The State v Lucas Soroken Sembengo, Raphael Lawrence Mandal and Bob Alois Wafu (2006) N3029

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 16 February 2006
• Court: National Court
• Citation: (2006) N3029
• Docket Number: CR NOS 556-558 OF 2004
• Year: 2006
• Judgement Number: N3029

Full Title: CR NOS 556-558 OF 2004; The State v Lucas Soroken Sembengo, Raphael Lawrence Mandal and Bob Alois Wafu (2006) N3029

National Court: Cannings J

Judgment Delivered: 16 February 2006

N3029

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 556-558 OF 2004

THE STATE

V

LUCAS SOROKEN SEMBENGO,

RAPHAEL LAWRENCE MANDAL AND

BOB ALOIS WAFU

Kimbe: Cannings J

2005: 18-21, 24-26 October 2005

2006: 16 February

VERDICT

CRIMINAL LAW – indictable offences – Criminal Code, Subdivision VI.2.B, offences – Section 436, arson

CRIMINAL LAW – indictable offences – Criminal Code, Subdivision VI.1.D (stealing with violence: extortion by threats) – Section 386 (the offence of robbery)

CRIMINAL LAW – indictable offence – Criminal Code, Division V.7, sexual offences and abduction – Section 347, definition of rape – trial on a charge of rape under Section 347 – elements of offence

CRIMINAL LAW – evidence – identification evidence – relevant considerations when determining credibility – pre-existing knowledge of identity of accused – recent complaint

CRIMINAL LAW – evidence – alibi evidence – relevant considerations when determining worth of alibi evidence

Three men were charged with arson, armed robbery and rape following incidents at Barema oil palm settlement, near Bialla, West New Britain Province, in December 2003. It was alleged that the three acted in concert with other persons to burn down a family’s dwelling house then a few hours later staged an armed robbery on another family’s home and raped a female resident. They pleaded not guilty, denying all involvement in both incidents. They are aged in their early 20s and were born and raised in Barema. The State called seven witnesses. The defence called ten witnesses, including the three co-accused who gave evidence in their defence. They relied on alibis. The case turned on the strength of the identification evidence and the alibi evidence.

Held:

(1) In a case where it is conceded that offences have been committed and there is a general denial by a number of co-accused as to their involvement and the case turns on identification and alibi evidence, the court should look at each incident separately to determine whether any one or more of the co-accused was involved.

(2) The approach taken in relation to each incident was:

(i) to consider the identification evidence and determine whether it looks strong enough to conclude that one or more was involved;

(ii) to consider the alibi evidence, bearing in mind that if the identification evidence is strong the alibi evidence will need to be strong to counter the weight of the identification evidence and will need to be examined in detail, but if the identification evidence is not strong the alibi evidence will not need to be considered in detail; and

(iii) to consider both the identification evidence and alibi evidence in the context of all other aspects of the evidence, including whether there was any motive for what happened.

(3) As to the arson incident, the identification evidence was not strong and was insufficient to sustain a conviction.

(4) As to the armed robbery and rape incident the identification evidence was strong, the alibi evidence was weak and unreliable and there was a motive identified by the prosecution. The elements of these offences were proven beyond reasonable doubt.

(5) Accordingly each of the three co-accused was acquitted of arson and convicted of armed robbery and rape.

Cases cited

The following cases are cited in the judgment:

Biwa Geta v The State [1988-89] PNGLR 153

Browne v Dunn (1893) The Reports 67

John Beng v The State [1977] PNGLR 115

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

Ono v The State (2002) SC698

The State v Donald Poni (2004) N2663

The State v Eki Kondi (No 1) (2004) N2542

The State v John Beng [1977] PNGLR 115

The State v John Bosco (2004) N2777

The State v John Michael Awa and Others (2000) N2012
The State v David Yakuye Daniel (2005) N2869

The State v John Michael Awa and Others CR No 905 of 1998, 15.05.00, unreported

The State v Kusap Kei Kuya [1983] PNGLR 263

The State v Noutim Mausen (2005) N2870

The State v Okata Talangahin (No 1) (2004) N2581

The State v Raphael Walimini (2004) N2627

Abbreviations

The following abbreviations appear in the judgment:

