N6489
	PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1381 of 2016

THE STATE 

V

       HURAI SEFERE

				         Kerema:  Koeget, AJ
				         2016	:   30th September 

CRIMINAL LAW- Indictable offence – section 229A (1) of the Criminal Code Act (as amended) – competence – child – examination as to competency – need for court to be satisfied that child understands liability to punishment if evidence false – understanding that wrong to tell lies insufficient – Oaths, Affirmations and Statutory Declarations Act, section 6.  

EVIDENCE – swearing an oaths – competency – child of tender age – examination as to competency – need for court to be satisfied that child understands liability to punishment if evidence false – Oaths, Affirmations and Statutory Declarations Act section 6.

EVIDENCE- Identification relevant considerations when determining creditability – pre existing knowledge of the accused – no identification parade.

CRIMINAL CODE ACT - Sexual offences – abolition of warning against dangers on convicting on the basis of uncorroborated testimony of victim.

FACTS
On 6th April 2016, the victim Eau Nickson Sari aged 13 years was with the grandmother in her house and at 12 midday, she left and was returning to her family house located along the coast.  The tide was high and the track to her house was covered by water so she decided to take a short cut through the mangroves swamp.  
The water level along the track she followed was high so she swam slowly.  As she swam the accused Hurai Sefere came along.  She stepped aside to allow Hurai Sefere to walk pass.

The accused Hurai Sefere punched the victim in the chest twice and when she cried out in pain, he pushed her heard into the water and held it for sometime then he lifted her head above the water.  At this point the victim almost drowned.  The accused then dragged the victim by the legs into the mangroves swamp.  He laid her on the sand, than removed her clothes.  He laid on top of her and inserted his penis into her vagina.  She felt pain cried and shouted, but he threatened and told her to keep quite.

The accused then removed his penis and then inserted it into the victim’s anus and she cried as it hurt and was painful.

Whilst, the accused was having sex with the victim, the victim’s maternal uncle was walking along the beach heard the cry so went to investigate who was crying in the mangrove.  The victim’s maternal uncle Ekapu Lavaija arrived and when Hurai Sefere saw him, he fled the scene and ran to the beach.

Counsel:	

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

30th September, 2016

INTRODUCTION

1.    KOEGET AJ:  The accused is charged with two counts of sexual penetration of a girl under the age of 16 years on 6th of April, 2016 at Miritira Silo No. 2 village in the Gulf Province.  The charges are brought under section 229A (1) of the Criminal Code Act as amended.

ARRAIGNMENT

2.    The accused plead not guilty to two counts of sexual penetration of a girl under the age of 16 years so a trial was conducted to determine the allegations.
	
At commencement of the trial, the following documents were tendered into evidence by the State with consent:

-	record of interview between accused and the police investigating officer.
-	statement of Police investigators.
-	statement of Peter Maoh.
-	statement of Esther Lavaija, the victim’s mother.
statement of Wendy Kara.
-	medical examination report.
-	copy of victim’s clinic book.
-	victim’s clothes she wore on the date of incident.

3.    The first witness for the State was victim Eau Nickson Sari, and she was of a tender age so the Court wanted to establish if she understood that should she gives false evidence in the trial against the accused, she will be liable to punishment.  The following questions were asked:

Q.	What is your name?
A.	Eau Sari.	
Q.	Where do you come from?
A.	Silo.
Q.	East of Kerema town?
A.	West of Kerema town.
Q.	How old are you?
A.	13 years.
Q.	So do you go to school this year?

A.	Yes, Grade 2 at Wamai Elementary.  I left school.
Q.	What year?
A.	This year.
Q.	Your mother and father still alive?

A.	Father died, mother is still alive.
Q.	Do you have brothers and sisters?

A.	Yes, 2 brothers, 5 sisters.
Q.	Are you the last born in the family?

A.	I am second born in the family.
Q.	Do you go to school?
A.	Yes.
Q.	What is your religion?
A.	New Apostolic Church.
Q.	Do you attend Sunday school?
A.	Yes.
Q.	You heard stories about Jesus Christ?
A.	Yes.
Q.	He died on the cross for sins of all of us on earth?
A.	Yes.
Q.	In the family if you tell lies, mother will be angry and hit you?
A.	Yes.
Q.	You heard stories of God?
A.	Yes.
Q.	Do you know God created all beings?
A.	Yes.
Q.	According to God’s law, not to tell lies?
A.	Yes.
Q.	If you tell truth, mother will be happy and won’t hit you?
A.	Yes.
Q.	Do you know God will be angry if tell lies?
A.	Yes.
Q.	So you know if you tell lies in Court about this man, you will be punish?
A.	I will tell the truth.”

I am satisfied that the witness understands that if she tell lies on oath she will be liable to be punished.  So she was sworn.

EVIDENCE:

4.    Evidence for State

Witness:   Eau Nickson Sari 

-	On 6th April, 2016 she was with her grandmother and about midday she left for the beach heading to her family house.  She walked along the bush track to the beach and it was high tide.  The water covered the bush track so she swam slowly to the beach.  As she swam, she saw the accused appeared so she stepped aside and allowed him to walk pass.  But accused turned and punched her in the chest twice.  She felt pain and screamed.

-	The accused dragged the victim for 5 metres to the side of the track and put her down on the sand and he removed her shorts, parted the legs and inserted his penis into her vagina.  She stated that she laid on her back faced up, Hurai Sefere parted her legs and inserted his penis into her vagina.  She felt pain and cried.  He then removed his penis and inserted it into her anus and she felt pain and cried more.

