State v Mehau [2016] PGNC 220; N6407 (29 March 2016)

N6407

PAPUA NEW GUINUE
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 301 of 2016

THE STATE

V

MOKSY MORA MEHAU

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

CRIMINAL LAW:- Indictable offence – section 347 (1) of the Criminal Code Act, sexual offences – definition of rape in section 347 (1) of Criminal Code Act – maximum sentence – conviction after trial – minimum force used- recent complaint prevalence of offence.

CRIMINAL CODE: Sexual offences – abolition of warning against danger of convicting on the basis of uncorroborated testimony of victim.

INTRODUCTION

The accused pleaded not guilty to one count of unlawful sexual penetration of a step daughter on 04^th March, 2015 at Meporo village in Malalaua District of Gulf Province. The charge is brought pursuant to section 347 (1) of the Criminal Code Act chapter 262 (as amended).

FACTS

1. It is alleged that on 04^th of March, 2015, between 12 mid day and 1 o’clock in the afternoon the victim Anna Aifa, then 19 years of age was in the house she resides with her mother Nancy Aifa, grandmother Anna and younger brother Emmanuel when Mora Moksy Mehau walked into the house. He appeared drunk and laid on Nancy Aifa’s mattress as she is his second wife. There is a mosquito net hanging over Nancy Aifa’s mattress. . The mattress of Nancy Aifa is outside of the only room in the house.
   
2. He asked Anna Aifa for the where about of Nancy Aifa and grandmother Anna. She replied ‘’both are not in the house’’.
   
3. At that time Anna Aifa wore pants and a skirt and tried to pick her towel hanging outside the window next to where Nancy Aifa’s mattress is spread inside the house.
   
4. As she reached out the accused grabbed her from the rear on the waist. She struggled and in the process of freeing herself from the accused, she tripped on her other leg and fell down on the floor and the accused lifted and put her on Nancy Aifa’s mattress. The accused removed Anna Aifa’s pants as she struggled to free herself and he removed his clothes too and laid on top, parted her legs, inserted his penis into her vagina and had sexual intercourse without consent.
   
5. As the accused was still laying on top of Anna Aifa having sexual intercourse, her four year brother Emmanuel came into the house, stood and watched them. When Emmanuel called Anna Aifa’s name, the accused stood up quickly and wore his clothes.
   
6. She too stood up, wore her skirt and went down the step with Emmanuel to the ground. Both went to the culvert and had bath and return to the house. They wore clean clothes and went to the mother’s place of employment and Anna Aifa reported the incident to her mother.
   
7. The incident was reported to the police the same day and the mother took Anna Aifa to Kerema General Hospital for medical examination.
   

ARRAIGNMENT

The accused pleaded not guilty to the charge so a trial was conducted to determine the allocations.

HELD:

1. 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. The court is prohibited from issuing such warning by recent amendment to the Criminal Code Act chapter 262
   
2. The victim’s version of events was proved to be the correct one.
   
3. The element of offence of rape proved beyond reasonable doubt and the accused is accordingly found guilty.
   

Cases cited:

James Mora Meaoa –v- The State [1996] PNGLR 280
John Aubuku –v- The State [1987] PNGLR 267
Lawrence Hindemba –v- The State (1998) SC 593
The State –v- Mausen [2005] PG Law Rp15; [2005]
PNGLR 54 (4^th August 2005)
The State –v- Panake [2010] PG NC 24, N3963
The State –v- Kenneth Penias [1994] PNGLR 48
The State –v- Thomas Waim (1995) PNGLR 187
The State –v- Kevin Mariano (2000) PNGLR 240

Counsel:

D. Mark, for the State
B. Popeu, for the Defence

EVIDENCE FOR THE STATE

29^th Match, 2016

1. KOEGET, AJ; The victim Anna Aifa stated on oath that she is initially from Pukari village in the Kerema District but now resides with mother at Meporo village in Malalaua District of Gulf Province. She completed Grade 12 at Don Bosco, Araimiri, Ihu District of Gulf Province in 2014.
   
2. On 04^th of March, 2015, she was in the house at Meporo village with her younger brother Emmanuel, then aged 4 years. She resides in that house with her mother Nancy Aifa, grandmother Anna and younger brother Emmanuel.
   
3. She cleaned the house and put her personal belongings into her bag when the accused walked into the house. He appeared drunk and asked her for his second wife, Nancy Aifa and grandmother Anna. She replied her mother went to work and the grand mother went to Malalaua to get her medicine. So the accused went and laid on Nancy Aifa’s mattress in the lounge room.
   
4. She stated the house is semi permanent built on stilt and the steps and front door are facing the main Port Moresby-Kerema Highway. The house is located approximately 15 metres away from the main Highway. There is only one room in the house in which she sleeps with her grandmother Anna. There is no door to the room except a curtain hanging in front.
   