© – copyright

AJ – Acting Justice

CEO – Chief Executive Officer

CID – Criminal Investigations Division

CJ – Chief Justice

Const – Constable

CR – criminal case

DCJ – Deputy Chief Justice

Dep – Deputy

Det – Detective

Dr – Doctor

eg – for example

ENBP – East New Britain Province

Govt – Government

ie – that is; by which is meant

J – Justice

km – kilometre

N – National Court judgment

No – number

Oct – October

OIC – officer-in-charge

p – page

PNG – Papua New Guinea

PNGLR – Papua New Guinea Law Reports

pp – pages

Prov – Provincial

PSC – Police Station Commander

Pty – Proprietary

ROI – record of interview

SC – Supreme Court judgment

Sgt – Sergeant

Snr – Senior

v – versus

WNB – West New Britain

WNBP – West New Britain Province

Tables

The following tables appear in the judgment:

1 –	summary of exhibits.
2 –	witnesses called by the State.
3 –	witnesses called by the defence.

TRIAL

This was the trial of three co-accused charged with arson, armed robbery and rape.

Counsel

J Kesan, for the State

R Inua and A Asan, for the accused

16 February, 2006

1. CANNINGS J: INTRODUCTION. This is a decision on the verdict for three young men who pleaded not guilty to one charge each of arson, armed robbery and rape.

BACKGROUND

Incidents

2. The incidents giving rise to the charge are alleged to have taken place at Barema oil palm settlement near Bialla, West New Britain, in December 2003. It is alleged that the three acted in concert to burn down a family’s dwelling house; stage an armed robbery on another family’s residence; and rape a female resident.

Indictment

3. On 18 October 2005 the co-accused were brought before the National Court and faced an indictment containing three counts:

Count One

Lucas Soroken Sembengo and Raphael Lawrence Mandal both of Abduono and Bob Alois Wafu of Kafle all of Nuku in Sandaun Province stand charged that they … on the 21st day of December 2003 at Barema in Papua New Guinea wilfully and unlawfully set fire to 2 buildings serving as a dwelling house and a kitchen and personal properties valued at K9,780.00 and situated at Barema, Section 15, Block No 1296 the properties of one Elly Stanley.

Count Two

Lucas Soroken Sembengo and Raphael Lawrence Mandal both of Abduono and Bob Alois Wafu of Kafle all of Nuku in Sandaun Province stand charged that they … on the 21st day of December 2003 at Barema in Papua New Guinea stole from one Henni Sivilien with actual violence, K460.00 in cash and assorted clothes valued at K86.00 the property of the said Henni Sivilien.

And at this time [they] were armed with one homemade gun, one axe, one bush knife and one spear and were in company with each other.

Count Three

Lucas Soroken Sembengo and Raphael Lawrence Mandal both of Abduono and Bob Alois Wafu of Kafle all of Nuku in Sandaun Province stand charged that they … on the 21st day of December 2003 at Barema in Papua New Guinea sexually penetrated one Henni Sivilien without her consent.

4. The charges were laid under the following provisions of the Criminal Code:

· count 1 – Section 436(a), arson;

· count 2 – Section 386, the offence of robbery; and

· count 3 – Section 347, rape.

Arraignment

5. The three co-accused pleaded not guilty to all three charges. They were present throughout the trial.

GLOSSARY

6. The following glossary lists the names of individuals and places referred to in the evidence:

Individuals

Alphonse Wakal (deceased) – son of Wakal Tambala

Andreas Martin – Henry Martin’s cousin – defence witness No 8

Benson – son of Wakal Tambala

Bob Wafu Alois – third co-accused – defence witness No 5

Bun Sembengo – sister of first co-accused, Lucas Soroken Sembengo

Elly Stanley – alleged victim of arson – State witness No 1

Gibson Andrew – Elly Stanley’s neighbour – State witness No 3

Henni Sivilien – alleged victim of armed robbery – complainant in rape charge – State witness No 5

Henry Martin – prisoner, convicted of arson – defence witness No 10

Henry Puana – Snr Constable, Bialla – State witness No 7

Jenny Lawrence – Raphael Lawrence’s sister

Jophet Wakal – son of Wakal Tambala

Joseph Sembengo – father of first co-accused, Lucas Soroken Sembengo – defence witness No 2

Lenna Alois – sister of third co-accused, Bob Alois Wafu – defence witness No 7

Lucas Soroken Sembengo – first co-accused – defence witness No 1

Manu Sembengo – sister of first co-accused, Lucas Soroken Sembengo

Maria...