The State v Tommy Koi

• Jurisdiction: Papua New Guinea
• Judge: Susame, AJ
• Judgment Date: 08 March 2018
• Citation: (2018) N7149
• Court: National Court
• Year: 2018
• Judgement Number: N7149

Full : CR No 829 of 2013; The State v Tommy Koi (2018) N7149

National Court: Susame, AJ

Judgment Delivered: 8 March 2018

N7149

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. N0. 829 OF 2013

THE STATE

V

TOMMY KOI

Kokopo: Susame, AJ

2018: 13, 16 &19 February, 8 March

CRIMINAL LAW - Trial- Sexual penetration with circumstances of aggravation without consent- section 342 (1)(2) Sexual Offence and Crime Against Children Act 2002.

CRIMINAL LAW - Evidence of identification – Guiding Principles applicable in Assessment of Evidence – The need for warning of dangers Inherent in eye witness Evidence.

PRACTICE AND PROCEDURE – Alibi defence – Requirement for notice Order 4 Rule 4 Criminal Practice Rules – Application for leave to file Notice out of time – None compliance of O 4 r 4 and Accused Right to a fair trial - Alibi defence – Guiding Principles Applicable in assessing Evidence – Onus is on State to proving guilt.

PRACTICE AND PROCEDURE - Record of Interview – Whether Fabricated and should be Rejected – Fabrication of evidence – Crime of Perjury – Seriousness of allegation – the need for evidence to Substantiate allegation.

Facts

The prosecutrix (to be initialed J.J.) for the first time met her boyfriend whom she had been contacting by phone in Rabaul town on 2nd March 2013. As it was getting late in the afternoon they decided to go and spend the night at the Coconut Products Limited (CPL) Compound where the boyfriend lives with his father who works for CPL. It was then dark when they arrived at the compound. They prepared and had a meal. Thereafter both of them entered another boy’s room after seeking his permission and both had sexual intercourse. Immediately after both had had sexual intercourse two boys were later to be identified as the accused and a James Sirip arrived. The two boys threatened J.J. forcefully took her out of the room over to the fence. They all climbed over the fence and J.J. was taken away under coercion and allegedly pack-raped not only by the two boys but several other boys at various spots all through the night until day break of the next day, 3rd March 2013.

Held:

Prosecution’s evidence on identification of the accused has weight and is reliable. No mistake has been committed in identification of the accused as one of the perpetrators in raping the prosecutrix. (Principles of law in John Beng v The State [1977] PNGLR 115 & The State v. Marety Ame Gaidi (2002) N2256, which followed Raymond Turnbull & Ors (1970) 126 C.L.R 321, 3 All ER 549 adopted and applied.

Challenge to Record of Interview on assertion of fabrication rejected in the absence of any credible evidence. Record of interview contains confessional statements and is good and reliable evidence for the prosecution.

Evidence of alibi is of less weight, unreliable and false weighed against the strength of evidence adduced by the prosecution. (Principles of law in The State v Lucas Soroken & Ors (2006) N3029 which followed John Jaminan v The State (N0.2)[1983]PNGLR318 applied.

Cases cited:

Papua New Guinea Cases

Biwa Geta v The State [1988-89] PNGLR 143,

John Beng v The State [1977] PNGLR 115

John Jaminan v The State (N0.2) [1983] PNGLR318

Piakali v The State (2004) SC 771

State v Toropo [2015] PGNC 117; N6011

The State v Anis Noki [1993] PNGLR426

The State v Lucas Soroken & Ors (2006) N3029

The State v. Marety Ame Gaidi (2002) N2256

The State v. Natuai and Thomas Some (1982) N361

The State v Robert Wer and others [1988 -89] PNGLR 444

Overseas Cases

Raymond Turnbull & Ors (1970) 126 C.L.R 321, 3 All ER 549

Counsel:

Mr. J. L. Rangan, for the State

Ms. J. A. Ainui, for the Accused

JUDGMENT ON VERDICT

8th March, 2018

1. SUSAME AJ: A brief background of the case is necessary. The

accused and two of his co-accused Jacob Wesley and James Sirip had been convicted and sentenced by Kokopo National Court on the charge of sexual penetration under s 347 (1)(2) of the Criminal Code Ch. 262 around mid-August 2014. The three of them appealed against their conviction. They succeeded in their appeal and the Appellate Court set aside the conviction and sentence and ordered re-trial of the case in the trial court but before another Judge. The other two co-accused have not been located and are still at large while this particular accused was located by police, rearrested and taken into custody. Copies of same committal file used in the earlier proceedings were used in this proceeding. A fresh indictment was filed in court by the Public Prosecutor on 14th February 2018, charging the accused for the same offence. Hence, this proceeding.