5. The room is located at the western end of the house and it has a window. There is large open space from the room extending in the easterly direction where the other window is located. Her mother Nancy Aifa’s mattress is spread inside the house next to the window at the eastern end of the house. The accused is married to her mother.
   
6. There is a cloth line inside the room where she and the grandmother Anna hang their clothes including towels. But on the 04^th of March, 2015 she hanged her towel on the window where her mother’s mattress is spread. That is the bed the accused went and laid down in the house.
   
7. She sent Emmanuel to go down the steps to the ground to get the soap so he went outside. As she reached out to get her towel hanging on the window, the accused grabbed her by the waist and when she struggled to free herself, she tripped on the other leg and fell down and the accused lifted and put her on Nancy Aifa’s mattress. Then he laid on top of her, pulled her skirt upward and covered her face and mouth. The accused put skirt over her mouth with one hand and used the other hand to remove her pants (only on right leg). He proceeded to insert his penis into her vagina and had sexual intercourse with her. As the accused had sex with her, he removed the skirt, from the face and said “see it’s nice – ah”.
   
8. She attempted to shout but the accused placed his left hand over her mouth and it prevented her from shouting. As she struggled to push the accused off Emmanuel arrived, stood and watched them for a moment and called her name. The accused removed his left hand from the skirt covering her face and mouth then stood up and wore his clothes. He told Anna Aifa and Emmanuel to go and bath. She said she will report the incident to her mother. The accused said “I will give you money” to which she replied “I don’t need your money. My mother is working”.
   
9. She went into the room, wore a pair of shorts, and went down the steps with Emmanuel to the ground. As both walked to bath at the culvert, the accused followed and asked: “Do you need anything, I am going to the store?” She replied: “We need nothing from you.”
   
10. Both return to the house and wore clean clothes then went to Dekenai Construction Camp where their mother works as a house keeper. She told the mother that the accused had sex with her in the house without consent. The mother cried and return to the house with her children by then the accused had gone somewhere else.
    
11. The incident was reported to the policemen at Kerema Police Station and on the same day she was taken to Kerema General Hospital for medical examination. She stated that the accused married her mother in 2006 and for nine (9) years provided some support to the mother and herself so she regarded him as a step father. She identified him in court during the trial as the accused seated in the dock.
    
12. She stated: “He had sex with me in 2006 when I was 11 years of age. The copy of the report about the incident is with my grandmother.” Although it was reported to the police, she does not know why the police have not charged him.
    
13. She later clarified her evidence that when accused held her by the waist, she tried to free herself from his grip and tripped on her other leg. So she fell on to the floor, that is when accused held her down, lay on top, parted her legs and had sexual intercourse with her without consent.
    
14. In cross examination Defence Counsel suggested that on that day both of them consented to have sexual intercourse in the house. She denied the suggestion.
    
15. I asked Anna Aifa the following questions:
    

17. Had you called out for help as you struggled to shake-off Moksy Mora, would anyone in the houses nearby hear you shout?
    

A: No

Q: Why not?

A: Because the other houses are further away from our house. There are heavy construction vehicles working on the main Highway and engine noise from those vehicles would prevent people from hearing my scream.”

16. The mother Nancy Aifa in her evidence confirmed that she resides with her daughter, Anna Aifa, her mother Anna and son Emmanuel in the house at Meporo village where the accused had sex with the daughter on the 04^th of March, 2015.
    
17. On the morning of 04^th March, 2015, she walked on foot to her place of employment at the Dekenai Construction Camp. As she walked, there were construction employees working along the main Port Moresby-Kerema Highway. She was at work when Anna Aifa went with Emmanuel and told her that accused had sex with her without consent in the house.
    
18. She sought permission from her employer and return to the house with Anna Aifa and Emmanuel. She admitted that the construction workers were still working on the main highway in front of their house.
    
19. When she return to the house with her children, the accused was not present. He left the house and she did not know where he went. She went with Anna Aifa to report the incident to the police. She escorted Anna Aifa to Kerema General Hospital for examination after it was reported to the police. She admits she married the accused and he occasionally visits her with Anna Aifa and Emmanuel in the house at Meporo village.
    
20. The following documents were tendered into evidence by consent:
    
    • - Record of interview between accused and the police (pidgin version and English translation) dated 15^th May 2015 (Exhibits “1A” and “1B”).
      
    • - Statement of Police investigator – Steven Kiako dated 2^nd February 2015 (Exhibit “2”).
      
    • - Statement of Corroborator Michael Pakyei dated 5^th February, 2015, (Exhibit “3”).
    • - Medical Report of Dr. Warran Paul dated 11^th March 2015 (Exhibit “4”).
      

EVIDENCE FOR DEFENCE

21. The accused gave sworn evidence in defence of the allegations by the victim. He admitted going into the house and saw Anna Aifa and Emmanuel but not Nancy Aifa and grandmother Anna. They were not present in the house.
    
22. He went and laid on Nancy Aifa’s mattress as she is his second wife. He slept and noticed that Anna Aifa went down the step to the ground with Emmanuel. She left Emmanuel on the ground then climbed up into the house and was there for a short while (approximately 3 mins) then she went down again to the ground. When she return into the house the second time, she went and lay on top of the him. She removed her pants and she proceeded to remove the tights he wore down to the knee level, then inserted his penis into her vagina and had sex. She was still laying on top of him having sex when Emmanuel arrived in the house, called her name, then she stood up and both went down to bath. So she consented to have sex with him that day.
    
23. In cross examination he stated there were four (4) instances in the past when he had sexual intercourses with Anna Aifa with consent so this was not the first time he had sex with her.
    

LAW

24. The accused is charged that on 4^th of March 2015, at Meporo village, Malalaua District of Gulf Province in Papua New Guinea, he sexually penetrated Anna Aifa without consent.
    
25. The charge is laid pursuant to section 347 (1) of the Criminal Code Act (as amended).
    

Section 347 (1) of the Criminal Code States:

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

26. The elements of the offence of rape are as follows:
    
    • (a) a person
    • (b) sexually penetrate
    • (c) another person
    • (d) without his consent

Definition of consent in section 347(1) of the Criminal Code Act is:

“For purpose of this Part, “consent” means free and voluntary agreement.”

Analysis of Evidence in the trial

27. I analyse the evidence in the trial and note the accused’s evidence clearly contradicts the evidence of the victim and the mother in that he maintains that Anna Aifa laid on top of him, inserted his penis into her vagina and had sex. He had sex with her that day with consent.
    
28. There is no dispute that the accused had sexual intercourse with the victim Anna Aifa and it is confirmed by victim’s own evidence.
    
29. So the first, second, and the third elements of the offence are established by evidence in the trial.
    
30. The only issue is in regard to the last element of the offence and that is whether Anna Aifa consented to have sex with the accused on 04^th March, 2015 in the house at Meporo village.
    
31. The Defence counsel submitted that the court should believe the accused’s evidence as it is credible and he told the truth. There were some contractors working on portion of the Port Moresby-Kerema Highway near the house. She did not scream nor shout to alert these people if it is true that the accused had sexual intercourse with her in the house without consent. He further submitted that Nancy Aifa’s evidence confirms the presence of the construction workers on the main highway when she left in the morning to work and as she returned to the house with Anna Aifa and Emmanuel after a complaint made to her. She did not tell any of the construction workers that she was raped by the accused that day in the house.
    
32. So a logical inference drawn is that Anna Aifa consented to have sex with the accused in the house on 4^th of March, 2015 and she willingly inserted the accused’s penis into her vagina and had sex when she lay on top of him. But she concocted a tale to cover her guilt because her younger brother Emmanuel saw her having sex with him in the house. She feared that her brother might report to the mother that Anna Aifa had sex with the accused in the house.
    
33. However, the accused gave incredible and unbelievable evidence when he was asked the following questions regarding the four previous instances he allegedly had sex with Anna Aifa with consent:
    

Q: What are the dates, months, year you had sex with Anna Aifa on four occasions with her consent before 4^th March, 2015?

A: Twice between May – June 2015, twice in December, 2015.

Q: Did you tell the police investigator that this is not the first time you had sex with Anna Aifa with her consent, that on four occasions you had sex with Anna Aifa with consent?

A: No.

Q: Did you tell Nancy Aifa, the mother of the victim that you had sex with Anna Aifa with consent on four occasions before 4^th of March, 2015?

A: No.

Q: Did you tell your first wife, Susan Karu that on four occasions you had sex with Anna Aifa with consent before 4^th of March, 2015?

A: No.

Q: Is this the first time you are telling anyone about you having sex with Anna Aifa with consent?

A: Yes.

34. The accused gave details of having sex with Anna Aifa with consent on dates and months after the incident on 4th of March, 2015. This is contrary to his own evidence that he had sex with Anna Aifa on four occasions prior to 4^th March, 2015. So they are not instances of prior consensual sexual intercourses.
    
35. It is incredible and unbelievable that Anna Aifa continues to engage in sexual intercourses with the accused with consent after she filed the complaint to the police about the incident of 4^th March, 2015 and he is charged with a criminal offence. The victim denied having sex with the accused after 4^th March, 2015.
    
