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State v Sora [2018] PGNC 106; N7168 (21 March 2018)

N7168

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 359 OF 2015

THE STATE

V

PAUL SORA
Accused

Kokopo: Higgins, J

2015: 6 July
2017: 11 April, 20 & 22 November
2018: 21 March

CRIMINAL LAW – charges of rape and incest – burden of proof – proof beyond reasonable doubt - Accused guilty

VOIR DIRE – voluntariness of admission to police not proved – record of interview rejected

RECENT COMPLAINT – reasonable explanation for lack of recent complaint found - not adverse to credit of complainant

DELAY – Longman warning – forensic disadvantage to accused – need for careful scrutiny of evidence for the State

Cases Cited:
Papua New Guinea Cases

State v Ragi [2017] PGNC 213

Overseas cases

Graham v R (1998) 195 CLR 606
HML v The Queen [2008] HCA 16
Longman v The Queen (1989) HCA 60; 168 CLR 79
M v The Queen [1994] HCA 63; 181 CLR 487
Robinson v The Queen (1999) HCA 42; 197 CLR 162
RPS v R [2000] HCA 3; 199 CLR 620
Suresh v R (1998) HCA 23
Tully v The Queen [2006] HCA 56

Counsel:

Mr L. Rangan, for the State
Ms J. Ainui, for the Accused

21^st March, 2018

1. HIGGINS J: The accused, Paul Sora is charged upon an indictment alleging:
   

“PAPUA NEW GUINEA

IN THE NATIONAL COURT OF JUSTICE Cr. # 359 of 2015

The State

- against -

Paul Sora of Yar village,

Angoram, ESP

HELD AT Kokopo

1^st Count: Paul Sora of Yar village, Angoram, ESP stands charged that, he in November, 2012, at Vunapope Compound, Kokopo Town, in Papua New Guinea, sexually penetrated Eunice Paul without her consent by introducing his penis into her vagina

AND immediately before the commission of the offence, he threatened to kill her with a kitchen-knife which he was holding, confined or restrained her and in committing the offence, he abused a position of trust, authority or dependency, as Eunice Paul was his biological-daughter.

2^nd Count: Paul Sora of Yar village, Angoram, ESP stands charged that he, on a second occasion, in November, 2012, at Vunapope Compound, in Papua New Guinea, sexually penetrated Eunice Paul without her consent by introducing his penis into her vagina

AND immediately before the commission of the offence, he threatened to kill her with a kitchen-knife which he was holding, confined or restrained her and in committing the offence, he abused a position of trust, authority or dependency, as Eunice Paul was his biological-daughter.

3^rd Count: Paul Sora of Yar village, stands charged that he, in 2013, at Vunapope Compound, in Papua New Guinea, sexually penetrated Eunice Paul without her consent by introducing his penis into her vagina

AND at the time of the commission of the offence, he threatened to kill her, should she reported what he did to her, confined or restrained her and in committing the offence, he abused a position of trust authority or dependency, as Eunice Paul was his biological-daughter.

4^th Count: Paul Sora of Yar village, stands charged that he, in 2013 at Vunapope Compound, in Papua New Guinea, sexually penetrated Eunice Paul without her consent by introducing his penis into her vagina

AND at the time of the commission of the offence, he threatened to kill her, should she reported (sic) what he did to her and in committing the offence, he abused a position of trust, authority or dependency, as Eunice Paul was his biological-daughter.

or alternatively:

Paul Sora of Yar village, Angoram, ESP, stands charged that he, between October, 2012 and January, 2014, at Vunapope Compound, Kokopo Town, in Papua New Guinea, on more than two (2) occasions, engaged in a conduct in relation to Eunice Paul, a female-child who was between 14 and 15 years old, which constituted an offence against children under the age of 16 years, pursuant to Division 2A-Sexual offences against children of the Criminal Code (Sexual Offences and Crimes Against Children) Act of 2002, in that he;