2. The fresh indictment alleges facts with circumstances of aggravation that between 2nd and 3rd of March 2013 at CPL Compound and Malaguna 1 Ward the accused sexually penetrated J.J. without her consent by inserting his penis into her vagina and at the time of commission of the offence the accused was in company of others and that the accused had used a bush knife and restrained her.

LAW ON RAPE

3. Section 347 DEFINITION OF RAPE states:

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.

Section 349A which is the interpretation provision defines “circumstances of aggravation” states:

For the purposes of this Division circumstances of aggravation include, but not limited to, circumstances where—

the accused person is in the company of another person or persons; or

at the time of, or immediately before or after the commission of the offence, the accused person uses or threatens to use a weapon; or

at the time of, or immediately before or after the commission of the offence, the accused person tortures or causes grievous bodily harm to the complainant; or

the accused person confines or restrains the complainant before or after the commission of the offence; or

the accused person, in committing the offence, abuses a position of trust, authority or dependency; or

the accused is a member of the same family or clan as the complainant; or

the complainant has a serious physical or mental disability; or

the complainant was pregnant at the time of the offence; or

the accused was knowingly infected by Human Immunodeficiency Virus (HIV) or knowingly had Acquired Immune Deficiency Syndrome (AIDS).

UNCONTESTED EVIDENCE

4. The uncontested evidence the court finds are these. J.J and Desmond

Robin were phone friends. They had contacted each other by phone and met for the first time at a particular shop called ‘Blue Sky’ Rabaul town at about 1:00pm on 2nd March 2013 for J.J to get a memory card Desmond had promised her. Desmond told her he had given away the memory card to another boy. They walked over to the back of Rabaul Market chatting for some time when Jacob Wesley (one of the co-accused) who also lives at CPL compound joined them. Three of them continued chatting till night. Desmond invited J.J to spend the night with him at CPL compound where he lives with his father who works for CPL. Three of them started walking to CPL compound when they met Jacob’s sister and her husband at the CPL compound gate. After having their meal Desmond arranged with a boy named Solomon Ori from Duke of York Island to use his room. With his permission both entered the room and had sexual intercourse.

5. Events following after both had had sexual intercourse leading up to the accused’s arrest are being contested and matters for the court’s deliberations.

EVIDENCE FOR THE PROSECUTION

6. For the State evidence came from testimonies of the following

witnesses:

i. J.J (the prosecutrix)

ii. Desmond Robin, J.Js boyfriend

iii. Senior Constable Ukies Kibale, the investigator and arresting officer

7. State also relies on the following documentary evidence:

iv. Medical Report dated 14th March 2013 marked exhibit “A” tendered into evidence by consent,

v. Affidavit dated 15th March 2013 marked exhibit “B” by Doctor John Maku based at Nonga Base Hospital and who examined J.J also tendered into evidence by Consent.

vi. Record of Interview (Pidgin version) marked exhibit “C”

vii. Record of Interview (translated English version) marked exhibit “D”

viii. Typed record of list of items paid as compensation marked exhibit “E”

ix. Arresting Officer’s statement of his investigation dated 27th February 2013 marked exhibit “F”

EVIDENCE FOR THE DEFENCE

8. Defence relies on accused’s oral testimony. No other witnesses were called to give evidence.

9. Accused denied outright being involved in the alleged pack rape. In his defence he raised an alibi. He relied on his own oral testimony. No witnesses were called. This is his story as understood by the court.

10. At the material time the alleged rape was committed he had gone to Tavui No.1 village on a Thursday before 2nd March 2013. He stayed there for two weeks and returned to his village...