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State v Melore [2016] PGNC 221; N6408 (29 March 2016)

N6408

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR No. 1141 OF 2014


THE STATE


V


MAX ISOUE MELORE, PETER
EREKOKO, JOHNSON LOVARE LIHERI, KAROA MOVO


Kerema: Koeget, AJ
2016 : 16th, 18th, 21st, 22nd
And 29th March


CRIMINAL LAW: Indictable office – section 347(1) of Criminal Code, sexual offence – section 347(1) definition of rape – Evidence – identification – relevant considerations when determining credibility – pre-existing knowledge of accused – no identification parade – recent complaint.


CRIMINAL CODE – sexual offences – Abolition of waring against danger of conviction on the basis of uncorroborated testimony of Complaint – recognition of close relative in very close distance – rape committed where light rays shown from the generator in the centre of the village.


INTRODUCTION


The four accuseds pleaded not guilty to one count of Unlawful Sexual Penetration of a female. The charge is brought pursuant to section 341 (1) of the Criminal Code Act chapter 26 2.


FACTS

  1. It is alleged that on or about 22nd January, 2014, the victim Maria Laua Mora was then 15 years 2 months 2 weeks old attending Sarota Community School in Malalaua District of Gulf Province. She was in grade 4 at that time.
  2. It is further alleged that on that date between six o’clock in the evening and eight o’clock at night she was sent by her parents to go to the grand parents’ house to get fishing net. When she went, she met her cousin brother Laua Ovo and both walked to the beach where she went to the toilet. When she finish, both walked to the village and Laua Ovo went to watch the church choir while she walked alone to her house with a torch.
  3. As she walked to her house someone snapped the torched from her hand and she was surprise when that person held the back of her neck and squeezed it. She was forced down on the ground and her skirt and pants were removed. She recognised that person was Max Isoue Melore who laid on top her and inserted his penis into her vagina and had sex with her.
  4. The State alleged that when Max Isoue Melore finished, he continue to hold the victim’s neck then Peter Erekoko had his turn to lay on top of her, inserted his penis into her vagina and had sex. While the victim was still lying on the sand, Johnson Lovare Liheri and Karoa Movo had their turns in having sex with her. She did not consent to have sex with the accuses that night.
  5. The accuses hide her clothes and after the intercourse she searched for them but they could not be easily located. She wore her pants and a T/shirt belonging to one of the accuses and walked home slowly crying. When the brother Laua Mora met her, she told him that the four accessed had sex with her that night without her consent. She was still crying and distress when accompanied by the brother, Laua Mora to the parents in the house. She told her parents that the four accessed had sexual intercourse with her that night without her consent.
  6. The father took the victim to Moru Health Centre at Iokea village the following day where she was examined by the Health Workers and a report provided to the police.
  7. All accused pleaded not guilty to the charge after arraignment so a trial proceeded.

HELD


  1. There are inherent dangers in relying on the correctness of identification to support a conviction. But in this case, after giving the appropriate warnings, the identification evidence was strong and sufficient to warrant a conviction.
  2. Though the victim’s testimony could be regarded as uncorroborated, there is no longer a practice that the court must warn itself of any danger of relying on uncorroborated evidence of a victim in a rape trial. Indeed the court is prohibited from issuing such a warning by recent amendments to the Criminal Code Act chapter 262.

Cases cited:


Biwa Geta –v- the State [1988-89] PNGLR 153
John Beng –v- the State [1977] PNGLR 115
John Aubuku –v- The State [1987] PNGLR 267
Jimmy Ono –v- the State ( 2002) SC 698
The State –v- Peter Kandik [1987] PNGLR 201


Counsel:


Prosecution. Mark, for the State
Defence. Popue, for the Defence


EVIDENCE FOR STATE


29th March, 2016:


  1. KOEGET, AJ; The victim Maria Laua Mora stated that she is from Sarota village in Malalaua District of the Gulf Province. She attends Sarota Community School and was in grade 4 in 2014 when the incident occurred. In 2016, she attends the same community school and is in grade 5.
  2. She recalls between 6 o’clock and 8 o’clock at night on 22nd January, 2014 she was sent by the parents to get fishing net from the grand parents’ house. She met her cousin brother Laua Movo and he escorted her to the beach where she went for toilet.
  3. When she finished, she walked back with Laua Movo and at the location where there is a bread fruit tree in the village, Laua Movo left and went to observe church choir. She continued to walk pass the bread fruit tree with a torch when Isoue Melore snapped the torch from her hand and held her on the back of the neck, lifted her and dropped her on bundles of firewood. He undressed, forced open her legs and inserted his penis into her vagina and had sex with her. When Isouve Melore finished then Peter Erekoko had sex with her as she laid on the sand. The accused Peter Erekoko held her neck and allowed Johnson Lovare Liheri to have sex with her.
  4. She felt pain and hit Johnson Lovare Liheri on the chin and the accused retaliated and punched her in the face on her left eye. Her left eye was swollen when she went to the house.
  5. The last person to have sex with her that night was Karoa Movo. As soon as the last accused finished having sex with her, she stood up and search for her clothes. She found only pants and a T/shirt belonging to Karoa Movo. She wore her pants and T/shirt belong to Karoa Movo then went to look for her brother Laua Mora. As she walked, Karoa Movo followed her and said in Pidgin: “mama yu rap yah”. As soon Laua Mora appeared, Karoa Movo ran away. So both went to the house to see their parents. She told her parents that the accuseds had sex with her without consent and that the accuses hide her clothes. The T/shirt she wore belonging to one of the accuseds.
  6. The following items were tendered through this witness:
  7. She maintains she was on the ground when Max Isoue Melore forcefully removed clothes from her body. The accuseds were drunk with home brewed as she smelt their breath during the intercourses. The bundles of firewood shed laid on top were near Erekoko Maura’s house and it was approximately 22 meters away from the house.
  8. There were people inside that house and she was able to see them because there was light shining from a generator in front of a dwelling house in the village.
  9. She did not shout as they were holding her neck, she was short of breath. She felt pain in her vagina and was weak. She had no sex with anyone of them before the 22nd of January, 2014 because they were her cousin brothers and they belong to one family. She knows them well before the 22nd January, 2014 as they are all from the same village of Sarota and she identified each accused as they sat in line in the dock.
  10. The victim’s brother Laua Mora testified on oath that on 22nd January 2014 he went out in search of the victim Maria Laua Mora. She is his younger sister. When he went outside and at the centre of the village saw Maria Laua Mora walking with only T/shirt and she was crying softly. She told him that the four accuseds had sex with her that night without her consent. He did not see if she wore any clothes from the waist down to ankle as he did not bother to do so. He felt sorry for his sister. As he approached Maria Laua Mora, he saw Karoa Movo walking behind and as soon as the witness was in the clear, Karoa Movo disappeared into the darkness.
  11. He escorted Maria Laua Mora to their house where she told the parents that the four accuseds had sex with her that night without consent. She told the parents that her clothes were hidden by the accuseds and she found T/shirt belonging to one of the men and wore it. He noticed the victim had swelling on the left eye.
  12. The victim’s father Laua Mora gave evidence of recent complaint to him and the mother by the victim. On the night of 22nd January, 2014 he saw daughter Maria Laua Mora crying and she had swollen left eye. She wore only T/shirt but no skirt. She told him in the presence of the mother, and Laua Mora that the accuseds had sex with her that night without consent. So he went and gathered Maria Laua’s uncles and went in search of the accuseds. They found the accuseds near the firewood shed still drinking home brewed and fought with them. He took Maria Laua Mora to Iokea Health Centre for examination and after the examination they went and reported it to the policemen on duty at Malalaua Police Station.

EVIDENCE FOR DEFENCE


  1. The accused Max Isoue Melore and Johnson Lovare Liheri made unsworn statements from the dock. Both admitting having sex with the victim with consent.
  2. The accused, Peter Erekoko gave sworn evidence. He stated that they drunk home brewed when Maria Laua Mora arrived and she talked to Max Isoue Melore and both went away. They waited for sometime so himself and Peter Johnson Lovare left to find Max Isoue Melore. They went out and saw Maria Mora Laua standing alone, so he went and asked her for sex because he was tempted. She refused and told him to go away so he left. He denied having sex with the victim that night.
  3. He admits that Maria Laua Mora is his cousin sister so in accordance with their custom he is forbidden from having sex with cousin sister. In this case he was tempted to asked Maria Laua Mora for a sex but she refuses and told him to leave.

The light from the generator was shinning at the place where Maria Laua Mora stood alone that night. The generator was situated in the middle of the village.