1. in November, 2012, inside the family’s dwelling-house, introduced his penis into her vagina,
2. on a second occasion, in November, 2012, inside the family’s dwelling-house, introduced his penis into her vagina,
3. on another occasion, in November 2012 inside the family’s dwelling-house introduced his penis into her vagina,
4. on a further and first occasion, in 2013, inside the family’s dwelling-house, introduced his penis into her vagina,
5. on a second occasion, in 2013, inside the family’s dwelling-house, introduced his penis into her vagina,
   

and

6. on a further occasion, in 2013, inside the family’s dwelling-house, introduced his penis into her vagina.
   

Dated at Kokopo this 7^th day of August 2017.

......(Signed)........
(for) PONDROS KALUWIN
Public Prosecutor

To: Paul of Angoram (sic)

TAKE NOTICE that you will tried on the charge of which this is a copy at the Ordinary Criminal Sessions of the National Court to be held at Kokopo, East New Britain Province at 9.30 o’clock in the fore noon of Tuesday the 8^th day of August, 2017 or as soon thereafter as circumstances permit.”

2. At the outset, I remind myself that the State has the burden of proving each and every element of each offence to the criminal standard of proof, that is, beyond reasonable doubt.
   
3. The accused bears no onus of proof or persuasion and, insofar as he remains silent, no adverse inference can be drawn from that.
   
4. The complainant, Eunice Paul gave evidence on oath. She stated that in 2012 when she was 14 years of age, the PNG Games were being staged. Her mother was cooking for the players. Her father, the accused, came into her room. She asked what he was doing. He told her to keep quiet and pointed a knife towards her chest and removed her blouse. He forced her to submit to him pushing his penis into her vagina. He warned her not to tell anyone or he would kill her. It was not entirely clearly that he held a knife at the time he committed the offence.
   
5. A week or so later, he performed that same scenario.
   
6. During 2013, when she was in Grade 6, he came into her room and forced her to submit to sexual intercourse “many times”.
   
7. Finally, on 10 March 2014, an incident occurred. The complainant was dressing for school when the accused assaulted her brother. She defended him. The accused, incensed by this got a tree branch and assaulted her with it. She was so outraged she went out of the house and addressed the community telling of his actions towards her. A lot of people heard her.
   
8. Her sister took her to the police station despite the accused chasing and threatening her.
   
9. Her aunt Helen and her uncle Willie Silas took her to the Sexual and Family Violence office with her sister, Lorish Magoekia.
   
10. Lorish gave evidence that the accused had attempted sexual misconduct with her.
    
11. The complainant was cross-examined.
    
12. She agreed that the reason for her decision to denounce her father was the assault upon her with the stick.
    
13. She denied the story was made up. It was suggested to her that she would had told her mother if it was true. She said she feared his threats and so had not done so.
    
14. The terms of her complaint to her Aunt was that her father “did bad things to me”, “sleep with me”.
    
15. Although not expressly stating that he had sexual intercourse with her, the meaning was clear.
    
16. From then until the accused’s arrest, she stayed with her Aunt Helen.
    
17. The evidence the complainant gave was given quite persuasively without any apparent exaggeration or prevarication.
    
18. It is, nevertheless, to be borne in mind that a reasonable doubt as to its truth could arise from other evidence so that the Court must remain open to such possibility until all available evidence has been given.
    
19. The wife of the accused gave evidence. She confirmed the complainant’s parentage and date of birth, 11 June 1998.
    
20. Her first knowledge of the complainant’s allegations was in 2014. The accused assaulted their youngest son. The complainant threw a plate at the accused, apparently to stop the assault. The accused then assaulted the complainant who shouted out:
    

“You are not like a father to us. You turn around and do bad things to us.”

21. Some local women who apparently heard the disturbance took the complainant to the police station.
    
22. She agreed that the complainant had not expressly complained of her father, the accused, having sex with her but from what she did say, ie that he was doing bad things to her, she drew that conclusion.
    