36. An inference is that the accused told lies on oath in court to cover-up the truth of committing unlawful sexual penetration on Anna Aifa and in doing so gave dates and months after 4^th March, 2015.
    
37. In my view, the accused did not have consensual sexual intercourses with Anna Aifa on four different occasions before 4^th March, 2015 and for that reason he told no one including the police investigator.
    
38. She gave credible evidence in the trial. She gave evidence of events that day in sequence and was firm that accused had sexual intercourse with her without consent. She maintained that the accused put her down and laid on top of her, parted the legs, inserted his penis inside her vagina and had sex when disturbed by Emmanuel. This is consistant with Nancy Aifa’s evidence of recent complaint to her by Anna Aifa several hours the same day after the intercourse in the house at Meporo village.
    
39. There is evidence that Anna Aifa was subjected to sexual abuse by the accused when she was only 11 years of age and the incident was reported to the police and he is yet to be charged. This evidence has not been negatived by the accused in his testimony at the trial.
    
40. The evidence of Anna Aifa is corroborated by recent complaint to the mother Nancy Aifa several hours after the commission of the offence.
    
41. I do not believe the accused because he gave accounts of consensual intercourses with Anna Aifa after the incident on the 04^th of March, 2015. He attempted to convince the court that this was not the first time he had sex with Anna Aifa with consent. This account was denied by Anna Aifa in her evidence in the trial and I accept her evidence and that of Nancy Aifa as accurate and truthful. There is no longer a practice that a court must warn itself of any danger of relying on uncorroborated evidence of a victim alone in a rape trail. The court is prohibited from issuing such warning by recent amendment to the Criminal Code Act chapter 262.
    
42. The relevant provision of the act is section 229 H that state:
    

‘’CORROBORATION NOT REQUIRED

On a charge of an offence against any provision of this Division, a person maybe found guilty on the uncorroborated testimony of one witness, and a judge shall not instruct himself or herself that it is unsafe to find the accuse guilty in the absent of corroboration.’’

43. In my view the accused is a sex predator because he preyed on the same victim 9 years later. I accept the evidence of the victim and so the State has proved its case beyond reasonable doubt that, the accused had sexual intercourse with the victim without consent on 04^th of March, 2015 in the house at Meporo village.
    
44. The finding of the court therefore is that on 04^th of March, 2015 at Meporo village, the accused Moksy Mora Mehau had sexual intercourse with Anna Aifa without consent in the house.
    

VERDICT

45. The verdict of the court is that the accused is found guilty and is convicted of the offence of Unlawful Sexual Penetration of Anna Aifa pursuant to section 347(1) of the Criminal Code Act (as amended).
    

ALLOCATUS

46. The prisoner was remorseful and he is a community leader. He has a large family to look after and should he be imprisoned there will be no one to care for the family.
    
47. He was in custody for a month before released on cash bail of K500.00.
    

MITIGATING FACTORS

48. The mitigation factors submitted in favour of the prisoner are:
    
    • - he has no prior conviction so he is a first time offender.
    • - he is married with large family including the victim to look after.
    • - he has been in custody for a month before released on cash bail of K500.00.
    • - Anna Aifa suffered no serious permanent injuries.
    • - the prisoner used no weapons in the commission of the offence.
      

AGGRAVITING FACTORS

49. • - Anna Aifa was subjected to cross exam motion in court within hearing of other people.
      
    • - She was subjected to sexual abuse by the prisoner when she was 11 years of age and 9 years later the prisoner abused her once more. This is the second offence the prison committed upon her.
      
    • - Abuse of Trust and authority – despite the sexual abuse of Anna Aifa at the age of 11 years, the prisoner continued to maintain and care for the mother and Anna Aifa. She regarded the prisoner as father yet he abused the trust she placed upon him. She does not trust him anymore and lives in fear of him.
      
    • - She will live in shame and embarrassment because she will suffer loss of dignity in the community. She will always feel that no decent man will marry her in the future.
      
    • - The age difference between the prisoner and Anna Aifa is 22 years.
    • - It is a trite law in this jurisdiction that the maximum sentence is reserved for the worst type of rape cases.
    • - In my view this is not the worst type of rape case so imposition of maximum sentence is inappropriate.
      
50. The court has discretion to impose a lesser sentence under section 19 of the Criminal Code Act chapter 262.
    

SENTENCE

51. I consulted sentences in previous decided cases by court in this jurisdiction and of course the sentencing discretionary powers of the court under section 19 of the Criminal Code Act, chapter 262. The prisoner is sentence to be imprisoned for a period of 15 years in hard labour.
    
52. The pre-trial custodial period of one month is deducted. The balance of 14 years 11 months is to be served in jail.
    
53. Bail money is refunded to him.
    

Accordingly sentenced

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