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State v Sefo [2009] PGNC 126; N3744 (18 August 2009)

N3744

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1185 of 2006

THE STATE

V

KEREHUTO BRUCE SEFO

Goroka: Kirriwom. J
2009: 18 August

CRIMINAL LAW – Sexual penetration of girl under sixteen – Two counts of sexual penetration with 14 year old victim - Accused complete stranger to victim – Accused enticed victim with promise of stolen store goods – Victim taken to secluded place kilometres away from town – Forced sexual intercourse took place twice both vaginally and anally – Accused was a serial rapist and paedophile at large after escaping from jail – Convicted on both counts.

Cases Cited
No cases cited

Counsel

K. Umpake, for the State
V. Agusave, for the Accused

DECISION ON VERDICT

18 August, 2009

1. KIRRIWOM. J: Kerehuto Bruce Sefo pleaded not guilty to two counts of sexual penetration of a girl under the age of sixteen years old contrary to section 229A(1) of the Criminal Code. He was charged that on 14 April 2006 at Forapi in Lufa District Kerehuto Bruce Sefo sexually penetrated the victim AH (Whose name is withheld for legal reasons) twice in the course of the night when he first inserted his penis into her vagina and then he inserted his penis into her anus. She was only 14.

2. The State called two eye-witnesses who identified the accused as the perpetrator. They were the victim AH and her 11 year old cousin sister AB (whose name is also withheld for legal reason). They both gave evidence of being at West Goroka about 3pm on the afternoon of Friday 14 April 2006. They were eating flour and walking towards Goroka main market when this accused joined them and began chatting with them. He called the name of AB’s parents and told them he was familiar with them. Having won their confidence he told them that he had broken into a shop and stole properties including shoes and radios that he was willing to share with them if both were interested. Curiosity took the better of them and they fell for the story where the accused told them to follow him. After going some distance at West Goroka the accused told AB to wait there while he and NH would go and fetch those things.

3. The accused and NH got into a Dyna PMV truck and headed for the highway towards Kainantu and took the Lufa turn-off. When they reached a club, the accused stopped the truck and they jumped down. The accused went into the club and came back out and told the victim that they must go and see an old man who would cover for them. They headed towards a direction but it began raining so they returned to the club. This time the accused joined a group of gamblers who were playing cards while NH waited. It was already dark when the accused told her to follow him and they took a bush track which ultimately led to a garden hut. They went inside where the accused lit the fire with dried banana leaves and fetched some kaukau from the garden and began cooking them. He told the victim to sleep.

4. In the middle of the night he woke her up and told her to remove her pants. She refused and he told her that he would tell the ‘drug-bodies’ in the area to come and rape her. She was frightened and began to undress but he was already forcing down her pants and he penetrated her vagina with his penis. She felt pain and cried out and he told her to be quiet.

5. He then told her to turn her back towards him which she complied and he inserted his penis into her anus.

6. When it was all over he cooked more kaukau and gave her to eat and told her to sleep. By now it was already day-break so they made their way back to the main road where he gave her some money and told her to wait while he went to fetch those items he promised. The victim waited a long while and the accused never returned so she caught a vehicle back into Goroka town.

7. The victim reported what happened to her to her mother and relatives and she was taken to Goroka Base Hospital where the doctor examined her. They then reported the matter to the police. The doctor who examined her left Goroka Base Hospital and went to Port Moresby and when they returned to the hospital for medical report none had been compiled and completed because the examining doctor was not in town. No report was obtained at the time of trial.

8. About a week later on 23 April 2006 NH was again walking around West Goroka and saw the accused. The accused also saw her and tried to hide his face with a face towel. NH immediately went home and alerted her parents who got into a vehicle and they proceeded to West Goroka. He was at Lumbalumba service station when NH recognised him again and pointing him out she told her relatives that he was the man. The relatives picked him up, threw him onto the vehicle and took him over to the police station at Goroka.

9. Both NH and AB strongly maintained their story about the identification of the accused as the perpetrator. They were not shaken in cross-examination and there is no inconsistency in their evidence. They were adamant that accused is the person they met on that day and he took NH away.

10. The victim’s mother OW gave evidence of the age of the victim and of taking her daughter (victim) to the hospital for medical examination on 15 April, 2006 after she got home and reported what happened. She also told the court of searching for the victim the night before when AB informed them of a stranger taking her away when she did not return home that night. She reported to the police of ‘missing person’ and even put out a tok-save in NBC Goroka.

11. She said she gave birth to NH on 18 February 1992 and was given a clinic book. However the clinic book was left behind in Chimbu, Du village, Sinasina when they moved to Goroka in 2006 and could not locate it. But she remembered her date of birth because she was her first born child. She also had two other children, a girl born in 1994 but could not recall the exact date and month and a boy born in 1998. She could not remember the exact date and month as well.

12. Defence objected to the record of interview being admitted into evidence and a voir dire was conducted. Notice of voir alleged that on the date of his apprehension by the relatives on 23 April 2006 the accused was badly beaten up by them and delivered to the police station where he was further subjected to beatings by police personnel. In his sworn testimony the accused said two policemen whom he can only recognise by face assaulted him between the cell block and the office building. He further alleged in the notice of voir dire that Detective Sergeant Judy Girua, policewoman attached to the Sexual Offence Squad (SOS) intimidated or threatened him saying that they were not strangers to each other as they had met before in that same office and also threatened him to tell the truth or she will let the relatives deal with him. It was alleged that because of these assaults and threats the accused admitted committing the offence, as such his admissions were involuntary and they must be rejected.