23. Lorish Magoekia, the elder half-sister of the complainant and step-daughter of the accused, recalled the occasion of the assault on the complainant. Her Aunt Helen was told by the complainant that the accused used to threaten her, do bad things to her, that he forced her to sleep with him.
    
24. She recounted an incident when she was 17, in Grade 9. The accused entered her bedroom and touched her buttocks and neck. She woke. He apologised and said not to tell her mother. She did so in any event but they were both afraid of violence from the accused so did not take it any further.
    
25. First Constable Veronica Pagur had interviewed the accused and taken a record of interview.
    
26. That was objected to and an enquiry on the voir dire was held. The accused alleged that he was beaten up when arrested and told to admit his guilt thus causing him to make admissions.
    
27. The record of interview was conducted on 18 November 2014.
    
28. A number of curious features attended this process. The accused was arrested on 8 November 2014 at Vunapope. No photograph or fingerprints were taken.
    
29. He was charged on 10 November 2014, though no record of interview had been taken.
    
30. Before the record was taken, he alleged, Constable Otto Morombo, one of the 3 policeman he alleged had assaulted him on 8 November, banged the table violently. He took it as a threat of violence if he did not “tell the truth”. Thus he made the admissions in the record of interview.
    
31. Constable Veronica Pagur was the case officer. She had not been present at the arrest of the accused. She was assisted by Constable Myrah Rerevate who, likewise, was not present at the arrest.
    
32. They denied Otto Morombo was present in the interview room before the interview took place.
    
33. I pause to note that Constable Morombo did agree that he was at the station that day though he denied the allegations of assault, threats or intimidation.
    
34. All officers denied seeing any sign of injury to the accused after his arrest although the arresting officers conceded that he had been thrown to the concrete apron during the arrest.
    
35. This did seem to be a convenient explanation should someone have acknowledged seeing signs of injury, or, indeed, if photographs had been taken showing apparent injuries.
    
36. Another curious feature was that the accused alleged that one of the police officers present, Chris Isiki, hit him with the butt of a firearm. The two officers who gave evidence denied that the latter was present, though they acknowledged he was a fellow officer at Kokopo Police Station.
    
37. Unfortunately, only Constables Morombo and Isiki made themselves available to give evidence. The other two were relevant witnesses. Their absence leads to an available inference that their evidence would not have assisted the prosecution case.
    
38. Additionally, of course, there was no explanation for the lengthy delay in interviewing the accused. That leaves open the inference that the delay was designed to intimidate the accused, to allow the threats of and the prior violence to overbear his earlier denials of guilt.
    
39. In the end result, I was not satisfied that the admissions made by the accused in the Record of Interview were made voluntarily.
    
40. The tender was rejected. I therefore disregard anything said in that interview.
    
41. The accused, Paul Sora, then gave sworn evidence.
    
42. He stated that the altercation in March 2014 was over his son not going to school. He denied the allegations of sexual misconduct made both by the complainant and by Lorish Magoekia.
    
43. He then asserted that the allegations were made up and the two girls were told to tell those tales by Aunt Helen and uncle Willie Silas. When cross-examined on this proffered assertion, he suggested it was motivated by a dispute over the bride price requested of him in 1998.
    

44. On 8 March 2018, the matter resumed with counsel making submissions.

45. Ms. Ainui, for the accused, submitted that the Court should accept the accused’s denials of wrongdoing. She highlighted the fact that no complaint was made by the victim to any person in authority until 14 March 2015, though the abuse had been going on for 3 years.

46. She further highlighted the accused’s assertion that her Aunt Helen and her uncle Willie Silas had made up these allegations to harm the accused out of resentment concerning non-payment of bride price.

47. Mr. Rangan, for the State, submitted that the evidence for the State was “overwhelming” and should be accepted.

48. Certainly, delay in the making of an allegation is relevant. However, there are often good reasons why a complainant in a case such as this may delay reporting abuse. Fear of violence is one such reason though there may be others, such as shame and reluctance to break up the family. In the present case, the acts and threats of violence by the accused are reasonable explanations for the lack of timely complaint.

49. It is true that an accused bears no onus of establishing why, if it be so, a witness is giving false testimony, whether deliberately or through error, however, if the accused offers a factual explanation which is plainly false may be taken into account in assessing his credibility. (see RPS v R [2000] HCA 3; 199 CLR 620; Graham v R (1998) 195 CLR 606; State v Ragi [2017] PGNC 213.

50. Care must be taken in relying on lies told by an accused as evidence of a consciousness of guilt.

51. First, the Court must be satisfied that the falsehood was a deliberate lie.

52. Second, there must be no other rational explanation than the consciousness of guilt on the part of the accused.

53. In this case, there is evidence of other uncharged acts. That is, the assault on Lorish and the other assaults on the complainant.

54. Such evidence is not usually admissible. To be admissible it must be relevant, if accepted, not merely to prove bad character but to bear upon and support the likelihood that the accused is guilty of the acts charged against him or her by virtue of a permissible rather than impermissible line of reasoning. The most recent exposition of this doctrine by the High Court of Australia is in HML v The Queen [2008] HCA 16. It may place the charged acts in context, rendering them explicable rather than implausible. It may reveal an inappropriate sexual desire. However, such evidence may also have a disproportionate prejudicial effect. It should be admitted only if there is no rational view of that evidence consistent with the innocence of the accused. Merely to show that the accused has a propensity towards committing the kind of crime charged is impermissible.

55. It is a permissible line of reasoning to conclude that if the accused has shown sexual interest in, as here, a daughter and step-daughter, the allegations of sexual abuse against the daughter become the easier to accept.

56. Where it appears that there has been considerable delay in complaining of the offending behaviour of an accused, it is proper to recognize that the accused is thereby placed at a forensic disadvantage. Some avenues for testing the veracity of the allegations may be lost. It increases the danger of apparently honest and convincing but erroneous evidence being presented (see Longman v The Queen (1989) HCA 60; 168 CLR 79).

57. The warning to be heeded by the tribunal of fact is to acknowledge the disadvantages and risks occasioned by a long delayed complaint and to warn itself, or be warned, of the risks of accepting such evidence without careful scrutiny. (see also Robinson v The Queen (1999) HCA 42; 197 CLR 162; Tully v The Queen [2006] HCA 56.

58. As against that, there are, of course, very often, as I have noted, good reasons for the delay, including violent behaviour by the accused person and threats of violence if the abuse is revealed (cf. M v The Queen [1994] HCA 63; 181 CLR 487).

59. It should also be noted that a non-recent complaint is not admissible against the accused. It will usually be relied upon by the defence to show inconsistency (see Suresh v R (1998) HCA 23.

60. It is in that context that the Court should remind itself that there may be understandable reasons for such inconsistency.

61. In this case, having heard all the witnesses and heeding the need for caution, there is nothing which causes me to doubt the truth of the allegations made by the complainant.

62. In addition to the above matters, the complainant’s evidence is supported by the medical examination in 2014 which found evidence that she had been subjected to sexual penetration. There has been no suggestion that the complainant had been associating with male companions. Whilst not proof of the accused’s guilt it is not inconsistent with it. The explanation offered by the accused for the making of complaint against him was, to my mind, plainly fanciful and, to my mind, betrayed a consciousness of guilt.

63. I therefore find the accused guilty as charged save that the allegation in Counts 1 & 2 that the accused was holding a knife at the time of the threats is not proved. It is immaterial to the offence charged and may be disregarded accordingly. I accept there was a threat of the use of a knife but I am not satisfied that the accused actually brandished a knife at the time of the threat.

64. It is unnecessary to record a verdict on the alternative charge.
____________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused