Gosschalk v Reginam [1979] KIHC 2; 1979 KILR 3 (16 January 1979)

[1979] KIHC 2; [1979] KILR 3

HIGH COURT OF THE GILBERT ISLANDS

Criminal Appeal No 46 of 1978

KENNETH GEORGE GOSSCHALK

v

REGINAM

(O'BRIEN QUINN C.J.)

Betio: 16 January 1979

Criminal appeal - Criminal Revision - Rape - indecent assault - witness telling the truth corroboration - evidence if complainant - Magistrates did not comply with section 194(1) of Cap 7 - cured by section 290 of Cap 7 - appellant failed to avail of opportunity to cross-examine - lack of penetration - circumstantial evidence - Magistrates entitled to draw proper inferences - no marks indicative of a struggle - corroboration - court may convict of rape without corroboration - Magistrates' reasons for believing complainant left a lot to be desired - record not properly kept - record not complete - no duty on Courts to take a verbatim record - imprudent to rely on record - appeal allowed - conviction quashed - re-trial left to Crown to decide.

The facts of the case are set out fully in the judgment.

HELD: (1) That where matters suggested as being corroborative are not in fact so and where the record is not complete there is a danger of injustice being done;

(2) That it is not the duty of the Magistrates' Court, and indeed any Court in the Gilbert Islands, to take a verbatim report of everything said and done in Court; the Courts being required only to take a note of the salient evidence;

(3) That it would be most unsafe to rely on the Record in this appeal due to the many omissions therefrom;

(4) That the appeal be allowed and the conviction quashed even though the Court was not impressed by the evidence of some of the defence witnesses, but a re-trial would be left to the prosecuting authorities to decide upon.

Authorities referred to:-

Magistrates' Courts Ordinance 1977

Section 28, 37, 67, 68

Second Schedule

Legal Notice No 26 Of 1978

Archbold "Criminal Pleading, Evidence and Practice" 38th Edition pghs 523, 1414, 1415, 1417, 1418, 2888, 39th Edition pgh 2887

Kenny "Outlines of Criminal Law" 17th Edition

D.P.P. v Kilbourne (1973) A.C. 729 at 746 HL

R v Redpath (1962) 46 Cr App. R 319

R v Knight (1966) 50 Cr App. R. 122

Njuguma s/o Wangurimu v R (1953) 20 E.A.C.A. 196

D.P.P. v Hester (1973) A.C. 296

Criminal Law Review, September 1978, pages 559 and 560

R v Phillips 18 Cr App R. 23

Appellant in person
G.L. Pimm, Attorney General, for the Crown

O'BRIEN QUINN C.J.:- This matter came before the High Court in two ways. The first was by way of transfer by the Magistrates' Court, Bairiki to the High Court for sentence after conviction of the accused by the lower court under the provisions of section 37 of the Magistrates' Courts Ordinance 1977. The second was by way of an appeal by the appellant against his conviction by the Magistrates' Court Bairiki on 29th July 1978 under the provisions of section 67 of the Magistrates' Courts Ordinance 1977.

2. In view of the fact that the appellant had appealed the High Court decided to hear the appeal first and then to consider the question of sentence should the need arise. Having regard to the fact that no sentence had been passed in the Magistrates' Court no right of appeal existed under the terms of section 67(1) of the Magistrates' Courts Ordinance 1977. However, under the terms of section 68 I decided to entertain the appeal, in the interest of justice.

3. The appellant was charged with the offence of Rape contrary to section 128 of the Penal Code (Cap 8) and the particulars alleged were that on a date between 1st and 31st December 1977 on Christmas Island he had sexual intercourse with Mikara Terara without her consent and he was charged on the second count with indecent assault, apparently in the alternative.

4 The offence of Rape is beyond the jurisdiction of a Magistrates' Court by virtue of the Second Schedule to the Magistrates' Courts Ordinance 1977 as amended by Legal Notice No 26 of 1978 but under the powers vested in me by section 28 of the Magistrates' Courts Ordinance 1977 I invested the Magistrates' Court for the Bairiki Magisterial District with jurisdiction to try this case summarily, which Order, dated 10th May 1978, was attached to the Magistrates' Court Record of the case and was inspected by the appellant during the trial at his request.

5. The essential facts of the case are basically simple. The complainant, Mikara Terara, a young woman of about 18 years of age was employed by the appellant, who was the Resident Engineer on Christmas Island, as a washer-woman and general home help. The appellant lived with a Gilbertese woman named, Tetaake Teimarawa, who was on friendly terms with the complainant, Mikara. On or about 1st December 1977 the appellant, the complainant and Tetaake returned to the appellant's house at a place known as E.C.I. having attended some sports and a dance. Tetaake went into the bedroom, which she shared with the appellant, to pack certain items as they were about to move to new quarters. Shortly after that the complainant, Mikara, also entered the same room and lay on one of the two beds which were together side by side. There appeared to be some conflict in the evidence of this stage as Tetaake said that the appellant was present when Mikara entered the room while the appellant and Mikara do not agree with that version. In any event, when the appellant did come into the room he found Mikara on the bed talking to Tetaake who was standing near a wardrobe close by. All the evidence is clear that the appellant then moved Mikara across the bed and lay down beside her. Tetaake said that at that stage she saw the appellant putting his hand on Mikara's shoulder and then putting his arm around her as they lay side by side on the bed, but that, as she was jealous, she left the room to put certain clothes into the car and then returned to the kitchen. Mikara's evidence on this aspect was totally at variance as she said that the appellant got on top of her on the bed despite the fact that she had told him not to bother her. Mikara also said that she pulled the appellant's hair and bit him, causing him to remove his hands from her, whereupon she tried to escape from the bedroom but was unsuccessful as the appellant blocked her way and went to close the door. She said that the appellant then pulled down the zip of his shorts and tried to get his penis out before putting her down on the floor, raising her clothes and pushing aside the leg of her panties. Mikara said that she called out to Tetaake to assist her but by that time Tetaake had left the room. Mikara testified that the appellant then got hold of his penis, inserted it into her vagina and started to move up and down. She said that she then pressed her foot hard on the floor to remove herself from under him and that the appellant slapped her on the cheek. She said that he failed to ejaculate and then inserted his penis again after he had slapped her cheeks. Again she tried to move away from him, she said, by pressing her foot against the floor and succeeded but he moved again on top of her. She claimed that at this juncture, she pretended to give in to the appellant and the appellant got off her and went to the door to close it, whereupon she seized her opportunity and ran between his legs, escaped and ran to the front door and got outside. Outside she said that she went to the house of a European or American who lived nearby, knocked at the door, received no reply and ran away to hide herself in the bush when the appellant ran after her calling her to come back to him.

6. The appellant's version of what occurred in the bedroom is entirely different. He said that he had compassion for her as she had not been her usual self and that he believed that she was pregnant. He said that he tried to talk quietly and sympathetically to her but she did not react. He then rubbed her left shoulder, her left arm and her left cheek and at about this time Tetaake left the room having said something angrily to him in Gilbertese and having slammed the door. The appellant then continued his sympathetic role but it appeared to cause her to cry whereupon the appellant, as he said, "came across to her still rubbing her arm and cheeks" and started to speak soothingly to her and to stroke her right shoulder. He said he spoke to her in English but did not know the extent of her comprehension of that language. His efforts did not have the effect required as she began to clench her fists, pull her hair and beat her face. She was, he said, throwing herself on the bed and her dress, an old worn one, which he was holding became torn. He told the Court below that he considered leaving the room at that stage but, instead, decided to give her a slap on the right cheek believing that it would help her. This seemed to have a worse effect on her, he said, and she tore away from him and ran out of the door. He explained that he followed her and then stopped as he was at a loss as to what to do. He paused to think for a while and then went out looking for her but failed to see any sign of her. He went to the house of an American next door, called his name and went in and saw him in the house, left the house and went onto the beach but still failed to find her. After that, he said, he went to the kitchen where he found Tetaake and asked her to come and help him to find Mikara.

7. Apart from that evidence there was testimony given by a man called Kaara Iererua who said that he was asleep in the room next to that in which the alleged rape took place, that he was awakened by noise in the next room but did not investigate it any further. He said that he took a shower and then went into the kitchen where he remained for a short while with Tetaake after asking her about the noise, boiled some coffee and then returned to his work room in the same building.

8. The remainder of the evidence consisted of testimony relating to Mikara's being found, taken by the appellant and Tetaake by car to London and relating to the evidence of the complaint made by Mikara to a woman called Teaa Konono, to her mother and to the Police and their noticing her clothes, hair and general condition. Evidence was also given of certain conversations which took place with a priest and the complainant's parents at which the appellant was present and at which the appellant gave the priest an envelope containing $20 for the complainant. Medical evidence, too, was given but it did not lend much positive assistance whereas its negative aspect did help the appellant to some extent.

9. On this evidence the Magistrates, having reviewed all the testimony given, having considered the question of their belief in the complainant's evidence and the question of corroboration, found that they believed her evidence, gave their reasons for so doing and found the appellant guilty of Rape as charged on the first count and discharged him on the second count of indecent assault.

10. At the request of the Attorney-General the Magistrates transferred the case to the High Court for sentence.

11. The appellant appealed against the conviction on the following grounds: -

(1) The accused was effectively denied the right of legal advice and representation during the taking of certain critical evidence;

(2) The Accused was denied the opportunity to cross-examine Dr. Kofe on critical medical evidence;

(3) Essential medical evidence was not available to the Court for consideration during consideration of judgment;

(4) The defence case was not properly understood by the Court, was not coherently recorded in the Court Record, and was not adequately considered or discussed in the judgment, to the overall detriment of the accused;

(5) There was no corroboration that intercourse took place or that the accused was involved in intercourse with a girl;

(6) The defence was denied relevant and essential information by the Prosecution;

(7) The accused did not receive the mandatory direction from the Presiding Magistrate, before giving evidence, of his right to either say nothing, to make a statement without taking the oath, or to make his evidence available on oath and subject to cross-examination;

(8) There are many anomalies, important omissions and significant errors in the Court Record of the hearing;

(9) On the evidence given to the Court, any reasonable Court would have considerable doubt as to whether the accused actually committed the offence which he is alleged to have committed.

12. In arguing his appeal, the appellant relied on citations from Archbold "Criminal Pleading, Evidence and Practice" 38th Edition and on Kenny "Outlines of Criminal Law" 17th Edition.

13. In view of the fact that the appellant had tape-recorded much, but not all, of the evidence in the lower court I permitted a transcript of this to be taken and used by the parties on the appeal due to their being large gaps in the Court Record.

14. The grounds of appeal were argued at length and replied to by the learned Attorney-General. Some of the grounds argued have substance; others have very little or none at all. I will first of all dispose of those grounds which I do not consider as having any great merit.

15. In Ground 4 the appellant submitted that elements critical and essential to the defence were not understood by the court below and that the evidence of Kaara Iererua, who was asleep in the next room, and Tebati Taberanang who gave peripheral evidence only, was not even considered. He also criticized the statement of the Magistrates in their judgment in which they said "We have also considered the defence raised by the accused and his barrister, but all our thought concentrated on the complainant's evidence." Reading the Record such as it is, I consider that the Magistrates were acting quite properly in concentrating on the complainant's evidence. After all in a rape case, the fundamental point to be considered before any other question is gone into is: Does the Court believe the complainant to be telling the truth? Only if the complainant is telling the truth need the question of corroboration arise. If the complainant is, clearly, not telling the truth then corroboration is not going to make her story true. This was out much better by Lord Hailsham L C in D.P.P. v Kilbourne (1973) AC.729 at p 746 HL when he said "Corroboration is only required or afforded if the witness requiring corroboration giving it is otherwise credible." The Magistrates quite rightly concentrated on the evidence of Mikara and in not considering the evidence of Kaara Iererua and Tebati Taberanang, as was argued, they were quite right insofar as Tebati was concerned as her evidence was not of great importance and, where Kaara was concerned, had the Magistrates gone into his evidence in greater detail, they may have found that it weakened rather than strengthened the appellant's case. However, they should not have concentrated exclusively on the evidence of the complainant as that was only part of the whole case, and by not going into the appellant's evidence at some length they may not have fully appreciated the matter before them for decision and, in particular, may not have appreciated the question of corroboration. These matters I shall deal with more comprehensively when I consider Grounds 5 and 8.

16. Ground 6 fell away when I permitted the handing in of the complainant's panties and dress in this Court and allowed the appellant to examine them. Very little turned on them, in any event, and all I can say is that it is a pity that they were not properly produced before the Magistrates.

17. Ground 7 raises a procedural point that the Magistrates should have followed the terms of section 194(1) of Cap 7. It is true that the Magistrates should have done so but I consider that no miscarriage of justice has actually occurred and by virtue of my powers under section 290 I dismiss this ground of appeal.

18. The remaining Grounds of Appeal, 1, 2, 3, 5, 8 and 9 have substance and I will deal with them in detail.

19. Grounds 2 and 3 cover much the same point. The appellant argued that his Counsel did not get an opportunity to cross-examine Dr Kofe but the learned Attorney-General in argument clearly stated that he had raised the matter with Mr Kato, accused's counsel, and expected a reply from Mr Kato as to whether or not he wished to cross-examine Dr Kofe. I accept the learned Attorney's statement and I am of the opinion that Mr Kato had an opportunity of cross-examining Dr Kofe but failed to avail himself of it. In my opinion, very little would have been gained by cross-examining Dr Kofe, in any event, as it was clear from his evidence that there were no injuries found on the appellant which fact would tend to cast doubt on the complainant's story that she had bitten him, and the only injuries found on the complainant were a discoloration on her right cheek and a single skin scratch on her back. The injuries to the complainant did not assist the Crown as they were just as consistent with the appellant's version of the incident. Dr Kofe's evidence of there being no injuries to the vagina or to the pubic area and there being no sign of spermatozoa in her vagina is neutral and consistent with both versions of the incident. It is, however, a point of note that the absence of spermatozoa tallies with the evidence of the complainant that the appellant did not ejaculate but, as I said, it is equally consistent with the appellant's story. On the whole, I would dismiss Grounds 2 and 3, because, even though they have some substance, their substance is not of sufficient weight to upset the Magistrates' decision.

20. I shall now deal with Ground 9 which covers a number of points of importance and I will treat them in the order in which they appear.

21. It was urged that no penetration or sexual intercourse was proved but these are matters which by their very nature are difficult to prove, and sometimes impossible, and that is why Courts rely on circumstantial evidence and on the evidence of the complainant and look for corroboration. Sexual assaults are very rarely carried out in the full gaze of the public, and Courts are very conscious of this. The complaint of the girl is usually the first indication that a sexual assault has taken place and, from then on, other evidence must be given to substantiate the allegation. In this case the Magistrates believed the girl and looked for corroboration and to that extent acted properly.

22. That the accused made no admission of the offence in so many words is clear but the Magistrates were entitled to draw whatever inferences they thought proper from the evidence, particularly if they did not believe certain of the witnesses to be telling the full truth as to certain of the events.

23. That a man may have a satisfactory sexual relationship with his wife, or his concubine, is no reason why he should, accordingly, be averse to seeking other sexual relationships of a temporary or even a permanent nature particularly, as in this case, a large part of the appellant's defence consisted in trying to show the promiscuity and easy sexual accessibility of the complainant which tendencies were obviously known or believed to exist by the appellant.

24. One does not always expect to find marks indicative of a struggle on a person who has been involved in one. Circumstances vary. In this case, however, the lack of any sign of a bite-mark on the appellant does have some significance but it is off-set, to some extent, by the fact that the complainant said in her evidence that it was not a serious bite as she was afraid to bite too hard. Nevertheless, it is a point to be considered.

25. The fact that there were no marks on the girl indicative of rape is, again, not a strong point, particularly as the start of the incident took place on a bed and that the complainant, after a short struggle on the floor feigned acquiescence, and was not, prior to the incident, a virgin.

26. For the appellant to urge upon this Court that the complainant was conclusively proved to be lying in Court on certain aspects is all very well but I have looked at the Record, such as it is, and have had recourse to the transcript of the taped evidence and I find that, far from the complainant's saying that she did not know the appellant before going to work for him she actually stated in examination-in-chief that he had actually touched her breast on one occasion and that she had scolded him for doing so. She did say that she had not 'met' him before but, taking that together with the incident where she said he touched her breast, it could be glue to a loss of meaning in the translation but, whichever way one looks upon it, I do not consider that it was a point of sufficient significance to prove that the complainant was lying or vitiate the whole of her evidence. On the question of whether Tetaake remained in the room during the majority of the alleged incident, this was a question of whom the Magistrates believed and it would appear from the judgment, although unfortunately not specifically stated, that the Magistrates believed Mikara and not Tetaake, which they were perfectly entitled to do, on the evidence. With regard to whether the complainant was living in the Catholic Maneaba or in her parents' house is not material and is not in any way conclusive that she was lying. Likewise the evidence of Tebati Taberanang about the complainant's going to the Catholic Maneaba before going to her parents' house is not conclusive that the complainant was lying; it may have been a slip of the memory. This point is not sufficient to take from the veracity of the complainant. The fact that the complainant clearly admitted laughing with Nei Teaa shortly after her return from ECI and that later she was crying to her mother were not sufficiently inconsistent to render her total evidence unbelievable. If they were inconsistent with respect to the alleged rape they were also inconsistent with the appellant's story of the girl's having become hysterical; both or either, or neither, need have been faked. The Magistrates, however, chose to believe her rather than the appellant. The question of the tear in the complainant's dress had been made into quite an issue but, having examined it carefully, I consider that it is not very important. The tear is five inches long and is in the material itself, not the seam. It is on the right hand side of the dress at the back near the side and one could clearly see, from looking at a person wearing it, whether or not that person was wearing panties underneath, as the greater part of the tear is below the waist. It is quite possible that witnesses seeing it may get different impressions and I do not consider that any court would attach much significance to such variations in testimony, and I do not consider it sufficient to discredit the complainant. The appellant argued that when the complainant said that she looked away when the appellant opened the fly of his shorts she was saying something improbable and that it did not have the ring of truth. I do not agree. I consider it to be a perfectly normal reaction where a girl does not want to have sexual intercourse and is actively trying to avoid it. Far from her story on this point being improbable I consider that her veracity is, if anything, enhanced thereby. To say that the complainant's story of how she tried to get out the door only to be blocked by the appellant is improbable, is ingenuous. I consider it to be highly likely that she did do so and the Magistrates who said and heard both the complainant and the appellant must have done so too when they said that they believed the girl's story. To say that it was a physical impossibility for the appellant to strike the complainant on the cheek with his hand while he was lying upon her on the ground is putting the matter too highly. The complainant's evidence that the appellant raised the upper part of his body while holding her hands with one of his and struck her face four times with the other hand is just as probable, and the fact that she gave such evidence without hesitating gives it the aura of truth. In any event the Magistrates believed her version of the discoloration of her cheek rather than that of the appellant who agreed that he had struck her cheek, though in different circumstances. The appellant argued that the complainant must have known that Kaara Iererua was in the next room and, to support this argument, he said that it was "an invariable psychological reaction" for a person who is walking without haste along such a corridor in a strange building to invariably turn his or head to look inside before passing such a door and not to just look straight ahead and ignore it. For the appellant to argue about an "invariable psychological reaction" without any proof or any iota of evidence to back it up is asking this court to assume a lot. This is a Court of law and of evidence not a Court which bases its findings on assumptions such as that, and the highest that the appellant's argument could be put is that some people would not pass such a door without looking in but that there are many also who would. In the circumstances of this case there is nothing to indicate that the complainant looked into the room of Kaara and all the evidence seems to show that she was totally unaware of the presence of Kaara throughout the whole incident. It is also significant that Tetaake first of all said that she did not know where Kaara was before she saw him in the kitchen and it took quite some questioning by the appellant before she finally said that she had seen him sleeping on the bed in his room but she still insisted that she was surprised to see him in the kitchen. In my opinion this argument of the appellant is not a strong one, by any means, and I consider that it must fail. The final point raised by the appellant on this ground is an omnibus one stating that his version of the incident was truthful, logical, credible and corroborated at least as well as that of the complainant. That may well be so but the Magistrates chose to believe the complainant rather than the appellant after having seen and heard all the evidence. On that basis I am of the opinion that that argument must also fail.

27. I will now deal with the first ground of appeal and, while I consider that it has certain merit, I must say that Father Ramuz's evidence was not such as required to be cross-examined by a lawyer, while, where Dr Kofe was concerned, I have already said that I accept that the learned Attorney-General had spoken with Mr Kato, Counsel for the Defence, and was awaiting word from him as to whether or not Dr. Kofe's evidence would be subjected to cross-examination by Mr Kato but that Mr Kato never gave him any such indication before leaving the Gilbert Islands and the appellant's taking over his own defence. I also stated earlier in this judgment that Dr. Kofe's evidence did not assist the Crown case to any great degree and that, if anything, it assisted the appellant. In these circumstances, I do not consider that the appellant was so prejudiced as to lead to there having been a miscarriage of justice. With regard to Father Ramuz's evidence, I consider it to have been singularly unhelpful to the Crown and most vague from any point of view. I do not consider that the appellant would have gained much, if anything, from the cross-examination of Father Ramuz by Counsel. While, therefore, I consider that, in principle, the appellant is right on this ground of appeal I dismiss it in the circumstances under section 290 of the Criminal Procedure Code (Cap 7).

28. The fifth ground of appeal, now, falls to be dealt with and this ground goes to the whole root of the case. The appellant argued that there was no corroboration that intercourse actually took place or that the appellant was involved in intercourse with the girl. In so arguing he relied on paragraphs 523, 1414, 1415, 1417 and 1418 of Archbold (38th Edition). I will first of all say that the appellant was partly right in his argument that the disorder of the complainant's hair and the tear in her dress are not corroboration in law as the law is, that little, if any, weight should be attached to such evidence but that in certain circumstances it may amount to corroboration (R v Redpath (1962) 46 Cr. Rep 319) and (R v Knight (1966) 50 Cr App. Rep. 122). In the circumstances of this case I do not consider that any weight ought to have been attached to it as corroboration. Likewise, the evidence of the discoloration of the complainant's cheek was equivocal and, while it may have amounted to corroboration in the absence of the appellant's version, I cannot accept it as such in view of that. Now, I must consider the whole question of corroboration in this case. The law clearly is that corroboration of the complainant's evidence is not essential in law but that it is, in practice, always looked for and it is established practice for a court to warn itself (or, where there is a jury, to warn the jury) against the danger of acting upon her uncorroborated testimony. This is clearly stated in Archbold 38th Edition at paragraph 2888 and in the 39th Edition at paragraph 2887. This was extended in Njuguma s/o Wangurimu v R (1953) 20. E.A.C.A. 196 where the Court of Appeal for Eastern Africa said: "While it is not a rule of law that an accused charged with rape cannot be convicted on the uncorroborated evidence of the prosecutrix, it has long been the practice of the Court of Appeal for Fast Africa to look for and to require corroboration in sexual offences". However, that decision was later toned down to some extent and the position is that a Court, before basing its decision to convict on the evidence of the complainant alone if it believes it, should warn itself on the danger of convicting on such evidence and should look for corroboration, if possible, but it may convict on the complainant's evidence without any corroboration. However it is always advisable to seek corroboration.

29. The Magistrates, in their judgment, said "we have considered the evidence given on behalf of the Crown and in our thought we believed Mikara had been raped by Ken. We have also considered the defence raised by the Accused and his Barrister but all our thought concentrated on the Complainant's evidence." They then went on to say -

"Question

1. Was the evidence of Mikara corroborated or if it were not would it be safe to rely upon it and are we convinced that she was telling the truth?

2. Did Mikara consent to have sexual intercourse with Accused? In Nei Teaa's statement, she stated the appearance of Mikara, and that she had no pantie and that she could see from the torn of her dress and was crying.

In the Doctor's evidence of the discoloration of Nei Mikara's cheek. We remind ourselves and believed in Nei Mikara's evidence that she lied on the bed with the accused. Once a man and a woman lied together by themselves we expected them to do something and that she was already stated in Nei Mikara's evidence that the accused got on top of her, and then put her on the floor and had sexual intercourse with her. For that the woman can complain on it, but when a woman is well looked after she cannot complain. According to what Ken had done to Mikara on the bed when stroking her shoulder and softening her heart that he can help, well if it's that then the woman cannot run away or put up a complaint."