I asked him the following question:


Q. The victim Maria Mora said: “Max Isove Melore was first to have sex with her on the night of 22nd January, 2014. After he finished, you were next to have sex with her. As soon as you finished, you held her by the neck then Johnson Lovare Liheri had his turn in having sex with her. The last person to have sex with her was Karoa Movo. Why would she come to court, and tell lies about you”?


  1. Accused remain silent for more than 5 minutes so No answer was recorded.
  1. The accused Karoa Movo was the last person to give evidence in the trial. He stated they were drinking home brewed when Maria Laua Mora arrived, she spoke to Max Isoue Melore and both left. He said to Max Isoue Melore, “do not do it, we might be in trouble”. He did not elaborate what Max Isoue Melore did to Maria Laua Mora. He denied having sex with the victim that night.
  2. However, this accused gave no explanation why the victim would come to court and lie about him having sex with her without consent that night.

He gave no explanation nor denied victim’s evidence that as soon as he finished having sex with her and she walked to the centre of the village, he followed behind and said “Mama yu rap yah”.


  1. This accused gave evidence to distance himself away from the other accuseds. He contradicted the evidence of the other accuseds when he said:

“do not do it, we might be in trouble’’


LAW


  1. The accuseds are charged that on the night of 22nd January 2014, at Sarota village in Gulf Province, they sexually penetrated the victim, Maria Laua Mora without her consent. The charge is laid pursuant to section 347(1) of the Criminal Code Act (as amended).

Section 347(1) States:


“A person who sexually penetrates a person without his consent is guilty of the crime of rape”

The elements of the offence of rape are:

(a) a person
(b) sexually penetrates
(c) another person
(d) without his consent.
- The definition of consent in section 347A of the Criminal Code Act is “for purpose of this Part, consent means free and voluntarily agreement.”
  1. I analysed the evidence and note that the accuseds Max Isoue Melore and Johnson Lovare Liheri admitted having sex with the victim that night with consent. But the accuseds Peter Erekoko and Karoa Movo denied having sex with the victim that night. So the issue of identification of the third and fourth persons arises in this case.
  2. The law in identification and recognition is well settled in this jurisdiction in the case of: John Beng –v- The State [1977] PNGLR 115, Biwa Geta –v- The State [1988-89] PNGLR 153, Jimmy Ono –v- The State (2002) SC 698. I remind myself of these principles and applied to this case.
  3. She knows all the accuseds as they are from Sarota village and belong to one family and one clan. She had known them since childhood and she regards them as her cousin brothers. There was light shining at the spot where she was raped and she was able to identify all the accuseds. She was firm in the order the accuseds had turns in having sex with her that night. The identification evidence of the accuseds by Maria Laua Mora is very strong.
  4. The accuseds were properly identified by Maria Laua Mora so I accept her evidence.
  5. The accuseds Max Isoue Melore and Johnson Lovare Liheri admitted having sex with the victim. Both stated she consent to have sex with them that night. This confirms the victim’s version of events that night that Max Isoue Melore and Johnson Lovare Liheri had sex with her. The issue for me to determine at this point is; did Maria Laua Mora consent to have sex with Max Isoue Melore and Johnson Lovare Liheri that night?
  6. The accuseds Max Isoue Melore and Johnson Lovare Liheri made unsworn statement from the dock whereas Maria Laua Mora gave sworn evidence against them. She was subjected to vigorous cross examination by Defence counsel and she was firm in her evidence that she did not consent to have sex with these two accuseds on the night of 22nd January 2014.
  7. They gave no explanations or reasons why Maria Laua Mora’s clothes were hidden after intercourse. They gave no explanation or reason why she came to court, and tell lies about them having sex with her on the night of 22nd January, 2014 without consent. Much weight is attached to the sworn evidence of Maria Laua Mora.
  8. I analysed the evidence in totality and conclude that Maria Laua Mora gave creditable evidence against the accuseds Max Isoue Melore and Johnson Lovare Liheri and that both had sexual intercourse with her without consent.
  9. The accuseds Peter Erekoko and Karoa Movo gave sworn evidence in defence of the allegations of the State. The accused Peter Erekoko denied having sex with Maria Laua Mora that night but when asked why she came to court and give false evidence against him about what he allegedly did to her that night, he remain silent. He had no answer to a very crucial question in this case. This implies that he was guilty of lying in court.
  10. The accused Karoa Movo deny having sex with Maria Laua Mora on the night of 22nd January 2014 at Sarota village. He states he dissuaded Max Isoue Melore “not to do it as they may be in trouble.” But he does not give explanation of why Maria Laua Mora would come to court and give false evidence that he had sexual intercourse with her that night without consent. His evidence is simply isolating himself from the other accuseds so painted a tale that he had nothing to do with the offence that was committed by the other accuseds upon Maria Laua Mora.
  11. She firmly stated that she never had sex with anyone of them before, nor they were her boyfriends. They are her cousin brothers and so did not give consent for them to have sex with her that night.
  12. I accept Maria Laua Mora’s evidence that Peter Erekoko and Karoa Movo had sex with her that night. She knew them as they are from the same village and belong to one family and one clan. They are her cousin brothers
  13. She gave evidence of order each of the men had sex with her that night. I accept her evidence that Peter Erekoko and Karoa Movo too had sex with her that night without consent.