13. In the State case on voir dire the court heard Detective Sergeant Judy Girua and Detective S/C Mary Nuke, both are policewoman attached to CID-Sexual Offence Squad Goroka Police Station. Both are very experienced policewomen especially in crime investigation while attached to CID here in Goroka. Their familiarity with the people they dealt with in the course of their investigation is beyond reproach and this is one case where such knowledge becomes such a valuable asset, a tool in assisting them, especially Detective Sgt. Girua, in their investigation into this allegation and of Girua’s familiarity with the accused.

14. The court was satisfied on the evidence presented in both the State case and defence on the voir dire that the complaints by the accused were baseless and unsubstantiated. The evidence of assaults by the police at the police station was very scanty and therefore rejected. In any event, even if there was such an assault, that would have been some nineteen days prior to the time of the record of interview when admission were made. Assaults by the family members had no bearing on the admissions the accused made on 2 May 2006, nineteen days after the alleged assaults which Sgt. Girua confirmed.

15. Court concluded on the evidence that there was no force used by the two policewomen involved in the interrogation. Accused conceded his own familiarity with Sgt. Girua, having had the benefit of being interviewed by her previously on another matter for which he was already serving time in prison when he escaped. That fact was unavoidable and the accused had no option but to bite the bullet and face the truth. Confessing to his crime or making admissions while confronted with the truth of his past behaviour is not a basis for raising excuses for admissions made under such circumstances. In this case it was simply unavoidable when he was an escapee when he committed a similar offence and was being interviewed particularly when the timing of that earlier incident still remains afresh in the mind.

16. The record of interview was admitted into evidence and marked Exhibit 1A (Pidgin) and 1B (English).

17. The accused in his defence relied on alibi. An alibi notice filed on 20 November 2008 claimed that at the material time and date of the alleged offence he was employed by Global Constructions Company at Lampo, Bena, Eastern Highlands Province and was at work. He named as alibi witnesses a person called Jakere and another called Toma’e, both from Lampo village.

18. At the trial the accused gave evidence and said that he was employed by Carson Pratt Company on the day and time in question he was working on the road at Lampo when the police and warders from Goroka chased him and he ran away towards Fayantina village.

19. Only one alibi witness, one Toma’e Uria was called to give evidence supporting his alibi. This man also worked for Carson Pratt for some one year who said that the accused worked under PRO (Public Relations Office) meaning they were paid by Works Department who were rendering assistance to Carson Pratt Company. Uria is from Southern Highlands but married to Lampo and had become part of that community and as such very familiar with the accused.

20. State submits that I must accept the evidence of the two eye-witnesses as to the identification of the accused especially the victim who not only saw him on 14 April 2006, but also saw him again on 23rd April 2006 and finally recognised him in court.

21. As to the evidence of the age, the State submits that the victim’s mother was a reliable witness and her evidence must be accepted although no medical report was produced.

22. Defence submits that the court believe the accused and accept his alibi. It is submitted that there is strong unshaken evidence of alibi that has not been rebutted.

23. If the court accepts the alibi, the accused could not have been in two places at the same time and as such must have serious doubts about the evidence of admissions in the record of interview. It is submitted that the court give no weight to the record of interview.

24. Defence also submits that the court disbelieve the victim because there is no evidence of sexual penetration. It was submitted that without medical report sexual penetration has not been proved.

25. Defence also submits that the court must not believe the mother on her evidence of the age of the victim. She could not produce her clinic book and she could not even remember the dates of birth of her two other children. Defence contended that the evidence on victim’s age is not reliable.

26. I accept the evidence given by the two eye-witnesses of the State. They identified the accused quite clearly and their identification is confirmed by his own admissions in the record of interview. I accept the admissions in the record of interview as truly reflecting what happened on 14 April 2006. This story was given to the police only four weeks after the incident which the accused committed while he was on the run from the law. His conscience was clear at the time he gave theses stories.

27. I do not accept his alibi. This is recent fabrication after two years in custody and he had ample time to think of a way to get out of this trouble. The alibi is false. The alibi witness was also the accused’s friend and relative from the same village and friends must always support friends. False alibi corroborates State’s case.

28. Absence of medical report is no reason to find no sexual penetration. The victim gave sworn testimony and told the court what the accused did to her. The accused was identified by the victim’s cousin AB who saw him leave with her and the victim never came home until the next morning and there is evidence of recent complaint to the mother. Being alone with the accused in a strange place and away from any form of life nearby to raise alarm gave perfect opportunity for the accused to rape the victim which he did. There is strong circumstantial evidence that supports opportunity for sexual penetration. Accused’s own record of interview simply seals the nail on the coffin. I accept the victim’s evidence of sexual penetration both of both vaginal and anal sex.

29. Lack of medical report is not fatal to convict for sexual penetration. Often medical report provides corroborative evidence to the complainant’s allegation but corroboration is not necessary in proving sexual penetration.

30. I accept the mother’s evidence as to the age of the victim as she is the best witness to establish this fact. A mother’s memory is more reliable than a piece of paper written by other persons. Even such entries on records are sometimes wrong when an inattentive mid-wife or nursing sister is entering such records. On the other hand, I have observed the victim myself and I am satisfied that she would have been about 14 at the time of this offence according to her physical appearance. The victim is presently a Grade 7 student at Gama Primary School in Goroka.

31. In all the circumstances of the case I am satisfied beyond reasonable doubt that on the afternoon of 14th April 2006 at West Goroka the accused tricked the victim and her cousin into believing that he was a good family friend who had some stolen items that he wanted to give them. In that pretext he took the victim to an isolated garden hut in the Lufa area when it got dark after a long PMV ride out of Goroka and in the night he sexually penetrated the victim once through her vagina and also through her anus. I therefore find the accused guilty as charged on both counts.

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Acting Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused