Nangoe (2007) N4922

National Court: Cannings J

Judgment Delivered: 18 September 2007

N4922

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 392 OF 2006

THE STATE

V

PHILIP NANGOE

Buka: Cannings J

2007: 10, 11, 18 September

CRIMINAL LAW – rape, Criminal Code, Section 347 – trial – general denial – complainant did not give evidence – whether conviction can be entered in absence of evidence of the person allegedly raped

A man was indicted for rape. He pleaded not guilty. It was the State’s case that the accused, who had been drinking till the early hours of the morning with a friend, left his friend when a woman walked past on the road, then proceeded to rape the woman. The woman was mentally retarded and did not give evidence in the trial. The State, however, produced a witness who said that she saw what happened and the friend of the accused with whom he had been drinking; plus a number of other witnesses, family members and medical staff who dealt with the complainant after the incident. It was not in dispute that the complainant was raped but the accused, who remained silent and produced no evidence, denied involvement.

Held:

(1) Though certainly desirable, it is not essential in a sexual offence case, that the complainant (the person against whom the offence was allegedly committed) give evidence, if there are good reasons for the absence of that evidence.

(2) Here there were good reasons owing to the mental condition of the complainant, so the case turns on whether the evidence adduced by the State proves the two essential elements of the offence: sexual penetration and lack of consent.

(3) The case turns on the credibility of the eyewitness evidence and of the evidence of the friend with whom the accused had been drinking. Both witnesses gave credible evidence, which was corroborated by the evidence of other witnesses.

(4) There was sufficient evidence for the court to be satisfied beyond reasonable doubt that the accused sexually penetrated the complainant without her consent, in circumstances of aggravation. The accused was accordingly convicted of aggravated rape.

Cases cited

The following cases are cited in the judgment:

Eddie Sam v The State SCRA No 11 of 2004, 30.08.07

John Beng v The State [1977] PNGLR 115

John Jaminan v The State (No 2) [1983] PNGLR 318

The State v Alex Matasol Hagali CR No 928 of 1997, 28.09.06

The State v James Yali (2005) N2988

The State v Jimmy Aiyo CR No 147 of 2005, 28.09.06

TRIAL

This was the trial of an accused charged with rape.

Counsel

L Rangan, for the State

P Kaluwin, for the accused

18 September, 2007

1. CANNINGS J: Philip Nangoe, the accused, has pleaded not guilty to aggravated rape. The offence was allegedly committed at Kutubuta village, Buka Island, between 3.00 and 6.00 am on 23 February 2004. It was the State’s case that the accused, who had been drinking to the early hours of the morning with a friend, left his friend when a woman walked past on the road, then proceeded to rape the woman, the complainant, “Hessa”. She was 20 years old at the time. She is mentally retarded and did not give evidence in the trial. Though certainly desirable, it is not essential in a sexual offence case, that the complainant (the person against whom the offence was allegedly committed) give evidence, if there are good reasons for the absence of that evidence (Eddie Sam v The State SCRA No 11 of 2004, 30.08.07). Here there were good reasons owing to the uncontested mental impairment of the complainant, so the case turns on whether the evidence adduced by the State proves the two essential elements of the offence: sexual penetration and lack of consent. The State produced a witness who said that she saw what happened and the friend of the accused with whom he had been drinking, plus a number of other witnesses; family members and medical staff who dealt with the complainant after the incident. It is not in dispute that the complainant was raped at the time and place alleged by the State. But the accused, who remained silent and produced no evidence, denied involvement.

EVIDENCE FOR THE STATE

Oral evidence

2. Six witnesses gave oral evidence for the State. Two of them were key witnesses. Helen Meats says she saw what happened and identified the accused as being the person who raped the complainant. Elwin Kewa is the man who had been drinking with the accused prior to the rape incident.

3. The other witnesses were family members (Ruth Kamar and Emily Tatani) and medical staff (Grace Hanette and Ludwina Nahi) who attended on the complainant after the incident. Their evidence is of less direct relevance.

Exhibits

4. Eight documents were admitted. The first three were medical documents. The remaining five, including the accused’s record of interview, related to the police investigation. The accused denied having sex with the complainant and denied seeing her at the time and place of the rape incident.

HELEN MEATS’ EVIDENCE

5. She is 30 years old, from Kutubuta village. She is related to the complainant, who is long-long, she said. She remembers the incident that took place near her house next to the Buka Highway about 5.30 am on 23 February 2004. She was awake and in the house with a number of other people when she heard shouting coming from the road. She went out to the road. She heard Hessa calling ‘Philip, get away from me, I didn’t come here to fight with you or for you to do such things to me’. Helen said that she hid under a mango tree and saw Philip sexually penetrating Hessa. He was on top of her. She didn’t shout, get cross or go for help as she was scared Philip might hit her. The incident took place just off the side of the road. There were no trees or plants blocking her view. She was about eight metres away from where Philip and Hessa were. She observed what was going on for about five minutes before Philip let go of Hessa and went away. Helen pulled Hessa towards her and took her to her house. Her trousers were torn, her shirt was soiled, she had a scratch on her face, there was blood on her clothes, apparently coming from her vagina, she was crying. After a while, Hessa’s mother came past and Helen called her in to take Hessa away. Helen told the mother that Philip had raped Hessa. Then her mother took her away. Helen identified the accused as being Philip that she saw that morning having sex with Hessa. She is not related to him but used to see him in the village and talk to him. She knew who he was. She has never had a bad relationship with him or his relatives. She saw no person other than Philip and Hessa at the place where the incident took place.

6. In cross-examination the defence counsel, Mr Kaluwin, questioned the witness intensively. Why didn’t she seek help from other members of the household either before or after she left the house to check on what was happening on the road? She said she recognised Hessa’s voice. That is why she went to investigate. There were men in the house, already awake, when she first heard the shouting. She does not know why the men did not go and investigate. She does not know what they were thinking. When she got there and saw what was going on, she felt afraid to do anything except observe. It was not dark, it was already dawn and she could see what was happening. She knew it was Philip. Asked exactly where the incident happened, Helen Meats said that it was neither under a tree nor in the middle of the road. It was on the side of the road. That is what she told the police when they did their investigation. She denied making up stories about what happened.

ELWIN KEWA’S EVIDENCE

7. He is 30 years old and lives in the locality of the rape incident. He is an educated man, having graduated with a Diploma in Arts from Divine Word University. He was with Philip early the morning of the incident, 23 February 2004. He had been drinking with him on the nights of 21 and 22 February 2004. They had both been drinking home brew and were drunk as they were walking along the road. A woman walked past and went ahead of them. Philip told him to wait and said ‘I’ll go and see this woman’. Elwin says he stopped to repair a cassette music tape that he was playing. Then he heard a woman screaming. She said “Philip, Philip’. That is all he heard. He ran towards the scream, then he got to the spot outside Helen’s house and saw Philip there. Philip was short of breath. Philip said nothing but later they went to Elwin’s mother’s house where Philip said he had had sex with that woman. Philip said it was Hessa. Later he and Philip went to look for more home brew at Elwin’s father’s village. One of Hessa’s cousins came there and assaulted Philip.

8. In cross-examination Elwin admitted to being drunk on the morning of the incident. But he was not so drunk that he could not run. He ran about 60 metres when he heard the woman screaming. He ran. He did not fall. He can remember that when he got to the spot he heard Philip gasping for air. Philip was drunker than he, Elwin, was. Elwin said that he...