FINDING OF COURT


  1. The victim Maria Laua Mora gave credible evidence supported by the evidence of the brother and the father. She was in a distress state of mind and she was crying. Her clothes were hidden by the accuseds after the sexual intercourse and she wore a pant and a T/Shirt belonging to Kaora Movo to cover her naked body. The evidence of the brother and father are consistent with her recent complaint to them. The evidence of recent complaint to the brother and father add weight to credibility of her evidence against the accuseds.
  2. There is no warning against dangers of convictions on the uncorroborated evidence of the victim as such warnings have been abolished in the recent amendment to the Criminal Code Act. An offender can be convicted on the testimony of the victim alone in a criminal trial.
  3. The conclusion I reach is that State has proved its case beyond reasonable doubt against each of the accused.

VERDICTS


  1. The accuseds are found guilty and convicted of the offence of unlawful sexual penetration of the victim Maria Laua Mora at Sarota village on the night of 22nd January 2014.

ALLOCUTUS


Max Isoue Melore


- ‘’I say sorry to the Court and sorry to the victim Maria Laua Mora and her family.

- I am a first time offender and it is my first time to be in court.
- I am married and my wife is pregnant. I have a family and my father is paralysed after he was shot with a short gun and I help him daily.
- I help community in the village I apologise to the Court and plead for mercy.”

Peter Erekoko


- ‘’I say sorry to the Court for the trouble that occurred. I sorry to Maria Laua Mora and her father, Laua Ari Mora. I sorry to her brother Mora Laua. I say “Sorry for the offence I committed” I am in school but going and coming to attend this case.

- I do community work in the village.
- I help my family as well. I ask Court to have mercy on me. If court could suspend the sentence and order me to do community work, I will pay compensation in custom to the victim.

Johnson Lovare Liheri


- ‘’I say sorry to the Court for what I did to the victim. I apologise to Maria Mora Laua and family. I have my own family to care for and I am married with a daughter.

- I assist in community work at home.
- I say sorry to Court and ask for mercy.”

Karoa Movo


-“I apologise to the Court. I am first time offender and apologise to Maria Laua Mora and family. I am in school and I am in Grade 7 this year but come to Court in Kerema.

- My father is deceased and there are three of us in the family. – I am second born in the family.
- I will pay compensation to the victim in accordance with our custom. I ask the Court to have mercy on me”.

SUBMISSION ON SENTENCE


MITIGATING FACTORS


  1. The ages of the prisoners are as follows:

The age between the victim and the accuseds is within the range of 8 years.

All accuseds were in custody for six months before released on cash bail of K600.00 each.

They are all first time offenders. They were all remorseful and pleaded for mercy.


AGGRAVATING FACTORS


She was packed raped by group of drunk and youths related to her.

She will live in fear of them in the village for the rest of her life.


SENTENCES


  1. The sentences of the court are as follows:

Max Isoue Melore – Sentenced to 15 years IHL

– Less 6 months to serve the balance of 14 yrs 6 months in jail.

Bail money refunded to him.


Peter Erekoko _ Sentenced to 15 years IHL – Less 6 months

Balance of 14 years 6 months is to be served in jail.

Bail refunded to you.


Johnson Lovare Liheri- Sentenced to 15 years IHL –Less 6 months

Balance of 14 years 6 months is to be served in jail.

Bail refunded to you.


Karoa Movo - Sentenced to 15 years IHL – less 6 months

Balance of 14 years 6 months is to be served in jail.

Bail refunded to you.


Accordingly Sentenced


________________________________________________________________
Public Prosecutor : Lawyers for the State
Public Solicitor : Lawyer for the Defence

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