-	She stopped crying when Hurai stopped and ran away.  She stood up and saw her maternal uncle Ekapu Lavaija.   She was crying softly and walked slowly to Ekapu Lavaija and told him that Hurai Sefere had sex with her without consent. 

-	She had known him well before as both are from the same village and she recognised him as he was the only one that attacked her that day.  She identified him seated in the dock.
-	She was escorted by the uncle to the mother were she told the mother of what Hurai Sefere did to her that day.  The matter was then reported to the police and Hurai Sefere was arrested and charged by the police.

Discrepancies in the victim’s evidence

5.    There are some inconsistencies in the victim’s evidence for instances she said this was her first time to have sex with a male person.   This is contrary to the medical report tendered into evidence by consent.  The medical report states that hymen was absent and this shows that she was not a virgin at the date of the offence.  But such is probable particularly from a young girl giving evidence trying to protect her reputation and dignity in the community as she is ridiculed in school by other students over the incident.

She states that Hurai Sefere only removed the elastic shorts down the waist so inference is that she had other clothes on her body.  

When she felt pain cried and shouted, Hurai Sefere punched her and told her to shut up.  He stopped assaulting the victim when disturbed by Ekapu Lavaiji then he fled in the direction of the beach.

Witness:   Ekapu Lavaiji 

6.    He is the maternal uncle of the victim Eau Nickson Sari.   On 6th April 2016, he was cutting timber for the church pastor in the village.   He left the village and walked along the beach when he heard someone crying in the mangroves so he went to investigate.  

-	He left the beach and walked to the bush and stood along the track and saw Hurai Sefere squatting on his legs.

-	He saw only the shoulders and heard of Hurai Sefere.  Then Hurai Sefere stood up and stared at the witness then ran towards the beach.  

-	Shortly after Hurai Sefere fled, the victim Eau Nickson Sari stood up  walked to Ekapu Lavaiji crying softly.  She told Ekapu Lavaiji of  what Hurai Sefere did to her there.  So they return to the village where she told her mother the same and the matter was reported to the police.

Analysis of Evidence in the trial

7.   This witnesses’ evidence supports the evidence of the victim.  I asked myself the following questions:
 
-	What was Hurai Sefere doing to the victim when disturbed by Ekapu Lavaija?  
-	Why was Eau Sari screaming and crying when lying on the ground where Hurai Sefere was squatting on his legs?  

The accused on the other hand made unsworn statement from the dock.  He merely stated both victim and witness are lying about him in court.

* 	He gave no reasons or explanations why the State witnesses would be lying about him in court?

I attach no weight to the unsworn evidence of the accused and so I disbelieve him.

On the other hand the victim gave credible evidence that is believable and is corroborated by the evidence of the maternal uncle Ekapu Lavaija.

Finding

8.    I attach weight to the sworn evidence of the State witnesses and so find that the accused committed the offences on the victim on 06th April 2016 at Silo No. 2 village.  The State has proved its case against the accused Hurai Sefere beyond reasonable doubt. 

Verdict

9.  The accused is found guilty on both counts of sexual penetration of the victim Eau Sari on 06th April 2016, at Silo No. 2 village.  So he is convicted on both counts of sexual penetration of Eau Sari, a girl under the age of 16 years.

Allocatus

10.
“Say sorry to the court. My name is Hurai Sefere I have a family.

My father suffers from T/B sickness.

I am second born in the family – all the others are younger than me.

I help my father, assist him with whatever he does.

I am a first time offender.

I will accept decision of Court.”

The State tendered antecedent report and allege no prior convictions against the prisoner.

Personal Particulars

11. 
-	He is 23 of age and is a bachelor.  He is a youthful and a first time offender.

-	He attended Wamai Primary school and completed grade 5 in 2010.  

-	He belongs to New Apostolic Church religious denomination.

-	His parents are subsistence gardeners and the father is suffering from T/B illness.
-	In the family he has 8 brothers. 
-	He has spent 6 months in custody awaiting the trial of this case.  

Mitigating Factors

12.

-	The age difference between the prison and the victim is 9 years.
-	The prisoner did not use weapon to threatened or assault the victim during the commission of the offences.

-	The victim has fully recovered and suffers no permanent, physical injuries from the incident.

Sentences

13.

-	The maximum sentence for these types of offences is a term not exceeding 25 years.    

-	The two counts arose from same set of facts and are very closely related to each other.  

-	So the sentences to be imposed are separate and are to be served concurrently by virtue of section 20 of the Criminal Code Act. (see Yalibakut –v- The State SC 890).

The range of sentences suggested by counsels is between the range of 5 to 13 years on each count to be served concurrently.

The sentences of the court are as follows:

	Count 1 	- The prisoner is sentenced to be imprisoned for 7 years in hard labour.  The pre-trial custodial period of 6 months is deducted and so the balance is 6 years 6 months.

Count 2   - The prisoner is sentenced to be imprisoned for 7 years in hard labour.  The pre-trial custodial period of 6 months is deducted and so the balance is 6 years 6 months.

ORDER 

The second sentence of 6 years 6 months is to be served concurrently upon the first sentence.  So the prisoner is to serve 6 years 6 months at Bomana Corrective Institute Services.  

Accordingly ordered,

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