According to the following reasons hereunder we then believe in Nei Mikara's state that she had been raped by the accused Kenneth George Gosschalk:-

"(1) When she lied with Ken on the bed and on the floor.

(2) When she cried for what the accused had done to her.

(3) When she ran away from the accused and hides herself in the bush.

(4) Because the accused is worried of the incident he wanted to see the parent of Mikara to make peace so he went to see Father and Natanaera.

(5) We believed Mikara didn't want to have sexual intercourse because if she intended to she wouldn't have complained, or run away from the accused and wouldn't tell her mother. Even if she is a prostitute but didn't accept what the accused had done to her she would then make a complaint."

This clearly shows that the Magistrates had made a careful examination of the Crown evidence which they had heard, and had believed the complainant rather then the appellant whose evidence they only touched upon. They also considered the question of corroboration but, here, I must say they have erred in that they treated as corroboration certain matters which were, in law, not corroboration. I refer particularly to their reference to Nei Teaa's statement and to Dr Kofe's evidence, both of which points I have dealt with earlier, and found were not corroboration. The Magistrates then went into the complainant's evidence and said, in effect, that if a woman is treated with kindness and agrees to have intercourse she would not complain whereas, Mikara, by running away and putting up a complaint must have been raped. This reasoning I do not find to be too sound as complaints may be made for many reasons. However, the Magistrates did then go on to give the reasons why they believed the complainant but they did not state whether or not they found corroboration.

30. Corroboration had been said, in D.P.P. v Hester (1973) A.C. 296, not to be a technical term but to be nothing more than evidence which confirms, supports or strengthens other evidence and that it must come from an independent source (Criminal Law Review September 1978 pages 559 and 560).

31. The Magistrates' reasons given for believing the complainant left a lot to be desired and did not take account of the version told by the appellant. Had there been corroboration in the sense set out in D.P.P. v Hester (1973) A.C. 296 or had the Magistrates even referred to it this Court would be in a better position to assess the matter. Further, had the Record been kept in a more careful manner this Court would be in an even better position to look into the question of corroboration but, with so many gaps in the Record, it would be difficult to rely upon it in endeavouring the ascertain whether or not there was corroboration, and the fact that, when the Magistrates did refer to matters that they may have considered to be corroboration, they did not constitute corroboration, brings under consideration the decision in R v Philips 18 Cr App R. 23, cited at paragraph 2887 of Archbold 39th Edition. In that case it was held that even where there is such a warning but matters are suggested as being corroborative which are not in fact so the conviction may be quashed in a proper case, on appeal. In this case where the Record is not complete and there is a consequent danger of injustice being done I consider that this is a proper case.

32. This brings me on to Ground 8 where it was argued that there were many anomalies, important omissions and significant errors in the Court Record of the hearing. It is not the duty of the Magistrates' Court, or indeed any Court in the Gilbert Islands to take a verbatim report of everything said and done in the Court; the Court being required only to take a note of the salient evidence. Nevertheless, in this case, large parts of the evidence were omitted and parts were recorded in pencil with words and sentences left out. Thus, to place reliance fully on the Record would, to say the least of it be imprudent and to put it at its highest, dangerous. The points of discrepancy mentioned by the appellant in argument do not impress me as they are mostly on peripheral matters. However, on the whole, as I have said, I consider that it would be most unsafe to rely on the Record in this appeal.

33. Therefore, while I consider that the likelihood of the appellant's having raped Mikara is very strong, I do not consider that, in a case such as this, where the Magistrates should have gone into the evidence of the appellant with the same thoroughness as they did that of the complainant and should have looked for proper corroboration, not alone of he incident in general, but the actual sexual act itself, particularly in view of the appellant's version of events and the fact that the Record of the proceedings in the Magistrates' Court is unreliable having regard to the omissions therefrom, it would be safe to uphold the conviction based on such a Record.

34. I must therefore, allow the appeal on these grounds and quash the conviction although I was not by any means impressed by the evidence of some of the defence witnesses who were clearly lying.

35. However, I do not order a re-trial but I leave it to the Crown to consider whether or not the evidence at this late stage, over a year after the incident took place, is still available and whether or not a re-trial would be warranted in the circumstances.

36. The appeal having been allowed and the conviction quashed the question of sentence falls away.